Malvina v Bibi & Anor (CS 109/2015) [2017] SCSC 961 (12 November 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS 109/2015 [2017]SCSC {()::rS Marthe Malvina Plaintiff versus Bernard Bibi First Defendant The Attorney General (herein representing the Government of Seychelles) Second Defendant Heard: Counsel: 30 June 2017, 26 July 2017,6 September 2017 Mr. Anthony Derjacques for Plaintiff Mr. Elvis Chetty for First Defendant Ms. Michelle St. Ange-Ebrahim Delivered: 13 November 2017 JUDGMENT M. TWOMEY, CJ [1] The Plaintiff sued the Defendants for damages in the sum of SR I00,000 for encroachment onto her property (Parcel H130S) at Quincy Village, namely by constructing a vehicular concrete road and concreted barriers thereon and prayed for an order compelling the Defendants to remove the same. [2] The First Defendant admitted the encroachment but averred that the said road was built by the Government of Seychelles to provide access to his property (Parcel H8449) which was enclaved and that the present su it constitutes an abuse of process. He also counterclaimed for the grant of the rnotorable right of way as now existed. [3] The Second Defendant filed a plea in limine litis submitting that the Plaintiffs action was statutorily barred pursuant to section 28 of the Seychelles Land Transport Act 2009 and section 5(1) of the Public Officers (Protection) Act 1976 since no allegation of bad faith was made against the Second Defendant. It also submitted that the Plaint did not disclose a reasonable cause of action against the Second Defendant as the easement over the Plaintiff's property was established by law and was an overriding interest over the said property. It further submitted that given the amount claimed, the suit should be transferred to the Magistrates' Court. [4] On the merits of the action, the Second Defendant averred that it had lawful authority and a legal right to build the road and that the Plaintiff and other persons' property would be otherwise enclaved. It prayed for a dismissal of the claim. [5] The Plaintifftestified. She stated that she bought the land in 1994 (Transfer of Title H 1305, Exhibit PI), the road, the subject of the suit, was already built but made of dirt. It was concreted afterwards without her permission. She stated that the road interferes with access to her house and would cause a further obstruction if she were to have a car park on her land. In this respect it would prevent her from developing her property. [6] In cross examination, she also stated that the concreting of the road has caused a danger to her house. She admitted however that there had been an access road over her property but for the benefit of the Plaintiff's family solely although an aerial plan (Exhibit 02 2) indicated differently. [7] The First Defendant also testified. He had lived in the area for about 35 to 40 years. The Plaintiff came to reside on her land five years after him. Initially he had to park his car at the main road and would use a footpath to his house. With construction materials from the government and self-help a concrete road to his house was eventually built. [8] He stated that his land had been subdivided in 2009 and the road served as access to his four children who now own the land. He currently had a usufructuary interest in Parcel H8449 (Exhibit 0 I (I). He denied that there was any alternative footpath to the property. He stated that after his house, there were three other houses for the Bibi and Payet families. [9] Mr. Ravi Val mont, a land surveyor of21 years' experience testified on behalf of the First Defendant. He had been asked to carry out a detai led survey to determine the access onto Parcel H 1305 and encroachment if any. He had concluded after the survey that there was an encroachment of seven square metres and that the road bui It provided access onto the First Defendant's property. He stated that there was no other access onto the First Defendant's property. He had surveyed the area but had found no alternative route that was cheaper, shorter or more accessible given the terrain in the area. [10] He admitted that there was a drop between the road and the Plaintiffs house but he did not perceive it to be a danger to the house. [11] Bernadette Rosalie, had been the Acting District Administrator for English River District in 2015 and had written a letter to the Seychelles Land Transport Agency (SL TA) in August 2015 asking them to resurface the road at Quincy Village serving twenty families (Exhibit 02 (1)). [12] The Project Officer for the SLTA, Anthony Sinon also testified. He drew up the plan (Exhibit 02 (2)) for the refurbishment of the road in issue. Nine homes rely on the road for access to their properties. It was the only possible access in the area. To his knowledge the concrete road had been in existence for between fifteen and twenty years. He admitted that generally if a road was to be constructed on private land, authorisation was sought from the landowner but in this case the road was on government land already. [13] The locus in quo was visited on the application of the Plaintiff but it was futile exercise in bolstering her testimony in Court in terms of the road being a danger to her house or obstructing access to it. The road was situated between eight to ten metres from the Plaintiffs house. No danger at all was observed nor any obstruction from the road to her house noted. [14] There were no closing submissions from either the Plaintiff or the First Defendant but extensive written submissions by Mrs. St. Ange-Ebrahirn for the Second Defendant. Her lucid exposition of the law is highly commendable and the Court is grateful for it. [15] She submits first, that the failure by the Plaintiff to object to the road refurbishment amounts to tacit or implied authorisation for the work. Secondly, that there is no alternative access to the Plaintiff's land which is to all intents and purposes enclaved. Thirdly, that the Plaintiff has not in any way substantiated her claim either for moral damages or damages arising from the encroachment. Fourthly, that the refurbishment of the road amounting to a public benefit creates an overriding interest in favour of the Second Defendant without the need for registration of an easement. Fifthly, that the demand for removing the encroachment amount to an "abus de droit". Sixthly that the acts