Leveille v Pascal (SCA 5 of 2004) [2005] SCCA 7 (20 May 2005)

. ~ . , • IN THESE¥CHEllE~ COURT O~ APPEAL JEAN JACQUES LEVEILLE ~.. . Appellant vs PAT PASCAL Respondent ------------------------------------ ------------------------------------ (Before: RAMODIBEDI, Pi BWANA & HODOUL, JJA) SCA No. 5 of 2004 Counsel: Mr. P. Boulle for the Appellant Mr. A. Derjacques for the Respondent Heard on: 13 May 2005 . Judgment delivered on: 20 May 2005 JUDGMENT OF THE COURT (Delivered by Bwana, J A) 1. Pat Pascal, the respondent, sued ]cc(i.-]o,::::;:':-::5 Leveille, the appellant, before the Supreme Court for orders that Mr. Leveille remove rocks and chain he . had placed and used to block a right of way enjoyed by Mr. Pascal, He also sought an order to allow him a quiet and peaceful use of the said right of way. A' sum of Sr. 30,000 for moral damages was also claimed together with costs and interest. The trial , ' Y~ :';j".;,l .• ~\".~' ....... .\.,~.,. ':P'!'4Y."!"':":' ... .' court (Karunakaran. J)' madetttefotlowmq orders Ir, favou r of the pl~intiff: "(i) I make an order dlrectinq the defendant to remove permanently the obstructions, namely, the rocks and chain he has put up , blocking the plaintiff's right of way on defendant's land title No. H1585, in order to have access from the public road to the plaintiff's land, title No. H5427. (ii) I grant a permanent the detendant injunction preventing from interfering. with the plaintiff's peaceful use and enjoyment of the said right of way; and (iii) I award a sum of Sr. 2000/- for the , plaintiff against the defendant towards loss and' damages the plaintiff allegedly suffered because of the obstruction the defendant, had put up blocking his right of way~ (iv) I award the plaintiff costs of this action." In an earlier' Ruling dated 20 October 2000, the trial judge had granted an lnterlrn mandatory injunction , - irrfavour of the plaintiff, orJ(.rjn~,.the defendant to.. ".".,C,;; . remove the chain and the rocks whIch he had placed --.-". .. . '., '-, - ~" ' on the ri9ht of way. By virtue of that interim order . of the Court, the plaintiff was restored to "the status quo" ante. Therefore the judgment of the trial judge _merely transformed the interim order of injunction into a permanent one. 2. Dissatisfied with the findings of the Supreme Court, Mr. Leveille appealed to this Court, raising the following four grounds in his amended grounds of appeal:- "(i) . The findings in favour of the plaintiff in the judgment is ultra petita. (ii) The learned trial judge erred in his interpretation of the law in stating -that a right of way can be createdby a Court declaration. (iii) The learned trial judge erred in his finding that . ~ a right of way has been established under Art. 694 of the. Civil Code. (iv) The learned trial judge erred in his finding. that the. plaintiff -has no convenient nor practicable access to the public high~ay for i ." - ~,it. private use of~h~sproperty apartfrom the access road in dispute and that the existing . -. access road over the defendant's property is , the nearest to the public highway." However when the parties _appeared. before _us, Counsel for the appellant opted to argue the firs; ground only - thus abandoning the other three. 3. It is not in dispute that the two properties are adjacent to each other and that, the respondent's plot . is enclaved. Before the _Supreme Court, . the respondent had sued' the 'appellant after the latter had blocked the alleged existing right of ,way in the former's favour by placing blocks and chain. When Mr. Boulle submitted before us, it became clear that the issue as to whether or not there is a right of way in favour of the respondent over tne appellant's property, is fundamental to the determination of this appeal. From the proceedings in the Supreme Court we do note further that a visit to the locus in quo was made and the trial judge made reference to .it in his analysis of the issues before him. We do reiterate - as we did in SeA No. 2/04 (A. Leon v Volare (Pty) ~ , ,',5 Ltd) our-concern over the drafUng of pleadings. "~ The 'mere skeleton information' provided, asTn'-~e-C"'- - case at hand, -left much to be desired. --, "f It does not comform to the requirements of sections 71 to 76 of the Seychelles Code of Civil Procedure. It is 'trite that parties, are bound by their pleadings and that one must not be allowed to depart from what one has pleaded. Doing so, may lead to a claim of ultra petita as is now alleged in this appeal. The evidence given at a trial must be intra petlta. Material facts have to be pleaded as required under section 71 - 76 (supra), 4.' We. do further reiterate our views (as. we did in the SCA No! 2/04.