Quatre & Anor v Madeleine & Ors (MA 29 of 2024 (Arising in MC 84 of 2023)) [2024] SCSC 61 (17 May 2024)

RULING

CAROLUS J

1. On 6^th November 2022, the applicants filed an application in MC84/2023 against the respondents for rectification of the Land Register under section 89 of the Land Registration Act, Cap 107. The applicants aver that land title C1417 was owned by their grandmother the late Acely Brutus nee Marie from whom their father the late Philip Rameau Justin Marie together with his three siblings inherited the land in equal shares. Philip Rameau Justin Marie died unmarried on 23^rd May 2009, but the applicants’ paternity was only recognised after his death by court order dated 26^th September 2022. In the meantime, an Affidavit on Transmission by Death dated 12^th August 2009 was registered on 18^th August 2009 registering the following persons as co-owners of C1417 in the following shares: Willish Antoine Madeleine (1/8 share); Sylvie Anne Marie Madeleine (7/32 share); Nicole Lidwyn Marie Chantale Telma Madeleine (7/32 share); Chantale Telma Madeleine (7/32 share); and Jean Paul Gervais Madeleine (7/32 share). The applicants not having been declared as the children of Philip Rameau Justin Marie at the time were excluded from the affidavit on transmission by death and were consequently not registered as co-owners of C1417. They claim that as his heirs they are entitled to a half share of C1417 and are now seeking for the rectification of the Land Register to reflect the same.

2. It is to be noted that the address of the 1^st to 5^th respondents as stated in the application is “C/o Lydiann Mathiot of La Gogue, Mahe, Seychelles”. MA84/2023 was called before the court for the first time on 22^nd November 2022, and according to the return of service for that date the application had been served on the respondents by delivering a true copy thereof on the Land Registrar (6^th respondent) and Sylvie Madeleine (1^st respondent) on her own behalf as well as on behalf of the 2^nd, 3^rd, 4^th and 5^th respondents. Ms Vel who was standing in for Mr Hoareau counsel for the 1^st respondent, stated that she had been instructed that the 2^nd to 5^th respondents lived outside the jurisdiction in Canada, and enquired as to whether they had been served, whereupon Mrs Amesbury counsel for the applicants was advised to file a motion for service out of the jurisdiction.

3. On 14^th February 2024 the applicants filed the present motion (MA29/2024 arising out of MC84/2023), for substituted service on the 2^nd, 3^rd, 4^th and 5^th respondents pursuant to sections 42 & 43 of the Seychelles Code of Civil Procedure (“SCCP”). In terms of the motion they seek the following orders:

1. That this motion be heard as a matter of extreme urgency.

2. Make an order granting leave to the Applicants to affix the summons on the outer door of the house or place or place of business on 2^nd to 5^th Respondents and a copy thereof in some conspicuous part of the Court House as per section 42 of the Seychelles Code of Civil Procedure.

3. An Order from the Court declaring that summons have been served as per section 43 of the Seychelles Code of Civil Procedure.

4. An Order that after the Applicants have complied with sections 42 and 43 to declare that 2^nd to 5^th Respondents have been served and to proceed in the absence of the 2^nd to 5^th Respondents.

5. The issue a prohibition order as a matter of urgency prohibiting any and all dealing on land Title C1417.

6. To make any other order that the court deems fit in the circumstances of this case.

4. The motion is supported by an affidavit sworn by the applicants on 14^th February 2024 before Notary Public Lucie A. Pool, and a number of documents. They aver that despite their best efforts they are unable to contact the 2^nd to 5^th respondents, and that their efforts to get the 1^st respondent to assist them in that regard have also been unsuccessful.

