Juan Carlos Perez v Solid Rock Baptist Church

• Jurisdiction: Belize
• Judge: Nabie J.
• Judgment Date: 28 May 2024
• Docket Number: CLAIM NO. 547 OF 2023
• Court: Supreme Court (Belize)

Between:

Juan Carlos Perez

Claimant

and

Solid Rock Baptist Church

Defendant

CLAIM NO. 547 OF 2023

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Orson J. Elrington for the Claimant

Mr. Allister Jenkins and Ms. Kristy Lopez for the Defendant

APPLICATION FOR STAY OF PROCEEDINGS

Nabie J.

1 I have considered the submissions of the parties and I find favour with the defendant's position. Accordingly, a stay of these proceedings is granted.

BACKGROUND

2 By fixed date claim form filed on 30 ^th August 2023 and supported by the first affidavit of the claimant, the following reliefs are inter alia sought:

• (i) a declaration that the claimant is entitled to possession of the property located in Sarteneja Village, Corozal District, and more particularly described as Sarteneja Block 3 Parcel 822, issued in the name of Juan Carlos Perez.

• (ii) An injunction prohibiting the defendant whether by themselves, their servants or agents, or others, however, from being upon or entering upon the plaintiff's property.

• (iii) further or alternatively, an Order that the defendant pay the claimant damages for trespass and for damages done on its property. Such damages are to be assessed.

• (iv) interest on damages found due to the claimant pursuant to sections 166 and 167 of the Supreme Court of Judicature Act.

3 The claimant deposed that in 1997, he was shown a property by Enrique Salazar Jr who is a pastor and director of the defendant. Mr. Salazar produced title to the property by way of Conveyance No. 877/97 dated 7 ^th April 1997, recorded in Deeds Book Volume 10 of 1997 at Folios 777 to 782 at the General Registry in fee simple and free from encumbrances (“the property”). The property was conveyed to the claimant by Mr. Salazar on 30 ^th December 1997. In 2017, the claimant applied for the first registration of the property.

4 The claimant further stated that in or around July 2019, he had sent his workers to clean the land he thought was the property and they were told that the land was owned by someone else. The claimant thereafter retained a surveyor to establish the correct location of the property. The surveyor determined that the actual property purchased had in fact a structure on it. This is the defendant's church and school.

5 It is the claimant's evidence that he notified the defendant to vacate the property. Mr. Salazar had accepted that they had built in error and requested that the claimant donate the property to them. The claimant refused this suggestion and thereafter the defendant offered to purchase the property at a price of Ten Thousand Dollars($10,000.00). The claimant has refused this offer and has made repeated requests for the property to be vacated, however, the defendant remains in occupation.

6 The defendant filed the first affidavit of Mr. Salazar on 12 ^th October 2023 in response to the claim. Mr. Salazar admitted that the property is registered to the claimant. The defendant has not vacated the property as it has been advised that pursuant to section 138 of the Registered Land Act as a result of its continuous uninterrupted occupation for over twenty (20) years, it is entitled to the property by prescription.

7 The defendant occupies parcels 822 ( the property) and 823 in its operations of a church and school. Mr. Salazar further deposed that the conveyance to the claimant was done in 2002 and at the time, it was believed that the lot identified was lot 822. After the survey it was realised that the lot that was identified before the conveyance was in fact lot 821. Lot 822 was in fact conveyed to the claimant but is now occupied by the defendant. The defendant began construction on the property of a church in 2002 and another building in 2003 and the claimant has been aware of all of this. Mr. Salazar goes on to inform about the various parcels in the area of the disputed property and offers for sale of the parcels which are not relevant to the present application.

8 By notice of application dated 9 ^th November 2023, the defendant is seeking a stay of these proceedings on the ground that the claimant has not satisfied the costs order made against him in Claim No. 174 of 2020 (“the 2020 matter”) in relation to a consent order that struck out and discontinued parts of the 2020 matter. This application was supported by the second affidavit of Enrique Salazar. The 2020 matter seeks in essence, the same relief in the present matter, namely, possession of the property and damages for trespass. The 2020 matter was also stayed pending the payment of the costs order. Enrique Salazar and Rosina Salazar were the named defendants in the 2020 matter.

DEFENDANT'S ARGUMENTS

9 The defendant's case is simply that the claimant has brought earlier proceedings namely, the 2020 matter for possession of the property. Further, by virtue of a consent order the parties agreed to have parts of the 2020 matter struck out and thereby in effect a partial discontinuance of the claim. The claimant has yet to pay the costs awarded against him in the 2020 matter. The defendant pointed out that rather than adding the defendant to the 2020 matter, the claimant has not paid the costs and has filed fresh proceedings for substantially the same relief, vacant possession of the property. The defendant urged the court that situations that could lead to an abuse of the process should not be encouraged. The defendant highlighted authorities on this point. It was submitted that it did not matter that the defendants were different legal entities. The defendant relies on the case of Lenaghan International Transport Limited v Lombard Ireland Ltd & Ors1, where the court referred to the case of M'Cabe (Pauper) v. Bank of Ireland2 where it was established that where a plaintiff fails in one action and brings a second action, the second action must be stayed until the costs of the first action are paid. The court in Lenaghan also referred to the case of Martin v. Earl Beauchamp3. In Beauchamp, there were subsequent proceedings for substantially the same cause of action, where the plaintiff in the second matter was suing as a personal representative. It was asserted that the discretionary power to grant a stay could be exercised where “ a plaintiff, having failed in one action, commences a second action for the same matter, the second action should be stayed until the costs of the first action have been paid.” It was further contemplated in Beauchamp that the discretion may be exercised despite a technical difference in the capacity in which the subsequent action is brought.

10 The...