The Attorney General of Belize Minister of Natural Resources v Olivia Sylvia Villanueva
| Jurisdiction | Belize |
| Judge | Woodstock Riley, JA,Minott-Phillips, JA,Foster, JA |
| Judgment Date | 22 June 2022 |
| Neutral Citation | BZ 2022 CA 24 |
| Court | Court of Appeal (Belize) |
| Year | 2022 |
| Docket Number | CIVIL APPEAL NO 5 OF 2021 |
The Hon Madam Justice Woodstock Riley Justice of Appeal
The Hon Madam Justice Minott-Phillips Justice of Appeal
The Hon Mr. Justice Foster Justice of Appeal
CIVIL APPEAL NO 5 OF 2021
IN THE COURT OF APPEAL OF BELIZE AD 2022
A Marshalleck SC along with I Swift for the appellants.
D Bradley along with D Arzu-Torres for the respondent.
In this matter, the Appellants by Amended Notice of Motion dated 9 th July 2021 sought an order for the extension of time to serve and/or re-file the Notice of Appeal and leave to serve the Notice by way of advertisement. It is not in dispute that the Notice of Appeal has been filed; the dispute lies in the service of the relevant Notice on the Respondent within the requisite timeframe pursuant to Order II Rule 4(2) of the Court of Appeal Rules.
Since filing the Amended Motion, the Appellants served the Notice of Appeal on the Respondent's legal representatives on 19 th August, 2021. The Appellants indicate they therefore now only seek an extension of time to serve its Notice of Appeal to 19 th August, 2021.
The Appellants are of the opinion there was an agreement for service on the Respondent's attorneys and/or service properly effected on the 19 th August, 2021. The Respondent in her Submissions takes the position that service has still not been effected. However, the Third Affidavit of Carlton Spencer exhibits correspondence from the Respondent's counsel dated 16 th August, 2021 confirming awareness of efforts to serve Mrs. Villanueva and instructions were given “ for the delivery of any documents in respect of Mrs. Villanueva” to their offices. Mr Spencer's Affidavit confirms he accordingly delivered the Notice of Appeal and other relevant documents to the Respondent counsel's office on the 19 th August 2021.
The Claim in the Court below Claim No. 124 of 2019 Olivia Villanueva v Attorney General, Ministry of Natural Resources related to compensation to the Respondent for two separate parcels of land. During the course of those proceedings the Appellants and the Respondent entered into a Consent Order, on the 11 th June, 2019 and perfected on 17 th June, 2019. The terms of the Consent Order were:
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1. The Defendants are to transfer and issue title to property situate at Hicks Caye and comprising of 105.00 acres of land, as shown on Survey Plan 2242, situate along the Northern Seacoast near the center of Hicks Cay, approximately 13.5 miles Northeast of Belize City, Hicks Cay, Belize District (Plan No. 2242, File No. NES-101600157) to Olivia Villanueva on or before the 25 th June 2019.
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2. The Defendants are to locate alternate property for issuance to the Claimant in respect of property situate at Turneffe Caye comprising of 102.53 acres of land, situate along the East Coast of the Turneffe Islands, approximately 29.9 miles southeast Belize City, Turneffe Atoll, Belize District on or before the 25 th June 2019. Failing a satisfactory settlement of the matter, the Claimant shall file an application for assessment of damages on or before June 28 th, 2019. The application shall be heard by way of Affidavit evidence.
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3. The Claimant shall file and serve written submissions on or before 29 th July 2019.
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4. The Defendants are at liberty to respond on or before August 26 th, 2019.
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5. Costs are reserved.”
The Appellants transferred title to the Hicks Caye property to the Respondent as provided in paragraph 1 of the said Consent Order.
With regard to paragraph 2 of the said Order the Respondent on 4 th July, 2019 filed an “Application for Assessment of Damages”.
1. “Damages for the unlawful acquisition of property comprising 102.53 acres situate at Turneffe Island Range, Belize District subject of Minister's Fiat Grant No. 312 of 2003 dated February 5 th, 2008 and the cancellation of its title.
2. Damages for loss of use and/or opportunity against the Defendants.
3. Interest at such rate and for such period as this Honourable Court deems just.
4. Costs and Attorney's Costs.
5. Such further and/or other relief as this Honourable Court deems just.”
The grounds of the Application indicated that “ the parties have failed to agree on an alternate property and request that damages be assessed for the unlawful acquisition of its property and loss of use, and that one Talbert Brackett, licensed valuer has undertaken a valuation of the property”.
