Specific Performance decision dismissed

THE appellant (Abhiman Singh) now deceased had entered into a written agreement of sale with his nephew with respect to 20 acres of land.
Just over one month later he sold a portion of the land to his nephew/tenant who applied to the Court for specific performance of the agreement.
The Appellant appealed from this decision.

He contended that he had agreed to sell the respondent 10 out of the 20 acres but that the respondent requested him to sign a document which falsely represented that the sale was in relation to 10 acres.
The Court of of Appeal was constituted by Justices of Appeal Singh & Chang with Additional Judge being Claudette La Bennett: That Court –
Held: The trial judge failed to consider whether the written agreement accurately reflected the earlier made oral agreement.

Appeal allowed. Decision of the trial judge set aside.
O. Valz, S.C., for appellants.
Fitz Peters for respondents.
Justice of Appeal Singh delivering the judgment of the Court said: Abhiman Singh (deceased), substituted by his widow Liloutie Singh, was the owner of Transports numbers 1023/98 and 1024/78 in relation to twenty (20) acres of land. On 17th day of September , 1993 , Abhiman Singh entered into a written agreement of sale with his nephew Jamna Persaud in relation to the lands as evidenced by the said Transports The written agreement stated the purchase price as $120, 000.

It is important to mention that on 22nd October, 1993 Abhiman Singh sold ten (10) acres of the said lands ,to his tenant Mohabir for the sum of $300, 000. As a consequence Jamna Persaud filed an action claiming specific performance of the agreement of sale in relation to the twenty (20) acres of land against Abhiman Singh and sought a declaration, Injunction and damages against Mohabir.

In his defence Abhiman Singh contended that Jamna Persaud was his nephew and that around September, 1993 at his nephew’s request he agreed to sell him ten (10) acres of the land for the sum for $300, 000.
He further stated that on the evening of 17th September, 1993 his nephew, the defendant visited him and requested him to sign a document which falsely represented that the sale was in relation to ten (10) acres land.
The trial judge decided in favour of the respondent thereby granting him specific performance of the agreement of sale. It is from this decision that the appeal emanated.
Among the grounds of appeal were:

(a) The learned trial judge was wrong to find that the deceased Abhiman Singh signed the agreement of sale with full knowledge of the contents thereof; and

(b) The learned trial judge made no reference to, and did not evaluate, the discrepancies in the evidence of the respondents and their witnesses.
At page 121 of the record the learned trial judge stated the facts of the case as follows: “ On the 17th day of October, 1993 Abhiman Singh entered into a written Agreement of Sale and Purchase with the plaintiffs for properties situate at Hyde Park, Mahaicony Creek for $120, 000 which sum was paid in full on the signing of the agreement.”

At page 122 His Honour quoted from the agreement of sale: “It is recorded in the Agreement of Sale ‘Purchase Price‘: $120,00 which is now fully paid by the purchasers to the vendor on the signing of this agreement, receipt whereof the vendor acknowledged.”
The learned judge then went on to make a finding in relation to the agreement of sale.
“I understand that paragraph to mean:

(i) the sum was fully paid;
(ii) the agreement of sale acknowledges receipt;
The said sum was paid prior to the signing of the Agreement of Sale.”

It is obvious that the learned trial judge begged the essential issue by accepting that the agreement signed on 17th September, 1993 reflected the true intentions of the parties when it was incumbent on him to make a finding as to whether the agreement was for the sale of ten (10) acres of the whole of the twenty (20) acres. The fact that the purchase price was paid prior to the signing of the agreement ought to have put the learned trial judge on notice that there might have been a prior agreement.

At page 108 of the record Jamna Persaud admitted under cross-examination that he “entered the agreement of sale about one week before the 17th.
This bit of evidence clearly establishes that there was an oral agreement prior to the 17th and what the parties did was to reduce that agreement into writing.
Abhiman Singh from his defence did not deny the existence of an agreement of sale but contended that the agreement did not truly reflect the oral agreement. This was the crux of the case and the question which the learned trial judge had to decide but did not do so.

At page 85 of the record Jamna Persaud testified:“I paid one hundred and twenty thousand dollars ($120, 000) to Liloutie Singh the wife of Abhiman (…) I wrote the cheques on the 10th September.
At page 147 of the record is a photo copy of the cheque dated 10th September, 1993 for the payment of the said sum. On the face of that very cheque the term “Land Transport” is written as well as the word “payment”. It is crystal clear that a word as erased before the word “payment”.

Justice of Appeal Singh in concluding the judgment said: “It is obvious to this Court that had the learned trial judge made a proper evaluation of the evidence his decision might have been different.
Mr . Peters contended that the affidavits of Abhiman Singh ought not to have been used without prior permission of the Court but this objection was not taken in the Court below and as such cannot now be considered.
For all the reasons stated Appeal No. 36 of dismissed trial judge is set aside.
Appeal No. 63 of 2002 is accordingly dismissed. Costs in the sum of $100,000.