Kent Winston Adonai Claimant v 1. Michael Jacques 2. Pitton Experiences Ltd Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | d'Auvergne, J |
| Judgment Date | 28 March 2002 |
| Judgment citation (vLex) | [2002] ECSC J0328-4 |
| Court | High Court (Saint Lucia) |
| Date | 28 March 2002 |
| Docket Number | 1990 NO. 130B |
IN THE HIGH COURT OF JUSTICE
1990 NO. 130B
Mrs. Brenda Floissac-Flemming for Claimant
Miss Brender Portland for the Defendants
On the 22 nd May 1989, Leonard Joseph Riviere, Notary Royal executed a Deed of Sale for the purchase of a portion of land measuring 11 acres and 31.5 perches in extent, situate at Morne La Croix in the quarter of Soufriere in the island of St. Lucia between the First named Defendant and one Charles Jean.
The above portion of land was later registered in the Land Registry on the 9 th June 1989 as Instrument No. 3161/89 Block 0027B Parcel 4 (hereinafter referred to as Parcel 4).
On the 30 th of June 1989 an unregistered notarial Deed of Sale (hereinafter referred to as the unregistered Deed of Sale) was executed between the First-named Defendant and the Claimant for a 7 acre dismemberment of Parcel 4 before the same Notary, Leonard Joseph Riviere.
The schedule to the unregistered Deed of Sale reads as follows:
"All that piece of parcel of land measuring about 7 acres being a dismemberment of a larger portion of the Morne La Croix lands in the Quarter of Soufriere, registered in the Land Registry at Block ….. Parcel ….. and is bounded as follows:-……. or howsoever otherwise the same may be bounded. Together with all the appurtenances and dependencies thereof.
The land hereby sold is more particularly delineated in Plan of Survey by Mr. Surveyor ….. Drawing No lodged at the Survey Office No ….. of 1989."
On the 24 th of June 1989 the First named Defendant signed a notarial written instrument (hereinafter referred to as the avoidance of doubt document) which was executed before the said above mentioned notary, Leonard Joseph Riviere in those terms:
"For The Avoidance of Doubt, I Michael Jacques of Soufriere, in pursuance of a Deed of Sale, made between Kent Adonai and myself, executed before Leonard J. Riviere, Notary Royal, DO Hereby declare and acknowledge, that the Southern boundary of the land thereby sold, situate at Morne La Croix, Quarter of Soufriere, extends beyond the ravine on the said lands and is located and marked at: "commencing from a timber house then towards a rock painted with a white cross, thence towards a coconut tree painted with two white crosses, thence towards lands said to belong to one Evadne Nelson."
On the 19 th of July 1989 a plan of subdivision viz 7 acres of land from Parcel 4, expressed to have been made at the instance of the Claimant and the First-named Defendant was lodged with the Development Control Authority and was approved by the Authority on the 11 th August 1989 (hereinafter referred to as Parcel 12).
On the 5 th of January 1990 the First-named Defendant executed a Deed of Transfer before Oswald Wilkinson Larcher, Notary Royal to the second-named Defendant for the whole of Parcel 4, which includes parcel 12. That Deed of Transfer was registered in the Land Registry on the 10 th January 1990 as Instrument No. 144/90.
On the 10 th January 1990 Parcel 12 was registered in the Land Registry in the name of the Second-named Defendant.
It is noteworthy that at the date of execution of the Deed of Transfer, the First-named Defendant was the sole shareholder and Managing Director of the Second-named Defendant.
I pause here to note a letter written by Mr. Peter I. Foster, who was then appearing as Counsel for the Defendants' since much reference was made to it during the hearing of the matter and in Counsel for the Defendants' final address to the Court.
"MR. LEONARD RIVIERE, 27 th September, 1989
Chambers
Bridge Street
CASTRIES
Dear Mr. Riviere,
I act herein on behalf of my client MICHAEL JACQUES of Morne La-Croix in the Quarter of Soufriere.
My client has shown me a copy of a Lease which is:-
(a) undated:
(b) unsigned by your clients BEAU ESTATES INCORPORATION (in fact the names, address and occupation of the persons representing BEAU ESTATES, if any, has not been included in the said Agreement and:
(c) the measurement of land is not included in the Schedule.
My client has expressed concern with regard to the nature of the whole agreement and its contents. My client has the following reservations which he is desirous of verifying and/or clarifying and if necessary negotiating.
