Design Properties (Montserrat) Ltd v Attorney General

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Davis, C.J.
• Judgment Date: 11 October 1978
• Neutral Citation: MS 1978 CA 1
• Docket Number: Civil Appeal No. 1 of 1978
• Date: 11 October 1978

West Indies Associated States Supreme Court. Court of Appeal

Davis, C.J. Peterkin, J.A. Berridge, J.A. (Acting)

Civil Appeal No. 1 of 1978

Design Properties (Montserrat) Ltd.

and

Attorney General

Contract - Sale of land

Real Property - Forfeiture — Land Holding Control Order 1970

Facts: Two appeals were heard together by consent. The first ground of appeal concerned whether the court was competent to give judgment for the appellant company in the sum of $12,548.50. The second appeal concerned whether the trial judge was right in dismissing the respondent's claim for specific performance and his claim for a declaration of forfeiture. The appeals arose from a case brought by the Government of Montserrat in the name of the Attorney General claiming specific performance of a contract of sale against the company in respect of a parcel of land and in the alternative for a declaration of forfeiture of the said land to the Crown for breach of the Land Holding Control Order, 1970. As to whether there was a valid contract of sale between the Government and the company.

Facts: Whether the trial judge was right in dismissing the respondent's claim for specific performance and his claim for a declaration of forfeiture. The appeal arose from a case brought by the Government of Montserrat in the name of the Attorney claiming specific performance of a contract of sale against the appellant company in respect of a parcel of land and in the alternative for a declaration of forfeiture of the said lands to the Crown for breach of the Land Holding Control Order 1970. The issues were whether there could be automatic forfeiture or whether it was necessary for the court to declare it under section 7(1) of the Ordinance.

Held: That since the trial judge found that director K acted beyond the scope of his authority in concluding a sale at an unauthorized price, the company would not be liable to a third party. There would accordingly be no contract to perform. The trial judge should have dismissed the Government's claim. The effect of the trial judge's action in entering judgment for the company in the sum of $12,548.50 was to sell the property to the Government in the sum mentioned. He had no authority to make such an order. Company's appeal allowed.

Held: In the instant case no steps were taken to enforce the forfeiture and consequently there could have been no judgment declaring it. Appeal allowed.

Davis, C.J.

1 These two appeals were heard together by consent. The first appeal in point of time, No. 1 of 1978, is against that part of the decision of Hewlett, J, dated 16th December, 1977, which gives judgment for the appellant company in the sum of $12,548.50, and the only ground of appeal is that the court was not competent to give such a judgment.

2 The second appeal, No. 2 of 1978, is against that part of the judgment which (a) dismissed the appellant's claim for a specific performance, (b) dismissed the appellant's claim for a declaration of forfeiture, and (c) entered judgment for the company, Design Properties (Montserrat) Limited, in the sum of $12,548.50. The grounds of appeal are stated at pages one to four of the record.

3 The two appeals arose from a case brought by the Government of Montserrat in the name of the Attorney-General claiming specific performance of a contract of sale against Design Properties (Montserrat) Limited in respect of a parcel of land at Gingoes, Montserrat, containing 50, 194 sq. ft., and in the alternative, for a declaration of forfeiture of the said land to the Crown for breach of the Land Holding Control Ordinance, 1970. The parcel in question was originally tested in William Hopwood of Montserrat and Eric Smith of Antigua whose intention it was to utilise the site for an hotel. In 1969 Smith joined a firm of architects in Antigua known as Deans and Fraser and threw in this parcel of land by arrangement with Hopwood as his contribution towards the assets and good-will of the partnership which then became known as Deans, Fraser and Smith. The partners subsequently formed themselves into a company called Design Properties Limited for the purpose of holding and developing this land. The company was registered in Antigua where they resided. The company then instructed Mr. John Kelsick, a solicitor of Montserrat, by latter dated 1/7/69 as follows: -

“We would be happy if you would undertake the following business on behalf of Design Properties Limited, Antigua, of which Walter Deans is a Director.

We wish to transfer or sell title of a property at Gingoes, Montserrat at present held by Conveyance in the names of Eric G.T. Smith, Antigua and Wm. Roy Hopwood, Montserrat.

Agreement has been made with Mr. Hopwood to obtain his interest in the property as per the attached letter from Mr. Hopwood to Design Properties.

The Conveyance is at present in the hands of Mr. Kenneth Allen, Solicitor, who was preparing application for Certificate of Title, but this has not been done.

The property should be transferred or sold for ‘consideration received’ or for nominal sums since no exchange of money is being asked of any of the parties involved.

Should you be willing to undertake this business for us, please ascertain firstly if licence to hold this property will be probably granted to us

We look forward to your early advice.”

4 Mr. Kelsick replied to the company agreeing to effect transfer of title and undertaking to proceed with the licence application. In addition he inquired of them the reasonable market value of the property for purposes of stamp duty to which the company replied,

“The Gingoes property is being transferred to Design Properties at a face value of $7,000 ECC, based on the original purchase cost of $5,272 plus allowance for devaluation and a small annual appreciation. We would think this sum of $7,000 a fair value for stamp duty.”

5 Up to September, 1969, no licence was obtained, and the company instructed Mr. Kelsick by letter of 21st May, 1970, to incorporate and register the company in Montserrat as Design Properties (Montserrat) Limited. They also instructed him that after incorporation and registration of the new company he should arrange for completion of transfer of title of the land at Gingoes to the new company. The new company was then duly incorporated as Design Properties (Montserrat) Limited. It is hereinafter referred to as the company. A transfer deed in favour of the company was drawn and executed by the vendors on 5/12/70. No registration of the deed had, however been effected. Up to 18/1/72 the necessary licence to hold land in Montserrat had not...