Tony David Franklyn v Esther Moore

• Jurisdiction: Barbados
• Judge: Weekes, J.
• Judgment Date: 17 April 2025
• Neutral Citation: BB 2025 HC 20
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: FL 109 of 2002

Tony David Franklyn

and

Esther Moore

Weekes, J.

FL 109 of 2002

High Court

Appearances:

Mr. Dave Cumberbatch, Attorney-at-Law for the Applicant.

Mr. Neville Corbin, Attorney-at-Law for the Respondent.

REASONS FOR DECISION

INTRODUCTION

Weekes, J.

1 The issue raised by this application is whether the applicant is entitled to a beneficial share in a chattel house owned by the Respondent. The Applicant purports to have been in a union other than marriage with the Respondent during which he expended sums on a chattel house. The Respondent denies that they were ever so involved, although they are the parents of one child, a son.

2 On the 22nd of February, 2002 the Applicant filed an application in the Family Division of the High Court seeking the following relief

• a) A declaration that he is entitled to a share estate and interest in the property consisting of a chattel house situate at Gall Hill in the parish of Christ Church in this Island.

• b) An Order that the Respondent is entitled to a share of the said chattel house and that the Respondent's be settled as the High Court of Justice see fit.

• c) Further, or in the alternative, an Order under Section 57 of the Family Law Act vesting such a share in the aforesaid property in the Applicant or as the Court may deem just.

• d) Such further orders as this Honourable Court may deem just and or expedient.

3 The Applicant swore an Affidavit in support of his application which was also filed on the 22nd of February, 2002. In this Affidavit the Applicant deposed as follows:-

• 1. That I am the Applicant herein.

• 2. That I have lived with ESTHER MOORE, the Respondent in a union other than marriage for over fifteen years.

• 3. That during that union the parties acquired a chattel house which was constructed at Gall Hill in the parish of Christ Church.

• 4. In order to construct the building of the said house both the Respondent and the Applicant made contributions.

• 5. That the union has broken down and the parties have since separated

• 6. I make this Affidavit in support of the Application filed herein.

4 The Respondent swore an Affidavit in response which was filed on the 11th of June, 2002. The Respondent deposes as follows:-

I make this Affidavit to show:-

• 1. I am the Respondent herein.

• 2. In 1993 I gave the Applicant the sum of $1,400.00 to buy material to build a small house on land owned by my aunt, Myrtle Harvey in St George. The Applicant never bought the material for the said house nor returned the $1,400.00.

• 3. In spite of repeated requests, the Applicant gave the following excuses:

  • (i) “I used it to set up a food stall at Bushy Park but the stall did not make any money”

  • (ii) “When I am ready, I will borrow some money from BST and buy the material”. He never did so.

  • (iii) “You don't have any proof that you gave me $1,400.00. I didn't sign any receipt and anyhow, $1,400.00 can't buy no material to build no house.”

• 4. In 1994, I went to live with my grandfather, Cormick Browne in order to take care of him. I had with me my son, Jacinto Theo Franklyn whose father is Tony David Franklyn, the Applicant.

• 5. I took care of my grandfather, Cormick Browne until he died on or about the 1st day of July, 1995.

• 6. On the 6th July, 1995 I paid Waithe's Garage and Funeral Home the sum of $1,000.00 towards the burial of my grandfather, Cormick Browne. See receipt attached and marked Exhibit “EMI”.

• 7. My mother then took possession of the said house and sold it to me on the 6th July, 1995 for the sum of $1,000.00. That sum of $1,000.00 was the money I had paid to the Undertaker towards the funeral of my said grandfather, Cormick Browne. See receipt attached and marked Exhibit “EM2”.

• 8. In late 1998, I had an estimate done by a Carpenter named Chester Mayers. The said Carpenter charged me the sum of $3,000.00 for labour to repair the said house.

• 9. About a week after I received the estimate, the Applicant came by my home and informed me that his mother had put him out of her house and he had no place to stay. He asked me if he could stay with me and I told him yes. The Applicant moved into the said chattel house and would sleep there some nights and sleep other places other nights. He only kept some working clothes at my home.

• 10. I recommitted myself to God around June 1999 and had no intimate relationship with the Applicant from June 1999 until the present.

• 11. I allowed the Applicant to stay at my home as a friend.

• 12. After the Applicant had moved into my home in late 1998, I showed him the Estimate that Mr. Mayers had given me. About a week after I showed the Estimate to the Applicant, I came home from work and saw some lumber and galvanize at my home. did not see the Applicant that night.

