Pinnock v Fitzroy Pinnock

JurisdictionJamaica
Judge RATTRAY, P. , HARRISON, J.A. , LANGRIN, J.A. (Ag.)
Judgment Date26 March 1999
Neutral CitationJM 1999 CA 16
Judgment citation (vLex)[1999] 3 JJC 2602
CourtCourt of Appeal (Jamaica)
Date26 March 1999
IN THE COURT OF APPEAL
COR:
THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A. (AG.)
BETWEEN
LORRAINE PINNOCK
PLAINTIFF/APPELLANT
AND
FITZROY PINNOCK
DEFENDANT/RESPONDENT
Verleta Green
Gordon Steer Vernon Ricketts

MATRIMONIAL PROPERTY - Division - Declaration of entitlement to land - Beneficial interest - Constructive trust

RATTRAY, P
1

I have read the draft judgments of Harrison, J.A. and Langrin, J.A. (Ag.) and agree with their application of the relevant law and their conclusions that the appeal should be allowed, the Order of G. James, J set aside and substituted therefor a declaration of the appellant's entitlement to one third of the land and buildings at Rosetta Cottage in the parish of Westmoreland registered at Volume 1030, Folio 180 of the Register Book of Titles in the name of the defendant/respondent.

2

In relation to this property the wife/appellant, contended that the excuse given by the husband as to why her name was not placed on the title was that two lots were sold off before they had acquired the property. These lots had not yet been transferred and the husband therefore took title in his name alone and said that he would transfer the property later into the names of both himself and his wife.

3

In his affidavit the husband denied having said this and further denied being aware of two acres being sold off the said land. However, a perusal of the agreement for sale between the husband Fitzroy Pinnock and the vendor Arthur Fairclough shows that the sale was subject to the following endorsement:

"The Westmoreland Coop Credit Union is to agree by way of letter to deliver back the title to us for the transfer of lot 1 and 2 to be effected which are not part of this sale and were already sold to Wesley Haring et ux and Mr. Savariau as well as 10 perches which belong to Neiland Ritchie."

4

Furthermore, the transfer under the Registration of Titles Law recites the

5

consent of the purchaser Mr. Pinnock "... that he will upon the said subdivision of the said land into three lots two being the land described in the Second Schedule hereto and the other one the remainder of the land, being approved by the Westmoreland Parish Council, whose approval may be necessary according to the law, and upon demand of the vendor, he the purchaser will re-transfer to the Vendor or the Vendor's nominees the land more particularly described in the Second Schedule hereto." That Schedule states as follows:

"All those two parcels of land being the lots Numbered 1 and 2 respectively on the subdivision plan annexed hereto and marked with the letter 'A' and being a portion of the land comprised and described in Certificate of Title registered at Volume 1030 Folio 180 of the Register Book of the Office of Titles."

6

Mrs. Pinnock's evidence therefore in regard to the two lots was supported by the documentary evidence and Mr. Pinnock's evidence discredited. In determining where the truth lies with respect to this, the learned trial judge obviously failed to consider the effect of this evidence. It is significant too that the rental agreements for the shops constructed on the Rosetta property are in the names of both husband and wife as 'Landlords'.

7

Furthermore, the Commercial Comprehensive Proposal Form for Insurance on the supermarket records the name of proposers as "Fitzroy and Lorraine Pinnock t/a Fitzlor" and under the heading "Description of Property" as -

"1. On the Building including landlord's fixtures and fittings attached and belonging thereto $800,000 which in fact is the full sum for which the application was made for insurance coverage."

8

The oral judgment of the learned trial judge in respect to the land and building part of Rosetta Cottage, was indeed terse. It stated as follows:

"(2) The land and buildings thereof, part of Rosetta Cottage situate at Savanna-la-mar in the parish of Westmoreland registered at Volume 1030 Folio 180 of the Register Book of Titles belongs exclusively to the defendant."

9

In my judgment the trial judge not having made any assessment of the evidence it is left to this Court to fill the lacuna and make its own assessment upon the material appearing on the record.

