Jean-Baptiste v Padayachy (SCA 30 of 2019) [2022] SCCA 2 (31 January 2022)

 

6

 

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 2 (31 January 2022)

SCA 30 & 36/2019

(Appeal from CS 114/2017)

 

 

In the Matter Between

 

Suzanne Mussard Jean-Baptiste                                            Appellant      

(rep. by Mr Basil Hoareau)                                                   

        

 

and

 

Dermont Hughs Padayachy                                                    Respondent

(rep. by Mr Kieran Shah)

 

And in the Matter Between

 

Dermont Hughs Padayachy                                                    Appellant

(rep. by Mr Kieran Shah)

 

and

 

Suzanne Mussard Jean-Baptiste                                            Respondent

(rep. by Mr Basil Hoareau)                                                               

 

Neutral Citation: Jean-Baptiste v Padayachy  (SCA 30 & 36/2019) [2021] SCCA 2

(Arising in CS 114/2017)

31 January 2022

Before:                   Twomey, Robinson, Tibatemwa-Ekirikubinza JJA

Summary:             -   Article 724 of the Civil Code of Seychelles - Heirs seised ipso facto of the property, rights and actions of the deceased if the deceased leaves no immovable property - Right of co-ownership in land is a real right that extends over the whole property vide Jumeau v Anacoura [1978] SLR 180 – An action ″en revendication″ is a real action - Article 2271 of Civil Code of Seychelles does not apply to an action ″en revendication″ - Personal Action - Ownership of immovable property once obtained is not lost by extinctive prescription

 

Orbiter: Ownership of an immovable property is lost only by another person acquiring ownership of it by acquisitive prescription/usucapion, if the possessor of the thing fulfils the conditions for acquisitive prescription and if he has possessed for a sufficient length of time. But if the possessor, for any reason whatever, could not acquire the ownership, there is no reason why an action ″en revendication″ brought against him should fail.

 

• General Power of Attorney - Section 54 of Mortgage Registration Act – Sections 3 and 70 of Land Registration Act - Transfer of land through the General Power of Attorney registered under the Mortgage Registration Act - No evidence that the then Land Registrar had approved the General Power of Attorney - Instrument of Transfer illegal and null

 

 

Heard:                   2 December 2021

Delivered:              31 January 2022

_____________________________________________________________________________ 

                                                               ORDER

1. Appeal is allowed in its entirety.
2. I declare the sale and transfer of the Property null.
3. I declare that Suzanne Mussard Jean-Baptiste is entitled to an undivided half share interest in the Property.
4. I order the Land Registrar to rectify the register of the Property to reflect that Suzanne Mussard Jean-Baptiste is a co-owner of the Property, by virtue of holding an undivided half share interest in the Property.
5. Cross-appeal is dismissed in its entirety
6. With costs in favour of Suzanne Mussard Jean-Baptiste for the appeal and the cross-appeal

 

_____________________________________________________________________________

 

JUDGMENT

____________________________________________________________________________________

ROBINSON, JA

 

The background facts

 

1. This appeal and cross-appeal come before this Court from a judgment of a learned Judge of the Supreme Court dated 29 May 2019.

 

2. The Appellant, Suzanne Mussard Jean-Baptiste (″Suzanne″ for ease of reference), the plaintiff then, has appealed against the judgment dismissing her plaint on the ground that her cause of action was not an ″action en revendication″. The learned Judge treated Suzanne's action as a personal action and held that it was barred by the five-year extinctive prescription under Article 2271 of the Civil Code of Seychelles.

 

3. Suzanne has challenged the holdings of the learned Judge on the following grounds ―

 

″1. The learned trial judge erred in law in holding that the cause of action instituted by the Appellant was not an ″action en Revendication″.

 

2. The learned Trial Judge erred in law in holding that the cause of action- instituted by the Appellant was prescribed under Article 2271 of the Civil Code″.

