Roucou v Zialor & Anor (CS 160 of 2018) [2023] SCSC 245 (3 April 2023)

GOVINDEN CJ

The Pleadings

1. The Plaintiff avers that he is a resident of Au Cap and that the Defendants do not live far from where the he lives. For the past years the Defendants have been the author of continuous harassment and threats to the Plaintiff’s life.That the Defendants have been illegally trespassing on Plaintiff’s property to gain access to the public road. That the Defendant has on three occasions caused damaged to Plaintiff’s fence and the Plaintiff has to engage someone to fix it. That on 22nd October 2018 at around 11:40 a.m., the Plaintiff was verbally assaulted and threatened by the 1st Defendant with a panga in the presence of the workers who were on site. The acts of the Defendants are a ‘faute’. She avers that unless restrained the Defendants will continue to harass, insult and/or instigate her. As a result of the Defendants’ ‘faute’ and of all matters aforesaid, the Plaintiff claim that she has suffered from loss and damages for which the Defendant is liable. She particularised her damages as follows; fixing of fence, SCR10,500.00;Stress and anxiety SCR200,000.00;Trespass to person SCR300,000.00;Moral damage SCR500,000.00. The total being 1,010,500.00.
2. The Plaintiff also seeks the following orders; an order restraining the Defendants, his servants or agents from disturbing, harassing, molesting, instigating and/or assaulting her and to keep away from her and his person by 50 metres; not to pass and trespass on Plaintiff’s property; to order the Defendants jointly or severally to pay the Plaintiff the sum of SCR1,010,500.00 as damages with interest and costs.
3. The Defendants, on the other hand, has denied the Plaintiff’s claim in their Statements of Defence and has also raised a Counterclaim. In their defence they admitted that they and the Plaintiff are adjoining land owners. They denied any harassment and threats to the Plaintiff’s life and aver that the Plaint fails to disclose which of the two Defendant threatened her and the Defendants. They aver that it is the Plaintiff that has created all sorts of problem for them after she was informed that she had built her apartments on the Defendants’ access road in violation of the Planning Approval granted to her, for the construction of two apartment blocks. They denied illegal trespass and aver that the Plaintiff had built her apartments on their access road which they have used for over 30 years and they are not trespassers as the Plaintiff had deliberately blocked their access to the main road in breach of the Planning Approval granted to her. The Defendants aver that cutting a hole in the fence was a “necessity” otherwise they could not reach the main road.  They aver that the 2nd Defendant is 75 years old and since the 12th of December 2018 she has been house bound and not been able to get out of her house as a direct result of the Plaintiff’s deliberate and calculated action to deny them access to the main road, the only access they have to the main road.
4. They aver that they had to file a court case against the Plaintiff in which they are claiming an access to the main road and seeking an order of injunction for immediate relief against the Plaintiff illegal action(s) as the action of the Plaintiff has rendered their property to be completely enclaved, (please see CS No 01/2019).
5. They deny the 22nd of October incident and the 1st Defendant avers that at no time did he threaten the Plaintiff with a “panga” or at all.  In fact, he says that it was him who called the police because he could not reach his home as a direct result at the Plaintiff’s action in fencing off not only her property, but that of the Defendants as well.
6. The Defendants aver that the Plaintiff’s action was calculated to cause maximum damage both moral and physical to the Defendants.  If anything the Defendants have acted with the utmost restraint and chose to file a court case to reclaim their existing access.
7. Accordingly, they deny that their actions constitute a faute and deny all and any averments of loss and damages.
8. In their Counterclaims they aver that as a direct result of the Plaintiff’s action they have been deprived of their access to the main road which they have used for the last 30 years, and the 2nd Defendant is a virtual prisoner in her own home and has been so since 12th December 2018 when the Plaintiff blocked the hole in the fence, which as a matter of extreme necessity he was forced to cut to get access to his mother and his home. That this hole has since been repaired and he has been denied access to his home and the 2nd Counterclaimant has been “virtually imprisoned” since 12th December 2018.
9. The Counterclaimants aver that as a result of the Plaintiff’s illegal construction on their footpath thereby denying them access to the main since their property is now enclaved and they have suffered loss and damage which is still continuing. They Particularised their Loss and Damages as follows, deprivation of access to main road and the 2nd Defendant’s virtual imprisonment SCR250,000 and continuing.
10. The Plaintiff rejects the Counterclaim in her Reply to Counterclaim and avers that all what is stated is incorrect and that it is the Defendant that has caused all these situations and that he has constantly threaten the Plaintiff with machete. The Plaintiff/Counter Defendant avers that the building she built was in accordance with the planning authority instruction. She avers that it is clear that the Defendants/Counter Claimants were not using the said footpath as they would and should have made complaints at the said time.  The Plaintiff also avers that there was never any registered right of way over any of her property registered as per the laws of Seychelles and that the Plaintiff has never granted such right of way to the Defendant/Counter Claimant.  The Plaintiff further avers that the 2nd Defendant is and has never been a prisoner in her own home as she has alternative access road granted by the Government of Seychelles who sold the 1st Defendant the said property and that such access is serving other people in the area notably over C1921 & C1925.  The Plaintiff/Counter Defendant denies that the Defendants/Counter Claimants were never imprisoned in their home as they have alternative access to their property provided by the Government of Seychelles and all the stated matter are lies to which the Defendants/Counter Claimant is making up since the development of the Plaintiff has been done.  She says that this is a simple jealously of the Defendant/Counter Claimant.
11. It is further averred that the property that was exchanged was in favour of encroachment over the property of the Plaintiff/Counter Defendant to which is was the responsibility of the Government of Seychelles to sort out, which they did accordingly. It is further averred that the Defendant/Counter Claimant is not enclaved and that the Government of Seychelles who sold them the property on land bank scheme had already provided them access road/way over C1921 & C1925 and also build a bridge for that purpose.  It is also averred that there was never any registered right of way or any footpath on any property of the Plaintiff. It is further averred that the Defendants/Counter Claimants has not suffered any loss or damages as being claimed and that it is the Defendants/Counter Claimants who had caused a number of criminal acts to which the Plaintiff had to report to the police and has got records of such reports.  The Defendants/Counter Claimants is not continuing to suffer any losses as there is (alternative) access provided to him by the Government of Seychelles who sold him the said property.  It is further averred that the threats were even in the form of writings by the Defendants and such is to be provided in court. As a result, she prays to this Court to dismiss this Counter Claim with costs and to award the Plaint with interests and cost in the sum of SCR1,010,500 as prayed for in the main plaint.

