Fred v Prospere & Anor (CS06/2013) [2016] SCSC 931 (21 November 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: 06/2013

 

[2016] SCSC 931    

 

 

DESIRE FRED

versus

MARIE AUGUSTA RAVINIA PROSPERE

REGINALD PROSPERE

Second Defendant

 

 

Heard:                             

Counsel:                      Mr. Basil Hoareau for plaintiff

 

                                   Mr. Rajasundaram for defendants

 

Delivered:                   21 November 2016

 

 JUDGMENT

 

Robinson J

 

[1]        Introduction

[2]        Plaintiff and First and Second Defendants own adjoining properties.  Plaintiff claims that First and Second Defendants without his consent and lawful authority have partially constructed a house on his property and wants the encroaching structure removed. First and Second Defendants dispute the claims of Plaintiff. The court must decide whether or not there is an encroachment. If there is an encroachment, the issue is whether or not to order the demolition of the encroaching structure.

[3]        The case proceeded, ex parte, against Second Defendant.

[4]        Case for Plaintiff

[5]        The court finds it appropriate to state the case for Plaintiff. Paragraph 1 of the plaint alleges that Plaintiff was and is at all material times the owner of the land comprised in title number S1852 (the land comprised in title number S1852 is hereinafter referred to as ″Plaintiff Property″).

[6]        Paragraph 2 of the plaint alleges that First and Second Defendants are the co-owners and fiduciaries of the land comprised in title number S6927 (the land comprised in title number S6927 is hereinafter referred to as "Defendants Property"). Defendants Property adjoins Plaintiff Property.

[7]        Paragraph 3 of the plaint alleges that First and Second Defendants have partially constructed a house on Plaintiff Property without the consent and authority of Plaintiff.  Plaintiff contends that the said construction amounts to an illegal encroachment.

[8]        Paragraph 4 of the plaint alleges that despite repeated requests by Plaintiff to First and Second Defendants that the illegal construction of the house be removed, First and Second Defendants have failed and or refused to do so.

[9]        Paragraph 5 of the plaint alleges that the encroachment has interfered with Plaintiff’s enjoyment of Plaintiff Property and has caused moral damages to Plaintiff in the sum of Seychelles rupees 100, 000.00/-.

[10]      Plaintiff is asking the court to be pleased to make the following orders ?

″(i)       to order the 1st and 2nd Defendants to jointly and severally pay the sum of Seychelles rupees 100, 000.00/-;

 

(ii)        to order the 1st and 2nd Defendants to demolish the part of the house that has been built on parcel S1852;

 

(iii)       to order the Defendants to pay costs and interests to the Plaintiff.″.

 

[11]      Further and better particulars of the plaint    

 

 

[12]      Learned counsel for First and Second Defendants made a request for further and better particulars of the plaint as follows ?

 

                        ″Para 1 & 2 : What is the relationship between the Plaintiff and the defendants?

 

                        Para 3:

a.      Was it the Plaintiffs or their predecessor in Title of S6927 alleged to have encroached construction on the Plaintiff’s land

 

b.      What was the date of commencement of such encroachment

 

 

 

Para 5 : Was the defendant residing or staying on the parcel S1852 at all material  and crucial times. Sd …″.

 

[13]      The answers to the request for further and better particulars are as follows ?

 

                        ″1. …  There is no relationship between the Plaintiff and Defendant.

 

                        2 …(a)   It is averred that the illegal partial construction of the house on parcel S1852, was effected by the Defendants predecessors in title S6727. The answer to the Request consequently amends paragraph 3 of the Plaint to the effect that the illegal construction was effected by the Defendants predecessor’s in title S6927. By way of further averments in answer to the Request, the Plaintiff avers that the Defendants as co-owners and fiduciaries of parcel S6927 and the house situated thereon are now liable for the encroachment and/or have the legal obligations and responsibility to remove the encroachment.

