In
the High Court of Swaziland
Civ.
Case No. 1798/93
In
the matter between:
Michael
Miguel Bhila Applicant
And
Abednigo
Makhehlane Nxumalo Respondent
CORAM :
Hull, C.J.
FOR
APPLICANT Miss Gwiji
FOR
RESPONDENT Mr. Nxumalo
Judgment
(4/2/94)
By
an agreement made in writing on 6th May 1993, the respondent agreed
to sell a lot of land at Mbabane to the applicant.
The
agreement provided that the purchase price was to be E10,000, payable
as to the amount of E6,400 on signature and as to the balance "within
two months from date of signature."
The
operative terms of the written agreement, in their entirety, are as
follows:
"MEMORANDUM
OF AGREEMENT "Made and entered into by and between:
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"ABEDNEGO
MAKHEHLANE NXUMALO
"An
adult male Swazi adult of P.O. Box 99 Mankayane (hereinafter referred
to as "the Seller") of the one part.
"and
"MICHAEL MIGUEL BHILA
"An
adult male swazi of P.O. Box 51 Malkerns (hereinafter referred to as
"the Purchaser") of the other part.
"WHEREAS
the seller is the registered owner of certain Lot No. 25 situate at
Malunge Township Mbabane Hhohho.
"AND
WHEREAS the seller is desirous of disposing of the said property to
the Purchaser who is desirous of acquiring same.
"NOW
THEREFORE THESE PRESENTS W1TNESSETH:
"The
seller hereby sells to the Purchaser who hereby purchases all her
right and interest in and to the following property:
"1.
"1.1.
Certain Lot No. 25 situate at Malunge Township Mbabane.
"2.
"The
Purchaser price of the property is the sum of E10 000.00 (Ten
Thousand Emalangeni) payable as follows:
"2.1
That the amount " of E6400.00 (Six Thousand Four Hundred) shall
be payable to the seller on signature hereof.
"2.2
That the balance shall be payable within 2 (two) months from date of
signature hereof to the seller.
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"3.
"The
property hereby sold is located on title Deed Land and the Purchaser
acknowledges that he is fully aware of the extent and the
circumstances under which it is sold.
"4.
"The
Purchaser shall pay the costs of drawing up this agreement and those
attendant thereto.
"5.
"This is the only agreement between the parties."
The
buyer paid the sum of E6.400 on signature. At some time in August or
September, he paid to the seller E350.
On
28th August the seller's attorneys wrote to him. They acknowledged in
this letter that he had paid E6,400. Then they went on to say that
the balance and costs had not yet been paid. The letter ended in the
following term:
"We
are under strict instructions to demand payment of the owing amounts,
should you fail so to pay on or before the 2nd September 1993, client
shall repudiate from the agreement and you shall forfeit the
deposit."
The
buyer's attorneys replied to this on 2nd September. They stated that
the buyer wished to comply with the contract but was unable to pay
the balance because the seller had not furnished the title deed so as
to enable the transfer to proceed. They went on to say:
"Client
is willing to pay off the balance in 2 equal instalments. The first
payment being made at the end of September 1993.
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"Kindly
advise me of your client's attitude to client's offer."
On
4th November, the buyer's attorney sent to the seller's attorneys a
cheque for E3250. " He referred to the fact that E350 had been
paid to the seller during August - September, and went on to say:
"This
concludes the contract.
"Please
furnish me with the Title Deed for the property as client wishes to
commence transfer proceedings."
The
seller's attorneys returned that cheque. They also sent to the
buyer's attorney another cheque for E6750.
As
far as all of that goes, it is not in dispute. It is not disputed
either that the seller has not produced title deeds.
Two
other allegations of fact are, in my view, to be taken as not being
in contention.
The
buyer choose to proceed by application. That affords each party the
opportunity to present his evidence logically and comprehensively on
affidavit (subject certainly to the impact of any cross-examination.)
Where
one of the parties does not address an allegation made by the other,
either in an opposing affidavit or by applying for the matter to go
to oral evidence or trial - and also, I think, where he deals with an
opposing allegation in a limited or oblique way - then it is open to
the court to infer that he does not dispute it.
In
his founding . affidavit the buyer anticipated an allegation that he
had in November demanded the return of his money. He anticipated it
by saying, in paragraph S,
5
that
the seller was contending this. The buyer did not, however, deny that
allegation. It seems to me that the way in which the paragraph is
drafted may be intended to avoid answering it. Whether or not that is
so, the buyer has not filed a further affidavit in reply to the
allegation (which was in the event made) or sought to go to oral
evidence on the issue, or to submit that the allegation, on the
papers, is patently spurious. I infer from this that the buyer did,
in November, demand the return of his money as the seller asserts.
It
is also evident from the papers that, while denying the buyer's
assertion that he had never been given notice that the sale had been
cancelled, the seller is relying in that respect on his attorney's
letter of 28th August. In other words, it is not suggested that there
was any subsequent notification that the seller had proceeded to
cancel the sale.
