Siana Bistoquet v Mandana Ross (SCA 18 of 2010) [2012] SCCA 2 (12 April 2012)

IN THE SEYCHELLES COURT OF APPEAL

Siana Bistoquet Appellant

V

Mandana Ross Respondent

SCA 18 of 2010

[Before : Fernando, Twomey and Karunakaran, JJA]

_________________________________________________________________________

F. Bonté, Attorney-at-law for the Appellant

J. Camille, Attorney-at-law for the Respondent

Date of hearing: 3^rd April 2012.

Date of judgment: 13^th April 2012.

JUDGMENT

Twomey, JA

1. The Appellant brought a case in the Supreme Court on the 25^th September 2009 against the Respondent for specific performance of a contract, namely for the retransfer of a distracted piece of land from a parent parcel already transferred to the Respondent.

2. The Respondent filed a defence and counterclaim to the suit on 14^th January 2010 in which she claimed that it was a term of the contract that the Appellant would build a house, retaining wall and access road in exchange for the transfer of land.

3. In her defence to the counterclaim on 25^th March 2010, the Appellant though putting the Respondent to strict proof of her counterclaim submitted that the retaining wall had been built as had the access road apart from its “concrete surface.”

4. On the 19^th May 2001 the Respondent filed an application for interim injunction praying for an order that she be restored the right of access to her property and that the Appellant be refrained from further interrupting her right of access until the final determination of the suit.

5. In his ruling of 23^rd July 2010, the learned trial judge Bernadin Renaud found “the inconvenience the Petitioner (now Respondent) will suffer by a refusal is greater than that which the Respondent will suffer by the grant of an injunction.” He exercised his discretion in favour of the Petitioner (now Respondent) and ordered the status quo maintained until the final determination of the case and ordered the Appellant to restore access to the Respondent’s land.

6. The Appellant has appealed on one ground alone, complaining that the learned judge had by the granting of the interlocutory injunction created a right of access to the Respondent which had never been agreed or granted by deed.

7. Learned Counsel for the Respondent responded in his head of argument, submitting that the appeal is afoul section 12 (2) (a) of the Courts Act. He has also submitted on the substantive ground but we need not trouble ourselves with his arguments as we entirely agree with him on the procedural issue. Leave to appeal does not lie of right from any interlocutory judgment or order of the Supreme Court as is clearly provided in the Courts Act. No leave to appeal was applied for and granted by the Supreme Court in this case.

8. Hence, this Appeal is therefore dismissed with costs.

I concur I concur

______________ _______________ ________________

M. Twomey A. Fernando D. Karunakaran

Justice, Justice, Justice,

Court of Appeal Court of Appeal Court of Appeal

Delivered at Victoria, Mahé, Seychelles, this 13^th day of April 2012.