IN
THE SUPREME COURT OF BELIZE A.D., 2001
Action
No. 338 of 2001
| Between |
(BIBI
GAZNABBI
(
(
( And
(
( |
PLAINTIFF
|
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(BELIZE
ELECTRICITY
( CO. LTD. (B.E.C.O.L.)
(
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FIRST
RESPONDENT |
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(BELIZE ELECTRICITY
(LTD. (B.E.L.) |
SECOND
RESPONDENT
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Mr.
M. Young, S.C., for First Applicant/Defendant
Mr. P. Zuniga for Second Applicant/Defendant
Mr. Y. Gaznabbi for the Respondent/Plaintiff
J
U D G M E N T
AWICH J:
| Notes:
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Application
for further and better particulars O. 22 rr5,8,9 and
10, time expressed as period between two calender years,
identity of agent or servant as further particulars,
application before defence filed. Statement of Claim,
O. 23 rr4 and 5. |
An
Application for further Particulars
This
is judgment in two interlocutory applications of the first
applicant/defendant, Belize Electricity Co. Ltd. (BECOL)
and the second applicant/defendant, Belize Electricity Ltd.
(BEL), in which they asked for court orders compelling the
respondent/plaintiff, Bibi Gaznabbi, to deliver further
and better particulars of her claim set out in her Statement
of Claim dated, 14.10.2000 and filed at Court on 16.10.2000.
Each applicant filed separate summons applications on 28.12.2000
and 3.1.2001 respectively. Such applications are authorised
by O. 22 rr8 and 10 of the Supreme Court Rules.
I decided
to write detailed judgment because learned senior counsel
Mr. M. Young, for the first applicant, and learned counsel
Mr. P. Zuniga , for the second applicant, made detailed
submissions, answered by learned counsel Mr. Y. Gaznabbi
for the respondent, with strong opposition.
Before
the applications were made, the applicants' attorneys had
written to the respondent's attorney as required by O.
22r9, requesting the further and better particulars
now applied for. The respondent, by her attorney's letter
dated 30.11.3000, refused to deliver the further and better
particulars, except that by inference, paragraph 9 of the
letter appears to state an item of the requested further
and better particulars. In the same letter, the respondent's
attorney stated her intended contentions against delivering
the further particulars. Her two contentions were that:
(1) she was not obliged to deliver the further and better
particulars because the particulars were items of evidence
and therefore should not be asked for as part of pleading
under r5; (2) the applications were, in her word, "estopped,"
from asking for the further and better particulars because
their attorneys had already known the further and better
particulars during negotiation with attorney for the respondent.
Respondent's
Second Contention Summarily Rejected
I have
to state right away that if the averments in the Statement
of Claim are found to be inadequate in particularity, no
amount of facts supplied or revealed during attempted negotiation
for settlement can cure that. The provisions in O.
22 require that particulars of claim be supplied
as pleading or part of pleading. Negotiation is not part
of pleading nor pleading. Attorneys are expected to know
that when they engage in negotiation, they do so without
prejudice to the right to proceed to trial by court. That
may be the reason Mr. Gaznabbi headed his letter dated,
30.11.2001, "without prejudice." It follows that
the contention of Mr. Gaznabbi for the respondent, about
estopel is no answer to the application for further particulars.
The applicants were entitled to request further and better
particulars and subsequently to apply for court order, notwithstanding
any negotiation that may have taken place. The contention
of estopel must fail.
Respondent's
First Contention
As
I understood him, Mr. Gaznabbi submitted in support of contention
(1) that he drafted the Statement of Claim adequately in
accordance with O. 22 r5, and that there is
no obligation to expand the Statement of Claim by supplying
the further and better particulars applied for. Further,
that supplying the further particulars will be supplying
evidence, and supplying evidence is excluded under O.
22 r5. The provision of O. 22 r5 which
Mr. Gaznabbi relies on states:
"5. Every pleading shall contain, and contain only,
a statement in a summary form of the material facts on which
the party pleading relies for his claim or defence, as the
case may be, but not the evidence by which they are to be
proved, and shall, when necessary, be divided into paragraphs
numbered consecutively. Dates, sums, and numbers shall be
expressed in figures and not in words. Signature of Attorney
at Law shall not be necessary."
