Delpech v Gregoretti and Another (3 of 2005) (3 of 2005)  SCCA 14 (28 November 2006);
IN THE COURT OF APPEAL OF SEYCHELLES
COURT OF CIVIL APPEAL
SCA No: 3 of 2005
MONIQUE DELPECH Appellant
1. MARIE-ANGE GREGORETTI
2. MARY MOREL Respondent
Before: Bwana, Hodoul, Domah, JJA
Counsel: Mr. Ally for the Applicant
Mr. Bonte for the REspondent
Date of Hearing: 22 November 2006
Date of Judgment: 29 November 2006
JUDGMENT OF THE COURT
 This an appeal against the decision of the Supreme Court which upheld a plea in limine litis to the effect that the principle of res judicata debarred further pursuit of the civil case no. 4/2004 in the light of the decision in civil case no. 305/96. After what we would say was a faithful examination of the facts as emerged from the pleadings, the Learned Judge found that the three unities were satisfied for a successful plea of res judicata. There was identity of parties, identity of subject-matter and identity of cause of action.
 There are two grounds of appeal as follows:
the findings of the learned trial Judge that the finding of the Appeal Court has clearly resolved the issue of the plaintiff’s right to claim any interest in the reserved portion of land which now allegedly forms part of parcel No V 112 is erroneous and a misinterpretation of the judgment of the Court of Appeal in civil Appeal No. 25/78;
the learned trial Judge erred in his finding that there was identity of cause between the previous action for division in kind in civil side no 305/96 and the action before the Court in civil side no. 4/2004.
 The facts have been rehashed too many times in the course of the history of the dispute concerning this property. It is easy to be bogged down with unnecessary details in this longstanding dispute triggered by a transfer effected in the year 1973 which has already undergone a complete tour of our court system and is now completing its second round. We can reassure both counsel that we have put the materials submitted to us to good use, more especially the cases referred to: Bertier de Savigny 1955 MR 215; Teemooljee & Co. Ltd v Pardiwalla 1975 SLR 39; Pouponneau and Ors v. Otto Janisch 1979 SLR 130; Corporation v. Petrousse 1987 SLR; Hoareau v. Hemrick 1973 SLR; Heirs Rouillard v. Tirant 1983 SLR, Moise v Morin 1993 SLR. Stripped to the very essentials, the facts are as hereunder.
 The appellant is the executrix of the estate of late Donald Delpeche. Before his death, the latter sold a parcel of land (V772) in a manner of his own, under the old law. In the deed of sale, he made a reservation of a portion of it. The area was indicated by reference: it was stated to be an area formerly surveyed under parcel no. V 712. As for the location, it stated: “the location of the area reserved to be by agreement of the parties.” There is no evidence that the parties ever set about locating the reservation, as they had to.
 From then on, the property in that state would pass from hand to hand with the same mention as in the original transfer. It would be first sold to respondent No. 1, Marie Ange Gregoretti. The latter would extract 400 square metres from it and sell that area to Mrs Marie Morel.
 Monique Delpeche brought an action for division-in-kind (civil side 305 of 1996) bringing into cause Marie Ange Gregoretti and Marie Morel. Perera J., after a painful delving into the intricacies of facts and law in the matter took the view that Marie Morel had “an undivided portion of 400 sq. meters in parcel V 1112. Hence … a qualified title as a co-owner of that parcel with” Marie Ange Gregoretti.
 The executrix appealed. The Appellate Court, in a carefully prepared judgment, decided that the area reserved by Donald Delpeche did not amount in law to a co-ownership as defined by the civil code. It stated as follows:
“Put at the highest, but without deciding or pronouncing on the validity of such, the reservation constituted a derogation on the grant to Bongers and may be, so hold by Perera J., an encumbrance on the transfer.” the reservation constituted a derogation on the grant to Bongers and may be, so held by Perera J., an encumbrance on the transfer.”
