Germaine and another v Holtzhausen and others (CS 136 of 2010) [2011] SCSC 67 (22 September 2011);

 

THE REPUBLIC OF SEYCHELLES

 

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

 

Civil Side No 136 of 2010

 

Emmanuel Julien Germaine===============================Plaintiff No.1

Sivline Mariezette Rosalie================================Plaintiff No.2

 

versus

 

Daniel Stephen Holtzhausen=============================Defendant No.1

Cecile Holtzausen====================================Defendant No.2

Attorney General=====================================Defendant No.3

 

 

Clifford Andre for the plaintiff

Basil Hoareau for defendants no.1 & 2

Kumar for the Attorney General

 

 

 

JUDGEMENT

 

Egonda-Ntende, CJ

 

  1. The plaintiffs are the registered owners and fiduciaries of parcel S 2681 situate at Anse Aux Pins, Mahe. The defendants no. 1 and 2 are the registered owners of parcel S 2680 while the defendant no. 3, representing the Government of Seychelles which is the owner of S 4338 and S 4340. The plaintiffs purchased their land from the previous owner of S2680 who sold to the defendants no. 1 and 2. The plaintiffs brought this action against the defendants no.1 and 2 contending that their parcel of land has a right of way over parcel S 2680 and that the same is demarcated on the cadastral plan on the. edge of S 2680.

 

  1. The plaintiffs contend that they used their right of way for 5 years over S 2680 until the new owner, the defendants no. 1 and 2, build a house on S 2680 and thereby blocked their right of way. In order to access their property the plaintiffs have had to traverse other plots of land whose owners have objected to this use by the plaintiffs.

 

  1. The plaintiffs have been put to loss and damage by reason of the unlawful acts of the defendants no.1 and 2 in blocking their right of way and claim moral damages of SR 100,000.00 as well as a right of way over S 2680 being the shortest and most convenient access.

 

  1. In the alternative the plaintiffs contend that that their property is enclaved and should the court find it impracticable to order a right of way over S 2680 this court should order a right of way over S 4338 and S4340 which belong to defendant no.3.

 

  1. The defendants no. 1 and 2 opposed the plaintiffs' claim though they admit they are the owners of parcel S2680 having bought the same from the previous owner already developed. It is not them that built the house on the plot. They bought the property with the house already in place. They had only constructed a retaining wall to prevent soil erosion. With regard to the claimed right of way over S 2680 the defendants no.1 and 2 state that there has never been a document creating a right of way over S 2680 for S 2681 and that there is no registration of such claimed right of way in the land registry. The defendants no.1 and 2 therefore contend that they are not liable to the plaintiffs in any way.

 

  1. The defendants no.1 and 2 further contend that the construction on S 2680 makes it impossible for the plaintiffs to have a right of way over S 2680 and must look elsewhere for a right of way.

 

  1. The defendant no.3 initially denied that it should be obliged to provide a right of way to the plaintiffs but after the hearing it altered its position and granted to the plaintiffs a 3 metre wide right of way over parcel S4338, along the boundary line with parcel S4339 on the following conditions: (a) The plaintiffs shall seek planning permission before undertaking any construction of access over the access reserve S4340 and the right of way over S4338. (b) The construction of the access shall be at the plaintiffs' own cost. (c ) Any access constructed over the access reserve S4340 and the Right of Way over S4338 shall remain open for use by the public.'

 

  1. At a hearing held for communication of this offer the plaintiffs accepted the same and I hereby record a judgment in favour of the plaintiffs in the terms offered by the Government of Seychelles as set out above.

 

  1. As between the plaintiffs and the defendants no. 1 and 2 it is clear on the evidence adduced by the parties that is well nigh impossible to construct an access road for S2680 over S 2681 by reason of the developments on S 2681. As the plaintiffs have been offered a right of way by Government of Seychelles it is not necessary to consider this much further save to determine if there was an existing right of way; whether it was obstructed by the defendants no. 1 and 2, and if so, whether loss and damage was inflicted upon the plaintiffs.

 

  1. From the evidence adduced by both parties it is clear that the plaintiffs came on the scene prior to the defendants no. 1 and 2. The plaintiffs purchased their land from the predecessor in title to the defendants no.1 and 2. Plot S 2680 was initially part of S 2681 and originally was parcel S 888. On the cadastral plan for both plots it had been indicated that there was a right of way for S 2680 on S 2681. Nevertheless this right of way was never registered and no instrument giving rise to it was introduced in evidence. Definitely the plaintiffs had never received any such document or demanded one from the predecessor in title to the defendants.

 

  1. The defendants No. 1 and 2 contend that the right of way over S 2681 could only be created by a written instrument and that the same had to be registered with the land registry. Article 688 of the Civil Code of Seychelles hereinafter referred to as CCS defines rights of way as discontinuous easements. By virtue of article 691 of CCS such easements can only be created by a document of title. Possession or for that matter, use, will not be sufficient for creation of the a discontinuous easement.

 

  1. It is not in contest that there is no document of title creating the alleged right of way in favour of the plaintiffs over S 2681. For that reason I find that the plaintiffs have not established an existing right of way over S 2681. It is unnecessary to consider if they have suffered any damage at the hands of defendants no. 1 and 2 who had no existing obligation towards them. In the result I will dismiss the case against the defendants no. 1 and 2 as without merit. I so hold. Each party will bear his or her own costs in this matter given that the defendants no.1 and no.2 were at law the first points of call for the plaintiffs to obtain a right of way for their enclaved property.

 

 

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

 

 

 

 

 

 

FMS Egonda-Ntende

Chief Justice