Supreme Court
Action Nos. 39, 40 & 41 of 1982
11th October, 1982
Alcantara, J.

Mr. Dean Lindo, for the Plaintiff.
Mr. Denys Barrow, for the Defendant.

Equity and trusts - Common law husband and wife - Distribution of real and personal property after separation - Real property purchased by common law wife using her money and registered in common law husband's name - Whether common law husband entitled to a beneficial share in the property.

J U D G M E N T

These three Actions were consolidated at the request and with the consent of Counsel for both parties. Both the Plaintiff and Defendant have gone into the witness box and have given evidence. What I am being asked to decide is to whom certain property belongs. The parties after having lived together as man and wife since 1952 separated last year and are in disagreement as to who is entitled to what. Before directing my mind to the arguments and to the law applicable, I think that a short resume of their respective cases would help to clarify the issues.

According to the Plaintiff, she met the Defendant at Roaring Creek. At the time she was a trader, selling dry goods in the neighbourhood. She was living in a building on a piece of land she had leased from Belize Estate & Produce Co. The Respondent was working on the road with the Public Works Department. Shortly after meeting, they decided to live together in the Plaintiff's house. She was making good money from her trading, but he was earning little from his employment. He used to hand over his wages to her, or what was left after meeting certain commitments. According to the Petitioner, this was initially only $6 to $7 per fortnight; he had to feed himself during working days as he was working from the house.

Towards the end of 1952, the parties moved from Roaring Creek to Belize City, to Euphrates Avenue, where she bought a lot for $250. This money she obtained from selling five heads of cattle she had previously bought in the course of her trading. The Defendant did not contribute anything towards the purchase of this property.

As years went by, so did the Plaintiff's trading increase and diversify, including selling dry goods, buying and selling cattle and dealing in real property. This she did with her money and on her own initiative and the Defendant played no part in her trading. Also as years went by, the Defendant earned more and contributed more to the household. He retired from Public Works in 1973 as foreman carpenter. Before retiring, he was contributing to the tune of $90 to $100 per fortnight, out of which all his requirements were catered for, including his cigarettes. He also gave the Plaintiff his gratuity which she deposited in the bank in her deposit account.

In 1975, the Plaintiff bought a Dodge Wagon but registered it in the Defendant's name. Her explanation for this she told the Defendant "he is the man, he is going to drive, to put it in his name". She bought the vehicle in connection with a farm she had. She paid for the vehicle with her money.

Around this time she bought three properties -

(a) Washing Tree, Black Creek Reserve

(b) Lots 12 and 16 at Faber Road, Belize City

(c) Lot D15 at Roaring Creek Village, Cayo District.

The property at Roaring Creek Village, she acquired in the Defendant's name. The explanation she gave was: "I told Topsey I would let him buy it in his name as I did not think they would give it to me in the Land's Department. I had already spoken to Land Commissioner. I would not get land as I had other land. Told Topsey to buy it in his name. I gave him the money. Topsey understood nature of transaction. Knew why it was being put in his name".

As regards the other two properties, Washing Tree and Lots 12 and 16 Faber Road, they were conveyed in the joint names of the Plaintiff and the Defendant. The properties were, however, bought with her own money.

In 1976, there was another event. The Petitioner had a deposit account with Barclays Bank in Belize City. She went to the bank and instructed them that henceforth it was going to be joint account in the name of herself and the Defendant. Her explanation is that she also did this for convenience and appearance. She kept the bank book and did not allow the Defendant to operate the account.

The Petitioner also acquired an Akai amplifier with two speakers as a security for a loan she made to a third party. This was in September, 1978. The money for the loan was her money and, according to her, the Defendant had no part in the transaction.

At the time when the parties separated, the Defendant did two things. He took the Akai amplifier and two speakers away from the house. The explanation the Plaintiff says the Defendant gave her was that he had hired them out. He also withdrew from the deposit account at the bank the sum of $5000, without the knowledge or consent of the Plaintiff, in fact without having possession of the bank book. This he did on the 2nd November, 1981. It was sometime in November, 1981, when the parties separated. The Defendant, according to the Plaintiff, never offered any explanation for his action.

The version of the Defendant is somewhat different. He started his evidence by saying that he was the agent and common law husband of the Plaintiff and the definition of agent he gave is as follows: " Agent is the one who does business, represents her in Court and in anyway at all." In the course of his evidence it became obvious that he was not setting himself up as an agent, but as a business partner.

According to his evidence, when the Defendant met the Plaintiff she was doing small business, selling grease, combs and children rags, out of which she did not make much money. She was living in a very small house with barely the essentials. He started giving his wages, or the balance of them, for their maintenance. With what was left over they would save and buy little things for sale, for the benefit of both of them. Independently of this he was not aware she had any money.

After a time, they left Roaring Creek and came to Belize City where they bought an empty lot on Euphrates Avenue. First, he built a shed and then a building, which was subsequently sold and another empty lot was bought. Once more, a building was built on this new lot and again sold. His evidence is that all the buildings erected on the different lots bought were either erected by him, or by him with the help of someone he employed and paid, or by someone who was contracted to do the work and whom he helped. During this period of buying empty lots, erecting buildings and selling the lots and the buildings, the Defendant was doing some trading, but on avery minor scale. His evidence is that they always planned and discussed all transactions of buying and selling of properties. He gave his rate of pay during the whole period, but at no time did his income exceed $200 per month, which was his income just prior to retirement.

