Wakilii

Rosslyn Estates Limited v Underwood (Civil Appeal No, 66 of 1954)

East African Court of Appeal · [1955] EACA 286 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya granting injunction to restrain conveyance on modified terms
Decision
Injunction discharged; suit dismissed as against the vendors

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that although the vendors originally intended to establish a building scheme, the conveyance to the respondent contained a clause reserving to the vendors the right to modify or waive restrictive covenants on individual plots. The original agreement merged in the conveyance, and the vendors acted within their reserved powers. An injunction restraining conveyance on modified terms should not have been granted because it could not be an effective remedy—the vendors could convey with full restrictions and immediately release them. Appeal allowed.

Outcome

Injunction discharged; suit dismissed as against the vendors

Facts

Rosslyn Estates Limited owned 270 acres of land which it subdivided into 20 agricultural holdings known as Lone Tree Estate. The company prepared a standard form agreement for sale containing restrictive covenants prohibiting non-residential use. After some plots had been sold under the standard agreement, Miss Horwood insisted on a modification permitting her to operate boarding kennels on plot No. 11. The respondent purchased the adjoining plot No. 10 under the standard agreement, unaware of the modification. Both parties went into possession. The respondent later discovered the kennels and sued for an injunction restraining the vendors from conveying plot No. 11 on modified terms. After the suit was filed but before hearing, a conveyance of plot No. 10 was executed containing clause 3, which reserved to the vendors the right to modify, waive, or release any restrictions on adjoining land. The trial court granted the injunction.

Issues

  1. Whether a building or estate scheme had been established in respect of Lone Tree Estate.
  2. Whether the vendors were entitled under clause 3 of the conveyance to modify or waive restrictive covenants in favour of individual plot-holders.
  3. Whether an injunction should be granted to restrain the vendors from conveying a plot on terms less restrictive than those applicable to other plots, where the conveyance to the respondent contained a clause permitting such modification.
  4. Whether the court should grant an injunction that could not be an effective remedy given the powers reserved to the vendors.

Orders

  • Appeal allowed.
  • Judgment and decree of the Supreme Court varied by setting aside the order for an injunction.
  • Injunction discharged.
  • Order that the vendors pay the respondent's costs set aside.
  • Suit as against the vendors dismissed with costs.
  • Respondent to pay the costs of the appeal.

Rules and key headnotes

Building Schemes — Intention to Establish — Effect of Repugnant Clause in Conveyance
A vendor's original intention to establish a building or estate scheme is not negated by the subsequent inclusion in conveyances of a clause repugnant to the existence of such a scheme, where the facts at the time of the initial sales demonstrate an intention to create mutually enforceable restrictions.
Merger — Agreement for Sale and Conveyance — Effect on Prior Rights
Where an agreement for sale merges in a conveyance, the purchaser's rights are determined by the terms of the conveyance, and the purchaser cannot rely on implied terms of the original agreement that are inconsistent with express provisions in the conveyance.
Restrictive Covenants — Power to Modify or Release — Construction of Reservation Clause
A clause in a conveyance reserving to the vendor the right to modify, waive, or release restrictions on adjoining land, without limitation as to the vendor's purpose or requirement of uniform application, permits the vendor to exercise such powers for its own benefit and in favour of individual plot-holders.
Injunctions — Equitable Relief — Effectiveness of Remedy
A court should not grant an injunction in equity where, having regard to the facts existing at the date of judgment, the injunction cannot be an effective remedy because the party enjoined retains the legal power to achieve the same result by other means.
Injunctions — Timing of Assessment — Date of Judgment vs Date of Filing
In a suit in equity, the relief which the court may grant must be considered on the basis of the facts as they exist at the date of judgment, not as they existed at the date of filing the plaint.

Cases cited (9)

  • Kelly v Battershell (1949) 2 AE 830
  • Tucker v Vowles (1893) 1 Ch 195
  • Spicer v Martin (1889) 14 AC 12
  • Mackenzie v Childers (1890) 43 Ch D 265
  • Shirlaw v Southern Foundries (1926) Ltd (1939) 2 KB 206
  • Tubbs v Esser (1909/10) 26 TLR 145
  • Deverell v Milne (1918) 34 TLR 576
  • Torbay Hotel Ltd v Jenkins (1927) 2 Ch 225
  • Achilli v Tovell (1927) 2 Ch 243

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rosslyn Estates Limited v Underwood (Civil Appeal No, 66 of 1954) [1955] EACA 286 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.