Sonia Hippolyte of Beausejour Gros Islet Applicant v Cletus Hippolyte of St. George Street Gros Islet Respondent [ECSC]

• Jurisdiction: St Lucia
• Court: High Court (Saint Lucia)
• Judge: GEORGES, J. [AG.]
• Judgment Date: 22 August 2011
• Judgment citation (vLex): [2011] ECSC J0822-1
• Docket Number: SLUHMT 2004/0078
• Date: 22 August 2011

[2011] ECSC J0822-1

IN THE HIGH COURT OF JUSTICE

SLUHMT 2004/0078

Between:

Sonia Hippolyte of Beausejour Gros Islet

Applicant

and

Cletus Hippolyte of St. George Street Gros Islet

Respondent

The application

GEORGES, J. [AG.]

1 On 28^th April 2009 the applicant Sonia Hippolyte filed a Notice of Application for Ancillary Relief stemming from divorce proceedings filed by the respondent (Petitioner) Cletus Hippolyte on 20^th July 2004. In those proceedings the respondent was granted a decree nisi on 3^rd April 2008 by Cottle J which was made absolute on 13^th August 2008. In her application for ancillary relief the applicant sought maintenance in the sum of $2,000.00 monthly, costs, and an order that the respondent deliver up to her a half share of the proceeds of all properties sold by him, in particular a property at Canaries, allegedly sold for $1,000,000.00.

Affidavit in Support of Application

2 In her supporting affidavit she deposed that:

• (i) The respondent had formed a company called "Caribbean Sun Tours.

• (ii) By a deed of sale Fleur Odium sold a parcel of land Block 1256 C Parcel 174 situate in Gros Islet to Caribbean Sun Tours for $60,000.00.

• (iii) By deed of sale the respondent purchased Block 1256 C Parcel 45 situate in Gros Islet from Raul Odium for $46,000.00 upon which, in her words, "our house" was built.

• (iv) There are diverse properties in Gros Islet apart from a restaurant which they allegedly operated called "The Banana Split".

• (v) On 31^st March, 2000 the respondent's son sold him a property for $15,000.00 therefore this was in her view "community property".

• (vi) The respondent sold lands at Canaries for $1,000,000.00 which were bought allegedly from "funds obtained from the operations of "the Banana Split".

• (vii) They were in business together and proceeds from the business were used to purchase, in her words, "all the properties that we have".

Observations

3 No proof by way of supporting documents was exhibited by the applicant to enable the court to justly resolve this matter. For although the applicant's supporting affidavit is replete with allegations she altogether neglected to exhibit any documentary proof that could assist the court in reaching a conclusion. For instance, she failed to exhibit the Certificate of Registration or Articles of Incorporation for the Banana Split and Caribbean Sun Tours. Nor did she exhibit the deeds of sale in respect of the alleged purchases from Raul and Fleur Odium or any documentary evidence concerning the alleged sale of land at Canaries. In my view the applicant did not provide a single iota of proof that she owned and operated businesses with the respondent from which monies were used to purchase the various properties.

Further affidavit in support of the application

4 On 30^th April 2009 the applicant filed a further affidavit in support of her application for ancillary relief in which she made the following unsubstantiated allegations by deposing that:

• (i) the respondent and her formed a company CSH Ltd which leased a property called "the Wall".

• (ii) She paid utility bills after returning from England in the amount of $3,000.00.

The applicant urged the court to order that the respondent refund the monies that were allegedly paid for utilities and award her half the profits earned from the Wall.

Observations

5 Once again no cogent proof or evidence of any kind that would have assisted the court in arriving at a decision was provided. The applicant failed to furnish the certificate of registration for CSH Ltd and did not exhibit the receipts in proof of payment of the $3,000.00 which she claimed to have paid for utilities. In addition, although she claimed half share of the profits earned by the Wall no documentary proof of the nature and extent of the business or even an estimate of profits was submitted.