The evidence

12. The Plaintiff led the following evidence:
13. WPC Annette Landry, she testified that she is a Police officer and is attached to Anse Royale Police Station and that according to an entry in an Investigation Diary kept at the station on the 24th February 2018 a phone call received at station by Florianne Roucou of Aux Cap, La Plaine St. Andre that the Zialor family has entered on her property and cut green fence which was placed around her property area and she requested for police assistance. She was advised that the Police will assist her soon and WPC Govinden and other to attend scene.
14. WPC Naomi Rath was called to testify of a different complain from the Plaintiff in which she called and complained that one Jeffrey Zialor had come and threatened her with a machete in regards to her property boundary. I advised her, advice given to the complainant that the Police will assist as soon as practicable and SI Anacoura and SI Antat was to attend the scene.
15. PC Roberto Legaie and is attached to Anse Aux Pins Police Station. He stated that he was present when one Tamil employee of the Plaintiff. He testified that he was present when the Bangladeshi was making the statement in Tamil.
16. The Plaintiff testified that she lives at Aux Cap. She bought the land 30 years ago but she built the house about 1999 until today. She resides in the UK but she has been coming down virtually every 3 months for about a month or a forth night dealing with the same situation. The present parcel number of the land at Aux Cap is C4616, before it was C227.
17. Witness testified that she has two (2) properties at Aux Cap; One is Parcel C7354 and the other one is C4616. Witness stated that her house is situated on Parcel C4616. On Parcel C7354 she has got two blocks of Apartments. The construction of the apartments started in November 2015 and completion was December 2017. It was built by Mohan Chetty Construction KDC construction. Witness testified that she also constructed fencing around that property. The fencing had to be put around the property because somebody encroached. Witness stated that she put a planning permission for her to fence the land but prior to that the government gave her this land in August 2009 and she applied for permission to fence the whole property straight away. Witness testified that at the time the contractors told her that she must build houses first, then fence the property. She stated that because the intention was always to build apartment on the place, she submitted planning permission to Planning Authority and that was done in 2010. After the first approval she had to get steel plan done or the frame work because it is two floors. When she took it for her to get the steel plan done she was told she was wasting too much money and that she needs to get another person to look at it as it was just too wide for passage and so on. Witness testified that she went and applied again. She gave the drawing to somebody else to modify it so the person modified the plan and showed it to her and then Witness reapplied again to Planning Authority to do the amendment on it. Witness testified that the plan was approved. Witness testified that she built the fence around her property to secure the property.
18. Witness testified that she knows Jeffrey Zialor and Micheline Zialor who are the Defendants in this case, she has seen them passing by but never held conversations prior to. The Defendants lives behind her apartment blocks on another land. Witness testified that at present the Defendants are walking through her gates, she has given a key for that they brought a case. Witness testified that before that once she fenced her property the Defendants damaged the fence on three (3) occasions. There was a big cut inside the fence where the contractor had to come and change part of the wiring. Witness testified that the Defendants cut holes through her fence and this was not done with her approval. While the fencing was still ongoing Witness stated that she noticed cutting of fence and the contractor called her to show her and said that they had to repair it at the front.
19. Witness testified that the workers came to place poles at night to do wiring the next day. On one occasion, when they came five (5) poles were missing but even prior to that several cardboards notice was put on the poles where it read: “Corruption going to stop if you are sleeping with the president we don’t tolerate this we don’t tolerate that.” Witness testified that at first she disregarded all the notices but on several occasions the notices were put back up. Witness testified that where the notice was placed, only Mr Zialor (1st Defendant) and his mother has access to that area and the notices were put on the pole and said: “we are baking your cake and you are going to pay for it, we watching all your movement, you have blocked out land, you have blocked our passage way and so forth.” Witness testified that she did not even know she had these people trespassing on her land because originally when the government took her land to build the main road, the government did not show her if there were footpath or anything of that sort on the land or else she would have find out a bit more. Witness stated that it is only when she started receiving notices on the pole that she consulted at the time with Mr. Bonte who told her to bring a copy of her Title. Mr. Bonte told her to carry on because there is nothing that says on the Title that these people have a right of way to her land.
