Flynagen Ltd v Blades

• Jurisdiction: Belize
• Judge: Gonzalez, J.
• Judgment Date: 04 April 2000
• Court: High Court (Belize)
• Docket Number: 55 of 2000
• Date: 04 April 2000

High Court

Gonzalez, J.

55 of 2000

Flynagen Limited

and

Blades

Appearances:

Mr. Dean Barrow S.C. for the defendant.

Jurisdiction - Supreme Court — Application for the vacation of a caution registered against parcel of land — Section 132 of the Registered Land Act — Whether the court had jurisdiction to order the vacation of the caution — Finding that the court's discretion under the Registered Land Act was a wide one and the court could, without more, vacate any caution that it found ought not to have been on the register — Finding that even if the court's jurisdiction was constrained as suggested by counsel, the defendant had acted in bad faith in lodging the caution and this therefore fell within the court's jurisdiction.

Gonzalez, J.

1 This is an Application, heard on the 1st March, 2000 pursuant to section 132 of the Registered Land Act, for the vacation of a caution on a 36.13 acre parcel of land (i.e. Parcel 353 Block 1 Santa Elena Registration Section) situate along the 4 Mile Lagoon in the Corozal District of Belize. The plaintiff brought this application by Originating Notice of Motion. As originally filed, the Originating Notice of Motion also prayed other ancillary reliefs including a declaration, an injunction, and damages for trespass and for filing the caution. When this action first came up for the hearing on 17th December, 2000 learned counsel for the defendant, Mr. Dean Barrow S.C., moved to have these ancillary reliefs struck out. He submitted that, while an application to remove a caution may be brought by Originating Notice of Motion, application for the other reliefs could only be brought by writ of Summons. I accepted his submission and ordered that those parts of the application that relate to the ancillary reliefs be struck out.

2 Learned senior counsel for the defendant also asked the court to take judicial notice of the fact that his client had by Writ of Summons dated 11th of August, 1999 commenced Supreme Court Action (Action No. 328 of 1999) against the plaintiff company and Mr. Lewis Flynn, the company's majority shareholder and chairman. In that Action Mr. Blades seeks a declaration and other remedies to enforce his claim for one half of parcel 353. The issues raised in that Action are therefore substantially the same as the issues at this Application. On that basis Mr. Barrow, S. C. applied to have this Application stayed. I declined his application.

3 The only matter before me now, therefore, is the application to vacate the caution. The caution in question was placed on the land on the 28th day of January, 1997 at the behest of the defendant, Godfrey Elnathan Blades Sr. In support of his application to register the caution Mr. Blades made a statutory declaration setting out the grounds on which he applied to register the caution. The declaration reads as follows:

“I, Godfrey Elnathan Baldes Sr. do solemnly and sincerely declare that:–

• 1. From around 1969–70, I have been m occupation of a portion of parcel 314 Santa Elena registration section now being parcel 353.

• 2. That I was put into occupation of the said parcel of land by Mr. Louis Flynn on the clear verbal promise made to me by Mr. Lewis Flynn that one half of parcel 353 would be mine for services to be performed on parcel 314.

• 3. That for the past 27 years in reliance of the understanding I have been taking care of and maintaining that portion of parcel 353 which I was made to believe was mine as well as the remaining portion the property of Mr. Louis Flynn.

• 4. That for all the years I have been taking care of and maintaining the property (now parcel 352 and 353), I have not been receiving wages on the understanding I had with Mr. Flynn, namely that my compensation would be in the form of land.

• 5. That as a result of the aforementioned understanding, I, through my personal efforts and expenses built a canteen, four cabanas, two toilets, a dock made of stones, filled the road to the property and a portion of the land which was swampy (this fill covered his portion and mine). On this portion I maintained in good repair his house and keep the grounds.

• 6. About 1992 or 1993, Mr. Flynn approached me requesting that I give up my portion in lieu of another portion. I rejected his offer indicating to him that our agreement was that I would get this piece of land (portion of parcel 353) and that I was not interested in any other piece.”

4 For its part, the plaintiff Company filed two affidavits in support of the application to remove the caution — one by one of its directors, John Burks, and the other by its Chairman and majority shareholder, Lewis Flynn. In these affidavits the plaintiff Company takes issue with practically every assertion made by the defendant in his declaration. Since the facts in view were in dispute and could not best be resolved by affidavits evidence, I ordered viva voce testimony.

