THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COLIRT OF JUSTICE ANTIGUA AND BARBUDA CLAIM NO. ANUHCV 2011/0635 BETWEEN: TECKLA EDWARDS Claimant and DR. ALVIN G. EDWARDS Defendant Appearances: Mr Dane Hamilton, QC and Mr D. Raimon Hamilton for the Claimant Ms E. Ann Henry and Ms Stacey-Ann Saunders-Osbourne for the Defendant 2012: May 16 November 5 JUDGMENT [1] MICHEL, J: The parties to this case are husband and wife. They had an intimate relationship with each other since February 1987, which relationship produced a child born to them on 7th August 1988. They began living together in August 1989 and got married in September 1990. They added to their family after their marriage, with a second child being born to them on 27th April 1991 and a third on 18th August 1994. 1 [2] In August 1989 the parties had moved into a dwelling house at Hodges Bay owned by the husband. Following the passage of Hurricane Georges in 1998, the house was damaged and required repairs, to facilitate which the family moved into rented accommodation at Lightfoot in October 1998 until June/July 1999 when they moved back into the house at Hodges Bay. In December 2002 they moved into a new house at Mercer's Creek, which was constructed between August or December 2001 and December 2002 on land owned by the husband. [3] There is evidence of marital breakdown from as far back as June 2001 when the husband wrote to the wife (via email) to inform her of his decision to separate from her, but the parties have continued to reside in the house at Mercer's Creek and apparently neither of them has sought to terminate the marriage by divorce. Be that as it may, by fixed date claim filed on 7th October 2011, the wife instituted the present proceedings against the husband seeking - a declaration that the house and land at Mercers Creek is held by her husband in trust for the two of them as beneficial tenants in common in equal shares; rectification of the land register; and an order for sale of the property. In his defence filed on 1st December 2011, the husband denied that his wife was entitled to any of the relief claimed by her. [4] The evidence in this case came from affidavits filed by the wife (Teckla Edwards), by her witness I . (Wayne Hunt) and by the husband (Dr Alvin Edwards) and from the oral testimony of the three of them. [5] In her affidavit filed on 7th October 2011, Mrs Edwards alleged that at the time of her marriage to Dr Edwards in September 1990, he was a self-employed Ophthalmologist and she was employed with L1AT as a Customer Service Representative. There was a disparity in their respective incomes in 2 that she earned $3,200 per month, while he earned much more, but this was of no consequence, because their ideal was to provide for their family. She and her husband were quite comfortable with each other and had regular discussions between them as to how they would share and discharge their matrimonial responsibilities. The way in which they ordered their living arrangements was that her husband would take care of the payment of the mortgage on and the utilities for the matrimonial home, whilst she would be responsible for purchasing the groceries, paying the household helper and the gardener and supplying the children and herself with clothing and the children with school uniforms and school supplies. She and her husband were happy and discussed the better positioning of the family and there was never any thought given to the possibility that the marriage would encounter difficulties eventually leading to its end. [6] Mrs Edwards alleged that in 1995 and 1998 their home in Hodges Bay was severely damaged by hurricanes and had to be repaired. On the first occasion, the repairs were carried out with the proceeds of the insurance of the house, but on the second occasion they had to repair the house at their own expense. Between October 1998 and June/July 1999 they had to stay in rented premises whilst the house in Hodges Bay was being repaired. Both she and her husband made several trips to Puerto Rico to purchase replacement fixtures, furnishings and appliances for the house and she journeyed to Hodges Bay on numerous occasions to overlook the conduct of the repairs to the house. Her husband had limited funds during this period because of his other financial commitments and, having sat and discussed it, it was decided that her financial assistance was required to complete the repairs, to which end she contributed just over $6.000. [7] Mrs Edwards alleged that she and her husband operated as a team during those happy times. When in 2000 it became necessary to purchase a vehicle for the benefit of the family, and her 3 husband was unable at that time to access aloan commercially because of his high debt ratio, they agreed that she would obtain the loan for the purchase of the vehicle, which she did. Later in 2001, her husband decided to purchase another vehicle, he discussed this with her and they agreed that he would make use of her fixed deposit at the Bank of Antigua to secure the loan, but he would pay the monthly instalments, which he later failed to do, resulting in the bank deducting $11,000 from her account to cover bank charges. She did not complain or demand the return of the $11,000 because she understood that it was necessary to assist her husband in his endeavours to achieve abetter living standard for the family. [8] Mrs Edwards alleged that, because of the damage sustained to their home at Hodges Bay, they were always fearful of further damage in the event of another storm and, in their discussions, her husband expressed the position that, apart from the fear of further damage to the house, as a family unit they deserved beUer living conditions and he wanted a house in which he could comfortably entertain his friends and colleagues. It was decided (according to her) to embark on the construction of another home on lands owned by her husband at Mercer's Creek. In discussions with her in the ensuing period, it was decided to sell the house at Hodges Bay and to use the proceeds of sale to payoff the mortgage on the Hodges Bay house and to put the balance towards a mortgage for the new house at Mercer's Creek. In the discussions between her and her husband, they decided that her husband would acquire the loan for the construction of the house and that she would acquire another loan for the purchasing of the furnishings, appliances and decorations and for landscaping. She alleged that it was ajoint endeavour on their part and there was nothing in their discussions over the ensuing months which indicated that the provision of a new home was other than for their joint benefit. 