Delpech v Gregoretti and Another (3 of 2005) (3 of 2005) [2006] SCCA 14 (28 November 2006);







IN THE COURT OF APPEAL OF
SEYCHELLES



COURT OF CIVIL APPEAL








SCA No: 3 of 2005






MONIQUE
DELPECH
Appellant







vs







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







Domah, JA















[1] 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.







[2] There are two grounds of appeal as
follows:










      1. 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;













      1. 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.










[3] 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.







[4] 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.







[5] 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.







[6] 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.







[7] 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.”











[8] The Appellate Court, therefore,
allowed the appeal and the judgment of the trial court was set aside.







[9] 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.







[10] 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.”







[11] 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.







[12] The 2004 case, now appealed
from, is a prayer –







for a judgement –








  1. declaring that the plaintiff is
    entitled to the reservation; and









  1. 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.”








[13] 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.







[14] 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.







[15] 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.”







[16] 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.







[17] 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.











[18] 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.







[19] 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.







[20] 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



AG. PRESIDENT















I concur: …………………………………….



J. M. HODOUL



JUSTICE OF APPEAL











Dated this 29th
November 2006, Victoria, Seychelles