Da Santos v Da Santos
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 15 November 2016 |
| Neutral Citation | VC 2016 HC 74 |
| Court | High Court (Saint Vincent) |
| Date | 15 November 2016 |
| Docket Number | SVGHCV 2012/0158 |
High Court
Henry, J.
SVGHCV 2012/0158
Mr. Parnel R. Campbell Q.C., Ms. Mandela Campbell with for the claimant
Mr. Samuel Commissiong for the first and second defendants.
Third party absent and unrepresented.
Property Law - Possession of land — Mortgage — Security for loan — Family loan — Whether the defendants held the land in trust for the claimant — Parties' respective interest in the land — Individual contributions — Resulting trust — Whether the claimant was entitled to any relief — Injunction — Settlement agreement.
This case surrounds a dispute between a father and daughter over ownership of land. Mr. Cornelius Da Santos has alleged that in 1993 he decided to buy lands at Belle Vue but had only part of the purchase price. He claimed that he, his wife Deltash and their daughter Kathleen [She has since married and has been divorced. Mrs. Kathleen Da Santos Jack will be referred to interchangeably as Mrs. Jack and Kathleen for simplicity and cohesion. No disrespect is intended.] entered into a family arrangement whereby Kathleen undertook to secure a loan for the balance of the purchase price from her then employer, the Bank of St. Vincent and the Grenadines Ltd. (‘the bank’) [Formerly the National Commercial Bank (SVG) Limited.]. He alleged further that in pursuance of this agreement, Kathleen obtained the loan on his behalf at the preferential rate offered to the bank's employees. He claimed that her name was placed on the Deed of Conveyance as the ostensible owner, on the understanding that she held it in trust for him. He averred that it was always his responsibility to repay the mortgage which he did.
Kathleen's ex-husband Troy Jack was made a defendant. Mr. Da Santos alleged that Kathleen agreed as part of the divorce settlement between them, to assign her interest in the land to her ex-husband, for the benefit of their daughter Rhianna. Mr. Da Santos maintained that the land is his and that his daughter holds it in trust for him. He has sought declarations that he holds all beneficial interests in the land and that his daughter and her ex-husband hold the equity in redemption in trust for him. He claimed among other things an order transferring the property to him and an injunction restraining Kathleen and Mr. Jack from doing anything to alienate or destroy his interest in the land. Mrs. Jack and Mr. Jack have denied that Mr. Da Santos repaid the mortgage or holds any interest in the land. Mr. Jack pleaded that he has no interest in the land apart from his desire for his daughter to have a good tertiary education.
The Bank of St. Vincent and the Grenadines (the bank') was joined as a defendant but took no active part in the proceedings. Mr. Da Santos claimed against them a declaration that they hold the legal estate in the lands as mortgagee, subject to a resulting trust in his favour and an injunction restraining them from further alienating his interest in the land or doing anything to adversely affect those interests. He also sought an order that the bank release and reconvey to him the legal estate in the land when the subsisting mortgage is discharged.
The issues are:
- Whether Kathleen Da Santos-Jack and/or Troy Jack hold the subject land in trust for Mr. Cornelius Da Santos? 2. To what interest if any, is Mr. Cornelius Da Santos, Mrs. Kathleen Da Santos-Jack or Mr. Troy Jack entitled? 3. To what, if any relief is Mr. Da Santos entitled?
All of the parties testified and were cross-examined. Mr. Da Santos' sole witness was his sister Isula Sherman. His son Haneff Da Santos testified on Kathleen's behalf. Their witness statements and summaries were admitted as their evidence in chief along with the supporting documentary exhibits.
Mr. Da Santos is 70 years old. He has been a farmer for most of his life. At one time, he cultivated about four parcels of land including the disputed property. Sometime around 1993 the subject lands were offered for sale at the price of $35,000.00. Mr. Da Santos was given first preference to purchase but could not afford the full purchase price. He testified that although the market value of the property was in the region of $61, 500.00, the sellers gave him a discount because of his longstanding relationship with them.
