Thomas v Ernesta & Anor (MC 38 of 2022) [2022] SCSC 1102 (7 November 2022)

Adeline, J

INTRODUCTION

1. By way of an application filed in court as MC 38/2022, one Claude, Thomas of Grand Anse, Praslin, Seychelles (“the Applicant”) commenced proceedings against one Philip, Ange, Ernesta and Mariona Athanase jointly, both of Amite, Praslin, Seychelles (“the Respondents”). By his application, the Applicant applies to this court for a writ Habere Facias Possesionem to be issued ordering the Respondents to quit, leave and vacate the property registered as titles PR 3833 and PR 2354.

PLEADINGS/EVIDENCE

2. The application is supported by an affidavit sworn by the Applicant, in which affidavit, the Applicant makes the following averments amongst others;

“2. I am the registered proprietor of the land comprised in titles PR3833 and PR 2354 situated at Amitie, Praslin, Seychelles on which stands a house (“the property”), which is registered in the land Register under the land Registration Act. A copy of the Certificate of ownership is shown to me produced and exhibited herewith.

3. The Respondents are in occupation of part of the property (“the Annexe”) without any right whatsoever in, or title whatsoever to the property or the Annexe, which occupation defeats my rights as proprietor of the property.

4. That on the basis of the matters aforesaid, the Respondents are in unlawful occupation of the property and the Annexe.

5. Despite my notice to the Respondents to quit, leave and vacate the property and the Annexe, the Respondents have failed to do so.

6. That it is just and necessary that a writ Habere Facias Possessionem be issued ordering the Respondent forthwith to quit, leave and vacate the property in order that I may obtain possession and enjoyment of my entire property, and exercise my rights as proprietor.

7. that the Respondent do not have a serious and bonafide defence to remain in possession of the property”.

3. In answer to the application, both, the 1^st and 2^nd Respondents each filed an affidavit in reply, together with appendices. In his affidavit in reply, interalia, the 1^st Respondent makes the following averments;

“3. That the averments in paragraph 1 of the application are admitted, save that the properties, namely, PR 3833 and PR 2354 actually comprise of three houses namely, the main house used as a guest house registered as “Villa Confort”, a studio apartment used as staff quarters, and the manager’s house in which the 2^nd Respondent and I reside in, whilst we also manage the Applicant’s business.

4. That the averment made in the 2^nd and 3^rd paragraphs of the application are denied as the 2^nd Respondent who is my common law partner, and I, had entered into an agreement with the Applicant late in the year 2012 to move to Praslin, renovate the house and start the business later registered as “Villa confort” on behalf of the Applicant.

5. That the Applicant required that I build a boundary wall, an office which later on turned into a studio apartment, a swimming pool and the manager’s house on the property, and use the managers house as our office and dwelling.

6. That the aforementioned structures together with the studio apartment and the managers’ house were all built in good faith, and I personally bore some of the labour cost (a copy of the invoice is produced and exhibited herewith as exhibit R1) and the Applicant bore the cost of the materials and some of the labour cost.

7. That the 2^nd Respondent and I moved our own moveables from Mahe and installed the same in the guest house to make it more pleasant for the guests of Villa Confort (a copy of which is produced and exhibited herewith as exhibit R2)

8. That to date, I have not been paid for any of the construction works done on the property and both, the 2^nd Respondent and I, have not been paid any salary whilst working at Villa Confort as managers of the said guest house belonging to the Applicant

9. That the relationship between the Applicant, the 2^nd Respondent and I deteriorated in April 2021, and worsen once the latter filed a grievance as case ET 95/22 and ET 96/22 (a copy of which is produced and exhibited herewith as exhibit R3) as against the Applicant before the Employment Tribunal, prompting the Applicant to make this application in bad faith

10. That the employment relationship of the 2^nd Respondent and I with the Applicant ended in May 2022, whilst awaiting a hearing before the Employment Tribunal.

11. “That the averments contained in paragraph 4 of the Application are denied. The 2^nd Respondent and I were never served with any notice to quit, leave and vacate the property, which evidence is also not attached to their application.

12. That the averments in paragraph 5 of the application are denied, in that, the 2^nd Respondent and I are possessors in good faith and the house which we have constructed is our dwelling house, and it is with the malafides of the Applicant that we be evicted from our dwelling house to the unjust enrichment of the Applicant.

13. That I am verily advised and believe that the 2^nd Respondent and I have real rights in the property and it is in the interest of justice for our retention of our dwelling house until the above matter is resolved before the appropriate jurisdiction and action.

14. That I am advised by Counsel that in order to apply for a writ of habere, the Applicant ought not to have any other recourse before the law and that the application is therefore devoid to merit.

