... IN THE COURT OF AI'PEAL

Similar documents
IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO RPL (1991) LIMITED TEXACO (TRINIDAD) LIMITED JUDGMENT

Leoppky v. Meston, 2008 ABQB 45

NOVA SCOTIA COURT OF APPEAL Citation: Baypoint Holdings Ltd. v. Royal Bank of Canada, 2018 NSCA 17. v. Royal Bank of Canada

IN THE HIGH COURT OF JUSTICE BETWEEN AND

Submitted October 12, 2017 Decided. Before Judges Alvarez and Nugent.

Is there really any question about the test for part performance in Alberta? by Jonnette Watson Hamilton

IN THE HIGH COURT OF JUSTICE BETWEEN. Anand Beharrylal AND. Dhanraj Soodeen. Ricky Ramoutar

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 5, 2002 Session

IN THE SUPREME COURT OF BELIZE, A.D. 2015

LAW OFFICES OF RICHARD HURLBURT

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT CW **********

IN THE HIGH COURT OF JUSTICE. Between RASHEED ALI OF ALI S POULTRY AND MEAT SUPPLIES. And NEIL RABINDRANATH SEEPERSAD. And *******************

SUPREME COURT OF QUEENSLAND

Mr. H. Giraudy for the Appellant Mr. c. Rambally for the Respondent

Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989

JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Delivered the 24 th January 2008

IN THE EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL COMMONWEALTH OF DOMINICA

IED LLC UNIFIED RECOVERY GROUP LLC AND J S LAWRENCE GREEN

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV JUDGMENT OF RONALD YOUNG J

IN THE HIGH COURT OF JUSTICE BETWEEN AND. Before: The Hon. Justice Nolan Bereaux. Mr Gaston Benjamin for Plaintiff Mr Carlton George for Defendants

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

LAW OF CONTRACT ACT CHAPTER 23 LAWS OF KENYA

THE EQUITABLE DOCTRINE OF SATISFACTION. By H. A. J. FORD, LL.M., Senior Lecturer in Law in the University of Melbourne.

Sherani v Jagroop [1973] FJSC 3; [1973] 19 FLR 85 (24 October 1973)

ENTRY ORDER SUPREME COURT DOCKET NO JANUARY TERM, 2018 } APPEALED FROM: In the above-entitled cause, the Clerk will enter:

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

IN THE COURT OF APPEAL OF BELIZE AD 2014 CIVIL APPEAL NO 4 OF 2011 THE ATTORNEY GENERAL OF BELIZE

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA

IN THE CARIBBEAN COURT OF JUSTICE Appellate Jurisdiction ON APPEAL FROM THE COURT OF APPEAL OF GUYANA

J.Q.A.T. PTY LIMITED STORM CONNOLLY J.:

I. DEFENDANT CAN AND MUST CHALLENGE THE VALIDITY OF THE SALE IN THE UNLAWFUL DETAINER. Plaintiff must "prove a sale in compliance with the statute

IN THE HICH COURT OF JUSTICE <CIVIL) A.D KEN RATTAN AND. Mr Marcus Peter Foster for the Applicant. Mr Michael Gordon for the Respondents

No COURT OF APPEALS OF NEW MEXICO 1976-NMCA-129, 90 N.M. 54, 559 P.2d 842 December 14, 1976

Part 36 Extraordinary Remedies

Chapter 11 Consideration and Promissory Estoppel 25-1

CASE NO. 1D John R. Dowd, Jr., and Charles G. Brackins of The Dowd Law Firm, P.A., Ft. Walton Beach, for Appellant.

SUPREME COURT OF QUEENSLAND

Question If CapCo files a lawsuit against the Bears seeking damages for breach of contract, who is likely to prevail? Discuss.

