Sumwaru v Khan
| Jurisdiction | Guyana |
| Judge | George C.J. |
| Judgment Date | 20 April 1982 |
| Neutral Citation | GY 1982 CA 11 |
| Docket Number | No. 14 of 1979 |
| Court | Court of Appeal (Guyana) |
| Date | 20 April 1982 |
Court of Appeal
George, C.J.; Fung-a-Fatt; Kennard, J.A..
No. 14 of 1979
Contract - Specific performance — Appeal against decision of trial judge granting an award of specific performance to respondent of an agreement to transfer title to a piece of land — Appellants in occupation of premises since 1962 — Conclusion of trial judge based on the evidence was unwarranted — Land to be free from all encumbrances, undertaking to give possession free from all hindrances — No liability by third parties to the respondent appeal dismissed and award of damages substituted.
Rex McKay, S.C., O.M. Valz with him for appellant/defendant and third-party appellant.
B.O. Adams, S.C., N.O. Poonai with him for respondent/plaintiff.
The above appeals arise out of the same action (No. 1567 of 1975 Demerara) in which the appellant Sumwaru was defendant and the appellant Pretam Lall was one of two third parties. They were argued together. Originally there were two actions which had been consolidated; the second being an action by Sumwaru against the appellant Pretam Lall and his brother, for trespass, inter alia to lot 1 Alliance. However, before the trial commenced counsel on behalf of Sumwaru informed the trial judge that he did not intend to pursue the latter case. It was accordingly dismissed.
In action No. 1567 of 1975 the respondent Jameran Khan had sought an order for specific performance of an agreement dated the 4th December, 1974, under which she alleged that the appellant Sumwaru had agreed to transfer to her, his right title and interest in plot 1 Alliance, Cane Grove, for a sum of $9,000.00. This sum had been paid on the signing of the agreement. In the alternative she had claimed a recession of that agreement and the return to her of the purchase price. The substantial defence to that action was that the agreement did not fully reflect the prior oral agreement between the respondent's agent, merely her husband, and the appellant. It was stated that in their discussions it had been agreed that the respondent would grant the appellant a grace period of three (3) years within which to deliver up possession and to transfer his interest. The reason, it was averred, for this concession on the part of the respondent's agent was that it was known to all the parties that Sumwaru's sons Kadar and Pretam Lall were in unlawful occupation of the land. It was also pleaded that both the respondent and her husband had known at all material times that he had instituted proceedings (action No. 3274 of 1974 Demerara) against his two sons for trespass. Sumwaru also pleaded his willingness to take the necessary steps to transfer his rights title and interest in the land but that as to possession this would have to await the outcome of action No. 3274 of 1974.
The appellant, Sumwaru, was granted leave to serve and file third party proceedings against his sons but although they entered appearance to the notice they failed to serve and file statements of defence. Despite this omission, however, the trial judge, somewhat strangely, allowed them to lead a defence. This came from the appellant Pretam Lall and was to the effect that he had been in undisturbed occupation of the land since the year 1962.
Having regard to the total evidence before him, the learned trial judge not unexpectedly found for the validity of the agreement and he made an order for specific performance against the appellant Sumwaru, In so doing he held that the conditions relating to the sale were governed by s. 10(1) (a) of the Acquisition of Lands (Land Settlement) Act, Cap. 62:06. But as regards the third parties despite permitting them to lead a defence, he made no finding with regard their claim that Pretam Lall had been in occupation of the lot since 1962. But surprisingly he ordered that the damages which he awarded in favour of the respondent should be paid by the appellant and the third parties jointly and severally. Another peculiarity concerns the appeals now before us. Despite the fact that the interests of the appellants as defendant and the third parties in the action should be and in fact were in conflict, they have been represented before us by the same attorney-at-law.
Having made these observations I now turn to the grounds of appeal. They are as follows:
- If the Acquisition of Land (Land Settlement) Act, Cap. 62:06 applied then the agreement of sale was void and of no effect unless the Minister's consent, concerning which no evidence was led, was obtained. 2. There was no evidence that the appellant Sumwaru had agreed to give vacant possession to the respondent. 3. The measure of damages had been wrongly assessed in that there was no evidence that the respondent had disclosed the purpose for which the land had been acquired and no special circumstances to justify any such imputation. 4. It was not competent for the learned trial judge to award damages against the third parties. 5. It was not competent for the learned trial judge to award as special damages a sum in excess of that claimed by the respondent in her statement of claim. 6. The learned trial judge misdirected himself on the law relating to specific performance.
