Sunshine Dorothy Thomas v Winsome Blossom Thompson

• Jurisdiction: Jamaica
• Judge: Brooks JA,Panton P
• Judgment Date: 27 March 2015
• Neutral Citation: JM 2015 CA 45
• Docket Number: CIVIL APPEAL NO 52/2012
• Court: Court of Appeal (Jamaica)
• Date: 27 March 2015

Between

Sunshine Dorothy Thomas

and

Winsome Blossom Thompson (Executrices of the estate of Leonard Adolphus Brown, deceased)

Owen Brown

Appellants

and

Beverley Davis

Respondent

[2015] JMCA Civ 22

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (AG)

CIVIL APPEAL NO 52/2012

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Jeffrey Daley instructed by Betton-Small, Daley & Co for the appellants

Barrington Frankson instructed by Frankson & Richmond for the respondent

Panton P

1 This appeal is against the judgment of Lawrence-Beswick J who, on 23 March 2012, declared that a joint tenancy held by Ms Beverley Davis, the respondent, and the late Leonard Adolphus Brown had not been properly severed, and that the land, the subject of the tenancy, was owned solely by the respondent. In the judgment of the learned judge, the late Leonard Adolphus Brown (whose executrices and son Owen Brown were defendants in the instant suit) acted in a dishonest and fraudulent manner in changing the joint tenancy to one of tenants in common.

2 It is undisputed that the deceased Leonard Brown and Ms Davis, the respondent lived together as man and wife for many years in England, at first, and then in Jamaica, although each was married to someone else during a portion of those years. It is also undisputed that on 26 May 1998, land registered at Volume 1079 Folio 915 of the Register Book of Titles and which may be referred to as Valley Drive was transferred to both persons as joint tenants. On 4 August 1999, they (the joint tenants) transferred the said land to themselves as tenants in common. The latter transfer gave rise to the suit filed by Ms Davis.

3 In the amended particulars of claim filed on 16 June 2011, Ms Davis sought a cancellation of the transfer of 4 August 1999, and a declaration that she was entitled to sole ownership of the property in question.

4 The deceased, a businessman, was the father of Mr Owen Brown the third appellant. He lived in England and was married to the mother of the third appellant until their divorce in or about May 1984. The third appellant is a beneficiary under the will of the deceased who bequeathed to him his (the deceased's) interest as a tenant in common in the premises at Valley Drive.

5 The deceased and Ms Davis lived together in England from 1984 until about 1999 when they returned to Jamaica, their homeland. Due to issues of health, they decided to return to England for the deceased to receive medical treatment. Prior to their departure to England, the deceased made arrangements with his attorney-at-law for Ms Davis to attend at the attorney's office and sign the necessary documents for the joint tenancy to be converted into a tenancy in common. Ms Davis duly obliged. In her witness statement, she said that the deceased having been diagnosed with cancer, told her ‘that he was desirous of giving [her] greater control over his affairs but [she] would have to sign a document to that effect’. Her statement continued as follows:

‘20. I signed the documents that were presented to me which said documents had the effect of severing the joint tenancy which Leonard and I had in the property at Valley Drive. I did this without knowing what I was signing as I had faith and trust in Leonard. I was not aware of the nature and contents of the document. I was of the belief that I was signing a Power of Attorney whereby Leonard would give me total control over all his affairs.

21. I was persuaded by Leonard to sign the said documents without obtaining legal advice and at no time did I intend to execute a transfer of the premises.’

6 In her evidence before Lawrence-Beswick J however, Ms Davis presented a different picture. She said that when she went to the attorney's office, she was given a bundle of documents and told that the deceased wanted to sever the joint tenancy. She said that she did not know what joint tenancy meant, but the attorney explained it to her briefly and she signed. She did so, although she thought she ‘was going to sign power of attorney for we were going back to England for treatment – he was very ill at the time’. She said that she thought the power of attorney was for Mrs Kathleen Betton-Small (the attorney-at-law) ‘to look after property as she did in 1997’. In cross-examination, she said that she was not tricked into signing but maybe the deceased, who was not present at the signing, had deceived her. She added that she may have signed out of fear of the deceased as she could not have gone back home if she hadn't signed. According to her, she was fearful of him at all times.