The Defendant agrees that all the properties bought, apart from those under dispute in these Actions, were bought in the name of the Plaintiff, including the property at Water Lane which the Defendant is claiming a share in his counterclaim. He explained that before each transaction there was a discussion about the property in question. His explanation about the properties bought in their joint names is that the purchase money belonged to both of them.

His explanation about the Akai amplifier and speaker is that the money lent on it was their joint money and that he had hired it out. He has kept it because he was compelled to leave the matrimonial home.

About the wagon, his explanation is that he bought the vehicle with his gratuity money that was paid to him on his retirement from Public Works. He does not agree that he handed over the gratuity money, $2000, to the Plaintiff. Neither does he agree that the said amount was deposited in the saving bank account.

With reference to the $5000 he withdrew from the bank, his explanation is that the money belonged to him and the Plaintiff. It was a joint account, and he had been compelled to leave the house.

At the end of his cross-examination, it became obvious that the Court cannot place any reliance on the evidence of the Defendant. Having seen and heard both parties I much prefer the evidence of the Plaintiff to that of the Defendant.

There is no doubt in my mind that there was never a business partnership or joint enterprise between the Plaintiff and the Defendant as the Defendant alleged. The Law of Partnership has certainly no application to this case. I find that the trading, including the dealing in properties, were the sole acts of the Plaintiff and that the money used was her own money. I find that the Defendant did help in the erecting of some of the properties, but that his contribution was a minor one and not as related by him.

Can the Defendant rely on equity?

The equitable position is clearly stated in Underhill's Trust and Trustees, 12th Edition at page 205/206, Article 29.

" (1) When real or personal property is conveyed to a purchaser jointly with others, or to one or more persons other than the purchaser, a resulting trust will be presumed in favour of the person who is proved (by parol or other evidence) to have paid the purchase money in the character of purchaser.

(2) This presumption may be rebutted:
(a) by parol or other evidence that the purchaser intended to benefit the others; or

(b) by the fact that the person in whom the property was vested was the lawful wife or child of the purchaser, or was some person towards whom he stood in loco parentis………..

In any of these cases, a prima facie (but rebuttable) presumption will arise that the purchaser intended the ostensible grantees to take beneficially or ………"

I find as a fact that the properties (real or personal) bought, including those in the name of the Defendant or in the joint names of the Plaintiff and Defendant were paid for by the purchaser with her money. Consequently, para. 1 of Article 29 above is applicable.

I also in the evidence that that there was no intention to benefit the Defendant beneficially. The presumption under para.1 above is not rebutted by the rule in para. 2 (a) of Article 29.

I further find that a husband, a common law husband, is not included in para. 2(b) of Article 29 above. It would appear that the weaker sex is in a stronger vis-a-vis the male. Whether the law has changed in this respect I have not been made aware of. In any case I find that if such were the case the evidence is such as not to negative the original presumption in para. (1) of Article 29.

Counsel for the Defendant has referred me to three cases:

Young v Young, a decision of this Court
Flowers v Flowers No. 1 of 1981 of the Court of Appeal
Jones v Maynard (1951) 1 CH 572

I agree with the principles stated in those three cases but they were decided on their own particular facts and are not applicable to the present actions.

In Young v Young the Court held that the matrimonial house which was in the husband's name belonged to both the husband and the wife equally as on the evidence it found that the initiative of building the lot was that of the wife and that she financed part of the building. The court further held that on the evidence the building of the matrimonial home was a joint enterprise.

In Flowers v Flowers similarly the lot of land was purchased at the suggestion of the wife and the house was built by stages, and the wife contributed with actual cash.

In Jones v Maynard there was a joint bank account which was operated by both husband and wife although originally it had been in the husband's name. Both husband and wife paid their earnings and income into it and withdrew when required.

In the case before me, there was a joint account, but the husband was not allowed to withdraw and there is no evidence that he ever made any deposit.

I have no hesitation in finding for the Plaintiff, except on the question of whether I should give judgment for the full amount of $5000 he withdrew from the bank. While it is true that he is not entitled to that amount, I think that he is entitled to his $2000 gratuity money which the Plaintiff deposited in the bank, plus whatever interest it may have earned in the bank from 1973 to 1981. Whilst the Defendant is not entitled to a share in any of the Plaintiff's properties, similarly the Plaintiff is not entitled to anything really belonging to the Defendant. If Counsel does not agree to what sum the Defendant is actually entitled to I will order an account. However, I am prepared to estimate that the total sum he is entitled to is $3000.

With respect to the Akai, I can only give judgment for $2000. The evidence of valuation is insufficient to allow me to give a higher figure.

Dealing with the Action seriatim, in Action 39 of 1982, I give judgment for the Plaintiff in the sum of $2000.

In Action 40 of 1982, I give the Plaintiff the declaration sought and the order prayed in the Statement of Claim. A declaration that the Defendant holds the property on trust for her and that the Plaintiff is entitled to any proceeds of sale plus an order that the Defendant convey the properties to the Plaintiff. I also dismiss the counterclaim and give judgment for the Plaintiff.

In Action 41 of 1982, I give judgment in the sum of $2000, subject to the parties asking for an account.

Finally, the Plaintiff is entitled to costs in all three Actions.

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