Bankruptcy, financial agreements and the rights of creditors

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 11, 2006 Session

JUDGMENT. Jamaican Redevelopment Foundation Inc (Appellant) v The Real Estate Board (Respondent)

FILED: RICHMOND COUNTY CLERK 06/03/ :22 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/03/2015

JUDGMENT. Sagicor Bank Jamaica Limited (Appellant) v Taylor-Wright (Respondent) (Jamaica)

JUDGMENT. Oceania Heights Limited (Appellant) v Willard Clarke Enterprises Limited & others (Respondent)

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON August 22, 2005 Session

EDWIN M. HUGHES. and LA BAIA LIMITED

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT consolidated with CW DANNY CLARK AND GREAT LAKES REINSURANCE (UK), PLC **********

CENTRAL & EASTERN TRUST CO. v. IRVING OIL LTD. et al.

STATE OF MICHIGAN COURT OF APPEALS

APPELLANT: Smt. Sawichhungi, D/o Lalngaiha (L), Chaltlang Ruamveng, Aizawl, Aizawl District.

IN THE SUPREME COURT OF BELIZE, A.D and A.D BETWEEN: (RANDOLPH HOPE PLAINTIFF ( ( AND (

J U L Y V O L U M E 6 3

BIG ISLAND CONSTRUCTION (HONG KONG) LTD v ABDOOLALLY EBRAHIM & CO (HONG KONG) LTD - [1994] 3 HKC 518

Republic of South Africa IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN) MR VIDEO (PTY) LTD...Applicant / Respondent

COURT OF APPEAL NO 2008 CA 2578 VERSUS. Appealed from the

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

S P Chua Pte Ltd v Lee Kim Tah (Pte) Ltd

Lagos International Trade Fair Complex Management Board Act CHAPTERL2 LAGOS INTERNATIONAL TRADE FAIR COMPLEX MANAGEMENT BOARD ACT

IN THE SUPREME COURT OF BELIZE, A.D ATLANTIC BANK LIMITED JUAN JOSE ALAMILLA MARIA NELIDA ALAMILLA

No Filed: IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

STATE OF MICHIGAN COURT OF APPEALS

IN THE HIGH COURT OF SOUTH AFRICA

THE UNCERTAIN DOCTRINE OF PART PERFORMANCE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION. CIVIL APPEAL No.5517 OF 2007

REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO.0028 OF (From Kabale Civil Suit No.0004 of 2003

IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 17 March 2015

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT WCA COCA COLA BOTTLING COMPANY UNITED, INC. **********

ARTICLES OF INCORPORATION EPISCOPAL CHURCH, INC. ARTICLE I EPISCOPAL CHURCH, INC. ARTICLE II ARTICLE III

FIRST AMENDED COMPLAINT

MOCK CLASS SECTION 1 EMILY KADENS

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) IN THE MATTER OF THE BANKRUPTCY ACT CAP 67 AND

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR RECOVERY Judgment reserved on Judgment delivered on

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CIVIL ACTION

For Preview Only - Please Do Not Copy

SCHEDULE C. a) charge means an encumbrance, lien or interest in the land;

IN THE HIGH COURT OF JUSTICE GARY LEGGE AND MAUREEN LEGGE. Between CHRIS RAMSAWACK AND WESTERN SHIP AND RIG SUPPLIES LIMITED

PRELIMINARY STATEMENT. 1. This is a case where CHAUNCEY MAGGIACOMO (the Defendant ) took

IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL BETWEEN MAY JOSEPHINE HUMPHREY AND

The Specific Relief Act, 1963

No. 76 of Land (Ownership of Freeholds) Act Certified on: / /20.

