Supreme Court
Action No. 93 of 1981
20th November, 1981
Moe, J.

Mr. Lionel Welch, for the Plaintiff.
Mr. Denys Barrow, for the Defendant.

Trust - Beneficial interest in property - Husband and wife - Spouses separated - Wife claiming a beneficial interest in half the property acquired through the joint efforts of both spouses during the marriage.

J U D G M E N T

The Plaintiff is the wife of the Defendant. They were married on the 12th April, 1950 and lived together until the 12th April, 1976. The Plaintiff seeks: (1) a declaration that the Defendant holds on trust for her and himself in equal shares two properties at viz- (a) the property No. 105 Neal's Pen Road, Belize City and twenty acres of land in Bomba Village, Belize District, (2) a declaration that she is entitled to a half share in the proceeds of sale in the event that the said properties are sold; (3) a declaration that she is entitled to half the rent collected in respect of the house at No. 105 Neal's Pen Road from the 12th April, 1976 onwards. She claims that she and the Defendant did mixed-farming and poultry-raising jointly and both properties were purchased by them out of the income therefrom. In his defence filed, the Defendant denied (i) that he and the Plaintiff farmed and raised poultry jointly, (ii) that they purchased any property. He averred that he purchased the property at Neal's Pen Road from his own funds being the proceeds of a legacy. There was no specific averment from him with respect to the land at Bomba Village and he did not give evidence.

2. The Plaintiff's evidence was that from the date of marriage she used to assist her husband in his work as a wood-cutter. They used to make their living from that and her husband cut wood until 1955. They then started making their living from a plantation. She said, "We did mixed farming. We also raised pigs and chickens. I used to help my husband do everything, except cut the bush. I help to plant, weed, do everything even to take out the crop. ------- The money we used to get from mixed-farming we used to manage our life with, purchased our clothes, food and everything. I used to keep the money. I had a bank account from in the 1960's. I used to save whatever little I could save. I used to save money from the crops especially the water-melon. I just can't remember exactly when I started saving but I saved the money. I put the money on the Royal Bank. I saved the money which my husband gave to me. We worked for it and he gave it to me." Asked during cross-examination to estimate how much of the total farming she contributed, she answered, "I would say almost half." She agreed that her contributions to the farming was that of a wife assisting her husband but she maintained she worked equally and tried to do everything in farming. Her evidence also was that between 1951 and 1962 she give birth to 10 children, two of whom died, i.e. one born in 1952 and one born in 1958. There was lengthy cross-examination directed at testing her knowledge of farming to ascertain how much of it she did; whether she could have been involved in farming while having the number of children she had and to show that the Defendant and his father were in partnership. The parties' daughter, Marlene Flowers, gave evidence that her mother worked together in everything from the time she knew herself. Her mother worked on the farm with her father and she (Marlene) used to take care of her brothers and sisters, cook food, clean house and everything. It was submitted that the assistance which the Plaintiff gave to the Defendant should be regarded in terms of married life and the enterprise, such as it was, would normally be treated as the husband's, the Plaintiff's assistance being that of a wife and not as a part owner.

3. I was satisfied from the evidence that the farming and poultry-raising was a joint effort between the Plaintiff and Defendant although it may be shown that the husband put in more. I found that the income deriving to them from the farming and poultry-raising was the result of the joint effort of the husband and wife. Part of that income was put into a savings account in the name of the wife.

4. According to the Plaintiff, the Defendant purchased the lot at Neal's Pen Road from George Dakers. She went to Mr. Dakers and asked him about the lot. He had three lots for sale, and told her the price. She said she wanted one but would have to see her husband first. She told her husband about the lot. He came to Belize, saw the lot and purchased it. She could not remember if the purchase money was money they had saved. She thought he paid $290.00. She said, "After we purchased the lot, it remained there until we raised a little money.---- We built on the lot."

5. One Isaiah Fitzgibbon died and left for her husband a house. Her husband took down the house and she told him, "Let us make a start to build at Neal's Pen". The husband said, "We don't have money to build," but she insisted they could do it little by little. She explained that the commencement of building on the lot was with material, i.e. posts, that the husband bought. The husband purchased a frame from a man who was emigrating. The husband sent for her. She came down, went to the bank and drew $275.00 from the account with which the frame was bought. The husband used the material available from Mr. Isaiah's house which, according to her, amount only to zinc and flooring. The husband also bought lumber from the yard. She used to go along with the carpenter to get the lumber.

6. When the house was finished, i.e. an upper storey on posts, the husband mortaged it to Reconstruction and Development Corporation for a loan of $1, 300.00. With this money, the lower portion of the house was constructed. This loan was repaid by monthly installments of $15.00 out of whatever they made. According to the evidence, the lower portion or downstairs of the house was rented first at $20.00 per month, then at $25.00 per month but this money generally was used for purposes other than specific repayment of the loan. She however accepted that whatever payment were made to Reconstruction and Development Corporation had in some money from the rent.

7. The husband further bough a termite infested house from one James Gordon with money which the wife had saved out of their income. This material was used to make an addition to the back of the upper portion of the house.

8. When the Plaintiff and Defendant separated in 1976, about $300.00 of the loan to Reconstruction & Development was repaid by the Defendant with money which the Plaintiff gave to him, being half of the amount then remaining in her account at the time. The daughter Marlene stated that the house was built by her father and mother ----. Her mother came up with the idea to get the place. Her father did not think it was a good idea.

9. On the evidence adduced before me, I am satisfied that the acquisition of the lot at Neal's Pen Road was the result of a joint effort by the parties and further, that the building of the entire house on the said lot was also a joint enterprise. Indeed I found that the Plaintiff was very much a woman not only behind her man pushing him to achieve, but also alongside him in effort. Following the decision of Henry v Henry 20 W.I.R 524, I hold that the Plaintiff is entitled to a beneficial interest in the property at Neal's Pen Road.

10. The Plaintiff further said, "My husband got a piece of land 20 acres in 1955 from the Government". Under cross-examination she said, "The land at Bomba is the 20 acres. My husband owned the land. He got the land from Government and paid by installments, $7.00 every six months. It is finished paid for. I don't know if the land was held by my husband on a location ticket. When I left home, he had already finished paying for it. I don't know if title has been issued yet for the land. I know he paid $7.00 until he paid $70.00." Her knowledge of the husband's ownership of the land was tested as may be seen. But it was never suggested or put to her that it is untrue that the Defendant purchased 20 acres of land in Bomba Village. The Defendant gave no evidence and it is also significant that in his filed defence, there is no denial of such a purchase. There is only a denial that the parties purchased any property jointly. I held on a balance of probabilities that the Defendant purchased 20 acres of land at Bomba.

11. There was no direct testimony from the Plaintiff as to the source of funds for the purchase of this land at Bomba. However, the whole tenor of her evidence was that the purchases were their purchases. She knew the amount of purchase price and the installments and when the Defendant finished paying for the land. The evidence was such that I felt it more probable than not that the purchase was out of funds similar to the other purchase, i.e. with money from their income derived from their farming and poultry-raising. In this connection, the Plaintiff's evidence that the money they got from mixed farming they managed their lives with, purchased their clothes, food and everything, was significant. I accordingly also held that the acquisition of the 20 acres of land at Bomba was also the result of a joint effort between the parties.

12. The Plaintiff gave evidence that the properties concerned were put in the name of the Defendant. She did not object at the time because she believed what belonged to the husband belonged to the wife also. She and her husband never discussed who owned the properties. I found that there was no agreement as to a sharing in the ownership of the house and further no express intention on the part of the Defendant that the Plaintiff should have a share. However, in my view the joint efforts of the parties and all the circumstances led to the inference that it was their intention that the Plaintiff should have interest in the properties acquired. In the result, I hold that there was a resulting trust in favour of the Plaintiff who is entitled to a beneficial interest in the properties.

13. The question now left to be determined is what share is to be attributed to the Plaintiff. On this point I was assisted by the decision of Denning, M.R. in Smith v Baker (1970) 2 A.E.R. 826 at page 828. He said, "In most of these cases the parties do not get down to propositions. It is impossible to say what they would have agreed about the matter if they had thought about it. In the absence of any clear division the only course the court can take ----- is to say that it should be half and half." I accordingly hold that the Plaintiff is entitled to an equal share in both properties.

14. The Plaintiff and Defendant separated on the 12th April, 1976 and since that date the Plaintiff has not received any benefits from either property.

15. In the result the Plaintiff will have a declaration -

(1) that the Defendant holds the properties on trust for the Plaintiff and himself in equal shares;

(2) that the Plaintiff is entitled to a half share in the proceeds of sale of either property;

(3) that the Plaintiff is entitled to half the rent collected in respect of the property at No. 105 Neal's Pen Road from the 12th April, 1976.

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