~ supra) on the proper procedures to . be followed during a visit locus in quo. We hold that the provisions of sections 88 and 137 of the Seychelles Code of Civil Procedure should be complied with. The information obtained from such a ' visit should be made part of the record only after complying with the procedures suggested in SCA No. 2 of 2004. 5. Can it then, be said that the learned judge's findings are ultra petita? . The trial judge. made orders as stated under paragraph. 1 above,' We consider those orders to be in consonance with the prayers sought by'the'JJlaHltii'1. f IE; had to eseablisn the oause-of= .- 6 - 'action, the legal - rights' of ~., the parties' and then '. - establish who has breached those rights. " . In respect , of this case, the trial judge was of the view that it was the appellant who had acted unlawfully. The trial judge did reach that, decision after analysing, several provisions of the law, to which we shall revert hereinafter. In, brief; the judge had to determine whether the blocking by the appellant of the alleged right of way was lawful or not. Therefore , his final orders were within the pleadings. What a judge, discusses in his 'judqment are matters that, according to us, help him reach his final conclusions. , . Depending on his writing style, it cannot therefore be said that whatever a judge writes should conform to the pleadings or else it is ultra petita. To hold so will be extending too far the rules pertaining to ultra petita. Only his orders ought to be considered as either being ultra petita or not. It is our view, therefore, that the learned judge's findings are not ultra petita. . 6., In arriving at his decision it appears that the learned trial judge did address his mind to the key issue raised in the course of trial, namely, whether the respondent had a right of way over the appellant's property. Cadastral plans were used to support the ~ .. < c~;'vergent views .. ~,Whiie, it is .correct to hole r'iat ,surveyors do not create right of way, it is-'equally':-- ,_,' "". correct to observe that their works may be used as ,,' "~ evidence to show the existence (or not) of a right of ... .- . way. In this case, the cadastral plans show the existence of' a right of way over the appellant's property. They thus support the evidence of the respondent and other witnesses such as Enos Albert, PW 4 and Reginald Rose, PW 5 that there did exist a right of wa'y. , 7. The eppellant did raise a defence before the trial court to the effect that the said access road does . divide his property in such a w'ay that, its utility is . ; _. , minimised. He.,was therefore ready to offer an alternative route to the respondent. No -doubt, he had in mind the provisions of Articles 682 and 683 of the Code which state:- "Art. 682: The owner whose property is enclosed on all sides an.d has no . access or inadequate access on to the public highway, eitner. , ,forthe private or for the business use of his propettv, shall be . ehtitled 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. " (emphasis provided). 8 " , ' . , . ~. " .., ._", '-, nArt. 683: A passage shall generally be obtained from tne sides of the . , ~. . property from which the access to the ..public highway is . , neerest.: However, account shall also be taken of the need to reduce any damage to the neighbouring property as far as possible." (emphasis provided). ' , However, it is our view that those provisions would be relevant . if the respondent was seeking a right of , way from the appellant. What is evident in this case is .that there existed such a right of way and the appellant did block it, leading to the litigation before , . the Supreme Court. ,'8. We have come to the considered conclusion therefore, that the findings by the trial judge in 'favour of the plaintiff in the judgment is not ultra petita. The orders he made were in accordance with the prayers sought. We therefore dismiss this appeai with costs. S. J. B ANA JUSTICE OF APPEAL ~ . ,."" '.,. '9 . ~ . - -l-concur: I concur: Delivered at Victoria, this 20th May 2005