Property Law

[1]        This is an Application for leave to seek Judicial Review registered on 30th day of May 2017.

[2]        Learned Counsel moved the Court in terms of the Application, for an Order granting him leave to proceed with an Application for Judicial Review.

[3]        The Application for leave is accompanied by an attached Application for Exercise of Supervisory Jurisdiction under Article 125 (c) of the Constitution of the latter date, as supported by an attached Affidavit of the Applicant of the 9th day of May 2017.

[4]        Attached I note is also a copy of the decision sought to be canvassed.

[5]        Having perused the documents, I am satisfied that the Application complies with the rules in that:

the Application is made pursuant to Rules 2 (1) of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules, 1995 (the Rules);
the Application complies with the provisions of Rule 2 (2) of the above Rules;
the Application complies with Rule 3 of the Rules;
the Application has been made within the three months’ time limit as provided in Rule 4;
it satisfies the Court that the Applicant has sufficient interest in the matter and that this Application is made in good faith as provided in Rule 6 (1).

            [6]        On the basis of the above I hereby grant leave for the matter to proceed.
            [7]        I hereby further direct that notice be served on the Respondent together with the application, affidavit and all connected documents and exhibits as filed in accordance with Rule 9 of the Rules.

            [8]        I direct that objections in writing accompanied by an affidavit in support are to be filed within six weeks of service (unless the Court orders otherwise) as provided by Rule 12.


            [9]        The Respondent is further directed to forward all relevant records to the Court as provided in Rule 10.

            Signed, dated and delivered at Ile du Port on 23rd day of June 2017.

            Laura Pillay
            Judge of the Supreme Court

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 1076 (13 November 2017);

Anonymous — Fri, 01 Jul 2022 09:45:51 +0000

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 1076 (13 November 2017);

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Administrative Law

Property Law

Anonymous (not verified) Fri, 07/01/2022 - 09:45

Headnote and holding

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L Pillay, J

This is an application for Judicial Review filed by the Petitioner on 30th May 2017.

The facts are as follows. By a lease dated 8th November 2016 and registered 21st December 2016, the Petitioner leased the land comprised in title V. 9215 situated at Bel Eau for a term of 60 years for the purpose of Daycare and Hairdressing Salon. By an application dated 28th March 2017 the Petitioner applied to the Respondent for a change of use of the building.

By notice dated 25th April 2017 the Petitioner was informed that her application had not been approved on the basis that the Planning Authority was in possession of a document relating to cancellation of the lease of the parcel.
The Petitioner's counsel argues that the said refusal was unjustified, illegal disproportionate, and/or unreasonable and was reached in a procedurally improper manner.
The Respondents argues that the role of the Court in judicial review cases is to review the decision-making process of a decision making body or person, to consider whether relevant considerations were taken into account, whether there was any evidence of deception or bad faith ...without the Court substituting its opinion for that of the authority.
The issues to be decided are as follows:

Was the decision by the Respondent unjustified, illegal, disproportionate, unreasonable and reached in a procedurally improper manner?

ii) What is the remedy available to the Petitioner?
iii) Is the Petitioner entitled to damages?

When exercising its supervisory jurisdiction the Court examines the decision making process that was used. Essentially it will look at whether the decision making process was illegal, irrational, unreasonable, and procedurally improper.
In the case of Council of Civil Service Unions and others v Minister for the Civil Service (1984) 3 All ER 935 -the three grounds on which a decision may be subject to judicial review were classified as - illegality; irrationality and procedural impropriety. Procedural impropriety included not only the failure of the administrative body to follow the procedural rules laid down in the legislative instruments by which jurisdiction is conferred but it also includes the failure to observe the rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.
Per Domah J in Raihl v Ministry of National Development (2010) SLR 66 "the golden rule jealously guarded in administrative law by the courts is that no executive decision adversely affecting the rights of the citizen, more particularly, his property rights, may be taken behind his or her back, without affording him or her an opportunity to be heard.”
Dornah J went on to add that "no matter how valid and warranted the executive considered the facts and circumstances were, in its eyes, which justified the order of revocation, it could not do so without affording the citizen a right to be heard".
It is trite that administrative law is about judges controlling the manner in which the executive chooses to exercise power which Parliament has vested in them. It is about exercise of executive power within the parameters of the law, which should be judicious; not arbitrary, capricious, abusive or in bad faith. The executive is under a duty to act fairly.
The Court may issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.
With regards to the present case, it is clear in the First Schedule that the lease was for the specific purpose of a Daycare and Hairdressing salon, c.f. clause 7 (10) (b), that the Lessee (Petitioner) not use the premises other than for the purpose of use as described in the First Schedule. It is also clear that the leased premises is at present a residential property hence the Petitioner's application for change of use in order to comply with her obligations.
The basis of the Respondent's refusal to grant the change of use was the letter of 25th February 2017. The letter was sent to the Petitioner only from a representative of the Lessor and not copied to anyone else, leaving open the question of how the Respondent carne to have a copy of the letter. The receipt of the said letter by the Respondent who was not a party to the lease and the Respondent's consideration of the letter in refusing the application for change of use cannot be regarded as proper.
Furthermore the Petitioner's views were not sought on the matter, seeing that she was the applicant for change of use and the other party to the purportedly cancelled lease.
In such as the Town and Country Planning Act provides that the Planning authority may refuse permission it cannot do so without valid reasons. It is required in law to have regard to material considerations. I agree with Counsel for the Petitioner that the decision was not reached in a procedurally proper manner. The purported cancellation was irrelevant for the purposes of the consideration of the application. The Respondent erred in coming to a decision based on a purported cancellation of the lease without giving the Petitioner an opportunity to be heard.
I note "en passant" that clause 8 provides for the Republic to resume possession of the property in the event of war or upon the declaration of a state of emergency, of which neither situation exists. Indeed as counsel says there is no provision in the lease for tem1ination as a result of the property being required for military purposes.
In saying that, whether or not the Petitioner's lease had been cancelled was a matter between Republic of Seychelles, as the Lessor, and the Petitioner, as the Lessee. It had nothing to do with the Respondent. The Respondent’s role was simply to consider the application for change of use that had been submitted for consideration.
On that basis it is necessary that a writ of certiorari be issued.
As regards a writ of mandamus compelling the Respondent to change the use of the building located on the Leased Property from residential use to use for the purpose of a day care centre for children I am of the view that the application was not properly considered or considered at all in the first place by the Respondent. I note on the file there are various comments and letters from Department of Health, Land Transport and PUC amongst others. It is for the Respondent now to give proper consideration to the application along with the documentation from the different agencies, taking into account the rules of natural justice and come to a decision, and not for the Court to order the change of use.
On that basis I decline to issue a writ of madamus.
As for damages I note section 18 (2) of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules which reads as follows:

The Supreme Court may, where the petitioner has claimed damages in the petition, award him damages, if the Court is satisfied that if the claim is made in an action begun by the petitioner at the time of making the petition, he could have been awarded damages.

With regards to the present case I note that clause 7 of the Agreement provides as follows:

"The Lessee hereby covenants with the Republic that the Lessee shall:-
(a) before the proposed development in respect of the permitted use stated in the First Schedule hereto is commenced, submit plans of the proposed development to the Town and Country Planning Authority ... and obtained their approval under the Town and Country Planning Act; and
(b) If approval for the proposed development is granted by the Authority, complete the development within a period of twenty four (24) months, ... "

On the above, the argument of Mr. Ally cannot be maintained. The Petitioner cannot claim to have had a "legitimate expectation that since the Government has leased a premises for such use then the change should be effected." It is clear in the lease that before the project was commenced the Petitioner had to submit plans of the proposed development to the Town and Country Planning Authority.
I also note the case of Elke Talma v/s The Minister of Land Use and Housing MC 65/2014, [2015] 733 delivered 12th January 2016. In that case exemplary damages was awarded, following the case of Michel v Talma [2012] SLR 95, on the basis that the actions of the servants of the government which are oppressive, arbitrary and unconstitutional justifies an award of exemplary or punitive damages. In the present case I am of the view that the actions of the Respondent were illegal, unreasonable and disproportionate, however I am not satisfied that it is oppressive as in the Talma case above. On that basis the prayer for damages has to fail.

On the basis of the above I make the following orders:

(1) I hereby issue a writ of certiorari quashing the Respondent's decision.
(2) The Respondent shall pay the costs of the suit.

Signed, dated and delivered at Ile du Port on 13th November 2017

L Pillay, J

This is an application for Judicial Review filed by the Petitioner on 30th May 2017.

Was the decision by the Respondent unjustified, illegal, disproportionate, unreasonable and reached in a procedurally improper manner?

ii) What is the remedy available to the Petitioner?
iii) Is the Petitioner entitled to damages?

With regards to the present case I note that clause 7 of the Agreement provides as follows:

On the basis of the above I make the following orders:

(1) I hereby issue a writ of certiorari quashing the Respondent's decision.
(2) The Respondent shall pay the costs of the suit.

