IN THE HIGH COURT OF JUSTICE
HCA 2168/98
BETWEEN
SYBIL PLATO
Plaintiff
AND
GEORGE TAYLOR
Defendant
Before: The Hon. Justice Nolan Bereaux
Appearances: Patricia Roberts for the Plaintiff
Stanley Marcus S.C. & Donna Prowell
for the Defendant
JUDGMENT
The plaintiff and defendant cohabited as man and mistress from 1958 to 1984. They never married. Theirs was what is known in Trinidad and Tobago as a common law marriage. At the commencement of the relationship in January 1958, the defendant, by his own words, “was not short of money”. He was the proprietor of a bakery and café known as Tocopeak Bakery, situated at #139 Western Main Road, St James. He also owned property at Tunapuna, Maracas Valley, St Joseph and St James, Port of Spain. He adopted her first child, a daughter. She bore him two sons.
By the end of the relationship the defendant was a man of considerable worth, having acquired valuable real estate, as well as cash in the bank and shares in various companies. The true extent of his worth, he has not disclosed.
The legal interests in all real estate and company shares acquired by the defendant during the relationship are vested entirely in him. This includes the freehold interest at #9 Luckput Street, St James where the parties cohabited from 1975 to 1984 and the freehold interest in #137 Western Main Road where the parties cohabited from 1958 to 1975. He also holds a leasehold interest in the land at #139 Western Main Road on which the bakery stands. The plaintiff, other than cash in the bank acquired through savings from a small salary latterly paid to her by the defendant, had nothing.
Some fourteen years after their separation, the plaintiff brings this action seeking half share in certain properties owned by the defendant. The defendant, she alleges, after initially agreeing to share the properties acquired during their relationship, now threatens to evict her from the bakery business.
The plaintiff contends that the defendant holds the legal estate in certain properties, company shares and bank accounts set out in her statement of claim, upon trust for them both.
Such a trust may arise:
(a) by express agreement.
(b) by resulting trust where the plaintiff has directly contributed towards the acquisition of the properties in question
(c) from the common intention of the parties. (to be inferred from their conduct)
“Common law marriages” in Trinidad and Tobago are an integral part of our history. Until recently, their legal status was unclear. In Harrinarine v Aziz & Aziz HCA 1992 of 1982, Sharma J at pg. 23 commented, albeit obiter, that given the unique position of common law marriages in our society:
“the living together in a common law relationship over an extended period during which the “wife” out of her earnings looks after the children … and looks after household and other expenses constitute prima-facie evidence of a common intention that she should have a beneficial interest in the property which is solely in the name of the common law husband.”
That dictum was disapproved on appeal. Hosein J A who delivered the main judgment of the Court of Appeal commented that the relevant legal principles were those relating to constructive, implied and resulting trusts as per Gissing v Gissing [1970] 2 All E R 780. At pg. 7 of the judgment he states:
“if the status of a common law wife in Trinidad and Tobago is to be accorded a formal validity or is to be denuded of disability or is to attract benefits outside the application of these principles there would have to be statutory intervention…”
de la Bastide C J in a short concurring paragraph, at pg. 8 of the judgment added:
“One of the difficulties in according such persons any special status is the lack of certainty in the definition of that status in the absence of a statute containing one and the wide variety of situations to which that term may be applied. I do agree, however, that the inference which one can reasonably draw from the person’s words and conduct with regard to the intention must depend to some extent at least on the customs and moreso of the society in which the persons live. It is through this door that the special features (if any) of our common law marriages may enter into reckoning.”
(See Aziz & Aziz v Harrinarine Civil Appeal 46 of 1987).
Statutory recognition has now been given to such relationships by the Cohabitational Relationships Act, No. 30 of 1998 which came into effect on 23rd November, 1998, one week prior to the Court of Appeal’s decision. Further, the Distribution of Estates Act, No. 28 of 2000, was quite recently enacted, (July 2000) to give effect to the interests of a surviving cohabiting partner upon the death of the other. As of the date of this judgment, it had not yet been assented to.
The Cohabitational Relationships Act does not apply to a relationship such as this, which ceased before the Act came into effect. In any event, this action preceded the coming into force of the Act and is to be decided on the well-established principles relating to constructive, implied or resulting trusts.
Unlike most actions of this nature, the parties continued their business relationship after separation. The plaintiff continues to run the bakery business to the virtual exclusion of the defendant. The defendant collects the value-added tax returns.
The plaintiff claims an express agreement by which both parties agreed to pool their resources and to share and share alike and that pursuant to that agreement she contributed both directly and indirectly to the acquisition of the properties in question.
When they first met, the defendant was already 49 years old, the plaintiff was 24. She was born in St Vincent and grew up there, but migrated to Trinidad some time in 1956/57.
On Christmas day 1957, she having earlier that year commenced work in the bakery, the defendant presented her with an engagement ring accompanied by a letter in the following terms:
A CHRISTMAS PRESENT TO SYBIL
FROM
HER SWEETIEPIE (GEORGE)
On this first Christmas Day which we are spending together I want to make a special contribution which will be of vital importance in our future life.
In so doing, I want same to serve a dual purpose. Firstly to prove my willingness to be sincere to you and also on the last day of my 49th birthday, to seal off a career well lived and to open another in which you will have to share in the making.
Darling, you may ask what it is.
It's the contents of the small box
My darling the long spell of uncertainty is over but before us lies the long and dreary road of life. You are young and I am experienced. My advice to you is
Darling let honesty, simplicity and conscientiousness
be at all times be your motto.
Do not let anyone re-arrange you.
My darling to love is sweet but it is sweeter still to be beloved but we must also remember that the torns and laurels are on the same branch so do tolerance and sacrifices underlie love and marriage.
Darling like all others we have our trials to meet as we go along. Let us pray that God will bless us with the courage to stand by each other in troubled times and when temptations confront us remember our promise.
All for one and one for all
Darling you are my wife, the mother to-be of the children who we have to train and in so doing we are to be the pattern on which their future lives must be based.
My dear, may God bless us and guide us in all we do.
Your Ever Loving
Sweetiepie (George)
Signed: G Taylor
That letter, together with certain utterances made by the defendant to the plaintiff on that fateful day, forms one of the bases of the plaintiff's claim of a beneficial interest in the defendant's properties.
Statement of Claim
As much as it contributes to the length of this judgment, I find it necessary to deal in some length with the pleadings.
In summary, the plaintiff contends that she has made "substantial" contributions and "immense" indirect contributions to the purchase of the properties in which she claims a beneficial interest. She alleges an agreement between them to share their resources and that pursuant to it, she committed herself to domestic duties of the household and to the bakery business in the expectation that all proceeds and acquisitions would accrue for the benefit of them both and for their family. Her duties in the bakery business were performed without the benefit of a salary for some twenty-one years.
Those duties became full-time from 1977 after the defendant fell ill with diabetes. Her claim is also based on certain representations made to her by the defendant with respect to:
(i) an offshore bank account at Lombard Bank, Jersey, United Kingdom which she contends was set up by the defendant in their joint names in appeasement of her demands for a salary, but which she subsequently in 1987/88 agreed to transfer into his sole name because of his assertion that her name on the account caused it to attract income tax.
