Merna Brown v Karl Evans Brown

• Jurisdiction: Jamaica
• Judge: P.A. Williams, J.
• Judgment Date: 27 March 2015
• Neutral Citation: [2015] JMSC Civ 59
• Docket Number: CLAIM NO. 2009 HCV 4855
• Court: Supreme Court (Jamaica)
• Date: 27 March 2015

[2015] JMSC Civ. 59

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2009 HCV 4855

CLAIM NO 2011 HCV 0988

CONSOLIDATED WITH

Between

Merna Benian

Claimant

and

Karl Evans Brown

Defendant

Between

Iola Brown

Claimant

and

Karl Evans Brown

1 ^st Defendant

and

Merna Benain

2 ^nd Defendant

Mr. Philmore Scott and Mrs. Camille Scott instructed by Messrs Philmore H. Scott and Associates for the claimant/2 ^nd defendant.

Ms. Sherry-Ann McGregor and Ms. Deborah Dowding instructed by Messrs Nunes, Scholefield, DeLeon and Co. for the claimant.

Ms. Carleen McFarlane instructed by Ms. Geraldine Bradford of the Administrator General?s Department for and on behalf of Estate Karl Brown.

Division of property-Property acquired while man married to one party and in relationship with other-Husband and wife had separated – Whether wife entitled to interest and share – The Property (Rights of Spouses) Act Sections. 11 and 13 – Whether other woman entitled to interest and share – Constructive trust

P.A. Williams, J.

1 This matter is the consolidation of two matters where two women as claimants are seeking the court?s determination as to whether they have any interest in various properties owned by one man. This man is Karl Evans Brown who died after the matter had commenced. The two women are his wife, Iola Brown and the other woman is Merna Benain with whom he had four children.

2 The proceedings commenced in 2009 when Merna Benain filed a Fixed Date Claim Form which was amended in September of the following year seeking against Mr. Brown the following orders inter alia:-

1

A declaration that the claimant and the defendant are each entitled to fifty percent (50%) interest in property described as All that parcel of land part of Cardiff Hall Plantation and Unity Pen in the Parish of Saint Ann being the Lot numbered Forty on the Plan of Part of Cardiff Hall Plantation and Unity Pen aforesaid deposited in the Office of Titles on the 17 th day of August 1961of the shape and dimension and butting as appears by the said plan and being part of the land formerly comprised in Certificate of Title registered at Volume 1305 Folio 518 of the Registrar Book of Titles (herein after referred to as the subject property). 2. A declaration that the claimant and the defendant are each entitled to fifty percent (50%) interest in property described as All that parcel of Land part of Rose Bank formerly part of Rosetta in the parish of Saint Ann of the shape and dimensions and butting as appears by the land comprised in Certificate of Titles at Volume 1186 Folio 27 of the Registrar Book of Titles on which the B & B Plaza is built (‘hereinafter also referred to as the second subject property’). 3. A Declaration that the claimant is entitled to fifty percent (50%) interest in premises described as Brown?s Plaza, Browns Town in the parish of Saint Ann. 4. A Declaration that the defendant pay the value of all the goods damaged in the B & B Supermarket located on the second subject property. 5. The properties be valued by a reputable valuator and the defendant pay the cost of the said valuation. 6. The defendant should notify the claimant?s attorney-at-law if he intends to exercise the option to purchase the claimant?s interest in the subject properties within fourteen (14) days of this Order. 7. If the defendant chooses to exercise the option to purchase, that he should sign the Sale Agreement and deliver the required deposits to the claimant?s attorneys-at-law within fourteen (14) days of advising them of his intention to exercise the option. 8. The defendant deliver to the claimant?s attorney-at-law within forty-two (42) days of signing the Sale Agreement a letter of commitment from a reputable financial institution for the balance purchase price of each Agreement. 9. If the defendant should choose not to exercise the option to purchase or if he fails to comply with paragraphs four (4) and five (5) hereof or any of them then: (a) The subject properties will be sold by private treaty or public auction with the valuation being the reserve price. The claimant?s attorney-at-law shall have carriage of sale of the said properties in any event. (b) That upon the failure of any of the parties to execute any of the documents relevant to execute a registrable transfer of the said properties than the Registrar of the Supreme Court is empowered to sign on their behalf. (c) That all costs of valuation and transfer be borne by the Respondent. 10. That the claimant is entitled to half the amount collected for rental of the second subject property located in Cardiff Hall in the parish of Saint Ann which said sum should be made payable to the claimant upon the execution of the Agreements for sale for the mentioned properties. 11. That the claimant is entitled to one hundred (100%) interest in the 1998 White Toyota Surf purchased in 1991

