Payet v Green & Anor ((Civil Appeal SCA 01/2024) [2024] (19 August 2024) (Arising in MC 40/2021) SCSC 777)) [2024] SCCA 23 (19 August 2024)

IN THE COURT OF APPEAL OF SEYCHELLES

______________________________________________________________________________

Reportable

[2024] (19 August 2024)

Civil Appeal SCA 01/2024

(Arising in MC 40/2021) SCSC 777

 

In the matter Between

 

Anthony Valer Payet Appellant

(rep. by Ms. Karine Dick)

 

And

 

Marise Green 1^st Respondent

Allen Hoareau 2^nd Respondent

(rep. by Mr. Kieran Shah)

 

Neutral Citation: Payet v Green & Anor (Civil Appeal SCA 01/2024) [2024] (19 August 2024) (Arising in MC 40/2021) SCSC 777)

Before: F. Robinson, Dr. L. Tibatemwa-Ekirikubinza, S. Andre JJA

Summary: Appeal against a decision of the Supreme Court – application for division in kind – Sections 107 (2) & 111(2), 112 & 113 of the Immoveable Property (Judicial Sales) Act (Cap 94) – Article 26 (2) of the Constitution.

Heard: 6 August 2024

Delivered: 19 August 2024

______________________________________________________________________________

ORDERS

The Court makes the following Orders:

1. The appeal partially succeeds in so far as the decision of the learned trial Judge is set aside as it relied on an incomplete appraisal report.

2. It is hereby ordered in terms of Rule 31 (5) of the Court of Appeal Rules that the matter be remitted back to the Supreme Court before another learned Judge to order an appraisal of parcel T573 that is in accordance with section 112 of the IPJS Act, and propose a subdivision of the same taking into account all the heirs, and subsequently determine whether the property can be conveniently sub-divided.

3. Both parties shall bear their own costs.

 

 

JUDGMENT

ANDRE, JA

INTRODUCTION

[1] This is an appeal arising from a decision of the Supreme Court in MC 40 of 2021 by virtue of the notice of appeal filed on the 4 January 2024 by Antony Valer Payet (Appellant) against Marise Green and Allen Hoareau in their capacity as Executors (Respondent), being dissatisfied with the decision of Judge L.Pillay given at the Supreme Court on the 22 November 2023 wherein the Learned Judge refused an application for the division-in-kind of parcel T 573.

[2] The Appellant had petitioned the Supreme Court for a division in kind for the property T573 situated at Capucins, Takamaka. The court a quo dismissed the petition because in the opinion of the learned trial judge, the property could not be conveniently divided to extract the Appellant’s share. The learned trial judge explained this position by stating that the division as proposed by the land surveyor will be impractical, would result in inequities in area, development costs and value, among other things.¹

[3] Dissatisfied with this, the Appellant is before this Court setting out four grounds of appeal which read as follows:

 

1. Having correctly set out the law governing division in kind under section 107 (2) & 111 (2) of the Immovable Property (Judicial Sales) Act, the learned trial judge misapplied the law to the facts of the Appellant’s case.

 

2. The learned trial Judge erred in her definition of ‘conveniently’ as having greater reach that physical convenience and requiring mutual convenience between the Appellant and other co-owners.

 

3. The learned trial Judge erred in failing to adopt the report pf the land surveyor which clearly stated that the share of the Appellant can be conveniently extracted from the parcel.

 

4. The learned trial Judge erred in dismissing the petition of the Appellant without calling for and considering other options for extracting his share from the parcel.

 

[4] The appellant as per cited notice of appeal (supra) further seeks the relief set out in paragraph 5 thereof namely, setting aside the judgment of the Supreme Court and remitting the case to the Supreme Court for the process of the extraction of the Appellant’s share from parcel T573 to continue.

SUBMISSIONS OF THE PARTIES ON GROUND 1

[5] In support of ground 1, the Appellant submits that he satisfies the legal requirements of being granted a division in kind in terms of section 111 of the Immovable Property (Judicial Sales) Act (IPJS) Act and refers this Court to his submissions in the Court a quo from pages 38 to 44. Firstly, it was submitted in the court a quo that the Appellant’s share in parcel T573 are ascertainable to be 5.9% of the property and that he owns the most shares individually and these are not contested. Secondly, it was submitted that the property can be conveniently divided as the report of the surveyor so provides. Thirdly, it was submitted that since the petitioner is seeking only the extraction of his shares, he will be bearing the costs for this.

