Beruflich Dokumente
Kultur Dokumente
36 of 2001
FROM
11. The terms of the letter of 1st August are confirmatory both of
the existence of a letter of 4th April and of its having specified a
date by which Mr Ramlal was required to complete the purchase. It
also proposed a variation of the contract in two respects. On 16th
August 1974 Capildeos wrote to Wilsons as follows:
“Please refer to your letter of 1st August, 1974.
We are ready to complete pending the following.
(a) We cannot trace what has become of the interest of
one ‘Chuniah’ in Deed No: 4353 of 1929.
(b) We note that land in excess includes the access road
which comprises some 2000 sq. ft. and should be
deducted from the original parcel contracted to be
sold.
That will leave some 800 sq. ft. in excess.
Please let us hear from you before the 21st August.”
12. On 5th September 1974 Capildeos wrote Wilsons a letter
headed “WITHOUT PREJUDICE”, in which they referred to the
letter of 16th August and the agreement of 13th October 1971.
Having dealt with the area of the excess land, the letter continued:-
“Having regard to (a) the fact that the issues have now been
considerably narrowed in this protracted affair and (b) the
relatively small pecuniary consideration payable on the
excess, we shall appreciate a compromise and shall await
your views by return.
Meanwhile, we have written to our clients on the issue of the
extent of ‘Chuniah’ in Deed 4353 of 1929.”
14. On 19th November 1974 the writ in the action was issued
against Mr Mahase. The proceedings were later amended to add
the Jaglals as defendants. The principal relief claimed was specific
performance of the agreement of 13th October 1971; a declaration
that the deed dated 5th November 1974 by which Mr Mahase had
conveyed the disputed land to the Jaglals as joint tenants was void
and of no effect and an order setting aside and striking it out;
alternatively, a declaration that the purported conveyance to the
Jaglals was subject to the agreement of 13th October 1971 and an
order that the Jaglals should transfer the disputed land to Mr
Ramlal.
15. The trial began on 12th April 1991 and the evidence was
concluded by 10th May of that year. There were then lengthy
submissions on each side which took place over a number of days
between May 1991 and January 1993, when judgment was
reserved. Judgment was delivered on 23rd February 1994.
16. On the question of title Brooks J observed that it was not
pleaded by Mr Ramlal that Mr Mahase’s title to the disputed land
was defective or that the interests of Chuniah materially affected
the plaintiff’s title. (An application made late in the trial to amend
the statement of claim in order to raise those points had been
refused.) In any event the judge thought that the evidence on the
whole did not disclose any defect in Mr Mahase’s title. He then
turned to the proof of title:
“Undoubtedly, independent of any condition for that
purpose, a vendor of unregistered land (as in this case) is
under a duty to deliver an abstract of title to the purchaser,
and to do so within a reasonable time. What is a reasonable
time is a question of fact for determination by this Court.
Here, there was in the agreement no stipulation as to title.
And, Mahase did not deliver an abstract of title to Ramlal in
the first instance, or provide him with any information as to
his title deeds. It was not until the 14 May 1974 … that
Ramlal’s Solicitors requested for the first time a copy of
Mahase’s vesting deed, as they were entitled to do. That was
fairly late in the day. Nonetheless, the information was
supplied by Mahase’s Solicitors (Wilson & Co) by letter
dated 1 August 1974 … In other words, an abstract or root
of title not having been provided by Mahase within the first
two or three months of the agreement, the plaintiff Ramlal or
his Solicitors should have applied for it or for the necessary
information as respects the title deeds at a much earlier date
– rather than some 2½ years later. The plaintiff then was
guilty of some neglect in failing to apply for information as
to the first Defendant’s title deeds at an earlier date.”
17. Later, the judge referred to Wilsons’ letter dated 7th February
1974, which he described as “a simple and straightforward request
[to complete] – and one which could easily have been acceded to
by Ramlal”. He added that no information as to title had been
sought by Mr Ramlal up to that stage. It was on the basis that Mr
Ramlal ought to have requested such information that the judge
held that Mr Mahase was entitled, by the letter of 4th April 1974, to
make time of the essence of the contract. Accordingly, in his view,
Mr Ramlal’s failure to complete by the revised date of 21st August
1974 amounted to a repudiation of the contract which Mr Mahase
was entitled to accept, and did accept, by selling the disputed land
to the Jaglals.