20. Witness testified that now the Defendants are using her land to go to their homes and they were given temporary permission by the Court until the appeal is heard. Witness was asked what made her believe that it was the Defendants who put these cardboard notices. Witness testified that he (the Defendant) himself who told her when he was swearing and cursing her on many occasions. Witness stated that she is not enjoying her land and her property as it is at the moment.
21. Witness testified that there was a specific incident on the 22nd October 2018. On that day the contractor dropped the workers in the morning and on his way he said to the Witness: “Madame some of the poles has been removed I have asked them to put it back but I want you to go up there at half past 11:00 to go see the welder because you have to give him the roll of the fencing that I had locked inside a store room” Witness testified that she went up there the covered door was opened and they were removing the fence, two of the  Bangladeshi workmen was on the side, the one that was left on the side was by the pole came running towards them which was a good distance. The Bangladeshi workmen came running towards the other one and spoke in his language, the one that was by the Witness at the store told the Witness to come with him so she followed him and they walked around with the workman’s boss. Witness testified that the boss told her to show him the beacon for him to be able to do the last pole for them to divert.  Witness stated that as soon as they reached up there, she turned around facing the bushes and she heard a voice out of nowhere saying: “Cunt of your mother it will be the first time and the last time you will be coming here”. Witness testified that it was Jeffrey Zialor (1st Defendant) who said that. Witness testified that as she turned around the 1st Defendant had a machete in his hand. She and the two workmen stood there frozen as it happened so quickly. Witness testified that the 1st Defendant verbally assaulted her and threatened her. Witness stated that she fell down and the workman grabbed her. They told the Witness that they will not work for her anymore. Witness called Mr. Bonte to explain what had happened and he advised her to call the Police. Witness called the police and when they came they asked for an explanation of what happened. Witness explained to them what happened and recounted other incidents to the police also about how the 1st Defendant was threatening her.
22. Witness testified that she had to go for counselling in England when she went back because she was frightened as she has not done anything wrong to the Defendants. She stated that she does not feel secure and that she has to go and replace the gate and that she is totally gated. She is depressed and thinking of getting somebody to buy the property so that she can go to England. Witness testified that until today these incidents are still happening. The 1st Defendant and his sister and a young man harasses her and run after her right up to her house.
23. Witness was asked about Micheline Zialor (2nd Defendant). She testified that Micheline Zialor is the mother of Jeffrey (1st Defendant). Witness testified that the 2nd Defendant used to swear and curse any time she sees her. Witness states that when she sees them she goes back inside of her house or she makes sure she is inside her gate. Witness testified that the 2nd Defendant is terrorising her. Witness testified that on three (3) occasions the Defendants has told her to go find somewhere else to stay and that they do not want her up here.
24. Witness testified that the Defendants parcel of land are behind her parcel. Witness was asked if she purchased parcel C7354 from the government. Witness testified that she did an exchange with the government because the government encroached on her land. In 2003 they agreed to give witness C7354. Witness testified that when she went to visit the beacon with the government Mr. Zialor (1st Defendant) had constructed a store on there and this is when all the animosity started. Witness stated that she had nothing to do with this as this was an exchange but the issue dragged on until 2008.
25. Witness was shown a certificate of official search and testified that this is the piece the government gave at the end. The certificate of official search of Parcel C7354 was admitted as Exhibit P3.
26.  Witness was shown a copy of title deed C7354 and testified that she signed this document at the Attorney General’s office as it was for the exchange. The copy of title deed C7354 was admitted as Exhibit P4.
27. Witness was shown an official search certificate dated 28th February 2019 in respect of parcel C4616 and testified that this is where her main house was constructed in 1999. The document was admitted as Exhibit P5.
28. Witness was shown a document of transfer entitled C4617 and C4618 admitted as Exhibit P6.
29. Witness was shown an invoice to KDC construction propriety limited in the sum of SCR6000/- dated 24th February 2018 and was admitted as Exhibit P7.
30. Witness was shown an invoice from KDC construction proprietary limited dates 23rd October 2018 addressed to Florianne Roucou which was admitted as Exhibit P8.

