Arturo Matus v Attorney General of Belize
| Jurisdiction | Belize |
| Judge | Madam Justice Michelle Arana |
| Judgment Date | 01 January 2021 |
| Court | Supreme Court (Belize) |
IN THE SUPREME COURT OF BELIZE A.D. 2017
Before the hon. Madam Justice Michelle Arana
In The Matter of Section 3(d) and 17 read together with the other provisions of the Belize Constitution, Chapter 4 of the Substantive Laws of Belize relating to the taking of property rights, including riparian rights
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In The Matter of the National Lands Act, Chapter 191 of the Substantive Laws of Belize in relation to reserve areas
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In The Matter of Section 138 to 141 and 143 of the Registered Land Act, Chapter 194 of the Substantive Laws of Belize relating to the Acquisition of Title by Prescription and the Rectification of Land Register
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In The Matter of Section 122 of the Limitation Act, Chapter 170 of the Substantive Laws of Belize relating to the extinction of title
Mr. Darrell Bradley for the Claimant
Ms. Samantha Matute Tucker for the First and Second Defendants
Ms. Naima Barrow for the Third Defendant
The Claimant, Arturo Matus, is the registered proprietor of all that parcel of land described as Parcel No. 4105, Block 16 in the Caribbean Shores/Belize Registration Section (hereinafter called Parcel “4105”). He has occupied the land from around 2002 onwards to the current date and he has exercised full occupation, possession and control of all the land described as Parcel 4105. There was a reserve of 44 feet in front of Parcel 4105 as noted on the survey plan. In or about the early part of 2014, the Second Defendant, the Registrar of Lands, purported to create a parcel, Parcel 5031, Block 16 in the Caribbean Shores/Belize Registration Section (hereinafter called Parcel “5031”). This parcel purported to include the reserve in front of Parcel 4105 along the Belize River and title to Parcel 5031 was sold to the Third Defendant, New Deal Ltd. This company then constructed a fence which blocked off Mr. Matus's access to the Belize River through parcel 5031 and to any other access to the area denoted on the survey as the reserve.
i.) Whether at all material times the area denoted as a 44 feet statutory reserve formed part of Parcel 4105 and constituted part of the Claimant's title which was subject to the reserve requirement.
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ii.) Whether the Claimant's Parcel 4105 abutted the water's edge thereby creating riparian rights of regress and egress to which the Claimant is entitled as an owner of waterfront property.
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iii) Whether the creation, issue and sale to the Third Defendant of Parcel 5301 and construction of a fence by the Third Defendant resulted in the taking away of the Claimant's riparian rights as contained in Section 3 (d) and 17 of the Belize Constitution, and is accordingly null and void and of no effect, and whether the Claimant is entitled to an injunction and damages.
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iv) Whether by virtue of Section 143 of the Registered Land Act, the creation of Parcel 5031 and the issue and transfer of that parcel to New Deal Ltd, as proprietor, was obtained by fraud, mistake or in contravention of the law.
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v) Further, or alternatively, whether an easement of necessity was created in favor of the Claimant through the reserve area to permit public entry and exit.
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vi) Whether the creation and issue of Parcel 5031 was void and ultra vires Section 12(8) of the National Lands Act, read together with the other provisions of the legislation, which requires that all surveys of National Lands be subjected to a reserve not exceeding 60 feet.
The first witness for the Claimant was Arturo Matus. The witness said that he is a Businessman who resides at Mile 5, along the Philip Goldson Highway, Belize City, Belize District, Belize. Mr. Matus says that he was at all material times the registered proprietor of a parcel of land described as Parcel 4105, Block 16 in the Caribbean Shores/Belize Registration Section (hereinafter called “ Parcel 4105”). A copy of his Land Certificate together with the map for Parcel 4105 is attached as “ AM1”. He has occupied the land that later became known as Parcel 4105 for a continuous period from around 2002. The witness came to acquire a lease of this land because he also owns Parcel 4106, which is a much smaller parcel of land located immediately adjacent to Parcel 4105 on the opposite side away from the Belize River. He obtained his lease of Parcel 4106 in 1999, and so sometime thereafter he began making inquiries about acquiring the land that later became known as Parcel 4105. When Mr. Matus obtained his lease for Parcel 4105 the Lands and Surveys Department completed a form entitled “ Report on Land Inspection” and this form describes the land in this area as “ flat swamp.” This was in respect of Parcel 4106, but the description of land in this area as swampland was descriptive of all surrounding lands, including what was then Parcel 4105. The witness also attached a map he had from that time showing that the adjacent Parcel 164, which is now also owned by the New Deal Ltd., was once an island and that the Belize River came in between what later became known as Parcel 4105 and Parcel 164. This map also shows that the land receded inwards. The Report on Land Inspection and the map are attached as “ AM2” and “ AM3” respectively.
