clr/1987/1987_1_101.pdf

(1987)appellant's shop dunng what is substantially thepenod of the mamage and, thus,she was entitled to£2,160 wagesat£60 permonth As regards this allegation the tnal Court did not make any finding, but disposed of the issue summarily, by stating that a relationship of master and servant was notestablished andthatwhen thewife was assistingherhusband for thepurpose of earning theirlivingby theirjointefforts and, consequently, she was notentitled tosucceed in thisclaim 5 Held, dismissingthe appeal

(1)The amount of £2,160 referred to in the statementof claimwas notthesubject ofaseparate claim butitwas meantto be added tothesum of £2,200 paid for thepurchase of thesite Therelevant 1 0 statement of the tnal Courtisindirectconflict with thedictaof LordDenning inFalconerν Falconer[1970] 3 All ΕR449 at452 Inview,however, of the dismissal of the claim and theabsence of across-appeal the matterdoes not anse in this appeal

(2)There is no reason to interfere with the findings of the tnal Court in respect of thecredibility of thewitnesses

(3)Inthecircumstances thepnncipleof resulting trustcouldnotbe invoked in this case This is really a simple case of payment of monies for a consideration that has wholly failed The relationship is squarely within the ambit of s 70 of theContractLaw, Cap 149 15 20 Appeal dismissedwith costs Casesreferred to Falconerv Falconer[1970]3All ΕR 449 Appeal. Appeal by defendant against thejudgment of the DistrictCourt 25 of Nicosia (Kourris, P.DC and G Nicolou, DJ.) dated the 27th February, 1982 {Action No 50/81) whereby the defendant was adjudged topay to the plaintiff the sum of £2,200 as hershare for thepurchase of abuilding site andthe erectionof ahousethereon before thebreakdown of theirmamage. 30 C.Hadjihannou, fortheappellant Ch. Hitromilides, for the respondent Cur adv. vult 102 1 C.L.R. Theodoulou v. Theodoulou A.LOIZOU J: The judgment of the Court will be delivered by LorisJ. LOR1SJ.: The present appeal isdirected against the judgment of the Full District Court of Nicosia in Action No.50/81 whereby 5 the appellant-defendant wasadjudged to pay to the respondentplaintiff thesum of£2,200 with legal interest thereon pluscosts. Thelitigantswerehusbandandwifepriortotheinstitution ofthe present action; they were married inJuly 1976 and the marriage broke down inSeptember 1979 without an issue. 10 The facts pleaded in the statement of claim may be thus summed up: After the celebration of their marriage on 31.7.76 the respondent paid £2,

1. -to the appellant for the purchase of a buildingsiteatYerivillagewhich the latter ultimately registeredin 15 his name under Regn. No. K698 with a view to securing a loan from the Refugee Funds, as he was a refugee, in order to build a housethereon destined forboth;thereafter atthejointexpenseof the couple a house was erected thereon which did cost £5,
2. Ultimately on or around the breaking down of the marriage, the 20 appellant transituieJ thewhc'.epropertyaforesaid inthenamesof histwodaughters from hisprevious marriage. Therespondent claimed£4,460.-equivalenttothe 1/2 shareof the value ofthe aforesaid house. There-isa-further-allegationJn_the statement of claim to the 25 effect that the respondent was working in the tailor^shoFTof the appellant for the period of 31.7.76 up to 26.7.79 (which is substantially the period of the duration of the marriage) and that she is entitled to the amount of £2,160 wages for the aforesaid period calculated atthe rate of £60per month. 30 Theappellantinhisdefence deniestheallegationssetoutinthe statement of claim;he maintains that the respondent received as dowery from her father and brother upon her marriage the amount of £1,700 an amount which was spent for travelling expenses, stay in U.K. and medical expenses of the respondent. 35 The appellant goes on to say in his defence that the house in 103 Loris J. Theodoulou v. Theodoulou