 

4. The Respondent, Dermont Hughs Padayachy (″Dermont″ for ease of reference), has cross-appealed the learned Judge's judgment on two grounds as follows ―

 

″1. The learned trial judge was in error to hold that the notarial Power of Attorney dated 30^th October 1978 registered on the 16^th November 1978 in register A 37 No:1989 at the Registry of Deeds in terms of Section 12(1) of the Mortgage and Registration Act was void as ―

 

1. it was not filed in the register and file of Power of Attorney,

 

2. that in consequence, the transfer  made pursuant to this power of Attorney was null and void,

 

in that (i) both the Power of Attorney and the land in question in the year 1978 were registered under the Mortgage and Registration Act, and in any event, the form cannot take precedence over the substance of the Power of Attorney,

 

(ii) The Grantee of a Power of Attorney cannot be liable for the non-performance of an administrative function of the Registry Deeds.

 

2. The learned trial judge was in error not to consider and hold that alternatively, the Respondent had acquired the property by acquisitive prescription of 20 years and/or 10 years, or its claim defeated by the prescription of 20 and/or 10 years.

 

5. Ground one of the grounds of cross-appeal is against the learned Judge's holding that the transfer of the property to the late Marie-France Mussard (″Marie-France″ for ease of reference) through the ″General Power of Attorney″, exhibit P5, was without authority ″in view of the Power of Attorney not being in the prescribed form and not being registered pursuant to the provisions of the Land Registration Act″: paragraph 21 of the judgment.

 

6. The second ground of cross-appeal dealt with the acquisition of immovable property through acquisitive prescription. I find it appropriate to address the second ground of cross-appeal at the outset.

 

7. The second ground of cross-appeal is misconceived and stands dismissed. I state the reasons for dismissing the second ground of cross-appeal.

 

8. Dermont's amended defence, in the alternative, raised an action seeking a declaration of his right of ownership of the Property by acquisitive prescription. The amended defence did not plead a counterclaim asking for a declaration of his alleged right. Counsel for Suzanne argued before the trial court and at the appeal that Dermont should have instituted a counterclaim based on acquisitive prescription.

 

9. This Court held in Chetty & Anor v Laporte SCA 19/2019 2021 SCCA 80[1], delivered on the 17 December 2021, paragraph [14] ―

 

″14. [b]ased on section 80 of the Seychelles Code of Civil  Procedure and the legal principles enunciated in the English cases of persuasive authority, we hold that, had the Appellants claimed a relief concerning parcel H801, they would, in effect, be claiming in respect of parcel H801, which would substantially be a cross-action : see, for example, Maria Adonis v William Celeste SCA 28/2016 [2019] SCCA 32 (23 August 2019) and PTD v Zialor (SCA32/2017) [2019] SCCA 47 (17 December 2019). Also, in Seebun (Appellant) v Domun and others (Respondents) (Mauritius) [2019] UKPC 39 Privy Council Appeal No 0078 of 2014, the Board, in an appeal which raised questions regarding the acquisition of ownership of immovable property through acquisitive prescription and the loss of a right of action through extinctive prescription, stated: ″[a] person asserting his ownership of property by acquisitive possession can raise an action seeking a declaration of his right of ownership …″. In this connection, the Appellants should have claimed or sought remedy or relief by counterclaim in the Respondent's action and not by way of defence to the Respondent's claim″. Emphasis is mine

 

10. In Chetty & Anor [supra], this Court also quoted with approval the following passage from Odgers' Principles of Pleadings and Practice in Civil Actions in the High Court of Justice 19^th Edition, p. 218 ―

 

″ A counterclaim must always claim relief against the plaintiff. ″A pleading which asks no cross-relief against a plaintiff either alone or with some other person is not a counterclaim.″ (Per Jessel M.R. in Furness v. Booth (1876) 4 CH. D. at P. 587.″.

 

The Pleadings and summary of the evidence:

11. Before considering the law and contentions of the parties concerning this appeal and the cross-appeal, I state the pleadings and summarise the evidence so far as necessary.

 

12. Suzanne, in her plaint, claimed that the Deceased was during her lifetime the owner and proprietor of parcel V2062 and the buildings situated thereon registered under the Land Registration Act. [In parenthesis, parcel V2062 and the buildings situated thereon are hereinafter collectively referred to as the Property″].

