Bantele-Lefevre v Lanza (SCA 43/2017) SCCA (16 October 2020);

Flynote: 
Headnote and Holding: 

Judgment by consent. 

ORDER

1.  The Appeal is allowed.

2.   The Supreme Court Ruling of 4 September 2017 and the Court Order of 16 May 2018 are

quashed in their entirety

3.  The case is remitted to the Supreme Court, before the same learned Judge, to be either heard afresh or for the court to enter a judgment by consent in terms of section 131 of the Seychelles Code of Civil Procedure, as the case may be.

4.  A copy of this judgment shall be sent to the Land Registrar, forthwith.

No order as to costs is made

 

 

JUDGMENT

 

F. Robinson (J.A)

 

1.         This is an appeal to set aside" the conditions on the termination of the right of way" ordered by a learned Judge in paragraph [4] of his ruling of 4 September 2017, hereinafter referred to as "The Ruling". The Ruling is expressed to have been made according to the agreement of the respondent and the appellant in the course of court proceedings in a matter wherein the appellant, was the respondent, and the respondent was the petitioner. The appellant is also asking the Court of Appeal of Seychelles for costs and to make any other order that the Court of Appeal sees fit.

 

The proceedings before the Supreme Court

 

2.         Veronica Lanza, the respondent, who is the aunt of Marisa Bantele-Lefevre, the appellant, made an application to the Supreme Court by way of petition supported by affidavit, under section 107 (2) of the Immovable Property Judicial Sales Act Chapter 94, for parcel V4648 situated at Beau Vallon, Mahe, Seychelles, of the extent of 648 square metres (hereinafter referred to as the "Property"), to be divided in kind between them.

3.         AH-KONG Land Surveys had divided the Property into two parcels (parcel V18928 and parcel V18929) as illustrated on a plan drawn up in January 2013, showing the proposed subdivision of the land comprised in the title no V4650 (sic), situated at Beau Vallon, Mahe. It is common  cause that parcels V 18928 and V 18929 are sub-divisions of the Property.

4.         The appellant's answer to the application objected to the division in kind on the basis that the plan of AH-KONG Land Surveys did not illustrate a right of way. The appellant pleaded that a new plan should be drawn up, setting out a right of way across the property for vehicle access to and from the public road.

 

5.         In  the course of the respondent's examination-in-chief, the respondent and the appellant through their respective Counsel agreed to settle the matter, upon which the testimony of the respondent was discontinued.

6.         After that, Veronique Bridgitte Lanza, the daughter of the respondent, testifying on behalf of the respondent, testified in-chief to the effect that she is the owner of parcel V5587, and that she is desirous of giving a right of way across parcel V5587 to parcels V18928 and V 18929. She tendered in evidence, a document, dated 4 September 2017, exhibit P7, which contained the conditions to which the proposed right of way would be subjected.

7.        In  the course of the testimony of Veronique Bridgitte Lanza in-chief, the learned Judge entered the discourse -

 

"COURT CONTINUES

[ ...]

Q. Do you wish these conditions to be entered as restrictions under the relevant provisions of the Land Registration Act?

A. Yes.

Court: Any other witnesses, Mrs Benoiton? A.  Mrs Benoiton: No, my lord.

Court: So, what do the parties propose now?

Mr Bonte: Now I would like the Court to enter judgment  infavour  of the granting of the right of way.

Court: As per the consent of the Court today

Court: So I will reserve judgment? Mr Bonte: Yes".

 

8.         After that, the learned Judge, in The Ruling, made orders based on the agreement of the respondent and the appellant that parcels V 18929 and V 18928 would benefit from a right of way across parcel V5587. The record of proceedings revealed that the appellant did not testify. It is worthy of note that the learned Judge referred briefly to the testimony of

 

Veronique   Bridgitte  Lanza  in The Ruling.  He proceeded  to find,  based  on the agreement of the respondent  and the appellant,  that this right of way would disenclave  parcels  V18929 and V18928.  Further,  the learned  Judge stated in The Ruling  -    "[I} ...  [i]twas  agreed that it  will  dispose   of  the  cause  of  action  filed   between   the  parties   to  their full  and final satisfaction, and that they would be bound by any ruling of this Court to that effect". He proceeded to make the following  orders  -

 

"[3} The Court therefore  orders that as of today a right of way will henceforth  exist encumbering   Parcel  V5587 belonging  to Ms  Veronique  Christina  Lanza  in favour of parcel   VI8928   and  VI 8929, belonging   to the Petitioner   and  the  Respondent, respectively.

