Delpech v Soomery & Ors (CS 109/2016) [2020] SCSC 633 (14 October 2020)


Civil Procedure|Evidence Law

Case summary

Locus standi – Fraud based on hearsay – Power of attorneys/fiduciary powers – prescription

SUPREME COURT OF SEYCHELLES   Reportable [2020] SCSC 765 CS 109/2016   In the matter between: LYZA REGINA JULIE DELPECH                               Plaintiff (rep. by Mr. S. Rouillon)   and   EDNA SOOMERY                                                            1st Defendant (rep by Mr. A. Derjacques) ELIE BAKAS                                                                    2nd Defendant (rep by Mr.G. Roberts) MARC ELIE JULIENNE                                                3rd Defendant (rep by Mr. C. Andre) VENGADACHALAM CHETTY                                   4th Defendant (rep by Mr. B. Georges) VASANTHI CHETTY                                                     5th Defendant (rep by Mr. B. Georges)                                                                      CHARLES LUCAS                                                          6th Defendant (rep by Mr. C. Lucas) NOELIN DIDON                                                               7th Defendant (rep by Mr. C. Lucas)   Neutral Citation:   Delpech v Soomery & Ors (CS 109/2016) [2020] SCSC 765 Before:                   Andre J Summary:              Locus standi – Fraud based on hearsay – Power of attorneys/fiduciary powers – prescription Heard:                    15 July 2020 Delivered:              14 October 2020 ORDER The following Orders are made:   The Plaintiff’s Plaint is dismissed as against all defendants; Costs of the suit to be paid by the Plaintiff to all defendants; No order is made as to alleged unauthorized transactions with the deceased’s Barclays bank accounts in the absence of evidence; Noting the serious discrepancies in the pleadings of the Plaintiff inclusive of the serious allegations made to fraud and forgery with regards to the 1st and 6th defendants, which matters stands unsubstantiated before the court, this court hereby refers this matter to the Chief Justice for further determination and investigation on the filing of this civil suit by the Plaintiff and Plaintiff’s attorney-at-law. Mr. Serge Rouillion.   JUDGMENT               ANDRE J Introduction This Judgment arises out of plaint filed by Mrs. Lyza Regina Julie Delpech (Plaintiff) of the 19 December 2016 and subsequently amended on the 17 May 2018. The plaint is filed against Edna Soomery (1s Defendant), Elie Bakas (2nd Defendant), Marc Elie Julienne (3rd Defendant), Vengadachalam Chetty (4th Defendant), Vasanthi Chetty (5th Defendant), Charles Lucas (6th Defendant), and Noelin Didon (7th Defendant). The Plaintiff is seeking orders as follows: (i) declaration that the three fraudulent powers of attorney documents namely, one dated 27 September 1991 where Mr. Elie Bakas sold Title S 2918 to Mr. Marc Elie Julienne on the 24 October 1991; one dated the 10 February 1992 where Edna Soomery sold title S 2917 to Mr. Vengadachalan Chetty on the 22 July 1996, Title S 2919 to Mr. Vasanthi Chetty on the 20 February 2001; and to herself title S 2916 on the 2 March 1992; and the transactions with the Deceased Barclays bank accounts; short call account number 7003959; account number 7549919; and account number 4402798 as fraudulent, void, invalid and with no legal effect; (ii) order that the land register of land titles S2920, S2916, S2918 and S2919, be rectified so that the said parcels be registered in the name of Plaintiff being the sole heir of the Deceased the late Mr. Regis Osman Bakas and consequently order the land registrar to so rectify the said register; (iii) order the Defendant to render full account of the dealings she had with the accounts of the Deceased in respect of the bank accounts of the Deceased; (iv) order the Defendant to pay costs to the Plaintiff and/or make any other order this honourable court deems fit and necessary. All Defendants filed their Statements of Defence ranging from 21 February 2017, 11 October 2018, 25 July 2018, 29 May 20; and 4 July 2018 respectively. All Defendants foremost raised several pleas in limine litis which shall be dealt with in this judgment. To be noted further that all Defendants filed written submissions of which contents have been considered in this Judgement. Background of the case The plaint The Plaintiff avers that she is the only child of late Mr. Osman Regis Bakas (Deceased), who died testate in England. The Deceased by Will executed in the United Kingdom appointed the Plaintiff as an Executrix of his estate and left the residuary estate on trust for the Plaintiff absolutely, subject thereto