3 Mrs. Iola Brown filed her Fixed Date Claim Form on the 3 ^rd of March 2011 seeking the following declarations and orders against Mr. Brown and Miss Benain inter alia:-

1

A declaration that the property located at Huntley, Browns Town in the parish of St. Ann is the family home of the claimant and the first defendant. 2. A declaration that the claimant and the first defendant are each entitled to a fifty percent (50%) interest in the family home. 3. A declaration that the claimant and the 1 st defendant are each entitled to a fifty percent (50%) interest in the property formerly registered at Volume 1149 Folio 170 of the Registrar Book of Titles, but now registered at Volume 1237 Folio 438 of the Registrar Book of Titles. 4. An order that the Registrar of Titles rectify the certificate of titles for properties registered at Volume 1273 Folio 438 in keeping with the declarations in paragraph 3 of the Court?s Order. 5. A declaration that the claimant is entitled to a fifty percent (50%) interest in the property located at 77 Ricketts Drive, Cardiff Hall, Runaway Bay in the parish of Saint Ann and registered at Volume 1305 Folio 518 of the Registrar Book of Titles. 6. A declaration that the claimant is entitled to a fifty percent (50%) interest in the property located at Alexandria, in the parish of saint Ann and registered at Volume 1186 Folio 27 of the Registrar Book of Titles. 7. An order that valuation reports be prepared in respect of the properties registered at Volume 1305 Folio 518 and Volume 1186 Folio 27 of Registrar Book of Titles. 8. An order that the properties registered at Volume 1305 Folio 518 and Volume 1186 Folio 27 of the Registrar Book of Titles be advertised for sale by private treaty. 9. An order that the cost of preparing the valuation report be shared in proportion to the beneficial interest held by the owners of the properties.

The parties and their relationships

4 The defendant in both these claims, Karl Evans Brown, described himself as a businessman in his affidavit. He explained that at one time he was also a farmer and transported people to market to sell goods. He constructed a club on lands he had purchased at Nine Miles, St. Ann as well as a Shop/Supermarket. He operated and owned various businesses to include a Cambio – buying and selling foreign exchange. Although he said he was a successful businessman, he said he could only sign his name as he was not literate. Mr. Brown had sworn to two affidavits in this matter but by the time the matter came to trial he had died in January 2013. Thus the court had no opportunity to see and assess Mr. Brown but had to rely on the two affidavits filed in 2011.

5 Iola Brown and Karl Brown met as she remembered it, in or about 1969. They lived in a common-law relationship for more than five (5) years before getting married in Ortario, Canada on August 15, 1976. Prior to getting married they had three (3) children and after marriage they had two (2) more. Mrs. Brown described herself as a businesswoman and said that both she and her husband became successful business people. She described how in the 1970's they earned from selling crop such as cabbage, yam and potatoes which they planted on the land at Nine Miles. She said she helped to manage the club which was built in Nine Miles while her husband continued to farm. Up to 1991 she claimed she worked alongside her husband in some of the various businesses and in that year she went abroad and found employment as a civil servant in the U.S.A. She worked abroad until she retired in 2005.

6 The marriage however was not without problems and although at first seeking to challenge the documents exhibited, she at the commencement of the trial admitted to them. They showed that in July of 1990 she filed a petition for dissolution of the marriage. In her evidence while being cross-examined when asked if it was not she who had abandoned her husband in the businesses after 1991 she responded that it was he who had abandoned her but if she had stayed she would ‘have ended up in Bellevue’.

7 She described her husband as extremely hardworking – he was the head of the business and although he was not literate he could ‘handle his money very well’. She however, said he did not trust anyone and could be a contentious man. She also spoke of him as being abusive and was not reluctant in describing the abuse. She said whenever she tried to engage him in certain discussions concerning Miss Benain she ‘would get two fists in her jawbone.’ She frankly told of how he would beat her up for Miss Benain all the time.

8 Karl Brown and Merna Benain met in 1970 while she was still living at her mother?s home in Friendship District, Brown?s Town in the parish of St. Ann. Their relationship became an intimate one by 1972 as she remembers it. She was already mother to two (2) children and her first child with Mr. Brown was born in 1975 when she was 19. Together they had four children with one dying tragically in 2004. It...