Stoutt v Stoutt
| Jurisdiction | British Virgin Islands |
| Judge | Bishop, J. |
| Judgment Date | 18 July 1994 |
| Neutral Citation | VG 1994 HC 15 |
| Docket Number | 187 of 1990 |
| Court | High Court (British Virgin Islands) |
| Date | 18 July 1994 |
High Court
Bishop, J. (Ag)
187 of 1990
Mr. S. Bennet for plaintiff
Mr. G. Farara for defendant
Family law - Husband and wife — Matrimonial home — Extent of plaintiff's interest in lands and dwelling house — Plaintiff making imprecise direct and indirect contribution to construction and improvements — Contributions taking the form of savings, salary, loans and sale of pies and cakes — Once parcel of land represented gift to defendant from his father — Other parcel of land purchased mainly with monies belonging to plaintiff — Plaintiff declared to have equal share in building and three-quarters interest in one parcel of land — Parcel given by defendant's father declared sole property of defendant.
Bishop, J. (AG): Violet Cecelia Stoutt, the plaintiff and Clifton Stoutt the defendant were married on the 10th November, 1973. The marriage did not for very long survive the vicissitudes that are sometimes expected in such a relationship, and after leaving the matrimonial home for about six months in 1984, Violet Stoutt moved out permanently in July 1985. The parties were subsequently divorced.
By an originating summons filed on the 6th December, 1990 on behalf of the wife, the question of the title to certain property has been raised for determination. It contained eleven paragraphs but learned counsel quite properly conceded that it did not fall within the power of a judge, acting under the provision of section 19 of the Married Women's Property Act, Cap. 238, to make an order rectifying the land register, or a declaration in respect of rents and profits, or for the taking of accounts, or for an order for payment after taking accounts, as sought in paragraphs 2 to 5 inclusive. The remaining declarations sought were that (i) the plaintiff is the owner in common with the defendant of the land and concrete two storey dwelling house situate at Apple Bay, Tortola, comprising Parcel 27 of Block 2235B of the Mount Sage Registration Section, in such proportion as the court deems just (ii) the plaintiff is entitled to have the joint ownership between herself and the defendant severed in respect of a parcel of land situated at West End, Tortola, measuring 0.335 acres and described in the land register as Parcel 84 of Block 2234B of the Mount Sage Registration Section (iii) upon such severance the plaintiff shall be entitled to be registered as a proprietor of the said Parcel 84, in common with the defendant, in the proportion of six sevenths thereof to the plaintiff and one seventh thereof to the defendant or such other proportion as the court thinks just, having regard to the plaintiff's far greater outlay in respect of the said Parcel.”
It was not until the 9th July, 1993 that the plaintiff's solicitor filed an affidavit in support of her claim. This affidavit contained, in my view, a number of vague statements and opinions. For example, “we … both expended much effort and money on the construction …”, and, “pursuant to this common understanding I had and have since spent much money and effort and incurred liabilities to banks … to develop and improve the said ‘matrimonial house.” (paragraph 8). I would have preferred assistance in which there was indication of the amount of money allegedly spent and the extent of the liabilities incurred, rather than the vague allegations of “much money” and “much effort.” Further, I would have preferred to have the facts and circumstances rather than the view of the deponent that it had always been their common understanding that the land and dwelling house would be theirs jointly and that she acted as a consequence of that understanding and spent much money and effort. Another affidavit re-filed on the 2nd February, 1994 was open to the criticism of setting out a great deal of narrative in somewhat lengthy paragraphs.
The plaintiff was cross examined on the contents of her affidavit and then re-examined before learned counsel closed the case.
As I understand the case for the plaintiff, her dispute with her husband concerns a two storey dwelling house standing on a parcel of land, herein also called Parcel 27, and another parcel of land known and referred to as Parcel 84. Both parcels of land are in the mount Sage Registration Section.
It is not disputed that the land itself belongs to the defendant to whom it was given by his father Warren Stoutt. Any earlier doubt that may have been raised about the correct parcel of land has been unequivocally resolved.