• Witness testified that she is asking the court to order that the Defendants stop harassing her;
• for a payment in the sum of SCR200,000/- for stress and anxiety;
• a sum of SCR300,000/- for trespass to the person;
• a sum of SCR500,000/- for moral damage, this is for all the trauma she has severed and continue to suffer to this very day.

31. Under cross examination the Plaintiff was shown Exhibit P4 Parcel C7354 and testified that this Parcel of land belongs to her. Witness was asked to read condition C in the document. Witness read as followed: “The transferee shall grant a right of access in favour of the property over the land comprising in title number C4616”.
32. She was asked when she got this land if it was her who were to grant a right access in favour of the property over the land C4616. Witness explained that when she went to the office to sign the paper she did not understand any of the terms. She asked Fiona Robinson who was there on that day and Fiona Robinson explained to Witness that because C7354 is above C4616 and there is no way that they manage to create a road access, if she ever wanted to sell C7354 she would have to give access to that parcel C4616 to give a right of way to C7354. The right of way lies on C4616. C4616 has to give a right of way only to C7354 and there is no other encumbrance on the land.
33. Witness was asked to look at the survey plan where there is a footpath registered R4, R5, R3 and was asked whether that footpath crosses the land and reached C7355. Witness replied in the positive and explained that this was given to her in July 2009. Christian Lionnet and other officers at MLUH wrote to her to tell her she had to be in the country to do the exchange. Witness testified that when she came there was already a big cut in the land which was between 6 to 7 meter drop and the owner of C7095 had already started the foundation of his house. Witness stated that the drop was from the main road to C7095 where BB35 and BB823 is. This embankment was created by the owner of C7095.Witness testified that when they gave her that piece of land there was no access way even if that drawing is on the survey plan. Witness testified that based on the survey plan, the land from R3 to R5 represents a footpath.
34. Witness testified that she knows Ted Confait as he was the one that did the drawing of the fencing for her. Witness was shown a letter and she confirmed that Ted Confait is her engineer. The notice of conditional permission for development addressed to Mrs Florianne Roucou dated 23rd January 2017 was admitted as Exhibit D1. Witness was asked what conditions were imposed on her in order to develop the land. Witness read as follows: “Onus is on the developer to ensure that this access is not obstructed in any way to serve nearby landowners or use of footpath.” Witness testified however that this document makes referral to the footpath which passes over the 7-meter embankment from the access road to the main road but the footpath is no longer there. Witness testified that the footpath was never registered; she went to see Planning Authority in person and there was no encumbrance on her title after looking at their drawings and everything else.
35. Witness was shown a letter by the Seychelles Planning Authority to Mr. Ted Confait of Beau Vallon 13th February 2017 which was admitted as Exhibit D3. Witness was asked what the letter means when it said the above Application was considered by Planning and it was resolved that-. Witness testified that there is a footpath shown in cadastral of Parcel 7354 an agent developer must clarify why is someone is being blocked by the chain link fence, the alignment of footpath must be shown on the side Plan and it stands must be confirmed in writing, site Plan must have legal annotation and this letter was dated 13th February and Witness stated that she has a reply dated the 8th. Witness did not agree with counsel that there is a registration of a footpath shown on Parcel 7354.
36. Witness was shown a document which is a Notice of Environmental Authorisation for Development to Mrs Florianne Roucou from the Administrator dated 6th February 2017 and was marked as Exhibit D4. Witness was asked what condition number 7 states in this document. Witness replied that Public access for joining properties plot must not be severed or obstructed.
37. Witness was shown a GIS plan of several properties including that of hers and was admitted as Exhibit D5. Witness testified that her two properties are on this GIS plan. Witness was asked if whether she can see from Exhibit D5 that the Defendant is completely cut off and that he has got nowhere to go. Witness testified that the Defendants have a right of way on C7244. Cadastral plan of C7354 was admitted as Exhibit D3
38. Witness was asked to look at Exhibit D3 and say whether she sees a footpath on C7244. Witness testified that yes there is a footpath but from July 2009 together with Christian Lionnet and other people they went on top of that land and there was a gradient of 61/2 to & meter drop. Witness testified that it is still there in existence at the moment. Witness testified that Christian Lionnet told her not to worry as they have written to the owner of C1795 for him to build a wall there. Because the gentlemen had made the gradient, therefore there was no visible footpath at the time. Witness testified that when she was given the title no one made mention of any footpath or else she would have never accepted the land in the first place.
39. Witness testified that the Court came to her property twice. Witness stated that Mr. Zialor (1st Defendant) has his right of way on his family land and that he is not enclaved. Witness testified that Mr. Zialor’s (1st Defendant) path should have been where the gentlemen had cut the embankment. Witness testified that when the Judge came she was told by her lawyer not to say anything. The Judge walked in front with the Gentleman and they showed the Judge the big embankment. The Judge asked where the Defendant walked to go to his place in the past and he answered that he walked this way. Witness testified that she did not even know if the gentleman was walking on her land because as far as she knows the right of way was on government land and not on hers.
40. Witness was asked how does she think the Defendants reach the main road without traversing C4516. Witness testified that when she bought the land there was no right of way for anyone on there. Mr. Zialor (1st Defendant) never informed her that he was walking sideways through her land to get to his place. Before the development there were ingrown bushes in that area. Witness testified that no one approached her when she was building. The reason she put the chain link fence is because of the 7 meter drop to prevent people from falling down there. It is the 7 meter drop that took the Defendants right of way. Witness testified that she did not maliciously cut the Defendants off.
41. Witness testified on C7244 the government has built a road there with a bridge that all the other residents that lives at the back passes. None of them passes on her property except for the Defendants and two other people. Witness stated that the Defendants’ family has land title 1337 and 1338 which takes from the main road. They have got an alternative right of way. Witness stated that there is another way at the back where there is a car park.
42. Witness was asked if the 1st Defendant passes through her property even through the fence to reach his house presently.  Witness testified that she was told by her lawyer at the time to go ahead and fence her property. After that the lawyer told her that he had a word with the judge and the judge said if she does not give the defendants access to the property they are going to trash her gate. So she granted this under duress.
43. Witness was asked about a specific day in question where the 1st Defendant cuts grass to feed rabbits. Witness testified that on the 1st Defendants’ side of the fence is overgrown with big trees. It was put to Witness that she was the one who was violent towards the 1st Defendant. Witness testified that she is giving evidence under oath and does not have to lie. Witness stated that on that day the 1st Defendant pulled some fences up. When she went there with the contractors that is when she saw the machete. Witness stated that the 1st Defendant was brandishing the knife and she was afraid. Witness testified that she called the police but they do not entertain her.