Mr. Matus said that he received permission from the Commissioner of Lands and Surveys to survey what later became Parcel 4105 in about 2002. After receiving permission he engaged C.B. Samuels, Licensed Surveyor, to carry out a survey, and C. B. Samuels produced a survey of what later became Parcel 4105. This survey done by C.B. Samuels included a reserve area of approximately forty feet, as required for national lands abutting water, and it is Mr. Matus's claim that he has an ownership interest or right in the area noted as a reserve located immediately in front of and abutting Parcel 4105 being the river bank, and that the Government of Belize, through the Registrar of Lands, cannot lawfully sell this reserve area and take away his interest therein. This is because he was the one who commissioned the survey, pursuant to his request for permission to survey, and this reserve was included on his survey as a lawful requirement denoting that his land was made subject to this reserve. The survey plan commissioned by Mr. Matus and done by C.B. Samuels is exhibited as “ AM4”.
From about the year 2000 onwards to the current date Mr. Matus has occupied the area of land that later became Parcel 4105. He had first occupied this land, after the survey was done by C.B. Samuels, under lease from the government of Belize, and then as titled owner. He attached as “ AM5” a Land Purchase Approval Form submitted by him to the Government of Belize dated 21 February, 2003, which refers to Parcel 4105 which was then held by him under Lease No. 366/2002. He had to surrender his lease when he was purchasing the land from the Government of Belize.
Even though the survey from C.B. Samuels includes an area of reserve on his plan, from 2000 to a date in 2017, the witness says that he has always occupied all the land up to and immediately abutting a body of water called the Belize River, and his land was always river frontage in that the land went all the way to the water's edge as existed then based on the ebb and flow of the river, or depending on the high and low watermark. So, the land that he used and occupied as owner of Parcel 4105 abutted the Belize River. Parcel 4105 was always riverfront and the reserve was simply the distance between the high water mark and the low water mark as measured by the surveyor. At high tide the water from the river came all the way up to the edge of Parcel 4105 and sometimes the water from the river went into Parcel 4105 as much as ten feet, and at low tide the water receded and more of the riverbank was exposed. But at all times Mr. Matus states that he had unimpeded access to the Belize River directly from Parcel 4105.
Since carrying out of the survey Mr. Matus has exercised full occupation, possession and control of all the land described as Parcel 4105 up to and including the water's edge, and this land has always been river frontage. He had constructed a dwelling house on Parcel 4105, where he still lives to this day with his family, and he filled that entire parcel of land, which was originally swampland. He also filled a portion of the area noted as a reserve to better utilize the river access and prevent erosion of Parcel 4105. He erected a docking facility and pier along the water's edge in the reserve area to moor his boats, and he maintained this entire area by regularly cleaning the river bank reserve and repairing the dock. He also use to fish frequently from his land using the Belize River. Mr. Matus says that he has always considered the area noted as a reserve in front of Parcel 4105 and going into the Belize River as being part of his title, but only subject to the restriction of the reserve, meaning that he understood that he could not block this area or bar access from other users. He also enjoyed riparian rights of access into the Belize River from Parcel 4105. Pictures of the dock built and maintained by the witness showing the water on the reserve area is attached as “ AM6”.
In early 2017 Mr. Matus discovered that a Parcel 5031 was created out of the entire reserve area and that this parcel was sold by the Government of Belize to the Third Defendant. He first discovered this because he saw construction going on in the area of the reserve. No one told Mr. Matus that this parcel was going to be created and he was not notified or consulted when it was being surveyed. He just simply observed that the Third Defendant commenced the construction of a fence to block off Mr. Matus's entry and exit to the reserve area. This fence was substantially completed by...
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