Introduction

The present civil suit no: S5(S1)-22-231-1996 was heard together with seven (7) other civil suits, namely:

(a) S4-22-229-96;

(b) S5-22-230-96;

(c) S2-22-232-96;

(d) S3-22-233-96;

(e) S4-22-234-96;

(f) S5-22-235-96; and

(g) S1-22-236-96.

Fortunately, all the seven (7) other civil suits as stated above were settled and I struck out these seven (7) other civil suits with no orders as to costs. What was left was only the present civil suit, namely, S5(S1)-22-231-96.

This was a part heard case of the civil one Judge and I had the unfortunate task of completing his part heard. I will refer to the notes of evidence recorded by the civil one Judge as well as that recorded by myself in the course of this judgment. It must be borne in mind that this case emanates from the civil one (1) division when I was in the civil five (5) division. This case followed me to the commercial four (4) division when I was transferred there and now this case is still with me when I was transferred to the civil six (6) division. I am still in the civil six (6) division. In fact, I am still in the civil division, located at Wisma Denmark, after all these years. Oh, what a shame! It has been a long arduous route. But the hearing of this case must proceed, no matter what happens, to its final conclusion. Justice must be seen to be done to the parties.

The facts

An appraisal of the evidence, after a full-fledged trial, would show the following facts.

The plaintiff purchased a double storey bungalow house from the defendant according to the terms of the sale and purchase agreement. A formal written agreement was in fact signed between the parties. The area mentioned tallied with the area as shown in the issue document of title. All the relevant documents are put in part "A" and so the area of the land must be deemed to be admitted as true. It must be emphasised that the defendant as the developer had transferred the same area of land to the plaintiff. Subsequent to the commencement of these proceedings, evidence was led to show that the plaintiff had re-sold the double storey bungalow house and transferred the land to the new buyer at a much higher price and the area as shown turned out to be the same as stated in the sale and purchase agreement entered into between the plaintiff and the defendant.

I must emphasise the following facts:

(a) That the plaintiff agreed to buy not just a property but a double storey bungalow house to be erected on a piece of land measuring 110 feet x 95 feet (see enclosure 26p at page 29 where the recital defines "the said property" to include both the "lot" (i.e. the land) and the "building" and clause 1 of the sale and purchase agreement covenanting the sale refers to "the property" as so defined).

(b) That the plans to be annexed to the sale and purchase agreement were layout or site plan and not the contour plan as alleged by the plaintiff together with the extracts of the building plan. It was for this reason that the slopes were not shown. The submission of the learned counsel for the plaintiff to the effect that:

"The logical conclusion ..... to be derived from the above statement is that the slope is not shown in any of the plans if it is part of the purchased property."

With due respect, what the learned counsel for the plaintiff submitted was nothing more than a mere contradiction in terms. It must be borne in mind that a conclusion is a statement and not a question. It was unfortunate that the plaintiff led no evidence, from other architects, to show and say that a building plan or the site plan should show the contour of the land. The learned counsel cannot now seek to remedy that omission by relying on its own submission unsupported by any evidence at all.

(c) That the sale and purchase agreement entered between the plaintiff and the defendant is an agreement that is prescribed by regulation 11 of the Housing Developers (Control And Licensing) Regulations 1989. It is thus a statutory con