Mkandawire v Wawanya (Civil Cause 412 of 1990) [1992] MWHC 42 (22 July 1992)

a | se COUNT . HIG Oy t IN THE HIGH COURT OF MALAWI LIBRARY PRINCIPAL REGISTRY CIVIL CAUSE NO- 412 OF 1990 ‘BETWEEN: MARGARET MKANDAWIRE. «oes Se cae GEOFFREY M ee (cee hn eee CORAM: . MKANDAWIRE, J. Msisha, of Counsel, for the Plaintiff Nyirenda, of Counsel, for the Defendant Kholowa, Court Clerk JUDGEME nT In this originating summons the plaintiff is seeking specific performance of an alleged agreement. for sele of land. Alternatively, the plaintiff prays that the defendant be ordered to pay damages in lieu of or in addition to specific performance. It is alleged that in ofr about t February, 1989 the defendant © agreed to sell anc the plaintiff agreed to purchase Plot Number BW. 434/30 Nanchol?, in the City of Blantyrex it is further alleged that in breach of the said sale agreement the gefendant terminated the same. : es a nes On. the other hand, the defendant says that there was no contract in February, 285 the offer nad lapsed: However, the contract that was subsequently entered into . was repudiated by the plaintiff. : mee ‘ It is not in dispute that the defendant is the owner of the house situated on Plot Number pw. 434/30, Nacholi in the City cf Blantyre. It is also not in dispute that in his letter dated 13th February, 198S he had offered to sell the i house to the plaintiff at a price of K72,000.00. The offer was to be accepted within 14 days. There was to be a deposit of K7,200.00, which was 10% ef the purchase price. Payment cf the deposit within the stipulated 14 days would constitute acceptance. The offer was subject to completion of legal formalities and the provisions of the Land Act. It F was the plaintiff's evidence that she accepted the offer on k cs 28th February, 1989 when she personally handed the cheque of it K7,200,00 to the defendant at the National Bank, Henderson Street Branch. The cneque, together with a covering letter were personally handed to the defendant in the presence of On Nieiea eee Mr Chilingulo, who was then the plaintiff's legal practitioner. The plaintiff told the Court that the defendant needed the money urgently and so jt was arranged that they meet at the Bank and the deposit would be paid. The defendant's evidence on the matter is that the cheque was not given to him personally, but that it was left at the offices of M/s Kaliwo & Company. No date was set for paying the balance of the purchase price, but it was understood - that the usual congGitions and proceaures would apply. It became clear that towards the end of 1989 relationship between the parties went sour. After the plaintiff's purported acceptance letter of 28th Februery, 1989, there were meetings and various corresponcences passec between the parties. Perhaps at this stage { should refer to the defendant's letter of 12th October, 19869 in which he made it clear that he was not prepared to go on with the deal, because the time within which the plaintiff was to finalise the deal had expired, ana because of certain allegations mage against him. fhe final blow to the propesed deal came on 30th January, 1990 when the aefendant wrote that he was not selling the property to the plaintiff. Before I consider the question of breach, I think I must first determine whether there was indeee a contract of saie between the parties. Té I find that there was. a contract, I must further determine whether such contract was enforceable. The defendant made his offer on 13th February, 1989 and in terms of Order 3/2/2 cf the Rules of the Supreme Court, this offer lapsed on 27th February, 1989. The plaintiff hag to indicate her acceptance within 14 days. 50 that when she was writing her letter of ecceptance of 28th February, 1989, there was, strictly speaking, no offer to accept. It is on this basis that it was submitted, on behalf of the defendant, that the defendant made a new offer which the plaintiff acceptec. One of the terms Gf the alleged new offer was that the plaintiff was to furnish evidence of her ability to pay the purchase price. From the correspondence that passed between the parties, f do not think that the contention that there was 4 new coffer can be sustained. There is absclutely no evicence of a new offer. According to the avicence before tnis Court, there was only one offer cf 13th February, 198°. On the otner hand, it was submitted, on behalf of the plaintiff, thet even if the defendant's offer lapsed on 27th February, 1989, from what passed between the parties he must be taken to have treated the plaintiff's letter ana cheque of 28th February, 1969 as acceptance. The defendant's letter of Lith August, 1989 was cited as evidence. It is indeed very true thet courts may infer the existence of contract from the conduct of tne parties. If the defendant nad rejecteac the plaintiff's purported acceptance on the pasis that the offer nad lapsed, that wouleé have been the end cf the matter. But that was not the case. The Geposit was accepted and the defendant must be taken to have waived the condition that the offer be acceptec within 14 days, just like in the case Cashill v. Carbolic Smoke Ball Co. (1963) 1 Q. B.256 in which the efferer was taken to have waived the reguirement of communication of acceptance. That the defendant must be taken to have waived the time lapse is clear from his letter of llth August, 1989, the first paragraph of which is pertinent. But I shall reprceauce the entire letter because I ebell refer ta it on Some other matter later in this judgement. The letter reaags as follows, and it is important te note that it was personally written by the defendant: 2 Langed Property Agents P. O. Box 2387 BLANTYRE llth August, 1989 Miss M. Mkandawire c/O Messrs Chilingulo & CO. Legal Practitioners c/O INDE