Dane Norman Lawrence Abbott Appellant v Lynn Anne Abbott Respondent [ECSC]

JurisdictionAntigua and Barbuda
JudgeGORDON, J.A.,Justice of Appeal,Michael Gordon, QC,Adrian Saunders,Hugh Rawlins,Justice of Appeal [Ag.]
Judgment Date30 May 2005
Judgment citation (vLex)[2005] ECSC J0530-1
Docket NumberCIVIL APPEAL NO.32 OF 2003
CourtCourt of Appeal (Antigua and Barbuda)
Date30 May 2005
[2005] ECSC J0530-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Adrian Saunders Justice of Appeal

The Hon. Mr. Michael Gordon, QC Justice of Appeal

The Hon Mr. Hugh Rawlins Justice of Appeal [Ag.]

CIVIL APPEAL NO.32 OF 2003

Between:
Dane Norman Lawrence Abbott
Appellant
and
Lynn Anne Abbott
Respondent
Appearances:

Mr. Gerald Watt Q.C. with Mr. Norris Scholar for the Appellant

Ms. Catherine Kentish for the Respondent

GORDON, J.A.
1

This appeal was heard on March 15, 2005 and an oral judgment was delivered on March 17, 2005. The appeal was in large measure allowed and these are our written reasons. The parties to this appeal were married in Canada on 21st May 1983 and were subsequently divorced. The issue of maintenance was dealt with in proceedings ancillary to the divorce in 2001 and so does not arise before us. The sole issue before us is the division of property comprising the matrimonial home, certain shares in Kentucky Fried Chicken (Antigua) company and the proceeds of a joint bank account in the Cayman Islands which bank account was fed exclusively by dividends from the KFC shares.

2

As the learned trial Judge put it: "There is no matrimonial causes Act in the State of Antigua and Barbuda, nor any other modern legislation governing the property of husband and wife on dissolution of marriage…There is the old nineteenth century Married Women's Property Act, with all the disadvantages and limitations that that Act carries with it."

The Matrimonial Home
3

The evidence is that the mother of the Appellant (Audrey Abbott) donated the land on which the matrimonial home was subsequently built to the Appellant on June 26, 1984. The land is known as Registration Section McKinnons, Block 45 1696B, Parcel 227. The land register records only the name of the Appellant as the owner of that land. Some time around 1990/1991 the parties commenced construction of a home that was to become the matrimonial home. Funds for the construction were provided by bridging finance in the name of the Appellant only in the sum of $250,000.00 from the Bank of Nova Scotia and a further gift of $400,000.00 from Audrey Abbott.

4

The learned trial Judge found the following in regard to the gift from Audrey Abbott to the Appellant:

"There is nothing in writing or otherwise from Audrey Abbott to help with what her intentions were when she gave the land. She also contributed the major part of the costs of construction of the home…She had an excellent relationship with her daughter in law, which continued after the relationship between the spouses broke down in 1995. There is no reason to believe that she wanted to make a gift of the land to her son alone. On the contrary, there is every reason to believe that she intended the gift to be a gift to both parties for the purpose of building their matrimonial home in the early days of their marriage when they could hardly afford to build the home themselves. I am satisfied that she intended the gift to be for both of them equally."

5

The evidence of the respondent on this subject is to be found both in her witness statement and in her viva voce cross-examination and it is as follows: (from her witness statement)

"In or around June 1984, the Defendant's (Appellant's) mother, Audrey Abbott, now deceased, transferred a parcel of land 0.45 acres approximately to the Defendant as a gift to us. I was not then an Antiguan citizen which I later acquired on the basis of the subsistence of marriage and as a result, my name could not be added to the title without my obtaining a non-citizens land holding license. It was always my understanding from Audrey Abbott that that parcel of land was for us to build our family home"

And in cross-examination the Respondent further said:

  • - Yes, I see para 5 of the statement of claim

  • - Yes, I say there the home was constructed in 1991 by (sic) lands given to the defendant as a gift.

  • - Yes, at para 4 of my witness statement I say it was transferred as a gift to 'us'. There is no difference; we were a couple.

  • - No, there is no distinction

  • - The land was given to us to build our family home. That is what the land was given to him for. I was not a citizen at the time. It was given to us to build our home. It was not given to us in my name because I did not become an Antiguan until 1995

  • - We did not make an application for a license at the time because it was easier just to put it in his name, and start building

  • - At the time we did not discuss that it was not being put in my name because I was not a citizen

  • - No Mrs. Abbott did not say that. I was told by the defendant that his mother had a piece of land that we would be able to build our home on.

  • - No, at the time there were no discussions that the land would not be transferred in my name because I was a non-citizen.

  • - The land was for us to build our home. I was married in 1983 and the land was transferred in 1984. We were making plans to build our house and that land was to be used to build our house.

  • - I cannot remember what Mrs. Abbott said to me about it."

6

In other words, as I understand the evidence of the Respondent, who it must be remembered was the claimant in the Court below, and to put it at its highest, is that she assumed that the gift of the land was to both her husband and herself although there was no conversation on the subject involving Mrs. Abbott as far asshe could recall. I am of the view that there is absolutely no factual basis (which is a matter of law) for the inference drawn by the learned trial Judge that Audrey Abbott intended the gift of the land to be to both the Appellant and the Respondent and I hold that the gift of the 0.45 acres of land and the $400,000.00 by Audrey Abbott was to the Appellant alone.

7

In holding as I do, I take full cognizance of the dictum of Viscount Simon inWatt v...

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1 cases
  • Ogden Browne v Sally-Ann Browne
    • Antigua and Barbuda
    • High Court (Antigua)
    • 15 February 2008
    ...this case. According to Baroness Hale of Richmond, in the Privy Council case out of Antigua and Barbuda (P.C. Appeal #142/05) Lynn Anne Abbott v Dane N. L. Abbott ), at paragraph 2; "unlike some other Caribbean countries, Antigua and Barbuda have no equivalent of the wide powers of property......

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