Ramoutar v Maharaj

Citation:           TT 2014 HC 388

Title:                 RAMOUTAR v. MAHARAJ

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 1483 of 2008

Judge(s):          Ramkerrysingh, J.

Date:                November 21, 2014

Subject:           Administration of estates

Subsubject:      Cohabitation – Whether the applicant and the deceased lived together in a bona fide domestic basis and were in a cohabitaitonal relationship where the applicant had not presented evidence of their cohabitation – Whether the respondent and the deceased  could prove that the parties were living together in the circumstances where the respondent had filed several divorce petitions during the lifetime of the deceased including one which alleged the parties had been living apart continuously for more than five years – Acquisition of properties – Whether the properties and accounts were acquired by the applicant and the deceased where some of the properties were in the sole name of the accused and where the applicant assisted the deceased in building a successful business – The respondent was the only person entitled to apply for the estate – Application dismissed.

 

Appearances:

Mr Kwasi Bekoe for the applicant

Mrs Lynette Seebaran-Suite for the respondent

 

RAMKERRYSINGH J.

  1. To claim relief under the Administration of Estates Act for distribution of the estate of a deceased person, an alleged surviving cohabitant must first prove cohabitation. The approach is therefore tviro-pronged in that an applicant must first prove that a cohabitational relationship existed fora period of at least five years immediately preceding the death of the deceased, before claiming a share of the estate. In the case before me the applicant also has to prove that the Deceased and the respondent were living separate and apart from each other at the material time, in accordance with section 25 of the AEA.

 

  1. I have read the evidence and seen and heard the parties and the witnesses and it is my judgment that there is not enough evidence before me to make a determination that a cohabitational relationship existed between the applicant and the Deceased. Mrs SebaranSuite at the beginning of her closing address described this as a ‘borderline case’, but I prefer and agree with the language she used towards the end of her submission, when she concluded that the relationship ‘does not rise to the level of cohabitation’. And although I agree with that conclusion that is not to say that the applicant and the Deceased may not have shared a cohabitational relationship, but the evidence placed before me just is not enough to make a determination that the applicant and the Deceased lived together on a bona fide domestic basis.

 

 

BACKGROUND FACTS

  1. Briefly the facts are these: The applicant was hired by the respondent in 1991 to work in the Deceased’s business, Ramo’s Auto Garage and Wrecking Service at a time when the marriage between the respondent and the Deceased was still intact, though beginning to unravel. An intimate relationship soon developed between the applicant and the Deceased. This led to the inevitable breakdown of the marriage whereupon the applicant claims three months later she and the Deceased moved in together above the Garage and Wrecking business at Southern Main Road, occasionally staying with her mother at Carlsen Field. She continued working in the business and was instrumental in its expansion, and claims to be a business Partner along with the Deceased although she admits being paid for her services. During the time of the alleged cohabitation the profits of the business were used to purchase several properties and vehicles, and at times the applicant said she utilised her own savings to facilitate acquisitions. It is on this basis that she claims a share in the Deceased’s estate as a cohabitant.

 

  1. While the respondent accepts that the Deceased and the applicant shared an intimate relationship, she described her husband as a ‘womaniser’ who was frequently unfaithful during the marriage. She denies that he lived with the applicant and avers that he continued to live with her at the matrimonial home at 57 Plover Street, Lange Park Chaguanas until his death in 2008. She maintains that the applicant remained an employee thorughout who provided the Deceased with companionship, and was rewarded by him taking her on expensive trips abroad.

 

 

WEIGHING THE EVIDENCE

  1. We are all familiar with the factors [(a) duration of the relationship,(b) nature and extent of common residence,(c) existence of a sexual relationship,(d) degree of financial dependence interdependence and financial arrangements,(e) ownership and acquisition of property,(f) mutual commitment to a shared life,(g) children,(h) household duties,(i) reputation and public aspects] as mentioned in Delzine v. Stowe[Define v. Stowe HCA 3007/2001] commonly used to guide us in making a determination of cohabitation. We are reminded that the list is neither comprehensive nor binding and must be taken in the context of the individual case. Of those factors how many are present in the instant case?

