Rampersad v Saunders

Citation:           TT 2014 HC 16

Title:                 RAMPERSAD v. SAUNDERS

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           1538 of 2006

Judge(s):          Ramkerrysingh, J.

Date:                2014 (Undated)

Subject:           Family Law

Subsubject:      Cohabitation – Property Division – Whether the parties were in a co-habitational relationship and a bona fide domestic basis – Property Settlement – Whether the applicant was entitled to a lump sum to represent the share and interest in the property where the applicant could not be construed as a cohabitant – Application dismissed.

 

Appearances:

Mrs. Lynette Seebaran-Suite for the applicant

Mr. Peter Wharton for the respondent

 

RAMKERRYSINGH, J.:

1. The applicant and the respondent both claimed to have acquired the property situate at 4 ½ mile mark Pine Coup Road, Trainline, Cumuto, which is the subject of these proceedings and to which I shall refer as “4 ½ mm”. The applicant declared that she paid Horace John $3600 for “six lots of land and one board house situated on Pine Coup Road Cumuto” [Exhibit [IR3]; Affidavit of the applicant filed 30/08/06] whereas the respondent, while admitting that it was the applicant who told him about the property, asserted that he contributed $2,100 towards the purchase price. The applicant avers that after she bought the property the respondent came to live with her there, whereas the respondent contends that the wooden house standing on the land lay abandoned for years, until he rebuilt it in about 2003 or 2004. He denies that the applicant lived on the property saying that she always lived a few houses away at 6 ½ mile mark Pine Coup Road, Trainline, Cumuto (referred to as “6 ½ mm”). Each party claims to have been responsible for planting several trees and crops on the land.

 

2. The determination of this matter turns on whether the applicant can prove, on a balance of probabilities that she and the respondent lived together in a co-habitational relationship. In that regard the matter is contingent on the credibility of her evidence. If she can cross that hurdle and prove cohabitation then the applicant can move on to the next stage of proving contributions to 4 ½ mm. Both parties are so polarized in their positions that only findings of fact can resolve some of the discrepancies. Having carefully examined the evidence and the supporting documents I am not satisfied that the applicant has discharged her burden.

 

 

EXAMINING THE FACTS, WEIGHING THE EVIDENCE

3. The circumstances surrounding the purchase and acquisition of 4 ½ mm go to the heart of reliability of the evidence. A close examination of the details of the purchase as told by each party follows.

 

4. The applicant’s version of the facts is as follows: In 1992 her marriage to her then husband was falling apart due to his abusive conduct. She eventually left her matrimonial home at 6 ½ mm, purchased 4 ½ mm and lived there. She paid Horace John $3600 which she evidenced by a receipt and a Statutory Declaration, and solicited the help of the respondent, “…with the paperwork to purchase the said property …” [applicant’s affidavit filed 30/08/06; paragraph 9]. She gave no details of what the “paperwork” consisted of. In 1996 the respondent came to live with her and together they conducted a sub-contracting construction business. The money generated from the business was deposited into their joint accounts held at Republic Bank Limited, RBTT Bank of Trinidad and Tobago (now RBC Royal Bank of Trinidad and Tobago), First Citizens Bank and Colonial Life Insurance Company (CLICO).

 

5. During the time that they lived together at 4 ½ mm the applicant gave the respondent $10K from her savings, together with further sums of $6K and a $60K (the latter being a gift from her father) which they used to renovate and improve 4 ½ mm by adding two rooms and a bathroom. Before the respondent came to live with her, the applicant planted the land with coconut and pawpaw trees, tomatoes and pumpkins, which the respondent would spray (presumably to keep away pests), a task for which he was paid. From the monies earned from the contracting jobs the applicant and the respondent agreed that her portion would be used to complete work on 4 ½ mm, while his portion would pay the instalments on a loan for a van he had purchased.

 

6. Sometime in December 2003, about one month after work on 4 ½ mm was completed, the respondent, without cause, sent the applicant away and began living in the premises with someone else. When she returned to confront him the respondent beat her and ran her from the home. They later reconciled, but in August 2004 the respondent took her to 6 ½ mm and never returned for her. The respondent continued to live at 4 ½ mm with his new cohabitant.

 

7. The applicant filed a maintenance complaint in the Magistrates’ Court under the Co-habitational Relationships Act and on the 3rd June 2005 the respondent was ordered to pay her $300 per week for two years.

