Supreme Court
Action No. 273 of 1983
7th August, 1984
Moe, J.

Mr. M. Sosa for the Plaintiff
Mr. N. Dujon for the Defendant

Action for recovery of possession of house and land and damages for trespass - dispute as to ownership of land - claim of ownership made by plaintiff established on evidence - defendant not entitled to compensation for expenses incurred repairing property and paying bills while in occupation as plaintiff had given defendant notice to leave and expenditure was without plaintiff's consent or approval - damages awarded for loss of use of premises during period of trespass by defendant - possession to be given to plaintiff.

J U D G M E N T

The Plaintiff is the registered proprietor of a parcel of land 1056, Block 1, Registration Section of Corozal Central. By this action she seeks to recover from the Defendant possession of that parcel of land, the house standing on it, namely No. 70 - 4th Avenue, Corozal Town, and damages for wrongfully entering and remaining on the said premises since 10th June, 1983.

The Defendant admits he entered possession on 10th June 1983 but says that he is the equitable owner of the premises and entitled to possession. He avers that between 1957 - 1959 he built the house on the land at his own expense and for his own use. In 1974 he purchased the land from the Government of Belize with his own money and for his own use and with the concurrence of the Plaintiff the land and building were subsequently registered in the name of the Plaintiff. He claims (1) A declaration that the land with the building is held by the Plaintiff on trust for the Defendant absolutely; (2) An order that the Plaintiff transfer the legal estate in the land and building to the Defendant or as he shall direct; (3) Alternatively, the sum of $7,205.37 being expenditure incurred by him in repairing the building and outgoings with the approval of the Plaintiff.

The Plaintiff gave evidence that the parcel of land, formerly Lot 162 Corozal Town, was leased by her husband from one Schofield. Government acquired land owned by Schofield, including the land leased to her husband, and leased back the land to existing tenants. After her husband's death, she rented the land from Government and later asked Government to sell her the land. Government accepted her application, she paid for it little by little and she produced three receipts. The Deputy Registrar of Lands said that the records of his department show that on 25th October, 1957 the Plaintiff filed an application to purchase the land which was approved on 11th March, 1963. A Location Ticket was issued to her on 16th January, 1969 and by Minister's Fiat, Grant No. 37 of 1976 in respect of the land then known as Lot 162 Corozal Town was issued to the Plaintiff. The land Register shows that the Plaintiff is the registered proprietor of the parcel of land 1056 with effect from 10th August, 1979. Another parcel, 1057, forming part of what was Lot 162, is now owned by one Neftali Martinez, a son of the Plaintiff. The Defendant registered a caution in his favour in respect of the parcel of land on 3rd August, 1983.

The Defendant gave evidence that in 1957 he paid off a mortgage that was on the land and an Adobe on it and asked his mother to apply on his behalf to buy the land. He did not apply in his name because he knew he was going to build a house and did not want his employer to find out he was getting land and building a house. His mother agreed to apply on his behalf. He went to the States in 1967 where he worked and studied. He sent remittances to his mother. On his return to Belize in 1974 he asked his mother if she had title for the land yet and she said no. He said he went to the Lands Department and told the clerk that he came to purchase the land that was in Emelia's name. The clerk suggested he pay the money in her name and let it be transferred in his name afterwards. He went home and told his mother he was going to pay the balance but it would be in her name and when he was ready, she can transfer it in his name. He went and paid off the purchase amount. He said he was issued with a receipt prepared in his favour and signed by the man at the Lands Department.

