Mr. E. Courtenay and Mrs. D. Courtenay for the Plaintiffs.
Mr. C. Ramirez for the Defendants.

Landlord and Tenant - Lease - Whether breach of covenant to pay rent - Whether breach of implied covenant not to prejudice, impugn or dispute landlord's title - Whether obligation to serve notices for breach of covenants - Whether forfeiture for breaches - Arrears and mesne profits.

Land - Title - Trespass - Recovery of possession - Injunction - Damages.

J U D G M E N T

The plaintiffs' claim against the First Defendant is for:-

(i) recovery of possession of the land being the northern half of the Caye known as Long Caye upon a forfeiture for nonpayment of rent and for a breach of the condition implied in the Deed of Lease dated the 28th June, 1968, made between Ralph Jackson the predecessor in title of the plaintiffs of the one part and the First Defendant of the other part not to do anything to prejudice the Landlord's title;

(ii) arrears of rent due to the plaintiffs under the said Lease and for mesne profits.

And against the First and Second Defendants for:

(iii) damages for wrongfully entering the Plaintiff's land and removing the property of the Plaintiff's therefrom; and

(iv) an injunction restraining the First and Second Defendants whether by themselves or by their servants or agents or whosoever from entering upon the plaintiffs land without their permission and from obstructing the plaintiffs' access to the said Caye by their servants or agents.

The defence filed on behalf of the defendants

(1) denies any breach of covenant to pay rent;

(2) denies any trespass and makes

(3) no admissions on other matters raised.

I must deal with two matters which have arisen on these pleadings before this Court:

(i) By an amendment made on the 7th June, 1993, to the Statement of Claim, a new para. 9 was substituted as follows:

"On sundry dates since the purchase of the said Caye by the plaintiffs the first defendant has disputed the title of the plaintiff to the said Caye."

There has been no amendment in the defence filed dealing with this specific issue raised in this para. 9. This issue has not been denied nor challenged by the defendants and in accordance with the Rules of Civil Procedure in these circumstances the first defendant is deemed to have admitted this issue.

0.22 r.20 of the Supreme Court Rules sets out this matter quite clearly as follows-

"It shall not be sufficient for a defendant in his defence to deny generally the grounds alleged by the Statement of Claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages."

I shall return to this matter subsequently in my judgment in dealing with this specific issue.

(ii) Para. 6 of the Defence states:

"The first defendant repeats paragraph 5 herein and says that the said action was determined by the Supreme Court of Belize and an appeal from said determination made to the Court of Appeal, Belize, which determined the matter on the 4th day of February, 1992."

This paragraph does not state what determination was made by the Court of Appeal and although I raised the matter at the commencement of this trial no steps were taken to cure this omission. To my mind having mentioned a determination of the Court of Appeal of an action in the pleadings, it is incumbent on that party to state what exactly the Court of Appeal determined and not to leave the matter hanging in the air so to speak with no indication, as to what the Court of Appeal in fact decided.
I will now examine the evidence before this Court.

The first witness for the plaintiff was Frederick James Dodd who stated that he is one of the shareholders and director of Long Caye Associates Ltd., that both Long Caye Associates Ltd. and Glovers Reef Ltd. purchased Long Caye sometime in 1986 and produced Certificates of Title, Exh. F.D.2 (Transfer of Title by Ralph Jackson to Long Caye Associates Limited of the western portion of Long Caye) and Exh. F.D.3 (Transfer of Title by Ralph Jackson to Glovers Reef Limited of the eastern portion of Long Caye).

There was a delay in the purchase of the Caye because he found out that Gilbert Lomont had leased the northern portion of the Caye as per exhibit Exh. F.D.1 (lease of 5 1/2 acres approximately being the northern half of Long Caye) and had not exercised the option to purchase the said Caye. After the Caye was purchased he personally communicated with the Lomonts both orally and in writing informing them of the purchase of the said Caye, producing a copy of one of his letters Exh. F.D.5 (Letter to Mr. & Mrs. Lomont dated the 8th October, 1986). The Lomonts had not paid any rent to the Companies for approximately eight years

When the Caye was purchased there were four or five shacks on the northern end of the Island and on the southern portion was the home of the previous owner (Mr. Jackson).

He visited the Caye before it was purchased and noticed that the condition of Mr. Jackson's house was in good condition, complete with windows, doors, a deck around two sides of the house and a water tank. However, after the Caye was purchased he went back to the Caye and noticed that the house was deteriorating and the doors and water tank were missing.

When he first visited the Caye after it was purchased he did not see the Lomonts but saw them on subsequent visits. On the second visit he arrived with 20 tourists on the southern leased portion of the Caye where he was met by Mr. Lomont and two other persons unknown and Mr. Lomont ordered him and the 20 tourists not to get off the boat or he would order his dogs to attack them. One of the unknown persons was carrying a machete and looked threatening to Mr. Dodd and the tourists. He informed Mr. Lomont that the southern portion of the Island was free for his guests to go on but was met with extreme profanity. To avoid a confrontation he asked the captain to take the boat around to the extreme southern point of the Island where he was again met by Mr. Lomont and his dogs who again shouted profanities and ordered them to stay away from the Island. They did not go ashore.

The second confrontation with the defendants on the Caye was on or about January 18th, 1993. On that occasion he again went to the very southern tip of the Island with approximately six to eight tourists where he was met by Mrs. Lomont and one of her daughters. Mrs. Lomont ordered him and his guests off the Island but he refused to leave informing Mrs. Lomont that he had rights to be on that southern part of the Island when Mrs. Lomont became hysterical and used extreme profanities at him and his guests. Mr. Lomont arrived a few minutes later yelling obscenities and ordering him and his guests off the Island.

The third confrontation with the Lomonts was in 1990 on South Water Caye where he met Mrs. Lomont who told him that he would never have the ability to go on Long Caye, that we were wasting our money to legally gain access to Long Caye and that we should sell the Caye to her for what we paid for it.

The other shareholders and directors had the same difficulties with the Lomonts and to his knowledge the northern half of the Caye where the Subdivision is on Exh. F.D.4 (rough sketch plan) was the portion leased to the Lomonts and to his knowledge the plaintiffs never gave permission to the Lomonts to go on to the Southern half of the Caye which was not leased to them.

The Lomonts have repeatedly taken the plaintiff to Court without success; have never offered to pay rent to the company; have never shown any willingness to acknowledge the Companies as their Landlords and their behaviour have been most humiliating and debilitating to the company. The Company have suffered financial loss as Tourist Operators having become aware of the Lomonts behaviour have decided to forgo any interest in leasing the Caye.

Under crossexamination he said that during 198386 in his negotiations with Mr. Jackson to purchase the Caye he was interested to know which section of the Caye was leased and at no time did Mr. Jackson physically point out to him on the ground which section of the Caye was leased but some time later Mr. Jackson and his lawyers determined which section of the Caye was leased. He maintains that after the purchase price was paid for the Caye he sent several letters to the Lomonts and spoke to them orally but got no responses at all. He has had no discussions with Mr. Lomont in regard to the boundary because Mr. Lomont refuses to talk and to date the boundary has not been agreed. Mr. Lomont has prevented the Government Surveyor going to the northern part of the Caye to carry out any survey.