on trust for Leo and Victoria Delpech in equal shares. The Plaintiff has been confirmed as the Executrix of the estate by the Supreme Court Order dated 22 November 2016 (Exhibit P13). The Plaintiff avers that several portions of land (supra) have been fraudulently alienated without the Deceased’s consent, knowledge, or authority. The transfers of land were executed between 1991 and 2006. The Plaintiff further alleges that power of attorney documents (supra), on the basis on which the portions of land were sold are fraudulent. That the 1st Defendant Edna Soomery had two powers of attorney executed in her favour and sold three portions of land, one of which to herself and two to the 4th Defendant Vengadachalam Chetty and 5th Defendant Vasanthi Lucas. The Plaintiff further avers that the 2nd Defendant Elie Bakas is the brother of the Deceased, who sold the portion of land to the 3rd Defendant Marc Elie Julienne, based on power of attorney executed in his favour (supra). It is further averred that the 6th Defendant Charles Lucas is the attorney-at-law who executed two powers of attorney in favour of the 1st Defendant. The 7th Defendant Noelin Didon (now Deceased) was a retired director of a company Premier Services Limited and drew up a power of attorney draft in favour of the 2nd Defendant. The Plaintiff further prays the Court to declare the three powers of attorney and transactions with the Deceased’s Barclays bank accounts as fraudulent, void, invalid and with no legal effect, order that the land register of portions of land that were allegedly fraudulently sold be rectified and registered in the name of the Plaintiff being the sole heir of the Deceased; order the 1st Defendant to render a full account of the dealings she had with the Barclays bank accounts of the Deceased, and order for costs and any other order the Court deems fit and necessary. The Statements of defence All the Defendants deny the allegations of fraud and raise several pleas in limine litis as follows. 1st Defendant The 1st Defendant avers as pleas in limine litis that: (i) the Plaintiff has not been recognized in law as the daughter of the Deceased, and has no locus standi to bring this action; (ii) that the civil action is prescribed as the transfers were executed on the 24 October 1991 (S2918), 24 July 1996 (S2917), on the 20 February 2001 (S2919); and on the 2 March 1992 (S2916). That, therefore, as this action was filed on the 19 December 2016, more than ten years after the said transfers, Article 2265 of the Civil Code applies hence the plaint is to be struck off; (iii) that this action is based on hearsay evidence and this as illustrated at paragraph 4 of the plaint, on unsigned documents, irrelevant comments, and opinions (paragraphs 7 and 8 of the plaint) and thus fails to meet the standards of a reasonable cause of action.; and (iv) that he action is frivolous and vexatious and further constitutes an abus de droit as against the 1st defendant. The 1st Defendant as a result of the above averments moves for the court to decide on the pleas in limine as raised foremost; to dismiss the plaint; award costs against the Plaintiff; and refer the matter to the Chief Justice for further determination and investigation on the filing of this civil action by the Plaintiff and Plaintiff’s attorney at law, Mr. Serge Roullion. 2nd Defendant The 2nd Defendant avers as a plea in limine litis that the plaint does not disclose a cause of action against him and moves for the dismissal of the plaint with costs. 3rd Defendant The 3rd Defendant also raises a plea in limine litis that the plaint discloses no cause of action against him in that he is a bona fide purchaser for value; and that the action against him is time-barred by prescription of 20 years. The 3rd Defendant moves for dismissal of the plaint with costs. 4th and 5th Defendants The 4th and the 5th Defendants also raise two pleas in limine litis to the effect that the plaint discloses no cause of action as against them who are bona fide purchasers for value; and that the action against the 4th Defendant is barred by the extinctive prescription of 20 years and that as against the 5th Defendant by the extinctive prescription of ten years with just title. The 4th and 5th Defendants move for the dismissal of the plaint with costs. 6th and 7th Defendants The 6th and the 7th Defendants raise as plea in limine litis that the plaint is bad in law and discloses no cause of action against them and no order of redress is sought as against the 7th Defendant; that paragraphs 5 and 6 of the plaint pleads and rely on hearsay utterances purportedly made by the Deceased person which renders corroboration thereof an absolute and legal impossibility; and that the Plaintiff fails to particularise the fraud alleged. Both the 6th and 7th Defendants move for dismissal of the plaint with costs.  