Action No. 300 of 2001

Mr. P. Zuniga for the Applicant
Mr. D. Waithe for the Respondent

AWICH J:

J U D G M E N T

When this interlocutory application for interlocutory injunction order came for hearing yesterday, learned counsel Mr. D. Waithe, for the respondent, applied for adjournment. His reason was that he was not ready to proceed, he had hoped that direction orders he had asked for from the Registrar would be dealt with first. Mr. Waithe had entered conditional appearance on behalf of the respondent/defendant, to the writ of summons of the applicant/plaintiff, issued on 11.6.2001. I assume that the direction orders were asked for pursuant to the conditional appearance. Learned counsel Mr. P. Zuniga, for the applicant/plaintiff, opposed the application for adjournment because there was fear that the land, the subject of the case, might be encumbered or disposed of in the meantime, thereby rendering any interlocutory injunction order the applicant might obtain after the adjournment, nugatory. Upon that Mr. Waithe informed the Court that the land had already been sold. The land in question is Lot. 65, Caye Caulker, Belize District. For that very reason I considered the application for interlocutory injunction a very urgent one, incase transfer of the land had not taken place. I refused the application for adjournment.

The application was proceeded with. The submission of Mr. Zuniga was that there was a good case for the applicant/plaintiff based on sale of part of the land by the respondent to the applicant, there was very good prospect of succeeding. Mr. Waithe's submission was mainly based on S:14 of the Land Utilization Act, Cap. 158A of the Statute Laws of Belize. He submitted that the agreement of sale of a portion of undivided land was prohibited by S:14.

I rose to consider my judgment. I concluded that S:14 would be significant in determining the application. As Mr. Zuniga had expressed doubt as to whether the Act was not amended, I decided to invite both counsel back in court in the afternoon to be heard further on S:14. I then wrote this judgment.

Let me now state the application in detail. In his application dated 27.6.2001 filed on the same day, Mr. Lionel Heredia, the applicant/plaintiff, applied for interlocutory injunction order to restrain Beatrice Gallego, the respondent/defendant, from, "charging or in any way dealing with or .... disposing of," a parcel of land, Lot. 65, Caye Caulker, Belize District, the land, the subject of a Minister's Fiat Grant No. 73.

The applicant's affidavit in support of the application was to this effect: On 24.6.1994, by a written agreement, the respondent sold one half of Lot. 65, Caye Caulker, to the applicant, who the respondent allowed to take possession of the portion. The applicant took possession by his tenant. The purchase price was $15,000 which the applicant paid. Later the respondent's attorney contested the right of the applicant and demanded that the applicant's tenant vacate the land.

It appears that at the time of the sale, the respondent had not obtained title to the land and it was not clear whether the title would be for freehold tenure or leasehold tenure. More certain was that the respondent had not got the land parcel subdivided, so the one half of Lot. 65, Caye Caulker, the subject of the sale, was not defined on the ground, and there was no title to it.

To obtain interlocutory injunction order, the applicant must, of course, establish a serious triable issue in the substantive case, and must furnish security or undertaking as to damages which the respondent may suffer if interlocutory injunction is imposed restraining the respondent and should the respondent in the end win the substantive case. Beyond that the Court must still exercise discretion - see Edwards v Walter and Zuniga 3BLR514, in which a case from England, American Cyanamid Co Ltd v Ethicon Co Ltd [1975] AC396; [1975] 1All ER505, was cited and the points of law stated therein adopted.

The respondent opposed the application mainly on the ground that the claim of the applicant to interest over one half portion of Lot. 65, Caye Caulker is based on an agreement which is void under S:14 of the Land Utilization Act Cap. 158A, which states:

"14. The applicant shall not sell, lease, give or in any other manner alienate any part of the land which is to be subdivided until he has received the final approval of the Minister."

It was not in evidence whether the respondent had applied for subdivision of Lot. 65 before the agreement of sale was entered into. However, from the affidavit of the applicant, it was clearly intended that the respondent would subdivide the lot if he had not done so, obtain titles and transfer interest over one half of the land to the applicant.