[6] The Respondents for their part submit that without the consent all the heirs, the parcel cannot be conveniently divided. It was submitted that the essence of division in kind proceedings is to partition the entire property among all co-owners and not just for the Appellant which will necessitate the allocating of all lots to all co-owners in terms of section 116 of the IPJS Act.

SUBMISSION OF THE PARTIES ON GROUND 2

[7] In respect of ground 2, the Appellant has referred this Court to the case of Benjamin Joseph & Ors v Jules Peat & Ors 1983 SLR 43 which was quoted by the learned trial Judge in the impugned judgment. It is submitted that Seaton CJ (as he was then) noted that commodement in Article 827 of the Civil Code must not be understood to mean merely physical convenience. It is submitted before this Court that the trial Judge omitted the subsequent part of the judgment which stated that ‘It is apparent that on the one hand the judge who has this matter to consider ought to endeavour to fulfil that requirement of the law, which says that the heir shall have his share in kind and on the other he must also see that it is the most advantageous course for the general body of the heirs and the interest which they all have in the succession of the deceased shall not be depreciated in value by the division.’

[8] It is further submitted by the Appellant that in the same case, Seaton CJ noted the marked difference in the geographical features of the northern and southern parts of the properties. The Appellant places emphasis on how this is similar to the present case where the parcel of land consists of the coastline, flat land and hill. Another aspect which the Appellant places emphasis on is that the court in Benjamin Joseph & Ors v Jules Peat & Ors (supra) held that the property could be conveniently divided in kind and it was the most advantageous course for the general body of co-owners to do so in accordance with the plan attached to the appraiser’s report. The Appellant submits that as similar approach ought to have been adopted by the learned trial Judge as the surveyor has done a diligent job to show how parcel T573 can be conveniently divided.

[9] Still substantiating ground 2, it is submitted that the trial judge’s construction of the word ‘convenient’ was too restrictive in the context of division in kind of co-owned property and that a synonym of the word in the context could be ‘possibly’. The Appellant submits that the trial Judge sought general convenience whereas the law seeks that it is possible to subdivide the land such that the parcel extracted is useful and the remainder is not affected by the extraction more adversely than the extraction itself would render it.

[10] The Respondent on the other hand submit that the learned Judge was correct in her determination that the parcel could not be conveniently divided. In support of this, the Respondents rely on three main points the impugned judgment made. Firstly, the appraiser only interacted with the Appellant and sought to accommodate the Appellant’s wishes and did not discuss any proposal with the Respondents. Secondly, the appraiser did not propose a division in kind comprising of 8 lots for the 8 first line heirs or for all the heirs as required by sections 112 and 113 of the IPJS Act. Thirdly, no solution was presented for those heirs with miniscule shares unable to get a portion of land that would be of use to them, and therefore a private sale or licitation would be beneficial to them.

[11] The Respondent also submits that the learned Judge’s reasons were pertinent in paragraphs [37], [40]; [41]; [46]; [47] and [48] of the impugned judgment. The Respondents maintain that if the Appellant is allocated the low residential zone, his ability to develop is better than the rest. It is submitted that the proposed extraction for the Appellant is closest to the access road and other co-owners would have to carve out an access road to the furthest point of the property. It is further submitted that the appraiser did not show how and where the access road serving the rest of the property would pass and if left for future decision, the Appellant would have an unfair advantage over other co-owners. It is submitted that getting utilities such as water and electricity would be easier for the Appellant and more expensive for the rest of the co-owners all being proportionate to the distance and nature of the terrain. It is further submitted that the Appellant has no right to a specific area or ruins in law. Moreover, it is submitted that the division into two plots will be impractical resulting in inequities in area and development costs.