 

8. Turning now to the respondent’s version of the facts: The respondent’s story starts as far back as 1980, when he said the applicant approached him about purchasing 4 ½ mm. She told him that the purchase price was $3600 but that she only had $1500, and had intended to buy the property with a third party. When the third party pulled out of the deal, she turned to the respondent. The price was paid with the respondent contributing $2100 towards the sum and a receipt was issued to the applicant. Before the receipt was issued, two other receipts had been prepared but remained unsigned by the vendor as they contained errors. What follows next is a series of events calculated to cover-up an issue concerning the title of 4 ½ mm, which entailed changing the date on the receipt from 1980 to 1992, at the behest of the applicant, who believed that someone else was claiming ownership of 4 ½ mm and was about to institute a court action to recover possession. It was under those circumstances that she requested the respondent to change the date appearing on the receipt. The applicant rejects those statements and avers that the change of date was engineered by the respondent to cheat her of her interest.

 

9. The respondent denies cohabiting with the applicant saying that she always lived at 6 ½ mm, while he lived at Railway Road Arouca. According to him, 4 ½ mm was in a dilapidated condition and had been abandoned, but he was cultivating the land since 1998. He arranged water and electricity connection to the property in 2002 and since then has been paying the bills.

 

10. The respondent denies that the applicant was his business partner although he admits that she worked for him and was paid. In support of her contention that she was an integral part of the respondent’s business and indeed his partner, the applicant relied heavily on a notebook in which she said she recorded the jobs she did with the respondent, but the notebook only reflects the names of persons associated with various jobs and the dates and wages paid for the individual workers. It also recorded absent workers or those who left job sites early. Both sides accept that the applicant assisted the respondent in this way, but the respondent asserts that she was paid for this function. There is nothing in the book that I have found that suggests the existence of a partnership between the parties, so I reject the applicant’s assertions in this regard.

 

11. The respondent does not agree with the applicant that they held a joint account at Republic Bank Tunapuna branch nor did he have an account at RBTT. They did however operate an account together at Republic Bank Arima, into which he deposited his salary and to which the applicant has access for the purpose of paying his maintenance payments and transacting other business on his instruction. The respondent closed the account when he discovered that the applicant had overstepped her purview and withdrew unauthorized sums.

 

12. In 1993 the respondent advised the applicant that he wanted to build a new structure on the land for which he was the sole contributor. He thought that she was entitled to know of his intention since she was part-owner of the property.

 

13. I take judicial notice of the three versions of the receipt exhibited from which I conclude that there was an obvious attempt to doctor the receipt to conceal the true details of the time of purchase of 4 ½ mm. The applicant accounts for the differences in the appearance of the copies exhibited by stating that the respondent wanted to swindle her of her interest. The original was not produced by the applicant until 19th May 2009, but it differed greatly from the earlier receipt. This would have been the receipt that the applicant would have had in her possession all along, yet she failed to produce it for almost three years. I can only come to the conclusion that she deliberately tried to mislead the court by concealing a material particular to suit her own ends.

 

14. Both parties filed corroborating affidavits, but the applicant’s corroborating witness Indra John did not appear to be cross-examined. Accordingly I placed no reliance on that evidence. The respondent’s two corroborating witnesses did appear and were cross-questioned by Mrs. Seebaran Suite. Maria Pagan’s evidence was short and convincing. She deposed that she knew the applicant for about 30 years, and describes the respondent as her “neighbour” saying that her “whole family lives next door to him” not “them”. Crucially she went on to say that she mostly saw the applicant coming to visit the respondent and standing by the gate. Ricardo Garcia’s testimony was not as strong. He testified that the respondent lived in the wooden structure for about 10 or 11 years before it was rebuilt, but the respondent himself said that no one lived there because of its dilapidated condition. I reject Mr. Garcia’s evidence.

 

 

FINDINGS OF FACT, APPLICATION OF THE LAW

15. The discrepancies of the receipt and the inconsistencies in the evidence of the applicant do not support her case for cohabitation. The respondent provided much more detailed evidence of the parties’ relationship which in my judgment amounted to a close friendship and which at one time may have been intimate, but I am not satisfied that it amounted to cohabitation. Apart from the applicant’s monetary contribution and the several versions of the receipt, there is no other connection between the parties and 4 ½ mm. Furthermore, the utility bills are in the name of the respondent, the applications for water and electricity are in his name too, consistent with his evidence that the property lay abandoned and upon its reconstruction by him he applied for and obtained the utility services. If the applicant had built the house in 1996 as she claimed it would have already been supplied with electricity and water most probably in her own name.