Signed, dated and delivered at Ile du Port on 13th November 2017

Nicette v Payet (CS 19 of 2014) [2021] SCSC 368 (28 June 2021);

Anonymous — Fri, 01 Jul 2022 09:38:48 +0000

Nicette v Payet (CS 19 of 2014) [2021] SCSC 368 (28 June 2021);

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Civil Remedies

Property Law

Anonymous (not verified) Fri, 07/01/2022 - 09:38

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                                            SUPREME COURT OF SEYCHELLES
_____________________________________________________________________________

                                                                                             Reportable
[2021] SCSC 368
C/S019/14

In the matter between:

Joan Nicette                                                                         Plaintiff
of Mont Buxton, Mahe
(rep by Mr Chetty)
Vs
Cyril Payet                                                                          Defendant
of Mont Buxton, Mahe
(rep by Ms Domingue)

Neutral Citation: Joan Nicette vs Cyril Payet (SC 19/14) [2020] SCSC 368 (28 June 2021).
Before:                   Govinden CJ
Summary:             Construction partly built on adjoining property; encroachment; application of Article 545 of the Civil Code;
Heard:                   25th October 2020

Delivered: 28th June 2021

JUDGMENT

GOVINDEN CJ
INTRODUCTION

The Plaintiff has filed this suit against the Defendant alleging that he has illegally constructed on two parcels belonging to her and has asked the court to declare the constructions as illegal and to compel him to demolish them. The Plaintiff avers that she is the Fiduciary and part owner of parcels V1184 and v2297 upon which is found a house and that the Defendant is the owner of an adjoining parcel bearing title V1215. She avers further that the latter has illegally and without her consent built or caused to be built part of his dwelling house; a septic tank and a retaining wall on her parcels of land. It is further averred that the Defendant acknowledged the rights of the Plaintiff on and to the encroached parcels in a letter written to him by the Defendant’s Attorney.
The Defendant on the other hand denies the claim and raised a Counterclaim. His defence consist of two preliminary objections, which are that the Plaint is time barred and that the Defendant has acquired part of parcels V1184 and V2297 by way of acquisitive prescription. On the merits, the Defendant does not dispute the Plaintiff’s title to those plots. As to his title, he avers that in 1984 he purchased V1215 from his mother and siblings upon which was found the family home built by his father before 1974. He avers that in 1993 he demolished part of a house found on his land and rebuilt the existing house in the same location and added a wall. He denies building illegally on the Plaintiff’s property and avers that as the original house and septic tank (as he only re-built part of the house and the wall in 1993) were built over twenty years ago, the Plaintiff’s action is time barred and that at any rate he has been in continuous, uninterrupted, peaceful, public and unequivocal occupation of part of parcel V1184 and parcel V2297 for more than twenty years. The Defendant admitted that he did not seek the consent to build the wall however he avers that this was as a result of a genuine mistake on his part. He further accepted to have acknowledged that part of his structures were built unto the Plaintiff’s property, however he avers that that was not an acceptance of liability but was made in the process of an amicable settlement.
In the Counterclaim, the Defendant again raised the Defence of acquisitive prescription of part of parcel V1184 and parcel V2297.
Accordingly, the Defendant request that the court declares him owner based on his plea and to dismiss the Plaint as being time barred.
On her part the Plaintiff denies the Counterclaim and reiterates that the Defendant had acknowledged the rights of the Plaintiff as owner of parcel V1184 and part of the encroached V2297 by way of a letter. At any rate, the Plaintiff avers finally that the acknowledgment on the part of the Defendant has interrupted the flow of prescription.

The evidence

According to the Plaintiff she is part owner and the Fiduciary of parcels V1184 and V2297 of which her neighbour, the Defendant, Cyril Payet has partly built upon. She produced the Official Search Certificates for the two parcels which shows that the said parcels are co-owned by her and her four children, she owns half and the other half are jointly owned between her and her four children upon the passing of her late husband. She testified that the Defendant has encroached on parcel V1184 with his house; a wall and a septic tank. According to her when the Defendant was doing these works her father had spoken to him and informed him of the encroachment and the former had informed him go to sleep and stop worrying as he (the father) was about to die. In 2011 she commissioned a Land Surveyor, Mr Michel Leong, to do a survey of which the Survey Plan, Exh P4, was produced in evidence and the plan shows an encroachment of about one hundred metre squares. She produced a letter that was written by the lawyer of the Defendant in which the latter admitted the Defendant’s encroachment. She wants the Defendant to remove his wall; septic tank and give her back her land. She admitted that there was a house on the exact foundation of the existing house of Mr Payet, however she says that his current house that was built in 1993 is much bigger than the corrugated iron house which caused the encroachment and that at any rate the septic tank and the wall was not there before. The wall was built by the Defendant around 15 years ago. She went away and lived at her in- laws and came back to the family home when her father passed away. The Defendant would then throw dirt over unto her place and trespassed in order to mend his flowers from the encroached area. The Plaintiff denies that her father intentionally refrained to institute a case for the encroachment based on his good relationship with the Defendant and claimed that the Defendant attempted to offer them another plot of land in exchange when the Surveyor spotted the encroachment. Having found out about the true state of affairs, the Defendant in October 2011 wrote to the Plaintiff and her brother a letter and tried to settle the matter. She accepted that she filed the suit in February 2014 and says that this could not have been 20 years out of time. She denies any animosity between her and the Defendant, though they are not on speaking terms.
The 2nd witness called by the Plaintiff was Mr. Michel Leong. He drew a survey plan for verification of boundary beacons between the boundary of parcel V1184 and V 2297 belonging to the Plaintiff and V 1215. Having done so, he found that there was an encroachment on both parcels. He found them to be encroached by part of a dwelling house; a partition wall and a septic tank. The encroached area which is shaded on his plan is 100msq. The witness testified that a site plan submitted by the Defendant to the Planning Authority produced as D2, does not reflect the true locations of structures given the very small scale used. He cannot give the age of the encroachment. He is of the view that the positions of the beacons are correct. Exh P4 shows the Defendant’s boundary wall and septic tank to have been constructed entirely on V1184 and his house to have been partially constructed on the said parcel. A retaining wall which abuts the public road is also built on parcel V229.
The court visited the Locus in quo in the presence of all parties, examined the alleged encroachment and drew up a Report of the Locus in quo.
The Defendant gave evidence. According to him, he has been living at Mont Buxton on parcel V1215 since he was born and he is the neighbour of the Plaintiff who is suing him for allegedly encroaching on parcels V1184 and V 2297. His property formerly belonged to his father, then his mother and siblings before being transferred to him in 1989. The property had an old house on it until he demolished it and built a new one after being granted planning permission. He also built a wall subject to planning permission. Before building the wall on an old foundation of steps that he took to go to the secondary road, he asked for permission from the parents of the Plaintiff who were the owners of the properties. He denies the fact that the Plaintiff’s father had objected to the building of the wall. He also built a Septic Tank, which is now in disuse, close to a previous one according to planning permission. He produced the Planning Permission and it was exhibited as Exh D6, which gave him permission to renovate house and build a security wall. Following the construction of the house; the wall and the septic tank the owner of the adjoining parcels did not complaint of encroachment. He became aware of the encroachment more than 20 years later in 2011 when a survey was effected by the husband of the Plaintiff. After he discovered this, he expressed his apology to the Plaintiff’s husband and he attempted to settle the case outside court but this was in vain. This was followed by the Plaintiff and her family harassing him on a regular basis. He refuted any allegations of illegal encroachment and testified that he had the necessary permission and that at any rate he had been in peaceful occupation of all the areas for more than 20 years. In cross examination Mr Payet accepted that if the court was to find that he had not been in peaceful occupation for 20 years he would prefer that he be made to pay compensation rather than he be ordered to demolish the structures as he would be heavily prejudiced.
Therese Zita Payet, the mother of the Defendant, testified in favour of the latter. Her evidence is similar to that of her son when it comes to the historical ownership of parcel V1215. She is of the view that her son had rebuilt his new house in the exact location as the previous one. The only new structures built by the Defendant were the septic tank and the wall. The witness disputes the location of the common boundary on the Survey Report. She had no boundary disputes with the previous owner of the parcel belonging to the Plaintiff.

The law

The Plaintiff’s case is based on illegal encroachment under the provisions of Article 545 of the Civil Code of Seychelles which is as follows;

Article 545
No one may be forced to part with his property except for a public purpose and in return for fair compensation. The purposes of acquisition and the manner of compensation shall be determined by such laws as may from time to time be enacted.

The application and scope of the application of this Article is now well settled in this jurisdiction, in the case of Mancienne v Ah-Time (2013) the Seychelles Court of Appeal reiterated the principles established in the case of Nanon v Thyroomooldy SCA 41/2009, in which it held:

“We reproduce the position of our law post-Nanon on encroachments, more particularly boundary encroachments as between neighbours:
1)   If one builds on someone else’s property a structure which entirely stands within the boundaries of that property, it will be art 555 of the Civil Code of Seychelles under which the fate of the structure and the indemnity, if any, to be paid will depend.
2)   However if one builds partly on one’s property and the structure goes over the neighbour’s boundary encroaching on his land, art 555 finds no application.
3)   In such a case, 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.
4)   The fact that the encroachment was done in good faith or brought about by mistake as to the correctness of the boundary would have no effect on the Court’s duty to order demolition: see Cour de Cassation, D1970.426 (Civ 3º, 21 no. 1969); “Grands Arrêts de la Jurisprudence Civile” by Henri Capitant for French law; Tulsidas & Cie v Cheekhooree 1976 MR 121; Boodhna v Mrs R R Ramdewar2001 MR 116; Lowtun v Lowtun 2001 Int Court 1; Thumiah Naraindass v Thumiah Avinash Chandra2009 Int Court 82, for Mauritian law; article 992 of the Civil Code of Quebec and Micheline Pinsonnault v Maurice Labrechque [1999] R.D.1 113 (C.S.) cited in Boodhna v Mrs R R Ramdewar[supra] for the law of Quebec.
5)   But where grave injustice may result in certain exceptional cases: for instance, 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 justice of the demolition will have to be tempered with mercy.
6)   In such a case, the encroacher would need to show additionally that he acted in good faith, within the rules of construction, did not otherwise break any law and the demolition would cause great hardship.
7)   In such a case, the Court would not order demolition and would allow damages and compensation commensurate with the extent of the encroachment.
8)   Where the owner of the land insists on a demolition order in such a case of grave injustice, the encroacher may plead abus de droit as against the owner and insist on compensating him in compensatory damages for the encroachment.

