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IN THE COURT OF APPEAL OF FIJI
RAM NARAYAN AND ANOTHER
v
RISHAD HUSSAIN SHAH
[COURT OF APPEAL, 1975 (Gould V.P., Marsack J.A., Spring J.A.), 10th, 26th November]
"Receivem Richard Hard Hussain Shah Tasaduq Hussain Shah) of M of Maro, Nadroga, the sum of One thousand pounds (£1,000) being deposit in respect of two farms at MNadroga, No's being 5128 and 11242 together with all improvmprovements situate thereon. The balance being £4,000.
Dated at Nadroga this 31is 31st day of January 1968
Ram >Ram Narayan,
Vijay Naraya."
Thties did nree as to w to what items were included in the term ‘improvements'. The rese respondent contended that the 'improvemecompra
concrete house ouse on one of the sections, a tractor, two bullocks and a plough. The appe appellants maintained that the word must
be limited to things which necessarily pass with the land, such as the house. Moreover, though they agreed that the two bullocks
and the plough were included in the property which was to pass to the appellants, they denied that the tractor was included in the
sale.
No formaeement for sale sale and purchase was prepared for signature by the parties, who did not instruct solicitors to attend to
the appropriate formalities. In his evidence, the respondent stated, on this point:
“rmal agreemeneement was not needed – we trusted each other.”
Very few steem to have have been takenither side for some considerable time, to complete the sale. The respondent arranged with aith
a moneylender for an advance of the ba payable, $8,000.00, but this sum was not paid or tendered.ered.
The necessary consents to the transfer were obtained, but no formal transfer was prepared or executed. The only positive step taken
by the respondent in the direction of obtaining comon was to complain to the District Officer in Singatoka, apa, apparently with
a view to having a conference with the other parties. This, however, did not take place. This visit to the District Officer was apparently
made some time in 1970. It followed, according to the respondent’s evidence, a statement made by the appellants that they would
not sell the land. In this connection it must be commented that the appellants showed a complete absence of bona – fides. Appellant
Vijay Kumar deposed a the trial:
“We ot offer ffer to refund the money – the £1,000 he had paid – because there was no arrangement for this to be done.”
On 26
In his jut the learned rned trial judge held that the receipt set out above contained the terms of the agreement between the partiesicieno
satisfy the requirements set out in section 59 n 59 of the Indemnity Guarantee & Bail Bailment Ordinance Cap. 208. This section
corresponds precisely with section 4 of the Statute of Frauds. He further held that the respondent was entitled to a decree of specific
performance of this agreement, and to damages representing the net profit to have been expected for the year 1974, from the sale
of sugar cane grown on the lands in question.
The grounds set out in the Notice of Appeal are lengthy and I do not find it necessary to set them out in full in this judgment. Those
requiring determination by this Court may be brieflyarised:
(1) Thatlearned trid trial judl judge erred in holding that he receipt already quoted was a sufficient memorandum for the purposes of section 59;
(2) the learned trid trial judge erred in granting specific performance in view of the delay of some years in bringing action after the appellants’ failure to carry out the agreement.
&
The question raised by d by the first ground of appeal is, I find, one of the considerable difficulty. There is no doubt, to my mind,
that the parties did intend that there should be a sale of the leasehold interest of the appellants in the lands concerned to the
respondent, for the total sum of $10,000.00, of which $2,000.00 was paid and accepted as a deposit.
& ‘ is, I thinkthink, clear authority that every material term must be so evidenced. The memorandum, however, need not refer to
mattes which the law implies.&;
The culty arises from irom interpretation of the statutory phrase in section 59 ‘unless the agreement.......or some memorandumote
thereof is in writing and signed by the party to be charged.’ The determination oion of this question involves an examination
of a great number of judicial decisions on the subject of the sufficiency or insufficiency of the memorandum. In the Judgment in
Hawkins v. Price;
The firs first point raised by counsel for the appe appellants on this ground concerns the absence of any reference to a date of possession.
He emphasises the fact that the date of possession on the sale of a cane farm is an important consideration; possession in April,
for example, would include the right to the standing crops, whereas possession is an essential term of this actual agreement, and
that its omission from the memorandum necessarily renders that memorandum insufficient for the purposes of the statute. Although
this argument was put persuasively, I find myself unable to accept it. As is said in Gray v. Smith#160;(1890)1890) [1889] UKLawRpCh 191; 43 Ch. D.208 at p.214:
"The Court hntinualinually held that time is not of the essence of the act in the ordinary case of the sale and purchase of land."
