Cheng vs Cheng
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
(FAMILY COURT DIVISION)
No. FH 01373 of 2007
BEFORE THE HONOURABLE MR. JUSTICE ROBIN N. MOHAMMED
Ms. Lynette Seebaran-Suite for the Petitioner
Mrs. Janice Clarence-Quamina instructed by Ms. Jozanne Quamina for the Respondent
INTRODUCTION APPLICATIONS AND PROCEDURAL HISTORY
- The Petitioner, Esha Ramlagan-Cheng (hereinafter referred to as the “Wife”) and the Respondent, Jerome Cheng (hereinafter referred to as the “Husband”) got malTied on the 9th April, 2006. The marriage broke down and an incident occurred on the 22nd July, 2007 which resulted in the Wife leaving the matrimonial home. She later filed for divorce and sought ancillary relief.
- By way ofher Form 8 Application for Financial Relief filed on the 14th August, 2007. the Wife seeks the following orders:
- a. Periodical and lump sum payments for her support;
- b. Such property settlement as the Court deems appropriate in relation to –
- Calcutta Settlement, Nurnber 1, McBean, Couva;
- Matrimonial home situate at Rowan Street, Balmain, Couva;
- Shares in and assets of JER Cheng Companies Limited;
- The furniture, fixtures and amenities in the said matrimonial home;
- On the 27th July, 2007, an ex-parte application for injunction by way of affidavit was filed by the Wife seeking preservation of certain furniture, fixtures and jewelry from certain premises situate at No. 51 Rowan Street, Balmain Village, Couva (hereinafter referred to as “the matrimonial home” or “matrimonial premises). On the 3(-P July, 2007, a Court Order was made granting the Wife permission to enter and search the matrimonial premises and all vehicles on the said premises. Injunctions were also granted permitting the Wife to remove certain items and to preserve furniture, fixtures and jewelry. After a futile attempt on the 31 st July, 2007, service of the injunctive order on the Husband took place on the 1 st August, 2007. On the 6th August, 2007, it was ordered that the injunction of the July, 2007 be continued. An undertaking was given by the Wife to list all items recovered by law or service of the injunctive order.
- The Wife filed her Petition for Divorce on the 7th August 2007.
- On the August 2007, the Wife filed a Notice of Application for an Order continuing paragraph  of the injunction granted on the 30å July, 2007 and for the costs of the exparte application to be provided for. Also filed on the 9th August, 2007 in support of the Wife’s application for the continuation of the said ex-parte injunction was the affidavit of attorney-at-law, Leera Bahadoorsingh. An affidavit of attorney-at-law Raymond Sowley was filed on the 10th August, 2007.
- As was stated above, the Wife filed her FOITI 8 Application for Financial Relief on the 14th August, 2007. The Husband filed an affidavit on the 14th August 2007, seeking, inter alia, the discharge of the injunction.
- On the 15 August, 2007, it was ordered that the injunction of the 30th July, 2007 be continued. The following undertakings were also given by the Wife:
(a) Undertaking not to damage, destroy, pledge, mortgage, sell or otherwise dispose of the items of furniture, fixtures and household amenities listed in the Schedule thereto as well as certain named items;
(b) Undertaking in the event that sales are secured at the agreed wholesale prices for the frozen foodstuff listed in the affidavit of Raymond Sowley filed on the 10th August, 2007, the proceeds thereof shall be placed into a bank account separate and apart from any business account, particulars of which are to be provided, set up specifically for the purpose of holding the same, and that there shall be no deductions therefrom save and except the expenses directly inculTed from the sale of the said items;
(c) Undertaking that thé Applicant keep detailed accounts of the proceeds of sale of the items referred to above.
8. On the 20th August, 2007, the Wife filed an affidavit pursuant to a direction given by Tam J. on the 6th August 2007 wherein she gave the undertaking to list all items which she recovered from the matrimonial premises upon service of the injunctive order of the 30th July, 2007.
9. On the 17th September, 2007, the Husband filed his Acknowledgment of Service and two affidavits. The Wife filed her affidavit in support of her application for financial relief and in response to the Husband’s affidavit of the 14th August 2007 on the 6th November, 2007. On the 7th November, 2007, the Husband filed his Form 9 Evidence of Financial Position in questionnaire seeking maintenance for himself.
10. On the 8th November, 2007, the Court directed that a valuation report be commissioned on the matrimonial premises by Mr. Roy Gumansingh of Royce Realty Ltd. It was further ordered that the cost of the said valuation be shared equally and that the parties agreed to be bound by the said valuation. It was also ordered that the injunctive relief be continued.
l l . The Wife filed a supplemental affidavit on the I I th April, 2008. On the 14th April, 2008, an affidavit was filed by Shanti Phulmati Ramlagan (“Shanti”), the mother of the Wife, seeking to be joined as a party to these proceedings. The Wife’s mother seeks reimbursement of funds allegedly loaned to the parties. A further affidavit was filed by the Husband on the 15 ff April, 2008. On the 15 th April, 2008, an affidavit was also filed by Nateram Ramlagan, the Wife’s father, in support of the Wife’s Form 8 application and in support of her application to join Sushilla Pyari Cheng as a party to the proceedings.
12. On the 16th April, 2008, the Wife filed a Notice of Application seeking to join Sushilla Pyari Cheng (“Pyari”), the Husband’s mother, as a party to the proceedings. A Notice of Application was also filed on the 16th April, 2008 by Shanti Phulmati Ramlagan and Nateram Ramlagan applying to intervene in the proceedings. A supplemental affidavit was filed by Shanti Ramlagan on the 1 0th July, 2008.
13. On the 15 th July, 2008, a decree nisi of divorce was pronounced. On that date, permission was also granted to the Husband to file further evidence in relation to proceedings of domestic violence commenced in the Couva Magistrate’s Court on the 7th July, 2008 as well as to place on record the offers made without prejudice or otherwise by him. The Court also ordered that upon the undertaking given to the Court not to harass, intimidate, molest, assault, abuse or use offensive, threatening or abusive language, the proceedings for domestic violence commenced at the Couva Magistrate’s Court on the 7th July, 2008 be discontinued, discharged or withdrawn. The decree nisi was made absolute on the 4th September, 2008.
14.A further affidavit was then filed by the Husband on the 15th September, 2009.
15. Upon learning from attorney-at-law for the Husband that a claim had been filed in the High Court of Justice, San Fernando by Pyari, the Husband’s mother, against the Wife regarding the issue of a loan taken out with the matrimonial property as security, the Court ordered on the 29th October 2008 that the Wife’s individual Notices of Application both filed on the 16th April. 2008 be staved until the hearing and determination of the claim filed in the High Court of Justice San Fernando, dealing with the same issue.
16. On the 1 I th February, 2009, it was ordered that the injunction of the 30å July, 2007 be continued.
17. By way of her Notice of Application filed on the 12th February, 2009 the Wife sought an order for an avoidance of disposition, an order to join Matthew Foods Ltd. as a party to her application for ancillary relief, an order for a professional valuation of the matrimonial premises and costs. On 13 th February, 2009 an affidavit was filed by one Hugh Caesar, purportedly a Certified Accountant.
18. On the I St December, 2009, the Husband filed an affidavit in opposition to the three applications filed by the Wife, two of the lé April, 2008 and one of the 12th February 2009. Also filed on the 1 st December, 2009 in opposition to the said applications of the Wife were the affidavits of Gnai Wah Cheng, the Husband’s father and Pyari Cheng, the Husband’s mother. It was also ordered on that date that the three affidavits filed on behalf of the Husband on the 1 st December, 2009 do stand.
19. On the 14th July, 2010 permission was granted to Shanti Ramlagan to intervene in these proceedings and for her to use all her affidavits filed in these proceedings. Permission was also granted to the Wife to withdraw her application filed on the 16th April, 2008 in relation to seeking to have Pyari Sushilla Cheng joined as a party to the proceedings. Costs of that application were reserved. Pemission was also granted to the Wife to withdraw reliefs (2) 1 and (3)2 of her Notice of Application of the 12th February, 2009. Costs were also reserved on this aspect of the proceedings. The Court also permitted the application by Nateram Ramlagan filed on the 16th April, 2008 to be withdrawn and issues with respect to the costs thereof were reserved. Closing written submissions were filed on behalf of the Husband on the 7th March 2013.
The Wife’s Case
20. The parties were married on the 9th April, 2006. After their marriage, the parties cohabited at the No. 51 Rowan Street, Balmain, Couva (“the matrimonial premises”). The matrimonial premises are owned by the Husband’s mother, Pyari Sushilla Cheng.
21. According to the Wife, the Husband attained only a high school education. She is a graduate of the University of the West Indies where she obtained a Bachelor of Sciences degree specializing in accounting. The Husband, she says, is the son of a businessman, Gnai Wah Cheng, who is a variety store proprietor. His father trades under his company, WJS Enterprises Ltd and is VAT registered.
22. The Wife contended that the Husband’s mother, Pyari, is unemployed and is separated from his father. She claimed that as far as she is aware, Pyari has no current source of
Seeking to join Matthews Foods Ltd. as a party to her application for ancillary relief
Seeking an order for a professional valuation of the matrimonial premises income although she is the part owner of commercial premises at Charlotte Street, Port of Spain.
23. According to the Wife, since she has known the Husband, he has not been in salaried employment. Rather, he has been performing small construction projects as a subcontractor. As such, she said that his income is sporadic and since their marriage he has been unable to contribute to the support of the household. The burden thus fell on her tc financially provide for not only the Husband and herself, but also his mother. She said that since her marriage, she used her salary from the hardware to defray all of the Husband’s and his mother’s expenses.
24. The Wife said that her father is the proprietor of Ramlagan’s Hardware and of Sunspree Resort in Tobago. She said that for several years she has been employed at the hardware and hotel in various capacities. Her parents are divorced and before her marriage tc Jerome (her husband) she lived with her mother at 103 Main Road, Balmain, Couva.
25. The Wife contends that prior to meeting the Husband she commenced the business of importing “Vegefarm” frozen vegetarian products. She was able to import the goods with the financial assistance of her mother, who she says spent hundreds of thousands of dollars on same. She eventually decided to “cut out the middle man”, being her supplier in New York, and import the goods directly from Taiwan. When her operation expanded it became necessary for her to form a company which she said she was tricked into forming in the Husband’s name. As a result, all documents concerning the importation from Taiwan are in the name of the company, JER Cheng Limited. She and the Husband are named as its incorporators and directors and she was appointed as its corporate secretary.
26. The Wife maintains that the Husband never contributed to the said business, financially or otherwise. She contends that she ran the business and the Husband proved most unwilling to participate in the work involved. As her operations broadened, supermarkets began demanding VAT registered bills and in March 2007 the Husband asked his father (“Gnai Wah”) to permit them to us his VAT stamp and his company name while she got VAT registered and she commenced that process. The arrangement was that she would pay over to Gnai Wah the VAT received. She stated that it is her intent to do so for the two VAT periods that had elapsed so far.
27. She said that monies from the sale went into an account in her name at Royal Bank of Trinidad and Tobago Ltd (“RBTT”) Couva and from that account she paid for two cold storage units, the glass-door freezer and the second container of goods. She also paid a deposit on a piece of land in the parties’ joint names at Calcutta No. l. She stated that she is paying the installments for the said purchase of 36,039 with no contribution from the Husband. A loan of S750,000 was taken of which the cost of the land was $450,000. She said that of the remainder of the proceeds, $30,000 was spent to pay off the Husband’s credit card, a debt of S 19,000 owed to Gnai Wah, closing charges and partial payment for the second container. The loan was taken in her name, secured by the matrimonial premises. According to the Wife: documents evincing payments by the Husband relating to various aspects of the business relate to sums originally provided by her.
28. An agreement was also entered into by the parties to purchase a parcel of land in Freeport for S411,000. The Wife stated that she paid a deposit of $61,000 on that parcel from the proceeds of the Vegefarm business.
29. According to the Wife, her father contributed to the completion of the matrimonial premises by permitting a credit to Pyari and the Husband of approximately $400,000 in building materials. The parties and Pyari took up occupation of the matrimonial premises upon the return from their honeymoon. The Wife further claimed that the premises were completely furnished by her relatives in the form of wedding gifts. The Husband’s father bought them a stove and refrigerator.
