IN THE SEYCHELLES COURT OF APPEAL

SCA No. 11 of 2004

In the matter between

PETER MAESCHIG Appellant

and

PATRIC PHILIP COLLING Respondent

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

(Before: RAMODIBEDI, P; BWANA, JA; HODOUL JA)

Heard on: 17 November 2005

Judgment delivered on: 25 November 2005

Counsel: Mr. C. Lablache for the Appellant

Mr. R. Valabhji for the Respondent

J U D G M E N T

BWANA JA.

1. The present Respondent, Patric Philip Colling, filed a suit in the Supreme Court sometime in the year 2000. By then he was still a minor. He was then represented by his step father, one Burkhard Beine as well as his mother and legal guardian, Mrs. Silvarani Colling-Beine. He sued two defendants. He won that case. Now one

of the defendants, Peter Maeschig has appealed to this Court raising a number of what he refers to as errors and misconceptions contained in the judgment of the trial judge. The Appellant therefore asks

this Court to quash those findings of the trial court, with costs.

2. A chronological analysis of the events leading to this suit may help to  give the required background. The Respondent’s father, one Wilfred Colling, a German citizen, died testate in Germany in 1993. Several properties were bequeathed to the Respondent both in Germany and here in Seychelles. We are interested in the latter. Wilfred left a Will in which the following paragraphs are relevant

to this appeal.

2.1 Para III: In favour of my son, I hereby make the following preferential legacy: My son shall receive my estate at the Seychelles i.e. the Villa Ulli

in Mahe, Glacis.

Para V: I hereby order the execution of the Will and appoint my brother, Ebenhard Colling as executor. In case he should or could not accept the office, the Probate Court of Dusseldorf shall appoint a substitute.

Para VI: Being an administrative enforcement, the execution of the Will shall cover the whole estate as well as the preferential legacy for my son. It will end on my son’s 30^th birthday. In exercising his office, the executor shall obey my subsequent instructions as far as it is legally and factually admissible.

Para VII: … with regard to my estate at Seychelles, I wish that the house shall

not be sold and that my son shall have the use of the house …

2.  
   

   2.  The said son, now the Respondent, was born on 20 October 1982. So at the time of the
      
      death of his father, he was still a minor.

3. In 1995 the District Court of Dusseldorf replaced Ebenhard with Thomas Jung, as the executor of the estate. Two years later, Mr. Jung entered into what was to be known as “the Utilization Agreement” with the Appellant acting jointly with his wife, Christina Maeschig. Under the said Agreement, the following terms

and conditions were agreed upon:-

3.  
   
   
   

   1.  Peter and Christina Maeschig (the couple) were allowed by the executor the sole use of the Villa Ulli on condition that they allow the executor a few days annually to stay at the premises. The couple was to meet all fixed and current costs to the property, including repairs, taxation, insurance and the like.




 

3.  
   
   
   

   2.  The couple was however, to make a commitment couched in the following words (!):-




 

“Therefore Mr. and Mrs. Maeschig commit themselves not to let the contents of this agreement become known to third parties and not to act as the new owners of the object on the spot either. Should the object have to be confiscated due to a violation by Mr. and Mrs. Maeschig, they

are jointly and severally liable to the estate for the damage caused

…”

That provision in the Utilization Agreement was later to be challenged as nullifying the entire Agreement because it was said to be contrary to the laws of Seychelles and public policy.

3.3 The executor also granted a charge to the Appellant over Villa Ulli as security for the payment of costs involved in the maintenance of the Villa, in terms of the said Utilization Agreement.

4. However, matters unfolded further by Mrs. Colling (the mother of the Respondent) challenging the entire transaction entered into between the executor and the couple. She challenged the validity of the Agreement. On 17 July 2002, she filed an Affidavit of Transmission by Death at the Land Registry in Seychelles, purportedly transmitting the ownership of the properties to the Respondent in terms of section 72(1) of the Land Registration Act. That provision states:

“72(1). When a proprietor dies, the persons who under the Will or the law relating to succession on intestacy, as the case may be, are entitled to any land, lease or charge registered in the name of the deceased proprietor shall, upon production and filing of

an affidavit by them in the prescribed form, be registered as the proprietors of the land,

lease or charge for the interests and in the shares shown in the affidavit.”

5. The acts of Mrs. Colling were followed by the Respondent filing a plaint in the Supreme Court challenging inter alia, the validity of the Utilization Agreement as well as the charge. He prayed to the trial court to declare both the Utilization Agreement and the charge as being null and void. He also sought injunction to prevent inter alia, the Appellant from entering the said premises. He won both prayers. These prayers now form part of the grounds of appeal. It is now averred by the Appellant that:

5.1 The trial judge erred in his finding that the Utilization Agreement is null and void

for lack of capacity.