When shown Exh. F.D.4. (Lomont's rough sketch plan) the witness stated that there is a perpendicular line on the plan, one side is the portion sold to Glovers Reef and the other side is the portion sold to Long Caye, Ltd. He denies that the horizontal line shows how the Caye is divided for the purpose of the lease to the Lomonts and suggested because the agreement made between Ralph Jackson and the Lomonts was to divide the Island in half he did not wish to accept the Lomonts' plan (Exh. F.D.4) indicating where the north was. He disagreed that the schedule on the lease (Exh. F.D.1) corresponds to how the horizontal line is drawn on the sketch plan (Exh. F.D.4). He maintains that he and his guests were denied access to the entire Island and not to the portion in the north of the horizontal line. He denies that when the Caye was purchased there was confusion as to the boundaries of the lease to the Lomonts. The Lomonts have consistently refused to allow him access to the lsland because they claim the entire Island is theirs and further claimed that the sale to Glovers Reef and Long Caye Ltd. were not good. He maintains that the purchase was paid for the Caye in 1986 but he was not certain of the date when Title was transferred but when shown Exh. F.D.2 (Title Deed) he admitted he saw the date January 1989 and was unable to say why it took three years for the Transfer of the Title.

The second witness for the plaintiffs was Jorge Rosado who testified that he is familiar with Long Caye representing the owners interest in the said Caye and has personally visited the Caye on several occasions. When shown Exh. F.D.4 (Lomonts rough sketch plan of Long Caye) he pointed out the northern portion as, "the part running from the subdivision around to other subdivision line" because some 13 to 14 years ago when he visited the said Caye Mr. Ralph Jackson pointed out to him the northern portion of the Caye telling him that the northern portion was a restricted area occupied by the Lomonts. He went to Long Caye on the 8th October, 1992 to put a caretaker on the Southern portion of the Caye as instructed by the owners. He was accompanied by two Police Officers for protection because he feared harassment from the Lomonts and their fierce dogs. He also had with him the proposed caretaker and the boatman. They landed on the Southern portion of the Caye and were met by Mr. Lomont's caretaker who was occupying Mr. Jackson's house on the southern portion of the Island. He saw three or four tents and some people around the area of Mr. Jackson's house. He asked to see Mr. Lomont and was directed to the other end of the Caye where he met Mrs. Lomont. He introduced himself to Mrs. Lomont and informed her of the purpose of his visit whereupon she told him inter alia that he, Mr. Dodd and the other owners are not welcomed on the Island and he must get off immediately. He refused to leave insisting on the right to put a caretaker on the Southern portion of the Island whereupon Mrs. Lomont told him "there is no southern end of the Island, and that Mr. Fred Dodd and his partners do not own the Island and that she had the lease for both sides of the Island, North and South. He left the Island without placing the caretaker on the southern portion to look into the matter. At no time did he threaten Mrs. Lomont but rather Mrs. Lomont screamed at him talking to him in a loud manner. To his knowledge the plaintiff never gave permission to the Lomonts or his guests to visit the southern portion of the Island.

He again visited Long Caye on January 10th, 1993 with Mr. Fred Dodd and about 20 students from the U.S.A. where they met Mr. & Mrs. Lomont and children when they both cursed and screamed at him. Mrs. Lomont called him a "shit head". Mr. Lomont called him "a big ape" and that he wanted no part of this insulting behaviour. Under cross-examination he admitted he visited Long Caye on three occasions in 1993. He admitted that on the visit on 8th October, 1992 the two police officers carried one rifle and that a shot was fired but he did not know who fired the shot but the Lomonts were not there when the shot was fired. He maintained that he and Mrs. Lomont argued about where was North and South.

When shown Exh. F.D.4 (Lomonts rough sketch plan) he identified what portion of the Caye was South and North and denied he was repeating what the present owners said to him but rather he was repeating what Mr. Ralph Jackson personally told him.

The third witness for the plaintiff was Mr. Ralph Jackson who stated that he first owned Long Caye and leased one half of Long Caye to Mr. Gilbert Lomont described in the Schedule to the Lease as the "Northern Half" in Exh. F.D.1 (Lease by Mr. Jackson to Mr. Gibert Lomont) which northern half he pointed out to Mr. Lomont and both he and Mr. Lomont placed some pegs and "said to this coconut tree" both parties to the lease agreeing what was the northern and southern half of the Caye. When shown Exh. F.D.4 (rough sketch plan) pointed out what the northern and southern portion of the Island. His house was on the Southern portion and he had no buildings on the northern portion leased to the Lomonts. "Mr. Lomont did not keep to his side of the Caye. He pulled out the peg and moved it further down and built a house which was on my side of the property." He pointed this out to Mr. Lomont and told him he would pull down his house whereupon Mr. Lomont said if he did so he would burn down his house and abused him about his father, his mother and of his illegitimacy.

Mr. Lomont did not pay his rent on time and paid no rent for eight years. He sought advise from his lawyers who did nothing. His relationship with the Lomonts was not pleasant and he eventually sold the Caye to Mr. Dodd. The house was in perfect condition at the time of the sale but the house was now completely demolished and the water tanks removed. Mr. Lomont knew that the Caye was sold because his lawyer gave him the first option to purchase. Mr. Lomont has not paid any rent after the Caye was sold.

Under crossexamination he stated that he leased the Caye to Mr. Lomont about 1968 with an option to purchase and maintain that the description in the schedule is the proper description of the property leased. The 5½ acres leased to Mr. Lomont was never surveyed but he and Mr. Lomont had both pegged the area before the lease was signed. When shown Exh. F.D.4 (Lomonts rough sketch plan) he stated "it is impossible to say where the peg was placed but it was more or less where the black line mark is" but "the side marked the Northern side is Mr. Lomont's side. It is the northern side of the Island." He denied he sold the Caye before Mr. Lomont exercised his option to purchase the lease. He denied any dispute with Mr. Lomont within one month after the lease was signed. He received mail from Mr. Lomont every year after the Caye was sold in 1986 but the mail was returned to the Post Office. He never wrote to Mr. Lomont informing him of the sale of the Caye and had no knowledge that Mr. Lomont had disputed the sale.

On reexamination when shown Exh. F.D.4 (Lomont's rough sketch plan) he said that the "black dotted line divided the Caye North and South and was "what Mr. Lomont and I agreed was North and South. Mr. Lomont never came to me and said that this was not North and that was not South."

This was the case for the plaintiffs.

For the defendants Mr. Lomont stated that he leased a portion of Long Caye from Mr. Jackson in 1968 Exh. F.D.1. (Lease) and that the "Schedule was agreed between myself and Mr. Jackson." To use his own words "We did agree that I will have North portion and he will have the South portion" but he denied that he and Mr. Jackson inserted a peg in the ground to indicate the boundary."