[4} The "assiette de passage"  of this right of way will exist starting from  the disused Beau  Vallon  beachfront    road now known  as (the Golden  Mile  Promenade)   and it will end at Parcel  VI 8929. This right  of way is subject  to the following   conditions (a) It shall  be a motorable  and pedestrian   used right of way only for  the private  use

of parcels   VI8928   and  VI8929   (b)  This  right  of way  would  end  if Mrs  Marisa

Bantele   Lefevre   decides   to  transfer  parcel    VI8929   onto  any  other  persons   or amalgamate   the said parcel  to any other parcels.

[5} The Land  Registrar  is ordered  to enter  this right  of way as an encumbrance   a restriction    against   parcel    5587   in  favour    of   Parcel    VI8925    and   VI8929 accordingly

[6}I  make  no order  as to cost".

 

The appeal proceedings

 

9.        The appellant has appealed against" the conditions  on the termination   of the right  of way"

ordered by the learned Judge in paragraph [4] of The Ruling, on two grounds-

"(1) The Learned  Judge  erred  in setting  the conditions  on the right  of way as such conditions  would  render parcel   VI8929  enclaved.

(2) The Learned  Judge  erred  in setting  right  of way  conditions   that  are based  in personam   instead  of in rem. "

10.      At the appeal on the 5 August 2020, Counsel for the respondent informed us that the respondent had filed an ex parte  application, MA64/20  18, before the Supreme Court, on the  12 March 2018, to amend The Ruling, and that the learned Judge had granted the application.  For his part, Counsel for the appellant informed us that he was unaware of the

 

said application,   and requested  an adjournment  to consider  the appellant's  position  in light of this information.  As we were also unaware  of the existence  of the application,  we viewed it necessary  to grant  Counsel's  application  for an adjournment.

11.      At the hearing  of the appeal  on the 29 September  2020, Counsel  for the appellant  informed us that the Court  Order  of  16 May 2018,  did not affect the rights  of the appellant  and had no bearing  on the issues  to be decided  at the appeal.

12.       I note that the ex parte application had asked the learned Judge to order the Land Registrar to register parcels V 18928 and V 18929 in the names of the respondent and the appellant, respectively. The learned Judge by Court Order of 16 May 2018, had amended The Ruling, by ordering the Land Registrar to "registeproperty V18928 in the name of Veronica Lanza and property  V18929 be registered in the name of Marisa-Bantele-Lefevre ".

13.      It is against this background that I consider the merits of the appeal.

14.      After having scrutinised The Ruling and the record of proceedings, I have noted that the learned Judge had made orders in The Ruling, which encapsulated the agreement of the respondent and the appellant, but had not adjudicated on any evidence. I observe that the grounds of appeal and the heads of argument submitted on behalf of the appellant challenged "the conditions on the termination of the right of way", ordered by the learned Judge in paragraph [4] of The Ruling, on the basis that he had reached wrong conclusions. In light of this curious situation, I have identified the issue to be whether or not the procedure adopted by the learned Judge in the present case was legally correct. Before I consider the question at issue, I turn to the law of Seychelles dealing with the procedure for entering ajudgment  by consent, which will assist a better understanding of the issue for consideration.

15.       It is settled law that the procedure for entering a judgment by consent under the law of Seychelles is contained in section 131 of the Seychelles Code of Civil Procedure, which provides -    "131. Theparties may at any stage of the suit beforejudgment, appear in court

 

and file  a judgment    by consent  signed  by both parties,   stating  the  terms  and  conditions agreed  upon  between  them  in settlement  of the suit and the amount,  if any,  to be paid  by either party  to the other and the court, unless it sees cause not to do so, shall give judgment

in accordance   with such  settlement"   see, for example, the Court of Appeal case of  Gill v Freminot   and   anor   SCA   4  oj  2006   (29 November  2006).  I  respectfully  adopt  the pronouncement in Gill, supra,  and opine that it removes much of the misunderstanding about the procedure  for entering a judgment  by consent, which has prevailed in this jurisdiction.

16.       I pause there to consider the pronouncement of the Court of Appeal in Jessley  Cecile  v M T  Rose  Ors SCA  8 oj 2009  (14 August 2009) and Gill, supra,  in which the Court of Appeal opined -    "the court  agreement   reached  between  the parties   to a dispute  [under section 131 of the Seychelles Code of Civil Procedure] results  in a "contrat judiciare"".   I respectfully disagree with this pronouncement. I give reasons as to why I disagree.

17.       In Jessley  Cecile, supra,   the Court of Appeal's pronouncement  was supported by the French Jurisprudence and Doctrine. The Court of Appeal stated at paragraphs [29] and [30] of Jessley Cecile, supra  -

 

"[29} On  these   matters,    We  are   comforted   to  read   identical   pronouncement Jrom     French      Courts     as    may     be    gathered     from   Dalloz,     Contrats    et Conventions,   Jugements   et Arrets,  2673, at para  238:

"Le contrat judicia  ire (suppose)   un accord  entre les parties  constate par  Ie juge         "I Casso Soc.  19juin  1958: J  C. P. 58, IV, ed. G., 113; Bull.  Civ. IV, no.  753, p. 559)

[30}   The above proposition   of law expressed  by Frenchjurists    on the decisions  oj the Cour  de Cassation  we regard  as persuasive   authority  Jor  our jurisdiction.   As may  be  seen at para.   238. (ibid),  French  Jurisprudence    and  Doctrine   are  also agreed  that:

"Lorsque, par  conclusions  regulierement   signifiees,   le deJendeur  a declare accepter   la demande   et a demande   acte  de son  ojJre, it y  a eu  entre  les

 

parties   echange  des  consentements   dans  les conditions   qui mettent fin  au litige  et Ie tribunal  ne peut  que consacrer  cet accord: 2

Trib. Gr. Inst. Seine  5 mai 1961:  Gaz. Pal.  1961,2,341).    " Verbatim

18.       The  French  Jurisprudence   and  Doctrine  referred  to in paragraph   [17] hereof,  are agreed that the two fundamental   elements  required  for the formation  of a contrat judiciare   are the convention  of the parties  and the constatation  by thejuge.   The role ofthejuge    is to donner acte'  to the agreement  of the parties Dalloz Repertoire  de Procedure  Civile et Commerciale Tome I Absence  - Exploit  Paris Jurisprudence   Generate  Dalloz  Contrat  Judiciare  n° 21 at page 676, states  -

 

"21. [... ]. Le juge joue alors le role d 'un officier public, tel un notaire. II suffit de sa signature  et de celle du greffier pour parfaire  le contrat. La signature  des parties  n'est pas necessaires   (Req.  28 mars  1866,  D. P.  66.  1. 494  ; Civ.  9 avr.

1866, D. P. 67. 1.327;    21 mars  1882, D. P. 83. 1.214;   [. ..). En outre,  la decision ne comporte  pas  a proprement   parler   de motifs;  Ie juge   se  borne  a rappeler  les

elements   de  I 'accord  intervenue   entre  les parties   et  leur  en  donne  acte  dans  le dispositifs"."   Emphasis  supplied

 

Concerning   thiprocedure,   French  Jurisprudence   and Doctrine,   as gathered  from  Dalloz Repertoire   de  Procedure    Civile   et  Commerciale'    n"   21,  22,  25,  are  agreed   that  the convention   of  the  parties   prevails,   and  that  as  a  convention,   the  contrat  judiciare,    in

principle,   is  submitted   to  the  rules  of  contract   and  binds  the  parties   as  a  convention ordinaire:  see Civ.  19 mars  1879, s.r. 79.1.  180;   V  egalement  Civ. 24 juill.  1867, D. P.

67. 1. 327.   In addition,  as a convention,   a contrat judiciare   takes  effect  only between  the parties  to it. It is also worthy  of note, as stated in Dalloz  Repertoire  de Procedure  Civile et Commerciale''    n°  29,  that   "...   [l]e  contrat peut   etre  attaque   par   la  voie  en  nullite, notamment   pour   cause   d'erreur    (Orleans,   11 juill.    1950,  Rep.   Commaille    1950.   2.

 

18061 '').7 Hence, an "action en nullite [dirigee contre La  convention-elle-meme J suffit it faire tomber Ie contrat judiciare't":   see Touen, 11 mars 1910, S. P. 1911. 2. 140 ; Req. 29 avr. 1931. 1. 123, note E. P. ; 24fevr. 1932, Rec. Sirey 1932. 1. 152; CUCHE et VINCENT, n" 75 ; Morel, n" 554.  Emphasis supplied

 

19.       After a careful reading of the French Jurisprudence and Doctrine and section 131 of the Seychelles  Code  of  Civil  Procedure,  I  opine  that  the  procedure  obtained  in  French jurisprudence is not analogous to the procedure contained in section 131 of the Seychelles Code of Civil Procedure. Under section 131 of the Seychelles Code of Civil Procedure, the role of the court is to enter a judgment by consent in accordance with the settlement of the parties. Thus, the settlement of the parties entered as a judgment by consent, under section 131 of the Seychelles Code of Civil Procedure, becomes an enforceable judgment of the court",

 

20.       It follows, therefore, that, as a judgment of the court, it is subjected to the provisions of the law which apply to appeals from a judgment at first instance, although with an essential exception. Where the court has not adjudicated on the evidence, its judgment  cannot be challenged on appeal on the ground that the court has reached a wrong conclusion on the evidence before it. This conclusion should not be construed as suggesting that there is no right of appeal as of right. Nonetheless, where there are grounds to set aside a judgment by consent entered, I ought to conclude that the avenue open to a party would be to go to the Supreme Court by way of plaint (fresh action) to set aside the judgment by consent.

21.        I now tum to the grounds of appeal. In light of the above analysis, I conclude that the procedure adopted by the learned Judge, in this case, is unknown to the law of Seychelles and should not be followed. As mentioned in paragraph [15] hereof, it is settled law that the procedure for entering a judgment  by consent is provided under section  131 of the Seychelles Code of Civil Procedure. I mention  in passing that this judgment  did not

 

7  Unofficial translation: "    a party  could  ask for the nullity  of the contract,  on the ground  of error"

8  Unoffical translation "    a nullity  action  [directed  against  the convention   itself]  suffices  to get rid of the contract."

9 See Pardiwalla v Pardiwalla 1993 SLR 126, in which  the Supreme  Court  held that -    "thejudgment by consent was in effect a contract binding on the parties which had become an enforceable judgment a/the  Court". I agree.

 

consider  the  question   of whether  or not  the  procedure   obtained  in French  jurisprudence finds application   in Seychelles

 

22.        Therefore,  having  come to the conclusion   stated  in paragraph   [21] hereof,  I conclude  that the contentions   contained  in the two grounds  of appeal  do not arise for consideration.

 

The Decision

 

23.       For the reasons stated above, I allow the appeal but for the reason that the procedure adopted by the learned Judge is unknown to the law of Seychelles, which consequently rendered the ruling of 4 September 2017, null.   (_

 

24.       I quash the ruling of 4 September 2017 (The Ruling) and the Court Order of 16 May 2018, of the learned Judge, in their entirety, and remit the case to the Supreme Court, before the same learned Judge, to be either heard afresh or for the court to enter a judgment by consent in terms of section 131 of the Seychelles Code of Civil Procedure, as the case may be. A copy of this judgment shall be sent to the Land Registrar, forthwith.