30. The Wife complained that the Husband is a man of violent and ungovernable temper and she soon discovered that he would not hesitate to intimidate, threaten and bully her to get his own way. She said that there were several incidents of threatening behaviour culminating in the events ofthe night of the 22nd July, 2007 when the Husband assaulted her and ran her out of the house. She said that she suffered bruises from that incident.
31 . According to her, she had to leave without securing the records of her business, personal effects or anything else. She sought refuge with her mother. The Wife said that the Husband failed to allow her to secure her files and effects. Even though she was able to enter the premises and remove the goods and storage devices and other belongings by way of the injunction of the 30fr July, 2007, the Wife complains that she was unable to locate any of the documents from her business and said that she discovered that the password relevant to the business had also been changed. She further claims that the Husband, who spoke ill of her products to clients, is now carrying on the frozen
vegetarian products business of JER Cheng Ltd. under the name of the company Matthew
The Husband’s Case
32. According to the Husband, the parties met in 2002 while his mother’s house at 51 Rowan Street, Balmain, Couva was being constructed. He would purchase materials from Ramlagan’s General Hardware which is owned by the Wife’s father.
33. Around 2004, the parties began courting. Coincidentally, the parties are both vegetarians and they began discussing the possibility of importing vegetarian products. The Husband said at that time, he was working at his mother’s variety store on Charlotte Street and also operating as a small contractor.
34. He claimed that he gave up his business as a small contractor in February 2007 to concentrate on the vegetarian business hereinafter referred to. The Husband claimed that he has a Certificate in Electrical and Electronics Engineering from the John Donaldson Technical Institute and said that he has undertaken small building projects for family members. He therefore denies only having a high school education and having a sporadic income.
35. The Husband maintains that contrary to the Wife’s assertions, he was involved in the frozen goods business. The first set of goods to arrive was stored at his grandmother’s premises and initial sales were done using his and his mother’s cars. He and the Wife drove to various parts of the country to attract customers and do deliveries. The Husband says that he contributed to the business financially and that the freezers used to store the frozen goods were his.
36. According to him, the parties discussed the incorporation of a limited liability company, JER Cheng Companies Limited. Until this time, he trusted the Wife with all of the earnings from the business. He gave her all the cheques and cash for deposit. He said that she put all of those monies into her personal RBTT account and had full control over same. If he ever asked for money from that account, she subjected him to interrogation.
37. JER Cheng Companies Limited was incorporated on the November, 2006 and he maintains that there was no trickery on his part about that company. According to the Husband, JER Cheng Companies Limited is a viable company. He said, however, that he
fears that the Wife has been depositing monies received from the business into her own account.
38. On the 10th July, 2007 on the Wife’s insistence, Vegefarm Limited was incorporated. He said that he was again included by the Wife as a director with the intention of them having equal shares in that company. The business name Vegefarm was deregistered by her. The Husband said that they decided to then import a container from Taiwan and maintains that he was instrumental in this process, both financially and otherwise.
39. He denies the Wife’s claim that she had to maintain him and his mother. According to him his mother has her own source of income from the sale of her business as well as rental income. Further, his father assists her financially although they are divorced. She also benefits financially as the franchise holder and producer of the Ms. India Caribbean World pageant.
40. According to the Husband the monies from the loan, which the Wife took using his mother’s property as collateral, were not used to defray any debts on his part. He admitted that his father loaned them $19,000 for the business but has since been repaid. The Husband claimed that the Wife used most of the monies from the loan for her own devices. With respect to the Calcutta property, the Husband said that the deposit and legal fees were paid for from his personal account.
41. He denies the allegations of violence made against him by the Wife. Rather, he contends that the Wife is an extremely jealous and possessive person. She did not like him engaging his relatives and would throw tantrums, cuff and scratch him and attempt to break items in the home. She would also telephone his father, who has been very supportive of her, in an attempt to get him to intervene.
42. On the 22nd July, 2007, the Wife became angry because he had been discussing the possibility of expanding their Vegefarm business to London. The Wife began to quarrel highlighting that she was not doing any business with his family and threatened to email the suppliers in Taiwanfto order another container of goods. She further threatened to inform them that she was his wife and was part of the business. He begged her not to do that as oriental people do not like any kind of confusion and it would spoil his relationship with the suppliers, She physically attacked him and threw solid objects at him before leaving the house, one of which hit him. He deposed that he did not put her out of the house nor did he prevent her return.
43. According to the Husband, the Wife returned to the home on the 23 rd July with his father to collect whatever she wanted. She never demanded any documents and he even went to lunch with her father at his invitation to try to work things out. He never asked about any documents that the Wife requested.
44. The Husband said that on the 2+ July, 2007 the Wife sent a letter to all of their customers indicating that he was no longer authorized to transact business on behalf of VegeFan-n or JER Cheng Companies Limited or collect any monies on behalf of same. This was before any order was obtained from the Court. Upon that revelation to him by his customers he issued a similar letter to them to protect himself The Husband denies the Wife’s claim that he tried to sell off the stock.
45. He said that when the injunction of the 30th July, 2007 was served on him, his freezers were damaged when they were dismantled. He said that the inventory taken on that day has a value of $457,036. He said that he and the Wife had completed that stock taking on the 22nd July, 2007. Further, he said that he and the Wife had approximately $125,518.25 outstanding from customers at the time of the execution of the Order and he fears that she has been collecting such monies.
46. From the evidence, the main issues which arise for determination are as follows:
(a) Whether the Wife is entitled to an interest in the matrimonial premises situated at Rowan Street, Balmain, Couva?
(b) How should the Calcutta property be shared between the parties, if at all?
(c) Whether the Freeport property may be considered a matrimonial asset available for distribution between the parties?
(d) If possible, how should the shares and assets in JER Cheng Companies Limited be divided between the parties?
(e) Whether Matthews Foods is the same as JER Cheng Companies Limited and should the Court grant the Wife a share of same?
(f) Whether the issue of the loan from First Citizens Bank Limited to the Wife and Pyari Cheng should be considered in this matter and how does it affect the issue of property settlement between the parties?
(g) Whether monies were advanced by Shanti Phulmati Ramlagan to the Wife for her use and benefit or to the parties jointly or to JER Cheng Companies Limited? If so, should she recover same and from whom?
(h) Whether the resolution of the civil claims filed by the father of the Wife debars the Wife from claiming that such sums be characterized as advances on her behalf?
(i) Whether the sale of seized goods property has been accounted for?
(j) How should any monies derived from the sale of such goods be awarded?
(k) Whether the Wife is entitled to periodical payments and lump sum payments for her support or at all? If so, what ought to be the quantum of such awards? (l) Whether the Husband is entitled to maintenance?
APPLICABLE LAW LEGAL PRINCIPLES AND ANALYSIS
47. The Wife seeks property adjustment orders and orders for financial provision. The powers of the Court to make such orders are derived from sections 24 and 26 of the Matrimonial Proceedings and Property Act Chap, 4S:51 (“MPPA”).
48. Section 24 of the MPPA gives the Court the power to make orders for financial provision for a party to a marriage, including a lump sum. By way of section 26 of the MPPA, the Court may make orders for the transfer and settlement of property, Section 27 of the MPPA sets out the matters to which the Court is required to have regard in determining what orders to make under sections 24 and 26. More particularly, section 27 requires the Court to have regard to all the circumstances of the case including the following factors:
(a) the income earning capacity, property and other financial resources which each par4′ has or is likely to have in theforeseeablefuture;
(b) the financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeablefuture;
(c) the standard of living enjoyed by thefamily before the breakdown of the marriage
(d) the age of the parties and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caringfor the family; (g) any order made under section 53;
(h) in the case ofproceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit …which by reason of the dissolution or annulment ofthe marriage, that party will lose the chance of acquiring.
49. The “tailpiece” to section 27 of the MPPA goes on to require the Court to exercise its powers so as “to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. “
50. In the English case of White v. White3 the House of Lords was at pains to point out that no legal presumption of equality of division exists when awarding ancillary relieE That being said, the House of Lords then went on to state that a judge’s tentative views should be checked against the yardstick of equality of division prior to arriving at a final decision. It is only if there is good reason for so doing should equality of division be departed from.
51. However, the Court of Appeal in Persad v. Persad4 drew a distinction between the “new” English approach to section 25 of the 1973 UK Matrimonial Causes Act and section 27 of the MPPÅ in Trinidad and Tobago. In relation to the latter, amendments were made to the corresponding section in the English Act and the tailpiece was removed. Accordingly, it was this removal that informed the new approach to the UK section 25 – that of achieving a fair outcome. However, such removal has not taken place in Trinidad and Tobago and so there is no basis for adopting the “new” English approach. Rather, “the proper approach J:nder section 27 is to ask, having had due regard to all the circumstances of the case including the eight considerations listed, how is a court to exercise the court’s powers in a practical and common sense way, having due regard to all relevant circumstances and conduct in a manner that is just and equitable, so as to place both the husband and wife and where relevant a child in thefinancialposition they would have enjoyed if the marriage had not broken down and each party had properly discharged theirfinancial obligations and responsibilities .
52. The approach laid dovwrn in Persad was again reinforced by the Court of Appeal in the recent case of Centra Marai v Dave Marai.
53. Bearing in mind the aforementioned law and legal principles, I now turn to a consideration of the section 27 factors in light of the evidence.
(a) Income, Earning Capacity. Property and Other Financial Resources
Income and Earning Capacity
- The Wife works as a manager at a branch of her father’s hardware store. She indicated at trial that she now earns a salary of SLLLQ per month. According to her, she no longer
3  1 AC 596
Civ. App. No. 130 of 2008.
5 Paragraph  of Persad v. Persad
Family Appeal No. 009 of 2013 per the judgment of Jamadar JA carries on the business of importing frozen goods since, as she alleges, the Husband has effectively prevented same by carrying on the same business via another corporate vehicle, utilizing her suppliers and clients.
55. The Husband indicated at trial that he assists in his parents’ business. He then indicated that he is “like the manager or something” in their business. He gave no indication of any salary earned from this business. I note that in his Form 9, the Husband indicated that he was self-employed and involved in the distribution of vegetarian products through Vegefarm Limited and JER Cheng Companies Limited with his partner, the Wife. He indicated therein that he earned $30,000 per month from the business. No salary was stated from his involvement in Matthew Foods Limited (such involvement which I note, was denied by his mother only to be countered by his admission of same). I am of the view that there is no evidence that either party continued the business of JER Cheng or Vegefarm Limited after the breakdown of the marriage apart from the Court ordered sale of the stock. Further, I note that the Husband claimed not to have continued his small contracting business since 2007.
56. Accordingly, his only current employ is at Matthew Foods Limited and I do not believe that his current “assistance” provided to his parents in that business results in “no” financial profit to him. Even if he does not earn a salary per se, I think it is more likely than not that he partakes in the profits of same. Should Matthew Foods Ltd. be as profitable as the vegetarian products business in which he was involved during the marriage, I do not doubt that the Husband would be sharing in quite handsome profits derived from same. In that regard, I note the Husband’s father’s testimony regarding his getting involved in the frozen vegetarian products business because of its potential. So, assuming things have not changed, and there is still a high demand for such products, Matthew Foods may well be on a similar trajectory as the business that was carried on during the marriage.
57. Prior to the breakdovvn of the marriage the Wife was involved in the business of selling frozen vegetarian products. Accordingly, she would have some experience as a businesswoman. It is not disputed that at one point that business was quite profitable and had the potential to bring in large sums of money. As stated above, the Wife claims that this avenue of selling such products has now been stifled by the creation of Matthew Foods Limited. This, however, is disputed by the Husband and his parents who deny usurping the business of JER Cheng Companies Limited and simply claim to have seized a business opportunity as it arose.
58. In addition to managing the vegetarian product business and having worked in her father’s hardware store, the Wife also assisted with overseeing the father’s hotel, Sunspree Resort, in Tobago. She was also involved in that business in a managerial capacity though she said that such involvement eventually came to an end. Accordingly, with her experience as a businesswoman, obtaining work in a managerial. capacity shouid the need arise should not be difficult for her. In any event, I note that since she completed university, the Wife has always been involved in her father’s business, and barring any unforeseen circumstances, there is nothing to suggest that the sanctuary of such employment would be withdrawn from her.
59. Moreover, in the unlikely event that such were to occur, the Wife is not someone devoid of academic qualifications. Rather, I note that she has a Bachelors of Science degree specializing in Accounting and as such, she should be able to find employment within that field.
