Eden Island Village Management Association v Eden Island Development Company (Seychelles) Limited (MC 59 of 2024) [2025] SCSC 141 (23 October 2025)

SUPREME COURT OF SEYCHELLES Reportable MC 59/2024 Applicant Respondent In the matter between: EDEN ISLAND VILLAGE MANAGEMENT ASSOCIATION represented by its Executive Member Daniel Colyn C/O Parmantier Law Chamber, Room 301, Michel Building (rep. by M. Parmantier and B. Hoareau) and EDEN ISLAND DEVELOPMENT COMPANY (SEYCHELLES) LIMITED represented by its Director Craig Heeger of Eden Island, Mahe, Seychelles (rep. by B. Georges) Neutral Citation: Eden Island Village Management Association v Eden Island Development Before: Summary: Heard: Delivered: Company (Seychelles) Limited (MC 59/2024)) (23 October 2025). Burhan J Inhibition and Injunction application 15.01 25, 12.03.2025 and 26. 05.2025. 23 October 2025 JUDGMENT DURHAN J [1] The Applicant Eden Island Village Management Association ("VMA") filed a Notice of Motion on 12 September 2024 (MC 59 of 2024) against the Respondent Eden Island Development Company (Seychelles) Limited ("ElDC") seeking the following orders: (i) in accordance with section 76 of the Land Registration Act, an order inhibiting the registration of any dealings with, and/or disposition of, parcels V20000, V19999, V20I27, V2135I, V2I3I8, V2132I, V19089, V19087, V1909I, V19093, V21315, V2I323, V2I3I6, V22878, V22879 and V17755, untilfurther order of this Honourable Court; and (ii) an interlocutory injunction prohibiting the 2nd Respondent from effecting and/or carrying out any works and construction whatsoever on the parcels V20000, V19999, V20127, V2I351, V213I8, V21321, VI 9089, V19087, V19091, V19093, V21315, V21323, V2I3I6, V22878, V22879 and Vl7755, untilfurther order of this Honourable Court; on the basis ofparagraph 2 of the Article 113 of the Commercial Code and/or 30.2 of the Rules of Association of the Applicant. [2] During the pendency of this matter, on the 24 February 2025, the Applicant filed MA 40 of 2025 against the Respondent Company seeking an order for imprisonment or fine for contempt of court ("contempt application"); and MA 41 of 2025 seeking an order appointing an arbitrator ("arbitrator application"). BACKGROUND FACTS [3] The dispute concerns certain parcels of land referred to above and it is submitted that due to the Respondent's failure to fulfil certain obligations, the Applicant seeks an injunction and inhibition order, to prevent the Respondent from dealing with these parcels, pending arbitration of the disputes. [4] The Respondent filed an Answering Affidavit on 20 November 2024, objecting to the reliefs being granted. The Respondent filed its written submissions on the 15 January 2025 ('first written submissions'). The Applicant filed its written submissions on the 12 March 2025. Thereafter, the Respondent filed its replying submissions on the 26 May 2025 ('second written submissions'). [5] The main objections of the Respondent in his affidavit and submissions may be set down as follows; a. The Respondent submits that VMA relies on a purported Certificate of Continuation (Certificate) dated 11 March 2024 (annexure I to its supporting affidavit), for its existence in law (the Certificate). The Respondent submits that VMA is not validly constituted in law as the Certificate purports to reflect, and further denies that the Certificate was validly issued. b. Therefore VMA has failed to establish that it is validly constituted in law or has locus standi to pursue this application, has validly conferred authority on Mr Elizabeth (the deponent of the supporting affidavit), or that Messrs Hoareau and Parmentier are properly authorised to act on VMA's behalf. c. The asserted claims of VMA are not bona fide and have no real prospect of succeeding, but instead frivolous and vexatious. d. The parcels of land referred to (defined as 'the parcels' in paragraph 10.1 of the VMA's supporting affidavit) are not common areas in terms of rule 1.1.13 of the VMA's Constitution adopted in October 2014 (the Constitution). e. A number of the parcels the VMA claims to be common areas no longer exist, have been subdivided and/or consolidated with other parcels, or are currently registered in the name of the VMA. As such, VMA cannot reasonably have expected a court to grant an inhibition and an interlocutory prohibitory injunction on these parcels as that would be asking this Court to grant an order on incorrect and false information. f. EIDC has no obligation to transfer the parcels given the provisions of rule 15.1 of the Constitution. g. EIDC did not undertake any binding legal obligation to transfer the parcels to the VMA. h. ElOC is fully entitled to exercise its rights in and to the parcels in which it holds freehold title, notwithstanding that the 'DEVELOPMENT PERIOD' as defined in ruIe 1.1.27 of the Constitution has come to an end. 1. VMA has instituted these proceedings with an ulterior motive, namely to obtain an inhibition and injunction that would effectively bind EIOC for an indefinite period, given that the VMA: I. has failed to declare a valid arbitration; and has failed to take any steps to progress the purported arbitration, or to respond to EIOC's attempt via correspondence to clarify the procedures to be followed, the identity of any proposed arbitrator, or the applicable manner and timelines thereof; has inexplicably delayed for between five and seven years (since the basis for its asserted claim is a letter signed by Mr Craig Heeger on behalf of EIDC dated 20 June 2017) and failed to institute any claim during the many intervening years. 