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TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Cv. No: 2011-1574

BETWEEN

ANIRUDH MAHABIR Claimant

AND

ALIM MOHAMMED Defendant

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Anthony Manwah, Attorney-at-Law for the Claimant.

Mr. Abdel Ashraf instructed by Mr. Mahendranath Dhaniram, Attorneys-at-Law for the

Defendant.

JUDGMENT

Introduction

1. In these proceedings, the claimant seeks specific performance of an Agreement for Sale,

entered between the parties in January, 2004, in respect of the subject property known as

LP#150, Debe Main Road, Debe1. In the course of these proceedings the Court considered

1 Described in the claim form as: ALL AND SINGULAR that piece or parcel of land situate in the Ward of

Naparima, in the Island of Trinidad comprising FIFTEEN THOUSAND SUPERFICIAL FEET be the same more or

less described in Certificate of Title registered in Volume 372 Folio 635 and also described in Certificate of Title in

Volume 372 Folio 641 and now described in Certificate of Title in Volume 2006 Folio 537 and bounded on the

North by lands of Rhagunat and by the Oropouche Lagoon Road on the South by lands of Abalack on the East by

the Oropouche Lagoon Road and by lands of Abalack and on the West by lands of Rhagunat and by lands of

Abalack.

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whether the doctrine of laches operated to prevent the claimant from obtaining an order for

specific performance.

Procedural History

2. On the 27th

April, 2011, the claimant filed his claim form seeking the following relief:

“(a) an order for specific performance of the said Agreement for Sale

(b) damages for breach of contract

(c) alternatively repayment of the deposit of $130,000.00…”

The claim form was accompanied by a statement of case.

3. On the 8th

December, 2011, the defendant filed and served his defence, contending inter

alia that the claim was not maintainable having been commenced outside the time limited

for doing so by law.

4. When this matter came up for trial in October, 2013, the Court heard the evidence of the

claimant, as well as the evidence of the defendant and his witness, Kimraj Basdeo.

Facts

5. In January, 2004, the claimant, Dr. Mahabir, was a practicing ophthalmologist. The

defendant Alim Mohammed was a businessman, dealing in the sale of used cars. He was

also the owner of the subject property. The defendant indicated to Dr. Mahabir that he was

experiencing financial difficulties, and that he was willing to sell the property.

6. Consequently, on the 23rd

January, 2004, the claimant and the defendant entered into a

written Agreement for the Sale (“the Agreement”) of the subject property at the price of

one million, three hundred thousand dollars ($1,300,000.00).

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7. In accordance with the terms of the Agreement for Sale, the claimant paid to the defendant

the sum of one hundred and thirty thousand dollars ($130,000.00) by way of a cheque, on

the understanding that the balance would be payable within ninety (90) days.

8. The salient terms of the Agreement2 are set out below:

“2. The purchase price shall be the sum of ONE MILLION THREE

HUNDRED THOUSAND DOLLARS ($1,300,000.00) payable in the

following manner:-

(a) the sum of ONE HUNDRED AND THIRTY THOUSAND

DOLLARS ($130,000.00) on execution of these presents

(b) the balance of ONE MILLION, ONE HUNDRED AND SEVENTY

THOUSAND DOLLARS ($1,170,000.00) to be paid within ninety

(90) days hereof…”

9. By paragraph 7 of the Agreement for Sale, the parties agreed as follows:

“If the vendor fails to complete this transaction on the completion date, the

purchaser shall be entitled to a refund of the deposit paid hereunder and

shall have a right to action for specific performance and/or damages for

breach of contract…”

10. At the end of January, 2004, the defendants delivered a letter to the claimant. The letter

was dated the 27th

January, 20043. Enclosed with the letter was a manager’s cheque dated

the 28th

January, 2002, for the sum of one hundred and forty thousand dollars

($140,000.00). The cheque was drawn by order of Kimraj Basdeo.