The Seychelles Court of Appeal went on to rule on what would be the exception to a demolition order upon a finding of a breach of Article 545 in the following manner;

“Post-Nanon, the exception to the rule that demolition should be ordered in all neighbour boundary encroachments may be stated to be as follows:
where the facts reveal that a demolition order would be oppressive in the sense that a 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 to the encroacher, the Court should, as an exception mitigate the consequences by an award of damages instead of a demolition. Nothing short of that would suffice. For the encroacher to escape the guillotine of article 545, he should show that, in refusing a compensation for the negligible encroachment and insisting on a demolition order in all the circumstances of the case, the owner is making an abus de droit.”

On the other hand, the Defendant sets up the defence of acquisitive prescription both in his defence to the Plaint and its counterclaim. The principles relating to acquisitive prescription is also firmly established in our law. The law relating to acquisitive prescription is founded on Article 2262 of the Civil Code of Seychelles and it is stated in the following terms;

Article 2262
All real actions in respect of rights of ownership of land or other interests therein 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 not.

The Civil Code provides in Article 712 that ownership may be acquired by prescription or by accession or incorporation.
Acquisitive prescription is the acquisition of a property right through the effects of possession over time as outlined by Article 2229 which provides that to acquire by prescription, possession must be continuous and uninterrupted, peaceful, public, unequivocal and by a person acting in the capacity of an owner.
Acquisitive possession of land without title, is possible after twenty years, by virtue of Article 2262 of the Civil Code.
In the case of Mancienne, the Seychelles Court of Appeal alluded to the fact that such a defence might be available to a claim of illegal owner against an adjoining owner. Dhoma J in obiter held, “As Hodoul JA, stated in Nanon v Thyroomooldy many land surveys are carried out without reference to established base lines. He repeated the example given by ex-Judge Sauzier: namely, if art 545 were applied in all its rigour, it is not inconceivable that one side of Victoria House may have to be pulled down on account of a few inches of encroachment on the boundary of Temooljee’s complex. The only consolation we may have in this matter is that, after 20 years, any action will be time-barred by acquisitive prescription”. (emphasis is mine).
It is to be noted that prescriptive acquisition may be interrupted. Article 2242 of the Civil Code prescribed that:

Prescription may be interrupted either naturally or by a legal act.

In Review Commissioner v Yangtze Construction Co Pty Ltd [2018] SCSC 545, the Supreme Court addressed the issue of prescription and what constitutes an interruption under the Civil Code. The Court noted:

It is the view of this Court that the defendant agreeing to pay the debt by monthly installments of SR 500,000.00 is an acknowledgment of the debt which occurred in October 2011. This is supported not only by the oral evidence of the prosecution witness Rovette Moustache but also by document, exhibit P2. The defendant had further written seeking a grace period of 6 months and that a waiver of the surcharge is granted as per letter P12 dated 27 May 2012, a letter admitted by the defendant. This is a further indication in writing by the defendant not only acknowledging the debt but seeking further relief by seeking time to settle it. Therefore this court is satisfied that the prescription claimed by the defendant has been interrupted by the acknowledgment of the debt by the defendant. (emphasis mine)
[14] The case of Anglesey v Mussard & Anor (1938) SLR 31 is also relevant. The case concerned a claim for recognition of a water right acquired by prescription. Before bringing the claim, the plaintiff had sent the defendant a letter asking for leave to repair certain pipes and a claim of right. In the last sentence, the letter offered to pay for a ‘prise d’eau’. The issue was whether this constituted an ‘aveu extrajudiciaire’ on which the defendant could rely. In coming to its conclusion, the Court noted at p. 35 that:
The enjoyment must be uninterrupted, i.e. it must fulfill the essentials of acquisitive prescription. Possession must be continuous on the part of the proprietor of the dominant tenement, not interrupted by the proprietor of the servient tenement, peaceful, public and unequivocal, animo domini … There are two sorts of interruption: natural and civil. Natural interruption means deprivation for more than one year. This did not happen here. Civil interruption occurs in various ways, amongst others when the person who is prescribing expressly or tacitly admits the right of the proprietor.
Issues for determination

The only issue to be decided by the Court is whether the Defendant has acquired ownership of part of Parcel V1184 and V 2297 through acquisitive prescription, the encroachment not being denied by the Defendant. This in fact being the defence and plea in limine litis raised by the Defendant – that he had been in occupation of the land for more than 22 years.

Analysis and determination

The encroached area in this case consist of around 100sqm of land as revealed by Exh P4. The Defendant has admitted this encroachment in evidence. However, he claimed to have good title by virtue of prescription. In order to succeed in his claim the possession by the Defendant must be continuous and uninterrupted, peaceful, public, unequivocal and whilst he is acting in the capacity of an owner for 20 years. He built the house that had partly encroached on and lived in the house as owner. He built the wall over several months in the sight of the person having paper title[MK1] . He planted flowers on the encroached portion. He cut the grass that was growing in the encroachment and he would sometime jump over the wall to tender to his flowers and to trim the grass. He was acting at all material time acting as owner in the eyes of the public and the Plaintiff.
However, acting as owner is not sufficient for him to acquire the right by possession. He needed to have done that for a long time. In other words, he needs to prove physical possession for twenty years. In his own evidence, and this is uncontested by the Plaintiff, the Defendant acquired parcel v1215 in 1981. He needed to have had the ownership of this adjacent parcel for him to, in practice, have been able to act qua owner of the adjacent part of the parcels of the Plaintiff formerly the property belonging to his father. After his father died the successors including his mother and siblings transferred it to him. In order to prove the twenty years possession the Defendant adduced evidence of his purchased of the property, the planning permission he was granted in 1992 and the building of his house; the wall and the septic tank without contest by the Plaintiff and her father. According to him he realised his error only in 2013 when following a survey he found out the encroachment. That would put his continuous possession for twenty years. To the extent that nothing had legally stopped or interrupted the flow of the prescription and to the extent that his evidence is true.
The Plaintiff counters this state of fact and argued that the flow of the prescription was never continuous as it had been interrupted by an act of the Defendant. According to her in October 2011, the Defendant wrote to her and her brother a letter and tried to settle the matter after she discovered that her land had been encroached. In fact evidence led shows that two letters were in fact written to the Plaintiff regarding this case. They were produced and exhibited as Exh P3 and Exh P4. I refer to the content of these letters, which were not objected to by the Defendant given its importance to this case.

            Exh P3 is to the following effect:
“Dear Sir,
I act for Mr. Cyril Payette.
My client is the owner of parcel V215 which is adjacent to parcels V1184 and V2297 which belongs to your sister Mrs Joan Nicette and her late husband Mr. Brian Nicette. Following a search done on these 2 parcels of land it appears that you are still the fiduciary for these 2 parcels of land and it is in this capacity that I am instructed to send you this letter.
I am instructed that after the death of your parents, Mrs Joan Nicette and her late husband bought all the shares which belonged to the heirs and they became the sole owners of parcels V1184 and 2297 in May 2011. After the purchase of the properties I am instructed that a survey of the properties was commissioner by Mr. and Mrs Nicette. This survey was conducted in the presence of my client. The conclusion of the survey was that my client had encroached by building a retaining wall, part of his house, septic tank and water tank on Mr and Mrs Nicette’s property.
My client instructs me it was only on the day of the survey that he knew for the first time that he had encroached on Mr and Mrs Nicette’s property. I am instructed that my client made a genuine and bona fide mistake as had he known he would never have taken the risk of building on someone else’s property. In fact my client has obtained planning permission and he has built his house since 1992. My client has never been approached and told that he had encroached on parcels V1184 and V2297.
My clients instructs me that he wishes to find an amicable solution to this matter. Consequently, my client would wish to have a meeting with the owner of the property and yourself, as fiduciary, in order to try to resolve this matter. My client understands fully that there will be a need for compensation and he is ready and willing to discuss this and any other relevant issues.
In the spirit of good neighbourliness I am instructed to request that you and/or Mrs Nicette contact me within fourteen (14) days of the date hereof.
In the event that I do not hear from either of you within this time period I will have no option but to advise my client that you do not wish to settle this matter amicably and I shall advise my client on his other legal remedies.
I trust it will not come to that and I look forward to us being able to settle this matter in an amicable and speedy manner.
Yours faithfully,
Karen Domingue”

             This letter was followed by Exh P4, which is as follow;
            “Dear Sir and Madam,
            I act for Mr. Cyril Payette and I refer to my letter of 4th October 2011, addressed to both of you. For ease of reference I am again attaching herewith the letter referred to.
            As per that letter my client had requested a meeting with both of you with regards to the encroachment issue addressed in my letter of 4th October 2011. I have received no response from either of you and in fact Mr Hoareau has neglected to collect his letter from the post office.
I am again attempting to request a meeting with both of you in an attempt to resolve this issue in an amicable manner. Please contact me within fourteen (14) days of the date of this letter so that we may meet and hopefully settle this matter.
Yours faithfully,
Karen Domingue”