• 13. On the following day, I enquired about the material that was at my home and the Applicant told me that this material would go towards the money that he owed to me.

• 14. My Agreement with the said Carpenter was to repair my house piece by piece as I could afford material and money to pay him. I had no intention to change all of the siding boards as the majority of the siding boards were good

• 15. I never gave the Applicant the right to tell the Carpenter what to do on my house.

• 16. I went home one evening and saw that the siding had been taken off and new siding was being put up. I saw new lumber on the ground and 3 doors inside the house. I asked the Carpenter who gave him permission to take off the siding and he replied that the Applicant had told him to put on the new board. I told the Carpenter that this was not the Applicant's house and further asked him who he was working for.

• 17. I paid the said Carpenter in excess of $2,000.00.

• 18. The said Carpenter did not complete the house.

• 19. I later bought more lumber and bedroom doors and employed another Carpenter to install the door jams and the bedroom doors.

• 20. I never asked the Applicant for any help with the house.

• 21. I never agreed that any part of the house would be the Applicant's house. The Applicant had mentioned to me that anything he did with the house would be for his child, Jacinto Theo Franklyn.

• 22. I never lived with the Applicant in a union other than a marriage for over 15 years.

• 23. We lived together at my mother's (Eucine Gollop) house at Skeete's Road, St. Michael from June 1990 to May 1991, and then at my home at Gall Hill, Christ Church from late 1998 to June 1999.

• 24. The Applicant is the owner of a portion of land at Bushy Park, St. Philip which he acquired sometime in late 1998.

• 1. That I never lived in a union other than a marriage with the Applicant.

• 2. That the Applicant made limited contributions which he said was for his child the said Jacinto Theo Franklyn, and

• 3. That I am the sole owner of the chattel house at Gall Hill, Christ Church.

5 The Applicant thereafter swore a supplementary Affidavit which was filed on the 6th of March, 2003 in which he deposed as follows:-

• 1. I have read the Affidavit filed in response by the Respondent and take issue with the same except for the instances where an admission is made, all other allegations of the Respondent are implicitly denied.

• 2. That sometime during the month of September 1992, the Respondent, our son and I moved into the residence of the Respondent's uncle at Melverton, St. George. We remained there until sometime in the later half of the year.

• 3. That we subsequently moved to Gall Hill, Christ Church where in 1995, we purchased a house from a Udine Moore for the sum of $1,000.00. I contributed one half of the purchase price.

• 4. That the Respondent and I lived in this house for about 5 years when we decided that we should construct a new building.

• 5. That after we were unsuccessful in acquiring a bank loan for the project, the Respondent and I decided that we should together finance the project; she agreed to pay the carpenter. I agreed to purchase the materials.

• 6. That I purchased the lumber from the Barbados Lumber Company. The receipt is displayed herein and marked “TEI”.

• 7. That the Respondent failed to keep her promise to pay the carpenter, a Chester Mayers, and he left the job unfinished. I was therefore required to obtain the services of another carpenter, Eyre Spencer, to complete the job. The Respondent contributed $700.00 to this carpenter's fee and I $1,100.00.

• 8. That the Respondent and I cohabited over the period 1987 to 2001 and I always contributed to the upkeep of the family by making regular weekly monetary contributions.

• 9. That I depose to the facts herein to show:

  • (a) that the Respondent and I lived in a union other than marriage;

  • (b) that we both contributed to the construction of the building at Gall Hill, Christ Church.

6 The Respondent swore a further Affidavit in response to the Applicant's supplemental Affidavit which was filed on the 2nd of April, 2003. The Respondent deposes as follows:-

• 1. I deny paragraph 2 of the Applicant's Affidavit and state that my uncle, Leroy Gollop had a house at Melverton, St. George and he allowed myself and my son, Jacinto Theo Franklyn to live there, The Applicant would mostly visit the house and leave.

• 2. I deny paragraph 3 of the Applicant's Affidavit and state that myself and my son, Jacinto Theo Franklyn moved into my grandfather's house at Gall Hill, Christ Church and continued to live in the said house with my grandfather until he died in 1995. I still live at this address.

• 3. I understood that the said house was then taken over by my mother Eucine Gollop nee Moore, who was the daughter of my grandfather, Kermit Browne. Because of my relationship with my mother and the Applicant, it was agreed between myself and my mother, Eucine Moore that I should pay for part of the funeral expenses for my grandfather. I paid $1000 Waithe's Funeral Home towards the said funeral expenses.

• 4. The Applicant never contributed any money...