IN THE HIGH COURT OF JUSTICE MAURA DESIR MC GREGOR AGDOMER

Raymond George Adams v Mason Bullock (A Firm) [2004] APP.L.R. 12/17

IN THE HIGH COURT OF JUSTICE TELLELAU CONSTANTINE JUDY CHARLERIE-CLARKE AND SHARMIN SUBHAR TREVOR CHARLERIE

v No Wayne Circuit Court

IN THE COURT OF APPEAL DOROTHY R. REY. and ASHFORD COLE. First Respondent and

SETTLEMENT AND RELEASE AGREEMENT. THIS SETTLEMENT AND RELEASE AGREEMENT ( Agreement ) is

ON APPEAL FROM THE MILTON KEYNES COUNTY COURT

S13A1807. MATHEWS et al. v. CLOUD, EXR., et al. This case arises out of a dispute over title and right of possession of

IN THE HIGH COURT OF JUSTICE BETWEEN YVONNE ROSE MARICHEAU. And MAUREEN BHARAT PEREIRA. And

IN THE SUPREME COURT OF BELIZE, A.D ( ISMAEL O. SHABAZZ PLAINTIFF ( BETWEEN ( AND ( ( MILLICENT ARNOLD DEFENDANT JUDGMENT

Part 44 Alberta Divorce Rules

ELIZABETH S. STEWART, Plaintiff/Appellee, STERLING MOBILE SERVICES, INC., an Arizona corporation, Defendant/Appellant. No.

STATE OF MICHIGAN COURT OF APPEALS

LAWS OF SOLOMON ISLANDS CHAPTER 126 STAMP DUTIES ARRANGEMENT OF SECTIONS

NOT DESIGNATED FOR PUBLICATION. No. 118,990 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. JENNIFER VANDONSEL-SANTOYO, Appellee,

BY-LAWS OF CHICORY CREEK HOMEOWNERS ASSOCIATION INC.

COUNSEL JUDGES OPINION

Southern California Edison Original Cal. PUC Sheet No E Rosemead, California (U 338-E) Cancelling Cal. PUC Sheet No.

IN THE SUPREME COURT OF BELIZE A.D (CIVIL) CLAIM NO. 261 of 2017 BETWEEN

PRETEST-POSTTEST. Matric Number: Semester:

Transcription:

- DOMINICA... IN THE COURT OF AI'PEAL CIVIL APPEAL NO. 3 of 1981 CI..ENENT L:OO S THCMAS a.nd ANGE FELIX OLIVACCE Defendant/Appellant Plaintifi/Respondent Before: Appearances g The Hon. Sir Neville Peterkin - Chief Justice The Honourable Mr.-Justiee Berridge The Honourable Mr. Justice Robotham H. Dyer for Defendant/ Appellant J, Armour for Plaintiff/Respondent, J. Harris with him. 1982; September 29 -- - ~-- q.,. ' l I "- --"" PEI'ERia:N 9 C. J. This is an appeal from the decision of Hewlett, J. entering judg111ent in favour of the Plaintiff/Respondent, and granting to him an order in which it was adj'u.dged that there be specific perfomanee of agreement between the Plaintiff/Respondent and the Defendant/Appellant in respect of the sale of Morne Patate Estate comprising 122 acres and 12 perches and si tua.te at Soufriere in the Parish of St. MBJ'S, The ~s of appeal are: ;. 111, a. The judgement's finding thnt the alleged contract would appear to be both valid and enforceable at law which would entitle the plaintiff to damages could not be based on the evidence and is contradictory according to his statement at paragraph 3 above. b, That the learned trial judge's finding that there was e.n oral agreement is contrary to law and contradictory to his statement that the principle of law contained in the Statute of Frauds is that the note or memorandum evidencing a sale or other disposition of land must contain all the material tems of the alleged contraot. 11 2 The trial judge was wrong in law and/or misdirected himself on the evidence in not holding that even if there was a contra.ot, such contract could not stand in law since the evidence clearly showed that it was unoonscienable bargain." /'J!he,

