Rouillon v Valmont (SCA 20/2023) [2024] (Arising in CS 06/2021) (3 May 2024) ((SCA 20/2023) [2024] (Arising in CS 06/2021) (3 May 2024)) [2024] SCCA 11 (3 May 2024)

 

 

1. This is an appeal against a judgment of the Judge of the Supreme Court granting an order, following the breakup of the relationship between the parties, declaring that the respondent (then plaintiff) was the sole owner of a land parcel, which had been bought in the name of both parties, and of the house which had subsequently been constructed on the said land parcel.

 

2. The facts giving rise to the present matter and which are not in dispute may be summed up as follows: the appellant and the respondent lived together as de facto spouses for 23 years. On 25 February 2000, the Government of Seychelles transferred land parcel S5308 to them for the sum of SCR 30,000 which was paid solely by the respondent. A house was subsequently built on the land parcel through a loan which was again solely paid by the respondent.

 

3. Although the parties agree that the appellant contributed for laying down tiles in the house, they disagree regarding the quantum contributed by her in that regard: the appellant testified that she spent SCR 25,000 for those works while the respondent contends that she only spent SCR 10,000.

 

4. The respondent lodged a plaint with summons before the Supreme Court where he alleged, inter alia, that he is entitled to be declared the sole owner of the land parcel and the house (jointly referred to as “the property”) found thereon and that the appellant is only entitled to SCR 10,000 contributed by her for the tiles. He accordingly sought an order that he be declared the sole owner of the property. In the alternative, he sought an order from the court declaring the respective shares of the parties in both the land and the house. His third prayer was that he be granted the option of buying out the appellant’s share in the property.

 

5. For her part, the appellant raised a plea in limine litis in two limbs: under the first limb it was her contention that the court has no jurisdiction to make the order sought in so far as the parties are co-owners. Under the second limb she alleged that the third prayer is unknown to the law. On the merits, she moved that the plaint be dismissed with costs. 

 

6. In her judgment, the learned Judge declared that the respondent was the sole owner of the property, ordered the respondent to pay the sum SCR 25,000 to the appellant within two months of the date of the judgment, further ordered the appellant to vacate the property within six months of the date of the judgment and the Land Registrar to amend the records of the Land Registry with respect to title No. 5308 to reflect that the respondent is the sole owner thereof.

 

7. The appellant is appealing against the judgment on the following grounds and is seeking an order quashing the decision of the Supreme Court and reinstating her as the equal co-owner of parcel S 5308, with costs –

“a)      The learned Judge erred by failing to take into consideration the common intention of the parties when the property was jointly transferred into the names of both the Appellant and the Respondent and the testimony of the Appellant to support that their intention was that the property would be owned by both individuals in equal shares.

b)    The Learned Judge, in making her judgment, erred in her interpretation and application of Article 815 of the Civil Code of Seychelles, in that she incorrectly construed that it was the presumption of co-ownership that was rebuttable rather than the presumption of equality of shares in a co-ownership.

c)      The Learned Judge, in making her judgment, erred in finding that the evidence of the Respondent having contributed overwhelmingly to purchase and develop the property was sufficient, of itself, to rebut the presumption in Article 815 of the Civil Code.”

8. Since the grounds of appeal are intricately linked, I shall deal with all them together.

 

9. It is important to underline that the present case was argued and judgment was delivered under the provisions of the repealed Civil Code (referred to for ease of reference as “the old Civil Code”). The Civil Code of Seychelles Act 2020 (“the current Civil Code) now provides for a different regime under which parties to a qualifying relationship (which is defined as including parties who are married and de facto spouses who meet the requirements laid down under the current Civil Code) shall equally share the property which has been acquired by each of the spouses during the relationship and in the context of the relationship (other than through succession or by way of a gift inter vivos or by will). One should thus be careful when reading this judgment as the pronouncements made herein may not necessarily be valid under the new law.

 

10. The submissions of learned Counsel for the appellant can be summed up as follows: this case concerns a right to property and is not one of sharing matrimonial property following a divorce or separation. Under the old law, if parties were married, the Court was empowered irrespective of the identity of the legal owner between the parties, to apportion or settle property acquired during the marriage (matrimonial property) between the parties pursuant to section 20(1)(g) of the Matrimonial Causes Act. Where the parties were unmarried, the court could order the partner who was the legal owner to pay the other partner a sum corresponding to the contribution of that partner in the property (arising from direct or indirect contributions in the property’s acquisition or development, or the duration of the relationship) but could not settle any share of the property upon the partner who did not hold legal title to property. Both under the old law and subsequent to the amendment of the Civil Code in 2020, if the parties, whether married or cohabitees, were or are jointly legal owners of property, one had and still has to turn to Article 815 of the Civil Code.

