Hoareau v Loizeau (CS 85/2020) [2023] SCSC 413 (1 June 2023)

ESPARON J

 Introduction

 

1. This is an action of unjust enrichment under Article 1381-1 of the Civil Code of Seychelles Act of which the Plaintiff is claiming that the Defendant is being unjustly enriched out of the Plaintiff contribution to acquisition and purchase of the property and the construction of the house.

 

The Pleadings

 

2. The Plaintiff avers inter-alia in her Plaint the Following;

 

“1) The Plaintiff and the defendant were in a common Law relationship and they obtained a joint loan out of which parcels J. 2411 and J. 2412 were purchased on 20^th August 2012 and at the defendants instigation was registered in his sole name.

 

 3) The Plaintiff avers that on the 17^th July 2012 she and the defendant obtained a loan from HFC for SCR 472,000 and this money plus another SCR 28,000 was used to purchase the two above-mentioned plots on the 20^th August 2012. First came the joint loan. Then a month later they transferred onto the Defendant’s sole name.

 

5) The Plaintiff avers that both she and the Defendant have paid for the loan equally since it was disbursed. In 2015 they obtained another joint loan form HFC in the sum of SCR 242,813 for the completion of the house, loans that the Plaintiff continues to pay.

 

6) The Plaintiff avers that she has financially and equally contributed to the acquisition of parcels J. 2211 and J. 2412 she is entitled to a half undivided share therein.

 

8) The defendant is being unjustly enriched out of the Plaintiff’s contribution to the acquisition and purchased of property and the Construction of the house.”

 

 3.        The Plaintiff prays this Court to declare;

 

1. That the Plaintiff is the co-owner of Parcels J. 2411 and J. 2412 entitled to be registered as a co-owner of undivided half share.
2. That the properties are valued and the defendant pays her a half share of the market value of the properties.
3. That the plaintiff has a right and occupancy of J2412 and J. 2411 until final determination of the case or that the defendant provides half the rent that the Plaintiff has to pay pending determination of the case.

 

4. In his statement of defence, the defendant has admitted that the parties were in a common

           law relationship and that they took a loan in their joint names in the sum of R 472,500.00 and that it was never intended for the Plaintiff would make any repayment of the said Loan and that it was never decided otherwise than that parcel J. 2411 and J.2412 would  be registered solely on the name of the defendant.

 

5. The defendant further avers in his statement of defence that he has been solely responsible for paying all loans on the said house.

 

The Evidence

 

6. The Plaintiff gave evidence on Oath that she has been living with the Plaintiff for 12 years and built a house together and that when they were renting a house at Le Niole, the defendant told her that he has seen a property at Belombre and that one day they went to the house with his mum and cleaned it since the place  was really dirty and at first they rented the place and they had to repair the house and they decided to build the house in bricks and took a loan with Eddy where she worked at the flower shop for 64, 000 rupees.

 

7. According to the plaintiff the loan for the house they paid both of them but the Plaintiff put the receipt on his name and that there were a lot of expenses that she did on her own for example done wiring, some lifting, and when he was not around to pay for transportation of materials such as crusher dust, helped him to pay some Indian workers on Sundays, bought most of the paint to paint the house. Some of the switch she helped him to buy and she took the marble from providence.

 

8. She also gave evidence that to put the sliding they went to VAB and they bought the tiles at STC and that for the walls they took from Laxmi and so were the bathroom drawers and mirrors for the walls.

 

9. She further gave evidence to the Court that she has no receipt since one day when she came back to the house all her things were outside the house and the rain was falling and since then she could not find the receipts since he destroyed everything.

 

10. During cross-examination by Counsel or the Defendant, she stated that she was not explained the duty of a Co- Applicant by HFC and she could not say how much she contributed. She also explained that there were times she gave Andy money in his hand and there were times she went to pay the loan but she admitted that when they did the agreement, they said they will deduct it on his salary.

 

11. Furthermore under cross-examination by Counsel for the defendant, she admitted that Andy told her that he will pay his loan and she will pay the Intelvision, bills and everything. But she maintained she paid the bill with Eddy and helped him to pay the other loan.

 

12. She also admitted under cross-examination that Andy was giving her a weekly allowance and she admitted that she was in a relationship with Andy for 8 to 9 years and not 12 years as she previously stated.