(i) the option to purchase;
(ii) clause 5(a);
(iii) whether planning permission has been obtained for your proposed alterations;
(iv) what would the position as to insurance of the building in the event of an accident;
(v) whether your client would have any claim to improvements made to the building at the determination of the lease, and finally
(vi) my client has not been notified to be present at any surveys of the property which is being carried out. He is desirous of being present at all such surveys.
(vii) Increase in rent after the first three years to keep pace with the rate of inflation as calculated by the National Commercial Bank of St. Lucia.
I would be grateful for you to contact me as soon as possible for us to iron out these details.
Thanking you for your kind co-operation.
Yours faithfully
PETER I. FOSTER
Solicitor
The fundamental issue to be determined is the ownership of Parcel 12.
Learned Counsel for the Claimant submitted that the unregistered Deed of Sale purporting to be a sale and conveyance by the First-named Defendant to the Claimant of the immovable property described in the schedule to the unregistered Deed of Sale is incomplete since the boundaries were not established but argued that they were deliberately left out since the First-named Defendant and the Claimant contemplated that those boundaries would be established by a Plan of Survey of the 7 acres.
Learned Counsel submitted that, the fact that the unregistered Deed of Sale was called a Deed of Sale did not deprive it of its lower status of an Agreement for sale or an authentic writing or a private writing. In support of this submission she quoted Articles 1139, 1141 and 1153 of the Civil Code of St. Lucia and the case of Goddard v. John (1971) 19 WIR 511 (PC) per Lord Cross at page 517 (E) to (F).
Learned Counsel submitted that the decision in Goddard v. John is authority for three propositions namely:
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(i) a notarial written instrument or other authentic writing (such as the unregistered Deed of Sale in this case) becomes enforceable as a notarial Deed of Sale or conveyance or as an authentic writing only if and when it is completed as such.
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(ii) The fact that a written instrument is, purports to be or is called an authentic writing (e.g. a notarial Deed of Sale) does not deprive the written instrument of its lower status of an Agreement for Sale or other private writing if it has been signed by the parties thereto.
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(iii) A private writing (if and when completed) may be legally capable of creating legal or equitable proprietary rights and interests which the Courts will recognize and enforce either by way of judicial declaration of those rights and interests and/or by way of an order for specific performance and/or by way of some other appropriate order or remedy (e.g. rectification of the Register).
Learned Counsel contended that since section 58 of the Land Registration Act No. 12 of 1984 expressly forbids the transfer of dismemberments of registered land which has not been officially subdivided therefore the unregistered Deed of Sale was unregistrable before 11 th of August 1989 (when the Plan of Subdivision was approved by the Development Control Authority).
Learned Counsel argued that the Avoidance of Doubt document is a solemn statement by the First-named Defendant that the Southern boundary of the 7 acres of Parcel 4 which he sold or agreed or intended to sell and convey to the Claimant under the unregistered Deed of Sale extended beyond the ravine and therefore he is estopped by that document from denying that the Southern boundary of the 7 acres of Parcel 4 which he intended to sell to the Claimant extended beyond the ravine. Halsbury's Laws of England (Fourth Edition) Vol. 16 paragraph 1605.
She submitted that the clarification of the Southern boundary was the first major step towards the completion of the unregistered Deed of Sale and that the second step was the Plan of subdivision. Accordingly, the Plan of Subdivision is an essential component by which the objective common intention of the First-named Defendant and the Claimant may be inferred and the unregistered Deed of Sale may be interpreted. In support of this argument she quoted Article 945 of the Civil Code of St. Lucia and the case of Halstead v. The Attorney General (1995) 50 WIR 98 at page 102 (d) to (f) page 103 (f) to page 104(e) Privy Council Appeal No. 53 of 1996 (per Lord Clyde at pages 3 to 5.)
Learned Counsel submitted that the unregistered Deed of sale expressly referred to the First-named Defendant and the Claimant as having clearly contemplated a future Plan of Survey which was necessary for the purpose of accurately defining the boundaries of the 7 acres of Parcel 4 intended to be sold and for the purpose of completing the unregistered Deed of Sale and satisfying the requirements of section 58 of the Land Registration Act; that the particulars and results of the Plan of Survey would be inserted in the unregistered Deed of Sale if considered necessary. Therefore, the unregistered Deed of Sale and the Plan of subdivision together constitute a sale and conveyance of Parcel 12 by the First-named Defendant to the Claimant. Halsbury's Laws of England (Fourth Edition) Vol. 12 paragraph 1470. Sudbrook Trading Estate Ltd. v. Eggleton (1982) 3 AER 1 (H.L).
Learned Counsel submitted that the principles propounded in Sudbrook's case equally apply to the present case...
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