 

  1. It is accepted that the applicant and the Deceased shared a romantic relationship over a period of seventeen years during which it is reasonable to assume that they engaged in sexual intercourse. There is also common ground that they spent time together and shared residences, but the ‘nature and extent’ of their lives together has not been particularised. There is also an absence of any evidence of financial arrangements between them that could denote signs of cohabitation. No description is given of the residences, the manner in which rooms including bedrooms were used, or the general living and sleeping arrangements within. The focus of the applicant’s evidence is on the business relationship she shared with the Deceased and her participation in that business. All the properties acquired during the time they were together, save and except the joint account and 10 Sankar Drive Old Road, Longdenville were, the applicant admits, acquired in the Deceased’s sole name. With respect to another property, 40 Plover Street, Lange Park Chaguanas, the applicant at trial confirmed that it was purchased for the Deceased’s son Kalipersad and his family and she abandoned any claim on that asset.

 

  1. The applicant gave no useful details of the life she shared with the Deceased, preferring to highlight her involvement in the Auto Repair Business. In fact the totality of applicant’s evidence in support of cohabitation is contained in the following brief statement: ‘The Deceased and I lived together as man and wife for the past 17 years … During this time I took care of all his needs. I cooked, washed and ensured that his clothing were in order. [applicant’s affidavit filed 07/08/08; par 9] What in that statement is there to differentiate between the applicant and a live-in housekeeper who worked for the Deceased for 17 years? It is the burden of the applicant to detail the living arrangements and not just mention them in passing, but to explain daily routines, describe the sharing of domestic responsibilities and correlate financial arrangements, in order to distinguish the relationship from other associations within a household, so that anyone reading the evidence would be in no doubt of her status as a common-law wife as distinct from a room-mate, lodger or lover. In her second affidavit filed on the 17th October 2008 at paragraph 4 she added these words in furtherance of her claim of cohabitation: ‘I have been always acknowledged by friends and family as his common-law wife.’ but she brings no evidence to substantiate this. A court can put very little weight on such a bald and general statement.

 

  1. Her affidavit filed on the 9th June 2009 carries her case for cohabitation no further, as this time she focused on the various petitions for divorce filed by the respondent. She also provided more details of her role in the business and described the many trips she and the Deceased took together. This would have been an opportune moment to flesh out the scant evidence given in her first two affidavits. The fourth affidavit filed on 5th November 2009 contains lamentations of some perceived injustice meted out to her in civil proceedings CV 2009-02952, when the respondent’s application to remove the caveat she (the applicant) filed against the Grant of Letters of Administration in the estate was granted. By this time she had changed attorneys and still did not see it fit to strengthen her evidence to substantiate cohabitation. Instead she used the opportunity to again repeat the role she played in the Auto Repair Shop/Garage and highlight the vacation trips. Finally her affidavit filed on 29th October 2010, when it did talk about their lives together, only repeated her involvement in the business and the holiday trips.

 

  1. Evidence of a daily routine from which the court could draw any conclusion of a life of domesticity between the applicant and the Deceased, akin to that of husband and wife, was severely deficient. On a balance of probability the totality of the evidence of their lives together does not amount to the level of evidence required to prove the applicant’s case that a cohabitational relationship existed.

 

 

WERE THE RESPONDENT AND THE DECEASED SEPARATED AT THE TIME OF HIS DEATH?

  1. If the applicant had successfully crossed the first hurdle, the second phase, that is whether the Deceased and the respondent were living separate and apart at the time of his death, would have been much easier to cross, as it is my finding that that was indeed the case; that is, that the respondent and the Deceased had been living separately when he died. Certainly from the number of petitions all filed by the respondent over a ten year period from 1992 2002, there is no doubt that the marriage was in trouble. She has brought witnesses to say, and it is her case, that the Deceased did not want a divorce, while the applicant insists that he wanted to have nothing to do with the respondent. But clearly the respondent was keen on ridding herself of the Deceased, although she may have had a change of heart after each filing.