2 Exhibited to the Witness Statement of the Claimant as “A.R.1”

3 The letter dated 27

th January, 2004, from the defendant to the claimant was annexed to the witness statement of the

claimant and marked “A.R. 2”

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11. The full terms of the defendant’s letter are set out below:

“ATTENTION DR. ANIRUDH MAHABIR

Dear Sir,

In relation with a property at LP 150 Debe Main Road, Debe that I agreed to

sell to you, as you know the reason for my wanting to sell this property to you

is because of my financial difficulties. On Friday 23rd

January, 2004 I

received a cheque from you as a down payment. I am very sorry to advise

you that I have come out of my financial difficulties am no longer interested

in selling my property…”

12. The next day, the 29th

January, 2004, attorney-at-law, Carol Cuffy-Dowlatt dispatched a

letter to the defendant. By her letter, Mrs. Cuffy-Dowlatt returned the cheque and indicated

the claimant’s interest in completing the sale transaction.

13. Disregarding the letter of Mrs. Cuffy-Dowlatt, the defendant entered a second agreement

for the sale of the property. The second agreement was made on the 30th

January, 2004,

with Kimraj Basdeo and Zabida Ramhit at the price of one million, four hundred thousand

dollars ($1,400,000.00).

14. By his defence in these proceedings, the defendant sought to explain his decision to sell the

property to Kimraj Basdeo and Zabida Sharma Ramhit. The defendant alleged that early in

January, 2004, he had entered in an oral agreement with his friend and neighbour, Kimraj

Basdeo. The defendant alleged that upon entering the oral agreement, Mr. Basdeo paid a

cash deposit of one hundred and forty thousand dollars ($140,000.00).

15. The defendant alleged that Mr. Basdeo went abroad for surgery shortly after having made

the oral agreement. This engendered some diffidence on the part of the defendant, who

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became concerned that Mr. Basdeo would not be able to adhere to the terms of the oral

agreement.

16. It was at this time, according to the defendant, that he received an offer from the claimant.

The defendant stated that he decided to discuss, with the claimant, the possibility of selling

the property to him. The defendant told the Court that he informed the claimant of the

earlier arrangement with Mr. Basdeo and that the claimant agreed as follows:

“..we agreed that in the event that the first buyers failed to purchase the said

lands that an Agreement for Sale be drawn between the claimant and myself…”4

17. The defendant stated that the terms of their discussion should have been recorded in the

written Agreement for Sale but that the Agreement for Sale had been prepared by the

claimant’s attorney-at-law, who failed to recite discussions concerning the first buyer. The

defendant stated that the Agreement had not been re-read to him prior to signing and that

he had not been afforded an opportunity to seek independent legal advice.

18. Accordingly, there were many areas of disagreement between the parties. I have set out

below issues of fact which arose in these proceedings:

Whether the defendant had entered an oral agreement with Mr. Kimraj Basdeo on the

5th

January, 2004 for which he received a cash payment of one hundred and forty

thousand dollars ($140,000.00)

Whether this alleged agreement had been drawn to the attention of the claimant prior

to the execution of the written agreement between the claimant and the defendant.

If so, whether the parties had agreed to make reference to the oral agreement in their

written Agreement for Sale.

4 Witness Statement of the defendant at paragraph 4

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19. Mr. Kimraj Basdeo testified on behalf of the defendant. This witness corroborated the

evidence of the defendant. Both witnesses were however subjected to masterful cross-

examination by learned attorney-at-law, Mr. Manwah.

20. Under cross-examination, the defendant and Mr. Basdeo contradicted each other as to the

alleged payment of a deposit in early January, 2004. Both the defendant and Mr. Basdeo

testified that the initial payment of one hundred and forty thousand dollars ($140,000.00)

had been in cash. However, the defendant stated that he never gave a receipt to Mr.

Basdeo. Mr. Basdeo on the other hand, testified that he had obtained a receipt for his cash

payment, but that the receipt was lost. In resolving this issue of fact, the Court was

mindful not only of the absence of any document to prove a cash payment of one hundred

and forty thousand dollars ($140,000.00), but also, of the fact that the defendant and Mr.

