Sterling (Barrington) v Zelta Gayle Sterling

• Jurisdiction: Jamaica
• Judge: SMITH, J.A.: , COOKE, J.A.
• Judgment Date: 22 February 2008
• Neutral Citation: JM 2008 CA 11
• Judgment citation (vLex): [2008] 2 JJC 2201
• Court: Court of Appeal (Jamaica)
• Date: 22 February 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE COOKE, J.A THE HON. MISS JUSTICE SMITH, J.A. (Ag.)

G. SMITH, J.A. (Ag.)

I agree.

SMITH, J.A.

BETWEEN

BARRINGTON STERLING

APPELLANT

AND

ZELTA GAYLE STERLING

RESPONDENT

Mr. Audel Cunningham instructed by Mrs. Arlean Beckford, for the Appellant.

Mrs. Judith Cooper-Batchelor instructed by Chambers, Bunny & Steer for the Respondent.

FAMILY LAW - Matrimonial property - Declaration of beneficial interest in property - Factors to be determined

SMITH, J.A.:

I have read the draft judgment of Cooke, J.A. and agreed with his application of the relevant law and his conclusion that the appeal should be dismissed and the order of Dukharan, J. be affirmed.

These proceedings were initiated pursuant to S 16 of the Married Women's Property Act (M.W.P.A.)

The factual background is concisely set out in the judgment of my learned brother Cooke, J.A.

By a Fixed Date Claim Form dated 24 ^th of June, 2004, Mrs. Zelta Gayle Sterling sought among other things, an Order that she is the sole beneficial owner of property situated at Lot 92 Tanglewood, St. Ann's Bay, in the parish of St. Ann, registered at Vol. 993 Folio 148 of the Register Book of Titles.

By an affidavit sworn to on the 15 ^th March 2005, her husband, Mr. Barrington Sterling, prayed for an Order that both parties are entitled to fifty percent (50%) each of the beneficial interest in the said property. On the 4 ^th of April, 2006, Dukharan J., in a written judgment, made an Order that Mrs. Zelta Sterling was entitled to seventy-five percent (75%) of the beneficial interest in the property and her husband to twenty-five percent (25%). This appeal is against that Order.

Two (2) grounds of appeal were filed. The second ground which concerns findings of fact and credibility, was not pursued and correctly so in my view.

Ground One States:

"The Learned Trial Judge erred in failing to find that there was a common intention between the parties that the property would be held jointly between them in equal shares. Having so erred, the Learned Trial Judge therefore failed to find that the appropriate order was that the parties were both entitled to a fifty percent (50%) share of the property".

Mr. Audel Cunningham in his usually erudite manner submitted that in cases such as the instant one, the beneficial interests of the parties are to be determined in accordance with the principle identified by Rowe, P. in Patricia Jones v Lauriston Edmund Jones 27 JLR 651 At p 67 Rowe P. said:

"The law applicable to a case of this nature is well settled. Where husband and wife purchase property in their joint names, intending that the property should be a continuing provision for them both during their joint lives, then even if their contributions are unequal the law leans towards the view that the beneficial interest is held in equal shares. See Cob v Cob (1955) 2 All E. R. 696 ":

Founding himself on this passage, Mr. Cunningham submitted that the learned trial judge failed to consider whether the parties were acting pursuant to a joint enterprise intending to acquire the property as continuing provision for their joint future.

He further submitted that, there being no evidence from which to infer the respective entitlements of the parties, the learned trial judge erred in not leaning towards the maxim "equality is equity". He referred to Davis v Vale (1971) 2 All E. R. 1021, Lorraine Kinnock v Fitzroy Pinnock SCCA 52/96 delivered March 26, 1999; and Robinson v Robinson Suit No. E284 of 1997.

Mrs. Judith Cooper-Batchelor, for the respondent, submitted that there is no evidence that there was a common intention to hold the property in equal shares. This, she said, gave the trial judge the discretion to examine all the evidence before him and to make a finding as to the percentage held by the parties. She relied on Goodman v Gallant (1986) 1 All E. R. 311 at 314; Bernard v Josephs (1983) 4 F.L.R. 178 at 187 and Robert Stephenson v Carmelita Anderson SCCA No. 55/00 delivered June 12, 2003.

Both Counsel cited Dorret Trouth v Lauriston Trouth 18 J L R 409.

UNDISPUTED FACTS

• (1) Both parties decided to purchase a lot of land in Tanglewood, St. Ann, on which to build their matrimonial home.

• (2) The property was bought and conveyed into their joint names as joint tenants.

FINDINGS OF FACTS

The trial judge made the following findings of fact:

• (i) There was no express agreement as to how the beneficial interest in the property was to be held.

• (ii) The claimant, Mrs. Zelta Sterling, was the only person who provided money for the purchase of the land and the construction of the house.

• (iii) The defendant, Mr. Barrington Sterling, made no monetary contribution to the building of the matrimonial home.

• (iv) The defendant did the electrical work and supervised the workmen.

It is important to bear in mind that Section 16 of the Married Women's Property Act does not confer a power enabling the court, in its discretion, to grant to a spouse a beneficial interest in property.

This section is purely a procedural section - See Pettit v Pettit (1969) 2 All E.R. 385 at 392 I. The procedure was devised as a means of resolving a dispute or a question as to title rather than as a means of giving some title not previously existing — p 392 I (ibidem). In an application under S. 16 the question for the court is — "Whose is this"? and not - "To whom shall this be given"? — p 393 A (ibidem). Accordingly the decision as to the respective beneficial interests of a spouse must be more in accordance with established legal principles.

I should mention that the Matrimonial Proceedings Act 1970 has changed the situation in England. By that Act, the English Courts are empowered to adjust the beneficial interests of spouses. The courts in this jurisdiction have no such power.

Where the legal estate in land is vested in two or more persons as joint tenants, there is a presumption of fact that the beneficial interest is held in equal shares. However, the authorities clearly show that this presumption may be displaced if it is shown that the "common intention" was otherwise.

The question is, how does a court ascertain the "common intention" spouses have as to their respective proprietary interests in a family asset when at the time of its acquisition they failed to formulate it...