REEF RESORT LTD
(LONG CAYE ASSOCIATES LTD
Action No. 30 of 1992
5th January, 1996
GEORGE D. MEERABUX, P.J.
Barrow for the applicant/defendants
Mr. E. Courtenay for respondents/plaintiffs.
for enlargement of time to file a notice of motion to set
aside a judgment - O.65 r.6 - misinterpretation of relevant
appeal rules by then attorney-at-law - Alleged consequent
loss of right to appeal - No authority covering case of
oversight, lack of diligence or negligence or tardiness
on part of counsel as a ground for enlargement of time -
New material evidence - Conditions to be satisfied before
it can be received - Conditions not met in instant case
- Pre-incorporation contracts - Inference from acts of plaintiffs'
companies that a new contract was entered into incorporating
the previous agreement - Delay - No solid grounds for depriving
plaintiffs of their judgment - application refused - Costs
to the respondents/plaintiffs.
U D G M E N T
an application pursuant to 0.65 r. 6 for enlargement of time
to file a Notice of Motion to set aside my judgment given
on the 8th December, 1994, and a stay of execution and proceedings
by the plaintiffs in the said judgment.
is supported by affidavits filed by the defendants as well
as by their Counsel in this matter.
of the two affidavits depose that:-
owing to a misinterpretation of the relevant appeal rules
by their attorney on the record, the applicant/defendants
lost their right to appeal the said judgment; and
compelling new material evidence came to the applicants/defendants
attention after the judgment which casts doubt on the proprietary
title of the respondents/plaintiffs title to the said land.
for the applicants/defendants submitted that:-
the sale of the caye to the plaintiffs took place before
incorporation of the plaintiffs companies and submitted
that pre-incorporation contracts are a nullity, citing Newborne
v. Sensolid (Great Britain) Ltd. 1954 1 Q.B. 48;
and that the contract for the purchase of land is a nullity.
application was filed on the 19th of September, 1995, nine
months after the judgment, when new material evidence came
to light on 30th August, 1995.
for the respondents/plaintiffs replied that:-
a stay of execution cannot be based on 0.65 r. 6 which deals
only with enlargement of time and that the court has ruled
that the applicants/defendants lease be forfeited since
1994, further that this transaction took place since 1986.
the application could not succeed because the respondents/plaintiffs
Certificate of Title to the lands cannot be impugned except
for fraud or that the title of the registered proprietor
has been superseded by a later title acquired under section
42 of the Land Property Act or barred by the Limitation
section 41 of the Land Property Act;
(ii) Crawford v. Goscinski C.A. Belize Law reports Vol.
1 page 376; and
(iii) Caribe Farms Industries Limited v. Atlantic Bank
Limited and others Civil Appeal No. 4 of 1995.
there is a misconception on pre-incorporation Contract in
that such contracts cannot be enforced against the company
by the other party to the contract unless the company subsequently
ratifies the contract and if the company fails to do so
the promoters are liable. In this case the company was not
incorporated at the time of the sale but adopted the contract
subsequent to incorporation.
it was submitted, the facts of the case can be distinguished
from the Newborne case Supra.
there was excessive delay in bringing this application to
the court and the court should not exercise its direction
to grant the application.
6 confers on the court power to abridge or enlarge time "for
doing any act or taking any proceeding, upon such terms (if
any) as the justice of the case may require" etc.
of the rule is to give the court a discretion to extend time
with a view to the avoidance of injustice to the parties Schafer
v. Blyth (1920) 3 K.B. 143; but if substantial delays
occur without any explanation being offered, the court is
entitled in the exercise of its discretion to refuse the extension
of time. The Supreme Court Practice, 1985 Vol. 1 0.3 r,
5 under caption "Scope of Rule".
now deal with the main grounds of the application:-
That because of the misinterpretation of the relevant appeal
rules by the then attorney on record the applicants lost
their right to appeal the said Judgement.
that there is no authority to cover a case involving a case
of oversight, lack of diligence and even negligence and tardiness
on the part of the counsel as a ground for enlargement of
time. I find no merit in this ground.