Basdeo contradicted each other as to the existence of a receipt.

21. In the course of cross-examination, the defendant’s attention was also drawn to the cheque

which had been submitted with his letter of the 27th

January, 2004 and to the fact that the

defendant then returned the sum of one hundred and forty thousand dollars ($140,000.00)

to Dr. Mahabir. The sum of one hundred and forty thousand dollars ($140,000.00) was

remitted to Dr. Mahabir who had initially paid one hundred and thirty thousand dollars

($130,000.00). The defendant was asked to explain why he repaid Dr. Mahabir ten

thousand dollars ($10,000.00) more than the latter had had initially paid by way of deposit.

The defendant provided no satisfactory explanation.

22. Learned counsel, Mr. Manwah then questioned the defendant as to payments which had

been made to him by Mr. Basdeo. Learned counsel pointed out to the defendant that by his

testimony, Mr. Basdeo had paid a total of one million, five hundred and forty thousand

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dollars ($1,540,000.00). This was the sum of the following payments: a cash payment of

one hundred and forty thousand dollars ($140,000.00) in early January, a payment of the

balance of one million, two hundred and sixty thousand dollars ($1,260,000.00) as well as

a cheque by the order of Mr. Basdeo for one hundred and forty thousand dollars

($140,000.00). Learned counsel asked the defendant why Mr. Basdeo would give him one

million, five hundred and forty thousand dollars ($1,540,000.00) when the agreed price

was one million and four hundred thousand dollars ($1,400,000.00). The defendant

offered as a reason that they were friends.

23. Learned counsel, Mr. Manwah, then suggested to the defendent that the cheque in the sum

of one hundred and forty thousand dollars ($140,000.00) which had been forwarded to the

claimant on the 27th

January, 2004, represented:

“…a 10% deposit payable to you pursuant to your agreement with Mr.

Basdeo”

The defendant agreed with this suggestion.

24. The Court therefore considered whether the alleged cash payment of one hundred and forty

thousand dollars ($140,000.00) had ever been made. In my view, on the basis of the

evidence adduced at trial, it is improbable that such payment had been made. My reasons

for this conclusion are set out below.

25. Whereas the defendant and his witness, Mr. Basdeo have both testified that there had been

a cash payment, they contradict each other as to whether a receipt had been issued. The

defendant denied that any receipt had been issued while Mr. Basdeo alleged that he

received a receipt, but this had been lost. The inconsistency between the defendant’s

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evidence and that of his witness weakened the probability that the defendant was speaking

the truth.

26. It cannot be denied that the sum of one hundred and forty thousand dollars ($140,000.00) is

a large sum of money. Save in the most clandestine of arrangements, it is very unlikely

that such a sum would be paid in cash. Moreover, both the defendant and Mr. Basdeo were

businessmen. It is very unlikely that, Mr. Basdeo would part with such a large sum

without obtaining a receipt. Rather, it is more probable that Mr. Basdeo would have made

the payment by a manager’s cheque, since this was the mode of payment which he had

employed when the sum of one hundred and forty thousand dollars ($140,000.00) was

remitted to the claimant on 27th

January, 2004.

27. Accordingly, it is my view and I find as a fact that there had been no payment of one

hundred and forty thousand dollars ($140,000.00) from Mr. Basdeo to the defendant on the

5th

January, 2004.

28. I am fortified in this view by the fact that Mr. Basdeo issued a cheque for one hundred and

forty thousand dollars ($140,000.00) in the name of Dr. Mahabir in late January, 2004.

The defendant admitted under cross-examination that the manager’s cheque represented

Mr. Basdeo’s payment of the deposit.

29. If the Court were to accept that there had been an earlier cash payment in January, 2004,

then it would follow inexorably that Mr. Basdeo paid a total of one million, five hundred

and forty thousand dollars ($1,540,000.00) for the property, a sum in excess of the agreed

price by one hundred and forty thousand dollars ($140,000.00). The sum by which Mr.