SUBMISSIONS OF THE PARTIES ON GROUND 3

[12] In respect of ground 3, the Appellant submits that the authority in Laporte v Sullivan & Ors (1978-82) SCAR 191 provides that no one can be compelled to own anything undividedly and a co-owner can petition for a division in kind. It is submitted that the learned trial Judge failed to take into consideration the explanation given as to whether the division in kind should be allowed by dividing parcel T573 into two plots. The Appellant has referred this court to his submissions in the court a quo on pages 41 to 43 of the Court of Appeal brief. Some of these submissions I have already recounted earlier for ground 1. Perhaps most striking to take note of is submissions of the Appellant in the court a quo² that the division in kind is most the most advantageous course for the heirs. It was submitted in particular that for years, the co-owners have not benefitted in any way from the property and the division in kind as proposed into two plots would make it easier to sell the remaining plot so the heirs can financially benefit.

[13] The Respondents submit that although physically and theoretically the parcel of land can be divided into 8 lots, the absence of a proposed division and provision made for access road, electricity supply to the entire property, the appraiser’s plan cannot be viewed in isolation as it only took into account the Appellant’s share. Therefore the learned Judge was correct in not accepting the appraiser’s proposal.

SUBMISSIONS OF THE PARTIES ON GROUND 4

[14] In respect of ground 4, the Appellant refers this Court to Article 26 (1) of the Constitution of Seychelles which provides for the right to acquire property, own, peacefully enjoy and dispose of the same either individually or in association with others. It is submitted that the Appellant’s personal circumstances do not fall under those derogations provided for by Article 26 (2) of the Constitution. It is submitted that his right to enjoy his property has been denied for 18 years ever since the executors were appointed. It is submitted that on the basis that is it unclear when the property can be sold given government policy position on foreigners buying property in Seychelles, the two options by the surveyor in Exhibits P1 (A) and (B) ought to have been considered by the trial court and to have failed to consider fully these options was an error on part of the trial judge.

[15] The Respondents argue that the learned Judge was correct to have decided on the evidence before her – and it was for the Appellant to raise an alternative. It is also submitted that the extraction of the Appellant’s share is not necessarily a division in kind in law, and that instead a division of the entire property is required in order to have a fair and equitable partition.

ANALYSIS BY THE COURT

[16] On the consideration of the grounds of appeal and the legal arguments advanced by the submissions of the parties, I consider the present appeal to be hinged upon whether the learned trial judge was correct in her finding that the property could not be conveniently divided as proposed by the appraiser.

[17] The law on sub-division has been correctly cited by counsel for the parties to these proceedings – section 107 (2) of the IPJS Act provides that any co-owner can apply to the court for subdivision and where the same is not possible, then the property can be sold by licitation. Such an application may be refused by virtue of those three things listed in section 111 of the IPJS Act, which are rights of the parties are not liquidated, the property cannot be conveniently divided in kind or the costs of the proceedings for a division in kind would be excessive, regard being had to the value of the property. Any of these reasons can cause a suit for division in kind to fail. The learned Judge’s reasoning was that it appeared to her that the property cannot be conveniently divided.

[18] On a perusal of the evidence, I note a 26 October 2021 order made by the learned Judge appointing Mr Allen Savy as the appraiser in terms of section 112 of the IPJS Act. On a closer reading of this order, I find that it was restrictively couched because it ordered that the appraiser submit a report proposing a partition of the property allowing for the undivided share of the Appellant (petitioner in the court a quo) to be extracted. Certainly, this approach could not have shown how convenient it was to divide the property to all the co-owners. The appraiser is also guided by what the Court orders – so he was correct in extracting the share of the Appellant as this is what the Court ordered, but this created an inadequate or limited appraisal report.

[19] In my view, the learned trial Judge could not have made a finding on convenience of the subdivision relying on a limited appraisal report which was geared towards the extraction of the share of one co-owner. I would agree with the Respondents when they submit that the extraction of the Appellant’s share is not necessarily a division in kind in law. An adequate appraisal for a court would have, as submitted by the Respondent, taken cognisance of all of the shares of co-owners and drawing of such portions on the property to show fully or propose how the property can be subdivided among the heirs.

[20] This brings me to the question of heirs, which during the hearing held on 6 August 2024, there seems to be no dispute that there are 8 first line heirs. This too was a live issue in the court a quo. Therefore, the appraisal showing or proposing a subdivision ought to have had the objective of creating 8 plots for the 8 heirs, and not extract a plot for one heir.

