Lyra v Labonte & Ors (CS 26/2014) [2016] SCSC 114 (26 February 2016);

    

IN THE SUPREME COURT OF SEYCHELLES

Civil Side:  26/2014

 

[2016] SCSC 114    

 

 

LUCINE SOLANGE LYRA

(REP. BY HER PROXY DORIS MARGARET JAMES)

versus

AHTEE LABONTE

TADAREVA BAY (SEY) (REP. BY SERGE ROUILLON)

THE REGISTRAR GENERAL

 

 

 

Heard:                             

Counsel:                      Mr. J. Camille for plaintiff

                                     

                                    Mr. Chinnasamy for defendant

 

Delivered:                   26 February 2016

 

RULING
Renaud J

 

Plaintiff’s case

  1. The Plaintiff is a pensioner residing at Petit Paris, Mahe, born on 6th December, 1927. 
  2. On 24th April, 2012 the Plaintiff averred that she purchased 3 acres of land at Anse Marie Louise, Praslin from one Adam Suleman by a Deed of Sale registered and transcribed in Volume 85 No. 297. 
  3. On 14th July, 2004 the 1st Defendant by Deed registered as Volume 83, No.146, purchased land parcel PR2339 at Pointe Cabris, Praslin measuring 9053 sq m. 
  4. On 25th March, 1992 the 2nd Defendant by Deed registered as Volume 78, No.265, purchased parcel PR1976 from Peter Michael Handley at Pointe Cabris, Praslin. 
  5. When the Plaintiff sought and requested the Chief Government Surveyor to place her land on the New Land Register, the Director of Surveys, in a Report dated 28th November, 2012, indicated that he was unable to register the Plaintiff’s land as requested because his research indicated that there are two root titles for the same property.
  6. It is now the case of the Plaintiff that her property is the same said property, sold to the 1st and 2nd Defendants.
  7. The Plaintiff averred that her title is maintainable in law, since she has the proper and lawful root titles and Parcel PR2339, presently registered on the 1st Defendant, and PR1976 presently registered on the 2nd Defendant should be registered in her name.
  8. The Plaintiff is now praying this Court to declare that her title to parcels PR2339 and PR1976, is lawfully and capable of being registered on the New Land Register, and, that the tile of the 1st and 2nd Defendants to those same parcels are void and not maintainable in law.  She also sought a declaration that she is the lawful owner of those two parcels of land.  The Court ought to direct the 3rd Defendant to register her as sole owner and proprietor of those two parcels.

1st Defendants’s case

  1. The 1st Defendant denied each and every material averments of the Plaintiff, except that he admitted that on 14th July, 2004 by Deed registered as Volume 83, No.146, he indeed purchased land parcel PR2339 at Pointe Cabris, Prasliin measuring 9053 sq m. 
  2. By way of further answer the 1st Defendant averred that he is the lawful registered owner of parcel PR2339 which parcel he purchased bona fide from the lawful owner on 12th July, 2004.

2nd Defendants’s case

  1. The 2nd Defendants denied any knowledge of the averments of the Plaintiffs and categorically denied all such averments and put the Plaintiff to proof thereof.
  2. The 2nd Defendant put the Plaintiff to strict proof as to why, her sale which is being referred to as being after the sales to the other parties, takes precedence over these sales.
  3. The 2nd Defendant denied that on 25th March, 1992 by Deed registered as Volume 78, No.265, they purchased parcel PR1976 from Peter Michael Handley at Pointe Cabris, Praslin and put the Plaintiff to strict proof. 
  4. The 2nd Defendant admitted that the Company Bodamyen Enterprises (Proprietary) Limited purchased Title PR1976 on 21st December, 1998 from one Frank Ahkong, and, they purchased Title PR1976 on 10th April, 2007 from its associated Company Bodamyen Enterprises (Proprietary) Limited.
  5. The 2nd Defendant contended that the Plaintiff has not proved her entitlement to the property of the 2nd Defendant and has failed to provide any documents of proof of the same to substantiate her claim.
  6. The 2nd Defendant averred that they are the lawful registered owner of Title PR1976, which parcel, they purchased bona fide, from the lawful owner and in any event the claim of the Plaintiff is time barred by prescription.

3rd Defendants’s case

  1. The 3rd Defendant denied all the material averments of the Plaint. 
  2. The 3rd Defendant admitted that the parcel of 3 acres of land situated at Anse Marie Louise, Praslin was registered at the Land Registry in Vol.85 No.297 by Title Deed dated 23rd September, 2011 was registered on 26th April, 2012 in the Land Registry (Old System) and other averments are not within his knowledge and the Plaintiff is put to strict proof thereof.
  3. The 3rd Defendant also admitted that Parcel PR2339 situated at Pointe Cabris, Praslin to the extent of 9053 square metres was registered in the name of the 1st Defendant at the Land Registry by Title Deed dated 12th July, 2004 registered (New System) on the 14th July, 2004 in Vol.83 No.146 with the Land Registrar.
  4. The 3rd Defendant also admitted that parcel PR1976 situated at Anse Marie Louise, Praslin (not at Pointe Cabris as described in Plaint) was registered in the name of the 2nd Defendant at the Land Registry (New System).  The 3rd Defendant further submitted that the averments of the Plaintiff with regard to parcel registerd in Vol.78, No.265 with the Land Registrar stands in the name of Francine Larue of Pointe Cabris, Praslin.
  5. The 3rd Defendant submitted that unless the Plaintiff proves the Title over parcels PR2339 and PR1976, the 3rd Defendant may not be able to register the parcels in the name of the Plaintiff.  In all the circumstances of the case, the Plaintiff is not entitled to any relief or judgment against the 3rd Defendant.