 

11. It was further argued on behalf of the appellant that the presumption under Article 815 of the Civil Code is a presumption pertaining to the shares of the parties in the property and not a presumption of ownership. In the absence of evidence sufficient to rebut the presumption of co-ownership, the recourse is to award damages to the party who had made contributions in the property of the other party through an action de in rem verso. It was his contention that in the present case since there was no evidence that the property would be owned in unequal shares, both of the parties owned half of the property and the court was accordingly wrong to have declared that the respondent was the sole owner of the property.

 

12. For her part, learned Counsel for the respondent submitted that the learned Judge was right to have declared that the respondent was the sole owner of the property on the basis that it was undisputed that the respondent was the only one to have financed the purchase of the land and the construction of the house apart from the meagre contribution of the appellant.

 

The Law

13. In order to determine the questions raised in this appeal it is necessary, at this juncture, to firstly set out the principles of Seychellois law with respect to ownership of immovable property in general before turning to the principles which apply in relation to claims concerning property made by a married spouse against another following a divorce or judicial separation and finally considering the principles applicable to claims concerning property made by a de facto spouse against another following a breakup.

Ownership of immovable property in general

14. Article 26 of the Constitution which protects the right to property (so far as relevant for the present purposes) reads as follows-

“26. Right to property

(1)Every person has a right to property and for the purpose of this article this right includes the right to acquire, own, peacefully enjoy and dispose of property either individually or in association with others.

(2)The exercise of the right under clause (1) may be subject to such limitations as may be prescribed by law and necessary in a democratic society –

….

….”

15. Both the current Civil Code and the old Civil Code contain provisions relating to ownership of property under Articles 544 and 545. The Articles read as follows -

“Article 544

Ownership is the widest right to enjoy and dispose freely of things to the exclusion of others, provided that no use is made of them which is contrary to any laws or regulations.

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.”

16. It can be gathered from Article 26 of the Constitution and Articles 544 and 545 of the Civil Code that the owner of an immovable property has an absolute and exclusive right to property, provided that he does not act contrary to the law, and that the right to property can only be interfered with in very limited circumstances as prescribed by law. It is against this background that, following a divorce or judicial separation, the Court must determine how to make an adjustment of immovable property acquired by spouses during the subsistence of the marriage and also, following a break up, determine the property rights of de facto spouses in respect of jointly acquired property during the subsistence of the relationship.

Ownership of immovable property by spouses who are married

17. In the case of married spouses, it is relevant to extensively quote what was stated by the Court in Albert v Albert [2020] SCSC 590 –

“[91]. Although section 20 of the MCA provides for ancillary relief upon divorce, neither the Civil Status Act, nor the MCA provides for laws regulating property regimes for marriages.

  [92]. Most of the provisions in the Code Civil in relation to marriage, divorce and matrimonial property were repealed by the Status of Married Women Ordinance 1948 and the Matrimonial Causes Ordinance of 1949, which was replaced by the Matrimonial Causes Ordinance in 1973 and 1992. Prior to this, the French matrimonial regime that had largely grown out of customary law and the principle of community of property was applicable in Seychelles. This was replaced by the English based separation of property principles. A matrimonial property regime as such is unknown in English common law; there are no proprietary consequences flowing from the marriage and each spouse owns his/her property separately. The court is however given wide statutory powers to make property adjustments as it thinks fit on the divorce of the parties (Section 25, Matrimonial Causes Act 1973 (England)).

[93]. With the repeal of the provisions relating to community of property in the Civil Code and the enactment of the Matrimonial Causes Act of 1992 in Seychelles, the matrimonial property regime in Seychelles has shifted from the French approach to that of the English common law principle of individual ownership. Section 20 thus gives the court seized with a divorce or judicial separation, the power to order a settlement as appears appropriate to remedy an unfairness upon divorce.”

