Louis v Laporte (CS 164/2011) [2018] SCSC 8293 (16 October 2018)

.' IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS164/2011 [20181 sese 9::f-9 ROBINSON LOUIS Plaintiff Versus DIANNA LAPORTE Defendant Heard: Counsel: Mr Elvis Chetty for plaintiff Miss Alexandra Benoiton for defendant Delivered: 17 October 2018 JUDGMENT Robinson J [1] It is not disputed that the plaintiff was and is at all material times the registered proprietor of a parcel of land, registered as parcel S891 and of the building situated thereon, whilst the defendant is the registered proprietor of parcel S7811. Parcels S891 and S7811 are adjoined. It is also not disputed that the building constructed on parcel S891, which is a one-storey building comprising of a store and a master bedroom, has encroached on the defendant's land. The case for the plaintiff [2] The plaintiff averred that the encroachment occurred as a result of a genuine mistake rather than a deliberate act. The plaintiff further averred that, despite repeated requests by the plaintiff to the defendant for the defendant to sell the encroached one square metre to the plaintiff, the defendant has unreasonably refused and continues to insist that the plaintiff demolishes the encroached portion of the building, which is a clear abuse of the defendant's right. [3] Paragraph 4 of the plaint stated that, if the plaintiff demolishes the encroached portion of the building, this would affect the whole structure of the building, which would be costly to the plaintiff. The plaintiff further averred that S7811 is of the size of 1,199 square metres and the encroached portion is not close to the defendant's house. [4] The plaintiff contended that it is equitable and fair that the defendant be ordered to sell the encroached portion of one square metre of parcel S7811 to the plaintiff, at the current market value. [5] The plaintiff prayed this court to order- "(i) (ii) that the Defendant sells the encroached one square metre of parcel S7811 to the Plaintiff, at the current market value of the said one square metre; the defendant execute all the necessary documents, so as to allow in terms of section 19 of the Land Registration a reparcellation, Act, in respect of the contiguous boundary of Parcels S891 and S7811, the extension of parcel S891 by one square metre; and to reflect (iii) To make any other order this Honourable Court deems fit and necessary.". The casefor the defendant [6] The defendant denied the extent of the encroachment and averred that the encroachment also consisted of, "a concrete platform, parts of two retaining walls from Plaintiff's property and waste water being drained through a 50mm pipe from the Plaintiff's property, onto Defendant's property". [7] With respect to the encroachment, the defendant stated that she, "is unable to admit or deny the averments contained in paragraph 4 of the Plaint. Plaintiff is put 10 proof thereof By way of further answer Defendant avers that the rest of the encroachment can be removed without much inconvenience to Plaintiff, which Plaintiff have failed to do even when requested by Defendant. ". [8] The defendant further averred that she had, on various occasions, amicably approached the plaintiff and told him to remove the encroachment, which he had failed to remove. [9] The counterclaim repeated the allegations contained in the defence and averred that, because of the matters set out in the defence, the defendant has incurred losses and damages, for which the plaintiff is liable in law, particularised as follows; "Plaintiff's encroachment on the Defendant's property Rs ] 00, 000. 00 Discharge of waste water onto Defendant's property Rs 100, 000. 00 Cost of survey report Rs 8000. 00 ". [10] The defendantlcounterclaimant asked this court to dismiss the plaint and enter judgment in favour of the defendant as against the plaintiff in the total sum of 208,00.001- rupees and order the plaintiff to remove the encroachment with costs. Defence to counterclaim [11] In his defence to the counterclaim, the plaintiff denied the claims of the defendant. The plaintiff averred that the defendant has never approached the plaintiff for an amicable settlement; that the encroachment has not caused any significant damage to the defendant; and that no waste water has been discharged onto the defendant's property from the plaintiff's property or building. The evidence [12] The evidence of the plaintiff. According to the plaintiff a small part of the building, consisting of a bedsitter on the first floor and a store on the ground floor, encroaches on the defendant's land. The extent of the encroachment is "I to 1.5 meters". [13] He spoke to the defendant about the part of the defendant's land on which he had encroached. Initially the defendant agreed to sell the area of encroachment to him, but later refused to sell it to him. [14] Plaintiff did not deliberately construct on the defendant's land. He explained that, "the land was [his] at first"; and that he had caused to be excised a portion of his land and sold it to the defendant. That part of the defendant's land encroached by himself is not close to the defendant's house. If he were to demolish the encroached portion of the building, this would affect the structure of the building. [15] When cross-examined, he stated that he received an enforcement notice from the Town and Country Planning Authority because the building is not situated at the approved distance from the boundary. When asked by Counsel whether or not, "Q...the Planning Authority requested that [he] demolished the store and bedsitter?" he stated, "1 was no! been told. I have never received it.". When asked whether or not he appealed against the Town and Country Planning Authority enforcement notice (hereinafter referred to as "Planning'), his response was that he had not received any paper from Planning. Moreover, he stated that he had not received any decision of the Minister in relation to his appeal against the enforcement notice. With respect to the retaining wall that the defendant alleges to be encroaching on the defendant's land, he stated