Augustin v Auguste
| Jurisdiction | St Lucia |
| Judge | Webster, J.A. |
| Judgment Date | 18 April 2016 |
| Neutral Citation | LC 2016 CA 6 |
| Docket Number | SLUHCVAP2013/0033 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 18 April 2016 |
Court of Appeal
Baptiste, J.A.; Thom, J.A.; Webster, J.A. (Ag.)
SLUHCVAP2013/0033
Mr. Evans Calderon for the appellant.
Dr. Robert Barrow with him, Ms. Elaine French for the respondent.
Contract Law - Specific Performance of an agreement — Agreement for sale for property — Whether the deceased understood the Agreement for sale that she was signing — Whether the deceased was unduly influenced in any way to sign it — Whether the allegation of uncertainty regarding to the property can be sustained where the matter of the agreement was determinate as to its kind — Undervalue and delay — Whether the trial judge erred in finding that the difference between the contract price and assessed value was not an undervalue — Consideration of the Codal provisions — Whether the trial judge erred in considering article 1387 of the Code to the Agreement where the law relating to specific performance of contracts was a part of the law of St. Lucia — Consideration of St. Rose v. Lafitte (1992) 42 W.I.R. 113 — Finding that the right to claim specific performance of the contract was preserved by the Code and in particular by articles 997 and 917A — Finding the allegation of uncertainty could not be sustained — Finding that the difference was not an undervalue — Appeal dismissed — Rule 62.4 and Form 23 of the CPR.
The eight heirs of the late Francis Clovis (“the deceased”) owned in common a large parcel of land registered as Parcel 177. Madeleine Clovis (“Madeleine”), the daughter of the late Stephen Clovis who was one of the eight heirs of the deceased, received permission from her aunts and uncles (except the appellant) to construct a house on a part of Parcel 177. Madeleine and the respondent, her common law husband, built the house between 1995 and 1999 and have lived in it since then. In or about 2004, the respondent, commissioned a valuation of Parcel 177 with a view to partitioning the parcel and obtaining title to the area of Parcel 177 that he occupies.
Subsequently, the respondent and the appellant entered into a written agreement for the sale of the appellant's undivided one-eight share of Parcel 177, measuring approximately 27,715.05 square feet, to the respondent (“the Agreement”). The Agreement provided that (1) the portion of land would be sold at $3.50 per square foot or $97,002.68; (2) the respondent would pay a deposit of $10,000.00 on the signing of the Agreement and the balance of $87,002.68 immediately on completion of the survey and partition of Parcel 177; and (3) the respondent would represent the appellant in all matters relating to the survey and partition of Parcel 177.
The respondent duly paid the $10,000.00 deposit to the appellant. In 2009, the appellant's attorneys wrote to both Madeleine and the respondent purporting to terminate the Agreement on the ground that the appellant never agreed to its terms. The respondent did not accept the appellant's purported termination of the Agreement.
The Deed of Partition of Parcel 177 was completed in 2011. Parcels 331 and 332 were allotted to the appellant. The respondent's dwelling house is on Parcel 331; Parcel 332 is an undeveloped parcel close to but not adjoining Parcel 331. The respondent tendered payment of the balance of the purchase price to the appellant who did not accept the payment and refused to complete the sale. In 2012, the respondent filed a claim for specific performance of the Agreement, damages and costs.
The learned trial judge found that the respondent was a witness of truth and that the appellant was sufficiently apprised of the contents of the Agreement and knew what she was signing. She therefore granted the respondent's claim. The appellant has appealed alleging that the trial judge erred in granting specific performance of the Agreement and that she failed to deal with the relevant provisions of the Civil Code of Saint Lucia (“the Code”).
Held: dismissing the appeal; amending the order to delete the figure 168.95 square feet in paragraph 5 and substituting 158.95 square feet therefore; and ordering costs of the appeal to the respondent at two-thirds of the amount awarded in the court below, that:
1. An appellate court would be very reluctant to interfere with a trial judge's findings of fact where the trial judge had the advantage of observing the witnesses give their evidence and where there was an abundant of evidence on which the judge could have made the findings which he made.
Golfview Development Limted v. St. Kitts Development Corporation et al SKBHCVAP2004/0017 (delivered 20th June 2007, unreported) followed; Central Bank of Ecuador and others v. Conticorp SA and others (The Bahamas) [2015] UKPC 11 applied.
