Vidot v Laporte (13 of 2004) [2005] SCCA 17 (24 November 2005);

 

IN THE SEYCHELLES COURT OF APPEAL

 

 

SCA No. 13 of 2004

 

In the matter between

 

 

THE ESTATE OF PIERRE ERNEST VIDOT

(Rep. by Mrs. Germaine Amesbury

Of Aux Cap, Mahe, Seychelles) Appellant

 

and

 

EMMANUEL LAPORTE Respondent

===========================================

 

(Before: RAMODIBEDI P; BWANA JA; HODOUL JA)

Heard: 17 November 2005

Judgment delivered: 25 November 2005

 

Counsel: Mrs. Antao for the Appellant

Mr. Boulle for the Respondent

 

 

J U D G M E N T

 

 

BWANA, JA.

 

 

1. The Appellant is the executrix of the estate of the late Pierre Ernest Vidot. She unsuccessfully sued in the Supreme Court for orders that the court direct the Registrar of Lands to rectify the Land Register by removing the name of the Respondent as the registered owner of a parcel of land titled C1391. Instead, she sought for the registration of the said parcel of land to be in the name of heirs of Pierre Ernest Vidot, within fourteen days of the judgment.

 

2. The suite was strongly resisted by the Respondent. In addition to the foregoing, the Respondent did raise two points in limine litis. One such point, namely, that the suit is prescribed, forms the main issue leading to the disposal of this appeal. In raising prescription, it was submitted by the Respondent that since the alleged cause of action (that is the erroneous registration of parcel C1391) arose on 17 July 1985, the present suit is prescribed.

 

3. It was averred in the Supreme Court and repeated in this Court that parcel C1391 had all the registration completed and transferred to the new Register on 17 July 1985. Therefore the instant suit for rectifying the said Register should have been filed within ten years from that date. The Respondent relied on the provisions of section 21(4) and (5) of the Land Survey Act, Cap 109, in support of this averments.

 

Section 21(5) in particular states thus:

 

The period of ten years shall not be suspended by any event or for any cause whatsoever and shall run against all persons without exception notwithstanding anything in any enactment to the contrary.”

 

No doubt, the clear, emphatic and unambiguous form in which sub-section (5) is framed leaves no room for the present Appellant to succeed in her intention to rectify the Register.

 

4. In the course of this appeal Mrs. Antao did concede, and rightly so, to the fact that indeed the suit is prescribed. She did, however, raise the issue of the constitutionality of the findings of the Supreme Court (per Perera J) averring that the Appellant’s constitutional interests were denied. This argument did not, however, help the Appellant’s course, since as was rightly observed by this Court and again conceded by Mrs. Antao, the alleged constitutional issue was not canvassed before either the Supreme Court or the Constitutional Court. Therefore, it could not be raised for the first time before this Court. But then it was realized and correctly so, that reverting to the Constitutional Court also faces a legal hurdle: it is time barred as well.

 

5. In his brief address to the Court, Mr. Boulle did state that since the remedy sought was already prescribed, that disposes of the appeal. Indeed that is the eventual conclusion of this appeal. We do recognize the extensive analysis by the trial judge of the complex issues involved in this case. But, eventually, the final verdict would have centred on the point of prescription. That point, as stated earlier, is not contested by the Appellant. Therefore, this appeal fails. The suit filed before the Supreme Court was already prescribed at the time of its filing. For reasons fully set out above, this appeal is dismissed with costs.

 

 

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S. J. BWANA

JUSTICE OF APPEAL

 

 

 

I concur: ……………………………………….

M. M. RAMODIBEDI

PRESIDENT

 

 

 

I concur: ……………………………………….

J. M. HODOUL

JUSTICE OF APPEAL

 

 

Delivered at Victoria, Mahe, Seychelles this 25th day of November 2005