Yorke v Yorke
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 02 March 1994 |
| Neutral Citation | TT 1994 HC 25 |
| Docket Number | M-1089 of 1987 |
| Court | High Court (Trinidad and Tobago) |
| Date | 02 March 1994 |
High Court
Maharaj, J.
M-1089 of 1987
O. King instructed by H.A. Alves for the petitioner.
L. Samaroo instructed by L. Ramcoomarsingh Snr., for the respondent.
R. Ramcoomarsingh Jnr., instructed by E.V. Emmanuel for the party joined.
Practice and procedure - Parties — Divorce proceedings — Application to join another party to the petitioner's notice — Whether joinder a matter of substantive right or procedure — Supreme Court of Judicature Act, Chap 4:01 — Rules of the Supreme Court, 1975, O. 1, rule 2(2)(4) — Whether court can act even though Matrimonial Causes Rule, 1973 contain a procedure — Finding that court has jurisdiction to grant leave to petitioner to join additional party to the petition.
On the 14th day of December, 1987 Jane Barriteau Yorke (hereinafter called “the petitioner”) filed her divorce petition against her husband James Yorke (hereinafter called “the respondent”) and for easy reference herninafter called “the parties”.
The parties were married on the 25th day of April, 1983. It appears that the parties had cohabited together from or about 1980 at No.38 Third Street Malick (hereinafter called “the Matrimonial home”). The marriage was a short one. The respondent says that in or about the latter part of 1985 it failed. The petitioner, however, tried to save the marriage but because of the respondent's behaviour the petitioner deposed that she left the respondent for good on the 8th day of September, 1986.
The petitioner was about 51 years at the date of her marriage and the respondent was about 57 years old. In 1993 the petitioner would be about 61 years and the respondent 67. They were therefore getting on in age.
When the parties married they both had working experience. The respondent rose to the rank of a Police Inspector in the Trinidad and Tobago Police Force, and on resignation he became a Security Consultant with the Firm of Neal and Massy Ltd. He retired from this latter position in 1983 or thereabouts.
Yorke Security Ltd appears to have been incorporated in 1983 and by the end of that year this company was fully in operation. In the respondent's answer, he denies that the petitioner contributed financially to the establishment thereof. However, in the respondent's affidavit dated the 4th July, 1989 he deposed that this company never got off the ground. The petitioner withdrew her support and the business ceased operation. A perusal of the respondent's affidavit dated 28th November, 1989 showed that the company was in operation; it had a staff, security dogs, and that financial deposits were frequently made to its account at the Royal Bank of Trinidad and Tobago, Independence Square, Port of Spain.
Further and better particulars were delivered by the respondent's attorney and dated 28th January, 1991. This shows that the above company was struck off the Register of Companies by the Registrar General's Department but the date this was done was unknown to the respondent.
The affidavits disclosed that this firm operated from the matrimonial home. That the petitioner, the respondent and the party joined took active parts in the operation thereof. According to the petitioner, her earnings at the Public Transport Corporation, incomes derived from rentals of her own properties, as well as her savings were pooled together with that of the respondent's in order to open Yorke Security Ltd.
The Petitioner went further and deposed that she travelled in 1983 with the respondent to purchase in New York uniforms, caps, badges and miscellaneous accessories for the security firm. She contributed the sum of $4,000.00 US. dollars towards this venture. The petitioner further deposed that she was instrumental in obtaining financing for this company's motor vehicles. Further she signed as the company's secretary on the Mortgage Bills of Sale for the said vehicles.
It is noteworthy that the petitioner also deposed that Yorke Security Limited was a partnership in which she was entitled to an equal share with the respondent and the party joined.
Of course, I am aware of the law in relation to a Private Limited Liability Company, but the affidavits disclosed that the petitioner had financially contributed to this company.
The records also disclosed that the respondent was married previously one Lucia Yorke. From this marriage they had four children. That the party joined was as issue thereof. In H.C.A: No: M-4 of 1975 Tobago, and H.C.A. No.397 of 1975 Port of Spain this marriage was dissolved. The petition was brought by Lucia Yorke aforesaid.
