IN THE SUPREME COURT OF SEYCHELLES

Civil Side:  316/2008

       [2016] SCSC 33

GILBERT LESPERANCE

versus

WILFRID RICHMOND

Heard:             9 November 2015
Counsel:         Mrs. Natasha Burian for Plaintiff
                       Mr. Bernard Georges for Defendant
           
Delivered:       22 January 2016

JUDGMENT

[1]    Agreed facts

[2]    The following facts are not in dispute.

[3]    Plaintiff is and was at all material times the owner of the land comprised in title number PR1266 (?Parcel PR1266?) situated at Cote d’Or, Praslin, Seychelles. Plaintiff purchased Parcel PR1266 from the Government of Seychelles on 10 January, 1991.

[4]    Defendant is and was at all material times the owner of the parcel of land comprised in title number PR1269 (??Parcel PR1269??) situated at Cote d’Or, Praslin, Seychelles. Defendant purchased Parcel PR1269 from the Government of Seychelles on 23 August, 1990.

[5]    Parcel PR1266 and Parcel PR1269 are adjoining parcels of land, which were extracted from a parcel of land comprised in title number PR939 (?Parcel PR939?), owned by the Government of Seychelles.

[6]    Case for Plaintiff

[7]    On the division of Parcel PR939, the Government reserved a 3 metre wide road on Parcel PR1269 for the owner of Parcel PR1266 to access Parcel PR1266 from the public highway (the ?road reserve?). The road reserve was demarcated by beacons QS31 and QS53 and the theoretical points (a) and (b) on the cadastral plan of Parcel PR1269.

[8]    Plaintiff claimed that in the year 2004, Defendant unlawfully built, or caused to be built a concrete boundary wall and concrete flower beds, on Parcel PR1269, that encroached on the road reserve. The said construction was effected without the permission and consent of Plaintiff.

[9]    Plaintiff claimed that he has on numerous occasions expressed objections to the encroachment since it deprives Plaintiff access of his vehicle to Parcel PR1266.

[10]    Despite repeated objections and requests from Plaintiff, Defendant has refused to remove the encroachment from the road reserve.

[11]    Plaintiff avers that such an encroachment is unlawful and amounts to a faute in law, for which Defendant is liable to cease, and remove, and to pay Plaintiff damages to the sum of Seychelles rupees (SCR) 87, 000.00/- resulting from the encroachment.

[12]    Particulars of loss and damages are as follows. Loss of access of his vehicle to Parcel PR1266 amounting to SCR 30, 000.00/-; moral damages for anxiety, distress and inconvenience amounting to SCR 50, 000.00/-; and surveyor’s fees amounting to SCR 7, 000.00/-.

[13]    Plaintiff is seeking the following reliefs from this court ?

?(i)    declaring that Defendant has encroached onto the road reserve by the building of a concrete wall and flower beds thereon;
(ii)    ordering Defendant to remove the encroachment forthwith and in default of so doing, authorising Plaintiff to do so at Defendant’s cost;
(iii)    ordering a permanent injunction requesting that Defendant refrains from any further encroachment on the road reserve and not to interfere with Plaintiff’s peaceful and quiet enjoyment of the road reserve;
(iv)    condemning Defendant to pay Plaintiff the sum of SCR 87, 000.00/- as loss and damage with interest; and
(v)    cost of the suit.".

[14]    Exchange of particulars

[15]    Following an exchange of particulars, Mr. Brian Julie, learned counsel for Defendant, filed a defence on 31 March, 2014.

[16]    Case for Defendant

[17]    Except for the agreed facts, Defendant denied the claims of Plaintiff.

 
[18]    Defendant averred the following in support of his case.

[19]    Defendant is not liable in law to provide Plaintiff with a right of way over Parcel PR1269.

[20]    Defendant has never denied Plaintiff access by a vehicle to Parcel PR1269.

