Leveille v Pascal (5 of 2004) (5 of 2004)  SCCA 7 (19 May 2005);
THE SEYCHELLES COURT OF APPEAL
No. 5 of 2004
RAMODIBEDI, P; BWANA & HODOUL, JJA)
P. Boulle for the Appellant
A. Derjacques for the Respondent
13 May 2005
delivered on: 20 May 2005
OF THE COURT
Bwana, J A)
Pascal, the now respondent, sued Jean-Jacques Leveille before the
Supreme Court for orders that Mr. Leveille remove rocks and
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
right of way. A sum of Sr. 30,000 was also claimed together with
costs and interest. The trial court (Karunakaran, J)
following orders in favour of the plaintiff:
I made an order
directing the defendant to remove permanently the obstructions,
namely, the rocks and chain he has put up blocking
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
I grant a permanent
injunction preventing the defendant from interfering with the
plaintiff’s peaceful use and enjoyment of
the said right of
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.
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,
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.
with the findings of the Supreme Court, Mr. Leveille appealed to this
Court, raising the following four grounds in his
amended grounds of
The findings in
favour of the plaintiff in the judgment is ultra petita.
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.
The learned trial
judge erred in his finding that a right of way has been established
under Art. 694 of the Civil Code.
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
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
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) –
over the drafting of pleadings. The mere skeleton information
provided, as in the case at hand, left much to be desired.
not comform to the requirements of sections 71 to 76 of the
Seychelles Code of Civil Procedure. It is trite that parties
bound by their pleadings and that one must not be allowed to depart
from what one has pleaded. Doing so, may lead to acclaim
petita as is now alleged in this appeal. The evidence given at a
trial must be intra petita. Material facts have to be
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
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.
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.
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
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.
was therefore ready to offer an alternative route to she plaintiff.
No doubt, the defendant had in mind the provisions of Articles
and 683 of the Code which state:-
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.”
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
The orders he made were in accordance wit the prayers sought. We
therefore dismiss this appeal with costs.
Victoria, this 20th May 2005