Kellier (Martin O'Keith) and Stephanie Kellier Stephanie Kellier v Martin Kellier and Kenneth Kellier

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 22 April 2005
• Judgment citation (vLex): [2005] 4 JJC 2201
• Court: Supreme Court (Jamaica)
• Date: 22 April 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

MARTIN O'KEITH KELLIER

CLAIMANT

AND

STEPHANIE KELLIER

DEFENDANT

BETWEEN

STEPHANIE KELLIER

ANCILLARY CLAIMANT

AND

MARTIN KELLIER

1 ^ST ANCILLARY DEFENDANT

AND

KENNETH KELLIER

2 ^ND ANCILLARY DEFENDANT

REAL PROPERTY - Co-ownership

Mangatal J

1 This is an application by a husband against a wife by way of fixed date claim form for the following orders:

• (a) (a declaration) That the property located at Lot 341 Pen Housing Scheme, Montego Bay, in the Parish of Saint James, is owned by the parties in equal shares.

• (b) That a report on and valuation of the said premises be taken or alternatively that a valuation agreed upon by the Claimant and the Defendant be taken and that costs of same be shared equally by the parties.

• (c) That the said premises be put on sale on the open market or by public auction or by private treaty.

• (d) That the Registrar of the Supreme Court be empowered to sign any and all documents to make effective any and all orders of this Honourable Court if either party is unable or unwilling so to do.

• (e) Liberty to Apply.

2 This matter arose for my consideration on the 6 ^th and 7 ^th of December 2004, having been fixed for two days hearing in the presence of the Attorneys and their clients on the 25 ^th of May 2004. On that date it was ordered that the parties were to be present for cross-examination.

3 On the 6 ^th of December 2004 the husband was present but the wife was not. Mrs. Gibson-Henlin, on behalf of the wife applied for an adjournment of the matter on the basis that her client, who lives in New York, had communicated with her that she was unable to be present because of financial difficulties in purchasing her airline ticket. This information was communicated to the husband's Attorney-at-Law about one week before the hearing date.

4 Mr. Steer, on behalf of the husband opposed the application, and asked that the matter proceed, with the Affidavits of the wife and the ancillary claim being struck out.

5 Mrs. Henlin indicated that her client was at present unable to obtain proof of service on the 2 ^nd Ancillary Defendant of the ancillary claim.

6 I ordered that the ancillary claim be dealt with separately, pursuant to Rule 18.9 of the Civil Procedure Rules "the C.P.R.". The ancillary claim is now fixed for hearing on the 31 ^st of May 2005.

7 I took the view that it was not appropriate to adjourn the claim, it having been fixed from so long ago. However, it also did not appeal to me to be appropriate to strike out the wife's affidavits. I ordered that the matter proceed and allowed the wife's affidavits to be used, subject to her being made available to the husband's Attorneys for cross-examination at a later date. The husband was cross-examined. Mr. Steer indicated that having regard to the evidence before the Court, he did not think it necessary and would not proceed to cross-examine the wife.

The Husband's Case

8 The husband's case was that he was married to the wife on the 19 ^th of January 1983. Before that the parties had been living together in rented accommodation and in 1979 had decided that they needed their own home. He claims in his Affidavit sworn to on the3rd of April 2003 that he and the wife made a joint application at the Ministry of Housing for a house. He said that at the time, although they were married, he was living in the United States and he came to Jamaica frequently.

9 While he was in the United States, the wife called and informed him that the Ministry had accepted the application and that she needed $3,500.00 to make a deposit. The purchase price the husband says was $32,500.00. The husband instructed his cousin Frank Kellier to give the Defendant the money, which he did. A letter was exhibited 'M.K. 1" dated March 24 2003, in which Frank Kellier confirms that he gave the wife $3,500.00 on behalf of the husband to make payment to their house situated at Lot 341 Farm Heights, Montego Bay, Saint James, while he [the husband) was overseas.

10 The husband claims that he had to repay this money to Frank in the United States. The husband stated that when he returned to Jamaica he realized that although the application was accepted no money was yet required. He said that in total he gave the wife the money for the deposit three times.

11 The wife, the husband says at paragraph 11 of his Affidavit sworn to on the 3 ^rd day of April 2003, had the house registered in the names of herself and her father. He says he did not know this at the time as the agreement and understanding was that the property was to be in both their names and equally owned.

12 The husband states that he paid all of the monthly mortgage instalments personally up to 2001. He paid the instalments at the Ministry of Housing at Albion in Montego Bay on a monthly basis. He said that it was on one such occasion while paying the instalments that he realized his name was totally excluded. The title had not yet been issued.

13 He states that he spoke to the Defendant about this and she said that he was not included because he was overseas. They however decided to remedy this and signed documentation from the Ministry of Housing instructing them to delete the Defendant's father's name and add his, the husband's. This document was signed by them both and witnessed by a Justice of the Peace. The husband took the document to the Ministry of Housing. He said that the Defendant received the Title in 2001 and that was when he the husband saw it. A copy of the title was exhibited and shows that the property was registered in the sole name of the wife.

14 The husband relied heavily on Affidavit evidence filed in Suit No. FK 017 of 1992 in which the wife had applied for maintenance. So far as relevant the Affidavit of Means of Martin Kellier sworn to on the 15 ^th October 1996 states:

• 3. That my gross income for the last three years is as follows:- .... .... .... Civing an average income of $407,333.33 per annum from salary.

• 4. That I have to pay the following per month: -

  mortgage	$	$ 3,00.00
  electricity	5,000.00
  .....	.....	.....

• 6. That my wife is a businesswoman and earns in excess of $30,000.00 per month. That she goes to America and purchases goods for sale in Jamaica.

• 7. That my wife is also a one half owner in the matrimonial home situated at Lot 341 Farm Pen Housing Scheme which is valued at $7,000,000.00.

• 8. That my wife also collects the rental of part of the matrimonial home which is $10,000.00 per month.

15 In her Affidavit in Reply sworn to on the 14 ^th day of April 1997, the wife states:-

• 3. That paragraph 3 is incorrect; the Respondent has greatly understated his income and the average income stated by him of $407,333.33 per annum is what he collects in a week.

• 4. That in paragraph 4 the Respondent has overstated some expenses, for example the Mortgage payment for Lot 341 is $269.00 per month and not $3,300.00 as stated; and electricity bill is $2,000.00 not $5,000.00; but he does not pay the electricity bill, I pay and I attach the latest bill which is in the name of my sister, but paid by me.

• 6. That as to paragraph 6 it is not stated accurately. I used to be a businesswoman years ago, but I am not in any business now. I am not earning $30,000.00 per month; the only money I earn is $10,000.00 mentioned in paragraph 8 of the Respondent's Affidavit of Means.

• 7. That I do not deny paragraph 7 of the Respondent's Affidavit, but say that the Respondent did not add that he owns another lot of land at Farm Pen.

• 8. That I admit paragraph 8 of the Respondent's...