 

(b)   The encroachment has been there for a maximum period of 18 years but the encroachment was established only in July 2011.…″.

 

[14]      Case for First and Second Defendants

 

[15]      The court states the case for First and Second Defendants.  Paragraph 1 of the defence puts Plaintiff to the strict proof of the allegations contained in paragraph 1 of the plaint. Paragraph 2 of the defence admits that First and Second Defendants are the co-owners of Defendants Property. First and Second Defendants deny that Defendants Property adjoins that of Plaintiff.

 

[16]      Paragraph 3 of the defence claims that, in light of the ″Answer in respect of paragraph 3 of the Plaint″, First and Second Defendants are not liable for ″any encroachment, if any, committed by the predecessors in title S6927 However, the Defendants further submit that they are bona fide purchasers of the property in S6927 for a value. Additionally, First and Second Defendants go on to deny that they have acted illegally. They claim that if there is an encroachment, the encroachment occupies an insignificant part of Plaintiff Property.

 

[17]      In paragraph 4 of the defence, First and Second Defendants deny that any requests have been made by Plaintiff. It adds that Plaintiff was not the owner of Plaintiff Property ″at all crucial times when the encroachment is said to have been committed″. Paragraph 5 of the defence claims that Plaintiff’s action is prescribed. Additionally, First and Second Defendants go on to deny that there is any prejudice to Plaintiff. They claim that they are related to Plaintiff and there is animosity between them because of an ongoing case CS 196/09 before the Supreme Court of Seychelles. First and Second Defendants claim that this is causing Plaintiff to be vindictive, which underlies the present action. First and Second Defendants claim that Plaintiff has resided in Rochon for many decades and that Plaintiff Property is unoccupied. Consequently, the purported encroachment does not interfere with Plaintiff’s right of enjoyment of Plaintiff Property.

 

[18]      First and Second Defendants want the court to dismiss the plaint with costs.

 

[19]      Evidence in the case

 

[20]      The court does not intend to weary the judgment with a full recitation of what was said but some of the salient issues arising from the evidence have been recited. For Plaintiff the court heard evidence from Plaintiff and Joelane Sinon, Land Surveyor. For First Defendant the court heard evidence from First Defendant and Nadege Gertrude.

 

[21]      Evidence of Plaintiff

 

[22]      Plaintiff in the course of his evidence made the following points. Plaintiff is the owner of Plaintiff Property (exhibit P1) of 855 square meters situated at Petit Paris. First and Second Defendants are the co-owners of the adjoining land (Defendants Property). There is a house built on Defendants Property. First and Second Defendants have both been living in the house.

 

[23]      Plaintiff explains that the veranda of the house found on Defendants Property has been partly constructed on Plaintiff Property. Plaintiff did not give permission to anyone to construct the part of the veranda, which is encroaching on Plaintiff Property. Plaintiff has only given permission to Daniel Fred and Ray Fred for each to build a dwelling house on Plaintiff Property, (exhibit P1).

 

[24]      Plaintiff claims that prior to the survey conducted by Land Surveyor, Joelane Sinon, in 2011, he was unaware of any encroachment.

 

[25]      Plaintiff informed First and Second Defendants about the encroachment. Plaintiff wants First and Second Defendants to demolish the part of the house which is encroaching on Plaintiff Property. The encroachment interferes with his right of enjoyment of Plaintiff Property. Additionally, Plaintiff is concerned that, upon his death, his children will encounter problems with regards to the encroaching structure.

 

[26]      In cross-examination of him a number of points were made on behalf of First Defendant. Plaintiff, an elderly person, has resided in Rochon for over 35 years. Plaintiff Property is unoccupied.

 

[27]      Plaintiff is related to First and Second Defendants by marriage. Two of Plaintiff’s brothers have married Prospere sisters.

