Delpeche v Gregoretti & Anor (CS 4/2004) [2017] SCSC 945 (26 October 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: 4/2004 [201 ] sese Ict:rf.- Plaintiff First Defendant Second Defendant Monique Delpeche versus Marie Ange Gregoretti Mary Morel Heard: Counsel: 14 and 15 September 2017 Mr. Frank Ally for the Plaintiff Mr. France Bonte for the Defendants Delivered: 27 October 2017 JUDGMENT M. TWOMEY, CJ [1] Donald Delpeche owned Parcel V772 at Beau Vallon, Mahe, On 6 November 1973, he sold the same to one Gunther Mr. Bongers with the reservation to himself of part of the land in the following terms: "from the remaining portion of plot V772 lying to the West 0/ the new road a portion equivalent in area to plot V7i2 (a plotformerly surveyed under this parcel number but nOli' incorporated in the larger area registered under plot V722). The location a/the area reserved /0 be by agreement between [he parties. " [2] Donald Delpeche died testate less than three months later in January 1974 without the location of the reserved portion of Parcel V772 being agreed upon. [3] In March 1981, Gunther Mr. Bongers sold Parcel V772 to the First Defendant, subject to the same reservation 'with which he had purchased the land. [4J In August 1985, the First Defendant sold 400 square metres of Parcel V772 to Sylvia and Nicole Ah- Time. [5] In June 1986, Sylvia and Nicole Ah-Time sold the portion of land they had purchased from the First Defendant to the Second Defendant. [6] In 1996, the Plaintiff, the executrix of the estate of Donald Delpeche, applied to the court for a division in kind of property, namely part of Parcel V772 which she claimed was co owned by the beneficiaries of the de cujus and the Defendants. [7] The Court found that Parcel V772 had been subdivided into three plots, Parcel V1112 consisting of 1683 square metre located south westerly, Parcel V964 consisting of 1] 17 square metres located centrally and Parcel V965 consisting of 4725 square metres easterly. The First Defendant was registered as the owner of these parcels. [8] After the subdivision of Parcel V772 into Parcels Vll12, V964 and V965, there remained a further parcel of land registered as Parcel V712 with vacant possession which in the Court's opinion was the reserved portion unwittingly co-owned by the parties. [9} Ultimately, the Court found that a co-ownership between the parties did arise but the application for division in kind could only be granted in terms of Parcel V1112 which it found was the reservation referred to by Donald Delpeche when he sold Parcel V772 to Gunther Mr. Bongers. [10] The decision was appealed to the Court of Appeal which had to decide whether a co ownership had arisen between a vendor and a purchaser where the vendor sells a parcel of land to the purchaser subject to a reservation to the vendor of a portion of the land to be extracted by agreement of the parties from the land sold to the purchaser. [1 1] The Court found that no co-ownership arose between the beneficiaries of the de cujus and the successors in title of Mr. Bongers as there had been "neither a joint acquisition or joint vesting of, nor joint entitlement to property" in terms of Article 816 of the Civil Code of Seychelles. The property had been transferred to Mr. Bongers "as sale owner thereof." A partition in kind could not therefore be ordered. The Court recognised that there ought to be some form of relief for the beneficiaries of the de cujus in terms of the portion of land that had been reserved to him either in law or in equity but did not suggest any course of action by the beneficiaries. [12J Hence, began the second round of court action. In January 2004, the Plaintiff filed the present action claiming that the beneficiaries of de cujus were entitled to the reserved portion of land stated in the deed of sale to Me. Bongers and to the First Defendant. The Defendants submitted in limine litis that the matter was res judicata and the Supreme C0U11 agreed dismissing the claim. [13] On appeal. the Court of Appeal found otherwise, deciding that the plea was wrongly decided since there was no identity of cause of action between the first case (CS 305/96 and the second case (CS 4/2004). The matter was remitted 10 the Supreme Court with the following qualification: "[l S] At the close a/the hearing of this appeal, hath counsel rook the view that if would be ;/7 the best interest of all the parties concerned. including those persons 'who are not parties to this case but who may be vel}' much on site, that the government surveyor be appointed by the Supreme Court so that with all the po"wers and possibilities at his disposal he can produce a report in the light of which the parries will take a stand as 10 what would be {he best practical solution in this long standing dispute. {J9 Considering the specialfeatures of/his case, originating as if does from the inadequacy of the old law, we also take the vie'w that that would be {he best course of action. ftVe,accordingly, direct the COliI'I to appoint the government surveyor/or the purpose above-mentioned and proceed /0 the completion of the hearing on the production a/the report" [14] In June 2007, a gap of nearly seven months after the decision of the Court of Appeal the Master of the Court directed that Mr. Pragassen, a government surveyor, be appointed as appraiser for the matter and produce a report to the Court by the 2 October 2007. In October 2007 with no report on file, Mr. Gerald Hoareau, the government surveyor was instead appointed to carry. out the same work. [15] And so the