Adeline J
INTRODUCTION
[1] This ruling pertains to an application on notice by the Petitioner, one Jolmny Wilvene Jean for different reliefs that would effectively allow the Petitioner to file his petition in COUli for a property order in settlement of the Matrimonial property issue between him and one Fadeque, Josianne, Jean bom Dora ("the Respondent") out of the prescriptive limitation period. In his application, the Petitioner applies for the following orders-,
a. 'for the matter to be heard as a matter of urgency
b. for an order to condone the delay infiling this application, and
c. for an order for leave to be granted for the Applicant/Petitioner to file an application for leave to pursue the division of his share of matrimonial property following divorce"
[1] The application is made pursuant to rule 20 of the Matrimonial Causes Rules ("the Rules") which remain inforce although the Matrimonial Causes Act has since been repealed and the relevant statutory provisions governing property adjustment orders following divorce are now prescribed under the Civil Code of Seychelles Act, 2020. Rule 20 of the Rules is couched in the following terms.
"20. No pleadings shall befiled out of time without leave Application for leave shall be by motion supported by affidavit".
PLEADINGS
[2] In acknowledgement by the Petitioner, that the time prescribed under rule 34 (1) of the Rules to make this application has lapsed, the Petitioner seeks for leave of this Court to file his application out of time. For ease of reference, rule 34 (1) of the Rules is couched in the following terms;
"34 (1) an application for a periodical payment or a lump sum payment in accordance with rule 4(1) (b) or c in relation toproperty in accordance with 4 (1), (t), (h), (1) or 0) where a prayerfor the same has not been included in the petition for divorce or nullity of marriage may be made by the petitioner at any time after the expiration of the time for appearance to the petition, but no application shall be made later than two months aOerorder absolute except by leave. "(the underlined emphasis is mine).
[3] To support his application for leave of this COUli for the reliefs being sought for, the Petitioner has swom an affidavit attached thereto to which are exhibited the necessary relevant documents. In his affidavit in support, interalia, the Petitioner depones by making the following averments;
1)
2) "That by virtue of a decree of divorce absolute we finally divorced on 23rd June 2020, but we did not pursue the division of our matrimonial property issues until now. (Copy of Decree Absolute of Divorce attached and marked as exhibit 1)
3) That during the Course of our marriage the Respondent and I acquired a portion of land more fully 1000wnas Land title LD 252 consisting of 2,119 square metres of land on which stands our matrimonial home and presently registered in the joint names of myself and the Respondent (Copy of official search Certificate attached and marked as Exhibit 2)
4) That the purchase of title LD 252, and the development of the matrimonial property was carried out by both parties.
5) That around 4 years ago, I built a small gym business on the matrimonial property which is my sole business and source of income.
6) That since our separation and the continuous abuse of my rights to live in the house, I was obliged to vacate and set up a small living area outside of the house on the same property
7) That the Respondent has on many occasions causes problems and makes all sorts of allegations towards me before the Family Tribunal and towards people who comes to the matrimonial property to visit me even my own relatives.
8) That during the divorce process a letter was written to Ms Joel Camille attorney-at-law of the Respondent to offer the Respondent to purchase my undivided halfright in the matrimonial property. She did not reply to my offer. (Copy of letter attached and marked as exhibit 3)
9) Since the divorce, 1 have vacated matrimonial property and have moved on with my life and have since emarry.
10) That it isjust and necessaryfor this honourable Court to make an order to have the matrimonial property subdivided in half each party to have a portion of land duly registered in our respective names
11) That 1 am,based on La Digue and working every day and through my indvertance Ifailed to applyfor a division of our matrimonial property within the period prescribed by law and it is now urgent, just and necessary that 1 and the Respondent have all our Matrimonial issues finalised once andfor all. "
[4] In reply to the application for an extension of time to file application for a property adjustment or settlement order, the Respondent raises a plea in limine litis in the following terms."
"The Respondent avers, that the Application is bad in law and must be dismisses in that the cause of action forming the basis of the Applicant's petition has previously been dealt with in case Jean v Jean (MA 25912020 arising in DV 11812019) whereby the Supreme Court dismissed the petition of the Petitioner. Accordingly, the matter is Resjudicata. "
[5] In addition, to take issue with the averments made by the Petitioner, on merits, the Respondent did file an affidavit in reply. In her affidavit in reply, the Respondent, interalia makes the following averments-,
1) "
2) 1 state that 1 am, objecting to the motion seeking leave of the Court by the Petitioner for the Petitioner to .file his petition for division of matrimonial property out of time.
