Marie-France Morel v The Land Registrar (MC 57/2023) [2024] SCSC 17 (8 March 2024)

Adeline J,

1. By way of an application, by petition, one Marie-France Morel, the executrix of the estate of the late Odette, Laure, Morel pursuant to Section 89 of the Land Registrar Act, applies to this Court against the Land Registrar for the following orders;

1. “ An order that the Affidavit on Transmission is cancelled and the entries against the register of the land made under it are removed.
2. An order that the Respondent registers the application for rectification.
3. An order that the register of the land is rectified as per the last page of the Application for rectification.
4. An order that the Respondent pays the Applicant a sum of Seychelles rupees twenty-five thousand (SCR25, 000) with cost.

2. In reply to the petition, the Land Registrar, which is the Respondent in this matter, raises a preliminary objection to the petition by raising some preliminary legal issues that are addressed and determined in this ruling. Those preliminary issues raise are couched in the following legal points;

1. The Respondent submits that the petition should be dismissed in its entirety as the matter has been wrongly commenced before the Supreme Court of Seychelles. It is submitted, that the matter should be commenced by way of a plaint as per Section 23 of the Seychelles Code of Civil Procedure and not by way of petition supported by an affidavit.
2. If this Honorable Court dismisses preliminary point no 1, above, the Respondent further submits, that in view of the nature of the petition, and the consequence of the registration of the affidavit on transmission by death, the person listed as proprietors of LD1566 in the land register of LD1566 have acquired interest in parcel LD1566, and such, proceedings may materially or adversely affect them and as such they should be made a party to these proceedings. In the alternative, the persons who is listed in the affidavit on transmission by death as the legal heirs of France Mussard and Philomene Mussard or the executor of the estate of Francois Mussard should be made a party to these proceedings so that this Honorable Court can competently and adequately adjudicate on the subject matter of the petition”.

3. Submitting on its first preliminary point of objection that proceedings for the reliefs being sought for should have commenced by way of a plaint instead of a petition, learned counsel for the Respondent proceeds on the premise, that Section 89 of the Land Registration Act does not provide the mode or form that an application should be made to the Supreme Court to rectify the land register. Learned counsel then goes on as to say, that as such, the Petitioner should have had recourse to the provisions under Section 23 of the Seychelles Code of Civil Procedure, that reads as follows;

“Every suits shall be instituted by filing a plaint in the registry”.

4. It is the submission of learned counsel for the Respondent, that the fact that the Petitioner is also seeking for a monetary claim in the sum of SCR25, 000.00, this reinforces its belief that for the reliefs being sought for, the Petitioner ought to have commenced proceedings by way of a plaint. Learned counsel cites the case of Quilindo and others v Moncherry and others, SCA 29 of 2009 as the case law authority upon which it bases its proposition, and quotes an extract from the judgment by Twomey cj (as she then was) when she quoted Perera j, having said, in part the following;

“Hence proceedings under either article 321 or 340 of the Civil Code are for declaration of status and not actions or suits to redress grievances or to recover right, which necessarily should commence by plaint and be opposed by a defence so that there would be litis. Hence I hold, that Article 340 (3) uses the term action in the generic sense not in the procedural sense as Section 25 of the Code of Civil Procedure, and that hence, the present proceedings initiated by petition and affidavit are not incompetent” (underlined emphasis by learned counsel).

5. As a matter of construction, therefore, the case of Quilindo and others, (supra) suggests, that when it’s an action or suits to redress grievances or to recover rights, proceedings have to commence by plaint. To re-inforce its belief, that in the instant case proceedings should have commenced by way of a plaint, learned counsel also cites the case of Medine v Vidot CS266/2004, a case cited in Quilindo (supra). Learned counsel quotes at paragraph 22 of the judgment, the following extract with emphasis by it as follows;

“I Conclude that a party seeking a declaratory relief in respect of paternal decent under Article 340 of the Civil Code, should commence the action by way of a plaint”.

6. As regards to the 2^nd point of objection, that because of the registration of the Affidavit on Transmission by Death, those people whose names have been entered as proprietors of LD 1566 have effectively acquired interest in the land and therefore ought to have been named as parties in the proceedings, learned counsel submits, that it was necessary for the Petitioner to join them all as Respondents in the application “in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in this matter”.
7. In essence, therefore, it is the submission of learned counsel, that given that the heirs have now acquired interest in LD1566, they are interested parties who should have been made parties in the proceedings. To support this proposition, learned counsel cites the case of David v The Land Registrar (SCA35 of 1997) in which case, the Court had taken similar view, that is, that “interested parties” ought to be given the opportunity to be heard. In David (supra) the Court had this to say;

“We are satisfied, that the Respondent should have given interested persons an opportunity to be heard before the application was dealt with by Alleear C. failing to do so, meant, a denial of natural justice. The audi alteram partem rule requires that before any decision is made, interested persons must be given an opportunity to be heard. This is enshrined in Article 19 (7) of the constitution of Seychelles which is the Supreme law of Seychelles. To the extent that any law excludes the right to a fair hearing it would be inconsistent with Article 19 (7)”.