Basdeo allegedly exceeded the agreed purchase price was curiously identical to the agreed

deposit. This significant coincidence casts further shadows on the defendant’s case and

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strengthens the probability that instead of making a cash payment in January 2004, Mr.

Basdeo had made good the deposit by forwarding a Managers’ Cheque to the claimant.

Moreover, it is inherently improbable that a purchaser would voluntarily exceed the

purchase price by such a large sum in consideration only of the friendship which he enjoys

with the vendor.

30. It is therefore my view that the defendant and Mr. Basdeo have conspired to invent a

fiction that there was a cash payment of one hundred and forty thousand dollars

($140,000.00) in early January, 2004. This fiction served the purpose of providing some

dubious justification for the defendant’s reneging on his agreement with the claimant.

31. I turn now to the second issue of fact, that is to say whether the parties had agreed that their

Agreement for Sale would be conditional on Mr. Basdeo’s failure to complete his oral

agreement.

32. It was the contention of the defendant that he had discussed the alleged earlier agreement

with the claimant and that they agreed that the formal Agreement for Sale, would recite the

agreement with the first buyer. This, the claimant stoutly denied and contended that he had

never in the past heard of Mr. Basdeo or his business associate.

33. The defendant’s contention is compromised by the reasons stated in his letter of the 27th

January, 2004. One would have expected that the letter in which he expressed an intention

to renege on the Agreement for Sale, would have referred to earlier discussions. Instead

the defendant omitted all references to earlier discussions and chose to adhere instead to

repeated apologies.

34. It is my view that the defendant has failed to prove that he informed the claimant of an

earlier agreement. I therefore find that the claimant’s version is more probable and that in

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his dealings with the claimant there had been no mention of Mr. Basdeo or any earlier

Agreement for Sale.

Submissions and Law

35. Parties relied on the written submissions of their respective attorneys-at-law.

36. In the defendant’s submissions, filed on the 9th

December, 2013, learned attorney-at-law,

Mr. Ashraf argued that the Agreement for Sale had been conditional on the willingness of

Mr. Basdeo to complete the oral agreement.

37. Mr. Ashraf argued in the alternative that the defendant’s delay in seeking equitable relief

prevented him from obtaining the remedy of specific performance.

38. Learned counsel also relied on the Court of Appeal decision in Deryck Mahabir v.

Courtnay Philps5 and Peter David Gerald Chang Sing v. Vishnu Kallicharan

6.

39. Mr. Manwah, learned attorney-at-law for the claimant argued that any oral agreement,

assuming that one existed, would be unenforceable and of no effect.

40. Mr. Manwah argued further that there had been no registration of the Memorandum of

Transfer between the defendant and Mr. Basdeo. Accordingly, argued Mr. Manwah, the

property remains registered in the name of the defendant and the remedy of specific

performance is still available.

41. The claimant filed supplemental submissions on the 30th

April, 2014, and argued that the

claimant had not acquiesced in the breach of the Agreement for Sale and that there had

been no change of position on the part of the defendant. Consequently, argued learned

counsel for the claimant, there was no bar to the grant of specific performance. In support,

learned attorney-at-law cited and relied on these authorities:

5 Civil Appeal No. 30 of 2002

6 Civil Appeal No. 6 of 1989

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Lazard Brothers and Company Limited v. Fairfield Properties Company (Mayfair)

Limited [1977] 121 Sol Jo 793

16 (2) Halsbury’s Laws of England Volume (4th

(Re-issue) 2003 Edition)

paragraph 909-915

Civil Aappeal No. 57 of 1984 Sharif Fida Hosein v. Dassie Harrydath

Law

The Conveyance and Law of Propety Act Ch 56:01 (“The Act”)

42. Section 4 of the Act provides7:

“ 4 (1) No action may be brought upon any contract for the sale or other disposition of or

any interest in land unless the agreement upon which such action is brought or some

memorandum or note thereof is in writing and signed by the party charged or by some

other person there unto by him authorized.

43. Section 7 of the Act8 enables both vendors and purchasers to apply to the Court in respect

of questions arising out of or connected with a contract for the sale of land. Section 7 (2)

of the Act empowers the Court to order the repayment of the deposit, where the Court

refuses to grant specific performance.

Measure of Damages

44. The normal Measure of Damages for the vendor’s failure to complete an agreement for the

sale of land is the market value of the property at the contractual time of completion less

7 The Conveyancing and Law of Property Act Ch. 56:01 at 5.4

8 Ibid at S.7

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the contract price.9 The learned authors of Mac Gregor on Damages cited the authority on

Engell v. Fitch10

; where Kelly C.B. had this to say:

“What we have then to consider is when a vendor …refuses to complete and

the action is really for breach of contract to deliver possession whether under

such circumstances the vendor is entitled to this difference…If an increase

has taken place between the contract and the breach such an increase may be

taken to have been in the contemplation of the parties.”11

45. Deryck Mahabir v. Courtnay Phillips12

In Mahabir v Phillips13

, the Court of Appeal reviewed a first instance decision that the

limitation period applied to a claim for specific performance. Justice of Appeal Kangaloo,

with whom the other two appellate Judges agreed, referred to the authority of Talmash v

Mugleston (1826) 4 L.J. 200 and stated:

“The position appears to be that where a Court of Equity is excercising a

concurrent jurisdiction with a Court of Law then the statutes of limitation

apply by analogy. However as stated in Talmash the jurisdiction of

compelling specific performance in a Court of Equity is not a concurrent

jurisdiction.”14

46. In the course of his judgement, Kangaloo, JA expressed the view that the majority

judgment of the Court of Appeal in Peter Chang Sing and others v. Kalliecharan15

had

9 Mac Gregor on Damages (19

th, 2014 Edition) at paragraph 25-005

10 [1869] L.R. 4 Q.B. 659

11 Ibid

12 Civil Appeal No. 30 of 2002

13 Ibid

14 Mahabir v. Philips (Ibid) at paragraph 7

15 Civil Appeal No. 6 of 1989

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been decided per in curiam. I will therefore make no reference to the latter decision,

although it had been cited by learned attorney-at-law for the defendant.

47. Kangaloo, JA also made the following comment, in the course of considering whether

there had been an abuse of process in the action before him.

“Gone are the days when the litigant is allowed to pursue litigation dilatorily

and use the incompetence of his attorneys as an excuse…..”16

Sharif Fida Hosein v. Dassie Harrydath17

48. Sharif Fida Hosein v. Dassie Harrydath was a decision of the Court of Appeal and was

cited by Mr. Manwah learned attorney-at-law for the claimant. Davis JA delivered a

written judgement with which the other two appellant Judges agreed. In Hosein v

Harrydath18

, the Court of Appeal considered an action for specific performance, where an

agreement for the sale of land had been made on 26th

February, 1968 and a High Court

Action was instituted in November, 1977.

Towards the end of his written judgment, Justice Davis quoted paragraph 1477 of 16,

Halsbury’s Laws of England (4th

edition).

“1477 The nature of laches. In executing a statute of limitation, the

legislature specifies fixed periods “……..after which claims are barred;

equity does not fix a specific limit, but considers the circumstances of each

case. In determining whether there has been delay as to amount to laches the

chief points to be considered are:

16

Deryck Mahabir v. Courtnay Philips, Civil Appeal No. 30 of 2002 at paragraph 21 17

Civil Appeal No. 57 of 1984 18

Ibid

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(1) Acquiescence on the plaintiff’s part and any change of position that has

occurred on the defendant’s part. Acquiescence in this sense does not mean

standing by while the violation of a right is in progress, but assent after the

violation has been completed and the plaintiff has become aware of it. It is

unjust to give the plaintiff a remedy where by his conduct he has done that

which might fairly be regarded as equivalent to a waiver of it; or where by

his conduct and neglect, though not waiving the remedy, he has put the other

party in a position in which it would not be reasonable to place him if the

remedy were afterwards to be asserted. In such cases, lapse of time and

delay are most material. Upon these considerations rests the doctrine of

laches.”

