(John Loskot v (Julian Barahona
| Jurisdiction | Belize |
| Judge | Madam Justice Michelle Arana |
| Judgment Date | 01 January 2021 |
| Docket Number | CLAIM NO. 201 OF 2008 |
| Court | Supreme Court (Belize) |
IN THE SUPREME COURT OF BELIZE, A.D. 2008
BEFORE the Honourable Madam Justice Michelle Arana
CLAIM NO. 201 OF 2008
William Lindo of Glen Godfrey and Co Counsel for the Claimant/ Applicant
Audrey Matura for the Defendant/Respondent
The Claimant, John Loskot, is a Businessman and owner of a Parcel of land located in Blackman Eddy Village in the Cayo District. The Defendant, Julian Barahona, is a farmer who has been residing on this property for the past 26 years. The Claimant and the Defendant prior to this Claim had been friends, and the Claimant had granted the Defendant permission to reside on this property as it was close and convenient to where the Defendant was working at that time. The substantive claim is a Claim where the Claimant is seeking a declaration that the Defendant occupies the Claimant's property illegally and an order that the Defendant vacates the said land without delay, mesne profits and costs. The Defendant claims that he has earned/developed an equitable interest in the Claimant's property and that the Claimant is now estopped from asserting his legal title against him. The Claimant instituted this Claim on 1 st April 2008 and unfortunately languished in the system until it was assigned to this court on 12 th September 2018. This is an Application by the Claimant to Strike Out the Defence and for Summary Judgment to be ordered in favor of the Claimant. Pursuant to an Order of the Court dated 19 th July 2019, both parties were ordered to file written submissions. Legal Submissions were filed by the Claimant and by the Defendant. The Court now determines this application.
These written submissions are filed on behalf of the Claimant pursuant to an Order of the Honourable Court made on the 1 st July 2019. The Order was made upon the Claimant's Application that the Defence be struck out as it discloses no reasonable grounds for defending the instant claim and is an abuse of process of the Court, pursuant to Rules 26.3(1) (b) and (c) of the Supreme Court ( Civil Procedure) Rules 2005 (the “CPR”), and for summary judgment to be awarded in the Claimant's favour, pursuant to Rule 15.2(b) and Rule 1.1 of the CPR.
In support of the Claimant's Application to strike out the defence and the grant of summary judgment, the Applicant will refer to the following documents:
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a. The Amended Statement of Claim dated 18 th June 2008 [ TAB
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b. The Defence dated 15 th April 2008 [ TAB 2];
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c. The Claimant's Witness Statement dated 28 th July 2008 [ TAB
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d. The Defendant's Witness Statement dated 14 th August 2008 [ TAB 4]; and
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e. The Claimant's Application for Striking Out of the Defence and grant of Summary Judgment dated 14 th January 2019 [ TAB 5].
On 2 nd June 1992, the Claimant acquired title absolute to Parcel No. 30, Block 24, Society Hall Registration Section, Cayo District by virtue of Land Certificate No. 2994/1992 dated the 2 nd June, 1992.
Parcel No. 30, which comprised 9.005 acres of land, has been mutated, as a result of a portion being compulsorily acquired by the Government of Belize, into Parcel No. 4659 consisting of approximately 8.024 acres of land. The Claimant remains vested with title absolute to Parcel No. 4659 by virtue of Land Certificate bearing instrument no. LRS-201800767 dated 30 th January 2018. (Parcel No. 30 and Parcel No. 4659 are hereinafter referred to as the “Land”).
In or around 1996, the Claimant gave the Defendant permission to occupy, for residential purposes, his (the Claimant's) house on the Land. The Claimant gave the Defendant permission to occupy the house as a tenant at will on the condition that the Defendant does not plant trees on the land.
In 2007, the Claimant gave the Defendant verbal and written notices to quit, vacate the house and the Land and surrender possession thereof. The Defendant has refused to comply with the Claimant's notices and remained, and continues to remain, in occupation of the house and the land.
In 2008, the Claimant instituted the instant claim for recovery of possession of the Land and other relief.