Bank P. O. Box 358 BLANTYRE THROUGH ; Messrs G. G. Kaliwo P O Box 2640 BLANTYRE Dear Macam PROPOSED SALE OF PLOT NO. BW/434/30, NANCHOLI On 13th February, 1989 we had offered through Landed Property Agents te sell the abcve premises to yourself. You paid a deposit and advised that would obtained a lean from = your employers for the transaction. We have been waiting since then. Your emoloyers recuested initially for a valuation, this was provided by the Government valuer in March. They further requested for @ structural survey, rather 24 strange thing to request for on @ single storey builéing in Malawi. This was later provided for. Meanwhile you requested for drawings of the property jnoréer to see possible extension, I proviced these and alse assisted in obtaining technical advice. To- date you have not been able to secure a loan with your employers. Sa SS, xk, 08 OCT 1993 S eo wat oe On Thursday 10th August, 1989, you approeachec me to prief me of latest developments on your loan application. From your prief I have gathered that the Bank is not happy with the transaction. Apparently the Bank thinks the property tg not fully secured by me, they have intimated to you that I heve alreacy obtained a deposit from some other person and that I have eroblems with Malawi Housing Corporation my previous employers» These developments cast doubts on your ability to secure a loan with your employers and I am hereby giving you notice that should we not hear from you within seven days from the date of this letter we will have no option but to cancel and witheraw the efter. Arrangements will thereby be mace to refund your deposit within 90 GaySs- Yours faithfully G. M. Wawen a" From a reading of the first paragraph of the letter, there Gan be 710 doubt that, inspite of the 14-cay requirement, the defendant must be taken to have kept his offer open UP to the 28th February, 1989 when the plaintiff accepted it- To hold otherwise would only amount to ignoring the clear intentions of the parties. It is quite significant that in this letter the defencant is not referring to @ new or subsequent offer, but to his offer of 13th Februery, 1989 which the nlaintifft accepted unequivocally. There was, therefore, @ valid contract for the sale of Plot No- pw/434/30, Nancholi, in the City of Blantyre. The next question I must determine is whether this contract was enforceable. section ¢ of the Statute of Fraucés 1677 requires that a contract for the gale of land be evidences in writing. In this case, Mo doubt, the Statute of Frauds has been satisfied. The defendant's offer of 13th Februery, 1989 sufficiently describes the property to be sold and the ecnsideration to be paid. When this letter is reag together with the letter of acceptance and then the Gefendant's letter of {ith August, 19599, there cen be no doubt there was @ sufficient memorandum in terms of the Statute of Frauds - see the case of studds vV- Watson, 28 ch. D.305. The contract was, therefore, enforceable. Now to the question of breach. Each party blames the other. i as eontended by the defendant that it was the plaintif who had breacnec the contract by her failure to pay the balance of the purchase. io, us concedea that no cate was fixed for the payment of the purchase price, put that his letter of Lith August, 19289 had made time of the essence of the contract. The plaintiff's contention is that time at was not of the essence and = she unreascnable celay. AS a matter of fact, in January, 1990 the plaintiff paid K62,800.00 and the final payment was offered in March, 1990. It was also submitted, on behalf cf the plaintiff, that the defendant cannot properly complain of Gelay when he himself had not carried out the vendor's obligations under the contract. This contract had limited no time for completion ané as such each party was entitled to a reasonable time for doing the various acts which he had to 4o, It is contended by the defendant that by his letter of lith August, 1989 he had mace time of the essence and that the plaintiff had failed to pay the purchase price within the time given. Was the defencant entitled to give such notice? The law is that he was not, unless the plaintiff was guilty of unreasonable delay. In the case of Green v. Sevin, 13 Ch. D.589, Fry J. had this to say at page 599: "That which is not of the essence of the original contract is net te be made so by the volition of one ef the parties, unless the other has done something which gives a right to the cther to make it so. You cannot make a new contract at the will of one of the contracting parties. There must have been such improper conduct on the part of the other as to justify the rescission of the contract sub modo, that is, if a reasonable netice be not complied with. That this is the law appears to me abundantly plain." If I may ask. Was -the plaintiff guilty of any impropriety or unreasonable or unjustified delay so as to give the cefendant the right to give notice? I think that she was. What is unreasonable or unjustified delay depends on the circumstances of each case. In the Sevin case there was a delay of two years, but that was held not to be unreasonable due to the complications that existed between Green and his mortgagees. In any case, it was found that Seven had acted promptly in sending an abstract to the vendor's lawyers. Indeed, the facts of that case are entirely different from the present. What then are the circumstances of the instant cease? The plaintiff accepted the offer to purchase the property on 26th February, 1969. On thet day the contract was born. She paid a ceposit of K7,200.00 and said she was going to obtain a loan from her emplceyers to pay the balance of the purchase price. Payment of the balance of the purchase price did not depend on the obtaining