COURT OF APPEAL OF SEYCHELLES
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Reportable
[2022] SCCA 73 (16 December 2022)
SCA 38/2020
(Arising in CS 99/2007)
In the matter between
Elvis Chetty Appellant
(rep. by Mr Basil Hoareau)
And
Mersia Chetty Respondent
(rep. by Mr Clifford Andre)
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Neutral Citation: Chetty v Chetty (SCA 38/2020) [2022] SCCA 73 (Arising in CS 99/2007) (16 December 2022)
Before: Twomey-Woods, Robinson, Tibatemwa-Ekirikubinza JJA
Summary: CONTRACTS AND OBLIGATIONS ― Obligation ― Article 1184 of the Civil Code of Seychelles ― Execution ― Specific performance is a legal remedy ― Party towards whom the undertaking is not fulfilled may elect to demand execution of the contract if that is possible ― Sale and transfer of undivided half share in the property without offering the option to purchase to Appellant ― Right of Appellant to demand execution ― Execution is possible ― The appeal is allowed in its entirety
Heard: 5 December 2022
Delivered: 16 December 2022
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ORDER
1. The appeal is allowed in its entirety
2. We uphold the orders of the learned trial Judge save for the order contained in paragraph [35] of his judgment, which we quash in part
3. The order contained in paragraph [35] of the judgment of the learned trial Judge reads ―
ʺ[35] The 3rd Defendant, the Land Registrar, is hereby ordered to cancel the transfer made by the 2nd Defendant to the 1st Defendant dated 27th July 2006 so that the half share remains in the name of the 2nd Defendant. Also, in conformity with paragraph 33 above, the Land Registrar is ordered to cancel all usufructuary interests in favour of the Plaintiff and the 2nd Defendant as they are both deceased.″
4. We quash in part the order contained in paragraph [35] as follows ―
″so that the half share remains in the name of the 2nd Defendant″.
5. The order contained in paragraph [35] of the judgment now reads ―
″[35] The 3rd Defendant, the Land Registrar, is hereby ordered to cancel the transfer made by the 2nd Defendant to the 1st Defendant dated 27th July 2006. Also, in conformity with paragraph 33 above, the Land Registrar is ordered to cancel all usufructuary interests in favour of the Plaintiff and the 2nd Defendant as they are both deceased.″
6. We make the following order. We order that the Respondent, in her capacity as the executrix of the estate of the late Mrs Lea Raja Chetty, should offer for sale the half share in parcel V5494 to the Appellant in his capacity as the executor of the estate of the late Mr Mariapen Srinivasan Chetty at the price of SCR800,000, so that the executors of the estate may distribute this right under the will.
7. We make no order as to costs in this Court
JUDGMENT
ROBINSON JA
BACKGROUND
The Appellant, by way of two grounds of appeal, is appealing against part of the judgment of a learned trial Judge that the Court could not order the Respondent, in her capacity as the executrix of the estate of the late Mrs Lea Raja Chetty, to offer for sale the half share of the land comprised in title number V5494, at the price of SCR800,000, to the Appellant, in his capacity as the executor of the estate of the late Mr Mariapen Srinivasan Chetty.
The Appellant's amended plaint asked the Supreme Court to make orders inter alia declaring that the Respondent, in her capacity as the executrix of the estate of the late Mrs Lea, should offer the half share in parcel V5494 to the executor of the estate of the late Mr Mariapen at the price of the half share at the time of the purported sale to the Respondent, so that the executors of the estate may distribute this right in accordance with the will.
The late Mr Mariapen, who died on the 12 July 2007, filed a plaint on the 22 March 2007 against the Respondent, his daughter (the then first Defendant) in her personal capacity and the late Mrs Lea, his wife (the then second Defendant). The Appellant, in his capacity as one of the executors of the estate of the late Mr Mariapen, substituted the deceased as the Plaintiff under section 178 of the Seychelles Code of Civil Procedure. The late Mrs Lea, who passed away on the 3 June 2018, was substituted by the executrix of her estate, the Respondent. The third Respondent to the suit, Mrs Wendy Pierre, in her capacity as the Land Registrar, did not put up a defence to the suit.
