Supreme Court
Action No. 195 of 1981
16th September, 1983
Rajasingham, J., Q.C.

Mr. Philip Zuniga for the Plaintiff.
Mr. Wilfred P. Elrington for the Defendant.

Real Property - Written agreement to sell between the Defendant and the reputed owner - Action for possession by Plaintiff whose title is independent of the reputed owner's title, after agreement to sell expires and death of the reputed owner.

J U D G M E N T

The Plaintiff Philip Avila is the grantee under a Minister's fiat, Fiat No. 293 of 1980, of block No. 82, 25 acres of land, situated on the sea coast north of Orange point in the Toledo District. The land in question is, according to the Defendant, presently occupied by the Defendant by virtue of an agreement between the Defendant and Leon Santos Avila, the father of the Plaintiff. Leon Avila appears to have held the land as follows - five acres on a location ticket and 20 acres on what he referred to as a "Queen's grant" when he spoke to the Defendant; I say "appears to have held" because there is no actual evidence beyond the Defendant's statement that Leon Avila told him that that was how he came to own it. I do not, however, think that the actual nature of the title of Leon Avila matters because the Plaintiff himself does not deny that his father owned the property; the validity of the father's title is not contested. The Plaintiff himself says his father owned the land before he was born. The Plaintiff said he met the Defendant in 1980 and told him of his acquisition of title and asked the Defendant to quit and give him possession of the land. The Defendant admits this notice in his defence.

The Plaintiff and Defendant are agreed on almost all the facts in this case. The Plaintiff, while he says he did not know of the agreement between his father and the Defendant, admits his father's signature and admits that he cannot deny the existence of the agreement. Mr. Zuniga, while not contesting the genuineness of the agreement itself, does, however, draw my attention to the paragraph numbered 9 which he suggests is an interpolation as it is clearly added to the typscript by hand and as it conflicts with paragraph 1 of the same agreement. The Plaintiff admits that the Defendant constructed the house which is on the land and that he has fruit trees planted on it; he does not contest the number and variety of trees that subsist today according to the Defendant.

The main contest, therefore, boils down to the effect, if any, of the agreement made between the Defendant and Leon Avila on the Plaintiff' s rights vis-a-vis the land.

The Defendant gave evidence of the circumstances leading to the signing of the agreement. He said he heard Leon Avila had land to sell. This was in 1971, prior to the passing of the Alien Landholding Ordinance. He said he had not yet become a resident at the time. I cannot imagine what relevance that fact had at a time when there was no restriction on the purchase of the land by aliens. He says he paid Avila a sum of $300 which he said in examination-in-chief at first was for Leon Avila's equity in the land, and later said it was for the improvements Avila had done on the land. In trying to understand what exactly the Defendant paid the $300 for I think it best to look to the agreement itself. The agreement in its preamble speaks of "the payment by the purchaser of the deposit of Three hundred dollars". This to my mind makes it far more probable that the three hundred dollars was a "deposit" rather than that it was the entire purchase price as the Defendant says it was. Be that as it may, the agreement is clearly an agreement to sell and in paragraph 1 of the agreement the Defendant accepts such title as has been disclosed and waives all "requisitions and objections now outstanding and all right to make any further requisitions and objections" (unquote).

The title "as disclosed" is, according to the Defendant himself, a location ticket over five acres and something referred to as a "Queens grant" by Leon Avila, and which the Defendant himself did not or could not explain to Court, over 20 acres. The agreement goes on to say that the Defendant "will not allow any person other than his family to occupy the property" (unquote). This, I am afraid, clearly shows that this was not a sale but only an agreement to sell, and that Leon Avila still retained his interest in the property. Paragraph 5 says the Defendant is not to "do anything by which the value of the property may be impaired" (unquote). Paragraph 6 is the paragraph that, in my considered opinion, clearly indicates the nature of this agreement. It lays down the condition that the Defendant as purchaser "will not claim from the Vendor or any person deriving title under the Vendor any compensation in respect of any improvement" (unquote) or for any increase in the value of the property thereby.

If this were, as the Defendant says, a sale, this paragraph must mean the Defendant is agreeing not to claim compensation from himself as the person "deriving title under the Vendor" or from any person to whom he may transfer title as so derived. If, however, the agreement was an agreement to allow the Defendant to occupy and develop the property in return for uninterrupted occupation for five years and a payment of $300, then all these conditions are in keeping with the intent of the agreement. Paragraph 8 shows that this was clearly the intent; it sets a five year term for occupation without any further payment.

This also clearly shows that paragraph 9 is an interpolation made after the signing of the agreement, even if interpolated with Leon Avila's consent, at best reflects an undertaking by Leon Avila that title will be perfected and "delivered" - which I take to mean transferred, within the five year term of the agreement. This was never done by Leon Avila who died in 1977.

The Defendants right to occupation of the land terminated, according to the agreement in 1976. Leon Avila died in 1977 without having recovered possession or transfered title. The Defendant had no subsisting right to compensation for any development he had done of the property. The Defendant, however, retained an equitable interest in the land which could have been enforced against any person deriving title from Leon Avila.

The Plaintiff's title is derived from the Minister's fiat. Whether that fiat was conditional on development done by the Defendant or not, that cannot impose any obligation on the Plaintiff in the absence of evidence to show that he would not have received the fiat if he had not shown that the property had been developed. Even if that had been a condition precedent to the grant of a fiat, the benefit of the development had, if it had been developed prior to 1976, devolved on the Plaintiff's father, and if it had been done after 1976 would at best be development by an occupier who only had an expectation of a right to remain. The tenor of the Defendant's evidence, however, is that the development was done by him as soon as he entered into occupation.

The house and shed built on the land will not, in my opinion fall within the meaning of the word "improvement" in paragraph 6 which must be read with the obligation to develop contained in paragraph 3. The Defendant could have, when he quit the land, removed the house and shed or been reimbursed their value if the Plaintiff chose to retain it. If Leon Avila chose to keep the house and shed he would have been obliged to pay the Defendant their value. The house and shed are valued at $5,000. If the Plaintiff wishes to retain the house he must pay the Defendant that sum. If he does not wish to retain the house and shed he must permit the Defendant to remove them. The Defendant said he would require about a month or a month and a half to dismantle and remove them. In view of the uncertain weather at this time of year, I do not think it unreasonable to grant the Defendant a period of three months within which he should dismantle and remove the house and shed if the Plaintiff informs him that he does not wish to retain the house and shed; the Plaintiff shall inform the Defendant of his decision within one month of this order.

I hold that the Plaintiff is entitled to immediate possession of the land subject to the Defendant's right to be paid the sum of $5,000 for the house and shed or to dismantle and remove them within three months of notice of the Plaintiff's decision not to retain them. The Plaintiff has not led any evidence of damages suffered by him by the failure of the Defendant to give up possession of the land. His claim for damages is disallowed.

I make my order accordingly. The Plaintiff is entitled to costs in the action.

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