IN THE HIGH COURT OF JUSTICE BETWEEN AND. GOWKARRAN JABAR (As Legal Personal Representative of the Estate of Ramroop Jabar)

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN BINDAWATEE MAHARAJ SHIVAN MAHARAJ AND Claimants GOWKARRAN JABAR (As Legal Personal Representative of the Estate of Ramroop Jabar) GOWKARRAN JABAR Defendants Before the Honourable Madam Justice Margaret Y Mohammed Dated the 26 th January, 2018 APPEARANCES Mr. Keston Mc Quilkin instructed by Ms. Kenniseha Wilson Attorneys at law for the Claimant. Mr. Anderson Modeste Attorney at law for the Defendant. JUDGMENT 1. The focus of this action brought by the Claimant is an agreement for sale for the purchase of two lots of land (Lots 18 & 19) situate at Las Lomas Road No 1, Las Lomas No 2 ( the disputed property ). The First Claimant is the mother of the Second Claimant and the Defendant is sued in his personal capacity and in his capacity as the legal personal representative of the estate of Ramroop Jabar ( the Deceased ) who was his father and who during the course of the instant proceedings passed away. Page 1 of 25

2 2. The Claimants case was that on the 10 th April 2008 the Deceased represented to the Claimants that he was the owner of the disputed property and that he was authorised to convey it. It was orally agreed between the Claimants and the Deceased that he would sell the disputed property to the Claimants in consideration for $200, They also agreed that the Claimants would pay to the Deceased the sum of $50, representing 25% of the agreed purchase price and the Deceased would execute in their favour a conveyance transferring the disputed property to the Claimants; at which point the deceased would be paid the balance of the purchase price of $150, ( the Agreement for Sale ). 3. Pursuant to the agreement for sale, the Claimants paid the Deceased the deposit of $50, and he gave them a signed receipt ( the receipt ). The Claimants averred that they have been ready and willing to complete the sale of the disputed property but the Deceased failed to complete. The Claimants also contended that the Defendants breached the Agreement for Sale when they failed to execute the Deed of Conveyance and as a result they have been put to expense and suffered loss and consequential losses, particularly, their deposit of $50, The Claimants wrote a pre-action letter to the Deceased on the 11 th February 2014, in which they requested that he provide certain completion documents to facilitate transfer of the disputed property to the Claimants pursuant to the Agreement for Sale. However, the Deceased did not respond to the letter. The Claimants therefore seek the following orders: a) An order for Specific Performance of the Agreement for Sale. b) Further and/or in the alternative, repayment of the said deposit in the sum of $50, together with interest thereon at such rate and for such period as the court think just; c) Further and/or in the alternative damages for breach of contract. d) Interest pursuant to Section 25A of the Supreme Court of Judicature Act Chap 4:01 e) Costs; f) Any such further or other relief as the Court deems fit. 5. The Defendants case was that the Deceased was not the owner of the disputed property and instead it was owned by the Second Defendant. The Defendants defence was based on four limbs grounds. Firstly they averred that the claim is statute barred. Secondly, they contended Page 2 of 25

3 that the receipt was not a valid agreement for sale since it failed to describe the disputed property and omitted the orally agreed completion time of ninety (90) days after the payment of the deposit. As such, they refused to rely on it for its full terms and effect.thirdly, the Claimants repudiated and/or abandoned the Agreement for Sale since they failed to complete the sale within ninety (90) days or a reasonable time and therefore the Defendants are not obligated to complete it. Fourthly, the Defendants contended that the Agreement for Sale cannot be completed under the original terms since the disputed property has changed substantially from 2008 to present. 6. In response to the plea of limitation, the Claimant replied that the four year period as prescribed by Section 3(1) of the Limitation of Certain Actions Act 1 ( the Limitation Act ) is not applicable in these proceedings since Section 3(3) of the Act states that Section 3(1) does not apply to claims for specific performance of a contract, an injunction or other equitable relief and their claim for specific performance claim falls within this exception. 7. With respect to the plea of delay, the Claimants replied that that the issue of unreasonable delay does not arise in the proceedings; only unreasonable delay in the completion of the Agreement for Sale by the Claimants can affect their entitlement to the relief of specific performance which they averred was caused by the Deceased and/or Second Defendant. They replied that despite several requests which they made to the Deceased to complete the Agreement for Sale and to deliver to them a copy of Deed of Conveyance, Town and Country Approval, Land and Building Taxes receipt and the Clearance Certificate from the Water and Sewerage Authority, between April 2008 to the filing of the claim, it was the Deceased who failed to complete the Agreement for Sale and the Defendants are not entitled as a result of their breach to treat it as at end. 8. In reply to the change in the subject matter of the disputed property, the Claimants replied that the Agreement for Sale can still be completed pursuant to the original terms since the subject matter has not changed and it is still available to be transferred from the Second Defendant to the Claimants. 1 Chapter 7:09 Page 3 of 25