Ntinction is n is made made to this principle in the case of with growing crops; and thnd the fact that the land in issue in the present
case had sugar cane growing on it is not, to my mind,#160;sufficient reason for for deviation from the general principle. Where
no date is fixed for completion, it has been authoritatively held on many occasions that the absence of any such provision does not
invalidate the contract, but makes it subject to an implied condition that completion is to take place within a reasonable time.
As is said by Fry J. in Green vSevin
‘It is to berobserved that the contract for purchase had limio tim completion, and that, therefore, according to the rule in
this country, each parh party waty was entitled to a reasonable time oing the vsrious acts whichwhich he had to do.’
On the same it is stat stated in Johnsonumphrey&[1946] 1 All E.R. 4>p. 463:
#160;
‘ of couf course well uell understood that if a contract fixes no date for completion, the law implies that completion is to
take place within a reasonable time.'
The question arising utder this heading is simply whether the omission from the memorandum of a date for completion rendered the memorandum
insufficient to comply with the statute. Fe reasons I have given I would hold that it has not that efat effect.
The next point forideraideration is counsel's argument that the memorandum in question was insufficient in that it failed to specify
exactly what property was passing; and that trms which were omitted from that document could not be read read into it as a matter
of necessary implication. In support of his argument he cites a passage from Stonham’s Vendor &chaser #160;at p. 86:
p>
>
‘Apart from terms implied by law (inclusive of implications arising by construction of interpretation of the writing, or by
trade usaherwiall trms of s of the athe agreement must appear in the writing, ing, otherwise part only of the contract is evidenced
in writing, and the Statute of Frauds has not been complied with.’
As far as chattels wonc concerned, the only items under this head referred to in the evidence were a tractor, two bullocks and a plough.
However, there was a dispute between the parties. The respondent gave evidehat these three items were were included in the sale;
appellant Vijay Kumar, in the course of his evidence, agreed that the pair of bullocks and two ploughs were included but not the
tractor. In any event, as I see it, the law specifies that what must be committed to writing is the sale of land. The sale of chattels
could be proved independently. There is nothing in section 59 in my view, stating or even implying that the memorandum required would
be insufficient if collateral parts of the bargain between the parties, having no reference to sale and purchase of the land, should
have been omitted from what is set down in writing.
The argument directed towards the assignment on the cane contracts presents somewhat more difficulty. It is perfectly clear, as counsel
contends, that a cane contract does not pass with land. It is necessary that here should be an assignment in writing forwarded to
the millers for noting; and under section 26 of the Sugar Industry Ordinance, every such assignment shall truly state the consideration.
Mr Reddy’s argument on this point may conveniently be divided into two sections. Firstly, that the memorandum is defective
in that it makes no mention of the assignment of the cane contracts; and secondly, that the memorandum is defective in that it does
not truly state the consideration for the assignment as required by section 26.
With regardhe first poit point there is, in my view, a necessary implication that a contract for the sale of cane lands must involve
also aignment of the cane contract or contracts held in respect of those lands. No person buying ying a cane farm and no person selling
a cane farm would fail to realize that the farm would have little value without a cane contract, covering an undertaking by the millers
to buy a stated quantity of sugar cane grown on the farm. Every such person would also realise the necessity of sending an application
to the millers for approval of the assignment. In these circumstances, the transaction, in my opinion, would come within the scope
of the practice set out in the 36 Hals. ( Ed.) p.60;p. 289, para. 406 
‘In the absefce of express agreement, however, the law in many cases makes good the defect (i.e. the omission of a material term) pplyirms blicatiocation or inference.’
<160;
As to the sepoint,oint, it is cert certainly clear that he consideration for the assignment of the cane contracts is not set out in
the memorandum relied on; but in my opinion, it is not necessary to set hat consideration in that phat particular document. Section
26 of the Sugar Industry Ordinance makes it clear that the correct consideration must be shown in the assignment itself when forwarded
to the millers for approval. Whether or not this was done, and if so, what proportion of the total purchase price this consideration
was stated to be, that covering the assignment seems to be immaterial in deciding the question whether or not the document on which
the purchaser relies is a sufficient memorandum or note of the agreement for the of land requirequired under on 59 o 59 of the Indemnity Guarantee and Bailment Ordinance.