(ii) the establishment, in her name alone, of a real estate agency called the Capricorn Real Estate and Commission Agency. Commercial premises situate at #64 Western Main Road, St James were purchased in the name of the agency, which produced $3,000.00 per month in rental income. The business address of the agency was #9 Luckput Street, St James.
She claims inter alia income foregone from that rental as being part of the "direct" contribution she made to the acquisition of the defendant's properties.
She contends that from 1958 to date, the defendant regularly acquired properties with the proceeds of the bakery business and loans from various financial institutions, all of which were serviced by the profits derived from the bakery business.
She discovered in 1987 that the defendant had been diverting the proceeds to purchase real estate. They agreed that he would be paid the sum of $250.00 per day and that the plaintiff would pay the expenses of the business. She continued to adhere to this arrangement until 1992 when she stopped, because of increasing overheads.
Her particulars of “substantial” contribution are as follows:
Deprivation of salary for a period of some forty-two (42) years, namely:-
(a) 1957 to 1984 - No salary received but should
have received $800.00 x 12 months x 7 years - $ 67,200.00
(b) 1985 to 1990 - Short fall in salary - only
received $160.00 per week when plaintiff
should have received $500.00 per week -
5 years x 52 weeks x $340.00 per week - $ 88,400.00
(c) 1990 to 1999 - Short fall in salary - only
$200.00 per week - should have received
$1,200.00 - $1,000.00 x 52 x 9 years - $ 468,000.00
(d) Deprivation of income derived from rental
of No. 64 Western Main Road, St James
for a period of 18 years from 1980 to 1999 -
9 years x 12 x $6,000.00 - $1,368.000.00
Total - $1,991,600.00
The defence
The defendant denies that the plaintiff was at any time his business partner or that they carried on business together at No. 139 Western Main Road, St James. He denies any agreement with her to pool their resources.
The defendant contends that he began acquiring properties with his own resources and in his sole name from 1940. The purport of his defence can be gleaned from the particulars in paragraph 4 of the defence, by which he claims to have accumulated his properties in the following way:
(a) Participation in two sou-sou schemes and purchasing four properties in Tunapuna between 1942 and 1943.
(b) Pig-rearing and sale of fruits from the Tunapuna properties and the La Baja, St Joseph, Maracas property (acquired in 1940).
(c) Commissions and perquisites as agent and trustee for Woodbrook Friendly Society.
(d) Commissions for collecting rents for St James Star Friendly Society, St James Mutual Friendly Society and Woodbrook Loyal Friendly Society.
(e) Savings from the defendant's bakery business accumulated before the defendant met the plaintiff.
(f) Rents from buildings on the aforesaid and other properties.
(g) Overdraft account with Royal Bank of Canada, St James Branch, opened in 1964, with a loan margin of $60,000.00, for the purchasing of properties.
(h) A "property account" with Royal Bank of Canada, St James Branch, into which defendant deposited rents received from his properties.
(i) Demand loan for $60,000.00 with Royal Bank of Canada, St James Branch with a maximum drawdown of $60,000.00.
(j) Pioneer status financial concessions, and tax benefits granted to the defendant by Government for providing housing.
(k) Income from granting mortgage loans.
(l) Dividends on stocks and shares in banks and other financial institutions.
He contends that after 1977, the plaintiff accepted the option of running the bakery business and paying him $250.00 per day, retaining the profits therefrom for her own use. She continued doing so until 1992 when she ceased paying the daily sum of $250.00.
Despite the retention by the plaintiff of the profits from the business, he has paid for the maintenance, insurance and other outgoings in respect of No. 139, Western Main Road, St James.
The defendant states that the assistance given him in his business by the plaintiff was no more than was expected of the plaintiff. He denies that the properties were acquired with the assistance, directly or indirectly of the plaintiff. Indeed, the properties were acquired in the course of what he describes as his property investment business. The proceeds from the bakery business were earned by and belonged to him exclusively and the profits derived from the business were re-invested in the expansion and improvement of the said business.
As to the Lombard bank account, the defendant says that he opened that account with his own money and placed the plaintiff's name thereon as a safeguard should he die prematurely.
He encouraged the plaintiff to become involved in business and set up the Capricorn Real Estate and Commission Agency on her behalf. All the commissions earned and received by the agency were given to the plaintiff or invested in her name.
An agreed bundle of documents was put into evidence. They were numbered up to fifty-two but some were sub-itemised. Another twenty-seven documents were put into evidence during the testimony of the defendant, while five more exhibits were put in through one other witness from the Republic Bank Limited, on behalf of the plaintiff.
Evidence on behalf of the plaintiff
The plaintiff stated that she came to Trinidad in 1956. She met the defendant in January 1957 when she responded to his advertisement for a cashier. She had previous business experience with her family in St Vincent and told the defendant as much. He told her he was losing money through employee pilferage and hired her as a supervisor to work among the attendants in order to uncover the culprits responsible.
She discovered the modus operandi of the persons involved and losses were reduced. Their relationship blossomed and on Christmas day 1957, the defendant told her he was in love with her and presented her with the letter. The defendant told her:
" that we have to work very hard but whatever we work for will be for both of us and the children that I will make for him."
It is noteworthy that in the letter the defendant speaks of sharing and of sacrifice. In my judgment that provided the platform upon which their relationship, particularly their business relationship proceeded.
On New Year's day 1958, the plaintiff commenced cohabitation with the defendant at his business place at 139 Western Main Road, St James. They lived at the back of the café. There was a brick oven fuelled by logs. There was no kitchen. She cooked on coal pots. She introduced new products which led to an increase in sales and assisted in the sale of peanuts which she baked personally. That chore was made all the more arduous by the fact that the gauge on the peanut machine was not working and the machine had to be stopped intermittently and checked to ensure that the peanuts were properly parched. She discovered the shelves of the parlour were not stocked and told the defendant. His response was that he had no one to take an interest in the business. With his concurrence, she ordered stock for which she considered there was a demand. While the defendant supervised the bakers in the bakery, she supervised work in the café and did the cashing. Cash was cleared from the register at lunchtime, while the register was cleared at 11.00 pm upon closure of business. The defendant handled the cash at all times which he checked and deposited at Barclays Bank St James (now Republic Bank Limited). He paid for all goods by cheque.
By 1960, sales had increased to such an extent that the defendant told her "girl we have touched gold". It was a vivid recollection. The defendant, by this time, collected the sales twice per day. He opened seven days a week; Sundays were the best days. Some of the increase in sales was due to her introduction of new stock and some to the new products she introduced in the cafe.
She woke up each day at 4 am, cooked and washed and prepared for the opening of the business at 6 am. She began cashing at 2:00 pm. When the bakers did not work she got up at 2:00 am to assist the defendant in baking. She only got domestic help after she had her two sons.
With respect to the domestic arrangements, the plaintiff testified that the defendant took care of all the expenses of the family.
"He bought everything for us. He never gave me money to go shopping. I was not allowed to any place. He bought all my clothes, even my underwear."
In 1975, the family moved residence to #9 Luckput Street, St James. After unhappy differences developed the defendant left those premises in 1984 and now resides at #42 Mucurapo Road, St James.
