Charles v Charles (1 of 2003) (1 of 2003) [2005] SCCA 13 (22 June 2005);






IN
THE SEYCHELLES COURT OF APPEAL





Civil
Appeal No: 1 of 2003








In the matter between





MARIE
DANIELLA CHARLES
Appellant





Versus





JASON
EMMANUEL CHARLES
Respondent





[Before:
Ramodibedi, P., Renaud JA, and Hodoul JA


=========================================================


Heard
on:
10 June 2005


Judgment
delivered on:
23
June 2005





Ms. K. Domingue for the Appellant


Mr.
C. Lucas for the Respondent








JUDGMENT








RAMODIBEDI,
P.






[1] It is a matter
of regret, as this appeal illustrates, that what admittedly started
off as a happy love affair, followed by a fairy-tale
marriage between
the parties, should end in a nasty cutthroat litigation. The central
point at issue is settlement of matrimonial
property following
divorce between the parties. The bone of contention has in turn
focused on particular property described as a
parcel of land V7292
and a house thereon situated at English River, Mahe (hereinafter
referred to as “the house”). It
is common cause that
this house is owned jointly by both parties. In this regard, it is
further common cause that it is jointly
registered in their
respective names and that it bore a market value of 1.1 million
rupees as at the date of judgment in the court
below (Alleear CJ) on
31 January 2003.







[2] At the outset, I
am bound to observe that the marriage between the parties lasted for
a period of twenty-two (22) years. This
is common cause. On 29 May
2002, however, the Respondent filed a petition in the court below in
which he sought relief in the following
terms:-







“(i) grant
the Petitioner a dissolution of the said marriage; and




  1. order a
    settlement of the matrimonial property.”








The petitioner cited
irretrievable break-down of the marriage as a ground for such
dissolution. By consent of the Appellant, a decree
nisi (divorce)
was duly granted by Alleear CJ on 14 June 2002 and confirmed on 6
August 2002. Thereafter the parties contested the
issue of the
matrimonial settlement.







[3] On 31 January
2003, Alleear CJ concluded the matter by awarding the Appellant a sum
of SR125,000 made up as follows:








  1. SR25,000 for
    “direct monetary contribution” and



  2. SR100,000 for
    “services”.








The Learned Chief
Justice concluded his judgment in the following terms:-






The
said sum is to be paid to the Respondent within six months from
today’s date. Upon payment of that sum the Respondent is
to
convey the title of the property in the sole name of the petitioner,
failing which the order of the court will entitle the petitioner
to
have the property registered in his sole name.”







[4] The Appellant
challenges the correctness of that judgment on the following grounds
which require quotation in full in order to
appreciate the true
nature of the contest:-






1. The
Learned Trial Judge erred in holding that the Respondent was able to
build a house now worth over a million rupees with the
financial
support of his brother, a Government Minister and other friends who
assisted him in kind when it never came out in evidence
that the
Respondent’s brother was a government Minister who had given
the Respondent any financial assistance;







2. The Learned
Trial Judge erred in holding that the Appellant made some minimal
contribution to the running of the household expenses
and erred in
failing to take into account that the Appellant gave evidence that
she and the Respondent pooled their salaries together
to pay for the
household expenses;








  1. The Learned
    Trial Judge erred in holding that the direct monetary contribution
    of the Appellant to the construction of the matrimonial
    home amounts
    to Rs24,557.40 as per the invoices produced by the Appellant as
    opposed to taking into account that for many purchases
    the Appellant
    would not have kept invoices and that she had pooled her salary
    together with that of the Respondent;







4. The
Learned Trial Judge erred in holding that the Appellant’s
services as wife and mother during 22 years of marriage was
only
worth Rs100,000;







5. The Learned
Trial Judge erred in holding that upon payment of Rs125,000 the
Appellant is to convey the title of the property in
the sole name of
the Respondent;








  1. The Learned
    Trial Judge erred in holding that the legal presumption that one
    co-owner is the proprietor in equal share of the property
    with the
    other co-owner can be rebutted as opposed to decided authorities and
    the trend of the Court to vary property rights held
    by one party and
    adjusting it to the benefit of both parties hence giving effect to
    the maxim “equality is equity”.








7. The Learned
Trial Judge erred, after citing an authority and without
distinguishing the facts of this case from that cited without
further
explanation, in awarding the Appellant Rs25,000 for direct monetary
contribution and Rs100,000 for services as a wife and
mother.”







