RICHARD GILLIE Vs. POSHO LTD (IN LIQUIDATION)

JUDGEMENT

(1.) This is an appeal in forma pauperis by special leave from a decree of the Court of Appeal for Eastern Africa pronounced on 31 December 1932, dismissing the appellant's appeal from a decree of the Supreme Court of Kenya dated 16 July 1932. The facts giving rise to the dispute between the parties were as follows : The appellant arrived in Kenya towards the end of the year 1926 and was anxious to find a farm on which he could grow wheat. For that purpose he was sent to the office of the firm of W. C. Hunter & Co., a firm of land agents of whom Wilfred Clare Hunter was the senior partner. He had been told to see and did see and negotiate with Mr. Hunter personally some time towards the e December, 1926. In addition to being a member of the firm of land agents Mr. Hunter was also liquidator of the respondent firm Posho, Limited, and agent for sale of some nine farms belonging to that company. After the purchase of certain other farms had been discussed and rejected on the ground that they were unsuitable in price or otherwise, Mr. Hunter suggested that the appellant should consider the suitability of one of the farms belonging to the company. Negotiations appear to have begun in December 1926, and the appellant ultimately acquired one of the nine, but the date on which the appellant decided to purchase is in dispute.

(2.) The appellant's story is that the farms were brought to his notice by Mr. Hunter, that he said that he did not want a farm which had not been proved for wheat, and that Mr. Hunter assured him that the land in question had been proved for wheat and sent him to see one McAntee who was working a neighbouring farm. The appellant paid a visit to Mr. McAntee who admittedly had an optimistic view of the wheat-growing possibilities of the land, and, after seeing him, agreed to buy. But he avers that before he did so he was shown an advertisement in the offices of Messrs. Hunter in the following terms :

(3.) LAND FOR SALE. Nine undeveloped farms the property of Posho Limited, in liquidation, varying in extent from 500 to 1000 acres approximately, at prices varying from ?2 to ?3 per acre, suitable for maize and wheat and in parts coffee-very little clearing required. Maize and wheat proved on property. Railway adjoining. Apply to W. C. Hunter & Co. This advertisement appeared in the edition of the "East African Standard" published on 29 January 1927, but the appellant alleges he saw it at the offices of Mr. Hunter at least some days before that date and possibly even as much as three weeks earlier. It is not definitely stated in the record by whom it was brought to his attention, but Mr. Nicholson, a partner in the firm of W. C. Hunter & Co., is said to have told him of it. The agreement for purchase was dated 3 February 1927, and is to be found at p. 5 of the record. It is made between W. C. Hunter as liquidator and the appellant, the price was ?2 10s. an acre payable by instalments. The purchaser was entitled to possession as from 3 February 1927, and to a legal assignment of the property as soon as he had paid all the instalments subject only to the apportioned rent payable to the Government, whatever that rent might be. Cl. 7 provided : In the event of any instalment of the purchase price or any part thereof or any interest thereon being in arrear for fourteen days after the date on which the same should be paid the Liquidator shall be entitled to rescind the sale without legal process on giving fifteen days notice in writing to the purchaser to pay the same or leaving such notice at the said premises and in default of payment before the expiration of such notice all payments made by the purchaser shall be absolutely forfeited. This clause shall be without prejudice to the right of the Liquidator to sue the purchaser for the purchase money or any part thereof remaining unpaid or to any other remedies allowed by law.