8. In it’s submissions in reply to learned counsel’s submissions on behalf of the Respondent, learned counsel for the Petitioner proceeds on the premises, that it is trite law that the Seychelles Land Registration Act is derived from the Land Registration Act system in place in England and Wales. From such a premise, it is submitted by learned counsel, that English law is highly persuasive when it comes to deciding which proper manner or form to be utilize to obtain an order of the Supreme Court for rectification of the Land Register.
9. It is the submission of learned counsel, that Section 89 of the land Registration Act (“LRA”) does empower the Court to order rectification of the land register. Section 89 of the LRA, reads;

“ 89 (1) subject to subsection (2), the Court may order rectification of the register by directing that any registration be cancelled or amended, where it is satisfied, that any registration has been obtained, made or omitted by fraud or mistakes”.

10. Upon reading the provisions of Section 89 of the LRA, I am in agreement with leaned counsel for the Petitioner, that it is not stipulated in Section 89, unlike in Section 88 (2) of the LRA, the manner to bring about an application for such relief before the Supreme Court. It is the submission of learned counsel for the Petitioner, that Section 23 of the SCCP does provide, that every suits have to commence by way of a plaint but that the proceedings for the reliefs being sought for in the instant case is not, as a matter of fact, a suit.
11. Learned counsel for the Petitioner submits, that in the circumstances, it has to seek for guidance from the English Land Registration Act. In that regard, learned counsel refers the Court to the Halsbury’s Laws of England Volume 26, Functions of Registrar and jurisdiction of the Court. Learned counsel makes special mention of paragraph 1482 that reads, as follows;

“Expect where it is otherwise expressed and subject to any rules of the Court to the contrary, every application to the Court must be by summons at chambers and the Court has the full power and discretion to make such order as it thinks fit respecting the costs, charges and expenses of all, or any of the parties to any application”. (Underlined emphasis by learned counsel).

12. In essence, therefore, it is the submission of learned counsel for the Petitioner, that based on English law, such application is made by way of originating summons supported by affidavit. It is on that basis, that learned counsel submits, that “an application for rectification under the LRA must therefore be by way of petition supported with affidavit, and not by way of a plaint. Learned counsel for the Petitioner also submits, that it is persuaded, that this is the proper way to initiate such proceedings given that in respect of an inhibition order under Section 76 of the LRA, it is by application supported by affidavit.
13. It is the submission of learned counsel for the Petitioner, that there are certain matters that are brought before the Court for redress by way of petition and affidavit, and not under Section 23 of the SCCP by way of a plaint. Learned counsel cites a writ habere facias possessionem as an example. In that regard, it is submitted by learned counsel, that the Petitioner has employed the correct procedure to apply to the Court for an order of rectification of the land register.
14. Learned counsel takes issue with the fact that learned counsel for the Respondent relies on the case of Quilindo (supra) to argue that proceedings in the instant case ought to have commenced by way of a plaint. It is the submission of learned counsel, that the Quilindo case was an action under article 340 of the Civil Code of Seychelles Act for proving paternity, and that the term “action” has been synonymous with the definition of suit under the SCCP, thus had to be brought by way of a plaint.
15. It is also submitted by learned counsel, that in the Quilindo case, Twomey JA, did say that in the present case, the matter is not as clear cut. To further illustrate the point that in the circumstances of the instant case the Petitioner is right to commence proceedings by petition, learned counsel for the Petitioner finds it appropriate to quote the following extract by Twomey JA from the Quilindo’s case j (supra).

“…………………………….. true the Civil Procedure Code indicates that a matter should be brought by plaint but it also states, that where there are other provisions made in law, section 25 [sic] does not have to be followed, as we have stated the introduction of English affiliation concepts logically implied English procedural rules. Can we as a Court of equity (viz section 5 and 6 of Courts Act (cap 52) deny the Respondents the right to be heard because they have brought the action by petition instead of plaint when the procedure for the same is not clear? We think not”.

