Nessie Jones v Andre Vega
| Jurisdiction | Belize |
| Judge | ‘Alexander, J.’ |
| Judgment Date | 09 November 2023 |
| Court | Supreme Court (Belize) |
| Year | 2023 |
| Docket Number | CLAIM No. CV270 of 2021 |
CLAIM No. CV270 of 2021
IN THE HIGH COURT OF BELIZE
Ms. Darlene M. Vernon for the Claimant
Mr. Bryan A. Neal for the Defendants
The claimant (Nessie Jones) seeks declarations and damages for the unlawful trespass, possession, and occupation of a lease property on the seashore in front of Lot No. 63 Seashore Drive, Belize City, Belize together with the contents in the said property. I find wholly against Nessie Jones' claim, which has not been established on a balance of probabilities, and I dismiss it.
On 15 th April 2021, Nessie Jones, a restaurateur, fiIed a fixed date claim form by which she stated that she was the owner, and in lawful possession, of a restaurant and bar business located on the foreshore in front of Lot No. 63 Seashore Drive (“Nessie's restaurant”). Nessie's restaurant is situated directly across the roadway from and not on the same property known as Lot No. 63 Seashore Drive (hereinafter “No. 63”). No. 63 is situated in the Caribbean Shores Registration Section and is allegedly the subject of a lease between the Belize City Council and Nessie Jones, which was fully paid up. Nessie Jones claims that she was the only person entitled to possession and occupation of No. 63 and Nessie's restaurant, under the terms and conditions of her lease. She claims, further, that the Belize City Council was the authorized agent of the Ministry of Natural Resources, for granting leases of lots along the streets or road reserves. Nessie's restaurant was located on the public reserve and she was successfully conducting her business on the reserve for upwards of five years before she was dispossessed of it.
On 15 th April 2015 the defendants, Andre Vega and Dominique Gomez (“the Vegas”), trespassed and entered Nessie's restaurant and dispossessed her of it. By their trespass, the Vegas unlawfully interfered with her just expectation of obtaining a lease for the years 2016, 2017 and 2018. Nessie Jones claims declarations, special damages of $72,000 per annum and general damages for unlawful interference with her lease and business and with her reasonable expectation of making a profit.
The implication from the pleadings was that Nessie Jones was the holder of a verifiable valid lease for the public reserve on which Nessie's restaurant was situated. Evidence of this would be critical for resolving the issue.
The Vegas filed their first affidavit in which Mr. Vega stated that his wife and he are the joint owners of No. 63. The Vegas were issued a Land Certificate for No. 63, which gave them title absolute. They had purchased the property with vacant possession, as there was nobody living at No. 63 at the time. They had demolished the house on No. 63 and reconstructed a new house. The Vegas did not purchase No. 63 from Nessie Jones directly and there was no evidence as to who sold the property to them. Their ownership of No. 63 is not in issue in the present proceedings.
Mr. Vega stated that since No. 63 is located on the seashore, they had applied for and received a permit to construct a pier and a restaurant, in front of their property on the reserve. As part of their application, they submitted a sketch plan of the proposed restaurant to be housed on the property. Mr. Vegas claims that at no time did he see a business being operated at the location (i.e. the public reserve) nor was he made aware of that fact by the Belize City Council. In fact, the Belize City Council granted the Vegas permission to operate a business at that location by licence dated 8 th April 2015 (‘the Vegas' Licence’). Attached to their affidavit was the Land Certificate and the Vegas' Licence, authorizing them to Use the Seabed and 66 feet Reserve, as approved on 8 th April 2015.
Having filed their witness statements late, they were not allowed to call any evidence at the trial.
The following issues arise for determination by this court:
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1. Whether Nessie Jones had a valid and subsisting lease in 2015 that entitled her to possess and operate her business from the public reserve in front of No. 63?
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2. Whether the Vegas unlawfully trespassed on the public reserve or Nessie's restaurant, and took possession of Nessie Jones' property?
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3. Whether the Vegas are liable for any losses sustained by Nessie Jones and evidence of the quantum can be led at the assessment?
