Zatte v Niceue (CS 84 of 2020) [2024] SCSC 150 (26 July 2024)

IN THE SUPREME COURT OF SEYCHELLES

Reportable

_CS84/2020

_{in the matter between}

subsequently purchase Title H3209 as well. However, that agreement fell through for reasons that each party blame each other for it.

[2] The Plaintiff also avers that in 1997 she obtained from proprietors of parcel H46 a verbal right of way on which she built an access road that at that time and still serves both the Plaintiffs and the Defendant's properties. This oral agreement was subsequently formalised into a written document dated 09 September 2018 and was registered with the office of the Land Registrar on 12lh September 2020.

[3] On 26lh September 2007, the Plaintiff decided to sell to the Defendant parcel H320 and it was an implied condition of the sale that the Defendant would allow the Plaintiff use of the access road that runs partly on that land parcel and that accesses her home. She has no other access. H320 is adjacent to parcel H46 from whose proprietors the right of way was obtained. This is the access that the Plaintiff has been using uninterrupted until recently when the Defendant placed a galvanised pole in the middle of the entrance and therefore restricting the Plaintiff access to her property. She considers that the action of the Defendant was done out of malice. As a result thereof the Plaintiff and her husband have difficulty accessing her property by vehicle. Visitors to the Plaintiffs home presently have to park outside her property. The Plaintiff avers that her property is enclaved and that the only reasonable access to the main road is via title H320. The Defendant nonetheless counters and aver that despite that galvanised pole the Plaintiff is still able to access her property.

[4] The Plaintiff avers that the acts of the Defendant are unlawful and as resu It thereof she has suffered loss and damage. She claims damage in the sum of SR50,000.00 and prays that the Court to make the declarations;

(i) That the Plaintiff has a right of way on tile H320;

(ii) Alternatively to prayers of (i) that the Plaintiffs title H2309 is enclaved and the

Plaintiff is entitled to a right of way over Title 1-1320; And order:-

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(a) The defendants to grant the Plaintiff a right of way, over part of title 1-1320,by removing all obstructions on the right of way, without placing further obstructions;

(b) The Registrar General to register a right of was over title 1-132;

(c) That the Defendant removes the septic tank and soakaway pit encroaching on title H2309; and

(d) The Defendantsjointly and severally pay the Plaintiff the sum ofSR50,000.OO

as damages.

[5] The Defendant file a statement of defence that apart from the merits raise a point of law.

The point of law states that the plaint does not disclose a cause of action.

[6] On the merits, the Defendant avers there was no agreement between the parties that the septic tank and soakaway pit located on the Plaintiffs and the Defendant's respective property would not cause problem as long as the Defendant purchased H2309. She states that there was an agreement between the parties for purchase of 1-12309and that the position of the septic tank and the soakaway did not constitute a conditions of that agreement to purchase. Therefore when the Defendant bought her property, there was implied condition that the location of the septic tank and soakaway would not be disturbed.

The Evidence

[7] The Defendant bought her property, 1-1320 from the Plaintiff on 26th September 2007 (Exhibit P3). There is consensus between the parties that at the time of sale both that parcel and H2309 were on sale and that there was an oral agreement that the Defendant would subsequently purchase the latter parcel. The Defendant testified that she was given within a period of 18 to 24 months to complete that purchase. That purchase never materialised and the reason for that is disputed. However, the Defendant testified that at the end due to lack of finances, she did not purchase H2309.

[8] At the time that the Defendant moved into her property, the Plaintiff was not occupying hers but was rather renting it out. The Defendant testified that she had a good understanding

with the person renting out the Plaintiff's house that she at times parked her vehicle in the yard of property. However, shortly thereafter, she was informed by the Plaintiff that she was not selling 1-12309 and that she has a child and wanted to leave it for that child. Thereafter, the Plaintiff moved into that house.

[9] When the Plaintiff moved into her house, the parking arrangements continued without any dispute. However, the Plaintiff states that the Defendant and her husband would be disrespectful in that they would park their vehicles in front of her kitchen and would not even acknowledge her. She complains that sometimes the Defendant, her visitors or agents would park at her house and block access to her home. This is when disagreement started between them though the Defendant states that she and neither her visitors were in any way blocking the Plaintiffs access. This resulted in the Defendant placing a pole on the road, as exhibited in exhibit P7. The Defendant avers that since they have limited parking space and the Plaintiff was preventing her from parking partly on her property she had to find ways of creating a parking for herself and that since the Plaintiffs obstruction to their parking area, they had to park off-site and that caused her great inconvenience. The road from the house is steep and access is restrictive.