Accordingly, though as I have stated the matter is one of some difficulty, I conclude that he failure to mention the nment of the
cane contractsracts is not sufficient to invalidate the memorandum.
Mr Reddy fursubmits thas that the document in issue is a receipt and nothing more than a receipt. He cites the decision of the Court
of Appeal in Beckett v. Nurse
̵eived from E.Bm E.B. of Thoottage Thorpe Audlin sum of seventeen pounds being a deposit for a field situate near the Fthe Fox Inn. Sold for £50.’
#160;‘iew of the cohe conclusions which my Brothers have reached, I will not dissent. No useful purpose will be served by elaborating
the doubts which I still feel abhe true construction of this document, a matter on which dich different minds might come to different
conclusions. I will only say that, while I think the document is open to the construction that it is an agreement to sell to the
deceased for £50 a field shown on the plan, as the county court judge thought it did, the fact that it only bears one signature
does afford some ground for saying that it is only intended as a receipt. That it is a receipt does not mean that it might not also
be a memorandum of an agreement, and on reconsideration the county court judge will consider what weight he should attach to the
document and to the evidence as the condition is a different one from that which is pleaded. '
As I reas judgment, it , it does not amount to a definite ruling that a document in the form of a receipt may not be a sufficient
memorandum of sale within the scope ofstatute.
A further conte put fort forward by c by counsel for the appellants was that the transaction was unlawful in that the aggregation
of cane farms in one person was specifically forbidden under the Sugar Industry Ordinance. This contention is, in my opinion, untenable.
There is no such provision in the Ordinance itself. There is reference to the matter in the cane contract. The cane contract was
not produced to the Court and I am therefore not entitled to quote from it. It was, however, conceded on the hearing of the appeal,
that there is a provision to the effect that the millers shall not be bound by any assignment of the contract if the assignee already
holds a contract with the millers in respect of any other land for the sale of cane. There is, therefore, no legal obstacle in the
way to aggregation; it is a matter for the discretion of the millers. In any event, the millers, according to evidence produced at
the hearing, did approve the assignment of both contracts to the respondent.
It now becoecessary to y to consider whether the learned trial judge was justified in making an order for specific performance in
view of wounsel for the appellants refers to as laches on the part of the respondent. The relevant dant dates to be taken into account
are these. The receipt was signed on the 31st January 1968. On some unspecified date in 1970, according to the respondent's evidence,
the appellants informed the respondent that they did not intend to complete the sale. The writ forming the basis of the present proceedings
was issued on the 26th September 1973. In the interval the respondent had taken no steps to establish his rights under the agreement,
except in the first place to give, early in 1968, notice to the occupier of the land, Ram Narayan's brother - in - law, to quit;
and in the second place to approach the District Officer in Sigatoka in 1970. When the tenant ignored the notice to quit, no further
action in that direction was taken by the respondent.
The le trial judge in t in the course of his judgment, finds that in 1970 the appellants ‘arbitrarily and unjustifiably purported
to terminate the contract'. Heher held that when the Government took over from the millerillers in 1972, this could be done only
'subject to the rights which lessees, tenants and others held under existing agreements with the millers'. The point as to whether
the very great delay on the part of the respondent affected his rights to a decree of specific performance was not argued in the
Court below, and is not directly dealt with by the learned trial judge in his judgment. It is well established that unreasonable
delay on the part of the purchaser will prevent him from obtaining a decree of specific performance. The principle is expressed in
Stonham's Vendor archasechaser at p. 778:
&
R>‘A party has an option whether he will bring an action at law and repudihe contract, or whether he will proceed in a Court
of Equity for specific performance of thof the contract, and he must exercise that option promptly and without delay.’
In the New Ze case of&# of Dillon v. MacDo/i> #160;21 N.Z.L.R. 45, a decrespecifiecific performance was refused because of a delay of 12 months. In another New
Zealand case, Caseyharaw#160;1 N.Z.L.R. 455, the Court of Appeal held:
‘In&#i>0;W;WilsoWilson v. Moir ryden v. McC>> the cont wers for the sale sale of land. In the first - named case an unexplained deed delay
for nine months was held to be a o spe perfce. In the other case a similar delay for ovor over four months was held to be fatal.
tal. In thIn the present case the delay of over eight months was, we think, unreasonable, and ought to be treated as a bar to specific
performance.’
