Seepersad et Al v Mackhan
| Jurisdiction | Trinidad & Tobago |
| Judge | Edoo, J. |
| Judgment Date | 16 April 1982 |
| Neutral Citation | TT 1982 HC 27 |
| Docket Number | No. 533 of 1977 |
| Court | High Court (Trinidad and Tobago) |
| Date | 16 April 1982 |
High Court
Edoo, J.
No. 533 of 1977
Mr. Seunath for the plaintiffs.
Mr. Maharaj and Mrs. Maharaj for the defendant.
Contract - Oral agreement — Sale of land.
Contract - Sale of land — Rescission.
The first-named plaintiff is the husband of the second-named plaintiff and the son of the defendant. I shall hereafter refer to ‘Ramlochan”, “the wife” and “the mother” respectively.
The mother is the legal personal representative of the Estate of Seepersad Mackhan (hereinafter called “the father”). Letters of Administration of the father's estate was granted to the mother as his lawful widow and relict on the 6 th March, 1970, the father having died on the 6 th September, 1968.
Comprised in the Estate was a parcel of land situate at Tulsa Trace, Penal comprising 2 acres, 3 roods and 6.5 perches described in Crown Grant in Vol. 149, Folio 183 and in Certificate of Title in Vol.1041, Folio 323, together with a building thereon(herein after referred to as the property”).
By their Statement of Claim, Ramlochan and the wife allege that on or about the 3 rd May, 1973, by an oral agreement made between them of the one part and the mother of the other part, they agreed to buy and the mother agreed to sell the property for the price of $10,000((see paragraph 5). That Ramlochan called upon the mother on several occasions to complete the Memorandum of Transfer and to collect the balance of the purchase price but that the mother has refused and/or neglected to do so (paragraph 9).
Ramlochan and the wife have claimed inter alia specific performance of the oral agreement; alternatively damages for breach of contract and a lien on the property for their deposit and damages. The mother in her Defence and Counterclaim, seeks rescission of the said agreement inter alia on the grounds of fraudulent misrepresentation (paras.3 to 6); non est factum (para.7) and undue influence(para.8) and counterclaims for a declaration that she is the owner of the property and for an injunction to strain Ramlochan and the wife and their servants and or agents from entering or remaining upon the property.
The oral agreement which Ramlochan and the wife seek to enforce is evidenced in a document allegedly containing the terms of the agreement, having instructions for the preparation of the conveyance of the property from the mother to Ramlochan and the wife, to which it is alleged that the mother had put her “X” mark and right hand thumb print (see Exhibit “B.D. 1”). They rely upon s. 4(1) of the Conveyancing and Law of Property Ordinance, Ch.27:12, which provides that no action shall be brought to enforce a contract for the sale or disposition of land unless a note or memorandum thereof is in writing and signed by the party to be charged.
Counsel for the mother has contended that the instructions (Exhibit “B.D. 1”) is not a proper note or memorandum to bring it within section 4(1) of the Ordinance (supra) and that as a result, if there is a valid subsisting contract, the same is unenforceable.
Section 4(1) of the Ordinance is reproduced from s.4 of the English Statute of Frauds which has been repealed and is now to be found in s.40(1) of the English Law of Property Act, 1925.
In cases decided after the enactment of the Statute of Frauds,, there has been abundant authority on the requirements as to the form and contents which the memorandum should take and contain. It is established that the memorandum should contain:–
(1) the names and description of the parties;
(2) a description of the property;
(3) a statement of the consideration; and
(4) the signature of the party to be charged.
I consider that the memorandum upon which the plaintiffs seek to rely (Exhibit AB.D. 1”) satisfies these requirements. Those may be considered as the minimum requirements and the circumstances of each case need to be examined to discover if any material term has been deemed material by the parties and, if so, it must be included in the memorandum. See Tweddell v. Henderson [1975] 2 All. E.R. 1096.