 

13. She also admitted under cross- examination that Andy promised her to get the property after his death but that he never promised her that she will get half the property while he is still alive.

 

14. Mr. Eddy Westergreen who gave evidence as a witness for the Plaintiff gave evidence to the fact that he knows the Plaintiff as she was working for his mum’s business and that one day Andy whom he knew since the age of 14 as “tonton’’ called him asking for some money for a loan to buy roofing sheet for the house and that he gave him and he paid him back in instalments and when he was out fishing he would give the plaintiff the money  and then she would say that “Tonton” gives you this.

 

15. Under Cross-examination by Counsel for the Defendant, he stated that the plaintiff was earning a minimum salary at one point in time whilst being employed by the said business.

           

16. The Plaintiff called a representative of HFC as witness, Miss Dominique Rene who testified to the fact that the defendant was a client of HFC and the plaintiff was co-applicant in the loan of Mr. Andy Loizeau. She further explained that a co-applicant is someone who will support the Applicant based on their salary if they do not meet the criteria that their company offers and that this is also in the case that a person is a self-employed, you will need a co- Applicant.

 

17. The witness testified that the Application was on Andy Loizeau and since the nature of Mr. Loizeau’s employment is not consistent, therefore the HFC would need a co- Applicant for the Application and that Miss Guilliane Houareau signed as a borrower. The witness produced a document namely a home financial agreement dated 3^rd July 2012 of which the Court admitted the said document as exhibit and marked it as exhibit P1.

 

18. During cross- examination, Miss Rene maintained that Mr Andy Loizeau was the sole Applicant. She explained that the responsibility of a co-applicant is that if the main Applicant defaults from paying the loan, they will take up the repayment of the loan and that in this particular case it was Mr. Loizeau who had been responsible for the loan repayment and that Mr Loizeau has never defaulted in any loan repayment.

 

19. The witness Rene also stated under cross-examination that Mr Andy Loizeau signed a standing instructions for the repayment to remove straight from his bank account and that Miss Hoareau signed a blank salary deduction instruction as if the 1^st Applicant would default from the repayment, this now would be activated.

 

20. Miss Solange Hoareau gave evidence as a witness for the Plaintiff and gave evidence to the fact that Miss Guilliane Hoareau is her daughter and that Mr Andy Loizeau was with her daughter and she is aware of the house they  have constructed both of them. She also explained that her daughter has contributed towards building the house by purchasing blocks also going in town and buying other accessories to be able to build the house and also when Andy was at sea, she was making the purchases for the material.

 

21. She also testified to the fact that she would not be aware if when she purchases materials she does so with the money given by Andy  or with her own money but can testify to the fact of seeing her painting the house and going to town to buy things for the house.

 

22. During cross-examination by Counsel for the defendant Mrs Solange Hoareau admitted that she would not know if her daughter contributed towards the construction of the house.

 

23. Mrs Jacqueline Hoareau who also testified as a witness for the Plaintiff testified that she is the sister of Guilliane Hoareau and she knows Andy Loizeau as the boyfriend of Guilliane and that she also helped cleaned the place and that she was there when she was purchasing the tiles for the house.

 

24. The Defendant, Mr Andy Loizeau testified on Oath that he is the owner of parcel number J2411 and J. 2412 and that there is a house on the parcel of land of which he is the one who built it.

 

25. The Defendant testified that he paid the sum of 500,000 for the land and that he applied for a loan with HFC of which they told him that since he is self-employed he would have to have another partner.

 

26. The Plaintiff also testified that he earns a minimum 10,000 SCR monthly and that it was never his intention to have Miss Guilliane apply for a loan with him and that all the time he paid the loan himself and he produced his bank statement of which the Court admitted it as exhibit and marked it as exhibit D3 showing that he has been paying his loan by himself on a monthly instalment of 3,780 and since he has taken an additional loan with HFC he is now paying 5,502.

 

27. The Defendant produced the statement from HFC corroborating the fact that he was the one paying for his loan of which the Court admitted the said document as exhibit and marked it as exhibit D4.

