IN THE SEYCHELLES COURT OF APPEAL

HARRY BARBIER -Appellant

v.s

1. BENOIT HOAREAU -1st Respondent

2. GILBERT BARBIER ­-2nd Respondent

SCA No: 20 of 2006

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Before: MacGregor, P., Bwana, Hodoul, JJA

Counsel: Mr. P. Pardiwalla for Appellant

Mr. F. Bonte for Respondents

J U D G M E N T

BWANA, JA

1. The Appellant is the owner of a parcel of land registered as title H2770.
The second Respondent is the registered owner of parcel H1992. The Appellant is at the same time owner of a garage located partly on his parcel H2770 and partly on the adjoining parcel H1992, by virtue of a reservation registered against the latter parcel. The garage is situated next to a big boulder and can be accessed from the public road only by a right of way over H1992.

2. The Appellant instituted an action before the Supreme Court following the second Respondent’s intention to demolish both the garage and the boulder to give way for a road construction. The said Respondent had started the demolition work (thus causing dust and noise) by the time the Appellant filed his claims. He therefore sought a declaration from the trial court, that there exists a right of way on H1992 in favour of the garage. He also sought for an order to restrain the Respondents from obstructing the plaintiff’s access to the said garage or otherwise interfering with right of way over title H1992.

3. Together with their defence, the Respondents raised a plea in limine litis, that, the matter is res judicata, the right of way having been granted by the Supreme Court in its judgment dated 16 November 1990.
There was no appeal by the plaintiff (now Appellant) against that decision of the Supreme Court. It is important to note that in that judgment of the Supreme Court (Cs39/1986), the trial judge adopted the appraiser’s proposals which gave a two meter common right of access for the respective lots. However, the appraiser did state further thus:

“… in view of the position of the garage and the large rock on lot 1, the access has
been proposed around the two obstacles and reduced to one meter. Should the two obstacles be removed, the
proper position of the access road should be two meter along the boundary PH2 – P136 …” (emphasis provided).

4. The trial judge in the instance case did uphold the limine in litis and dismissed the suit and vacated the interlocutory injunction. He also allowed the demolition of both the garage and boulder to give way for a road construction. Hence this appeal.

5. The gounds of appeal may be conveniently grouped into two namely:-

5.1 Whether the principle of res judicata is inapplicable in this case; and

5.2 That the trial court erred in ignoring the right of way exercised by the Appellant on H1992 for many years and instead, the court proceeded to allow the demolition of the garage, boulder and vacate the interlocutory injunction, powers which the trial judge did not have, given the state of pleadings as they were before him.

6. We believe this appeal can be disposed of by considering the second ground of appeal (5.2 supra) above. We are aware of the need to adjudicate on the issue of res judicata but on further reflection, we are of the view that there is need to bring this litigation to its finality. While 5.1 would not provide the desired conclusion, 5.2 will do so. This Court may invoke Rule 31(3) of the Seychelles Court of Appeal Rules 2005, so as to arrive at its decision.

7. The two parcels of land are adjacent to each other. The parties to this suit, who are relatives, seem not to be in good terms. The two proposals for the right of way seem to have exasperated the unfortunate situation. While the Appellant would prefer what he calls the “1 meter right of way around the obstacles”, on his part, the second defendant has agreed to ‘give’ an extra meter free on his property to make the road three meters wide. The grant of the easement document has already been signed.”
In our understanding this grant of the easement does not take on board the views held by the Appellant: the 1 meter one way around the “obstacles” – which would leave both the garage and boulder intact. The “grant” by the Respondents
means that the garage and boulder are to be demolished.

8. During the hearing of the Appeal this Court was informed by Counsel for the Respondents that in order to end this litigation, the Respondents were ready to relocate and rebuild the garage for the Appellant (at their own cost) and compensate him. However this would be possible only if the Appellant agrees to their proposal: to allow the construction of the three metre wide road (through the area where the two “obstacles” are).

9. In our view the judgment in Cs 39/86 did not deal with the issue that we are facing now. It would therefore be proper to hold that the two cases are different, hence the principle of res judicata not applicable. In 39/86 the trial judge did endorse the subdivision of the land. In his own words, he did say -

“I am fully satisfied that the property can conveniently be subdivided as proposed by the appraiser and I accordingly adopt his report and his proposals for subdivision of the land. Harry Barbier is therefore allotted Lot 1 and the petitioner, Therese Hoareau nee Barbier, Lot 4 as proposed … This, it is hoped, should substantially accord with wishes of all concerned at the same time represent a fair and just distribution of the land …”

In the instant case the key issue is where to locate the motorable right of way over the two adjacent parcels referred herein. The Appellant seems to favour the “one meter way around the two obstacles.” The Respondents, on their side, prefer the two meter motorable way through the two obstacles. In so doing, they would remove the said obstacles and grant an additional one meter, to make it a three meter wide motorable road, to be used by the other parcels in the area, as well. The Respondents are willing to relocate the garage at a different part of the Appellant’s land but at their own cost. This court was also informed that permission for the undertaking has already been obtained from Planning Authority for the Respondents to carry out the work.

10. Having carefully considered the issue at hand and the two options available, we do invoke the provisions of Rule 31(3) of the Court of Appeal Rules, 2005 and order the parties to this appeal to reach an agreement on which option should be implemented –

Either the Appellant’s way – that the existing right of way be maintained with one metre right of way around the garage/boulder (the two obstacles) Or the Respondents demolish both the garage and the boulder at their own
cost in order to allow the construction of a three metre motorable road as already approved by Planning Authority. In so doing, the Respondents will have to relocate the garage (at their own cost) on another part of the Appellant’s land.

11. The parties are therefore to report to this Court (at its next session) the outcome.

…………………………………….

S. J. BWANA

Justice of Appeal

…………………………………….

F. MacGREGOR

President

…………………………………….

J. M. HODOUL

Justice of Appeal

Dated this 24th August 2007, Victoria, Seychelles.