 

13. Suzanne averred that her sister, Marie-France, the only other child of and heir to the Deceased estate, transferred the Property to herself by an instrument of transfer dated 6 April 1993. The said transfer was done under a purported ″General Power of Attorney″, granted to Marie-France by the Deceased on the 30 October 1978, exhibit P5, hereinafter referred to as the ″General Power of Attorney″.

 

14. After the death of Marie-France, the Property was registered in the name of Dermont in his capacity as an heir to the estate of Marie-France. The other child of Marie-France, Rachel Telma Duncan (born Padayachy), had renounced all her legal rights and interests in the Property in favour of Dermont.
15. By reason of the aforesaid matters, Suzanne claimed that the instrument of transfer dated 6 April 1993 was illegal and null as ―

 

″(i)       the purported power of attorney by virtue of which the late Marie-France Mussard executed the instrument of transfer was not:

 

• in the form prescribed by the Act;

 

• executed in the presence of a notary, barrister, attorney, magistrate, Justice of the Peace, a duly appointed Government representative or the Land Registrar; and/or

 

• in any event executed in accordance with section 60 of the Act; and or

 

(ii)       an original or certified copy of the said power of attorney was not filed in the file of powers of Attorney in contravention of the provisions of the Act.″

 

16. The plaint averred that at the time of her death, the Deceased estate did not comprise any immovable property due to the illegal execution of the instrument of transfer dated 6 April 1993 by Marie-France and the registration of the Property in Marie-France's name.

 

17. As a result of the illegal execution of the instrument of transfer dated 6 April 1993, Suzanne, in her capacity as one of the two heirs to the Deceased estate, claimed that she had been deprived of her proprietary right in the Property, namely her undivided half share interest therein. In the premises, Suzanne averred that she is entitled to an undivided half share in the Property.

 

18. I have summarised the amended defence on the merits so far as necessary. Dermont denied the claims of Suzanne and claimed that ―

 

1. Suzanne is not an heir of the Deceased concerning the Property;
2. the General Power of Attorney was a notarial power of Attorney, which was duly executed and registered on the 16 November 1978 in Register A37 No. 189 at the Registry of Deeds;
3. the Land Registrar is empowered to accept a document that is not in the prescribed form under the Land Registration Act;
4. although the estate of the Deceased did not contain any immovable property, the transfer of the Property to Marie-France and its registration were legal;
5. Suzanne is not entitled to an undivided half share interest in the Property as claimed by her.

 

19. I now give a summary of the relevant evidence.

 

20. The evidence of Suzanne Mussard Jean-Baptiste, PW1. The Deceased was the owner and registered proprietor of the Property during her lifetime. At the time of the Deceased's death on the 19 September 2001, Suzanne and Marie-France were the only heirs to her estate. Marie-France passed away on the 28 November 2013. Dermont is an heir to the estate of Marie-France.

 

21. By an instrument of transfer dated 6 April 1993, exhibit P6, Marie-France transferred the Property to herself under the purported capacity as the agent of the Deceased. At the time of the said transfer, the Property was registered under the Land Registration Act. The General Power of Attorney, under which Marie-France purportedly transferred the Property in her name, was registered in Register A37 of 1989 and dated 30 October 1978.

 

22. After the death of Marie-France, the Property was registered solely in Dermont's name. Marie-France's daughter, Rachel Telma Duncan (born Padayachy), had renounced all her legal rights and interests in the Property in favour of Dermont under an affidavit on transmission by death.

 

23. There was no immovable property registered in the Deceased's name at the time of her death in 2001. Marie-France had purportedly transferred the Property in her name. She has brought proceedings on the basis that, as an heir to the Deceased estate, she has been deprived of her proprietary right in the Property. She was claiming her undivided half share interest in the Property. She stated that the instrument of transfer dated 6 April 1993 is null and illegal because the General Power of Attorney by virtue of which Marie-France executed the instrument of transfer was not in the form prescribed by the Land Registration Act, and it was not filed in the file of powers of attorney contrary to the Land Registration Act.

 

24. When cross-examined, she denied the proposition of Counsel that she had not inherited the Property because the Deceased had sold it before she died.

 

25. The evidence of Rosemary Carolla, PW2. Rosemary Carola, a senior registration officer of the Land Registration Division, tendered an affidavit on transmission by death dated 8 April 2016, exhibit P7, sworn before Mr Serge Rouillon. Exhibit P7 stated inter alia that Mrs Rachel Telma Duncan (born Padayachy) had renounced all her rights and interests in the Property in favour of Dermont, her brother.