After the lease was signed he occupied an area of the Caye and invested $100,000.00 U.S. However problems with Mr. Jackson arose in 1969 and eventually went to the Supreme Court.

When shown Exh. F.D.4 (Lomont's rough sketch plan) he said "This is a very inaccurate sketch plan of the Island. At the time when I signed the lease my understanding since the lease read North, the boundary had to be East to West the Northern portion of the Caye. I have no knowledge of the exact portion of the leased land because there never was a survey of the whole Island. Looking at the sketch plan I have to occupy 5 ½ acres. Looking at the sketch plan the North portion is where the lagoon is sited and the southern portion where the reef is located and the imaginary line indicates the boundary. Under the lease that is the portion which I occupied." He learnt that Mr. Jackson had sold the Caye in 1989 but after 1989 Mr. Dodd never contacted him about the purchase of the Caye.

He knew that Mr. Dodd had an interest in the Caye. He admitted he spoke to Mr. Dodd at least twice. On the first occasion Mr. Dodd came to the North side of the Island in a boat. He did not allow him to land on the North Side but he don't believe Mr. Dodd told him he was the owner of the Island neither did he know that he had purchased the Caye. However, he can't recall what year this was. Before he found out that the Island was sold he tried to purchase it in 1980 and when he found out that it was sold he continued to send money to Mr. Jackson because he had the right of first refusal and had two pending actions contesting the sale.

The Court dealt with the case involving the option to purchase the lease in March 1992 but he continued to send money to Mr. Jackson because there was the other action still pending. When the action was completed in March 1992, an injunction was obtained against him in December 1992 trespassing on the other portion of the Island belonging to Mr. Dodd but inspite of the injunction he admitted preventing Mr. Dodd's agents from going on the Island because he instructed his lawyer to file an appeal against the injunction and was under the impression that the appeal would stay the injunction and had no knowledge that the appeal was abandoned. At that time, he had an option to lease the other portion of the Island and the right of first refusal. He is still in occupation of what he believed to be a portion of Long Caye.

After 1984 he attempted to pay rent to Mr. Jackson. Mr. Jackson refused all payments. He admitted receiving letters from Mr. Fred Dodd from 1982 but no letter in 1986 (Exh. F.D.5) but had no dealings with him. He learnt that Mr. Jackson had sold the Caye in 1989 but had not spoken to Mr. Jackson since 1970. After 1989 he denied that Mr. Dodd ever contacted him about the purchase of the said Caye. He admitted speaking to Mr. Dodd twice on the Caye.

On the first occasion Mr. Dodd came in his boat on the north side of the Island and he did not want Mr. Dodd to come ashore on the north side since he had leased the north side of the Island. On that occasion he believed Mr. Dodd told him he was the owner of the Island.

Later, on resumption of the evidence in the afternoon the witness stated that when he stopped Mr. Dodd from landing on the said Caye did not know that he had purchased the Caye but he don't remember what year this was. Before he found out that the Island was sold he tried to purchase it in 1980, offering $140,000.00 and again in 1986 offering $150,000.00. After he found out that the Island was sold he continued to tender money to Mr. Jackson because he had the right of first refusal and had two pending actions contesting the sale. One of the actions was completed in March 1992, but he continued to send money because the other action was pending. Since the completion of the action he received a letter from Mr. Courtenay instructing him to cease trespassing on the remaining portion of the Island but there was no demand of rent. Since the completion of this action an injunction was obtained against him in December 1992 and he was aware of that portion of the Island that belonged to Mr. Dodd on which he must not trespass, but admitted that after that injunction he prevented Mr. Dodd's agents from going on the Island because he instructed his attorney to file an appeal against the said injunction and was under the impression that an appeal would stay the injunction. He has since learnt that the appeal was abandoned but since then he has not prevented anyone from entering the other side of the Island. Prior to the decision in 1992 he never recognized the sale of the Island because of a pending action but after the option was dealt with by the Court he is not aware that the sale of the Caye is valid. He knows that the plaintiffs are the registered owners of the Island and was prepared now to tender the rent to them from October 1988. He has not paid rent from October 1988 because he has an action pending disputing the sale. He denied taking the vat and the doors and lumber from Mr. Jackson's house.

Under crossexamination he stated that he knew of no peg placed on the Caye to indicate his part of the Island but they had agreed on a general area, not a definite boundary and there was no need to establish specific boundary lines as he was on the North side and Mr. Jackson on the South side. He is not too sure if Mr. Jackson is on the North or South side of the Caye. Formerly he was sure that it was on the South side, he now believes that Jackson's house is on the North Side but he don't know if it is on his side of the Caye until the Island is surveyed. He now knows where the North is but did not know it before the Survey. He admits that Mr. Jackson's house is excluded from his leasehold.

When shown Exh. F.D.4 (Lomonts rough sketch plan) he stated he is unable to say where Mr. Jackson's house is located but it is possible that Mr. Jackson's house is on the South side of the Caye. He denies that the portion to the North of the dotted line is the portion he leased and states that the sketch plan is unreliable.

He admits he has not built anything on the left side of the dotted line, that is, Southern side. He denied inserting the dotted line on the said Exh. F.D.4.

He admitted he went to Court in Action No. 96 of 1972 for nonpayment of rent but although the judge was wrong he did not appeal. He states that the ownership of Long Caye is in dispute. He first knew that the Caye was sold in 1989 when he visited the Registry and denied knowledge of the sale in 1986 but when shown Order of Court dated 13th November, 1986 in Case No. 291 of 1986, Gilbert Lomont and Ralph Jackson, which stated that the application to restrain the sale is dismissed he stated he does not remember those circumstances nor does he recall paras. 4 and 5 of the Statement of Claim which indicated that the Caye was sold in 1986. When shown Exh F.D.4 (Lomonts rough sketch plan) he again maintained that it was unreliable and totally unrelated but stated the line running across the Island is the East West line and is the approximate boundary of northern 5 ½ acres leased to the Lomonts pointing out that the north part leased to him is above the line facing the lagoon which might include Mr. Jackson's house.

He admits he occupied the whole Island for 15 years except one acre around Jackson's house from 1969 1984 and he exercised his option in 1969 to lease the whole Island.

His answers to the following questions put to him are to be noted.

Q. Was the option accepted

A. It is the wrong question.

Mr. Jackson is required to execute a lease for the option. Mr. Jackson did not execute any lease. In Court Acton No. 96 of 1972 the Court, held that he was not, entitled to the lease over the other part of the Island.

Witness shown Exh. F.D.4 (Lomonts rough sketch plan).

Q. If everything to the right of that black bold dotted line is considered North, do you agree that every thing you have represented on this sketch is on the right hand side of the sketch plan.

A. I do not know if the Northern half as shown on this sketch is on the right hand side.

The witness answers to other questions put to him are worthy of note.

"It is true that all of the erections built by the Lomonts is on the right side of the sketch plan. I do not admit and accept that the Plaintiffs are owners of the Caye. I dispute their title to this land. I dispute that they are my landlords" etc.

"Even after the Court of Appeal decision last year I am still disputing their right to ownership."