49. Davis JA applied the stated principles to the matter before him and stated that the appellant

never stood by and assented to the violation of his rights, but rather the delay was

attributable to the respondent/vendor. The learned Justice of Appeal also held that there

was nothing in the evidence to suggest that the respondent was in any way prejudiced.

Accordingly, on 2nd

December 1988, Davis JA held that the appellant was entitled to

specific performance of an agreement which had been made in 1968, and in respect of

which high court proceedings had been instituted almost ten (10) years earlier.

Lazard Co. Ltd v. Fairfield properties19

50. Learned attorney, Mr. Manwah cited and relied on Lazard Brothers & Co.20

in which an

agreement for sale had been made by an exchange of letters. It had been proposed that a

new contract would supersede the letters. One and half years after the initial letters of

19

(1977) 121 Sol Jo 793 20

Ibid

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offer, the plaintiff’s solicitors wrote another letter, on this occasion to threaten to institute

proceedings to enforce the contract. The plaintiffs sought specific performance.

51. In the course of his decision, Megarry V.C. considered the defendant’s contention that the

plaintiff had been guilty of such delay as to disentitle them to specific performance

Megarry V.C. had this to say

“…Secondly, the defendants said that the plaintiffs had been guilty of such

delay as disentitled them to an order of specific performance. The classic

phrase of Sir Richard Arden MR in Milward v Earl of Thanet (1801) 5 Ves

720n, was that a plaintiff seeking specific performance had to show himself

‘ready, desirous, prompt and eager’. If specific performance was to be

regarded as a prize, to be awarded by equity to the zealous and denied to the

indolent, then the plaintiffs should fail. But whatever might have been the

position over a century ago that was the wrong approach today. If between

the plaintiff and defendant it was just that the plaintiff should obtain the

remedy, the court ought not to withhold it merely because the plaintiff had

been guilty of delay.”21

(Emphasis mine)

Re The Doctrine of Laches

52. Learned attorney-at-law Mr. Manwah cited and relied on the learning of 16 (2),

Halsbury’s Laws of England (4th

Edition Reissue) at paragraph 915. The learned attorney

provided this learning:

“915. Staleness of demand as a defence. Staleness of demand, as

distinguished from a statute of limitation and analogy to it, may furnish a

21

Ibid

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defence. A defence based on this ground renders it necessary to consider the

time which has elapsed and the balance of justice or injustice in affording or

refusing relief. In such a case whether laches arises depends on the

negligence of the claimant to enforce his rights. Mere delay would not appear

to be sufficient to bar a claim; but, generally, in the absence of minority or

some circumstance preventing a claim, a claim will be treated as barred after

a lapse of 20 years.” 22

53. The learned authors of Halsbury’s inserted a footnote indicating that in claims affecting

land, twelve (12) years may be a bar. 23

54. Learned attorney-at-law Mr. Ashraf referred to the statement of the learned authors Gareth

Jones and William Goodhart in their treatise entitled, “Specific Performance”. At page 71,

the learned authors cited laches as a ground for refusing specific performance and had this

to say:

“To amount to laches the delay must be sufficient to be evidence of the

abandonment of the contract by the plaintiff, or it must be coupled with some

other factor which makes it unjust to the defendant to order specific

performance…”

55. Jones and Goodhart referred to the authority of Parkin v. Thorold (1852) 16 Beav 59 and

quoted Lord Romilly, M.R. as having said:

“If one of two parties to a contract for the sale of land gives to the other

notice that he will not perform the contract, and the person receiving the

notice does not, within a reasonable time after the receipt of such notice, take

22

16(2), Halsbury’s Laws of England (4th

Edition 2003 Reissue) 23

Ibid

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steps to enforce the contract, equity will consider him to have acquiesced in

the abandonment of the contract, and will leave the parties to it to their

remedies at law….”24

56. Having considered the submissions and arguments of learned counsel, in these

proceedings, it is my view that the following principles are to be culled from the

authorities:

Specific performance is an equitable remedy. In granting this remedy

equity does not act concurrently with that of the law. Accordingly

limitation statues do not apply by analogy to the remedy of specific

performance. See Deryck Mahabir v. Courtnay Phillips25

.