4 9. In my opinion the issues which arise for determination from the pleadings can be subsumed under the following headings: (a) Is the claim statute barred? (b) Is the Agreement for Sale valid and enforceable? (c) Can delay, change in the disputed property or conduct of the Claimants defeat their claim for specific performance? Is the claim statute barred? 10. It was argued on behalf of the Defendants that the accrual of the Claimants alleged cause of action is beyond what is permissible by section 3 of the Limitation Act, thus the Claimants are not entitled to damages for any alleged breach of contract or for the return of the deposit. Counsel for the Defendants submitted that under section 3 (1) of the Limitation Act actions founded on contract cannot be brought four years after the accrual of the cause of action and that in contract the general rule is that the accrual of the cause of action takes place at the point of the breach of the contract. In the instant case there was no term fixing the period for completion in the Agreement for Sale and in the absence of such a term it is implied that completion would be within a reasonable time. Further it is the usual practice in Trinidad and Tobago for agreements for sale of land to be completed within ninety (90) days from the date of execution and that ninety (90) days from the 10 th April 2008 will give the time for completion as the 9 th July Four years from that date would give the 9 th July The claim was filed on the 11 th May 2015, well beyond 2012 and even if the court were to consider a generous date for completion of the 10 th April 2011, three years after the date of the receipt the Claimants would still be out of time since they filed the claim on the 11 th May 2015 and there is no evidence before the Court that would extend the time for the completion to a date beyond the 11 th April The position articulated by the Claimants was that section 3(3) of the Limitation Act clearly prescribes that there is no four year limitation period for actions for specific performance and that section 3 (1) of the Limitation Act and the four year bar to initiating a claim does not apply to the instant matter. Page 4 of 25

5 12. In my opinion this preliminary defence raised by the Defendants is a non -starter. Section 3 of the Limitation Act provides: 3. (1) The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: (a) actions founded on contract (other than a contract made by deed) on quasicontract or in tort; (b) actions to enforce the award of an arbitrator given under an arbitration agreement (other than an agreement made by deed); or (c) actions to recover any sum recoverable by virtue of any enactment. (2) An action shall not be brought upon any judgment after the expiry of twelve years from the final judgment and no arrears of interest in respect of any judgment debt, shall be recovered after the expiry of twelve years from the date of the final judgment. (3) This section shall not apply to any (a) claim for specific performance of a contract or for an injunction or for other equitable relief; (b) action to which section 8 applies; or (c) action under the Compensation for Injuries Act. 13. In my opinion, it is clear from section 3(3) of the Limitation Act that where a party is seeking relief of specific performance of a contract, which is an equitable relief, the limitation bar does not apply and in the instant case the main relief which the Claimants have sought is for specific performance of the Agreement for Sale. Page 5 of 25

6 Is the Agreement for Sale valid and enforceable? 14. Section 4 of the Conveyancing and Law of Property Act 2 sets out the requirements to be satisfied for an agreement for sale of land. It provides: (1) No action may be brought upon any contract for the sale or other disposition of and/ or any interest in land, unless the Agreement upon which such action is brought or some memorandum or note thereof is in writing and signed by the party to be charged or by some other person thereunto by him lawfully authorized. 15. The matters which should be contained in the memorandum to satisfy the requirements laid out in section 4 are explained in Chitty on Contracts General Principles 3 as: (1). Parties: The memorandum must identify the parties and the capacity in which each of them contract; it must name or describe them and state which is (for example) the buyer and which is the seller. It may sufficiently describe the parties without actually naming them. Thus the vendor of land may be adequately described as proprietor or as trustee selling under a trust for sale or even as legal personal representative. But it is not sufficient to describe a party as vendor or landlord. A pronoun is sufficient if there is evidence to show to whom it refers. (2). Subject-matter: The memorandum must describe the subject matter, but may sufficiently describe it even though the description has to be supplemented by extrinsic evidence. Thus a memorandum recording a sale of 24 acres of freehold...at... was held sufficient on proof that the vendor had no other land there. If the land is subject to encumbrances the memorandum need not state them all. (3). Consideration: The memorandum of a contract for the disposition of an interest in land must state the consideration provided by the purchaser. 2 Chapter 56: th ed at paragraphs Page 6 of 25