The amended plaint stated that the late Mr Mariapen transferred and sold the land comprised in title no V5494 to the late Mrs Lea by a document dated 27 January 1961, subject to the following conditions ―
(a) the late Mr Mariapen was to keep the usufructuary interest over the property to himself, and
(b) the late Mrs Lea was to grant the late Mr Mariapen or his heirs the right of first refusal if she were to sell the property.
On the 22 February 1996, the late Mrs Lea, with the consent of the late Mr Mariapen, who waived his right of first refusal, transferred an undivided half share in the property to Mr Levi Krishna Chetty one fifth, Mrs Mersia Vasantha Chetty one fifth and Mr Elvis Raja Chetty one tenth.
The claim arose from the subsequent transfer and sale by the late Mrs Lea of her undivided half share in parcel V5494 to the Respondent for the price of SCR800,000 on the 27 July 2006. The transfer of ownership of parcel V5494 did not grant the late Mr Mariapen the right of first refusal as provided in the document dated 27 January 1961, paragraph [4] hereof refers. The Respondent, in her pleadings, claimed that the late Mr Mariapen consented to the sale and transfer of parcel V5494; and that she is an heir of the late Mr Mariapen. In his judgment, the learned trial Judge comprehensively dealt with the issues as set out in the pleadings in light of the evidence tendered by the parties.
The learned trial Judge found that the late Mrs Lea was obliged to offer the late Mr Mariapen the option to purchase her undivided half share in parcel V5494 before selling the said interest to the Respondent. In this respect, he concluded that the transfer and sale of parcel V5494 was ″null and void ab initio″. Hence, he declared the document of transfer, referred to in paragraph [4] hereof, to be ″null and void ab initio.″ The learned trial Judge also made the following orders ―
″[35] The 3rd Defendant, the Land Registrar, is hereby ordered to cancel the transfer made by the 2nd Defendant to the 1st Defendant dated 27th July 2006. Also in conformity with paragraph 33 above, the Land Registrar is ordered to cancel all usufructuary interests in favour of the Plaintiff and the 2nd Defendant as they are both deceased.″
[36] I award costs to the Plaintiffʺ.
The contentions raised by the two grounds of appeal are that the learned trial Judge erred in holding that specific performance is an equitable remedy and failing to hold that the Court had the power to order the Respondent to offer the undivided half share in parcel V5494 for sale to the Appellant at the price of SCR800,000, in his capacity as the executor of the estate of the late Mr Mariapen, under Article 1184 of the Civil Code of Seychelles.
The skeleton heads of argument offered on behalf of the Respondent submitted that the learned trial Judge did not err in law with respect to his findings which the Appellant was contesting. It is to be noted that the skeleton heads of argument offered on behalf of the Respondent did not substantiate the position put forth by learned Counsel for the Respondent. At the appeal, learned Counsel for the Respondent did not offer any submissions.
At the appeal, the Appellant relied on his skeleton heads of argument.
Against this background, I can examine the findings at the trial before the learned trial Judge on the two interlinked issues.
ANALYSIS OF THE CONTENTIONS RAISED BY GROUNDS ONE AND TWO
For his submissions that the learned trial Judge erred in law, learned Counsel submitted that the term specific performance had been used to indicate that the Court should compel the Respondent, in her capacity as the executrix of the estate of the late Mrs Lea, to execute her obligation. Learned Counsel based this submission on Article 1184 of the Civil Code of Seychelles.
In furtherance of his submission, learned Counsel submitted that it was clear that the late Mrs Lea intended to sell the property at the price of SCR800,000 since she had transferred and sold her undivided half share in the property to the Respondent at that price. In this respect, he submitted that the Court, in ordering that the offer should be made to the estate of the late Mr Mariapen, should order that the offer should be made at the price of SCR800,000 and not be made at the market value of the half share at the time of the purported sale.
First, the question is whether or not specific performance is an equitable remedy.
Article 1184 of the Civil Code of Seychelles, which applies to this appeal, stipulates ―
ʺArticle 1184
A condition subsequent shall always be implied in bilateral contracts in case either of the parties does not perform his undertaking.
It may also be implied in some unilateral contracts, such as a loan or a pledge. In the case, the contract shall not be rescinded by operation of law. The party towards whom the undertaking is not fulfilled may elect either to demand execution of the contract, if that is possible, or to apply for rescission and damages. If a contract is only partially performed, the Court may decide whether the contract shall be rescinded or whether it may be conformed, subject to the payment of damages to the extent of partial failure of performance. The Court shall be entitled to take into account any fraud or negligence of a contracting party.