 

[28]      Plaintiff purchased Plaintiff Property, on 30 April, 2009, (exhibit D1), from One Nadege Fred, duly appointed executrix of the estate of the late Emmanuel Fred and one Monique Vidot, duly appointed executrix of the estate of the late Helen Rose Anais Fred, with the written consent of the heirs of the estate of the late Emmanuel Fred and the late Helen Rose Anais Fred, in consideration of Seychelles rupees 20, 000.00/-.

 

[29]      First and Second Defendants bought Defendants Property from Nadege Fred about seven or eight years ago. Nadege Fred was his sister in law and the executrix of his late mother’s estate.

 

[30]      When First and Second Defendants purchased Defendants Property, there was a house built on it. Plaintiff did not witness First and Second Defendants construct a veranda on Plaintiff Property. Plaintiff came to know about the encroaching veranda following a survey conducted, in 2011, by Joelane Sinon, Land Surveyor. Plaintiff had instructed Land Surveyor to conduct a survey because of an ongoing Supreme Court case about land filed by his brothers, namely Eugene Fred and Denis Fred, against Plaintiff.

 

[31]      Plaintiff denies the suggestion of learned counsel that there is animosity between Plaintiff and First Defendant because of the ongoing Supreme Court case. Plaintiff denies the suggestion of learned counsel that the animosity is causing Plaintiff to be vindictive, which underlies the present action. Plaintiff’s two sons cannot build on Plaintiff Property because of the ongoing case. Plaintiff states that he will not sell the encroaching structure to First and Second Defendants. Plaintiff wants First and Second Defendants to remove the encroaching structure from Plaintiff Property.

 

[32]      In re-examination Plaintiff states that he is not being vindictive and is not asking out of malice for First and Second Defendants to remove the part of the veranda that is encroaching on Plaintiff Property.

 

[33]      Plaintiff is asking for moral damages not only because he cannot enjoy Plaintiff Property but also because his sons, to whom he had given the right to build on Plaintiff Property, cannot build on it.

 

[34]      First and Second Defendants, owners of Defendants Property, are liable for the encroachment.

 

[35]      Evidence of Joelane Sinon

 

[36]      Joelane Sinon was presented as an expert witness. Joelane Sinon, licensed Land Surveyor, is an experienced land surveyor over 24 years. Land Surveyor has been practicing as Lebon & Sinon Surveys for the past seven years. Plaintiff instructed Land Surveyor to conduct a survey of Plaintiff Property in June, 2011, to delineate the correct boundary of Plaintiff Property, and he for Plaintiff gave evidence at the present trial.

 

[37]      Is there an area of encroachment?

 

[38]      Land Surveyor attended to the site. Land Surveyor produces his ″Survey Report and the detail plan″ collectively as exhibit P2. Land Surveyor reported that the house of Plaintiff’s adjoining neighbours (First and Second Defendants) is encroaching partly on Plaintiff Property by 16 square metres. Land Surveyor examines, in open court, an aerial photograph, among other things, in the locus of the disputed encroachment (exhibit P3). Exhibit P3 was acceptable to identify Plaintiff Property, Defendants Property and the encroachment.

 

[39]      In cross-examination Land Surveyor states that Mr. Mellon, survey technician, drew a sketch plan after attending to the site and conducting the appropriate survey. Land Surveyor prepared a detailed plan from that sketch. Subsequently, Land Surveyor attended to the site to ascertain whether or not the survey correctly showed what is depicted on the ground.

 

[40]      Learned counsel suggested that the omission of the extent of the encroachment on the sketch plan and report, of the survey, was fatal to the validity of the survey. Land Surveyor explains that ″if you take a ruler you measure, the encroachment is there. The only problem …, it is not written ....″ (proceedings of 27 August 2014, at 9 a.m. at page 20). Land Surveyor explains that the ″encroachment forms a triangular shape″  (proceedings of 27 August 2014, at 9 a.m. at page 23). Land Surveyor explains the encroachment further, in chief ?