Respondent's affidavit in reply

6 On 25^th September 2009 the respondent filed an affidavit in reply to the applicant's affidavits of 28^th April 2009 and 30^th April 2009 in which he deposed that:

• (i) Although the applicant owns a single share in Caribbean Sun Tours he only gave her the share sometime after forming the company and she invested nothing at any time in it.

• (ii) He did indeed purchase property in Gros Islet but this was done from monies which came from property he had purchased to use his words "before I even met the respondent".

• (iii) He did purchase Block 1256 C Parcel 45 in Gros Islet butthe purchase was made "before I married the respondent".

• (iv) He did purchase land from his son but this was done from proceeds of sale of lands at Reduit which "were purchased in or around 1979 … before I ever met the respondent".

• (v) He did in fact sell land in Canaries but this was land that he had partly inherited and partly bought from income he earned selling beer before he met the respondent. He also deposes that the proceeds of this sale were used to pay community debts, the living expenses of himself and the applicant in England and the medical bills of the applicant.

• (vi) The applicant was not in business with him as she was a housewife and when he formed CSH Ltd he only gave her a share as a gift. He also deposed that the company was heavily indebted.

• (vii) He denied that the applicant paid $3,000.00 for utilities.

7 The respondent also deposed that he believed that the applicant's income exceeds his on the basis that he believed she owned a restaurant in Beausejour. He added that he had 3 minor children for whom he was responsible and urged the court to order the applicant to pay him $1,000.00 per month maintenance.

Observations

8 To the extent that the burden of disproving the allegations made by the applicant falls on the respondent, and to the extent that he was obliged to prove the assertions he made in his affidavit, he failed to provide even a scintilla of documentary proof to assist the court. He exhibited no receipts to show that he had paid her medical bills. He provided no evidence of the companies' debts. He did not exhibit the deed of sale or other related documents for the lands he claimed to have purchased before meeting the applicant nor did he exhibit any copies of the Land Register to show that the lands in Canaries were partly inherited. He claimed to have given her shares in the companies as a gift but did not exhibit a deed of gift or certificate of registration or a copy of a share certificate to assist the court in any way. The respondent could have easily produced the birth certificates of his children to establish that they were indeed minors from which the court may have been able to draw inferences but this was not done.

Applicant's affidavit in reply

9 On 13^th January 2010 the applicant filed an affidavit in reply to the respondent's affidavit of 25^th September 2009. That affidavit was in the opinion of the court prolix and contained facts which were scandalous and vulgar. I find it necessary to point out that pleadings, unless the matter is extremely complex and involved, are to be succinct and to the point. Where allegations are bantered about some form of supporting evidence is desirable. Much of the contents of the applicant's affidavit in reply are not of any relevance whilst other parts merely repeat the allegations made in the earlier affidavits. The court has taken great pains to sift out the parts that may be of any value and summarize them as follows:

• (i) The applicant deposed that the respondent and herself started running the Banana Split restaurant in Castries in 1981 and part of the proceeds was used to open a second branch in Gros Islet.

• (ii) She admitted that the respondent borrowed some money from the Development Bank. She also admitted that the respondent owned a piece of land in Reduit when she met him which was used as collateral for the Banana Split. According to her evidence when the business was on hard times the respondent had to sell the land in Reduit to pay off the bank.

• (iii) She deposed that the respondent sold a piece of land in Canaries and used the proceeds to build the Wall but insisted that they managed the business together. She alleges that the land in Canaries was bought between 1984 and 1985 and was sold in 2007. The money used to purchase the land in Canaries came from proceeds of the Banana Split.

• (iv) She deposed that she operates the restaurant in Beausejour on behalf of the Gustave's who are the owners.

• (v) She alleges that the respondent receives child benefit, pension and housing benefit from England and that he rents the Banana Split and the Wall for $6,000.00 and $30,000 respectively.

As is the recurrent theme throughout the affidavit...