60. On the evidence, it does not appear that the Husband is as academically advanced as the Wife. The Wife claimed that the Husband has no more than a high school education. He denied this, claiming that he has a Certificate in Electrical and Electronics Engineering from John Donaldson Technical Institute. However, I note that the Husband, who quite eagerly displayed many documents in support of many aspects of his case, failed to produce this Certificate.
61. Nevertheless, the fact that the Wife’s academic qualifications may exceed those of the Husband does not put him at any serious disadvantage insofar as his earning capacity is concerned. The Husband has carried out some construction projects as a small contractor, although such jobs appear to have been limited to friends and family. That being said. surely the Husband, through his involvement in Matthew Foods Limited, has the ability to profit greatly from this venture. In the evidence, it emerged that his parents were business owners previously involved in variety store ownership, nothing in the nature of frozen vegetarian products. Contrary to his vague claim of being the “manager or something like that”, I believe that the Husband is very much involved in Matthew Foods Ltd., if not the backbone of that enterprise and as said before, I do not believe that he merely “assists” in that business with no financial gain accruing to him.
The matrimonial home
62. For the duration of their mariage, the parties resided at No. 51 Rowan Street, Balmain, Couva. It is not in dispute that this property is owed by the Husband’s mother, Pyari. It is also not in dispute that this property was incomplete and had remained unoccupied prior to the parties and Pyari moving in upon the former’s return from their honeymoon. In her affidavit of the 27th July, 2007, the Wife claimed that from the time of their marriage, she and the Husband were the only occupants of the home. This statement was not however accurate as it was revealed that the parties, along with the Husband’s mother moved into the said home.
63. The Wife seeks an order for property settlement in relation to the matrimonial premises. The legal title to the property being vested in Pyari (a third party’s name), the issue to be resolved is whether she has acquired some beneficial interest in the property via trust, whether constructive or resulting.
64. The findamental question to be asked is whether there was any agreement, arrangement or understanding, whether express or implied, reached between the parties and Pyari that the property is to be shared beneficially. The finding of any such agreement, arrangement or understanding gives rise to a constructive trust or a proprietary estoppe1, The burden rests with the Wife to establish same and, on the evidence, I am not convinced that she has managed to discharge that burden.
65. Pyari stated that she merely allowed the parties to live in her home and never promised them that they could live there indefinitely. She said that she never intended for her home, on which she had spent hundreds of thousands of dollars, to be theirs. She said that when the Wife told her that she was going to take a loan to purchase a property where their matrimonial home would be, she did not hesitate to lend support by mortgaging her home. She stated that if she had intended to give them her home, she would have done the transfer there and then rather than pledging her home to the bank at that time in her life,
66. During cross-examination, the Wife admitted that Pyari never actually came out and stated that she (Esha) had a share in the house. She claimed however that Pyari told her that the matrimonial home was where she (Esha) was going to live for the rest of her life and make it her home. I note however that this alleged statement by Pyari was mentioned by the Wife for the first time at trial. There was no mention of such in her affidavit evidence. In the circumstances, I do not believe that the Wife is telling the truth insofar as she claimed that Pyari made that statement to her. In any event, even if Pyari did in fact say so, I find that this statement in and of itself does not amount to an express intention on Pyari’s behalf that the Wife should acquire an interest in the home.
67. There is nothing to suggest that Pyari’s intentions went beyond allowing the parties reside in the matrimonial home. At trial, Pyari explained that she allowed them to reside there until they were able to acquire their ovm place to live. Indeed, they only resided there for approximately 15 months and during that time they had purchased the Calcutta property. The Wife claims that the latter was purchased since the Husband wanted to put up apartments there. Again, this was a novel claim at trial as she did not mention such in her affidavit evidence. This was not a situation where the parties had resided in the matrimonial premises for years on end with no evidence of having purchased any other property in their own names or so forth from which it may be easier to come to the conclusion, taking all the circumstances into account, that there was a common intention that they acquire an equitable interest in the property. In any event, even then circumstances may still be such that all that what was contemplated went no further than permission to reside rather than the acquisition of some beneficial interest. Having considered all of the above, the Wife has failed to satisfy me that a constructive trust was indeed established in either her or the Husband’s favour.
68. Having concluded that there was no agreement, arrangement or understanding to convey a beneficial interest to the parties, the question is whether an equitable interest in the property was created in any other way. In that regard, I note the Wife’s claim that her father provided building materials in the sum of approximately $400,000 for the completion of the matrimonial premises. This claim was supported by her father in his affidavit evidence. Therein, he claimed that his business, Ramlagan’s General Hardware and Electrical Limited, supplied goods and services to the tune of $338,282.04 in the completion and renovation of Pyari’s premises. I note that the figure stated by the father was closer to $300,000 than the $400,000 approximated by the Wife. The Wife’s father did not however present himself for cross-examination and so the veracity of his claims was not tested. In the circumstances, little weight can be placed on his affidavit evidence without more.
69. In her affidavit evidence, Pyari claimed that she built her dream home using the proceeds of the sale of the business Sushilla’s, gifts of money from her ex-husband, rental income and monthly maintenance from the said ex-husband. She said that she did it all using cash. She claims that when the Husband (her son) informed her that he was getting married she need only to do “cosmetic improvements” to the property. She said that her son oymed a construction business and since it was his wedding, he assisted her with some of those works. She denies ever taking materials on credit from Ramlagan’s hardware to renovate or build her home. She said that she never signed any contract with him, nor any bills or invoices for materials.
70. The Wife claims that building materials provided from her father assisted in the completion of the matrimonial home. Pyari claims that only “cosmetic improvements” were made. During cross-examination, Pyari admits to only occupying the matrimonial home when it was completed. She admits that when the parties decided to get married, there was a “push” to complete the matrimonial home. She claimed that she could not quite remember the cost of completing the matrimonial home then eventually admitted that the sum to complete would have been less than in excess of $400,000. Pyari also stated during cross-examination that it was the Husband (her son) who managed the completion of the home as he is in construction. She went on to say that “he’s the one who did the building and he did the cosmetic, you know the interior and stuff like that. ‘ Pyari never lived in the house prior to it being completed when the parties decided to get married, She admits Jerome did the building and the cosmetic. This suggests to me that more than just “cosmetic improvements” were done as she put it in her affidavit evidence. Pyari resided at her mother’s home despite having her own premises. She moved into sarne with the parties upon it being completed. This suggests to me that the improvements done were of the nature to bring the house up to a fully habitable standard and that it may not have been so prior to their impending nuptials.
71. When cross-questioned as to how this final “push” to complete the construction of the home was funded, Pyari first claimed that she and her husband would give their son cash and he would handle it. She later admitted that her husband did not contribute any of the approximate $400,000 to finish the structure. She then confusingly stated “part of it” Attorney for the Wife then clarified that she was questioning her regarding the final push to complete the house before the parties got married and Pyari then conceded that the cost of that final push for construction was born by advances of material from Ramlagan’s hardware. This was what was contended by the Wife.
72. While she admitted that materials advanced from Ramlagan’s Hardware allowed for the completion of the matrimonial home, she denied opening any account there and said that Jerome dealt with it and eventually the house was completed. During cross-examination, the Husband was asked whether S400,000 of the materials that were used to finish off the home were taken on a line of credit from Ramlagan’s Hardware. He responded that “not the whole four hundred thousand was taken to finish the house “. I note that he did not deny the sum taken but rather the extent to which such monies were put towards completion of the matrimonial home. He claimed to have done other jobs and said that “the account would build up “, presumably referring to the credit account at Ramlagan’s Hardware.
73. Having considered the evidence, I accept the Wife’s evidence insofar as she claims that the matrimonial home was completed with materials advanced from her father’s hardware business. I further find that those materials would have been to the tune of hundreds of thousands of dollars. Accordingly, I find that this contribution by the father amounted to a substantial indirect financial contribution on the Wife’s part to the construction of the home which, ordinarily, would entitle her to an equitable interest in the said home. However, the Wife’s father sued the Husband and Pyari for the sums loaned to them and it is not disputed that he obtained judgment against them in his favour. At trial, Pyari admitted to having paid off the total judgment debt owed to the Wife’s father. The Husband’s judgment debts remain outstanding. Accordingly, the Wife’s father has recouped monies loaned from Pyari and with respect to the Husband, it is open to him to seek to enforce his judgment and recoup what the Court determined is owed to him. In the circumstances, to allow the Wife to claim an equitable interest in the property for contributions which her father made but has managed to recoup or is entitled to recoup via enforcement would result in overcompensation and the justice of the case would not be met. Accordingly, I find that in light of her father’s civil actions and subsequent awards ofjudgment in his favour, she is not entitled to an equitable interest in the matrimonial premises.
74. I note that the Wife claimed that certain receipts in relation to advances made by her father were not allowed into evidence at trial due to their being statute-barred. However, such receipts were not tendered into evidence by her before this Court and therefbre are not factored into the determination of this issue.
75. This property was purchased in the parties’ joint names. According to the Wife, the cost of this land was S450 000 and she said that she paid the deposit on same. In her affidavit of the 27th July, 2007, she stated that she is paying the instalments for the said purchase. In his affidavit of the 14th August 2007, the Husband claimed that the deposit and legal fees for the Calcutta property were paid from his personal account.
76. In support of his claim, he exhibited at “J.C.IO” copies of four cheques by him, three made out to R. C, Chadeesingh and Company and one to Soodie Jaikaran. He also exhibited three receipts from R.C. Chadeesingh made out to himself and the Wife. The
receipts refer to the sums being paid for the “deed of conveyance”, “agreementfor sale” and “search and agreement for sale”. In her affidavit in response, the Wife stated that while it is not untrue that the deposit and legal fees were paid out of the Husband’s personal account, she said that the funds paid out therefrom were furnished from the First Citizens Bank (“F.C.B.”) loan which was taken in her name, At trial, the Husband admitted that payment for the Calcutta land came directly from the loan monies.
77. The purchase of the Calcutta property was funded from the S750 000 loan which the Wife had taken out in her name from F.C.B. Though the Husband stated that the deposit and legal fees came from his account, I believe the Wife insofar as she claimed that such funds came from the loan monies. From the evidence, both parties admit that the said loan was used to fund the purchase of the land and I find it more likely than not that those monies would have been used to meet the full costs of the purchase of the land, inclusive of the deposit and legal fees.
78. Pyari was the guarantor of that loan with the matrimonial home serving as collateral to same, I find that the Calcutta property was purchased exclusively out of the F.C.B. loan. It emerged that the Wife was meeting monthly loan repayments out of the very loan taken and in any event she ceased to pay such instalments in July 2007. As a result of that default, Pyari was called upon to pay the entire sum of by the baruk. She and her husband paid off the loan and thereafter took a second loan. Pyari has since sued the Wife for such monies and that civil action was stayed pending the outcome of these Family Court proceedings.
79. It was the Husband’s mother and father who financed the purchase of the Calcutta property as they and not the Wife, paid off the loan from which such purchase was funded. Thus, I find that though legal title to the Calcutta property is held by the parties, they hold same on trust for the Husband’s parents, Pyari Cheng and Gnai Wah Cheng. It is the Husband’s parents who hold the equitable title to the property.
The Freeport Property
80. In her affidavit of the 27th July 2007, the Wife stated that she and the Husband entered into an agreement to purchase a parcel of land at Freeport for $411 000. She stated that she paid a deposit of S61 000 on that parcel of land from the proceeds of Vegefarm. In his affidavit in response of the 14th August, 2007, the Husband did not challenge this claim. At trial, the Wife stated that the $60 000 of the F.C.B. loan monies went towards the Freeport Land. She stated that they “lost that” because the contract fell apart. She further stated that she believed that in legal fees was also paid in relation to this
land. She said that she was however umable to recall the purchase price of the Freeport property. She said that the marriage broke down and the sale could not be completed. According to the Wife’s testimony, approximately consisting of a deposit and legal fees was paid with respect to the Freeport property.