 

″Q.      In the sketch that you approved, is it shown the triangular shape Mr. Sinon? Tell us where the triangular shape runs from? Which boundary beacon number?

 

A.                 It runs from M1605, the base length to M1607.

 

 

Q.        Measurement, what is the measurement in length?

 

A.         In length it is that 16 metres.

 

Q.        That 16 meter length … it does not stretch until the other point of beacon.  It stops half way according to your sketch.

 

A.         It stops somewhere, yes.

 

Q.        Now, what type of structure that you have seen on 16 sqm?

 

A.         Part of the house.

 

Q.        Bathroom or veranda or bedroom?

A.         The piece of the veranda and –

 

….

 

Q.        Only 16 sqm are of veranda is on the other parcel.  This is what you are saying?

 

A.         Together with the land yes.″

 

(Proceedings of 27 August 2014, at 9 a.m. at page 25 and 26).

 

 

[41]      Land Surveyor opines that the extent of an encroachment on the ground could be measured on an aerial photograph. However, the aerial photograph, exhibit P3, could not determine the area of encroachment on the ground due to scale.

 

[42]      Learned counsel then put to Land Surveyor that he did not conduct any survey, that there is no encroachment whatsoever, and that the extent of the encroachment by 16 square meters is a fabrication. Land Surveyor denies all the allegations put to him and states that he attended to the site to ascertain whether or not the survey correctly showed what is depicted on the ground.

 

[43]      In re-examination Land Surveyor confirms that he attended to the site to ascertain whether or not the survey correctly showed what is depicted on the ground. Land Surveyor concludes that the detailed plan showed correctly what was depicted on the ground. Additionally, it is written on exhibit P2 that the survey was ″checked″ and ″approved″ by Land Surveyor. Land Surveyor confirms that there is an encroachment by 16 square meters. With reference to exhibit P2, Land Surveyor describes the encroachment further, in re-examination ?

 

                        ″Q.      Can you explain why you say it is a triangular shape because when I looked at it with my naked eyes; I see it seems to be a rectangular shape. Can you explain to the court as to why you say it is a triangular shape?

 

A.                 I say it was a triangular shape to encompass the house, the encroachment, which means to accommodate the encroachment it will be necessary to make the area less possible by forming a triangular shape of the encroachment.

 

 

Court to Witness

 

Could you go back and explain that, I did not –

 

Mr. Hoareau continues

 

Q.        Can you explain more details as to why, because when I look at it with the naked eyes, it is … rectangular.

 

A.         The house itself it is a rectangular shape.

 

 

Q.        And the house when you mean the house, you mean the house built on parcel S6927 encroaching onto parcel S1852, correct?

 

A.         Yes the portion of the house encroaches is a rectangular shape because if they were there, ever come to the possibility of … extracting that piece of encroachment, technically in the surveyor term better in a triangular shape.  If you keep it in a rectangular shape, the area encroaches is so minimal …

 

Q.        So for survey purposes, once you had measured the encroachment, you have done it in a triangular shape?

 

A.         Yes.

 

Q.        And you talked about the minimum … Is it correct to say that when you say minimum is that when you look at it, you have calculated what would be the minimum encroachment not what is the maximum possible encroachment that has taken place …?

 

Q.        And this is what surveyors used in their practice generally?

 

A.         Yes.".

 

Additionally, he states that the encroachment is noticeable on exhibit P3. 

 

[44]      Evidence of First Defendant

 

[45]      First Defendant lives at Petit Paris. First Defendant bought Defendants Property and the house found thereon from her daughter, Nadege Fred, about seven years ago. Before moving into the house, she lived at Pointe Larue. First and Second Defendants are the two owners of Defendants Property. First Defendant has not made any change to the house since the date of its purchase.

 

[46]      First Defendant knows Plaintiff. Two of First Defendant’s daughters are married to Plaintiff’s brothers. Plaintiff Property adjoins Defendants Property. Plaintiff Property is unoccupied.

