Esparon & Anor (MA 246 OF 2024 (Arising in CS 92 of 2024)) [2024] SCSC 189 (19 November 2024)

Carolus J

Background, Pleadings and Evidence

1. This Ruling arises out of an ex-parte Notice of Motion (MA 246 of 2024) itself arising in CS92 of 2024 commenced by way of plaint. In terms of the Notice of motion the applicants (plaintiffs in the principal suit) seek “an injunction prohibiting that (sic) Respondent from construction (sic) a gate and a fence in the right of way of the 1^st and 2^nd Applicant (sic) and to cause the 1^st and 2^nd Respondent (sic) to demolish any construction already started until final determination of the case”.
2. According to the plaint in the main case, the plaintiffs (applicants in the Notice of Motion) are co-owners of land parcel V3509 at Foret Noire, Mahe which was transferred to them on 4^th May 1996. The defendants in the principal suit Randolph Laljee and Roland Laljee own land parcels V18043 and V18044 respectively, which are subdivisions of parcel V3508, but there is no evidence as to when those parcels were transferred to them.
3. It is averred that from the time the parcels were allocated to their respective owners, a right of way was allocated to parcels V3508 (parent parcel of V18043 and V18044) and V3509. The right of way was created in 1989 (when parcels V3508 and V3509 were transferred to the “New Land Register”) expressly for the purpose of the owners of parcels V3508 and V3509 to have access to the Foret Noire Road. It is averred that the right of way is a concrete drive which branches off the tarmac access road onto parcel V18044 through which it continues, leading to parcel V18043. This drive provides access to the plaintiffs’ residence on V3509 and has been used by them for that purpose for a continuous period of about 40 years. It is further averred that the defendants are in the process of erecting a gate at the entrance of the access drive and a fence blocking the entrance to the plaintiffs’ house, and that once the fence and gate are completed the plaintiffs will be completely cut off from accessing the main road at Foret Noire.
4. The plaintiffs seek the following remedies from this Court in terms of the plaint:

1. Order that the access road is a right of way to their property parcel V3509 and
2. Order the 1^st and 2^nd Defendants to demolish the gate and the fence to permit the 1^st and 2^nd Plaintiffs to continue accessing their home and
3. Order the 1^st and 2^nd Defendants to pay the costs of this suit.

 