81. At trial the Husband stated with respect to the Freeport property that “we paid the guy some money” [Emphasis mine]. When asked whether they paid him S61 000 he said that that was not so initially and said that he thinks it was S40 000. He said that they had been trying to get a loan or trying to make up the money but could not do so before the agreement expired and so he said that he gave the guy extra for him to extend the agreement. He later stated that the two tranches of deposits for the Freeport land came from his personal account. He claimed that the Wife wrote the cheques and he just signed it. This was a novel claim by the Husband at trial as he did not challenge the Wife’s statements regarding the Freeport property in his affidavit in response of the 14fr August 2007, though I note by contrast that he was careful therein to state his alleged contribution towards the Calcutta property. It is thus more than passing strange that the Husband would set out in his affidavit evidence what he alleged contributed financially towards the Calcutta property and make no mention of any financial contribution by him towards that in Freeport, only to do so for the first time at trial. In the circumstances, I accept the Wife’s testimony that monies going towards the purchase of the Freeport property came from loan monies and do not believe the Husband to be telling the truth insofar as he claimed to have financially contributed towards the purchase of same. Though the Wife claimed in her affidavit evidence that she paid the deposit for the Freeport property out of the proceeds of the Vegefarm business, as discussed below, what I find to have occurred is that many if not most of the expenses were met by her out of the loan monies as opposed to earnings from the business. I do not see why the Freeport property purchase would have been any different and on a balance of probabilities find it more likely that the purchase of that too would have come from the loan monies.
82. From the evidence, it appears that negotiations for the purchase of the Freeport land reached no further than an agreement for sale. The Wife claims that the monies invested towards the purchase of the Freeport land were lost. There is no evidence that any action has been brought against the vendor for specific performance of the agreement for sale or for a return of the deposit, having paid monies towards the purchase of the Freeport land. In the absence of any equitable or other interest of the parties in the land in question having been adjudicated upon, the Freeport property cannot be considered a matrimonial asset available for distribution between the parties.
The frozen vegetarian products business
83. There is much dispute between the parties concerning the start-up of and contributions made towards this business, According to the Wife, the vegetarian products business was her idea and she sourced all the necessary funding on her own and carried out all the relevant work without any assistance from the Husband. She claims that she did her research and made contact with the New York agents selling Vegefarrn products. She, along with her mother and a sister, visited New York in 2005 to meet with the agents. The Wife said that she commenced the business prior to her marriage to the Husband. The first shipment of goods arrived on the 10th October 2005, In support of her claim, the Wife produced at “E.R.I” a copy of a Customs Declaration Form indicating the shipment of goods from CA, First (N.Y.) Trading Corporation to Ramlagan’s Hardware- her father’s business. She said that this first shipment was paid for by her mother who provided SIO 357.04 from her Intercommercial Bank account on the 5 th October 2005. In support of this claim the wife attached at “E.R.2” a copy of a wire transfer document indicating a transfer of SIO 357.04 from Phulmati Ramlagan to C.A. First (NY) Trading Inc. The Wife also exhibited Customs documents for the second and third shipments which bear her sole name as importer.
84. According to the Wife, the second palette of goods was imported in August 2006 after their marriage, She said that in late 2006, she began negotiating with the New York office to bring in a 20 foot container of frozen vegetarian bean curd items. According to her, at the same time she began considering the option of ordering a container directly from Taiwan. The Wife said that she decided to register her business as a sole trader and the Husband decided to register his contracting business as a sole trader. In pursuance of same, they went together to the Ministry of Legal Affairs, Registration House, Port-ofSpain. Thereafter, she was informed that she could not bring in the container of goods in her name as she was required to register a limited liability company to receive the container which was due to arrive in early 2007. She claims that the Husband was insistent upon the name being “J.E.R. Cheng Companies” and that he be named a director of the company in lieu of her mother who she intended and desired to name since most of the funding for the business was lent to her (the Wife) by her mother.
85. She said that in March 2007 the first container from Taiwan arrived. She said that she had done all the research into importing from Taiwan on her own. She in fact cancelled an order for a fourth container from the New York office, and, suspicious that she was going directly to the source in Taiwan, that officer made threats to block her from negotiating with Taiwan. She said that it was in these circumstances that the Husband smartly manipulated her into using his name for all the transactions from Taiwan. Furcher, she said that this was why the last two shipments were in his name. She said that she upheld limited contact with the traders in Taiwan due to time zone differences, language barriers and economic reasons and most communication with them was via email. She alleged that she continued to draft emails, place orders and sign emails in the Husband’s name, as it was him that they became familiar with. It is for this reason that stickers on the shipment boxes bore his name.
86. The Wife maintains that she paid for the proceeds of the second container of goods partly from monies received from the proceeds of sale from the first container and partly from the F.C.B. loan. Monies used from the F.C.B. loan were sent to Taiwan from their F.C.B. jointly owned account in the amount of TTS56 809.00 on the 20th April, 2007. A further sum of approximately (USS9,687.50) was taken out on the same date and was placed in the Husband’s RETT account as there are regulations on the amount of U.S. dollars which any one customer could purchase in a single day. These sums were then wire-transferred on the 23 rd April, 2007 to Taiwan.
87. Prices on the goods were marked up. She stated that the three palettes were marked up by 100%. According to the Wife, the business did well and profits were made.
88. According to the Wife, on the July, 2007 they registered Vegefarm as a limited liability company and they were seeking to register the company for VAT. The Husband again insisted that he be named a director at this point. Upon registering Vegefarm as a limited liability company, she said that she then deregistered “Vegefann” as a sole trader.
89. It is the Wife’s case that the Husband never worked in or contributed financially to the frozen vegetarian products business. All tasks were perfomed by her, including ordering, record-keeping, billing and invoicing, managing three employees, marketing frozen products, delivering products to over sixty groceries throughout Trinidad and Tobago, unpacking containers and so foHh. She maintains that the Husband proved most unwilling to participate in the work involved. Even when she would request or expect him to assist with manual operations, he would absent himself after a short while. She said that she borrowed monies from her mother on five different occasions between December 2006 and January 2007 and exhibited in support of her claim at “E.R.5” what she claims is transaction information relating to five payments made from an account held in the name of her mother, Pulmati Ramlagan, payable to Vegefarm Corp.
90. The Husband denies the Wife’s claims regarding his alleged lack of involvement in the vegetarian products business. According to him, around 2004 the parties began courting. He said that they are both vegetarians and they started discussing the possibility of
importing vegetarian products which are difficult to obtain and for which they thought there was a good market.
91. The Wife denies discussing the possibility of imporcing products with him and maintains that by the time they started courting, she had already taken steps towards pursuing the necessary contacts and acquiring the necessary finances in order to commence importation of the said products, She admits that she would at time infonn him of the actions she was undertaking in the initial stages in commencing the importation of goods but said that she did so only by way of common conversation. He was not a party to the process of importation.
92. According to the Husband, at this time he was working at his mother’s store “Sushilla’s” and was also operating as a small contractor. He claimed that he gave up his business as a small contractor in February 2007 in order to concentrate on the vegetarian business. The Wife indicated to him that she made contact with a New York supplier for vegetarian products, namely, First 01Y) Trading Incorporated. She said that her mother would pay for the first palette of goods to be air freighted to Trinidad. He said that when these goods first arrived they were stored at his grandmother’s home because she had freezers at her home and allowed them to use same. The Wife denies that the Husband gave up his business as claimed in February 2007 and said that she was informed that up until July 2007 he was still giving estimates and working on contract jobs, According to her, not all of the goods were stored by his grandmother as they were stored at her home at both 103 and 107 Main Road, Balmain, Couva. She claims that only a small amount of goods were stored at his grandmother’s home.
93. According to the Husband, the parties did all of their initial sales using his pick-up truck TAD 1191 and his mother’s car PBP 5760. They drove to various parts of the country, narnely, San Fernando, Penal, Chaguanas, Port of Spain, Sangre Grande, Mayaro, Diego Martin and West Moorings to attract customers for the products. They used his pick-up to do deliveries and did the driving themselves. They gave 30 days credit to larger supermarkets and collected cash from the smaller ones. The Wife maintains that he did not assist with the initial sales in any manner and denies that he used any vehicle or drove around the country with her. She denies that the business was conducted with any smaller supermarkets as they said the products were too “speciality” and costly.
94. The Husband claimed that he paid for the second air-freighted palette of goods out of his account, In support of his claim, he exhibited copies of a wire transfer document and his debit slip in the sum ofS5 350.33 USD at “J.C.I“
95. The Husband also claims that the freezers used to store the frozen goods were his. He said that he originally had the use of two chest freezers at his mother’s home which belonged to her. He subsequently purchased two freezers- a two door and glass freezer and one two door walk-in freezer through his uncle Dalla Gulcharan in Canada. He said that he paid him the sum of S12 000 in cash and wire-transferred the sum of $48 065.03 TT to him. In support of his claims, the Husband exhibited at “J.C.?‘ copies of the wire transfer payable to his uncle’s Wife, Kaysaree Gulcharan and shipping documents for the freezer. He said he also purchased another freezer from Denzil Francis in May 2007 for the sum of $70 000. He said that he paid and the sum of S35 000 remained outstanding.
96. With respect to the freezers, the Wife said that the freezers used to store the frozen goods were two chest-sized freezers and of these chest freezers the smaller one was owned by the Husband. She said that the larger 25 foot freezer did not belong to the Husband but was purchased by her on the 22nd August, 2006. In support of her claim, she exhibited a copy of the invoice for a Woods Chest Freezer in her sole name at the cost of S5:175 at “E.R.4“. She said that when she began negotiating the cost of bring in a 20 ft container from the New York office and also began considering bringing in a container directly from Taiwan, she realized that the 25 foot freezer and the Husband’s freezer would not be sufficient to house a full container of goods. Accordingly, she began looking around for walk-in freezers in order to purchase sarne.
97. The Husband suggested that they should negotiate with his uncle Dalla Gulcharan who imporcs similar appliances from Canada. As a result, they approached his uncle who informed them that he was going to Canada for Christmas 2006 where his wife and children reside and that he would be able to purchase a used walk-in freezer for her. He insisted however that he needed a deposit to be paid in cash. According to the Wife, upon receiving confirmation that she would be able to purchase a container from Taiwan she knew that she had to acquire a large freezer. Thus, she borrowed TT S12 000 from her mother to give to Dalla to make the deposit payment for the used walk-in freezer, a new compressor and a two-door walk in freezer. She said that the agreement between Dalla and herself was that he would have the walk-in freezer arrive in Trinidad in early 2007 prior to the projected arrival of the container. The freezer was received on or about the 17th February 2007. She maintains that the monies which the Husband says he used to purchase the freezer from Dalla were her funds which were dravvn in cash from her RBTT account in the amount of S44 291.03 with the remaining balance sourced from money she received in cash from sales. In support of her claim, the Wife produced at “E.R.8” a copy of a cheque relating to her request for S44 291.03 in cash in order to transfer the said funds for the purchase of the freezer.
98. The money was wired on the May, 2007 as by such time Dalla had gone back to Canada and a wire transfer was the best option for getting the money to him. She stated that the only US account she owns is held in a joint US account between the Husband and herself at First Citizens Bank, Point Lisas. She decided to pay the said S48 065.03 into the Husband’s RBTT account for the wiring transaction because it could be done at the same bank as opposed to taking such large sums of cash to another bank to do the same transaction. She said that she never asked Dalla for a bill or receipt as it was the Husband’s uncle and she trusted him.
99. She said that Denzil Francis completed some work installing the walk-in freezer on the 28 th February 2007 and she paid him $3 958.88 from her RBTT (“Esha Ramlagan t/a Vegefarm) account for his work. In support of her claim she exhibited a cheque allegedly issued in respect of the said payment at “E.R.6“. She said that there was some additional work to be done and Denzil carried out same, She again issued a cheque from her RBTT account, this time in his wife’s name for the sum of S5 000. In support of her claim, the Wife produced a copy of the cheque at “E.R,7“.
100. With respect to the Husband’s claim that he purchased a walk-in freezer from Denzil Francis, the Wife stated that Denzil bought a new walk-in freezer locally from Mecal Fab Limited as a result of negotiations which started in May 2007 after she had placed an order for a second 20 foot container. Denzil informed her that the cost of the freezer and installation would be S70 000 and she made a part-payment of S35 000 to him in cash as per his request. On the 1 7th May, 2007 she wrote cheque number 000021 to Ramlagan’s Hardware in the amount of S27 000 and took even amount in cash from the hardware. She then paid that sum to Denzil as a down-payment and later remitted S8 000 to him in cash at various intervals after he installed the freezer. In support of her claim she exhibited a copy of cheque 000021.