44. It was put to Witness that she had built on the access road of the Defendants. Witness testified that MLUH came to the property and never once anyone told her that there was a footpath.
45. In re-examination she testified that the Defendants are using a temporary based order to access her land until the case of CS1/2009 is complete. They can come in and out for the time being. Witness was asked as per Exhibit P4 if she bought the land from the government. Witness testified that it was an exchange. The only condition when the exchange was made was to give an access road to C734 and to no one else. Witness testified that where the Defendants live it was owned by government before. She thinks the government transferred the land to Mr. Zialor (1st Defendant) on the 14th August 2011 two years after she bought her land. Witness testified that Mr. Zialor (1st Defendant) relative has the whole land behind her and they have their own ways of getting there. Witness testified that on the 18th, 22th October 2019 when the incident happened the fence was not completed yet so there were no obstructions.
46. Witness testified that she has got tenants living on C7354. She has got a two buildings with 8 flats. The tenants walk from the building to the road which witness stated she built. They walk across C4616 then reach the main road. That is the same route the Defendants are using right now on that path. The embankment cuts partially to the left of her property. The old footpath is unusable because the embankment was cut in July 2009. The footpath appears on the plan but cannot be used because of the embankment.
47. MD Alomgir lives at Plaisance with other Bangladeshi. He is working with ABC construction. The owner of ABC construction is Mohan. Witness testified that he knows Mrs. Florianne Roucou. He had also seen the 1st Defendant before. Witness testified that he has come to know Mrs. Florianne Roucou when the owner of the company Mr. Mohan contacted Mrs. Florianne Roucou with regards to building construction work and then he knows the 1st Defendant as the neighbour of Mrs. Florianne Roucou. Witness testified that when he was working he made a boundary wall and the gentlemen came and tried to beat Mrs. Florianne Roucou with a long knife. Mrs. Florianne Roucou laid down and the 1st Defendant pushed her. He pushed the shoulder of Mrs. Florianne Roucou and she fell down. Witness stated that he did not see Mrs. Florianne Roucou hit the 1st Defendant. Witness does not remember when this happened as it was a long time ago. The incident happened inside of the boundary.
48. In cross examination it was put to witness that he was lying to the court. Witness stated that he was being truthful and he is telling the truth of what he had seen.
49. Genarul Islam lives at Pointe Larue at the KDC company. Witness testified that he knows Mrs. Florianne Roucou as he has worked on her house three years ago. Witness stated that he knows the 1st Defendant and he is the neighbour of Mrs. Florianne Roucou. Witness testified that when he was working on the boundary wall the 1st Defendant call Mrs. Florianne Roucou, pushed her and she fell down. After that he returned with a long knife and wanted to beat her. Mrs. Florianne Roucou laid down and fell back. Witness stated that other Bangladeshi’s picked up Mrs. Florianne Roucou to remove her from the place. The incident happened inside of the boundary of Mrs. Florianne Roucou. Witness stated that the 1st Defendants’ house is behind Mrs. Florianne Roucou’s new building.
50. Under cross examination the witness was asked if he was one of the workers who built a fence around the 1st Defendants house. Witness testified that two people built the boundary. He heard the 1st Defendant insult Mrs. Florianne Roucou verbally. Witness stated that the police was called around 12 or 12.30. Witness was asked if he was paid to come to court. Witness testified that he does not know anything about that.
51. The Plaintiff testified that his name is Jeffrey Zialor, he lives at Au Cap, he works at PUC as an engineer in the Water Section. He lives with his mum and sister. Witness states that he knows the Plaintiff in this case.
52. He testified that the Plaintiff built 2 block flats, one obstructs a footpath which Witness acquired from the Government while processing a plot of land from the government, he was using this plot of land for more than 30 years and he purchased the plot of land in 2009 and finished paying it in 2011. And from 2017 he was having difficulty to access his property. Witness testified that he is not illegally trespassing on the property to gain access to the public road, the government they gave him a topographic layout showing the access that he should be using from the public road to his property.
53. Witness was shown a letter from MLUH that he received at the time and testified that he went to complain about his access being destroyed, and he even brought the Minister on site to visit with some other officers and afterwards they gave Witness this letter telling him to wait for 30 days that the unlawful blockage has to be removed.  Witness read the content of the letter as follows: “Reference is made to your letter to the office of the President which has reverted to our office for investigation. Please be inform that further to the above mentioned complaint we have sent a letter to the adjoining property owner after we have observed that she had not complied to the conditions of the Planning Authority Approval to the Planning Application where it concerned your access. Please refer to attach copy of the above mentioned letter we are awaiting the deadline of 30 days imposed to further action.  I trust and thank you for your corporation.” The Letter dated the 12th of April 2018 addressed to Mr Jeffrey Zialor from Mr James Chang Tave Director of Development Control of the Ministry of Land Use and Habitat was admitted as Exhibit D6.
54. Witness was asked to read the title deed of C7354 and what’s the condition of the transfer. Witness testified that the document states that the transferee shall grant a right of way in favour of the property above the land comprised in title No.C4616. Witness testified that he was never granted a right of way. The Title Deed of C7354 dated the 20th of August 2019 is admitted as Exhibit D7.
55. Witness testified that there is a registered footpath on the land based on the cadastral plan. The Cadastral Plan showing footpath across parcel No.C7354 was admitted as Exhibit D8. Witness testified that as a result of the blockage of the footpath he encountered difficulties in getting to the main road.
56. Witness testified that as a result of those difficulties he had to go to court to ask the Court to help him by asking for an access to the main road from his house. Witness was shown a document namely an Application for interim injunction. Witness testified that this is was an Application by the Applicant(Witness) for interim injunction ordering the Respondent to restore a road access over the Respondent property. Interim injunction is granted pending the determination of CS01/19, 1st Respondent is ordered to restore the road access or provide suitable alternative access ending determination of the road case. The Court Order in Case CS1 of 2019 dated the 14th of February 2019 was admitted as Exhibit D9. Witness testified that even after getting this document in which the Court granted him a right of way he still had problem getting access to the road. He went to the Court again and they sent process servers to try and force the gate open. Witness explained that the Court order stated that the Process Servers are directed to secure an opening at or near the main gate for either having the lock on the small side gate kept open by the owner failing which by removing the said lock by whatever means necessary.  The Order of the Court in CS1/2019 dated the 21st of February was marked as Exhibit D10. Witness testified that as a result of being denied an access to his home he had to cut a hole in the fence of the Plaintiff. He also did this because his mother whenever she had to go for her pills to have access to the road. Witness testified that he never assaulted nor threatened the Plaintiff in any way whatsoever. Instead of doing that Witness testified that he went to the Police, he wrote to the Commissioner of Police. The Commissioner respond to his email to saying, “Dear Mr Zialor the content of the attachment of your email is noted.  As a legal person my advice to you is to urgently ask your lawyer, my good friend Mr Nichol Gabriel at this time to file a case before the Supreme and the issue of the access will be determined. In the meantime, Mr Gabriel can also file an interim Application seeking that the right of way which you have enjoyed continuously and undisturbed for over 30 years is blocked until the determination of the case. In my view you have earned this right through prescription to this is a classic Civil case and Police have no powers except to prevent a breach of the peace.” The email from Commissioner of Police to the Defendant dated 23rd of February 2018 was admitted as Exhibit D11.