5. Both the Notice of Motion (MA 246 of 2024) and the plaint in the principal suit (CS 92 of 2024) were filed on 11^th October 2024. The Notice of Motion was supported by an affidavit sworn by the applicants on 7^th October 2024 and relevant exhibits exhibited thereto. Thereafter, on 7^th November 2024 a second Notice of Motion (MA271 was 2024) was filed seeking leave of the Court to file a further affidavit in support of the original Notice of Motion in MA 246 of 2024 which was allowed. This further affidavit dated 5^th November 2024 is also sworn by the applicants.
6. In their first affidavit of 7^th October 2024, the applicants basically repeat what they have averred in their plaint (see paragraphs [2], [3] and [4] hereof). In addition, they aver that the defendants started erecting the fence and gate on 7^th October 2024 and the construction is advancing rapidly. They therefore aver that it is it is urgent and necessary that an injunction is issued stopping the construction and ordering the demolition of the construction already erected until final determination of the case. The also state that they are both elderly persons of ill health and need the access road to move to and from their house as this is the only access to their home and it is therefore in the interests of justice that the Court orders the injunction. Exhibited to the affidavit are the title deed to Title V3509, Certificates of Official Search in respect of Titles V18043 and V18044, the Cadastral Plan of Title V3509 as well as photographs of constructions under way.
7. In their further affidavit dated 5^th November 2024, the applicants aver that construction of the fence and gate which the defendants started erecting on 7^th October 2024 is now complete and they have been blocked completely from exiting their home by way of a motorable access. They state that there is a serious issue to be tried in the case, namely that they are seeking a declaration that they have a right of way over parcel V18044; that it will be more convenient for the court to order demolition of the wall than not, pending the determination of the case; that the wall serves no useful purpose for the respondents and has been erected in bad faith with the sole aim of causing inconvenience to them. The applicants further state that damages will be inadequate to compensate them for the hardship that is being caused by the erection of the wall: their son’s car has been enclosed in their yard with no way of removing it, and they are forced to use a small gate at the back of their house to access and exit their property which is difficult as they are both incapacitated and of advanced age.
8. The 1^st applicant Mrs Veronica Esparon testified at the hearing of the motion. She stated that the applicants have been living on V3509 since 1984 when their house was built. They used a right of way located on V3508 to access their property. At the time the right of way was only a footpath – it was not a concrete road. The same right of way was also used to access V3508 which was later transferred to the Laljees. 
9. Mrs Esparon stated that the house on V3509 belonging to the applicants is closer to the main road than the defendants’ houses which are located further along. She and her husband only use a small part of the right of way on what used to be V3508 to get to their house and do not have to go past the defendants’ houses to get to theirs.
10. She produced a detailed aerial survey plan (Exhibit P1) of parcel V3509 with partial views of parcels V18043 and V18044 where they adjoin parcel V3509. She explained that before there were two entrances to her property but that she had closed one of them and built a wall in its place. Currently, to access the entrance to her property she uses the concrete drive located on V18044 which branches off from the tarmac access road leading to and from the main road, but that the defendants had placed a gate across the concrete drive at the point where it connects with the tarmac access road so that she could not access the drive and consequently the entrance to her property. They had also built a wall blocking the entrance to her property.
11. She further explained that because of the gate and the wall erected by the defendants, there is no motorable access to her property, and that she needs a vehicle to get around because of her various medical issues. She stated that the applicants’ son also leaves his car at their house because he uses his company car, and that the car is blocked on their property by the wall. She states that there is no way to build another motorable access to her property or for cars to get to and from her house other than through the concrete drive on V18044.
12. The applicants can only access their property on foot through a small gate at the back of the property which leads to their kitchen. They used to take care of some old ladies, and that gate was placed there in case of an emergency with the ladies, so that they could be informed quickly of the same and take the necessary action speedily.
13. Mrs Esparon explained that the applicants had allowed the Government to use part of their land to enlarge the road which goes around and to the back of their property to provide an access to a housing estate which is located further back. She emphasised that it is impossible to have a motorable access to their house from the back their property through that road as they have another house there which Mr Esparon’s now deceased brother used to occupy and which they are using as a store.
14. She stated that there had been no problems between the applicants and the defendants up until 2020, where there was some disagreement regarding some foliage which was being taken care of by the applicants but extended onto the defendants’ land. There were also some other issues of encroachment by the defendants and removal of beacons demarcating the applicants’ land. In 2021 the defendants put up a chain where the gate has now been installed but then removed it. Both the police and the Planning Authority stated it should be put after her entrance so as not to block it.  She stated that the wall was being built in bad faith and out of malice as it is being built now rather than before. She stated that she does not cause any inconvenience to the defendants by using the concrete drive to access her property, that her own entrance is only 2 to 3 metres from the beginning of the driveway and that she does not go further than that.
15. Mrs. Esparon stated that the works by the defendants started two weeks prior to the hearing of this motion, and that the wall was completed within two days because they used Bangladeshi workers who worked until late at night. She explained that Exhibit A5 is a photograph showing the entrance to the applicants’ property with walls on each side before the wall was erected, and that Exhibit A6 is a photograph showing the space in front of that entrance where there are steel bars to support the wall that was erected.
16. Mr Ferley appearing for the applicants, stated in his oral submissions that the injunction application is made pursuant to sections 304 and 305 of the Seychelles Code of Civil Procedure. He stated that the applicants have filed a plaint seeking a declaration that the access road over parcel V18044 belonging to the 2^nd defendant is a right of way to their property parcel V3509. He submitted that the right of way was allocated for the use of parcel V3509 and V3508 (which was subsequently subdivided into parcels V18043 V18044) and that the applicants have been using such right of way in excess of 40 years. He pointed out that the cadastral plan of parcel V V3509 (exhibited as Exhibit A4) on which the right of way features dates back to 1989, but conceded that the right of way in question is not registered. Mr Ferley also stated that there is no alternative vehicular access to the applicants’ property, but that there is a small gate at the back of the applicants’ house which Mrs Esparon the 1^st applicant has difficulty using given her medical condition.
17. He addressed the Court on the requirements for the granting of an injunction as per the case of Ex parte Socrate (MA 23 of 2022) [2022] SCSC 258 (22 March 2022), in which the Court relied on the case of American Cynamid Co. v Ethicon Ltd [1975] A.C. 396 (05 February 1975). He submitted that according to these cases, in determining whether to grant an interlocutory injunction or not, the court is guided by the following: (l) a serious question to be determined in the main suit; inadequacy of damages to compensate the applicants if the injunction was not granted and (3) the balance of convenience.
18. Mr Ferley submits that the serious question to be determined in the main suit is whether the applicants have a case of acquisitive prescription, presumably on which they are grounding their claims in the plaint for a declaration that they have a right of way over V18044 and an order for the defendants to permit them to continue accessing their property through that right of way. He submitted that the applicants cannot access their property because of the gate and wall erected  by the defendants which prevent them from doing so, and that they are elderly people who need motorable access to their property which they have been enjoying for more than 20 years. He further submits that no amount of money will compensate the applicants for the predicament that they find themselves in and the inconvenience they are suffering as they are basically walled into their premises. Furthermore their son who usually takes them to hospital and other places cannot remove his car from the premises as it has also been walled in. On the other hand, if the injunction is granted no inconvenience will be suffered by the defendants as there is no useful purpose for the wall and gate, which Mrs Esparon has stated was only built to harass and inconvenience her.