The Respondent filed an Affidavit of Talbert Brackett on the issue of value. There was no reply affidavit or evidence filed by the Appellants.
At the conclusion of the hearing for the assessment of damages, and by written decision The Honourable Chief Justice (Ag) Michelle Arana ordered the Appellants to pay $5,639,000 noting, “using the Direct Comparison Approach, Mr Brackett has valued this 102.53 acres of property (at) $BZD 5,639,000. The Court therefore accepts this valuation as an accurate estimate of the value of this property and awards the sum of $BZD 5,639,000 to be paid to the Claimant by the Defendants. Costs awarded to the Claimant to be paid by the Defendants to be agreed or assessed.”
The Honourable Chief Justice (Ag.) delivered her judgment in favour of the Respondent on the 12 th day of March, 2021 which was perfected on the 12 th day April 2021. The said perfected order in addition to the award of $5,639,000 in damages to the Respondent, noted “ interest is payable on the above mentioned sums at the rate of 6% from the date of the claim until payment in full”.
The Appellants filed a Notice of Appeal on the 28 th day of April 2021 challenging the entire decision of the learned trial Judge but did not serve said Notice within the seven (7) days stipulated by Order II Rule 4(2) of the Court of Appeal Rules.
On the 14 th day of May, 2021, the Appellants filed a Notice of Motion “ pursuant to Section 12 of the Court of Appeal Act and Order 11 Rule 3 of the Court of Appeal Rules and/or the inherent jurisdiction of the Court seeking an extension of time to file the Notice of Appeal and for substituted service by way of Advertisement”. Affidavits of Kimberley Wallace, Crown, and Kenrick Staine, process server, were also filed indicating the efforts made to serve within the stipulated time and at the addresses given in the Claim and provided by persons at that address.
On the 9 th July, 2021, the Appellants filed an Amended Notice of Motion for an Order “pursuant to Sections 12 and 13 of the Court of Appeal Act and Order 11 Rule 3 of the Court of Appeal Rules and/or the inherent jurisdiction of the Court” that time be extended “ to serve and/or re-file” the Notice of Appeal and substituted service by way of Advertisement.
The issues for determination are as follows:
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i. Does the Court of Appeal have the jurisdiction to make an order for an extension of time for service of the Notice of Appeal? If not can and/or should an order to re-file be made.
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ii. If the Court of Appeal is seized of such jurisdiction, have the Appellants satisfied the court that it should exercise its discretion in this matter?
The Appellants assert in supporting evidence that this failure to serve within the requisite time is borne by the Respondent whom they have reason to believe evaded service. They further state that service was eventually effected on the Respondent's legal representative upon the directions of the Respondent's husband.
In their initial submissions on the 30 th August, 2021, the Appellants submit that this Court is empowered to grant such relief pursuant to sections 12 and 13 of the Court of Appeal Act. Section 13 confers jurisdiction on the Court to deal with the time for service of the notice as a matter necessary for the hearing of the appeal which was in fact commenced on the filing of the notice and which remains pending before the Court and section 12 which incorporates by reference the rules of the Court of Appeal of England to govern the procedure for the required application by virtue of the absence of any relevant provisions in the existing rules.
Alternatively, that this Court is obligated to interpret section 16 and Rule 4 Order II in a manner that upholds the Appellants' rights to access to Court. The inflexible deadline of 7 days to serve the Notice would be disproportionate amounting to an infringement of that right. Therefore, this court may properly choose to read into section 16 and Rule 4 order II a power to extend the time for service.
provides:
13 — (1) Subject to this Part and to rules of court, the Court shall have jurisdiction to hear and determine appeals from judgments and orders of the Supreme Court given or made in civil proceedings and for all purposes of and incidental to the hearing and determination of any such appeal.
The Appellant relied on Rule 3(2) Order11 of the Court of Appeal Act that an appeal is ‘ deemed to have been brought when the notice of appeal has been filed with the Registrar’. An Appeal thus existing, they averred that an order for extension of time and substituted service is incidental to the hearing of the Appeal therefore the provision presupposes that such an order could be made.
It was also submitted on their behalf that section 12 of the Court of Appeal Act imports the means by which such jurisdiction is invoked, not by conferring any jurisdiction but by governing the procedure for the application, which is that the laws of England which provide for an extension of time may be imported. This section states that:
12 — Where in any case no special provision is contained in this or any other Act, or in rules of court, with reference to any jurisdiction of the court in relation to appeals in criminal and civil matters such...
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