The Evidence The Plaintiff In support of her Plaint, the Plaintiff testified on her behalf and called two other witnesses namely, Mr. Fred Hoareau Deputy Registry at the Land Registration Division, and senior immigration officer Ms. Julia Colette. The Plaintiff testified in her capacity as the Executrix to the estate of the Deceased and she also claimed as a Deceased daughter, in a gist as follows. That the Deceased passed away on 8 January 2015 (Certificate of death Exhibit P15). That before her father’s demise she met up with him and he gave her a file that had Mr. Didon’s paper inside and some of the papers of the bank that he had his deposit account in it (Exhibit P14). It is to be noted at this stage that because of hearsay evidence arising as to the truth of the contents of the exhibit as to letters written by the Deceased and unsigned copies of powers of attorneys, same was simply admitted for proof that it was sent and not the truth therein. Further, also to be noted at this stage of the proceedings that all other evidence of the Plaintiff as to what his father told her is not being reported in line with the rule against hearsay evidence in the absence of the Plaintiff establishing that the said evidence falls within the exceptions as provided by law as established. (The record refers) The Plaintiff testified further that the Deceased did make a power of attorney in her favour to title numbers S1892 and S 2178 on the 20 April 1990 (Exhibit P12) and duly registered on the 4 May 1990. Plaintiff further testified that as far as she could recollect the Deceased had during his lifetime a property at Anse Talbot Cascade, a shop and two houses: one big house with four bedrooms that was built in stone, and one was sold by the 2nd Defendant as per alleged fraudulent power of attorney of the 27 September 1991 (Exhibit P11). According to her knowledge, the Deceased never sold any of those properties. She testified further,  that according to the Will of the Deceased (Exhibit P13), which she claims she received from her lawyer in England she was the sole beneficiary and trustee of the estate of the Deceased alongside Leo and Victoria Delpech respectively. The Plaintiff testified that she came back to Seychelles in the year 2017 and she approached the 1st Defendant and found out that all of the Deceased’s lands had been sold by both the 1st and 2nd Defendants as per their alleged fraudulent powers of attorneys (Exhibits P11-power of attorney in favour of Mr. Elie Bakas and Exhibits P2, 3-powers of attorney in favour of Edna Soomery). Transfers deeds concerning the Deceased’s properties sold were produced as (Exhibit P4), the transfer of parcel S 2916 to Edna Soomery through power of attorney in favour of the Elie Bakas on the 5 October 2006); (Exhibit P8), transfer of parcel number S 2919 through the power of attorney of Edna Soomery to the Vasanthi Chetty on the 20 February 2001; (Exhibit P6), the transfer of parcel S2917 to the Vengadachalam Chetty on the 22 July 1996 by Elie Bakas through his power of attorney; and (Exhibit P1), the transfer to Marc Elie Julienne of the 24 October 1991 again through power of attorney in favour of Elie Bakas). According to the Plaintiff, her father did not come to Seychelles to execute the powers of attorneys in favour of the 1st and 2nd Defendants and, according to her, she was told of same by the Deceased. The Plaintiff avers that the Deceased came to Seychelles for her wedding in the 1980s and that she cannot remember if he came back after. Regarding the bank accounts of the Deceased, the Plaintiff testified that she had a fixed deposit account document, which her late father gave her, and that at Barclays bank there was a dormant account and a joint account and a fixed deposit account and as to inquiries regarding the arrangements as to the running of the accounts all were informed to her by the Deceased (which evidence is not being reported on the ground of hearsay) and the Plaintiff further testified that she was unaware of the bank transactions concerning anything that was going on in those specific accounts for she went to the bank and did not get anything. The Plaintiff finally moved the Court as per prayers in her plaint [paragraph 4 refers] and the cost of the suit. In cross-examination, the Plaintiff confirmed that she was unaware of the Deceased signed a power of attorney in favour of Elie Bakas. Mr. Fred Hoareau of the Land Registration Division was the second witness