Analysis

19. The present application is made under sections 304 and 305 of the Seychelles Code of Civil Procedure which provides:
    1. 1. 304. It shall be lawful for any plaintiff, after the commencement of his action and before or after judgment, to apply to court for a writ of injunction to issue to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and such writ may be granted or denied by   the said court upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as shall seem reasonable and just. Emphasis added.

 

1. 1. 1. 305. Application under section 304 shall be made by way of motion in court upon due notice given to the defendant.

 

20. The above provisions provide for the making of an application for a writ of injunction upon
    due notice given to the defendant. However according to established case law, such an
    application may be made ex-parte in cases such as the present one where there is urgency. Vide Bonte v Innovative Publication (1993) SLR 38, Colling v Labrosse (200 I) SLR 236, Government v Ramrushaya (2003). The urgency here is shown by the applicants’ claim that the entrance to their property is blocked and they are unable to have access to the main road.
21. According to local authorities “The power to grant an interlocutory injunction is a discretionary remedy inherited from the jurisdiction of the High Court of England" (Seychelles National Commodity (1983) SLR 133; Air Seychelles v Seychelles Civil Aviation Authority (2008) SLR 93). In that regard section 6 of the Courts Act further provides:

6. Equitable powers

The Supreme Court shall continue to be a Court of Equity and is hereby invested with powers, authority, and jurisdiction to administer justice and to do all acts for the due execution of such equitable jurisdiction in all cases where no sufficient legal remedy is provided by the law of Seychelles.

22. In the American Cyanamid case (supra) the court developed the following guidelines regarding matters which a court should consider when determining whether or not to grant an interlocutory injunction:
    1. 1. 1. Whether there is a serious question to be tried;
          2. Whether an award of damages would be an adequate remedy;
          3. The balance of convenience; and
          4. Whether there are any special factors.
23. These guidelines have been followed by the Seychelles courts in a number of cases, to name a few: Pest Control v Gill (1992) SLR 177; Delorie v Dubel (1993) SLR 193; Techno International v George SSC 147/2002, 31 July 2002; Dhanjee v Electoral Commissioner (2011) SLR 141; Nathalie Lefevre v Beau Vallon Properties Ltd & Ors (MA154/2018) [2018] SCSC (27 June 2018); Ex parte Rodionov (CS121/2021) (CS121/2021) [2022] CSCS 300 (01 April 2022)). They are summarized as follows in Exeter Trust Com v Indian Ocean Tuna Limited (253 of 2009) [2010] SCSC 89 (26 May 2010):

…  I note in matters of interlocutory injunctions, the Court must be satisfied prima facie that the claim is bona fide, not frivolous or vexatious; in other words, that there is a serious question to be tried vide: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 at p. 510. Unless the materials available to the court at the hearing of the application for an interlocutory injunction, disclose that the petitioner has a real prospect of succeeding in his claim at the trial, the court should not go on to consider whether the balance of convenience lies in favour of granting or refusing the interim relief that is sought. In considering the balance of convenience, the governing principle is whether the petitioner would be adequately compensated by an award of damages, which the respondent would be in a financial position to pay, and if so, the interim injunction should not be granted. Where there is doubt as to the adequacy of remedies in damages available to a party, the court would lean to such measures as are calculated to preserve the status quo.

