Marie v Boniface (MC 24 of 2024) [2024] SCSC 158 (3 September 2024)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search null ESPARON J Introduction [1] This in an application by the applicant seeking an order from this court for a Writ habere facias possessionem to order the Respondent Pedro Boniface, his agents and lor servants to quit, leave, vacate and cede vacant possession of the immovable property of the Applicant, namely Title PR 4486 situated at Cote D'or, Praslin. [2] On the 10thof July 2024 when the matter came up for mention, the Respondent had been served but did not appear in Court and that was the second time that the Respondent had been served which shows that he was aware of the proceedings in Court. As a result, this Court granted leave to the Applicant to proceed with the matter Ex- Parte of which the case was fixed to be heard ex-parte on the 5thAugust 2024. The Pleadings [3] The Application is supported by the Affidavit of the Applicant namely Maxime Marie who avers inter-alia in his Affidavit the following; '1. I am the owner of Title PR4486, by virtue of a judgment of the Supreme Court dated 17thJanuary 2018, which Judgment conferred Title onto me, from Marie­ Therese Boniface and registered after payment of stamp duty on transfer of land, on the 23rd August 2023, marked exhibit A1. 2. The said Marie-Therese Boniface has since vacated Title PR 4486, in terms of the Judgment. However, her adult son, Pedro Boniface, has remained in occupation and refuses to cede occupation and possession to me despite my several attempts to cause him to vacate. I hereto attach the letter of Notice to Vacate, dated 27th December 2023 marked exhibit A2. 3. I aver that the Respondent is not a tenant or lessee in terms of the Control and Tenancy Agreements Act. He is not a Licensee or an occupier with my permission. Presently, he has no legal authority to occupy, possess and control my house and curtilage comprising Title PR4486. I have no other legal remedy or course of action to secure the surrender of his occupation of my land. 4. The Respondent has no valid, reasonable or serious defence in law against this Application. 5. By his act of continuous occupation and possession, the Respondent has denied me of my legal right of lawful possession, peaceful occupation and enjoyment of Title PR4486.' The Evidence [4] The Applicant, Maxime Marie gave evidence on oath in Court to the fact that he is the owner of a plot of land and a small house thereon title PR 4486 and purchased it from one Marie-Therese Boniface and after the purchase of the said property she did not want to render title to sign the deed of sale of which he had paid all the consideration. He then brought the matter before the Court in case number CS 19/2016 and that Judgment was delivered on the 17thJanuary 2018. The said Judgment was produced to the Court and the Court admitted it as exhibit and marked the said document as exhibit P1. The Applicant also produced a certificate of official search showing that tittle PR 4486 is registered on his name of which the Court admitted the said document as exhibit and marked it as exhibit P2. [5] He further gave evidence that Marie-Therese Boniface, the defendant in his case has vacated the house and the land but that her son Pedro Boniface is still defiantly in occupation of the premises and he produced to the Court a letter asking the said Pedro Boniface to vacate the house title PR 4486 dated the 27th December 2018 of which the Court admitted it in exhibit and marked the said document as exhibit P3. [6] The witness also deponed that the Respondent has no legal right to be there and that the Applicant has no other legal remedy since he is occupying the property illegally and that he has denied him of his legal right of lawful possession and peaceful occupation and enjoyment of his land. Analysis and determination [7] The general principles governing writs of habere facias possessionem has been laid down in the case of Lesperance v Intour (2001) SLR 28, whereby the court laid down the following guiding principles; a. The Court in granting relief acts as a court of equity and exercise its equitable powers in terms of section 6 of the Courts Act; b. Those who come with equity should come with clean hands; c. There should not be any other legal remedy available to the Applicant who seeks an equitable remedy; d. The remedy is available to the applicant whose need is of an urgent nature and to whom any delay in the remedy would cause irreparable loss and hardship; e. The Court should be satisfied that a Respondent has no bona fide and serious defence to make; and f. If the remedy sought to eject a Respondent who is occupying the property merely on the benevolence of the applicant, then that respondent should not have any right or title over the property. [8] In the case of Lesperance v Vidot SCA 25/2007, LC 316, the Court held the following; 'To succeed in obtaining a writ of habere facias possessionem, the owner must show clear title to the property in lite. The law needs title, not title-deed, because a person may hold a title deed with a questionable or dubious title '. [9] Ex-facie the Affidavit, as well as the documents attached to the Application and the uncontroverted evidence led by the applicant in Court, this Court is of the view that the Applicant has shown to the Court that he has a clear title to the property in lite in view of the Judgment in CS 19/2016 and delivered on the 17th January 2018 and that he is the registered owner of PR4486 by virtue of the said Judgment. [10] This Court also finds that the Respondent has no bona fide and serious defence to the application since it is clear that there is a judgment against his mother Marie-Therese Boniface namely CS 19/2016 and delivered on the 17th January 2018 and as such the said Pedro Boniface is in illegal occupation of the said property. [11] This Court is also satisfied that the Applicant has come with clean hands before the Court by disclosing all material facts before the Court and that there is no other legal remedy available to the Applicant in view of the nature of the matter. [12] I also find that such a remedy sought by the Applicant is of an urgent nature and to whom any delay in the remedy would cause irreparable loss and hardship to the Applicant since he Respondent is in illegal occupation of the said property since 17thAugust 2018 and this Court is of the view that any further delay would cause greater hardship to the Applicant. [13] In the circumstances, it is just and equitable that I allow the Application and grant the writ habere facias possessionem as prayed for by the Applicant and I accordingly order that the Respondent Pedro Boniface, his agents and/ or servants to leave, quit and vacate parcel number Title PR4486 along with the house he is occupying forthwith. [14] I accordingly award cost in favour of the Applicant. [15] I further order that a copy of this Judgment be served on the Respondent Mr. Pedro Boniface of Cote D' or, Praslin, Seychelles.