Jaltique Ltd v Walker

• Jurisdiction: Jamaica
• Judge: Anderson, J.,AND
• Judgment Date: 30 January 2008
• Court: Supreme Court (Jamaica)
• Docket Number: J 16 of 2000
• Date: 30 January 2008

Supreme Court

Anderson, J.

J 16 of 2000

Jaltique Limited

and

Walker

Appearances:

Mrs. Georgia Gibson Henlin and Ms. Camille Wignall instructed by Nunes, Scholefield, DeLeon & Co. for the claimant.

Mr. David Batts instructed by Livingston Alexander and Levy for the defendant.

Contract - Breach of contract — Lease with option to purchase — If a party to the contract fails to perform a task (peculiarly within his power to perform) which is necessary to place the other party in a position to exercise the option, such failure should not be allowed to frustrate the contract.

Equity - Specific performance — Proprietary estoppel — Definition — Detrimental reliance upon representation of party within a contractual context involving real property.

Tort - Negligent misrepresentation — Sufficient that defendant knew plaintiff was relying on his representation.

Anderson, J.

1 This is an action brought by the claimant, Jaltique Limited, a family-owned company engaged in the business of horticulture, (“Jaltique” or the “claimant”) against the defendant Laura Walker (as Administrator of the Estate of Raphael C. Walker). The claimant seeks, inter alia, a “declaration that the (plaintiff) has validly exercised an Option to purchase all those parcels of land together comprising 14 acres and 20.3 perches more or less being the land partly comprised in Certificate of Title entered at Volume 963 Folio 645 and partly unregistered being part of Mount Friendship in the parish of St. Andrew as appears on Survey Department pre-checked plan bearing Examination Number 137887 prepared by V.D. Prendergast, Commissioned Land Surveyor”. Secondly, the claimant claims “specific performance of an Agreement for sale of the said parcels of land, the terms of which have been incorporated in Lease dated April 8, 1985, between the (plaintiff) and the defendant”. The claimant also claims, in the alternative, damages for breach of the “the said agreement” and “damages for fraudulent and/or negligent misrepresentation” in relation to the aforesaid agreement entered into between the claimant and Raphael Walker on the 18th day of April 1985.

THE CLAIMANT'S CASE

2 The claimant's case is largely set out in the Witness statement of Monica Cools-Lartique, the managing director of the claimant. She averred that in or around July 1984 she entered into discussions with Mr. Raphael Constantine Walker, (“Walker”) now deceased, with a view to acquiring property at Mount Friendship in the Parish of St Andrew. The purpose of the intended acquisition was to secure land for carrying on the business of farming. She alleges that Walker advised her that the title to the “family owned land” was “not in order” but that he would be willing to enter into a lease agreement with an option to purchase. It is common ground that the property in question consisted of land which was partly registered under the Registration of Titles Act and land partly not so registered. The registered portion was in the name of a certain Mr. William Carpenter from whom Walker's father had allegedly purchased it early in the last century. It also appears from the evidence that I accept that Mrs. Gloria Clare Cumper, the daughter of Mr. William Carpenter, was the administratrix for her father's estate, which included the registered portion of land claimed by Walker and his family.

3 Ultimately, it was agreed that the claimant would take a lease of the lands in question. The lease contained an option to purchase the lands in question, which option was granted in consideration of a separate payment of one hundred dollars ($100.00). According to Mrs. Cools-Lartique, the claimant agreed to the proposal for a lease, on the basis that the lease would be for a minimum of ten (10) years. Walker had advised the claimant, through Mrs. Cools-Lartique, that the subject property in question had been owned by his deceased grandfather, and that he, Walker, was one of the beneficiaries, all of whom had agreed to sign powers of attorney authorizing the transfer of the entire property, save and except for a part of the unregistered portion occupied by Walker's mother, and in which she was to retain a life interest.