He admits he refused Mr. Dodd and students access to the North 5 1/2 acres in 1992 and 1993 after the decision of the Court of Appeal. He admits his caretaker and some of his guests occupied Mr. Jackson's house without his permission. He admits Mr. Jackson took him to Court to evict him for nonpayment of rent. If this Court hold I must leave Long Caye I would appeal.

On reexamination he maintained he is prepared to pay rent to the Landlords while still disputing the validity of the sale; and again admitted that he prevented Mr. Dodd from entering the injunction issued against him.

The next witness was Gustavo Valentine Bautista, a licensed land surveyor, with some 40 years experience. He testified that Exh. F.D.4 (rough sketch plan) is a rough sketch of Long Caye and that "the northern portion would be the portion towards the word 'Lagoon' and the southern portion would be the portion going towards the word 'reef'. The bold dotted line would indicate western and eastern portions.

With reference to the shedule on Exh. F.D.1 it would be possible to determine the boundary by surveying the entire Island and dividing it in half.

Under cross-examination he admitted that in "his experience as a surveyor in Belize there are many instances where parties agree to divide land under what they consider to be North and South and then when the land is surveyed it sometimes turns out that geographic North and South is not the same as to what the parties agree. It is the intent of the parties. When shown Exh. F.D.4 (rough sketch plan)

"I see Mr. Jackson's old house. The house would be on the Northern portion of the Caye this is depending on the parties determining North and South using Geographic North and South. It is possible that the parties might have agreed on a different demarcation of North and South on the Caye not based on the Geographic North and South."

Later this witness testified when again shown Exh. F.D.4 (Lomonts rough sketch plan).

"I agree that what I described as the North half referred to in the option (Exh. G.L.1) as a portion of the Southern half - because of the horizontal line. Forgetting the horizontal line then Mr. Jackson's house is on the Southern half of the Caye. Mr. Jackson's house is on the North half of the Caye according to the Geographic North and South. Looking at the option to lease Exh. G.L.1 something is amiss because Mr. Jackson is including his house as being on the Southern half as well as Mr. Lomont.

Witness shown Exh. F.D.4 (Lomonts rough sketch plan) and referred to dotted lines

"I see no huts to the left of the dotted line."

Witness refered to intersection of two lines on said Exh. F.D.4 and stated-

"I see portion occupied by Lomont for 24 years. I also see garbage pit. That would be on the southern portion of the Caye."

If one assumes that the dotted line demarcated North and South for the parties I agree all the improvements by the Lomonts and the garbage pit is to the right hand side of the line. If what the parties agreed to in the lease was everything to the right was the northern half of the Caye where improvements have been made and where Mr. Jackson's house is, this dotted line would make sense.

When we use the word amiss we mean something is not correct but they have accepted it. In this particular case the orientation is not correct. In other words I took North to be East and after that when I find I am using this side but we accept it.

In reference to the draft sketch plan Exh. F.D.A. the portion with the houses. "If Mr. Jackson's house is on the Southern portion then the Northern portion would be where the Lomonts houses are. The dividing line would then be the heavy dotted line. I agree that the free hand sketch of the Caye (Exh. F.D.4) is a very good representation of the left side of the Caye. "

The evidence of Lester Langdon is of no relevance to this case as an appraiser and realtor with three days training in the U.S.A. - one day per year and although working in Belize as a realtor since 1982 he admits he never visited Long Caye. I ruled that the question of valuation of the Caye is not raised in the pleading and furthermore he could not give a valuation of the Caye which he had not seen.

The next important witness for the defence was Marsha Lomont, wife of Gilbert Lomont. She testified that she and her husband Gilbert Lomont have a partnership in a business on Long Caye in which she is the secretary/accountant. She did not personally receive any communication from Mr. Dodd that he had purchased the said Caye nor did Mr. Dodd visit her personally after purchasing the said Caye. In 1986 she had on the Northern end of the Caye 15 cabins, including a restaurant, a camp ground, a scuba dive shop, store room, boat house, employees houses and a dock including 10 guest cabins. She denied removing a water tank and lumber valued at $100.00 from the Southern portion of the Caye nor a door from Mr. Jackson's house. She denies she ordered dogs to attack Mr. Dodd and his tourists and denied using profane language but admitted she met him on 15th January, 1993 and asked him to leave her leasehold property. She denied seeing Mr. Dodd and having any confrontation with Mr. Dodd on Water Caye in 1990.

She denied meeting Mr. Dodd and Mr. Jackson in 1986 and further denied preventing surveyor Mr. Flowers from going to the Northern portion of Long Caye. She admitted knowing Mr. Rosado and further admitted that on 8th October, 1992 he visited Long Caye accompanied by two Policemen but denied he showed her any documents indicating that he was the servant or agent of the plaintiffs and admitted that she told him to leave her leasehold. She denied threatening or screaming at Mr. Rosado nor abusing him. She is not aware of Mr. Jackson and Mr. Lomont placing pegs on the Caye. As secretary/accountant of the business rents have been paid to Mr. Jackson since 1984 but she is not aware of any demand for rent from the Plaintiffs nor Mr. Dodd.

She states that if the injunction is granted she would lose approximately U.S. $100,000.00 per annum in business.

She denies that Exh. F.D.4 (rough sketch plan) is an exhibit attached to her affidavit dated the 3rd December, 1992 and that it is her drawing.

Under crossexamination she admits she is not a party to the lease by Mr. Jackson. She maintained that she did not deny to Mr. Dodd access to the Caye but admitted she did not know whether Mr. Lomont prevented Mr. Dodd nor Mr. Flowers entry to the Northern portion of the said Caye. She denied having any communication with Mr. Dodd but admitted she spoke to him in January 1993.

She admitted she was present on Long Caye in 1968 when Mr. Jackson and Mr. Lomont agreed on what portion of the Caye Mr. Lomont would lease. She states that the last time Mr. Lomont paid rent was this year rent paid both to Mr. Jackson and to the Courtenay Firm.

"Mr. Courtenay sent a letter. To me it meant he received the payment. The cheque was returned to me uncashed. The cheque covered rent for the coming year 1993 1994. Rent has been paid up to date. I have receipts for these rents payments.

Q. Who issued them

A. The Bank of Nova Scotia or Atlantic Bank and the Post Office Registry System."

This was the case for the defence.

Counsel for the defendants submitted that-

(1) a claim for possession is inconsistent with a claim in the same Writ for an injunction since it does not amount to an unequivocal demand for possession as to operate as a final election by the plaintiff to determine the lease and referred to the case of Moore v Ullcoats Mining Co. Ltd 1908 1 C.H. 575 - Supreme Court Practice Vol. 1 - para. 18 -15 - 2 - 5th line;

(2) claims for rent in para. 6 of particulars of claim are improper as the plaintiff only obtained title to the land in 1989;

(3) there was no notice of new ownership to lessee in accordance with S.14 (2)(b) of the Landlord and Tenant Act, Chapter 153;

(4) no evidence of any notice of any breach of covenant express or implied communicated to the first defendant in accordance with S. 15 (1) of the Landlord and Tenants Act supra;

(5) no evidence except hearsay in respect of claim for damages to doors, vats and lumber;

(6) that dispute as to title is not a denial of the plaintiff's title merely a dispute as to validity of sale;

(7) no evidence of trespass by the defendants.

