Raymond Lincoln Oliver Johnson v Angella Eunice Johnson

• Jurisdiction: Jamaica
• Judge: Mcdonald-Bishop JA
• Judgment Date: 10 March 2023
• Neutral Citation: JM 2023 CA 64
• Docket Number: SUPREME COURT CIVIL APPEAL NO 87/2015
• Court: Court of Appeal (Jamaica)

Between

Raymond Lincoln Oliver Johnson

Appellant

and

Angella Eunice Johnson

Respondent

[2023] JMCA Civ 10

BEFORE:

THE HON Mrs Justice Mcdonald-Bishop JA

THE HON Miss Justice Simmons JA

THE HON Mr Justice Brown JA

SUPREME COURT CIVIL APPEAL NO 87/2015

IN THE COURT OF APPEAL

Ms Marjorie Shaw instructed by Brown & Shaw for the appellant

Michael Williams for the respondent

ORAL JUDGMENT

Mcdonald-Bishop JA

1 The appellant, Mr Raymond Lincoln Oliver Johnson (‘Mr Johnson’), and the respondent, Mrs Angela Eunice Johnson (‘Mrs Johnson’), married each other in Jamaica in 1989. There is one child born to the union.

2 In or around 1994, Mr and Mrs Johnson commenced taking steps to acquire property registered as lot numbered 322, part of Reids Pen, known as West Aintree, Greater Portmore, in the parish of Saint Catherine. In 1995, they paid the deposit and moved into the property. The sale was completed in 1998 and the property transferred to them as joint tenants.

3 The property was acquired with the assistance of a loan secured jointly by the parties from the Palisadoes Credit Union to cover the deposit and a mortgage from the Caribbean Housing Finance Corporation Limited (later named the National Housing Development Corporation Limited) to cover the balance of the purchase price. The mortgage was registered in 1998.

4 Shortly after the acquisition of the property, the marriage irretrievably broke down and the parties separated in 1999. The marriage was subsequently dissolved in 2003. Mrs Johnson remained in the property until it was rented in 2006. She received the rental income without sharing it with Mr Johnson.

5 On 26 January 2012, Mr Johnson initiated a claim in the Supreme Court against Mrs Johnson pursuant to the Partition Act. By way of fixed date claim form filed on that date, Mr Johnson broadly contended that he is entitled to the severance of the joint tenancy and one-half of the legal and/or beneficial interest in the property and applied for:

• (a) a declaration that he is entitled to one-half interest in the property;

• (b) severance of the joint tenancy;

• (c) the property to be valued;

• (d) the property to be sold, and the net proceeds of sale shared between Mrs Johnson and him in accordance with their respective interests in the property; and

• (e) other consequential orders relating to the carriage of sale, and accounting of the rental income.

6 The fixed date claim form was supported by a brief affidavit of Mr Johnson of even date. He deposed, among other things, that the property had been rented by Mrs Johnson who benefitted exclusively from the rental income and that she had neglected, failed and/or refused to account for the monies collected from or expended in relation to the property.

7 Mrs Johnson defended the claim. She filed a fixed date claim form with supporting affidavit on 26 March 2012 and a further affidavit on 19 April 2013, in response to Mr Johnson's affidavit, in which she sought, most importantly:

• (a) A declaration that she had acquired the property by adverse possession;

• (b) A declaration that Mr Johnson is not entitled to share in the property because he had abandoned it;

• (c) A declaration that she is legally and beneficially entitled to all the interest in the property;

• (d) Alternatively, a declaration that she is entitled to a 95% legal interest in the property and Mr Johnson is entitled to 5%;

• (e) An order that the property be transferred in her sole name as owner and that she bore the costs of the transfer; and

• (f) Severance of the joint tenancy.

8 Essentially, her response was that Mr Johnson had abandoned her during her pregnancy and shortly after their marriage. She solely acquired the property and carried out significant improvements and repairs on it. She also averred that Mr Johnson after moving out of the family home in 1999, had no further dealing with the property and as such had abandoned his interest.

9 Mr Johnson responded to Mrs Johnson's further affidavit by filing a second and more detailed affidavit on 2 July 2013, in which he denied Mrs Johnson's assertions that she solely acquired the property and had undertaken all improvements, maintenance and repairs. He also denied abandoning her and the property and averred that shortly after the property was acquired, he left to work overseas but would stay on the property whenever he returned home. He said he and Mrs Johnson maintained a loving relationship and that she relied on him for maintenance of herself and their daughter. After moving from the property, he continued to discharge the mortgage obligations, maintain the family and pay utility bills. He advised Mrs Johnson to rent the property and utilise the rental income to pay the mortgage and apply the balance towards the maintenance of herself and their daughter. This income was supplemented by direct maintenance contributions from him. Mr Johnson relied on copious documentary evidence in support of his case.

