McKenzie v Barrett
| Jurisdiction | Jamaica |
| Judge | Wright, J.A. |
| Judgment Date | 02 May 1994 |
| Neutral Citation | JM 1994 CA 21 |
| Docket Number | Civil Appeal No. 44 of 1992 |
| Court | Court of Appeal (Jamaica) |
| Date | 02 May 1994 |
Court of Appeal
Wright, J.A.
Wolfe, J.A.
Patterson, J.A. (Ag.)
Civil Appeal No. 44 of 1992
Hilary Phillips and Sharon Service, instructed by Perkins, Grant, Stewart, Phillips & Company, for the appellant
Earl DeLisser and H.S. Dale, instructed by O.G. Dale & Company, for the respondent
Real property - Contract for sale of land — Whether the trial judge was correct in his findings on circumstances where the evidence or pleadings did not support the conclusion — Whether the trial judge found that no contract existed and was in error when he sought to ascertain whether the parties ever reached an agreement — Finding of the court that written materials provided evidence of the existence of a contract between the appellant and the respondent, the absent date being in the circumstances immaterial — Evidence of the subject-matter and the price — Finding that new negotiations which were not communicated to the respondent cannot affect a contract already concluded — Appeal dismissed.
This is an appeal against the judgment of Cooke, J. delivered on May 15, 1992, whereby it was ordered:
“(i) The land delineated on the sketch diagram part of exhibit 3 with the words “Miss A.M. Barrett and her sister Mrs. G. Bygrave,' 15 acres be surveyed. The cost of this survey is to be shared equally between the plaintiff and the defendant.
(ii) There will be specific performance of the contract of sale between the plaintiff and the defendant as regards the land to be surveyed in (1), supra.
(iii) The sum of $20,000.00 will go to the purchase price of the said land.
(iv) The plaintiff will pay to the defendant the sum of $12,974.11, the balance of the purchase price.
(v) The defendant is restrained by himself, his servants and/or agents or anyone on his behalf from entering the land which is to be surveyed in (1) supra.
(vi) There will costs to the plaintiff to be agreed or taxed.”
In her statement of claim the respondent had sought the following remedies:
“(1) An order for the Specific performance of the Agreement for the sale and purchase of 15 acres of land and premises situate at Hart Hill, in the Parish of Portland.
(2) A declaration that the plaintiff is the beneficial owner of the aforesaid premises;
(3) An order that the said land and premises be surveyed;
(4) A declaration that the plaintiff is entitled to payment by the defendant of the sum of $20,149.85;
(5) A declaration that the plaintiff is entitled to set off the amount of $20,149.85 against the balance of the purchase price of the land hereinbefore described;
(6) An Injunction restraining the defendant, his servants and/or agents, or anyone on his behalf, from entering upon the land the subject herein;”
It is an unfortunate case for more reasons than one. Foremost among those reasons is the fact that the parties now pitted against each other in legal combat once enjoyed an admirable relationship, the appellant being the pastor and spiritual guide of the respondent, a much valued member of the pastor's flock. And it is all the more regrettable because available correspondence in the appellant's handwriting makes it abundantly clear that there was an honest intention on his part to let the respondent have the interest to secure which she now invokes the aid of the court. But the problem is compounded by the fact that the search for a solution to the conflict had to be undertaken without the participation of the appellant who by the time of the trial was no longer the respondent's pastor. His non-attendance at the trial is starkly recorded — no reasons were assigned. However, it is noted that in 1981 the appellant — by then approaching his eighties — resigned as pastor and the respondent's disagreement with his nominee as succeeding pastor on the basis of the latter's lack of qualification caused the relationship to sour so much so that the successor who was accepted over the respondent's objection vowed that the respondent would not get the land — that is the respondent's testimony. It cannot escape notice, too, that there are certain allegations in the defence, which are so alien to the clearly expressed intention of the appellant, which it would have been virtually impossible to support without recourse to perjury.
Inasmuch as the appellant adduced no evidence the case fell to be resolved on the evidence of the respondent and two witnesses, Winston McCleary and Lesford Walker, together with such documentary evidence as was admitted during the cross-examination of the respondent. The two witnesses called in support of the respondent were to be served the purpose of confirming the existence of a contract of sale of the lands in question to the respondent. Their evidence was that during the period 1973 to 1975 they had on separate dates approached the appellant with a view to purchasing lots of the property at Hart Hill, which was being subdivided. However, when each of these gentlemen indicated to the appellant the section of the land he wished to purchase the appellant told him that that section had already been sold to the respondent. But the question as to whether there was in fact a contract of sale was not, and could not be resolved on that evidence. The answer to that question and to be found in the evidence of the respondent and such documentary evidence as there was before the court.