 

24. This Court will now proceed to consider the factors set out in American Cyanamid in light of the facts of the present case, beginning with whether there is a serious question to be tried in the main case.
25. The remedy sought in terms of the plaint is a declaration that the applicants/plaintiffs have a right of way through the concrete drive on parcel V18044 to their property parcel V3509, and consequently they also seek an order for the removal of the gate and demolition of the wall on parcel V18044 which prevents them from using the right of way and accessing their property. In his submissions, counsel for the applicant stated that the applicants claim to a right of way over parcel V18044 is based on acquisitive prescription as the parties have lived on parcel V3509 and used that right of way for 40 years. Although they do not state in their plaint that their claim is made on the basis of acquisitive prescription they state at paragraph 5 thereof that “[t]he said access right of way has been used by the 1^st and 2^nd Plaintiffs to access their home for a continuous period of about 40 years”.
26. In Waye- Hive v Welch Civil Appeal SCA 07/2013 (Appeal from Supreme Court Decision 36/2008) delivered on 17^th April 2015, Msoffe JA identified the question in issue as “whether the right of way in issue can be acquired by prescription …  In other words, the issue is whether [the appellant] has acquisitive prescription over the property after possessing it for a period of over 20 years”, and proceeded to state the following:

(12)  With respect, the answer to the above issue is simple and it is in the negative.  Article 691 is very clear on this.  It states:-

 

Non-apparent continuous easements and discontinuous easements, apparent or non-apparent, may not be created except by a document of title.

Possession, even from time immemorial, is not sufficient for their creation.

[Emphasis added.]

 

(13) So, a right of way is a real right.  But it requires a document of title under Article 691. Therefore, it can never be created by possession even if the possession was from time immemorial ─ See Payet v Labrosse and Another [1978] SLR 222, Delorie v Alcindor and Another [1978] – 1982] SCAR 28 and Sinon v Dine [2001] SLR 88.

 

(14) Under the French law of property, from which the Seychellois law of property originates, it must be remembered that the guiding principle is the concept of the absolute and inviolable property rights of the owner.  This is expressed in Article 545 of the Civil Code of Seychelles which provides that:

 

No one may be forced to part with his property except for a public purpose and in return for fair compensation.  The purposes of acquisition and the manner of compensation shall be determined by such laws as may from time to time be enacted.

 

(15) The Court de Cassation has in a recent case reaffirmed the strict application of this rule (Cour de Cassation arrêt of 10 novembre 2009. Civ. 3 ème 10 novembre 2009 Pourvoi n˚ 08-17526).

 

(16) It is for this reason that the provisions relating to rights of way and encroachments are expressly provided for with strict limitations.  Insofar as rights of way are concerned, the guiding provisions of the Civil Code expressly refuse to allow acquisitive prescription.  As we have stated rights of way can only be created by a title deed.  (Article 691 Civil Code of Seychelles.)  (supra)

 

(17) The other impediment in the case militating against a claim for prescription is the fact that the Appellant obtained permission to use the driveway.  Permission negates acquisitive prescription as a matter of law: See Seychelles Development Corporation v Peter Morel, SCA 8 of 2002.

27. It is clear from the above that the applicants cannot claim a right of way on the basis of acquisitive prescription. They have not averred in their plaint that the right of way that they claim to have has been created by a title deed either. However I note that at paragraph 6 of the plaint they have averred that once the construction of the fence and the installation of the gate are completed they will be “completely cut off from accessing the main road at Foret Noire”. It seems that the applicants/plaintiffs could also be claiming a right of way under Article 682 of the Civil Code on the basis that their property is enclosed. Article 682 provides that -

(1)   An owner whose property is enclosed on all sides, and has no access or inadequate access on to the public highway, either for the private or business use of the property, may claim from neighbours a sufficient right of way to ensure the full use of such property.

 

(2)   The owner shall pay the neighbours adequate compensation for any damage caused by the right of way.

 

(3)    Where an owner has been deprived of access to a public road, street or path in pursuance of an order converting a public road into private property, the person who has been granted the property must provide a right of way to the deprived owner without compensation.

 

(4)    An action for compensation under this article may be barred by prescription but the right of way shall continue in spite of the loss of such action.