The relief sought by
the Appellant is in turn couched in the following terms:-






An
order varying the order of the Learned Trial Judge from awarding the
Appellant Rs125,000 for her contribution and services to a
one-half
share in parcel V7292 and the construction thereon.”







[5] In my view,
these grounds of appeal may conveniently be divided into two parts.
Ground No. 1 raises, albeit in a subtle way,
the question of a wrong
perception of facts by the trial court based on its prior knowledge
that the Respondent’s brother is
a Government Minister. In
this regard it is indeed pertinent to observe that nowhere does the
record reveal any mention that the
Respondent’s brother is a
Government Minister. Mr. Lucas for the Respondent has very
fairly and properly conceded this point. The statement by the trial
court in this connection is thus
unfortunate. It’s prejudicial
effect to the Appellant is self-evident in the circumstances of this
case. It is a painful
reminder of the need to heed the age-old
principle that, save for a proper judicial notice, judicial officers
should always refrain
from bringing their own personal knowledge of
facts into litigation. One can only hope that it shall never be
necessary to comment
again on this issue in future.






Grounds
2 to 7 on the other hand seek to convey that the trial court erred
both on the facts and in law in arriving at the judgment
that it did.
These latter grounds will thus be considered together but before
doing so, it is necessary at this stage to say something
about the
relevant facts of the case.










[6] The salient
background facts to this appeal can be shortly stated as follows:-







The parties were
married to each other by civil rites on 2 December 1978 at English
River, Mahe, Seychelles. There are two children
of the marriage
although, strictly speaking, the first child was born prior to the
marriage. Both these children, who are girls,
had already reached
the age of majority at the time of the litigation in the court below.







[7] In 1992, the
parties who were both employed at that stage bought the disputed
parcel of land V7292 and proceeded to build the
house forming the
subject matter of this dispute. They were able to do so by means of
a loan, which they jointly obtained from SHDC.
The loan in question
amounted to R150,000.







[8] It is necessary
to record at this stage that at the trial, both parties gave
evidence. They both did not call any witnesses.







[9] In his evidence
in chief, the Respondent testified that he alone bought the disputed
parcel of land V7292 and that he alone applied
for and obtained a
loan of R150,000 from SHDC. He further sought to convey that he
alone constructed the house in question using
“a mountain of
aggregate and crusher dust” which was a personal gift for him
alone to the exclusion of the Appellant
despite the fact that they
were already married to each other at that stage. Asked by his own
counsel, Mr. Lucas, whether the Appellant contributed in any
way towards the household needs such as food and payment of bills,
the Respondent’s
trademark answer was “I will say very
few
bits and pieces. I contributed all the
goods and I took care of the children.”







[10] It was the
Respondent’s case that he was able to do all of the above
because he was always in the employment of Air Seychelles
at the
material time. He was then asked a pertinent question by his own
counsel:







“Q: How
much were you earning in those days in 1993?







A: I was bringing
home
about SR6,100 at that time. I was drawing a salary
of SR6,100 and then of course that will be the deduction of the loan
which bring
(sic) the SR6,100 down.”







[11] It is the case
for the Respondent that on 9 August 1999, the Appellant left the
country without his knowledge and went to live
in England for two
years and three months. She came back in 2001. She did not
contribute anything towards the household needs during
that time.
According to the Respondent, the Appellant was unemployed for a total
of six years.







[12] For her part,
the Appellant testified that she was aged 45 years. She confirmed
that at the time of her marriage to the Respondent
she was working at
Abbey Valabhji earning R1,400 per month. She left in 1979 and joined
P & J in 1980. Her salary from 1986
to 1987 was R1,700.
Thereafter she joined SMB, initially earning a salary of R2,100. She
worked there for 6 to 7 years. Her latest
salary was R2,700 per
month.







[13] It was
Appellant’s case that at the end of each month “we put
our salaries together, from there we deducted all the expenses that
we had to pay and the money left we deposited on
our joined account
which he (the Respondent) asked me to open.”
The parcel of
land V7292 was purchased with funds from this joint account.
Thereafter, she added, “we both sought for a loan for us to
build the house. The housing loan was on (sic) our joint names …”







[14] Regarding
building materials donated by Respondent’s brother, the
Appellant was adamant that this donation was for both
of them as a
happy family then. The Respondent’s brother never singled out
the latter for such donation.







[15] Asked how much
she believed she was entitled to in the matrimonial property, the
Appellant testified as follows: “I think I should get a
fair share which is half.”







