Bacchus v Barrat et Al
| Jurisdiction | Guyana |
| Judge | Mitchell, J. |
| Judgment Date | 27 February 1975 |
| Neutral Citation | GY 1975 HC 11 |
| Docket Number | 3643 of 1972 |
| Court | High Court (Guyana) |
| Date | 27 February 1975 |
High Court
Mitchell, J.
3643 of 1972
B.O. Adams, S.C., for plaintiff.
M.G. Fitzpatrick for defendants.
Real Property - Landlord and tenant — Tenancy — Option to purchase
This is an action in opposition to the passing of a certain conveyance by way of transport advertised in the Official Gazette of 2nd December, 1972, and numbered 41 (forty-one) therein for the county of Demerara.
The reasons for the opposition to the passing of the transport are to the effect that by a written agreement dated 3rd day of April, 1962, and made between Rudolph Barrat on his own behalf and as attorney for his deceased father James Barrat, and the second-named, third-named and fourth-named defendants on the one hand and the plaintiff Sheriff Bacchus and one Mohamed Yassin Haniff on the other, Sheriff Bacchus and Mohamed Yassin Haniff were made tenants of the premises which were sought to be transported, namely:
“lots numbered 32 and 33 in that part of Georgetown called Robbstown, in the county of Demerara, in the Republic of Guyana”
at a rental of $150.00 per month with the “first option” to purchase same in the event the said James Barrat decided to sell same. The rights of the said Mohamed Yassin Haniff under the said agreement were with the consent of the said James Barrat, deceased, and the other defendants transferred to the plaintiff solely.
In breach of the said agreement neither of the defendants nor the said James Barrat, deceased, offered the said property for sale to the plaintiff, although the plaintiff was at all material times and is still ready, willing and able to purchase same.
Relying on the said written agreement the plaintiff with the consent of his landlord James Barrat erected a building on the said premises and has carried on business on these premises.
In the circumstances, the plaintiff asserts, it is not competent for the defendants to seek to transport the said property or any part thereof without giving the plaintiff the “first option” to purchase same.
Accordingly, the plaintiff claims:
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(a) A declaration that the plaintiff's opposition dated the 15th December, 1972, to the said conveyance by way of transport is just, legal and well-founded;
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(b) An injunction restraining the defendants, their servants and/or agents from passing the said transport advertised in the Official Gazette of 2nd December, 1972, and numbered 41 therein for the County of Demerara, without first offering the plaintiff the option to purchase the aforesaid property;
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(c) A declaration that the plaintiff is entitled to the first option to purchase the said property.
In their statement of defence, the defendants mentioned that on 3rd April, 1962, one M.Y. Haniff, the plaintiff Sheriff Bacchus and the first-named defendant executed a certain document, wherein they agreed to certain terms. At that time, the property concerning which the plaintiff has entered opposition to the passing of transport was owned by the four defendants and their father, James Barrat, in equal and undivided shares.
The defendants stated that from April, 1962, the plaintiff and the said M.Y. Haniff occupied a parcel of land situate on the southern portion of the property in question as tenants from month to month and erected a building which was used as a shop on the land. In or around 1970, the plaintiff and his wife became the sole monthly tenants of the said premises without any reservation of any right of option or pre-emption in respect of the premises or any part thereof.
James Barrat, the father of the defendants and owner of an undivided fifth part or share of the property died in 1966 and his interest in the said property was transported by his executors, pursuant to his will on 12th April, 1967, to the four defendants in undivided shares free of any lease, tenancy, option or right of pre-emption.
On 28th December, 1971, the plaintiff's landlord served on himself and his wife a written notice to quit the premises let by them on 1st February, 1972.
The defendants contend that:
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(a) the document dated 3rd April, 1962, did not constitute a valid lease as the premises to be demised were not therein described at all or sufficiently;
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(b) that the said document and more particularly paragraph (9) thereof did not create an option or right of pre-emption being incomplete, vague and uncertain in its terms;
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(c) even if the words of the said document were sufficient to create an option or right of pre-emption, it was rendered ineffective and unenforceable in that it offended the rule against perpetuities;
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(d) even if an option or right or pre-emption in favour of the plaintiff still existed in April, 1967, concerning any part of the said property (which is denied) it was extinguished by the manner and form of the transmission of the interest of James Barrat, deceased, in the property of the defendant;
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(e) that the plaintiff's contractual tenancy having been determined by the transport of 12th April, 1967, or alternatively, by the notice to quit, even if any right of option or pre-emption still existed at the time of such determination (which is denied) it was extinguished by the expiration of the contractual tenancy and was not preserved by the provisions of the Rent Control Ordinance, the tenants not being in occupation of the premises at the material time and the said option or right of pre-emption being collateral to the contract of tenancy.