101. At trial, the Wife maintained that her mother funded the purchase of a large portion of the goods for the business. She stated that her mother covered the importation and incidental costs of the first three palettes of goods that were brought in. I note that the Husband admitted that the Wife’s mother covered the cost of the first palette of goods. The Wife maintained that importation began in 2005. The second palette was brought in about 4 months after they got married and the third palette was brought in October 2006. The palettes cost approximately SIO.OOO USD plus the freight charges and so forth. The Wife said that she also brought in two 20 foot containers of goods, the first of which was in March 2007. She said that a container of goods cost approximately
TTD. The cost of the container along with associated expenses was approximately S345 COO and she said that all charges for the first container were paid for by her mother. 102. The Wife testified that the second container arrived between May and June, approximately 2 1/2 months after the first container. The same costs were paid but this time her mother did not fund the purchase. Rather, the Wife testified that this container was paid for with monies from the sale of items from the first container (she admitted to marking up the products significantly) and monies from the loan she says she was forced to take from FCB. She said that approximately of the loan monies went to the 2 nd container and some of the shipping costs as well were paid out of same. She said that she wire-transferred some of the funds not through FCB but through the Husband’s RBTT US account.
103. The Wife’s evidence regarding the funding of the purchase of goods was corroborated by her mother who maintained that she funded the purchase of products for the business. The Husband says that he contributed financially to the purchase of the goods and only admits to the Wife’s mother purchasing the first palette and places much stock on the fact that payments were made from his account. However, I note that there is no evidence indicating where the hinds in his account carne from. Questions concerning the Husband’s employment, earnings and financial abilities have been the source of much contention between the parties. He claims to have carried on his construction business and to have earned between $10,000 and $15,000 a month. The Wife denied this and said that since she knew the Husband, he had not been in salaried employment. She referred to him carrying on a few projects here and there mainly for family members but maintains that he was not able to contribute financially to the household and as a result this burden fell to her.
104. Having considered the Husband’s evidence, I find that projects done by him were mostly limited to those of family members and relatives. I note in giving evidence, when asked why he gave up the construction business, he referenced same as being “hard work”. The Wife’s evidence seemed to convey the impression of a Husband who was somewhat lazy and was quite content to sit back and rely on her to do all of the hard work while he benefitted from same. I note further that the Husband’s mother admitted that the Husband was unable to obtain the loan and so the Wife applied for same. Pyari sought to attribute the Husband’s inability to obtain the loan to the fact that he was self-employed and unable to show his earnings. However, I suspect that he was unable to show sufficient earnings so as to convince the bank that he was capable of servicing the loan. To me this is in tune with the Wife’s evidence insofar as she claimed that he was unable to get the loan and so she applied and obtained same. Taking all of the aforementioned into account, while I accept that the Husband carried on his construction business, I dc not think that this was done on any large scale nor do I think that he earned to $15,000 per month as claimed. I prefer the Wife’s evidence over his insofar as she
claimed that his income from his business was sporadic. The Wife’s mother testified that she is a landlady earning income from the rental of various apartments that she owns. This was not challenged by the Husband. Having heard the Wife’s detailed evidence concerning the importation of the goods and having considered this alongside the evidence of her mother and the wire transfer documents exhibited, when juxtaposed again the fact that I do not believe that the Husband earned as great an income as he claimed, I accept her evidence insofar as she claimed that her mother covered the cost ofthe palettes of goods as well as the first container. I also accept the Wife’s evidence regarding the manner in which the second container of goods was funded as well as her evidence regarding the funding of the purchase of the walk-in freezers.
105. The contribution by the Wife’s mother to the purchase and importation of the frozen goods may be viewed as a substantial indirect financial contribution towards the business by the Wife. Shanti Ramlagan was permitted to intervene in this matter. In her affidavit evidence of the 14th April, 2008, the Wife claimed that her application to intervene is based on certain loan advances which she made towards the parties. She claimed that the advancement of those monies was made to them at their request as directors of JER Cheng Companies Limited and that she was informed by them that the monies were to be used for the acquisition of imported frozen vegetarian products.
106. According to her, she loaned the business S450 000 over the period October 2005 to March 2007. She said that she was informed by the parties at the relevant times of borrowing that the sums were being used for various purposes, particularly wire transfer payments for their stock of the business, customs and duties charges and for the purchase of a walk-in and a glass door freezer. She deposed that her claim is for reimbursement of the sums advanced by JER Cheng Companies Limited or by any successor company with which the Husband is associated which is conducting the business of importing and/or selling frozen vegetarian products whether under the “Vegefarm” label or otherwise.
107. While I accept that the purchase of many of the goods for the business was done by the Wife’s mother and accept that the sums loaned may well range in the hundreds of thousands, I find considerable difficulty accepting the veracity of related claims made in her affidavit evidence. Firstly, in her affidavit evidence Shanti claims to have lent the monies to the Wife and the Husband and claims that they made the request as directors of JER Cheng Companies Limited. [Emphasis mine]. However, under cross-examination, Shanti admitted that it was the Wife who approached her for the monies and that it was
Esha (“the Wife”) to whom she lent those monies. Not the Husband. I also do not believe
that any request for advances were made by the parties in their capacities as directors of JER Cheng Companies Limited, as she claimed in her affidavit evidence.
108. It appears from the evidence that the Wife’s parents, who had the financial means, would not have hesitated to assist their daughter. Indeed, the Wife’s mother testified that she and her daughter are very close and it appeared that the Wife may well be the apple of her mother’s eye. She admitted to lending the money to “Esha” and she did not once make mention of loaning the monies to her in her capacity as director. I find that advances were made to the Wife as her daughter rather than in any other capacity.
109. Further, I do not believe that the monies were loaned by Shanti. During crossexamination by attorney-at-law for the Husband regarding the sums of money advanced by the mother, the Wife repeatedly stated that there was no agreement with her mother for repayment of the monies and she repeatedly stated that the monies advanced were a gift. It was not once that the Wife was asked about same and she gave the same answer. Indeed, she indicated that when she made profits exceeding the amount paid for the goods, such monies belonged to her (the Wife). Her statements were clear.
110. It was only upon returning for cross-examination the following day that the Wife then sought to claim that the monies were loaned to her by her mother. She sought to explain her previous statements by saying that there was a verbal agreement between herself and her mother. She claimed that she intended to give her mother back her money in sums. However, even this explanation is fraught with its own difficulties. The Wife claims that she intended to repay the mother. There is no evidence to support any such intention on her part. Rather, if I may say so, the evidence seems to point in the other direction. The Wife herself admitted that the business was doing well. Indeed, clearly this was so for she continued to import other palettes after bringing in the first and eventually expanded to importing containers of goods. Surely she would not have persisted had it not been profitable to do so. Further, the Wife admitted to marking up the palettes by about 100% and the goods in the first container by approximately 60%. That being the case, nowhere in her evidence did the Wife make mention of attempting to repay her mother as the various sets of products were sold and profits were made. In fact, despite making a profit off of the goods, she continued to obtain advances from her mother to fund the purchase and importation of follow up sets of goods. This is consistent with the prior evidence given by her where she claimed that the monies made from the goods belonged to her.
111. In the circumstances, I find that the monies advanced by Shanti were to the and not to the Husband. I do not accept that the advances were made “at their request as directors of JER Cheng Companies Limited” as the mother claimed in her affidavit evidence. I am of the view that Shanti, being very willing and financially capable of assisting her favourite daughter, did so by advances of substantial sums of money to her as a gift, as the Wife first claimed, without any expectation or contemplation of a repayment. It is only when the marriage broke down and she and the Wife discovered what they believed to be was the same business being carried on by the Husband under another name, that this story of the advances being made in the nature of a loan was concocted in an attempt to recover monies by way of profits being earned by the new business. Having determined that Shanti Ramlagan advanced the monies as a gift to her daughter and not by way of a loan, I am of the view that she is not entitled to recover same.
112. Regarding the start-up and carrying on of the vegetarian products business, the Wife maintains that it was her idea and that it was her business which she carried on. She claims to have put monies from the business into her RBTT account “Esha Ramlagan trading as Vegefarm” and also into the JER Cheng Companies Limited account. She said that she researched importing from Taiwan and did so under the Husband’s name. The Husband alleges that he contributed financially and otherwise to the business and claims to have assisted with delivery. He claims that the Wife handled and controlled the money aspect of the business. He claims that he was instrumental in establishing contact with suppliers in Taiwan through his father.
113. I have considered the evidence. I have noted the affidavit and oral testimony of the parties and in particular, have noted the level of detail and knowledge which the Wife conveyed in relation to the business with respect to its financial aspects and daily operations. I also note that the first palette of goods was imported in 2005, before the parties were married. Having considered all of the evidence, I prefer the evidence of the Wife over the Husband insofar as she claimed that the commencement of the vegetarian product business was her idea. I find that she commenced this business prior to her marriage and find that she was the driving force behind the business. The Wife claims the business to have been hers and by her treatment of the accounts, I find that she treated it as such. She admits to putting monies earned from the business into her RBTT account “Esha Ramlagan t/a Vegefarm” and even after JER Cheng Companies Ltd. was formed, she inexplicably continued to deposit the profits earned from this business into her RBTT “Esha Ramlagan t/a Vegefarms” account, though she claims to also have deposited profits into the JER Cheng Companies Ltd account. She claimed that she could not recall what portion of funds would have been distributed to the JER Cheng Companies Ltd. account and what to her RBTT account. I am of the view that the Wife viewed the business, under whatever name, as really belonging to her and did as she pleased with the profits, which included depositing, what I suspect was a greater portion of the funds
earned into her personal account as opposed to the JER Cheng account which the Husband, as director, would presumably also have been able to access with her.
114. I do not accept, however, that the Husband made no contribution at all to the business as the Wife claimed, but find that any contributions made by him were on a significantly lesser scale than those made by her. I find that her financial contributions to the business, narnely through the substantial contributions from her mother dwarfed whatever, if any, monies put by the Husband towards the business. While I accept that on occasion the Husband may have assisted with deliveries, I find that the majority of the ground work relating to the business, from attracting customers to delivering, was done by the Wife with the assistance of her mother. I accept that goods were stored at his relative’s home at some point in time, though the Wife claimed that few were stored there as she stored most at her parents’ residences. Perhaps the greatest contributions of the Husband towards the business lay in the use of his father’s VAT stamp. The Wife admits to using same and claims that she intended to repay his father, though there has been no evidence of same.
115. The Wife claims to have researched the supplier in Taiwan and made contact by email. She admits that very little phone contact was had due to language barriers and admits to conducting business with them under the Husband’s name as he manipulated her into using his name for all transactions with Taiwan.
116. The Wife strikes me as an industrious woman. I accept that she first started the business and sought out the suppliers in New York. Having accepted that, I find that ill much the same way that she did that, she may have well conducted her research and sought out the suppliers in Taiwan. I note that the Husband claimed under crossexamination to there being instances where the Wife yaote cheques and he merely signed. He admitted that she had control over the finances of the business and from the evidence I find that she had control over how the business was carried out as well. That being the cases, I believe the Wife to be telling the truth when she says that she communicated with Taiwan, drafting emails and placing orders, though this was done under the Husband’s name. I do not however accept her claim that the Husband manipulated her into putting his name on all the transactions with Taiwan. Rather, I find that for whatever reason, the parties determined that this was the course to take with those suppliers.
117. I believe that while the business was indeed commenced by the Wife, the business later belonged to both of them, though it was conducted primarily by her. It is not disputed that the Husband was named as director not once, in relation to JER Cheng
Companies Limited, but also when she registered the business “Vegefarm” which the Husband said she later deregistered. The Wife said that she deregistered Vegefarm as a sole trader upon their registering it as a limited liability company on the 1 0th July, 2007.
118. The Wife claims that the Husband insisted that he be made a director on both occasions and that she really wanted to ask her mother to join her as director but she (her mother) did not wish to be named as such and suggested instead that she name the Husband. While that may have been so, the fact remains that the Wife knowingly went along with the Husband as director not once but twice. This is not an uneducated lady who was at a disadvantage intellectually to her Husband or with respect to the business to be conducted. Au contraire, the Wife strikes me as an intelligent woman, possessing qualifications which exceed those of the Husband and she appears to have had a greater appreciation of the mechanisms and operations of the business. Accordingly, I reject her claims and suggestions that she was manipulated, tricked or forced when it came to naming the Husband as a director, naming the company JER Cheng Companies Limited or communicating in his name with Taiwan as was stated before.