The
Statement of Claim drafted by Mr. Gaznabbi and delivered
to applicants/defendants is as follows:
"STATEMENT
OF CLAIM:
The Plaintiff's claim against the Defendants jointly and/or
severally is for:
-
Damages and Pecuniary Compensation for UNLAWFUL
ENTRY by the Defendants upon the Plaintiff's Property
situated and formerly known as Parcel 1294/1 Silver
Hills, now Hills of Promise, Benque Viejo del Carmen,
Cayo District, Belize, during the period approximately
from 1992 to 1995 during the preparation of the Foundation
of the HYDRO PROJECT in Cayo District.
2.
Damages and Pecuniary Compensation for WASTE to
the Plaintiff's aforesaid land by the Defendants during
the aforesaid period.
-
Damages and Pecuniary Compensation for EXCAVATION
and REMOVAL of the Plaintiff's entire aforesaid land
to a depth of approximately eight feet on all sides.
-
Damages
and Pecuniary Compensation for DESTRUCTION to the
ninth and succeeding feet by heavy earth moving equipment
and machinery of the Plaintiff's entire aforesaid land
during the aforesaid period after the unlawful removal
of the top eight feet of soil causing subsidence of
surrounding areas.
-
Damages
and Pecuniary Compensation for DESTRUCTION and REMOVAL
of Survey Pillars from the Plaintiff's land situated
as aforesaid.
-
Damages and Pecuniary Compensation for FAILURE
to replace the land excavated and compaction to original
height of approximately nine feet including shoring
and filling surrounding areas to prevent further subsidence
during rainfall.
-
Damages and Pecuniary Compensation for FAILURE
to re-survey the Plaintiff's land and replacement of
Survey Pillars to their original position in accordance
with the Official Plan of Survey to the satisfaction
and approvals of the Ministry of Natural Resources.
-
Damages and Pecuniary compensation for LOSS OF
TIME occasioned by the Defendants within which construction
of Plaintiff's building should have commenced and completed
but for the tardiness on Defendants part to speedily
and amicably settle the WASTE and EXCAVATION to Plaintiff's
land by RESTITUO IN INTEGRUM.
-
Damages
and Pecuniary Compensation for FAILURE to CONCLUDE
protracted negotiations between the Plaintiff and the
Defendants and for the replacement of foundation soil
and survey pillars.
-
Such further or other relief as the Court may
deem just and equitable.
11.
Costs.
Dated
this 14th day of October, 2000."
The
Further Particulars Applied for
The
relevant parts of the application of the first applicant
set out the further and better particulars asked for as
follows:
( 813383432
The location of the parcel of land referred to in paragraph
1;
( 813383432
Details of waste alleged in paragraph 2;
( 813383432
Extent of the excavation and removal alleged in paragraph
3;
( 813383432
The rights of the plaintiff to the survey pillars mentioned
in paragraph 5 and 7;
( 813383432
The loss of time mentioned in paragraph 8;
( 813383432
The negotiations referred to in paragraph 9;
..............................
This
summons was taken out by Messrs W.H. Courtenay & Co.
Attorneys at Law ........ on behalf of the second (sic)
named
defendant."
The first applicant has since changed attorneys, learned
counsel Mr. M. Young, now represents the first applicant.
Mr. Young applied for and obtained leave to amend the application
by adding three more further and better particulars, to
the application, namely:
"In
paragraph 1:-
(1)
Dates on which the first defendant is alleged to have entered
the premises
(2)
Names (s) of persons who allegedly as servants of the first
defendant entered upon the premises
In
paragraph 1 to 9:-
Particulars
of damages under each paragraph."
The
relevant parts of the application of the second applicant
set out the further and better particulars asked for as
follows:
"1.
..........
UNDER
PARAGRAPH 1
(1) The location of the parcel of land referred to;
(2)
The date or dates on which the second named defendant allegedly
entered the premises mentioned therein, and the length of
time they remained therein;
(3)
The name or names of persons through whom it will be alleged
that the second named defendant were acting;
(4)
By which person or persons did the second named defendant
perform the act or acts complained of?
UNDER PARAGRAPH 2
Details of the alleged waste.
The extent of the alleged excavation and removal.
The nature of the Plaintiff's rights, if any, to the survey
pillars.
The loss of time.
The failure to conclude negotiation."
The
rule of practice by which the respondents say they are entitled
to obtain further and better particulars from the respondents
is O. 22 r8, as limited by r10.
The two rules state:
"8. A further and better statement of the nature of
the claim or defence or further and better particulars of
any matter stated in any pleading, notice, or written proceeding
requiring particulars, may in all cases, be ordered (Form
No. 28 App.K) upon such terms, as to costs and otherwise,
as may be just.