 

16. I accept and it is my finding, that the applicant was initially interested in purchasing 4 ½ mm and approached the respondent to furnish part of the purchase price. I also accept the respondent’s evidence of the proportions of the contributions in the amounts of $1500 by the applicant and $2100 by the respondent. It is also my finding that the respondent rebuilt the structure at his own expense and occupied it solely. The acquisition was financed by both parties and therefore it is an asset in which they would both have an interest. But can that interest be claimed under the Co-habitational Relationships Act?

 

 

DETERMINING THE COHABITATIONAL RELATIONSHIP

17. The Act interprets a co-habitational relationship to mean:

 

“…the relationship between cohabitants, who not being married to each other are living or have lived together as husband and wife on a bona fide domestic basis”

 

And the determination of living on a bona fide domestic basis has been accepted in Delzine v. Stowe [Delzine v. Stowe HCA 3007/2001] as including the factors outlined in the Property (Relationships Act) 1984 NSW s. 4(2) to include:

 

(a)  The duration of the relationship,

 

(b)  The nature and extent of common residence,

 

(c)  Whether or not a sexual relationship exits,

 

(d)  The degree of financial dependence or interdependence, and any arrangement for financial support, between the parties,

 

(e)  The ownership, use and acquisition of properly,

 

(f)   The degree of mutual commitment to a shared life,

 

(g)  The care and support of children,

 

(h)  The performance of household duties,

 

(i)   The reputation and public aspects of the relationship.

 

Section 4(3) of the NSW Act goes on to say:

 

(3)  No finding in respect of any matters mentioned in subsection (2) (a) — (i), or in respect of any combination of them is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

 

In reading the two sections together, it is clear that in determining whether parties are living on a bona fide domestic basis in the confines of a co-habitational relationship, it is not simply a matter of identifying the existence of the factors (a) to (i) above or any combination of them, but by interpreting these factors within the context of the facts of the case. And in the words of Justice of Appeal Warner in the case of Mohammed v. Albert [Mohammed v. Albert C.A. 165/2004]:

 

“It connotes ties pertaining to home, household and family affairs. Crucial factors would be society, support and protection. These are the hallmarks of domesticity.”

 

 

(i)   COMMON RESIDENCE; SHARED LIFE; CHILDREN; HOUSEHOLD DUTIES, REPUTATION

18. In the case before me the applicant contends that the relationship lasted for about seven years from 1996 to 2003, but the evidence does not support her claim. By paragraph 11 of his March 2007 affidavit the respondent claimed that in 1996 he lived at Railway Road Arouca and 4 ½ mm was in a dilapidated condition and unoccupied. The applicant replied to this allegation by repeating what she said in her first affidavit that 1996 was the time when the respondent started living with her, but by her affidavits she gave no details of their life together. She does not describe her daily activities in the home when the respondent allegedly came to live with her. In answering his denial to her claim that they lived together, which is the deciding element of her case, the applicant spoke about the contracting work they did together, the work she hired the respondent to do on 4 ½ mm, the alleged scheme to backdate the receipt for the purchase of the property and her planting of the land. She responded by giving explanations about everything else but their cohabitation, except to say that they did so. There is no evidence upon which the court can base four of the guiding factors mentioned above that is to say: (1) the nature and extent of common residence, (2) the degree of mutual commitment to a shared life; (3) the performance of household duties and (4) the reputation and public aspects of the relationship. For obvious reasons section 4(2) (g) [the care and support of children] does not apply.

 

 

(ii)   SEXUAL RELATIONSHIP, FINANCIAL DEPENDENCE INTERDEPENDENCE AND ARRANGEMENTS, OWNERSHIP USE AND ACQUISITION OF PROPERTY

19. The three remaining factors that is to say: (5) the existence of a sexual relationship, (6) the degree of financial interdependence and financial support and (7) the ownership use and acquisition of property are present in this case, but when juxtaposed against the facts are not determinative of cohabitation.