[21]    Defendant contended that Plaintiff, ?blocked the access to his own home and denied access one other resident?.

[22]    Defendant has never encroached on the road reserve.

[23]    Plaintiff has never been affected in any way. Plaintiff has access to his home.

[24]    Defendant asked this court to dismiss Plaintiff’s claim with cost.

[25]    The Evidence in the case

[26]    For Plaintiff I heard oral evidence from Mr. Gilbert Lesperance, Mr. Denis Barbe, and Mr. Yvon Fostel.

[27]    At the close of the case for Plaintiff, Defendant did not call witnesses or other evidence.  Mr. Georges provided this court written submissions on the law.

[28]    Evidence for Plaintiff

[29]    Evidence of Mr. Gilbert Lesperance

[30]    Mr. Gilbert Lesperance, Plaintiff, lives at Cote D’Or, Praslin.

[31]    Plaintiff is the registered proprietor of Parcel PR1266, which is land adjoining Parcel PR1269.

[32]    Plaintiff stated that Parcel PR1266 should benefit from a right of way, with or without vehicle, via the road reserve that is part of Parcel PR1269.

[33]    Plaintiff stated that Defendant has obstructed his use of the road reserve. Defendant has built a boundary wall and, ?put some bricks and planted flowers in them? (proceedings of 9 November, 2015, at 9: 00 a.m.). The position of the wall and the concrete flower beds are shown on exhibit P1.

[34]    Plaintiff testified that he is now using part of an adjoining neighbour’s land to access Parcel PR1266 by car.

[35]    Plaintiff is asking this court for damages for loss of access to the road reserve, with or without vehicle, for a period of over 6 years, to the sum of SCR 30, 000.00/-. Plaintiff is also claiming SCR 50, 000.00/- for moral damages, anxiety, inconvenience and distress, as well as surveyor’s fees.

[36]    In cross-examination, with reference to exhibit P1, Plaintiff explained that Defendant has built a wall along the boundary of Parcel PR1269 enclosing the right of way; that the lines of blocks extending from the boundary wall into the road have been removed; that the said road belongs to one Mr. Lester Robert; and that he (Plaintiff) accesses Parcel PR1266 along that road.

[37]    Evidence of Mr. Denis Barbe

[38]    Mr. Denis Barbe is the Director of Surveys in the Ministry of Land Use and Habitat.

 
[39]    Mr. Denis Barbe stated that Parcel PR1266 and Parcel PR1269 were, among other parcels of land, extracted from Parcel PR939.  The road reserve, on the cadastral plan of Parcel PR1269, is part of Parcel PR1269. He described the road reserve, on the cadastral plan of Parcel PR1269, as a reserve ?for planning purposes?, and explained that this is a method of planning the subdivision of the larger parcel (Parcel PR939) to ensure that Parcel PR1266 and Parcel PR1269 can be accessed.

[40]    Plaintiff considered this evidence to be relevant to the issue of whether or not the unregistered easement of right of way is an over-riding interest in terms of section 25 of the Land Registration Act. I will refer to the Land Registration Act as the ?LRA?.

[41]    Evidence of Mr. Yvon Fostel

[42]    Mr. Yvon Fostel is a land surveyor with 20 years experience. Mr. Yvon Fostel was instructed, by Plaintiff, to perform a survey on Parcel PR1269, in November, 2009. He produced the survey report dated 8 April, 2011, as exhibit P5.  Mr. Yvon Fostel stated in the survey report that he did not have access to Parcel PR1269.  He concluded, however, that, ?from some observations carried out from adjacent property we could deduce that part of a wall erected around La Goulue Café did encroach upon the area labelled ?road reserve? on survey diagram PR1269?.

[43]    In cross-examination, Mr. Yvon Fostel explained, with reference to exhibit P1, that the flower beds are, ?the rectangles around the green grass?, and behind the flower beds is located the perimeter wall. Mr. Yvon Fostel stated that the flower beds and the wall are within the boundary of Parcel PR1269.