4 [9] Mrs Edwards alleged that she was very much involved in the building and furnishing of the house at Mercer's Creek and in making it acomfortable home for their family. She made several trips to the house during its construction and she provided for the fencing of the yard, the construction of the wall at the entrance and at the gate, the roundabout, the walkway which leads to the entrance door, the planter, the enclosed connection between the main house and the garage, the pathway between the rear entrance to the patio, two stepping stones path walkways, the dog house and the railing around the upstairs and downstairs patios. She alleged too that she purchased many trees, plants, flowers and fruit trees; paid for the services of a landscaper to assist in beautifying the surrounding land; contributed $10,000 towards the kitchen and bathroom units; and paid for the Jacuzzi, the shower, the toilet and the vanity. [10] Mrs Edwards alleged that her husband was responsible for discharging the monthly mortgage instalments and she was responsible for the upkeep of the home, which included paying for the services of a gardener and household helper and providing for the groceries. She also had to pay for internet and cable services and she provided the children with clothing apparel, shoes and uniform, which continued until the two eldest ones left for college in the United States. She alleged that, although her husband lives in the house and "partakes of any food stock, he did not provide a dollar towards its acquisition until the year 2009 when [she] wrote to him complaining about [her] inability to take care of paying for the groceries and gardener all by [herselij." [11] Mrs Edwards alleged that between 1989 and 2002 she was employed by LlAT and earned a monthly salary of $3,200 from 1989 to 1995 and $3,700 from 1995 to 2002 and that, upon her retirement in 2002, she received a substantial severance package which she used in part on household expenses. From 1997, she also operated and managed a small clothing store. 5 Throughout the period of her marriage, her husband never contributed to her maintenance and upkeep; she provided for all of her medical expenses and feminine needs; she did all of this feeling secure in the knowledge that the advancement of her husband's professional career and entrepreneurship were essentially intended and designed for the benefit of both of them and the family; she partnered him and considered throughout the years that they were ultimately engaged in a partnership for the benefit of both of them, as he insisted during their intimate discussions. [12] Mrs Edwards also alleged that her husband benefited from her discounted airfares as a L1AT employee, which assisted him in conducting his practice in St. Kitts, and that he requested her to use her credit card to purchase airline tickets for herself and the children to travel to Miami to attend his daughter's graduation, which payment he promised to reimburse but never did, resulting in her having to bear the full expense and interest. [13] Mrs Edwards concluded her affidavit evidence with the assertion that she was of the view that for over twenty years she partnered her husband on the basis that on their journey as a married couple with children, everything acquired was for their joint benefit and would eventually inure for the benefit of the children, which view was encouraged and not disputed by her husband in their private discussions. She then requested the Court to make an order that the matrimonial home at Mercer's Creek registered in the name of her husband is held by him on trust for the two of them as beneficial tenants in common in equal shares. [14] In her oral testimony at the trial, Mrs Edwards stated that she was relying on the evidence contained in her affidavit. There were two bits of evidence which emerged from the cross­ examination of her which are noteworthy - the first was her admission that by June 2001 the 6 marital relationship between her and her husband had broken down, although she added that it was not over, and the second was her express denial that there was no discussion or undertaking between her and her husband that the house at Mercer's Creek would be their joint property and her assertion that "this is what he said; this is what was agreed from the very beginning; it was intended to be used for the family benefit." [15] In re-examination, Mrs Edwards attempted to clarify what she meant by her statement under cross­ examination that the marriage had broken down but it was not over. She said that she meant that she and her husband had many problems, but they decided that they were going to continue in the relationship, and they continued in the relationship in spite of the problems. [16] The second and final witness for the Claimant was Mr Wayne Hunt. In his affidavit filed on 3m February 2012, Mr Hunt alleged that he is ajoiner engaged in furniture building and repairing since about 1981. He alleged that whilst the matrimonial home was under construction, he was contacted by Mrs Edwards to do some work on the house. She asked him to build some cupboards in the utility room and the clothes' closets and he also hanged the doors on the closets. He was given the money by Mrs Edwards to purchase all other materials which were required for the job, except for the doors, which (as far as he was aware) were imported. In addition, he alleged that he was asked by Mrs Edwards to constnJct the railing around the patio downstairs, which took about one month to complete and cost in the region of $7,494. He alleged that any work which he performed on the house was done on the instructions of Mrs Edwards and that she paid him for all work done by him on the house. 