Smith v Chow and another (CS 219 of 2010) [2011] SCSC 65 (22 September 2011);

 

THE REPUBLIC OF SEYCHELLES

 

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

 

Civil Side No. 219 of 2010

 

Heirs of Josselin Bossy represented by C.E.P Smith==============Plaintiff

 

Versus

 

Paul B Chow====================================Defendant No.1

Lucy N.V. Chow=================================Defendant No. 2

 

 

Sammy Freminot for the plaintiff

 

Frank Elizabeth for the Defendants

 

 

 

JUDGMENT

 

 

Egonda-Ntende, CJ

 

  1. The plaintiffs are represented by C.E.P. Smith, the executor of the estate of Josselin Bossy and fiduciary of the land parcels, H1839, H1845 and H1854. The defendants occupy the said land following a lease agreement signed between the late Josselin Bossy and the defendant no.1 on 29th August 1996. Josselin Bossy died on 7th December 1999. It is now contended that the defendants occupy the said lands without any authority whatsoever.

 

  1. On 2nd March 2005 the plaintiffs got a judgment of the Supreme Court in Civil Side No. 289 of 2001 rescinding the said lease and defendant no.1 was given 6 months to vacate the said property. This judgment was amended by the Court of Appeal on 29 November 2006 which ordered defendant no.1 to comply with the development covenant of the lease within 2 years of the judgment failing which the lease would be rescinded by virtue of that judgment.

 

  1. The plaintiffs contend that the 2 years run from the date of the judgment of the Supreme Court and ended on 2nd September 2007. In August 2007 the plaintiff wrote the defendant no1 notifying him of the cessation of the lease and asked him to vacate the suit property no later than 3.00pm of the 2nd September 2007. The defendant’s no.1’s attorney wrote back to the plaintiff resisting vacation of the suit property.

 

  1. On 26th September 2007 the plaintiff demanded from the defendant no.1 payment of rent at the rate of SR9,000.00. The defendant did not pay. The plaintiff commenced execution proceedings in Civil Side No. 289 of 2001 in December 2008 but those proceedings dragged on without resolution. The plaintiff now contends that the suit property which covers an area of 45, 617 square metres should be able to bring a reasonable return of 2.400,000.00 per year, which is the loss the plaintiffs are suffering due to the defendant No.1’s defiance of the Court of Appeal judgment. The plaintiffs claim that loss from the defendants.

 

  1. The plaintiffs therefore claim from the defendants the following: (a) the sum of R6,798,904 being loss of earnings from September 2007 to 30th June 2010 plus interest at 10 % per annum. (b) the sum of R105,205 being loss of earnings for July 2010 to date plus interest at 10% per annum. (c) R6,575 per day for as long as they remain on the suit property plus interest at 10% per annum. (d) R315,000 being unpaid rent from September 2007 to date plus interest at 10% per annum. (e) R9,000 per month from August 2010 on the first day of each month for as long as they remain on the suit property with interest at 10% per annum. (f) immediate vacant possession of H1839, H1845 and H1854.

 

  1. In the alternative the plaintiff claims (g) the surrender of H1845 and H1854 which the defendants have not indisputably developed, given that the defendant no.1 has pretended to develop H1839. The plaintiffs further claim that the defendants be prohibited from making charges against the property and to repay in full the mortgage of R250,000 charged by the defendants on behalf of First International Company Ltd, of which the defendants are the directors, against parcel H1845. The plaintiff further claims costs of this action.

 

  1. The defendants opposed this action. As a plea in limine the defendants contended that the plaint is res judicata. Secondly that the plaint did not disclose a cause of action against the defendants. Thirdly that the plaintiff has no locus standi to bring this action. Fourthly that this action was prescribed in law. And fifthly that this action is an abuse of court process as a similar action has been filed before the Supreme Court and it is still pending. The defendants denied that any sum was due from them to the plaintiffs or that the plaintiffs had suffered any loss whatsoever. Lastly that the Mr Smith did not have consent of all heirs to bring this action.

 

  1. At the hearing of this case two witnesses testified for the plaintiff including Mr Smith. Mr Smith testified that this claim is not based on the lease agreement between Mr Paul Chow and Mr Josselin Bossy but was based on the fact that the defendants continued to occupy the suit property in spite of the cessation of the lease in accordance with the Court of Appeal Judgment in CS No. 289 of 2001. This occupation is wrongful and has denied the owners of the suit property to get a reasonable return from the suit property which he put at R2,400,000.00 per annum being 10% of the value of the suit property.

 

  1. Mr Paul Chow testified for the defendants. He stated that he was occupying the suit property in question by virtue of a lease agreement. There had been proceedings in court in relation to that lease agreement which are on-going. He was not obliged to pay any sums of money to the plaintiffs. He would only quit the suit property if ordered by court. He prayed that this action should be dismissed.

 

  1. In an earlier ruling this year delivered by me on the 31st March 2011 I decided in C S No. 289 of 2001 that the lease was revoked on 29th November 2008 in accordance with the Court of Appeal judgment dated 29th November 2006. Until that decision is set aside it would appear to me that the continued occupation of the suit property by the defendants from the 29th November 2008 until they vacate the suit property would give rise to an action for damages in favour of the owners of the property.

 

  1. The claims by the defendants that this suit is therefore res judicata, prescribed by limitation, or does not disclose a cause of action are without merit. Neither is the claim that the plaintiff has no locus standii to bring this action. Mr Smith is the fiduciary and is therefore entitled to bring this action pursuant to article 818 of the Civil Code of Seychelles.

 

 

  1. The plaintiffs are under a duty to prove the loss or damages that they have suffered as a result of the wrongful occupation of the suit property by the defendants. They would have to show for instance that they have lost income they would have made by renting out the suit property to interested parties. Or that they have been put to expense by being denied use and occupation of the suit property by the defendants. The loss of earnings (rental income) or the incurring of such expenses would be the damage or part of the damages that they have suffered.

 

  1. What the plaintiffs have done in this case is to prove the value of the suit property, that is, the price the suit property may fetch in the market place. And then claim a 10% per annum of market value of the said property as the appropriate return on the said property. I am far from sure that this equates to proof of loss and damages that they have suffered for the wrongful occupation of their property by the defendants.

 

 

  1. Much as the plaintiffs have, in my view, established the liability of the defendants for wrongful occupation of the suit property, they have failed to prove the damage that they have suffered as a consequence of the wrongful acts of the defendants. The claim for 10% per annum of the market value of the suit property is arbitrary in the sense that it has no connection with actual loss or damages suffered by the plaintiffs or the loss or damages caused by the defendants. Damages are compensatory in nature.

 

  1. The plaintiffs have claimed immediate vacant possession of the suit property. This is allowed.

 

  1. No evidence has been adduced with regard to the claim for repayment of the mortgage of R250,000.00 charged by the defendants on behalf of First International Financial Company Ltd against the suit property. I shall make no order in relation to the same.

  2. In the result this suit succeeds in part as set out herein above with costs.

 

Signed, dated and delivered at Victoria this 23rd day of September 2011

 

 

 

 

FMS Egonda-Ntende

Chief Justice