– As proven by a property dispute

UNDER Real Property Law – Oral contract for sale of land, specific performance cannot be ordered if time was not made of the essence of the contract, it was related by the Appellate Court in 2005.In the case of Robin Pearletta Batson Et al v- Elfreda Clarke, the Guyana Court of Appeal in 2005 dismissed an appeal after holding that the vendor did not make time the essence of the contract and it was evident that Carter was unable to conclude the contract within a reasonable time.
The appeal was dismissed.
The facts disclosed that in 1982 an oral agreement for purchase of a property was made between the Respondent as vendor and one Carter, now deceased. A deposit of $1, 000 which was 1/8 of the purchase price was paid. The balance was to have been paid within 6 months.
Four years later, the Respondent sold the property to a third party after repeatedly asking Carter to complete the transaction.
The first Appellant, one of the administrators of Carter’s estate, claimed specific performance of the agreement.
The trial judge held that the conduct of the purchaser Carter entitled the vendor to rescind the agreement on the grounds of delay.
The first appellant appealed.
Dismissing the appeal the Appellate Court held: The vendor did not make time the essence of the contract, but this was not fatal to the case since it was evident that Carter was unable to conclude the contract within a reasonable time.
Mr. C.M.L. John appeared for the appellants and Mr. B. Gibson represented the Respondent.
The Appellate Court was constituted by Justices of Appeal Madam Claudette Singh, Mr. Nandram Kissoon and Mr. Ian Chang.
Delivering the judgment, Justice Kissoon said: John Robinson was the owner of Sub-Lot numbered 42-44 being part Southern back-quarter of Lot 42 Stanleytown, New Amsterdam.
He died, leaving all his property to Elfreda Clarke who resided in Essequibo.
In the year 1982 Clarence Carter purchased from Elfreda Clarke for $8.000.00 the said property. One thousand dollars was paid at the execution of the agreement of sale and purchase and possession was delivered at the said time. The balance of the purchase price was to be paid within 6 months.
It appears that there was a written agreement which was delivered to the chambers of Mr. Maurice Haniff Attorney-at-law (deceased) and which was misplaced. The trial judge treated the agreement as an oral one. On the hearing of the appeal no issue was taken on this finding.
Elfreda Clarke instituted Action 135/85 against Clarence Carter for specific performance of the Agreement of Sale and in the alternative rescission of the contract. This action was dismissed on 11th October, 1980 and was never restored. Elfreda Clarke subsequently sold the property to George Benjamin in consideration of $10, 000.00. The conveyance was opposed by Gail Batson and others in Action 3333/89 and an injunction restraining the passing of Transport was granted to the opposers in Action No. 1062 (Berbice). Despite the fact that Action No. 135/85 was dismissed, it was heard together with Actions 3333/89 and Action 1062/89.
Clarence Carter died on 17th September, 1986 and Gladys Batson was appointed administratrix of his estate by virtue of letters of Administration No.137/87.
An order for substitution was made by Bishop CJ substituting Gladys Batson, the mother of the minor children of Clarence Carter. On the children attaining majority, subsequent substitutions were made.
There were several correspondences between Counsel for the vendor and the purchaser.
Mr. Gibson wrote on 17th March, 1984 on behalf of Elfreda Clarke.
“My client has instructed me that she has sold to you house and land in consideration of $8, 000.00 on account of which you have paid $1,000.00, and took possession of the property.’
“My client has informed me that this transaction is now 17 months overdue and unless a balance of $7, 000.00 is paid forthwith proceedings will be taken against you for possession of the property and damages for breach of contract.”
This letter indicated that the Respondent was treating the contract as discharged. As a result her consequent claim for specific performance and communications to the Respondent was misconceived, having elected to treat the contract as discharged and it is no surprise to the court it was not pursued, the judgment had said.
Mr. Maurice Haniff replied to that letter on behalf of Carter and stated:
“I have had an opportunity to read the Agreement of Sale and it specifically states that the balance of the purchase price will be paid on or before the passing of Transport. I have been instructed that my client met with a serious mishap which has made him incapacitated and consequently will be able, willing and prepared to accept transport.”
The learned trial judge found from the evidence the terms of the contract (i) consideration $8, 000.00 on which a deposit of $1, 000.00 was paid.
(ii) The balance of $7, 000.00 to be paid within 6 months.
(iii) Transport to be passed within 6 months.
(iv) Possession delivered on the date of the Agreement of Sale.
Despite the filing of proceedings, communications continued between the parties. On 16th September 1985 Mr. Gibson wrote Clarence Carter on behalf of Elfreda Clarke.
“On the last occasion you met my client in Georgetown you informed her that you have given the balance of the purchase price to Mr. CML John but on checking with Mr. John, it was discovered that this was not so.
“My client is ready to convey the property to you on payment of the balance of purchase price but it seems that you do not have the balance of the purchase price.”
There was no reply.
From the communication between the parties it was clear that Carter did not have the financial ability to meet his obligations under the Agreement of Sale.
As a result of Carter’s inability to meet his financial obligation, Clarke sold the property to Benjamin for $10, 000.00
Carter died on 17th September 1986 leaving his relatives in occupation of the property.
The learned trial judge dealt with the issues that arose in this way.
“So the critical point in this case was this: when Clarke sold the property to Benjamin in 1986, was she in law entitled to do so by reason of Carter’s breach of the Agreement? I found that Carter did not pay off the balance within the agreed time of six months and the exceeded period of 2 months when he was again seen.”
Time was not made the essence of the contract.
The Respondent was concerned with the receipt of the payment of the balance of the purchase price. She resided in Essequibo and it was exceedingly expensive to travel to and from New Amsterdam to request the balance. In Action No. 1062/89 the Respondent counter-claimed for (a) rescission of the Agreement of Sale (b) Damages for breach of contract.
Dismissing the appeal and ordering each party to bear his own cost the Court of Appeal in its judgment, among other things, said “It is clear from the evidence that Carter suffered financial inability to conclude the contract within a reasonable time.
“That inordinate delay in this particular case together with the conduct and attitude of the purchaser were sufficient to dismiss the entire Appellant’s claim.”