7 [17] In his oral testimony, Mr Hunt merely asserted that the content of his affidavit was his evidence in the case. He was not cross-examined. [18] In his affidavit filed on 1st December 2011, Dr Edwards alleged that although he had an intimate relationship with the Claimant from prior to their marriage, their relationship was never particularly close and they did not speak to each other much or discuss many things prior to or even after their marriage. Theirs, he alleged, was an unhappy marriage from the very beginning; they had no real relationship. He alleged that, contrary to his wife's statements in her affidavit, he has no recollection of having any discussions with her as to how they would share household expenses. It was his recollection that he took responsibility for maintaining the household and he only requested his wife to assist in paying for the household helper; all other expenses were taken care of by him. He recalled that at the earliest stages of their marriage, he gave his wife $300 per week for groceries. He alleged that it may be that his wife spent some of her own money when she went to do grocery shopping, but he was not made aware of this. He alleged that he alone paid for the gardener; that he alone paid for the children's school fees, uniforms and school supplies; and, although his wife may have purchased some items for the children over the years, he was the one who shouldered the responsibility for the needs of the children, including their university education. (19] Dr Edwards denied his wife's claim that she made any contribution to the repair of his house at Hodges Bay following the hurricanes in 1995 and 1998, and he alleged that these repairs were paid for by him from the proceeds of the insurance policy he maintained on the house and from monies advanced by him. He denied that his wife was ever involved in the repair of or the supervision of the work on the Hodges Bay house. He alleged that the damage to the house at Hodges Bay by the two hurricanes prompted him to do what he had contemplated for some time, 8 that is, to construct a new home for his family at Mercer's Creek, because he had become unhappy about living at Hodges Bay because there were problems with the house (including plumbing problems and cracks in the walls) which he thOUght made it an unsatisfactory home for the children. He alleged that, save for his asking his wife to speak to the architect about the layout of the house, he had no discussion with her concerning the construction of the house at Mercer's Creek. He alleged that the construction of the house was funded by a loan for $941 ,000 which he took from ACB Mortgage & Trust Company Limited. He alleged too that in addition to using the land as security for the loan, he was also required to put in money as a deposit and to assign a life insurance policy on his life as additional security. He alleged that over the period of construction of the house, he injected $200,000 over and above the amount which he had borrowed from the bank. His wife played no part and was not involved in the funding of the house at Mercer's Creek. He alone pays the monthly mortgage instalments of $9,723.72 and the monthly insurance premium of $1 ,576.32. [20] Dr Edwards alleged that he acquired the land at Mercer's Creek as a replacement for a parcel of land purchased by him from the Government in 1986, and that by the time the construction of the house was underway his marriage was over. He alleged that his wife constantly complained that he did not trust her, which he said was true, because he discovered that she had been unfaithful to him. He also alleged that he did enter into a relationship with someone else when it became apparent that his wife had withdrawn from him physically and emotionally and had no interest in continuing their marriage. He alleged too that he confirmed this in a letter to her dated 14th June 2001, by which time construction of the house at Mercer's Creek had not even started. 9 [21] Dr Edwards alleged that when they were moving into the house at Mercer's Creek, there was furniture at the Hodges Bay house to furnish the new house, but his wife told him that she wanted new furniture and appliances for the Mercer's Creek house and that she would buy them. He alleged that he did not object to this and his wife purchased these items mostly from abroad and he paid the freight and customs duties for them. His wife also purchased "the decorations" for the house. He however denied that she did landscaping of the property and asserted that the only work in the garden was done by gardeners engaged by him. [22] Dr Edwards denied having any discussions with his wife about any joint endeavour in the construction of the house at Mercer's Creek or managing his affairs in a way which could lead her to believe that the house was for their joint benefit. He alleged that everything that he has done has been for his children. He alleged too that whilst his wife may have made arrangements for certain things to be done around the Mercer's Creek house, including some of those alleged in her affidavit (like "provid[ing] for the fencing of the yard, the construction of the wall at the entrance and at the gate, the roundabout, the walkway which lead to the entrance door, the planter, the enclosed connection between the main house and the garage, the pathway between the rear entrance to the patio, two stepping stones path walkways, the dog house and the railing around the upstairs and downstairs patios") he is not aware of her paying money for any of those things to be done, except for the building of the dog kennels. He alleged that the building of the house and the appurtenances to it were all included as part of the construction and were paid for from the mortgage loan taken by him. He alleged that his wife has a flower garden at the house which she maintains and he is aware that she has purchased flower trees, stones and soil for the garden, but he denied that she purchased or planted fruit trees or that she engaged any landscaper to assist in beautifying the lands around the house. He denied that his wife contributed $10,000 for the kitchen 10