[10] Both parties testified that at some point in time, the Plaintiff proposed the building of a parking facility to accommodate them. The parking would have been on both properties. The Defendant states that the proposal to build the parking facility was primarily to benefit the Plaintiff who was building a house extension whereby two additional floors were constructed above her existing house. Tn any case, she adds that she did not have the finances for such construction.

[11] The Plaintiff gave evidence that in order to reach to both properties, she had obtained a right of way of land Title H46 belonging to heirs Beaudoin. That right of way of way was first granted verbally. However, on the 091h September 2018 in was confirmed in writing (exhibit PS). The drive that was built falls partly on the Defendant's property.

[12] The parties also had disputes in respect of the septic tank and soakaway of the Defendant's house which is partly on the land of the Plaintiff's property. The Defendant explained that when she bought the house the tank was already built. She is not the one who constructed

the septic tank and soakaway thereon. The Plaintiff testi fied that the soakaway issue is resolved, something which the Defendant doesn't not seem to agree with.

The Right of Way

[13] It is not contentious that a right of way exists over title H46 that was given to the Plaintiff over that land. However, in his submission Counsel for the Defendant challenged the validity of exhibit P5 granting the right of way stating that the person signing the document did not produce any document of authorization or Power of Attorney. However, Counsel for the Defendant did not during the hearing challenge the admissibility of the Grant of Right of Way document. The document is duly registered.

[14] It is also non-contentious that the Plaintiff built the access over that land that helped her access to her property H2309 and H320 that used to belong to her. At present part of that access runs over the Defendant's land. The Defendant through cross-examination has suggested that the Plaintiff's land is not enclosed and that she has alternative manner of accessing her property. This is irrelevant as it was never pleaded. The Plaintiff obtained the right of way in terms with article 682 of the Civil Code of Seychelles ("the CCS") albeit that at present part of it runs over the Defendant's land. So that issue now is whether the Defendant should remove the galvanised pole that the Plaintiff complaints is now causing some obstruction.

[15] This right of way was granted in terms of article 682 of the CCS, which reads;

"The owner whose properly is enclosed on all sides, and has no access onto the public highway, either for private offor business use of his property; shall be entitled to claim from his neighbours a sufficient right of way to ensure thefull use of such property: subject to his paying adequate compensation ofany damage that he may cause. ,.

[16] However, once the property was sold, the Plaintiff did not maintain a right of way over the part of the drive that runs over the Defendant's land. Article 691 of the CCS provides that discontinuous easement, apparent or not are created only by instrument (titre). Article 688 categorises rights of way as a discontinuous easement. Indeed, section 52 of the Land Registration Act reads;

"(1) The proprietor of land or a lease may, by an instrument in the prescribed form grant an easement to the proprietor or lessee of other landfor the benefit of that other land.

(2) The instrument creating the easement shall specify clearly-

(a) the nature of the easement, the period for which it is granted and any conditions, limitations or restrictions intended to affect its enjoyment; and

(b) the land burdened by the easement and, (f required by the Registrar, the particular part thereof so burdened; and

(c) the land which enjoys the benefit of the easement, and shall, ifso required by the Registrar, include a plan sufficient in the Registrar's estimation to define the easement.

(3) The grant of the easement shall be completed by its registration as an encumbrance in the register of the land burdened and in the property section of the register of the land which benefits, andfiling the instrument.

(4) An easement granted by the proprietor ofa lease shall be capable ofsubsisting only during the subsistence of the lease.

[17] The right of way that was granted by heirs Beaudoin to Mrs. Zatte though slightly not in agreement with the form for easement prescribed in the Land Registration Act (form LR I0 of Second Schedule). The difference is that exhibit P5 uses different wordings but effectively grant a right of way. In Aglae v Robert (CSCA 74 of2018) 120211SCCA 48 the Court Court of Appeal adopted a very strict interpretation of section 52( I) of the Land Registration Act. It held that in view of that section 52( I) provides that the grant be in the prescribed form, anything short of that will be invalid. In this case, Exhibit P5 was admitted without objection. The document has been registered. Therefore, I shall hold it as being a valid document granting a right of way. Mrs. Zatte before selling 1-1320did not retain a right of way for herself. There was no document of title as required by section 688 of the CCS; as explained Aglae v Robert (supra). The right of way that was granted by heirs

Beaudoin is a document of title. Mrs.Zatte must have been aware when the land was surveyed that unless she retained the same, Mrs. Nicette was under no obi igation to grant her a right of way, unless the necessity arose under the law, such as if her land was enclaved. Nonetheless, if she is having access over heirs Beaudoin's property right to her home, the argument of her land being enclaved is redundant.