57. Witness testified that the victim in this situation was him and his poor old mother which at the time was 75. Witness stated that he had to go live at his sister in law, his mother had to stay alone for two weeks.
58. Witness was shown Exhibit D8 and showed the Court how his property C7355 is completely enclosed by the Plaintiffs’ fence. The fence is all around the red boundary blocking the footpath. Witness states that as a result of the Plaintiff’s action he is claiming for some damage and some injury. Until now he cannot build his house because, it is difficult for him to transport his construction materials. Witness testified that he is accessing the main gate through the small gate and then going up to his property there is another gate which he has to access. Whenever he has to carry something through it is very difficult as he has to bend down. As a result of the inconvenience witness is claiming SCR250,000/- from the Plaintiff for his loss and for his mother’s loss.
59. In cross examination he was asked if he has access to the footpath. He answered that his footpath is being blocked with a fence, he has access to the main gate at the main road. He is now not blocked from the main road because of the interim injunction he received and he also got two keys for him to access. Witness was asked where does it say on Exhibit D7 that he has a right of way. Witness testified that on the document it states that the transferor shall grant a right of access in favour of the property above land comprising Title C4616. It was put to Witness that reference to C461 which is owned by Mrs Roucou (plaintiff) agreed for a right of way to the other land C7354 which was being sold to her. It doesn’t say a right of way to C7355. Witness testified that this was a government land which his footpath was crossing the government land before they exchanged the land for the road that was serving all of them. Witness stated that The land was a government land when he purchased his property they gave him the footpath on this land mentioned above, then later on when the government decided to widen the road from Buckinarms Palace discotheque until to where Mr Simon Amade live, the Plaintiff was the only one complaining about her land and they exchanged part of this land to the one which Witness’ footpath was. In the Planning Approval Witness was being told by the Minister that the owner was being asked not to block his footpath or if she blocked she had to give Witness alternative access. The document is dated
60. The Plaintiff testified that at the time he was granted the right of way the land was not for the Plaintiff yet. It was put to Witness that on his title deed it talks about a footpath but not in his favour. Witness testified that it was in his favour, it was only him and his parents that was using this footpath and they surveyed it and gave him a copy.
61. He was asked if there were complaints made by him to Planning Authority. Witness testified that when the construction started the contractor told him clearly that another access will be done but then afterward when they were fencing the area Mr Mohan told Witness that the Plaintiff told him he is paid to do the work do what he is being told to do by fencing of everything. That is when Witness went to the Minister and to the then President at the time Mr Danny Faure and the Minister Bastienne at this time and 4 of them went to visit the site. Witness testified that the Plaintiff was being warned there is document that is available she was being told that there’s existing access to the neighbours and she was not destroy if in case she destroyed she had to give alternate access. He said that this was and order given as a result of a case filed in 2019. The order is dated the 21st February 2019. According to him when the construction started when the Contractor blocked everywhere there was no fence. Then the Contractor was telling him that there will be alternate route and when they blocked with the flat he could not go up there, he just was using another road next to a neighbour on an alternate route that was there going up thinking that afterwards he will be given his legal access. Afterward when they started to fence the property that was when the problem started. He stated that he is asking the court for a right of way because his has been destroyed and that his right of way is documented.
62. It was put to Witness that on the day of the Incident of the 22nd of October 2018 he assaulted the Plaintiff, Mrs Roucou and threatened her with a machete. Witness testified that on this day it was a Monday and he took one-day leave and at around 11.30 he heard the dog barking, there was 2 guys fencing the last portion up to his property. He asked them what they were doing they told him they’ve been told to block and as per the email from MLUH. He then told the guy that he has no right to block. They went away, however, afterward he heard them being put under pressure and he asked the Plaintiff what is she doing she told him that she is blocking her property. The Plaintiff then told her that she has no right to block this property. She went away and then later on 4 Policemen came to his house telling him that the lady was saying that she’s being harassed and nearly her. He testified that the two persons called to testify about the incident were lying. He stated that he verbally explained to the Plaintiff that she has no right to block his access, he never attacked the Plaintiff. He denies aggressing the Plaintiff and denies causing her damages.
63. He went on to state that the government never offered him land, it was an individual from the government that came to his lawyer’s office trying to propose after witness does not know what happen to them. He stated that after he had received the injunction to access his property, suddenly he was being asked to meet somebody and this guy came to propose a land. He told the person that he already has land and his footpath was there it was being illegally destroyed. That there are people looking for land and to sell them because he already has his land and he has been staying there for more than 30 years. 
64. It was again put to him that the footpath he sees on the documents are old existing footpaths like all over Mahe and it is not a legal footpath. His position was that the government told him that they surveyed this, that the line from R3 through R4 and to R5 represent a footpath leading to his property. It was put to him that there is another road that he can use but he does not want to. He denied this.
65. In re-examination he testified that the police told him to go to the Police Station, but they did not charge him with assault. He further stated that the Plaintiff never went to court to get an injunction against him with regards to the assault. He went on to state that the Judge came to the property twice and was satisfied that he had no alternate access because they went with people from MLUH at this time, first with the first lawyer Mr Bonte, the 2nd time with MNA Anse Aux Pins.
66. The 1st Defendant was asked by Court whether he now has access to his property after the order of injunction made by Judge Dodin on the on the 21st of February and 14th of February. He answered that he now has access to his property. At the main gate there is a smaller gate in the main gate witness has the key to the padlock then he goes up by foot until the other gate up near his property. In terms of footpath access he is not hindered as he can open the gates.