that it is not too close to the defendant's house. He denied the allegation of the defendant that a concrete platform and two retaining walls, constructed on parcel S891, encroach on the defendant's land. [16] He did not know whether or not the building would encroach on the defendant's land when it was undergoing construction. The position of the defendant was that he knew of the encroachment because he spoke to the defendant in relation to the construction which was situated close to the boundary of the defendant's land. He added that the defendant came to see him after construction and agreed to sell the encroached property to him. He knew of the encroachment after the defendant had engaged the services of a surveyor. He stated that he had acted in good faith; and that he was ready to pay the defendant for the encroached property. Later in the proceedings he stated, "we were neighbours and we used to get along well together. Like I have stated before I sell her this plot of land, I thought that if I have encroached a small part on her land, ifshe has a conscious that someone had done her good, she could have sell me this plot of land, there is nothing wrong. II (Sic) [17] The evidence of the defendant. The defendant testified that the plaintiff sold her a part of his land through her daughter, as she was away during the time of the sale. Later in 2007, the plaintiff started building on her property and she alerted Planning of the building, but to no avail. She then had a surveyor come to survey the extent of the work being done by the plaintiff. The plaintiff asked her to sell the land but she refused because she intends to extend her house on her land for her son, but presently cannot do so given the circumstances. Moreover, she testified that if she allowed the sale or the encroachment which includes a wall her son will not be able to extend his house as he will have to leave a certain distance from the new boundary. She also testified that since the plaintiffhas built his structures, this has caused her much distress and financial burden. [18] The evidence of Mr. Michel Leong. Mr. Leong a land surveyor, gave evidence on the joint application of the plaintiff and the defendant. His survey report dated 12 September, 2007, is before this court as PI; and his valuation report According to PI - is before this court as exhibit P2. "3.1. 3.2 . .. The main area of encroachment is located in the south-west corner of parcel S781l near the beacon AA452 and comprises of a small portion of an existing residential building and part of a area labelled as "Area 8" stone retaining wall. The encroachment amounts to approximately 9 square metres. A less significant This is labelled as "Area A" and amounts square metres." area of encroachment is near beacon MG76. to approximately [19] He stated that the comer of the building encroaches by 20 em onto the defendant's land, while the overhanging roof of the building encroaches onto the defendant's land by 80 cm. Submissions and analysis (20J This court has considered the pleadings, the evidence and the submissions of the defendant. It is undisputed that the building has encroached on part of the defendant's land in accordance with P 1. The written submissions submitted on behalf of the defendant set out the issues for the determination of this court- "(i) Has the Plaintiff encroached on the Defendant's land? (ii) Was the encroachment in good faith? (iii) Can the Defendant force the Plaintiff to demolish the land? (iv) Can the Plaintiff with the encroachment?" force the Defendant to sell the part of the land [21] This COUlt sets out the law on encroachments, particularly boundary encroachments, as between neighbours. In Danielle Mancienne and others vs. Yola Ah-Time and others SCA912010 and Nanon v Thyroomooldy SCA 4112009, the Court of Appeal of Seychelles stated- "1. 2. 3. 4. 5. 6. 7. If one builds on someone else's property a structure which entirely stands within the boundaries of that property, it will be article 555 of the Civil Code of Seychelles under which the fate of the structure and the indemnity, if any, to be paid will depend. However goes over article 555 finds no application. if one builds partly on one's property and the structure on his land, the neighbour'S boundary encroaching In such a case the neighbour can insist on demolition of that part of the construction which goes over the boundary and the Court to must accede to such request and cannot accept damages or compensation for the encroachment. force the neighbour The legal basis for such a stand is article 545 which provides: "No one may be forced to part with his property except for a public purpose and in return for fair compensation." If damages and compensation were allowed to be given instead of the principle of article 545 would be breached as the demolition, neighbour would be forced to part with the strip of land encroached upon for a private and not for a public purpose. The fact that the encroachment was done in good faith or brought about by a mistake as to the correctness of the boundary would have no effect on the Court's duty to order demol ition. The principle of strict application of article 545 of the Civil Code was laid down in France by the Cour de Cassation in a case reported in D 1970.426 (Civ 30, 21 no 1969). That case is reported commented and la Jurisprudence Civile by Henri Capitant. The commentary at pages 271 to 273 is most interesting. book Grands Arrets in the upon de In Mauritius the principle of strict application was followed in the case of Tulsidas (1976) MR 121. This state of affairs may cause grave injustice in certain cases. For a small area of land encroached upon, part of a huge building would have to be demolished causing damage out of proportion to the value of the land encroached upon. the courts have tried to find a way to temper the Naturally In Belgium and strictness of the principle with mercy and justice. in Mauritius, in cases where the encroacher has acted in good faith and within the rules of construction without breaking the law, and the insistence of the where demolition would cause great hardship, owner of the land to request demolition and refuse compensation is considered an abus de droit. In such a case the Court would not order demolition and would allow damages the compensation encroachment. commensurate and .. ". to 8. 