The second ground is that compelling new material evidence
came to the applicants attention since the judgement which
casts doubts on the proprietary title of the plaintiffs
to the said land.
is quite clear that:-
a litigant has obtained a judgement in a court of Justice...
he is by law entitled not to be deprived of that judgement
without very solid grounds" (Brown v. Dean 
A.C. 373, p. 374, per Lord Loreburn L.C. who adds
that the maxim interest reipulicae ut finis sit litium
is applicable) if it is sought to deprive him of his judgement
by further evidence, there are conditions which must be
satisfied before it can be received:" first, it must
be shown that the evidence could not have been obtained
with reasonable diligence for use at the trial; secondly,
the evidence must be such that, if given, it would probably
have an important influence on the result of the case, thought
it need not be decisive; thirdly, the evidence must be such
as is presumably to be believed, or, in other words, it
must be apparently credible though it need not be uncontrovertible"
(Ladd v. Marshall  1 W.I.R. 1489:  3 All
E.R. 745, C.A., per Lord Denning L.J. p. 1491, approved
in Skone v. Skone  1 W.L.R. 812;  2 All
E.R. 582, H.L: Roe v. Robert McGregor and Sons Ltd. 
1 W.L.R. 925;  2 All E.R. 636, C.A.)."
The Supreme Court Practice 1985 Vol. 1, 059/10/7.
that although the above learning deals with Appeals to the
Court of Appeal, the principles are applicable to this application
before me where the Court is asked to receive "compelling
new evidence" which may have the effect of the court
reviewing and possibly overrule its own judgment.
the importance of the first condition, see Shedden v.
Patrick (1869) L.R. 1 H.L. (Sc.) 470, per Lord Chelmeford,
p. 545. It is not sufficient that reasonable diligence was
exercised by the legal advisors; the condition will not be
satisfied if the party himself failed to exercise reasonable
diligence (Weller v. Dunbar. January 27, 1984 (unrep)
C.A.). A new trial will not be ordered where the fresh
evidence is a document which could have been obtained by discovery
during the proceedings. (Turnbull v. Duval  A.C.
429, P.C.). Moreover, evidence not called at the trial
is necessarily regarded with caution. It may be prompted or
coloured by a knowledge of what happened in the court below;
and in any case it is the duty of the party "to bring
forward his whole case at once and not to bring it forward
piecemeal as he found out the objections in his way"
(Re New York Exchange Ltd. (1888) 39 Ch. D 415, P. 420).
But where a note of the oral evidence taken in the court below
had been lost, it was allowed to be given on appeal (Ex
p Firth. re Cowburn (1882) 19 Ch. D 419). The discretion
of the Court to admit fresh evidence will be more readily
exercised where there has been surprise (Technograph
Printed Circuits Ltd. v. Mills and Rockley (Electronics) Ltd.
 R.P.C. 395, per Sachs L.J.; Bogsby v. Dickinson
(1876) 4 Ch. D 24; and, a fortiori, where there is
suspicion of deception (Skone v. Skone, above).
The Supreme Court Practice Supra
trial the applicants had the services of two Counsels who
together with the applicants had the task of exercising reasonable
diligence in procuring the facts and relevant documents. I
find that an Order for administration of interrogatories or
discovery of documents would have revealed the substance of
the "compelling new evidence".
I find from the judgement at the trial that the question was
raised as to the proprietary title of the plaintiffs when
Frederick James Dodd, one of the share holders/directors of
the plaintiffs was cross-examined by counsel for the applicants/defendants
but was not pursued since it was not pleaded. It reads as
Lamonts has consistently refused to allow him access to
the Island because they claim the entire Island is theirs
and further claimed that the sale to Glovers Ree and
Long Cave Ltd. were not good". (my emphasis)
13-16 of page 7 of the Judgement No. 30/92 in the said
find that both applicants/defendants as well as their counsel
on record must have had some knowledge which may have cast
doubts in the respondents/plaintiffs title to the said property
during the trial when the issue was raised by them but for
some reason unknown they failed to pursue it.
regards the second condition, the view of Lord Loreburn
L. C. in Brown v. Dean above, was that, in
order to be received, the new evidence "must at least
be such as is presumably to be believed, and if believed
would be conclusive." Lords Atkinson and Mersey apparently
agreed; but the last six words go further than Lord Shaw
was prepared to go in his speech: it was sufficient, he
thought, if the new matter was "so gravely material
and so clearly relevant as to entitle the court to say that
material and relevant fact should have been before the jury
in giving its decision- (p. 376). Neither of these statement
have been generally acted upon in subsequent cases; the
former has been generally treated as going too far; the
latter as not going far enough. Hanworth M.R. in R.
v. Copestake  1 K.B. 468. p. 474, thought
"the evidence must be of such a character that not
merely is it relevant but of such importance that it would
have affected the judgement of the tribunal if it had been
before them at the original hearing of the case." Scrutton
L.J. , p. 477, thought "it must be of such weight as.
if believed, would probably have an important influence
on the result" (and see per Birkett L.J. in Corbett
v. Corbett  P. 205, P.215). The Privy Council
in Hip Foong Hong v. Neotia and Co  A.C. 888,
P. 894, thought that the evidence must be "of
such a character that it would, so far as can be foreseen,
I have formed a determining factor in the result" (words
adopted by Lord Maugham in Rowell v. Pratt 
A.C. 101, p. 116, by Evershed. M.R. in Corbett
v. Corbett, above page 215 and again by the Privy
Council; in Andrew v. Andrew  1 W.L.R. (1454).