 

26. The General Power of Attorney was entered in register A37 number 1989 kept in terms of section 12(1) of the Mortgage and Registration Act CAP 134. She tendered a certified copy of the index of the said register, exhibit P8, which contained, inter alia, essential particulars regarding the entry of the General Power of Attorney.

 

27. The General Power of Attorney was not in the form prescribed under the Land Registration Act. She added that the Land Registration Act stipulates a file in which all powers of attorney must be entered. The General Power of Attorney was not filed in accordance with the provisions of the Land Registration Act.

 

28. When cross-examined, she stated that the Property moved from the register under the Mortgage and Registration Act to the land register under the Land Registration Act on the 21 June 1983.

 

29. The evidence of Serge Rouillon, DW1. Mr Rouillon, a former Land Registrar, accepted that the General Power of Attorney was not in the prescribed form stipulated under the Land Registration Act. He added that he approved the General Power of Attorney concerning the transfer and registration of the Property under section 70(2) of the Land Registration Act.

 

30. When cross-examined, Mr Rouillon accepted that the General Power of Attorney was entered in the register kept under the Mortgage Registration Act. He also accepted that section 70 of the Land Registration Act requires a power of attorney, which contains any power to dispose of any interest in land, to be registered in the register of powers of attorney and filed in the file of powers of attorney. Mr Rouillon denied the suggestion of Counsel that he had no discretion under section 70(2) of the Land Registration Act to permit the transfer and registration of the Property through the General Power of Attorney, which did not conform to the Land Registration. He also denied that he had made a mistake in 1993 by allowing the transfer and registration of the Property to be made through the General Power of Attorney,

 

31. The evidence of Dermont Padayachy, DW2. Dermont stated that Suzanne is his aunt. His mother, Marie-France, bought the Property from the Deceased through the General Power of Attorney. He denied that Suzanne is entitled to a fifty per cent share interest in the Property. Suzanne did not claim that the instrument of transfer dated 6 April 1993 was not valid during the lifetime of Marie-France.

 

Analysis of the contentions of the parties: appeal and cross-appeal

 

Grounds 1 and 2 of the grounds of appeal

32. The skeleton heads of argument offered on Suzanne's behalf dealt with the first and second grounds of appeal together. Concerning these two grounds of appeal, Counsel for Suzanne formulated these two contentions ―

 

1. the cause of action instituted by Suzanne was not prescribed under Article 2271 of the Civil Code of Seychelles;
2. in addition, the cause of action between Suzanne and Dermont was one of ″revendication″.

33. First, Counsel for Suzanne submitted that the cause of action instituted by Suzanne was not subject to prescription under Article 2271 of the Civil Code of Seychelles. Counsel contended that Article 2271 of the Civil Code of Seychelles does not apply to the present action because Suzanne exercised the right of action she inherited from the Deceased, and the cause of action between Suzanne and Dermont was one of ″revendication″.

 

34. In his supporting submissions, Counsel for Suzanne argued that the learned Judge came to the wrong conclusion that the cause of action was based on a personal right and was, therefore, a personal cause of action. He mentioned that the learned Judge relied on Nolin v Nolin SCA4/14[2] and the judgment of Sauzier J., Jumeau v Annacoura [1978] SLR 180 in coming to her finding. Counsel for Suzanne submitted that Nolin [supra], which relied on Jumeau [supra], held that a claim for a share in a co-ownership is a personal action instead of a real action. He referred this Court to the following pronouncement in Nolin [supra] (Domah JA) ―

 

″(7) With regard to the issue of the prescription, what the Appellant is claiming is the rights of co-ownership in Parcels H4119 and H4122. Clearly, these rights are personal rights on the authority of Jumeau v Anacoura [supra] where Sauzier J held that the right of a co-owner is not a real right over the property on which it is claimed. We endorse that view. As such, that right being a personal right, it is barred by a prescription period of five years as per Article 2271 of the Seychelles Civil Code.″ Emphasis is not mine

 

