Harrigan et Al v Daniels and Galaxy Shoppe (Anguilla) Ltd
| Jurisdiction | Anguilla |
| Judge | Georges, J.A. |
| Judgment Date | 11 November 2002 |
| Neutral Citation | AI 2002 CA 1 |
| Date | 11 November 2002 |
| Court | Court of Appeal (Anguilla) |
| Docket Number | Civil Appeal No. 6 of 2000 |
Court of Appeal
Georges, J.A.; Singh, J.A.; Redhead, J.A.
Civil Appeal No. 6 of 2000
Mr. Patrick Patterson for the appellants
Ms. Joyce Kentish and Mr. Elson Gaskin for the respondents
Sale of land - payment of 10% deposit — Whether the first respondent had the authority to sell the land in the approval of bank which was a condition precedent had not been obtained — Specific performance of agreement ordered.
Real property - Agency — Whether agent had authority to enter into sale agreement on behalf of Board of second respondent — Finding that agent had both actual and ostensible authority to sell the property and he could not assert otherwise.
Georges, J.A. [Ag.]: This appeal arises from two Sale and Purchase Agreements dated 24 th April, 1997 between the first respondents as Vendor and the first and second appellants for and on behalf of the third appellant Company as Purchaser wherein the Vendor agreed to sell and the Purchaser agreed to buy the absolute title of
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(1) five parcels of land comprising approximately 2.22 acres registered as Parcels 50, 51, 52, 53 and 54 in the North Central Registration Section of the Anguilla Land Registry with any fixtures fittings equipment chattels and stock in the building on Parcel 54 for the sum of US$367,000.00, and
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(2) Parcel 24 comprising approximately 0.49 acres of land and building thereon registered in the North Central Registration Section of the Anguilla Land Registry including the goodwill of the business carried on thereon with any fixtures fittings equipment chattels and stock in the said building for the sum of US $262,400.00.
According to Clause 3 of each Agreement the Purchaser agreed to pay by way of deposit 10% of the total purchase price on or before the signing of the Agreement by banker's draft to and in the name of the Vendor and the National Bank of Anguilla Limited [NBA] jointly and as stake holders and the balance of the purchase price on the date of completion of the purchase.
All the parcels were encumbered by registered charges in favour of the NBA inter alia.
Clause 5 of the Agreement provided that the Vendor would forthwith take and carry to completion all necessary steps and proceedings and use his best endevours to obtain the written consent of NBA to the sale.
Clause 6 of the Agreement stipulated that the said Agreement was conditional upon the approval/consent of the NBA to the sale provisionally agreed to and shall be void unless within one month the same shall have been approved/consented in writing by the NBA.
Both agreements were duly signed on 24th April, 1997 by the 1st respondent and the 1st and 2nd appellants on behalf of the 3rd appellant Company at the premises of Joseph Norris Payne a former Commissioner of Police of Anguilla and a Justice of the Peace who witnessed the signing of each agreement the terms and conditions of which were essentially the same.
On the signing of the agreements the appellants proferred to the 1st respondent the agreed deposit of 10% of the total purchase price by way of a cheque in the sum of US $63,000.00 drawn on the NBA in favour of ‘NBA — Galaxy Shoppe’ [the 2nd respondent] and later that day at the direction of the 1st respondent presented the cheque and copies of the Agreements to Mr. Val Banks the General Manager of the NBA.
The very next day the 1st respondent acting on the advice and at the instigation of his daughter Mrs. Valarie Banks a shareholder and director of Galaxy Shoppe Limited sought to have the agreements rendered void on the ground that the 1st respondent had not been given authority to sell by the Board.
Indeed that selfsame day the 1st respondent telephoned the 1st appellant and indicated that he wanted the agreements made null and void asserting that he was mistaken as to the instructions given to him and stating that he lacked authority to sell and that the shareholders had made it clear to him that they would not approve the sale.
In the result the 1st respondent took no steps to obtain the written consent of the NBA as required by Clause 5 of the Agreements and in fact attempted to prevent the necessary consent being given. Whereupon the appellants applied for and placed a restriction on each of the various parcels of land enumerated above and began legal proceedings for inter alia specific performance of the Agreements and an injunction restraining the respondents from selling the said lands or alternatively damages in addition to or in lieu of specific performance damages for breach of contract and further and in the alternative damages for breach of contract and against the 1st respondent damages for breach by warranty of authority interest and costs.
