Longstreath v Venn, 1972-73 ALR S.L. 149

SECTION 22 LONGSTREATH u. VENN, 1972-73 ALR S.L. 149 H.C. nullity without prejudice to the plaintiffs to institute a fresh action. Costs up to the date of the application and today 's costs are to be taxed and paid by the plaintiffs' company. Writ set aside. LONGSTREATHv.VENN High Court (McCormack, Ag. J.): October 30th, 1972 5 (Civil Case No. 40/72) 10 [ 1] Contract-performance-payment-deposit in contract for sale of land­ deposit recoverable by purchaser if vendor unable to complete: A pur­ chaser of land is entitled to rescind the contract and sue for the return of his deposit and the cost of expenses incurred if the vendor is unable to complete (page 153, lines 31-36). 15 [2) Land Law-conveyancing-purchase money-deposit-deposit recoverable by purchaser if vendor unable to complete: See [ 1] above. [ 3] Succession-administration of assets-disposal of assets-land forming part of estate administered by Administrator-General cannot be sold by beneficiaries in absence of vesting deed or transfer in their favour: The 20 beneficial owners of an estate which is being administered by the Ad­ ministrator-General have no legal right to sell land forming part of it in the absence of a vesting deed or transfer made by the Administrator­ General in their favour (page 153, lines 24-30). The plaintiff brought an action against the defendants to 25 recover a deposit paid by him in respect of the purchase of land. The plaintiff contracted to buy land from the defendants. Although the land was actually in the possession of a third party the defendants alleged that it formed part of their deceased mother's estate which was being administered by the Administrator- 30 General. The latter had, however, made no vesting deed or transfer in their favour. The plaintiff was informed that the deed of conveyance could not be executed immediately due to certain legal difficulties but, being assured that the land belonged to the defendants, he paid a 35 deposit of Le1 ,000 and was told that he might enter into possession. After incurring survey expenses of Le30 the plaintiff discovered that the defendants had no legal right to sell the land. He demanded the return of his deposit but was unsuccessful. The plaintiff then brought the present proceedings, contending 40 that since the vendor had defaulted, he as purchaser was entitled 149 THE AFRICAN LAW REPORTS to rescind the contract and sue for the return of his deposit and the cost of expenses incurred. The defendants argued that the land was theirs to convey, being part of the estate of their deceased mother, and that they intended 5 to take proceedings to set aside the supposed title of the third party. Judgment was given for the plaintiff. Cases referred to: 10 (1) Re Hargreaves & Thompson's Contract (1886), 32 Ch. D. 454; 55 L.T. 15 239. (2) Soper v. Arnold (1887), 37 Ch. D. 96; 52 J.P. 374; on appeal, (1889), 14 App. Cas. 429; 61 L.T. 702. (3) Venn v. Cole, 1968-69 ALR S.L. 331. Riby-Williams for the plaintiff. The defendants appeared in person. McCORMACK, Ag. J.: In this action the plaintiff's claim against the defendants is for 20 the sum of Le1,030. The writ of summons herein was issued on January 20th, 1972 and a memorandum of appearance and defence were filed by a solicitor on behalf of the defendants, but throughout the trial the defendants appeared and conducted their case in person. The plain tiff was represented by counsel. 25 The plaintiff gave evidence that he contracted to buy from the defendants a piece of land at Kissy Bypass Road, which the defendants agreed to sell to him for the price of Le1400; that he was subsequently taken to the office of the defendant's solicitor Mr. Fe wry, a solicitor of this court, and that on that occasion he 30 was accompanied by a Mr. George. At the office of the defend· ant's solicitor, the defendants narrated the reason for the visit to the solicitor, who then read out a purported judgment from a paper he was holding and further explained that there were some legal technicalities to be overcome and that as soon as that was 35 done the deed of conveyance would be executed. He further said that the solicitor assured him that the land belonged to the defend­ ants and that he need have no fears. The plaintiff said that on that assurance he paid a deposit of Lel,OOO. A receipt was made out by the solicitor and the first defendant signed it in the presence of 40 the second defendant and Mr. George. Mter payment of the deposit and obtaining a receipt the solicitor told him in the 150 LONGSTREATH v. VENN, 1972-73 ALR S.L. 149 H.C. presence of the defendants that he was free to go on the land and make whatever use of it he might desire. In consequence of that direction he engaged a licensed surveyor, Mr. Baxter, to prepare a survey plan of the plot for which he advanced the said surveyor the sum of Le30 and obtained a receipt. The plaintiff said he did 5 not receive the plan from the surveyor and consequent upon certain information received from the surveyor he requested the return of his deposit from the defendants. Mr. Baxter, a licensed surveyor, was next called to give evidence and he told the court that he was engaged by the plaintiff to carry 10 out a survey of a piece of land at Kissy Bypass Road, that he did survey the land and prepare a plan; but that the Survey and Lands Department refused to approve the plan because it overlapped with another which had been registered with them earlier. Mr. George next gave evidence and confirmed the plaintiff's 15 evidence as to what took place at the office of the defendants' solicitor. The defendants called Mr. Fewry to give evidence on their behalf. This witness told the court that some time in May, 1971 the defendants together with the plaintiff and a Mr. George called 20 at his chambers. The defendants, who were his clients at the time, told him that the plaintiff wanted to buy a piece of land from them at Kissy Bypass Road but as they had previously consulted him about this land, they had explained to the plaintiff the con­ ditions under which, at that time, they could sell the land to