Leonard v Smith

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 12 May 1978
• Neutral Citation: VG 1978 HC 5
• Docket Number: No. 32 of 1977
• Date: 12 May 1978

High Court of Justice

Hewlett, J

No. 32 of 1977

Leonard

and

Smith

Appearances:

D. Byron for the plaintiff and G. Farara with him

Edgar A.C. Hewlett for the defendant

Specific Performance - Contract — Sale of Land

Facts: Plaintiff claimed (1) that defendant was originally a bare licensee (2) that defendant subsequently began paying rent and became a tenant (3) that defendant had refused all demands to pay $5000 as a fair price for the land.

Held: Plaintiff's claim amounted to a claim for specific performance and that there was part performance of the contract when defendant entered into possession. Remedy for part performance only available to defendant. Plaintiff's claim presupposed existence of an agreement for sale but this had not been proved. Court could only decreed specific performance if there was a definite contract in existence.

Hewlett, J.

1 The defendant's counsel's submission at the close of the plaintiff's case was that (1) there was no contract of sale as there was no agreement or arrangement concerning the price of the land; (2) the defendant was not proven to be an intending purchaser or being already in possession had continued in possession in part performance of the contract pursuant to Section 37 of the Registered Land Ordinance1970; (3) the evidence that the defendant was a tenant and paid rent was suspect and unconvincing and (4) the defendant's title was registered and had not been shown to have been obtained by fraud or mistake. Indeed it had not even been so pleaded.

2 The submission in reply was that the plaintiff's evidence had not been controverted. The evidence was that the defendant was originally a bare licensee and that the licence had ripened into a tenancy in 1962 when the defendant began paying a rent of $5.00 per annum.

3 I find the plaintiff's evidence although uncontroverted to be very unconvincing indeed and unacceptable. The receipt book he produced to prove the payment of rent is in my opinion not genuine, and this fact together with his general demeanour and his shrewd and shifty manner in answering questions have convinced me that he was not a witness worthy of much credit. I do not therefore accept that there was any agreement to pay a rent or that any rent was ever paid.

4 I do accept however that the portion of land of which the defendant is the registered proprietor formed a part of the plaintiff's land, and I also accept that it was the plaintiff who put the defendant into occupation of same. But it is abundantly clear to me that whatever may have been the arrangement between them concerning a transfer of the land to the defendant there certainly was no agreement to price or as to the mode to fixing the price. There was therefore no open contract of sale between the parties.

5 The plaintiff in his Statement of Claim claimed $5,000.00 as being a fair valuation...