matter rested for ten years with Karunakaran J with no order issued for the surveyor to comply with previous court orders or seeking to find out why the report was not forthcoming. [16] The matter was finally heard by this C01l11on 14 September 2017 with both parties adducing evidence to support their respective positions. Upon agreement of the parties, the issues to be decided by this Court were: 1. Whether there was a valid reservation in favour of the vendor created in the transfer of title to the purchaser 2. If so, whether the reservation has been transmitted to the beneficiaries of the vendor or prescribed by time. [17] Both issues are intermingled. Both parties testified but their evidence is limited as to the production of documents and their own opinion as to whether the reservation survived the death of the de cujus, the subsequent transfers of the land and the location of the reserved plot of land. Essentially, the case has to be decided in the light of the law. [18] As regards the first issue, the Plaintiff produced the root of title as concerns this claim, that is, a transcription dated 15 November 1973 (Exhibit PI) in which Donald Delpeche transferred to Gunther Bongers Title V722 of the extent of 1.854 acres at Beau Vallon but reserving for himself a portion of the same equivalent in area to Parcel V712 (see supra. paragraph 1). [19] It is not denied that this reservation in respect of Donald Delpeche was valid. The difficulty with the reservation as I have already stated is that it is not identified but is subject to it being locatcd by the parties. As I have already stated, Donald Delpeche passed away a few months later and the reserved parcel of land was never identified although Gunther Bongers on transferring the same parcel qualified the transfer by inserting the same reservation in favour of his predecessor in title with which he had acquired the land. He obviously knew that Donald Delpeche had passed away. [20] The submission of Mr. Bonte. Counsel for the Defendants, is that the reservation did not bind third party purchasers as in any case the plot of land reserved having never been identified, its distraction was prescribed and the Defendants owned Parcel V722 or its subsequent subdivisions absolutely. [21] The issue first of all to be 'decided by the Court, therefore, is whether a reservation in a title deed is subject to prescription. This begs the allied question as to whether an action asserting a property right can ever be prescribed. [22) The general rule of prescription in respect of real actions is the following found in Article 2262 of the Civil Code: "All real actions in respect of rights 0.( ownership of land Of' other interests [herein shall be barred by prescription after twenty years whether the party claiming the benefit of such prescription can produce a title or not and whether such party is in good faith or 110t. " .. [23] That rule however is subject to the qualification derived fromjurisprudence constante that an "action en revendication (action where two aspirant owners are competing in title to the same property) is not subject to limitation. Hence the twenty year prescription in relation to real rights (Article 2262) is not applicable to such claims since the non-usage or physical possession ofland where one has title does not result in the loss of property rights (see in this respect in Seychelles Nolin v Nolin (unreported) [20161 SCCA 13 and the Cour de Cassation of France: Civ. 10 mai 1937, DH 1937.346; Civ. se, 9 juill. 1970, JCP 1971. n. 16759~note Goubeaux, D. 1971. Ill, RTD civ. 1971. 397, obs. Bredin ; Ass. plen., 23 juin 1972, D. 1972. 705.,conel. Lindon, JCP 1973. II. 17331, note Goubeaux et Jegouzo, RTD civ. 1973. 147, obs. Bredin; Civ. 3e, 16 mai 1974, Bull. civ. Ill, nono 208, p. 157 ; 12 avr. 1976, D. 1976. IR. 195 ; 14 nov. 1979, JCP 1981. II. 19507, note Goubeaux; 22 juin 1983, JCP 1986. II. 20565, note Barbieri, Defrenois 1983. 1063, obs. Souleau, RTD civ. 1984. 744, obs. Giverdon ; 5 juin 2002, Bull. civ. III, n? 129, JCP 2003.!. 117, n? 1, obs. Perinet-Marquet, D. 2003. 164 L note G. Pellet; 9 juill. 2003, JCP 2004. 1. 125, n? 4. obs. Perinet- Marquet, Defrenois 2004. 816, cbs. Atias). [24] I find therefore that given the fact that actions en revendication are never prescribed, by logical extension a reservation in a deed of sale where the transferor retains some form of ownership, right or interest is not subject to limitation. [25] The next question is whether the fact that the reserved parcel of land was never identified or located by the vendor or purchaser and third party purchasers is valid. Mr. Bonte has submitted that the identification of the reserved portion is also subject to prescription. He has not expanded on this submission nor has he cited authorities to this effect and I am not therefore persuaded by this submission. [26] I tend on the other hand to be more persuaded by the submission of Mr. Ally, learned Counsel for the Plaintiff, that the reservation was maintained in the title deed with full knowledge by the Plaintiff as it was in the deed of sale between herself and Gunther Bongers dated 15 November 1973 (Exhibit P2) and continues to this day. [27] The First Plaintiff could not therefore have been possessed of land which was reserved to Donald Oelpeche and ultimately his beneficiaries. The fact that the transfer of Parcel V772's subdivisions, namely Parcel V1112 from the Old Land Register to the New Land Register is registered as a qualified title lends strength to this submission. [28] The final issue