Stock and the Court Order ofthe 3dh Julv, 2007
119. On the 27th July, 2007, the Wife filed an affidavit indicating, inter alia, that after an assault by the Husband on the 22nd July, 2007, she was forced out from the matrimonial home. She deposed that she discovered that the Husband had been frantically trying to sell the approximately worth of frozen vegetarian products (cost price) contained in the cold storage. She said that she was unable to gain entry to the premises as same were locked and the Husband was remaining out of sight.
120. On the 30th July, 2007 a Court order was made granting the Wife, inter alia, permission to enter and search the matrimonial premises and to remove from the premises all the stock of frozen vegetarian food products stored in three specified units. Court appointed attomeys were assigned to accompany and assist the Wife. On the 6th August, 2007, the Wife gave an undertaking before Tam J. to list all items recovered by her on service of the injunctive order on the Husband.
121. Affidavits were later filed by both attorneys on the 9th August 2007 and 10th August 2007 respectively and the affidavit of Mr. Raymond Sowley contained an inventory of the frozen vegetarian products prepared prior to their removal from the said premises. At “J.C.15” of his affidavit of the August, 2007, the Husband produced an inventory of the items which he said were taken on that day and he claimed in that affidavit that the items had a value of S457 036.00, substantially more than the approximately claimed by the Wife in her affidavit evidence. He claimed that he and the Wife had completed the stock taking exercise on the 22nd July, 2007. He further claimed that he and the Wife had approximately outstanding from customers at the time of the execution of that Order and he feared that she was collecting all of those outstanding monies.
122. A Court Order of the 15 th August, 2007 referred to a consent order arrived at between the parties whereby the Wife undertook, in the event that sales were secured at the agreed wholesale prices, for the frozen foodstuff items itemized in the affidavit of Mr. Sowley, to place the proceeds thereof into a bank account separate and apart from any business account (particulars of which were to be provided), set up specifically for the purpose of holding the same. No deductions were to be made from that account except for those directly incurred from the sale of the said items. The Wife also undertook to keep detailed accounts of the proceeds of sale of the items.
123. In her affidavit of the 1 April, 2008, the Wife deposed that she attempted to secure sales for the goods as permitted by the consent order but she was hindered in her ability to do so in part by the Husband. She stated that prior to that consent order, she was not able to sell any of the goods and they were kept in cold storage at Furness Ice and Cold Storage, San Fernando Limited. She claimed that upon the granting of the order Q? the 19 August, 2007, she was hindered in carrying out sales of the products due in part to the actions of the Husband. She claimed that the Husband redirected orders for sale causing supermarkets to become hesitant to accept goods from her. She said that he also undertook to introduce himself as a director of JER Cheng Companies Ltd. so that he could gain farniliarity with purchasing officers while he undertook to disparage her character. As a consequence of this she said she was forced to lower the prices of some of the goods in order to attract continued sales, especially having regard to the high cost of rented storage facilities and other costs such as hired transportation for delivering goods. She said the Husband also embarked on a campaign of disparaging the goods in her possession, inforrning owners of supermarkets that they were spoiled and discoloured and thereby sought to have goods which he had brought in sold in priority to her stock.
124. According to the Wife, she was faced with expenses, such as escalating storage costs (which she evidenced at “E.R.16” by way of a letter from Furness Ice and Cold Storage dated the 24th August, 2007) and she claimed that her goods were no longer being accepted by previous customers. As a result of that, she was forced to make a decision to discard some of the goods. She said that in an effort not to waste the foods as they were still good quality, she elected to donate them to charitable organizations such
as orphanages. She produced at 6‘E.R.17” copies of a delivery note and a letter attesting to the receipt of products.
125. In her affidavit of the 1 I th April 2008 the Wife deposed that the total sum which she collected in respect of sales of the goods secured by the injunction was in the total amount of She said that the parties agreed to dispose of one of the items preserved by the previous consent order, namely a 12 x 20 x 7 cold storage freezer together with a condensing unit and evaporator on the 2é March 2008. In support she produced a letter dated 13th February 2008 from the Husband’s attomeys agreeing to the sale, She said that the freezer was returned to Denzil Francis with whom they had entered into an agreement to purchase but due to subsequent litigation, they never finalized the purchase of the freezer and Mr. Francis kept calling upon them to return it. As such they agreed to same and he fully repaid the earlier down payment of S25 000 to her which she stated that she deposited into a bank account.
126. Having read the Wife’s affidavit and listened to the cross-examination of both herself and her mother, Shanti, I find myself having considerable difficulty with the Wife’s actions concerning the sale of the stock of frozen vegetarian products which was the subject matter of the injunction of the 30th July, 2007. Firstly, the Wife claimed in her affidavit evidence that the Husband was engaging in a course of conduct which hindered her from selling the agreed stock pursuant to the order of the 15 th August 2007. The Wife produced a copy of a letter wherein the Husband indicated that Matthews Foods Ltd is the sole distributor of Vegefarm products in Trinidad at “E.R.14“. The other complaints relating to him disparaging the business and discouraging customers are solely hearsay on her part, unsubstantiated by any supporting evidence, There is no evidence that she sought to obtain affidavits from any of the various sources who were informing her of the Husband’s alleged conduct. Perhaps more importantly, there is no evidence that the Wife sought, through her attorneys, to to the Husband’s attorneys informing them of his alleged conduct and requesting that he desist, as such conduct was preventing the carrying out of a mutually agreed consent order regarding the sale of the products and was thus effectively frustrating an Order of the Court.
127. The stock in question was imported before the marriage broke down. The goods or rather, the proceeds of the sale of such goods may be said to be an asset available for the court to consider in any distribution exercise between the parties in determining the claim for ancillary relief. Accordingly, undertakings were given with respect to the sale of such goods and records to be kept. From the evidence, what is apparent is that the Wife made a number of unilateral decisions concerning the goods. She lowered the cost of the goods to allegedly attract continued sales. She made a decision to discard some of the goods and elected to donate them to charitable organizations. All of this was done
without the consent of the Husband. At “E.R.18” the Wife exhibited a letter from the Husband’s attorneys agreeing to the sale of the freezer. In much the same way that agreement was arrived at concerning this sale, the Wife could have communicated concerning the disposal of the goods. However, this was not done. It seems to me that the Wife continued to treat with the goods as if they belonged to her in much the same way that she appears to have dealt the proceeds from sales during the marriage.
128. In her affidavit of the I l th April, 2008, the Wife affirrned that the total sum collected in respect of sales of the goods secured by the injunction was TTS240 854.40. However, no receipts were exhibited in support of this claim and so all that this Court has to go on is the Wife’s bare assertion in that regard. In the order of the 15th August 2007 the Wife undertook to keep detailed accounts of the proceeds of sale of the items but her failure to exhibit receipts for sales suggests that this was not done.
129. At trial it emerged that the monies from the sale of goods secured by the injunction were deposited into a separate bank account held in the name of her mother. Phulmati Shanti Ramlagan. Scotia Bank statements for the account indicate that as at the period 15 th July 2012 to 15 th August 2012, the account held the sum of S275 154.11. During cross-examination, Shanti first claimed to have made no withdrawals from the account, stating that she only made small deposits to keep the account active. However. as cross-examination persisted, she eventually admitted that the sum of approximately S25 000 was withdravm from the account to pay legal fees. This action constitutes a breach of the order of the 15th August 2007 that there shall be no deductions from the account save and except the expenses directly incurred from the sale of the items.
130. In the circumstances, I am of the view that the Wife’s actions in relation to the goods secured by the injunction are such as to be taken into account in arriving at any eventual award.
131. The Husband claimed that at the time of the breakdown of the marriage, over a hundred thousand dollars remained outstanding from clients and he further stated that he feared that the Wife was collecting same. The Wife denied collecting such monies and the Husband did not provide any evidence in support of his claim. He also did nol indicate the basis for this “fear” that she was collecting the alleged monies. Without more, I cannot accept his claim insofar as he alleges such actions on the Wife’s part.
Matthew Foods Limited
132. There is much issue between the parties concerning the business, Matthew Foods Limited. On the 12th February, 2009, the Wife filed a Notice of Application for an
avoidance of disposition of the business of JER Cheng Companies Limited to Matthew Foods Limited, It is the Wife’s claim that the Husband engaged in a process of disparaging the quality of the goods which she sought to sell to clients so as to drive such customers away. She said that she has been informed by reliable sources that the Husband has been attempting to tarnish her name and has been inciting business personnel with whom she is in the custom of associating to refuse to carry on any transaction with her.
133. She claims that he has been tarnishing her reputation with Taiwan. She said Taiwan refuses to do business with her and refers to Jerome Cheng of “Matthew Foods Ltd.” as the person with whom they transact in Trinidad.
134. According to the Wife’s affidavit of the 6th November, 2007, she has been informed that the Husband brought in his own container of Vegefarm frozen vegetarian products from Taiwan and that he is trading under the name “Matthew Foods Limited”. She said that he is stating that he is the sole distributor of Vegefarm products in Trinidad. She said that she believes that same was done in an attempt to throw her out of business.
135. An affidavit purportedly sworn to by one Mr. Hugh Caesar, a certified accountant, was filed on behalf of the Wife on the 13 th February, 2009. Remarkably, it appears that Mr. Caesar purported to produce a professional valuation of Matthew Foods Ltd. based solely on information provided to him by the Wife and other suppositions. From her own evidence, what the Wife claims to know about Matthew Foods Limited is drawn from what she has been allegedly told- unidentifiable hearsay. There is no evidence that Mr. Caesar obtained any information from the owners of Matthew Foods Limited or any financial statements regarding that business in arriving at his valuation. Accordingly, the valuation produced by Mr. Caesar leaves much to be desired. Furthermore, this Court was not afforded the opportunity to have him address the glaring deficiencies cf his affidavit evidence as he was not available for cross-examination at trial. In the circumstances, I place no weight on such evidence.
136. From the evidence and incorporation documents produced at “P.C.I it emerged that the only directors and shareholders of Matthew Food Limited are the Husband’s parents, Gnai Wah Cheng and Pyari Cheng. This company was formed on the 15 th August, 2007, notably less than a month after the incident of the 22nd July, 2007 when the Wife left the matrimonial home. The Husband’s parents deny that there was any transfer of business from JER Cheng Companies Limited and say that Matthew Foods Limited is a new company and not a successor to any other. They admit to trading in frozen vegetarian products but claim that there are no legal impediments preventing them from trading in such products. According to Gnai Wah, he has strong ties with China and
Taiwan and he has for all of his adult life, traded in some form or the other with them. He said that Matthew Foods Limited is but one manifestation of his many activities in business. According to him, he has infringed no laws in forming this company and has not taken away anyone’s business. Vegetarian products have for several years been popular among all people and, as a businessman, he decided to engage in selling same.
137. Pyari denied that anyone from Matthews Foods Limited, more particularly, her son who assists them, ever disparaged stock belonging to JER Cheng Companies Limited and she highlighted that it would be counter-productive in any event to have done so.
138. Under cross-examination, the Wife admitted that she was not certain who the directors of Matthew Foods Ltd. were. She admitted that Gnai Wah has indeed been in business for as long as she knows and that he is from China. Both Mr. and Mrs. Cheng were cross-examined at trial. Both of them indicated that they started importing vegetarian products because it had potential. When asked how they knew the business had potential, Pyari claimed that she ate it, it is a good line and she heard lots of people recommending it. The Husband also claimed to have heard people speaking highly of the product. I note that both of the Husband’s parents were (or at the very least the Husband’s mother was) aware that the parties were involved in the business of importing frozen goods. In fact, Pyari claimed under cross-examination that as far as she knew, the Husband and Wife formed that business together.
139. The Wife has claimed that when she returned to the matrimonial home to recover stock and her belongings, the password to the computer had been changed and the business documents relating to the vegetarian products business were nowhere to be found. The Husband denies removing such documents and claims that she took them. However, despite claiming throughout his affidavit evidence that it is was the Wife who handled the financial aspect of the business and so forth, I note that it is the Husband and not the Wife who exhibited a plethora of documents associated with the business, including financial statements relating to accounts held in the Wife’s name. It is the Husband who remained in the matrimonial home when the Wife left on the 22 nd July, 2007 and he claimed, at trial, that the documents were “in the home upstairs” and that the Wife took them. He eventually claimed something to the effect that “they were there for her to take”. Having considered the aforementioned I prefer the evidence of the Wife over that of the Husband insofar as she claimed that she was unable to locate the business documents when she retuned to the matrimonial home and I am of the view that the Husband concealed them from her.
