Church v Francoise (Civil Side No 5 of 2003)  SCSC 45 (21 July 2011);
IN THE SUPREME COURT OF SEYCHELLES
ANNE USE CHURCH PLAINTIFF
GINETTE FRANCOISE DEFENDANT
Civil Side No 5 of 2003
Mr. William Herminieforthe Plaintiff Mr. Bernard Georges for the Defendant
B. Renaud J
On 22nd April, 2010 Mrs. Ginette Francoise, the Defendant in the suit proper, applied to this Court for the committal to prison of Mrs. Anne Use Church, the Plaintiff in the suit, for the latter having acted in contempt of a Court Order.
In her Affidavit in support of her application Ms. Francoise stated that on 26th January, 2005 Mrs. Church entered into a judgment by consent with her. Ms. Francoise averred that in that judgment she agreed to Mrs. Church building an access road over her land for her use and to give up the access road over Mrs. Church's land which she used for very many years and which her predecessors-in-title had used.
According to Ms. Francoise the judgment by consent was entered into in good faith, after long negotiations between her lawyer and Mrs. Church's lawyer and it contained all the points on which the agreement was reached. Ms. Francoise averred that in breach of the judgment by consent, Mrs. Church has failed, neglected and refused to build the road in accordance with the agreed specifications and furthermore she failed, neglected and refused to remove the branches which overhang her land in clear contempt of the judgment.
Ms. Francoise is now inviting the Court to form an opinion as to whether or not there has been compliance with its judgment in law or fact. Mrs. Francoise verily believes that Mrs. Church has shown contempt for the order of the Court in the type of road she built and her failure to comply with all aspects of the judgment.
The judgment by consent referred to by Ms. Francoise was entered on 26th January, 2005 and is worded as follows:
1. The plaintiff will build a road, at her own expense, on the defendants land Title V43 from the main road to join the existing road on defendant's land at the point where it meets the boundary between Parcel V43 and Parcel V9064, as indicated on the attached plan.
2. The road to be built will be 3 metres in width and of 2 concrete strips, except where it joins the main road, where it will be of a full concrete apron. Retaining walls where the ground is cut away if necessary and culverts for drainage will be built where necessary. In addition the plaintiff will at her expense remove any branches which overhang the defendants land and move the perimeter fence to her side of the common boundary between Parcel V43 and Parcel V9063 and V9064 if necessary.
3. The Defendant abandons any rights she may have had to use the road on the Plaintiff's land Title V9063 to reach her house on Title V43.
4. The Defendant shall cease to use the access road on Title V9064 as soon as the road mentioned in Clause 1 above is motorable.
5. The parties shall bear their own cost.
In September, 2005 Ms. Francoise entered a similar application for contempt. By agreement of the parties, the Court assisted them to reach an amicable settlement. After much time and effort having been expended by the Court and the parties' Counsel in an endeavour to reach such a settlement, including a locus in quo on 22nd February, 2007 the matter was ostensibly settled and the Court made an order embodying the settlement arrangements on 27th February, 2009. Mrs. Church unexpectedly appealed against that order and her appeal was upheld by the Seychelles Court of Appeal on 11th December, 2009 declaring that this Court was functus officio after the judgment by consent was entered. That judgment of the Seychelles Court of Appeal brought this suit to a close.
The complaint of Ms. Francoise now is that the other party Mrs. Church has not fulfilled her part of the arrangement and as such it amounted to a contempt of
Court. Mrs. Francoise is again taking the same route that she did before and the Seychelles Court of Appeal has pronounced itself on that score and this Court is not minded to repeat the same trajectory in order to settle matters between these two neighbours. If Ms. Francoise is of the view that Mrs. Church has breached the original agreement or the judgment by consent of 26th January, 2005 she will have to take other appropriate legal action to rectify or be compensated in damages for any breach.
For reasons stated above I decline to commit Mrs. Use Church to prison and dismissed this application. I make no order as to costs.
B. REIMAUD JUDGE
Dated this 22nd day of July, 2011