The doctrine of laches may prevent the Court from granting specific

performance.

Laches does not depend on delay alone. It is generally applicable where

one or both of two situations are present: Where the claimant has failed to

take action to enforce his rights in such a way that his inaction could be

construed as a waiver of his rights. The second situation arises where the

defendant experiences a change of position and there is consequent

prejudice which may attend the grant of specific performance. Where

either of these two situations is present, it is my view, that the Court may

refuse specific performance on the ground of laches.

24

Jones and Goodhart, Specific Performance (1986 Edition) page 71 -72 25

Civil Appeal No. 30 of 2002

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57. It is my view however that even where the two situations are present, the Court may

nonetheless grant specific performance if is just so to do.26

Conversely, even were the two

situations are absent, the Court may nonetheless apply the doctrine of Laches, if delay on

the part of the plaintiff has been so unreasonable as to be regarded as unconscionable.

Equity is embedded in conscience and the Court of Equity, in my view, must consider

whether in all the circumstances the delay was unconscionable. The answer of this

question does not depend on a numerical quantity. Accordingly the span of almost 10

years did not prevent the Court of Appeal from granting specific performance in Sharif

Fida Hosein v. Dassie Harrydath27

. In my view, the answer depends on an assessment by

the Court of all the circumstances and a determination as to whether, having regard to the

delay, it would be unconscionable to grant specific performance.

Reasoning and Decision

58. Having regard to the pleadings and the evidence, two broad issues arise for the Court’s

determination:

Whether there had been a repudiation of the Agreement for Sale on the part of the

defendant.

If so what is the appropriate remedy.

59. I have found as a fact that there had been no earlier oral agreement between the defendant

and Mr. Kimraj Basdeo. It is my view that the defendant found himself placed to receive

one hundred thousand dollars ($100,000.00) more by choosing to sell the property to Mr.

Basdeo instead of to the claimant. It was for this reason that he directed Mr. Basdeo to pay

his deposit by purchasing a Managers’ Cheque in the name of the claimant. This cheque

26

See Lazard Bros and Company v. Fairfield Properties referred to at paragraph 51 Supra 27

See paragraph 49 Supra

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was sent under cover of the defendant’s letter of the 27th

January, 2004. In this letter, the

defendant repeated his apologies and offered no real explanation for his action. The

evidence has led me to the inescapable conclusion that there had been unblushing collusion

between the defendant and Mr. Basdeo to precipitate an end to the Agreement with the

Claimant, so as to make it possible for the property to be sold to Mr. Basdeo.

60. The claimant seeks specific performance. As a party to an agreement for sale, he holds an

equitable interest in the property. His interest is good against the whole world except the

bona fide purchaser for value without notice. Mr. Kimraj Basdeo has not contended, and

he has no pretensions of being, a bona fide purchaser for value without notice.

Accordingly the claimant would have been entitled to the equitable remedy of specific

performance if there was no bar to its operation in equity.

61. The barrier which confronts the claimant is his delay in instituting and prosecuting an

action to enforce his rights. The question to be considered is whether the claimants delay

is caught by the doctrine of laches.

62. In the course of his written judgement in Sharifa Fida Hosein v. Dassie Harrydath28

,

Justice of Appeal Davis quoted from 16, Halsbury’s Laws of England as to the

components of the doctrine of laches.

63. Justice of Appeal Davis there identified the two underlying components being:

Acquiescence on the part of the claimant.

Prejudice suffered by the defendant.