In 1977, he fell ill with diabetes and withdrew from the physical exertions of the bakery. She continued running both the bakery and the café, assisted by her daughter and son. The defendant stayed at home in #9 Luckput Street, St James and paid attention to the books. She took home the cash everyday along with the slip from the register. The defendant would then check the registered sales on the slip against the cash. Goods for delivery to the bakery and café would be paid by cheques. Several blank cheques would be signed by the defendant and the names of the payees written in. There were specific days when certain salesmen would turn up. The defendant was aware of them. All that was left was for the plaintiff to insert the actual amounts to be paid.
The plaintiff added that in 1977 she asked the defendant to pay her a salary. He responded that he would open an account in their joint names. The account was set up in an offshore bank in Jersey, United Kingdom. According to the plaintiff, the defendant continued to put money into the account until 1989 when he asked her to sign the entire account over to him. It contained some £76,000.00. The defendant advanced the reason that because of her age, she, unlike him, was not exempt from tax.
Towards the end of 1987 (after their separation), the defendant told her that there was no more money in the bakery’s chequing account. He advised her to pay for the bakery supplies from the day to day sales. From 1st January, 1988, she paid for business supplies from daily sales. She also paid the defendant $250.00 per day. This continued until November, 1992 when she stopped paying him due to declining sales and rising expenses. He continued to receive the benefits of the business through the returns from value added tax. The bakery was registered for value added tax ("VAT") on 1st January, 1990. From that day to 1996, the defendant collected the VAT bills and submitted the VAT returns while she continued paying for the goods. He continued to collect the VAT returns in the amount of $6,000.00 to $8,000.00 annually.
When the defendant formed Capricorn Real Estate and Commission Agency, he told her that it was hers. Cheques were made out in the name of that agency, she would sign the cheques which were brought to her at the bakery business at #139 Western Main Road and return them to the defendant.
She began receiving a salary of $160.00 per week in 1985. The defendant by then did not pay for anything in connection with #9 Luckput Street, St James. She denied ever receiving $18,000.00 annually from the defendant in respect of the real estate agency.
The only renovations done to the café by the defendant were done in 1975 when he installed a marble counter and placed a burglar proof cage across the counter. Prior to that he bought an oven in 1961 for approximately $5,000.00. It has never been replaced and is in constant need of repair. All equipment in the bakery is old and malfunctioning.
Her allegation that she never signed or consented to the withdrawal of funds from the offshore account at Lombard Bank, Jersey was challenged by Mr Marcus. Documents indicating her consent and signature were put to her. She denied that the endorsements were hers. These documents were later positively identified by the defendant as being signed by the plaintiff and were put into evidence through him as exhibits GT3, GT4 and GT5 respectively. I did not believe her denial. GT3, GT4 and GT5 indicate that the plaintiff’s name remained on the account right up until its closure. In my judgment, she consented to the withdrawal of those funds from the Lombard account. As to what was done with the funds is a matter to which I shall come.
The plaintiff's contention that the defendant had promised to give her the premises at #64 Western Main Road was also challenged and it was suggested to her that returns from Capricorn Real Estate and Commission Agency were given to her in the annual sum of $18,000.00. This the plaintiff denied.
The plaintiff called two witnesses: Mr Ezra Bailey and Ms Marcia Keith, Service Supervisor at Republic Bank Limited. Mr Bailey's very helpful evidence went towards corroboration of the plaintiff's, in an effort to show that she played a significant role in the affairs of the bakery. But his evidence also supported the defendant's as to his other business endeavours and as to his humble beginnings. He testified to the defendant having started his bread selling “on a little carrier bicycle” and that he knew him as far back as 1945. They did business together. The defendant had a shop located "somewhere around Woodbrook” from which he moved to the present business address.
According to this witness, Mr Taylor's business developed fairly quickly and he relocated to #139 Western Main Road, St James sometime between 1945 and 1948. The defendant always encouraged him to get involved in real estate. He first met the plaintiff around 1958 at #139 Western Main Road. He would go there to purchase bread or to talk business with the defendant. She was occupied in "an executive capacity", selling bread and “actually running the show”.
Mr Bailey stated that he continued to work for the defendant and sold a property at #11 Salazar Street, St James on his behalf for $200,000.00. He added that in 1977 the defendant's health "broke down" and the defendant told him that he had decided to let the plaintiff and her son handle the business he being unable to do so because of failing health.
Under cross-examination, Mr Bailey stated that he would go to the bakery about 2-3 times a week. He added that the defendant renovated the premises in 1956 and that after the renovation business picked up significantly. He was sometimes invited into the baker's shop by the defendant and there would observe the plaintiff going about her duties.
Ms Keith's evidence was primarily for the purpose of admitting into evidence certain accounts of the bakery located at Republic Bank, St James.
Evidence on behalf of the defendant
At age 91 the defendant retains a sharp and agile mind and a relatively acute memory. Although his sense of hearing was not up to par, his mental agility appeared little diminished. He was subjected to lengthy cross-examination which permitted me the opportunity to observe him over a period of one week. He showed absolutely no disorientation at any stage and was alert to suggestions which may have compromised his case. But, such mental alertness and nimbleness of mind did not always redound to his credit as he was at times evasive, if not untruthful.
His evidence in chief as to early years as a businessman is a model of thrift, guile and entrepreneurship. A carpenter by trade, he had been a businessman since 1938 when he began rearing pigs. One day he baked bread in a box oven (which he had himself made), sold the bread, and, encouraged by the response, put down his carpentry tools and decided to make his living that way. His business, small at first, grew slowly until it became a bakery shop. At first he "subletted", that is to say, he would knead the dough and pay someone to bake it. He rented premises at 64 Luis Street, Woodbrook for his bakery business then moved to Roberts Street, Woodbrook and ultimately bought the leasehold interest at #139 Western Main Road, St James in 1943. At that time the business was:
"a little parlour selling bread, sweetdrinks and cake."
His main product was bread, but, as he put it, he did "a little agent work on the side", collecting moneys on behalf of friendly societies, for which he received a commission. He saved those moneys in a box. He purchased his grandfather's lands, sold the fruits thereon and saved the money he received.
By 1948 he was able to expand from a box oven to a brick oven. The economies of scale generated by a larger oven allowed him to purchase an electrical oven five years later with an electrical mixing bowl and an electrical cake mixer. That, said the defendant, permitted him to bake the popular "hops bread" and thereafter, "the business just made headway". He then was able to go into the housing business.
Improvements were made to #139 Western Main Road in 1956, and by attracting a better clientele, sales went up. He opened on Sundays and because other businesses were closed, sales were 50 to 75 percent higher than on normal business days. As he put it:
"anything you can think about that you need in a shop, I sold it, so when the shops closed we got extra sales. Peas, milk and all those things were on the shelves."
The commissions he got from his agencies with friendly societies, he saved and invested in housing. One major source of financing systems in beginning his business career was his running of “sou-sou” saving schemes. He ran two “sou-sous”. They concluded sometime in 1956. With those savings he bought property at La Baja, Maracas Valley. The property bought at 139 Western Main Road contained an outer building which he initially rented but which he later broke down, re-built at a property he owned on Romeo Street, St James and rented on a monthly basis. He also did money lending "on the side".
