Encalada v Foreman

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Staine, J.
• Judgment Date: 11 January 1979
• Docket Number: Action No. 211 of 1978
• Date: 11 January 1979

Supreme Court

Staine, J.

Action No. 211 of 1978

Encalada

and

Foreman

Appearances:

Mr. Dean Barrow for the plaintiff

Mr. Raymond H. Barrow for the defendant

Injunction - Application for interlocutory injunction — Defendant had constructed pier on plaintiff's property in 1987 — Plaintiff took no action — Defendant commenced construction of another pier — Finding that although there were serious issues to be tried the Court could not grant the injunction since it would deprive the defendant of the use and enjoyment of something he had enjoyed for a long time — Finding that the Court could not grant an injunction in respect of the second pier since it was not a separate motion.

Staine, J.

1 By this motion the plaintiff seeks an injunction to restrain the defendant from continuing to maintain piers and a dive shop and from continuing to build a restaurant and bar so as to become a nuisance to the plaintiff.

2 The evidence in support of the motion has been given by one affidavit sworn to by the plaintiff who resides at the Corner of Hyde's Lane and New Road in Belize City, and is the owner and occupier of a dwelling house and house an beach front property situated at San Pedro, Ambergris Caye. The defendant is the owner of a hotel situated behind her property.

3 Sometime in 1978, the defendant built a pier leading into the sea and a dive shop at the end of the pier, directly off the plaintiff's property at Ambergris Caye.

4 The defendant has, since that time, commenced building another pier off the front of the plaintiff's property, and also started building a restaurant and bar next to the first pier and dive shop.

5 The plaintiff, therefore, moves the Court to obtain an injunction as aforesaid.

6 In answer to the plaintiff, the defendant has filed an affidavit in which he alleges that he is in the tourist business and that the first pier and dive shop are used in providing services which the tourist business offers to customers, and that the first pier was in fact built in November 1977.

7 The defendant also alleges that the area of beach land used for swimming by the public abuts the plaintiff's property, but is the property of the Crown. He further traverses other allegations contained in the plaintiff's affidavit.

8 The matters have been fully argued before this Court by Mr. Dean Barrow for the plaintiff and by Mr. D.B. Courtenay for the defendant.

9 It is clear from the...