[21] The Appellant raises interesting points in respect of the right to property in Article 26 of the Constitution and further argues that his right to enjoy the property has been denied for 18 years since the executors have been appointed. Certainly, 18 years in co-ownership may have the effect of denying one’s right to enjoy their property. Which is why the salient point to be made in the present case is that a holistic appraisal is a necessity to determine the extent of the possibility to subdivide the property among the heirs. In so doing, it takes into account the share of all the 8 first line heirs, who too enjoy the right to property under Article 26 of the Constitution. After all, the Respondents in their submissions have conceded that partition of the property into 8 lots for the 8 first line heirs is in line with the law as it takes into account the shares of all heirs.

[22] Although the Respondents through their submission have stated that the property must be sold by licitation or private sale, I would disagree with this as this would be akin to putting the cart before the horse. Naturally, this Court is placing emphasis on subdivision because as the law provides in section 107 (2) of the IPJS Act, a subdivision is the first attempt and if this fails, then a sale by licitation may be considered next.

CONCLUSION AND ORDERS OF THE COURT

[23] Both parties have prayed that the matter be remitted to the Supreme Court although for varying objectives. The Appellant for his part prays that the matter be remitted for the process of extraction of the Appellant’s share from T573. The Respondents on the other hand pray - in the alternative to dismissing the appeal - that the matter be remitted for a proper appraisal for a division in kind of the entire property.

[24] Therefore the appeal partially succeeds in so far as the decision of the learned trial Judge is set aside as it relied on an incomplete appraisal report.

[25] It is hereby ordered in terms of Rule 31 (5) of the Court of Appeal Rules that the matter be remitted back to the Supreme Court before another learned Judge to order an appraisal of parcel T573 that is in accordance with section 112 of the IPJS Act, and propose a subdivision of the same taking into account all the heirs, and subsequently determine whether the property can be conveniently sub-divided.

 

[26] Both parties shall bear their own costs

 

Signed, dated, and delivered at Ile du Port on 19 August 2024.

 

 

 

……………………………..

S. Andre, JA

 

 

I concur …………………………….

Dr. L Tibatemwa-Ekirikubinza, JA

 

 

 

 

 

ROBINSON JA

THE BACKGROUND

1. I had the opportunity to read in draft the judgment of Andre JA with which Tibatemwa-Ekirukubinza JA agreed.
2. I conclude that the appeal should be dismissed. My reasoning is as follows.
3. This is an appeal against a judgment of the learned Judge of the Supreme Court delivered on 22 November 2023, dismissing the Appellant's petition asking that parcel T573 of the extent of 1,011,500 square meters situated at Capucins, Takamaka, Mahe (hereinafter referred to as the "Property") be divided in kind.
4. The Appellant averred in the petition that he is a co-owner of an undivided 17/288 (5.903% or 59,706.5 square meters/14.7 acres) in the Property. He also averred that he no longer wishes to remain in a state of indivision with the Respondents and is desirous of excising his share from the Property. The Appellant prayed that the trial Court ordered an appraisement of the Property and the division in kind of the same in order that his share could be extracted from it.
5. In answer to the petition asking that the Property be divided in kind, the Respondents prayed that the petition be dismissed with costs for the following reasons. The Respondents claimed that the Property should be sold as a whole, as approved by the order of the Supreme Court dated 29 March 2019. The Respondents also alleged that it would be to the manifest disadvantage of the rest of the co-owners if any portion of the Property is excised because —

1. the Property lacks an access road and services;

 

2. a significant part of the Property is located within the nature reserve;

 

3. a division in kind among all the co-owners would incur significant costs for access roads, electricity and water services, and sub-division fees; 

(iv)      it would be impracticable to divide the Property among all the co-owners because some of the co-owners have very small shares, such as 1/2260, 1/2400, 1/1680, 1/960, 1/384. The costs of sub-dividing these small shares would be excessive, regard being had to the value of these small shares.

6. The learned Judge ordered an appraisement of the Property on 26 October 2021 to be done by Mr. Allain Savy under section 112 of the Immovable Property (Judicial Sales) Act, hereinafter referred to as the "IPJS Act". I reproduce the order of the learned Judge in part —

"[3]      Appraisement for the purposes of a division-in-kind is done in accordance with section 112 of the Immovable Property (Judicial Sales) Act.

[4]       Section 112 of the Act reads as follows:

112.     "The Judge may also, before deciding upon the demand, order an appraisement (espertise) by an appraiser to be named by him.