5. The applicants aver that on 17^th April 2023, a letter was written to the Notary and Attorney-at-Law named on the Affidavit on Transmission by Death drawn up by the 1^st respondent, informing him that they had been declared by the Supreme Court as the heirs of Philip Rameau Justin Marie and are entitled to be registered as co-owners together with the other persons already registered as such, of parcel C1417. A letter dated 17^th April 2023 addressed to Mr Basil Hoareau and signed by Mrs Alexia G. Amesbury is exhibited in support. The applicants also aver that enclosed with the letter was the Court Order dated 26^th September 2022, their birth certificates, the Affidavit on Transmission by Death, the Affidavit sworn by them claiming their rightful share of parcel C1417 and the response of the 2^nd respondent refusing to register their share of the property in their names. They aver that the letter of 17^th April 2023 further requested that such evidence be used to rectify the omissions made in the 1^st respondent’s Affidavit on Transmission by Death so that they could claim their share of parcel C1417. They aver that to date, the respondents are yet to respond to the letter, and that nothing has been done to enable them to claim their share of the property.

6. The applicants further aver that all attempts at contacting the 1^st to 5^th respondents at their last known address and through counsel for the 1^st respondent have been unsuccessful. Based on the information provided by Ms Vel at the sitting of this Court on 22^nd November 2022 that as per her instructions the 1^st to 5^th respondents were living in Canada, counsel for the applicants tried to obtain assistance from the Ministry of Foreign Affairs in order for service to be effected on them. Exhibited are email correspondence between Mr Travis Payet, Second Secretary, Ministry of Foreign Affairs and Tourism and the Seychelles Consul in Canada as well as WhatsApp messages between counsel for the applicants and Mr Travis Payet. The Seychelles Consul in Canada stated in his email dated 13^th February 2024 that “[j]e confirme ne connaître, ni avoir entendu parler des personnes en question”, the “personnes en question” being the 2^nd to 5^th respondents.

7. In the circumstances, the applicants aver that they seek an order for “substituted service on the 2^nd to 5^th Respondents by service at the last known address or placing a copy of the Application in a Public place on the Court premises”.

8. The normal mode of service in Seychelles is provided under section 34 of the SCCP which provides:

1. 1. 1. 34. Service of the summons shall be effected by delivering or tendering a copy thereof to the defendant personally, or if he cannot be found, to any member more than sixteen years old of the family of the defendant residing with him, or to any agent or manager of the defendant at the place where he carries on his business.

9. The order for substituted service in the present motion is sought under sections 42 and 43 of the SCCP, which provides for such service in Seychelles where service under section 34 cannot be effected, in circumstances where “… the defendant cannot be found and there is no agent empowered to accept service on his behalf, nor any other person on whom service can be made, or if the defendant is keeping out of the way for the purpose of avoiding service”. Sections 42 and 43 provide as follows:

1. 1. 1. 42. If the defendant cannot be found and there is no agent empowered to accept service on his behalf, nor any other person on whom service can be made, or if the defendant is keeping out of the way for the purpose of avoiding service, it shall be sufficient service to affix the summons on the outer door of the house or place of business of such defendant and a copy thereof in some conspicuous part of the Court House.

1. 1. 1. 42. When service has been made in the manner mentioned in section 42 and the defendant does not appear on the day stated in the summons, the court may either, after making such inquiry as appears, to be necessary, declare the summons to be served and proceed in the absence of the defendant, or give such further order as to service as to the court may seem fit.

10. It would seem from a reading of section 42 that an order could be made in terms of that section in the circumstances of the present case as “the defendant cannot be found and there is no agent empowered to accept service on his behalf, nor any other person on whom service can be made”. However it is clear that the 2^nd to 5^th defendants are not living in Seychelles and have not done so for many years and that any order for substituted service in Seychelles under section 42 will more likely than not, be futile. The purpose of service to the 2^nd to 5^th respondents is to give notice of the proceedings in MC84/2023 against them, and the chances of them getting such notice by way of substituted service is minimal as they do not live in Seychelles. Unless a person in Seychelles who knows the location of the 2^nd to 5^th defendants becomes aware of the proceedings in MC84/2023 by service effected by way of such substituted service informs them of the same, the purpose of such substituted service – which is to give notice of the proceedings in MC84/2023 against them – will be defeated. There is no guarantee that substituted service in Seychelles will have the desired outcome.