 

28. He further gave evidence to the fact that Miss Guilliane Hoareau never assisted him with money to help to pay the loan nor did she never assist him financially when he constructed the house and that he was the one who bought the materials since he is a fisherman and he was gifted some materials by his uncle.

 

29. The Defendant identified the receipts he received from Mr Westergreen and produced the said documents as exhibits of which the court admitted them as exhibit collectively and marked them as exhibit D5.

 

30. The Defendant in his testimony to the Court denied the fact that the Plaintiff is entitle to half  of the land and the house and that he was enriched because of her contribution to the acquisition of the parcels of land and construction of the house and stated that on the contrary it was him that enriched her of which she wasn’t working when he met her of which he bought her clothes, gave her 1000 rupees per week and bought food for her and even when she worked he still gave her 1000, 1500 or 2000 per week..

 

31. The Plaintiff admitted that he is still paying the loan in monthly instalment of 5,502 and it remains an amount of 400,000 rupees to pay on the loan.

 

32. During cross-examination by Counsel for the Plaintiff, the defendant testified that he bought food and basic needs for the house and that each time he was not at sea he was the one who did the cooking and that she did the laundry but at times it was him who did it. The Plaintiff was the one who cleaned the house and that they lived together but they were not married.

 

33. Mr. Wayne Saunders, a witness called by the defence testified to the fact that he knows Mr Andy Loizeau, they grew up together, they are friends and they have worked together and that Andy earns around 10,000 monthly as a fisherman.

 

34. Mr Saunders gave evidence to the fact that where he is staying, he could see Andy bring the materials and that he has helped Andy a couple of times to bring the materials.  He further stated that he has never seen Miss Hoareau make payments to the person transporting the materials. He further gave evidence that he has seen Andy paying for the material and he even gave the woman money each week.

 

35. When being cross-examined by Counsel for the Plaintiff, it was put to him that the Defendant is his family and that he is his friend, that he has come to Court to support him and that he knows nothing about the parties relationship of which the witness admitted that the Defendant was a distant family and that he knows things and that the things that he has stated are the truth.

 

Submissions of Counsels

 

36. Counsel for the Plaintiff submitted to the Court that the borrowers of the HFC loan of SR 472,000 were the Plaintiff and the defendant and that they are both found in the contract to refund the HFC loan. He further submitted that since the contract is in writing, the contract cannot be varied or changed where the parties stand on equal footing as borrowers of the loan to build their house and that the Plaintiff is entitled to her half share of the property. He also admitted to the Court, that his cause of action is based only on unjust enrichment.

 

37.  On the other hand Counsel for the Defendant submitted to the Court that the gist of the case constitute an action of unjust enrichment against the defendant. That the parties were living in concubinage for a period of 5 years.

 

38. She submitted to the Court that he borrowed a loan from the Housing Finance Company for the purchase of the said land. At first he was the sole applicant but because he was self-employed, the HFC required a co-Applicant of which he chose the Plaintiff since they were in a relationship together.

 

39. Counsel for the Defendant relied on the evidence of Dominique Rene from HFC who gave evidence that the Co-applicant only had to come in if the Applicant defaulted on the loan repayment. She further submitted to the Court that the Defendant’s bank statement and the statement from HFC corroborated Miss Rene’s evidence to the fact that it was the Plaintiff who made the payments. She further submitted to the Court that the only role that the Plaintiff played in this was by agreeing to become the co-Applicant or co-borrower so that the defendant could be eligible for a loan. She further stated that the Plaintiff was not even aware of the monthly repayment amount for the loan as it was evident in her evidence

 

40. She submitted that if the Plaintiff was financially responsible for the loan there would have been documentary proof at the bank or the HFC which shows that no payment was made by her.

 

41. Counsel for the plaintiff relied on the evidence of Eddie Westergreen who gave evidence how much the Plaintiff was earning and submitted to the Court that there was no way that the plaintiff could have been responsible for the loan repayment. She further submitted that the plaintiff’s evidence that she borrowed from Mr Westergreen to buy materials cannot hold water since Mr Westergreen testified that it was the defendant who took the loan and made the repayments.

 

42. Counsel submitted that the witness Wayne Saunders testified that he saw the Defendant carrying materials to his house during construction and that he has never witnessed Miss Houareau pay for anything. She further submitted that all witnesses called for by the Plaintiff namely Mrs Solange Hoareau and Miss Jacqueline Hoareau could not establish how she contributed towards the acquisition of the land or construction of the house. 

