Thailapathy v Tirant (SCA 28 of 1994) [1995] SCCA 4 (11 August 1995)

IN THE SEYCTIELLF,S COURT OF APPEAL CIVIL APPEAL No. 28 of 1994 E CO (,) A NTOMin 'FIT A D. /1P A '1'1IY APPET,T,ANT 11Z1ZY TIPANT IPPEN •y, TIIATI„APATITY FIRST RESPONDENT SECOND RESPONDENT nefor e : Ayoola, Venchard & Adam, ;E. T. A f ► ,to ► Mr . VTr. A. De •jacques for the Respondents for the Appellant. .1Tinc,MEN'T' (W ADAM, J. A. we dismissed this appeal after the hearing. These are the •onc.(1115:1. T ► o Appellant sought. t he issue of a Writ of Itabere Facies Po s se s sion e m to eject the Respondents from parcel of land V 3200. Amorasinghe J. found that the Appellant and Mrs. Diana Thailapathy were co—owners of the parcel land and that she had give.n permission the Re9,0ndents to occupy the said land. In accordance with Article 821 of the Seychelles Civil Code the Appellant and Mrs. Diana ;11)f1l hy wore appointed fiduciaries by Notary R. S. Dhanjee. The iczcztio that had to he determined On the objection on behalf of the P o spondonts was whether the Appellant had any right to institute priireedingp. against, the Respondents. Amerasinghe J. upheld the ( 0 )j oo tiOn th at the application launched at the instance of one o the ridueia • ies was in violation of Article 823. he also held that. there nY.i.10(1 roa I and substantial dispute (Inc t.o the claim for m provo a l I and oerupation b y the Respondents which had to be at that time the second defendant was a third party and not. co —owner. 'rho nppoi nt merit of the first defendant as fiduciary was incomplete :ifice the t wn pliintiffs did not consent to this as co—owners of S 188 who w e re not hound by the said appointment. That property S 138 romainod in indivision and so the two plaintiffs had an interest in it. 111 1984, Mr, and 1987 the second defendant. purchased other shares of 138 at which time he was a third party. This meant that a right. of rot roorzion was exereisahle against him withil) 1 0 years by the two plaintiffs. The second defendant raised an objection that the two plaintiffs could not bring an action of retrocession on their own wit hold art ing through a fiduciary. Alleear .1. (as he then was) applying Vidot v Vidot, supra, held that the two plaintiffs had a right to apply to the Court for the exercise of retrocession without going through a fiduciary. Mr. 1301- 11 P also argued that the Respondents were I roc:passers. Mr. Derjacques for the Respondents submitted that. Article 834 of he Seychelles civil Code dealt with the ease of a sale of a co—owner's share to a third party and the other co—owners right to buy back that --zb:Irr, held by the third party within 10 years and so the cases cited by Mr. Boot e concerned that. Article. But in the present ease under Article 818, where immovable property was subject to co—ownership, the rights of • o—owners must he held on their behalf by a fiduciary through whom only they may act.. The Appellant: and Mrs. Diana Thaitapathy were duly appointed fiduciaries. lie argued that. ridociarioq could bring act-ions against each other but could not under A r t 818 individually proceed against a third party as they must act: