Sidey Alfaro Rodriquez Petitioner v Evort Earl Ebanks Respondent Rhonda Lue Ebanks Intervener
| Jurisdiction | Cayman Islands |
| Judge | THE HON. ANTHONY SMELLIE, CHIEF JUSTICE |
| Judgment Date | 03 April 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: D 132 of 2007 |
| Date | 03 April 2013 |
THE HON. ANTHONY SMELLIE, CHIEF JUSTICE
IN CHAMBERS
Ms Kate McClymont of Broadhurst LLC for the Petitioner
Mr. Anthony Akiwumi of Stuarts Walker Hersant for the Intervener
( Ms. Sheridan Brooks of Brooks & Brooks for the Respondent, no longer appearing.)
Dispute between wife and intervening sister-in-law over entitlement to matrimonial home — legal title registered in name of sister-in-law — whether legal title held subject to constructive trust of wife's beneficial interest.
This action began in the context of divorce proceedings in which there was a dispute between the petitioner Mrs. Ebanks and the respondent Mr. Ebanks, over the beneficial entitlements to their matrimonial home.
The legal title to the home having been transferred to the Intervener in circumstances which are to be examined in this judgment, the Intervener was first sought to be brought into the proceedings by Mrs. Ebanks but that application was resisted. For reasons expressed in a directions ruling of 26 th March 2009, the Intervener was not then joined in the action.
It having become clear to her that orders affecting the registered title could nonetheless be made in these proceedings as between Mrs. and Mr. Ebanks, the Intervener eventually applied to intervene in the proceedings and that application was acceded to in a written ruling delivered on 28 th February 2011.
After a number of delays for different reasons including the failing health of Mr. Ebanks, the trial of the dispute over title was eventually conducted over a number of days between 27 February 2012 and 3 rd April 2013, and over the course of which, cross-examined testimony was taken from each of the parties. Affidavits and witness statements were also provided by them and by a number of other persons. Sadly, after the conclusion of the hearing but before final arguments and before judgment could be given, Mr. Ebanks passed away on 26 August 2013.
Arguments were raised following the death of Mr. Ebanks by Ms. Brooks as his attorney of record and on behalf of the Intervener by Mr. Akiwumi, urging me to regard the entire action as having abated upon the death of Mr. Ebanks. On behalf of Mrs. Ebanks, Ms McClymont filed her arguments to the contrary.
After a trial of that issue, it was held that a cause of action survived in the nature of a lis as between Mrs. Ebanks and the Intervener in whose name the title to the Ebanks matrimonial home had become registered. A written judgment was delivered on the 21 st February 2014 giving reasons for that decision and directions also then given for the submission of the final arguments in the action as it survived as between Mrs. Ebanks and the Intervener.
Those arguments having been submitted by Ms. McClymont on behalf of Mrs. Ebanks, and by Mr. Akiwumi on behalf of the Intervener, they have been considered and this is the final judgment.
There is no dispute that the home located at 13 EvCo Tour Lane, at Spotts Grand Cayman (‘the Property’), was the matrimonial home of Mr. and Mrs. Ebanks and their two children.
The dispute is over whether Mrs. Ebanks acquired a beneficial interest in the Property, legal title to which was never taken or held in her name.
Although the Property was acquired during the marriage, title was first taken in the joint names of Mr. Ebanks and his mother, Jannitta Ebanks. Thereafter, in a series of transactions, the Property was subdivided and some parcels of it sold, with the remainder (that upon which the matrimonial home stands) transferred by Mr. Ebanks and Jannitta Ebanks together, into the sole name of Jannitta Ebanks for no consideration but for ‘ natural love and affection for my mother’, as appears from the deed of transfer. This occurred on 7 th March 2000, some eight years into the marriage of Mr. and Mrs. Ebanks and at about the same time as they went into occupation of the Property with their children.
After Jannitta Ebanks died intestate in February 2006, the Property was transferred in April 2007 by her administratrices — her daughters Yduleen Sue Buckeridge and Rhonda Lue Ebanks (the Intervener) — into the sole name of the Intervener and as appears from the deed of transfer; as ‘ being the person entitled thereto on the intestacy of the deceased’,
Title has since remained in the sole name of the Intervener.