19. In giving judgment, Ibrahim JA said that the real issue in the
case was the effect of the letters of 4th April and 1st August 1974
and the failure to complete on the dates set out in those letters.
Having referred to the obligations of a vendor under an open
contract to make a good and marketable title to the property sold
and to deliver an abstract of his title to the purchaser within a
reasonable time after the date of the contract, he continued:
“In Trinidad, since there is a system of registration of deeds,
a vendor seldom, if ever, has in his possession an abstract of
title similar to a vendor in England. What happens in
practice is that the vendor supplies the purchaser with
information that evidences his acquisition of the land in
question and the purchaser’s attorney uses that information
as a starting point to search the title. While therefore the
onus remains on the vendor to produce a proper title, in
reality the purchaser’s attorney is the one who confirms
whether the title is good or not. It is in this context that
Capildeo, once Mahase had acknowledged the contract for
sale, requested Wilson to supply the registered number of
Mahase’s title deed.”
26. Their Lordships are of the further opinion that there was no
change in the position during the eight weeks between 7th February
and 4th April 1974. The obligation on Mr Mahase to supply Mr
Ramlal with the appropriate information continued, it being
impossible to say either that there was a waiver of the obligation
during that period or that Mr Ramlal himself came under an
obligation to request the information. The question is whether, in
that state of affairs, Mr Mahase was entitled to give Mr Ramlal a
notice making time of the essence of the contract.
In the present case, as at 4th April 1974 there had been no delay,
and therefore no default, on the part of Mr Ramlal. Not until Mr
Mahase had supplied him with the appropriate information as to
title could he have come under any obligation to complete.
28. The related but distinct ground is that the party serving the
notice purporting to make time of the essence must himself be
ready, able and willing to complete at the date when the notice is
served. This is an express requirement of the conditions commonly
incorporated in contracts for the sale of land in this country, but it
does no more than express what would in any event be implied by
law; see Halsbury’s Laws of England, 4th edition, vol 42 (1999
reissue), para 121, note 7 and the cases there cited. It is evident
that the requirement cannot be satisfied where the party serving the
notice is himself in default. In the present case, on 4th April 1974,
Mr Mahase was in default through not having supplied Mr Ramlal
with the appropriate information as to title.
29. For these reasons, their Lordships are of the opinion that the
letter of 4th April 1974, whatever its terms may have been, could
not have made time of the essence of the contract. Nor was there
anything in the subsequent correspondence to make it so. In their
letter of 1st August 1974 Wilsons informed Capildeos that Mr
Mahase had decided “to stand firm on the deadline communicated
in ours of the 4th April, last”, but that he would be prepared to
compromise on two conditions: first, that Mr Ramlal should make
payment for the excess land; second, that completion should take
place by 21st August 1974. While it could perhaps be argued that
the final paragraph of Capildeos’ reply of 16th August constituted a
recognition of the revised completion date, no agreement was ever
reached as to the amount to be paid for the excess land. In the
circumstances, there was never any concluded agreement for a
compromise as proposed in Wilsons’ letter of 1st August and time
was never made of the essence of the contract. Accordingly, Mr
Ramlal, not having been in default on 5th November 1974 when
Mr Mahase conveyed the land to the Jaglals, thereupon became
entitled to relief against Mr Mahase.
30. As for the Jaglals, Ibrahim JA was of the view that they were
aware of the agreement for sale to Mr Ramlal and therefore that
they purchased subject to that agreement. In their Lordships’ view,
however, it is doubtful whether the evidence adduced at the trial
established that the Jaglals had actual notice of the agreement of
13th October 1971. But whether they did or not, it is clear that
they had actual notice of Mr Ramlal’s occupation of the disputed
land and were thus fixed with constructive notice of all his rights
over it; see Hunt v Luck [1902] 1 Ch 428. Accordingly, Mr Ramlal
also became entitled to relief against the Jaglals.