11. any prejudice to VMA (which EIDC denies) could be remedied by an alternative remedy in damages. 111. the balance of convenience lies firmly against granting an interim injunction given the following: The Applicant VMA is actuated by an ulterior motive as explained. There is no possibility that the VMA will suffer any legally cognisable prejudice, it having no rights to receive transfer of the parcels. VMA has failed to take this Court into its confidence and disclose how work or construction on the parcels by EIOC would limit its potential 'use' thereof. J. An inhibition or interlocutory injunction would effectively restrict ElDC's freedom to exercise its rights in the parcels for an indefinite period in relation to a purported arbitration that has not been validly instituted nor progressed at all by the VMA despite BIDC's queries in this regard. k. The Applicant VMA has acted with extraordinary lethargy and yet inexplicably seeks relief 'as a matter of extreme urgency'. Although VMA undertakes to compensate EIDC for financial losses inflicted by way of these proceedings, it has failed to provide any evidence of its financial ability to pay such compensation." Analysis and Findings [6] In its analysis and findings of the aforementioned objections of the Respondent, this Court will refer to the written submissions ofthe Applicant and contents of the affidavits filed by parties. [7] The Respondent refers to correspondence dated 5 July and 26 September 2024 from the Deputy Registrar of Associations, attached marked 'CH2' to EIDC's answering affidavit. The Respondent submits that the correspondence confirms the amended rules submitted by the Applicant VMA when applying for registration were not accepted. Therefore, given the Registrar's confirmed rejection of the 'amended rules' submitted by VMA in a procedurally irregular manner, the Applicant VMA cannot rely on the Certificate as a basis for its valid existence in law, authority to act, or conferral of valid authority on Mr Elizabeth or on Messrs Hoareau and Parmentier. It is subm itted VMA has fai led to rebut the aforesaid objection in any manner. The Respondent further relies on the correspondence dated 5 July 2024 and 26 September 2024 from the Deputy Registrar of Associations to the Applicant set out above and contends that these communications support their argument that the Certificate of Continuation was not validly issued. [8] The Applicant in reply submits that the Certificate of Continuation issued on 1 March 2024 is valid and legally binding. It was issued by the Registrar under the Associations Act 2022, confirming the Applicant's ongoing legal existence. In terms of section 34 of the Associations Act, the certificate serves as irrefutable evidence of the Applicant's continued legal status, and no action has been taken by the Registrar to invalidate it. [9] The Applicant submits that the Respondent attempts to rely on the argument that as the amended rules were not accepted, by default the Applicant is illegally constituted. The Applicant submits that that such procedural issues concerning the amended rules cannot, and do not, affect the Applicant's legal existence or its right to bring these proceedings. The Applicant continues to be governed by its existing rules as approved by the Registrar prior to the coming into force of the Associations Act 2022, and these rules remain valid and enforceable. The Applicant further submits that any procedural anomalies do not extinguish the Association's legal status, nor do they deprive it of standing, to enforce its own constitutional provisions and therefore the Respondent's contention that the Applicant lacks standing, due to alleged irregularities in filing its amended rules, is misplaced and legally unsustainable. The Law [10] Section 34 of the Association Act reads as follows: Registrar's certificate to be evidence 34. A certificate under the hand of the Registrar as to the names of the officers of the executive committee and members of the association and as to any other fact required by this Act to be registered shall be sufficient evidence cf thefacts stated in the certificate, unless the contrary is shown. [11] On perusal of section 34 of the Association Act, as set out above, I am satisfied that an authentic certificate issued by the Registrar is sufficient proof of legal existence and status. I am inclined to agree with the Applicant that as the procedural application to amend the rules has been rejected by the Registrar, the existing rules at the time the certificate was issued still prevail. Therefore, refusal to amend the rules does not extinguish the Association's legal status. The Respondent has failed to establish anything to the contrary as required by section 34 of the Act. The Respondent could have obtained a certificate of current standing under section 35 as proof of its allegation that the Applicant is not validly constituted. This