Charles v Charles (1 of 2003) (1 of 2003)  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
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
 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.
 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
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.
 On 31 January 2003, Alleear CJ concluded the matter by awarding the Appellant a sum of SR125,000 made up as follows:
SR25,000 for “direct monetary contribution” and
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.”
 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;
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;
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.”
 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.
 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.
 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.
 It is necessary to record at this stage that at the trial, both parties gave evidence. They both did not call any witnesses.
 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.”
 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.”
 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.
 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.
 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 …”
 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.
 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.”
 It is essential to recall from paragraph  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  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.
 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  above. It is this award that has caused the Appellant a lot of unhappiness. She maintains to this day that she was short – changed.
 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)?
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.
 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 –
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
 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.
 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  141 in which again the facts were substantially similar to the facts in the instant case.
 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.
 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.
 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  above, however, the appellant failed to make regular contributions. Her ratio of contributions must therefore be less than 40%.
 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.
 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  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  hereunder. That is as it should be.
 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.
 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.
By consent each party shall pay half of the costs of the valuer or quantity surveyor in question.
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.
By consent, and in the event of the order (4) above being carried into effect, the Appellant shall vacate the matrimonial house in question.
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.
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.
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
I concur: ………………………….
JUSTICE OF APPEAL
I concur: ………………………………
J. M. HODOUL JUSTICE OF APPEAL
Delivered at Victoria, Mahe this 23rd day of June 2005