ex parte Julienne & Anor (MA 205/2021) [2021] SCSC 991 (15 September 2021)

SUPREME COURT OF SEYCHELLES In the ex parte matter of: MARIE-FRANCE JULIENNE TONY JULIENNE (rep. by Alexandra Madeleine) Reportable/Not Reportable/Redact [2021] scscY.5f MA20S/2021 (Arising in CS74/2021) I" Applicant 2nd Applicant Neutral Citation: Before: Summary: Delivered: Ex parte Julienne and Anor (MA20S12021) 2021). Carolus J Interlocutory Injunction 15 September 2021 [2021] SCSC-G.:!.~(15 September in MA 205/2021 namely the Reasons for writ of injunction issued against Planning Authority prohibiting it from taking or continuing any action aimed at demolishing the 2nd applicant's worker's accommodation on parcel S6901, pending determination of the principal suit or until otherwise ordered by the Court. the 3rd defendant ORDER RULING E. CAROLUS, J Background [1] The applicants in this motion filed a plaint in CS74 of2021 against Sindy Toussaint (born Julienne) (l51 Defendant), Jocelin Toussaint (2nd Defendant) and the Planning Authority (3rd Defendant) on 17thAugust 2021. The 151plaintiff is the mother of the 2nd plaintiff and the 15tdefendant. The 15tdefendant is married to the 2nd defendant. The 151and 2nd Plaintiffs are the 15tand 2nd Applicants in this ex-parte motion respectively. [2] It is averred in the plaint that l " plaintiff who was the proprietor of parcel S1623 gave approval and consent for the 2nd plaintiff to build a store and worker's accommodation thereon. The Planning Authority's permission was not sought for construction of these structures because the l " plaintiff being the proprietor of parcel S 1623 had given permission for such construction. The 1st and 2nd defendants who had been living with the 1st plaintiff moved into 2nd plaintiffs store and used it as their family home. [3] It is averred that the 1st defendant fraudulently induced the lSI plaintiff to transfer parcel S1623 in the joint names of the lSI and 2nd defendants so that they could obtain a loan to build a home for their family on part of S1623. Parcel S1623 was transferred to l" and 2nd defendants in 2001 on the understanding that the transfer of the whole of land parcel S1623 to I" and 2nd Defendants would be temporary. The understanding was that parcel S1623 would be subdivided into two plots, one of which would be used for the 1st and 2nd defendants to build their family home. The remaining plot would be transferred back to 1sr plaintiff who would excise the part thereof on which 2nd Plaintiffs workers accommodation stands and transfer the remainder to another of the l" plaintiff s son. l " Plaintiff was to retain a usufructuary interest for her lifetime on all plots. [4] On 3rd April 2006 parcel S1623 was subdivided into S6901 and S6902 but contrary to the understanding upon which the whole of parcel 1623 had been transferred to the )SI and 2nd defendants, they refused and continue to refuse to transfer land parcel S6901 back to 1st plaintiff. They have built apartments on parcel S6902 which they are currently renting out while they still occupy 2nd plaintiffs store. [5] It is further averred that out of spite to the plaintiffs, the 1st and 2nd defendants maliciously complained to the 3rd Defendant and sought the immediate demolition of the worker'S accommodation on land parcel S690 I on the ground that it has not been constructed with planning permission. Based on lSI and 2nd defendant's complaint, the yd Defendant has served the 2nd Plaintiff with an enforcement notice to demolish the worker's accommodation on the ground that it was built without planning permission. The 3rd Defendant refused the appeal against the enforcement notice and to grant retrospection planning permission for the worker's accommodation on the ground of the pt and 2nd defendants' ownership of the land and insists that the worker's accommodation should be demolished. [6] It is averred that the transfer of parcel S 1623 should be annulled for various reasons namely because the 2nd defendant is not a Seychellois and could not have validly purchased the property without the grant of sanction under the Immovable Property (Transfer Restriction) Act; for fraud by the 2nd and 3rd defendants because the 1st plaintiff never received any consideration for the transfer and also because they retained ownership of the entire property contrary to their understanding with the 1st plaintiff. [7] In terms of the plaint the plaintiffs seek inter alia orders declaring the transfer of parcel S1623 null and void; and annulling the transfer of the said parcel to the 2nd and 3rd defendants for fraud. [8] On the same date as they filed the plaint, the applicants filed an ex-parte application by way of Notice of Motion for an "urgent ex parte order of interlocutory injunction against the 3rd Defendant ... preventing it from taking or continuing any action aimed at demolishing the 2nd Plaintiff's workers accommodation on land parcel S6901 pending the determination of the main case" under sections 121, 122, 123 304 and 305 of the Seychelles Code of Civil Procedure Cap 213. The Notice of Motion is supported by an affidavit sworn by the applicants and dated 11th August 2021. Supporting documents are exhibited to the affidavit namely the plaint in CS No. 7412021; an Enforcement Notice from the Planning Authority dated 18thMarch 2021; a Notice ofIntention to Appeal against the said Enforcement Notice; and the decision of the Planning Authority refusing the Appeal communicated to counsel for the plaintiffs by letter dated 7th July 2021. [9] The Enforcement Notice is addressed to Tony Julienne in relation to the offence of implementing a development without the benefit of a valid Planning Authority Permission by way of construction of an illegal workers accommodation on parcel S690 1. It enjoins him to immediately demolish the illegal structure; cart away all debris; and reinstate the land to its original state. [10] The letter dated 7th July 2021 informs counsel for the plaintiffs