called on the behalf of the Plaintiff and produced several registered documents namely, the transfers of land, the duly authenticated and registered powers of attorney as averred in the plaint, and testified about by the Plaintiff. It is to be noted further, that the transfers produced by Mr. Fred Hoareau referred to transfers in favour of the 1s Defendant Edna Soomery from Mr. Elie Bakas, Mr. Marc Julienne the 3rd Defendant; Mr. Vengadachalam Chetty 4th Defendant and Mr. Vasanthi Chetty 5th Defendant, which transfers are subject of alleged fraud by the Plaintiff (supra). (Exhibits P1, 2, 3,4,5,6,7,8, 9, 10,11; and 12 refer respectively). Mr. Fred Hoareau also confirmed registration of the Will of the Deceased (Exhibit P13) confirming the evidence of the Plaintiff as to its contents (supra). Upon cross-examination, Mr. Hoareau confirmed that the power of attorney in favour of Mr. Elie Bakas (Exhibit P11), 2nd Defendant concerning parcels S 2916, 2917, 2918; and 2919 of 27 September 1991 was duly registered in October 1991; and that when parcel 2917 was transferred in July 1996 (Exhibit P6) and parcel S2919 in February 2009 (Exhibit P9), the power of attorney (Exhibit P11) was existent and in the Register as it was registered in October 1991. Mr. Hoareau further confirmed that both the 1st and 2nd Defendants namely, Edna Soomery and Elie Bakas had the authority through the required powers of attorney duly registered to effect the transfers as exhibited. The third and last witness called on behalf of the Plaintiff was Ms. Julia Collette, senior immigration officer, who testified as to the possible whereabouts of the Deceased in and out of Seychelles as follows: That as to the travel or immigration details of the Deceased Mr. Osman Baccas for the period beginning December 1991 to end of December 2004, “according to our database, there is no travel history found in respect of Mr. Osman Regis Bacca's”. She further testified that their database stretches back to the years 1994 or 1995 and that she was unaware of records which were kept before that for she started working in the year 1995 and that records use to be done manually. She further testified that she could not talk about the year 1991 because she was not yet there in 1991 but only as of 1995. Upon cross-examination, Ms. Juliette Collette further confirmed that from 1991 until 1995 she would not know whether Mr. Osman Bakas, the Deceased, had entered the country or not as the procedure was manual. 2nd Defendant The 2nd Defendant Mr. Elie Bakas testified on his behalf in a gist as follows. That he was of 81 years old and brother of the Deceased. Concerning (Exhibit P11), namely, the power of attorney drawn on his behalf by the Deceased, he testified that that power of attorney was given to him by the Deceased in the year 1991 when the latter was in England and that: “He called me and say go to Mr. Noelin Didon. Mr. Noelin Didon was his agent. He has sent a power of attorney for me to sell the divided plots and I went to Mr. Didon and I collected it”. He further testified that his late brother asked him to sell the plots he sold: “because I tell you frankly, my brother was not in good terms with the Government and he wanted to sell”. According to Mr. Elie Bakas, the transfer of parcel S 2918 was executed upon instructions of the Deceased and the money for the sale was collected by late Mr. Noelin Didon, 7th Defendant, who was the agent of the Deceased then, and latter handed over the same to the Deceased. Mr. Elie Bakas further testified as to the relationship of the Deceased and the 1st Defendant Edna Soomery that: “well they were good friend…… for many years…. More than 10 years”. Mr. Elie Bakas further testified as to the whereabouts of his late brother, the Deceased, to the effect that during the year 1991, the last there months thereof, and the first 3 months of 1992 he was in Seychelles living at their house at Mont Buxton. As to the identity of the 6th Defendant Mr. Chalres Lucas, Mr. Elie Bakas testified that he knew him as a notary and that his late brother engaged him to prepare a power of attorney in favour of Edna Soomery and he knew about the same upon being told by the Deceased. He further confirmed that he was present at the time of the drawing of the said power of attorney (Exhibit P3) at Premier building in the office of lawyer Lucas and that both his late brother, the Deceased, and Edna Soomery were there also. He further testified that he could hear and see what was going on and that the power of attorney (Exhibit P2) was done in favour of Edna Soomery as Mr. Elie Bakas had told his late brother that he could not carry on because