In the instant matter the property was mortgaged to the Sugar Industry Labour Welfare Committee (hereinafter called “the Committee”).Ramlochan testified that it was the condition of the oral agreement that he should pay off the balance due to discharge the mortgage. Although the mother has contended that she made no such agreement, as far as Ramlochan was concerned this was a material term of the agreement, more so since in his evidence he seeks to set off the amount which he says that he paid to the Committee against the consideration. Counsel for the plaintiffs says that the terms of the alleged memorandum (Exhibit B.D. 1” are contained not only in that document, but also in the receipt which Ramlochan obtained when he paid off the Committee (Exhibit “K.H. 1”).This joinder of documents to satisfy the requirements of section 4 of the Ordinance (supra) has been explained in Timmins v. Moreland Street Property Ltd. [1958] Ch. 110, which can be considered as settling the law on the question of joinder of documents insofar as it relates to the adequacy of the memorandum. At p.120 Jenkins L.J, stated:–
“It is still indispensably necessary in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction…” (emphasis added).
The alleged memorandum (Exhibit “B.D.1”) contains a reference to the mortgage but does not contain any reference to the receipt (Exhibit AK.H. 1”) or payment of the loan, an inclusion which I consider to be indispensable if it is to be read together with the memorandum (exhibit “B.D. 1”).
Moreover, there are other alleged terms which are not contained in the alleged memorandum, e.g. how the consideration was to be paid. In the light of Ramlochan's testimony that the money for the consideration was to be raised by a mortgage of the property, this was an important term which should have been contained within the memorandum; then there is Ramlochan's evidence that the amount paid to the Committee and the sum of $175.00 which he alleged he gave to the mother for payment to the valuator were to be set off against the consideration. There is also the question of the date for completion of the transaction. All of these are important terms which should have been included in the alleged memorandum. A contract without these terms, in my opinion, will fail for uncertainty.
I consider therefore, that the alleged memorandum does not satisfy the provisions of section 4(1) of the Ordinance and therefore, if valid, is unenforceable.
Counsel for the defendant has also contended that there is no indication on the alleged memorandum to evidence the terms of a contract and has referred to the case of Smith-Bird v. Blower [1939] 2 All E.R. 406, where it was held that a slip of paper which read “Let bearer, X, have property 74 and 76 Midland Road, Ellistown, for, 510,” I did not constitute a sufficient memorandum as it did not refer to any agreement for sale nor reveal the precise relationship between X and Y. The same cannot be said for the alleged memorandum in this case. I consider that it contains the minimum requirements as I have detailed above but not the terms upon which the plaintiffs rely.
In paragraph 7 of the Statement of Claim, the plaintiffs have pleaded an agreement to pay off the capital and interest owing to the Committee. This, I consider to be an attempt to set up one of the terms of the contract, not an attempt to rely on the doctrine of part performance as counsel for the defendant has surmised. There has been no explanation of this paragraph by counsel for the plaintiffs.
However, the inadequacy of the alleged memorandum (Exhibit AB.D. 1”) was not pleaded by the defendant and, in my opinion, she cannot rely upon it to defeat the plaintiff's claim.
Under section 23 and 24 of the Administration of Estates Ordinance Ch.8:01, the mother and her children of whom Ramlochan is the second child, are entitled in distribution respectively to one-third and two-thirds of the estate left by the father. It appears that no Deed of Assent has been registered vesting the property in the mother and the children in accordance with the provisions of Part II of the Ordinance (supra). The result is that the legal estate in the property was at the time of the alleged agreement for sale, vested in the mother as legal personal representative.
It is relevant for the purposes of this matter to determine what are the powers and duties of a legal personal representative and the rights of beneficiaries to the estate of the deceased as they apply on an intestacy as cross-examination was directed in respect of the powers and duties of the mother to deal with the property.
Generally, legal personal representatives, are for some purposes considered as trustees until they have completed administration and assent of the real property. See Hawkesley v. May [1956] Q.B. 304; Re Cockburn's Will Trusts [1957] Ch. 438.
Under the Administration of Estates Ordinance (supra) they are required :to hold two-thirds part or the whole of the estate in trust in equal shares for the benefit of the children of the intestate living at his death and for the issue of any child of the intestate who predeceases him. See Section 23 of the Ordinance (supra) incorporating by reference the Statutes of Distribution 22 & 23 Car. 2. c. 10.
They are responsible for the satisfaction of the debts of the deceased to the extent of the whole estate and should not distribute any portion of the deceased's estate until satisfied that such debts have been...
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