[16] It is essential
to recall from paragraph [8] above that both the Appellant and the
Respondent did not call any witnesses. After
seeing and hearing the
evidence of the litigants themselves, the trial court made crucial
credibility findings in favour of the Respondent
in the following
terms:-






In
a nutshell, the evidence which has been adduced on behalf of the
parties and which I find credible and acceptable tends to show
that
it is the petitioner who paid for all the household bills and
expenses, brought provisions needed to maintain his family, in
addition to repaying the housing loan.”







As is obvious from
the Appellant’s second ground of appeal set out in paragraph
[4] above, these findings are challenged on
the basis that the
parties pooled their salaries together in order to pay for the
household expenses. The difficulty with this version,
however, is
that the Appellant failed to produce bank documents such as deposit
slips to substantiate her allegation. She was disbelieved
on the
point and in the absence of proof, coupled with the fact that there
is no suggestion that the trial court misdirected itself
in any way
on this issue, this Court should be loath to interfere with
credibility findings of the trial court.







[17] Another crucial
finding made by the trial court was that the Appellant’s own
contribution towards the running of the household
expenses was
“minimal”. Her direct monetary contribution as supported
by invoices amounted to R24,557.40 and the trial
court credited her
with R100,000 for her services, thus making a total of R125,000 as
set out in paragraph [3] above. It is this
award that has caused the
Appellant a lot of unhappiness. She maintains to this day that she
was short – changed.







[18] The difficulty
with the trial court’s approach, in my judgment, is that by
awarding a total of R125,000 only to the Appellant
the court in
effect awarded the Respondent 1.1 million rupees being the market
value of the disputed house minus R125,000 = R975,000.
In my book,
that represents a whopping 88.64% for the Respondent and, by
contrast, a paltry 11.36% for the Appellant. By so doing
the trial
court clearly erred and thus misdirected itself in a material respect
in that it restricted the Appellant’s share
to her actual
contributions while at the same time crediting the Respondent with a
share for the whole of the appreciated value of
the house and not
just his actual contributions. By contrast, the trial court made no
effort to determine the monetary value of
the Respondent’s own
contribution. Once again this was a material misdirection. After
all, evidence shows that the house
was built in 1992 using a loan of
R150,000. The market value of 1.1 million rupees clearly represented
no more than appreciation
with the passing of time. This point was
driven home by the Respondent himself as recorded on page 55 of the
record of proceedings.
Miss Domingue for the Appellant asked
him the following pertinent question in cross-examination:-






Q: What
you are trying to say is you did not contribute 1 million (rupees)
although it (the house) is worth 1 million (rupees)?







A: Yes.”







It is hardly
necessary to state then that as the co-owner, the Appellant is
entitled to a share in the appreciated value of the house.

Similarly, if the house depreciates, she is thereby affected equally.







In the light of this
substantial misdirection by the trial court, this Court is now at
large to determine the matter afresh.







[19] I turn then to
the applicable law. At the outset, it will be recalled that the
house in question is jointly registered in the
names of both parties
to the dispute. That being so, it is necessary, in my view, to take
into consideration the provisions of s.
20 (a) of the Land
Registration Act 1967 (Cap. 107). This section provides:-







“20.
Subject to the provisions of this Act –








  1. the registration
    of a person as the proprietor of land with an absolute title shall
    vest in him the absolute ownership of that land,
    together with all
    rights, privileges and appurtenances belonging or appurtenant
    thereto.”








In my view,
therefore, both parties are vested with absolute ownership of the
house in question. It follows, in my judgment, that
such ownership
is in equal shares as this would accord with the intention of the
parties. Bearing in mind that they registered the
property in
question during the height of their love affair, probabilities are
overwhelming, in my view, that the parties intended
co-ownership in
equal shares. In this regard, it must always be borne in mind that
what matters is the intention of the parties
at the time when they
registered the matrimonial property and not at the time of divorce.







Article 815 of the
Civil Code (Cap. 33), in my judgment, also supports the proposition
that the Appellant as co-owner is entitled
to an equal share of the
matrimonial house in question as a starting point. That Article
reads as follows:-







Co-ownership
arises when property is held by two or more persons jointly. In the
absence of any evidence to the contrary it shall
be presumed that
co-owners are entitled to equal shares.”







At any rate, I
consider that the Respondent’s evidence relating to his
repayment of the loan in question and his general contributions
fell
short of rebutting the presumption of co-ownership of the house in
question by the parties. See Edmond v Edmond SCA No. 2 of 1996.