In those letters, the Defendant unequivocally admitted the rights of the Plaintiff to her lands. I find therefore that the possession was interrupted and not continuous. A Civil to legal interruption occurred in this case as the Defendant being the person who is prescribing expressly admitted the right of the proprietor. The two letters of the Defendant’s counsel does precisely this. They admitted the rights of the Plaintiff as the lawful owner to the two encroached portion of land and offer to settle the issue of ownership, if need be by way of compensation. It amounts to an ‘aveu extrajudiciaire’ .The effect of this admission stopped the time running against the Plaintiff as of the 4th of October 2011, leaving him short of the 20 years occupation.
At any rate I find that even if there was no break by interruption from 1993 to 2011 is only 18 years and not twenty years as alleged by the Defendant in his defence and that would not avail to him the defence that he is pressing for.
Further, the Defendant needed to prove the peacefulness of his possession and testified by saying that the former owner of the parcels never contested his occupation. However this is denied by the Plaintiff who stated that earlier on as soon as he started to build the structures, the father of the Plaintiff contested the erections of the structures. In this regard I choose to believe the Plaintiff, I find that her father did relentlessly contest the Defendant’s unlawful constructions on his properties but was rebuked by the latter. This took place shortly following the commencement of his project. The fact that the father was of old age was a state of fact that played in favour of the Defendant as it appeared to have lessen the resistance.
Moreover, the writing of the above letters to the Plaintiff clearly reveals that the peaceful tenure of the properties by the Defendant were disturbed at least by October 2011 when he had to take the extraordinary step of instructing his counsel to protect his occupation and possession of the encroached areas from the Plaintiff’s assertion of her titles and rights as the registered proprietor.
I find that that possession was therefore not peaceful.
The amount of land occupied by the Defendant should have led him to be aware that he was constructing on the neighbouring property. According to him his mistake was that he took Beacon B1 instead of beacon D1 as one of the boundary beacons between the adjoin properties. This is something which is supported by his mother. In order to buttress his evidence in that regards he has produced a Town and Planning Authority Substitute Plan which seems to show D1as the beacon. The expert witness Mr Leong contested the veracity of this plan. He was of the view that it was made in error. I believe the evidence of the Surveyor to disregard this plan as it is erroneous. The true beacon position is reflected by Exh p4. I have carefully examined the evidence of the Defendant in the light of the other evidence on record and I am of the view that he knew that he intentionally constructed the boundary wall; the septic tank and part of his house on V 1184 and the retaining wall on V2297.
The Planning Permission granted to the Defendant in 1992 could not have given him a valid permission to occupy the adjoining parcel belonging to the Plaintiff. The Planning Authority,moreover, appears to have itself been either misled into acting or acted erroneously on the already erroneous substituted plan attached to the permission. In law, the Defendant is not entitled to benefit from an acquisitive prescription based on a third party error.
The next question that I now have to deal with is what would be the just remedy. The Plaintiff prays for the demolition of all illegal structures built by the Defendant. The Defendant on the other hand says that this will cause severe prejudice to him. In coming to my determination I bear in mind the principles established in the case of Nanon to the effect that once encroachment of such a nature as in this case has been proved, 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. I also addressed my mind as to whether the encroachment was done in good faith or brought about by mistake as to the correctness of the boundary would have no effect on the Court’s duty to order demolition. I am also cautious of the fact of where grave injustice may result in certain exceptional cases: for instance, 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 justice of the demolition will have to be tempered with mercy. And that in such a case, the encroacher would need to show additionally that he acted in good faith, within the rules of construction, did not otherwise break any law and the demolition would cause great hardship.
The court has gone in locus which has given it an accurate view of the extent of the encroachment. Exh D 8 (C) shows this relevant area when it comes to the wall and part of the boundary wall. The part of the house which is buttressed by the boundary wall consist of a covered patio, the house can exist structurally without this extension. Moreover the septic tank is now in disuse. As to the retaining wall on parcel V2297, it is clearly retaining parcel V1184 rather than parcel V1215, though it is built by the Defendant.
Accordingly, I find that no great injustice would be caused to the Defendant to order him to demolish the boundary wall and part of his house consisting of the patio which encroaches on parcel V1184 which I find were built in bad faith. The de minimis rule will not apply here as the use of his house by the Defendant as a dwelling house will not be affected by this order. As to the retaining wall on parcel V2297, as it is beneficial to V1184, there would be no need to order its removal subject to the Defendant ending his unlawful occupation.
I therefore order mandatory injunction compelling the Defendant to within six months herewith demolish any the boundary wall; the septic tank and part of his house described in this judgment and highlighted on Exh P4, failing which the Plaintiff can have them removed at the Defendant’s cost.
I issue a Prohibitory Injunction against the Defendant, personally and against his agents or any person authorised by him whomsoever from trespassing or encroaching on Parcel V1184 and V2297.

Signed, dated and delivered at Ile du Port on the ……… day of June 2021

____________
Govinden CJ

Delivered: 28th June 2021

JUDGMENT

GOVINDEN CJ
INTRODUCTION

The evidence

The law

The Plaintiff’s case is based on illegal encroachment under the provisions of Article 545 of the Civil Code of Seychelles which is as follows;

The Seychelles Court of Appeal went on to rule on what would be the exception to a demolition order upon a finding of a breach of Article 545 in the following manner;

Prescription may be interrupted either naturally or by a legal act.

Analysis and determination

Signed, dated and delivered at Ile du Port on the ……… day of June 2021

____________
Govinden CJ

Nourrice v Salome (SCA 52 of 2018) [2021] SCCA 7 (30 April 2021);

Anonymous — Thu, 23 Jun 2022 08:06:56 +0000

Nourrice v Salome (SCA 52 of 2018) [2021] SCCA 7 (30 April 2021);

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Civil Procedure

Property Law

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IN THE COURT OF APPEAL OF SEYCHELLES

Reportable
[2021] SCCA 17 30 April 2021
SCA 52/2018
(Appeal from CS 49/2015)
In the matter between
ANNE NOURRICE Appellant
(rep. by Mr. Frank Elizabeth)

and

ALEX SALOME
In his capacity as the executor of the estate
of Louis Victor Nourrice Respondent
(all rep. by Mr France Bonte)

Neutral Citation: Nourrice v Salome (SCA 52/2018) [2021] SCCA 17   30 April 2021
Before:                   Fernando President, Robinson, Dingake JJA
Summary:
Heard:                   22 April 2021

Delivered: 30 April 2021
______________________________________________________________________________

ORDER

1. Appeal is allowed.
2. The orders of the learned Judge are quashed.
3. The orders of 28 October 2015 in C.S. No. 276/2003 stand.
4. The Land Registrar is directed to give effect to this judgment.

JUDGMENT
______________________________________________________________________________
ROBINSON JA (FERNANDO PRESIDENT concurring)

This is an appeal by the Appellant, the first defendant then, against a decision of a learned Judge of the Supreme Court who made orders ―

″1. [directing] the Land Registrar to rectify the land Register to remove the Appellant (the First Defendant then) as a co-owner of 3/6 share in parcel S2025.

2. [directing] the Land Registrar to register the heirs of Louis Nourrice as the sole co-owners of parcel S2025.

3. [ordering] the First Defendant to pay the costs of the suit.″

The Proceedings before the Supreme Court:
The case for the parties

The plaint advanced the following reasons, which have caused the Respondent (the plaintiff then), the executor of the estate and succession of the late Louis Victor Nourrice (hereinafter referred to as the Deceased), to initiate the proceedings ―

The Deceased was the brother of one Francine Sifflore (born Nourrice), hereinafter reffered to as ″the late Francine″, who passed away on the 12 November 1950. During their lifetime, the Deceased and the late Francine co-owned a parcel of land situate in the District of Anse Aux Pins, as per title deed transcribed in vol. 40 No. 226 (the ″Property″).

The late Francine had one child, Marie-Therese Nourrice, born on the 12 September 1917. Marie-Therese Nourrice, who died on the 27 March 1956, hereinafter referred to as ″the late Marie-Therese″, was the mother of the Appellant.

The late Marie-Therese sold Wilfred Lajoie a portion of her share in the Property by a deed dated 22 March 1951, transcribed in vol. 41 No. 145. The late Marie-Therese also sold one Charly Fostel a portion of her share in the Property by a deed transcribed in vol. 16 No. 574.

Paragraph 8 of the plaint averred that the Deceased was the sole owner of the rest of the Property, which subsequently was registered as parcel S2025.
On the 20 February 1987, the Land Registrar, who was named the second defendant on the plaint, issued a notice for the first registration of the Property stating that: the heirs of the Deceased owned 2/6th share; Mr Auguste Jeremie owned 1/6th share; the late Francine owned 3/6th share.

On the 8 January 2003, the Appellant swore an affidavit on transmission by death in which she claimed inter alia that she was the owner of 3/6th share in parcel S2025 devolved on her after the death of the late Marie-Therese, her mother. The 3/6th share in parcel S2025 had devolved on the late Marie-Therese after the late Francine's death.

The Appellant had in fraud of their rights swore the affidavit on transmission by death.

The plaint contended that parcel S2025 belongs to the estate of the Deceased.

The plaint also claimed that the affidavit on transmission by death, filed by the Appellant on the 9 January 2003, purportedly registered the Appellant as the owner of parcel S2025.

Paragraph 14 of the plaint stated that the second defendant's registration of the affidavit on transmission by death was unlawful and wrong as the second defendant had failed to find out from her records that the late Marie-Therese had sold her entire share in the Property.