(1987)question was built out of money provided exclusively byhim and further deniesthattherespondent hadeverworked orearned any income whatever dunng the mamage In the alternative the appellant maintains that «whatever made between thelitigants»wasmade«gratuitously»obviouslymeaning that any transaction between the litigantswas «gratuitous» 5 ThetnalCourtafterheanngtherespondentandanotherwitness called by her, as well as the appellant who called no other witnesses,accepted the version of the respondent rejected in toto the evidence of the appellant who did not impress the court «of 10 being atruthful witness» After elaborating at length intheirjudgment on the legal aspect of the case viewed from the angleof resultingtrust- as presented by counsel on both sides attheheanng - held that (i)«inthe light of the circumstances under which the building plot was acquired 15 and the house erected thereon, a trust was created, (n) the wife is entitled to a beneficial share as near as possible proportionate to her contribution and concluded that «on the evidence before us the wife contributed for the purchase of the land and byinference for theconstruction ofthehouse thesumof 20 £2,200 -and we can safely saythat herbeneficial share isfor that amount and we enterjudgment for the plaintiff for£2,200-» Itmayaswellbenoted atthisstagethatthecourtoffirst instance failed to make a finding on thealleged servicesof the respondent in thetailor -shop oftheappellant forthe penod of31 7 76upto 25 26 7 79entitling her tothe amount of£2,160 Instead they proceeded in disposing of thisissuesummanly by statingthe following. «We do not think that in the circumstances of this case a relationship of master and servant was created to enable her 30 to claim wages dunng the penod she was working with her husband. She has not alleged any express agreement regarding payment of wages and we have no doubt in our minds that when she was assisting her husband in his work, thiswas for thepurpose of contributing inearning their living 35 104 1 C.L.R. Theodoulou v. Theodoulou Loris J . by theirjoint efforts and consequently she cannot succeed in thisclaim.» Withrespect theaforesaid statement isindirectconflict withthe dicta of Lord Denning in Falconer v. Falconer[1970] 3 All E.R. 5 449 at p. 452 (referred to verbatim in the judgment of the Court below)as follows: 10 15 20 «... Itisdone, notsomuch byvirtue ofan agreement, express or implied, but rather byvirtue of a trust which isimposed by law. The law imputes to husband and wife an intention to create a trust, the one for the other. It does by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement onit.Thisinference ofatrust,theonefortheother, isreadily drawn when each hasmade a financial contribution tothe purchase price ortothe mortgage instalments. Thefinancial contribution maybedirect,aswhereitisactually stated to be a contribution towards the price of the instalments. Itmay be indirect, aswhereboth go outto work, and one pays the housekeeping and the other the mortgage instalments. Itdoes not matter which way round it is.It does not matter who pays wliat. So long a? thpre is a substantial financial contribution to the family expenses, it raises the inference of atrust.» Itissignificant tonote here that the amount of £2,160 referred 25 toinparagraph 8ofthestatement ofclaimisnotthesubjectofany prayer in the claim; it was obviously meant to beadded to-the amount of£2,200 money paid bytherespondent tothe appellant constituting thusthe amount claimed invirtue ofprayersAand B. Ifapositive finding on the issueof £2,160 were recorded itmight 30 have rendered necessary the examination of the case under appeal from the view-point of the trial court, notably that of resultingtrust,whichcannotariseasthematternowstandsinview of the dismissal by the trial court of the claim in respect of the amount of £2,160.- asaforesaid and the absence of cross-appeal 35 on thispoint. Thus there remained alone the amount of £2,200, money paid by the respondent to the appellant forming the sole substratum of prayers Aand B. For this amount of £2,200 only, 105 Loria J. Theodoulou v.Theodoulou

(1987)judgment wasentered infavour ofthe respondent andagainstthe appellant. The court of first instance who had before them the witnesses heard their evidence and accepted the evidence of the respondent. The credibility of witnesses is always within the 5 province of the trial court. They relied on the evidence as they have accepted it and they made a finding of pnmary fact notably that the wife (therespondent) gavetoherhusband (the appellant) the amount of £2,200.- We have not been pursuaded that the court below went wrong reaching at such afinding; and weare in 10 agreement with them thatthewifegavetoherhusband thesumof £2,200.- to be used for the purchase of the building plot and subsequentbuilding expenses. It was established that the building site was bought and that same was registered inthe name ofthe appellant whotransferred 15 same after a building was erected on it to his daughters from another marriage, some time prior to the institution of the action under the present appeal. The marriage of the litigants broke down and the amount of £2,200 was never returned to the respondent. 20 In the circumstances we hold the view that the principle of resulting trust cannot be invoked inthe present case.Thisisreally asimplecaseoftherespondent payingtotheappellant moniesfor a consideration which has wholly failed. Itisa relation resembling tothose created by contract and itis 25 squarelywithintheambitofs.70ofourContractLaw,Cap.149. In the result the present appeal fails as the amount of £2,200 wasproperly adjudged infavour of the respondent albeit through a process of different reasoning. Appeal dismissedwith costs. 30 106