Frank Alexander Eiley v Alex Nunez
| Jurisdiction | Belize |
| Judge | Madam Justice Martha Alexander |
| Judgment Date | 30 August 2023 |
| Court | Supreme Court (Belize) |
| Year | 2023 |
| Docket Number | CLAIM No. 767 OF 2021 |
THE HONOURABLE Madam Justice Martha Alexander
CLAIM No. 767 OF 2021
IN THE HIGH COURT OF BELIZE A.D. 2023
Mr. Oscar Selgado, Counsel for the Claimant
Mr. Estevan Perera, Counsel for the Defendant
The claimant (“Frank Eiley”) is a businessman from San Pedro Town, Ambergris Caye, Belize. The defendant (“Alex Nunez”) is a teacher at the San Pedro High School. Frank Eiley filed a claim against Alex Nunez dated 26 November, 2021 to recover the sum of BZ$104,212 plus interest and costs for breach of a sale agreement (“the agreement”).
I dismiss the claim for several reasons. Frank Eiley simply failed to prove his case. I find that the evidence before the court did not establish the existence of any agreement between the parties for the sale of registered land. Having failed to prove that there was an agreement in existence, Frank Eiley was unable to prove a breach of it. I find also that Frank Eiley is not entitled to recover the sum of BZ$104,212 as claimed. A person who makes a claim must be able to prove it, whether in whole or in part, and having failed to do so Alex Nunez is entitled to his costs of the proceedings.
Frank Eiley claims that on 8 December, 2019 Alex Nunez visited him at his establishment in San Pedro Town and, in the presence of his son-in-law, Jaime Rodriguez, offered to sell him two parcels of land viz. Parcel 8691 Block 7 and Parcel 8505 Block 7, both located in the San Pedro Town Registration Area, Belize (together “the specified parcels”). During January 2020 to July 2020, Frank Eiley commenced making payments directly to Alex Nunez or one Jorge Aldana in fulfilment of the terms of the agreement. He claims that Jorge Aldana received several payments on behalf of Alex Nunez. Frank Eiley provided receipts evidencing all sums paid to Alex Nunez.
Frank Eiley alleges that despite receiving all the payments, Alex Nunez failed and/or refused to transfer ownership of the properties to him. Frank Eiley states, further, that Jaime Rodriguez eventually purchased one of the parcels (i.e. Parcel 8691 Block) through another source and obtained proper transfer of title to the land, which was annexed to the pleadings. No other detail of this transaction was given in the pleadings.
Alex Nunez filed a defence and counterclaim on 11 January, 2022 denying the claim. He asserts that there was no agreement, written or oral, between the parties. Alex Nunez alleges in his defence that he neither offered to sell nor entered into any agreement for the sale of any properties with Frank Eiley. In particular, he states that he was not involved in any agreement or dealings made between one Jorge Aldana and Frank Eiley. Jorge Aldana did not work for nor was he authorized to act on behalf of Alex Nunez. Alex Nunez admits only that Frank Eiley paid him the sum of BZ$10,200 to visit the land department on the mainland Belize, on a number of occasions, to secure a purchase price from the Government of Belize for the specified parcels.
In his reply, Frank Eiley maintained that the parties had entered a sale agreement for the specified parcels but conceded that Alex Nunez was not involved in any arrangements that Frank Eiley had with Jorge Aldana. Frank Eiley conceded also that Jorge Aldana did not work for nor was he authorized to act on behalf of Alex Nunez.
Despite the concessions and/or admissions, Frank Eiley did not file an amended claim but proceeded to trial on the pleadings as filed. At the trial, counsel made an oral attempt to correct the sum claimed as damages, based on the reply.
The issues that arise for determination at trial are as follows:
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i. Whether a sale agreement existed between Frank Eiley and Alex Nunez?
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ii. If yes, whether Alex Nunez breached the agreement?
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iii. Whether Frank Eiley sufficiently proved his damages?
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iv. Whether Frank Eiley's reply to the defence constitutes an effective amendment of the claim?