In his plea, the Respondent averred that the filing of the affidavit on transmission by death by the Appellant had deprived the estate and succession of the Deceased of the ownership of parcel S2025.

The plaint asked the Supreme Court to make the following orders ―

″(a) An order annulling the registration of ownership of parcel S2025 as per the purported Affidavit of Transmission dated 8th January 2003 and registered on the 9th January 2003;

(b) An order declaring the estate of the Deceased owner of parcel S2025;

(c)A declaration that the Affidavit of Transmission dated 8th January 2003 and registered on the 9th January 2003 as transcribed was as a result of the 1st defendant acting fraudulently in order to deprive the Plaintiff, the estate of the deceased, of the parcel S2025

(d) An order that the 1st and 2nd Defendants pay the costs of this case;

(e) Any other orders that the Court deemed fit.″

The second defendant in her plea accepted the late Marie-Therese had sold a portion of her share in the Property to Wilfred Lajoie. Concerning the sale of the other portion of the late Marie-Therese’s share in the Property to Charly Fostel, the second defendant claimed that it was transcribed in vol. 41 No. 132 and not in vol. 16 No. 574.

Concerning paragraph 8 of the plaint, the second defendant averred that the Deceased did not remain the sole owner of the rest of the Property, which was subsequently registered as parcel S2025. The second defendant stated that, as per the Register, there are three co-owners, namely the heirs of the Deceased (2/6th share), Auguste Jeremie (1/6th share) and the Appellant (3/6th share). Further, the second defendant stated that the affidavit on transmission by death transmitted only 3/6th share in the ownership of parcel S2025 to the Appellant. The ownership of parcel S2025 was not transmitted solely in the Appellant's name as alleged by the Respondent.

The defence of the second defendant claimed that the orders should not be granted because parcel S2025 belongs as per the Register, to three persons, namely: the heirs of the Deceased (owner 2/6th share), Auguste Jeremie (owner 1/6th share), and the Appellant (owner of 3/6th share).

For her part, the Appellant, in her defence, raised pleas in limine litis moving that the plaint be dismissed with costs for the following reasons ―

″i. The said action is prescribed. The transfer for Land Title S2025 to the 1st Defendant from the estate of her grandmother, the late Francine Sifflore (nee Nourrice) was registered with the Registrar of Lands on the 9th of January 2003, and this action filed twelve years later on the 3rd June 2015. (Seychelles Civil Code Article 2265 (10 years prescription period).

ii. This said action is Res Judicata. It was finally disposed of by the Supreme Court of Seychelles, in Civil Side No. 276 of 2003, by order of the Honourable Judge D Karunakaran dated 28th of October 2015″.

With respect to the merits, the Appellant's defence denied the Respondent's claims. The defence claimed that the matters related in the affidavit on transmission by death were correct and lawful and not a fraud. The defence also curiously contended that parcel S2025 legally belongs to the Appellant. In support of the Appellant's allegation that she is the legal owner of parcel S2025, paragraph 5 of the defence claimed that:″[t]he co-ownership was held by the Defendant's grandmother, namely the late Francine Sifflore (nee Nourrice), who had only one child, namely the Defendant's mother, the late Marie-Therese Nourrice, who died leaving behind one heir, the Defendant. Defendant is in the direct line of inheritance and presently, the registered owner″.

The Appellant denied the orders being sought by the Respondent and moved that the plaint be dismissed with costs.

The proceedings before the Supreme Court:
Defence in law: res judicata

At this point, we refer to the plea of res judicata. It is helpful to set out the background to this plea.

On the 13 October 2003, the Appellant entered a petition for division in kind CS No. 276/2003 for parcel S2025 to be divided in kind among (1) the Appellant, (2) the heirs of the Deceased represented by Gilbert Nourrice and Victor Nourrice and (3) Auguste Jeremie. The petition claimed that the Appellant was the owner of 1/2 share in parcel S2025. The Deceased's heirs represented by Gilbert Nourrice and Victor Nourrice and Auguste Jeremie were named the respondents on the petition for division in kind CS No. 276/2003. The process server filed a return of service with the Supreme Court, which showed that both respondents named on the petition were served.

On the 27 March 2014, Alex Salome, in his capacity as the executor of the estate of the Deceased, filed an application MA99/276, opposing the petition for division in kind CS No. 276/2003. The application claimed that the averments in the said petition were incorrect as the late Marie-Therese had disposed of her entire share in parcel S2025. The Supreme Court dismissed the application in its ruling of 26 October 2015, on the ground that it"cannot act on speculation".

On the 28 October 2015, the learned Judge made the following order in CS No. 276/2003 ―

″[1] […] for the subdivision as per the report submitted by Surveyor Michel Leong dated 22nd September 2015. I direct the Surveyor to proceed with the subdivision and allocate plot 1, which was Surveyed as parcel S9242, to Anne Nourrice and Plot 2 and 4 which was surveyed as parcels S9243 and S9244 and S9245 to Auguste Jeremie and others. Order is made accordingly, file closed″.

I turn to the plea of res judicata. At the hearing of the plaint, Counsel for the Appellant raised a plea in limine litis to the effect that the Supreme Court could not entertain the plaint as it is res judicata. Mr Anthony Derjacques, who appeared for the Appellant before the Supreme Court, contended, in essence, in his written submissions that the cause of action in the plaint was the same as in the petition for division in kind CS No. 276/2003. The Respondent by Counsel was of the view that the plaint was not res judcata. However, the reasons advanced by the Respondent for the holding of such a view is unclear.

The learned Judge dismissed the plea on the ground that the cause of action in the plaint and the petition for division in kind CS No. 276/2003 were not the same. The learned Judge was of the view that ―

″[16] [i]n the present suit, Alex Salome in his capacity as the executor of Heirs Louis Victor is suing Anne Nourrice for the fraudulent or mistaken swearing of an affidavit of transmission by death and for the annulment or rectification of an entry on the Land Register purporting to make her a co-owner of Title S2025.″

The Appellant has appealed this finding by the learned Judge.

Defence in law: prescription

The plea of prescription claimed that the Respondent's action is prescribed by the statutory ten-year limitation as the Appellant has registered title. Concerning this plea of prescription, the question at issue framed by the learned Judge in her ruling of 29 March 2018, was whether or not a registered title could be annulled or rectified. The learned Judge held the view that she may direct that any registration be cancelled or amended where she is satisfied that any registration has been obtained, made or omitted by fraud or mistake under section 89[1] of the Land Registration Act. The learned Judge did not determine the question in her ruling of 29 March 2018, as she felt ″duty-bound to hear evidence to determine if the First Defendant's title was obtained in good faith or by other means″.

The hearing

The learned Judge, by her ruling of 29 March 2018, directed the Land Registrar to provide a report to the Court ″on the root of title and chain of ownership by the First defendant and other co-owners of Parcel S2025 on or before the 29 March 2018″. Indeed, the Land Registrar filed a report ″on the root of title and chain of ownership by the First defendant and other co-owners of Parcel S2025″ with the Supreme Court.

On the 21 May 2018 at 9:30 a:m., on hearing of the plaint, Mr Bonte, Counsel for the Respondent, was absent, but the Respondent was present. Hence, the learned Judge ordered the hearing to proceed ex parte. Mr Bonte showed up while the Appellant was testifying. The learned Judge lifted that order with the Appellant's consent.

The 21 May 2018 transcript of proceedings revealed that the Respondent and the Appellant called no evidence but opted to file closing submissions. In this respect, both Counsel expressly told the Supreme Court that they would be relying on the Land Registrar's report. The Land Registrar was not called to give evidence about her report. At this juncture, I can do no better than to record the interactions between the learned Judge and both Counsel with respect to what had emerged ―

″Court: Mr Bonte it is also my duty to inform you that I have received the Report from the Registrar, which is entirely on the favour of your client. The Report finds that the antecedence of Anne Nourrice, alienated her share of the property and that the property was own solely by Louis Nourrice. And that Alex Salome is the only one entitle to the property.

Mr Bonte: If I could have sight of it first.

Court: That is the determination amass the rest of it.

Mr Bonte: I am asking him if he does not want we talk in the face of the documents, maybe we could shortcut to a solution.

Court: What solution could there be your client owns the land, his client doesn't.

Mr Derjacques: I would accept my learned friend proposal in the light of the report that arose this morning. I would like to examine it.

Court: You came and you had a chance you were sitting with my Secretary reading the Report Mr Derjacques let us not be disingenuous.

Mr Derjacques: Not with my client.

Court: How long will you need?

Mr Derjacques: I need file submissions will give me time , so I know now it is not base really on facts. It is based on title so I need to do legal research a final submission.

Court: What do you want me to do Mr Derjacques, what is your application?

Mr Derjacques: I would like an opportunity to draft to have copies of one, and then to draft a legal submission.

Court: Based on the findings of the Land Registrar.

Mr Derjacques: Yes.

Court: So you do not want to lead evidence at this stage?

Mr Derjaques: No, with an Annex and we have affidavits.

Court: The only issue left in this case in view of my ruling is if there was an error, in the registration of title. Now you want to lead evidence to that or you want to just submit in law on that?

Mr Derjacques: We need to submit on law?

Court:Both of you?

Mr Derjacques: Because these are authenticated documents.

Mr Bonte: He would submit and then I would reply.

[…].