to be resolved is the location of the reserved portion of land. At this point it is we!I to remind ourselves that the order of the COUl1 of Appeal was 10 the effect that the Supreme Court appoint the government surveyor to produce a report on which the parties would take a stand as to what would be the best practical solution in thus long standing dispute. [29] An independent land surveyor, Brian Felix testified that after studying the title deeds, cadastral plans and visiting the site he concluded that since Parcel V712 was 608.2 square metres and the reservation had been to the effect that the reserved portion was equivalent in area to it, and lying west to the new road. he identified an area of 608 square metres on Parcel V 1112 as the reserved portion which remained vacant to date. He produced a site plan he had marked which depicts the reserved parcel ofland in pink (Exhibit P.?). [30] Julien Alexis, the Director of Survey in the Ministry of Habitat, Infrastructure and Land Transport also testified. He had also studied. the title deeds and cadastral plans and came to the same conclusion as did Mr. Felix. In his view Parcel V 1112 was distracted from Parcel V772 and was located to the west of the road and since the northern part of Parcel Vl112 was developed and the southern portion to the extent of 6088 square metres remained vacant and undeveloped he had also produced a site plan in which the reserved portion was identified and marked in red (Exhibit P 12). This was identical to the area marked by Mr. Felix. [31] The fact that the First Defendant agrees that she only transferred 400 square meters of land on the northern part of Parcel V 1112 to the Second Defendant and it remains vacant as also confirmed by the Plaintiff and Marinette Ah-Time is persuasive of the location of the reserved portion of land. [32] It is true that the reserved portion of land was never identified by Mr. Delpeche and Mr. Bongers, the former's death having obviously overtaken the exercise oflocation of the plot, but this agreement is respected by Mr. Bongers in his subsequent transfer of the land to the First Defendant. [33] Articles 1156 and J 157 of the Civil Code of Seychelles provides: 1156. In the interpretation a/contracts. The common intention of the contracting parties shall be sought rather than the literal meaning of the words. However, in {he absence of clear evidence, the Court shall be entitled to assume (hat the parties have used the words in the sense in which they are reasonably understood. 1157. When a term can bear two meanings. the meaning which. may render it effective shall be preferred rather than the meaning which would render it without effect ". [34] These provisions indicate that where the provisions of a contract are clear then the intention of the parties are given effect by the Court. 'What is clear from the agreement between Delpeche and Mr. Bongers is that a portion of land of about 608 square metres is reserved to Mr. Delpeche. That agreement has to be given effect to by the court. [35] What is not clear is the exact location of the reserved portion. I am not of the view that the agreement must fail since the exact location of the reserved portion is not identified by the co-contactors to the agreement given the provisions of Article 1157 (supra). [36J [ do take into account the provisions of Article 1602 of the Code which obliges the seller to explain clearly what he undertakes but 1 also note that Article 1602 is limited by Articles 1156 and 1157 (supra). [37] This case is not unlike the situation in Wilmot v W & c. French (Seychelles) (1972) SLR 144 where a reservation in a deed of sale was not clearly identified. The distinction between Wilmot and the present case is that in the former the reservation was not precise unlike the reservation in the deed between Mr. Dclpeche and Mr. Bongers. [38] The reservation in Wilmot was also merged with other land belonging to the vendor after a judgement by consent and transferred as a whole to a buyer who then transferred it without reservation to a third party. After acquiring the property, the third party occupied the whole property and neither the vendor nor his heirs tried to assert their right of ownership over it. The COUlt found in the circumstances that it. had been the intention of the original vendor to sell the whole of the property. [39] In the present case, the reservation was maintained in the deed of sale by Mr. Bongers to the First Defendant. She was therefore aware of it and the reservation is copper fastened when the land is transferred onto the Land Register with the First Defendant only having qualified title to it. [40] The location of the reserved portion according to the description given to it in the deed of sale is identified by two surveyors independently of each other. That is powerfully persuasive. This evidence is in no way rebutted by the Defendants. [41] In the circumstances I find that the reservation subsists and I enter judgment in favour of the Plaintiff. [42] I order the Director of Survey In the Ministry of Habitat, Infrastructure and Land Transport to distract the reserved portion from Parcel V 1112 as identified by himself in red on Exhibit P 12, now Plan A attached to this Judgment and to have that subdivided parcel registered in the name of the Estate of Donald Delpeche represented by the Executrix. [43] Costs are awarded to the Plaintiff. Signed, dated and delivered at lie du Port on 27 October 2017. ,L M. TWOMEY Chief Justice Or. Matt.ilda Twomey Ch ef Justice C::"')rem&Court or Seychelles 9