He met the plaintiff in 1956. She had responded to an advertisement for a vacancy at the bakery. She was unsuccessful on that initial inquiry but left a telephone contact number. He was later hospitalised for a period of time and returned to discover that an employee had misappropriated stock. She was fired summarily and he contacted the plaintiff, who was employed as a café attendant and not as a supervisor. The defendant denied that he told the plaintiff he was losing money through pilferage. I shall say that as much as the plaintiff’s and defendant’s evidence diverge as to the actual circumstances which led to her employment and as to the status in which she was employed, the common thread running through their evidence is that there was pilferage by persons employed in the bakery and café and that her employment came about as a consequence of it.
The defendant testified that the plaintiff began living at 139 Western Main Road on Christmas Day 1957. He did give her the letter and an engagement ring. According to the defendant:
"My expectations were that we would have a family and we would work and make provision for them and whatever we accrued would be for our family."
He admitted that the plaintiff, upon coming to live with him, was no longer paid a salary but added that "everything she needed she could take”, with the caveat that items consumed be recorded.
The defendant added, significantly, that with the plaintiff now living at #139 Western Main Road and in charge of the café and shop, he was able to direct his attention towards the production of bread and cakes. By directing more attention to the production end, as he put it, there was a "great change". His clientele increased. He was able to obtain electrical power, which boosted production even more.
He began expanding his property interests in 1964. Because of the value of his real estate holdings he was able to obtain a demand loan and overdraft facility and used it to purchase property. He purchased properties at #22 Western Main Road and at Cunupia. The property at #22 Western Main Road he renovated and leased. That property, he boasted, continues to bring in a lucrative monthly income.
He paid $1,000.00 per month by way of re-payment of the loan. If he fell short, his current account was debited. That account was financed by moneys from rents and from "other business transactions". The monthly installments of $1,000.00 were financed by rents and by the commissions received from friendly societies.
As to the profits from the bakery business, he spent some on improvements to the business by purchasing new equipment. He kept some for domestic expenses so that his family could live comfortably. Renovations were done to #139 Western Main Road in 1976 and 1977.
He fell ill in 1977 and handed over the running of the business to the plaintiff. He told her to take over the business and ensure that she was paid $160.00 per week, which he advised her to save. He also requested that he be paid $250.00 per day and he kept a close account on what was sold and supplies bought. He took no particular interest in the bakery business after 1977 but he looked after the filing of income tax returns with information provided by the plaintiff. The returns were made in his name. When VAT registration came, he employed someone to "look after the baking end of the business".
The Capricorn Real Estate and Commission Agency was a business run by taking commissions on rents and mortgage collection. The plaintiff was the person in charge of running the agency but she never came to the business and he was always called upon to perform her functions. Rents and mortgage payments were collected by the agency which was paid a commission. Profits on the commissions went to the plaintiff and government bonds were bought in her name. The returns on the bonds were received by the plaintiff. He tried to get the plaintiff involved in the agency for the sake of his children but his efforts failed and he was forced to transfer it into his name.
As to the joint deposit at Lombard Bank, the plaintiff's name was placed on the account purely in the interest of the children in the event that he should die. It was not her account. He had deposited the money into Lombard Bank after another overseas investment, which he referred to as the Dover Plan, had matured. He had invested TT $200 per month into the Dover Plan. The deductions were remitted by the Royal Bank of Trinidad and Tobago. When the plan matured he transferred the moneys to Lombard Bank. He was advised to leave the money in the account when the pound fell, but added that he retrieved the money when the pound later rose. He denied that he opened the Lombard account in order to put the plaintiff's earnings into it.
The plaintiff, he said, consented to the closing of the Lombard bank account and he identified a letter authorising its closure jointly signed by the plaintiff and himself. Both he and the plaintiff signed the bank draft remitted by Lombard Bank. The money was put into a safe at the Royal Bank, St James and spent from time to time.
The defendant was questioned by Mr Marcus with respect to his accounts at the Royal Bank. He stated that moneys in his multiplier account came from investments such as the stock market and such investments as he directed the agency to send to the account. Money in the property account came from rents. Moneys in the investment account came from rents, moneys collected from mortgages and "any money I may add to it for taking care of disbursements and running the office". The defendant also admitted to shares in the Royal Bank of Trinidad and Tobago, Colonial Life Insurance Company Limited and its affiliated companies, The Unit Trust, Neal and Massy Limited, Angustura Limited and Republic Bank Limited. Moneys for their purchase came from either the property account or other investments.
These "other investments" he particularised as being cash in the bank safe and fixed deposits at Royal Bank which were later invested in an annuity account at C.L. Financial. Shares in the Unit Trust were purchased from reserves he kept. He bought units from small quantities in the property account. He could not recall how he purchased the shares from Neal and Massy.
In concluding his evidence in chief the defendant disputed that the plaintiff made any improvements which resulted in increased sales. Moreover, in her domestic chores, she had domestic assistance. It was not his practice to consult with the plaintiff before any decision to purchase properties. He denied promising 64 Western Main Road to the plaintiff. He also denied ever telling the plaintiff that "we have struck gold". He bought a property at Zion Hill, Tobago from his activities in the baking business prior to the plaintiff’s arrival.
As to receipts from daily sales collected from the bakery, the defendant conceded that he placed those moneys in his code safe located at his home but he also stored moneys collected from his other investments in the code safe, each being put into separate bags. Moneys from the code safe were deposited into the Tocopeak account at Republic Bank, from time to time.
He used moneys in his code safe collected from rents and money-lending to re-pay his current account. I shall pause here to observe that the defendant’s evidence on his lending activities was neither cogent nor detailed. No evidence was proffered as to the amounts nor as to the rates of interest and the manner and period of the repayment.
Mr Marcus submitted that the defendant ran an unsophisticated business operation. That fact, together with the length of the period over which the plaintiff has based her claim, he submitted, rendered it difficult to produce precise documentary evidence to support the defendant’s diverse business activities. As valid as that submission may be, in my judgment, those factors did not account entirely for the defendant’s lack of detail. The defendant’s money-lending appears to have been an “under the table” operation, no doubt servicing a clientele which could not be accommodated within the conventional financial sector (while at the same time ‘avoiding’ tax liability), but in my judgment, it was nothing more than petty lending which did not produce the returns to allow him exclusively to re-pay loans obtained for the purchase of properties.
Several internal loan reviews of the defendant’s loan portfolio at the Royal Bank, St James were put into evidence by consent. These were agreed documents 45(1) to 45(17) some of which showed that in granting credit to the plaintiff, consideration was given to the profitability of the defendant's bakery business. Confronted with these reviews by Mrs Roberts, the defendant asserted that those statements were untrue.
Under cross-examination the defendant made a number of admissions:
(i) That prior to relinquishing control of the bakery, the plaintiff would sit with him on weekends and assist in counting and bagging moneys, in preparation for business during the following week. $20,000.00 would be set aside for expenses and the balance would be put into another bag and placed in the code safe.
(ii) that the plaintiff worked very hard in the bakery business from the day she moved in with him.
(iii) that he has not been to the bakery since 1977.
(iv) that the plaintiff brought new ideas to the business.
(v) that he wrote all cheques concerning the bakery business drawn on the bakery account at Republic Bank.