In such case, the appraiser shall, within a delay to be fixed by the Judge, make and file in the registry his report, which shall, in a summary manner, give a description of the property, the estimated value thereof, and the basis upon which such valuation is made. The report shall further state whether or not the property can conveniently be divided in kind, and if so divisible shall set forth the proposed lots in conformity with this Act and the provisions of the Civil Code of Seychelles.

In no case of appraisement under the provisions of this Chapter shall it be necessary to administer an oath to the appraiser.

The parties to the division in kind shall be summoned, by a notice served upon them in person or at the domicile elected by them in accordance with section 110, four days at least before the day fixed for the appraisement, to attend at the time and place where the said appraisement is to be made." 

[5]       The parties have agreed for an appraiser to be appointed, so they will each bear a portion of the costs.

[6]       In the circumstances, in terms of section 112 of the Immovable Property (Judicial Sales) Act, I hereby appoint Mr. Alain Savy to carry out an appraisement of the land comprised in Title 573 situated at Capucins, Takamaka, Seychelles, and to submit a Report complying with the above provision, proposing partition of the property allowing for the undivided share of the Petitioner to be extracted, to this Court on or before 16^th February 2022 at 2:00 pm." [Empasis is mine].

7.         Mr. Allain Savy, who has been working as a land surveyor since 1990 and holds a licence to practice, was appointed to do the appraisement according to the order of 26 October 2021. I am reproducing the evidence of Mr. Allain Savy.

8. The evidence of Mr. Allain Savy (PW-1). Mr. Savy prepared two reports in this case, which are before the Court as exhibits P1-A dated 12 October 2022 and P1-B (undated). Exhibits P1-A and P1-B are titled, "APPRAISEMENT OF PARCEL T573 FOR DIVISION-IN-KIND ANSE MARIE-LOUISE, MAHE". Mr. Savy testified that the Property is 101 hectares and is registered in the name of the heirs of the late Francois Mondon. The share of the Appellant in the Property is 17/299, which is equivalent to 5.9 percent of the entire Property.
9. Mr. Savy testified that he had to find a way to determine the Appellant's share in a manner that would not have an adverse effect on the remaining Property. He stated that the "[P]roperty is quite steep, it goes from the shore, it is very flattish and then in the middle, it goes fairly steep and then very steep towards the end".
10. In the initial report, exhibit P1-A, Mr. Savy proposed removing a strip of land from the Property, stretching from the coastline to the hill, constituting the exact share he claimed the Appellant is entitled to receive. The strip of land proposed in exhibit P1-A is located at the beginning of the Property. He added that removing the strip of land would not significantly affect the value of the remainder of the Property as long as access to the remainder of the Property is ensured, which he had taken into account. The Appellant would receive the coastline, some flat land, and some hillside as well, which is a fair share of the Property.
11. In exhibit P1-B, the Appellant requested to include the two ruins, which he [the Appellant] had identified on the Property. According to Mr. Savy, the location where the ruins were identified is where the Appellant's mother grew up, and they hold sentimental value. He stated that the Appellant is willing to sacrifice half of his share in the Property to receive the ruins in his allocated portion. He claimed that the second option measures about 164 x 166 meters, resulting in 29,850 square meters.
12. He expressed the view that the first proposal in exhibit P1-A would be better for the remaining heirs because it involves a narrow strip of land and would have less impact on the remaining Property, while the second proposal involves a much larger area. He also mentioned that there is currently no right of way on the Property. He proposed that the footpath should be adopted as the eventual road reserve. He opined that it is possible to extract the share of the Appellant and do so conveniently provided an easement for the right of way is provided.
13. During cross-examination, Mr. Savy was asked if it would be possible to divide the Property into 8 equal portions. He mentioned that if the Property were to be divided into 8 portions, a portion of the beachfront area of the Property would not be included in all the 8 portions. The beach is located in the central part of the property, recognised as the most valuable area. He stated that any portion of the Property with a beachfront area should be considered of higher value. In this regard, Mr. Savy proposed that the part of the Property without a beachfront area should be larger than the part with a beachfront area to offset the difference in value. He stated that the ruins in exhibit P1-B were included after he had spoken to the Appellant.
14. When re-examined, he claimed that the Court ordered him to extract one portion and not to partition the whole Property. He claimed that after he had completed exhibit P1-A, he did not receive any request from the Respondents regarding the partition among all the heirs.
15. In the Supreme Court, Mr. Georges, on behalf of the Petitioner, presented the following arguments in favour of a division in kind of the Property to extract the Petitioner's share by dividing the Property into two plots. He contended that the conditions for division in kind had been met, specifically—