has not been done. Therefore, this Court holds that the Certificate is valid and the Applicant has the locus standi to proceed with the case. Defective Affidavit [12] The Applicant contends that the Respondent's affidavit was defective, as thejurat appeared on a separate page. The Respondent argued that no tampering occurred since the sequential numbering of the Answering Affidavit makes it clear that there has been no insertion or tampering. Nonetheless, the Respondent submitted that it has prepared an identical 'Answering Affidavit' with the jurat on a paragraphed page and requests that it be substituted for the one on record as an amended pleading. [13] The Applicant VMA also claimed that EIDC failed to attach its 9 September responding letter (CH3), which EIDC submitted was addressed in the affidavit, received by VMA, and included in the amended version. It was submitted that any alleged omission caused no prejudice. [14] While procedural compliance is important, the purpose of the jurat requirement is to prevent insertion of new statements, which is not alleged here. It can be reasonably assumed that the Respondent served copies of the affidavit on the Applicant at the time of filing. Any subsequent insertions of statements or material, could have been easily brought to the notice of this Court by the Applicant. There is no such allegation by the Applicant. Therefore, this procedural irregularity does not materially affect the substantive analysis of the application. Thus this Court will allow substitution of affidavit at this stage to cure the said defect. The Law on Inhibitions [15] In regards to inhibition orders, it is submitted by the Applicant that the law relating to inhibitions is provided for by sections 76, 77 and 78 of the Land Registration Act which read as follows: 76(1) The Court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event. or generally untilfurther order, the registration of any dealing with any land, lease or charge 76(2) A copy of the inhibition, under the seal 0/ the Court, with particulars 0/ the land, lease or charge affected thereby, shall be sent to the Registrar, 'who shall register it in the appropriate register, and no inhibition shall bind or affect the land, lease or charge until it has been registered. 77 So long as an inhibition remains registered, no instrument which is inconsistent with it shall be registered. 78 The registration 0/ an inhibition shall be cancelled in the following cases and in no others: to the satisfaction a/the Registrar a/the occurrence ofthe event named in a. on the expiration 0/ the time limited by the inhibition: or b. on proof the inh ibit ion; or c. on the land, lease or charge being sold by order 0/ the court: or d. by order a/the court. [16] The Applicant submits that in respect of the relief for an inhibition order, Court may grant it based on a joint reading of Section 76 of the Land Registration Act and article 113-2 of the Commercial Code. This has not been challenged by the Respondent. [17] Giving due consideration to the submissions of both parties in regards to the inhibition orders, both parties referred to Benoiton & Ors v Rene & Ors (MA 284/2019 (arising .in CS 37/2019)) [2020] SCSC 494 (23 Apri I 2020). It would be pertinent at this stage to set down the principles governing issue of inhibition orders by court. the a. Inhibition orders are in the nature of prohibitory injunction in that they restrict registered owner and any other persons from having their transact ions regarding the land in question registered against the title; they act to maintain the status quo and preserve the suit property pending hearing and determination of disputes between the parties relating to the suit property. b. Before granting an inhibition order the court must be satisfied that there are good reasons to do so. The threshold/or granting orders/or inhibition and which an applicant must satisfy in order to succeed in such an application is: i. that the suit property is at the risk 0/ being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued. ii. That the refusal to grant orders 0/inhibition would render the applicant's suit nugatory. iii. That the applicant has an arguable case. For example, sustainable claim over the suit property. the applicant should have a [18] As to what is meant by an arguable case, as stated in (iii) above, is that the Applicant should have a sustainable claim over the suit property. The difference between prima facie standard of proof (applicable to injunctions) and arguable case (applicable to inhibitions) was also illustrated in Fidelity Commercial Bank v Bedan Mwaura Irari & another ELC Case No. 835 of 20 IS [2016] KLR (16 September 2016)) in wh ich the Court stated: "A prima facie case in a civil application includes but is not confined. to a genuine and arguable case. It is a case which on the material presented to Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call/or an explanation or rebuttal from Ihe latter ". [19] From the above it is evident that establ ishing a prima facie case creates a higher burden on an Applicant than an arguable case. In a prima facie case the Applicant must establish that he/she has a right which apparently has been infringed. In an arguable case an