Bantele-Lefevre v Lanza (SCA 43/2017) SCCA (16 October 2020);
Judgment by consent.
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
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  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 -
Q. Do you wish these conditions to be entered as restrictions under the relevant provisions of the Land Registration Act?
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  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 "register property 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  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  and  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  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 this procedure, 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  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  hereof, I conclude that the contentions contained in the two grounds of appeal do not arise for consideration.
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
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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)
- 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 and not ( (2001) SLR 88, (1981) SLR 191, Barbier v Morin & Ors (SCA 17/2017) (appeal from CS 28/2014)  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.
- 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
Justice of Appeal