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