James Kenrick Milne Plaintiff/Appellant v Flora Corien Defendant/Respondent [ECSC]

CourtEastern Caribbean Supreme Court
Docket NumberCivil Appeal No. 5 of 1970
JudgeGORDON, ACTING CHEIF JUSTICE, CECIL LEWIS, J.A., ST. BERNARD J.A. (Ag.), ACTING CHIEF JUSTICE
Judgment Date09 Oct 1970
JurisdictionCaribbean States
Neutral Citation[1970] ECSC J1009-1
[1970] ECSC J1009-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice P. Cecil Lewis

The Honourable Mr. Justice St. Bernard (Ag.)

Civil Appeal No. 5 of 1970

Between:
James Kenrick Milne
Plaintiff/Appellant
and
Flora Corien
Defendant/Respondent

S.H. Graham for Appellant

H.R. Scipio for Respondent

GORDON, ACTING CHEIF JUSTICE
1

This appeal arises out of an action brought by the plaintiff/appellant against the defendant/respondent in which he claimed—

  • (1) specific performance of an oral agreement,

  • (2) a declaration that the plaintiff is entitled to a lien on the said property for his deposit (together with interest thereon),

  • (3) further relief,

  • (4) costs.

2

After hearing the action the trial judge entered judgment for the plaintiff/appellant in the sum of $300 with one half of his taxed costs and further ordered that the plaintiff/appellant be entitled to a lie on the whole of the defendant/respondent's lands at Pt. Cistern, Carriacou, in the said sum of $300. The plaintiff/appellant has appealed from this decision.

3

The facts which have given rise to this litigation are as follows:—

4

The defendant /respondent, together with her five other sisters, inherited the Pt. Cistern Estate at Carriacou from theirfather, the late Benjamin Alexis. Though not surveyed, the land was divided by mutual agreement into six more or less equal parts, and duly delineated by boundary marks.

5

After some negotiaitions in which one Bertrand Alexis was the go-between, the plaintiff/appellant agreed to purchase from the respondent, the latter's share of the patrimony estimated at about 6–7 acres. The agreed purchase price was £100 per acre for the first 3 acres and £80 per acre for the remaining portion. The respondent on her part agreed to sell, subject to the approval of her children who were all abroad. In anticipation of the agreement of her children, the respondent accepted on the 11th February, 1964 and on the 9th April 1964, the respective sums of $200 and $100 on account of the purchase price. Set out in the receipt which was given for the $200 are the terms of the oral agreement save and except that it was conditional on the children agreeing to sell the land.

6

After a delay of about two years the respondent intimated to the appellant that her children were not agreeable to the sale, whereupon the appellant asked her to refund his money. The respondent failed to do so.

7

After a further delay, the appellant made repeated requests of the respondent to sign a conveyance in his favour. She however refused to do so and, on the 29th July 1969, he instituted proceedings against her for the specific performance of the contract.

8

According to the pleadings in the case, the appellant based his claim on an oral agreement the terms of which were embodied in the receipt for $200 which was made on the 11th February. This receipt was as follows:—

"Received from Mr. James K. Milne of St. George's, Grenada, the sum of Two Hundred Dollars ($200.00) being deposit on approximately seven (7) acres land situated at Point Cistern belonging to me.

The agreed purchase price to be One Hundred pounds sterling (£100) per acre for the first three (3) acres and eighty pounds sterling (£80.0.0) per acre for the remaining four acres".

9

According to the defence filed by the respondent the agreed sale was conditional on her children's agreeing. She was willing to return the $300.00 paid on account or in the alternative to execute a Conveyance in favour of the appellant for one acre.

10

At the trial the respondent apparently abandoned the idea of her willingness to convey one acre of the land for there was no further reference to such an intention throughout the hearing. Before this Court however counsel for the respondent admitted that this plea ought not to have been included in the defence. He apologised for its presence and confirmed that it had not been proceeded with in the lower Court.

11

In the final stages of his judgment the trial judge stated thus:—

"The agreement alleged by the plaintiff is too uncertain to be specially enforced, the plaintiff is however entitled to a refund of $300 which he gave to the defendant by way of advance".

12

The trial judge having accepted the fact that the land which was the subject matter of the agreement for sale had been delineated and marked off with boundary marks, nevertheless based his refusal to make the order for specific performance on the ground of uncertainty. This uncertainty as he stated in his judgment, arose out of the discrepancy between the appellant and the respondent as to the area of the land. The appellant, despite the receipt in his possession referring to seven acres, was under the impression that he was purchasing six and a half acres, while the respondent was of the opinion that the agreement was for seven acres.

13

Counsel for the appellant quite convincingly and with justification challenged the accuracy of this conclusion of thetrial judges

14

The evidence in the case indicated clearly that the land which was the subject matter of the agreement for sale was easily identifiable and that its area could equally well have been ascertained; indeed the circumstances were such as to render applicable themaxim id certum est quod certum reddi potest and admitted of no uncertainty. Accordingly, when the trial judge founded his refusal to grant the application of the plaintiff/appellant on the ground of uncertainty he was obviously in error.

15

Counsel for the appellant further urged on the Court that because the trial judge had drawn a conclusion from the facts before him which was obviously wrong, it was open to the Court on the authority ofCoghlan v. Cumberland (1898) 1 Ch Div 704 to correct those errors and to arrive at its own conclusions of facts on the evidence as a whole.

16

In the instant case although the trial judge made several important findings of fact, he nevertheless gave no effect to them when he arrived at his conclusion of uncertainty. His conclusion in this regard was completely isolated from the many other facts which he found and which could have been in the nature of strong influencing factors in determining material issues in the case. These findings of fact are on record in the judgment of the trial judge. They were the result of his assessment of the witnesses who appeared before him, and his preference for the one rather than the other of two conflicting versions. It is in the face of such findings that counsel urges the Court to regard the facts as being at large, and to find facts other than those found by the trial judge.

17

The principles whereby an appellate court may review questions of fact tried by a judge without a jury are set out in the cases ofCoghlan v. Cumberland supra and in Watt or Thomas V. Thomas 1947 AC 484.

"When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanors, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses."

In the former Lindley M.R. stated:—
18

and in the latter Lord Thanker ton had this to say:—

"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the apellate court".

19

These limitations on the circumstances in which an appeal Court will interfere with findings of fact of a trial judge sitting alone clearly indicate the flaw in the submission of counsel, and leave this Court no alternative but to attach the greatest weight to the opinion of the trial judge unless it is plainly unsound. In the instant case, apart from the trial judge's conclusion in relation to the question of uncertainty which I have already indicated had nothing to do with the other facts found, I can find no good reason for interfering with his findings of fact which seem to be amply justified from the evidence which was before him.

20

The finding by the trial judge that the respondent toldthe appellant that she could not sell the land unless her children agreed, establishes the conclusion that the agreement to sell was conditional on the approval of the children and since the children did not agree the sale could not have been concluded.

21

The further finding that in the event of the children not approving the sale the appellant would accept the return of the money lends yet further strength to the respondent's story that the agreement to sell was a conditional one, the non-fulfillment of which rendered the moneys paid on account refundable.

22

These findings in my...

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