Counsel for the Plaintiffs replied as follows that -

(1) there is evidence that the defendants trespassed on the Plaintiffs lands;

(2) there is evidence that the defendant is in breach of covenant to pay rent, that he failed to pay to the plaintiffs inspite of having knowledge and notice since 1983 that they were the new owners of the Caye, therefore forfeiture of the lease arises for breach to pay rent, furthermore that the claim for possession of an injunction are not inconsistent claims;

(3) there is evidence that the defendant disputed the plaintiff's title to the land, which is a ground for forfeiture and which is a breach of covenant implied in law.

Warner v Sampson and another 1958 1 All E.R. 314 Halsbury Laws 4th Ed. Vol. 27 para. 424.

Furthermore, that no notice is required for such a breach and S.15 of Landlord and Tenant Act supra is therefore not applicable and no right of relief is possible;

(4) that relief from forfeiture for nonpayment of rent should be denied in the special circumstances of this case because of the disputes with the defendants and their behaviour since 1969.

The issues I have to decide in this case are as follows:

(i) Are the plaintiffs the registered proprietors of Long Caye;

(ii) Is the first named defendant the lessee of the northern portion of the said Long Caye;

(iii) Has there been a breach of the covenant to pay rent by the first defendant to the plaintiffs;

(iv) Has there been a breach of the implied covenant by the defendant not to do anything to prejudice, impugn or dispute the plaintiffs' title as landlord;

(v) Have the defendants trespassed on the portion of the Caye not leased to them and removed items from the plaintiff's property;

(vi) Are the plaintiffs under an obligation to serve notices on the defendants for breaches of the covenants to pay rent and to impugn and dispute their title;

(vii) Are the plaintiffs' entitled to forfeiture for breaches of the covenant to pay rent and for impugning and disputing their title to land;

(viii) Are the defendants entitled to relief against forfeiture for breaches of the covenant to pay rent and not to impugn or dispute the plaintiffs' title.

I have set out in great detail the evidence of the various relevant witnesses in the case because of the attitude of the defendants throughout this trial who did not trust my own note taking of the evidence nor even that of their own counsel and who brought into Court at some stage of the trial their own note taker - an action without precent in the Courts of Belize and elsewhere. If it was an attempt to annoy me or to frighten me let me state now that I am not easily annoyed or frightened and will not be deflected from doing my duty.

I shall now deal with the first issue.

(i) Are the plaintiffs the registered proprietors of Long Caye

I find that the Certificate of Title, Exhs. F.D.2 and F.D.3, shows that the plaintiffs are the registered proprietors of Long Caye and that the Transfer was dated January 5th, 1989.

I shall next deal with the second issue.

(ii) Is the first named defendant lessee of the "northern" portion of Long Caye

I find that Exh. F.D.1 (Lease by Mr. Jackson to Mr. Gilbert Lomont) shows that the firstnamed defendant is a lessee of the "northern" portion of Long Caye for a period of 35 years, with effect from 1st July, 1968 at a yearly rental of $412.50.

I find that what is in dispute is whether this lease was in respect of the geographic North and South. In determining this matter I must examine the evidence of the parties to the lease and the relevant evidence of any other witnesses.

The evidence of Mr. Jackson the former owner of Long Caye and who had leased this "Northern portion of the Caye to the first-named defendant is quite clear on this matter. He stated that both he and Mr. Lomont on a visit to the Caye placed some pegs on the ground and both agreed what was the northern and southern portion of the Caye.

When shown Exh. F.D.4 (rough sketch plan of the Caye) he said that "the black dotted line divided the Caye North and South and was "what Mr. Lomont and I agreed was North and South. Mr. Lomont never came to me and said that this was not North and that was not South."

Mr. Lomont's evidence was that the schedule on the lease Exh. F.D.4 was agreed between himself and Mr. Jackson, that he would have the north portion and Mr. Jackson the south portion but denied that pegs were placed on the ground to indicate the boundary but "since the lease read north the boundary had to be east to west", although he admitted he had "no knowledge of the exact portion of the leased land because there was never a survey on the whole Island."

When shown Exh. F.D.4 (rough sketch plan of the Caye) he maintains that it is an unreliable and inaccurate sketch of the Caye but that the line running across the Island is the east west line which is the approximate boundary and that the northern portion leased to him is above this line facing the lagoon which might include Mr. Jackson's house.

When shown Exh. F.D.4 (rough sketch plan) what he stated in answer to the question put to him in crossexamination is important.

"Q. If everything to the right of that black bold dotted line is considered North, do you agree that everything you have represented on this sketch is on the right hand side of the sketch plan

A. I do not know if the northern half as shown on this sketch is on the right hand side."

"It is true that all the erections built by the Lomonts is on the right side of the sketch plan."

Mr. Rosado when shown Exh. F.D.4 pointed out to the Court the northern portion of the Caye as being on the right hand side of the sketch plan because he stated that 13 to 14 years again when he visited the Caye Mr. Jackson pointed out to him the northern and southern portion of the Caye telling him that the northern portion is being leased by the Lomonts.

Mr. Bautista, the land surveyor stated that Exh. F.D.4 is a rough sketch plan of Long Caye and that "the northern portion would be the portion towards the word 'lagoon' and the southern portion would be the portion towards the word 'reef'. The bold dotted line indicated a western and eastern portion. With reference to the schedule in Exh. F.D.1 it would be possible to determine the boundary by surveying the entire Island and divide it in half"

I find that Exh. F.D.4 (Lomonts rough sketch plan) is an exhibit attached to an affidavit of Mrs. Lomont dated 3rd December, 1992, and filed an the 12th December, 1992 in this action when the defendants sought to oppose an application for an injunction and I note inserted on the said Exh. F.D.4 the words "Portion occupied by Lomont for 24 years" which is an admission that the Lomonts occupied that portion of Long Caye where the cabins and garbage are located.

"It is always a question of fact whether a particular parcel of land is or is not contained in the description of the land conveyed."

In order to find the true meaning of any relevant document reference may be made to the recitals, Doe and White v. Osborne (1840) 4 Jur 941.

Evidence outside the deed is admissible to identify the particular lands denoted by the words of the deed (Dublin and Kingstown and Rly Co. v. Bradford (1857) 7 C.L.R. 57, 624; Lyle v Richards (1866) L.R.1 H.L. 222 at 239) but not so as to contradict plain language of description in the deed (Grigsby v Melville (1973) 3 All E.R) 455' (1974 1 W.L.R 80 C.A).

Words in an instrument of grant, as elsewhere, are to be taken in the sense which the common usage of mankind has applied to them in reference to the context in which they are found, and to the circumstances in which they are used. Lord v Sydney Comrs. (1859) 12 MOO PLC 473 at p. 497. Halsbury Laws 4th Ed. Vol. 12 para. 1518 - last sentence in para. 1 and note 2.

