Israel Williams v Evan Williams
| Jurisdiction | Belize |
| Judge | Nabie J. |
| Judgment Date | 19 February 2024 |
| Docket Number | CLAIM No. CV 203 of 2022 |
| Court | Supreme Court (Belize) |
CLAIM No. CV 203 of 2022
IN THE SENIOR COURTS OF BELIZE
IN THE HIGH COURT OF BELIZE
Orson J. Elrington for the Claimant/ Applicant
John Nembhard for the Defendants/ Respondents
This is an application to strike out the defence to the fixed date claim form.
For the reasons set out below, the defence is struck out.
The fixed date claim form and statement of claim were filed on 1 st April 2022.
The claimant is seeking inter alia a declaration that he is entitled to the possession of a property located at Ranchito Village, Corozal “the property”.
An acknowledgment of service was filed by each of the defendants on 26 th July 2022 indicating an intention to defend the matter.
A defence was filed on 9 th August 2022 on behalf of all three defendants but was not served. On 20 th February 2023 the parties were before Chabot J. and it was ordered that the defendants had until the end of the business day to serve the defence or it would be struck out.
The defendants to date have not done so.
The claimant filed this application to strike out the defence to the fixed date claim form on 21 st June 2023. The application seeks the following orders:
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1. An Order striking out the Defendants' Defence for failure to comply with an Order of the Court dated on or about the 20 th day of February 2023;
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2. An Order striking out the Defendants' Defence for failure to serve on the Claimant on or before the 20 th day of February 2023;
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3. An Order striking out the Defendants' Defence for having no prospect of success;
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4. An Order striking out the Defendants' Defence for being an abuse of process of the Court;
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5. An Order striking out the Defendants' Defence for it is likely to obstruct the just disposal of the proceedings.
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6. An Order striking out the Defendants' Defence for it raises no reasonable grounds for defending the claim;
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7. Such further and/or other relief as the Court deems just.
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8. Costs.
The Grounds of the Application are listed as follows:
The Defence was filed but not served on the claimant and is in breach of Rule 10.4, Service of Copy of Defence, of the Supreme Court ( Civil Procedure) Rules 2005.
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1. The Defendants were given multiple opportunities to correct the breach of the said rule and has (sic) failed to do so.
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2. The Defendants therefore has (sic) no Defence to the Claim, no reasonable grounds for defending the claim and no prospect of success.
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3. The Claimant now seeks the Court's powers to Grant the Default Judgment against the Defendants and to provide the terms of the said Judgment as prayed in the Fixed Date Claim Form.
This application is supported by the affidavit of the claimant filed on even date.
The claimant deposed that he is the legal owner of the property located at No. 115 Block No.7 in the Carolina/ Calcutta Registration section located at Ranchito Village, Corozal Town, Belize. He indicates he gave permission to the defendants who are his siblings to stay on the property as licensees on the condition that they maintain the house and property. He deposed that the defendants were not in compliance with the conditions and he sought to revoke the license and requested on several occasions that the defendants vacate the property as he wished to sell same. The claimant served the defendants with a letter to vacate the property on or about 11 th March 2023. However, the defendants have remained in occupancy of the said property.
Thereafter, the claimant commenced these proceedings. He further states that he is aware a defence was filed on the 9 th of August 2023. However, at a hearing on or about 20 th February 2023 Chabot J ordered that the defence was to be served on or about 20 th February 2023 failing which the defence would be struck out.
The application states that the defendants have no prospect of success, that here has been abuse of the process of the Court, there is no reasonable grounds for defending the claim and that the defendants' defence is likely to obstruct the just disposal of the proceedings.