I turned first to the question whether the Plaintiff, the registered owner of the parcel 1056, holds it on trust for the Defendant. I was not impressed with the Defendant nor his witness, John Ferguson, and rejected the Defendant's account as to the circumstances in which the parcel of land came to be purchased in the name of the Plaintiff. In the first place, there is no receipt in favour of the Defendant before the court. There are three receipts in the name of the Plaintiff. Secondly, his evidence is contrary to his sworn Affidavit in earlier proceedings connected herewith and his pleading that in that year, 1974, he went to the Lands Department and purchased the land on his own behalf and paid the full purchase price. The evidence is clear that the land was paid for in three installments. His account did not ring true. For one reason , if it was correct that the mother's application in 1957 to purchase was on the basis that she would appear to be the purchaser until time to transfer title to the Defendant, there would be no need to discuss with her in 1974, as allegedly suggested by the Lands Department clerk, the process of paying for the land in her name and transferring title to the Defendant at a later date. In addition, I found him discredited under cross-examination. In his evidence he said that he sent remittances to his mother and maintained her while he was in the States. His mother acknowledged receipt of monies from him but he disposed of all the letters his mother sent him. Yet numerous letters sent to him by his mother were produced in Court and these referred to sums sent to him by his mother as help. I did not accept his explanation that the sums were his money which he had sent her and she was sending back to him for immigration purposes, i.e. it had to appear to Immigration that he was getting help from his mother and family.

I accepted the evidence of the Plaintiff and the Deputy Registrar of Lands and held that the Plaintiff is in fact the owner absolutely of the parcel of land 1056, Block 1, Registration Section, Corozal Central. In view of my assessment of the Defendant's evidence as already indicated, I also preferred the evidence of the Plaintiff as to the building of the house standing on the parcel of land. Her evidence was that she built the house little by little in stages. She made a loan from Government, got a grant from Government and received assistance from her sons, except the Defendant. One of her sons who was a carpenter also helped provide labour. Her evidence was supported by the evidence of her son Neftali. I also held that the Plaintiff is the owner of the house standing on the parcel of land 1056.

The Defendant went into possession of the house with the consent of the Plaintiff on the 10th June, 1983. By letter dated 13th July, 1983 the Defendant was called upon to vacate and remain off the premises. He did not comply and to date is still in possession. He therefore, became a trespasser. The Plaintiff is entitled to possession of her land and house and damages for trespass. There is evidence that the Defendant rented out the premises for the period September 1983 to March 1984 at a rental of $400.00 per month and this is taken into account in determining the damages to be paid to the Plaintiff.

The evidence is clear that the Defendant spent money on repairs of the building concerned and he satisfied the Court that he spent $6,389.67 therefor. He also insured the house concerned for one year from 3rd September, 1983 and paid rates and taxes due in respect of the premises up to 31st March 1984 in the sum of $295.70. It is also clear that this expenditure was without the consent or approval of the Plaintiff. There was a letter to the Defendant dated 28th June, 1983 telling him she was disturbed to learn he was going to have the building repaired without her authority or consent. He was given notice to leave the premises in mid-July 1983. The bills and receipts tendered in connection with this expenditure shows that a substantial portion of the expenses incurred and work done between August and September 1983. The Defendant incurred expenditure in the face of objections from the Plaintiff that he remain in the house and her demand that he give it up. In the circumstances he cannot succeed in his claim for the amount of the expenditure so incurred.

There remains a question as to the amount of damages to be awarded to the Plaintiff. The Defendant became a trespasser as from 10th June, 1983, the date he entered the premises, when he failed to meet the demand of the owner, the Plaintiff, to vacate. The Plaintiff is entitled to be compensated for the loss of the use to which she could have put the premises. The evidence is that the Plaintiff used to rent the premises and that the Defendant also rented out the premises. According to that evidence, the rental value is about $400.00 per month. She will therefore have damages assessed at $400.00 per month from 10th June, 1983. The Plaintiff also asked for damages on an aggravated basis. The evidence does not show this to be a proper case for such an award.

Judgment for the Plaintiff. She is to have

(1) Possession.

(2) Order that caution registered on 3rd August, 1983 by G. Martinez be removed from the Lands Register.

(3) Damages assessed at $400.00 per month from 10th June, 1983 until possession is given up.

(4) Costs.

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