COURT TO COURT INTERPRETER:

Dina please explain to everybody in Court today, that there is a report from the Land Registrar in which she explains that the land which is the subject of this case was solely owned by Louis Nourrice. Because his sister who is the mother of Anne Nourrice has already sold her share, the two lawyers want to submit on law before I give my judgment. And I have given them time and I will mention this matter on the 27th of June for those submissions, and then we will give a date for my judgment. So that it will facilitate the discussion with the lawyers, explain to Mrs Anne Nourrice that Marie-Therese Nourrice sold her share in 1951 to Wilfred La Joie. And the other part to Charlie Fostel, this is what the land Registrar has said that it mean therefore, she has no share left in the land. Was sold before″. Emphasis supplied

The submissions

The written submissions offered on behalf of the Appellant did not address the substantive matters in the case. Mr Anthony Derjacques principally submitted that there was no hearing before the Supreme Court because no evidence was called in accordance with sections 129 and 134 of the Seychelles Code of Civil Procedure.

He also submitted that the learned Judge was required to hear evidence under section 89 (1)[2] and 89 (2)[3] of the Land Registration Act to determine whether or not the Appellant's title was obtained in good faith or by other means. In this respect, he submitted that the report of the Land Registrar is not admissible as evidence as it falls afoul section 17 (4)[4] of the Evidence Act.

The judgment

Concerning the submission of Mr Anthony Derjacques that the suit must be dismissed as there was no hearing before the Supreme Court since no evidence was called under section 129 of the Seychelles Code of Civil Procedure, the learned Judge found ―

"[16] [i]n the present case, the report of the Second Defendant was made available to the parties and they proceeded to deliberate about it and then decided to make submissions on it. The pleadings, pleas in limine litis and the ruling of the court on the pleas were also very much live matters at the hearing. These were deliberated on and the course adopted by the parties was to proceed to make submissions only. That indeed constitutes a hearing, and the submission that the process did not amount to a hearing is therefore rejected".

Concerning the submission of Mr Anthony Derjacques that the report of the Land Registrar was not admissible as it did not meet the requirements of section 17 (4) of the Evidence Act, the learned Judge found: "[19] [t]he Land Registrar's evidence is compelling and [she] [was] persuaded by it as it pieced together using the transcription of deeds from 1917. This evidence has not been objected to, opposed or rebutted in any way".

Next, the learned Judge framed two issues for consideration as follows ―

whether or not there was fraud or mistake in the registration of parcel S2025; and
whether or not the Appellant had ″paid valuable consideration for its acquisition and had knowledge of the omission, fraud or mistake or caused the omission, fraud or mistake or contributed to it by her act, neglect or default″.

Having considered the two issues, the learned Judge concluded that the Land Register should be rectified to exclude the Appellant as co-owner in 3/6 share of parcel S2025. She took into account the following matters ―

the family free in the report of the Land Registrar, which established that the late Marie-Therese had sold her share in the Property to Charly Fostel (Transcription Volume 16/574) and Wilfred Lajoie (Transcription Volume 41/145);

the second defendant's notice of first registration to heirs Victor Nourrice, Auguste Jeremie and the late Marie Therese. She found that that notice of first registration was erroneous as concerns the Appellant because the late Marie-Therese had alienated the late Francine's share in the Property;

an affidavit of transmission by death, sworn to by the Appellant, which she found to be incorrect;

the fact that, although there has been no evidence produced by the Respondent to show the fraud he alleges on the part of the Appellant, the averments in the Appellant's affidavit and the registration of a 3/6 share of the land in her name were erroneous;

that had care been taken to check the deeds; the mistake would not have happened;

that although it was unclear whether or not inheriting land would amount to obtaining it by valuable consideration, she was, however, ″satisfied that the First Defendant substantially contributed to the mistake in the erroneous registration of a 3/6 share of the Property in her name by her neglect in properly checking title deeds″.

The grounds of appeal and contentions of the Appellant and Respondent

The soundness of the learned Judge's reasons and findings is being challenged on the following seven grounds of appeal ―

"i. The Honourable Chief Justice erred in law in failing to hold that the action of the Respondent was prescribed in law.

ii. The Honourable Chief Justice erred in law in failing to hold that res judicata applied in that the Supreme Court had already made a final order in civil side No 276 of 2003 dated the 28th of October 2015.

iii. The Honourable Chief Justice erred in law in failing to find that the transfer made with respect to land title S2025 on the 9th of January 2003 was done in good faith and that the property was identified and consideration was per the laws of succession and therefore constituted a valid transfer in law.

iv. The Honourable Chief Justice erred in law in failing to hold that there was no evidence at all given by the Plaintiff or any witnesses, including the Defendant and for the defence as a result there was no hearing in accordance with law.

v. The Honourable Chief Justice erred in law in failing to hold that the court cannot make a valid and considered judgment without a hearing and evidence.

vi. The Honourable Chief Justice erred in law in failing to properly interpret section 89 (2) of the Land Registration Act in that there must be a finding following evidence on omission, fraud or mistake in order to void a transfer or immovable property.

vii. The Honourable Chief Justice erred in law in failing to hold that the written report of the registrar of lands was not admitted, nor admissible and not evidence and was therefore in conflict with the Civil Procedure Code and Cap 74 and section 17 (4) of the Evidence Act."

This case is not without its challenges that result in the need for us to express certain reservations.

First, the Respondent in his capacity as the executor of the estate of the Deceased could not have filed a third-party opposition to the order of 28 October 2015 in CS No. 276/2003. Section 172 of the Seychelles Code of Civil Procedure Code requires that any person whose interests are affected by a judgment rendered in a suit in which neither he nor persons represented by him were made parties, may file an opposition to such judgment. Emphasis supplied

Second, section 209 of the Immovable Property (Judicial Sales) Act provides for statutory appeals from any decision or order of a Judge under or in the execution of the provisions of the Act. In his capacity as the executor of the estate of the Deceased, the Respondent did not appeal from any order made by the learned Judge in C.S. 276/2003. This issue was not raised in the Supreme Court . We have decided not to address the issue proprio motu.

We consider the grounds of appeal.

Ground 1

Under ground 1, Counsel for the Appellant adopted the argument made in the Supreme Court with respect to the plea of prescription.

With respect to this ground, suffice it to state that the plea framed by the Appellant is misconceived. It appears that the Appellant has pleaded the wrong prescription. As for prescription under Article 2265 of the Civil Code of Seychelles, a defendant raising it should plead all the material facts and file a counterclaim.

Hence, ground 1 stands dismissed.

Ground 2

Ground 2 of the grounds is misconceived and must be dismissed. A party can successfully invoke ″l’autorité de la chose jugée″ under Article 1351 of the Civil Code of Seychelles [CAP 33] if the party demonstrates that the previous and the subsequent litigation involve: the same parties acting in the same capacity, the same subject matters and are founded on identical grounds which constitute the cause of action. If one of the three elements is not present, one of the parties would not be able to invoke ″l’autorité de la chose jugée″ inasmuch as the subsequent case would be new in relation to the first case.

In the present case, we are of the view that the learned Judge’s finding to the effect that the previous judgment does not have ″l’autorité de la chose jugée″, is correct. The learned Judge correctly found that the causes of action and claims are different. In CS276/2003, the Appellant petitioned for a division in kind of parcel S2025. In the action CS49/2015, the Respondent, in his capacity as the executor of the estate of the Deceased, is suing the Appellant for the fraudulent swearing of an affidavit of transmission by death and for the annulment of an entry on the Land Register purporting to make her a co-owner of parcel S2025.

Grounds 4, 5 and 7

The only issue which arises for consideration under grounds 4, 5 and 7 of the grounds, is whether or not the learned Judge was correct to conclude as she did in this case since the Respondent did not prove his allegation of fraud.

As mentioned above, the Respondent is suing the Appellant for fraudulent swearing of an affidavit on transmission by death. The Respondent by Counsel called no evidence in this case but opted to file written submissions. Fraud must be specifically alleged and proved: see, for example, Jacqueline Labonte and or v Robert Bason Civil Appeal No. 13 of 1996. The learned Judge, in her judgment, remarked that there had been no evidence produced by the Respondent to show the fraud he alleges on the part of the Appellant. We hold that the learned Judge should have dismissed this case after having come to this finding. Having not done so, the learned Judge erred.

We add in passing that the learned Judge relied on the report of the Land Registrar ″on the root of title and chain of ownership by the First defendant and other co-owners of parcel S2025 on or before the 29 March 2018″, to satisfy herself that the Land Register should be rectified to exclude the Appellant as co-owner in 3/6 share of parcel S2025. The learned Judge found the Land Registrar’s evidence compelling and was persuaded by it. We note that the Land Registrar did not give evidence and that her report was never exhibited in this case. Thus, the learned Judge was wrong to rely on the report of the Land Registrar to rectify the Land Register to exclude the Appellant as co-owner.

For the reasons stated above, we allow grounds 4, 5 and 7 of the grounds of appeal pertaining to the issue raised. This is enough to dispose of the appeal.

We allow the appeal on grounds 4, 5 and 7 of the grounds of appeal. Consequently, we quash the orders of the learned Judge. The orders of 28 October 2015, made by Judge Karunakaran in C.S. No. 276/2003 subsist as they have never been quashed. We direct the Land Registrar to give effect to this judgment.

We make no order as to costs.

Signed, dated and delivered at Ile du Port on 30 April 2021

_____________
Robinson JA

I concur                                                                                   ____________
                                                                                                Fernando President


DINGAKE JA (DISSENTING)

BACKGROUND

I have had the benefit of reading the majority judgement written by my sister Robinson JA. For the reasons that appear hereunder I do not agree with the reasoning and conclusions reached.
This is an Appeal in which the Appellant prays this court to set aside the decision of the Court a quo on the Grounds filed of record.