140. The Husband’s parents claimed to have formed the business based on its potential. They claim to have deduced such potential from hearing people recommending
it, tasting the product and so forth. I do not believe this to be the case. At trial, Gnai Wai adrnitted to having been involved in business for many years. He, however, conceded that he has never dealt in the area of frozen vegetarian products before Matthew Food Limited was formed, having been concerned with the business of variety stores. There is also no evidence that the Husband’s mother ever delved into the arena of selling frozen vegetarian products before. Gnai Wah claimed to have entered into the business of selling frozen vegetarian products without ever having seen any financial statements or so forth to determine whether it would be profitable to do so. Gnai Wah is a seasoned businessman and I find it less than probable that he would have delved wholeheartedly into a business area never previously traversed simply on the basis of “people” recommending products. I suspect that he was indeed show-n financial statements by the Husband relating to the frozen vegetarian products business carried on by the Husband and the Wife and that the profitability deduced from same informed his decision to embark upon that business venture more than anything.
141. Gnai Wah admitted under cross-examination that as a businessman he sought to take advantage of an opportunity when a gap was created, presumably referring to when the breakdown occurred between the Husband and Wife.
142. being said, it is the Wife who claims that the business of JER Cheng was transferred to Matthew Foods Limited and the burden rests with her to satisfy the court of same. She claims that the Husband disparaged her business to clients but has not produced any evidence in support of same. She claims that the Husband contacted certain employees harassing them and encouraging them to cease working for her. No affidavits or witness statements were filed by such alleged persons in support of her claim. She claims that he has tarnished her reputation with Taiwan and that they have refused to do business with her. Again, all that the Court has is her bald assertion in that regard. It was admitted that Vegefarm products are sold by Matthews Foods Limited and the Wife claimed during cross-examination that she had an agreement with her suppliers both in New York and Taiwan that she was to be the only supplier of such products in Trinidad. I note that this was a novel claim raised at trial as nowhere in her affidavit evidence was this mentioned. She then claimed that this alleged agreement was not in writing.
143. It seems to me puzzling that such an important agreement would not be encapsulated in writing. The Wife claimed that she was organizing to go to Taiwan to ensure this but again, this was also a new claim as she made no mention of this in her affidavits. At trial, the Wife claimed to have spoken to a “Joanna” and a “Tom Cheng” regarding the alleged agreement and confirmed with attorney for the Husband that she would try to get proof of that agreement from them. However, when the trial resumed on a subsequent date, attorney for the Wife informed the Court that such proof was unable to
be obtained. Accordingly, there is no supporting evidence that such an agreement ever existed. This lack of supporting evidence, along with the conspicuous absence of claims of such an agreement in her affidavit evidence lead me to conclude that the Wife was not telling the truth when she claimed that she had an agreement with the suppliers that she would be the only supplier in Trinidad. In fact, I note that the Wife only raised that claim during cross-examination after being asked by attorney for the Husband whether anyone could sell frozen vegetarian products. She first answered that they could but sought to qualify that answer by claiming that her situation was an exception due to the alleged agreement.
144. In the circumstances, I am of the view that the Husband’s parents formed Matthews Foods Limited likely upon information they had received from their son concerning the profitability of the vegetarian business previously carried on by the parties. That being said I find that the Wife has not managed to satisfy the Court that there was any transfer of the business from JER Cheng Companies Limited to Matthew Foods Ltd. Indeed, Matthew Foods Limited appears to be carrying on a similar business selling a particular brand of product, but lamentably for the Wife, there is nothing on the evidence that prohibits them from doing so.
- The Wife has a Toyota Rav 4 motor vehicle, registration number PCA 2740. In her Form 8, she put the value of it at She indicated that no loan was outstanding on same. In his Form 9 the Husband stated that he does not own a car. However, I note that later in his Form 9 he indicated that “deposit made for sale of vehicle and prospective buyer changed his mind”. It is unclear what vehicle the Husband is referring to.
Other Financial Resources
146. In his Form 9 the Husband filed on the 7th November, 2007 the Husband stated that he has six bank accounts held at RBTT Bank Limited and First Citizens Bank Ltd, all. of which contain modest sums. At the time of filing, according to the Husband, the various RBTT Limited accounts held an accumulated total of S270 and the FCB accounts held the sum of S215. The Husband also stated that he has S219.24 in Unit Trusts. In her Fonn 8, the Wife claimed that the Husband may have a share in WJS Enterprises which is owned by his father. She herself is not certain of such, the Husband made no mention of same and the Wife adduced no evidence in support of her claim.
147. In her Form 8 filed on the 14å August, 2007, the Wife indicated that she has a bank account at RBTT which is held in the name of Esha Ramlagan t/a Vegefarm. Later in her Form 8, she referred to an RBTT bank account at Couva, presumably the same account. She indicated that this chequing account then had a balance of S47 000. The Wife also listed a chequing account at First Citizens Bank. This account is in the name of JER Cheng Companies Limited and is a joint chequing account. She stated that that account held the sum of S7 500.
(b) Financial Needs, Obligations and Responsibilities
148. Fortunately, both parties are housed. The Wife resides with her new husband and young child in premises at Lange Park, Chaguanas which they own jointly. The Wife indicated at trial that this property was purchased two years ago, which would therefore mean around 2010. The financial responsibility of the mortgage in relation to that home is met by her new husband. The Husband continues to reside in his mother’s house which served as the matrimonial premises for the duration of the marriage. There is no indication that he is required to pay any rent.
149. The Husband’s expenses as stated in his Form 9 total approximately per month. Therein he indicated that he was not working and was looking for work. He stated that he was currently being maintained by his mother. The Husband now works, as he put it, as a manager in his parents’ business and as I said earlier, I find it more probable than not that he earns some form of income from it. At the time of filing his Form 9, the Husband stated that he was repaying a credit card debt of S30 000 for which he pays per month. He indicates that none of those repayments are in arrears. He further indicated that he had personal debts, one of SIS COO which he said related to a deposit made for the sale of a vehicle where the prospective buyer changed his mind. He said that money was invested into VegeFarrn and payment for cold storage.
150. The Husband also stated that he owed S30 000 to Ramlagan’s Hardware for material taken for the construction of a perimeter wall on land owned by the parties. The Wife’s father was awarded judgment in the sums of S107 901.89 and S23.976.27 with interest accruing daily against the Husband in two claims brought against him. The Husband admitted during cross-examination that he has not paid off those debts, claiming that he does not have the financial means to do so.
CV 2009- 2004 Ramlagan’s General Hardware v. Jerome Cheng and CV 2010-143 Ramlagan’s Genera! Hardware v. Jerome Cheng t/a ICE Contractlng.• – UJ.C.26″.
151. The expenses for the Wife as stated in her Form 8 amount to approximately per month. In her Fon-n 8 the Wife stated that her income was in the sum of S2 792.10. At trial she said that that income eventually went up to S.QQQ. Even so, it is clear that the Wife could not have been meeting her monthly expenses solely on that salary. The Husband has accused the Wife of controlling the funds for the business. The Wife herself indicated that the business did well. The only conclusion to logically be drawn is that the Wife was able to meet her hefty monthly expenses with income from the business or parts of the proceeds of the loan. In this regard, I note that she claims to have used parts of the proceeds of the loan to meet the Husband’s and his mother’s expenses as well.
152. I note that in her stated expenses, the Wife claimed to pay mortgage repayments of per month. However, it was revealed under cross-exarnination that she was actually paying the loan repayments out of the very loan itself and, as was said before, it was the Husband’s parents who eventually paid of the said loan. This is in any event not an expense she will now have as her new husband has the burden of mortgage repayments in relation to their home in Lange Park. The Wife also claimed to pay rent in the sum of S3 000 a month. She was, however, unable to produce rentai receipts for the alleged rental of her mother’s premises after she moved out of the matrimonial home. I do not believe that the Wife ever paid her mother any rent in relation to same. This is the same mother who she herself said gifted her thousands of dollars and continued to do SQ even when she (the Wife) began to make profits from the business.
153. The Wife now has a new husband and a young child and it is acknowledged that she may now be required to direct some of her resources towards their household. The Wife indicated in her Form 8 that while she does not have any personal debts, she has a debt to First Citizens Bank Limited for $750 000. This loan however has since been paid off by the Husband’s parents. The Wife also indicated in her Form 8 that she has jewelry valued at S7 000.
(c) Standard of Living
- From the evidence, it appears that the parties enjoyed an average standard living. It also appears that many of their needs and acquisitions were met by the loan which was paid off by the Husband’s parents.
(d) Acre of the Parties and Duration of the Marriage
155. The Wife is now 31 years old and the Husband is now 33. Both parties are still young and, barring any unforeseen circumstances, have many years of their working life left ahead of them. So far as is reasonably possible, it is best for the Court in determining matters of ancillary relief to strive for a clean break so as to enable the parties to get on with their lives. I am of the view that this is so particularly in circumstances such as this one where the parties are both still very young and do not have any children between them.
156. The parties were man•ied on the 27th April, 2006. The marriage broke down and the Wife left the matrimonial home on the 22nd July, 2007. She did not return to live there and eventually filed her petition for divorce on the 7th August 2007. Calculating from the date of marriage to the date when she left the matrimonial home, taking the latter to be the date of breakdown, I find that the marriage lasted only some 15 months and was accordingly a very short one.
(e) Any Physical or Mental Disability
- Fortunately, the Wife does not suffer from any health problems. In his Form 9, the Husband stated that he suffers from asthma. He said that it affects him when he is overworked and working in a dusty place. The Husband did not provide any details as to circumstances in which he is overworked nor was there any reference to point to such being the case from his affidavit evidence. In fact I have accepted the Wife’s evidence that any building projects in which he was engaged were rather sporadic in nature, Moreover, it is curious that contracting would be the field into which he has ventured given his claims regarding his asthma being affected by dusty conditions. Again, in his affidavit evidence, there is no suggestion of asthma harnpering his ability to work on any of the jobs which he claims to have done. In the circumstances, I do not attach much weight to his claim in that regard.
158. I have dealt at length with the parties’ contributions towards the frozen vegetarian products business above and do not propose to rehash what was said in detail here. Suffice it to say, I find that the Wife was the primary contributor towards same, both financially through her mother and in terms of the actual carrying out of the operations of the business.
159. I also considered the contribution of the parties towards the construction of the premises which served as the matrimonial home. As was said earlier, these premises belong to the Husband’s mother but the Wife’s father made substantial financial contributions in the form of advances of materials, though the Husband claims that not al, of the materials were used on the matrimonial premises. Nevertheless, court actions brought by Ramlagan’s Hardware against the Husband have resulted in judgments in the former’s favour. It is open to Ramlagan’s Hardware to seek to enforce those judgment debts. I also found that in the circumstances, these indirect financial contributions to the construction of the matrimonial home by the Wife ought not to be accorded much weight in determining the award of any ancillary relief.
160. There has also been dispute between the parties concerning the extent of the Wife’s financial contributions to the household. According to the Wife, the Husband’s income was not such as to enable him to contribute financially towards same and so she was therefore saddled with the financial burden of meeting the needs of not only herself. but also the Husband and his mother. This was denied by the Husband. Both the Husband and his mother claimed that the mother eamed income from the rental of commercial premises, though the Wife maintains that such premises were vacant during the period of their marriage. Further, Pyari claimed that she earned income from her involvement in the Ms. India Caribbean World beauty pageant. The Wife denied this and suggested that in any event any such earnings were insufficient to meet her needs.
161. I have already found that I do not believe that during the marriage the Husband earned as much as he claimed to have earned and that the Wife would have been better placed financially to meet the needs of the household,. Having considered the evidence, am of the view that the Wife did in fact cover the greater part of the household expenses, and that this would have included meeting some of the needs of the Husband’s mother who resided with them. Surely, when the Wife purchased groceries and so forth I do not think that she would have restricted same to herself and the Husband to the exclusion of her mother-in-law who also resided under the same roof.
