Christian v Yearwood

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J.
• Judgment Date: 02 July 1982
• Neutral Citation: AG 1982 HC 19
• Docket Number: No. 88 of 1980
• Date: 02 July 1982

High Court

Bishop, J.

No. 88 of 1980

Christian

and

Yearwood

Appearances:

Mr. Clarke for plaintiff

Mr. Kendall for defendant

Real property - Ownership — Plaintiff claimed declaration of ownership of certain lands and injunction restraining defendant from selling or otherwise disposing of said lands — Whether plaintiff had contributed to acquisition of properties — Judgment for plaintiff with costs.

Bishop, J.

1 Doris Irene Beatrice Christian, the plaintiff in this action, claims against Guy Yearwood, as executor named in the will of James Alexander Christian, deceased: ((1) a declaration that the property at Nevis Street, St John(s, registered under the Registered Land Act 1975 as Parcel 45 Block 66 1692E in St John's South Registration Section, is owned by the plaintiff and the deceased as tenants in common; (2) a declaration that the property at Tanner Street, St John's registered under the Registered Land Act 1975 as Parcel 77 Block 66 1692E in St John's South Registration Section is owned by the plaintiff and the deceased as tenants in common; (3) a declaration that the property at Ottos registered under the Registered Land Act 1975 as Parcel 95 Block 611 1791C in Martin's Village Registration Section is owned by the plaintiff and the deceased as tenants in common; (4) an injunction restraining the defendant from selling or otherwise disposing of the said properties or any of them until the plaintiff's rights and interest therein are recognised and declared, and (5) such further or other relief as to the court may seem fit(. That was the indorsement on the writ of summons filed on 2 ^nd April 1980 by the plaintiff's solicitor.

2 The Statement of Claim was filed on 1 ^st July 1980, and in its final paragraph it showed that the plaintiff was seeking, in addition to what was indorsed on the writ of summons, (an order that the defendant render an account of the dealings of the deceased in respect of the property at Ottos and all rents and profits received by the deceased in respect thereof; an order for payment by the defendant to the plaintiff of such portion of the rents and profits found due upon taking such account; an order that the defendant convey each of the said properties to the plaintiff and the respective beneficiaries named in the said Will(.

3 The Defence of Guy Yearwood was filed on his behalf, by a solicitor, on the 22 ^nd October 1980; and because the defendant has admitted paragraphs 1, 2, 4, 5, 6 and 7 of the Statement of Claim, it is not necessary, at this stage, to recite those admissions. I shall cite paragraphs 3 and 8 of the Statement of Claim and the defence, as pleaded, to those assertions. The former stated as follows:–

(3. During the lifetime of the deceased the Plaintiff and the deceased jointly owned properties at Nevis Street, Tanner Street and Ottos. For purposes of convenience the said properties were registered in the name of the deceased alone but the costs of acquiring, maintaining and improving them were met by the Plaintiff and the deceased jointly. The said properties are now registered under the Registered Land Act 1975 respectively as Parcel 45 Block 66 1692E in the St John's South Registration Section Parcel 77 Block 66 1692E in the St John's South Registration Section and Parcel 95 Block 611 1791C in the St Martin's Village Registration Section.

8

The said properties have at all material times belonged beneficially to the Plaintiff and the deceased as tenants in Common.(

4 In answer thereto the defendant pleaded thus:–

(2. The defendant denies that the Plaintiff made any contribution whatsoever towards the acquisition of any of the properties mentioned in paragraph 3 of the Statement of Claim herein. The deceased, James Alexander Christian, purchased the Tanner Street property in May 1953 after the plaintiff had ceased to cohabit with the deceased. The deceased inherited The Nevis Street property from his late mother Mary Christian after the plaintiff had ceased to cohabit with him. In or around 1946, after the plaintiff had ceased to cohabit with the deceased he purchased the land at Ottos from the late

5 John I. Martin with some financial assistance from his late mother.

4. Since the acquisition of these properties the deceased has maintained and improved them out of his own funds and has been in sole possession of them and has solely enjoyed the rents and profits thereof.(

6 That was the state of the pleadings from October 1980 until March 1981 when an amended Statement of Claim was filed. By it, the assertion that the plaintiff and the deceased (married in January 1935) lived and cohabited until 1945 was altered to an assertion that they did so until 1964, and thereafter, lived separate and apart from each other. The earlier assertion had been admitted in the Defence, and there was no amended Defence; so that as the pleadings stood when a request for hearing was filed in November 1981, the defendant had not denied the amended assertion. Further, in his address, learned counsel for the defendant accepted that the final date of separation of the couple was in the year 1964 and not 1945 or 1946.

