Supreme Court
Action No. 216 of 1979
24th October 1979
Staine, J.

Application for interlocutory injunction - Motion to strike out affidavit - Order 39 of Supreme Court Rules - Prolixity of paragraph 3 of affidavit - Irregular amendments of page 2 of affidavit - Paragraphs 15-18 scandalous - Paragraphs 19-27 irregular as containing argumentative matters - Prolixity a matter for costs and does not affect admissibility - Order 39 rule 2 - Court has power to allow amendments to affidavit subject to direction being given for that purpose - Order 39 rule 14 - Evidence does not support what is set out in paragraphs 15-18, paragraphs misleading and scandalous - Paragraphs 19-27 contain opinions rather than facts - Too many matters of complaint about affidavit - Affidavit struck out - Costs of hearing to be borne by applicant.

RULING ON SUBMISSION BY DEFENDANT'S SOLICITOR
THAT AN AFFIDAVIT IS DEFECTIVE

At the commencement of the hearing of an application for an interlocutory injunction the Court was moved to hear arguments that an Affidavit sought to be used in these proceedings was so defective that the proper course was to strike it out.

The motion rested on several grounds.

Firstly, there was what was called the prolixity of paragraph 3 of the Affidavit. Then it was alleged that page 2 of the Affidavit appears to be irregularly amended. Next, it was alleged that the contents of paragraphs 15, 16, 17 and 18 were scandalous, and that paragraphs 19 - 27 were irregular in that they set out argumentative matters. The relevant legislation is contained in Order 39 of the local Supreme Court Rules, which were in turn based on Order 37 of the English Rules of Supreme Court, and now contained in Order 26 of the English Rules.

As regards prolixity, Order 39, rule 2 appears to be dealing with a situation where the prolixity is contained in the title of the Affidavit although under the former rule 31 of the English Rules prolixity, in general, was disallowed. But rule 31 has now been rescinded and, in any case, prolixity was a matter for costs and would not affect admissibility.

It is clear that page 2 of the Affidavit contains several minor amendments, but by virtue of Order 39 rule 14, the Court has power to allow these, subject to a direction being given for that purpose. This appears to confer a discretion on the Court, which is not dependent on whether or not the other party has been prejudiced by the amendment. The exercise of this discretion would depend on whether the Affidavit could be saved by allowing the amendment, having regard to its contents in other respects.

It has been argued that paragraphs 15, 16, 17 and 18 are scandalous. Mr. Barrow in reply says these paragraphs speak of matters of fact and are not scandalous within the normal meaning attributed to that word.

Paragraph 15 of the Affidavit recites that by virtue of Chapter 88 of the Laws (of Belize), the Central Housing and Planning Authority was empowered by resolution to prepare a town planning scheme with respect to certified lands.

And paragraph 16 recites that such a scheme was prepared. Then the paragraph continues by making a reference to Gazette Notice No. 830 published in the Government Gazette of 1949 at page 205. The paragraph ends "in pursuance of the resolution passed by Central Authority."

Clearly the meaning to be gathered from this is that the Gazette Notice No. 830 is connected with the Housing Scheme in respect of which a resolution was passed.

But when one looks at Gazette Notice No. 830, it has to do with the lease of lots at Newton Barracks, is so headed, and by its terms is an invitation to apply for lease of lots. No mention is made of a town planning scheme.

Therefore, in this context, the paragraphs are misleading, and indeed scandalous.

The final ground of complaint with regard to the Affidavit is that paragraphs 19 to 27 violate the provisions of rule 3, that is, that Affidavits should be confined to facts.

It appears to me from the reading of these paragraphs that what the Respondent has done is to take facts and upon them formulate an opinion. These opinions are open to challenge and would seem to be within the competence of the Court to pronounce on them. Without hesitation I would say that they are not facts but very much opinion.

In the light of the foregoing I find that there are too many matters of complaint about this Affidavit to enable me to exercise any discretion which would save it. I therefore order it struck out and the costs of hearing to be borne by the Applicant.

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