To subdivide, the respondent would have to comply with the provisions of the Land Utilization Act. S:3 (2) specifically directs that, "no person may subdivide any land .... except in accordance with the provisions [of the Act]." The procedure is that under S:4 the respondent makes application to the Land Subdivision and Utilization Authority which may recommend the subdividing. Under S:14 he is enjoined not to sell, lease, give or in any way alienate any part of the land before he has obtained subdivision in accordance with the Act.

The transactions of sale and giving possession, between the applicant and respondent, were proceeded with without compliance with the provisions of the Land Utilization Act. The two purportedly entered into sale agreement evidenced in writing, exhibit LH1, before Lot. 65 was subdivided in accordance with the provisions of the Act. The sale agreement was in breach of SS:3 (2) and 14 of the Act. The sale cannot found a claim to any portion of the land. It cannot create any legal or equitable interest over the land. The judgment of Shank J in Civil Action No. 290/1998, Norman Angulo Mc Liberty v Michael Arnold & others, a judgment cited by Mr. Waithe, persuades me on the point.

So what is the strength of the substantive case of the applicant? Absolutely no strength in as far as his claims for, declaratory orders that he has beneficial right over a portion of Lot. 65, Caye Caulker, and that the respondent holds the land in trust for the applicant, are concerned, and in as far as the claim for specific performance order is concerned. The reason is that SS:3 (2) and 14 of the and Utilization Act defeat completely the agreement of sale on which the claims are based. The applicant may have claim for the return of the purchase price and damages, that is a matter for later consideration, nothing conclusive can be said about it.

When a statutory provision defeats a claim completely, it defeats the cause of action; it cannot be said that an arguable case has been established notwithstanding. The point of law cannot be proceeded with to the trial and final determination of the substantive case if the point of law clearly does not support the claim; that is because the point of law is not so complex so as to call for detailed argument suitable for consideration and determination at the substantive trial. It is a situation where the point of law clearly favours the defendant so that the plaintiff's case is without a cause of action. A good example is in an Australian case, General Steel Industries Inc. v Commissioner of Railway (NSW) (1964) 112 CLR125, a case in which a
claim could not be allowed to go to trial because statute clearly rendered the Commissioner not liable.

Mr. Zuniga, in his excellent submission, sought to rescue the plaintiff's interlocutory application by basing the plaintiff's substantive claim to interest over the one half portion of the land on case law principle of proprietary estoppel. I am unable to accept that notwithstanding the provisions of SS:3 (2) and 14 of the Land Utilization Act, the sale between the applicant and the respondent created equitable interest over Lot. 65, Caye Caulker. Estoppel is based on an act, conduct or promise of the defendant which the plaintiff has relied on and the defendant wants to go back on or has gone back on. In this case the sale is defeated by statutory provisions, SS:3 (2) and 14, which prohibit the sale.

Another way of looking at the application of Mr. Heredia is that he has applied for interlocutory injunction to restrain dealing with Lot. 65, Caye Caulker, when he has no legal right (inclusive of equitable right) in the land. Final injunction cannot be granted when the applicant does not have legal right - see Gouriet v Union of Post Office Workers [1977] 3WLR300; [1977] 3 All ER 70 and Montgomery v Montgomery [1965] P. 46. And so interlocutory injunction cannot be granted when the applicant does not have legal right. Mr. Heredia has no legal right because SS: 3 (2) and 14 of the Land Utilization Act deny him any right arising from the agreement between Gallego and him.

The application for interlocutory injunction to restrain the respondent from charging or in any way encumbering or disposing of Lot. 65, Caye Caulker, Belize District is dismissed because there is no serious issue with prospect of success in the claims of the applicant to possession or any other interest over Lot. 65, Caye Caulker, in Belize District.

Costs to the respondent.

Delivered this Wednesday the 4th day of July, 2001.

At the Supreme Court,
Belize City.

Sam Lungole Awich
Judge