 

[47]      First Defendant claims that the veranda of her house is not encroaching on Plaintiff Property by much. First Defendant was not aware about any encroachment when she purchased Defendants Property and the house thereon. According to her evidence the encroachment poses no inconvenience to Plaintiff. Plaintiff has filed this case against her [First Defendant] and Second Defendant because of a case filed before the Supreme Court by Eugene Fred against Plaintiff. In her opinion Plaintiff is being vindictive.

 

[48]      Land Surveyor came to her ″place for identification of … encroachment″.

 

[49]      First Defendant is willing to purchase the encroaching veranda from Plaintiff. First Defendant does not know about demolishing the part of the veranda, which is encroaching on Plaintiff Property. If demolition is ordered, First Defendant does not know if she will suffer any hardship. With regards to damages in the sum of Seychelles rupees 100, 000.00/-, First Defendant states that she is not liable to Plaintiff in the said sum. First Defendant claims that she has done nothing wrong. 

 

[50]      In cross-examination, First Defendant confirms the encroachment. i.e. ″a little piece″ of the veranda of the house found on Defendants Property is encroaching on Plaintiff Property. First Defendant states that she is aware that Plaintiff cannot develop Plaintiff Property because of the ongoing case before the Supreme Court.

 

[51]      Evidence of Nadege Gertrude

 

[52]      This witness is the daughter of First Defendant. Nadege Gertude was the owner of Defendants Property. Nadege Gertrude sold the land comprised in title number S6927 to First and Second Defendants. She lived in the house found on the land comprised in title number S6927 from 1989 to 2008. Nadege Gertrude and her ex-husband, Davis Fred, constructed the house. 

 

[53]      Nadege Gertrude was the executrix of the estate of the late Emmanuel Fred. With the consent of the heirs, Nadege Gertrude, at the time Nadege Fred, in her capacity as the executrix of the estate of the late Emmanuel Fred, sold the land comprised in title number S1852 to Plaintiff. 

 

[54]      Submission of counsel and discussion

[55]      The court has considered the evidence on record in light of the submissions of counsel.

[56]      The court accepts the submissions of learned counsel for Plaintiff that the proper parties to be joined as Defendants to the suit are First and Second Defendants, the co-owners and fiduciaries of Defendants Property, whose rights would be affected and who would have the obligation to demolish the encroaching structure if the court so orders.

[57]      First, the court has to decide whether or not there is an encroachment. The evidence on record establishes, on a balance of probabilities, that the house belonging to First and Second Defendants has been partially constructed on Plaintiff Property by 16 square meters. The court is satisfied that the encroachment has been established by the uncontradicted evidence of Land Surveyor and his sketch and report. The evidence of First Defendant is that her house partially encroaches on Plaintiff Property.

 

[58]      Second, should the court order the demolition of the encroachment? The court states the principles applicable to this case, (see the cases of Danielle Mancienne and others vs. Yola Ah-Time and others SCA9/2010 and Nanon v Thyroomooldy SCA 41/2009, where the court of appeal set out the position of our law, on encroachments, particularly boundary encroachments as between neighbours —

"1.       If one builds on someone else’s property a structure which entirely stands within the boundaries of that property, it will be article 555 of the Civil Code of Seychelles under which the fate of the structure and the indemnity, if any, to be paid will depend.

 

   2.      However, if one builds partly on one’s property and the structure goes over the neighbour’s boundary encroaching on his land, Article 555 finds no application.

 

   3.      In such a case the neighbour can insist on demolition of that part of the construction which goes over the boundary and the court must accede to such request and cannot force the neighbour to accept damages or compensation for encroachment.

 

   4.      The fact that the encroachment was done in good faith or brought about by mistake as to the correctness of the boundary would have no effect on the Court’s duty to order demolition. See Cour de Cassation, D1970. 426 (Civ 3? , no.), ″Grands Arrêts de  la jurisprudence  civile″ by Henri Capitant for French Law. Tulsidas & Cie v. Cheekooree 1976 ...