I accept Mr. Bautista's evidence that

(a) In his experience there are instances where parties agree to divide land under what they consider to be North and South and when the land is surveyed it sometimes turn out that the geographic North and South is not the same as what the parties decided. It is the intent of the parties;

(b) All the improvements by the Lomonts and the garbage pit is on the right hand side of the line on Exh. F.D.4 and in adopting the words of Mr. Bautista :

"If what the parties agreed to in the lease was everything to the right was the Northern half of the Caye where the improvements have been made and where Mr. Jackson's house is, this dotted line would make sense."

I further accept the evidence of Mr. Jackson in this regard and disbelieve the testimony of the defendants. I find that the physical evidence of what improvements were carried out on Long Caye supports Mr. Jackson's testimony that the parties agreed that the half of the Caye as shown on Exh. F.D.4 (Lomonts rough sketch plan) on the right side of the dotted line was the portion leased to the defendants which was referred to as the Northern half of the Caye in the lease (Exh. F.D.1) and which in fact was not the geographic North and South since no survey of the Caye was ever carried out.

I therefore find as a fact that the portion of Long Caye leased to the Lomonts was not the geographic North and South but comprised in the portion of land on the right hand side of the dotted line of Exh. F.D.4. (Lomonts rough sketch plan).

I shall now deal with the third issue-

(iii) Has there been a breach of covenant to pay rent by the firstnamed defendant to the plaintiffs

Mr. Dodd in his evidence stated that the defendants have not paid rent to the plaintiff for eight years inspite of communications by him personally and by letters informing them of the new proprietors.

Defendant No. 1 Mr. Lomont admitted that on an occasion when Mr. Dodd visited the Caye he told him that he had purchased the said Caye and after he discovered that the Caye was sold he continued to send money to Mr. Jackson because he had the right of first refusal and had two pending actions contesting the sale.

He further admits that the plaintiffs are the proprietors of the Caye and that he has not paid rent from October 1988 but is now prepared to pay the rent for the lease from that date.

I find from the defendant's (No. 1) own admission that he has failed to pay the lease rental to the plaintiff from October 1988 inspite of his knowledge that they were the new proprietors of the Caye and that this was a clear breach of the covenant to pay rent.

The following consequential matters have to be determined in respect of this failure to pay rent

(a) Was Notice required that there was a change of proprietors and that therefore payment of rent were to be tendered to the new proprietors; and

(b) The payment of the lease rent to Mr. Jackson

I shall now deal with the first consequential matter

(a) Was Notice required that there was a change of proprietors and that therefore payment of rent were to be tendered to the new proprietors

The law is quite clear that Notice of the new proprietors must be sent to the lessee. Mr. Dodd's evidence is that he not only spoke to the defendants informing them of the purchase of Caye but also that he wrote several letters to them in this regard including Exh. F.D.5. (letter intimating the sale of the Caye).

Mr. Lomont admits receiving several letters from Mr. Dodd from 1982 and I find it unbelievable that the letters received by Mr. Lomont did not include Exh. F.D.5 (letter intimating the sale of the Caye) nor any information about the sale of the Caye.

Furthermore, I take judicial notice of Action No. 291 of 1986, Gilbert Lomont and Ralph Jackson, and supporting affidavits of Mr. Lomont and his attorney in which Mr. Lomont applied for an injunction to restrain the sale of the said Caye to the plaintiff.

Furthermore, Mr. Lomont admitted in his evidence that he knew the Caye was sold when he checked in the Supreme Court Registry in 1989.

The English and Empire Digest Vol. 20 1982Reissue under Caption "Notice" in paras. 5229 and 5264 states as follows-

"5259 Obligation to give notice General Rule

The rule of law when one is obliged to give notice to another is this; when the thing lieth more in the knowledge of the one than the other, and he cannot come to the knowledge but by the means. But when one mail has reason to known and doth as much as the other he is not bound to give notice to that other party." (Holt C.J)

"5264 Knowledge

Knowledge, no matter how, or in what character acquired, is knowledge for the purposes of notice; and if not forgotten at the time in question, will bind the party in possession of such knowledge, or those who, through him, would be affected by it."

Brown v Norton (1845) Res & Eq. Jud. 43 (Aus. )"

I therefore find as a fact that Mr. Lomont had knowledge and Notice of the sale of the Caye and of the new proprietors.

(b) Payment of the Lease rent to Mr. Jackson

Since Mr. Lomont knew of the sale of the Caye to the Plaintiffs since 1986, I find it very strange indeed that he continued to tender rent to Mr. Jackson who was no longer the proprietor and not to the new landlords. It is trite law that the new proprietors step into the shoes of the previous landlord and can enforce payment of the rent as the previous landlord.

I find that the Plaintiffs are entitled to the payment of the rent from the date of purchase in 1986.

(iv) Has there been a breach of the implied covenant by the defendants not to do anything to impugn, prejudice and dispute the plaintiffs' title as landlord

Mr. Dodd testified that the defendants have never acknowledged the plaintiffs as their landlords and have unsuccessfully repeatedly taken them to Court.

Mr. Lomont admitted that he instituted two actions contesting the sale of the Caye, that he had knowledge of an injunction by the Court forbidding him from trespassing on that portion of the Caye not subject to his lease but inspite of this injunction he admitted that he prevented Mr. Dodd's agents from going on the Caye because he had instructed his attorney to appeal that order and was under the impression that the appeal stayed the injunction.

I find that what is the most damaging bit of evidence against the defendants in respect of this issue, is this bit of testimony under crossexamination which reads as follows:

"I do not admit and accept that the plaintiffs are owners of the Caye. I dispute their title to this land. I dispute that they are my landlords" and again "Even after the Court of Appeal decision last year I am still disputing their right to ownership."

It is quite clear to this Court from the lips of Mr. Lomont that he not only disputes the plaintiff's title to the Caye but further denied the order of the Supreme Court by admitting that even after the decion of the Court of Appeal which dismissed the appeal to set aside the injunction he refused access to Mr. Dodd and the students to visit the Northern 5 ½ acres of the Caye. This is clearly an affront to the decisions of the Supreme Court of Belize and shows utter contempt for the laws of this country.

I find that it is quite clear from the evidence that the defendants not only impugned and disputes the plaintiffs' title to the Caye even at this trial but by denying access to Mr. Dodd and the students even after the Court of Appeal dismissed the application to set aside the injunction caused prejudice to the plaintiffs and their business by refusing to permit Mr. Dodd and his guests access to the said Caye; a very humiliating and bitter experience indeed.

(iv) Have the defendants trespassed on that portion of the Caye not leased to them and removed items off the Plaintiffs' property

The evidence is quite clear in this regard. Mr. Lomont in his evidence admitted that he occupied the whole Caye from 1969 1984 and that his caretaker and some of his guests occupied Mr. Jackson's house without Mr. Jackson's permission. Surely Mr. Jackson's house situated on the other portion of the Caye did not form part of Mr. Lomont's leasehold.

