Singh v Lall

• Jurisdiction: Guyana
• Judge: Crane, J.A.,George, J.A.,HAYNES, C.
• Judgment Date: 13 December 1977
• Neutral Citation: GY 1977 CA 27
• Docket Number: Civil Appeal No. 42 of 1974
• Court: Court of Appeal (Guyana)
• Date: 13 December 1977

Court of Appeal

Haynes, C.; Crane, J.A.; George, J.A.

Civil Appeal No. 42 of 1974

Singh

and

Lall

Appearances:

C.A.F. Hughes for the appellant.

G.S. Gillette, S.C. for the respondent.

Practice and procedure - Rent Assessment Dispute

Crane, J.A.

1 In the Official Gazette of December 14, 1963, there appeared advertisement No. 226. It concerned a conveyance by way of second mortgage on certain immovable property belonging to the defendant/respondent expressed to be in favour of the Bank of Nova Scotia as mortgagee.

2 The plaintiff/appellant read the advertisement and he became fearful lest the respondent, his judgment debtor, might imperil his chance of recovering his debt. So on 27th December, 1968, the appellant issued notice of opposition to the conveyance by way of mortgage, following it up three days later with his grounds and reasons for opposition.

3 The indebtedness alleged is, firstly, in the sum of $32,878.49 for rent and charges for 425 acres of ricelands situate at plantations Perth, Eliza, Exmouth and Paradise on the Essequibo Coast; and the periods in respect of which the above sum is alleged to be “due, owing and payable” are from 1st May, 1964 – 30th April, 1965; 1s t May, 1965 – 30th April, 1966; 1st may, 1966 – 30th April, 1967; and frown 1st May, 1967 – 30th April 1968; and secondly, in the sum of $12,682.00 on a similar cause of action for the period 1st May, 1968 – 30th April, 1969, in respect of the same ricelands.

4 Having considered he was entitled to a declaration of indebtedness in respect of the abovementioned sums, and having warned the respondent of his incompetence to pass and execute the second mortgage unless the above sums of money were paid, the appellant prayed in his statement of claim for the following reliefs:

• (1) a declaration that the sums of $32,878.49 and $12,682.00 (afterwards reduced in amended particulars to $28,075.76 and $8,886.11, respectively) are “due, owing and payable… for rent and charges for ricelands at plantations Perth, Eliza, Exmouth and Plymouth;”

• (2) a further declaration that his opposition to the conveyance by way of second mortgage was just, legal and well-founded;

• (3) an injunction restraining the passing of the second mortgage.

5 Apart from admitting receipt of the appellant's notice of opposition, and the fact he was the appellant's judgment-debtor in the sum of $25,979.50 in the Essequibo Magistrate's Court on June 14, 1967, and that he has appealed from this judgment to the Full Court of the High Court, the respondent has made no other concessions or admissions save reference to a written agreement of tenancy, dated 27th April, 1960. The respondent says between himself and the appellant there now exists an agreement where under the latter rented him 60 acres of ricelands, “more or less,” at plantations Perth, Exmouth, Plymouth and S ¹/₂ Dunkeld at $6.00 per acre for a period of 12 years. These lands, however, were not surveyed at the time of the agreement, although each party undertook to do so after signing; and there was included a stipulation that occupation should be rent-free for the first year. The respondent also referred to a collateral oral agreement under which the appellant persuaded him to give up 185 acres of S ¹/₂ Dunkeld in exchange for frontlands at Perth, Eliza and Exmouth and, later on, the frontlands at Perth and Eliza were exchanged for certain parts of Pln. Bounty Hall. The appellant, however, he complained, has consistently refused to honour the exchange by giving up the lands at Bounty Ball. Pending a survey, which was a term of their contract, he was charged rental on 425 acres, but such charges were incorrect both in respect of area and quantum per acre. He further complained the appellant is in breach of contract in that he ties persistently neglected and refused to join in the agreed survey. This necessitated a survey by him from which, he camp to learn the true acreage to be 337.90 acres on which rental of $6.00 plus drainage and irrigation rates are leviable; but not estate charges.

6 Thus, both acreage and quantum of rent charged per acre were in dispute in the High Court between the parties; and with regard to the amount of $12,682.00, also alleged to be “due, owing and payable … for rent and charges for ricelands,” the respondent insisted that as this amount was not due until December 31, 1968, i.e., not until after the date when the notice of opposition was issued, no valid cause of action was available to the appellant on 30th December, 1968, the date when grounds of opposition were filed and served on the respondent.

