Adnan Mkhoul Claimant v Keith Henry Etola Richards Defendants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Joseph,Monica J |
| Judgment Date | 18 December 2008 |
| Judgment citation (vLex) | [2008] ECSC J1218-4 |
| Docket Number | HIGH COURT CIVIL CLAIM NO. 121 OF 2008 |
| Court | High Court (Saint Vincent) |
| Date | 18 December 2008 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL CLAIM NO. 121 OF 2008
Joseph, In July/August 2007 the Claimant Adnan Mkhoul held discussions with Defendant Keith Henry to purchase from him (Henry) 6335 sq ft of land on which there is a two storey building (the property), situate at Belvedere in the parish of Saint George in St. Vincent and the Grenadines. Money was paid by Mkhoul to Henry but the parties differ as to the quantum.
Subsequent to those discussions, both parties visited a solicitor and a deed of gift was prepared in favour of Mkhoul which was executed by Henry. Soon after the signing of that deed of gift Mkhoul traveled to Syria for medical attention. On his return to St.Vincent in November 2007 he requested Henry who was in occupation of the property to give himpossession of the dwelling house but Henry refused, the latter claiming that he had not received the purchase price for the property from Mkhoul.
Mkhoul instituted this proceeding against the first defendant Henry and second defendant Etola Richards. The latter was the occupant of the lower storey of the dwelling house. Richards was given two Notices to quit, the first dated 3rd February 2006, by solicitors on behalf of Henry prior to the execution of the deed of gift, the second notice dated 6th March 2008 by solicitors on behalf of Mkhoul. Mr. Robertson informed the Court that Mkhoul was not continuing with the case against Richards.
Mkhoul applies as owner of the property by virtue of the deed of gift, for an Order that Henry deliver up possession of the property; damages for unlawful detention of the property and an injunction restraining Henry from occupying the property.
Henry asserts that the agreed purchase price was $90,000.00 and, as that sum has not been paid to him, denies that Mkhoul owns the property. He alleges that Mkhoul used deceit and false pretences to coerce him to execute the deed of gift and he applies for the cancellation of the deed of gift.
Alternatively, he seeks an order that Mkhoul pay him $86,000.00 being the balance of the agreed purchase price, and damages. Alternatively also, Henry claims that he signed the deed of gift in the belief that he was executing a conveyance to be held by the solicitor in trust until Henry was paid for the property.
Whether Claimant Mkhoul is the fee simple owner of the property.
Whether the deed of gift is a valid deed.
By Deed No. 2230 of 1990 Henry became the fee simple owner of the property. There is a Deed of Gift No. 46/2008 dated 15th August 2007 between Henry as grantor and Mkhoul as grantee.
A valid contract comprises three components. One, agreement between parties; two, an identifiable subject matter; three, an ascertainable price.
The subject matter is identifiable and there is no dispute about that. I shall consider the other two components, i.e., agreement between the parties and an ascertainable price.
In his witness statement Henry states that he told Mkhoul that the purchase price of the property was $90,000.00. Mkhoul indicated that he would be unable to pay that sum and offered $45,000 which he (Henry) did not accept. Henry said that Mkhoul stated that if he (Henry) signed the deed Mkhoul would pay $90,000.00 in two installments.
Mkhoul's witness statement:
"After a month or two Keith started to come by me and said to me I understand that you bought my sister's property Keith then offered his property to me. I asked him how much he wanted for the property he said $60,000.00. I said No I give $40–45 thousand. He considered my offer and he came back and asked for $50,000.00 I agreed to pay the sum of $50,000.00 and he accepted the sum of $45,000.00."
Andy Mkhoul (Mkhoul's son) witness statement:
"I saw him (Henry) again at the Traffic Variety Store, on this occasion my father called me to listen to the conversation, Keith reduce the first offer from $60,000.00 to $50,000.00. My father said he was only paying $45,000.00…..On third occasion when he came he accepted $50,000.00"
To constitute an agreement there must be an offer made by one party that is accepted by the other party. From the evidence, there was an offer of selling the property for $90,000.00 that was not accepted. Instead there was a counter offer of $50,000.00, andas will be seen later Mkhoul's claim is that he paid Henry $59,685.00. Hence there is no contract. The third component is that there must be certainty as to price. From the evidence there is no such certainty and there is therefore no contract between the parties. As there is no contract, any act that flows from that contract arrangement is of no effect and the parties cannot successfully claim any relief.