18. Section 20 has been interpreted in a number of cases. It is (so far as relevant) reproduced below -

“20. Financial relief

(1)Subject to section 24, on the granting of a conditional order of divorce or nullity or an order of separation, or at any time thereafter, the court may, after making such inquiries as the court thinks fit and having regard to all the circumstances of the case, including the ability and financial means of the parties to the marriage-

…

g) make such order, as the court thinks fit, in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child.

19. In Esparon v Esaparon (2012) SLR 39, the Court concluded that factors which may be considered when making an adjustment of property under section 20 include “who paid the purchase price and the loans for the family home as well as the:

a) Standard of living before the breakdown of the marriage;

 b) Age of the Parties;

c) Duration of the Marriage;

d) Physical and mental disability of either party;

e) Contributions made by each party to the welfare of the family, including housework and care roles; and

f) Any benefits which a party loses as a result of the divorce.”

 

20. The Court further laid down in Esparon that “there is no set mathematical formula by which such cases are decided and each case is considered on its own merits. The cardinal principle is that there must be a level of equity in that the respective party is not deprived of their fair share of contributions in the matrimonial asset despite such asset being registered in the sole name of one party... In determining that equitable balance the Court normally starts by looking at the legal ownership and then adjusts the shares of each party based on the level of contributions made by each party, be such contributions in cash, in kind or otherwise.”
21. Section 20 of the Matrimonial Causes Act must also be read along with Article 815 of the Civil Code which relates to co-ownership. In Figaro v Figaro (1982) SLR 200 Sauzier J stated that "[w]hen the husband and the wife are co-owners of the matrimonial home their proprietary rights are governed by the provisions of Article 815, - et seq of the Civil Code of Seychelles. In the absence of evidence to the contrary, they are presumed to be entitled to equal shares. "
22. In Chetty v Emile [2008-2009] SeAR 65 the Seychelles Court of Appeal explained that: "[c]ontributions towards matrimonial property cannot be measured in pure monetary terms, in hard cash… the love and sweat and the long vigil to bring up a family by the spouses all have a role to play in the accumulation of matrimonial property. The cooking, the sweeping, the cleaning, the sewing, the laundering, tendering to the children, and the many other nameless chores in a home are not things for which a value can be put on but certainly contribute towards the building up of the matrimonial property. "
23. As rightly stated by learned Counsel for the appellant, in the case of matrimonial property, the Courts in Seychelles have interpreted section 20 of the Matrimonial Causes Act as conferring a wide discretion in striking a balance to ensure that no party is placed at a disadvantage by the divorce. Relying on the above, the Court in Seychelles have even gone to the extent of declaring property purchased in the name one of the spouses as belonging to the other.

Ownership of property by spouses in a de facto relationship 

24. In the case of Reine Hallock v Philippe D'Offay (1985) SCA 1) it was made clear that “property adjustment orders of the nature granted to married parties on dissolution of marriage” are not made in the case of unmarried couples or de facto spouses and that the rights of a concubine to recover contributions made by him or her during the cohabitation is limited to the  amount of expenditure incurred by him or her.

 

25.  Further, it can be gleaned from the extract of the case of Michel Larame v Neva Payet (1987) SCA 4 (quoted in the case of Dodin v Arrisol (2003) SLR 197)) that the Court of Appeal confirmed that “…no enforceable legal rights are created or arise from the mere existence of a state of concubinage, but the cause of action "de in rem verso" can operate to assist a concubine who has suffered actual and ascertainable loss and the other party has correspondingly enriched himself by allowing the party who has suffered loss to recover from the other party who has benefited.”

 

26. The Court in addition made it clear that in such an action, the present value of the property is irrelevant.  A cohabitee can only recover what he or she had contributed.  It is immaterial that at the time of the action the value of the benefit enjoyed by "L'enrichi” is much more.

 

27. In Hallock v D’offay (1983-1987) 3 SCAR (Vol 1) 295 it was further stated that where a concubine renders services additional to those normally rendered by a concubine, such as assisting in the man's business, or contributing her own funds to purchase property or to construct a house, the position would be different and she would be entitled to recover the amount contributed but no property adjustment orders of the nature granted to married parties on dissolution of marriage would be made.

 

28. In the case of Dodin (supra), the plaintiff averred that a parcel of land was purchased by her, but registered in the sole name of the defendant for convenience. She also averred that the house thereon was renovated with joint contributions. The Court held that the plaintiff should receive from the defendant a sum which was the actual and ascertainable loss proved in the case.  As no property adjustment is done in cases where the parties had lived in concubinage, the Court ruled that the parcel of land which was registered in the name of the defendant and the house thereon shall belong to the defendant.