2. The Agreement defined the property being sold as a one-eight share of Parcel 177 measuring approximately 27,715.05 square feet. Following the completion of the partition of Parcel 177, the appellant was awarded Parcels 331 and 332 measuring 21,442 and 6,432 square feet respectively. The combined acreage of 27,874 is 158.95 square feet more than the amount specified in the Agreement of 27,715.05 square feet. This small increase in the amount of the land being sold to the respondent had no impact on the overall sale. Further, the Agreement had a formula for determining the price – $3.50 per square foot. The terms of the Agreement were clear and did not give rise to any uncertainty. There is therefore no basis for interfering with the judge's findings that there was no uncertainty regarding the amount of land being sold under the Agreement.
Golfview Development Limted v. St. Kitts Development Corporation et al SKBHCVAP2004/0017 (delivered 20th June 2007, unreported followed; Central Bank of Ecuador and others v. Conticorp SA and others (The Bahamas) [2015] U.K.P.C. 11 applied.
3. Article 1387 of the Code states that if a promise of sale be accompanied by the giving of earnest, each of the contracting parties may recede from it; he who has given the earnest, by forfeiting it, and he who has received it, by returning double the amount. Article 1388 goes further stipulating that a promise of sale with delivery and actual possession is equivalent to sale. In construing legislation, it is a basic rule of interpretation that regard must be had to the entire statute and not just the provision being interpreted. Applying this principle it is clear that where the respondent is in possession of the property that is the subject of the Agreement, there is no option to recede as in Article 1387.
Article 1387 of the Civil Code of Saint Lucia, Cap. 4.01, Revised Laws of Saint Lucia 2008 distinguished; Article 1388 of the Civil Code of Saint Lucia, Cap. 4.01, Revised Laws of Saint Lucia 2008 applied; ( St Rose v. Lafitte 1992) 42 W.I.R. 113 followed.
Webster, J.A. [AG.]: This is an appeal against the judgment of the learned judge granting specific performance of an agreement dated 31st May 2005 between the late Marie Madeline Marshall (“Mrs. Marshall”) and the respondent, Paul Jason Auguste, for the sale by Mrs. Marshall to the respondent of property at Bella Rosa, Gros Islet, registered as Block 1256B Parcels 331 and 332, special damages of $5,897.06, interest and costs.
Parcels 331 and 332 were formally a part of a larger parcel of land registered as Parcel 177 owned in common by the heirs of the late Francis Clovis, deceased (“the deceased”). Mrs. Marshall was one of the eight heirs of the deceased and as such entitled to an undivided one-eighth share of Parcel 177. Regrettably, she passed away before this appeal was heard. The appeal is being carried on by her representative, Esther Augustin.
The respondent's common law wife, Madeleine Clovis (“Madeleine”), is the daughter of the late Stephen Clovis who was one of the eight heirs of the deceased.
Prior to the commencement of the claim in the High Court, Madeleine got permission from her aunts and uncles (except Mrs. Marshall) to build a house on a part of Parcel 177. Madeleine and the respondent built the house between 1995 and 1999 and have lived in it since then.
In or about 2004, the respondent was desirous of getting title to the area of Parcel 177 that he occupies with Madeleine and started discussions with the heirs about partitioning the Parcel 177. The respondent also commissioned a valuation of Parcel 177 with a view to partitioning the parcel.
The respondent and Madeleine also engaged Mrs. Marshall in discussions to purchase her share of Parcel 177. Eventually they agreed terms of sale and on 31st May 2005 entered into a written agreement for the sale of Mrs. Marshall's share of Parcel 177 to the respondent (“the Agreement”). The basic terms of the Agreement are:
(a) Mrs. Marshall would sell her undivided one-eighth share of Parcel 177 measuring approximately 27,715.05 square feet to the respondent at $3.50 per square foot, or $97,002.68;
(b) the respondent would pay a deposit of $10,000.00 on the signing of the Agreement and the balance of $87,002.68 immediately on completion of the survey and partition of Parcel 177;
(c) the respondent would represent Mrs. Marshall in all matters relating to the survey and partition of Parcel 177.
The respondent duly paid the $10,000.00 deposit to Mrs. Marshall and proceeded with the surveying and partitioning of Parcel 177 in conjunction with the other heirs or their representatives.
There were delays in completing the survey caused by the survey or submitting an incomplete plan that was initially rejected by the Ministry of Planning. The plan had to be corrected and resubmitted. It was eventually approved and showed the proposed division of Parcel 177 between the heirs (“the Plan”).
On 12th August 2008, Mrs. Marshall's attorneys wrote to the respondent purporting to recede from the Agreement on the ground that Mrs. Marshall never agreed to the terms of the purported...
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