Furthermore, I accept and believe the evidence of Mr. Dodd that after the plaintiffs purchased the Caye Mr. Lomont was physically present on the southern portion of the Caye and prevented Mr. Dodd and his tourists from landing on the said southern portion not leased to Mr. Lomont the last occasion was January 18th, 1993.

I therefore find that the defendants repeatedly trespassed on the plaintiffs property.

(vi) Are the plaintiffs under an obligation to serve notices on the defendants for breaches of covenants to pay rent and disputing their title to the property.

I will now deal with the breach of the covenants to pay rent. I have already found as a fact that there was a breach of the covenant to pay rent.

The next question I have to deal with is whether there must be a formal demand for rent before the plaintiffs are entitled to forfeiture.

Halsbury Laws 4th Ed. Vol. 27 para. 428 states as follows:

"428. What amounts to re-entry. The terms of a proviso for re-entry require that if the landlord elects to determine the lease for a forfeiture he must do so by reentry, which the landlord may effect by physically entering upon the premises with the intention of determining the tenancy or by the issue and service of proceedings for the recovery of possession of the premises. In the case of forfeiture for nonpayment of rent the landlord must first make formal demand for payment, unless this requirement is dispensed with by suitable words in the proviso, or by statute. Usually the formal demand is expressly dispensed with by inserting the words "whether formally demanded or not, and it is dispensed with by statute in cases where half a year's rent is in arrear and no sufficient distress can be found upon the premises.

Actual entry is not necessary in order to take advantage of the forfeiture. When the cause of forfeiture is complete, the landlord may bring an action to recover possession, and the bringing of the action is equivalent to actual entry. If the writ contains an unequivocal demand for possession, the service of the writ operates as a final election to determine the term, whether judgment is obtained or not.

I next ask myself if the requirement to make formal demand for payment of rent is dispensed with in the lease.

The Lease Exh. F.D.1 (between Ralph Jackson and Gilbert Lomont in para. 5(c) states as follows:

"That if the rent hereby reserved or any part thereof shall remain unpaid for 30 days after becoming payable (whether formally demanded or not) or if any covenant on the lessee's part herein contained shall not be observed or performed then and in any case it shall be lawful for the lessor or any person or persons authorized by him in that behalf at any time thereafter to re-enter upon the said premises or any part thereof in the name of the whole and thereupon the term hereby created shall absolutely determine but without prejudice at any right of action or remedy of the lessor in respect of any antecedent breach of the covenants by the lessee hereinbefore contained."

I find the above para. 5(c) by inserting the words whether formally demanded or not" has expressly dispensed with the requirement of a formal demand for rent and that therefore there is no necessity for the plaintiffs to formally make a demand for rent before taking steps for forfeiture.

I shall now deal with the implied covenant not to dispute or impugn the landlords' title to the said land.

This issue was raised in para. 9 of the Statement of Claim as follows:-

"On sundry dates since the purchase of the said Caye by the plaintiffs the first defendant has disputed the title of the plaintiffs to the said Caye."

As I have pointed out earlier I observed that the defence has not denied or challenged this issue and in accordance with the Supreme Court Rules I find that this issue is therefore admitted by the defendants.

However, I must be satisfied on the law on this issue. Halsbury Laws 4th Ed. Vol. 27 para. 424 states:

"424. Impugning landlord's title as ground of forfeiture. There is implied in every lease a condition that the tenant is not to do anything that may prejudice the landlord's title, and that if this is done the landlord may re-enter for breach of this implied condition. Thus it is a cause of forfeiture if the tenant denies the landlord's title by alleging in writing, or, in the case of a tenancy from year to year, either in writing or orally, that the title to the land is in himself or another, or if he assists a third person to set up an adverse title, as where he acknowledges the freehold title to be in him, or delivers the premises to him in order to enable him to set up a title. In the case of a tenancy from year to year, the effect of such a denial of title is that the tenancy may be forthwith determined by the landlord without notice to quit. However, it is a question of fact what intention underlies the tenant's words or actions, whether in fact he is definitely asserting a title adverse to the landlord, or, as the case may be, intending to enable somebody else to set up such a title. Thus it is not sufficient that the tenant pays rent to a third person, or does not at once acknowledge the landlord's title, or refused to give up possession at a time when the landlord has no right to claim it. A denial in a pleading does not today give rise to forfeiture

I also find Warner v Sampson and Another (No. 2) (1958) 1 All E.R. p. 314 very illuminating on this issue.

The head notes of the case reads as follows:

"In an action for possession of premises comprised in a lease on the ground of breaches of covenant, one of the defendants, by her defence, had in effect denied the landlord's title and judgment was given for the landlord on the ground that this denial gave rise to a forfeiture. On an application by the defendants, under S. 146(2) of the Law of Property Act, 1925 for relief from forfeiture.

HELD: The defendants were not entitled to relief under S. 146(2) of the Act of 1925, because forfeiture incurred by the defendants arose by operation of law, and not under a proviso or stipulation in a lease to which alone S. 146(2) extended.

I have already found that there is abundant evidence that defendants have disputed the landlords' title since 1986 and I find that the law is quite clear on this matter that impugning and disputing a landlord's title is a ground of forfeiture of the lease.

The question that I must ask myself is whether the Plaintiff is under an obligation to serve notice on the defendants for an implied breach of covenant not to dispute or impugn the landlords title to land.

S. 15(1) of the Landlord and Tenants Act Chap. 153 stipulates that-

"A right of reentry or forfeiture under any covenant, proviso or stipulation in a lease for a breach of any covenant or condition in a lease shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice-

(a) specifying the particular breach complained of, and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach, and

(c) in any case, requiring the lessee to make compensation in money for the breach," etc.

However, this lease, Exh. F.D.1 contains no such covenant about disputing the landlord's title.

I adopt the words of Ashworth J. in Warner v Sampson and Another supra.

"In my judgment, this is not a forfeiture under any proviso or stipulation in a lease; it is a forfeiture that arises by operation of law."

I therefore find that there is no obligation on the part if the Plaintiffs to serve any notice to this effect on the defendants.

(vii) Are the plaintiffs entitled to forfeiture for breaches of the covenant to pay rent and for impugning and disputing their title to land

I find that for the breaches of the covenant to pay rent and to dispute or impugn the plaintiffs title, the plaintiffs are entitled to forfeiture of the lease.

(viii) Finally, are the defendants entitled to relief against forfeiture for breaches of

(a) the covenant to pay rent, and

(b) the implied covenant not to impugn or dispute the plaintiffs' title.

Halsbury Laws 4th Ed. Vol. 27 para. 442 states as follows

"B. RELIEF AGAINST FORFEITURE FOR NONPAYMENT OF RENT 442. Right to relief against forfeiture for nonpayment of rent. The proviso for reentry on nonpayment of rent is regarded in equity as merely a security for the rent, and accordingly, provided the landlord and other persons intereoted call be put in the same position as before, the tenailt is entitled to be relieved against the forfeiture oil payment of the rent and any expenses to which the landlord has been put. Save ill exceptional circumstances, therefore, relief will be granted on payment of the rent in arrear, and, moreover, save in exceptional circumstances, the court will grant relief on payment of arrears of rent and costs and will disregard other breaches of covenant.