 

20. The respondent accepts that he and the applicant engaged in sexual intercourse and had become intimate even while the applicant’s marriage still subsisted, but that intimacy occurred within the context of the mutual attraction and closeness they held for each other, not in the context of husband and wife. The applicant does not deny that the respondent was a close family friend who had known her family (her father and mother) for many years. They in turn grew close and eventually became intimate. The evidence shows that they turned to each other in times of crisis. The respondent rescued her from her husband and she assisted him in his business affairs. They trusted each other and there is no doubt that there was some emotional interdependence but the evidence does not show that it was based on a co-habitational existence.

 

21. The applicant deposed that she and the respondent were partners in the contracting jobs he carried out. She claims she was not paid and that there was an arrangement as to how their respective portions of the “profits” would be disbursed. She also stated that the respondent bought groceries for the household, but I reject all these statements for reasons outlined in paragraphs 25 and 26 below.

 

22. An applicant’s burden to prove cohabitation on a bona fide basis is not to be taken lightly. The intention of Parliament in introducing the CRA was to give recognition to individuals who had aligned themselves to a committed union on a basis similar to that of husband and wife, but unlike a marriage where spouses merely need to rely on the fact that they are married to establish their marital union, cohabitants must travel a different route and carry a heavier load, if they are to successfully establish cohabitation. Cohabitants cannot simply vaguely mention one or two words or phrases related to the concept of cohabitation, in the hope that by the very mention of those words and phrases, cohabitation on a domestic bona fide basis is conveyed. The evidence must capture domestic life together, which is authentic and genuine in nature, so anyone reading the description of that life can undoubtedly conclude that the participants were true to the bonds of everyday family life, living together within a household. The applicant’s evidence falls short of this and it is therefore the judgment of this court that she has failed to prove that she and the respondent lived on a bona fide domestic basis.

 

 

THE PARTIES’ INTERESTS IN THE PROPERTY

23. Returning to the acquisition of and interests in 4 ½ mm: I accept that the parties both contributed to its purchase but not as a precedent to, pre-condition or post-condition of cohabitation. And although it is possible that a business arrangement such as the one I have found existed between the parties in purchasing the property, can be transformed into a mutual understanding of domestic intention, that is not the case here. It is my finding that the parties entered into a business transaction to acquire 4% mm, it remained abandoned for years until 2003/2004 when the respondent decided to rebuild it for his own use. He informed the applicant of his intention because he recognized her interest in the property, and when she found herself in trouble with her husband and needed a place to hide she turned to the respondent.

 

24. As far as contributions to the construction and improvement of the building, the applicant avers that she contributed a gift of $60,000, her savings of $10,000 and a further $6K, none of which was substantiated. How is the court to treat this unproved but otherwise pivotal evidence? There is nothing before me to verify what she has said, and therefore little, if any reliance can be placed on her claims.

 

25. The only source of income from which the applicant could have made any contribution was the salary derived from assisting the respondent with the construction contracts. She claims to have been a partner in the enterprise but I reject that statement. Her evidence is that in lieu of payment, her salary would be applied to the work to be done on 4 ½ mm. But even if I were to accept that evidence what details has she provided? What was the value of her portion? Did she get cash which was then used to purchase materials? Or did the respondent estimate the amount of wages she should have earned and himself purchase materials and pay for labour on the understanding that that was her contribution? What discussion did they have if any, about these arrangements? How much was in fact spent on the house? On material? On labour? If this were the applicant’s house would she not have been able to provide this information? No details have been given and the evidence given is too vague to make a determination of the existence of such or any arrangement as the applicant describes.

 

26. In my judgment the respondent’s evidence that the applicant was paid by the cheque drawn on her daughter’s name to save her from her husband’s wrath if he found out that she was working, seems more probable. How else would one explain the appearance of the daughter’s name on the cheques? The applicant said that the cheques represented money paid to her daughter, as the daughter also worked for the respondent, but this only came to light during the applicant’s cross-examination, whereas the respondent contended that he had paid the applicant via the cheques to her daughter in his very first affidavit filed on March 26, 2007. By her affidavit filed 18th September 2007, in answer to that evidence the applicant responded that the cheques represented her grocery allowance which were made out in her daughter’s name because she (the applicant) had misplaced her identification card and would have encountered problems cashing the cheques. She mentioned nothing about her daughter working for the respondent in that affidavit. Even if I accepted the applicant’s explanation (which I do not) there is no evidence about the applicant’s daughter working with the respondent.