[44]    Submissions of counsel

[45]    Plaintiff has outlined his case as follows. The easement, being a right of way over the road reserve to gain access to Parcel PR1266, is an over-riding interest within section 25 of the LRA. Under section 25 of the LRA, Parcel PR1269 is subject to the unregistered easement of right of way subsisting at the time of first registration. Plaintiff relied on Vadivello v Mart [1994] SLR 159 in support of the submission.

[46]    Mr. Georges, in his written submissions, contended that a road reserve is a conventional marking only, carrying no legal obligations. A road reserve merely serves to indicate, for planning purposes, that a subdivision can occur.  Without it, planning permission for the subdivision would not be granted.

[47]    He contended that the road reserve may also serve as an indication of where parties may agree to place an easement of right of way. According to Mr. Georges, the demarcation of a road reserve on a plan does not create legal rights, but a "document of title" that does so.

[48]    In the present case, Mr. Georges was of the opinion that the right of way that Plaintiff may be seeking along the road reserve, demarcated on the cadastral plan, is an easement.  It is a discontinuous easement in terms of article 688 of the Civil Code of Seychelles Act.  I will refer to the Civil Code of Seychelles Act as the ?Civil Code?. Mr. Georges explained that such an easement can only be created by a document of title in terms of article 691 of the Civil Code. Such a document would be an agreement constituting an easement, or a Grant of Easement under the LRA.  He stated that such a document has not been produced by Plaintiff.

[49]    In the absence of such an agreement, or Grant of Easement, Mr Georges explained that the only method for Plaintiff to claim a right of way is to seek a declaration of the court that he has one under article 682 of the Civil Code. The argument of Mr. Georges is that because Parcel PR1266 is not enclaved, Plaintiff cannot demand an access over Defendant’s land for the benefit of Parcel PR1266.  Plaintiff’s remedy, if he ever loses the access he currently has, will be to seek fresh access from those who enclave him, including Defendant.

[50]    In sum, Mr. Georges submitted that Plaintiff has not proven that he has a legal right of way via the road reserve on the cadastral plan, or elsewhere over Parcel PR1269.  He, therefore, submitted that Plaintiff has failed to show that Defendant has done anything illegal or in breach of any obligations towards him.

[51]    The law

[52]    Before going into the merits of the case, I refer to the relevant legal background on the issues.

[53]    Section 3 of the LRA provides ?

             ?Reconciliation with other laws
3.         Except as otherwise expressly provided in this Act, no other written law relating to land shall apply to land registered under this Act so far as it is inconsistent with this Act; but save as aforesaid any written law relating to land, unless otherwise expressly or by necessary implication provided by this or any other Act, shall apply to land registered under this Act whether expressed so to apply or not:
Provided that nothing contained in this Act shall be construed as permitting any dealing which is forbidden by the express provisions of any other written law or as overriding any provision of any other written law requiring the sanction or approval of any authority to any dealing.?.

[54]    Section 28 of the LRA provides ?

?28.       Notwithstanding any provision contained in any other written law, no land, lease or charge registered under this Act shall be capable of being dealt with except in accordance with the provisions of this Act and every attempt to deal with such land, lease or charge otherwise than in accordance with the provisions of this Act shall be ineffectual to create, extinguish, transfer, vary or affect any right or interest in the land, lease or charge.?.

[55]    The LRA recognises overriding interests: though they are not registered, all registered land takes effect subject to them.  The list is contained in section 25 of the LRA, and the relevant paragraph being 25 (a) ?
    ? Overriding interests
25    Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same without their being noted on the register:-
    (a)    easements subsisting at the time of first registration under this Act; […]?:
Provided that the Registrar may direct registration of any of the liabilities, rights and interests hereinbefore defined in such manner as he thinks fit.?.