7 (4). Terms: The memorandum must contain a statement of the material terms of the contract. 16. The contents of the receipt 4 were as follows: 10 th April 2008 Received from Ms Bindawatee & Shivan Maharaj of 45 Grant Street Rio Claro The sum of Fifty Thousand or 25% dollars For deposit on land at Las Lomas # 2 No 1 Rd $50, per Ramroop Jabar The Claimants have asserted that the receipt is a sufficient memorandum within the meaning of Section 4 of the Conveyancing and Law of Property Act and it can be specifically enforced. It was argued on their behalf that the receipt indicated that the Claimants are the purchasers, the downpayment made, an identification of the disputed lands and the consideration which specifically states that the downpayment was 25% of the purchase price and although not stated, $50, with simple arithmetic can only be 25% of $200, The Defendants position was that the receipt is not a valid Agreement for Sale and it is therefore unenforceable since it fell short in complying with section 4 of the Conveyancing and Law of Property Act. In particular it failed to identify the disputed property which were being sold to them and the Claimants failed to provide extrinsic or background evidence to demonstrate that they were purchasing the disputed property. The receipt also failed to provide an area of the disputed property which did not assist in identifying the subject matter and that the receipt did not indicate that the Deceased was selling the disputed property in his capacity as the lawful Attorney for the Second Defendant. 19. Both parties referred the Court to the learning which this Court set out in Angela Ramsundar v Mahadeo Manickchan 5 where this Court considered the sufficiency of a receipt for the sale 4 Exhibit BM 1 of the witness statement of Bindawatee Maharaj 5 CV Page 7 of 25

8 of land in compliance with the requirements of section 4 of the Conveyancing and Law of Property Act. In Angela Ramsundar this Court stated that where there are opposing views in the interpretation of an agreement, as in the instant case, Lord Hoffman summarized the principles the Court must apply in Investors Compensation Scheme Ltd v West Bromwich Building Society 6 as: (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the matrix of fact, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for 6 (1998) 1WLR 896 at pages Page 8 of 25

9 whatever reason, have used the wrong words or synthax; see Manni Investments Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] A.C (5) The rule that words should be given their natural and ordinary meaning reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v Salen Rederierna A.B.[1985] A.C 191,201: If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must yield to business commonsense. 20. While as a general rule previous negotiations between the parties are to be excluded, Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd 7 drew a distinction on the admissibility of such previous negotiations based on relevance of the issue to be determined. In his view, all previous negotiations are potentially relevant background but should only be excluded from consideration on the basis that they are irrelevant to the issue to be determined by the Court. He summed up the position as: I do accept that it would not be inconsistent with the English objective theory of contractual interpretation to admit evidence of previous communications between the parties as part of the background which may throw light upon what they meant by the language used. The general rule, as I said in Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251,269 is that there are no conceptual limits to what can properly be regarded as background. Prima facie, therefore, the negotiations are potentially relevant background. They may be inadmissible simply because they are irrelevant to the question which the court has to decide, namely, what the parties would reasonably be taken to have meant by the language which they finally adopted to 7 [2009]1 AC 1101 Page 9 of 25

10 express their agreement. For the reasons given by Lord Wilberforce, that will usually be the case but not always. In exceptional cases, as Lord Nicholls argued, a rule that prior negotiations are always inadmissible will prevent the court from giving effect to what a reasonable man in the position of the parties would have taken them to have meant The challenge which the Court faces in distinguishing between objective facts and other statements made during the course of negotiations which would fall into the excluded subjective facts was outlined by Lord Hoffman at para 38 in Chartbrook: Whereas the surrounding circumstances are, by definition, objective facts, which will usually be uncontroversial, statements in the course of pre-contractual negotiations will be drenched in subjectivity and may, if oral, be very much in dispute. It is often not easy to distinguish between those statements which (if they were made at all) merely reflect the aspirations of one or other of the parties and those which embody at least a provisional consensus which may throw light on the meaning of the contract which was eventually concluded. 22. In Angela Ramsundar I concluded that when the aforesaid principles are applied, the onus is on the Court to refrain from interpreting the meaning of the words in the receipt but rather strive to arrive at an interpretation which a reasonable person with the objective background information which the parties had at the time of contracting would have intended it to mean. In doing so the Court must not attribute to the parties an intention which they plainly could not have had and must yield to business commonsense What is the meaning of the words from the receipt? According to the receipt the Claimants paid to the Deceased the sum of $50, as the deposit for the purchase of land at Las Lomas # 2 No 1 Rd. The deposit was 25% of the purchase price. The capacity in which the Deceased was paid the deposit, the specific lots and the total consideration was not stated. 8 Supra at para 33 9 Paragraph 14 of CV Page 10 of 25