The defendants asserted that the plaintiff's action should be dismissed as the plaintiff's Statement of Claim disclosed no cause of action.
The plaintiff, Sheriff Bacchus, in his evidence disclosed that James Barrat and the four defendants were owners by transport of lots 32 and 33 Robbstown by transport No. 803 of 1956. James Barrat died in April, 1966. On 16th February, 1962, the buildings on the said lots 32 and 33 Robbstown, at Regent and Hincks Streets, were destroyed by fire. At that time, he was the tenant of James Barrat and the defendants of a portion of the building on lot 33.
Subsequent to the fire of 1962, he spoke to James Barrat and he had told him that he would rent lot 33 to him and that he could erect a building there. James Barrat rented him the said lot 33 (thirty-three) at a rental of $150.00 (One Hundred and Fifty Dollars) per month. According to the plaintiff, James Barrat further told him that if he (James Barrat) wanted to sell the land he would the give him the “first option of buying the land at lot 33 at a good price.” James Barrat had, also, told him that Rudolph Barrat was the attorney for himself and all the children and that he (the plaintiff) “must sign the agreement with him and he would look after all business transactions.”
The document tendered and marked Exhibit ‘C’ was signed by Rudolph Barrat, on behalf of himself and the others. He, the plaintiff, and his partner Haniff, his wife's father also signed.
The document dated 3rd April, 1962, written in ink states as follows:
“I hereby agree to the following:
(a) Rent to be $150.00 per month and to be paid in advance;
(b) No fire or cooking to be used on the premises;
(c) The tenant cannot sell or rent the premises to any person without the approval of the landlord and no subletting of the premises;
(d) There are to be no idlers around the premises;
(e) What line of goods Messrs. James Barrat has and is selling cannot be sold by Messrs. Sheriff and Bacchus unless purchased from the above firm at 50% on landed cost;
(f) The tenant must use the W.C. (toilet) in the yard;
(g) If Mr. James Barrat wants to sell the land and building Messrs. Haniff and Bacchus will be given first option in purchasing same;
(h) On the other hand if Mr. James Barratt wants to erect a building around the premises Messrs. Sheriff and Bacchus will be given a part of the said building which will be erected.”
It is to be appreciated that for the purposes of this action paragraph (g) is the most important and significant paragraph.
It is perhaps appropriate at this juncture to observe that where parties have shown an intention to make their contract in writing, the law infers that in the interests of certainty, they have agreed that the writing is to be the only material from which their intention is to be found, and as a general rule, if a contract is established and once it is established and reduced to writing, the writing is the only material from which the intention of the parties is to be inferred and evidence of earlier discussions and negotiations and other extrinsic evidence is inadmissible to contradict, vary, add or to subtract from the terms of the writing.
The plaintiff paid the rent of $150.00 in terms of the agreement and received a receipt therefor signed by Rudolph Barratt.
James Barratt made application, dated 28th February, 1962, to the Mayor and Town Council to erect a temporary structure to be of wood. He stated quite clearly in that application, tendered as Exhibit ‘G’, that the purpose of that application was to give his tenants, Haniff and Bacchus, accommodation, as the premises they occupied were destroyed by the then recent fire.
It is to be noted that the application was not made by the plaintiff himself, but by James Barratt. According to the plaintiff, Rudolph Barratt gave him permission to build and occupy lot 33 and he erected a shop, fittings, shelves, counters, costing him about $10,000.00. He sold haberdashery and hardware in one section and there was a parlour in the other section. If he did not build there would have then been no business carried on by him on that site and he was a businessman. James Barratt erected a building on lot 32.
After the death of James Barratt he had spoken to Rudolph Barratt on numerous occasions and Rudolph Barratt had told him that the...
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