Rose v Richmond (MA 29 of 2023 (Arising in DC 227 of 2019)) [2024] SCSC 24 (7 February 2024)

Adeline J,

1. The Petitioner initiating this ancillary proceeding, one Genevieve, Caroline, Christel, Rose formerly Richemond of Ma Constance, Mahe, Seychelles applies to this court for an Adjustment of Matrimonial Property Order. The application is made by petition supported by an affidavit sworn by the Petitioner.
2. By her petition, the Petitioner seeks for an Adjustment of Matrimonial Property Order in the following terms;

“a. an order that all the properties held in the name of the Respondent be valued.

b. An order that the shares in the following companies be valued.

i. Bois Sagailles Estate limited

ii. Bois Cato Estate limited, and

iii. Classica limited

c. An order that the Petitioner is awarded a half share in all the properties, both by being awarded a monetary share and being awarded either of the following properties;

i) The matrimonial properties situated at Ma Constance, namely, land parcels H494 and H1201

ii) The properties situated at Les Cannelles, namely, land parcels C545 and C546

iii) The property situated at Anse La Mouche, namely land parcel C122

iv) The property situated at Baie Ste Anne, Praslin, namely land parcel PR 3117

            d. An order that the Petitioner is awarded a half share in the Respondent’s share in the following companies

i. Bois Sagailles Estate limited, a company which currently owns land parcels S3726, J311, J312 and a portion of land situated at Nidd’Aigle, La Digue, Seychelles.

iii) Bois Cato Estate Limited, which currently owns land parcel T2019 and T1901, and

iv) Classica limited

            e. An order that the Petitioner is awarded a half share in the following businesses

                        i. Truffle

                        ii. Robin Richmond Construction

                        iii. Horizon Complex, and

                        iv. 340 Mountain view apartment

            f. An order that the Petitioner is awarded a half share of the monies in the following bank accounts, held in the Respondent sole name;

i. Bank account number 001-5-201192, 0001-00731302-0 and 0001-10033568-4, held with the DBS Bank Ltd, in Singapore, and

ii. Bank account number 91002600 and 91002601, held with the bank of Baroda (UK) Ltd, in the United Kingdom.

            g. An order that the Respondent transfers all his shares in Cavern Self-catering Apartment situated at Praslin to the Petitioner

            h. An order that the Respondent transfers the Korondo Jeep, holding registration number S443, currently held in his name, onto the Petitioner’s sole name.

1. Any other orders that this honourable court deems fit and proper in the circumstances of this case”.

3. In exercise of his right of reply to the petition, the Respondent, Robin Richemond also of Ma Constance, Mahe, Seychelles, in his pleadings raises a plea in limine litis and files an affidavit in reply, moving this court to dismiss the petition in its entirety, both on the plea in limine litis and on the merits of the petition, and awarding him cost.
4. The plea in limine litis raised by the Respondent which is the subject of this ruling are as follows;

“1. The Petition is bad in law and untenable in law in that it falls foul of the Matrimonial Causes Act (chapter 124) read with the Matrimonial Causes Rules SI 19 of 1993, specifically Rule 4, and

2. The Affidavit in support of the petition is defective and the defect is fatal to the Applicant’s application”.

5. Learned counsel representing the parties to this petition did tender their written submissions. One submitting for the plea in limine litis raised, the other submitting against the plea in limine litis raised.
6. As regards to the plea in limine litis raised by learned counsel for the Respondent that the petition is bad in law and untenable in law in that it falls foul of the Matrimonial Causes Act (Chapter 124) read with the Matrimonial Causes Rules SI 19 of 1993, specifically Rule 4, the gist of learned counsel’s submission on that point, is that for the relief being sought for by the Petitioner to be entertained, it ought to have complied with the statutory provisions of the Matrimonial Causes Act and the Matrimonial Causes Rules.
7. To make one thing clear from the outset, learned counsel for the Respondent needs to be reminded, that Section 8 of the Civil Code of Seychelles (Consequence of Enactment) Act 2021 repealed the Matrimonial Causes Act (Cap 109). Therefore, the Matrimonial Causes Act is no longer on our statute books. Nonetheless, Section 9(2) of the Civil Code of Seychelles (Consequence of Enactment) Act 2021, provides for the following statutory provisions;

“Subsidiary legislation made under the Matrimonial Causes Act in force at the commencement of this Act will continue in force under the Civil Code of Seychelles Act, 2020 (Act 1 of 2021) in relation to Matrimonial and en ménage causes”.