3) I further avers, that I am advised by my Attorney, and verily believe that the matter has previously been dealt with in case Jean V Jean (MA 25912020, arising in DV 11812019) whereby the Supreme Court dismissed the petition of the Petitioner. I state that the petitioner is now seeking for him to re litigate 011 a matter already determined by th.isCourt. There is now attached shown to me and marked as exhibit R1 a copy of the said judgement of the Supreme Court.
4) I further aver that in any event, the Petitioner has advanced no reasons whatsoever to the Court in this present application, tojustify the delays in him, for failing to file his petition within the prescribed time. I also aver that as per the above referred judgement, the Petitioner was advised by the trialjudge on the need to seek leave to file his petition out of time. However, the Petitioner fails to take steps to rectify his petition then, and accordingly his petition was dismissed. The Petitioner accordingly has no reasonable basis to make this application.
5) I aver that for the above reasons, I will object to the motion of the Petitioner, and moves the Court to dismiss it with costs ".
SUBMISSIONS
[6] Leamed Counsel representing the parties in this petition, did file their written submissions to elaborate and bring clarity to their position amid the proposition that this petition is res judicata. In its submissions in support of such proposition, leamed counsel for the Respondent contends, that the application is bad in law and must be dismisses in that, the cause of action forming the basis of the Applicant's petition has previously been dealt with in case Jean vs Jean (MA 25912020,arising in D V 11812019) whereby the supreme COUlt dismissed the petition of the Petitioner.
[7] It is the submission of learned counsel, that the Petitioner has sought for an order for the final division of the parties' matrimonial property title LD252 and the house thereon, in particular, to declare the parties' respective shares in the matrimonial property and that in a judgement dated 14th December 2023, Pillay J was satisfied, that the Petitioner had not sought for leave of the Court to file his petition out of time. Learned counsel quotes Pillay J as having said the following at paragraph [12] of the judgement;
"12 I am inclined to agree that non-compliance with time limits arefatal to the case. However as stated by the learned chiefjustice in Sabadin some indulgence should be exercised not only to bring an end to the dispute between parties but also, because of the nature of the matter being the settlement of matrimonial property following a divorce. However, in the case of Sabadin above, the learned chief justice seems to have reluctantly agreed to overlook the non compliance since the other party in the matter did not take up any objections. In contracts, the respondent in the current matter has taken up objection. With that in mind along with the fact that the matter was bought to the attention of the petitioner's counsel who did not seek to rectify the situation, I have to decline any indulgence to the Petitioner. I accordingly find that the non compliance with Rule 34 (1) of the Matrimonial Causes Rules is fatal to the position, "
[8] I wholly agree with the finding and reasoning of Pillay j based on the facts and circumstances of the case that were presented before the COUli. I am in no doubt that I would have reached the same conclusion for the following reasons, (1) there was an objection of non-compliance, and (2) no steps were taken by the Petitioner to comply. This was a procedural lapsed and it was fatal. As such, indulgence could not have come into play.
[9] This petition is a new one which in effect is one where the Petitioner seeks to comply with the 111leprescribed under 111le34 (1) of the Matrimonial Rules. The question that therefore follows is, does the averment by learned counsel for the Respondent that the Petitioner, having instituted proceedings to seek for an extension of time to file the petition proper after the same was dismissed for non-compliance with procedural law, makes the petition res judicata?
[10] In his submissions to expound on his proposition that the matter is res judicata, leamed counsel refers the Court to Article 1351 of the Civil Code of Seychelles Act with emphasis on the threefold, notably, identity of subj ect matter, cause and parties between the first and second case. It is the submission ofleamed counsel, that the subject matter is the same being that of division of matrimonial property between parties, cause relates to the petition for same division of matrimonial property and the parties are clearly the same patties as in DV 118/19.
[11] However, leamed counsel for the Respondent needs to be reminded, that in J ohny Wilven Jean V Fadette Josiane Jean bom Dora (MA259/2020) (Arising in DV118/19) the petition was for division of matrimonial property based on the substantive law, whereas, in the instant case, the application is for an extension of time to file petition for division of matrimonial property out oftime based on procedural law.
[12] In his submissions in reply, leamed counsel for the Petitioner submits, that the case proper pertains to the Matrimonial property of the parties which is yet to be fully and finally settled between them, whereas, the Petitioner's current application before this Court is for leave to file an application to have the matrimonial property issue between the patties resolved out of time, and therefore, looking at the reliefs being sought for, there are two separate causes.