Applicant should have a sustainable claim over the property. [20] The court in Japhet Kaimenyi M'ndatho v M'ndatho M'mbwiria [20 J 21 KEHC 4369 (KLR) held: "it is the considered view of this court the Applicant has to establish that he has arguable case, whether he would succeed or not is not material at this stage, and as such orders o.f inhibition ought to be granted". [21] The Applicant asserts that urgent legal action is necessitated solely by the Respondent's repeated defaults thereby threatening homeowners' rights and proper management of Eden Island. The Applicant denies that the disputes will remain unresolved indefinitely, attributing any delay to the Respondent's failure to meet its obligations, includingprovision of parking spaces and transfer of common areas. [22] The Applicant submits that, although Rule 15.1 of the Constitution grants the Respondent discretion to transfer common areas; past conduct, representations, and negotiations have created an implied obligation on the Respondent to transfer the relevant parcels to the Applicant. In this instant case the Respondent maintains that the parcels are not common areas and that Rule 15.1 imposes no obligation to transfer. It is clear therefore that an informed formal decision has to be made as to whether the parcels concerned are common areas or not and whether there is an implied obligation or not on the part of the Respondent to transfer such parcels. [23] The Respondent refers to incorrect parcel references in the Applicant's prayer. Having examined the pleading and supporting documents, including the Certificates of Official Search annexed to the affidavit supporting the application, this Court notes that they relate to all parcels listed in the Notice of Motion: V20000, V19999, V20127, V21351, V21318, V21321, V19089, V19087, V19091, Y19093, V21315, Y21323, V21316, V22878, V22879, and VI7755. The Certificates show that the proprietor of all parcels, except V19999, is EIOC. The proprietor of Y I9999 is YMA. The Certificates were obtained between May and August 2024. The two parcels that the Respondent claims no longer exist due to subdivision, namely Y20127 and Yl7755, are in fact listed in the Certificates of Official Search, with ETOC as registered proprietor. Accordingly, the Court finds that the errors do not materially affect the substance of the application and that any arguable dispute in relation to specific parcels is a matter to be determined. [24] The Respondent further submits that the parcels of land referred to by YMA in its purported arbitration - are not all common areas defined in terms of rule 1.1.13 of the Constitution of the Association and states that the common areas are indicated in Annex C ofEIDC's letter to the YMA on 20 June 2017. The Applicant contests this issue and submits that the Respondent's reliance on its 20 June 2017 letter and Rules 6.1.1-6.1.3 of the Constitution is misplaced. Rule 6.1.2 permits exclusion only of undeveloped areas, whereas the parcels in dispute have been developed and designated for communal use, specifically as a car park. No approval pursuant to Rule 6.2 was sought from relevant authorities, therefore the Respondent cannot unilaterally exclude the parcel from the Residential Development Component. The Respondent notes in the further submissions that the Applicant YMA argues that rule 6.1.2 of the Constitution, should be interpreted to permit EIDC to remove only 'undeveloped areas' from the Residential Development Component. It is the Respondents contention this is incorrect therefore this gives rise to another issue which has to be argued and formally decided on. [25] It is clear to this Court that all the aforementioned issues should be determined by the arbitrator, as this Court's jurisdiction is limited to the application made in respect of interim relief. Further, the Rules of the Association provide that any issues arising between the parties on any matter provided for in or arising out of the Association's Constitution be referred to arbitration. The facts set out in the affidavits filed and the submissions made by the Applicant and even the Respondent clearly indicate to this Court, the existence of live disputes between the parties in respect of the status of the parcels. This Court is satisfied on the vast material presented to this Court by both sides that YMA claims they have rights to the said parcels of land which have apparently been denied by the Respondent which issues, in the considered view of this Court, should be properly decided at the agreed forum. This Court is satisfied at this stage that the Applicant has demonstrated that an arguable case exists. [26] Further, from the affidavit evidence and further submissions on related issues, it appears that the Applicant contends that, unless the parcels are preserved, there is a risk of their transfer or development by the Respondent, which could frustrate the subject-matter of the arbitration. Although the Respondent denies this, this Court is mindful of evidence raised in MA 40 of2025 (contempt application) regarding the registered easement. It is apparent that the document, though dated prior to the commencement of these proceedings, the official stamps indicate registration and presentation thereafter, and