 

29. In Monthy v Esparon (2012) SLR 104, the parties jointly purchased a house and started cohabiting. Their versions differed on the payments of the mortgage in relation to the house. It was the appellant’s case that since the mortgage of SCR 250,000 was taken out he had made all the payments to it. It was the respondent’s case that she has paid SCR 114,509.98 and that the appellant has only paid R 56,446.60 towards the mortgage.

 

30. The Supreme Court made an order declaring that the respondent is entitled to the sole ownership of the property, whereas the appellant is entitled to compensation in the sum of SCR 70,000 payable by the respondent in settlement of the appellant’s share in the property. It further ordered the respondent to pay the sum of SCR 70,000
    to the appellant within four months from the date of the judgment while the appellant was ordered to transfer all his rights and undivided interest in Title to the land including all or any super structure thereon to the respondent and the Land Registrar was ordered to make the necessary entries in her books to register the parcel in the respondent’s name.

 

31. On appeal, the Court of Appeal laid down as follows –

“In cases of co-ownership there are three options available under the Civil Code to the joint owner who does not wish to remain in indivision: sale by licitation, partition or action de in rem verso (based on unjust enrichment). Vide Edmond v Bristol (1982) SLR 353.”

32. The Court of Appeal interestingly stated that these remedies could have been availed of by the respondent and quashed the decision of Supreme Court in its entirety including the award of SCR 70,000 as the monetary value of the appellant’s share in the property co-owned by the parties. It further ordered the Land Registrar to restore ownership of Title to both parties.

 

33. In Radegonde v Hoareau (SCA 30/2018) [2020] SCA, the Court of Appeal dismissed the appeal brought by the appellant on the ground that the trial Judge had wrongly interpreted Article 815 of the Civil Code and was wrong in holding that, under Article 815, he was allowed to declare the respondent the sole owner of a land parcel which had been bought in the parties’ joint names.

 

34. In Radegonde, the evidence showed that the respondent had solely paid off the loan jointly taken by the parties to buy the property. The Court of Appeal stated –

“[15]. The principles of Seychellois law with respect to the breakup of a de facto relationship and a subsequent claim in a share of the property by one partner against another who is the sole legal owner of the property is correctly stated in the cases of Hallock v d’Offay (1983-1987) 3 SCAR (Vol 1) 295 and Esparon v Monthy (1986) supra).

[16]. In the present case, the situation is different as the parties in the relationship  were in joint legal ownership of the property. Necessarily, the presumption under Article 815 and its rebuttal came into play. Having considered the evidence, the trial judge was entitled to come to the conclusion he did. He found that the presumption of equal shares had been rebutted to such an extent that the Appellant held no share at all in the property’s legal ownership…”.

 

35. It is difficult to reconcile the judgment of the Court in Radegonde with the earlier line of authorities where the court refused to recognise the property rights of de facto spouses.

 

36. The Courts in Seychelles have consistently maintained that no legal rights follow from a de facto relationship. The parties in such a relationship remain the sole owner of the property acquired in their respective names and where a de facto spouse contributes in the property belonging to the other, for example, where a de facto spouse constructs or contributes in the construction of a house on land, the legal title of which vests in the other de facto spouse, he is entitled to claim the monetary contribution therein when the relationship ends. However, the question with which we are concerned is: what is the legal position when de facto spouses buy property jointly?

 

37. It is amply clear that the reason why the Courts refuse to give any recognition to the rights of those living in a de facto relationship is because de facto spouses are in a relationship which has no legal status under the law unlike a marriage As explained above, in the case of property which is jointly owned by married spouses, section 20 of the Matrimonial Causes Act provides the legal basis in the case of a divorce or judicial separation for the Court to order that a married spouse who is the registered owner of property either solely or jointly with the other spouse is no longer to be considered as the owner. However, in the case of de facto spouses, there is no such corresponding provision which would allow the Court to make any property adjustment where there is a breakup.