11. The SCCP makes provision for service out of the jurisdiction in sections 47 to 51 for persons living outside Seychelles. Section 47 provides for leave of court to be obtained for service out of jurisdiction and provides in relevant part as follows:

1. 1. 1. 47. (1) No summons in civil and commercial suits shall be issued or served upon any defendant, whether a citizen of Seychelles or not, outside the jurisdiction of the Supreme Court, without leave of the court.

(2) Service of such summons shall be effected out of Seychelles in the same way as the summons in a suit is required to be served in the country, colony or jurisdiction in which the service is to be effected and proof of such service having been effected, when required by the Supreme Court, shall be given in the manner provided by the law in force in such country, colony or jurisdiction.

(3) Where the defendant is not a citizen of Seychelles the summons shall not be served upon him, but notice thereof shall be given to him; such notice in lieu of service shall be in the form set out in Schedule C and shall be given in the manner in which a summons is served.

12. Section 52 of the SCCP further provides that service of summons or notice thereof out of the jurisdiction shall be made personally but that the Court may make an Order for substituted service out of the jurisdiction where it is satisfied that reasonable efforts have been made to effect personal service and that such efforts have not been successful. Section 52 is reproduced below:

1. 1. 1. 52. The summons shall be served personally on the defendant; but the court on being satisfied that reasonable efforts have been made to effect personal service thereof may, on the application of the plaintiff, make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may seem just.

Such application shall be supported by an affidavit setting forth the grounds upon which the application is made. The order made under this section shall specify the time after the substituted or other service has been effected, or after the publication of the notice by advertisement or otherwise, within which the defendant is to appear to answer the claim: such time shall be limited as specified in section 50.”

Underlining is mine.

13. It is clear that since the applicants have no knowledge of the whereabouts of the 2^nd to 5^th respondents, personal service on them out of the jurisdiction would be impossible. What remains is “substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may seem just”, as provided for in section 52 of the SCCP. Although the manner in which substituted service may be effected out of jurisdiction is not provided for in the SCCP, substituted service within the jurisdiction is provided for in section 42 of the SCCP the relevant part of which reads as follows: “… it shall be sufficient service to affix the summons on the outer door of the house or place of business of such defendant and a copy thereof in some conspicuous part of the Court House” (see paragraph [9] hereof. Section 52 also allows “substitution for service of notice, by advertisement or otherwise, as may seem just”. However even such modes of service present difficulties given that the applicants do not even know which country the 2^nd to 5^th respondents are living in.

14. Another difficulty in granting this application is that in the motion the applicants seek “an order granting leave to the Applicants to affix the summons on the outer door of the house or place or place of business on 2^nd to 5^th Respondents and a copy thereof in some conspicuous part of the Court House as per section 42 of the Seychelles Code of Civil Procedure” (paragraph b) of motion), and in their supporting affidavit pray for an order for “substituted service on the 2^nd to 5^th Respondents by service at the last known address or placing a copy of the Application in a Public place on the Court premises”. However they do not provide the address of “the house or place or place of business on 2^nd to 5^th Respondents” at which the Application is required to be affixed in terms of section 42. It is to be noted that under section 42 the Application is required to be affixed on the outer door of the house or place of business of the respondents in question as well as in some conspicuous part of the Court House and not in only one of these places.

15. In the circumstances this Court finds itself unable to order substituted service on the 2^nd to 5^th respondents as requested. The applicants must find other means to ascertain the whereabouts of the 2^nd to 5^th respondents, after which they can make the appropriate application.

16. As for the application for this Court to issue a prohibition order as a matter of urgency prohibiting any and all dealing on land Title C1417, not only have the applicants not stated under which legal provision this is being sought, but most importantly they have not set forth any grounds on which they seek such order, and have therefore failed to satisfy the court that such order is necessary.

17. Accordingly the motion is dismissed.

Signed, dated and delivered at Ile du Port on 17^th May 2024

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E. Carolus J