 

43.  Counsel further submitted to the Court that the non-monetary and indirect contributions being claimed by the Plaintiff, the Plaintiff made no reference to it in her Plaint and hence it was not pleaded in which she makes reference to financially and equally contributing to the acquisition of the parcel of land and construction of the House.

 

44. Counsel for the Defendant submitted that it is important for the Court to consider the intention of the parties. According to the Plaintiff it was never the intention of the defendant to make the Plaintiff a co-owner and to have her responsible for all loan repayments and as such she submitted that his intention could therefore be deducted from his conduct. According to Counsel, the Plaintiff gave evidence that the defendant had informed her at the time that if he ever dies the property shall all be left to her.

 

45. Counsel for the Defendant submitted to the Court as regards to the law as to unjust enrichment it is the previous law that is applicable that is the Civil Code which provides that if a person suffers from a detriment without lawful cause and another is correspondingly enriched without lawful cause, the former shall be able to recover what is due to him to the extent of the enrichment of the latter.

 

46. According to Counsel for the Defendant the Plaintiff has been unable to prove this as he could not show how she contributed towards the defendants assets. Counsel for the Defendant relied on the case of Cadeau V/S Leveau 1984 SLR which held that when a defendant has looked after and maintain the Plaintiff as a wife, the Plaintiff has not suffered impoverishment. She also relied on the case of Magnan V/S Desaubin 2012 SLR 58, the case of Digwall V/s Wellsmith 1967 SLR 47 and the case of Padayachy V/S Pool 2008. SLR 283.

 

47. Furthermore she submitted to the Court that a concubinage under the old code does not give rise to a legal relationship and relied on the case of Esparon V Monthy 1986 SLR which held that the principles of division of matrimonial property cannot be applied between parties living in concubinage. She also relied on the case of Dupres V/S Bathilde CS 220/1994.

 

48. Counsel for Defendant also submitted to the Court that the elements for a successful claim for unjust enrichment had not been proved by the Plaintiff on a balance of probabilities and furthermore the Defendant has disproved all of the Plaintiffs claims by leading evidence to the contrary and produced several documents in support of his case.

 

 The Law

 

49.  It is clear from the averments of the Plaintiff at paragraph 2 of the plaint that the parties separated in the concubinage relationship on the 8^th of January 2018 and it is clear from the other averments in the plaint that she has averred that whatever she contributed, she did so before that date. Hence it is the view of this Court that the Applicable law in the present matter is the law that existed before the new law came into force namely the Civil Code of Seychelles Act, 2020. Hence the applicable law in the present case would be the Civil Code of Seychelles Act which came into force on the 1^st January 1976.

 

50. Article 1381-1 of the Civil Code of Seychelles Act provides that  “If a person suffers some detriment without lawful cause and another is correspondingly enriched without lawful cause, the former shall be able to recover what is due  to him to the extent of the enrichment of the latter”

 

51.  In the case of Gangadoo V Cable and wireless SLR 2011 , the Court relied on the case of  Antonio Fostel V/S Magdalena Ah-Tave (1985) SLR, where justice  E.E  Seaton CJ stated the following;

 

“The action for unjust enrichment or action de in rem verso as it evolved in France ought to satisfy five conditions and all of them are included in Article 1381-1 of our civil code quoted supra.  They are namely;

 

1. an enrichment,
2. An impoverishment,
3. A connection between the enrichment and the impoverishment
4. An absence of lawful cause or justification
5. an absence of another remedy which the French jurist refer to as the ‘caractere subsidaire’”

 

Analysis and determination

 

52. From the evidence adduced above, it is crucial that this Court points out certain material contradictions between the version of the Plaintiff and that given by the other witnesses which testified for the Plaintiff. The Plaintiff maintains in her evidence that she had contributed to the repayment of the loan whereas the representative of HFC, Miss Dominique Rene testified that the defendant was the one who paid the loan through a standing instruction from his bank account and that Plaintiff only stood as a co-Applicant in case the defendant defaulted in payment.

