Leveille v Pascal (5 of 2004) (5 of 2004) [2005] SCCA 7 (19 May 2005);


IN THE SEYCHELLES COURT OF APPEAL



JEAN JACQUES LEVEILLE Appellant


vs


PAT PASCAl Respondent



SCA No. 5 of 2004

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

(Before: RAMODIBEDI, P; BWANA & HODOUL, JJA)


Counsel: Mr. P. Boulle for the Appellant

Mr. A. Derjacques for the Respondent



Heard on: 13 May 2005


Judgment delivered on: 20 May 2005



JUDGMENT OF THE COURT

(Delivered by Bwana, J A)



1. Pat Pascal, the now respondent, sued Jean-Jacques Leveille before the Supreme Court for orders that Mr. Leveille remove rocks and chain he had used to block a right of way enjoyed by Mr. Pascal. He also sought an order to allow him a quiet and peaceful use of the said right of way. A sum of Sr. 30,000 was also claimed together with costs and interest. The trial court (Karunakaran, J) made the following orders in favour of the plaintiff:

  1. I made an order directing the defendant to remove permanently the obstructions, namely, the rocks and chain he has put up blocking the plaintiff’s right of way on defendant’s land title No. H1585, in order to have access from the public road to the plaintiff’s land title No. H5427.


  1. I grant a permanent injunction preventing the defendant from interfering with the plaintiff’s peaceful use and enjoyment of the said right of way; and


  1. I award a sum of Sr. 2000/- for the plaintiff against the defendant towards loss and damages the plaintiff allegedly suffered because of the obstruction the defendant had put up blocking his right of way.


  1. I award the plaintiff costs of this action.


In an early Ruling dated 20 October 2000, the trial judge had granted an interim mandatory injunction in favour of the plaintiff, ordering the defendant to remove the claim and the rocks which he had placed on the right of way. By virtue of that interim order of the Court, the plaintiff was therefore restored to the “the status quo” ante. Therefore the judgment of the trial judge merely transformed the interim order of injunction into a permanent one.


2. Dissatisfied with the findings of the Supreme Court, Mr. Leveille appealed to this Court, raising the following four grounds in his amended grounds of appeal:-

  1. The findings in favour of the plaintiff in the judgment is ultra petita.


  1. The learned trial judge erred in his interpretation of the law in stating that a right of way can be created by a Court declaration.


  1. The learned trial judge erred in his finding that a right of way has been established under Art. 694 of the Civil Code.


  1. The learned trial judge erred in his finding that the plaintiff has no convenient nor practicable access to the public highway for the private use of his property apart from the access road in dispute and that the existing access road over the defendant’s property is the nearest to the public highway.


However when the parties appeared before us, Counsel for the appellant opted to argue the first ground only – thus abandoning the other three.


3. It is not in dispute that the two properties are adjacent to each other and that, the respondent’s plot is enclaved. Before the Supreme Court, the respondent had sued the appellant after the latter had blocked the alleged existing right of way in the former’s favour bye placing blocks and wire.


When Mr. Boulle submitted before us, it became clear that the issue as to whether or not there is a right of way in favour of the respondent over the appellant’s property is fundamental to the determination of this appeal.


From the proceedings in the Supreme Court we do note further that a visit to the locus in quo was made and the trial judge made reference to it in his analysis of the issues before him. We do reiterate – as we did in SCA No. 2/04 (A. Leon v Volare (Pty) Ltd) – our concern over the drafting of pleadings. The mere skeleton information provided, as in the case at hand, left much to be desired. It does not comform to the requirements of sections 71 to 76 of the Seychelles Code of Civil Procedure. It is trite that parties are bound by their pleadings and that one must not be allowed to depart from what one has pleaded. Doing so, may lead to acclaim of ultra petita as is now alleged in this appeal. The evidence given at a trial must be intra petita. Material facts have to be pleaded as required under section 71 – 76 (supra).


4. We do note further reiterate our views (as e did in the SCA No. 2/04 – supra) on the proper procedures to be followed during a visit locus in quo. We hold that the provisions of sections 88 and 136 of the Seychelles Code of Civil Procedure should be complied with. The information obtained from such a visit should be made part of the record only after complying with the procedures suggested in SCA No. 2 of 2004.


  1. Can it then, be said that the learned judge’s findings are ultra petita? The trial judge made orders as stated under paragraph 1 above. We consider those orders to be on consonance with the prayers sought by the plaintiff. He had to establish the cause of action, the legal rights of he parties and then establish who has breached those rights. In respect of this case, the trial judge was of the view that it was the appellant who had acted unlawfully. The trial judge did reach that decision after analysing several provisions of the law, to which we shall revert hereinafter. In brief, the judge had to determine whether the blocking by the appellant of the alleged right of way was lawful or not. Therefore his final orders were within the pleadings. What a judge discusses in his judgment are matters that, according to us, help him reach his final conclusions. Depending on his writing style, it cannot therefore be said that whatever a judge writes should conform to the pleadings or else it is ultra petita. To hold so will be extending too far that rules pertaining to ultra petita. Only his orders ought to be considered as either being ultra petita or not. It is our view, therefore, that the learned judge’s findings are not ultra petita.


  1. In arriving at his decision it is apparent that the learned trial judge did address his mind to the key issue raised in the course of trial namely, whether the respondent had a right of way over the appellant’s property. Cadastral plans were used the support the divergence views. While, it is correct to hold that surveyors do not create right of way it is equally correct to observe that their words may be used as evidence to show the existence (or not) of a right of way. In this case, the cadastral plans show the existence of a right of way over the appellant’s property. They thus support the evidence of the respondent and other witnesses such as Enos Albert, PW 4 and Reginald Rose, PW 5 that there did exist a right of way.


7. The defendant did raise a defence to the fact the said access road does divide his property in such a way that its utility is minimised. He was therefore ready to offer an alternative route to she plaintiff. No doubt, the defendant had in mind the provisions of Articles 682 and 683 of the Code which state:-


“Art. 682:

The owner whose property is enclosed on all sides and has no access as inadequate access on to the public highway, either for the private or for the business use of his property, shall be entitled to claim from his neighbours as sufficient right of way to ensure the full use of such property ,subject to his paying adequate compensation for any damage that he may cause.”



“Art. 683:

A passage shall generally be obtained from the sides of the property from which the access to the public highway is nearest. However, account shall also be taken of the need to reduce any damage to the neighbouring property as far as possible.


However, it is out view that those provisions would be relevant if the respondent was seeking a right of way from the appellant. What is evident in this case is that there existed such a right of way and the appellant did block it, leading to the litigation before the Supreme Court.


8. We have come to the considered conclusion that the findings by the trial judge in favour of the plaintiff in the judgment is not ultra petita. The orders he made were in accordance wit the prayers sought. We therefore dismiss this appeal with costs.



……………………………………

S. J. BWANA

JUSTICE OF APPEAL




I concur: ……………………………………

M. RAMODIBEDI

PRESIDENT



I concur: ……………………………………

J. HODOUL

JUSTICE OF APPEAL




Delivered at Victoria, this 20th May 2005