35. Counsel contended that the Court of Appeal in Nolin [supra] misinterpreted Jumeau [supra]. Counsel submitted that Jumeau [supra] recognised that the right of co-ownership in land is a real right that extends over the whole property. In furtherance of his submission, Counsel relying on Article 817 of the Civil Code of Seychelles and Jumeau [supra], submitted that, after the co-ownership had come into existence, each co-owner has solely a personal right or a claim to a share of the proceeds of any subsequent sale of the land. In light of his submissions, Counsel for Suzanne submitted that the right being exercised by Suzanne to claim an undivided half share interest in the Property is a real right. She will have a personal right, or a claim to a share of the proceeds of the sale of the Property after the co-ownership of the Property with Dermont had come into existence.  

 

36. Counsel for Dermont did not accept the submissions made on behalf of Suzanne. Counsel for Dermont argued that the learned Judge was correct in holding in law that the cause of action instituted by Suzanne was not an ″action en revendication″. Counsel explained that Suzanne's claim could not be subject to an ″action en revendication″ because her claim for a half share co-ownership in the Property arose from her status as an heir to the estate of the Deceased. In his supporting submissions, he contended that Suzanne's claim for a half share co-ownership in the Property by virtue of a right in succession makes it a personal right and not a real right.

 

37. Counsel also contended that the learned Judge was correct in holding that the cause of action was subject to the five-year prescription under Article 2271 of the Civil Code of Seychelles. The supporting submissions offered on behalf of Dermont referred to the case of Nolin [supra], which upheld the holding in Jumeau. In the view of Counsel for Dermont, Suzanne's claim could not benefit from the imprescriptibility of an action en revendication.

 

38. According to Counsel for Dermont, a challenge to the validity of the transfer of the General Power of Attorney should have been instituted by the Deceased in her lifetime within the prescribed period as the transfer was effected during the lifetime of the Deceased.

 

Analysis of Suzanne's and Dermont's contention concerning grounds 1 and 2

 

39. I have considered the grounds of appeal and the skeleton heads of argument offered on behalf of Suzanne and Dermont and both Counsel's oral submissions at the appeal and all the written submissions before the Supreme Court.

 

40. The following issues arise for consideration ―

1. whether or not the cause of action instituted by Suzanne is prescribed under Article 2271 of the Civil Code of Seychelles;
2. Secondly, but still, as part of the first issue, whether or not the cause of action between Suzanne and Dermont was one of ″revendication″.

 

41. I consider both grounds of appeal and the contentions raised by Counsel for Suzanne concerning these grounds together.

 

42. The Civil Code of Seychelles distinguishes between real actions and personal actions. A personal action is an action to have a personal right recognised or enforced. Nonetheless, one should not be preoccupied with the origin of the obligation to determine whether or not an action is personal. It does not matter whether it relates to the establishment or the mode of exercise of a real right, as long as the dispute that motivates the action does not relate to the real right itself. Répertoire Dalloz n^o 210[3] p 57 : Répertoire de Procédure Civile et Commerciale Tome I,

 

43. Article 2271 of the Civil Code of Seychelles provides inter alia that personal actions are barred by extinctive prescription of five years as follows ―

 

″Article 2271

 

1. All rights of action shall be subject to prescription after a period of five years except as provided in articles 2262 and 2265 of this Code.

 

2. Provided that in the case of a judgment debt, the period of prescription shall be ten years. Emphasis supplied

 

44. A real action is an action to establish or exercise a real right in a thing. The action ″en revendication″ is the principal of the real actions which ″garantit le droit de propriété″. Répertoire Dalloz p 58 : Répertoire de Procédure Civile et Commerciale Tome I.
45. Counsel for Dermont, in his supporting submissions, referred this Court to the following extract from Nolin [supra], which was taken from Marcel Planiol Traité Élémentaire de Droit Civil  (12^th ed 1939) translated by the Louisana State Law Institute Volume 1 - Part 2 n^o 2445 p 446-447, on the definition of ″revendication″ ―

 

