1. Elaine Pringle Toulon 2. Lease Enterprise Ltd Claimants/Counterclaim Defendants v 1. Ayanna Pringle 2. Letitia Butler Defendants/Counterclaimants

• Jurisdiction: Dominica
• Judge: Stephenson J
• Judgment Date: 18 December 2015
• Judgment citation (vLex): [2015] ECSC J1218-1
• Court: High Court (Dominica)
• Docket Number: CLAIM NO. DOMHCV2010/0282
• Date: 18 December 2015

[2015] ECSC J1218-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. DOMHCV2010/0282

Between:

1. Elaine Pringle Toulon

2. Lease Enterprise Ltd.

Claimants/Counterclaim Defendants

and

1. Ayanna Pringle

2. Letitia Butler

Defendants/Counterclaimants

1 Stephenson J.: Elaine Pringle Toulon is the mother of Ian Pringle and Lease Enterprises Ltd was a Dominica Registered Company allegedly owned by Ian Pringle and Elaine Pringle Toulon. (Hereinafter referred to as the counterclaim defendants)

Stephenson J

2 Ayanna Pringle and Letitia Butler are the daughters of Ian Pringle (deceased) and the personal representatives of his estate. They are the defendants in this matter and filed a defence and counterclaim in the matter.

3 Ian Pringle was a pilot/businessman who disappeared in May 1996 whilst piloting his plane and has never been heard from again. He was subsequently declared deadand his two adult daughters in Dominica were appointed personal representatives of his estate.

4 This matter commenced by fixed date claim form filed on behalf of the second named claimant and was discontinued on 14th July 2015.

5 The matter proceeded to trial on the counterclaim filed by Ayanna Pringle and Letitia Butler. (I shall refer to them as the "counter claimants")

6 In their counterclaim the counter claimants in their re-amended defence and counterclaim, claimed the following:

• 1) "24A: At the time of Ian Pringle's disappearance, the 1st claimant had access, and possession of the pass book for safekeeping; saving account No. 21524727 in the name of Elaine Marie Rita Pringle-Toulon in trust for Ian Pringle held at the Barclays Bank PLC, Road Town, Tortola. As at 8th September 1994 the account balance in that account was US$34,297.91. The Claimant has failed to—

  • i. disclose the existence of the account to the defendants;

  • ii. give an account to the defendants of the monies that were in this account at the time of Ian Pringle's disappearance;

  • ii. give an account to the defendants of the amount of these monies now;

  • iv. inform the defendants of the location of these monies or

  • v. hand over these monies with any interest which may have accrued thereon to the defendants.

• 2) 24B Following the disappearance of Ian Pringle, deceased, the 1st Claimant was written to about and/or dealt with a Certificate of Deposit/Barclays Bank Account #215968243 (CD2310) in Tortola, British Virgin Islands, in the name of Elaine M. R. Pringle Toulon in trust for Ian Pringle. As at 6^th February 1997 the balance in that certificate of deposit was US$134,024.36. The first claimant failed to—

  • i. disclose to the Defendants the existence of this certificate of deposit or account;

  • ii. give the defendants an account of the monies that were in this certificate of deposit or account;

  • iii. inform the defendants of the location of the monies that were in the certificate of deposit or account;

  • iv. hand over these monies to the defendants."

7 The defendants claimed:

"6A – A full account of all monies referred to in paragraphs 24A and 24B above, that were in Barclays Bank PLC, Road Town, Tortola Accounts no. 215968243 in the name of Elaine M. R. Pringle-Toulon ITF Ian Pringle and No. 215724727 in the name of Elaine Marie Rita Pringle-Toulon IF Ian Pringle from 2nd May 1996 to the date these accounts were closed including, but not limited to, the current location of these monies and interest accrued thereon to date.

…

8. An order for payment by the Claimants, individually and/or jointly, to the Defendants of all sums found to be due from the Claimants to the Defendants on the taking of the account under … (6) (6A).

…"

8 The counterclaim defendants in their Defence to the re – amended counterclaim respond as follows:

"7 As to the re-amended claim in paragraph 24A the saving account referred to was at all times the sole account and property of Elain Marie Rita Pringle-Toulon and as such she did not disclose, account, inform and or hand over any such funds to Ian or anyone else as she was not required to and he was not entitled. The "in trust for" so keenly relied on by the counter claimants was not and never was intended to be a trust properly so called. It is revocable at the behest of the creator of the account. It is a common banking instrument known as a "Totten Trust" account which as said is an instrument used almost exclusively by the banking industry in that the purpose of the instrument is that if the depositor dies then the money will go to the beneficiary and escape all the complexities of Probate. This is a freely revocable instrument and the key factor is that it is not really an active instrument until the creator dies itis more akin to a bequest in a will. The beneficiary does not receive the bequest if he/she pre-deceases the grantor."