 

  1. The respondent claims that the Deceased continued to live at the former matrimonial home, but in each of her dismissed petitions filed, in 1992, 1996 and 2002 respectively, she stated that he lived at Southern Main Road, which corroborates the applicant’s testimony while her address is stated as 57 Plover Street, Lange Park Chaguanas, the matrimonial home. More fundamentally, in her last petition which, unlike the previous two was based on the fact of separation for five years, she pleaded that they had been separated since May 1991. She confirms this in her affidavit when she swore that: ‘Despite the fact that the deceased and I lived apart from the year 1991 I maintained a somewhat cordial relationship..: [respondent’s Affidavit filed 02/12/09; par 10] This is in direct conflict with her testimony during her cross-examination, when she said that at the time of filing her petitions she and the Deceased lived at the former matrimonial home and that he never lived at Southern Main Road. This evidence also affects her credibility. I reject that aspect of her testimony and find that the Deceased and the respondent had been living separate since 1991.

 

  1. But having established that the respondent and the Deceased were separated at the time of his death does not save the applicant’s case. While I accept her evidence that the Deceased and the respondent were separated, she has not persuaded me that hers was a relationship in which she and the Deceased lived on a bona fide domestic basis. There is no doubt that they were very close and indeed intimate. They spent time together, enjoyed holidays abroad and worked in the business, of which she was an integral part but she has presented no evidence of cohabitation.

 

 

ACQUISITION OF PROPERTIES

  1. The applicant claims that she used her money to assist the Deceased in purchasing several properties. Included among those properties are:

 

i     8 lots of land at Longdenville with warehouse

 

ii     property at 10 Sankar Drive Old Road Longdenville

 

iii    Ramo’s Auto Garage and Wrecking Service at 379 Southern Main Road and 2 adjoining lots

 

iv    House and Land at 40 Plover Street, Lange Park

 

v    39 vehicles

 

vi    FCB USD Account

 

  1. At the trial she agreed that she could not claim an interest in the business, although she described herself as a partner with the Deceased in Ramo’s Garage. There is no evidence of partnership and I agree with Mrs. Seebaran Suite’s description of her as a manager. It is also to be remembered that she was paid a salary. I return now to the acquisitions. The applicant claims an interest in the two lots adjoining the garage as they were acquired during the alleged relationship. As indicated above she gave up her claim for 40 Plover Street. With respect to the other properties she claims that they were purchased with profits from the business and as a partner she is entitled to a share. But I do not accept that she was a partner in the business. Partnership has not been proved. Her involvement with the business ceased altogether when the Deceased died. It had earlier been submitted that all the properties save Sankar Drive were bought in the name of the Deceased. After the trial, it was brought to the court’s attention by Mr Bekoe who very responsibly and fair-mindedly, sought to correct Mrs Sebaran-Suite’s statement during her closing address that the property was purchased in the joint names of the applicant and the Deceased. He produced the Deed for 10 Sankar Drive showing that the property was in fact registered in the Deceased’s sole name.

 

  1. The Scotiabank joint account of which she was a signatory could as easily have been for the business as for the parties’ domestic use, but no statements were exhibited. The applicant testified that she did not deposit her salary into that account but said that the profits for the business were. She may have been a signatory to the account, but I once more agree with Mrs Sebaran-Suite that this is not indicative of cohabitation, nor I might add does it make her a partner in the business.

 

  1. The applicant said that she used money from her account to conduct business for the Repair Shop and in support of that statement exhibited a one-page statement of a First Citizens Bank Abercrombie Account. Two Manager’s Cheques were attached purportedly written from this account. One for $43,653.94 was drawn in favour of the Comptroller of Customs and Excise and the other for $50,000 made out to Ramo’s Auto Garage. My understanding of the FCB Abercrombie Fund is that it is an investment scheme, not a current account. While the account is in her name the applicant did not give the history of the account, nor did she state the source of the starting amount of approximately $106K on the 1st April 2006. That may have been of less significance were it not for the obvious business relationship that she shared with the Deceased. The account may or may not have been her private account, but from the single statement produced and the nature of the only two transactions shown, it is difficult to infer the true nature of the account. It is even more difficult to conclude that this was the applicant’s personal account. From the evidence the applicant’s only source of income was her salary at Ramo’s, but without knowing what that salary was or over what period of time she was able to accumulate over $100K, we can only speculate about the origin of the opening balance. Twenty days after the account was opened it was decreased by $50K, followed by the $45K, a little more than one month later. The account is in the applicant’s name, but I am not convinced that the money in the account belonged to her or was for her personal use.