4 It is common ground that a lease was eventually prepared and executed on the 18th of April, 1985. So far as is material, the lease provided that in return for a lease payment of two thousand four hundred dollars ($2,400.00) per annum payable at the rate of two hundred dollars ($200.00) monthly, the claimant would lease “all that parcel of land together comprising 14 acres and 20.3 perches, more or less, being the land partly comprised in Certificate of Title entered at Volume 963 Folio 645 of the Register Book of Titles and partly unregistered, being part of Mount Friendship in the Parish of St. Andrew…. SAVE AND EXCEPT that portion of land containing approximately two (2) acres more or less, on which the dwelling house presently occupied by Mrs. Elfreda Walker is situate and which forms part of the unregistered land …. Butting and bounded to the North on the Parochial Road from Mount Friendship to Belmore, to the South on the gully which passes through the unregistered portion of the land, and to the East of lands comprised in Certificate of Title registered at Volume 356 Folio 76”. The lease included as an attachment, a draft agreement for sale in respect of the property, the subject of the lease.

5 By virtue of the provisions of section 5(3) of the said lease, the claimant was granted an Option to Purchase the property, in consideration of the payment of one hundred dollars ($100.00). This section which is central to the issues to be determined herein is set out in full below.

“That in consideration of the sum of ONE HUNDRED DOLLARS now paid by the tenant the landlord hereby gives the Tenant an Option to purchase the fee simple in possession of the premises (and in the event of the Option being exercised by the tenant the said One Hundred Dollars paid for same shall form part of and be deducted from the Purchase Money) subject to the Restrictive Covenants, Easements and Outgoings as to users endorsed in the Certificate if Title for the sum of $7,000.00 per acre the actual acreage to be determined by a commissioned Land Surveyor acceptable to both at the Tenant's sole expense. This option shall be exercised by the tenant up to ninety (90) days after the anniversary of the third year of the Lease or within ninety (90) days of notice served by the Landlord stating that a title registered in the name of the Landlord has been obtained, whichever is later. Notice in writing of the tenant's intention to exercise this Option shall be sent to the Landlord by prepaid registered letter post addressed to the Landlord's Attorneys-at-Law, Messrs. Myers, Fletcher & Gordon, Manton & Hart 21 East Street, Kingston, or handed to them at any time before the expiration of the option period and shall be sufficient evidence of the tenant's intention to exercise the Option. PROVIDED HOWEVER that such notice of intention shall be accompanied by a payment of a sum equivalent to twenty percent (20%) of the Purchase money and on the exercise of the Option and Payment of sum equivalent to 20% of the Purchase of money the premises shall be sold to the Tenant on the terms set out in the Third Schedule hereto.”

6 The factual evidence in this matter is to be found in the witness statements of Mrs. Cools Lartique, for the claimant, and Walker (the defendant,) and his widow, Laura Walker representing his estate, as well as the various pieces of correspondence from and among the attorneys at law who, at various times, represented the parties. There is considerable agreement on the facts of this case as given in the evidence. Walker, who has of course died in the interim, did produce a witness statement for the defendant. Although the witness statement of Laura Walker does reveal that she may have had some limited knowledge of the history of the properties in question, it does not, in my view, provide a great deal of assistance as to the specific factual developments of this particular transaction. In addition as I observe below, there are serious issues of weight, if not admissibility, in relation to Mrs. Walker's evidence. There are some conflicts between the evidence of Mrs. Cools Lartique and that contained in the witness statement of Walker. I have to say at this point, that having observed the witnesses Cools Lartique and Laura Walker under cross examination, where there are conflicts between the evidence of the Walkers and that of Mrs. Cools Lartique, I believe, on a balance of probabilities that the latter is to be preferred.

7 The evidence led by the parties indicates that while the Lease with option to purchase was signed by the parties, the agreement for sale which was appended as an exhibit was never signed, save by the claimant at the time it purported to exercise the option in 2000. It is also common ground that the claimant did not exercise the option to purchase within “ninety days of the third anniversary of the lease”. This would have required that there was an exercise on or before the 18th July 1988. Nor did it exercise the option “within ninety days of notice served by the landlord that a registered title in the name of the landlord had been obtained”, for the compelling reason that the landlord never advised that a registered title in his name had been obtained. As Mrs. Cools-Lartique for the claimant stated in her witness statement and is apparent from the section cited above, the option clause also provided as follows:

Notice in writing of the tenant's intention to exercise the Option shall be sent to the Landlord by prepaid registered letter post addressed to the Landlord's Attorneys-at-Law, Messrs. Myers, Fletcher & Gordon, Manton & Hart 21 East Street, Kingston, or handed to them at any time before the expiration of the option period and...