7 Mrs Betton-Small, the attorney-at-law in question, gave evidence. She was called to the English Bar in 1976 and admitted to practice in Jamaica in 1977. She said that the deceased, who was her client, instructed her to prepare a will and to sever the joint tenancy. She carried out his instructions. She had done the earlier transfer of the property into the names of the deceased and Ms Davis as joint tenants. In respect of the severance, Ms Davis came to her office and she explained the nature of the transaction to her and she signed. Ms Davis was in a rush when she went to her (the attorney's) office, and there was no question of any duress being exerted on her, said Mrs Betton-Small under cross-examination. In fact, she said that Ms Davis said she understood the nature of the document and wanted to sign, although she (Mrs Betton-Small) had suggested to her that she could take the document and get independent advice.

8 In the amended particulars of claim, Ms Davis contended that she had executed the document under a ‘total mistake as to its nature and contents and in the bona fide belief that she was executing an Instrument of a totally different kind namely a document in the nature of a Power of Attorney’ [para 21]. She also stated that she was ‘induced to execute the said documents whilst acting under the influence of the deceased and without independent advice’ [para 22].

9 In her reasons for judgment, the learned judge, after giving the history of the relationship between the parties and the details of the transactions in question, acknowledged that a joint tenancy ‘can be severed by mutual agreement between the parties’. However, she said it was important to consider the circumstances under which the certificate of title was endorsed with the severance, and whether there was mutual agreement for that to happen. She also acknowledged that the endorsement on the title indicating that the deceased and Ms Davis were tenants in common ‘can only be defeated by proof that that endorsement resulted from fraud’.

10 The learned judge concluded:

‘… that Ms. Davis signed the document without knowing that it might cause her to lose half of her interest in Valley Drive. She was hurried into signing without a full appreciation of what she was doing. If she had appreciated the import of the document and had knowingly signed it, she would have understood that the effect of the document she signed would be to create a situation where Mr. Brown could bequeath to his son a half interest in the property if he saw fit. That would carry with it the right of his son to occupy the premises and to deal with it.

The question now is if fraud is involved.’ [para 25]

11 Following on those conclusions, Lawrence-Beswick J related the ‘evidence’ on which counsel for Ms Davis relied ‘for his submission that there is fraud’. The judge then said:

‘In my view the circumstances indicate actual dishonesty by Mr. Brown as it concerns the transfer of the property to create a tenancy in common. The dishonesty of the circumstances is further exposed by the fact that Mr. Brown states in his will that he had “already given to Beverley Sylvia Davis, the remaining one-half share of the property at 12 Valley Drive …” That statement was not accurate as she already held a share in the property initially as joint tenant and later, if the tenancy had in fact been severed, she would have held her half portion as a tenant-in-common. In both situations she held the property in her own right without it being “already given” to her by the late Mr. Brown.’ [para 27]

She continued:

‘The apparent largesse of Mr. Brown to Ms. Davis, being displayed in the will may well be viewed as being a sham. This bequest was empty and was an attempt to hide the truth of his actions which appeared to be wanting in honesty as it concerns the property at Valley Drive. Indeed it is undisputed that his purported bequests to her concerning bank accounts were also empty.’ [para 28]

And she added:

‘Mr. Brown's will of July 16, 1999, states that he gives to his son Owen Brown “my one-half share and interest (the joint tenancy having been severed) in the property at 12 Valley Drive …’ (emphasis mine). However, the document purporting to sever the tenancy was signed that same day and had not been registered. Such a bequest would have been premature.’ [para 32]

12 The learned judge found that the circumstances surrounding the changed endorsement on the title, given the relationship between the parties, confirmed ‘a dishonest approach by the late Mr Brown to his partner … sufficiently dishonest to amount to fraud’. She drew the inference ‘that the late Mr Brown's actions/plans were dishonest i.e. born of fraud, and resulted in his interest in the property on the Certificate of Title being unlawfully altered from joint tenancy to tenancy-in-common’. Consequently, she said: ‘The instrument of transfer in my view arose fraudulently and therefore the transfer should not be allowed to stand’.

13 The appellants filed six grounds of appeal but ground number two was abandoned. The grounds are, with respect, rather wordy in terms of the particulars, so I propose to summarize them as follows:

Ground...