Issue for determination

67. The Plaintiff case is one of illegally trespassing on Plaintiff’s property to gain access to the public road which has resulted in damages to her property. Connected to this she also claims that she was verbally assaulted and threatened by the 1st Defendant with a panga. These are the faute committed by the Defendants. The Defendant denies this claim and avers that their action with regards to the alleged trespass have been done out of necessity as they have been forced to go over and caused damages to the Defendants property’s as they have no other way to access the public road other than through the Plaintiffs property.  There is accordingly a factual issue for determination, namely whether or not the Defendants were trespassing on the Plaintiff’s property and whether she was assaulted on the specific occasion. 

Analysis and determination

68. I have thoroughly considered the facts led before me. In so doing I have given careful attention to the credibility of the witnesses, special emphasis has been given to their cross examination, in my attempt to find where the truth lies.  First and foremost, I need to make a determination on the law. Namely as to what is the true cause of action in this case, especially given the nature of the pleadings that seems to have intertwine both a personal and a real cause of action together. After scrutinising the pleadings in this case and that of the case of Jeffrey Zialor vs Florianne Roucou and Government of Seychelles, C/S 1 of 20019.I find that this issue of the legality of the right of way and possible encroachment is not pleaded in this case but that of CS 1 OF 20219, of which certain preliminary Rulings have been made and case is still pending hearing. That case is before a different Judge.  The case before this benchis therefore based one based faute and not on breach of proprietary rights. Accordingly, only evidence and submissions pertaining to this cause would be considered by this court. However, determinations of the court in the other case between the two parties would be referred to the extent that they are relevant to this court decision.
69.  In the English common law there is a tort of trespass to land. There, if an individual physically (e.g., light or smell doesn't count) invades an owner's real property or causes an object or a third person to invade it, he or she may be liable for trespass to land. In Seychelles this cause of action would consist of the faute of abus des droits as it was held in the case of Villa Veuvre (Pty) Ltd v Ernesta and Anor(SCA 05/2018) [2020] SCCA 21 (21 August 2022). Where the Appellant was claiming that the Respondent had committed a faute under Article 1382 by blocking his right of way. In its decision  the Court of Appeal , following French jurisprudence, whilst accepting the existence of such faute based on the concept of abus des droits, emphasized that the intention to trespass or block the a right of way is very important and  must be established by the Plaintiff and held in that regard  that if, “the road been blocked with the dominant purpose to harm the business of the appellant, we agree with Counsel for the respondents that this may have constituted a faute even in the absence of a proven easement.”. She made direct reference to, Dalloz Répertoire de Droit Civil Tome I Abandon – Crédit foncier Abus de Droit at nos 14, 17,which states that “l’abus du droit quand l’acte du titulaire est uniqument motivé par le dessein de nuire à autrui″.
70. I have scrutinised the evidence in this case, especially with a view to find whether or not the Defendants trespassed upon the Plaintiffs property and damaged her property with the dominant purpose to harm her , in other words to find the malicious intent or the ’intention de nuire’. Having done so I do not find any, on the contrary I find proven on a balance of probabilities the fact that what was done by the Defendants were done out of necessity as they had been fenced in by the Plaintiff’s developments. To this court the fact that planning permission was received  from the authorities does not absolved the Plaintiff but rendered to worsen the Defendants situation. As a result of which they found themselves enclaved and had to find a way for them to reach the public road by going unto the Plaintiff land and making a hole in her fence. It rests now for this issue of right of way to be settled in the other matter.
71. In that case Dodin J had to make two injunctive orders in order to allow the Defendants to go through the Plaintiff land. Though the orders were made three months following the filing of this suit to me it just served to show that the blocking of the Defendant’s right of way were persistent and ongoing. This to my mind clearly serves to prove their defences. On the 14th of February 2019 the Learned Judge granted an interim mandatory injunction against the Plaintiff with the specific orders that to unblock and restore the Defendants right of way over land title C7354 or to provide the 1st Defendant with such suitable alternativeright over C7354 to access his property from the main road. On the 21st of February the same year the same Judge in the same case had to grant another injunction ordering the Process Server of this court to secure an opening at or near the main gate of the Plaintiffs’ property by either having the lock on the small side gate opened by the owners, failing which, by removing the said lock by whatever means necessary.
72. I determine as a result of the above that the claim of trespass and damage to the fence not proven by the Plaintiff on the basis that she had not proved that the Defendants action were motivated by intent to harm the Plaintiff or by malice.
73. With regards to the 2nd claim relating to the specific incident of the 22nd of February. This is an averment as to a faute of psychological harm under Article 1382. The Plaintiff is saying that the apprehension of harm caused by the 1st Defendant threatening her with the knife is a delict and that he is therefore entitled to compensate her for the resulting damages caused. After much contention the existence of this faute was confirmed by the Seychelles Court of Appeal in the case of Laporte vs Fanchette (2013) SLR 593 where the court held:

“We are of the view that the totality of the provisions of arts 1382 and 1383 of our Code mean that where a defendant intentionally or negligently does an act, including uttering or writing words, he is liable to repair the injury or damage he has caused by these words or acts”. 

