ABDUL KARIM BASMA V. GLADYS MURIEL WEEKES & OTHERS

ABDUL KARIM BASMA

V.

GLADYS MURIEL WEEKES & OTHERS

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

3RD DAY OF MAY, 1950

2PLR/1950/7 (PC)

OTHER CITATION(S)

2PLR/1950/7 (PC)

(1950) P.C. 03/05

(1950) XII WACA 316 – 323

LEX (1950) – XII WACA 316 – 323

BEFORE THEIR LORDSHIPS:

LORD SIMONDS,

LORD MACDERMOTT,

LORD REID,

SIR JOHN BEAUMONT,

SIR LIONEL LEACH

BETWEEN:

ABDUL KARIM BASMA – Appellant

AND

GLADYS MURIEL WEEKES & OTHERS – Respondent

ORIGINATING COURT(S)

Appeal from the West African Court of Appeal.

REPRESENTATION

Wilberforce for the Appellant (plaintiff at first instance)

O’Connor for the Respondents (defendants at first instance)

ISSUE(S) FROM THE CAUSE(S) OF ACTION

REAL ESTATE AND PROPERTY LAW:- Contract for sale of house — House owned by three tenants in common-One tenant without power to contract — Purchaser named in Agreement agent for known principal — Sufficient memorandum to satisfy Statute of Frauds — Specific performance against two vendors in respect of their shares— Statute of Frauds 1677 (29 Car. 2 C. 3), section 4.

CASE SUMMARY

By an agreement, dated 29th November, 1946, the first three respondents agreed to sell two houses in Freetown, Sierra Leone, of which they were tenants in common, to W, who was acting, with the knowledge of the respondents, as agent for the appellant, but the agreement contained no reference to the appellant or to the fact that W was purchasing as an agent. On 2nd December, 1946, the first three respondents, with the concurrence of the first respondent’s husband, conveyed the property to the fourth respondent, who already had notice of the agreement of 29th November. In an action by the appellant for specific performance of the agreement of 29th November, the first three respondents contended inter alia (a) that the appellant had no right of action against them as the agreement was not a sufficient memorandum within the Statute of Frauds, 1677, section 4, and (b) that, under the law of Sierra Leone, the first respondent, being a married woman, had no power to enter into a contract without the concurrence of her husband, and, therefore, as the contract could not be performed in its entirety, there could be no order for specific performance against the other respondents.

DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL

Held:

(i)     An agent, who contracted in his own name, did not cease to be contractually bound because it was proved that the other party knew, when the contract was made, that he was acting as agent, and the agreement which was made in his name did not cease, in that event, to contain the names of the contracting parties so as to satisfy the Statute of Frauds; the terms of the agreement of 29th November, 1946, were such that W was contractually bound; and, therefore, the agreement satisfied section 4 of the Statute of Frauds, and, as W could have sued thereon, so could the appellant, as his principal.

Higgins v. Senior (2) and Calder v. Dobell (5), applied.

Dictum of Luxmoore, L.J., in Smith-Bird v. Blower (1), disapproved.

(ii)    Although the first respondent had no power to convey her interest, there were no special circumstances which would make it wrong to grant specific performance of the contract in regard to the interests which belonged to the second and third respondents, and, therefore, the appellant was entitled to enforce the contract against the second and third respondents so as to require conveyance to him of their two one-third shares, with abatement of the purchase price in respect of the interest of the first respondent.