The Claimant submits that the following issues are to be determined by the Court:
Whether the Defence discloses any reasonable grounds for defending the claim and amounts to an abuse of process and ought to be struck out pursuant to Rules 26.3(1)(b) and (c) of the CPR
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a. Whether the Defence discloses any reasonable grounds for defending the claim and amounts to an abuse of process and ought to be struck out pursuant to Rules 26.3(1)(b) and (c) of the CPR; and
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b. Whether the Defendant has a real prospect of successfully defending the claim and the Court should grant summary judgment in favour of the Claimant pursuant to Rule 15.2 and Rule 1.1 of the CPR.
Rules 26.3(1)(b) and (c) of the CPR reads as follows:
“26.3 (1) In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court -
… (b) that the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;
(c) that the statement of case or the part to be struck out discloses no reasonable grounds for bringing or defending a claim;…” (emphasis mine)
The Claimant submits that the Defendant's Defence (the ‘Defence’) does not disclose any reasonable ground for defending the instant Claim. The essence of the Defence is twofold, first, that the Claimant promised to give him the land 1, or a portion thereof, and, secondly, that the he has acquired title to the Land by prescription 2.
The Claimant submits that there was never any gift of the Land to Defendant. The Defence is wholly deficient in this regard and makes a bald assertion at paragraph 1 thereof with no supporting particulars of this purported promise. Paragraph 2 of the Defence states that the Claimant did not make good on his promise and paragraph 11 is along similar vein.
Paragraph 9 of the Defendant's Witness Statement states unequivocally that the Claimant, if he in fact made the promise, which is denied, reneged on the same in 2007.
In order for the Defendant to successfully seek the help of a court of equity to perfect the gift, which has not been raised in any counterclaim, he ought to show that the Claimant, the alleged donor, took every step to get rid of the gift and pass title to the donee. The Claimant relies on Maitland's Lectures on Equity as cited by Arden LJ in the case of Pennington v Waine 3 where it is said that:
'53. The principle that equity will not assist a volunteer has been lucidly explained in Maitland's Lectures on Equity (1932) at page 73:
‘I have a son called Thomas. I write a letter to him saying ‘I give you my Blackacre estate, my leasehold
house in the High Street, the sum of £1000 Consols standing in my name, the wine in my cellar.’ This is ineffectual — I have given nothing — a letter will not convey freehold or leasehold land, it will not transfer Government stock, it will not pass the ownership in goods. Even if, instead of writing a letter, I had executed a deed of covenant — saying not I do convey Blackacre, I do assign the leasehold house and the wine, but I covenant to convey and assign — even this would not have been a perfect gift. It would be an imperfect gift, and being an imperfect gift the Court will not regard it as a declaration of trust. I have made quite clear that I do not intend to make myself a trustee, I meant to give. The two intentions are very different — the giver means to get rid of his rights the man who is intending to make himself a trustee intends to retain his rights but to come under an onerous obligation. The latter intention is far rarer than the former. Men often mean to give things to their kinsfolk, they do not often mean to constitute themselves trustees. An imperfect gift is no declaration of trust. This is well illustrated by the case of Richards v Delbridge, L.R. Eq.11 and Heartley v Nicholson, L.R. 19 Eq.233.’ (emphasis mine)
To further illustrate the principle the Claimant also relies on the dicta of Arden LJ where she stated that:
‘ 30. In Mascall v Mascall, above, the question was whether a gift of land was completely constituted by delivery of the land certificate and a form of transfer. Browne-Wilkinson LJ held:
‘The basic principle underlying all the cases is that equity will not come to the aid of a volunteer . Therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee needs no assistance from equity and the gift is complete. It is on that principle, which is laid down in Re Rose, that in equity it is held that a gift is complete as soon as the settlor or donor has done everything that the donor has to do, that is to say, as soon as the donee has within his control all those things necessary to enable him, the donee to complete his title.’ (emphasis mine).
In the case at bar, the Defendant is unable to say that the Claimant (as donor) had given the Defendant everything that he would have needed to perfect the purported gift.
The Land in question comprises approximately 9 acres in area and is registered land as evinced on the Land Register and the Land Tax Statement annexed to the Claimant's witness statement.
The Defendant has admitted in his witness statement that:
'6. It is not the entire nine acre parcel that the Claimant gave me but rather a house spot which comprises one of the four lots along the Western Highway...
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