11 24. What was the objective background information which the parties had at the time of receipt which they would have intended the receipt to mean? The background facts to assist the Court in interpreting the receipt were contained in the oral discussions between the parties and their conduct leading up to it. 25. The persons who were involved in the negotiation leading up to the Agreement for Sale were the First Claimant, the First Claimant s brother Mr Sieunarine Gosine and the Deceased. The Second Defendant admitted in his witness statement that he was not present but that he was aware that the Deceased was selling land which he owned based on a Power of Attorney which he had given the Deceased. 26. The First Claimant s evidence in her witness statement was that she met with the Deceased in March 2008 together with her brother Sieunarine Gosine. She identified the parcel of land she was interested in which was the lot next to the lot her brother, Mr Gosine was purchasing. The Deceased told her that one lot would cost $100, and a down payment of 25% was required for each lot. She testified that since she wanted to purchase two lots, he said the entire down payment would be $100, She said she recalled asking the Deceased why the down payment was so high since in her experience down payments were usually around 10% and he responded by saying how you expect me to develop the land. 27. The First Claimant also testified that she raised the issue of Town and Country Planning with the Deceased and she told him the approvals were needed. He told her that he would get the necessary approval. She then agreed to pay the deposit on the disputed property to secure the sale and when the Deceased obtained the approval she would complete the Agreement for Sale by paying the outstanding balance and the Deceased would then transfer the lots. She assumed that it would take some time longer than ninety (90) days because of the work which was still required in the development and that the process of getting approval is usually lengthy. However she said she was prepared to wait. She said she never agreed with the Deceased that she would complete the Agreement for Sale within ninety days and that this was never discussed. Page 11 of 25

12 28. According to the First Claimant on the 10 th April 2008, she paid the $50, down payment to the Deceased and he then issued the receipt. She said that the Deceased never told her that he was not the owner of the disputed property and that she knew him as the owner. 29. In cross-examination, the Claimant testified that she had no discussions with the Second Defendant in relation to the purchase of disputed property She said her sister had purchased lands at Las Lomas No.2 several years ago but not in the development where the disputed property was situated. She said she visited the disputed property with the view to purchase land and the Deceased came and met her there. She said she was only told that the disputed property belonged to the Second Defendant later on when the Deceased decided that he was not selling her the disputed property. She said when she initially spoke to her lawyers, the Deceased said the disputed property belonged to him. Later he told her that the disputed property belonged to his son, the Second Defendant and that he sink the money.she said she was aware that the Deceased sold one piece of land to Mr. Saroop in 2012 under a Power of Attorney because she decided to do a search herself to ensure that he did sell land. She said she was not aware when the Deceased got the stroke. She said they had one Agreement for Sale for the disputed property. She admitted that the receipt did not identify the size of it. She said that Town and Country Planning approval was important to her so she would have told her Attorneys at law that it was important and it was keeping back the sale. 30. In my opinion the First Claimant was a witness of truth. Her evidence in chief on the discussion she had with the Deceased leading up to and with the culmination of the receipt was unchallenged and she was forthright in admitting the information which was not included in the receipt. 31. Mr Sieunarine Gosine, the First Claimant s brother testified that he made a down payment of 25% to the Deceased for one lot of land situated in a new development at Las Lomas No. 1 Road in March He said he knew the Deceased for more than 20 years prior to the payment of his deposit and they shared a cordial relationship. A week later he visited the area with the First Claimant, where they met the Deceased on site to discuss her buying land there. The First Claimant pointed out two parcels of land close to the parcel of land which he had agreed to Page 12 of 25

13 purchase and she told the Deceased that she and the Second Claimant wanted to buy the two lots. 32. According to Mr Gosine, the Deceased told the First Claimant, in his presence that each lot would cost $100, and the deposit on each lot would be 25%, a total of $50, He said he recalled the First Claimant asking the Deceased why the deposit was so high, to which he responded how you expect me to develop the land. He also recalled the Deceased saying that he would have to fix the drains, the road and include water and electricity. Mr Gosine further testified that the First Claimant told the Deceased that Town and Country Planning Approval was needed since the Second Claimant would have to access a bank loan to build his home on his lot. The Deceased assured them that he would get the approval. He also said that he was developing the land and that when he obtained the approvals they can pay off the balance. At no time was a time limit specified for paying the balance. The Deceased agreed to sell the disputed property to Claimants in his presence and the Claimants paid the deposit on the 10 th April In cross-examination, Mr. Gosine testified that he had paid a deposit to the Deceased to purchase land in the same development however, the agreement did not go through and he took back his deposit. He said he had no problems with the deposit being returned to him. 34. In my opinion, Mr Gosine appeared to be a credible witness since his evidence in chief was unshaken in cross-examination. Mr Gosein s evidence corroborated the First Claimant s evidence in the following material aspects : the First Claimant and the Deceased met at the site of the disputed property before the deposit was paid; the First Claimant pointed out the disputed property to the Deceased which she indicated that she wanted to purchase and before she paid the deposit; the Deceased dealt with the First Claimant as if he was the owner of the disputed property; the Deceased was selling it to the Claimants as the owner; he did not indicate to them that he was not the owner; there was no period fixed for the completion of the sale and the completion of the sale was contingent on the Deceased obtaining Town and Country approval. Page 13 of 25