of the Second Defendant was protected by section 28 of the Seychelles Land Transport Agency Act 2009. She had raised a plea in the same context in terms of the Public Officers (Protection) Act 1976 but this was not pursued presumably because the limitation provision in section of that Act was increased from six months to five years in August 2017 by the Public Officers Protection (Amendment) Act, 2017 [16] At issue in this case is the distinction between an easement and an encroachment. The Plaintiff is alleging that the Defendants have encroached onto her land whilst the Defendants maintain that there is no such encroachment on their part but rather the lawful use of an easement. [17] The right to enjoy property is enshrined in our Constitution but it is also subject to limitations. Jt is certainly not disputed that the road occupies seven metre squares of the Plaintiff's land. The regime of Article 555 of the Civil Code ensures that all illegal encroachments must be removed. These encroachments are listed in Article 555 as "plants [...] planted, structures erected, and works carried out". In general, an encroachment refers to any structure or works on land owned by one person which extends, without legal reason, onto land owned by another. In Rose v Hoareau (1992) SLR 200, Perera J found in a case not dissimilar to the present, that a concrete paving of a motorable path could be considered a "structure", hence an encroachment, for the purposes of Article 555. [18] The law concerning structures deemed illegal are however subject to the provisions of the Civil Code relating to easements and other real rights. Easements are defined in Article 637 of the Civil Code as follows: "An easement is a charge imposed over a tenement for the use and benefit of a tenement belonging to another owner. " [19] In other words an easement is a burden imposed on the property of one person for the use and benefit of another property. They are created or arise from the natural position of land or from obligations imposed by law or from agreements amongst owners (Article 639). [20] In regard to the present case, Articles 649 and 650 of the Code provide: "649 Easements established by law have for their object the public or local benefit or that of individuals. " 650 Those established for the public or local benefit relate to the building or repairing of roads and other public or local works. " [21] There has been no evidence adduced as how the road partly traversing the Plaintiff s land was created. There is however documentary evidence produced by the Plaintiff herself (Exhibit P2), in a cadastral plan approved by the Director of Surveys on 5 October 1993, indicating the access road from the estate road in Quincy Village to and through the Plaintiffs land and beyond on Parcel H3568. On that plan is a stamp that the parent parcel was transferred onto the Land Register on 13 August 1979. It can be inferred therefore that the public had notice of the access road thereon. [22] In this respect section 25 of the Land Registration Act (LRA) provides in relevant part: "Overriding interests Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same without their being noted on the register= (a) easements subsisting at the time of first registration under this Act; (b) easements for the benefit of the public or arising by law; ... " [231 In terms of section 25 (a) of the LRA the easement (the road) therefore was imposed on the servient tenement, which is Parcel H 1305, even before the Plaintiff bought the land. When the Plaintiff bought her land in 1994 the Second Defendant had already acquired the easement for the benefit of the public. The road created then is a public access road and remains in perpetuity and all persons are deemed to have notice of the same. [24] As rightly submitted by the Second Defendant, the refurbishment of the road amounts in any case to a benefit to the public for which registration is also not necessary. Its concreting initially by the First Defendant and subsequently by the Second Defendant is permitted by Article 697 of the Code which provides: "The owner of the dominant tenement shall be entitled to do all that is necessary for the use and preservation of the easement. " [25] Mirabeau v Camille [1974] SLR 158 has settled the jurisprudence in Seychelles on the issue of the type of acts that many be performed by persons to whom a servitude is owed. Sauzier J stated therein: " ... it is clear that the person to whom a servitude is due may make constructions on the land subject to the servitude so that he may use his right in a manner more convenient to him, although such constructions are not absolutely necessaryfor the exercise of his right provided however that no prejudice is thereby caused to the owner of the land subject to the servitude. [26] As was the case in both Mirabeau and Rose (supra) the Defendants were in their rights in concreting the road and the Plaintiff has as a result suffered no prejudice. In any case there was no evidence of such prejudice adduced even at the visit to the locus in quo. However notwithstanding, in terms of Article 701 of the Code, the Plaintiffmay offer the Defendants a place of equal convenience for the use of their right if it is too onerous on her or prevents , . her from carrying out improvements to her property but there was none avai lable that the surveyor or the Court could observe. [27] The Defendants have averred that the Plaintiff's suit constitutes an abuse of right. The Second Defendant has also submitted that the acts of the Second Defendant in concreting the road is protected by the Seychelles Land Transport Agency Act 2009. Consideration of these submissions would at this juncture only amount to an academic exercise which this Court in the circumstances declines to engage in. [28] The Plaintiffs action fails. The First Defendant counterclaimed and prayed inter alia for an order granting him a right of way where the present access road is located. There is no necessity for such an order as I have already explained that the road is a public access road, an easement, which is an overriding interest over the Plaintiffs land. [29] The Plaintiff's action is accordingly dismissed with costs. Signed, dated and delivered at lie du Port on 13 November 2017. M. TWOMEY Chief Justice Dr. Mathilda Twomey Chief Justice Supreme Court of Seycheller 7