(vi) that the plaintiff trusted his business acumen due to his understanding of financial matters and left all such matters to him.
These admissions were significant. In the first place, they corroborate some of the plaintiff’s allegations and secondly, they demonstrate that even on the defendant’s evidence, the plaintiff was in fact his business partner (despite his pleadings to the contrary), and that she worked alongside him in the business trusting his business acumen and understanding of financial matters.
Issues
Four issues of fact arise on the evidence and on the pleadings, the first of which is fundamental to the plaintiff’s claim.
(1) Was there an agreement between them to share and share alike?
(2) Did the defendant relinquish management and control of the bakery business in 1977 or 1987?
(3) What was the extent of the plaintiff's control of the Capricorn Real Estate Agency?
(4) Were the plaintiff and the defendant joint owners of the Lombard Offshore Bank Account?
The Law
It is settled law that the same legal principles are applicable in ascertaining the beneficial interests of the parties whether the dispute is between married or unmarried couples. However, in the case of unmarried couples, the nature of the relationship must be carefully considered. Griffiths L J in Bernard v Josephs [1982] Ch. 391 at 402f puts it this way:
"There are many reasons why a man and woman may decide to live together without marrying, and one of them is that each values his independence and does not wish to make the commitment of marriage; in such a case it will be misleading to make the same assumptions and to draw the same inferences from their behaviour as in the case of a married couple. The judge must look most carefully at the nature of the relationship, and only if satisfied that it was intended to involve the same degree of commitment as marriage will it be legitimate to regard them as no different from a married couple."
There can be no controversy as to the commitment of the parties in this case. It was a common law marriage which subsisted for twenty-six years. In my judgment, it is in these circumstances that the peculiar nature of our common law marriages become relevant. Indeed, the defendant in his Christmas day letter to the plaintiff refers to her as his “wife”. However, I do not wish to be understood as having drawn any general inference, as to common intention, from this social phenomenon. Each case must be decided on its own facts. As I understand de la Bastide C J in the Harrinarine decision, to the extent that they may reflect custom, the special features of the common law marriage may be applied to the facts of a given case in coming to terms with words and conduct of a partner to such a union, as in this case.
The plaintiff claims a beneficial interest in properties, none of which is in her name. She must show that she has made a "real and substantial" financial contribution towards either the purchase price, mortgage or loan instalments by which the properties were purchased or that her role was as a result of an agreement, understanding or arrangement between them. The dictum of May L J in Burns v Burns [1984] Ch. at 345 is instructive. He states:
"… when the house is taken in the man's name alone, if the woman makes no "real" or "substantial" financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union."
He had commented earlier at pg. 344F that the fact:
"that the husband may spend his weekends redecorating or laying a patio is neither here nor there, nor is the fact the woman has spent so much of her time looking after the house, doing the cooking and bringing up the family."
To that, I shall add the words of Lord Bridge in Lloyds Bank plc v Rosset [1990] 1All ER 1111 at page 1118(h).
"The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppel."
He continues at pg. 1119(a)
"In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.”
In my judgment, the plaintiff, contrary to her pleadings, made no “direct” financial contributions to any of the homes in which they lived nor to the acquisition of any of the properties in the name of the defendant. That is to say she made no specific monetary contribution to the purchase price, or to the repayments of the loan procured by the defendant. The defendant controlled the finances exclusively even with respect to the purchase of her clothing. She sought to particularise what she contends were direct contributions in the amount of $1,991,600.00, that amount being representative of income forgone over the period. At best that figure may reflect her sacrifice but I do not consider that it falls within the meaning of “direct contribution” as the authorities require.
She must show an agreement, arrangement or understanding reached between them that property acquired during the relationship is to be shared beneficially between them and that she has relied on it to her detriment.
In Eves vs Eves [1975] 1 WLR 1338, an unmarried couple bought a house in the man's name partly by the sale of his previous home and partly by a mortgage which he had obtained. At the time of purchase he told the woman that had she been twenty-one years of age, he would have put the house in their joint names, as it was to be their joint home. This he later confessed at the trial had been an excuse so as to avoid having to put the ownership of the house into their joint names.
At the time of acquisition the house had been in a dilapidated condition and they both worked hard to improve it. The man later left the house and married someone else. The Court of Appeal held that a trust had been created because the defendant had led the plaintiff to believe that she was to have an interest in the house and it could be inferred from the condition of the house and the work that the plaintiff did to it that it was part of the bargain that she would contribute her labour to its improvement. Brightman J stated at page 1345:
"The house was found by them jointly. It was in poor condition. What needed to be done was plain for all to see, and must have been discussed. The plaintiff was to have some interest in the house, or so she was led to believe, although her name would not be on the deeds. They moved in. They both set to and put the house to rights. I find it difficult to suppose that she would have been wielding the 14 lb. sledge hammer, breaking up the large area of concrete, filling the skip and doing other things which were carried out when they moved in, except in pursuance of some expressed or implied arrangement and on the understanding that she was helping to improve a house in which she was to all practical intents and purposes promised that she had an interest."
In Grant vs Edwards (1986) 2 All E R 426, the couple, after a casual relationship decided to live together on a more permanent basis, a child having been born out of the liaison. The woman was married but separated from her husband. A house was purchased and transferred into the name of the man and his brother who was a purely nominal party with no beneficial interest in the property. She was told by the man that her name would not go onto the title because she was involved in divorce proceedings and joint ownership might operate to her prejudice in those proceedings.
Her contribution went towards general expenses for a time after they moved into the house. She later made very substantial indirect contributions to the mortgage repayments by applying her earnings to joint household expenses and by housekeeping and bringing up the children. She claimed a share of the beneficial interest in the property on that basis. Nourse L J, with whom Browne-Wilkinson V.C. agreed, stated at pg. 431 (j):
"In most of these case, the fundamental, and invariably the most difficult, question is to decide whether there was the necessary common intention, being something which can only be inferred from the conduct of the parties, almost always from the expenditure incurred by them respectively. In this regard, the court has to look for expenditure which is referable to the acquisition of the house.... If it is found to have been incurred, such expenditure will perform the twofold function of establishing the common intention and showing that the claimant has acted on it.
There is another and rarer class of case of which the present may be one, where, although there has been no writing, the parties have orally declared themselves in such a way as to make their common intention plain. Here the court does not have to look for conduct from which the intention can be inferred, but only for conduct which amounts to an acting on it by the claimant. And, although that conduct can undoubtedly be the incurring of expenditure which is referable to the acquisition of the house, it need not necessarily be so."
It was held that the defendant's statement sufficed to show the necessary common intention and that the plaintiff had acted to her detriment in reliance on that common intention by making financial contributions without which the mortgage instalments could not have been paid by the defendant.
Browne-Wilkinson V.C. and Nourse L J were of the view that the defendant's statement evidenced a common intention while Mustill L J found that it precluded the defendant from denying that the plaintiff had a proprietary interest in the house from the outset. Browne-Wilkinson V.C. at 439 letter c stated:
"Setting up house together, having a baby and making payments to general housekeeping expenses (not strictly necessary to enable the mortgage to be paid) may all be referable to the mutual love and affection of the parties and not specifically referable to the claimant's belief that she has an interest in the house. As at present advised, once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house. …The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on."