It appears also that des Iles J., on the 21st April, 1977 ordered the respondent to pay Lucia Yorke above the sum of $36,900.00 together with maintenance of $400.00 each month commencing from the 1st May, 1977 or until further order.
The affidavits also disclosed that the petitioner had had 5 children by a common law relationship prior to her marriage with the respondent. The petitioner at the date of her marriage was a bus conductress and later advanced to the position of Dispatcher-Supervisor with the PTSC. However, by December, 1989 she was retrenched from the latter corporation.
Permanand J. (as she then was) on the 23rd January 1989 dissolved the parties' marriage on the ground of the respondent's unreasonable [behaviour…] 47 Declaration was granted as the parties had had no children.
It may be that the parties have now realised that old saying could be true, that is, “Marriage is like swinging a baton, turning handsprings, or eating with chopsticks. It looks easy till you try.” Or further still that “marriage could be an investment that pays the wife's dividends if the husband pays interests.”
By notice dated 20th April, 1989 the petitioner sought the following Ancillary Reliefs against the respondent: –
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(1) An order for periodical payments, secured provision and a lump sum for herself.
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(2) A settlement of property order in respect of property situated at 38 Third Street Barataria (“the matrimonial home”) and any other of the respondent's property. (emphasis mine)
In relation to the periodical payment order the respondent filed his affidavit of the 4th July, 1989 first. The petitioner did not support her application for the other reliefs sought by first filing her affidavit in support.
No point was taken by the respondent or the party joined that the procedure for the filing of the affidavit was not complied with.
In any event the respondent filed three affidavits and the petitioner two. The reliefs in the petitioner's notice was not determined by this court. I presume that the petitioner's reliefs would be decided at some later date. As such I make no ruling on the above point.
In opposition to the petitioner's notice above the respondent filed namely:–
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(a) Affidavit dated and filed on the 4th July, 1989.
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(b) Affidavit dated and filed on the 28th November, 1989 with exhibits annexed
thereto and this was done in reply to the petitioner's affidavit dated and filed on
the 23rd October, 1989.
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(c) Supplemental affidavit dated and filed on the 23rd October, 1991.
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(d) Further and Better Particulars dated 28th January, 1991 with respect to the
respondent's affidavit dated 28th November, 1989. This was done in pursuance to Permanand J's order made on the 14th January, 1991.
With respect to the petitioner's notice aforesaid the following affidavits were filed.
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(a) Affidavit dated the 23rd October, 1989 and filed on even date with exhibits
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annexed.
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(b) Affidavit dated 29th November and filed on even date.
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(c) Affidavit dated 29th November 1991 of Samuel Nero, the brother of the petitioner.
It is important to note that the respondent by notice dated 6th May, 1991 claimed the whole or part of the Petitioner's property situate as follows:–
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(a) Freehold property situated at the corner of Mon Repos and Toco Road Sangre
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Grande.
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(b) Freehold property at 8 Rosewood Avenue, Morvant,
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(c) Lands at Tobago (formerly described as “2 lots of land at Shirvan Park Tobago” and now better described as lands at Mt. Pleasant Tobago).
The respondent in his affidavit of the 9th July, 1989 did disclose the petitioner's properties above including, a Fixed Deposit of $30,000.00 at the Royal Bank, Port of Spain.
In paragraphs 13 and 14 of the petitioner's affidavit of the 23rd October 1989 she sets out her real property asset. She denied that she owned a house at Malick, 7th. Avenue, or a fowl farm at Toco, Sangre Grande.
The petitioner by summons dated 11th November 1992 sought leave of the court to join James Yorke Jnr. as a party to the petitioner's notice above.
The petitioner's attorney, Mrs. Helen Ann Alves, supported this summons by her affidavit dated the 20th November 1992 and filed on the 23rd thereof. The affidavit disclosed: –
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(a) Exhibit “H.A.A.1” that is, the petitioner's notice of the 20th April, 1989 above.
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(b) It referred to the petitioner's affidavit dated the 23rd October, 1989 above.
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(c) It deposed that the respondent was seised of the Matrimonial Home and one half lot of land at Plymouth Tobago together valued $215,000.00 at paragraph 3 of the latter affidavit; that the respondent has failed to disclose inter alia the undermentioned real and personal properties:–
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(1) Leasehold premises...
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