This Court i, of courseourse, bound to follow the decisions of the New Zealand Courts; but in my view the judgments quoted correctly
set outprinciples to be applied on the subject of the effect of undue delay on a grant of specificcific performance. In the present
case, the respondent took no effective action for over five years after the date the agreement was signed, and for three years after
the appellants - according to his own evidence - had notified him that they were not going to complete. Accordingly I am of the opinion
that the learned trial judge exercised his discretion wrongly in granting a decree of specific performance. For these reasons I would
set aside that decree.
The result of thild be d be that the respondent would be entitled to damages for breach of contract. This Court is not in a position
to assess these damages. Mr Reddy conceded, in reply to a question from thist, that the deposit paid byid by respondent should be
refunded if the decree of specific performance were set aside. That sum however would in my view form only part of the damages properly
payable. I would therefore remit the case to the Supreme Court to assess the damages properly payable to the respondent for breach
of contract, and to enter judgment accordingly; with power to the learned trial judge to hear such evidence and such submissions
as would be required to enable him to make the appropriate findings.
As far as costs is Cour Court are concerned, in all the circumstances disclosed I would order that each party pay his own costs.
GOULD
<160;
The facts in tse uase under appeal are set out in the judgment of my learned brother Marsack J.A. and there is no need to re-state
them.
Generan this question oion of payment the learned judge accepted the respondent's version that he was ready to pay and triedet thtrics
Officerficer to mediate. He said-
“The defendant 2 gave evidence thce that it had been orally agreed that the3;400ance should be paid into the office of Munro
& Co., solicitors, and the plainplaintiff tiff failed to pay the money at that firms' office. The plaintiff says he was ready
and willing to pay, and had arranged a loan from a money - lender, P.W. 2, for completing the purchase. P.W. 2 gave evidence to the
effect te had promised ised to lend the money to the plaintiff. I accept the evidence of the Plaintiff and P.W. 2 which shows that
the plaintiff was able to complete.”
I think it isicienmplied that the lthe learneearned judge rejected the evidence concerning payment in the particular solicitor's office.
Ar difty is that the rehe respondent pleaded in paragraph 5 of the amended Statement of Clai Claim the following -
<220;I an implied term term of the said contract of sale that the Defendants would give vaca vacant possession of the said farms and iements to the Plaintiff upon payment of the sum of Two thousand dollars (£1000.00) ref) referred to in paragraph 2 hernd da all acll acts and things necessary to vest the ownership of the said farms in the Plaintiff and to assign the benefit of scane act Nos. 5128 and 11242 to the Plaintiff.”
“The ed StateStatement of Claim alleges that there was an oral tto the effect that the bala balance of the purchase price was
to be paid when the defendants had done all that was necessary to enablm to vest ownership in the the plaintiff. It does not allege
any specific date for completion by transfer of the property or payment of the purchase price. It states, presumably in the alternative,
that the oral term was in any event implied.”
er the respondent gave gave no evidence in chief about this - he was prevented by counsel's objection from answering a question about
working on the land, as parformance had not been pleaded. In cross - examination he s he said -
“Ramyan's bros brother - in - law lived on the land; when he moved off I would move on.”
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There are a number of bossible reasons for this matter not having been dealt with by the learned judge in the Supreme Court. He may
have thought that the respondent should not be bound by a pleading of song thst wa onot on the face face of it a practical possibility.
There could have been no such term implied. Or the judge may have coned th there was any such agreed term it was for the exclusive
benefit of the respondenondent andt and that by his conduct he had waived it. I would myself consider this to be a permissible view
of the matter. Very little time was involved. The memorandum wasgned on the 31st Janu January 1968, and by the 19th April 1968,
the South Pacific Sugar Mills had indicated its consent; at thate according to both parties the whole transaction was due to be completed.
In that brief inef intervening period there is no evidence of any step by the appellant to enforce a right to immediate possession.
The terms of his notice to the occupier have never been proved but if it was a notice or request to leave it was not followed up.
As from the date of the consent the respondent would be seeking performance of the contract as a whole, carrying with it the right
to possession. There would be no need to rely on a special provision.
The netter which arisesrises is the statement of the consideration for the transaction in the memorandum. It is quite clear as to
the amount - $8000 plus $2000. But iargued that the amount includes an agreement to assign the the cane contract and certain chattels
and improvements and then net amount referable to the sale of the actual land is not specified. I do not think this matters. Such
of the “improvements” as are chattels are of no;great value and in the cthe case of a sale of chattels (as distinct from
land) courts are prepared to decide what is a reasonable price – see ll v. BusstBusst
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