of his business and he was living on his own, so look for another one. Mr. Ellie Bakas further testified that he did execute a transfer on behalf of his late brother as per his said power of attorney as attested by (Exhibit P1), transfer of parcel S 2918 in favour of Marc Elie Julienne 3rd Defendant and same was done before notary Maurel. With respect to the Plaintiff, the 2nd Defendant confirmed that he knew her in the year 1990 and she was well aware of all the transactions with the 7th Defendant Mr. Noelin Didon and that she left Seychelles sometimes in the year 1991 to Canada as a refugee. As to the relationship between his late brother and the Plaintiff he testified that his brother was infertile, that it was in the family and that he does not know if the Plaintiff is the daughter of the Deceased. Upon cross-examination, Mr. Elie Bakas maintained that he had no knowledge of the paternity of his brother towards the Plaintiff and unaware of the Will of his late brother. He confirmed (Exhibit P11), whereby his late brother granted him power of attorney over certain properties and he reiterated that he was instructed to sell the land and not to collect rent for those lands. As to (Exhibit P14), being the letters of Mr. Noelin Didon to the Deceased, Mr. Elie Bakas acknowledged his name is there and that his late brother instructed him to go to Mr. Didon and: “so I went to Mr. Didon. Mr. Didon gave me the power of attorney”. Mr. Elie Bakas further informed that he was aware through his late brother that a power of attorney had been given to the Plaintiff but he never saw it. 6th Defendant The 6th Defendant Mr. Charles Lucas testified on his behalf in a gist as follows. That he was an attorney-at-law before 1990 and notary public since 1990. That he knew the Deceased as a friend of Noelin Didon and he was also instructed by the former to act as a notary for the Deceased. That as regards (Exhibit P11), a power of attorney granted by the Deceased to Elie Bakas and that the said document was executed in England and notarized and duly registered. As to (Exhibit P2), is the power of attorney in favour of the 1st Defendant Edna Soomery, Mr. Charles Lucas testified that same is duly signed by the Deceased and Edna Soomery and himself as an Attorney-at-law. That both parties signed the document in his office on 10 February 1992 and also duly signed and registered. As to the powers of attorneys granted the Edna Soomery (Exhibit P2), Mr. Charles Lucas further testified that: “she is appointed to do anything and everything that Osman Bacca's himself could do and to sign such acts and this has made him necessary including the power to sell so she had the permission to sell the ...... the top part contains 3 land parcels… Titles S2920, S2919, and S2917they are subdivisions of S 291”. Mr. Charles Lucas further testified that transfers signed by attorneys, who have been granted, the powers of attorney, which are deposited at the land registry or registration; and that once signed, dated and stamped and stamp duties paid, the transfer is completed as per the Land Registration Act. With regards to the 7th Defendant late Mr. Noelin Didon, Mr. Charles Lucas testified that he was a partner in Premier Services with the late Mr. Guy Morel. That he was not privy as to any correspondence and documents sent to the Deceased by the 7th Defendant to give the power to sell properties at Cascade but having had sight of (Exhibit P14) did refresh his memory. With regards to the transfers of title S2916 (Exhibit P4), he confirmed it was done before notary Francis Chang-sam duly stamped and registered by the registrar general. As to parcel S 2917 (Exhibit P6), he further confirmed that it was a transfer effected by Edna Soomery as per power of attorney before notary Gerard Maurel and duly stamped and registered as well as (Exhibit P8), transfer of parcel S2919 being a transfer executed before notary Gerard Maurel as an attorney-at-law duly stamped and registered. As to (Exhibit P12), namely, the power of attorney in favour of Plaintiff concerning parcel numbers S1892 and 2178, Mr. Lucas testified that the notary is a foreigner and not registered in Seychelles. The power of attorney is dated 20 April 1990 signed by the Deceased and registered in Seychelles in May 1990. As to the form of the power of attorney granted to the 1st Defendant Edna Soomery (Exhibit P2), Mr. Lucas testified that all the required standards and all the required law was applied into that document and to his knowledge and from his experience, it is a valid document, which gave her the power to sell. Mr. Lucas also further clarified that there was one issue about “sometimes in the past with powers of attorneys especially, sometimes some notaries will include with power to sell, others would not until there came the landmark case of Keven Parcou and Julien Parcou and from then on the court insisted that if one wishes to sell the need to have one: a document made with power to sell inscribed into the document and then number two: they require consents of heirs or consents of those whose continuants and number three: today also have to include the title number of the land which you have the power to sell”. Upon cross-examination, Mr. Charles Lucas reaffirmed that in the year 1991, when the power of attorney of Elie Bakas was executed, the jurisprudence of Seychelles had not moved onto these strict requirements of the insertion of ‘with the power to sell’. The 1st, 3rd, 4th; and 5th defendants chose not to call any oral evidence and relied on their filed submissions (supra). Legal Analysis of the Issues Arising from the Pleadings and Evidence Locus Standi: Plaintiff as the aughter of the Deceased Plaintiff’s averment that she is the daughter of the Deceased is challenged by the 1st Defendant (supra). The 1st Defendant avers that the Plaintiff has not been recognized in law as the daughter of the Deceased and that she has no locus standi to bring this action. The Plaintiff’s locus standi as an Executrix was established by Court Order dated 22nd November 2016 (Exhibit P13) confirming that in terms of the Will of the Deceased, the Plaintiff had been appointed the Executor and trustee. In paragraph 2.1 of the Will (Exhibit P13) the Deceased referred to the Plaintiff as ‘my daughter LYZA REGINA JULIE BAKAS-DELPECH’. Power of Attorney issued to the Plaintiff (Exhibit P12) refers to the Plaintiff noting her previous surname ‘Mrs. Lyza Delpech nee Bakas’. From those documents, it appears that, firstly, the Deceased considered the Plaintiff to be his daughter and, secondly, the Plaintiff also used to have the Deceased’s surname. At this point, there is no other documentary evidence recognizing the Plaintiff as a daughter of the Deceased. Article 319 provides that, “The descent of legitimate children shall be proved by the acts of birth registered in the register of civil status”. In the absence of such acts, under Article 320 “the constant possession of the status of a legitimate child shall be sufficient”. Article 321 deals with facts that can establish possession of the status and provides:   “Article 321 1.    Possession of status may be established when there is a sufficient coincidence of facts indicating the relationship of descent and parenthood between a person and the family to which he claims to belong. The principal facts are: That person has always borne the name of the father whose child he claims to be; That the father has been treating him as his child and that, in his capacity as a father, he has provided for his education, maintenance, and start in life; That he has always been recognized as a child of that father in society;    That he has been recognized as such by the family.   2.         Natural descent may also be established by the possession of status, both as regards the father and the mother in the same manner as legitimate descent.” (emphasis added)   Therefore, (Exhibit P12-power of attorney) and (Exhibit P13 - the Will) tend to suggest that the Plaintiff satisfies Article 321 at least in terms of bearing the name of the Deceased and the Dceased referring to her as a daughter in his Will. It is not known whether the Plaintiff’s mother and the Deceased were ever married. Under Article 312 there is a presumption that: “a child conceived during marriage shall be presumed to have the husband as the father”. Article 312 (2) further provides that the presumption as to the legitimacy or illegitimacy can be rebutted: “by evidence which shows that it is more probable than not that that person is illegitimate or legitimate . . . and it shall not be necessary to prove that fact beyond a reasonable doubt to rebut the presumption”. Even if the Deceased and Plaintiff’s mother were not married Article 757 provides that natural child shall have the same rights as the legitimate child. The Defendants do not provide much evidence showing why the Plaintiff is not a daughter. Mr. Yves Baccas testified that: ‘I will tell you frankly my brother was infertile. It is in the family. Now Lyza's mother was a common prostitute and I know what a prostitute does’. It is unclear what exactly Mr. Baccas referred to when he said he ‘knows what a prostitute does’ and how it relates to paternity. Nevertheless, he seems to suggest that the Deceased was infertile. This assumption is not