It seems that any conduct of the claimant consistent with that common intention will suffice and will include a commitment to the duties of the household. The consequence is that while commitment to household duties would, by itself be insufficient to establish a trust, such conduct, when acting upon an agreement, understanding or arrangement, would successfully do so. (See Lord Bridge in Lloyds Bank plc v Rosset at pg. 1119(g)).
I have no doubt that the letter of Christmas 1957, together with his words to her, fall within the definition of an understanding or representation as per Lord Bridge in Lloyd Bank plc v Rosset (supra). But my findings as to the other issues of fact go both to credibility and to quantum.
Like his pleadings, the defendant's evidence was directed at excluding any contribution by the plaintiff to the acquisition of his many properties and consistent with his pleadings, he sought to confine all profits from the bakery either to re-investment into the bakery business or to domestic consumption. When he did attest to purchasing property with profits from the bakery, he contended that it was prior to the plaintiff's arrival. It is more than a little odd that the defendant would utilize profits from his bakery for the purchase of property prior to 1958 and none at all thereafter when, by his own admission, his business was thriving.
Several receipts, exhibits GT6 to GT12, showing equipment purchased for the bakery by the defendant were put into evidence on his behalf. Those were "once and for all”` purchases which could not account for the profits made by the defendant over a period of twenty-six years.
It is true that the period of the relationship covers a considerable number of years which made documentary evidence hard to come by but the purchases reflected in those receipts do not represent such an investment of capital as to account for the profits of the bakery even for that period. Indeed, as exhibits GT7, 8 and 9 show, and as conceded by the defendant in cross-examination, he did most of his purchases in 1959-60, and completed payment in 1960. I note as well that these receipts cover the period 1959 to 1965. In my judgment, they support the plaintiff’s evidence (which I accept) that there has been no substantial re-investment of profit and that the equipment is now old and in poor working condition.
As to the profits of the bakery, I do not accept that they were put solely to domestic use. As the Royal Bank loan reviews show, the bakery was making profits in the vicinity of $2,000.00 to $3,000.00 per month in 1967, and $3,500.00 to $4,000.00 in 1972 and 1973, which, for that period, were not insignificant sums. I refer, in particular, to exhibits 45(6), 45(6)A, 45(11), 45(12), 45(13). They also show that the defendant’s financial worth as a bakery proprietor was a fundamental consideration for the granting and servicing of loans and overdrafts of the defendant. Further, the defendant has testified before me that he purchased property in the 1960’s from property investment returns. However, the loan reviews show that bakery profits were his largest source of income and that his income from real estate was, in my estimation, 50 to 66 percent lower. These were all figures represented to the bank by the defendant. Moreover, when confronted with those figures, Mr Taylor resorted to outright denial of the truth of these reviews. He was unconvincing. As to his returns from what he termed his lending activities, I have already found that those lending activities did not allow him entirely to finance his property acquisitions.
Further, it seems to me that moneys from the bakery were kept in the defendant’s safe at home and mixed with his other business returns. I found his reference to obtaining moneys from his “code-safe”, as he so often stated, to be nothing more than a convenient refuge to which he would evasively retreat when unable to explain the use to which the profits of the bakery were put, under the pressure of cross-examination.
With respect to the Lombard Bank account, there was some conflict on the evidence as to the value of the account. In the plaintiff’s pleadings, the amount is stated as TT $76,000.00, but the plaintiff, in her evidence contended that it was £76000. The defendant testified that the account was denominated in Trinidad and Tobago dollars. However, he also testified that he closed the account and repatriated the funds to Trinidad and Tobago when the pound’s value rose. It seems to me highly unlikely that the account was denominated in Trinidad and Tobago dollars. The funds were invested in an offshore bank in England, no doubt, for the purpose of obtaining maximum returns. I cannot conceive of such an account being denoted in TT dollars. Further, the fact that the defendant withdrew the money after the value of the pound rose on the foreign exchange markets, give credence to the plaintiff’s contention that the account was denominated in English pounds.
As to Capricorn Real Estate and Commission Agency, the defendant contended that the plaintiff received $18,000.00 annually in commissions on behalf of the agency. Tendered into evidence during his evidence in chief was the “general ledger” of the agency (“GT1). Though it purported to cover the decade 1980 to 1990, its records were spare and incomplete. Three income tax returns GT16, GT17 and GT18 were put into evidence on behalf of the defendant in support of his contention that the plaintiff received the profits of the agency. I, however, have had the benefit of hearing the oral evidence of both witnesses and I accept the plaintiff’s evidence that no such returns were paid to her, and that she simply signed over the cheques to the defendant.
But more importantly, the defendant’s evidence shows that he did at one time treat the agency as belonging to the plaintiff. My own suspicion is that this agency was nothing more than a vehicle for tax avoidance on the part of the defendant and that the figures set out in GT1, GT16, GT17 and GT18 bear no great relation to reality.
I also do not accept the defendant's contention that the profits of the bakery were committed only to the domestic consumption of the family unit. He controlled the finances of the bakery and the family expenditure to the virtual exclusion of the plaintiff until 1987. I have already rejected his contention that he acquired his real estate solely from his other sources of income. Having regard to the documentary evidence, in particular, exhibits 45(1) to (17) and GT7, GT8 and GT9, the inferences I draw are three fold. Firstly, that the defendant, despite his protestations to the contrary, invested the profits of the bakery to which the plaintiff contributed, into the purchase of real estate. Secondly, the profitability of the bakery was one of the reasons why he was able to obtain financing for the purchase of other real estate and thirdly, those profits were used in the repayment of loans procured for such purchase.
In my judgment the plaintiff was the more credible witness and I shall make the following findings in so far as they relate to the other issues of fact in dispute:
(1) The defendant withdrew from physical exertions of the bakery business in 1977 but continued to manage and control finances and the purchase of stock and supplies from 9 Luckput Street, St James. All major decision- making and control lay with him. All moneys collected from daily sales were given to him at 9 Luckput Street St James.
(2) It was in 1987 that the defendant handed over total control of the bakery to the plaintiff on the condition that he be paid the sum of $250.00 per day. The plaintiff paid the sum of $250.00 per day to the defendant until 1992.
(3) The plaintiff, from the commencement of cohabitation with the defendant worked in the bakery business without a salary until 1985 when she began receiving $160.00 per week.
(4) As to the Lombard Bank Account, the defendant agreed to the setting up of the account in both their names in response to the plaintiff’s request for a salary. It was set up in their joint names, was jointly owned by both parties and was denominated in pounds.
(5) That although the plaintiff was named as the owner of Capricorn Real Estate Agency, it was effectively run and controlled by the defendant and that property at #64 Western Main Road was registered in the Agency’s name. All moneys received by the plaintiff in respect of the agency were paid to the defendant.
(6) The name of the Capricorn Real Estate Agency was subsequently changed to George H. Taylor Investments.
I have already found that the defendant’s letter of Christmas day 1957, together with his spoken words, fall within the broad category of an agreement, arrangement or understanding. As I understand the dictum of Lord Bridge in Lloyd’s Bank, it need not be couched in strict or precise legalese.