9. ..........
10. Particulars of claim shall not be ordered under Rule
8 of this Order to be delivered before defence unless the
Court shall be of opinion that they are necessary or desireable
to enable the defendant to plead, or ought for any other
special reason to be so delivered."
I have
to state at this point that the Rules require pleadings
to proceed in the sequence directed in O. 22 r2
which states:
"2. The Plaintiff shall subject to the provision of
Ord. XXIII, and at such time and in such manner as therein
prescribed, deliver to the defendant a statement of his
claim, and of the relief or remedy to which he claims to
be entitled. The defendant shall, subject to the provisions
of Ord. XXIV, and at such time and in such manner as therein
prescribed, deliver to the plaintiff his defence, set-off,
or counter claim, if any, and the plaintiff, subject to
the provisions of Ord. XXVI, and at such time and in such
manner as therein prescribed, deliver his reply, if any,
to such defence, set-off, or counterclaim. Such statements
shall be as brief as the nature of the case will admit,
and the taxing officer, in adjusting the costs of the action,
shall at the instance of any party, or may without any request,
inquire into any unnecessary prolixity, and order the costs
occasioned by such prolixity, to be borne by the party chargeable
with the same."
In
the substantiative case the respondent/plaintiff has delivered
her Statement of Claim. The applicants /defendants have
filed and delivered their memoranda of appearance. That
of the second applicant/defendant was a conditional one,
but has since matured by lapse of time. Both applicants
have not delivered any defences. They contend in their applications
that the particulars they have asked for are necessary to
enable them to, "fashion," their defences. They
should have remembered that an application or even an order
for further particulars does not operate to extend time
automatically - O. 22 r11.
What
a Statement of Claim is and the Purpose
I understand
a statement of claim to be a pleading; it comprises only
concise statements of the material facts upon which the
plaintiff relies to support his claim to redress or relief,
and of the redress or relief, be it monetary compensation,
return of chattel, right to possession of property, injunction
or restraining order, restitution, bare declaration of right
and others. Usually the statements include claim for interests
and costs. Those concise statements of facts must disclose
connection to the plaintiff and the defendant and must point
to a known principle of law under which the plaintiff claims
the relief. The result is that a cause of action is disclosed.
The
purpose of a statement of claim is to inform the defendant
of the facts and issues, that is, of the case against him
that he has to answer, and, to inform the judge who will
try the case, of the facts and issues in the case. It is
essential to inform the defendant so that he is not taken
by surprise at the expected trial, and of course, to enable
him to produce, if he can, the relevant evidence by which
he will contest the case, if he does not admit liability.
The words of Lindley L. J. in an old case in England, the
case of Duke v Wisden (1896-99) T L R Vol. 481,
are still to the point. He stated:
"What
are particulars wanted for? The object of particulars is
to prevent surprises; to inform the other side the nature
of the case which they have to meet as distinguished from
the mode in which that case is to be proved."
That
was a case in which names and addresses of persons to whom
false representation was made, and who bought poor quality
goods presented as the plaintiff's goods, were requested
and applied for. When the appeal came for hearing, the plaintiff
had agreed to supply the names of persons to whom the representation
was made, but not of the buyers. The Court held that it
was not in the circumstances necessary to supply the names
and addresses of the buyers. Much more particulars are required
in fraud and defamation cases - see O. 22 r7 and the
case of Bruce v Odhams Press Ltd. [1936] 1KB 697
Determination
of the Respondent's First Contention
So
are the averments in the Statement of Claim delivered by
the respondent /plaintiff such that they do not particularise
sufficiently the facts upon which she relies for her claim
for damages, and so as to entitle the applicants/defendants
to court orders for further and better particulars? The
further particulars applied for separately by both applicants
are the same.
Further
and Better Particulars under Paragraph 1 of the Statement
of Claim
In
regard to paragraph 1 of the Statement of Claim, the further
and better particulars applied for are the location of the
land in question, the identities of the persons who when
acting for the defendants entered the land and the date
of entry. In addition the second applicant applied for further
and better particulars about how long the persons remained
on the land.
Attorneys for the respondent drew up the Statement of Claim
in a very unusual way. Instead of stating, as is usual,
only the facts alleged to constitute the wrongful acts first
in the early paragraphs and then stating prayer for reliefs
at the end and if necessary particularising the damages,
the attorney stated prayer for damages in each paragraph
together with the alleged wrongful acts. Moreover, he did
not specify the reliefs asked for as required by O.
