IN THE SUPREME COURT OF BELIZE A.D., 2001

Action No. 312 of 2001

 

Between	(ANGEL VELLOS JR. ( ( ( And ( (	PLAINTIFF AND RESPONDENT
	(MINISTER OF NATURAL (RESOURCES AND	DEFENDANTS
	(JOEL TORRES	APPLICANT

Mr. L. Welch for the Plaintiff/Respondent
Mr. M. Chebat for the Defendant/Respondent

AWICH J:

Notes:

Application to discharge interlocutory injunction order: whether non disclosure of material facts is ground for discharging interim injunction order made ex parte; the right to apply for discharge of order upon new facts.

 

J U D G M E N T

The Application

Mr. Joel Torres, the second defendant and now the applicant, has applied by summons dated and filed on 25.4.2001 for court order, "that the injunction granted by the order (of this Court made by Gonzalez J) .... dated 16.8.2000 be discharged on the ground that the plaintiff failed to make full disclosure to the Court," and for costs of the application. The interlocutory injunction order applied for and granted was extensive; it restrained Joel Torres the defendant/applicant from erecting any building on Lot 59, at St. Mathews Village, Cayo District, improving the property and buildings and amenities thereon in any way and from using and enjoying the use of the property in anyway. The injunction was applied for following filing of a writ of summons on 19.7.2000 by the plaintiff/respondent to commence a case against the defendant/applicant. The case was that the respondent had on 30.10.1997 obtained lease interest over Lot 59 at St. Mathews Village, Cayo, and the applicant wrongfully on 1.9.1998 entered the land, proceeded to built a house and commenced enjoying the property.

That there is a serious argueable case on behalf of the plaintiff is certain. That the plaintiff will succeed or fail is to be decided later and not at this stage when the Court is only concerned with the question of whether or not to continue interlocutory injunction while the case proceeds to determination. From affidavit evidence filed by both parties, the Court is able to say that by a letter of ref. 408/96 dated 30.10.1997, the Commissioner of Lands offered the property, Lot 59, at St. Mathews, Cayo, for leasing to Vellos Jr. Following that, someone gave permission to Torres to enter the land. He proceeded to build a house on it. Vellos Jr. became aware and objected. Then on 23.5.2000 the Commissioner wrote to Vellos Jr. cancelling the offer of 30.10.1997 and on 29.5.2000 wrote to Torres offering to him the same Lot 59 for leasing. That was followed by Minister's Fiat of Lease dated 9.6.2000. Vellos has resisted the cancellation of the offer to him and has come to Court over it by issuing a writ of summons against the Minister and Mr. Torres. He then applied for interlocutory injunction which His Lordship Gonzalez granted. The applicant now, has applied to have the interlocutory injunction order discharged.

Determination

The facts on which the applicant has come to Court to ask for discharge of the injunction is that at the time the Court heard Vellos Jr's application, for injunction, the Court had no knowledge that Torres had filed affidavit in opposition and so the judge dealt with the application on the basis that Torres had not filed affidavit disclosing grounds for opposing Vellos Jr's application, whereas in fact, Vellos Jr had been served with and had knowledge of the affidavits and its contents. Torres says that was non disclosure of material facts and is ground for discharging the injunction.

First, it is not true that His Lordship Gonzalez J was unaware of the affidavit of Torres and its contents when the judge granted the interlocutory injunction order. The affidavit was filed at Court on 15.8.2000 the order was granted on 16.8.2000, the day after. I have not had sight of the notes made by my learned brother, but the fact that the affidavit was on the case file when he made the application is enough to let me conclude that he read the affidavit and took account of it, unless shown otherwise and it has not been shown otherwise.

Secondly, non disclosure ground only applies when the injunction order, the subject of application to discharge, is an interim order, granted on an ex parte application, not on inter partes application, unless the non disclosure was fraudulent. An application is inter partes when the respondent has been served with the application and has been afforded opportunity to attend even if the respondent does not actually attend at the hearing. The application of Vellos Jr heard on 16.8.2000 was an inter partes one; it cannot be discharged on the ground of non disclosure unless the non disclosure was fraudulent. If the non-disclosure is not fraudulent, the course to take is for the injunctee to apply for discharge of the injunction order based on the new facts. In this application the facts in the affidavit of Torres are not new facts and in any case I would have not declined injunction on the facts.

During the hearing of the application, learned counsel Mr. Welch, for the respondent, informed the Court that the respondent was agreeable to the discharge of that part of the injunction order which restrains Torres from entering the land and using the building already constructed in the meantime. I dismiss the application of Mr. Joel Torres dated 25.4.2000 and filed the same day. Costs of the application are given to the respondent/ plaintiff. I however, vary by consent, the interlocutory injunction order made by Gonzalez J on 16.8.2000, by discharging that part of the order that restraints Mr. Torres from entering the land and using the dwelling house already built.

Delivered this Wednesday the 30th day of May, 2001.

At the Supreme Court,
Belize City, Belize.

Sam Lungole Awich
Judge