64. In respect of the latter, there is no evidence before the Court to suggest that any prejudice

will be suffered either by the defendant or by Mr. Basdeo. Both parties had an adequate

28

See paragraph 49 Supra

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opportunity to plead whatever change there may have been in their circumstances. They

have provided no evidence and have not even taken the step of registering the

Memorandum of Transfer by which the legal title in the property was conveyed to Mr.

Basdeo.

65. The more difficult question is whether the claimant acquiesced in the defendant’s

repudiation so as to communicate to the latter that he had waived his right to seek the

intervention of equity.

66. It is common ground that upon receipt of the defendant’s letter of apology, the claimant

had an attorney’s letter despatched to the defendant. With this, he returned the cheque and

stated his intention to enforce the Agreement for Sale.

67. This was followed by the institution of High Court proceedings. Although there was no

documentary evidence of proceedings in 2004, it had been accepted by both parties that the

claimant had instituted proceedings, which had been dismissed under Order 3, Rule 6A,

Rules of the Supreme Court (1975) (RSC) for his failure to prosecute the claim. The fact

of a dismissal under Order 3, Rule 6A, implies that the claim had been inactive for at least

two (2) years.29

68. The claimant provided no explanation for his failure to prosecute the first action. No

evidence was forthcoming as to the date on which the first matter was dismissed. This

period in the history of the claimant’s repudiated Agreement for Sale remains in a

twilight zone, and beyond the Court’s scrutiny. Then in 2011, with no explanation for his

apparent slumber, the claimant instituted these proceedings.

29

See Order 3, Rule 6A, Rules of the Supreme Court (RSC) (1975)

Page 21 of 22

69. In considering whether the grant of specific performance ought to be refused on the ground

of laches, I was mindful that time had not been made the essence of the Agreement for

Sale. Nonetheless, parties were under an obligation to complete within a reasonable time.

Moreover, the claimant was under an obligation to seek redress within a reasonable time.

70. In my view this case is distinguishable from Sharif Hosein v Dassie Harrydath, where the

Court of Appeal found that the delay was attributable not to the appellant but to the

respondent.

71. By contrast, in these proceedings there was unexplained inactivity by the Claimant for a

period of seven (7) years. In my view, this period could not by any standard be regarded as

reasonable. Rather, it would be reasonable to infer that both the defendant and Mr. Basdeo

would have grown complacent in the expectation that the claimant had waived his rights.

72. It is therefore my view that the doctrine of laches is applicable in these proceedings,

because it would be unconscionable to grant specific performance after the unexplained

seven (7) year delay on the part of the claimant in seeking to have his rights enforced.

73. I proceed to consider whether the claimant is entitled to an award of damages. The

measure, to which the claimant would have been entitled, would have been the difference

between the value of the land at the contractual time of completion and the purchase price.

The contractual time of completion was April, 2004.

74. No evidence was, however, provided as to the market value of the land in April 2004.

Even if it could be agrued that the claim for damages had escaped the grasp of the

Limitations of Personal Actions Act30

, it would be impossible to award damages in the

absence of evidence as to the value of the land in April, 2004. In the course of cross-

30

Limitation of Personal Actions Ch. 5 No. 6

Page 22 of 22

examination, Mr. Manwah elicited from the defendant, an estimate as to the current value

of the land. This evidence is useless for two reasons. The first is that the defendant lacks

the requisite expertise to provide an opinion on the value of land. Secondly, the Court does

not require evidence as to the current value of the land, but as to its value in April, 2004,

when the sale ought to have been completed. Accordingly, it is my view that the claim for

damages ought to be and is hereby refused.

75. The claimant is however entitled to recover his deposit with interest from the date on

which this action was instituted.

Order

76. The defendant to return to the claimant his deposit of one hundred and thirty thousand

dollars ($130,000.00) with interest at the statutory rate from the date of the Claim Form

herein.

77. The defendant to pay to the Claimant the costs of this action fit for advocate attorney-at-

law to be quantified by the Registrar of the Supreme Court in default of Agreement.

Dated this 27th

day of February, 2015.

M. Dean-Armorer

Judge