8. The subsidiary legislation made under the Matrimonial Causes Act is the Matrimonial Causes Rules, (“the Rules”), SI 19 of 1993. Therefore, on the face of the pleadings, the legal issues which this court is being called upon to consider and address, necessitates consideration of the relevant rules under the Matrimonial Causes Rules which are;

Rule 4 (1)

“Every application in a Matrimonial Cause for ancillary relief where a claim for such relief has not been made in the original petition, shall be by notice in accordance with Form 2 issued out of the Registry, that is to say, every application for;

(f) an order in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child”.  (The underlined emphasis is mine)

9. It is the contention of learned counsel for the Respondent, that the Petitioner has not complied with Rule 4(1), in that, the claim being one for ancillary relief in the form of a Property Adjustment Order, ought to have been made by notice in accordance with Form 2 under the Matrimonial Causes Rules. It is also the contention of learned counsel, that compliance with Rule 4(1) is mandatory, and therefore, noncompliance is fatal, in that, it renders the petition defective. Learned counsel cites the case of Gill v Film, Ansalt [2013] SLR 137 quoting the following extract from the case by Domah JA;

“The rationale behind the mandatory provision in the law and its strict interpretation lies in the court’s responsibility to assume control of the judicial process under the rule of law and introduce the degree of certainty required for the courts, the profession and the litigating public …. A court of law is a court of law and justice is to be administered according to law”

10. It is the submission of learned counsel, that it has been held “that non-compliance with the procedural law is a fundamental defect rather than a mere technicality, and that procedures cannot be allowed to go awry”.
11. The other plea in limine litis raised by learned counsel for the Respondent, is that the affidavit in support of the petition is defective for the reason that because affidavits are sworn evidence, they have to comply with the law of evidence for them to be admissible and that in the instant case it does not. Learned counsel cites a number of case law authorities on the point including the case of Daniella Lablache De Charmoye vs Patrict Lablache De Charmoye (Civil Appeal SCA MA 08/2019, SCSC 35 (17 September 2019) quoting Twomey CJ (as she then was) having said the following;

“Affidavit are sworn evidence and the evidential rules for admission cannot be waived”.

12. In its submissions, learned counsel submits, that it is not sufficient for an affidavit to simply contain averments in support of the application and that the law requires, that these averments have to be supported by evidence which have to be exhibited to the affidavit.
13. It is also submitted by learned counsel, that the legal requirements to exhibit evidence with affidavit in our procedural law is in line with Practice Direction 32 (Supplement CPR Part 32) 43(1) of the white book, and that such procedural law requirement was emphasized upon by Carolus J in MC 112/2020, MA 30/2021 and MA 31/2021 (arising in MC 11/2020 and MC 20/2021 Savoy Development Limited and Davia Todorova and Yuriy Nesterenko.
14. To further emphasise the point that averments in an affidavit has to be substantiated with the necessary evidence, learned counsel submits, that to be in compliance with Practice Direction 32 of the White Book, the deponent when producing documents must state “there is now shown to me marked the (description of the exhibit) and numbering of the exhibits”.
15. Hence, therefore, the essence of learned counsel’s submission that the affidavit in support of the Petitioner’s petition is defective, is that, he is of the view, that it contains averments that are not substantiated which he considers, as he put it, “simply blank averments”. Learned counsel goes on as to say that the purported documentary evidence which the Petitioner intends to tender in evidence as exhibits, having not properly been exhibited to the affidavit, cannot be admitted as evidence in support of the Petitioner’s petition.
16. In his written submission, learned counsel for the Petitioner, inter alia, submits, that the Petitioner seeks for relief under Rule 4(1) of the Matrimonial Causes Rules which gives her the right to file for ancillary relief which was not part of her divorce petition when she petitioned the court for divorce, and maintains, that the Petitioner is in compliance with the Rule, in that;

“4.