1. the Petitioner's share could be ascertained;
2. the Property could be conveniently divided into two plots to extract the Petiitoner's share;
3. the Appellant would only be responsible for the costs associated with extracting his share of the Property; and
4. division in kind is the most advantageous option for the heirs.

16. Mr. Shah, on behalf of the Respondent, contended that the trial Court should dismiss the application for division in kind for the following reasons—

1. the order would be contrary to the order of the Supreme Court authorising the sale of the entire Property;
2. the allocation would be unfavourable for co-owners holding minimal shares such as 1/3360, 1/2400, and 1/1680;
3. should the partition be granted, the Property must be sub-divided among the 8 primary heirs, and the Appellant's share would need to be determined through a drawing of lots;
4. sub-division of the entire Property would necessitate all co-owners to provide and financially contribute to an access road and utility services. Hence, allowing the Appellant to distract his share, as proposed by Mr. Savy, would exempt him from fairly contributing to the provision of a road and services for the other co-owners.

17. Upon thorough consideration, the learned Judge concluded that the Property could not be conveniently sub-divided into two plots to extract the Appellant's share. She concluded that dividing the Property into two plots would be impractical and result in inequities in various aspects, such as area, development costs and value.
18. Concerning the point raised that an order granting the petition would be contrary to the order of the Supreme Court authorising the sale of the entire Property, the learned Judge concluded that "the Order of the Learned Chief Justice dated 29^th March 2019 refers to the specific proposed sale to a known purchaser in the sum of Euros 18 million and no other".

THE APPEAL

19. The Appellant, dissatisfied with the judgment of the learned Judge, has appealed against it on the following grounds:

"2. Grounds of Appeal:

1. Having correctly set out the law governing division in kind under section 107(2) & 111(2) of the Immovable Property Judicial Sales Act, the Learned Trial Judge misapplied the law to the facts of the Appellant's case.
2. The Learned Trial Judge erred in her definition of "conveniently" as having greater reach than physical convenience and requiring mutual convenience between the Appellant and other co-owners.
3. The Learned Trial Judge erred in failing to adopt the land surveyor's report, which clearly stated that the share of the Appellant can be conveniently extracted from the parcel.
4. The Learned Trial Judge erred in dismissing the Appellant's petition without calling for and considering other options for extracting his share from the parcel."

Grounds one, two, three, and four of the appeal

20. I have considered the four grounds of appeal together. I have carefully considered the grounds of appeal and the main points of argument submitted on behalf of the Appellant in the skeleton heads of argument. Counsel for the Appellant submitted that the Appellant has satisfied the legal requirements provided in the IPJS Act, and that the Property can be conveniently partitioned. He submitted that the learned Judge should have adopted one of Mr. Savy's reports and proceeded to the sub-division of the Property.
21. Counsel for the Respondent, in his counter submissions, contended that the learned Judge was correct in her interpretation that the Property cannot be conveniently divided and was right to take into account inter alia the following—

1. Mr. Savy only interacted with the Appellant and sought to accommodate the Appellantʹs wishes and did not discuss any proposal with the Respondents;
2. Mr. Savy did not propose a division in kind comprising of 8 lots for the 8 first-line heirs or for all the heirs as required under sections 112 and 113 of the IPJS Act;
3. Mr. Savy presented no solution for the heirs having minuscule shares. Counsel for the Respondent claimed that a private sale would be better for the heirs having minuscule shares.

Analysis of the contentions of the parties

22. I have considered with care the record of appeal, the skeleton heads of argument of the parties, and their respective oral submissions during the hearing of the appeal.
23. Applications for division in kind are governed by the provisions of the IPJS Act. The petition is made pursuant to section 107(2) of the IPJS Act, which stipulates —

"107(1)…

(2)       Any co-owner of an immovable property may also by petition to a Judge ask that the property be divided in kind or if such division is not possible, that it be sold by licitation." Emphasis is mine.