23 rr4 and 5. It is an unusual and even an inconvenient
way, but if it is not bad for prolixity and is not vague
or too general, the Statement of Claim will suffice.
In
my view the averment about the identity of the land as stated
at paragraph 1 of the Statement of Claim is sufficiently
detailed. It states the parcel number, the common name by
which the land had been known, the present name, the locality
and district in Belize where the land is. I understand that
the applicants had sight of the title deed, if they did
not have sight, it is a document that could be available
by discovery. The period for the alleged unlawful, entry
is stated as "approximately from 1992 to 1995 during
the preparation of the foundation of the HYDRO PROJECT in
Cayo District." That adequately specifies the time.
Application for further and better particulars (a) as amended
in the application of the first applicant and further and
better particulars (1) and (2) in the application of the
second applicant, asking for further and better particulars
about the location of the land and the time of the alleged
wrongful act under paragraph 1 of the Statement of Claim
are refused. Application of the second respondent for further
particulars about how long the agents or servants of the
second applicant allegedly remained on the land is also
refused.
There is merit, however, in the application for the further
and better particulars of the identity of the persons who
allegedly entered the land while acting for the applicants.
If, as suggested in submission by Mr. Gaznabbi, the respondent
does not know their names, she is to provide that information
as her answer and further and better particulars to the
request. The applicants need to ascertain whether those
persons were their employees and agents. This case
is distinguishable from, Duke v Wisden, supra. Application
of the first applicant for further particulars introduced
by amendment (b) and further and better particulars in the
application of the second applicant about the identity of
the persons acting on behalf of the applicant under paragraph
1 of the Statement of Claim, are granted.
I note
that paragraph 1 of the Statement of Claim in effect alleges
trespass, yet the right of the plaintiff to possession (not
ownership or title) has not been averred. It is possession,
not title, that action in trespass is founded upon. Both
applicants have not applied for further and better particulars
about the right of the respondent to possession. It may
well be that the applicants already have sufficient information
about it. Had they applied, I would have ordered the particulars.
Further
and Better Particulars under Paragraph 2,3,4 and 6 of the
Statement of Claim
Although particulars of the waste or damage to the land
was only generally averred at paragraph 2 of the Statement
of Claim, the particulars were stated again at paragraphs
3,4 and 6. The land was allegedly excavated upto 8 feet
deep and never restored. The result is that the particulars
have been sufficiently stated. Application of the first
applicant for further particulars (b) and (c), and of the
second applicant for further particulars 2 and 3 of paragraphs
2 and 3 of the Statement of Claim are refused.
I am
not convinced that in her claim in this case based on damage
the result of alleged wrongful removal or damage to survey
pillars, the respondent should have averred her right to
the pillars. Since both applicants have withdrawn that part
of their application for further particulars of the right
of the respondent to the survey pillars, I do not decide
the question.
Further
and Better Particulars under Paragraph 8 of the Statement
of Claim
Time
lost by the respondent in commencing building has been stated
in the most general way in the Statement of Claim. Some
specification of time or of a particular action that was
delayed could supply useful information for the applicants
to know the case they are to answer. I grant the applications
for further and better particulars (e) of the first applicant,
and at 8 of the second applicant, of paragraph 8 of the
Statement of Claim.
Further
and Better Particulars under Paragraph 9 of the Statement
of Claim
Applications for the further and better particulars of negotiation
have been abandoned. No order is made about paragraph (f)
in the application of the first applicant and 9 of the second
applicant for further particulars under paragraph 9 of the
Statement of Claim .
The
Further and Better Particulars Necessary for Defendants
to Plead
In
my view the further and better particulars that I have ordered
to be supplied were necessary to enable the applicants to
understand well the case against them so as to formulate
meaningful defences. Accordingly in this judgment I have
granted leave under O. 22r8, to the applicants/defendants
to apply for further and better particulars before filing
defences.
The
respondent is required to deliver the further and better
particulars ordered within 30 days and the applicants shall
deliver their defences within 8 days as required by O.
24r6, and thereafter all subsequent pleadings shall
be proceeded with in accordance with the Rules. I draw attention
of the parties to O. 22 r11; an order for
further particulars does not operate as a stay of proceedings
or give any extension of time unless specified in the order.
Costs
I have allowed some of the applications and refused others,
parties will bear own costs.
Delivered
this Tuesday the 17th day of April, 2001
At
the Supreme Court, Belize City, Belize.
Sam Lungole
Awich
Judge
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