1. She has filed her petition in accordance to the requirement of Rule 3(1) of the Matrimonial Rules which states that;

Every Matrimonial Cause shall be commenced by filing a petition addressed to the Supreme Court.

2. That she has set out the ancillary relief that she is claiming before the court, namely, Adjustment for Matrimonial Property”.

17. In saying that, it is the submission of learned counsel, that the Petitioner’s petition is not bad in law, in that, it is in accordance with the provisions of Rule 4(1) of the Matrimonial Causes Rules.
18. Submitting against the proposition that the affidavit in support of the Petitioner’s petition for ancillary relief is defective, it is the submission of learned counsel, that the affidavit is not defective, in that, the Petitioner has from paragraph 3 to 20 of her affidavit marked as exhibits all the documents she intends to produce at the hearing of her petition. Learned counsel also submits, that those documents have been numbered accordingly.
19. I have given due consideration to the pleadings of both parties, and the submissions of counsels on the plea in limine litis raised by counsel for the Respondent in this matter. The stance taken by learned counsel for the Petitioner is that the Petitioner has filed her petition for a Matrimonial Property Adjustment Order as per the requirements of Rule 3(1) of the Matrimonial Causes Rules. It is thus pertinent to refer to Rule 3(1) that read as follows;

“Every matrimonial causes shall be commenced by filing a petition addressed to the Supreme court”.

20. Given that learned counsel for the Petitioner maintains that the Petitioner has filed her petition in accordance with the provisions of Rule 4(1) of the Matrimonial Causes Rules, it is also pertinent to refer to Rule 4(1) which is couched in the following terms;

“Every application in a Matrimonial Cause for ancillary relief where a claim for such relief has not been made in the original petition, shall be by notice in accordance with Form 2 issued out of the Registry, that is to say every application for …” (underlined emphasis is mine)

21. In the instance case, it’s an application under Rule 4(1) (f) of the Rules for “an order in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party…”.
22. I have given due consideration to the provisions of Rule 4(1) of the Matrimonial Causes Rules in the light of the parties’ stance that comes out of their pleadings and submissions. I note that Rule 4(1) is without any ambiguity, and that it is a mandatory provision making it an obligation for the Petitioner who seeks for such relief as in the instant case, to make it by notice in accordance with Form 2 issued out of the Registry of the Supreme Court. I have in the process, had sight of Form 2. I am not persuaded, that on facts laid before this court, the Petitioner has complied with Rule 4(1) of the Matrimonial Causes Rules. As such, I therefore find that the plea in limine litis raised by counsel for the Respondent that the Petition is bad in law and untenable in law in that it falls foul of Rule 4 of the Matrimonial Causes Rules has merit and therefore succeeds.
23. As regards to the plea in limine litis that the affidavit is defective, although I am in agreement with learned counsel for the Respondent that the affidavit has not fully comply with the Rules of evidence as well as Practice Direction 32 of the White Book, which based on our jurisprudence (as per the case law authorities cited by learned counsel for the Respondent) it ought to have been in full compliance, I am not persuaded that this is fatal to the Petitioner’s case. I say so, because the relief being sought for by the Petitioner, and most importantly, the outcome of the petition would have had to be decided after a full blown hearing rather than on affidavit evidence, and of course, if the petition was to be heard at a hearing, it would have been incumbent on the Petitioner to comply with the Rules of evidence in its attempts to prove its case. Therefore, the plea in limine litis that the affidavit is defective and that the defect is fatal to the Petitioner’s petition fails.

 

Signed, dated and delivered at Ile du Port on 7 February 2024.

 

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Adeline J