24. In his petition, the Appellant prayed for an appraisement of the Property under the IPJS Act and its partition in kind so that he could receive his share. The Respondents, in their answer to the petition, averred that it would be impracticable to divide the Property among all the co-owners because some of the co-owners have very small shares, such as 1/2260, 1/2400, 1/1680, 1/960, 1/384. Counsel for the Respondent pointed out in his skeleton heads of argument that Mr. Savy should have proposed a sub-division of the Property into 8 lots with respect to the first-line heirs or among all the co-owners, as required by sections 112 and 113 of the IPJS Act. Mr. Savy testified that he had been directed by the order of the learned Judge to form two lots. I have tried my best to understand the proceedings before the Supreme Court. At this point, I mention that one of my concerns in this case is the lack of clarity regarding the information about the co-owners.
25. The learned Judge appointed Mr. Savy, in terms of section 112 of the IPJS Act, to appraise the Property. Based on exhibits P1-A and P1-B, Mr. Savy proposed two options for partitioning the Property into two lots. The Appellant did not ask in the petition for the formation of two lots. The learned Judge did not direct Mr. Savy to form two lots. Hence, I am left questioning why Mr. Savy proposed two lots in this case and why he only engaged with the Appellant, sought to accommodate the Appellantʹs requests, and did not communicate any proposals with the Respondents, as highlighted by Counsel for the Respondent.
26. In reviewing this case, it's puzzling that the learned Judge based her decision on reports (exhibits P1-A and P1-B) that did not comply with the order for appraisement of the Property under section 112 of the IPJS Act, which stipulates inter alia: "[t]he report shall further state whether or not the property can conveniently be divided in kind, and if so divisible shall set forth the proposed lots in conformity with [the IPJS Act] and the provisions of the Civil Code". It is my opinion that the learned Judge erred in adopting this approach in this case.
27. Counsel for the Appellant argued in his skeleton heads of argument that the learned Judge should have allowed the Appellant's shares to be extracted based on either report of Mr. Savy – (exhibits P1-A or P1-B). This argument is based on the premise that the Property can be conveniently partitioned into two plots, and that the Appellant has met the requirements of section 112 of the IPJS Act. Given my conclusion that the learned Judge took the wrong approach in this case, it follows that the argument of Counsel for the Appellant is misconceived – consequently, grounds one, two, three, and four of the appeal are misconceived.
28. It also follows, therefore, that the relief prayed for by the Appellant is misconceived. The Appellant prayed that this Court allow the appeal, setting aside the judgment of the Supreme Court for the process of the extraction of the Appellant's share from the Property to proceed.
29. Having arrived at this conclusion, I need not address the issue raised regarding a potential conflict with the order of the Supreme Court authorising the entire sale of the Property.

MISCELLANEOUS POINT

30. I read the following from Juris-Classeur Civil Art. 711 à 881—

"II. —DEFENDEUR A L'ACTION EN PARTAGE

1. — Réciprocité de l'action en partage

58. — Doctrine et jurisprudence sont généralement d'accord pour admettre que l'action en partage est une action réciproque..., en ce sens qu'elle doit être intentée contre les personnes mêmes qui ont le droit de l'exercer et que les qualités de demandeur et de defendeur au partage appartiennent à chaque copartageant…

…

2. — Indivisibilité de l'action en partage

60. — L'action en partage est indivisible parce qu'elle doit être intentée contre tous les coindivisaires. C'est ce qu'admettent géneralement les auteurs et les tribunaux… De nombreuses conséquences découlent de ce caractère d'indivisibilité de l’action en partage". [Emphasis is mine]

31. The Respondents to the petition are the executors. A question has arisen about whether the executors are the proper parties to answer the petition under the IPJS Act and Civil Code of Seychelles, based on the notes from Juris-Classeur. I brought up this issue in Court, but both Counsel were not fully prepared to argue this point.
32. I can leave open the question to which I have referred because, in my opinion, the answer makes no difference to the conclusion I have reached in this appeal. Nonetheless, I acknowledge its significance and the necessity to address it.

F. Robinson, JA

                                                                                                                                                                                                                                

 

 

Signed, dated and delivered at Ile du Port on 19 August 2024