7 The plaintiff, by her Statement of Claim (paragraph 3), asserted that the properties in question were bought jointly by herself and James Alexander Christian, deceased, who was her lawful husband up to the date of his death. She asserted further that the cost of maintenance and improvement of the said properties was the result of their joint efforts and monetary contributions.

8 The defendant, by his Defence, asserted that the plaintiff did not contribute anything towards the acquisition of any of the properties in dispute and that her husband, alone, bought the property at Tanner Street, that he inherited the property at Nevis Street from his mother and that both of these acquisitions took place after the plaintiff had ceased to cohabit with her husband. Further, that the property at Ottos was bought by her husband from John I. Martin (in or around 1946, after the plaintiff had ceased to cohabit with him(. In this latter transaction he was assisted by his mother.

9 Clearly, as the pleadings stood at the date of the trial, it was the unequivocal contention of the defendant that the plaintiff and her husband had ceased to cohabit in or around 1946, if not before. Clear too was the contention that the property in Tanner Street had been bought in May 1953, when the plaintiff and her husband had ceased to cohabit. But the unchallenged and undenied allegation of the plaintiff, was, that the couple lived, (together(, as man and wife, until 1964. Therefore, if properties were acquired (in or around 1946” and (in May 1953”, such acquisition must, of necessity, have occurred during the period of their cohabitation; and it must not be forgotten that learned counsel for the defendant accepted the year 1964 as the point of final separation of the parties. Consequently, the assertions in the Defence (paragraph 2) were inaccurate in so far as concerned two of the properties therein described and mentioned. As far as the property located at Nevis Street was concerned, as I understood learned counsel for the plaintiff and the plaintiff's testimony, there was no longer any interest in pursuing the claim; and so the Court was not asked to devote any time to a decision about it.

10 The evidence from which I was invited to determine the issues in this case came from the plaintiff and two witnesses (Henrietta Wilson and Reginald Moore) in support of the claim and from Clarice Isaac and Jean Christian, in defence of it. Notwithstanding the absence of objection to the admissibility of the hearsay evidence adduced on each side, and despite the view of counsel for the parties that this aspect of the law of evidence should not be sternly invoked in the circumstances of this case (especially the fact that James Alexander Christian, now deceased, could not assist the Court) I have not attached undue weight to such evidence as was clearly hearsay; nor have I been unmindful of the position, that, although by the state of the pleadings there was a great deal of admission, by implication, on the part of the defence, yet the burden of proof remained on the plaintiff to establish her case on a balance of probabilities.

11 I do not propose to review the evidence of each of the persons who testified, but I think that indication of the demeanour of each of them as I found it to be, will be of some assistance. I have also remained acutely aware of the fact that the evidence also covered a period in excess of thirty years ago, and so the plaintiff and her witnesses as well as the witnesses for the defence were attempting to recall occasions and facts which they could hardly have anticipated they would be required to recall in 1982.

12 From the nature and substance of her testimony, not only do I consider it unsafe to rely upon what Jean Christian said, especially when it is appreciated that she sought to recall what took place when she was 12 years and also a teenager, but I was given the impression, as she gave her evidence, that she was probably saying what she learnt about her father's affairs rather than what she knew of them so far as would satisfy the law of evidence. Additionally, it seemed that she saw her function in this case as one in which she was required to enhance her father's position rather than assist the court with the truth.

13 Clarice Isaac gave me the impression that she regarded herself as being better informed about James Alexander Christian and his affairs than was his lawful wife, the plaintiff. However, not only in her evidence in chief but also under cross examination her credibility was shaken; and it seemed evident that despite the period of concubinage and indeed even when they visited England in 1974, James Alexander Christian found time for devoting attention to his wife. I am of the...