That devolution of title is alleged by Mrs. Ebanks to be the fulmination of the intention of Mr. Ebanks, his mother and sister the Intervener, from the outset of the acquisition of the Property, to defeat her beneficial interests in the Property. It is her assessment and assertion that, from the outset of her marriage, she was ostracised by those on the distaff side of her husband's family. She cites her abiding suspicion of collusion between them to insulate what they perceived to be their son's and brother's interests, against any entitlement she might acquire by virtue of her marriage to him.
The history of the relationships and the circumstances under which the Property was acquired must therefore be examined.
Mr. and Mrs. Ebanks commenced their relationship in 1991. They first met during a visit of Mr. Ebanks to her native Costa Rica, later became engaged and, on the 22 nd November 1992, were married in the Cayman Islands, she having moved to take up residence here because of their relationship.
On 1 st March 1994, their first child Eric was born and on 14 th December 1995, their second child, Jessica, was born.
Mrs. Ebanks” testimony was that it was at her instigation that the decision was made to acquire land for the construction of a matrimonial home.
The family had been living in rented premises and it made no sense to her that money that could be applied towards ownership should be spent on rent. The family was already assured of a fairly steady income from Mr. Ebanks” EvCo Tours bus business and, as she herself earned a modest income, she felt assured that they could undertake the financing of their own home.
The Property, which then comprised a much larger tract of undeveloped but very swampy land, was identified. It was owned by other members of Mr. Ebanks” family who offered to sell it for $60,000 and the purchase was agreed in 1997.
According to Mrs. Ebanks, the purchase price was agreed to be raised by a deposit of $15,000 from their own savings and by borrowings of $45,000 in 1997 from Barclays Bank.
She admits to having been advised by Mr. Ebanks at the time in 1997 that, as she was not then working, his mother would be needed to join in the loan application with him. She explained that he said this was necessary because his mother had an established relationship with the bank and would be acceptable to the bank as surety. There was, she insists, no suggestion at that time that title was to be taken in his and his mother's name to the exclusion of her own.
The fact that this had been done did not come to her attention until sometime later and when she raised her concerns about it, Mr. Ebanks passed the matter over with the explanation that the bank had insisted on his mother's name being put on the title as co-borrower. He assured her that there was no need for her name to be on the title and that it would in any event cost $5,000 to put her name on it, money that they could not afford. Mrs. Ebanks insists that Mr. Ebanks then, and on numerous occasions throughout the marriage assured her that the Property was to be regarded as ‘our family home’, despite his mother's name being on the title. She says that she was unhappy about this state of affairs but because she trusted her husband, she accepted his assurances.
While Mr. Ebanks sought in his affidavit to deny making any such promises to Mrs. Ebanks, I note here what he had to say about the acquisition of the Property in cross— examination by Ms McClymont. In response to a suggestion from her that he had acquired some savings during the marriage and before the Property was bought:
Answer: ‘In the five years before the Property was acquired I did always try my best to accumulate some savings.’
Suggestion: You used those savings to acquire the Property you bought with your mother.
Answer: I went to the bank to get a loan along with my mother. I had to contribute a couple of dollars– I had to come up with some money. I can't remember directly off hand now just how much I had to come up with. My mother did help me obtain a loan from the Bank because the Bank would not grant me a loan in my sole name — the two of us were joint borrowers on the mortgage. She did this to help me obtain a home for my family’.
I note that the words in emphasis are in keeping with Mrs. Ebanks” case but quite inconsistent with legal title being subsequently passed into the sole name of Jannitta Ebanks.
As to the source of fund for the deposit of $15,000, Mrs. Ebanks gave in her evidence a detailed account of this money having been saved through payments made by Mr. Ebanks into a ‘partner’ arrangement managed by Jannitta Ebanks. She explained that Mr. Ebanks would pay in regularly as much as $400 per week and when his ‘draw’ came around, would receive as much as $10,000 – $15,000. His payments into the ‘partner’ were monies earned from the EvCo Tour business, his only source of income known to her at that time. She asserted that it was from one or two such ‘draws’ that they had obtained the money to pay the deposit of $15,000 towards the purchase price, leaving the need for bank financing of only $45,000 for the balance of the purchase price.
While Mr. Ebanks denied this —...
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