Barbier v Hoareau and Another (20 of 2006 ) (20 of 2006) [2007] SCCA 1 (23 August 2007);






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



===========================================


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 24
th
August 2007, Victoria, Seychelles.