The respondent testified that she was the principal of the Hart Hall Primary School, a Grade 3 school, until 1971 when she became principal of the Buff Bay Primary School, Grade 1 school. The award of the National Honour of the Order of Distinction and her appointment as a Justice of the Peace recognize her involvement in social development. She is an industrious person who, in addition to her responsibilities in the classroom at Hart Hall, engaged in pig-rearing as well. She attracted the assistance of in the appellant in her search for land in the Buff Bay area to continue her pig rearing and so prevent her daily commuting to Hart Hill for that purpose. At the end of a fruitless search, the appellant's wife reminded him of the offer of one Mrs. Andronetta Grant of Hart Hill to sell him lands on which he could erect an orphanage. Promptly the next day he took the respondent to see Mrs. Grant who showed them the land consisting of 40 acres. Because of her pressing need and the appellant's willingness to assist her, he agreed to purchase the land and agreed also to sell her 15 acres of the land at a special price of $2,500.00 per acre. A property road divided the land and she indicated her wish to be on the left side of the road. The appellant walked out an area and said she could go into possession and erect her pens until the land was surveyed and transferred into her name. She indicated the need for documentation whereupon he began to write on a paper stating as a Justice of the Peace she could sign it. She declined and said a lawyer should be consulted.
The transaction began around October 1971 and between then and sometime in 1972 the appellant took her to see one Mr. Poulle, an attorney, who the appellant said was looking about the registration of the land. By that time she was occupying a portion of the land while the appellant occupied the other portion. The appellant requested her to supervise the cultivation of his portion and also to take care of Mrs. Grant. She had constructed three pig pens and laid out three cattle pastures to take care of her 150 pigs and 14 heads of cattle. The appellant's portion was fenced. He was selling portions of the land regarding which she made his agent who decided on the intended purchasers who were then sent on to Mr. Grossett, the appellant's lawyer. It was in this context that in August 1977 the appellant sent her a list of person to be sold land at Hart Hill as well as the acreages together with a sketch of the outlay of the lots. The two pages of paper were admitted in evidence as Exhibit 3. The sketch shows the Buff Bay to Annotto Bay main road running across the front of the property. Across the back of the property runs the Mount Vernon to Windsor Castle parish council road and beyond that the land is steep dropping down to a river. Down the middle of the property there is indicated a 30ft wide road linking the two roads. On the extreme left of the land five lots are indicated with the names of the allottees and between those lots and the property road with the exception of a lot indicated to be 140' x 175' with “2 acre Mrs. Barrett” written thereon the land stretching from the main road to the parish council road has written thereon “Mrs. Barrett and her sister Mrs. G. Bygrave 15 acres”. A frontage of 350 feet is also shown. Six other lots are indicated on the right of the property road. The list of names which the acreages is as follows:
“Hart Hill 43 3/4 acres approx.
People to be sold land:
Acres
10 Miss A.M. Barrett, J.P., Buff Bay
5 Mrs. Grace Bygrave -do-
1 Mr. Rupert Gordon -do-
4 Rev. Basil K. Thompson, 27 Butts Ave. Kingston
4 Mr. Clayton Laing, Kingston
1 Mrs. Gloria Edwards
1 Miss Watts
2 Mr. Glen Gordon
3 Mr. Eustace Cowan, Hart Hill
1 Mrs. Barbara Robinson
2 Mrs. Veronica Carby
1 Mrs. Ivy Banton Thompson, Kingston
10 Miss Leila Jumpp (for me)
N.B. and if possible Mr. Bonitio (son of Miss Lester Secretary of Tranquility Church) 2 acre
Note: Priorities re the use of the money from sales:
(a) provision for paying off the mortgage
(b) build house of five apartments (to start) at Hart Hill for me
(c) build house of four apartments at Mr. Bently Jumpp's place White River for Miss Jumpp (Her mother to live in)
(d) Build road.
These may be started together.
A.L. McKenzie
5/8/77
Buff Bay.”
Mr. Pouille died between 1981 and 1982 and when the respondent expressed anxiety about the settlement of the transaction the appellant took her to Mr. Grossett whom...
To continue reading
Request your trial