 

38. It is relevant to reiterate what was stated in Michel Larame v Neva Payet (1987) SCA 4 –

“no enforceable legal rights are created or arise from the mere existence of a state of concubinage but the cause of action “de in rem verso” can operate to assist a concubine who has suffered actual detriment and ascertainable loss and the other party has correspondingly enriched himself by allowing the party who has suffered loss to recover from the other party who has benefited. Concubinage itself does not confer rights or obligations, but the action "de in rem verso" will operate to compensate a concubine who has suffered detriment without lawful cause to the advantage of the other party to the concubinage.” [emphasis added]

39.  In the present case, it is undisputed that the parties acquired the land jointly and that it was registered in both their names. A perusal of the title to the property, Title No. S 5308 (Exhibit P1), shows that the Republic of Seychelles transferred the land mentioned in the said title to both parties without specifying what was the share of each.  There was clearly a legal relationship of co-ownership created between the parties when the property was acquired jointly by them. The Court cannot disregard this legal relationship.

 

40. It is obvious that the respondent no longer wished to remain in joint ownership or state of “indivision”. In line with what was stated by this Court in Monthy (supra), three options were available to him under the Civil Code: “sale by licitation, partition or action “de in rem verso”. He could clearly have availed himself of the above options but chose to enter an action by way of plaint with summons to seek the orders prayed for. 

 

41. Since it is undisputed that the property was owned jointly by the parties, one has to turn to Article 815 of the old Civil Code which concerns joint ownership of property. It reads as follows -

“Co-ownership arises when property is held by two or more persons jointly. In the absence of any evidence to the contrary it shall be presumed that co-owners are entitled to equal shares.” [emphasis added]

42. It is patent from a reading of Article 815 that the presumption created thereunder concerns only  the shares of the parties in the property. Where the acquisition is through a title it is the title which establishes what is the share of each of the co-owners. In the silence of the title, the presumption under Article 815 comes into play. In the present case, a perusal of title No. S 5308 shows that there was no indication as regards the share which the parties owned in the property. In the circumstances, there was a presumption that they each of owned half of the shares in the property. Obviously, this presumption is rebuttable and evidence may be adduced to establish that their share in the property is different from half each. However, what is important to retain is that the parties were by law both owners of the property and each of them must accordingly have had a share in the property.

 

43. However, it is important that a distinction be made between the share owned by a de facto spouse as co-owner of property and the financial contribution which he makes in the acquisition of the property; the share owned by a co-owner in a land parcel and the financial contribution which he makes in its acquisition or the construction thereon cannot be conflated. The fallacy of the argument that the co-owner of a property must have contributed in the payment of the purchase price for him to be considered as co-owner can be showcased by referring to a few examples.

 

44. A father may obviously pay the purchase price of an immovable property while the co-owners as per the title are his children. Two friends can acquire a plot of land in their joint names and agree that only one will pay the purchase price, on the understanding that the other will refund his share in the purchase price at a later date. Spouses may agree that only one of them will pay the purchase price of a property but that they will both be co-owners of the property. In the above examples, the fact that the purchase price is paid by only one of the co-owners or by a person who is not the owner does not detract from the fact that legally the owner or owners are those who are identified as such in the title notwithstanding that they have not paid the purchase price.

 

45. It is of interest to refer to the following extract of JurisClasseur Notarial Formulaire > V° Séparation de biens, Fasc. 32 : SÉPARATION DE BIENS. – Liquidation des intérêts patrimoniaux des époux. – Achat financé par le conjoint. – Indivisions entre époux–

“I. Achat financé par le conjoint

 §2Situation fréquente
 L'abondante jurisprudence publiée en la matière atteste de la fréquence des cas où, en régime de séparation de biens, un époux acquiert un bien dont le prix est payé par l'autre. En pratique, l'opération peut se présenter de deux façons :

• …
• les deux époux acquièrent un bien en indivision alors que le prix est payé en totalité par l'un d'eux ( Cass. 1re civ., 9 nov. 1993 : JurisData n° 1993-002659 ; Bull. civ. 1993, I, n° 317 ; JCP G 1994, I, 3785, note M. Storck ; JCP N 1994, II, p. 357 , note C. Philippe ; Defrénois 1994, art. 35761, p. 443 , obs. G. Champenois ; RTD civ. 1994, p. 662 , n° 8, obs. J. Patarin ; RTD civ. 1995, p. 173 , n° 3, obs. B. Vareille, citée aussi n° 15 et 50).
• ceux qui achètent un bien en indivision en acquièrent la propriété, quelles que soient les modalités du financement. Ayant acheté le bien en indivision chacun pour moitié, les coïndivisaires en ont acquis la propriété dans la même proportion (Cass. 1re civ., 10 janv. 2018, n° 16-25.190, F-P+B : JurisData n° 2018-000066 ; JCP N 2018, n° 3, act. 149).