The defendants filed the First Affidavit of Evan Williams on their behalf on 23 rd October 2023 in opposition to the claimant's application to strike out the defence. The first defendant deposed that after the defendants were served with the fixed date claim form on 17 th June, 2022, he sought the services of attorney at law, Mr. Ronell Gonzalez who had conduct of the matter on behalf of all the defendants and that on or about July 2023, Mr. Gonzales indicated that he would no longer be able to deal with the matter and indicated that the defendants should find another attorney. Thereafter in August 2023, he retained the services of another attorney at law to deal with the matter, John Nembhard, who informed him that there was an application to strike out the defence. The defendants informed Mr. Nembhard that they were not aware of the procedures of the court and completely depended on Mr. Gonzalez to address these matters. The first defendant further stated that the claimant was not a sibling of the defendants but in fact their uncle. The defendants have known the property as their home for almost all their lives and have raised their children there. They have been in continuous and undisturbed possession of the property for in excess of twelve years. It is the defendants' evidence that they constructed buildings on the property without any contribution from the claimant and prior to the claimant's title document dated 2020. The defendants always believed that they were the owners of the property. They contend that they were never licensees of the claimant as he was never in the position to grant such; further that the “Notice of Trespass” dated 11 th March 2022 was his one and only attempt to have the defendants vacate the property. The defendants continued to farm the property after the death of their father who was in occupation in excess of forty years. The defendants are of the view they have a case to defend and the striking out of the defence would displace fourteen individuals from their home and livelihood as they have planted over 500 fruit trees on which they depend to sustain themselves.
ISSUES:
(1) Whether the court should strike out the defendants' defence?
(2) Whether there should be summary judgment or judgment in default for the claimant?
Civil Proceedings Rules 2005 (CPR)
CPR 10.4 provides:
“ On filing a defence, the defendant must also serve a copy on every other party.”
“ The court may give summary judgment in any type of proceedings except -
(b) proceedings by way of fixed date claim;…. ”
CPR 12.2:
“ A claimant may not obtain default judgment where the claim -
(a) Is a fixed date claim;.. ”
The claimant argues that the defendants are unable to rely on the fault of their attorney simply because they had in fact retained such an attorney to represent them and in so doing they are unable to say that they were not properly represented. The claimant further stated that the defendants were at each and every hearing and adjournment and even when their attorney was not present and that they heard each and every order and warning by the Honourable Court. They have still failed to serve the defence on the claimant.
Counsel then referred the court to CPR 26.5 which provides:
(1) This Rule applies where the court makes an order which includes a term that the statement of case of a party be struck out if the party does not comply with an “unless order” by the specified date.
(2) If the party against whom the order was made does not comply with the order, any other party may ask for judgment to be entered and for prescribed costs appropriate to the stage that the proceedings have reached,
(3) A party may obtain judgment under this Rule by filing a request for judgment.
Counsel then asked the court to consider summary judgment and referenced CPR 26.5 (5) and 26(7) (2) :
(5) Where the party wishing to obtain judgment is the claimant and the claim is for ---
(a) a specified sum of money;
(b) an amount of money to be decided by the court;
(c) delivery of goods where the claim form give the defendant the alternative of paying their value; or
(d) any combination of these remedies;
Judgment shall be in accordance with the terms of the statement of claim plus any interest and costs after giving credit for any payment that may have been made.
(6) Where the party wishing to obtain judgment is the claimant and the claim is for some other remedy, the judgment shall be such as the court considers that the claimant is entitled to.
CPR 26(7)(2):
(2) Where a party has failed to comply with any of these Rules, a direction or any order, any sanction for non-compliance imposed by the Rule, direction or order has effect unless the party in default applies for and obtains relief from the sanction, and Rule 26.9 shall not apply.
The claimant pointed out that there has been no application for relief from sanctions by the defendants.
The claimant argues that the Court should exercise its power and strike out the defence then treat the first hearing as summary trial. He referred to CPR 27.2(3) which reads:
The Court may, however, treat the first hearing as the trial of the claim if it is not defended hearing as the trial of the claim if it is not defended or if the court considers that the claim can be dealt with summarily.
The defendants argue that the claimant is unable to get a default judgment or summary judgment as these proceedings have commenced by way of fixed date claim. Counsel then referred the court to the...
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