15. That I am further advised and verily believe, that an Applicant seeking the court’s exercise of its equitable jurisdiction ought to make such application in good faith which this application is devoid of and therefore the Applicant ought to be stopped and this application dismissed.

16. That based on the above, the 2^nd Respondent and I, have a bonafide, genuine, serious and/or a valid defence to remain in possession of the property and the Applicant is not entitled to the reliefs sought and the application ought to be dismissed with cost in favour of the Respondents.

DISCUSSION AND THE LAW.

4. I have carefully perused the affidavit sworn by the 2^nd Respondent in answer to the  application. I find no necessity, and indeed, I do not see any good reason to rehearse or recite the averments made therein because its content is the same as the affidavit sworn by the 1^st Respondent in answer to the application, which averments are quoted in the preceding paragraphs. I am of the opinion, that ideally, it would have been appropriate, and indeed more convenient, had the Respondents sworn a joint affidavit.
5. It is well settled law, based on our local jurisprudence, that a writ Habere Facias Possessionem is a quick remedy at the disposal of and owner of property to evict someone who has squatted on his property. Such remedy, is only available when there are no alternative legal remedies available to an Applicant, which without it, the Applicant will have no redress.
6. Our case law authorities, which are in fact precedents are also instructive to the fact that, a writ Habere Facias Possessionem cannot be used as a simple gate way to one’s objective, disregarding other legal remedies afforded by law. Over the years, a number of principles have been developed, through case law for the grant of a writ Habere Facias Possessionem, particularly, by Sauzier J in Delphinus Turistica Maritima SA v/s Villebrod SLR [1978] 121. These principles have been endorsed, followed and expanded by the Court of Appeal in Pike v Vardin [1992] SLR 183, 136, and the Supreme Court in Companie des Seychelles (Pty) Ltd v Casino des Seychelles [1994] SLR 28.
7. In essence, based on the principles established by case law, for an application for a Writ Habere Facias Possessionem to succeed, it must be shown that;

(i) there is no serious or bonafide defence to the application

(ii) there are no serious issues to be tried

(iii)  there is no alternative legal remedy

(iv) there is urgent need for the writ habere, and delay will cause irreparable loss and hardship.

8. It has to be remembered, that a writ Habere Facias Possessionem is an equitable remedy that becomes available where there is no legal remedy, and that it is in exercise of its equitable jurisdiction conferred upon it by virtue Section 6 of the Courts Act, Cap 52, that the court may grant or withhold the granting of an order for a writ. It must also remembered, that as an equitable remedy, no one is entitled to such remedy as of right. It is a discretionary remedy that operates within a set of maxims that governs the way equity operates.
9. In a written submission, Learned counsel for the Respondents submits, interalia, that his client’s affidavit evidence points to the fact that they are not in unlawful occupation of the property in question, contending, that they had entered into an agreement with the Applicant late in 2012 for them to move into the house, renovate it and then start a self catering apartment business on behalf of the Applicant known as “Villa Confort”.
10. Learned counsel also submits, that the affidavit evidence shows, that in good faith, the Respondents have assisted the Applicant to build some structures that were needed to enhance the viability of the business, notably, a boundary wall, an office/studio apartment, a swimming pool as well as a manager’s house.
11. It is the submission of leaned counsel, that based on the terms of their agreement, the Respondents have been occupying the Applicant’s property uninterrupted since 2012, as well as managing his self catering apartment without them being paid a monthly salary. Learned counsel submits, that, the relationship between the Applicant and the Respondents started to deteriorate following the registration of a grievance before the Employment Tribunal seeking for reliefs for unpaid salaries. Learned Counsel also submits, that, there are legal remedies available to the Applicant in law, and to come to equity for redress the Applicant has employed the wrong forum, and furthermore, he is not coming to equity with clean hands.
12. It is submitted by learned counsel, that by not disclosing all these facts which have been averred by the Respondents in their affidavit in reply to the Applicant’s affidavit, that the Applicant is in effect misleading the Court and thus he has not come to equity with clean hands. Learned counsel contends, that there is more than one house built on that property, and that no notice was ever given to the Respondents to quit, leave and vacate the property prior to the filing of this application in court. Learned counsel adds, that in the first place, the Applicant ought not to have come to equity for redress because there are legal remedies available in law.
13. It is also, the submission of learned counsel for the Respondents, that the Respondents are not squatters, having been occupying the house located on the property for an uninterrupted continuous period of 10 years subject to an agreement between them and Applicant, and as such, they have acquired real rights in the property. Learned counsel maintains, that his clients have a serious and bonafide defence to the application.
14. In her written submission on behalf of the Applicant, learned counsel, under the Caption “the facts of the case” gives an insight as to the background of the dispute between the Applicant and the 1^st and 2^nd Respondents. Unfortunately, some aspects of these alleged facts cannot be given any consideration in determining this application because they are not evidence, the same having been omitted to be made part of the affidavit evidence in support of the application. In fact, paragraph 1 of Learned counsel’s submission, if it was to be an averment in the affidavit, and therefore affidavit evidence, would have been more in support of the Respondents’ case rather than the Applicant’s case, because it shows some sort of relationship between the Applicant and, the 1^st and 2^nd Respondents. 
15. On the law, citing the case of Fikion v Cecile and others (Civil side 22 of 2011) [2011] SCSC 47, learned counsel rightly submits, that a writ Habere Facias Possessionem is a remedy that is “available to a party whose need is of an urgent nature and who has no other equivalent legal remedy at his disposal”. Learned counsel proceeds to add, citing the case of Voysey v Loizeau [1994] SLR 168, that “a writ to eject a trespasser or a person occupying property merely on the benevolence of the owner, such a person has neither title, nor right over such property. In Tamboo v Pillay and Anor, MC [2016] SCSC 48, the Court had this to say;

