IN THE SUMPREME COURT OF BELIZE, A. D. 1998

ACTION NO.290

BEFORE the Honourable Mr. Justice Shanks

APPEARANCES:
Ms. Merlene Moody for the Applicant
Mr. Denys Barrow for the Defendants

JUDGMENT

This is an application for an order for sale of a large parcel of land (No- 440) to enforce a judgment obtained in action 290 of 1998 by Mr. Mcliberty against Michael Arnold and Corozal Free Zone Development Ltd.

In a previous case, I ordered that the transfer of that parcel of land by Corozal Free Zone Development Ltd. to a company, Best Lines Ltd., was done with intent to defraud creditors and that the transfer was void. Parcel 440 is therefore now the property of Corozal Free Zone Development Ltd. That company represented by Mr. Dons Waithe, does not oppose the making of an order of sale so enforce the judgment.

However, a Mr. John Trummer, Jr. who is represented by Ms. Merlene Moody has applied and been joined as defendant in the action and clams a right over a small section of parcel 440 and he says that there shouldn't be an order for sale or that any order for sale should be subject to his rights.

The right that he claims comes about because on the 28th of May, 1999, he agreed with Mr. Michael Arnold who was acting for Corozal Free Zone Development Ltd. to purchase one section (which is No. 149) out of the parcel 440. He handed over a cheque to Mr. Arnold for $5,000.00 and was given a receipt in the name of Corozal Free Zone Development Ltd. He was also given a title document for another parcel of land as security, but it appears he has lost that security in the meantime. The Plaintiff in this action obtained judgment in the Court of Appeal in July, 1999, and it is that judgment which he now seeks to enforce.

Ms. Moody states that her client claims a beneficial entitlement to parcel l49 pending subdivision (which has not yet happened in relation to parcel 440) and, as say I say, she claims that any sale of parcel 440 should be subject to Mr. Trummer's equitable interest in parcel 149.

Mr. Barrow has referred me to the various passages in Megarry and Wade on the Law of Real Property and he points out that a right to beneficial ownership of land can only arise under a contract of sale in a case where equity would decree specific performance of the contract of sale.

There are two reasons in this case why equity would not have decreed specific performance. The first is that at the time of the contract neither Michael Arnold nor Corozal Free Zone Development Ltd. in fact owned the land since as that stage it had been transferred to Best Lines Ltd. The second and more fundamental reason is that under Section 14 of the Land Utilization Act, it is Impossible to sell a parcel of land until subdivision approval has been obtained. Mr. Barrow says here would be no specific performance of this oral contract by Mr. Trummer since the subdivision approval has still not been obtained. In those circumstances Mr. Trummer acquired no beneficial interest in the particular parcel that he was buying and his only rights are to claim money from Mr. Arnold or Mr. Arnold's company.

There is, therefore, no obstruction to the clear right of the Plaintiff to a charge over the land, which is an overriding interest under Section 31(1)(e) of the Registered Land Act and to the order for sale which follows from the charge. I would therefore make an order for sale in the terms of the draft order handed in by Mr. Waithe and Mr. Barrow and I would dismiss the claim by Mr. Trummer made by his affidavit dated the 5th April, 2000.

Shank, J.

Dated this 11th day of April, 2000