Did Mkhoul pay any sums to Henry and if so how much? Mr. Robertson submitted that, not only did Mkhoul pay Henry the sum of $50,000.00 which was the agreed purchase price, but he went beyond that sum to $59,685.00 in that he made these payments:
| US$13,500.00 EC equivalent | $37,000.00 to $38,000.00 |
| EC | 8.350.00 |
| Cheque (Also referred to as a draft) | 4,000.00 |
| Stamp duty | 6,335.00 |
| Taxes | 3,000.00 |
(Mkhoul said the sum paid on Henry's behalf for outstanding taxes is $3000.00 or about $3900.000. The sums on ten receipts amount to $2,661.58 added to the other sums totaling $59,346.58 and not $59,685.00). Details of the stamp duty appear later.
Mr. Williams invited the Court to accept that only $4000.00 was paid to Henry by Mkhoul.
I examine the evidence relative to money claimed to be paid to Henry by Mkhoul.
Henry's oral evidence was that the only money he received from Mkhoul was the cheque for $4000.00.
Mkhoul's witness statement:
"Two or three days later we returned to Mr. Joseph's office to sign the deed as it was ready. Keith came to my office and I paid him for the land even before the deed was signed — payment was $4000.00 bankers draft $8250 EC cash plus US$13,500.00."
Andy Mkhoul's oral evidence:
"When Keith sign deed of gift for my daddy give him cheque……..My father give Keith cheque. Don't know which bank.When Keith sign deed of gift not long after my father give him cheque. My father give Keith cheque by Carl Joseph. He paid Keith Henry the cheque in Carl Joseph office. He paid him other money. $38,000.00 EC and 8350 and a cheque $4,000.00. He paid him $38,000.00 by my daddy's store. Same day not after he left Carl Joseph's office. Before he go to Carl Joseph's office. EC$38,000 in cash. In hundred dollar bills I check it. He paid him US$13,500.00 in hundred dollar bills in US After that we go to lawyers. EC$8,350.00. Same time in the office. He got $4,000.00 from my daddy. He took cheque from his pocket. When my father give him at the office (Mkhoul) US$13,500.00 and $8,350.00 he had cheque in his pocket. My father go straight by the lawyers. Henry went also to sign the deed…………. Me and he bring ID card. I stay downstairs. I don't know what happen after that….I know that my father paid $4,000.00 as I heard from Carl Joseph. Same day he sign deed same day my daddy give cheque."
According to Mkhoul, he paid Henry all the money in his (Mkhoul's) office. According to Andy Mkhoul, Mkhoul paid $4,000.00 cheque in the solicitor's office and further that he (Andy Mkhoul) did not see when this happened but was told by the solicitor that $4,000.00 payment had taken place.
According to Andy Mkhoul, Mkoul had the cheque in his pocket when Mkhoul paid US$37,000.00 and EC$8,350.00 to Henry. I understand him to be saying that the cheque was in Mkhoul's pocket while Mkhoul was paying the other sums to Henry in Mkhoul's office and that Mkhoul took the cheque from his pocket and paid Henry only after the deed of gift was signed in the solicitor's office. He also said that he did not go to the lawyer's office but remained downstairs with a friend.
Why would Mkhoul keep $4,000.00 cheque in his pocket while paying the rest of the money to Henry? Why not pay all the money at the same time? Why would Mkhoul say that he paid to Henry all the money (including $4,000.00 cheque) in his (Mkhoul) office and Andy Mkhoul say that that cheque was paid to Henry in Carl Joseph's office? Where lies the truth?
Mkhoul's evidence was that on 15th August 2007 he paid Henry US$13,500.00 in one hundred dollar bills, EC$8,350.00 and $4,000.00 draft in his office. He had telephonedthe bank and requested the preparation of the cheque of $4,000.00. Why did he not request the bank to prepare a cheque to include EC$8,350.00 and US$13,500.00? Why only a cheque for $4,000.00?
I find that Mkhoul obtained the $4,000.00 cheque from the bank on 6th July 2007, as it bears that date, and held it until 15th August 2007, the date of the signing of the deed of gift. I infer from that act that he did not intend to hand over any money to Henry until after the signing of the deed of gift.
Mkhoul was being careful. A person who obtained a cheque for $4,000.00, on 6th July 2007, and cautiously held it until the 15th August 2007 when the deed of gift was signed, is unlikely to pay out US$13,500.00 in $100.00 bills and $8,350.00 EC in the manner he claimed to have paid it. I do not believe his evidence that he paid Henry those amounts.
In his submissions, Mr. Robertson stated that stamp duty is 10% of the valuation of the property, that the purchaser and vendor each pay half, and that the Court could find from payment of stamp duty of $6,335.00 that the valuation made by the Government valuer is $63,350.00.
Mkhoul claims Government valuation of the property is $63,350.00: that he paid to Henry the total sum, when added up, of $59,685.00,...
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