Jafferali and Another v. Borrisow Civ. Case 29-A-69; 6/4/71; Bramble J.

 

Jafferali and Another v. Borrisow Civ. Case 29-A-69; 6/4/71; Bramble J.

The plaintiffs brought a suit for specific performance or recission of a contract and damages. They had agreed to purchase from the defendant a parcel of land together with the farm stock on it at Shs. 180,000/- Shs. 5,000/- was paid on execution of the agreement of sale being the value of furniture and domestic effects. Shs. 17,500/- was to be deposited with an advocate pending consent to the transaction being given by the Commissioner. The remaining Shs. 157,000/- was to be paid on consent to the transfer being obtained together with delivery of title to the estate with a valid and duly executed deed of transfer. Plaintiffs refused to pay the balance without having seen the certificate of title. In this suit, they alleged that the defendants had failed to fulfill the agreement. The issues as framed by the judge were inter alia: (a) whether the defendants ha failed, to deliver an unencumbered title; (b) what remedy if any were the plaintiffs entitled to.

            Held: (1) “The purchaser is entitled to see (a) a copy of the land certificate or office copies of the entries on the register (b) copies or abstracts of documents expressly referred to therein and (c) a statutory declaration as to the existence or otherwise of matters which are declared by statute not to be encumbrances. There has been no dispute that consent to the transfer had been obtained. The plaintiffs claimed that no evidence of title was submitted to them for inspection although he had been informed that a transfer had been executed by the vendor.” (2) “I cannot see how the purchaser could be expected to part with his money without having had an inspection of the title …………Defendant admitted that she never produced title nor was in a position to do so. I find that by the terms of clause 3 of the Agreement the production of a good title was one of the conditions. The defendant’s insistence on the payment of the balance of the purchase price amounted to a refusal to produce title and was the cause of the plaintiffs’ not completing the transaction.” (3) “On the evidence before me I find ……….. that the plaintiffs had not taken possession of the farm. (4) “Since this the same remedy was available to both parties and as far as the plaintiff is concerned damages will not afford an adequate remedy because it is the land that they want I will grant specific performance. Jaques v. Miller 6 Ch. 153 is an authority for giving damages against a vendor in addition to specific performance where there is a refusal on his to carry out an agreement and this has been followed in a number of other cases. The terms “refusal “has been extended to cover a case in which a party

has not done all that he reasonably should do to complete the contract. So far as matters involving title it has been laid down in Bin v. Fothergill L. R. 7 H. L. 158 that were a vendor acts in good faith he is not liable to the purchaser in damages for loss of bargain where he is unable to perform his contract because of a defect in title. There has been no delay because of defect of title in this case. The defendant says that she is anxious to complete the transaction.” (5) “Since I have held that the defendant was at fault in not doing what was reasonably necessary to complete the contract and not through any defect in title the plaintiffs are entitled to damages. In Jaques v. Miller the learned judge held that the measure of damages in such a case is “such damages as may reasonably have said to have naturally arisen from the delay, or which may reasonably be supposed to have been in contemplation of the parties as likely to arise from the partial breach of contract.” “While I agree that damages for depreciation may be allowed – Clarke v. Ramuz (1891) 2 Q. B. 456 – the evidence does not support the claim. The expert gave a highly speculative estimate as to the potential o the farm. In most of the cases where damages were given under this heading the plaintiffs were profession people or tradesman and actual damage was proved, and I hestate to think that such damages as were claimed were in the contemplation of the parties.” (6)”I am not satisfied that the claim for loss of crop was proved and will not allow it.” (7) “The plaintiff’s money which was paid as a deposit has been lying idle because of the attitude of the defendant. While time was not the essence of the contract I think that the plaintiffs are entitled to interest as from the date when it became clear that the defendant was not producing evidence of title and I will allow damages to the extent of interest at 7 per centum per annum on the stake money of Shs. 17,000/- as from 1^st November, 1969 to the date of judgment. I cannot consider the Shs. 5,000/- paid for furniture as this was a possession to which they were entitled was a matter of convenience.” (8) Claim allowed.