The Matrimonial
Causes Act 1992







[20] In its turn,
the Matrimonial Causes Act 1992 (“the Act”) makes
provision for settlement of matrimonial property in
s. 20 (1) (g)
thereof in the following terms:-







20.(1)subject
to section 24, on the granting of a conditional order of divorce or
nullity or an order of separation, or at any time
thereafter, the
court
may, after making such inquiries as the
court thinks fit and having regard to
all the
circumstances of the case, including the ability
and financial means of the parties to the marriage –











.



.



.







(g) make such
order, as the court thinks fit, 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.”
(Emphasis supplied).







The use of the word
“may” in this section confers a discretion on the court
to make an appropriate order of settlement
of matrimonial property.
That, as it seems to me, however, is not an arbitrary discretion. On
the contrary, it is a judicial discretion
that must be exercised
after due consideration of all the relevant factors. Although such
factors are not, and need not be circumscribed,
it is nevertheless
pertinent to bear in mind that the court is enjoined by s. 20 (1) (g)
of the Act to take into account the ability
and financial means of
the parties to the marriage “for the benefit of the other
party” thereof.







The principle
underlying this section is, in my judgment, one of equity designed,
as it does, to ensure that no party to a settlement
of matrimonial
property shall remain destitute while the other party drowns in a sea
of affluence so to speak. In this regard, it
is salutatory to bear
in mind what this court said in Renaud v Renaud SCA No. 48 of 1998
namely:-







The
purpose of the provisions of these subsections (i.e. 20 (1) (g) of
the Act) is to ensure that upon the dissolution of the marriage,
a
party to the marriage is not put at an unfair disadvantage in
relation to the other by reason of the breakdown of the marriage
and,
as far as such is possible, to enable the party applying maintain a
fair and reasonable standard of living commensurate with
or near to
the standard the parties have maintained before the dissolution.”







See also Bresson
v Bresson SCA 29 of 1998
.







[21] It is salutary,
further, to note that in Edmond v Edmond (supra) which bore
remarkable similarity to the present case, this Court upheld the
Supreme Court order that the matrimonial home
of the parties be held
in equal shares. The same approach was taken by the Supreme Court
itself in Florentine v Florentine, Seychelles Law Reports [1990]
141
in which again the facts were substantially similar to the
facts in the instant case.







[22] In Lesperance
v Lesperance SCA No. 3 of 2001
, this Court laid down the
principle that there must be equality of treatment in cases based on
similar facts and thus ordered the matrimonial property in
question to be held by the parties in equal shares. That remains a
sound principle.
One must, however, guard against elevating the
principle of equality above the statutory discretionary power given
to the courts
in s. 20 (1) (g) of the Act to make appropriate
matrimonial property settlements according to the justice of each
individual case.
This is more so since in practice it is, in my
judgment, hard to imagine any two cases being exactly “similar”
or identical.







On this approach
therefore, I would lay it down as a general principle that equality
of shares in cases such as this one must obviously
be considered as a
starting point for the Court in making a determination under s. 20
(1) (g) of the Act.







Incidentally, this
Court in Lesperance v Lesperance ordered that the matrimonial
property in question be held in equal shares. This, despite the fact
that the property in question
had been purchased by the respondent
husband “in his own name and with his own monies”. He
had financed the construction
of the house from his own savings. The
contribution of the appellant wife was confined to raising the
children, maintaining the
family and helping physically in the
construction of the house while at the same time providing
secretarial assistance to the respondent
husband who operated an
electrical business until he employed a full-time secretary.







[23] The conclusion
that the parties hold the house in question in equal shares does not,
however, dispose of the matter in the special
circumstances of the
case. This is so because that house is but only part of the entire
matrimonial property. The Court is enjoined
by s. 20 (1) (g) of the
Act to make such matrimonial property adjustment as is fair and just
in the circumstances of the case. In
this regard, it is to be
regretted that the trial court once again failed to make any findings
as to the value of the entire matrimonial
property apart from the
house in question. This must always be undertaken as failure to do
so may sometimes lead to a miscarriage
of justice. Happily, however,
this Court has sufficient evidence on record to dispose of the
matter.







[24] It is a glaring
feature of this case that during the material time in her employment,
spanning for 13 years, the Appellant has
always earned in the region
of R2000 per month. Indeed the trial court found that she was
earning the same amount in her current
job as a child minder. By
contrast, the Respondent who has been in employment for the entire 22
years of the parties’ marriage
has always earned a salary in
excess of R6000 per month. In my calculation, therefore, the ratio
in the earning power of the Respondent
and the Appellant is 3 to 1 or
60% to 40% respectively. That in turn would represent, assuming each
party made his/her contributions
regularly, the ratio of the parties’
contributions towards the matrimonial property as a whole. As
indicated in paragraph
[16] above, however, the appellant failed to
make regular contributions. Her ratio of contributions must
therefore be less than
40%.