It is clear from the evidence that this dwelling was constructed in two separate and distinct stages, known and described herein most often as the first floor and the second floor.
Violet Stoutt said that when they were married it had not yet been completed. Indeed they moved into it on the night that they were married. She said also that it was completed while they lived there as husband and wife. She claimed that before they moved in, she and the defendant — in 1972 — began the construction; but under cross examination she admitted that she was not “involved with” Clifton Stoutt before construction commenced. She could not say if construction commenced in 1967. She denied that the defendant occupied the first floor in 1969 and that he had been occupying it when they were married. She denied too that they never made any plans during the period of their courtship and that he had already owned the first floor, which became the matrimonial home upon their marriage. The plaintiff expanded upon what she had sworn to initially, when another affidavit was filed on her behalf in November 1993; and it was apparent that she had by then read the affidavit of Clifton Stoutt filed on the 30th July, 1993. She said that in 1972 they had discussions in which they were making plans and they agreed to pool their efforts to build a home. She had saved some money — she did not give any idea how much it was — and he was providing the land given him by his father. Violet Stoutt deposed that they visited the site of the proposed matrimonial home and she saw that the cistern had been completed and the floor laid. In addition there were “a few blocks erected on the site.” It was put to her and denied (i) that she made no monetary contribution whatsoever towards the construction of this floor and (ii) that there was no pooling of efforts to build the floor. The plaintiff also stated that in June 1973 they discussed raising a bank loan in order to complete the home. The defendant explained to her that they would have “to wait until the title was clear” before the land could be put up “as security for a construction loan.” She stated that she then went to the bank and got a series of unsecured loans based upon her employment with the Government. The first loan for $4392.00 was made on July 12, 1973 and it was repayable over 36 months. That sum of money was used for the purchase of building materials for the house. She also explained that they were able, jointly, to purchase on credit, a bed and dining room set which were installed in early November 1973 before they moved in (on the 10th). Violet Stoutt referred to two “further loans which she made for $1062.00 and $2130.00 and which she said were used to advance construction of the house. The dates of these loans were not given, and although the names of the guarantors of the loans were set out in her affidavit, the court did not hear from the two persons named. It was specifically denied in cross examination that she did not give the defendant any money and that the money which she said she borrowed from the bank was not used in the construction of the first floor. She told Mr. Farara: “I gave him all my savings plus money I borrowed from Chase Manhattan Bank towards construction of the first floor.”
Violet Stoutt referred in her affidavit to the plumbing of this floor. She said that when they moved in the house there was no plumbing. She provided the money necessary for its installation as her husband could not afford the services of a plumber and also he was absent from the matrimonial home for long periods — sailing with his father. She explained that she did extra work from her normal work. She baked cakes and pies for sale and saved enough money to pay a plumber. According to her the plumbing on this floor was completed and paid for by about August 1974. It was put to her and denied that she did not pay for any plumbing, as it had been already installed by the time that they moved in on the 10th November, 1973.
The credibility of Violet Stoutt was attacked in cross examination by learned counsel for the defendant who urged that Clifton Stoutt enjoyed a relationship with Alma Frazer before he became associated with the plaintiff, and that the first floor was completed during his relationship with Alma Frazer, the mother of his daughter Beverly. It was suggested — and denied — that the defendant was involved with Alma Frazer at the time that the construction of the first floor was completed. There was also cross examination about the materials used in the construction. The plaintiff admitted that the defendant's father owned and operated a cargo vessel and that he transported building materials free of charge from Puerto Rico to Tortola, for use in construction of the first floor. She told counsel for the defendant that as far as she was aware the defendant's father did not lend him money to buy building materials, nor did his father give him such materials. The plaintiff readily admitted that her husband did physical work on the building, but she added that he was assisted by her uncles Jackie Todman and Casper Turnbull. In the case of the latter she said that he helped both of them and not just the defendant. She denied that she and her husband did not enjoy a close relationship when Casper Turnbull rendered assistance....
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