Rahaman et Al v Kelly et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Hamel-Smith, J.A.
• Judgment Date: 22 February 2002
• Neutral Citation: TT 2002 CA 15
• Docket Number: Civil Appeal No. 90 of 2000
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 22 February 2002

Court of Appeal

Hamel-Smith, J.A.; Permanand, J.A.; Warner, J.A.

Civil Appeal No. 90 of 2000

Rahaman et al

and

Kelly et al

Appearances:

Mr. C. Walters for the appellants.

Mr. A. Cherry for 1st respondent.

Mr. D. Seecharan for 2nd respondent.

Real Property - Agreement for the sale of land — Lis pendens registered against the property — whether the lis pendens had any effect on the deed of assignment between the first and second respondent — Appellants contended that the lis pendens was only registered when entered in the register and not when it is left with the Registrar — Finding that section 65 of the Remedies of Creditors Act, Chap 8:09 required that the lis pendens be left with the Registrar who shall forthwith enter it into the official book and the lis pendens had been left with the Registrar five months before the agreement with the appellants — Accordingly they had constructive notice.

Hamel-Smith, J.A.

1 In this appeal, the first respondent [Kelly] instituted proceedings again t the second respondent (Ramdeen) for specific performance of an agreement he had made with Ramdeen for the purchase of his property at Western Main Road, St. James.

2 The agreement was witnessed by a receipt and the terms were that the purchase price would be $125.000 and a deposit of $25,000 would be made within two weeks of the agreement. On payment of the full deposit Kelly would be allowed into possession. The balance of the purchase price had to be paid within one year.

3 The trial judge found as a fact that that the receipt was sufficient to satisfy a memorandum in writing under section 4(1) of the Conveyancing & Law of Property Ordinance Ch. 27 No.12. There has been no appeal by Ramdeen against that finding.

4 Kelly further alleged that the tens of the agreement had been varied orally to extend the time for payment of the deposit. He apparently had not paid it in full within the requisite two weeks and according to Kelly, Ramdeen agreed to extend the time for payment of it but it was agreed that the deposit would now be $45,000. On payment of the full amount of the deposit Kelly would be given possession. The balance of the purchase price had to be paid before the completion date.

5 Generally, where there is an oral variation of an agreement that is required to be evidenced in writing the oral variation cannot be enforced. The effect can be two fold. First, the oral variation is simply unenforceable for want of writing but the original agreement may nevertheless stand. Whether the original agreement can still stand is sometimes a difficult question to resolve because the oral variation, while itself unenforceable, may have the effect of rescinding the original agreement, bringing it to an end. It usually is a matter of intention of the parties (see Sookraj v. Samaroo Cv. App 27/2000 (unreported)). Kelly's case however was that consequent upon the oral variation he paid a further instalment of the deposit and since that could be considered part performance of the agreement as varied it was enforceable. Ramdeen, he alleged, at first wrongfully refused to accept any further instalments on the deposit. Later, Kelly alleged, Ramdeen informed him that he sold the property to the third parties, Ralph and Joyce Rahaman for a greater sum. He immediately registered a /is pendens against the property. It was in these circumstances that he claimed to be entitled to specific performance of the agreement as varied.

6 It appears that Ramdeen made no real challenge to the enforceability of the agreement as varied and the trial judge accepted that the agreement as varied was enforceable. In any event, no appeal has been filed by Ramdeen challenging this finding. The real challenge was mounted by the Rahamans who claimed that the lis pendens had no effect on the deed of assignment from Ramdeen to them. The trial judge rejected their argument and ordered that their deed of assignment of January 15, 1985 be set aside.

7 The trial judge was satisfied that there was a sufficient memorandum to satisfy the section under the Ordinance and he ordered specific performance of the agreement as varied. He ordered that upon payment by Kelly to Ramdeen of the sum of $105,000 (the balance due on the purchase price with simple interest at three per cent from May 3, 1985 to March 31, 2000) on or before May 15, 2000, Ramdeen would execute a deed of assignment of the premises to him. In default of Ramdeen doing so, the Registrar of the Supreme Court would be permitted to sign the deed.

8 Kelly also had a claim against the Rahamans for damages as he had alleged that they had demolished the house standing on the land. They claimed the value of the demolished house and the cost of disposing of the debris. Again, the trial judge found in Kelly's favour and ordered that the Rahamans pay to Kelly the sum of $34,500 with simple interest from October 26, 1985 to March 31, 2000, on or before the 15th of May. This sum was made up as follows: $32,000 - the value of the demolished house and $2,500 the cost of the removal of the debris. The counter-claim of Ramdeen was dismissed and so was the claim of the third parties. He ordered Ramdeen and the Rahamans to pay the costs of Kelly in the action and on the counterclaim.

9 The Rahamans filed an appeal. Their deed of assignment had been set aside. The trial judge held that the lis pendens registered by Kelly on August 28, 1984, was good notice to the Rahamans and they took the property subject to the lis. I shall return to deal with the gist of their grounds of appeal shortly.

10 Kelly applied for a stay in respect of the order that required him to pay the balance of the purchase price by May 15, 2000 pending the appeal. In his affidavit he swore that although he was ready, willing and able to complete the sale, having found someone to lend him the money, because of the pending appeal he wanted a stay of the order or at least an extension of the time for completing the transaction. A judge in Chambers (Court of Appeal) refused the application.

11 Kelly never pursued the application any further by applying to the full court for a variation of the order of the judge in chambers. It was argued that the order for completion lapsed. It was submitted...