14 35. According to the witness statement of the Second Defendant, the Deceased became the owner of 33 acres 1 rood and 19 perches of land in Las Lomas No.2 by deed of conveyance executed on 7 th January A portion of this land was subsequently sold. He is a co-owner of land in Las Lomas No.2 described in deed no.2173 of 1986 and a plan of this land is shown in deed no DE of 1953 ( the 1953 Deed ). The certified copy of sheet 24E of the Ward of Cunupia shows this land to be in the Las Lomas No.2 area. The land shown in the plan in the 1953 Deed is the same piece of land identified as Auckee and that piece of land bounded to the north by the Guyamare River, on the east by lands of Chuman, on the South by lands of Byroo and Auckee and on the west by 1 and 1A, approximately located at coordinates (821, 682) in cadastral sheet 24E. The cadastral sheet 24E does not reflect the changes in land ownership at the time of the two conveyances. 36. The Second Defendant stated that on the 11 th April 1989 ( the Power of Attorney ), he executed a deed granting the Deceased a Power of Attorney appointing the Deceased to manage and supervise his one third share in the property described in Deed no of This included but was not limited to executing contracts and conveyances. The Deceased, as his lawful attorney executed deeds no. DE D001 and DE D001, and an agreement for sale between the Deceased and Akim Baptiste. He stated that he is also the owner of other land located in Las Lomas No.2. When the deed registered as deed no. DE D001 ( the 2008 Deed ) was prepared, there was no accompanying plan. However, the plan dated 6 th October 2008 shows the location of the land. He was aware that the Deceased was selling parcels of land under the Power of Attorney from the land described in the 2008 Deed but he was unaware of the specifics as it related to the parties and the various terms of the agreements for sale at the time of said agreements. 37. In 2013, his father suffered a stroke which left him incapacitated. As a result of the stroke, a power of attorney registered as DE D001 was executed by his father in favour of him, amongst other things, to defend legal proceedings on his behalf. After the stroke, the Deceased showed constantly diminishing ability to recall events in the past. He spent most of his days in bed. After the Deceased s death, the Second Defendant continued to act for the Page 14 of 25

15 Deceased as the Legal Personal Representative of his Estate for these proceedings by an order of the court dated the 15 th December The Second Defendant stated that he never had discussions with the Deceased nor the Claimant about the sale of land in Las Lomas No.2 or the sale of land described in the 2008 Deed. The Second Defendant also stated that he never received any correspondence from the Claimants regarding the sale of the disputed property. 39. In cross-examination, the Second Defendant confirmed that he gave the Deceased permission to sell the disputed property to the Claimants by the Power of Attorney. He assumed that the Deceased had permission to sell the disputed property. Consistent with his witness statement he confirmed that he did not know about the Agreement for Sale between the Claimants and the Deceased nor the terms negotiated. 40. The totality of the Second Defendant s evidence was he owned parcels of land in Las Lomas No 2 including the larger parcel of which the disputed property was part of and he had authorized the Deceased to sell parcels of land which he owned and while he was not involved in the transactions he was aware that the Deceased was conducting such business. In my opinion, the evidence of the Second Defendant was unhelpful in establishing the background information to the receipt since that he knew nothing of the Agreement for Sale between the Deceased and the Claimants and therefore his evidence did not impugn their factual evidence of the terms of the Agreement for Sale and the failure of the Deceased in completing the agreement. 41. Based on the evidence, the objective factual background to the receipt was that : the First Claimant and the Deceased met at the site of the disputed property before the deposit was paid; the First Claimant pointed out the disputed property to the Deceased which she indicated that she wanted to purchase; before the Claimants paid the deposit the First Claimant told the Deceased that it was important to them that Town and Country Planning approval was obtained prior to completion of the sale; the Deceased dealt with the First Claimant as if he was the owner of the disputed property; he was selling it to the Claimants as the owner and that he did Page 15 of 25

