Supreme Court
Action No. 104 of 1980
28th September, 1981
Alcantara, J.

Mr. Denys Barrow for the Plaintiff
Mr. Wilfred P. Elrington for the Defendant

Property - Contribution of wife to building of house -
Whether wife entitled to beneficial interest in house
upon separation of the spouses

J U D G M E N T

I think I am able to give my decision now without the necessity of adjourning for judgment.

The plaintiff is the wife and the defendant is the husband. They married on the 3rd March, 1963 having previously lived together as husband and wife for seven years. They are no longer living together, having separated in July, 1978.

The wife is claiming a declaration that she holds a half share in the property she is at present living. Her contention is that this house, Lot 5152 in the King's Park area of Belize City, was acquired and built as the result of joint enterprise between herself and her husband.

There is no dispute that prior to her marriage she went to live with the defendant; she went to his house in Amara Street. There is no dispute about this house. The plaintiff makes no claim to it. It was built by the defendant on land belonging to an aunt of his. In cross-examination the plaintiff said this: "I have a share in King's Road house. The other properties belong to Mr. Young."

Sometime after marriage -sometime in 1966 - she thought it would be a good idea to have a house of their own because of the uncertainty of living on land belonging to the defendant's aunt.

I find as a fact that it was through her initiative that Lot 5152 was acquired. I accept her evidence as to the steps she took. Her evidence on this point is as follows: -

"It was my idea. Government owned the land. Lands Dept. responsible. I went there. I just asked for a piece of land. I had a discussion with Mr. Lee Longsworth. I asked my uncle to write a letter on behalf of my husband. Though it was better for a man to make application ………………………………………..
Mr. Longsworth told me he could not give me land in husband's name as money was in my name. After conversation I went to the Government Treasury with husband to make joint account to get land. I had an account in the Treasury. He had none. I had $1100. I had money before I was married. Saving it for years……..….House built in Lot 5152. Financed from my savings."

The plaintiff admits that the husband contributed in a major part to the building of this house. In examination in chief she had this to say:

"Husband built house. He physically built it. He contributed money to building of house. I cannot say how much."

I would like to add that the lot was acquired in the husband's name in 1967 and the house was completed in 1968. The husband at the time was a carpenter. There is also evidence that the wife contributed physically in clearing the land. After moving into the house the defendant was running a sand truck.

Evidence has been adduced as to how both of them went to the United States to work, how they acquired a truck there. In 1972 the husband bought a grocery shop which the wife used to run. In 1974 the husband bought a property at New Home Haulover for $600. In 1975 the husband bought a second truck for $5000. The grocery shop after having been profitable for a time and a source of income to maintain the family had to be closed down in December, 1975. There was a purchase of a third truck for $7000 in 1975 and in1976 the plaintiff had to go to the States and a blue cab pick-up was bought. Further, in 1977 the husband bought a parcel of land in Burrel Boom and in 1978 a Dump Truck.

This evidence is only relevant to show that both the husband and the wife were working together to achieve a degree of prosperity. Apart from the fact that the wife says that the husband drank, at least up to 1965, I am satisfied that he was a good provider. Similarly, I am satisfied that the wife was a good administrator and lost no opportunity in helping to the household expenses by working and tending whenever an opportunity arose.

The husband's evidence does not really contradict that of the wife. His main contention is the house at King's Park as it stands today is much bigger than it was when they first occupied it and that the extension and additions to the house are solely attributable to him. He said that the present value of the house is between $30,000 and $35,000, whereas the market value when they moved into the house was only $3000. I accept his evidence and even taking judicial notice of worldwide inflation it is obvious that he spent a considerable amount of money in making this house bigger and more habitable.

In cross-examination he had this to say: "I do not know there was Savings Account in wife's name that was converted into a joint account. I do not remember using any money from account in Treasury. Sometimes I have trouble in recollecting."

Having heard and seen both parties in the witness box I very much prefer the evidence of the wife to that of the husband. I therefore accept the evidence of the wife and reject that of the husband where there is a conflict.

Counsel for defendant has referred me to the following authorities

Pettit v Pettit (1970) A.C. 795
Gissing v Gissing (1971) A.C. 886,

for the propositions that (a) there is no community of property in English Law, (b) that any rights to property is based on resulting trust based on intention.

Counsel for the plaintiff also relies on certain passages in Gissing v. Gissing; relying particularly on the judgment of Lord Diplock.

To my mind the test is easy. What was the intention of the parties, or in other words, what intention can be inferred from the evidence as a whole?

The leading authority on this matter as to how to approach the evidence to find whether there is an intention to share is the judgment of Lord Denning in Smith v Baker (1970) 2 A.E.R. 828. His exposition of the law has been reaffirmed in subsequent English cases. It has also been followed in the West Indies and now forms part of the West Indian common law. I have been able to find two authorities on the matter:

Henry v Henry (1972) 20 W.I.R. 524
Tittle v Tittle (1976) 23 W.I.R. 176

I will read them out.

Henry v Henry (1972) 20 W.I.R. 524

(ii) and even although a substantial part of the expenses was borne by the wife, it would be inequitable to disregard the fact that the husband assumed the sole liability for the mortgage, therefore the parties were entitled to an equal share in the property.

Tittle v Tittle (1976) 23 W.I.R. 176

I am satisfied on the evidence adduced before me that the acquisition of Lot 5152 was a joint enterprise. I am further satisfied that the building of a hose in the said lot was also a joint enterprise. The inevitable inference to be drawn is that the joint enterprise continued until the house was completed, not the 1968 house, but the house as it stands today or as it stood when the parties separated in December 1978. The joint enterprise was to have a commodious matrimonial house to live in. That was achieved by both. I agree that in terms of money the husband contributed more, but the fact remains that the effort was a joint one.

I find that the wife is entitled to a beneficial interest in the house at King's Park as it stands today, and accordingly I made an order that she has an equal share to the property and entitled to a half share.

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