28. Article 682 would only apply if the applicant/plaintiffs’ property V3509 is “enclosed on all sides, and has no access or inadequate access on to the public highway …”. A close examination of Exhibit P1 shows that this is not the case as it seems that access is possible from the northern and western boundaries of the property. Mrs Esparon, in her testimony has contented herself with saying that it is impossible to have a motorable access from the back of her property (western boundary) because there is another building at the back of her house, but has failed to explain to the satisfaction of this court why she cannot access her property on the northern and western boundaries of the property, which was incumbent on the applicants to do to justify the granting of their application. Furthermore, on Mrs Esparon’s own admission there used to be two entrances to the applicant/plaintiffs’ property but that they closed one off and built a wall in its place. No explanation was given as to why this was deemed necessary.  Mrs Esparon has also stated that access to and from her property on foot may be obtained by means of a gate at the rear of the property but that this cannot be used as a vehicular access. She further claims that it is not convenient for her and her husband to use such access due to their medical conditions. She has stated that she is practically blind from cataract and glaucoma in both eyes and that both she and her husband have heart problems. The court has observed that Mrs Esparon has some mobility issues but no evidence has been brought in regards to her and her husband’s alleged health problems or to show the state of the access through the gate at the rear of the property and how that is inconvenient for her and her husband to use. As to their averment that their son’s car has been blocked in on their property by the wall, although the wall and the gate seem to have been erected quite quickly, it appears that the applicants/plaintiffs were aware that preparations were being made for a wall to be built but took no action to ensure that the car was moved from the property before it was completed: They aver in their plaint that the defendants started works on 7^th October 2024 i.e. 4 days before the date of filing of the plaint and injunction application on 11th October 2024. At the time of filing the defendants were still in the process of building the wall but had not yet completed the same, as shown by the photographs exhibited. As noted injunctions are an equitable remedy and equity aids the vigilant and not the indolent.
29. The Court when considering an interlocutory injunction is not concerned with the merits of the Plaint, but only with whether the applicant has an arguable case on the material before it. For the reasons given above, this Court is not satisfied on the face of the plaint and on the basis of the affidavit in support of the Notice of Motion and documents exhibited that the requirement of a serious issue to be tried in the main case has been satisfied.
30. In Exeter Trust Com v Indian Ocean Tuna Limited (supra) the Court stated that “[u]nless the materials available to the court at the hearing of the application for an interlocutory injunction, disclose that the petitioner has a real prospect of succeeding in his claim at the trial, the court should not go on to consider whether the balance of convenience lies in favour of granting or refusing the interim relief that is sought.” Given this court’s finding at paragraph [29] above that it is not satisfied that the requirement for a serious issue to be tried in the main case is satisfied, there is therefore no need to consider adequacy of damages or the balance of convenience or to proceed further with this application. However I still wish to make some observations on these two points.  
31. In American Cyanamid (supra) Lord Diplock explained the following in regard to an award of damages being an adequate remedy:

... the governing principle is that the court should first consider whether, if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable would be [an] adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If the damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in such a financial position to pay them, there would be no reason this ground to refuse an interlocutory injunction.

32. The applicants/plaintiffs have stated in their additional affidavit of 5^th November 2024 that damages will be inadequate to compensate them for the hardship that is being caused by the erection of the wall as their son’s car has been enclosed in their yard with no way of removing it, and they are forced to use a small gate at the back of their house to access and exit their property which is difficult as they are both incapacitated and of advanced age. I note that they have made no claim for damages in their plaint. Neither have they addressed the issue of whether, if the defendants were successful in establishing their right to install the gate and construct the wall in the main case, they would be adequately compensated under the applicants/plaintiffs’ undertaking as to damages for the loss that the defendants would have sustained by being prevented from doing so pending determination of the main case. In fact no undertaking has been given by the applicants/plaintiffs in that regard. Furthermore there is no evidence adduced as to their capacity to pay such damages to the defendants. In the circumstances this Court fails to see how, even if it had found that there was a serious issue to be tried in the main case, it could have granted the injunction on the basis of adequacy of damages to be paid to the defendants in the event that they won the main case.
33. Lord Diplock further stated the following in regards to the balance of convenience:

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

 

Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.”

34. The applicants/plaintiffs in their further affidavit of 5^th November 2024, aver that it will be more convenient for the court to order demolition of the wall than not to, pending the determination of the case. They state that the wall serves no useful purpose for the respondents and has been erected in bad faith with the sole aim of causing inconvenience to them. As stated by Lord Diplock in American Cynamid,“[i]f the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial”. On that basis, even if I had found that there was a serious issue to be tried in the main case, I could not have found otherwise than that there is a greater risk of injustice being caused to the defendants by granting the injunction than to the applicants/plaintiffs by refusing to grant the injunction. In the latter case the defendants would have to remove their gate and demolish their wall and subsequently re-install the gate and rebuild the wall if they succeed in the main case. In those circumstances the balance of convenience would lie in favour of the defendants.

Decision

35. For the reasons given above, the application for interlocutory injunction is dismissed.

 

 

Signed, dated and delivered at Ile du Port on 19^th November 2024

 

____________

Carolus J