Officer (Lisa Anette) v Officer (Leslie William)
| Jurisdiction | Jamaica |
| Judge | Daye, J |
| Judgment Date | 30 November 2006 |
| Judgment citation (vLex) | [2006] 5 JJC 2201 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. E. 681 OF 2002 |
| Date | 30 November 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
HIGH COURT CIVIL DIVISION
MATRIMONIAL PROPERTY - Division
Mr. and Mrs. Officer marriage was dissolved on the 8 th November 2002 having lasted eleven (11) years. They were married on the 3 rd August, 1991. Their marriage produced no children.
Mr. Officer is a citizen of Kenya and Mrs. Officer a Jamaican who met each other in 1987. At that time they were both employed to Jamaica Packaging Industries, Kingston, Jamaica. They fell in love and got engaged in 1990. Their relationship was not all about the feelings and excitement surrounding the emotion of love. Together they applied their mind and thoughts to their future together and marriage.
Now that the marriage is at an end Mrs. Officer has applied under Section 16 of the Married Women's Property Act to the court to determine her interest or share in ten (10) items of property acquired by the parties primarily during the marriage. The properties range from the matrimonial home, real estate, motor vehicles, furniture, monies in joint savings local and foreign accounts and shares in companies. In fact Mrs. Officer in claiming 50% percent interest in each of the ten (10) items of property.
The couple have settled their dispute about six (6) of these items. The interest in the other four (4) items of property is what the court has to determine. They are:-
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(a) Monies in Barclays Bank PLC, Jersey, offshore checking account
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(b) Bank of America, Florida, U.S.A. checking account
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(c) Land Rover Discovery motor vehicle
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(d) Shares and director's loan in Automotive Power Limited.
Mrs. Officer rests her claim to the properties in question on a combination of factors. I summarize them as follows:-
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(a) a pre-marital agreement between herself and future husband to put their earnings into a joint savings for investment,
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(b) a pre-marital arrangement that she would contribute to the domestic or household expense while her husband would pay for rental, mortgage and save the balance of his income in a joint off shore saving account for their benefit.
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(c) Her contribution of services - consultancy, accounting and managerial to two companies formed by her husband,
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(d) Shares in the joint names of her and her husband and
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(e) Joint savings accounts in the joint names of herself and husband.
Issue
Does Mrs. Officer have an equity or 50% beneficial interest in:
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(i) the joint bank accounts held at Barclays Bank PLC, Jersey and Bank of America, Florida, U.S.A
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(ii) Land Rover Discovery motor vehicle
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(iii) shares jointly held by herself and her husband in Automotive Power Limited.
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(iv) directors' loan of J$ 2million made to Automotive Power Ltd.
Means
I find which is not in dispute that this couple was employed before and during marriage. They each earned separate income from their jobs.
Mrs. Officer is qualified. She hold a MBA in Marketing and Finance. Her employment history is:-
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1987–1990 Jamaica Packages Industries
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1991–1994 K.M.P.
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1994–1999 Workers Savings & Loan Bank, Human Resource, Management
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1999–2001 Bank of Nova Scotia, Human Resource, Management
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2005-Present Cable and Wireless, Human Resource, Management
Her banking job provided the benefit of concessionary interest rates on loans.
Mr. Officer is an engineer. He provides consultancy to private foreign companies overseas doing business in the package industry in two Caribbean island.
His employment history is:-
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1986 - engineer/management, Trinidad
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1987 - engineer/management, Jamaica Package Industry, Jamaica
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1987–2001 consultant,
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2001-present Manager, private company
His jobs provided the benefit that part of his salary was paid in an offshore banking account England. I draw the inference that it is reasonable that this couple qualified as they were and holding job with benefits would discuss and pool their resources for the benefit of their marriage including their matrimonial home and other investment.
The Law - Resulting Trust
The statement of the law of resulting trust was set out by Forte, J.A. in Azan v. Azan [1988] 25 J.L.R. 301 at 302, paragraph E to I. It is as follows:-
"Any claim to a beneficial interest is land by a person whether spouse or stranger in whom the legal estate is
Trustee on trust to give effect to the beneficial interest of the claimant as cestue que trust......."
The authorities show that the claimant seeking a beneficial interest must demonstrate that:-
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(a) there was a common intention that to grant a beneficial interest to claimant,
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(b) the claimant acted to his/her detriment on the basis of the common intention,
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(c) there was an express agreement to grant beneficial interest,
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(d) Implied Agreement, in absence of expense agreement, deduced from words or conduct to grant beneficial interest,
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(e) Substantial contribution by the claimant to acquisition, operation or maintenance of property referrable to common intention to have beneficial interest in property.
Where one party claiming a beneficial interest is married, Forte, J.A.explained in Azan's case :
"The determination of the beneficial interest in property of one party to marriage where the property is registered in the name of the other party, is in most cases difficult to resolve because of the nature of the relationship between husband and wife which in the days when property is acquired usually enjoy a degree of trust which resulted in the acceptance of verbal or implied promises made without consideration-tion of any possible dispute arising thereafter. In spite of this, the law does not make any presumption of beneficial interest because of the marital relationship, and therefore the party in whom the legal estate is not vested must resort to the law of trust to establish such beneficial interest (ibid. p.306, paragraphs F–G)
Law - Joint Account
The law governing joint account in the names of husband and wife was stated by Stamp, J. in National Provincial Bank Ltd. v. Bishop & Others [1965] 1 All E.R. 249 at 252 paragraphs D–F. This principle was adopted and applied by Forte J.A. in Azan (supra) and is stated in these terms:
"Now, when a husband and wife open a joint account at a bank in terms that cheque may be drawn on the account by either of them, in my judgment, in the absence of facts or circumstances which indicate that the account was intended or kept for a limited purpose each spouse can draw on it not only for the benefit of both spouse but for his or her own benefit. Each has the authority of the other, and in my judgment, if one of the spouse purchase a chattel for his own benefit or investment in his or her own name that chattel or investment belongs to the person in whose name it is purchased or invested for there is in such case, in my judgment, no equity in the other spouse to displace the legal ownership of the one in whose name the investment is purchased. What is purchased is not to be regarded as purchased out of funds belonging to the spouse in the proportion in which they contribute to the account or in equal proportions, but out of a pool of funds of which they were, at law and in equity joint tenants. It also follows that if one of the spouse draw on the account to make a purchase in joint names, it is prime facia joint property and there is no equity to displace the joint legal ownership. There is in my judgment no room for any presumption which constitute the joint holders as trustee for the parties in equal or some other shares. This is the law"
Where a joint account is in existence it was decided on the authority of Marshall v. Crutwell (1875) L.R. 20 Eq. 328 that the court must examine the circumstances in relation to the joint account in order to ascertain the reason for its existence and to see whether it existed for some specific or limited purpose. It was held on the facts of this case it was clear from the circumstances of the case that the joint account was open for a specific purpose, namely, in order to enable the household to be managed by the wife during the husband's illness. The court pointed out, in addition, that the surrounding...
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