Se pose alors, a posteriori, le problème de la preuve de la remise d'un fonds (A), de la qualification de   l'opération (B) et de ses incidences liquidatives (C).

…

…

§ 87 Partage des biens indivis

 Lorsque des époux mariés sous le régime de la séparation de biens acquièrent ensemble un bien, ce bien est    alors indivis et soumis au régime de l'indivision (C. civ., art. 815 et s.). Il en résulte que si l'un des époux veut vendre le bien indivis (ou passer tout autre acte pour lequel le concours du conjoint est nécessaire), il doit obtenir l'accord de l'autre. En cas de refus de celui-ci, l'époux peut demander l'autorisation en justice de vendre le bien … ”

 

46. Although the provisions of the Civil Code of Seychelles are not the same as those of the French Civil Code, I am of the considered view that the above extract which concerns property acquired in co-ownership by spouses married under the “regime de séparation” in France, may be relied upon in Seychelles when determining what are the rights of de facto spouses when it comes to property which they acquire in co-ownership. It can be gathered from the above extract that when considering the question of ownership of property which is jointly owned, it is immaterial that one of the de facto spouses did not contribute in the payment of the purchase price of the property.

 

47. In the present case, as stated earlier, the Republic of Seychelles transferred the ownership of the property to both the parties as per the title. Pursuant to section 20 of the Registration Act, the registration of a person as the proprietor of land with an absolute title shall vest in him the absolute ownership of that land together with all rights, privileges and appurtenances belonging or appurtenant thereto. In the present case, both of the parties were through registration as proprietors of the land vested absolute ownership of the land purchased. In the circumstances, unless the Title itself is shown to be vitiated or the contract of sale is itself invalid, it cannot be argued that the appellant who is the registered owner of property should cease to be considered an owner simply because she did not pay a share of the purchase price.

 

48. In the case at hand, no evidence was adduced to show that there was any intention at the time of purchase that the parties would be holding the property other than in a 50/50 share. In the circumstances, the appellant must be considered as being the owner of half the land and since the house was built on the land which belonged to both parties, pursuant to the theory of accession which is provided for under article 552 of the old Civil Code, the parties are both jointly owners of the house in equal proportion. 

 

49. Having said this, it does not mean that the respondent has no legal remedy. As explained in Monthy (supra) he has three options: sale by licitation, partition or an action de in rem verso (based on unjust enrichment).

 

50. Taking the above into consideration, I allow the appeal and quash the judgment of the learned Judge. With costs.

 

_____________________      

K. Gunesh-Balaghee JA

 

 

I concur:                                                     ____________________       

                                                                   F. Robinson JA

 

Signed, dated and delivered at Ile du Port on 3 May 2024

 

 

 

 

ANDRE JA

 

IN ADDITION TO THE JUDGMENT OF GUNESH-BALAGHEE JA

 

[1]      I have read the Judgement of my learned sister Gunesh-Balaghee JA, and I concur with the Orders to allow the appeal and quash the judgment of the learned Judge with costs. In this regard I also endorse the discussion on the grounds of appeal, decision and orders as raised and considered at paragraphs [13] to [49] and [50] thereof.

               

[2]      However, I feel inclined to address the issue of points in limine raised by a party, and subsequently rejected by the trial Court, but then for the trial Court to proceed and explore its merits. Section 90 of the Code of Civil Procedure, speaks of points of law raised by parties thus:

 

                        “Any party shall be entitled to raise by his pleadings any point of law; and any point so raised shall be disposed of at the trial, provided that by consent of the parties, or by order of the court, on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.” [Emphasis added]

     [3]      Consequently, a party should file the application under the above quoted section 90 for the Court to hear the point in limine before the trial. Indeed, the whole point of pleadings is, in accordance with section 71 of the Code of Civil Procedure; to promote at the earliest stage of the proceedings a clear and concise exposition of the facts of the Plaint so that the defendant is aware of the case it has to meet thus:

               “Particulars to be contained in plaint

               The plaint must contain the following particulars: (a)…..

               d) a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action;” [Emphasis added]