 

27. Apart from the glaring inconsistencies in the applicant’s evidence, the name “Naradha Rampersad” [the name appearing on the cheques] does not appear in the Notebook kept by the applicant which contained the names of the workers paid by the respondent. I note that the book only contains information for August 2000 and the cheques exhibited were dated from 2001 to 2003.

 

28. It is my finding that the applicant was paid for her work with the respondent’s business and the cheques drawn in the name of her daughter represented those payments, but I am not satisfied that the applicant contributed to the improvement of 4 ½ mm. There is no doubt that she contributed to its purchase and there may be redress for recovery, but not under the CRA.

 

 

PROPOSAL FOR SETTLEMENT

29. Mrs. Seebaran-Suite proposed that the applicant be paid a lump sum to represent one-half the value of the property, and although there may be some merit in her submission it must be remembered firstly, that these are not matrimonial proceedings and section 10 (1) of the CRA, restricts a cohabitant to an adjustment that takes into account

 

1. the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the property and the financial resources of the partners;

 

In that regard I have found that the applicant has made no contribution save the $1500 which represents approximately 42% of the purchase price. Had it not been for the applicant, the respondent may not have benefitted from 4 ½ mm, in the way that he did or at all. Accordingly, I do not think it unfair to estimate the parties’ interest in the property in the proportions of 58:42 in favour of the respondent which would amount in broad terms to $75,600, in accordance to the Valuation Report. But this sum is not recoverable under the CRA because as I have held a co-habitational relationship did not exist between the parties.

 

30. It was also argued on behalf of the applicant that she be allowed to occupy half the lands that comprised the purchase. Similar suggestion was echoed by Mr. Wharton on the respondent’s behalf. And while those may be propositions for consideration between the parties I am unsure as to whether this court has the jurisdiction to make such an order for lands that clearly are the property of the State. Mrs. Seebaran Suite suggests that such an order can be made in personam as between the parties, but even if that were to be considered, it is not a relief that the applicant can claim under the CRA, even if I had determined that a co-habitational relationship existed.

 

31. Finally Mrs. Seebaran-Suite also made reference to the Magisterial order for maintenance under the CRA as proof of cohabitation, but I can only go on the evidence before me and I am not satisfied that the applicant had crossed the threshold to prove cohabitation.

 

 

CONCLUSION

32. The parties shared a long history, as neighbours and friends. Over the years the respondent hunted with the applicant’s father and ate meals prepared by her mother. That allowed him the opportunity to observe the violence that erupted between the applicant and her husband from time to time. He volunteered this information which the applicant did not challenge. In fact he provided much more details overall in his evidence than she did. Because of the long familiarity with each other the respondent’s version of events, that he gave her shelter at 4% mm when she sought refuge from her husband’s abuse seems credible. The respondent said that he had spoken to the husband in the past about his behaviour.

 

33. They supported each other in their endeavours. For example when the respondent claimed that the applicant approached him to doctor the receipt for the work done on 6 ½ mm to show that he was paid when in fact he was not, in order to improve her claim for a share in that matrimonial property; or when she approached him to help out with the purchase of 4 ½ mm; or the trust that the respondent placed in her to withdraw money from his account. They shared that kind of relationship where they would help out each other in a crisis. The respondent said as much in his cross-examination. He said of their relationship that: “We were very close. We used to do real good.” They did favours for each other.

 

34. When the situation warranted they engaged in clandestine activities to assist each other when the situation arose. Mrs. Seebaran Suite argued that while the respondent denied cohabitation he admitted that the applicant was a frequent visitor to 4 ½ mm. This is also borne out by the evidence of Maria Papan. Indeed these parties shared a special relationship but I am not convinced that it was co-habitational in nature as envisioned by the CRA.

 

35. Accordingly I order that the Application be dismissed.

 

36. I end by saying that there is evidence before the Court that merits the applicant pursuing relief under the Constructive/Resulting trust principles. That would necessarily entail filing fresh proceedings in the civil registry. The cost and time of this approach would be draconian to both sides. I therefore urge the parties to settle this issue between them as hinted to above (see paragraph 29) without resorting to further litigation.

 

1. RAMKERRYSINGH

JUDGE