Pleas in Limine Litis

  1. The 1st Defendant raised the pleas that, firstly, the Plaint does not raise any cause of action against him; secondly, the Plaint contains two separate causes of action, and thirdly, the Plaint is frivolous and vexatious.
  2. The 2nd Defendant raised a plea in limine litis that the Plaint is time barred and as a result has no cause of action.
  3. The 3rd Defendant raised pleas in limine litis, firstly, that the Plaintiff does not disclose any reasonable cause of action against the 3rd Defendant; secondly, that as far as the issues are concerned, the 3rd Defendant is not a necessary party and therefore ought to be deleted from this Plaint; and thirdly, that the plaint is bad for non-joinder of the necessary parties.
  4. The sum total of the points of law raised call for answers to the following questions:

1. Does the Plaint raise any cause of action against the 1st Defendant?

2. Does the Plaint contain two separate causes of action?

3. Is the Plaint frivolous and vexatious.

4. Is the Plaint time barred and as a result has no cause of action.

5. Is the 3rd Defendant a necessary party in view of the issues raised by the Plaint?

6. Is the Plaint bad for non-joinder of the necessary parties?

  1. Pleas in limine litis are decided only on the basis of the pleadings of the parties which are before the Court.
  2. At paragraph 2 of her Plaint the Plaintiff pleaded that on 24th April, 2012 she purchased 3 acres of land at Anse Marie Louise, Praslin from one Adam Suleman by a Deed of Sale registered and transcribed in Volume 85 No. 297.  This is a matter of fact that can only be decided on the basis of evidence.
  3. At paragraph 3 of her Plaint the Plaintiff pleaded that on 14th July, 2004 the 1st Defendant by Deed registered as Volume 83, No.146, purchased land parcel PR2339 at Pointe Cabris, Prasliin measuring 9053 sq m.  This averment is likewise a matter of fact to be determined on the basis of evidence.
  4. On 25th March, 1992 the 2nd Defendant by Deed registered as Volume 78, No.265, purchased parcel PR1976 from Peter Michael Handley at Pointe Cabris, Praslin.  This averment of the Plaintiff is a matter of fact to be determined on the basis of evidence.
  5. The Plaintiff pleaded that she sought and requested the Chief Government Surveyor to place her land on the New Land Register. The Director of Surveys, in a Report dated 28th November, 2012, indicated that he was unable to register the Plaintiff’s land as requested because his research indicated that there are two root titles for the same property.  This pleading again raised matter of facts that the Director of Surveys have to testify and his evidence verified.
  6. The Plaintiff pleaded that the property she bought is the same said property that was allegedly sold to the 1st and 2nd Defendants.  It is likewise obvious to me that such averment can only be disposed of on the basis of factual evidence.
  7. It is my considered view that the Plaintiff has acted reasonably in the circumstances to cite all the 1st and 2nd Defendants named in her pleadings for the simple, necessary and obvious reason to allow them the opportunity to respond to her allegations which she based on facts contained in the Report of the Director of Surveys which Report she has listed as one of the documents she will be relying on at the hearing.
  8. The Plaintiff by this action now wants to assert her rights to the properties registered in the name of the 1st and 2nd Defendant which she claims to be hers.  That obviously is a serious cause of action.  The joining of the Defendants in the circumstances as pleaded by the Plaintiff does not in my considered view constituted two separate cause of action or a non-joinder for that matter.  All parties to the case have been properly cited and as such it has avoided duplicity of actions.
  9. Section 105 of the Seychelles Code of Civil Procedure is apposite in this respect.
  10. With regard to the 3rd Defendant she is made a party because of the prayer (d) of the Plaint where the Plaintiff prays for an order of this Court to give certain direction to the 3rd Defendant.
  11. Article 2265 of the Civil Code of Seychelles provides that if the party claiming benefit of such prescription produces a title which has been acquired for value and in good faith, the period of prescription under Article 2262 shall be reduced to ten years. 
  12. The Plaintiff came to know that she is not the owner of her property upon the information provided to her by the Director of Surveys on 28th November, 2012.  I find that this is the date that the cause of action arose.  By deduction it is evident that the suit entered by the Plaintiff on 13th March, 2014 is well within the prescribed time.
  13. In the final analysis I hereby rule that the pleas raised by the Defendants have no merits and are accordingly dismissed.  The case shall proceed to be heard on the merits.

 

 

Signed, dated and delivered at Ile du Port on 26 February 2016

 

 

B Renaud
Judge of the Supreme Court