In an amended defence dated 7th September, 1999 the 1 st respondent [Mr. Daniels] whilst admitting having entered in the written Sale and Purchase Agreements [the Agreements] dated 24th April, 1997 states [at paragraph 2]:
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(3) That the parties to said Agreements were at all materials times intended to be and were in fact the first-named defendant as Vendor and the third-named plaintiff as Purchaser acting through its agents the first and second-named plaintiffs.
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(4) That it was not within the contemplation of the parties nor is it shown in the Agreement that the first and second-named plaintiffs had or would have any relationship with the subject matter of the said Agreements other than that of agents acting for and on behalf of a disclosed principal and accordingly they lack locus standi to sue as plaintiffs in this action.
Mr. Daniel further avers [at paragraph 3] that whilst he purported to act for and on behalf of the second-named defendant/respondent [Galaxy Shoppe] and indeed entered the relevant Sale and Purchase Agreement [in respect] of Parcel 24:
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(1) That he at the material time did not have the consent of the second-named defendant/respondent [Galaxy Shoppe] to act on its behalf in the matter of the sale of its land to the third-named plaintiff and lacked the requisite authority to enter into the said Agreement on behalf of the second-named defendant;
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(2) That in purporting to contract as he did, the Purchaser was contemplated to be and was in fact the third-named plaintiff acting through its agents the first and second plaintiffs.
The 1st and 2nd appellants [the Harrigans] he maintained were never parties to the Agreements in their own right but merely acted as agents for the 3rd appellant. Indeed the preamble of each Agreement confirms that as does the signature clause which is signed and sealed by the Harrigans on behalf of the 3rd appellant company.
It is also further averred [at paragraph 9] that as soon as Mr. Daniels informed the other members of the Board of Galaxy Shoppe of the Agreement for sale of Parcel 24 he was instructed by the Board to inform the Purchaser of his want of authority to do so and that the Agreement was therefore null and void. Hence it is contended that there could have been no valid and binding Agreement on the part of the 2nd respondent.
At paragraph 10 of the amended Defence Mr. Daniel avers that in executing the said Agreement for the sale of Parcel 24, he at all materials time acted in the mistaken belief that the ratification of authority given by the Board of Directors of Galaxy Shoppe some seventeen months earlier to effect a sale of the said Parcel 24 to another prospective purchaser on 3rd May, 1995 still subsisted and authorised him to enter into the present Agreement.
In light of the foregoing the respondents maintain that they are not guilty of breach of the alleged Agreement for the sale of Parcel 24. And having disavowed the validity of the Agreement for want of authority they further declare that there could not have subsisted simultaneously a continuing obligation to secure the written consent of the NBA for the sale of the property.
The action came on for hearing before Hariprashad Charles, J. (Ag.) [as she then was] on 19th July, 1999 and after a trial spanning nine days in a comprehensive judgment consisting of no fewer than 126 paragraphs the learned judge dismissed the plaintiffs/appellants' claim with costs as well as the defendants/respondents' counterclaim from damages resulting for the alleged wrongful placing of restrictions by the appellants against the respondents' properties.
The learned trial judge in effect found that:
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(1) The proper party to the suit being the third-named plaintiff the first and second plaintiffs [the Harrigans] had no locus standi therein and ordered that they be struck off therefrom with costs thrown away to the defendants;
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(2) the sale and Purchase Agreements entered into by the plaintiffs and the defendants on the 24th April, 1997 were unconscionable bargains and ordered that they be set aside; and
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(3) that the said Agreements were void and did not create binding and enforceable contracts for the sale of the lands in question and should be set aside.
A number of findings of fact and of law of the learned trial judge are challenged by the plaintiffs/appellants in a Notice of Appeal filed April 10, 2000 containing ten grounds with grounds 1 and 2 being subdivided into several subparagraphs. This was subsequently supplanted by a supplementary Notice of Appeal filed October 12, 2001 containing sixteen grounds of Appeal with grounds 1 and 10 being further subdivided. Experience shows and this case is no exception that in such cases some of the grounds of appeal are subsumed by others and others are not in fact pursued at all so that it came as no surprise when at the commencement of the hearing learned Counsel for the appellants intimated to the Court that he only proposed to deal with 3 or 4 grounds.
Ground 1 which in my view is the main ground of appeal states that:
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(4) The...
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