10 This prompted Mrs Johnson to reply by affidavits filed 16 September 2013 and 17 March 2014, denying the main aspects of Mr Johnson's case. She insisted that she was responsible for acquiring the property and paying the mortgage instalments. She deposed that Mr Johnson would only pay the mortgage when she asked him to do so as a favour to her. He had no obligation to pay. She was not aware of any contribution made by him and that the receipts he had exhibited came to be in his possession because when he removed his belongings from the property, he took them with him and it was not because the payments came from his resources. Mr Johnson did not maintain her and he was ordered by the court to maintain his daughter. Therefore, the documents he had exhibited, purportedly as proof of maintaining her, were for payments made for the benefit of their daughter as ordered by the court. He spent no money on improving the property as he has averred.

11 Interestingly, despite what seemed, at first glance, to have been a serious dispute as to facts, the matter was considered on paper by a judge of the Supreme Court due to the prolonged illness of Mrs Johnson and her inability to attend court. By a pre-hearing order made by the court, the right of cross-examination was waived in the circumstances.

12 The court notes the absence of cross-examination in the light of the Privy Council's observation in Chin v Chin [2001] UKPC 7 but found, in the end, that the lack of cross-examination would not hamper the court in properly considering the issues, which arose for determination, despite the disputed areas of fact. Given what has been disclosed to the court regarding Mrs Johnson's health status, it seems hardly unlikely that cross-examination of her could ever be done. Therefore, this court had no option but to try to do its best, in the circumstances, to review the decision of the learned judge against the background that her decision was arrived at without the benefit of cross-examination of the parties. For that reason, the incidence of the burden of proof has assumed great significance in the resolution of the appeal. The learned judge's findings will now be examined.

13 On 15 June 2015, having considered the evidence and the submissions of counsel, the learned judge, in a written judgment bearing neutral citation number [2015] JMSC Civ 112 (‘the judgment’) concluded and ordered that:

• “1. [Mr Johnson] did not make an application for extension of time for the claim to be brought under PROSA and as such [Mr Johnson] is barred by Section 13 of the said Act.

• 2. [Mr Johnson] has not been dispossessed of a portion of the property. [Mr Johnson] has proven that he made contributions towards the property up to 2003 and the present Claim was filed in 2012. The time for dispossession according to Section 14 the [sic] Limitation of Actions Act is 12 years and as such [Mr Johnson] has not been dispossessed.

• 3. The claim is for a declaration that [Mr Johnson] is entitled to 50% of the property. Based on the affidavit evidence and the documents in support I do not find that [Mr Johnson] is so entitled. [Mr Johnson] is declared to be entitled to 25% of the property.

• 4. That the joint tenancy be severed.

• 5. That the property be valued by a valuator to be agreed upon by the parties and the cost of the valuator be shared between the parties within 90 days of this order.

• 6. That [Mrs Johnson] has first option to purchase [Mr Johnson's] 25% of the property within 90 days of the valuation report.

• 7. That the property be sold on the open market and the proceeds divided between the parties if [Mrs Johnson] do [sic] not purchase [Mr Johnson's] 25%.

• 8. That the Registrar of the Supreme Court be empowered to sign any and all documents to effect a transfer of the property in the event that either party is unwilling or unable to do so.

• 9. Each Party to bear their own cost.”

14 Mr Johnson is aggrieved by some aspects of the decision and reasoning of the learned judge. Consequently, on 31 July 2015, he filed his notice and grounds of appeal challenging several findings, conclusions and the orders of the learned judge. The details of the order appealed against are that:

• “a. [Mr Johnson] is declared to be entitled to 25% of the property;

• b. Mrs Johnson has first option to purchase [Mr Johnson's] 25% of the property within 90 days of the Valuation Report;

• c. The property be sold on the open market and the proceeds divided between the parties if [Mrs Johnson] does not purchase [Mr Johnson's] 25%.”

15 Essentially, the impugned reasoning and findings of the learned judge are to be found at paras. [36] and [37] of the judgment, where she states:

“[36] The fact that the property was conveyed into joint names, that Mr. Johnson was jointly and severally liable under the mortgage, that he was occupying the property at the time of the acquisition and that he contributed to the...