Stephenson (Robert) v Anderson (Carmelita)

• Jurisdiction: Jamaica
• Judge: FORTE, P.:
• Judgment Date: 12 June 2003
• Neutral Citation: JM 2003 CA 26
• Judgment citation (vLex): [2003] 6 JJC 1201
• Court: Court of Appeal (Jamaica)
• Date: 12 June 2003

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE SMITH, J.A

BETWEEN

ROBERT STEPHENSON

DEFENDANT/APPELLANT

AND

CARMELITA ANDERSON

DEFENDANT/APPELLANT

Gillian Mullings instructed by Patrick Bailey & Co., For Appellant

Sharon Usim instructed by Usim Williams & Co., for Respondent

REAL PROPERTY - Beneficial interest of parties - Presumption of joint ownership in the absence of documentary proof to the contrary - Common intention of parties

FORTE, P.:

1 The issue in this appeal concerns the ascertainment of the beneficial interest of the parties of property situated at 4 Winsome Avenue, Meadowbrook Estate, Kingston 19 and registered at Volume 1097 Folio 737 of the Register Book of Titles. Both parties were enjoying a common law relationship at the time of the acquisition of the property. Their union produced three children, but there was an issue at trial, as to whether they shared a "visiting relationship" or lived together. The respondent insisted that they never lived together. The learned judge, although concluding that the respondent was a credible witness, made no definitive finding in this regard. This issue, however is of no relevance to the question which arose on appeal.

2 The respondent's case which was accepted by the learned judge disclosed that the property was purchased solely by her. The only assistance given by the appellant was to consent in joining her as Co-Mortgagee with the mortgage company Victoria Mutual Building Society, so that she could qualify for the mortgage. As a result, the loan was secured from the mortgage company, and the property registered in both their names. The respondent expressed her lack of knowledge in relation to the meaning and effect of registering property as joint tenants or as tenants in common.

3 It was agreed however at the hearing of this appeal, that the property is registered in the names of both parties as tenants in common. This fact has formed the basis of the main contention in this appeal and consequently I will return to it.

4 In a short judgment, the learned judge rejected the evidence of the appellant and his witnesses. In respect of the respondent's case he found as follows:

"In favour of the Plaintiff, I accept her that her salary was sufficient (sic) to obtain a mortgage that she asked the Defendant if he could assist. The Defendant agreed, but there was never any agreement or understanding between them that the property was to be jointly acquired and he should get any portion of this property. A tenancy whether joint or in common when endorsed on the certificate of Title creates a presumption that the intention of the parties at the time of acquisition is that there is to be some sharing in the absence of receipts and documentary proof by the Defendant. There is an abundance of receipts put forward by the Plaintiff that she made contribution towards the payment of the mortgage and acquisition of the property."

5 As a result of this finding the learned judge found for the respondent and made the following orders:

• "(a) Declaration that she alone is entitled as beneficial owner of all the property located at 4 Winsome Avenue, Kingston in the Parish of Saint Andrew;

• (b) Make order that the Defendant himself or any person claiming Title from him yield up occupallon of the said premises;

• (c) That Title be transferred to the Plaintiff as the sole proprietor;

• (d) In the event that the Defendant is unable or unwilling to transfer his portion that the Registrar of' the Supreme Court be empowered to execute the necessary docurnentation;

• (e) That an award of costs is made in favour of the Plaintiff to be paid by the Defendant to be taxed or agreed."

6 The appellant field seven grounds of appeal, but the arguments were developed solely on the question of whether a title held by both parties as tenants in common was conclusive of the fact that both should share the property or the proceeds therefrom in equal shares.

7 In relying on the case of Goodman v. Gallant [1986] 1 All E.R. 311 the appellant filed the following ground which is misconceived given the circumstances of this case:

"That the Learned Judge erred in law, in that he did not consider the principles in Goodman v. Gallant (supra) that '... where there was an express declaration which comprehensively declared what were the beneficial interests in the property' ... such declaration was exhaustive and conclusive of the position unless and until the conveyance was set aside or rectified."