9. 10. 11. [22J In Mancienne supra the Court of Appeal of Seychelles, at paragraph 17 of the judgment, stated, "where the facts reveal that a demolition order would be oppressive in the sense that grave injustice would occur if the order was made, account taken of the negligible extent of the encroachment compared to the gravity of the hardship by the encroacher, the Court should as an exception mitigate the consequence of damages instead of demolition. Nothing short of that would suffice.". [23] Nanon supra stated that the neighbour can insist on demolition of that part of the construction which goes over the boundary and the court must accede to such request and cannot force the neighbour to accept damages or compensation for the encroachment. It is clear from Nanon supra that the court may only decline a request for demolition if the neighbour has acted in good faith and within the rules of construction without breaking the law, and where demolition would cause great hardship. [24] This court has considered the issues raised together. [25J Accordingly, in order for this court to be able to make the orders prayed for by the plaintiff, the plaintiff must plead the material particulars with regards to the matters set out in Nanon supra. Section 71 of the Seychelles Code of Civil Procedure reads, "The plaint must contain a clear and distinct statement a/the material facts on which the plaintiff relies to meet the claims ... ". In the case of Gallante v Hoareau [1988] SLR 122, G. G. D de Silva Ag. J, stated, "the/unction a/pleading is to give fair notice a/the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the parties". [26] Having considered the plaint, this court is satisfied that there are no material averments that the encroachment was effected within the rules of construction without breaking the law. The plaintiff pleaded that the said encroachment occurred as a result of a genuine mistake rather than a deliberate act, which according to Nanon supra, "6 ... would have no effect on the court's duty to order demolition". In any case, having considered the evidence, this court is satisfied that this is a case where the plaintiff, who is emotional, thinks that he is in the right because he sold a portion of land to the defendant, which consists of the encroached property. Because he had sold the land to the defendant, the plaintiff believed that the defendant would sell the encroached property to him. It is also pertinent to note that P 1 also depicted other areas of encroachment by the plaintiff. In this respect, this court does not accept the version of the plaintiff that the constructions were made in good faith. This court is satisfied that the said encroachment pleaded occurred as a result of a deli berate act. In addition this court is not satisfied that the plaintiff has proven how any demolition of the encroachment pleaded would cause him grave hardship. As stated in Mancienne supra, nothing short of grave hardship would prevent his small building from the wrecking ball. [27] This court considers the counterclaim. [28] Section 80 of the Seychelles Code of Civil Procedure provides - "( I) to subsection (2), where a defendant in any action wishes Subject to make any claim or seek any remedy or relief against a plaintiff in respect of anything arising out of the subject matter of the action, he may, instead of raising a separate action make the claim or seek the remedy or reliefby way of a counterclaim in the action; and where he does so the counterclaim shall be added to his defence to the action. (2) If, on the application of any party against whom a counterclaim is made, it appears to the COUlt that it is in the interests of justice that the subject matter of the counterclaim be dealt with as a separate action, the Court may (a) (b) (c) order that the counterclaim be struck out; order that it be tried separately; or make such order as it considers appropriate." [29] Section 80 of the Seychelles Code of Civil Procedure clearly stipulates that a counterclaim is to be treated as a separate action: see, for example, Amon v. Bobett, 22 Q. B. D. p. 548. "A counterclaim is substantially a cross-action,' not merely a defence to the plaintiff's claim. It must be of such a nature that the Court would have jurisdiction to entertain it as a separate action: (Bow Maclachlan & Co. v. The Camosun, [1909] A. C. 597; Williams v. Agius, [1914] A. C. 522). It is trite that rules of pleading apply to counterclaim and defence to counterclaim as though they are respectively a statement of claim and a defence. The position is that if after the defendant has pleaded a counterclaim, the action of the plaintiff is for any reason stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with. [30] Having considered the defendant's counterclaim, this court is satisfied that it does not meet the requirements of the rules of pleading. It does not contain a clear and distinct statement of the material facts on which the defendant relies to meet the claims. The counterclaim repeated the allegations contained in the defence and averred that, because of the matters set out in the defence, the defendant has incurred losses and damages for which the plaintiff is liable in law. For example, it does not aver whether or not the plaintiff has illegally and intentionally encroached on the defendant's land, although the evidence appears to suggest that the plaintiff has illegally and intentionally encroached on the defendant's land. In this respect, this court states that the prayers are not in order. (The pronouncement in Gallante supra has been considered and applied). Decision [31] In light of all the above, this court dismisses the plaint with costs and the counterclaim. Si ned, dated and delivered at IIe du Port on 17 October 2018 inson F S' ting as a Judge of the Supreme Court 10