16 not indicate to them that he was not the owner; there was no period fixed for the completion of the sale and the completion of the sale was contingent on the Deceased obtaining Town and Country approval. 42. In my opinion, a reasonable man with the aforesaid background facts reading the receipt would have understood it to mean that the Claimants were entering into an agreement with the Deceased to purchase the disputed property. The consideration was the sum of $200, since the deposit was 25% which was $50, Although the receipt did not state the capacity the Deceased was selling the disputed property, the Claimants understood that he was the owner or at least he had the authority to sell it. There was no period for completion but one of the condition prior to completion was the obtaining of Town and Country Planning approval. 43. Based on the aforesaid finding I have concluded that there was a valid and enforceable agreement for sale between the Claimants and the Deceased. Can delay, the conduct of the Claimants and/ or the change in subject matter of the disputed property defeat the Claimants claim for specific performance? 44. It was submitted on behalf of the Defendants that the Claimants cannot enforce the Agreement for Sale for three reasons. The first reason the Defendants argued was that the Claimants delayed in completing the Agreement for Sale and as such the Court should find that they abandoned it and therefore they are not entitled to a refund of their deposit. In this regard the Defendants argued that in the absence of a period for completion of the Agreement for Sale the Court should construe that it should have been completed within ninety (90) days from the date of the receipt since in this jurisdiction it is the usual practice for agreements for the sale of land to be completed within ninety (90) days from its execution. In the instant case the ninety (90) days from the 10 th April 2008 was 9 th July Further even if the Court was to consider a reasonable period for completion, this ought to have been no more than three years after the 10 th April 2008 in which case the Claimants ought to have completed the sale by the 10 th April The Claimants having failed to complete the sale by April 2011 the Defendants were entitled to deem that the Claimants had abandoned the Agreement for Sale. Page 16 of 25

17 45. In response to this submission Counsel for the Claimants argued that in circumstances where the Defendants failed to complete the Agreement for Sale it would be unconscionable to find that the Claimants are not entitled to a refund. Further, the Defendants cannot deem that the Claimants had abandoned their obligation under the Agreement for Sale since there was no completion date in the Agreement for Sale and in such circumstances that the Defendants as the vendor did not make time of the essence by serving a notice of completion on the Claimants as purchasers before the Defendants could have asked for the Agreement for Sale to be treated as at an end. Further it was the Defendants who failed to provide the necessary documents to assist in the completion of the Agreement for Sale. 46. The First Claimant s evidence in her witness statement was that prior to the payment of the deposit to the Deceased she raised the issue of approval from Town and Country Planning for the disputed property since she told him that the approvals were needed. He told her that he would get the necessary approval. She agreed to purchase the disputed property on the basis that it had access to electricity, water, drains and a roadway. She then agreed to pay the deposit on the disputed property to secure the sale and when the Deceased obtained the approval she would complete the Agreement for Sale by paying the outstanding balance and the Deceased would then transfer the disputed property. She assumed that it would take some time longer than ninety (90) days because of the needs of the development before the approvals could be granted and the usual lengthy process of getting approvals. However she said she was prepared to wait. She said she never agreed with the Deceased that she would complete the agreement for sale within ninety (90) days and this was never discussed. She stated that there was never any term of the Agreement that the Sale would be completed in ninety (90) days, the intention was to complete the sale when the Town and Country Planning Approval was obtained. 47. The First Claimant also stated that she rarely met with the Deceased from 2008 to However, she would drive by and look at the disputed property to see what was taking place. She said she continued to await word from the Deceased that he received the Town and Country planning approvals. As time went by, the First Claimant noticed that the disputed property was overrun by grass and was impassable. She made enquiries with the Deceased as to whether he had gotten the approval and he continued to assure her that it was being obtained. In middle Page 17 of 25

18 2012, the road was cleared and some gravel was spread which made the area easily accessible. She visited the Deceased because she felt the approvals were obtained and the Agreement for the Sale of the disputed lands could be completed. She said when she spoke to the Deceased he assured her that the approvals were forthcoming. He told her that someone from Town and Country Planning was going to the disputed property. She then asked the Deceased to provide her with the documents necessary to complete the sale. He told her that his lawyer had everything and the Deceased never provided a copy of those documents to the Claimants. After this conversation, the Deceased told the First Claimant that he would call her when he was ready to complete the sale but he never did. 48. The First Claimant also testified that she maintained cordial discussions with the Deceased but in 2013 he grew hostile towards the Claimants when they began to make more frequent calls to him. On one occasion, the First Claimant asked him about completing the sale and he told her for the first time that the disputed property belonged to his son who had sink that money already. He also told them that they could do what they wanted. He did not tell them the name of the son who owned the disputed property. 49. According to the First Claimant she then instructed her attorneys to write a pre-action protocol letter to the Deceased requesting that he provide certain documents to facilitate the completion of the sale. However, the Deceased never accepted service. The First Claimant s evidence was that at all times she was ready and willing to complete the Agreement for Sale. She said she is also capable of completing the sale since the balance of the purchase price is in her bank account and is available at any time. 50. In cross-examination the First Claimant testified that she was aware that the Deceased sold one piece of land to Mr. Saroop in 2012 under a Power of Attorney because she decided to do a search herself to ensure that he did sell land. She said she did not ask for her deposit to be returned when her brother Mr Gosine did because she needed the disputed property and she was not even aware that her brother had requested his deposit back. She said that Town and Country Planning was important to her so she would have told her attorneys that it was important and it was keeping back the sale. She accepted that the receipt did not mention any Page 18 of 25