 

  1. Is it merely coincidental that the only transactions conducted from the account seemed to be connected to the Repair Shop? It certainly is not indicative of the parties operating a joint account in the general atmosphere of domestic life, nor does it seem that the applicant carried out any other transactions from the account. I appreciate that just having sight of a single page of the account makes it difficult to decipher what transpired with it after June 2006, but I note that apart from the initial deposit no other deposits were made. No other information for the account was provided. The statement is more supportive of the business relationship between the parties than the alleged cohabitation.

 

  1. Another slight twist in this case is the evidence of Rawti Gangapersad, but it has little impact on the outcome. Rawti evidenced that she too lived with the Deceased during the period of the alleged cohabitation. She makes no claim on the estate but filed an affidavit in support of the Respondent. She stood up very well under cross-examination and I believe her when she said that she was in a relationship with the Deceased and that she became aware of his relationship with the applicant when he began spending less time with her and refused the meals she cooked for him. The AEA however was established to recognise only one cohabitational relationship. There is not enough evidence before me to determine whether the Deceased cohabited with Rawtie at the same time as the applicant, but I am satisfied that they did have an intimate relationship which preceded and for some time at least coincided with his relationship with the applicant, but which eventually succumbed to the latter.

 

 

A CLOSER LOOK AT THE EXHIBITS

  1. I now turn to the exhibits. The applicant has exhibited a vast array of photographs showing her and the Deceased attending a number of events and activities, but pictures alone without relevant substantial information is not enough. I accept that they went on trips together, socialised and spent time together alone and with the applicant’s family and friends, but what is missing is information from which it can be deduced that the parties lived in such a way that connoted a union of minds and intermingling of lives, dealing with the monotony of everyday life and settling into a routine of daily living. Mr Bekoe submits that a ‘picture tells a thousand words’, but an album of pictures showing time spent at family gatherings and trips abroad in the absence of sound evidence of cohabitation is just an album.

 

  1. The pictures that are most supportive of the applicant’s case, are the 2003 photographs depicting what she alleges was her engagement to the Deceased. While this group of pictures does not define cohabitation it is a public display (at least to the applicant’s friends and family) of commitment to each other. What is of some concern is that in the five years after these pictures were allegedly taken, the Deceased had done nothing to finalise the engagement. It seemed to me that while he was willing to admit to some serious form of commitment to the applicant in the presence of her loved ones, he failed to follow through on those marital promises, which challenges the sincerity of that commitment. He made no provision for her, with all the several properties and assets he purchased. The Deceased seemed to have abandoned his ‘womanising’ days and settled with the applicant (certainly there is no evidence of any other person coming into the Deceased’s life after her); she worked hard to help him build a successful business and was an asset to his enterprise; he held on to her but was not prepared to fully commit to her.

 

  1. I adopt the words of Justice Bereaux in Walker v. Jones Cv 2007-1199 when he refused an application for a declaration of cohabitation:

 

‘It was not enough that the claimant and the defendant may have had an active social life together, many couples in a visiting relationship may have active social lives, or that he introduced her socially as his wife since that may have been nothing more than pretence to suit his own ends.’

 

  1. Moving on to other exhibits: The funeral programme was prepared by the applicant and is self-serving. She includes the respondent as one of the ‘wives’ of the Deceased.

 

  1. The blank Scotialine joint account cheque-leaves [Exhibit [SR19]] are not indicative of cohabitation. If it is the applicant’s case that this account was used for their personal expenses during the relationship, would it not have been more effective to exhibit cancelled cheques of everyday domestic expenditure, rather than attach several copies of two blank cheques? Similarly, the applicant chose to exhibit three copies of the same statement of the Scotialine Gold Credit card account on which no point-of-sale transactions appear, that would determine what the card was used for and whether it was indeed an account used on day-to-day household expenditure.