[13] Leamed counsel also submits, that the dismissal of the application filed out of time as MA259 of2020 for division of matrimonial property was because leave had not been sought prior doesn't follow that the Court has determined the application for a property adjustment order or a division of matrimonial property between the parties as a settlement.
[14] To aver against the motion that res judicata is a bar to this proceeding, learned counsel relies on an extract quoted from the judgement in the case of Roger Vs Smart Vega Holdings Ltd (MA162/2024 arising in CSI02/2022) in which case Esparon j had commented as follows-,
"Hence, 1 am in agreement with the submission of learned counsel for the applicant that for the principle of res judicata to be applicable, there must be a finality of judgement also and that in the present matter there is no finality of judgment since the Court has not given a judgement on the merit in the main case. Hence, Ifind that the plea of res judicata is not applicable in the present matter, and as a result 1 accordingly dismiss the plea of res judicata.
[15] Learned counsel for the Petitioner also finds it helpful to refer to what he calls the "pragmatic approach" which this court took in Rose V Richmond (MA97 of 2022) [2022] SCSC/124 (15 December 2022) in which case although the court found that there were some defects in the affidavit, the COUliwent on as to state the following -,
"On merit, I have, amongst other things, given thought to the possible repercussions or implications, should the Court deny the Applicant/Petitioner the remedy being sought for given the right to property which is afforded to evelY individual under Article 26(1) of the charter of human rights in our constitution. Therefore, 1 am of the view, that in order to uphold that right, and in the interest ofjustice, the remedy being soughtfor should be granted to allow proceedings to proceed for ajust determination of the property issues between the parties. "
[16] Learned counsel for the Petitioner then proceeds to submit on the law of res judicata.
In this regard, it is the submission of learned counsel, that res judicata is prescribed under Article 1351 of the Civil Code of Seychelles Act in the following terms;
1) "A final judgement has the effect of res judicata only in respect of the subject matter of thejudgement.
2) It is necessary that the demand relate to the same subject matter, that it be between the same parties, and that it be bought by them or against them in the same capacities. "
[17] Learned counsel cites the case of Hoareau v Hemrick [1973] SLR 272,273, in which case Souyave CJ, had stated, that for res judicata to apply there must be three-fold, identity of subject matter, cause and parties in the first and subsequent case. In Hoareau, (supra) Souyave CJ, had made the point that for a plea of res judicata to be applicable, there must be between the first case and the second case, the three-fold identity of "object" "cause:" and "personnes". It is the submission of leamed counsel for the Applicant/Petitioner that "the object is what is claimed, "La cause" is the fact, or the act, whence the right springs"
[18] Leamed counsel also cites the case of Attomey General v Joseph Marzocchi and Anor SCA N08 of 1996, in which case the COUli of appeal held, that the doctrine of res judicata is based on the rationale that there is a public interest in finality of Courts' decisions (interest republicae ut finis litium sit) and that individual should not be troubled twice on the same subject matter (nemo debet vexari pro eadem causa)
[19] Therefore, the essence of the submissions of leamed counsel for the Petitioner is that for a plea of res judicata to succeed, there must be a final and binding decision that emcompases the same subject matter, on the same cause of action and the same parties. Having considered the case law in mind that has developed our jurisprudence in this area oflaw, I have no good reason to disagree with the submissions of learned counsel for the Petitioner. Infact, this is the current legal position based on our Jurisprudence
[20] Learned Counsel for the Petitioner cites a plethora of case law authorities in which the Court, in its interpretation of Article 1351 ofthe Civil Code of Seychelles Act, has spelt out the "three fold" criteria for a plea of res judicata to succeed. For example, leamed Counsel cites the case of Mathew chanyumwai VS Seychelles Yatch Club CS220f2017 in which case, Pillay J had stated, that "for a plea of res judicata to be upheld there must be the threefold identity of subject matter, cause and parties between the first and second case. Perhaps quite significant to this current proceeding, is the case ofNourrice Vs Assary (1991) SLR, in which case, the Supreme Court made the point that where an earlier application is dismissed for procedural irregularity, the plea of res judicata does not apply.
[21] It is the submission of learned counsel for the Petitioner, that the principle of res judicata will operate where there has been a final determination of the patties dispute.