[56]    Section 52 of the LRA provides ?
       ?Easements
52 (1)                The proprietor of land or a lease may, by an instrument in the prescribed form grant an easement to the proprietor or lessee of other land for the benefit of that other land.
           (2)             The instrument creating the easement shall specify clearly ?
(a)     the nature of the easement, the period for which it is granted and any conditions, limitations or restrictions intended to affect its enjoyment; and
     (b)         the land burdened by the easement and, if required by the Registrar, the particular part thereof so burdened; and
(c)     the land which enjoys the benefit of the easement, and shall, if so required by the Registrar, include a plan sufficient in the Registrar’s estimation to define the easement.
   (3)     The grant of the easement shall be completed by its registration as an encumbrance in the register of the land burdened and in the property section of the register of the land which benefits, and filing the instrument.
   (4)     An easement granted by the proprietor of a lease shall be capable of subsisting only during the subsistence of the lease.?.

[57]    Article 682 of the Civil Code provides ?
?Article 682
1.        The owner whose property is enclosed on all sides, and has no access or inadequate access on to the public highway, either for the private or for the business use of his property, shall be entitled to claim from his neighbours a sufficient right of way to ensure the full use of such property, subject to his paying adequate compensation for any damage that he may cause.
2.        However, where the owner has been deprived of access to a public road, street or path in pursuance of an order converting a public road into private property, the person who has been granted such property shall be required to provide a right of way to the owner without demanding any compensation.?.

[58]    Article 688 of the Civil Code provides ?
?Article 688
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.?.

[59]    Article 691 of the Civil Code provides ?
             ?Article 691
Nonapparent continuous easements and discontinuous easements, apparent or nonapparent, may not be created except by a document of title.
Possession, even from time immemorial, is not sufficient for their creation.?.

[60]    Discussion

[61]    I have considered the evidentiary record, and the provisions of the law, cited above, in light of the submissions of counsel.

[62]    The central issue in this case is whether or not Defendant is liable for building on a road reserve within the boundaries of his land and in consequence preventing Plaintiff, a neighbour, from having access to his land? If he is, then Plaintiff has made out a case. If not, then Plaintiff’s action must fail.

[63]    The case for Plaintiff is to be decided upon the terms of section 25 (a) of the LRA.  I state at the outset that the submissions of counsel for Plaintiff are at odds with the pleadings and the essential facts.

[64]    I have considered the Vadivello case, supra, and state that the factual situation in that case is dissimilar to that of the instant case, and therefore, not relevant to the instant case.

[65]    In the instant case, the essential facts are that Plaintiff bought Parcel PR1266 from the Government of Seychelles on 10 January, 1991; that Defendant bought Parcel PR1269 from the Government of Seychelles on 23 August, 1990; that the Government of Seychelles reserved a 3 metre wide road on Parcel PR1269 as a reserve for "planning purposes", and to ensure that Parcel PR1266 and Parcel PR1269 can be accessed; that Defendant has obstructed Plaintiff in the use of the right of way via the road reserve;  that the flower beds and the perimeter wall are within the boundary of Parcel PR1269; and that Plaintiff is passing through an adjoining neighbour’s land to access Parcel PR1266 by car.

[66]    I have considered the essential facts and find that they do not establish in law any easement/servitude subsisting at the time of first registration in terms of section 25 of the LRA.

 [67]    I now turn to consideration of the provisions of the Civil Code, cited above, in light of the essential facts. I state that Plaintiff has not produced a document of title showing the creation of the right of way, in terms of section 691 of the Civil Code, entitling him to complain of those obstructions. The inevitable conclusion is that Defendant was exercising a right of property belonging to him.

[68]    Further, I find that any claim based on enclave is not maintainable on the pleadings and facts of the instant case.

[69]    DECISION

[70]    This court finds that Plaintiff has not established his case on a balance of probabilities.

[71]    This court dismisses Plaintiff’s case with costs.

Signed, dated and delivered at Ile du Port on 22 January 2016

F Robinson

Judge of the Supreme Court