Malvina v Louise (SCA 14 of 1997) [1997] SCCA 31 (5 December 1997)

IN THE SEYCHELLES COURT OF APPEAL NORBERT MALVINA APPELLANT VERSUS VIOLETTE LOUISE RESPONDENTS (Before: Sifungwe, Ayoofa & Adam JJA) /--"-~ Civil Appeal No. 14 of 1997 ..'. "\~tao·f~r~e~p~~~~t ........,.. Mr. P. Boulle for the Respondent . '"IS): ro, \ \~ JUDGMENT OF THE COURT Delivered by Silungwe. J. A. This is an appeal from a ruling of Amerasinghe, J., wherein he rejected the appellant's had a usufructuary interest over the appellant's land, i.e., parcels T.775, T776 and T.777. application and ruled that the respondent The synopsis of the case is that the respondent is the daughter of Mrs. Viola Malvina who owned parcel T326. By a deed (exhibit Xl) dated April 17, 1980, to live on the said parcel of land "and Mrs. Malvina authorised the defendant to enjoy it exclusively as if it were her own." Subsequently, parcel T326 was subdivided into T775 (on which stands the respondent's dwelling house), T776 and T777. On August 28, 1990, the subdivisions of land were altogether sold to Mr. Emmanuel Mathew Malvina who in turn sold them to the appellant on April 30,1992. In his plaint, the appellant averred, inter alia, that the respondent was staying on his land, cultivating vegetables and rearing animals without his authorisation or compensation. Paragraph 6 of the Plaint reads:- "The Plaintiff avers that he had several times to purchase the said requested the defendant - 2 - Parcel T775 or compensation but she has refused." to pay him some form of He prayed for an order, inter alia, that the respondent removes her house from his land or, alternatively, that she buys the parcel of land on which her house stands. Although initially two grou'nds of appeal were filed in this case, the first one has now been withdrawn. The remaining ground alleges that - the consider provrsions "The learned judge erred in law in that he did the Land not Registration Act and that is a for value without notice due bonafide purchaser to the fact the respondent that relied on was not registered." of the plaintiff the document In urging us to uphold the learned judge's ruling, Mr. Boulle, learned counsel for the respondent, submits that the ruling of the learned trial judge was restricted to the narrower issue of whether the right conferred by a document - Exh. Xl at page 27 of the record - was a mere "permission to build" or a "usufructuarv interest". Mr. Boulle is entirely right in his submission. Although the Land Registration Act was adverted to by both learned counsel in their respective arguments, this was not a matter upon which the court was invited to make a ruling. In point of fact, it was counsel for the appellant who had specifically moved the trial court to consider whether the right conferred upon the respondent by the appellant's predecessor in title was a mere "permission to build" or a "usufructuary interest" and to make a ruling thereon. The request was framed thus:- and friend is whether a settlement but "However, my learned negotiating only that we need the court this document that rather than a mere permission would go under Article 555 whether create a usufructuary need the court to decide." I were there is one point to thrash for us and has created a to build which it does is all we interest. That - 3 - In his ruling, Amerasinghe, J, said (inter alia): to this an amicable action settlement, the parties for have "Although the negotiated disagreement on the force and effect of the document Xl has prevented them from arriving at a settlement. Hence the parties have sought the opinion of the court. The resolution of the dispute will be directed towards determining whether interests of the parties are based on the application of Article 555 or Article 578 of the Civil Code. Mr. Bonte for the plaintiff contends that inspite of the authority given in Xl for the to live on land parcel T326 and to defendant enjoy it exclusively as if it were her own, the construction of a house by the defendant on the said land with the authority of the owner who is her mother creates only an interest in the house and therefore Article 555 applies. Mr. Boulle on the intention of the the other hand finds that defendant's mother as expressed in her writing before a Notary in exhibit Xl creates a usufruct. He quotes Article 579 of the Code and submits is created by law or the will of that -A usufruct the parties." Article 578 of the Civil code defines "usufruct" as "the right to enjoy property which belongs to another as the owner himself, but subject to the obligation to preserve its substance." And in the words of Professor Chloros in his Codification in a Mixed Jurisdiction - The Civil and Commercial Law of Seychelles - 1977 Edition at page 79:- to a "In essence the usufruct is often equivalent life interest, but it may, of course, be created for a shorter period and, in the case of a legal person, it cannot extend beyond thirty years." Amerasinghe, J., accepted Mr. BoulIe's argument that exhibit Xl which pertains to Parcel T326 and authorises the defendant (respondent) "to live on - 4 - the said land and to enjoy it exclusively as if it were her own" provides all the ingredients necessary to create a usufruct in accordance with the Civil Code. \X,'eare satisfied that Amerasinghe, J. was not at all in error by confining himself to the only issue upon which he had been invited to make a ruling. to the effect that exhibit Xl created a usufructuary Thus, his pronouncement interest in the respondent's favour is impeccable. In any event, this was simply a ruling on a preliminary and specific issue submitted to the trial court for the sole purpose of seeking its guidance with a view to facilitating the parties' negotiations for a settlement. follows It from what we have said above Accordingly, the appeal is dismissed with costs in the cause. that the appeal must faiL Dated at Victoria this ~~ day of December. 1997. "\. M. SILUNGWE JUSTICE OF APPEAL 1 [, . V ~\Ul.~... i 1.- ...~.~ E. O. AYOOLA JUSTICE OF APPEAL ~.~.~ ..............•.......... M. A. ADAM JUSTICE OF APPEAL ~