 

  1. The applicant ‘exhibited’ several affidavits in support of her Application, of which Mrs Seebaran-Suite initially raised objection as they were filed without leave. She was due to argue her objection, but in the end did not. This mattered little as none of those deponents appeared to be cross-examined. I have not considered their evidence in determining this matter.

 

  1. Finally, the applicant exhibited two cheques [Exhibit [SR28]] which she contends came from her joint account with the Deceased and represented payment to Faizal Hosein for properties situate in Longdenville [applicant’s affidavit filed 29/10/10; par 22] . She does not specify to which of the Longdenville properties she refers. And while both cheques are signed by her, the first, in the amount of $50,000 is written on what appears to be the business’s Intercommercial Bank Limited account. The second, drawn for $25,000 comes from the joint account for which I have already expressed my reservations [see par 19] .

 

 

CONCLUSION

  1. Putting all of the above into perspective, the result is that the applicant has failed to prove that she and the Deceased shared a cohabitational relationship. Although it is clear that the Deceased and the respondent, to whom he was still married, had been living separate and apart at the time of his death, in the absence of a cohabitant, she is the only one entitled to apply for the estate. Equity follows the law and where one may want to make concessions in some circumstances the law is quite unforgiving here, if one presents a weak case. I repeat that the applicant’s case is not just ‘borderline’. I would go as far as saying that it is weak, vague and incomplete, and she had ample opportunity as mentioned above [par. 7 and 8], to strengthen her evidence, but failed to do so. applicants must be wary of bringing insufficient evidence when trying to establish cohabitation more so when one of the cohabitants has died. Cohabitation must be proved not simply assumed from superficial evidence. The evidence must be full bodied, well rounded and clear enough to enable the reader to identify the unmistakeable characteristics of a domestic union. One cannot rely on peripheral evidence to prove cohabitation. Persons living together in such intimate proximity should be able to give details of daily occurrences inside the home commensurate with everyday family living. Juxtaposing snapshots of time spent outside the home, with work-related activity will not do. Cohabitation as the word suggests means living together and how best to capture that, than by detailing the mundane routine of daily living and life within the home. The paucity of the applicant’s effort in that regard severely weakens her case.

 

  1. All in all nothing in the evidence before me leads me to the conclusion that the applicant and the Deceased shared their lives on a bona fide domestic basis. I find her evidence meagre in the extreme. The ‘hallmarks of domesticity’ [Mohammed v. Albert CvA No 165/2004; para 24; per Warner JA] as described by Warner JA in Mohammed v. Albert [ibid] are patently absent and when they are, as in this case, a court can do little to assist the applicant [See In the Matter of an Application by Rz4a Rahim FH586/11 per Smart J]. That is not to say that it may not have been the case that the applicant shared such a relationship with the Deceased, but the evidence placed before me is not enough to make that determination. A court must be careful not to import facts and evidence into a case in an unfair attempt to raise the quality of the testimony before it.

 

  1. What is gleaned from the evidence is that the applicant began as a secretary in the Deceased’s business. They became intimate and worked closely together. They shared an intimate relationship for at least 17 years and they slept together both at Southern Main Road and at the applicant’s mother’s home in Carlsen Field. They travelled extensively and attended social gatherings. There is also strong evidence that the Deceased and the respondent were separated from each other since 1991. What is lacking is the detail needed to draw a picture of the domestic life the applicant and Deceased shared over the years. What took place within the home and during their everyday lives remains a mystery.

 

  1. The applicant was careful to give details of her involvement in the business and mentioned it at every turn, but she did not pay the same attention when describing her life with the Deceased away from the business. Accordingly, I cannot conclude that a cohabitational relationship was established from the evidence.

 

  1. The Application is dismissed.

 

  1. I have perused the exchange of correspondence between attorneys exhibited to the proceedings in an attempt to settle this matter and though it is my judgment that the applicant has not presented sufficient evidence to prove her case that does not preclude the parties, even at this stage exploring some compromise. I will also in the circumstances of the case order that each party bear her own cost.

 

Dated the 21st day of November 2014

Allyson Ramkerrysingh

Judge

 

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