The defendant speaks of “sealing off a career well lived” and opening another in which the plaintiff will “share in the making”. He exhorts her to let “honesty, simplicity and conscientiousness” be her motto.
That exhortation must be viewed in the context of the plaintiff having been employed by the defendant at the time and, particularly in light of his experience with pilferage, lends perspective to a commitment which was not simply personal but commercial as well. Further, the defendant, by his own words stated that his expectations were that they would work hard and make provision for their family and “whatever we accrued would be for our family”. The plaintiff’s evidence was that he told her that they must work hard and that “whatever we work for will be for both of us and the children that I will make for him”. In his examination in chief the defendant testified that after that day, the plaintiff “had a free hand”.
He also admitted that she continued to work in the business without a salary. As the defendant put it:
“She was in charge of the cash and she was in charge of the floor, whatever goes on in the parlour, she was in charge of them one hundred percent.”
While not having any collateral of her own, the plaintiff contributed her labour to the success of the business. Her relative youth permitted him to withdraw from the physical exertions of the business in 1977 and to direct its affairs from the family home at #9 Luckput Street, St James. Her presence in the café permitted him to concentrate on production and in my judgment, on the acquisition of real estate.
Not only was there an understanding between them but their subsequent conduct evidenced it. The plaintiff worked for almost twenty years without a salary. She contributed new ideas and new products. She also committed herself to “the domestic side of life”, as the defendant put it. She woke up each day at 4:00 am to prepare for business at 6 00 am. On occasions when the bakers were not working, she would awake at 2:00 am. She did cashing from 2:00 pm each day. After his 1977 illness, she took the cash home every day and sat with the defendant checking the registered sales on the slip against the cash. She appears to have had the most basic of schooling and was the subservient partner, trusting his business acumen and leaving business decisions to him.
Theirs was “an engagement” that lasted approximately twenty-six years (much longer than many marriages) during which the plaintiff committed the best years of her life to the bakery business, most of it without a salary. Another business, the Capricorn Real Estate and Commission Agency was set up in her name. In my judgment her conduct was consistent with their understanding on Christmas day 1957.
The inference to be drawn by the plaintiff’s actions is that she would not have worked as hard and for so many years in the bakery, without a salary, if it were not her belief that she would acquire an interest in the bakery business and in the properties acquired by the defendant. It seems to me that, contrary to the defendant’s churlish pleading, the plaintiff’s contribution in the bakery business was over and above what was `expected of her. By working without a salary for so many years the opportunity of acquiring property of her own was foregone and I do not accept that the paltry sum of $160.00 per week, when she did begin to receive one in 1985, could compensate for the opportunities lost. I find that she acted to her detriment in reliance on the common intention that she would have a beneficial interest in the bakery and in the properties acquired by the defendant during their relationship. Indeed, her labours continued even after separation and she only took action after the defendant threatened to evict her from the bakery business.
The plaintiff has successfully shown a beneficial interest by way of constructive trust. Her interest is founded in equity “which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention” (per Browne-Wilkinson V.C. in Grant v Edwards (supra) at pg. 439 (b)) and, as Lord Diplock put it in Gissing v Gissing (supra) at 790(a):
“…. he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”
I turn to the difficult task of ascertaining the extent of the plaintiff’s interest. The relevant period of time at which the beneficial interest “crystallises” is the time of acquisition. But as Griffiths L J stated in Bernard v Josephs [1982] Ch 391 at 404 letter g:
“to ascertain this [the trial judge] must look at all the evidence including all the contributions made by the parties. As a general rule the only relevant contributions will be those up to the date of the separation, but it does not necessarily follow that what happens after the separation will in every case be irrelevant. In my opinion, the judge must examine all the evidence placed before him and not regard the date of separation as a cut-off point. The task imposed upon the judge is so difficult that every scrap of evidence may be of value and should be available to him.”
The plaintiff and defendant continued their business dealing long after separation. The Lombard Bank offshore account was closed in 1990. The plaintiff's involvement in Capricorn Real Estate and Commission Agency continued even after separation. She paid him the sum of $250.00 per day from 1987 to 1992. In the normal course the plaintiff would be entitled to a half share but I am mindful that the defendant’s considerable business acumen has contributed to his success and that at the time of their cohabitation, the defendant already owned property and had other sources of income which he maintained throughout the relationship. While I have rejected his contention that the profits of the bakery were not used in the acquisition of his properties, I accept that his other sources of income did. I have also taken into account his own efforts which contributed to the bakery business rising from a small carrier bicycle operation to a full fledged business at #139 Western Main Road, St James. The downside, however, is that the defendant, other than receiving the VAT returns, has not been to the bakery since 1977 and appears to have all but abandoned it. Indeed, a compelling argument can be made for the plaintiff being the beneficial owner of the entire bakery business. I am persuaded by Mr Marcus, however, that given the defendant’s own earlier efforts and inputs that it would be inequitable to do so. I am also to take account of the fact that the plaintiff has had exclusive control of the business since 1987 albeit with old and malfunctioning equipment.
As to the proceeds of the bank account, I have already accepted that the account was opened in the plaintiff's name as a basis of placating her request for a salary. In my judgment, those funds belonged jointly to the defendant and plaintiff. Exhibits GT3, GT4 and GT5 indicate that the account was closed sometime in 1990/91 and the bank draft received by the parties early in 1991. The defendant gave inconsistent evidence as to what was done with those moneys. He initially stated that the moneys were put into a safe at Royal Bank, St James and drawn on from time to time. However, under cross-examination he stated that the moneys were invested.
Having examined the details of the defendant’s multiplier account at Royal Bank, St James, this account appears to have been opened at much the same time as the Lombard Bank draft was received. I draw the inference that the sums therein were invested in the multiplier account. As to the extent of the plaintiff’s share of that account and the date of her claim, it has posed considerable difficulty. The multiplier account dates back to 1991/92. No retrospective claim has been made. There also has been no plea that the claim is statute barred. It seems to me therefore, that any claim on that account must relate to the date the action was filed. I shall take into account that other investments may have been contributed to it in the interim.
Order
I shall grant the following reliefs (using the descriptions set out in the plaintiff’s statement of claim):
(1) A declaration that the plaintiff and the defendant are equal partners in all that the bakery business carried on by the defendant and the plaintiff under the name or style of "Tocopeak Bakery" at No. 139 Western Main Road, St James.
(2) A declaration that she is entitled to a one-half share estate and interest of and in all and singular the following properties which the defendant holds in trust as to the half share on behalf of the plaintiff:
(a) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad, known and assessed as No. 9, Luckput Street, St James comprising 5,748 superficial feet and bounded on the north by Carlton Avenue (formerly Goodluck Street), on the south and west by lands of Henderson and on the east by Lockport Street, now known as Luckput Street and more particularly described in deed of lease registered as No. 7136 of 1970;
(b) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad and known and assessed as No. 64 Western Main Road, St James.