 

53.  The Plaintiff gave evidence that she had taken a loan with the place where she worked were they paid the loan both of them whereas the witness called by the Plaintiff, Mr.  Eddie Westergreen gave a different version in his evidence from the Plaintiff stating that it was the Plaintiff which he knew him as “TonTon” who had taken a loan from him and paid the Loan and each time he was at sea, the Plaintiff would bring money to pay the Loan and say that that is from Tonton. Furthermore both the two other witnesses which was called by the Plaintiff namely Solange Hoareau, the mother of the Plaintiff and Jacqueline Hoareau her sister were unable to say whether the plaintiff had financially contributed to the purchased of the land and the building of the House.

 

54.  As a result of the above contradictions between evidence given by the Plaintiff and that of the version given by witnesses called by the Plaintiff, this Court finds that the Plaintiff was not being truthful when she gave evidence to the fact that she had financially contributed to the repayment of the loan both at HFC and that of the loan taken from the place she used to work at Mr Eddie Westergreen. I have observed the demeanor of the Plaintiff whilst giving evidence in Court and this Court has also taken into consideration of the Contradictions between her version in her evidence in Court and the version of the other witnesses called by the Plaintiff and find that the Plaintiff was not a credible witness.

 

55. I find the evidence of the Defendant to be consistent, cogent and find the defendant to be a credible witness. Furthermore his evidence was corroborated by the witness Wayne Sanders, a witness call by the defence. For reasons mentioned in paragraphs 52 to 54 of this judgment, I accordingly reject the version of the plaintiff and accept the evidence and version of the defence as being truthful.

 

56.  I have considered the evidence led by the Plaintiff in the matter and that of the defendant and also the submissions of Counsel for the Plaintiff and Counsel for the defendant and find that the Plaintiff was the only one paying the Loan at HFC and with the place where the Plaintiff was working at Mr. Eddie Westergreen. I also find that the Defendant was the only one that had financially contributed to the purchase of the 2 plots of land namely parcel J2411 and J. 2412 and also to the building of the house. From the evidence adduced it is clear that the Plaintiff only stood as a co- applicant for the loan to repay the loan in case of default by the defendant. I also note from the evidence of Eddie Westergreen that the defendant was only earning a minimum salary at the time and the plaintiff was a self- employed, fisherman.

 

57.  As a result of the above findings, this Court is of the view that the Plaintiff has failed to prove on the balance of probabilities that there was an enrichment on the part of the defendant since the defendant was the only one who had financially contributed to the purchase of the land and the building of the house. Secondly the Plaintiff has failed to prove on a balance of probabilities that there was an impoverishment on her part since she had suffered no economic loss or detriment since she had not financially contributed to the purchase of the land and the building of the house. In these circumstances it would be futile for the Court to decide whether there was a connection between the enrichment and the impoverishment or an absence of lawful cause or justification since the plaintiff has both parcel registered on his name and was the only one who had financially contributed to the purchase of the land and building of the house.

 

58. The Plaintiff has testified in Court that she had cooked, washed the Plaintiffs clothes and cleaned the house. Since the Plaintiff has only pleaded in her Plaint her financial contributions and not her non-monetary contributions, this Court would be acting ultra-petita in the event this court would have considered such evidence in its Judgment. Furthermore this Court finds that it was the Plaintiff who had financially benefited from the Plaintiff who gave her a weekly allowance, a place for her and her daughter to stay (vide: Dingwall v Weldsmith (1967) SLR 47.

 

59. In the case of Dupres v Bathilde (1996), SLR 101, the Court held that there is no place for property adjustment orders in the case of cohabitation orders of which it is a fact in the present case before the Court.

 

60. Furthermore, it is clear that the evidence in the present matter does not disclose a societe de fait between the parties, no pooling of resources or any common understanding that whatever was acquired, was to be for their mutual benefit (vide: Dupres V/S Balthilde, 1996 SLR 101). In the present matter the Plaintiff has admitted during cross-examination by Counsel for the defendant that the defendant only told her that everything will be hers when he dies. Hence this Court shall not be able to grant the prayers as sought for by the plaintiff in her Plaint

 

61. For the above reasons, I accordingly dismiss the Plaint with cost.

 

Signed, dated and delivered at Ile du Port on 1^st June 2023.

 

____________

D. Esparon Judge