Counsel for Frank Eiley submits that Frank Eiley was relying on common law rules to enforce his contract with Alex Nunez. He advances that, at common law, there are two types of contracts that are enforceable – contract by deed and simple contract. A simple contract may be in writing, orally or by conduct. Counsel for Frank Eiley argues that the claim is made pursuant to the existence of a simple contract and the evidence has satisfied the three main elements of the contract. Counsel submits, further, that this is the most cogent issue for determination by the court. He maintains that Frank Eiley has established by his evidence that the parties entered a simple contract for the sale of land.
Counsel for Frank Eiley also submits that the absence of a written agreement is not a point in contention between the parties, as Frank Eiley is relying on a verbal agreement. Counsel argues that the court ought, therefore, to accept that there was part performance of the contract by Alex Nunez, who admits to accepting BZ$10,200 to secure the purchase price for the two parcels. Frank Eiley's counsel argues, further, that this part payment is evidence of a wider agreement for the sale of land by Alex Nunez to Frank Eiley “ since no one would ordinarily pay that large sum of money simply to have a man go from San Pedro to Belmopan to ask for the purchase price of two parcels of land.” 1 He advances that Frank Eiley knew Alex Nunez for over twenty years so this is evidence that, “ the Claimant would never bring a malicious claim against someone he knew for that long period of time.” 2
In opposition, counsel for Alex Nunez submits that Alex Nunez did not offer to sell nor did he enter into any sale agreement for the specified properties with Frank Eiley. In fact, the legal requirements 3 to constitute a valid contract did not exist. Frank Eiley's case was completely disproved by Alex Nunez who testified to the fact that he never entered into such an agreement with Frank Eiley. Counsel argues, also, that Alex Nunez was not involved in any dealings made by Frank Eiley and Jorge Aldana; he did not authorize it and Jorge Aldana did not work for him. He submits that Frank Eiley has advanced no evidence of the existence or breach of any sale agreement. Frank Eiley also failed to provide evidence that he paid Alex Nunez monies to sell him the specified properties.
The first and second issues are interrelated so they can conveniently be disposed of together.
Frank Eiley's pleaded case was that Alex Nunez visited him at his place of business in San Pedro on 8 December, 2019 and offered to sell him the specified parcels for BZ$50,000 each. The agreement was made orally. He made several payments by instalments to the defendant but titles to the
To obtain the remedy sought, Frank Eiley must prove the existence of a valid sale agreement; that there was a breach; and the amount recoverable in damages.
At the trial, Frank Eiley advanced no evidence of an agreement between the parties. He provided several unsigned receipts and some WhatsApp messages that were not admitted into evidence for the truth of their contents. Frank Eiley, in fact, did not provide a witness statement for himself but relied on two affidavits and a witness statement filed by: (i) Jaime Rodriguez (his son-in-law and business partner); (ii) a justice of the peace; and (i) a police officer respectively. His witnesses either gave evidence of the alleged payments to Alex Nunez or of the existence of WhatsApp messages between the parties, purportedly about the non-performance of an agreement. Additionally, the alleged witness who was present at the time of the oral agreement (Jaime Rodriguez) provided an affidavit that was silent about the existence of the agreement. Instead, Jaime Rodriguez's affidavit focused solely on having witnessed several alleged payments made to Alex Nunez without giving a proper context.
I refuse the suggestion of counsel for Frank Eiley that the witnessing of these payments sufficed to show offer and acceptance to constitute a valid contract for sale of registered land. I also refuse to accept as cogent evidence the several unsigned receipts that did not connect the payments to Alex Nunez. Frank Eiley's witnesses could not or did not speak to the existence of the agreement. Their evidence fell far short of being helpful to determine the issues before the court.
Moreover, the specified parcels are registered lands, whose disposition is governed by the Registered Land Act (“RLA”). 4 Section 40(2) of the RLA requires contracts for the sale of registered land to be in writing. An unregistered written contract can be enforceable as a contract but an unwritten contract is not enforceable.
40.-(2) Nothing in this section shall be construed as preventing any unregistered instrument from operation as a contract, but no action may be brought upon any contract for the disposition of land or any interest unless the contract upon which such action is brought, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some other person lawfully authorised by him.
Provided that such a contract shall not be unenforceable by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of the contract–
(a) has in part performance of the contract taken possession of the property or any part thereof; or
(b) being already in possession, continues in...
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