As regards the first ground if indeed the Acquisition (Land Settlement) Act, is applicable, then s. 10(1) (a) clearly makes any transfer, sub-letting, or encumbrance void and of no effect without the Minister's consent. The provision reads as follows:
“(1) Where any land acquired under the Principal Act (the Acquisition of Land for Public Purposes Act, Cap. 62:06) and this Act is sold or leased to any person for the purposes of any land settlement scheme –
(a) the purchaser or lessor as the case may be, shall not sell, lease, let, sub-let, charge or incumber such land without the consent of the Minister, and any sale, lease, letting, sub-letting, charge or incumbrance in contravention of the provisions of this section be void and of no effect.”
But the crucial question is whether the trial judge was justified in so holding. Before examining the evidence it may be useful to make some reference to the two main categories of lands owned by the State. Broadly speaking these may be divided into two types, namely, Government lands and State lands. As regards the former in addition to those State lands which the President deems expedient to convert to Government lands (see s. 4 of the State Lands Act, Cap. 62:01), such lands would include any land which has been declared to be a public work under the Acquisition of Lands for Public Purposes Act, Cap. 62:05, as well as any land settlement scheme which has been fired to be a public work under s. 3 of the Acquisition of Lands) ( Land Settlement) Act, Cap, 62:06. In general State lands comprise all other lands which are owned by the State but which are not Government lands.
Under s. 10 of the Lands Department Act Government lands can only be rented or sold with the sanction of the President on such terms and conditions as may be determined by him; and as I have already pointed out a purchaser or lessee of Government lands which have become such by the combined effect of the two Land Acquisition Acts, is precluded from selling or sub-leasing his holding except with the consent of the authorised Minister. (See s. 10 (1) (a) above).
As regards State lands, provision is made for alienation by means of a grant of full and absolute title as well as for the creation of limited interests in the form of leases, licences, or permissions (see regs. 3 et seq of the State Lands Regulations, Cap, 62:01). Provision is also made under reg. 7 to permit an applicant for such a grant, lease, licence or permission to occupy the land applied for, pending the consideration of his application by the proper authority. A lease, licence or permission in respect of any such land is transferable and regs. 12 to 15 set out the procedure for the transfer of any such interest.
I now return to the evidence, such as there was, concerning the nature of the appellant's holding. It came from Kenneth Hamer, the clerk in charge of the Cane Grove Land Development Scheme. He had an office at Cane Grove in which was kept a register concerning the tenancies in the Scheme. He confirmed that the appellant is the registered owner of plot 1 Alliance. He also stated that in the afternoon of the 4th December, 1974, at the appellant Sumwaru's request, he had given him an application form for the transfer of the land. The respondent's husband was present and Sumwaru had told him that he desired to transfer his interest to her. The clerk's functions included the recommendation of transfers of land in the Scheme, but he would only do so after being satisfied that all the indebtedness of the transferor to the Scheme, whether in respect of the plot to be transferred or otherwise had been made good. He, however, said that very few plot-holders in the Scheme had been issued with leases, and later that “very few (of them) owned by lease.” In his further evidence he said that the final decision as regards an application for the transfer of a plot rested with the Ministry, but that from the year 1974, to the middle of 1976 no transfers had been approved by the Ministry. He could not remember if any transfers had been approved after the middle of 1976.
With respect, in the state of the evidence before myself unable to understand how the learned trial judge could have come to the conclusion that the Scheme had been declared a public work under s. 3 for the purposes of the Acquisition of Land for Public Purposes Act, Cap, 62:05. For it is only when a land settlement scheme has been so declared that s. 10 can become applicable. There is not a scintilla of evidence that such a declaration had been made, and conclusion of the learned trial judge would appear to have been unwarranted.
As regards...
To continue reading
Request your trial