The crisp issue of moment is whether having regards to the Grounds of Appeal filed of record this appeal is entitled to succeed.

The background to this matter is set out in the judgment of the Court aquo and need not be repeated as no value would be gained from doing so.

It is material however to indicate that this matter was brought to the Supreme Court by way of a plaint on 18 May 2015 by Alex Salome, the Executor of the estate of the late Louis Victor Nourrice (Respondent) against Anne Nourrice, the Appellant in this matter who claimed to be the owner of a 3/6 share in parcel S2025 situated at Anse Aux Pins, Mahè. The Second Defendant was the Land Registrar.

Essentially the Executor of the estate of Louis Victor Nourrice asserted that Anne Nourrice had acted with a view to defraud the estate and heirs of the deceased and that the registration of the purported affidavit on Transmission by Death was unlawful and wrongful in that the Land Registrar failed to deduce from its records that Marie-Therese Nourrice had sold her share in the land.

The Executor of the estate prayed, inter alia, for orders annulling the registration and declaring the Plaintiff the owner of parcel S2025.

Upon hearing the submissions of the parties (and the parties having dispensed with the need to lead evidence) and after considering the material before it the Court a quo directed, inter alia, that the Land Registrar rectify the Land Register to remove the first defendant, Anne Nourrice, as co-owner of 3/6 share in Parcel S 2025 and further directed the Land Register to register the heirs of Louis Nourrice as the sole co-owners of Parcel S 2025.

Grounds of Appeal

The Appellant being dissatisfied with the 7 September 2018 judgment, lodged an appeal to the Court of Appeal on 5 October 2018 on the following grounds:

The Honourable Chief Justice erred in law in failing to hold that the action of the Respondent was prescribed in law.

The honourable Chief Justice erred in law in failing to hold that res judicata applied in that the Supreme Court had already made a final order in civil side no 276 of 2003 dated 28 October 2015. (case not a part of the bundle of documents, but this was addressed by the

The Honourable Chief Justice erred in law in failing to find that the transfer made with respect to land title S2025 on the of January 2003 was done in good faith and that the property was identified and consideration was per the laws of succession and therefore constituted a valid transfer in law.

The Honourable Chief Justice erred in law in failing to hold that there was no evidence at all given by the Plaintiff or any witnesses, including the Defendant and for the defence and as a result there was no hearing in accordance with law.

The Honourable Chief Justice erred in law in failing to hold that the court cannot make a valid and considered judgment without a hearing and evidence.

The Honourable Chief Justice erred in law in failing to properly interpret section 89(2) of the Land Registration Act in that there must be a finding following evidence on mission, fraud, mistake in order to avoid a transfer of immovable property.

The Honourable Chief Justice erred in law in failing to hold that the written report of the registrar of lands was not admitted, nor admissible and not evidence and was therefore in conflict with the Civil Procedure Code and Cap 74 and section 17(4) of the Evidence Act

The Appellant prays that the Supreme Court Judgment be dismissed with costs for the Defendant and the Appeal upheld.

The Respondent submits that:

The learned Chief Justice has acted on the documentary evidence before her and was right in not finding that the action of the Respondent was prescribed

The Honourable Chief Justice was right in not making a finding res judicata in light of the order in CS NO 276/2003

The matter was adjudged on the basis of documentary evidence that was before the Honourable Chief Justice hence there was no need for a hearing; and

The finding of the Honourable Chief Justice was right on the basis of documents before the Chief Justice.

THE FACTS

On 20 February 1987 the Land Registrar issued a notice of first registration stating that the heirs of Louis Victor Nourrice own 2/6th, Mr Auguste Jeremie 1/6th and Franscine Sifflore 3/6th.

On 8 January 2003 the Appellant (Anne Nourrice) swore an affidavit of transmission on death stating that Franscine Sifflore was owner of 3/6th of the shares in parcel S2025 which devolved on Marie-Therese her daughter and consequently on the Appellant. The affidavit was registered on 9 January 2003 purportedly transmitting ownership of parcel S2025 in the names of the Appellant.

The Respondent was appointed executor of the deceased’s estate on 21 February 2005.

Anne Nourrice made a petition to the Supreme Court in MA 381/2014 arising in CS 276/2003 on 16 December 2014 demanding division in kind in respect of parcel S2025. An order was made by Karunakaran J in CS 276/2003 on 28 October 2018 ordering the subdivision and allocation of parcel S2025 after a survey as follows: Plot 1 S9242 to Anne Nourrice, and plot 2 and 4 surveyed as parcels S9243 and S9244 and S9245 to August Jeremie and Others.

The Court directed the Land Registrar to compile a report to the Court on the root of title and chain of ownership by the First Defendant and other co-owners of Parcel S2025 on or before the 29 March 2018.

This report revealed that Mary-Therese Nourrice had sold off her share in parcel S2025 to Wilfred Lajoie and Charly Fostel and therefore she was no longer a lawful co-owner. The report established that the heirs of Louis Nourrice were the sole owners of the land and this therefore confirmed that there was an error in the Land Register that needed to be rectified in terms of Section 89 of the Land Registration Act.

THE LAW

Ground 1: Whether the Chief Justice erred in law in failing to hold that the action of the Respondent had prescribed in law.

Under this ground the Appellants submissions are that the Respondent’s action was time barred and thereby prescribed by law, as per the Appellants plea in limine litis and defence, and ought to have been dismissed

The provisions applicable to prescription in the Civil Code of Seychelles Act are the following:

Article 2219

“1. Prescription involves loss of rights through a failure to act within the limits established by law.
2. It is a means whereby, after a certain lapse of time, rights may be acquired or lost, subject to the conditions established by law.

Article 2229

In order to acquire by prescription, possession must be continuous and uninterrupted, peaceful, public, unequivocal and by a person acting in the capacity of an owner.

Article 2240

No‐one shall be entitled to prescription if he holds a contrary title, in the sense that one may not change on his own the ground and nature of his possession.

Article 2258

Prescription shall not run against an heir accepting under a benefit of inventory with regard to the claims he has against the inheritance.

It shall run against a vacant inheritance, even if no curator has been appointed.

Article 2262

All real actions in respect of rights of ownership of land or other interests therein 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 not.

Article 2265

If the party claiming the benefit of such prescription produces a title which has been acquired for value and in good faith, the period of prescription of article 2262 shall be reduced to ten years.

The Supreme Court in Chetty v The Estate of Regis Albert & Ors (CS 131/2018) [2020] SCSC 268 (08 May 2020) discussed the law relating to acquisitive prescription and stated in paragraph 52 that:

“The conditions for such acquisition are contained in the provisions of Articles 2229 - 2235 and 2261 of the Civil Code of Seychelles. Article 2229 provides that:

“In order to acquire by prescription, possession must be continuous and uninterrupted, peaceful, public, unequivocal and by a person acting in the capacity of an owner...”

The Court in Chetty cited above further stated in paragraph 61 that:

“In general, a person seeking to prove acquisitive prescription must show corpus and animus. As explained in relation to French and Quebecois law:

“Acquisitive prescription in French and Quebec civil law is a means of acquiring property that is based on possession, which includes a material aspect and an intentional aspect: the possessor must demonstrate corpus and animus in order to acquire a title by prescription. Corpus refers to “physical control” or “the exercise in fact of a real right”. As for animus, it refers to animus domini, in other words, the intention to become the owner, or more broadly the “desire of the possessor to present himself to others as the holder of a real right” (Emerich Yaëll. Comparative overview on the transformative effect of acquisitive prescription and adverse possession: morality, legitimacy, justice. In: Revue internationale de droit comparé. Vol. 67 N°2,2015. La comparaison en droit public. Hommage à Roland Drago. pp. 459-496).

On the record before me it seems clear that that the Appellant’s tittle, is invalid and or at best open to serious doubt. The question that arises under those circumstances is whether the 10 year time reduction in Article 2265 can be invoked where a claimant is acting under an erroneous or questionable title. The simple answer seems to be that one cannot rely on an invalid a title.

In the present case the Appellant claims that she acquired the right to Parcel S2025 on 9 January 2005 when the title was registered by the Land Registrar. She alleges that because she had a rightful title, prescription under Article 2262 was reduced to 10 years, and the Respondents action was filed on 3 June 2015, 12 years later.

However, having regard to the view I hold that her title was not valid, I find that the Appellant cannot rely on Article 2265 to invoke the benefit of 10 years prescription. Accordingly, it is my opinion that it is the 20 years prescriptive period that applies in this case, and the Respondents claim in therefore not barred. This ground of appeal is without merit and is rejected.

Ground 2: The honourable Chief Justice erred in law in failing to hold that res judicata applied in that the Supreme Court had already made a final order in civil side no 276 of 2003 dated 28 October 2015.

The Appellant states in their submissions that the subject matter (Land Parcel), the cause (to deal with the Land Parcel under the land Registration Act) and the parties (Alex Salome and Anne Nourrice) are the same in both the 2015 civil case No 276 of 2003, by order of Judge Karunakaran dated 28 October 2015 and the CS 49/2015 case decided on 7 September 2018 by Chief Justice Twomey respectively.

The Appellant also submits that the Respondent should have canvassed all his rights and made the necessary averments of fraud in the first case.

