IN
THE SUPREME COURT OF BELIZE A.D. 2001
Action
No. 491 of 1998
| Between |
(JACAH
SOUTH
(DEVELOPMENT LTD.
|
PLAINTIFF
|
| |
(
(
( And
(
(
|
|
| |
(SAMUEL BURGESS
(LORRAINE CABRAL |
DEFENDANTS |
D.
Shaw for Applicant/Plaintiff
M. Moody for Respondent/Defendant
RULING
AWICH J:
The
plaintiff, Jacah South Development Limited, applied for
leave to enter judgment against Samuel Burgess and Lorraine
Cabral because of the default of the two defendants. The
default judgment sought was for possession of certain land,
part of 1535.69 acres, the Western portion of Hughes Estate
West, situated at approximately 16.5 miles on the West side
of the Southern Highway, Stann Creek District, registered
at Folio No. 65 Volume 27 of the Register, damages including
mesne profit, interests and costs. The application, though
not stated, was under O. 30 rr7 and 8 of the Rules
of the Supreme Court, Cap. 82.
Learned
counsel M. Moody, appeared on the date of hearing the application,
26.4.2001, and opposed the application. She explained that
she had been instructed only the day before, and asked for
adjournment to allow her to file the necessary affidavit
to back the opposition to the application for leave to enter
judgment. Adjournment was granted. Ms. Moody has filed affidavit
sworn by Lorraine Cabral on behalf of both defendants. Today
3.5.2001, she presented her submission as to why leave to
enter default judgment should not be granted, and why the
defendants should be given leave to file defences late.
It
is my view that there has been excessive delay in filing
memoranda of appearance and defences. Writs of summons were
served on 9.12.1998, the defendants only informed the Court
of their intention to defend on 26.4.2001. They say that
they entered the land on the strength of a lease given to
them by Lands and Surveys Department of the Government of
Belize, and that immediately upon receipt of the writs of
summons, they took up the matter with the Department . It
was their understanding that the Department would correct
the error of grant of lease over the land in which the plaintiff
had interest. Even so the defendants could have reacted
to the writ of summons by acknowledging the writ of summons
and thereafter filing what they considered their defences.
They did not.
Learned counsel Miss D. Shaw for the applicant plaintiff,
rightly submitted that there is no defence disclosed. In
my view, delay aside, the facts deposed to in the affidavit
of Cabral does not disclose defence to claim in trespass.
It is not a defence that a defendant had been allowed by
another to enter the plaintiff's land. Leave to file late
defences to claim for possession (return of land) is refused.
Leave to enter judgment for possession is granted to the
plaintiff.
The
statement of claim is not sufficiently detailed in as far
as the claim for damages, which seem to include mesne profit,
are concerned. Despite the defendants' delay, leave is granted
to them to file defences late, but the defences must be
limited only to damages and costs and interests incidental
to damages. Costs of this application, relevant to the claim
for possession are given to the plaintiff.
It is,
of course, open to the defendants to take up their claim,
if any, against Lands and Surveys Department.
Delivered
this Thursday the 3rd day of May, 2001
At
the Supreme Court, Belize City, Belize.
Sam Lungole Awich
Judge