Counsel for Nessie Jones, Ms. Darlene Vernon, focuses her submissions on the silence in the defence on the issue of trespass. She states that the Vegas' Land Certificate for No. 63 (as exhibited in their defence) relates to the residential property and not the reserve on national land, along the foreshore. Ms. Vernon also points out that the Vegas produced no evidence at the trial, assumedly to make the point that they could not prove their case. Ms. Vernon states that the Vegas failed to prove that they did not see any business in operation at the time they took possession of the public reserve and Nessie's restaurant. The crux of counsel's submissions is that the Vegas' Licence ‘at no point in time granted access to or possession of the existing structure…or ownership of [its] equipment and furniture’.
Ms. Vernon submits further that Nessie Jones is entitled to obtain the declarations and damages sought. Nessie Jones had pleaded that the Vegas' unlawful trespass or occupation was met with resistance by Nessie Jones and she proved her case. Nessie Jones' evidence of her lease of the reserve was specific and clear. It identified the date of the 2015 lease, which was confirmed by a letter from a Ms. Candice Miller from the Belize City Council (‘the Miller letter’). Counsel states that the evidence was incontrovertible. The court ought to accept these pieces of evidence as sufficient to establish, on a balance of probabilities, that Nessie Jones had a valid and subsisting lease over the use of the public reserve on which Nessie's restaurant stood.
Ms. Vernon argues further that when the Vegas knowingly trespassed upon and dispossessed Nessie Jones of Nessie's restaurant and its contents, they deprived Nessie Jones of the remainder of her lease period and legitimate expectation of further renewals. The Vegas have provided no evidence to explain their unjust enrichment of a fully furnished restaurant, with a mere licence to build a pier and restaurant. The court ought to accept the evidence of Nessie Jones and her son, Darryl Jones, that Nessie's restaurant was in existence on the public reserve in front of No. 63 and its contents were lost as a result of the trespass. Nessie Jones was, therefore, entitled to recover damages for her losses including her business equipment, and the value of works done to reclaim the land and to build a retaining wall for Nessie's restaurant. There was a tacit acknowledgement in the submissions of a lack of documentary but this was due to the failings of Nessie Jones' previous attorney. Ms. Vernon relies on the case of P Noreen Fairweather v Gladwin Penner 1 as authority for where a claimant holds a valid and subsisting lease, time can be enlarged to put in additional information on the issue of trespass during the assessment of damages.
Mr. Neal, counsel for the Vegas, submits that Nessie Jones has failed to establish liability for trespass or to prove any of the alleged losses suffered. There was no
evidence provided of trading activities by Nessie Jones on the public reserve or of her alleged losses or of any issue raised by her. Having failed to discharge the requisite burden of proof on every issue raised in the case, her claim ought to be dismissedThe property at the centre of the dispute in these proceedings is located on the public reserve in front of No. 63, on the opposite side of the public roadway. Nessie Jones has not brought a claim for recovery of possession of No. 63, which she purportedly once held a valid lease to. She also did not provide a copy of the 2015 lease (or of previous leases for No. 63). She relies on the 2015 lease to support her claim to the public reserve, where Nessie's restaurant is located. I find that she has provided no proper evidence to show that she was operating a business at the said location.
Under the Public Roads Act of Belize 2 (‘PR Act’) a public road is defined as:
‘… any road, street or thoroughfare which may hereafter be declared by Order of the Minister under this Act, and includes all carriageways, cartways, bridle-tracks and pathways as well as bridges, ferries, drains, dams, shoulders, embankments, causeways, fences and ditches belonging or appertaining to a public road, and such land adjoining any public road as may be reserved for its protection or benefit by Order of the Minister:
Provided that where any road street or thoroughfare other than a highway as defined in this Act falls within the limits of Belize City, the City of Belmopan or any other town mentioned and referred to in the Schedule to the Town Councils Act, Cap. 87, the powers conferred on the Minister and the Chief Engineer under this Act shall, in respect of each town established under the Town Councils Act, be vested in the respective Town Council, and in the case of Belize City or the City of Belmopan, be vested in the Belize City Council or the Belmopan City Council:
Provided further that the powers conferred upon the Minister by sections 6 and 7 of the Act shall, in respect of Belize City … be exercised by the Belize City Council … with the consent of the Minister of Local Government;’ [Emphasis added]
Section 11 of the PR Act further states:
‘The City Engineer may enter into all...
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