of the consents. Although the contract fixed no date for the payment of the balance of the purchase price, the plaintiff well knew that the defendant needec money urgently. She said so in her own evidence, that the defendant needed the money urgently. He had just lost his jcb with the Malawi Housing Corporation and he was just setting up a new business for himself. These facts yee | é ( OgocTiNgS Ss Atamrennese senate E EE ~ LIBRARY ; were well known to the plaintiff. She, therefore, ought to have known that delays in paying the money would occasion the defendant financial hardship. Up to the iith August, 1989 the plaintiff hac six months in which to raise the money, but she had not done so. During that period the Gefendant had supplied Grawings of the property and assistec in obtaining technical advice. All this was to ensure that the plaintiff got the loan, but to no avail. Perhaps the Gefendant was right when he doubted the plaintiff's ability to get the loan. As if the delay of six months was not long enough, the reply to the letter of Lith August, 1989 was quite cool. No @oubt the plaintiff was buying time. This letter was written by her lawyer, at the time bre (Coss Chilingvlo, ana it wes vouched in the following terms: "y refer to your letter of August, il, 198¢ addressed o Miss M. Mkancawire ana to subsequent telepnone conversation I hed with you this morning. t would like to confirm, that my client is out of the country at the moment. However before she left she assured me that she hac sufficient funds of ner own to top up whatever shortfall there will >be on the house purchase loan her employers will finally grant WET « In view of the foregoing and as agreed during the telephene converation, I shoulé be grateful if you would pend any action in this matter until my client returns at the end of next month." This letter was Gated 17th Rugust, 1989. The defendant was requested to pend any action until the end of September. Although the plaintiff was said to have sufficient funds of her own, no payment was made at the end of September. Tt seems clear that the plaintiff was not able toe raise the balance of the purchase price which stood at K64,806.00 anda failure to pay constituted a breach of a fundamental term of the contract: Because of the plaintiff's conduct, the Gefendant was forced to obtain a loan from the Leasing and Finance Company of Malawi Limited to buy himself a pick-up for his new business. This ne on 27th September, 1989. On 12th October, 1989 the defendant sent the following letter which was copied out to the plaintiff's legal practitioner: “J refer to your letter dated 6th Octeber 1989 and correspondence exchangeé earlier between the proposed purchaser's counsel and myself and the discussion we hel& in your office on Wednesday, llth October 198s and wish to confirm that in as far as I am concerned the proposed transaction cannot proceed in good faith and was cancelled by my agents after giving the eurchaser time in which to finalise the deal, time which has since expirec. f mei ete eal ee Is ff LIBRARY me Soe ee Iam looking forward to the proposed meeting as suggested by you. I feel in acting in god faith, my own personal name ang reputation are being scandalised by the proposed dceal." Although the defendant has referred to certain ellegations made against him, it is quite clear that he is complaining that the plaintiff was not peying and did not pay within the time given anc that as 4 result he was treating the contract as repudiated. However, inspite of this letter, tnere was still correspondence between the parties, but no payment. The plaintiff finally paid in January, 1890. But by that time the defendant had had enough. In so far as he was concerned, the contract was no more. Even at that time the plaintiff had not paid the full balance of the purchase price, but had left K2,000.00 unpaid. t think that in these circumstences, the defendant was entitled to treat the contract as repudiated. Although the defendant's letter of Lith August did not specifically fix a date for payment of the purchase price, it is cleer that he wanted to have @ definite commitment within 7 Gays. Mr Chilingulo replied on the plaintiff's behalf that she had sufficient funds of her own and requested the defendant to pend any action up to the end of september. Nothing happened at the end of September and the Gefendant hac to wait for months. As I have already said, the delay was unreasonable and wholly unjustified. Specific performance is an equitable remedy. The conduct of a party who seeks an equitable remedy is always unger consideration. As the saying goes: "he who comes to equity must come with clean hands." In the case of Measures Brothers Ltd v. Measures (1910) 2 ch.248 Sir H H Cozens- Hardy, M. R. saic at page 2543 "I prefer to base my judgement upon the ground that the plaintiffs, who ere seeking equitable relief by way of injuncticn, cannot obtain such relief unless they allege anc prove that they have performec their part of the bargain hitherto and are ready and able alse to perform their part in the future." In the instant case I am of the clear view that the plaintiff failed to pay the vourchase price or at least faile@ to pay within a reasonable time. Th “-Cannex, therefore, lie in her mouth that the defendant be compelled to perform his part cf the contract when the plaintiff is unable to perform hers. With these observations I wovld cismiss this originating summons with costs and I so Gc. Of course, the plaintiff is entitled to all the money that she paid uncer the abortive contract. PRONOUNCED in open Court this 22nd day of July at Blantyre. 2 | M www 2 ~ JUDGE oa fr Ge “60 RT OF | Maia an Va Se ty sy (" 08 OCT 1993 Ee AN f eee a at —— L et See IBR A a age “atone, et eer