Briceño et Al v Moody

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 12 December 1978
• Docket Number: Action No. 174 of 1977
• Date: 12 December 1978

Supreme Court

Malone, C.J.

Action No. 174 of 1977

Briceño et al

and

Moody

Appearances:

Mr. M. Sosa for the Plaintiffs in the original action

Mr. D.B. Courtenay for the Defendant by counterclaim

Mr. Denys Barrow for the Defendant to the original action.

Practice and procedure - Interrogatories — Reasons for which certain interrogatories should be answered

1 On the 4th of May, 1978 the defendant Moody (hereinafter referred to as “the defendant”) applied to this court for an order that he be at liberty to serve on the plaintiffs to the original action (hereinafter referred to as “the plaintiffs”) and on Roque Ramirez (the defendant by counterclaim) (hereinafter referred to as “Roque Ramirez”) interrogatories in writing. The application was made after the case had been first set down for hearing on the 8th February, 1978. On that ground, it was submitted by counsel for Roque Ramirez that it was made for the purpose of delaying the hearing and should not be entertained. To my mind, there is no substance in that objection as the facts are these: On the 22nd December, 1977, the defendant's defence was delivered to the plaintiffs with the heading of the action which had commenced as an action between the plaintiffs and the defendant, changed to what it is now so as to include Roque Ramirez. The defendant thus gave a clear indication that it was his intention to join Roque Ramirez. There was some delay in serving Roque Ramirez with the defence and counterclaim, as appears from a pencilled note on a copy of the defence and counterclaim, with the result that he was not served until the 7th March, 1978. It was therefore not in order for the action to have been set down for hearing on the 8th February 1978. Appearance was entered by Roque Ramirez on the 16th March, 1978, by which time he had also been served with the amended defence and counterclaim. His defence to the amended counterclaim was then filed and delivered on the 28th March, 1978. Consequently, as this application to serve interrogatories was made in just over a month after the delivery of the defence to the amended counterclaim, it is, I think, manifest that there has been no delay on the part of the defendant. Nor do those facts support the suggestion made that the application is made in order to delay the trial of the Action.

2 Of the 22 interrogatories submitted, the plaintiffs are called upon to answer numbers 1 and 2, numbers 5 and 15 (inclusive) and number 22; whilst Roque Ramirez is called upon to answer all save number 5. The action by the plaintiffs is one for possession of certain premises, which they claim the defendant has wrongfully been in possession of since the 22nd January 1975. In brief, the case of the defendant is that he became seised of the premises and entitled to their possession as heir at law of his father, Charles Athelston Moody, when the latter died on the 10th of November 1949. And he further says that at all material times he was and is the owner of the premises and entitled to their possession as he impugns a deed of the 3rd June, 1972, relied upon by Roque Ramirez as conveying the premises to him and a deed of the 2nd January, 1975, which the plaintiffs claim conveyed the premises to them. As regards the deed of the 3rd June 1972, the defendant says that it was not a conveyance but was intended only as a mortgage. The deed of the 2nd January, 1975, he describes as a purported conveyance alleging in the ninth paragraph of his defence that: “9. The plaintiffs at the time of taking the said purported conveyance from the said Roque Ramirez did so fraudulently as the plaintiffs had or ought to have had notice that the said Roque Ramirez held only a mortgage on the said premises and not the unencumbered fee simple in possession”. Whilst fraud is denied by the plaintiffs and Roque Ramirez, and both aver that the deed of the 3rd June, 1972 was a conveyance, it is admitted by Roque Ramirez in paragraph 3 of his defence to the defendant's amended counterclaim, that the deed of the 2nd January, 1975, was only a purported conveyance.

3 It is against that background of two disputed deeds, of which one is alleged to be fraudulent, that the interrogatories which counsel for the defendant stated were directed solely to the issue of fraud, must be considered. By that statement, however, I do not...