Scatliffe v Scatliffe
| Jurisdiction | British Virgin Islands |
| Judge | Georges, J |
| Judgment Date | 15 July 1993 |
| Neutral Citation | VG 1993 HC 23 |
| Docket Number | 139 of 1992 |
| Court | High Court (British Virgin Islands) |
| Date | 15 July 1993 |
High Court
Bishop, J.
139 of 1992
Mr. Gerard St. C. Farara for Plaintiff
Mr. Sydney A. Bennett for Defendant
Family law - Husband and wife — Matrimonial property division
Plaintiff seeks the following declarations and orders, namely:–
- A declaration that the matrimonial home and land situate at John's Hole in Tortola registered as Parcel 109 of Block 2838E of the Road Town Registration Section is owned by the Plaintiff and the Respondent in equal undivided shares or such other order as to the ownership thereof as the Court deems just. 2. A declaration that the concrete building and land situate at Scatliffe's Alley in Road Town in Tortola registered as Parcel 3 of Block 2837E of the Road Town Registration Section is owned by the Plaintiff and the Defendant in equal undivided shares or such other order as to the ownership thereof as the Court deems just. 3. A declaration that the Pathfinder motor jeep VI 7396 is owned solely by the Plaintiff or such as to the ownership thereof as the Court deems just. 4. An order that the Plaintiff is entitled in common with the Defendant to possession and occupation of the matrimonial home at, john's Hole registered as Parcel 109 of Block 2838E of the Road Town Registration Section aforesaid. 5. An order that the Plaintiff is entitled in common with the Respondent to possession of the property at Scatliffe's Alley registered as Parcel 3 of Block 2837E of the Road Town Registration Section aforesaid. 6. An order that the Plaintiff is entitled to exclusive obsession of the Pathfinder motor jeep VI 7390 aforesaid. 7. An order that the Land Registers relating to the matrimonial home Parcel 109 of Block 2838E of the Road Town Registration section and the property at Scatliffe's Alley Parcel 3 of block 2837E of the Road Town Section be rectified so as to give effect to the orders made under paragraphs 1 and 2 above. 8. 8. An account of all rents and other monies collected or obtained by the Defendant from the rental of:– (i) The property at Scatliffe's Alley, Parcel 3 of Block 2837E of the Road Town Registration Section; and. (2) The Apartment building at Palestina Estate in Tortola Parcel 34 of Block 2635B of the sea Cows Bay Registration Section, owned by and registered in the names of the Plaintiff and Defendant in equal undivided shares. 9. In order for payment by the Defendant to the Plaintiff of all monies found due to her after the taking of such account under paragraph 8 above. 10. An order that all monies previously and currently held in certificates of Deposit accounts at the Chase Manhattan Bank in Tortola or in any other bank, jointly by the Plaintiff and the Defendant are owned by them in equal shares. 11. An order that all monies previously or currently held or deposited in savings Account No. 6512 at the Chase Manhattan Bank are owned jointly by the Plaintiff and Defendant in equal shares. 12. An order for the payment to the Plaintiff of her half share of the monies currently held or previously held in any such Certificate of Deposit accounts and Savings Account No. 6512 aforesaid. 13. An order for all necessary and proper inquiries and directions for the taking of the account and for the disclosure of bank records relating to the jointly held Certificates of Deposits and Savings Account above-stated.”
It would perhaps be apt at the outset to set out the nature and scope of an application made under section 19 of the Act which provides that:
“In any question between husband and wife as to the title to or possession of property, either party… or any bank etc. in whose books any stocks, funds or shares of either party are standing, may apply by summons or otherwise in a summary way to any, judge; and such Judge may make such order with respect to the property in dispute, and as to the costs of or the consequence on the application, as he thinks fit…”
Under the provisions of the Act, the duty of the Court is to determine what the proprietary rights of the parties are in respect of property in dispute and it has no power to vary those rights once they have been established and have not been varied by subsequent agreement. The duty of the rt is not to create rights for the parties but to declare their existing rights. The jurisdiction conferred by section 19 of the Act is not therefore discretionary.
Further, the court has no jurisdiction under the Act to order that an account should be taken or to conduct an inquiry with a view to ascertaining whether property or a fund exists or to decide questions which if resolved in favour of ‘the party raising them, would only show that a debt was owed by one party to the other.