no other documentation has been provided to further verify that the documents were in fact submitted by the Respondent before the current proceedings. [27] In these circumstances, this Court is of the view that sufficient grounds exist to issue an inhibition order, as based on the facts before Court there is a risk of the said parcels being disposed of or alienated or transferred prior to the conclusion of the arbitration thereby rendering any arbitral award ineffective to the detriment of the Applicant. It is the considered view of this Court therefore that a preservatory order of inhibition must be issued, in order to safeguard the efficacy of the arbitral process. [28] At this stage however, this Court considers the submission of the Respondent in that the Respondent would suffer such prejudice for an indefinite period in relation to a purported arbitration that has not been validly instituted and in respect of which there is no clarity regarding the procedures to be followed, the identity of any proposed arbitrator, or the applicable manner and timelines to have the allegations in the purported arbitration notice dealt with. It is to be observed that in the arbitrator appointment application it is the Applicant who blames the Respondent for delaying the arbitration process. [29] In light of the foregoing, this Court decides to make order that the inhibition order be issued for a period of twelve (12) months from the date hereof in order to ensure that the parties do not unnecessarily delay the arbitration procedure. Any further extension would depend on the status of the arbitration. This time limit is to prevent any undue prejudice being caused to either party by delay. [30] Accordingly, this Court grants the relief as prayed for in prayer (i) of the notice of motion filed on 12 September 2024 for a period of 12 months from the date hereof. [31] The Applicant further seeks relief as per prayer (ii) of its Application as follows: "(ii) an interlocutory injunction prohibiting the 2nd Respondent from effecting and/or carrying out any works and construction whatsoever on the parcels V20000, VI9999, V20127, V21351, V2J318, V21321, V19089, V19087, V19091, V19093, V21315, V21323, V21316, V22878, V22879 and Vl7755, unti/further order of this Honourable Court; " on the basis ofparagraph 2 of the Article J J 3 of the Commercial Code and/or 30.2 ofthe Rules of Association of the Applicant. [32] The Applicant submitted that based on the facts of the present case and taking into account the factors set out in paragraph 3.16 of its subm issions, th is Court ought to grant one of the two orders prayed for (emphasis added). The Law on Injunctions [33] In American Cyanamid Co v Ethicon Ltd [1975] AC 396 the necessary conditions to be satisfied in the issue of injunctions were set down which case was followed in Seychelles in University of Seychelles American Institute of Medicine incorporation Limited v Attorney General (MA 330/2019 (arising in CS 13112019)) [2021] SCSC 981 (18 August 2021): The conditions are: a) Whether there is a serious question to be tried; b) Whether an award of damages would be an adequate remedy; c) Where the balance of convenience lies and who itfavors; d) Whether there are any specialfactors. [34] These principles and considerations were further summarized in Exeter Trust Com v Indian Ocean Tuna Limited (25301'2009) [2010] SCSC 89 (26 May 2010): ". .. In considering the balance of convenience, the governing principle is whether the petitioner would be adequately compensated by an award of damages, which the respondent would be in afinancial position topay, and ifso, the interim injunctionshould not be granted. Wherethere is doubt as to the adequacy ofremedies in damages available to a party, the court would lean to such measures as are calculated to preserve the status quo." [35] Institute of Medicine Inc Ltd v Government of In University of Seychelles-American Seychelles ((Miscellaneous Application No. 130 of20 II)) [2011] scse 71 (06 November 2011) it was held that, "[t]he main reason for the grant of a temporary injunction is to preserve the status quo and to protect a party from suffering irreparable harm or injury which would not be adequately atonedfor by damages". [36] It is to be observed that the subject matter of the arbitration concerns land parcels which can be preserved through inhibition. Injunction', in contrast, would serve no additional protective purpose beyond what an inhibition order can already achieve. This Court is of the view that preservation of the parcels can be adequately achieved through an inhibition order. This Court is satisfied that once the parties arbitrate their disputes if any works or constructions done by the Respondent are found to be illegal or unlawful the Applicant could be adequately compensated by an award of damages. [37] Applying these principles to the present matter and as the Court has granted an inhibition order as prayed for, for a particular period of time, it is the considered view of this Court there is no necessity to grant the injunction application. Accordingly, the prayer for an injunction is dismissed. [38] Each party to bear their own costs. Signed, dated and delivered at IIe du Port on 23 October 2025 M Burhan J 13