Joseph v Joseph

• Jurisdiction: Caribbean States
• Judge: Hallinan, C.J.,Lewis, J.,Marnan, J.
• Judgment Date: 09 December 1960
• Date: 09 December 1960
• Court: Federal Supreme Court (West Indies)

Federal Supreme Court

Hallinan, C.J.;

Lewis, J.;

Marnan. J.

Joseph

and

Joseph

L. F. S. Burnham, Q.C., C. A. F. Hughes and Miss J. Woo-Sam for the appellant.

G. M. Farnum for the respondent.

Real property - Immovable property-Opposition-Opponent establishes equitable interest in property but not quantum thereof-Whether proof of quantum necessary.

Hallinan, C.J.

1 In May, 1958, the defendant-appellant published a notice that he proposed to transport No. 33 south section in the village of Lodge. His wife, the plaintiff-respondent, entered an opposition to the transport. She then brought these proceedings for a declaration that her opposition was just, legal and well founded, and for an injunction restraining the defendant from passing the transport.

2 The parties were married in 1941. The defendant was a sanitary inspector and in 1952 the parties and their children were living at Lodge in D'Urban and Victor Streets. The plaintiff was running a grocery. In 1953 the premises No. 33 were acquired, and the plaintiff moved her shop and her family into these premises. The purchase price was $2,750 and the plaintiff states in her pleadings that she paid $500 in cash to the vendor and negotiated a mortgage for the balance. The transport was taken in the defendant's name and he also was the mortgagee in the mortgage deed. She also states that she had, until June 30, 1956, made monthly payments under the mortgage. It is admitted by the defendant that between 1953 and 1956 the plaintiff out of the profits of the grocery business made a monthly payment of $27 in respect of the mortgage on No. 33 and $12 on a mortgage of a house owned by the defendant at Beterverwagting. The defendant stated that he had repaired No. 33 partly out of a mortgage on his property at Beterverwagting.

3 In May, 1956, the defendant left the plaintiff and in November she petitioned for a judicial separation, which was granted in 1959. In May, 1958, while the plaintiff and her three children were living at the premises No. 33 the defendant proposed to sell the premises over their heads. In the event of a dispute over property between spouses, proceedings can be brought summarily to determine the issue under s. 15 of Cap. 169, which closely follows, s. 17 of the Married Women's Property Act, 1882. However, the plaintiff chose to follow the special Guianese procedure of entering an opposition to the transport. During the hearing, her counsel did not base his case on her equities qua wife but as a party having an interest in the “res”.

4 On the facts alleged in her pleadings the plaintiff claimed that herself and the defendant were “joint owners of the premises in equity”. The learned trial judge held that a very large portion of the cash payment to the vendor (which he finds to be $750) was paid by the defendant and also that “most if not all of the money used in stocking the grocery came from the defendant”. However, the judge was “satisfied that the grocery business was really a joint effort by the parties and that the profits from it belonged to them both.”

5 Counsel for the appellant submitted that the capital of the grocery was its stock, and that the plaintiff only had a share in the profits but not in the stock. It was entirely her labour, which ran the shop, and I consider that, on the facts and on the judge's findings, both parties were joint owners of the stock and jointly entitled to the profits. Moreover, the judge believed the plaintiff's evidence that it was the plaintiff's family association with a director of the mortgage society that induced the society to lend money to the defendant; and, when in the defendant's presence, she told the director that she and the defendant wanted the money to acquire a house for themselves and their children, the defendant acquiesced in this statement. The judge held that it was the intention of the parties that the premises should belong to them as their matrimonial home, that the plaintiff had an equitable interest, and that the quantum of that interest would, “have to he decided when it is raised in the proper way”. The declaration and injunction claimed by the plaintiff were granted.

6 Counsel for the appellant submits that it is not enough to find that the plaintiff has an equitable interest in order to succeed in a suit to oppose transport: the nature of that interest and its quantum must be established at the trial. As regards the nature of the equity he says it cannot be qua wife for such an equity is not strictly speaking an interest in land. Nor he argues should it be a trust, for the plaintiff had not contributed to the purchase money, but had merely made payments under the mortgage, which only creates the relationship of debtor and creditor between the plaintiff and the defendant. This contention is, I think, untenable. The defendant asserted in an affidavit made in 1959 in answer to his wife's petition for alimony that the profit from the shop had been approximately $200 a month whereas his own salary was...