The Supreme Court Practice Supra
in a nutshell is whether the "new compelling evidence"
is "of such a character that it would so far as can be
foreseen have formed a determining factor in the result."
facts of this case are that the respondents/plaintiffs obtained
a Certificate of Title to the said land. Section 41 of the
Laws of Property Act provides that a registered title to land
under Part 11 of the General Registry Act shall be an absolute
and undefeasible title except where it is found that:-
a fraud was committed in respect of the issue of the Certificate
of Title; or
the title of the registered proprietor has been superseded
by a later title acquired under Section 42 or barred by
the Limitation Act in favour of the person making the challenge.
that the proposed fresh evidence reveals no fraud or that
the plaintiff's title has been superseded by a later title
etc. which could have been a determining factor in the result."
The cases of Crawford v. Goscinski Belize Court
of Appeal Belize Law Report p. 376 and the recent case of
Caribe Farms Industries Ltd. et al v. British American
Cattle Company Civil Appeal No. 4 of 1995 is illustrative
of this point.
third condition, which is, in effect, subsidiary to the
second, is taken from the words of Lord Loreburn L.C., in
Brown v. Dean, above and the judgements of
the Court of Appeal in Ladd v. Marshall (1954).
The fact, for example, that a witness now takes the view that
he was mistaken in the evidence he gave in the court below
is not usually sufficient to justify his recall (Purseli
v. Railway Executive  1 All E.R. 536).
The Supreme Court Practice Supra.
find that the said three conditions for the reception of the
new evidence have not been satisfied.
now deal with the Newborne v. Sensolid (Great Britain)
Ltd. Supra case.
The legal principle as I understand it is stated as follows:
"SUBJECT. (5) Contracts
Contracts before Incorporation or Commencement of Business.
Extent of liability of company. A company is not bound by
contracts purporting to be entered into on its behalf by
its promoters or other persons before its incorporation
(q). The company cannot, after incorporation, ratify or
adopt any such contract because there is in such cases no
agency and the contract is that of the parties making it
(r). The adoption and confirmation by a resolution of the
directors of the contract made before the incorporation
of the company by persons purporting to act on its behalf
does not create any contractual relation between the company
and the other party to the contract, or impose any obligation
on the company towards him (s).
Adoption of pre-incorporation contracts. In order that the
company may be bound by agreements entered into before its
incorporation, there must be a new contract to the effect
of the previous agreement (t). This new contract may, however,
be Inferred from the acts of the company when incorporated
(u), except where such acts are done in the mistaken belief
that the agreement is binding (a).
company has notice of a contract made before its incorporation
between the persons under whom it claims property of which
it takes possession and a former owner of the property,
whereby a charge or encumbrance was imposed on the property,
the company takes subject to the charge or encumbrance,
although it is not liable to be sued for breach of the contract
Laws England 3rd Edition Vol. 6 Paras. 824 and 825.
that there is evidence that the contract to purchase the land
was made prior to the incorporation of the plaintiff's company
but there is no evidence before me that the company failed
to enter a new contract incorporating the previous agreement
or that the vendors took steps to have the contract declared
a nullity bearing in mind that the contract of sale was only
between the vendor and the plaintiffs and not the applicants/respondents.
contrary, I find that the subsequent acts of the plaintiff's
companies in instituting this action can lead to the only
reasonable inference that a new contract was entered into
incorporating the previous agreeement. Re. Empress Engineering
Co. (1880) 16 Ch. D. 125 C.A. at p. 128.
find the facts in Newborne v. Sensolid case
is to be distinguished from this case and that the legal principle
enunciated in that case has no relevance.
finally deal with the delay in filing the application.
has been filed nine months after the judgement was delivered
on the 8th December, 1994, which was dealt with by the Court
of Appeal and the Privy Council without success. The plaintiffs
"is by law entitled not be deprived of their judgement
without very solid grounds."
find no solid grounds for depriving the plaintiffs of their
for enlargement of time to file a Notice of Motion is refused
for the reasons outlined in my judgement.
to the respondents/plaintiffs to be taxed or agreed.