2. The facts and circumstances are as follows~- The estate had been devastated by hurricane unavid 11 in 1979 and had not been restored. It was unprofitable and was bringing in no income. In December, 1980, the Defendant/Appe~lant approached the Plaintiff/Respondent and offered to lease the estate to him. He accepted and they agreed on $1,000.00 per annum as the rent. The Plaintiff/Respondent accordingly entered into possession and began clearing and planting. Some six weeks later, in February, 1981 the Defendant/Appellant again approached the Plaintiff/Respondent. This time he offered to sell him the estate. He indicated that he wanted $4~00 urgently to pay his passage to the U.K. The Plaintiff/Respondent explained that he could only accept the offer if he was given time to pay. This was acceptable to th,e Defendant/Appellant, and they agreed on a price of $25,000.00. In furtherance of this agreement they consul ted a Solicitor, 'Hrs. Dyer, in Roseau in order to complete the transaction. She required to see the document of title. This the parties collected from Barolays Bank who had been holding it by way of an equitable mortgage for a loan to the Defendant/Appellent of $3,244.23 which was still outstanding, and which was settled by the Plaintiff/Respondent with money which he borrowed from one Vera :Emanuel. They both returned to Mrs. Dyer's Chambers where the Plaintiff/Respondent accounted for various amounts of money advanced and paid to the use of the Defendant/ Appellant along with the passage money. This totalled $8,ooo.oo, and a receipt for this amount was prepared by the Solicitor and signed by the Defendant/Appellant. It reads: 11 4th February, 1981, "Reoei ved from Ange Felix Oli vaoce the stm1 of eight thousand ($8,ooo.oo) in respect of part payment for a portion of land part of the nmorne Patate Estate situate in the Parish of St. Hark containing 122 acres 0 Roods 12 perches and bounded as followsg Northerly by Beaupre land of the Heirs of Ange Felix Olivaoce and Olive Maria Lee, Easterly by land of Mrs. :E,'ugenia De Freitas, Westerly by lands of 111de. No Field Ferriera; Southerly by Morne Rouge and /Crabiere ".

Crabiere Estates and land of the heirs of Ange Felix Olivacee known as Mde. Fleurie from $25,000.00 Balance $17,000,00 Clement Lewis Thomas" In short, it described the land, set out the price, down payment, and balance due, but was silent regarding the payment of the ba.lance. The Plaintiff/Respondent's evidence was that there was an oral agreement as to this, and that the agreement was that the balance of the purchase price was to be paid within 5 years by monthly instalments of $285.00 commencing 1st March, 1981. :Further to this, that the Solicitor undertook to prepare a dooument which was to contain the precise terms of their agreement relating to the payment of the balance of the purchase price. He stated that they were required to return in two days time to the Solicitor when the document would be ready for the signature of the Defendant/Appellant. This was denied by Mrs. Dyer at the trial, but the evidence of the Defendant/Appellant in crosjl-examination supports the trial Judge's finding. It reads 11 Mrs. Dyer had to draft the agreement for him to pay within 5 years. It was proposed that the first payment was to be made on the 1st March, 1981. It was proposed that she would collect the money, $285.00 per month. We did not agree that the Plaintiff was to pay the balance when I signed the memo of transfer 11 The learned trial Judge accepted the evidence of the Plaintiff/ Respondent and went on to find that there was a concluded agreement embracing all the terms mentioned, and that it was not an agreement subject to formal contract or to any condition precedent. I can see no reason whatever to differ, In 1IJ.Y opinion there we ample evidence on which to base such a finding. He then went or to deal with the issue of the Statute of Frauds. He pointed out that the material terms of the alleged contract relating to the pe.yment of the balance of $17,000.00 by monthly /instalments