″2445. Definition

Revendication is the action brought by the person who petitions for the restitution of a thing upon the ground that he is the owner. The revendication is therefore based upon the existence of a right of ownership, and its objective is the obtaining of possession. A differentiation must be drawn between many suits in restitution which are based upon an obligation devolving upon a defendant. The latter are personal actions, because the plaintiff sets up a creditor's right, whereas revendication, which is nothing other than the right of ownership asserted judicially, is a real action″.  Emphasis is mine

 

46. Note 492 pp 363-364 from François Terré et Philippe Simler Droit Civil Les Biens 6^e édition on ″revendication″ of immovables and the imprescriptibilty of the action ″en revendication″ is instructive regarding the issues being considered ―

 

″492 Revendication des immeubles. Imprescriptibilité de l’action en revendication. De ce que la propriété ne se perd pas par le non-usage, il résulte que le propriétaire peut, en principe, revendiquer sa chose, si elle se trouve aux mains d’autri, quel que soit le temps écoulé. Une remarque importante s’impose cependant : le propriétaire qui s’est abstenu d’exercer son droit n’est pas toujours en état de revendiquer la chose, dès lors que, dans l’intervalle, un tiers s’est mis en possession et a pu devenir propriétaire par prescription acquisitive; il suffira alors au possesseur, pour écarter la revendication, de faire la prevue du droit dont il est ainsi investi par la prescription. Mais, en supposant que le possesseur de la chose ne soit pas à même de faire cette prevue – il en sera ainsi lorsque la prescription n’aura pas joué à son profit, soit que la possession qu’il n’y ait pas eu une veritable possession ait insuffisamment duré, soit qu’elle ait été entaché d’un vice, soit même qu’il n’y avait pas eu une veritable possession -, pourra-t-il opposer une fin de non-recevoir à l’action en revendication, tirée de sa prescription? Certains auteurs ont précisément soutenu que la propriété n’était  point nécessairement perpétuelle et que l’action en revendication état susceptible de s’étendre par la prescription de trente ans; l’article 2262 dispose en effet, dans les termes plus généraux, que ʺtoutes les actions, tant réelles que personelles, sont prescrites par trente ans″, et l’action en revendication doit être soumise à ce texte general.

Appelée essentiellement à prononcer au sujet de la revendication des immeubles ..., la jurisprudence s’est prononcée en faveur de l’imprescriptibilité de l’action en revendication. Cette solution se fonde non seulement sur des raisons d’ordre general, théoriques ou philosophiques …,  mais aussi sur des considerations de caractère, tenant notamment à la détermination du point de depart de la prescription extintive de trente ans…″

 

47. I also read from Mazeaud LEÇONS DE CROIT CIVIL TOME DEUXIÈME OBLIGATIONS THÉORIE GÉNÉRALE BIENS DROIT DE PROPRIÉTÉ ET SES DÉMEMBREMENTS n^os 1627 – 1628 pp 1296 -1297 and 1630  ―

 

″1627. ― L’action en revendication et la preuve. ― Le droit de propriété, comme tout autre droit, est protégé par une action en justice, qui permet au propriétaire de faire reconnaître et sanctionner son droit. L’action qui sanctionne le droit de propriété est l’action en revendication (rei vindicato, reclamation de la chose.). Pour triompher, le demandeur à l’action en revendication doit établir son droit de propriété. […].

 

1628. ― Imprescriptibilité de l’action en revendication. ― L’action en revendicaation est une action réelle, obeisant aux règles générales des actions en justice […]..

L’action en revendication diffère cependant des autres actions sur un point particulier : elle est imprescriptible, alors qu’aux termes de l’article 2262 C. civ. toutes les actions réelles que personelles se prescrivent par 30 ans. […].

Si le droit de propriété ne se perd par le non-usage, son titulaire peut cependant en être privé parce q’un tiers a acquis le même droit par l’effet de sa possession (usucapion; […]). Le propriétaire perd alors l’action en revendication en même temps que le droit de propriété; mais cette action ne disparait pas; elle change de titulaire avec le droit de propriété dont elle n’est que la mise en oeuvre. […].

 

[...].

 

1630. ― Effets de l’action en revendication. ― La revendication lorsqe’elle aboutit, oblige le possesseur à restituer la chose au propriétaire″.[…]. Avec la chose, le possesseur doit restituer les produits et les fruits, ou leur valeur. Par exception, lepossesseur de bonne foi fait les fruits siens jusqu’à l’assignation. […]″.