Learned counsel relies on Clarisse V Sophola [2005] CS96. Learned counsel proceeded to add, that there was never a final determination of the parties matrimonial property dispute in M259/2020.
FINDINGS AND CONCLUSION
[22] I have read the submissions of counsel for both patties in these proceedings, argueing for and against the plea of res judicata. I find the two submissions to be fundamental different when it comes to the interpretation and application of the law of res judicata to the facts and circumstances of this case. I am not at all persuaded, that leamed counsel for Respondent is himself convinced that this petition is barred for being res judicata and that explains why he has taken a simplistic approach in his submissions to argue the case that this petition is res judicata. I am equally not persuaded, that had he been on the other side of the coin he would have accepted the very argument which he has come up with in this case.
[23] On the other hand, I find the submissions of learned counsel for the Petitioner to be very correct on the Law of res judicata as well as its application to the facts and circumstances of the instant case. For this reason, I find no need to rehearse the law on res judicata which has been adequately presented and supported by case law. Suffice to say, however, that the current petition before this Court is based on procedural law, in that, it seeks for an extension of time under rule 4 (1) of the Matrimonial Causes Rules to file a petition for a property adjustment order or a division of matrimonial property order.
[24] The case (MA25912020) arising in DV11812019) before Pillay j was a petition for a property adjustment order or a division of matrimonial Property order. In that case before Pillay j the merits of the petition or application were never considered in the light of the substantive law because the Petitioner was foul of the procedure by failing to seek for leave of the COUltto file the petition proper for a property adjustment order or a division of matrimonial property order out of time.
[25] Therefore, Pillay j was perfectly COlTect to dismiss the petition. However, the dismissal of the petition cannot render the current petition for leave to refile the petition for a property adjustment order or a division of matrimonial property order out of time to be res judicata because the threefold under Article 1351 of the Civil Code of Seychelles Act are not made out. Furthermore, there has been no finality of judgement on the
merits ofthe application in [MA259/2020] (arising in DV118/19). The dispute between the parties over the matrimonial property at issue remains live without a final judgement to have it settled. For these reasons, therefore, the contention that this application is res judicata plea inlimine litis is overruled and is accordingly dismissed.
[26] To determine this application for an extension of time to file a petition for a division of matrimonial property on its merit, I have taken into account the fact that as per the affidavit evidence, the decree nisi of divorce was made absolute on the 30th June 2020. Clearly, therefore, the Applicant is way out of the prescriptive period of 2 months. I note, however, that as per paragraph 8 of the affidavit in support of the application, the Applicant avers, that during the divorce process a letter was written to Mr. Joel Camille, Attomey for the Respondent, to offer the Respondent to purchase her undivided half right in the matrimonial property which letter the Respondent did not reply to.
[27] I also note, that at paragraph 11 of its affidavit in support of the Application for an extension of time, the Applicant avers, that he failed to apply for a division of their matrimonial property within the time prescribed by Law.
[28] I am mindful of the fact, that the question of whether on the facts and circumstances of this case the delay should be condoned has to be considered within the background that rules of COUli must be obeyed. In Aglae V Attorney General SCA N035 of 2010, [unreported] the Iearned Chief Justice cited with approval the order of the Privy Council in Ratnam V Cunnarasamy [1964] All ER 933, state the following
"The Rules of Court must prima facie be obeyed an d in order tojustify a Court in extending the time during which some steps inprocedure require to be taken, there must be some material on which the Court can exercise its discretion. If the Law requires otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for conduct of litigation. "
[29] On account of the facts and circumstances of this cases, it is clear that by writing to counsel for the Respondent to offer the Respondent the opportunity to purchase his undivided half share of the matrimonial property, the Petitioner was attempting to resolve their matrimonial property issue amicably. Unfortunately, the Respondent did not reply to the offer.
[30] Therefore, I am still of the view expressed in Rose Vs Richmond (MA97 of 2022) [2022] SCSC 15TH December 2022, that given that the light to property is a right afforded to us all under Article 26 (1) of the Charter of Human Rights in our constitution, in order to uphold the property right of both parties to this application, and in the interest of justice, the indulgence of this COUltis called for. Therefore, this application should be allowed for a determination of the patties' matrimonial property issues in order to come to a final settlement of their dispute. I therefore allow the application and grant the Petitioner an extension of time of two weeks as of today to file his application for a division of matrimonial property between him and the Respondent.
Signed, dated and delivered at Ile du Port on 25th November 2024.