He attested that he had only half of the purchase price and needed to borrow the balance. Under cross-examination, he explained that he had about $26,000.00 in a joint account with his wife. It is common ground that $17,500.00 of that amount was used for the down-payment. Mrs. Jack testified that her mother withdrew the monies and which was then applied towards the securing the loan. It is not disputed that the bank advanced the sum of $20,000.00 to Mrs. Jack to cover the balance of the purchase price. Certified copies of the Deed of Conveyance [Deed number 2815 of 1993 registered on 22nd September, 1993] and the mortgage Deed number 2816 of 1993 [Registered on the 22nd day of September, 1993.] were produced. The property is described in the Schedule to the Mortgage Deed as:
ALL THAT LOT PIECE OR PARCEL OF LAND situate at Belle Vue in the State of Saint Vincent and the Grenadines being in extent four acres and fifteen poles … and butted and bounded Northerly and Easterly by Estate Road Southerly by lands of Lloyd Wilson James and Westerly by lands of Carey De Freitas and known and described as Lot Number 20 on a plan in the possession of the vendors…
TOGETHER with all ways waters watercourses rights lights liberties privileges and easements thereto belonging or usually held used occupied or enjoyed therewith or reputed to belong or be appurtenant thereto.'
Mr. Da Santos maintained that the loan was secured by him in Kathleen's name. He averred that he fully serviced the loan through monies earned from plying the banana trade and from his trucking business. He explained that his earnings from the sale of bananas and plantains:
‘Came into the house, put on the table and go to pay the bank.’
Kathleen insisted that she paid all monthly mortgage payments of $450.00, with monies from her own savings and salary and with assistance from her mother who was a day care supervisor. She claimed that her father was in no position financially to pay the full purchase price of $35,000.00 because he was only a small farmer.
Mrs. Jack asserted further that because he had two children (her brother and her) attending school and he had a household to run, her father to her knowledge, made no contributions towards servicing the loan. She acknowledged that she was then no longer in school and ultimately retracted her statement that her father had 2 children to maintain. By his own reckoning, Haneff was 17 years old at that time and had almost completed his secondary education. There is no evidence that he pursued tertiary education. No evidence was provided as to when he started to earn an income. Mrs. Jack and Mr. Da Santos were frugal with the truth on issues in dispute and made concessions for the most part only when incontrovertible evidence contradicted their accounts. They were not reliable witnesses. The court therefore had to rely in large measure on circumstantial evidence to resolve conflicts in their testimony.
Mr. Jack stated that he is aware that Kathleen personally serviced the loan with contributions from her mother. He averred that at times he personally collected cheques from Mrs. Da Santos for this purpose and took them to Kathleen at the bank. He admitted that he was unable to say that Mr. Da Santos made no contributions towards the loan repayment. Haneff Da Santos testified that his father made no payments towards the mortgage. He too recalled collecting monies from his mother which he took to Kathleen to apply towards the mortgage. He insisted that all payments were made by his sister Kathleen and mother Deltash. He acknowledged that he did not have a good relationship with his father as they had a falling out which led to him leaving the family home around 2006.
In response to questions posed by the court, Mrs. Jack said that the monies for the down payment were withdrawn from a joint account held by her mother and father. She added:
It was never discussed that the land be purchased for Mr. Da Santos. The entire transaction was in the interests of the family. Not just for one family member. To this day, it is still for the best interests of the family. Myself, my brother Haneff, my mom Deltash and father Cornelius Da Santos were to be the beneficiaries of that agreement.'
Her brother Haneff acknowledged this to be the case. That is very compelling testimony and perhaps the most poignant evidence given in the entire case.
It speaks volumes and it confirms that the Da Santos family had entered into a family arrangement whereby Mrs. Jack would secure a loan from the bank to complete the purchase price of the land, on the understanding that the family members would gain an interest in it. Mrs. Da Santos Jack however persisted in her assertions throughout that her father made no contributions to the purchase of the land. I cannot ignore her clear statement and her brother's confirmation regarding the family arrangement or her acknowledgement that the down payment came from her parents' joint bank account.
The mortgage was fully repaid without default. Subsequently, the disputed land was further mortgaged to finance surgery for Mr. Da Santos and thereafter to secure an educational loan for Mrs. Da Santos Jack. The loan for medical expenses was secured by Mrs. Deltash Da Santos, Haneff Da Santos and Kathleen Da Santos by mortgage Deed No. 2786 of 1998 [Registered on the 2nd day of September, 1998]. The educational loan was registered as mortgage...
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