4. instalments were not mentioned in the receipt exhibited and that there was no other document available that, if read together with it, would satisfy that requirement. He therefore conqluded that contract was unenforceable at law under the Statute of Frauds as there was no note or memorandum relating to the payment of the balance. Again, I would agree. This aspect appears to have been conceded as there has been no argument to the contrary by either Counsel in relation to it. In turning to the issue as to whether or not there may be said to have been part performance or/he part of the Plaintiff, he adumbrated three points which he said appeared to him to be relevant. This aspect of the judgment readse "The plaintiff having sued for specific performance which is an equitable remedy, it behoves me to look at the position in equity on the facts of this case. And the basic principle is that if the plaintiff has partly c2xried out the contract on his side, it would be fraudulent of the defendant not to keep his promise. So has there been part performance by the plaintiff? There are three points that appear to me to be relevant. Firstly, the plaintiff made a part payment over end above the 2~eed rent on the lease which is referable to the sale, (Stedman v Stedman (1974) 2 AER 977. Secondly, the plaintiff remained in possession after he acquired the vendor's reversion in the lease when the parties concluded the agreement of sale and he obtained the equitable interest in the property. And thirdly, the plaintiff carried out work on the property making improvements thereto whereby he would be able to meet his monthly payments. These, to my mind, establish unequivocally that the plaintiff has partly performed the contract, the terms and conditions of which are certain and known to the parties although not evidenced in writing. 11 On ground (1) learned Counsel submitted that there was not enough evidenee to allow the Judge to conclude that there was part performance. He argued that the payment of rent, by itself, was not enough, and th~t there was no real evidence of improvements to the land which, even so he contended, was Plaintiff/Respondent's responsibility under the lease. He citedg (1) Steadman v Steadman, 1974 2 ALL.E.R., 977. (2) Chaproniere v Lambert, 1917 2 Ch. Div., 356, and (3) Wood v Abrey~ 1880 E.R., 560. /Learned "

5. Learned Counsel for the Plaintiff/Respondent on the other hand pointed to a number of acts in the evidence which, he argued, were in addition to the acts found by the trial Judge, and he submitted that the finding by him of part performance was justified. He referred to Chi tty on Contracts, 24~h Edition, para 254 and, to Steadman v Steadm2r: already cited. The sole question in this appeal as I see it is whether the acts as found by the trial Judge amount to sufficient part perfor:mance to render the contract enforceable. In dealing with the doctrine of part performance, the learned author of Chitty on Contracts at para 254 of the 24th Edition states~ 11In his work on Specific Perfor:manoe Fry L.J. further stated that the acts of part performance must be referable to 11 no other ti tle' 1 than the alleged contract; but this view 11 has long been exploded. 11 If the obvious explano.tion of the acts is that they were done with reference to a contract, the doctrine of part perfor:mance applies although some ingenious alternative explanation for them can be suggested. It is only necessary that the acts relied on should, on the balance of probabilities, point to some contract, and either show the nature of or be consistent with the oral contract alleged.' 1 Lord Reid puts it in muoh the same way in his judgment in the Steadman case cited at page 982~ 11In my view, unless the law is to be divorced from reason and principle, the rule must be that you take the whole circumstances, leaving aside evidence about the oral contract, and see whether it is proved thut the acts relied on were done in reliance on a contract~ that will be proved if it is shewn to be more probable, than not.. " In my opinion, taking the whole circumstances of the instant case into account, the acts relied on suffice to constitute part performance, and the trial Judge was right in concluding that there was sufficient part performance in this case to render the contract enforceable. I do not think that there is any merit whatsoever in the second ground of appeal. Indeed, this became obvious when it was pointed out /to Counsel

6. to Counsel that the second sale to the witness Seignoret, according to the evidence of the Defendant/Appellant himself, was at the same as thttt previously agreed with the Plaintiff/Respondento On the issue of damages, the authorities are abundantly clear that damages cannot adequately compensate a party in the circumstances of the instant case. Accordingly, for the reasons stated I would dismiss this appeal arrd affirm the judgment of the learned trial Judge. The Plaintiff/Responder should have his costs of the appeal to be taxed. I agree. N.A. PETERTaN, Chief Justice N. A. BERRIDGE:, Justice of Appeal I also agree. / I,. L. ROBOTHAM, Justice of Appeal