(3) A declaration that the plaintiff is entitled to a one-third share of the following properties and that the defendant holds these properties in trust for the plaintiff as to those one-third shares:
(i) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad and known and assessed as No. 7 Luckput Street, St James;
(ii) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad, known and assessed as No. 11 Luckput Street, St James comprising 4,585 superficial feet and bounded on the north by No. 13 Luckput Street, on the south by Carlton Avenue, on the east by Luckput Street and on the west by No. 24 Carlton Avenue and more particularly described in deed of lease registered as No. 14291 of 1975;
(iii) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad, known and assessed as No. 13 Luckput Street, St James comprising 4,232 superficial feet and bounded on the north partly by No. 145 Western Main Road and partly by No. 15 Luckput Street, on the south by No. 11 Luckput Street on the east by Luckput Street and on the west by No. 24 Carlton Avenue, and more particularly described in deed of lease registered as No. 14291 of 1975.
(iv) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad, known and assessed as No. 20 Luckput Street, St James comprising 1,406 square feet and bounded on the north by No. 22 Luckput Street, on the south by No. 18 Luckput Street, on the east by No. 139 Western Main Road, on the west by Luckput Street, together with the buildings thereon and the appurtenances thereto belonging and more particularly described in deed registered as No. 14384 of 1994;
(v) All that parcel of land situate at St James in the City of Port of Spain in the Island of Trinidad known and assessed as No. 42 Mucurapo Road, measuring 53 feet 9 inches on the northern boundary line and 78 feet 5 inches on the southern boundary line, 109 feet 9 inches on the eastern boundary line and 77 feet 10 inches on the western boundary line and bounded on the north and west upon lands of the Lessor on the south upon Mucurapo Road and on the east upon Luckput Street and more particularly described in deed of lease registered as No. 1709 of 1967.
(vi) All that parcel of land with the buildings thereon situate at Woodbrook, in the City of Port of Spain, in the Island of Trinidad, and known as No. 13 Methuen Street, measuring fifty feet in front by ninety-five feet in depth and abutting on the north upon Methuen Street, on the south upon other lands of the Port of Spain City Corporation, on the east upon No. 11, Methuen Street and on the west upon Lot No. 15 Methuen Street, and more particularly described in deed of lease registered as No. 5885 of 1949;
(vii) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad and known and assessed as No. 3, Coronation Street, St James.
(viii) All and singular that piece or parcel of land situate at St James, in the City of Port of Spain, in the Island of Trinidad known as No. 137 and 137A Western Main Road and on the south east and west upon other lands of the Lessor and more particularly described in deed registered as No. 2116 of 1962.
(ix) All that parcel of land situate at St James in the City of Port of Spain, in the Island of Trinidad and known as Lot No. 22, Western Main Road, measuring fifty-one feet on the northern boundary line, fifty-two on the southern boundary line and seventy-five feet on the eastern and western boundary lines and more particularly described in deed registered as No. 12608 of 1964.
(x) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad and known and assessed as No. 12 Hamilton Street, Woodbrook.
(xi) All and singular that piece or parcel of land situate in the City of Port of Spain, in the Island of Trinidad and known and assessed as No. 90 Charlotte Street, Port of Spain;
(xii) All those nine several pieces or parcels of land together with the appurtenances thereto belonging situate at Lower Caroni, in the island of Trinidad, THE FIRST THEREOF comprising nineteen acres and abutting on the north, south and west upon lands now or formerly of the Crown on the east upon lands now or formerly of the Crown and upon lands formerly of J J Mc Leod, THE SECOND THEREOF comprising seventeen acres one rood and twenty-four perches and abutting on the north, south and west upon lands formerly of the Crown and on the east upon lands formerly of the Crown and upon lands formerly of Francis Joseph, THE THIRD THEREOF comprising six acres and abutting on the north and east upon lands formerly of Francis Joseph on the south upon lands formerly of the Crown and on the west upon lands formerly of the Crown and upon lands formerly of Francis Joseph, THE FOURTH THEREOF comprising sixteen acres and abutting on the north upon lands formerly of Urpiano Barbosa on the south upon lands formerly of Francis Joseph on the east upon lands reserved along the Arena River and on the west upon lands formerly of Francis Joseph THE FIFTH THEREOF comprising five acres one rood and sixteen perches and abutting on the north and south upon Crown Lands on the east upon lands reserved along the Arena River and on the west upon lands of Francis Joseph, THE SIXTH THEREOF comprising ten acres and thirty-six perches and abutting on the north and west upon Crown Land on the south upon lands formerly of Francis Joseph and on the east upon lands formerly of Urpiano Barbosa, THE SEVENTH THEREOF comprising thirteen acres two roods and eleven perches and abutting on the north upon lands formerly of Francis Joseph and upon the Arena River on the south upon land formerly of the Crown on the east upon the Arena River and upon lands formerly of Francis Joseph and on the west upon a road and upon lands formerly of the Crown and intersected by a road, THE EIGHT THEREOF comprising five acres and abutting on the north upon lands formerly of one Petioni on the south and west upon lands formerly of the Crown and on the east upon lands of Urpiano Barbosa, and THE NINTH THEREOF comprising sixteen acres one rood and five perches and abutting on the north upon lands formerly of one Joseph and on the south and west upon lands formerly of F. Joseph and on the east upon the Arena River (which said parcel of land is described in Crown Grant registered as No. 1647 of 1898 and abutting on the north and east upon Crown Lands occupied by Juan S. Rodriguez and upon lands reserved by the Crown along the Arena River on the south upon Crown Lands and lands reserved along the Arena River and on the west upon Crown Lands occupied by Raphael Gonzales).
(xiii) All those three several pieces or parcels of land situate in the Ward of Lower Caroni in the Island of Trinidad THE FIRST THEREOF comprising ten acres three roods and thirty-five perches be the same more or less delineated in the diagram attached to the Certificate of Title Volume 3 Folio 631 also described in Certificate of Title Volume 878 Folio 39 and bounded on the north by lands of Ramjan by Crown Land and by lands of Francis Joseph on the south by lands of Gregorio Balles by Crown land reserved and by lands of Francis Marcano on the east by lands of Felicia Ulric and by lands of the said Francis Marcano and on the west by Crown Land THE SECOND THEREOF comprising eighteen acres three roods and twenty-five perches be the same more or less delineated in the diagram attached to the Crown Grant Volume 27 Folio 599 also described in Certificate of Title Volume 1303 Folio 423 and bounded on the north by Crown Land on the south by lands of Ramjan and by lands of E. Garcia now Francis Joseph on the east by lands of Francis Joseph and on the west by lands of Peerbur now Mathadin and by lands of Ramjan, THE THIRD THEREOF comprising ten acres three roods and three perches be the same more or less specified in the Provisional Certificate sof Title in Volume 38 Folio 303 also described in Certificate of Title Volume 1303 Folio 433 and bounded on the north by a trace seventy links wide on the south and east by lands of Francis Joseph and on the west by Crown Lands and by lands of Bhagan.
(xiv) All and singular that the freehold property owned by the defendant and located at St Mary’s, Tobago as set out in the further and better particulars provided by the defendant on 23rd February, 1994.
(4) A declaration that the plaintiff is entitled to a one-quarter share of the Multiplier account No. 940-126200-2 at Royal Bank, St James.
I shall make no order with respect to the defendant’s various company shares or his two other accounts at the Royal Bank. The defendant shall pay the plaintiff’s costs certified fit for advocate attorney.
NOLAN P. G. BEREAUX