Plea in limine litis - affidavit sworn by counsel representing the plaintiff

Appeal against a decision of the Supreme Court in an action for simultaneous declaration of recherche de paternite and desaveu de paternite- Articles 312,321-340 Code Civil – Power of the Court on Appeal – Production of fresh evidence – Rule 31 of the Court of Appeal Rules S.I 13 of 2005.

Twomey, Robinson, Tibatemwa-Ekirikubinza, JJA

Invalidity of an affidavit filed in support of a constitutional petition

The appeal is allowed. The stay of the sale by licitation shall operate for a period of 6 months or until the declaration of the shares of the parties’ respective shares in the joint property, whichever is the earliest.  

Prescription – article 2272 of Civil Code – whether learned Magistrate erred in determining amount of outstanding debt

Twomey, Tibatemwa-Ekirikubinza JJA: Power of attorney- when null and void –sections 20, 70, 88, 89 of the Land Registration Act.

Robinson JA :- Article 724 of the Civil Code of Seychelles - Heirs seised ipso facto of the property, rights and actions of the deceased if the deceased leaves no immovable property - Right of co-ownership in land is a real right that extends over the whole property vide Jumeau v Anacoura [1978] SLR 180 – An action ″en revendication″ is a real action - Article 2271 of Civil Code of Seychelles does not apply to an action ″en revendication″ - Personal Action - Ownership of immovable property once obtained is not lost by extinctive prescription Orbiter: Ownership of an immovable property is lost only by another person acquiring ownership of it by acquisitive prescription/usucapion, if the possessor of the thing fulfils the conditions for acquisitive prescription and if 2 he has possessed for a sufficient length of time. But if the possessor, for any reason whatever, could not acquire the ownership, there is no reason why an action ″en revendication″ brought against him should fail. - General Power of Attorney - Section 54 of Mortgage Registration Act – Sections 3 and 70 of Land Registration Act - Transfer of land through the General Power of Attorney registered under the Mortgage Registration Act - No evidence that the then Land Registrar had approved the General Power of Attorney - Instrument of Transfer illegal and null

Application to amend Notice of Appeal. Leave to amend not sought. Counsel swears affidavit for Applicant. Application dismissed. No order as to costs.

Faute – liability under Article 1382 distinguished from Article 1384- failure of pleadings to allege specific liability – decision ex facie pleadings and trial