[25] There is
another material consideration to bear in mind at this juncture, and
this is no doubt a factor that distinguishes this
case from
Lesperance v Lesperance as is the fact that the Appellant’s
overall contribution was “minimal”. It is this. At the
trial, the parties
agreed that all the movable property other than a
certain motor vehicle should go to the Appellant. The trial court
recorded this
fact in its judgment in the following terms:-







Happily,
the petitioner and the respondent are not fighting over the movables,
namely the motor vehicle and the furniture in the house.
The
petitioner is willing to give away all the pieces of furniture in the
house to the respondent. The latter concedes that the
motor vehicle
is owned exclusively by the petitioner.”







Although there is
surprisingly no evidence as to the value of the movables in question,
the official inventory filed of record on
17 September 2003 shows
that these were indeed substantial. The inventory itself runs to
five (5) pages of itemised pieces of movable
property. It follows
that the Appellant’s share in the matter must regrettably take
a further knock for the worse. This is
more so since the Appellant
admittedly spent more than two years in England during which time she
did not make any contribution to
the household needs.







[26] All things
being considered, I have come to the conclusion that the most
equitable adjustment order to make is that the parties’
share
in the house in question should be 65% for the Respondent and 35% for
the Appellant. As will be recalled from paragraph [18]
above, this
in turn represents an increase of 23.64% from the award granted by
the trial court to the Appellant. The Court takes
this opportunity
to commend the parties for having graciously consented to some of the
orders as reflected in paragraph [28] hereunder.
That is as it
should be.







[27] Before
concluding this judgment, it is necessary to say that, bearing in
mind the length of time since the last evaluation was
made, this
Court can therefore no longer be sure that the market value of the
disputed house still stands at 1.1 million rupees as
it was in 2003.
It may well be that the house has either depreciated or appreciated
with the passage of time. It is thus necessary,
and indeed in the
interests of justice, to make such order as would take this
consideration into account more especially as both
parties have no
objection to the proposed order.







[28] In the result,
the appeal partly succeeds and partly fails. The trial court’s
order awarding the Appellant R125,000 for
her contribution and
services is set aside and replaced with the following order:-







(1) It is ordered
that the parties’ share in the matrimonial house in question
shall be 65% for the petitioner (now Respondent)
and 35% for the
respondent (now Appellant).







(2) A new valuation
of the matrimonial property, namely, the matrimonial house and land
title V7292 situated at English River, Mahe
must be undertaken by the
same valuer or quantity surveyor who did the valuation at the trial.








  1. By consent each
    party shall pay half of the costs of the valuer or quantity surveyor
    in question.









  1. This Court confirms
    the order of the trial court as herein amended to the extent that
    upon payment by the petitioner (now Respondent)
    of the Appellant’s
    share (35%) in the matrimonial house in question within six months
    of the valuation referred to in the
    order (2) above, the Appellant
    must convey the title of the property in the sole name of the
    petitioner (Respondent), failing which
    this order will entitle the
    petitioner (Respondent) to have the property registered in his sole
    name.









  1. By consent, and in
    the event of the order (4) above being carried into effect, the
    Appellant shall vacate the matrimonial house
    in question.









  1. By consent, and in
    the event of the petitioner failing to pay the Appellant’s
    share as in order (4) above, the Appellant shall
    be entitled to pay
    the petitioner’s share of 65% within six months after the date
    of the petitioner’s failure to pay.









  1. By consent, and in
    the event of the Appellant failing to pay the petitioner’s
    share as in order (6) above, the property in
    question shall be sold
    by court auction at the instigation of either party and the proceeds
    of the sale thereof shall be distributed
    in terms of the formula 65%
    for the petitioner (Respondent) and 35% for the Appellant.









  1. As each party has
    enjoyed both success and failure, and this being a family dispute,
    there shall be no order as to costs.










…………………………


M. M.
RAMODIBEDI


PRESIDENT








I
concur: ………………………….


B.
RENAUD


JUSTICE
OF APPEAL








I
concur: ………………………………


J.
M. HODOUL JUSTICE OF APPEAL






Delivered at Victoria, Mahe this 23rd day
of June 2005