9 The court heard from four witnesses for the counter claimants and at the close of their case when called upon to lead his defence learned counsel for the counterclaim defendants informed the court that he would not be calling witnesses and that he wished to make a no case submission. The court permitted him to proceed on his no case submission.

No Case Submissions by Counsel for the counterclaim defendants

10 In his no case submission Learned Counsel Mr. Hugh Marshall invited the court to look at the pleadings in the matter, he said that the claim relating to the bank accounts was stated solely in paragraphs 24 (a) and 24 (b) of the re-amendedcounterclaim and reference was made to them at paragraph 4 of the reply which stated that Ian Pringle was the beneficial owner of these accounts and the monies in the accounts were for the maintenance costs of the planes. Counsel stated that the counter claimants failed to expressly plead that either of the accounts belong to them, the estate of Ian Pringle or that the funds belong to the estate of Ian Pringle.

11 Mr. Marshall submitted that:

• 1) It has not been pleaded that the counterclaim-defendants had any arrangement with the deceased from which they have departed or that at any time gave rise to the creation of a constructive trust.

• 2) The evidence which the counter claimants are burdened to bring is evidence which would fulfill the pleadings.

• 3) They must bring the evidence to show that the account numbers 215724727 and 215968243 were opened. They must bring the evidence of the monies in those accounts where the purposes of the accounts and that the counterlaim defendants have departed from the purpose of the trust.

• 4) Despite the loneliness of the pleadings in the counterclaim when one turns to paragraphs 7 and 8 of the defence to re-amended counterclaim, the court would see that the counter claim defendants have expressly stated that the account referred to at Para 24 (a) and (b) of the re-amended counterclaim was at all time the sole account and property of Elaine Marie Rita Pringle Toulon.

12 Learned Counsel Mr. Marshall submitted that the burden of the counter claimants are to establish their case, that is, to establish in the evidence the identity of the accounts pleaded at paragraph 24(a) & (b) of their re-amended counterclaim. Counsel invited the court to consider the pleadings as glasses and each glass must be filled with evidence.

13 That in the circumstances of the case at bar that the counter claimants have failed through their witnesses to identify the accounts specified in their pleadings and that really is the crux of the matter. That even before the court can go onto determine what was the state of the accounts, the court must be able to decide what accounts

14 Counsel submitted that in the case presented by the counter claimants some of them refer to one account when the pleadings refer to two accounts.

15 Learned counsel made reference to the evidence of Ms. Benjamin who spoke in cross examination to only one account, further, that the witness spoke to being the keeper of the accounts but that she failed to produce to the court any records.

16 Learned counsel submitted that he did not know whether the documentary evidence which the counter claimants had access to was not presented or whether no effort was made to get it. It is to be noted at this juncture that it is the undisputed evidence of the counterclaimant through the evidence of Mrs. Butler Moses that attempts were made by her and her sister as personal representatives of their father's estate to get more information from the counterclaim defendants but to no avail. That is the evidence which this court has before it.

17 Learned Counsel Mr. Marshall submitted that there is no obligation on the counterclaim defendants to disprove the claim and that in the case at bar the evidence presented by the counter claimants does not support their pleadings.

18 Learned counsel submitted that the court in this case is in fact being asked to declare a constructive trust. That the counter claimants have asked for an accounting and the only way that could be done is if Mrs. Elaine Pringle was a constructive trustee of the estate of Ian Pringle and that upon his death the funds were misappropriated, either by retaining them or using them for another purpose, otherwise she would be a trustee.

19 Mr. Marshall submitted that there was no deed of trust and no claim of a resulting trust which could only leave one trust that is a constructive trust, and he cited the learning in Halsbury's Laws of England which states

"A constructive trust attaches by law to property which is not expressly subjected to the trust, but which a person holding other property in trust for some other person or object, or occupying in respect of other property in a fiduciary position towards some other person or object, has acquired by means of his ownership of or dealings with that trust or fiduciary property"1

20 Further, that there is no basis for an accounting based on the fact that...