This
is an application for specific performance. The buyer seeks the
confirmation of a rule nisi calling on the seller to deliver up the
title deeds or, alternatively, authorising the Registrar of the High
Court to sign all documents necessary to effect registration of the
transfer of title to the buyer. More appropriately, I think the
prayer should be for an order "authorising and directing"
the Registrar to do so, but the final prayer in the application is
wide enough for that.
The
buyer for his part must show that he is ready and willing to carry
out his own obligations under the agreement. In his affidavit he does
not say expressly that he is willing to do so. Beyond acknowledging
that the balance of the purchase price was returned to his attorneys,
he not say explicitly whether the refund was accepted. At best, he is
saying by implication, by pursuing his application for specific
performance, that he does not accept it.
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The
buyer has not challenged the seller's evidence that the parties from
the outset knew that the seller did not have title deeds, even though
he was the registered owner of the land. He has not argued either
that having regard to the express terms of the written agreement, and
in particular clause 5, the seller's evidence on that point is
inadmissible.
If,
as in this case, on agreement for the sale of land is silent as to
completion of the transfer of legal title into the name of the buyer
on payment of the purchase price, in my view there is to be implied
into the contract a term that the seller must be ready to do
everything that is necessary on his part to complete the transfer of
title. I think that that must be implied as a matter of law, as one
of the naturally of the agreement. However I do not think that it can
be the case that this means that, as a matter of law, the seller must
deliver the title deeds as such. It is quite conceivable that a
seller who, though he does own land, for some reason does not have
the actual deeds, may agree with another person to sell the land to
him, both parties knowing the facts. In these circumstances, I think
that the seller's obligation is to do everything necessary on his
part to enable the buyer to obtain the issue of new deeds in his
name.
No
objection has been taken by the buyer as to the admissibility of the
seller's evidence that both parties knew that he did not hold title
deeds. Although clause 5 stipulates that the written document is the
only contract, clause 3 is part of that document. It refers to the
property as being on "title deed land" and then it goes on
to say that the buyer acknowledges that he is fully aware "of
the extent and the circumstances under which it is sold". That
might, in my view, subsume an acknowledgement that the buyer has
inspected the land records and satisfied himself as to the extent of
the seller's title and the dimensions of the lot.
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However,
the phrase "of the extent and the circumstances under which it
is sold does seem to me to be somewhat wider, and to contain an
inference that there are other features of the transaction, relating
to the fact that it is situated on deeds land, that the parties had
in mind in making their agreement. The buyer has not taken any point
as to admissibility. I think that clause 3 is ambiguous or at least
unclear as to its scope, and I think too that it is possible for the
court to have regard to the seller's evidence in interpreting it.
On
the evidence before me, the only written complaint that the buyer
made about the absence of title deeds was in his attorney's letter of
2nd September, in reply to the seller's letter of 28th August calling
on him to complete. This letter of 2nd September asserts that the
buyer could not complete because the seller did not furnish him with
title deeds. It does not assert that they had been called for by the
buyer. It goes on to say that the buyer is willing to pay off the
balance in two equal instalments; in stating this, however, it does
not explicitly stipulate that the seller must in turn now made the
deeds available. It concludes by asking to be informed of the
seller's "attitude" to this "offer". On the
buyer's case, as presented here, it would have been more to the point
surely to state that he was ready and willing to complete on a given
day, subject to the production of the deeds, and that in the meantime
he reserved all his rights. His proposal to pay off the balance in
two instalments, the more so without stipulating for the deeds at
some point, and his failure to identify clearly in the letter the
proposed date for the second of those instalments (for that is not
identified) appear to me more consistent with a state of affairs in
which what he was really seeking was further time in which to
complete.
His
attorney's further letter of 4th November (marked "without
prejudice", but produced in evidence on his behalf) also seems
to indicate that the reasons for his delay in
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paying
the balance of the purchase price did not have to do with the title
deeds as such. By that letter he did tender the balance,
notwithstanding that he had not then received the deeds. In doing so
he simply asked to receive them.
The
buyer's affidavit does not show otherwise in these respects. I am not
satisfied in this case that it was probably a term of the agreement
that in return for the balance of the purchase price the seller was
to deliver the title deeds as such to the buyer or that in fact the
buyer's reason for not tendering the balance two months after the
date of signing was that the seller had failed to produce the deeds.
The
agreement does not contain an express forfeiture clause but it does
stipulate a time for payment of the balance. By the letter of 28th
August, the seller made time of the essence of the contract. The
buyer was by then in breach, and the nature of the breach in my view
clearly went to the root of the bargain. By 2nd September he was
still in breach.
The
seller did not, after 2nd September, give further notice that the
contract was cancelled but his attorneys on his instructions refused
to accept the cheque tendered for the balance of the price.
Then
there is the unchallenged evidence by the seller that the buyer did
thereafter demand the refund of his money and that this was
accordingly sent back to the buyer's attorneys. I am not satisfied
that he was probably ready and willing to complete his side of the
agreement. In any event, he cannot both claim the refund of the whole
price and seek specific performance. By calling for the refund he was
in my opinion accepting that the contract was at an end.
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Accordingly
the application is dismissed with costs to the respondent.
DAVID
HULL
CHIEF
JUSTICE