5 At the hearing the plaintiff presented two witnesses, Mr. Flynn and Mr. Sylvestre Trejo. Mr. Flynn gave evidence in terms of his affidavit. He testified that around 1969 the plaintiff company purchased approximately 2,865 acres of land in the Santa Elena area. In the month of May 1976 the said lands were compulsorily acquired by the Government of Belize and some two or three years thereafter portions of the said land comprising in the aggregate 358.3 acres or thereabouts (and including the present parcel 353) were re-conveyed to the plaintiff Company by the Government.

6 Prior to the acquisition by the Government, Mr. Flynn lived on the property with his family. During that time, he constructed a home near the shoreline of the Four Mile Lagoon and reared and tended cattle in other areas of the property. Following the re-conveyance to the Company of portions of the said lands, re-entered the land and effected repairs to the building and repaired and replaced the equipment and fittings.

7 While in residence on the property, Mr. Flynn made the acquaintance of the plaintiff and Mrs. Blades in 1989. Mr. Flynn gave Mr. and Mrs. Blades license and permission to use the kitchen facilities in a building on the land. This allowed them to conduct their business of selling food and beverages especially on weekends to persons who visited the Lagoon. In turn Mr. and Mrs. Blades agreed that they would prevent persons entering the property from causing damage to the buildings and other improvements and that they would use their best efforts to prevent trespassers from being on the property. In Mr. Flynn's absence they were to have custody of the company's farm equipment including a bush hog, a tractor and a land rover.

8 Mr. Flynn was emphatic that it was never agreed that Godfrey Elnathan Blades Sr., was to receive a beneficial interest in any portion of the Company's lands or to receive any consideration for his services other than the benefit of the license in favour of his wife and himself to use the Company's facilities and to carry on their food and beverage business on the Company's property at Four Mile Lagoon.

9 Mr. Flynn further testified that any labour, repairs, improvements or expenditures Mr. Blades may have made upon the property were for the benefit of the defendant's own food and beverage business and not for the benefit of the plaintiff Company — for example, repair works of a superficial nature to structures used by Mr. Blades and his wife for the purposes of their food and beverage business, filling of potholes in the access roadways servicing their business as well as the erection of thatched ‘palapas’ to provide (shade to tables installed for Mr. Blades's customers. Such works were performed using the tractor, equipment and tools of the Company. The assets of the Company enjoyed no appreciation as the result of Mr. Blades’ efforts but instead depreciated during the period in which he enjoyed the Company's license.

10 After 1990 the Company's agricultural ventures shrunk and were abandoned shortly thereafter. The only significant activity conducted on the land after that time was the restaurant and bar business conducted by Mr. and Mrs. Blades. During that period the Company suffered substantial deterioration, loss and damage to its property including the lack of maintenance and repair of the structures, the removal and loss of doors and plumbing fixtures in the buildings as well as loss of tools and equipment.

11 In 1993 Mr. Flynn advised Mrs. Blades that he was receiving offers to purchase the property but that she could continue to use the same as license until such time as the property was actually sold. On the 8th August, 1995 Mr. Blades' attorneys delivered a letter to the Company's attorneys in which the nature of his claim was first formally delineated. A copy of the said letter was tendered into evidence. By letter dated the 21st August, 1995 the Company's attorneys set out the Company's response to Mr. Blades' claim. No reply to this letter was entered on the 28th January, 1997. At the end of Mr. Flynn's testimony, the defendant was given an opportunity to cross-examine the witness but as he said that he was not represented by counsel for this portion of the case, he declined to cross-examine Mr. Flynn.

12 The other witness called by the plaintiff was Mr. Sylvester Trejo. Mr. Trejo testified that from the mid 1970's to 1988 he was manager of Barclays Bank in Corozal Town. During that time the plaintiff company maintained two accounts with Barclays; one was the main company account and the other was a farm account. Mr. Flynn provided funds for the main account, and monies from the main account were used to fund the farm account. Mr. Flynn was the sole signatory on the main account. Himself and Mr. Blades were signatories on the farm account. Funds were drawn from the farm account by Mr. Blades. From conversations with Mr. Blades Mr. Trejo learned that these funds were used to meet the expenses of the farm. The...