74. The facts of the case from which that appeal arose are that the appellant, Mr Fanchette, went to the Casino des Iles at Cote d’Or, Praslin where the respondent, Mr Laporte, worked as the manager. He was denied entry to the premises as he had not buttoned his shirt. An altercation took place as a result of which it is averred by the respondent that the appellant stated “I bon oupiti in bezmor” (it’s a damn good thing that your child has died). The respondent sued the plaintiff for damages suffered as a result of these words based on the provisions of art 1382 of the Civil Code of Seychelles.
75. It is with above principle in mind that I scrutinized the evidence on record to see if the Plaintiff has proven that the 1st Defendant intentionally or negligently through his actions or words on that day caused psychological damages to the Plaintiff. Having done this, I find that there is overwhelming evidence that the 1stDefendant did assault the Plaintiff and thereby caused psychological harm to her. I disbelieve the 1st Defendant when he said that he did not attacked her. Hence I find that the faute is established on a balance of probabilities. I find no motive for the two workers to lie under oath. Moreover, the 1st Defendant was clearly evasive when it came to this part of his testimony.
76. This leads me to the consideration of quantification of the moral damages claim by the Plaintiff, with regards to the assault.  Moral damage is not so easily assessed. It is damage that is characterised by an injury to a person’s non-pecuniary interest and oftentimes to a person’s feelings as in the present case. However, the difficulty in assessing intangible injury must not be a bar to an award of damages, see Cable and Wireless v Michel (1966) SLR 253, Fanchette v Attorney-General (1968) SLR 111. The plaintiff in a civil suit who has the burden of proving on the balance of probability that he or she suffered damage as a result of the defendant’s action. He or she could only bring such evidence by recounting the pain he or she suffered which he did. The Court cannot ascertain such damage in any other way. No expert can tell us what and how much mental pain, suffering or distress a person is experiencing. Awards in this case can only be made by the trial Judge assessing the credibility of a plaintiff’s evidence and appraising the mental injury related. It is a subjective assessment. The Plaintiff’s evidence was on this aspect of her case was scanty, to say the least.With regards to this incident she testified that the 1st Defendant verbally assaulted her and threatened her; she fell down and the workman grabbed her. They told the Witness that they will not work for her anymore. She stated that she had to go for counselling in England when she went back because she was frightened as she has not done anything wrong to the Defendants. She stated that she does not feel secure and that she has to go and replace the gate and that she is totally gated. She is depressed and thinking of getting somebody to buy the property so that she can go to England. She paid SCR6000, to effect a repair to her fence (reference to Exh P7).
77. It is indeed a principle of French law that the trial judge has sovereign discretion in assessing moral damage and the Cour de Cassation has even dispensed with the need for the claimant to show proof of specific préjudice morale (see Comm. 22 octobre 1985. Bull. civ., IV No. 245 Société Génerale Mécanographie v Société Sainte-Etienne Bureau). It is also true that damages should be compensatory and not punitive (Francourt v Didon (2006) SLR 186) and it is obvious that monetary damages could never repair injury to one’s feelings.
78. Whilst considering the amount of compensation here I bear in mind also the state of mind of the 1st Defendant at the material time.  In the exercise of my sovereign discretion I believe firmly that this is of material importance in this case. His frustration and anger does not and cannot absolved him of liability but it would mitigate the compensation payable. This is clearly not a case of a callous and unwanted attack on an unsuspected Plaintiff. It was a cauldron waiting to explode. The bad blood between the parties had reached a culmination to the point where he had unfortunately resorted to physical violence. The enclavement of the Defendants property had to some extent provoked the incident.
79. This leads me to consider the issue of fault of the victim and division of responsibility in the award of damages. It is a principle that when the victim commits a fault which contributes to his damage, this fault leads to a sharing of responsibility between the victim and the third party responsible. In other words, tort partager. With regard to the assessment of the fault of the victim, it is generally accepted that it must be assessed according to the same criteria as the fault of the liable third party(1 B. DUBUISSON, V. CALLEWAERT, B. DE CONINCK et G. GATHEM, La responsabilité civile - Chronique de jurisprudence 1996-2007, Volume I: Le fait générateur et le lien causal, Bruxelles, Larcier, Coll. Les dossiers du journal des tribunaux, 2009, p. 350).By its judgment of 7 January 2015, the Court of Cassation confirmed that when damage is caused by the concurrent faults of the author of the offense and his victim, the slightest fault thereof suffices to entail a division (2 Cass., 7 janvier 2015, R.G. P.14.0769.F *).
80. This judgment was rendered in the matter of provocation, under 3 Article 411 of the French Penal Code, an area in which the Court of cassation had already considered that when the damage results from the joint faults of the author of the offense and his victim, responsible for the provocation, the judge is held to carry out a division on the civil level, even if this is not invoked(Cass., 23 mai 2007, Pas., 2007, p. 977; X, Les infractions, V.2, Les infractions contre les personnes, Bruxelles, Larcier, 2010, p. 368, n°366).
81. However, the excuse of provocation is only accepted if the provocateur has committed serious violence. By specifying that the slightest fault of the victim is sufficient to cause a sharing of responsibility, the Court of Cassation concluded that the rejection of the excuse of provocation does not prevent verifying whether the victim has committed a fault, other than that described in Article 411 of the Penal Code, such as to justify that it supports a part of his damage. It therefore confirms that, with regard to the fault of the victim, it is indeed the culpa levissima which must be taken into consideration, without the seriousness of the fault having influence on the principle of shared responsibility (Sous réserve de la fraude du tiers responsable (Voyez Cass., 6 novembre 2002, Pas.,2002, p. 2103)).
82. Therefore, without finding provocation in the circumstances of the present case, I find absence of reasonable care in her actions and that of other authorities towards the Defendants that would only constitutes contributory negligence on her part and so doing reduce the quantum of damages accordingly.
83. In my final analysis, I hold that the 1stDefendant is liable in delict to compensate the plaintiff, for the consequential loss and damages as a result of the assault of his action However, the amount claimed by the plaintiff under each head of loss and damage, appears to be unreasonable, exorbitant and disproportionate to the actual injuries he suffered, especially given the contribution that she brought in the occurrence of the faute.
84. Accordingly, I order the 1stDefendant to  pay to the Plaintiff the following;:

1. Fixing of fence, SCR6000;
2. Stress and anxiety SCR10,000.00;
3. Trespass to person SCR10,000.00.

To total sum payable SCR26,000. I make no order as to cost.

85. I make no findings on the Counterclaim of the Defendants that are solely based on the action in rem and I leave it to the court in the case CS1 of 2019 to make such a decision.

Signed, dated and delivered at Ile du Port on 3rd of April 2023

____________

Govinden CJ