10

Viscount Dilhorne in his judgment in Gissing v. Gissing [1970] 2 All E.R. 780 at page 785 states as follows:

"I agree with my noble and learned friend Lord Diplock that a claim to a beneficial interest in land made by a person in whom the legal estate is not vested and whether made by a stranger, a spouse or a former spouse must depend for its success on establishing that it is held on a trust to give effect to the beneficial interest of the claimant as a cestui que trust. Where there was a common intention at the time of the acquisition of the house that the beneficial interest in it should be shared, it would be a breach of faith by the spouse in whose name the legal estate was vested to fail to give effect to that intention and the other spouse will be held entitled to a share in the beneficial interest."

11

I am satisfied that the evidence establishes a common intention that ownership should vest in both husband and wife.

12

The only question outstanding therefore is the proportion to which each was entitled in terms of ownership. This always poses a problem. The property is not the matrimonial home in which event I would have had no hesitation in determining the shares on a fifty percent basis. The evidence of monetary contribution was to the extent of $20,000 but there was other evidence of the wife's involvement in the development of the land at Rosetta Cottage in sugar cane cultivation and in monitoring and overseeing the supply of materials for the construction of the buildings on the property.

13

All the cases disclose that taking all factors into account the evaluation is at best a rough and ready one.

14

It was so stated by Lord Reid in Gissing v. Gissing (supra), by Brightman, J in Eves v. Eves [1975] 3 All E.R. 768 at page 775, and guidance is found in the very helpful dicta of Lord Denning M.R. in Cooke v. Head [1972] 2 All E.R. 38 at page 42 where he stated:

"Counsel for Mr. Head set out very helpfully the various matters we should take into account in assessing shares. These were the background of the parties with their earnings and their contributions; the statements made to third parties, ... the method in which they saved, such as the money put in the money box; the method of repaying the mortgage instalments; the amount of the direct cash contributions of each; the amount of the work each had done on the property; the part each had taken in the planning and the design of the house; and the steps by which the transactions were carried out. quite agree with counsel that all those matters should be taken into account. On them we should decide what the shares should be."

15

Having formed the view on the evidence which I have indicated that there is established a common intention that the appellant would be entitled to a share in the beneficial interest in the property known as Rosetta Cottage, on the application of the principles aforementioned I conclude that Mrs. Pinnock is entitled to a one-third share of the Rosetta Cottage property and I would so declare.

16

I agree with the Order as proposed in the judgment of Harrison, J.A.

HARRISON, J.A.
17

This is an appeal from the judgment of G. James J., delivered on 25th April, 1996 in the above matter in respect of a declaration of the respective rights of the parties under the Married Women's Property Act in certain matrimonial property. It was ordered, inter alia, that:

  • (1) the plaintiff/appellant was entitled to and to be paid 50% of the net value of the assets of the supermarket

  • (2) that the land and buildings at Rosetta Cottage, Savanna-la-mar in the parish of Westmoreland registered at Volume 1030 Folio 180 is owned by the defendant/respondent, and that

  • (3) the land part of Waterworks registered at Volume 1139 Folio 290 is jointly owned by the parties in equal shares.

18

The hearing in this matter ended on the 1st day of April, 1993. However, judgment was not delivered until the 25th of April, 1996.

19

The appellant complains (ground 1) that because of the delay in delivering his judgment the learned trial judge failed to take advantage of having seen and heard the witnesses and therefore he could not properly evaluate their evidence, make the proper assessment and findings, and arrive at a proper conclusion, especially where there are conflicts.

20

It is undoubtedly the case that delays as that which occurred in this case place the learned trial judge at a disadvantage in arriving at a proper and just assessment of the witnesses, due to the passage of time. This Court, as a court of review, is, in the circumstances, in as good a position as the learned trial judge, to use the printed record, to examine the findings he made and come to its conclusions, both in respect to the findings of the learned trial judge and also where he failed to make such findings ( Ellis vs Jamaica Railway Corp. , (1986) 23 J.L.R. 35.) See also Watt vs Thomas [1947] 1 All ER 582. In Benmax vs Austin Motor Co. Ltd. [1955] 1 All ER 326 relied on in the Ellis case (supra) it was said that it was:

"... only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness." (Lord Reid at p. 328).

21

The parties were married on the 2nd of August, 1975, and had three children thereafter.

22

In 1975, prior to their marriage the appellant applied for and was allotted, in her maiden name Lorraine Pulchan, by the Ministry of Housing a house in the Water Works Housing Scheme, Deans Valley in the parish of Westmoreland. She deponed in paragraph 7 of her affidavit dated 28th December...

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