Rescission must be obtained through proceedings but the Defendant may be granted time according to circumstances.
Rescission shall only be effected by operation of law if the parties have inserted a term in the contract providing for rescission. It shall operated only in favour of the party willing to perform.
2. The Court may, in relation to an action for rescission, make such orders as it thinks fit, both in relation to the rights and duties of the contracting parties and in relation to the rights of their heirs.
3. If, before the performance is due, a party to a contract by an act or omission absolutely refuses to perform such contract or renders the fulfilment thereof impossible, the other party shall be entitled to treat the contract as discharged.ʺ Emphasis supplied
Based on Article 1184 of the Civil Code, we hold that the learned trial Judge erred in concluding that specific performance is an equitable remedy. Learned Counsel for the Appellant is correct to submit that specific performance is one of the legal remedies under contract law under Article 1184 of the Civil Code of Seychelles : see Gummery v Ernestine Civil Appeal SCA5/2014 (delivered on 22 April 29016), referred to us by learned Counsel for the Appellant, in which this Court held that specific performance is a legal remedy under contract law.
Second, the question is whether or not the Appellant may demand execution of the obligation.
Given our consideration on the first issue, we accept the submission of learned Counsel for the Appellant that the Appellant has the right under Article 1184 of the Civil Code of Seychelles to demand execution of the contractual obligation. We also accept his submission that execution of the obligation, in this case, is possible. In Gummery, this Court also held that a court is obliged to award specific performance if the creditor demands it if that is possible.
See, also a decision of the Cour de Cassation, Chambre Civile 3, of 19 February 1970, 68-13.866 [publié au bulletin], which is of persuasive authority, in which the Cour de Cassation held that any creditor is able to require execution of the obligation when such execution is possible based on Article 1184 of the Code Civil ― ″Mais attendu que, tout créancier pouvant exiger l'exécution de l'obligation lorsque cet execution est possible. […]″.
It follows, therefore, that the learned trial Judge erred in failing to hold that the Court had the power to order the Respondent to offer the undivided half share in parcel V5494 for sale to the Appellant in his capacity as the executor of the estate of the late Mr Mariapen, at the price of SCR800,000.
For the reasons stated above, we allow grounds one and two of the grounds of appeal.
DECISION
We allow the appeal in its entirety.
We uphold the orders of the learned trial Judge save for the order contained in paragraph [35] of his judgment, which we quash in part.
The order contained in paragraph [35] of the judgment of the learned trial Judge reads ―
ʺ[35] The 3rd Defendant, the Land Registrar, is hereby ordered to cancel the transfer made by the 2nd Defendant to the 1st Defendant dated 27th July 2006 so that the half share remains in the name of the 2nd Defendant. Also in conformity with paragraph 33 above, the Land Registrar is ordered to cancel all usufructuary interests in favour of the Plaintiff and the 2nd Defendant as they are both deceased.″
We quash in part the order contained in paragraph [35] as follows ―
″so that the half share remains in the name of the 2nd Defendant″.
The order contained in paragraph [35] now reads ―
″[35] The 3rd Defendant, the Land Registrar, is hereby ordered to cancel the transfer made by the 2nd Defendant to the 1st Defendant dated 27th July 2006. Also in conformity with paragraph 33 above, the Land Registrar is ordered to cancel all usufructuary interests in favour of the Plaintiff and the 2nd Defendant as they are both deceased.″
We make the following order. We order that the Respondent, in her capacity as the executrix of the estate of the late Mrs Lea Raja Chetty, should offer for sale the half share in parcel V5494 to the Appellant, in his capacity as the executor of the estate of the late Mr Mariapen Srinivasan Chetty at the price of SCR800,000, so that the executors of the estate may distribute this right under the will.
We make no order as to costs in this Court.
_______________________
F. Robinson, JA
I concur _______________________
Dr. M. Twomey-Woods JA
I concur _______________________ Dr. L. Tibatemwa-Ekirikubinza, JA
Signed, dated and delivered at Ile du Port on 16 December 2022.
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