[18] Furthermore, after the locus in quo as per evidence in Court it is clear that despite the galvanised pole having been put up, she can still access her home via vehicle. In fact, there was evidence that she did major construction work to her house and vehicles were able to deliver materials on site albeit that it remains a bit tight. The Court had suggested to the Plaintiff that she could apply to PUC to move the electricity that is found opposite the pole and that would allow her better access to her property.

The Encroachment

[19] The Plaintiff demands that the Defendant removes the encroachment that remains on her property. This is in respect of part of the septic tank and the soakaway. Counsel for the Defendant failed to address that issue in his submission. Counsel for the Plaintiff submits. She notes that the Defendant provided a mere denial to the averments in paragraph 3 of the Plaint which alleges the encroachment. This she submits falls foul of the provision of section 75 of the Seychelles Code of Civil Procedure which states;

"The statement ofdefence must contain a clear distinct statement of the materialfacts on which the defendant relies to meet his claim. A mere general denial of the Plaintiffs claim is not sufficient. Materialfacts aLleged in the plaint must be distinctly denied or they will be taken 10 be admitted. .,

[20] 1 believe that paragraph I of the Statement of Defence in answer to paragraphs, 1,2 and 3 of the Plaint, goes beyond a mere denial. Paragraph 1(a) makes reference to an agreement between the parties when both properties (H2390 and H320) were on offer for sale. Despite the Defendant purchasing only H320 at the time of purchase, the septic tank and soakaway were not an issue. The Defendant further averred, under paragraph I(b) of the defence, that

the Defendant claims that the Defendant bought H320 on the implied condition that the septic tank and the soak away were to remain where they are presently.

[21] Counsel for the plaintiff submits that despite the Defendant denying any encroachment in her defence, she admitted its existence when giving evidence. I find that the Defendant did not deny the existence of the encroachment, but that the Defendant felt that there was an agreement that the septic tank and soakaway will stay in position after purchase H320.

[22] From the evidence, it is clear that the two parcels were to be sold together and the

Defendant was granted some time to purchase them; first she was to purchase H320, then

2390. For reasons of funds the Defendant did not purchase the latter parcel. This is clear from her evidence when she testified that even later when the Plaintiff had suggested joint investment for construction of parking, one of the reasons she did not accept such project was due to the fact she did not have the necessary finances. I do not find any indication that the encroachment would be allowed in perpetuity. The Defendant should have sought permission to retain these septic tank and soakaway on the Plaintiff's property. I find that unless she gets permission to retain these infrastructure on the Plaintiffs property, they have to be removed.

Further Findings

[23] During the locus in quo, there were allegations that part of the Defendant's house is on the Plaintiff's land. The pleadings make no mention of the same. Therefore following Vandagne Plant Hire Ltd VS Camille [SCA 03/20131 2015, SCCA 17, wherein it was said that "[IJn terms of procedure and pleadings. the rule bears no repetition that parties are bound by their pleadings and that they may not ask nor can the Court grant any relief which goes beyond the four corners (4the plaint and the pleadings. Nor may il consider any issue any more (han grant a remedyflowingfrom that issue VI/henthat issue was nor joined by the parties in the first place" , the Court will not explore that matter any further.

Plea in Limine

[24] In her defence the Defendant raise a point of law which reads that the "plaint does not disclose a cause of action against the Defendant. " Counsel for the Defendant did not

address that point of law in his submission. Counsel for the Plaintiff did not address it either. In the absence of any submission 011 that issue, the Court will neither address it, save to state that from the above, it is abundantly clear that the pleadings established a cause of action.

Determination

[25] This Court finds as and make the following orders;

(i) The Plaintiff does not have a right of way over the Defendants land, title H320.

(ii) The right of way over land parcel H46 is a valid right of way and should not be obstructed by anyone in any manner whatsoever by the Defendant. The Plaintiff shall, if she so wishes continue to use that right of way.

(iii) The Defendant is given 6 months within which to remove and relocate the septic tank and the soakaway that are encroaching on the Plaintiff's land.

(iv) I make no order for payment of damages for the encroachment mentioned in (iii) above as Plaintiff sold the defendant parcel H320 with full knowledge that the septic tank and soakaway which she had built were encroaching onto her property.

(v) I make no order as to cost.

Signed, dated and delivered at lie du Port on 26 July 2024.

M~\

Judge