Following this week’s Caribbean Court of Justice (CCJ) ruling in which land developer Systems Sales Ltd (Stanton Gittens) lost its case against Arletta O. Browne-Oxley, first respondent and executrix of the estate of Glenfield DaCosta Suttle (deceased) and second respondent Patsena Suttle (widow), the attorneys for Systems Sales and Gittens have expressed reservations about the regional court. Here are observations made by the legal team of Hal Gollop, QC, Steve Gollop and Vernon Smith, QC, which they say are crucial to understanding the case.
(1) The effect of the decision from the three courts is that the vendor has now been left with the purchaser’s ten per cent deposit, the land with the required infrastructure for development, the land with the greatly enhanced value because it has been upgraded from an ordinary parcel of land to developed land, which would be significantly higher in value, while the purchaser has been sent away with nothing. We ask: can this be just?
(2) The reference in the “media release” that suggests that the fact there was no plan attached was a significant factor in their decision demonstrates a total lack of conveyancing practice in Barbados. As counsel have pointed out, if there was a requirement for a plan to be attached to an agreement, it would be impossible to sell a plantation in Barbados.
There are no plans for a plantation. In addition, there could be no sales under the Tenantry Freehold Purchase Act, as no plans are issued; qualified tenants are allowed to purchase the parcel they occupy. In Barbados, a plan is usually handed over usually at the closing. Plans are part of the mopping up exercise.
The description of the land in this instance is set out in the agreement by a schedule.
(3) Land to be sold for subdivision development purposes may only be sold after receiving the approval of the Chief Town Planner.
(4) The only plan that could qualify as the approved plan in this instance is the System Sales plan, which was the plan in existence at the date of the agreement and was the only approved plan. The plan which the court accepted was neither approved by the Chief Town Planner nor was it in existence at the date of the agreement.
(5) The agreement sets out the only means by which a deposit may be forfeited. The agreement explicitly states it must be done by notice in writing.
(6) The CCJ on Tuesday simply informed that the application for leave was refused and therefore dismissed. Nothing more. It was then that counsel submitted to this court that it was wholly absurd where, as the court informed there was a right of appeal, an application for leave can viciate that right. He asked for that submission to be written into the record.
(7) It is clear from the “media release” that the CCJ paid absolutely no regard to the submissions which they asked to be submitted.
(8) If, as has happened in this case, the courts rule that there has been no agreement by the parties, in that they are not ad idem, how can the vendor hold on to System Sale’s deposit?
(9) The remedy of specific performance is simply an order by a court to carry out the contract as agreed. It is a creature of a court of equity. Courts of equity are courts of conscience and “equity sees as done as ought to be done”.
In short, equity’s thrust is to see that there is justice and fairness. We finally ask: has justice been meted out to our client by the court of equity? Has he been treated fairly? You be the judge.