This right to relief has been recognized, and restricted as to time, by statute. If the landlord has brought an action to recover possession, then at any time before trial, and providing the rent is six months in arrears, the tenant or his assigns may pay or tender to the landlord, or pay into court, all the rent in arrear, together with costs; thereupon all further proceedings are stayed, and the tenant or his assigns hold the demised land under the lease, without any new lease. After trial and judgment for recovery of possession the tenant is still entitled to relief, but he must apply within six months from the date when the judgment was executed; after the time he is barred from relief. However, if he applies in time and obtains relief he holds tile demised land according to the original lease, without any new lease. A person who has acquired title as against the tenant by adverse possession has no right to apply for relief. Where tile landlord has reentered peaceably without bringing proceedings, the statutory six months' timelimit for an application for relief does not apply and the court may grant relief under its equitable jurisdiction outside that limit. The jurisdiction is exercised by the High Court; and where the landlord seeks summary judgment, the tenant's right to relief remains unaffected. Special provisions apply where the landlord is proceeding in a country court to forfeit the lease for nonpayment of rent.

It is trite law that the Court has a discretion to grant relief against forfeiture of a lease. I find that in so doing the Court's discretion is unfettered save that it must be exercised judicially and having regard to all the circumstances. Egerton v Esplanade Hotels London Ltd. 1947 2 All E.R. 88.

In considering whether or not to grant relief the Court must take into account not only the conduct of the tenant and the gravity of the breach but also the value of the property forfeited. (Cremin v Barjack Properties Ltd. 273 Estates Gazette 299, C.A.)

I am mindful of some of the considerations influencing the Court as set out in (Ropemaker Properties Ltd. v. Noonhaven Ltd. (1989) 2 E.G.L.R. (1989) 34 E.G. 39.

(a) The conduct of the defendants

(i) I find that since the commencement of the Lease in 1968 there were problems with the previous landlord Mr. Jackson and the defendants concerning the payment of rent and trespassing over that portion of the land not leased to them.

In this regard I believe and accept Mr. Jackson's evidence.

I am further confirmed in this finding by taking Judicial notice of Case No. 96 of 1972 between Ralph Jackson and Gilbert Lomont the defendant No. 1 in which the learned Chief Justice Moe made these findings of fact in that judgment.

(ii) I further find that the defendant No. 1 in dealing with the Plaintiff in this case has persisted in this continued breaches of the lease experienced by Mr. Jackson, that is, non-payment of rent and continued trespassing over that portion of the Caye not leased to him.

I further find that the defendant No. 1 is a "bad tenant."

(iii) I further find that the defendants behaviour and attitude in disobeying an order of the Supreme Court prohibiting them from refusing the Plaintiff's agent, Mr. Dodd access to the Southern portion was contemptuous of the Courts and laws of this country and arrogance of the highest order.

Furthermore, his outburst in Court in his evidence when crossexamined about the said case No. 96 of 1972 Jackson v Lomont supra in which he said

"The judge was wrong. I did not appeal" and again "Even after the Court of Appeal decision last year I am still disputing their right to ownership" and again "If this Court says I must come off Long Caye I would appeal"

also shows contempt for our judicial process and the judges of this Country.

(iv) I find that his "sacking" of his attorneyatlaw during the course of this trial when he refused to take the legal advise of his attorney an incident without precedent in this country, also displays utter contempt for lawyers' advise in Belize.

(v) I find that the defendants are complete strangers to the truth. Their prevarication, reluctance and hesitancy in answers to questions put to them and denial of Exh. F.D.4 (Lomont's rough sketch plan) used as an exhibit in affidavit sworn to by defendant No. 2 on the 3rd of December, 1992 used by the defendants against an application for injunction brought by the plaintiff in this action confirms my view that their evidence cannot be believed and relied upon by the Court.

(b) Gravity of the breach

(i) I find that the defendants have paid no rent since 1986 to the present time;

(ii) I further believe and accept Mr. Dodd's evidence that he experienced two confrontations with the defendants when he and his 20 tourists were prevented from visiting the "southern" portion of the Caye by threats of dogs to attack them one of the defendants party had a machete and extreme profanities were hurled at the party by the defendant No. 1.

Again when Mr. Dodd and a party of eight persons were prevented from going on the Caye by the profanities and hysterical behaviour of defendant No. 2 inspite of the Order of the Court is a contempt of the Court.

In so doing the acts of the defendants are likely to destroy the young fledgling tourist industry Belize is endeavouring to cultivate by giving Belize a bad name.

Further, their refusal to obey an injunction granted by this Court as I have said before shows utter contempt for the laws and judges of this country.

I find that the defendants behaviour in this matter places them beyond the pale of civilized behaviour and not worthy tenants of the Plaintiffs and any other person.

Furthermore, their continued presence as unworthy tenants will without a shadow of a doubt lead to an even more frightening confrontation including loss of life.

(c) Value of the huts erected by the defendants

There is no evidence of what estimate or value to be placed on the huts erected by the defendants.

For the above reasons I refuse to grant any relief against forfeiture of the lease.

I shall now deal with the claim for damages.

In Jegan v Vivian (1871) L.R.6 CH. App. 742. Lindley L.J. in dealing with a case of trespass to land and the normal measure of damages stated:

"The plaintiffs have been injured in two respects. First, they have had the value of their land diminished. Secondly, they have lost the use of their land and the defendants have had it for their own benefit. It is unjust to leave out of sight the use which the defendants have made and that lies at the bottom of what are called the way leave cases."

I have already found as a fact that the defendants have repeatedly trespassed on the plaintiffs' property. However, I find that there is no clear evidence that the defendants removed any items of property belonging to the Plaintiffs.

I further find that in preventing Mr. Dodd and his visitors to the Caye on two separate occasions inspite of the injunction restraining the defendants not to do so, must have caused some financial loss to the Plaintiffs.

However, I find that there was no evidence led as to what financial loss the plaintiffs suffered and the Court cannot speculate on this matter.

Damages will therefore be nominal which I set at $500.00.

Finally, I must deal with the issue as to whether a claim for possession is inconsistent with a claim in the same Writ for an injunction.

The short answer to this issue raised is that the past conduct of the defendants over the years in persisting with breaches of the lease and refusing to comply with orders of the Court compels the plaintiffs with justification not only to claim possession but also to seek an injunction restraining them from entering upon the plaintiffs' land and from denying thein access to their lands.

I give judgment for the plaintiffs-

(1) Possession of Long Caye with effect from December 31st, 1994;

(2) Mesne profits of $2,475.00 to the date of the service of this Writ;

(3) Mesne profits from date of service of Writ until possession is delivered to the plaintiff;

(4) An injunction restraining both defendants by themselves, their servants or agents or otherwise howsoever from entering upon Plaintiffs lands and from denying the Plaintiff's access to an enjoyment of their land;

(5) Damages at $500.00;

(6) Costs to be taxed or agreed

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