19 terms about the approval being required for the sale of the disputed property because this was before all the negotiations took place. She said she gave her attorneys a copy of what transpired in December 2013 and in the document it mentioned that she was awaiting the approval and that was the reason for the delay. She testified that she did not request her deposit in 2013; she did not go to an attorney in ; and she did not write any letters to the deceased prior to She said her lawyers did a pre-action protocol letter in 2014 which indicated that she was ready to complete the sale granted that the conditions were satisfied. She said she did not file her claim in She sent the pre-action letter but the deceased refused to accept it. She said she verbally told the Deceased that she intended to complete the sale over the phone. 51. In my opinion there was no delay by the Claimants in completing the sale since there was no evidence from the receipt nor the objective background information that the Agreement for Sale was to be completed within ninety (90) days from its execution. Therefore the Defendants were not entitled to treat the Agreement for Sale at an end after the ninety (90) days had passed. 52. Were the Defendants entitled to treat the Agreement for Sale at an end after a reasonable time had passed? There are two decisions from the Privy Council which provide guidance in answering this question. In the Jamaican case of Kelsie Graham v Lurline Eugiene Pitkin 10 the Board considered whether the vendor was entitled to treat a contract for sale of land at an end in the absence of a notice to complete where time was not of the essence. The Board held that in the absence of a valid notice to complete the purchaser was entitled to specific performance and that the vendor never complained about the purchaser s behaviour and/or indicated that they accepted the purchasers delay as a repudiation of the agreement for sale. 53. In Mungalsingh v Juman 11 the Board considered a case emanating from this jurisdiction where the vendor had not produced a WASA Clearance Certificate and an up to date receipt for land and building taxes. The Board noted that unpaid water rates and unpaid land tax can each result in distraint or even sale of the property concerned under the Rates and Charges Recovery Act and the Water and Sewerage Authority Act, and 10 Privy Council Appeal No 21 of [2015] UKPC 38 Page 19 of 25

20 concluded that the trial judge was correct in finding that in this jurisdiction, the vendor must provide these documents before he is in a position to show good title. Therefore it was not open to the vendor to serve a notice to complete, making time of the essence, on the date that he purported to do so, since he had not shown good title by that date. 54. In the instant case the Defendants did not serve a notice to complete therefore time was not made of the essence. In the absence of such a notice the Defendants were not entitled to conclude even after reasonable time had passed that the Claimants had abandoned the Agreement for Sale. In any event, the Defendants could not have served a notice to make time of the essence since the evidence was they did not provide the Claimants with the necessary documents i.e. Deed of Conveyance, WASA Clearance Certificate, Land and Building taxes receipt; approval from Town and Country Planning even when she was requesting those documents for her to complete the sale. The Defendants were not in a position to show good and marketable title and therefore they were not entitled to treat it as at an end. 55. The second reason the Defendants argued that the Claimant cannot obtain specific performance of the Agreement for Sale was because they have conducted themselves in an inequitable manner. This was no pleaded as part of the Defendants Defence. The Defendants pointed to the following matters as evidence of the inequitable conduct by the Claimant namely the reasons for the Claimants amending their Claim and Statement of Case; the failure by the Second Claimant to file a witness statement in the instant matter; the lack of credibility of the First Claimant s evidence and the inclusion of the new terms into the Agreement for Sale such as approval for Town and Country Planning as a condition before completion of the sale; the delay sending the pre-action letter after the Deceased had suffered a stroke which was 5 years after discussions with the Claimants. 56. In response, Counsel for the Claimants submitted that the Defendants consented to the Claimants application to amend their Claim Form and Statement of Case and they agreed to the commissioning of a title report which caused the Claimants to amend their respective pleading. Therefore there was no inequitable conduct by the Claimants in this regard. Further Page 20 of 25