 

25.      I do not make an award as to costs.

 

Robinson Justice of Appeal

I concur:  Fernando President

 

 

ORDER

 

The Supreme Court Order of 16 May 2018 is set aside and the case is remitted to the Supreme Court for rehearing or for entering judgment by consent in terms of section 131 of the Seychelles Code of Civil Procedure.

 

 

JUDGMENT

______________________________________________________________________________

M. Twomey (J.A)

  1. I have read my sister JA Robinson’s judgment and I am largely in agreement with her findings on the facts, the law and the ensuing orders in the instant appeal.

 

  1. My views however on the “judgment by consent”  entered by the learned trial judge are of a different nature. I reserve my opinion on whether a judgment by consent and a contrat judiciaire are different and whether the latter is applicable in our jurisdiciton as I am not of the view that this debate or its resolution is determinative of the issues raised in the present appeal.

 

  1. It is common ground that in the course of proceedings the Respondent's daughter testifying on the Respondent’s behalf indicated she was desirous of giving a right of way across Parcel V5587 to Parcels V18928 and V18929. In this regard, she tendered in evidence, a document, dated 4 September 2017, exhibit P7, which contained the conditions to which the proposed right of way would be subjected.

 

  1. It is also common ground that the learned trial judge then enquired of the parties what their wishes were. The Respondent indicated that they they wished the right of way to be granted in accordance with conditions they had stated in Exhibit P7 whereas the Appellant simply stated that they wanted a right of way granted.

 

  1. Subsequently the learned trial Judge, in his orders granted a right of way as proposed by the Respondent and subject to the condition, inter alia, that the “right of way would end if Mrs Marisa Bantele Lefevre decides to transfer parcel V18929 onto any other persons or amalgamate the said parcel to any other parcels.”

 

  1. It is clear from the transcript of proceedings and the submissions of the parties during the course of this appeal that there was no consensus ad idem on the agreement for a right of way; thus the judgment entered by the Court was not a judgment by consent of the parties but rather a judgment entered by the Court based on its interpretation of what the parties had agreed. This judgment was not only afoul the provisions of section 131 of the Seychelles Code of Civil Procedure but also a misrepresentation of the parties’ common intention. Whether viewed as a contrat judiciaire or a judgment by consent it is clear that there was neither contract nor consent of the parties.

 

  1. Moreover, the specific condition outlined above in paragraph 5 imposed on the right of way by the learned trial judge is not lawful as it limits the right of way impermissibly. Article 688 provides as follows: 

“Easements are either continuous or discontinuous .Continuous are the easements the use of which continues or could continue without human intervention; such are water mains, drains, ancient lights and other easements of that kind. 

Discontinuous are those which need human intervention for their use; such are rights of way, drawing water, grazing, and others of a similar kind. (Emphasis added)

 

  1. A right of way binds a dominant tenement and not its ownership by a particular person (see Articles 697, 698, 701 of the Civil Code). The extinction of rights of way are provided by Articles 703 et seq of the Civil Code. There is jurusprudence constante that rights of way are rights in rem and not in personam (Sinon v Dine (2001) SLR 88,  Leite v Republic of Seychelles (1981) SLR 191, Barbier v Morin & Ors (SCA 17/2017) (appeal from CS 28/2014) [2019] SCCA 37 (23 August 2019). In Leite, the Court of Appeal specifically held, inter alia, that an easement is a right granted in favour of a dominant tenement and not its owner, against a servient tenement and not its owner, and that it is a right appurtenant to the dominant tenement, and the benefit of such right accrues to the transferee or grantee of the dominant tenement. Hence, the right is appurtenant to properties and not to parties having ownership of the properties.

 

  1. In the circumstances, I grant the appeal and quash the Court Order of 16 May 2018 of the learned Judge, in its entirety, and remit the case to the Supreme Court for rehearing or for entering a judgment by consent in terms of section 131 of the Seychelles Code of Civil Procedure, as the case may be.

 

Signed, dated and delivered at Ile du Port on  16 October 202

 

M. Twomey

Justice of Appeal