IN
THE SUPREME COURT OF BELIZE A.D. 2001
Action
No. 3 of 2001
| Between |
(PATRICIO
FLORES
(SAN CARLOS COMPANY LIMITED
( A private Company duly registered
(Under Chapter 206 of the Laws of
(Belize
|
PLAINTIFF |
| |
(
(
( And
(
(
|
|
| |
(JIM
OWENS |
DEFENDANT
|
AWICH J:
| Notes: |
Setting aside default judgment when defence not delivered,
O. 30 r 15. Whether affidavit of attorney sworn in support
of the application is admissible, whether there is good
defence on the merit. |
J
U D G M E N T
The
Application to Set Aside Judgment
Jim
Owens, the defendant in this case, has applied to court
for court order setting aside the judgment entered by default
on the 19.2.2001 in favour of Patricio Flores, the first
plaintiff and San Carlos Company Limited, the second plaintiff.
The judgment was in default of delivering defence. The grounds
for the application to set aside the judgment were: that
the defendant's attorney had been informed by the plaintiffs'
attorney that a writ of summons had not been issued in the
case, and that the defendant had a good defence on the merit
of the case. The affidavit filed to support the application
was that of an attorney, Mr. Leo Bradley Jr, who in fact
was attorney for the defendant and also his counsel in Court.
There was no affidavit of the defendant himself or of any
other person in his favour.
The
Case and Judgment in Default
The substantive case was that the first plaintiff entered
into an agreement with the defendant to lease a piece of
land measuring 53.674 acres, situate at San Carlos, Orange
Walk District. The agreement was described as, "First
Right of Refusal Agreement." There might be inference
from the agreement that the defendant would have the right
of first refusal in the event that the first plaintiff decides
to sell the land. The first plaintiff at the time did not
have a registered title to the land, but the defendant was
aware that registration process was going on and that the
first plaintiff was likely to obtain registered title. Following
the agreement, the defendant was allowed to enter part of
the land and to clear and built on it. His obligation in
the agreement included constructing a house for the first
plaintiff and taking water supply to the house. Subsequently,
the first plaintiff obtained registered title to the land.
After some time the first plaintiff asked the defendant
to vacate the land because the defendant had failed to live
upto his obligation to built a house for the first plaintiff
and to take water supply to the property. Following that,
the first plaintiff sold his interest over the land to the
second plaintiff. Both plaintiffs proceeded to demand that
the defendant leave the land. The defendant refused and
the plaintiffs commenced action in this case for ejectment
of the defendant and gaining total possession of the land.
The
writ of summons was issued, according to the Court Registry
seal, on the 5.1.2001 at 11:30 a.m. Together with it was
filed an application for interlocutory injunction order
against the defendant. Both the writ of summons and the
application were served on the defendant personally on 12.1.2001,
by Police Officer, P.C. 4163 Rodel Garcia. Affidavit of
service was filed on 16.1.2001. Memorandum of appearance
was filed on behalf of the defendant on the same day by
Youngs Law Firm. No defence is on the case file and has
not been delivered to the plaintiffs. Judgment in default
was entered on 19.2.2001.
The application for interlocutory injunction order was granted
by Meerabux J. on the 9.1.2001. The order granted extensive
interlocutory injunctions namely, injunctions restraining
the defendant from: entering the land, constructing any
building, and clearing any further area of the land, interfering
with the plaintiffs entering onto the land and with their
enjoyment of it.
The
part of the order allowing the plaintiff to enter and enjoy
the land appears to me not to be an order suitable at interlocutory
stage. The purpose of interlocutory injunction is to preserve
the status quo, that is, to preserve the state of
things as they are at the commencement of the court case
pending determination of the case. To grant an interlocutory
order allowing one party to proceed to enter the land and
proceed to enjoy the land while restraining the other party,
pending the determination of the case, is not to grant an
order for the preservation of the status quo as contemplated
by O. 54, particularly rr 3 and 12.
See also Paul v MFG Enterprises Ltd, Action No. 284
of 1996 and, American Cyanamid Co. v Ethicon Ltd. [1975]
AC 396 or [1975], All ER 504, an appeal case in
England accepted by our Court.
Determination
In
his submission opposing the application, learned senior
counsel Mr. O. Sabido, for the respondents plaintiffs, objected
to the use of the affidavit sworn by learned Attorney L.
Bradley, who was also counsel in Court for the applicant.
I assume that Mr. Sabido based his objection on Rule
37 of the Legal Profession (Code of Conduct) Rules, 1991,
published in, Statutory Instrument No. 42 of 1991
which states:
Mr.
Bradley's affidavit stated matters beyond merely formal
ones for example; at paragraph 4, he deposed that the writ
of summons had not been issued and served, and at paragraph
13 that he believed that the defendant had good defence
based on a written sub?lease. I accept the submission of
Mr. Sabido that Mr. Bradley's affidavit should not be used.
There are two recent judgments from our courts on the point:
the first is, Rupert Burk Najerra v The Queen, Criminal
Appeal No. 284 of 1996, the second is, Casa
Caribe Limited v Lee Wyant Revocable Trust of 1987, Supreme
Court Action No. 179 of 2001. In both cases the
point has been made that an attorney who finds himself in
a position to provide evidence whether viva voce or by affidavit
ought not to represent his client in the trial, rather he
should act as a witness and entrust the conduct of the case
to another attorney of the client's choice. Accordingly
I strike out the affidavit of Mr. Bradley. It follows that
the application before court stands unsupported by affidavit,
contrary to the requirement of making application to set
aside judgment, under O. 30 r 15 of the Supreme Court
Rules. There being no evidence left to support it,
the application is dismissed.
Were
I to accept the affidavit of Mr. Bradley, I would have held
that the facts deposed to therein would not be sufficient
to warrant setting aside the judgment entered in default
of delivering defence. The facts therein did not answer
the averments and contents of the affidavit of the first
plaintiff that the defendant had failed to live upto his
obligation in the agreement, to built a house for the first
plaintiff and to take water to the premises and it did not
specify any other defence. The affidavit simply did not
disclose any defence. Further the affidavit was less than
probative as to the assertion that a writ of summons had
not been issued and served on the defendant personally,
especially when memorandum of appearance was filed on his
behalf by, "Youngs Law Firm" on 16.1.2001. Of
equal importance the affidavit did not state any reason,
let alone good reason, for failure of the applicant to file
defence after memorandum of appearance had been filed.
Costs