Respondents contend that the subject matter in both cases was different, since the 2015 case related to a demand by colicitants for a division in kind and for allocation of sub-divided portions, while the second case sought a declaratory order on the rightful owner of the property on the grounds that the affidavit of transmission on death by Anne Nourrice was fraudulent.

The Respondent disputes that the 2015 Order was a final judgment of a competent court and states that the previous case was a petition demanding a division in kind in respect of property S2025 and the Order made by Karunakaran J was on the basis of section 100 of the Immovable Property (Judicial Sales) Act (IPJS), which simply empowers the Judge to sanction division and allocation of land to legal heirs. The Respondents assert that such duties are more administrative than judicial in nature.

The Respondents conclude that the cause of action was not the same in both parties and neither were the parties the same since Anne Nourrice was the petitioner in the first case seeking division in kind, and in the second case Alex Salome, the Executor, was the Plaintiff and Anne Nourrice and the Land Registrar as first and second defendants.
Article 1351(1) outlines the law relating to res judicata as follows:

“The authority of a final judgment shall only be binding in respect of the subject‐matter of the judgment. It is necessary that the demand relate to the same subject‐matter; that it relate to the same class, that it be between the same parties and that it be brought by them or against them in the same capacities.

I agree with the submission of the Respondents that since the cause action was not the same rendered the plea of res judicta inapplicable. It also seems to me that the parties were not the same.

It was stated at paragraph 16 of Attorney General v Marzorcchi SCA 8/1996,LC 312, that a plea of res judicata will succeed if four pre-requisites are satisfied:

the object matter should be the same;
the cause of action should be the same;
the parties should be the same;
the previous judgment should be a final judgment of a court of competent jurisdiction

I have already found that the Appellant has failed to show that the cause of action and or the parties were the same. Accordingly, the ground of res judicata ought to fail.

Ground 3: Whether the Chief Justice erred in law in failing to find that the transfer made with respect to land title S2025 on the of January 2003 was done in good faith and that the property was identified and consideration was per the laws of succession and therefore constituted a valid transfer in law.

The Appellant submits that there was no bad faith in the transfer since it was properly notarized and registered and she was sole surviving heir in the direct line of descent. The Appellant refers to Articles 2268 and 2269 which state that:

Article 2268

Good faith shall always be presumed. The person who makes an allegation of bad faith shall be required to prove it.

Article 2269

It is sufficient that the good faith existed at the moment of acquisition of the property.

The Respondent submits that the Appellant is only an inheritor through an alleged succession and is not a bona fide purchaser for all legal intents and purposes as required under article 2265. The Respondent submits that the Appellant is not qualified to claim the benefit of 10 years prescription invoking Article 2265, and the question whether there was a valid transfer of parcel S2025 made in good faith for consideration becomes a non-issue and irrelevant in the instant case.

As determined above Article 2262 and a 20 year prescription period is what is applicable in this case and therefore I agree that the question of good faith does not arise. Moreover, it is questionable whether inheriting the land would amount to obtaining it by valuable consideration as is required under Article 2265 and this confirms that the question of good faith is not applicable.

Further, the Appellant was mistaken as to her right to title since there was an error in the Land Register and whether or not there was good faith in her actions does not take away from the fact that she does not have any right to the property since the portion that she purported to register had already been sold off may years before. One cannot lay a claim for a right that does not exist. Accordingly, this ground of appeal should fail.

Grounds of Appeal 4 and 5

Essentially under these grounds the Appellant contends that there was a failure to conduct a hearing because witnesses were not called and that the Court may only determine a suit based on oral evidence or documentary evidence produced.

The Appellant goes on to state that on the hearing date the Respondent did not depone at all or call witnesses and no material evidence was produced before the Court by either party and evidence ought to have been produced by the Respondent, as the burden of proof was on him to prove his case on a balance of probabilities.

The Respondent submits that this ground should be rejected since both parties deliberated and decided to make submissions on the Land Registrars report. The Respondent further argues that Counsel for the Appellant by his conduct impliedly admitted the said report as evidence and invited the Court to rule on his submission. I agree entirely with this submission.

As I indicated earlier that the parties dispensed with the need to lead evidence is incontrovertible, and is borne out by the record. The parties cannot dispense with leading evidence, on their own volition, and later complain that there was no hearing.

In light of the above, ground 5 on whether Chief Justice erred in law in failing to hold that the court cannot make a valid and considered judgment without a hearing and evidence cannot stand and both grounds should be rejected as I hereby do.

Grounds 6 and 7

On ground 6 the Appellant alleges that the Chief Justice erred in law in failing to properly interpret section 89(2) of the Land Registration Act in that there must be a finding following evidence on omission, fraud, mistake in order to avoid a transfer of immovable properly.
Section 89 of the Land Registration Act provides as follows:

“(1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

The Appellant submits that in order to render a transfer of immovable property void, a court of law must be satisfied that based on the evidence adduced in Court that the registration of the said transfer of the immovable property was based on omission, fraud or mistake. The Appellant further states that as there was no hearing the Respondent did not prove, on a balance of probabilities, that there was an omission, fraud or mistake on the part of the Appellants in registering the land parcel, therefore in the absence of such evidence, the transfer of the parcel to the Appellant cannot be rendered void.

In countering this ground, the Respondent states that the Court has unfettered powers to order rectification of the register by directing the Land Registrar to cancel or amend the register, provided it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

The Respondent argues that in the instant case the Judge was satisfied with documentary evidence submitted by the Land Registrar that a mistake had occurred in the registration of ownership of parcel S2025, thus the trial court correctly interpreted the law regarding rectification of land register and rightly applied to the case on hand.

The Respondent further submits that section 89(2) only applies to cases where a proprietor has acquired the land for valuable consideration, and it therefore does not apply to the Appellant who inherited through an alleged succession/devolution/transmission without valuable consideration.

The Respondent also submits that the Report submitted by the Land Registrar to the Court is the better evidence for the Court to safely rely and act upon for two reasons: It is nothing but a compilation of information copied from the records and other documents of public nature kept in the official custody of the Land Registrar; and is documentary evidence of a public nature which is admissible in evidence at any trial to the same extent and in the same manner as the original would be admissible.

The Respondent refers to section 7 of the Evidence Act which provides as follows:

“At any trial the contents of any record, book, deed, map, plan or other document in the official custody of the Supreme Court, the Registrar of Mortgages, the Land Registrar, or any Government department, of any magistrate's or stipendiary court, or of any notary may be proved by means of a copy or extract certified under the hand of the Registrar of the Supreme Court, the Registrar of Mortgages, the Land Registrar, the chief clerk or head of such department, the magistrate's or stipendiary clerk, or of such notary as the case may be, to be a true copy or extract. Such copy shall be admissible in evidence at any trial to the same extent, and in the same manner as the original would but for this Act be admissible. Certificates that such copies or extracts are true and purporting to be signed by the Registrar of the Supreme Court or other person aforesaid shall in the absence of proof to the contrary be held to have been so signed.”

The Respondent also refers to Section 8 of the Evidence Act and highlights that the Registrar of Land need not be summoned as is evident from this provision.

“No person having the official custody of such original documents as in section 7 mentioned shall be subpoenaed or summoned to produce the same, nor shall they be admissible in evidence at any trial except upon the order of a Judge of the Supreme Court. Such order shall only be made when it shall appear to the Judge that the authenticity of the document itself is in question, or that the proof sought to be given cannot be given by means of a copy or extract, and that the proof of such authenticity or such proof sought to be given is material to the matter at issue; and in every such case the same fee shall, in addition to the allowance to be paid for the attendance of the person so subpoenaed or summoned, be charged for the production of such document as would have been payable for a copy or extract:
Provided always that any record of any court shall be admissible in evidence in the court to which its custody belongs to the same extent and in the same manner as it would have been had this section not been enacted.”

I have carefully considered the above provisions. It is clear to me that the Registrars report is admissible and this is confirmed by the case of Hedge Funds Investment Management Ltd v Hedgeintro International Ltd & 2 Ors (CC 4/2012) [2017] SCSC 88 (06 February 2017) where the Court discussed the admissibility of documentary evidence and stated that:

“In this context, it must be noted that the procedural rules of our civilist tradition, namely the rules of evidence are subject to a hierarchy insofar as their weight in deciding a case is concerned. Article 1316 et seq of our Civil Code provides for rules of evidence in respect of “written evidence, oral evidence, presumptions, admissions…” Articles 1341 to 1348 and 1715 of the Code forbid oral testimony in certain circumstances. Further, civil evidence gives priority to documentary evidence over oral evidence (see the Civil Code). Distilled from these rules together with jurisprudence is the presumption that documentary evidence is superior to oral evidence. Implicit in those rules is the belief that documents are more reliable and truthful than the memory of witnesses.[28] The Court therefore in the present matter places greater reliance on the written evidence than on the oral testimony of parties.” (Paragraph 27)

Accordingly, there is no doubt that the Land Registrar’s report is admissible and he Court did not need to hear oral evidence in order to prove that there was an error in the Land register as it pertained to parcel S2025. This ground too has no basis and should be set aside.

In the premises and having considered all the Grounds of Appeal herein, I find that this appeal is without merit and is liable to be dismissed.

CONCLUSION

In light of the above, I would dismiss the Appeal. There is no order as to costs.

_________________
Dingake JA

[1] ″89 (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.
(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which rectification is sought, or cuased such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.″

[2] Ibid.

[3] Ibid.

[4] Section 17 (4) stipulates: ″In this section expert report″ means a written report by a person dealing wholly or mainly with the matters on which the person is or would, if living, be qualified to give expert evidence″.