162. In her affidavit of the 27th July, 2007, the Wife stated that S450 000 of the loan monies was used to purchase the Calcutta property. It turned out that the repayments of S6 039 was also being paid out of the very loan monies. She said that out of the remainder of the loan monies, S30 000 was spent on paying the Husband’s credit card. which he denies. A further was spent paying a debt which the Husband owed to his father. The Husband admits that this was paid but says that it was monies loaned to both of them rather than to him. The Wife said that monies from the loan were also spent on closing charges and a partial down payment on the second container of goods. The
Wife claimed that her salary at the hardware was used to defray all of the Husband’s expenses inclusive of those of his mother, such as groceries, maid, telephone and cable, internet, yard boy, the Husband’s cell phone bill and clothing expenses. As was said earlier, the Wife indicated that she earned $2.792.10 from Ramlagan’s Hardware. She later indicated at trial that this was increased to SS 000. I find that the Wife could not, on her salary earned at the time, have met all of the expenses which she claims to have met. She herself detailed meeting a number of expenses out of the loan monies and I suspect that many of the expenses which she claims to have met out of her salary from the hardware were instead also met with such monies, As has been established by now, the loan was paid off by the Husband’s parents.
163. The Wife claims that the business did well. She said that she sold the goods at a significant markup. However, despite profiting from same, such monies did not go to her mother. She herself said that they were hers to keep. Apart from some of the monies going towards the bringing in of a container, it appears that many of the expenses were met and assets acquired out of the loan monies. There is nothing to suggest the profits from the business went towards this. There is thus the glaring question of what was done with the majority of the monies from the business. The Husband claims that the Wife used those monies for her own personal needs and in the absence of any evidence as to what was done with the bulk of same, and her having acknowledged the uses to which the loan monies were put, I am inclined to agree with him. At the very least, I am of the view that the Wife had and may well still have the bulk of the monies from the business at her own disposal, to the exclusion of the Husband.
(g) Any order made under Section 53
- No such order was made.
(h) The value to either of the parties of the marriage of anv benefit,..which by reason of the dissolution or annulment of the marriage that partv will lose the chance of acquiring.
165, In his Form 9, the Husband indicated that he has a CLICO life insurance policy. No further details were provided regarding the estimated value of same.
166. As I indicated earlier, I have formed the view that the Husband did indeed conceal the documents relating to the frozen vegetarian products business upon the Wife’s departure from the matrimonial home. I am of the view that he deliberately did so, not
only in an attempt to frustrate her ability to prove claims which he may have foreseen she would eventually, and did in fact make in relation to same, but also to indicate to his father the profitability and potential ofthe business.
167. The Wife accused the Husband of abusive behaviour. In her affidavit of the 27th July, 2007 she stated that “the intended respondent is a man of violent and ungovernable temper and I soon discovered that he would not hesitate to intimidate, threaten and bully me to get his own way. There have been several incidents of threatening behaviour culminating in the events of the night of 22nd July, 2007 when the Intended Respondent assaulted me and ran me out of the house. I am still exhibiting the assorted bruises to my arms, throat and back
168. The Husband denied the Wife’s allegations of violence made against him. He countered that she is an extremely jealous person and said that she exhibited those traits on their honeymoon. According to him, he is unable to spend any time out of her sight or more particularly, interacting with his relatives since she would throw a tantrum and attempt to destroy items in the home. Further, he claimed that she left the home before at all hours in the night after she worked herself into a mad frenzy.
169. According to the Husband, on the night of 22nd July, 2007, the Wife over heard him talking to his brother on the telephone. He said that the Wife became angry because he had been discussing the possibility of expanding their Vegefarm business to London. The Husband maintains that the Wife was the aggressor- she tried to grab his laptop and threatened to mash it up. She scratched him and tore his clothes and he grabbed her neckHe said that he pushed her away to defend himself and his laptop. She launched a solid jade bracelet at him which struck him between the eyes and then proceeded to kick down their closet door. She also threw a heavy vase at him on her way out of the home. The Wife denies these allegations of violence on her part.
170. At trial, the Wife was cross-questioned about her allegations of violence against the Husband. She claimed that when an argument between them broke out on the honeymoon, the Husband was “a little bit physical However, she then repeatedly claimed that she was unable to recall how he was “physical “. She went on to claim, however, that they always had arguments and “he would always threaten me and all of that”. She further claimed that he always intimidated her and when asked in what manner, she claimed that he would “rough her up”. She admitted that she never went to the police when he roughed her up but claimed that she told her parents. During crossexamination, her mother said that she was unaware of any alleged abuse. She stated that
she never witnessed any violence between the parties and further said that neither party ever complained that the other was violent towards him or her.
171. The Wife was then questioned about the injuries which she alleges she suffered during the events of the 22nd July, 2007. She stated that he was very physical. He held her and shook her up, choked her and slapped her a few times. When asked whether she considered this the worst assault she experienced from him, she stated that it probably was and went on to claim that there was blood coming out of her ear which she claimed his father noticed. There was no mention by the Wife of any blood coming out of her ear in her affidavit evidence and this allegation was raised for the first time at trial. When queried about this she responded “that’s just an addition 1 can recall”. The Wife admitted that she did not visit a doctor regarding her injuries but claims to have visited a gentleman in the village, whose title she could not recall, to make a report about it. When pressed, she claimed he worked in “the fields ofthe legal aspect but is not a lawyer “. She did not state the gentleman’s name.
172. From the Court Order dated the 15 th July, 2008, I note that domestic violence proceedings were commenced in the Magistrate’s Court and that such proceedings were to be discontinued , discharged or withdrawn upon an undertaking given to the Court not to harass, molest, assault, abuse or use offensive or threatening language. Having considered the totality of the Wife’s evidence, I do not believe her allegations of violence against the Husband. The Wife’s evidence regarding same was vague and unconvincing. From the accounts given by both parties, I find that there was indeed some sort of argument and prefer the evidence of the Husband over hers insofar as he claimed that he pushed her off to defend himself and his laptop. I do not believe her when she says that she suffered the injuries claimed, that the Husband was in the habit of exhibiting threatening behaviour or that he was a man of “ungovemable temper” as she claims. Rather, I suspect that the Wife claimed same in an attempt to paint the Husband in a negative light in the hopes of increasing any eventual award to her.
173. In arriving at my decision, I have had regard to the applicable law and legal principles and have taken into account all of the evidence. In particular, I note that the marriage was a short one, lasting only fifteen months. They did not have any children together. The premises which served as the matrimonial home is owned by the Husband’s mother. Though substantial contributions were made by the Wife’s father through his
company, Ramlagan’s Hardware, towards the completion of the home, Rnlagan’s Hardware has since sued and obtained judgment against Pyari and her son on that issue. I! is for the company to seek to enforce the judgment/order and in those circumstanceswhat would otherwise apply in terms of the Wife obtaining a beneficial interest in the said property by way of the indirect financial contributions made on her behalf, does nol now apply in this case.
174. I further find that that though the Wife made the greater contribution towards the expenses of the household, many of those expenses were met with the F.C.B loan monies. which as it turns out, ended up being paid off by the Husband’s parents. The Husband’s mother has brought a civil action against the Wife with respect to that loan and such proceedings were stayed pending the deten-nination of the ancillary relief application before this Court.
175. The Wife seeks an interest in the Freeport property. The parties never completed the purchase of same and so do not have legal title to same. In any event, I have concluded that that property was also purchased out of the loan monies and therefore if anyone were to have any form of beneficial interest in same, it would be the Husband’s parents. The Calcutta property was purchased in the parties’ joint narnes and the Wife seeks property settlement in relation to same. The monies to purchase this property also came from the loan which was paid off by the Husband’s parents. In the circumstances, hold that the Calcutta property is jointly and equally held by the parties on trust for Pyari Cheng and Gnai Wah Cheng.
176. With respect to the vegetarian products business, I find that it was the Wife who commenced same prior to the marriage and it was she who devoted her time and energy towards growing the business. It was the Wife who, through her mother, invested significant funds in the business. That being said, while it may have originally been her business, I am of the view that the business thereafter belonged to both parties, although the Wife’s contribution towards same significantly surpassed that of the Husband. As was said earlier, I am of the view that the Wife treated the profits of the business as solely hers and I am of the view that she had and may well have the majority of the proceeds from the business at her disposal. I also note that the manner in which the Wife dealt with the goods secured by the injunction, in particular that approximately of same were put to personal use in the form of legal fees.
177. The Wife seeks shares and interest in the assets of JER Cheng Companies Limited. Unfortunately, no professional agreed valuation was done of the business and to engage in determining same would amount to nothing more than speculative guesswork
that would not assist in resolving the situation. Unfortunately, it does not appear that the parties share an amicable relationship to be able to continue working together regarding the operation of that company. In any event, the Husband now works in his parents’ business which is of a similar nature. Having taken into account all of the circumstances of the case, I am of the view that the Husband ought to be required to transfer any share or interest which he possesses in JER Cheng Companies Limited to the Wife,
178. With respect to the monies obtained from the sale of the goods secured by the injunction, statements produced by Scotia Bank indicate that as at August 2012, the account in the name of Phulmati S. Ramlagan held the sum of S275 154.11. At trial, she admitted to approximately SZ!LQ for legal fees. Taking all of the circumstances of the case into account, including the fact that I have determined that the Wife used or has kept most of the profits from the business for herself, upon attorneys for the parties ascertaining what sum is curently held in that account, I am of the view that the Husband is entitled two thirds (2/3) of such monies. The remaining 1/3 shall be awarded to the Wife.
179. In her Form 8, the Wife indicated that she is seeking periodical and lump sum payments for her support. This is not a case of someone possessing scant academic qualifications or someone who was maintained during the course of her marriage. The Wife possesses a degree specializing in accounting and throughout the marriage she was employed and worked hard to build the vegetarian products business. She is not unemployed. She currently earns a salary of ÜQLQ working at her father’s hardware store. She has since remarried and lives in a villa in Lange Park which was purchased for approximately 1.7 million dollars. She owns this property jointly with her new Husband who is responsible for meeting the monthly mortgage payment of approximately
In all of the circumstances, I am not convinced that she is entitled to any maintenance.
180. In her application for ancillary relief, the Wife also claimed in relation to the furniture, fixtures and amenities of the matrimonial home. I have found that the Wife either had at her disposal for her sole benefit, or may well still have, most of the profits from the Vegefarm business conducted during the marriage. This, despite the fact that the parties jointly owned same. Further, Ramlagan’s hardware has obtained judgment against the Husband and his mother with respect to building materials advanced for the completion of the matrimonial home. Pyari Cheng has paid off her judgment debt and it is open to Ramlagan’s Hardware to enforce against the Husband. Taking all of this into account, I do not think that awarding the Wife a share of the furniture, fixtures or amenities in the matrimonial home would be appropriate.
181. In his Form 9, the Husband seeks an order for maintenance for himself. At the time of filing his Form 9, the Husband indicated that he was being maintained by his mother. He now works in his parents’ business, Matthew Foods Limited, as the manager. He maintained under cross-examination that he no longer carries on the construction business. There is no evidence that he works anywhere else and I find it more probable than not that he earns a salary from working at Matthew Foods Ltd. or participates in the profits from that business as opposed to his working there, deriving no financial benefit therefrom while his mother continues to financially maintain him. Taking all of the circumstances of the case into account, I do not think that an award of maintenance in his favour would be appropriate.
182. In light of the above analyses and findings, the Order of this Court is as follows:
- The Calcutta property is held equally by the parties on trust for Pyari Cheng and Gnai Wah Cheng.
- Neither the Husband nor the Wife has a legal or beneficial interest in the Freeport property.
- Attorneys for the parties shall jointly write to Scotia Bank to determine the exact amount of monies in account number 1200538 and upon such a determination notify the Wife’s mother, Phuimati Shanti Ramlagan.
- Within one week of such notification as mentioned in clause (3) of this order, Shanti Ramlagan shall transfer two thirds of such monies to the Respondent/Husband, account information to be provided and the remaining one third to the Petitioner/Wife, account information to be provided.
- Neither party is entitled to an award of maintenance. Accordingly, the claim by both parties for the award of periodical payments is hereby refused.
- Each party shall bear his/her own costs of these proceedings.
- Liberty to apply.
Dated this 30 th day of April, 2015
Robin N. Mohammed