21 the First Claimant s witness statement clearly stated that she was giving evidence on behalf of both Claimants and that the Claimants pleaded at paragraph 10 of their Reply that between April 2008 and the filing of the claim the Claimants requested among other documents, the Town and Country planning approval and the Defendants failed and/or refused and/or neglected to provide same. Therefore it was not accurate to assert that the requirement for Town and Country Planning was a recent fabrication and only contained in the witness statement of the First Claimant. 57. It is an accepted rule in equity that for a party to obtain an equitable remedy, in the instant case specific performance, he must approach the court with clean hands. According to Snell s Equity 12, a tenant who had entered under an agreement for a lease cannot obtain specific performance of it if he is in breach of the covenants to be contained in the lease 13, nor can an equitable interest in the land granted with a fraudulent purpose be enforced by a person tainted with fraud 14. Similarly, an occupier may be debarred from setting up an equitable licence if his conduct in relation to the property has been very damaging to the legal owner In my opinion there was no evidence to support a finding that the Claimants were not forthright with the Court in their conduct during this matter. The parties had agreed to the commissioning of a title report on the disputed property. It was based on information arising from the said report that the Claimants sought and obtained permission to amend their Claim form and Statement of Case which the Defendants also consented to. I did not make any adverse inference by the failure of the Second Claimant to file a witness statement since the First Claimant stated in her witness statement that she was making the statement on behalf of both Claimants. I was not of the view that the Claimants had any sinister motive in not requesting the return of their deposit in 2013 and in seeking to complete the sale after the Deceased had a stroke. In my opinion in the absence of a completion date and time being made of the essence they were entitled to do so. The issue of obtaining Town and Country approvals prior to the st Ed, London: Sweet & Maxwell, Coatsworth v Johnson (1886) 54 L.T Mason v Clarke [1954] 1Q.B Hubbard v Vosper [1972] 2 Q.B. 4 Page 21 of 25

22 completion of the sale was pleaded by the Claimants in the Reply and the Claimants were entitled to put forward evidence on this issue in the First Claimant s witness statement. 59. The third reason the Defendants argued that the Claimants cannot obtain specific performance was on the basis that if obtaining of Town and Country approval was a material term of the Agreement for Sale they could only obtain the relief if they are willing to waive it. In support the Defendants relied on the case of Heron Garage Properties Ltd v Moss The Claimants position was that Heron Garage was not applicable since in that case specific performance was refused because after the expiration of the time period, the purchasers attempted to waive the material term and the Court concluded that they could not waive the term. In the instant case, the Claimants have never sought to waive any term of the Agreement for Sale and that the bargain which was the disputed property has remained the same. 61. In Heron Garage the defendants were owners of property which was the site of a petrol station and garage. The plaintiffs were interested in acquiring the southern part of the site for development and use in connection with their garage business. The plaintiffs architects produced a plan for a new petrol filling station on the southern part of the site which they discussed and agreed with the defendants. The plaintiffs were well aware that it was the defendants future intention to use the northern part of the site for the sale of motor vehicles. The plaintiffs and defendants entered into an agreement, whereby the plaintiffs agreed to buy from the defendants the southern part of the site. According to Clause 7 of the agreement, it was conditional upon the plaintiffs obtaining detailed Town Planning Consent and if planning consent had not been granted within six months of the first meeting of the local planning authority or if it had been granted on conditions which were not acceptable to the plaintiffs, either party could give notice in writing to determine the agreement. The plaintiffs lodged an application for planning consent with the local authority in time for its first meeting after the date of the agreement, but consent was not then or thereafter forthcoming. The plaintiffs solicitors wrote a letter to the defendants to waive the benefit of clause 7 of the contract, 16 [1974] 1 All ER 421 Page 22 of 25

23 asserting that the contract was unconditional and called on the defendants to complete the sale. The plaintiffs brought an action for specific performance. 62. The Court held that the plaintiffs were not entitled to specific performance. They had no power to waive the condition for planning consent and to declare the contract unconditional for the following reasons: (1) in general a party seeking specific performance of a contract for the sale of land could not waive a stipulation in the contract on the ground that it was only intended for his benefit unless the stipulation was in terms for his exclusive benefit, being a power or right vested by the contract in him alone. If on the face of the contract the stipulation was not for the exclusive benefit of the party seeking to enforce it, it could not be struck out unilaterally. Clause 7 of the agreement was not on the face of the contract for the exclusive benefit of the plaintiffs but was a condition fundamental to the enforceability of the agreement as a whole. It was not expressed as a condition which was precedent only to the liability of the plaintiffs as purchasers but was expressed to confer rights on both parties; (2) In any event a stipulation could not be waived if it was inextricably mixed up with other parts of the transaction from which it could not be severed. The condition contained in clause 7 was inextricably mixed up with cl 8 under which the date for completion was dependent on the date on which planning consent was received or approved. 63. I have already concluded that based on the objective background information the obtaining of Town and Country approval prior to the completion of the sale was one of the terms of the Agreement for Sale. 64. The First Claimant s evidence in chief and in cross-examination was that the obtaining of approval is important to the Claimants as a condition for the completion of the sale of the disputed property. There was no evidence from the Claimants of their willingness to have the term waived. 65. According to the evidence of Jonathan Lawrence, a valuer with 19 years experience in the valuation of residential property, he stated that he received instructions from the Defendant s Attorney at Law in or around February 2017 to visit the disputed property. He did so and the Page 23 of 25