 The Appellate Court, therefore, allowed the appeal and the judgment of the trial court was set aside.
 The present appellant, thereafter, brought a case before the Supreme Court in the light of the decision of the Appellate Court. The present respondent raised a plea in limine of res judicata, which succeeded before the Judge. Hence this appeal.
 With that history, we may now turn to the grounds of appeal. Ground 1 challenges the decision of the learned Judge in that his findings of the finding of the Appeal Court has clearly resolved the issue of the plaintiff’s right to claim any interest in the reserved portion of land which now allegedly forms part of parcel No V 1112. In actual fact that is barely the case. The dispute was with respect to that property and between the same parties. In terms of the decision of the Appellate Court, it could safely be said that it was resolved but only to the extent that it defined the legal status of the right of appellant in that “the reservation constituted a derogation on the grant to Bongers and may be, so held by Perera J., an encumbrance on the transfer.”
 Clearly, the previous Court of Appeal decision did not resolve the dispute with finality beyond that definition. That is evident from a comparison of the prayers in the 1996 case which provoked the first cycle and the 2004 case which started the second cycle of cases. The previous remedy prayed for was for a division-in-kind which the Court of Appeal stated was not applicable to the case.
 The 2004 case, now appealed from, is a prayer –
“for a judgement –
declaring that the plaintiff is entitled to the reservation; and
appointing a surveyor to distract the reservation from parcel V 1112 and to submit a report to the Court on the distraction for confirmation by the court.”
 It is more than obvious by the transposition set out above that what the present case is all about is a follow-up of the decision of the appellate court. The moment it stated that the facts did not warrant a division in kind on the ground of co-ownership but a claim in equity, it cannot seriously be argued that the matter was resolved with any finality. On that score, the plea of res judicata should have been dismissed.
 With this we come to ground 2 which complains that the learned trial Judge erred in his finding that there was identity of cause between the previous action for division in kind in civil side no 305/96 and the action before the Court in civil side no. 4/2004.
 As the very first paragraph of the judgment of the court of appeal in the 1996 case makes it succinctly clear the action involved many issues. However, it was found to have revolved around just one:
“whether a co-ownership arises as between vendor and purchaser where the vendor sells a parcel of land to the purchaser subject to a reservation to the vendor of a portion of the land to be extracted by agreement of the parties from the land sold to the purchaser.”
 The learned Judge held that there was identity of cause of action. When the decision of the Appellate is analyzed, it is found that there is no identity of cause of action. Suffice it to say that the present case is not one of co-ownership and judicial sale. It is one for distraction, a distraction that has remained pending since the time Donald Delpeche transferred the property in 1973 to Gunther Bongers stating in the transfer deed that “(T)he location of the area reserved to be by agreement between parties,” which was never done.
 To that extent, therefore, it could not be said that there was identity of cause of action between case no. 4/2004 in the light of the decision in civil case no. 305/96. The plea in limine was wrongly decided.
 At the close of the hearing of this appeal, both counsel took the view that it would be in the best interest of all the parties concerned, including those persons who are not parties to this case but who may be very much on site, that the government surveyor be appointed by the Supreme Court so that with all the powers and possibilities at his disposal he can produce a report in the light of which the parties will take a stand as to what would be the best practical solution in this long-standing dispute.
 Considering the special features of this case, originating as it does from the inadequacy of the old law, we also take the view that that would be the best course of action. We, accordingly, direct the Court to appoint the government surveyor for the purpose above-mentioned and proceed to the completion of the hearing on the production of the report. Report to be produced by a date fixed by the court with the agreement of parties.
 For the reasons given above, the appeal is allowed. The decision on the plea in limine is set aside, with a direction that it proceeds as stated above.
S. B. DOMAH
JUSTICE OF APPEAL
I concur: …………………………………….
S. J. BWANA
I concur: …………………………………….
J. M. HODOUL
JUSTICE OF APPEAL
Dated this 29th November 2006, Victoria, Seychelles