supported by any evidence and, in any case, even if it was so, the child could have been adopted. Furthermore, with regards to the Plaintiff’s locus standi, even if she is not the daughter of the Deceased (and it is evident that the proper action and more evidence is needed to show that), she still has locus standi as an appointed Executor. Article 724(4) provides that: “if any part of the succession consists of immovable property, the property shall not vest as of right in any of his heirs but in an executor who shall act as fiduciary”. In Suttie & Anor v Rebecca David (Civil Appeal SCA 25/2015) [2017] SCCA 37 (07 December 2017), the Court considered whether it was necessary to remove the Respondent as an executrix of the estate on the basis that the official birth certificate failed to show that the Respondent was the daughter of the Deceased. It was stated: “[16] It is important to note from the start that any person can be appointed as executor of a succession. That person need not even have a lawful interest in the succession. Hence, whether the Respondent is the daughter of the Deceased or not is immaterial as concerns her appointment as executor of his succession. What is important is that she fulfills her duties and obligations under the Civil Code.” The Court acknowledged that the Respondent had not yet proved that she was the daughter of the Deceased, nevertheless, upheld her appointment as an executor and reminded the Respondent that it is: “her duty to distribute the succession in accordance with the rules of intestacy”. Similarly in the present case, it is clear that the Plaintiff has not proved that she is the daughter of the Deceased as per the relevant cited provisions of the Civil Code (supra), but she still has locus standi as an Executor with the capacity to ensure the distribution of the estate of the Deceased and she has to consider other available heirs, rules of succession, powers and obligations of the executor as well as the Will of the Deceased in accordance with provisions of the Civil Code. Fraud, Forgery It is established by Article 1116 of the Civil Code and numerous case law that fraud shall not be presumed and must be proved: “Article 1116 Fraud shall be a cause of nullity of the agreement when the contrivances practiced by one of the parties are such that it is evident that, without these contrivances, the other party would not have entered into the contract. It must be intentional but need not emanate from the contracting party. It shall not be presumed and it must be proved.” Our local case law establishes that the burden of proof is on the party who challenges a document to prove its falsity; that fraud must be proved by adducing positive evidence, and that higher degree of probability is required but not so much as in criminal cases (See: (Charles Lucas v Marie Georges (Civil Appeal SCA13/2018)) [2019] SCCA 13 (10 May 2019); Albert v Rose (2006) SLR 140; Houareau v Houareau (2011) SLR 47; Basson v Bason (2005) SLR 129; Katz v Ward & Anor (CS 11/2015, CS 12/2015) [2017] SCSC 780 (04 September 2017)). Fraud on sale or mortgage of property is an offence under section 302 of the Penal Code. Forgery is defined by section 331 of the Penal Code and section 336 provides that forgery of power of attorney is punishable by imprisonment for life. Evidence Hearsay According to section 12 of the Evidence Act, English law of evidence and practice shall be followed: “Except where it is otherwise provided in this Act or by special laws now in force in Seychelles or hereafter enacted, the English law of evidence for the time being shall prevail”. The general English common law rule against hearsay in civil cases was abolished by the Civil Evidence Act 1995 (the “CEA”). Section 1(1) states, that ‘in civil proceedings evidence shall not be excluded on the ground that it is hearsay’. Roble & Ors v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) and Payet v Monthy (CS 56/2017) [2018] SCSC 512 (01 June 2018) acknowledge the Civil Evidence Act 1995, albeit in a different context than circumstances of this case. The CEA 1995 also provides safeguards in relation to hearsay evidence, one of which is that under section 2 a party seeking to rely on hearsay evidence must provide a notice of a proposal to adduce hearsay evidence. Section 2(4) provides, though, that even when notice is not given, it does not automatically make the hearsay inadmissible: “(4) A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court— (a) in considering the exercise of its powers with respect to the course of proceedings and costs, and (b) as a matter ad

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