 

48. The above legal principles state inter alia that an owner of immovable property does not lose his or her ownership of the immovable property through extinctive prescription even if he or she has lost possession of the property. A cause of action to assert ownership renews itself every day. Ownership of immovable property, once obtained, is not lost by extinctive prescription: Marcel Planiol, Traité Élémentaire de Droit Civil Volume 1 - Part 2  (12^th ed 1939) translated by the Louisana State Law Institute,  n^os 2446-2447.

 

49. As I understand it, ownership of an immovable property is lost only by another person acquiring ownership of it by acquisitive prescription/usucapion, if the possessor of the thing fulfils the conditions for acquisitive prescription and if he has possessed for a sufficient length of time. But if the possessor, for any reason whatever, could not acquire the ownership, there is no reason why an action ″en revendication″ brought against him should fail.

 

50. [In parenthesis, I state that this pronouncement in bold italic (emphasis is mine) in Monique Delpeche v Marie-Ange Gregoretti and Ors at paragraph 23 is incorrect and should not be relied upon ―

″ 23 That rule, however is subject to the qualification derived from jurisprudence constante that an "action en revendication (action where two aspirant owners are competing in title to the same property) is not subject to limitation. Hence the twenty year prescription in relation to real rights (Article 2262) is not applicable to such claims since the non-usage or physical possession of land where one has title does not result in the loss of property rights (see in this respect in Seychelles Nolin v Nolin (unreported) [20161 SCCA 13 […].″]

 

51. I now apply the legal principles to the facts of this case.

 

52. I hold that the learned Judge was wrong to hold that Suzanne's action was a personal action, which was barred by the five-year prescription. The learned Judge based her holding on the ground that ″the Plaintiff on the death of her mother would have been a co-owner with her sister the Defendant's mother and cannot be said to be a competing title-holder″. Therefore, I reject the contentions raised by Counsel for Dermont.

 

53. Fundamentally, the orders sought included a declaration that Suzanne is entitled to an undivided half share interest in the Property. I accept the submission of Counsel for Suzanne that this is a claim to establish a real right in a thing. I agree that to that extent, Suzanne's action is a real action/″une action réel″. Vide Jumeau [supra] ―

 

″Although the right of co-ownership in land is a real right which extends over the whole of the property, that right cannot be exercised except through a fiduciary on behalf of all the co-owners in accordance with the provisions of the Civil Code of Seychelles, […], (Articles 817 et seq.).″ Emphasis supplied

 

54. Clearly, in her plaint, Suzanne is not seeking an order which will permit her to share in the proceeds of the sale of the Property; she is not in a co-ownership with Dermont. Thus, Counsel is correct in submitting that she will have a personal right for a claim to share in the proceeds of the sale of the Property only when she will enter into co-ownership of the Property with Dermont.

 

55. In this connection, I accept the submission offered on behalf of Suzanne that Article 724[4] of the Civil Code of Seychelles applies to this case. It is undisputed that the Property was not part of the Deceased estate at the time of her death, and that the Deceased estate did not contain any immovable property. Counsel for Suzanne is correct in his submission that, based on Article 724 of the Civil Code of Seychelles, the requirement that she may only act through a fiduciary does not arise. Suzanne as an heir is seised ipso facto of the Deceased's property, rights and actions.

 

56. For the reasons stated above, I hold that the five-year extinctive prescription, which applies to personal actions, does not apply to the cause of action as Suzanne is asserting and seeking to protect a right of ownership in the Property. As mentioned above, I conclude that Suzanne′s cause of action is an action ″en revendication″, which is not barred by prescription.
57. In light of my findings above, I also accept the submission of Counsel for Suzanne that the Court of Appeal in Nolin [supra] had misinterpreted the judgment of Sauzier J., in Jumeau. Jumeau [supra] recognised that the right of co-ownership in land is a real right that extends over the whole property. Chetty v Chetty & Ors (2003) SLR 133 states that ″[t]he individual "real rights" of co-ownership is preserved by Article 817 (2) of the Civil Code. Chetty [supra] referred to this extract from Professor A. G. Chloros[5] ―

 