8 To begin with the case of Goodman (supra) was decided on the basis of an English Statute, and concerns circumstances in which the beneficial interest in the land had been expressly declared in the conveyance. See page 312 of the judgment where it is indicated that Clause 2 of the conveyance states: "The Purchasers hereby declare as follows:

"(a) The Purchasers shall hold the property upon trust to sell the same with power to postpone the sate thereof and shall hold the net proceeds of sale and net rents and profits thereof until sale upon trust for themselves as joint tenant ...".

9 The judgment on page 313 also records that the plaintiff served a written notice on the defendant stating:

"I hereby give you Notice of my desire to sever as from this day the joint tenancy and equity of and in the property described in the Schedule hereto now held by you and me as joint kenants both at law and in equity so that the said property shall henceforth belong to you and me in equal shares." [Emphasis mine]

10 The underlined words underscore the fact that there was a declared intention to share in the equitable as well as the legal interest in the property.

11 Of significance and relevance to the issues in this appeal are the following words of Slade, L.J. at page 314:

"In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine af resulting, implied or constructive trusts (see s 53(2) of the Law of Property Act 1925). In particular, in a case such as that, a person who claims to have contributed to the purchase price of property which stands in the name of himself and another can rely on the well-known presumption of equity that a person who has contributed a share of the purchase price of property is entitied to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust (see, for example, Pettiff v. Pettitt [1969] 2 All E.R. 385 at 406, [1970] AC 777 at 813–814 per Lord Upjohn). If, however, the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceeds of sale, there is no room for the application of the doctrine of resulting, implied or constructive trusts unless and until the conveyance is set aside or rectified; until that event the declaration contained in the docurnent speaks for itself."

12 Slade L.J. recognizes that where unlike the Goodman case there is no express declaration as to the beneficial interest, a claim as to beneficial interest can be made by a person who contributed to the purchase of the property. In that respect Slade, L.J. cited with approval at page 319, the following dicta of Lord Upjohn in Pettitt v. Pettitt [1969] 2 All E. R. 385 at 405, which reiterates that where there is a written declaration as to the beneficial interest, that will conclude the matter:

"In the first place, the beneficial ownership of the property in question must depend on the agreement of the parties determined at the time of its acquisition. If the property in question is land there must be some lease or conveyance which shows how it was acquired. If that document declares not merely in whom the legal title is to vest but in whom the beneficial title is to vest that necessarily concludes the question of title as between the spouses for all time, and in the absence of fraud or mistake at the time of the transaction the parties cannot go behind it at any time thereafter even on death or break up the marriage."

13 The contrary as I have shown is also correct that is to say where there is no expressed declaration of the beneficial interest, enquiries can be made to determine that issue.

14 In the case of Bernard v. Joseghs [1982] 3 All E.R. 162, Lord Denning addresses this question as follows:

15 "When the house is conveyed into joint names, the question of arises: what are the shares of the two parties in the house? And at what date are those shares to be ascertained? If the conveyance contains an express declaration of the shares, that is decisive, as we held recently in Goodwin v. Bedwe1 [1912] CA Bound Transcript 185. But often there is, as here, no such declaration. In suck a case it used to be thought that the shares would always be equal shares. That was the view of Russell, L.J. in Bedson v. Bedson [1965] 3 All E.R. 307 at 318, when he said:

16 'If there be two beneficial joint tenants, severance produces a beneficial joint tenancy in common in two equal shares ... by declaration of the beneficial joint tenancy between A and B, their respective rights and titles are no less clearly laid down and established than if there had been a declaration of a beneficial tenancy in common in equal undivided shares.'

17 Russell, L.J. had previously said much the same in Wilson v. Wilson [1963] 2 All E.R. 447 at 453, [1963] 1 WLR 601 at 609:

18 'But...