that after considering the appeal against the Enforcement Notice, the Planning Authority would be proceeding with the same on the basis that parcel S6902 is in the ownership of Cindy Julienne and Jocelin Toussaint since 2006, and that moreover this plot was extracted from mother parcel S 1623 which has also been in their ownership since 2001. [11] I granted the application on 13th September, 2021 and issued a writ of injunction against the 3rd defendant namely the Planning Authority prohibiting it from taking or continuing any action aimed at demolishing the 2nd plaintiff's worker's accommodation on parcel S6901, pending determination of the principal suit or until otherwise ordered by the Court. I further ordered service of my Order on the Planning Authority and counsels for 1st and 2nd defendants. [12] No reasons were given for my decision which was deferred to a later date. I now give my reasons. Reasons [13] In their affidavit in support of their application for interlocutory injunction the applicants aver that despite notice of the ongoing court case and representations made on their behalf to the Planning Authority, the Planning Authority insists that it will proceed with the enforcement notice to demolish the 2nd Plaintiffs workers accommodation. [14] They aver that if the Planning Authority is allowed to continue with the threatened act of demolition of the workers accommodation on parcel S6901 prior to this Court's determination of the plaint, it will cause substantial loss to the 2nd Plaintiff in that he will not only lose this property namely the workers accommodation but his foreign workers who are currently occupying the said accommodation will be denied basic rights as workers and human beings. [15] They aver that should the Planning Authority continue with their actions they will suffer great prejudice, and they are advised by counsel and believe that an urgent ex parte interlocutory injunction is urgently required and necessary in the interest of justice to stop the Planning Authority from demolishing the said worker's accommodation until all pertinent issues and differences are settled by hearing and resolution of the matter raised in the plaint by the Court. They further aver that on the balance of convenience, it is more convenient to prevent the Planning Authority from demolishing the workers' accommodation until a decision is given by the Court. In that respect they aver that if the Planning Authority is allowed to continue with the threatened demolition of the worker's accommodation, this will cause irreparable loss, prejudice and damages to the Plaintiffs, and especially the 2nd Plaintiff whereas the Planning Authority will not suffer any loss, prejudice and damages that cannot be adequately compensated by an order of damages if the demolition is stayed pending the final determination of the Court. [16] Finally the applicants aver that it is just and necessary for an urgent and ex Parte interlocutory injunction to be granted and an order urgently served on the Planning Authority preventing it from carrying on the threatened the act of demolition of the worker's accommodation on land parcel S6902 until the matters in the Plaint are fully and finally decided by the Honourable Court. [17] The law applicable to interlocutory injunctions and the grounds on which they may be sought have been the subject of numerous judgments of our Courts and I do not propose to rehash them here. Suffice it to say that counsel for the applicants has correctly cited the law in the Notice of Motion (sections 121, 122, 123304 and 305 of the Seychelles Code of Civil Procedure Cap 213) as well as in her submissions in stating that "in determining whether to grant an interlocutory injunction or not, this court should be guided by the case of American Cynamid Co. v Ethicon Ltd [1975] A. C. 396 (05 February 1975)that requires (1) a serious question to be determined in the main case; inadequacy of damages to compensate the applicants and (3) the balance of convenience ". These same matters were taken into consideration in Techno International v Georges SSC 147/2002 (31 July 2002), Laporte & Anor v Lablache [1956 -1962] SLR 41 and France Bonte v Innovative Publication (1993) SLR 138. [18] It cannot be denied that there is a serious issue to be tried on the face of the pleadings in the main case and on the affidavit evidence namely whether the transfer of parcel S1623 by the l" plaintiff to the l " and 2nd defendant is tainted by fraud and illegality. [19] Although the Planning Authority issued the Enforcement Notice on the basis that the worker's accommodation on parcel S6901 was constructed without valid permission, it rejected the 2nd plaintiffs appeal for the reason that the said parcel and the mother parcel from which it is extracted belonged to the 15t and 2nd defendants in 2006 and 2001 respectively. If the Court determines that the transfer of parcel S1623 was null and void and annuls such transfer, the basis on which the Planning Authority rejected the appeal no longer stands. In the meantime, pending hearing and determination of the main case, unless the Court grants the order for Interlocutory Injunction' the worker's accommodation will be demolished. I am satisfied that this would cause the applicants substantial and irreparable loss, hardship and inconvenience, which cannot adequately be compensated by damages if judgment is subsequently given in their favour in the main case. On the other hand it is unlikely that the defendants would suffer any harm by the granting of the Interlocutory Injunction until final disposal of the main case. [20] I am satisfied that more harm would be caused to the applicants by refusing to grant the Interlocutory Injunction than to the defendants by allowing it and I therefore find that the balance of convenience lies in granting the Application for interlocutory injunction. Signed, dated and delivered at lie du Port on 15th September 2021. E. Carolus J 6