The reform, therefore, amounts to the effective disappearance of the undesirable consequences of co-ownership, while retaining the idea of co-ownership in principle. The real right survives, but it cannot be exercised as other real rights, for in practice, it is only a claim of money. Emphasis supplied

58. I allow the first and second grounds of appeal for all the reasons stated above.

 

Ground 1 of the cross-appeal

59. I consider the first ground of the cross-appeal. It is undisputed in this case that when the General Power of Attorney was granted, the parcel V2062 was not registered under the Land Registration Act. The General Power of Attorney was registered in Register A37 No. 1989, in accordance with section 54(1) of the Mortgage and Registration Act. Register A37 No. 1989 is kept in accordance with section 13 of the said Act.

 

60. In his supporting submissions, Counsel for Dermont contended, in the main, that Mr Rouillon, DW1, had approved the General Power of Attorney under section 70(2)  of the said Act.

 

61. I read section 70(1) and (2) of the Land Registration Act ―

 

″Powers of attorney

 

70 (1) Upon the application of the donor or the donee of a power of attorney which contains any power to dispose of any interest in land, such power of attorney shall be entered in the register of powers of attorney and the original, or with the consent of the Registrar a copy thereof certified by the Registrar, shall be filed in the file of powers of attorney.

 

(2) Every such power of attorney shall be in the prescribed form or such other form as the Registrar may in any particular case approve, and shall be executed and attested in accordance with section 60.″

 

62. After considering both Counsel's submissions, I conclude that the General Power of Attorney did not meet the requirements of section 70 of the Land Registration Act. I accept the submission of Counsel for Suzanne. Moreover, there is no evidence to substantiate the allegation of Dermont that Mr Rouillon, DW1, had approved the General Power of Attorney under section 70(2) of the said Act. There is no evidence to show that the General Power of Attorney had been entered in the register of powers of attorney and filed in the file of powers of attorney.

 

63. Fundamentally, the Mortage and Registration Act is concerned with the registration of deeds and all documents required or allowed by the said Act or any other law to be registered. The Land Registration Act stipulates a land register for the registration of land and encumbrances thereon based on a title number. Hence, only registration of title under the Land Registration Act guarantees title to land. The prescribed form, Form L.R.3[6], titled ″LAND REGISTRATION ACT POWER OF ATTORNEY″, under the Second Schedule to the Land Registration Act, is based on the title number of the land and the donee is appointed ″generally in relation to the interest of the donor in the title″. It is glaring that the General Power of Attorney does not even contain the title number of the land in dispute. I state no more about the General Power of Attorney.

 

64. In addition, I also reject the contention of Counsel for Dermont that the filing of the General Power of Attorney is a matter under the control of the Registrar of Land. I accept the submission of Counsel for Suzanne that for a power of attorney to be filed, there must be an application made to the Land Registrar by the donor or the donee of the power of attorney under section 70(2) of the Land Registration Act. Counsel for Suzanne is also correct to submit that section 3[7] of the Land Registration Act applies to this case.

 

65. I also accept the submission of Counsel for Suzanne that section 70(1) and (2) are couched in mandatory terms, and that a failure to comply with the said provisions renders the power of attorney void, and that, consequently, any transaction carried out based on such a power of attorney is null.

 

66. For the reasons stated above, I uphold the finding of the learned Judge that the Instrument of Transfer is illegal and null.

 

67. I dismiss ground 1 of the grounds of cross-appeal.

 

Decision

 

68. The appeal is allowed in its entirety.

 

69. I declare the Instrument of Transfer null.

 

70. I declare that Suzanne Mussard Jean-Baptiste is entitled to an undivided half share interest in the Property.

 

71. I order the Land Registrar to rectify the register of the Property to reflect that Suzanne Mussard Jean-Baptiste is a co-owner of the Property by virtue of holding an undivided half share interest in the Property.

 

72. Cross-appeal is dismissed in its entirety.

 

 

73. With costs in favour of Suzanne Mussard Jean-Baptiste for the appeal and the cross-appeal.

 

 

 

_______________________

F. Robinson, JA

                                                                                                                                                                                                                                                                    

 Signed, dated and delivered at Ile du Port on 31 January 2022.