“A writ habere facias possessionem is a quick executive remedy available to an owner of the property to evict a squatter. The suit for such remedy brought under the old French Civil Procedure Code, Article 806 – 811 (la procedure de refere) is the fastest way entailing little proceedings to bring an action where a remedy is urgently required”.

16. As to the principles developed in Delphinus Turistica Maritima (supra) expanded by Pike (supra)- as discussed at paragraph [7] above, learned counsel for the Applicant submits that, the Respondents have no serious or bonafide defence to the application. Learned counsel concedes, however, to the averment in paragraph 4 of the Respondents’ affidavit in reply, by submitting that, “the parties entered into an agreement in 2012 in relation to the renovation of the property and conversion of the same into a tourism establishment, the tourism establishment became operative in December 2014 ( “the Villa Confort”). Learned counsel adds, that at the time the Respondents were authorised to occupy the property.
17. It is well settled, as is confirmed by Learned counsel for the Applicant in her written submission supporting the same with the established precedents, that a Writ Habere Facias Possessionem is meant to be a remedy available to an owner of property to evict a squatter, and that an application for a writ is made when there is no clear alternative legal remedies available to the Applicant. (see MA 148/2021 (Arising in MC 115/2020, by Carolus J) who sought to rely on Tamboo v Pillay & Anor (MC 107/2017) [2017] SCSC 480 (8 July 2016).
18. It is equally well settled, that a writ cannot be used as a means to avoid a possible regular action, a point made in Petrina Desaubin vs Andriamihaja Lalahaja Stravens, MS 47/2019, by Twomey CJ, who reminded us of the principles pronounced by Sauzier J in Delphinus Turistica Maritima 5A v Villebrod SLR 1978 121, the Vardin [1992] SLR 183, 136 and the Supreme Court in Companie des Seychelles (Pty) Ltd vs Casino des Seychelles (1994) SLR 28. Therefore, based on these case law authorities, a Writ Habere Facias Possessionem will only be granted if the following requirements are met, namely;

            (i) there is no serious or bonafide defence to the application.

            (ii) there are no serious issues to be tried

            (iii) there is no alternative legal remedy, and

            (iv) there is urgent need for the writ, and delay would cause irreparable loss and hard ship.

19. In Brigitte Payet vs Gregoire’s Company Limited, MA 148/2021 (Arising in MC 115/2020) Carolus j, found that “the Respondent has a serious and bonfide defence to the application”, and that “there are also serious issues to be tried which can only be properly be tried in a civil suit”. At paragraph [20] as per the ruling of Carolus j, “on that basis, and on the basis that there are alternative legal remedies available to the Respondent, and that it had not proved irreparable loss and hardship that would be caused by not granting the writ, her ladyship found, “that the conditions for granting a writ habere facias possessionem were not fulfilled”. It is interested to note, that her ladyship refused to grant the writ and dismissed the application without pronouncing herself on “serious and bonafide defence” and “such serious issues to be tried”. Her ladyship took the view, that a legal remedy had to be sought by way of a civil action where the “serious and bonafide defence” and “serious issues to be tried” would be considered on merit.
20. In the instant case, I find that the Respondents have a serious and bonafide defence to the application, and that there are also serious issues to be tried which can only properly be tried in a civil suit. I also find that there are alternative legal remedy available to the Applicant, and that the Applicant has failed to tender evidence that there is an urgent need for the writ and that delay will cause irreparable loss and hardship to him.

[20]     I therefore dismiss the application for a writ habere facias possessionem. Both parties shall bear their own cost.  

Signed, dated and delivered at Ile du Port 7^th November 2022.

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B. ADELINE