Such matters could clearly in my view be dealt with more appropriately by way of summons under Order 43 of the Rules of the Supreme court than on a section 19 application where the Court is empowered to determine the beneficial interests of the parties in property in dispute in a summary way. (My emphasis)
All of this is clearly exemplified by the dicta of Goddard, C..J. in Tunstall v Tunstall [1953] 2 ALL E.R., 310 at page 311 paragraphs G and H and that of Wynn-Parry, J. in Re Camkin's Questions [1957] 1 ALL E.R. 69 at page 71 paragraphs B, C, and D. And it is for these reasons that I do not propose to make any orders in respect of the relief sought at paragraphs 8, 9, 10, 11, 12 and 13 of the plaintiff's originating summons; and for the purpose of this exercise, I shall therefore deal with the beneficial interests of the parties in and where applicable, their respective rights of possession to and/or occupation of:–
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(1) The Palestina Estate Property
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(2) The Scatliffe's Alley Property
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(3) The Matrimonial Home at John's Hole
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(4) The Nissan Pathfinder Motor Jeep VI 7390
The declarations and the orders sought by the plaintiff in respect of the above are set out at paragraphs 1 to 7 of the originating summons.
The parties, who are husband and wife, were married on the 28th July, 1979 in Tortola and have three children aged
25, 24 and 13. The plaintiff, a secretary at the BVI Port Authority, at present resides at Lower Estate and the defendant, a self-employed businessman lives in the matrimonial home at John's Hole.
After their marriage, the parties cohabited at Scatliffe's Alley, in property then owned by the defendant's family until September, 1984 when they moved to their own newly constructed home at John's Hole until 31st March, 1992 when, according to the plaintiff, she was forced to leave by violence and threats of violence from the defendant.
The plaintiff, now aged 43, worked initially with the chase Manhattan Bank from 1978 until 1985 when she joined the social security Board as an administrative officer at a salary of $1000.00 per month. In November, 1988 she left and joined her husband as office manager of Popeye's Gas Service Station from January, 1989 until December, 1989 (without salary) and then from February 1990 to July 1991 at a salary of $1,500.00 a month.
The defendant at first ran a trucking business and later operated and continues to operate Popeye's Gas Service Station. There is no evidence whatsoever of the income derived from those enterprises but as will shortly emerge, the defendant's income appears to have been substantially greater than the plaintiff's.
I now turn to the properties in dispute.
This comprises a six single-bedroom apartment building situate on 0.23 acres of land at Sea Cows Bay Block 2635E Parcel 34 and was registered on the 19th November, 1980 in the joint names of the parties as tenants-in-common in equal shares.
Let me hasten to say that the plaintiff has not, in her application to the Court, put ownership of the Palestina Estate property in issue. No declaration as to its 2ownership is sought. What the plaintiff seeks at paragraphs 8 and 9 of her originating summons is an account of all rents and other movies collected or obtained by the defendant from the rental of the apartment building and an order for payment of her share_ on the basis that she is entitled to a half share interest in the said property as tenant-in-common. (Underlining supplied)
The defendant on the other hand contends at paragraph 11 of his affidavit in reply that the plaintiff's beneficial interest in that property is less than the 50% claimed by her on the ground that (see paragraph 6 of the defendant's affidavit) the apartment building was constructed solely from his separate funds.
Learned Counsel, for the plaintiff however submitted that in any event, an assertion in an affidavit by the defendant was not sufficient to put the matter in contention for determination of the court and that the words “or otherwise” in section 19 of the Act related to some originating summons filed by the defendant.
I respectfully beg to differ; for if a plaintiff in his/her originating summons either expressly or by necessary implication clearly asserts his/her claim to certain property, it is also open to the defendant in his affidavit in reply to “counterclaim” and put the matter in issue for determination by the court. In my view, it would be quite unnecessary for the defendant to take out a fresh summons in order to have the issue of the property in dispute determined by the Court in a separate suit.
As stated earlier, the plaintiff stakes her claim to a half share of the beneficial interest in the Palestina Estate property by reason of the fact that the defendant and herself are the registered proprietors as tenants-in-common each with a half share of the land in question (Parcel 34).
According to her, the defendant and herself purchased the land in November, 1980 for $9,000.00 of which she contributed $2,000.00. The defendant on the other hand claims that he paid the purchase price of $10,000.00 in 1986...
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