him. 25 The defendants then asked their solicitor to explain the position to the plaintiff and he did so. Among other things he told the plaintiff that because of some technical difficulties affecting the land the defendants would not be in a position to give him a conveyance of the land until a contemplated court action was 30 disposed of. The witness said that the plaintiff then asked about how long that would take and he gave a rough estimate of about six months. This witness further said that he told the parties that he would draw up an agreement for sale which would be binding on the parties and that this agreement for sale would be executed 35 as soon as the full purchase price was paid. He also informed the plaintiff that as soon as the 'agreement for sale' was executed and pending the conveyance the plain tiff could make full use of the land and that there was no difficulty envisaged, but that if the plaintiff encountered any difficulty the defendants would indem- 40 nify him. 151 "" .. - . ' . ' • > • ·' • _. •• ~ ·"'··· ·, ...... -.... r .. · , :,_,., ' \ ;,;.';-: :<? j/ THE AFRICAN LAW REPORTS Under cross-examination in answer to learned counsel for the plaintiff this witness said: "There were no court proceedings at the time; we were in the process of bringing an action but we had not yet commenced proceedings." 5 The defendants in their evidence before this court confirmed the evidence of their solicitor. They admitted that the deposit of Lel ,000 was paid to them. They said that they did not execute the agreement for sale because the document had been drawn up by their solicitor for the full purchase price of Lel ,400 but the 10 plain tiff had not paid the balance of Le400. They said that the plaintiff demanded the return of his deposit and they told him he would have to wait until the land was sold to someone else before they could be in a position to return the deposit. Under cross­ examination by learned counsel for the plaintiff the first defend- 15 ant said: "The contemplated court action was to set aside Mr. Cole's title deed .... I agree that up till today the action has not been taken .... I agree that up till today Mr. Cole is the registered owner of the land .... The case of Cole v. Venn was not pending in the High Court in 1971." The second defendant in answer to a 20 question put to him by the court said: "The plan for the whole area of the land is in the name of our mother Maria Cole (now deceased) ... The Administrator­ General obtained letters of administration in respect of our mother's estate but did not include this land in the declar- 25 ation of value. It was in the process of including this land that he found out that Mr. Cole had registered a deed in respect of the land in his name .... We now want to set aside Mr. Cole's deed. That has not yet been done." In answer to further questions by the court this witness said: 30 "Five of us are entitled to the land, a portion of which we intend to sell to the plaintiff. The agreement for sale was to be signed by my brother and myself and not by the other beneficiaries. Five of us, as children of our mother Maria Cole were entitled to the land." 35 From the evidence by and on behalf of the defendants in this court, it appears that the land in dispute in this action is a portion of a larger piece of land which had been sold to a Mr. Cole. This Mr. Cole brought an action in the Supreme Court (as it then was) claiming a declaration of title to land, damages for trespass and an 40 injunction against four defendants, one of whom was the second defendant in this action, namely James Venn. 152 l F LONGSTREATH v. VENN, 1972-73 ALR S.L. 149 H.C. Mr. Cole succeeded in the Supreme Court (as it then was) but the defendants, including the second defendant in this action, appealed against that judgment to the Sierra Leone Court of Appeal (Venn v. Cole (3) ). In the Court of Appeal an order was made for the respondent in that appeal (Mr. Cole) to be nonsuited. 5 Sir Samuel Bankole Jones, P., delivering the judgment of the court, after reviewing the relevant authorities said inter alia (1968--69 ALR S.L. at 336): "It seems to me, therefore, that in the light of all the facts disclosed, the learned Chief Justice should have, with respect, 10 non-suited the respondent's claim on the ground that even though Exhibit A was invalid in law, yet he had found that the respondent was in possession and that the appellants were not. He should, therefore, in my view, have proceeded to reserve to the former the rights and remedies which clearly 15 vested in him by virtue of the fact of his being in such possession of the land in question. As this court is a court of rehearing, I think that the justice of the case requires that this suit should be non-suited, reserving the rights and rem- edies referred to above to the respondent, and it is accordingly 20 so ordered." Such then is the position of the defendants herein in relation to the said land which they purported to sell to the plaintiff herein. Next, assuming the fact that the land in question belonged to the estate of the deceased mother of the defendants, and that the 25 Administrator-General is administering that estate, the Adminis­ trator-General not having issued a vesting deed or transfer in favour of the defendants-herein, the defendants herein can have no legal right to sell this land to the plaintiff, on the principle "Nemo dat quod non habet." 30 It is settled law that where there is default on the part of the vendor the purchaser as a general rule may rescind the contract and sue for the deposit as money had and received to his, the purchaser's, use and for expenses: seeReHargreaues& Thompson's Contract (1) and the judgment of Cotton, L.J. in Soper v. Arnold 35 (2) which was affirmed by the Court of Appeal. In this action the plaintiff has sued for the return of his deposit of Le1 ,000 and for the cost of preparing a plan and survey of the land (Le30), and nothing else. There will therefore be judgment for the plaintiff against the defendants herein for the sum of 40 Le1,030, and costs are to be taxed. Judgment for the plaintiff. 153