 

   5.      But where grave injustice may result in certain exceptional cases: for instance, for a small area of land encroached upon, part of a huge building would have to be demolished causing damage out of proportion to the value of the land encroached upon, the justice of the demolition will have to be tempered with mercy.

 

   6.      In such a case, the encroacher would need to show additionally that he acted in good faith, within the rules of construction, did not otherwise break any law and the demolition would cause great hardship.

  

   7.      In such a case, the Court would not order demolition and would allow damages and compensation commensurate with the extent of the encroachment.

 

   8.      Where the owner of the land insists on a demolition order in such a case of grave injustice, the encroacher may plead abus de droit as against the owner and insist on compensating him in compensatory damages for the encroachment.".

 

 

[59]      Nanon states that the neighbour can insist on demolition of that part of the construction which goes over the boundary and the court must accede to such request and cannot force the neighbour to accept damages or compensation for the encroachment. In the present case Plaintiff wants the court to order demolition of the part of the house which is encroaching on Plaintiff Property. It is clear from Nanon that the court may decline a request for demolition, only if —

(a)                grave injustice may result in certain exceptional cases; and

(b)               the encroacher has acted in good faith, within the rules of construction, did not otherwise break any law and the demolition would cause great hardship.

[60]    The court accepts the submissions of learned counsel for Plaintiff that in order for court to be able to refuse a request for demolition in consonant with Nanon, the following conditions must be fulfilled

             

(a)                The First and Second Defendants must plead the material particulars with regards to the matters set out in Nanon. Section 75 of the Seychelles Code of Civil Procedure, reads ″The statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claims…″. In the case of Gallante v Hoareau [1988] SLR 122, G.G.D de Silva Ag. J, stated thus, ″the function of pleading is to give fair notice of the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the parties″. Additionally, in the case of Marie-Ange Pirame v/s Armano Peri SCA 16 of 2005, the Court of Appeal, at paragraph 8, of the judgment, held thus, ″this Court did state (in CA8/87) inter alia that evidence outside the pleadings although not objected to and the relief not pleaded for, cannot and does not have the effect of translating the said issues into the pleadings or evidence. Indeed we should reiterate here that the above quoted views of this Court are still remain to be good law″; and

 

(b)               evidence, on the basis of the pleadings, must have been adduced to establish the matters set out in Nanon, on a balance of probabilities.

 

[61]      Having considered the defence filed by First and Second Defendants (see paragraphs [15] to [18], of this judgment), the court is satisfied that it does not plead the material particulars which would have allowed First Defendant to lead evidence of the matters set out in Nanon. There are no material averments that the demolition of the encroachment would lead to grave injustice and that the encroachment was effected in good faith within the rules of construction, did not otherwise break any law and the demolition would cause great hardship. The court has tried to understand the case for First and Second Defendants. It is not even clear to the court whether or not the defence denies or admits the encroachment.

 

[62]    The court accepts the submissions of learned counsel for Plaintiff that no evidence has been led to establish on a balance of probabilities that the demolition of either the part of the house constructed on Plaintiff’s Property, would cause grave injustice nor is there evidence to prove that First Defendant acted in good faith, within the rules of construction, did not otherwise break any law and the demolition would cause great hardship. The evidence of First Defendant is that she does not know if she will suffer any hardship if demolition is ordered.

 

[63]      Decision

[64]      For the above reasons, the court gives judgment ordering the First and Second Defendants to demolish the part of the house that has been illegally constructed on Plaintiff Property. The court has considered the nature and extent of prejudice suffered by Plaintiff. Based on the facts and circumstances of the case the court orders First and Second Defendants jointly and in solido to pay Plaintiff the sum of Seychelles rupees 1/- as damages. With costs.

 

 

 

Signed, dated and delivered at Ile du Port on 21 November 2016

 

F Robinson
Judge of the Supreme Court