16. It is the submission of learned counsel, that the case of Quilindo (supra) suggests, that even if the Court finds that proceedings in the instant case should have commenced by way of a plaint, this Court, being a Court of equity, cannot deny the Petitioner its right to be heard when the procedure is not clear cut, and the Respondent has not suffered any prejudice because a petition has been filed instead of a plaint.
17. I have closely examined the legal points raised by learned counsel for the Respondent in this matter in plea in limine litis as well as the submissions of counsel representing the parties to this petition. In essence, and in a nutshell, the first legal point raised by learned counsel for the Respondent objecting to the application, is that, because of the nature of the reliefs being sought for, that is to say rectification of the land register, proceedings should have commenced by way of a plaint not by way of a petition. Learned counsel for the Respondent relies on the statutory provisions of Section 23 of the SCCP which it backs by the case of Quilindo and others vs Moncherry and others, SCA 29 of 2009 to substantiate its proposition.
18. Learned counsel for the Petitioner disagrees, and contends, that this is not a suit, nor an action. It holds the view, that because the Land Registration Act is silent as to the form and mode for making an application before the Supreme Court of Seychelles for rectification of the land register, the avenue available to a prospective litigant, is to resort to the procedures under the English Land Registration Act, and that explains, why it  commenced proceedings by way of a petition.
19. Upon reading the submissions of both counsels representing the parties, I have a feeling that neither of them are 100 percent certained and indeed convinced, that a plaint or a petition for that matter, is the proper means to commence proceedings for an order of rectification of the land register. Infact, I am of the opinion, that learned counsel for the Respondent is more inclined to suggest, that proceedings ought to have commenced by way of a plaint because in the prayer, the Petitioner prays, interalia, for “an order that the Respondent pays the Applicant a sum of Seychelles rupees twenty five thousand (SCR25, 000)”.
20. Clearly and admittedly, this is an area of the law that is not clear cut and that in the interest of justice, the Court ought to look at the bigger picture. Although I have read the Quilindo’s case (supra) cited by both sides in this case, I am yet to be convinced, that this application has correctly been brought by petition or that it should have been brought by way of a plaint, although, I find the legal basis for the Petitioner to commence proceeding by way of a petition to be more persuasive.
21.  In the Quilindo’s case (supra) the Court held the view, that an action for a declaration of status under Article 321 or 340 of the Civil Code of Seychelles Act should be commenced by way of a plaint. Couldn’t the justices of Appeal have been persuaded by the word “action” that arguably is synonymous with the word suit, and therefore Section 25 of the SCCP had to come into play?
22. By not being utterly convinced that proceedings has been correctly commenced by petition, or that it should have commenced by a plaint, I am inclined to subscribe to the views expressed by Twomey JA in Quilindo (supra), she having said the following;

“In the present case, we do not find the matter as clear cut. True the Civil Procedure Code indicates that a matter should be brought by plaint but it also states, that where there are provisions made in law, section 25 does not have to be followed, as we have stated the introduction of English affiliation concepts logically implies English procedural rules. Can we as a Court of equity (viz section 5 and 6 of the Courts Act, Cap 52) deny the Respondent the right to be heard because they have brought the action by petition instead of plaint when the procedure for the same is not clear? We think no”.

23. Therefore, my reading of this extract from the Quilindo’s case (supra) is that, amid the uncertainty of the procedural law for an order of the Court for rectification of the land register, the Court ought to look at the bigger picture. In the instant case, the issue of property rights is at play, and therefore, the same question should be asked, as a Court of equity, can we deny the Petitioner the right to be heard because the application has been made by way of a petition instead of plaint, if if let assume, we agree that proceedings should have commenced by way of a plaint? Certainly this Court’s answer to this question should be in the negative. For that particular reason, therefore, the preliminary objection raised by learned counsel for the Respondent, that the application for the reliefs being sought for should have been made by way of a plaint instead of a petition and therefore the petition should be dismissed, fails.
24. The essence of the 2^nd point of the preliminary objections to the petition as per the submissions of learned counsel for the Respondent, is that, given that by the Affidavit on Transmission by Death which has been registered against the land title LD 1566, those heirs whose names are mentioned in the affidavit have acquired interest in LD 1566 and are thus interested parties, they should have been made parties to the proceedings. For this proposition, learned counsel relies on the case law authority of David v Land Registrar SCA 35 of 1997.
25. In it’s submissions in reply, learned counsel for the Petitioner contends, interalia, that the order of rectification being sought for is to correct an error emanating from improper registration of an affidavit on transmission by death, that there is no valuable consideration, and the proprietors are behind the error. I have thoroughly read the affidavit in support of the petition. Some of the averments in the affidavit need to be answered and there is nobody better placed to answer them than those whose names happen to be on the proprietorship register of title LD1566.
26. I have opted for this line of reasoning by taking into account, interalia, the fact that amongst other reliefs being sought for by the Petitioner, the Court is being asked to order the Respondent to pay the Petitioner the sum of SCR25, 000, when the allegation is that an improper affidavit was done by the executor of the heirs. In my considered opinion, to consider the prayer fully without giving those people an opportunity to be heard would not only be a breach of their constitutional right to be heard under Article 19 (7) of the constitution, but also, a breach of the principle of natural justice.
27. Therefore, for the reasons discussed in the preceding paragraphs of this ruling, the preliminary point raised by learned counsel for the Respondent that those people who have been entered as proprietors in the proprietorship register of LD1566 be made party to the proceedings succeeds.

Signed, dated and delivered at Ile du Port on 8^th March 2024

____________           

Adeline J