7 After computing rent in respect of the same period on 337.90 acres at the rate of $6.00 plus drainage and irrigation charges, and setting off a Rent Assessment Committee award of $10,750 compensation in respect of breaches of the rules of good estate management, the respondent counter-claimed for $61.16 on an account stated. In addition, he prayed for a declaration that the agreement of 27th April, 1960, is good, valid and binding and that the appellant's entitlement is to charge for rent, not on 425 acres, but only on 337.90 acres at the rate of $6.00 per acre plus drainage and irrigation charges for each year in question.

8 At the trial, it was revealed there was indeed a claim by the appellant in the, Essequibo Magistrate's Court where the appellant had elected to proceed. There, judgment was given in respect of rent due, owing and payable for the years 1965–1966 detailed respectively as follows: $9,596.50 + $10,145.25 + $11,781.75 = $31,523.50, less $5,544.00 paid on account = $25,979.50, and that this judgment is now under appeal by the respondent to the Full Court of the High Court. I have already indicated that the amount of $25,979.50 was part of the claim for $32,878.49 for which the respondent has denied indebtedness to the appellant; albeit he admitted bath the judgment against him in respect of $25,979.50, and the fact that there is now pending an appeal to the Full Court against that judgment. There is also an amount of $4,850.47, shown in amended particulars of the appellant as balance due for rent for the period May 1, 1967, to April 30, 1968. There is, however, no claim pending for this mount either in the high Court or the Magistrate's Court.

9 This being an action for a declaration in which it is evident that issues before the trial judge had already been adjudicated upon in the Essequibo Magisterial District, and that an appeal is pending on them to vie Full Court of the High Court, the point for consideration is clearly one of jurisdiction, viz., whether those matters from which the issues arose were expressly or by necessary implication exclusively in the original jurisdiction of the High Court. In considering them the learned judge accepted the submission on behalf of the respondent that because the maxim ‘transit in rem judicatam’ applied, the Court lacked jurisdiction to deal with the claim. For myself, I cannot doubt the applicability of that maxim in the respect that the cause of action for rent due for 1964–1966 having been crystallised into a judgment for $25,979.50 ‘rent due’, can no longer be sued for as such. But I think the matter with which the trial judge ought primarily to have concerned himself was whether the appellant, having originally elected to sue in the Magistrate's Court, there was jurisdiction in the High Court to “hear and determine” those very issues.

10 Counsel for the appellant has made two observations on which he has formulated four propositions. The first of them is: there was an unsatisfied judgment at the time when notice of opposition was filed viz., the sun of $25,979.50 in the form of a liquid amount for which the magistrate in Essequibo gave judgment. The mere fact, says counsel that an appeal from that judgment is pending cannot alter its nature or character as a liquid sum; execution on the judgment is merely suspended. The second is, that although the trial judge has made no finding that the rent for the period 1st May, 1967 – 30th April, 1968, is $12,682.00 (subsequently reduced to $8,886.11), there was sufficient evidence before him on which he could have calculated the correct acreage of the lands, and so the exact sum that was due, owing and payable. As a matter of law, it was obligatory on him to have made the calculation.

11 In reply to the respondent's contention that the claim for $12,682.00 cannot be said to be due, owing and payable since that was not in fact the case at the time of the filing of the grounds of opposition, counsel prayed in aid the case of Gaskin v. Francisco, (1907) S.C.L.J. as authority for the proposition that a cause of action may well accrue even after notice of opposition has been entered, and even though an obligation has not arisen. In such circumstances, the High Court, he says, could have properly made a declaration that opposition to the passing of transport or mortgage was just, legal and well-founded. Counsel then formulated on the above premises the following for the consideration of the Court:

• (1) Any person who has a claim of a liquid character against another can oppose a conveyance or mortgage that has been advertised.

• (2) Where an opposition is based on a money claim, the obtaining of a judgment for the money claim is not a necessary prerequisite to the Court's grant of a declaration that the opposition is just, legal and well-founded.

• (3) In view of the fact that the Court found that the plaintiff/appellant had a judgment against the defendant/respondent for $25,979.50 in respect of the years 1964–1966, the Court should have made a declaration that this sum was owing as rent for the said period.

• (4) There was enough evidence on which a finding could have been made with regard to rent due for 1st May, 1968 – 30th April, 1969.

12 It will not, however, be necessary for me to deal in extenso...