                             [4]      In casu Counsel for the appellant raised the plea of prescription for the first time during submissions. Counsel for the respondent objected to the raising of the issue of prescription at the submission stage citing Article 2224 of the Civil Code which states that “A right of prescription may be pleaded at all stages of legal proceedings, even on appeal, unless the party who has not pleaded it can be presumed to have waived it.” [Emphasis added]

                             [5]      On what constitutes “waiver” of the right of prescription the Court in Public Utilities Corporation v Elisa (2011) SLR 100 stated that an objection based on a limitation period will be waived if it is raised too late in the court process. A waiver of a right usually means that the party loses the right to assert the right of prescription. With that, the consequences for having the claim dismissed which may have been available are lost.

                             [6]      The Appellant had averred that the Respondent could not “at this juncture, at the close of the proceedings, and their case, plead prescription.” The trial Judge agreed with the Counsel for the Plaintiff stating that “it was a bit late in the day to raise the issue of prescription at the stage of submissions.” Alluding to the importance of timeous pleading which sets out the essential facts which support a cause of action as well as the relief that the party is requesting, the trial Judge noted that Article 2224 makes reference to prescription being “pleaded” and not merely “raised.”

                             [7]      Thus having not exercised the right to file the legal objection that the matter is prescribed at the threshold, the respondent was estopped from challenging the appellant on the timeframe for lodging the action, and therefore estopped from relying on the prescription provisions to challenge the appellant [North Island Company v North Island Dev (1992) SLR 164].

                             [8]      In an earlier decided case of PTD Limited v Keven Zialor Civil Appeal SCA 32/2017 (17 December 2019), Counsel for the appellant argued inter alia that the learned Judge erred in law in granting the respondent a ″droit de superficie″ by way of acquisitive prescription of ten years. In this respect, he contended that there were no pleadings to the effect that the appellant had acquired a ″droit de superficie″ by way of acquisitive prescription of ten years, for value and in good faith. Counsel for the appellant contended that, under the Civil Code of Seychelles, prescription must be pleaded for a court to rely on it because ″la prescription n’opère pas de plein droit.″

                             [9]      That being said, the Court found that the appellant’s plea raising prescription was defective in so far as it was submitted late. This should have effectively closed further interrogations on the question of prescription with that declaration by the trial Court. This finds support again from section 91 of the Code of Civil Procedure which provides as follows:

            “If in the opinion of the court the decision of such point of law substantially disposes of the whole cause of action, ground of defence, set off or counterclaim, the court may thereupon dismiss the action, or make such other order therein as may be just.” [Emphasis added]

                     [10]    Other cases which serve as authority for the above principle include: The Estate of the late Andre Delhomme and Others v The Attorney- General (SCA 15 of 2020) [2023] SCCA 16 (26 April 2023); Tropicolor Limited v Government of Seychelles & Ano. (CS20/2022) [2023].

                             [11]    Despite the Court’s finding in the above question, the trial Judge went on to address the question of whether or not the matter had prescribed, concluding that the Counsel for the defendant’s argument that the action, being a personal action was prescribed was misconceived. After looking at relevant provisions in the Civil Code and case law, the Court concluded in paragraph [68] that:

            “The present claim by the plaintiff is an action ‘en revendication’ as it is the means by which plaintiff in judicially asserting his right to ownership of the half share of title S5308 which is registered in the name of the defendant. It is also clear from the above that an action ‘en revendication’ is ‘imprescriptible’ and is therefore not barred by prescription.”

                             [12]    Was the trial Court at liberty to delve into the query of whether the matter had prescribed when it had clearly ruled that the period for filing such plea had closed? This Court has addressed this question in the past, namely in the case of Chetty & Anor v Chetty (77 of 2022) [2022] SCCA 82 (16 December 2022) where the plea in limine litis was upheld and the plaint was dismissed. Commenting on the decision of the trial court to still consider the merits of the case despite upholding the plea in limine litis, the Curt held: “It is clear to me that following the upholding of the plea in limine litis, any discussion on the merits of the case was purely academic.” While Judges have the liberty to express views and opinions because such is in itself obiter and useful in the broader jurisprudential development of our legal system, but in doing so they should guard against making findings that might exhaust issues at hand and lead to grounds and prayers.

 

 

 

________________________

ANDRE JA

 

 

Signed, dated, and delivered at Ile du Port on 3 May 2024