5.  
   
   
   

   2.  The trial judge erred in his interpretation of the Utilization Agreement as being
      
      an agreement which confers a real right.




 

5.  
   
   
   

   2.  The finding of the learned judge that the charge is invalid in law for lack of capacity, violation of the Immovable Property (Transfer Registration) Act and execution in Germany is erroneous and misconceived.




 

5.  
   
   
   

   2.  The finding of the learned judge that the transmission effected by the plaintiff’s guardian is valid, is erroneous.




 

5.  
   
   
   

   2.  The trial judge erred in his finding that the plaintiff is not indebted to the second defendant in the sum of Dm. 72,289.00 or at all under any contract.




 

6. Central to the appeal before us is the validity (or non) of both the Utilization Agreement (the Agreement) and the charge. It is not controverted that when Mr. Colling died the Respondent was still a minor. However, we are mindful of the provisions of Art. 745 of the Civil Code that children succeed to their parents and inherit in their own capacity. As such, the properties (such as Villa Ulli in this case) would not be subjected to a mortgage except in the cases and forms either as established by law or else by a judgment of the court (cfr. Art. 2126 of the Civil Code). Therefore Mr. Jung could proceed, as executor, only incompliance with the provisions of either the Land Registration Act (section 72(1) supra) or judgment of a court with competent jurisdiction. The intention of the enactment, no doubt, is to protect transactions involving land belonging to

minors.

7. The Immovable Property (Transfer Restriction) Act, (Cap 95) clearly spells out the following:-

“s.4(1) – A non Seychellois may not –

1.  purchase any immovable property situated in Seychelles or any right therein; or

2.  lease any such property or rights for any period; or

3.  enter into any agreement which included any option to purchase or lease any such property or rights,

without having first obtained the sanction of the Minister.

4(2) …

From the evidence adduced in the trial court, the following is apparent:-

7.  
   
   
   

   1.  That both the Appellant and his wife and the executor were non Seychellois. As such they could not enter the Utilization Agreement without leave of the Minister.




 

7.  
   
   
   

   2.  The said Utilization Agreement could not be effected for any period without leave of the Minister.




 

Which is why, it is our view, that the parties to the said Agreement intended to make the whole issue as secretive as possible, for fear of confiscation of the property (!). Such secrecy, in our view, is against public policy. Art. 3(2) of the Civil Code states thus:-

“Immovable property shall be governed by the law of Seychelles. The Rule also applies to immovable property under foreign ownership or control.”

Further, Art. 6 states:-

“It shall be forbidden to exclude the rules of public policy by private agreement. Rules of public policy need not be expressly stated.”

One is reminded of the provisions of Art. 1108 of the Code that one of the essential conditions for the validity of an agreement is that it should not be against the law and public policy.

Likewise, section 6 of Cap 95 is very categorical on the issue. It states:-

“s.6 Any transaction effected in contravention of the provisions of sections 4, 5, 8 of 13, shall be unlawful and void, and in the case of a sale, any immovable property or rights therein purporting to have been transferred under such sale shall be forfeited to the Republic.”

 

As stated earlier herein, the obvious reason for the Utilization Agreement containing a provision to hide the real status of Villa Ulli, may have been the fear for “forfeiture.”

8. The foregoing discourse supports the views held by the trial judge that the Utilization Agreement is therefore null and void due to non compliance with the provisions of the law quoted herein above. But that is not all. The executor himself, Thomas Jung, lacked capacity to enter such an agreement. The said Utilization Agreement was signed by foreigners. There is a mandatory requirement that such a deed can be enforced in Seychelles if it complies with the requirements of Art. 2128 of the Code (cfr. S. 227 of the Code of

Civil Procedure.)

The said Art. 2128 states:-

“Contracts concluded in a foreign country shall not be capable of creating a mortgage upon property in Seychelles unless provisions to the contrary are established by law or by a treaty.”

The appointment of Mr. Jung as executor may have been confirmed by a Dusseldorf Court. However, it is our view, that there was need for his confirmation by the Supreme Court in Seychelles as well in accordance with the provisions of Art. 1025 of the Civil Code. There is no evidence that this requirement was complied with. Therefore the activities of Mr. Jung with regard to the Utilization Agreement and the charge were null and void ab initio.

9. The fact

that both the Utilization Agreement and charge lacked validity, they

could not be enforced under Seychelles Law. Again,

no one should

benefit from acts which are illegal and null and void. In that

regard, it is our view – as rightly held by the

trial judge –

that all pecuniary interests and claims (including the counter claim)

by the Appellant cannot succeed as they

originate from acts which did

not, conform to the requirements of the law and are contrary to

public policy in Seychelles. This

disposes of grounds 5.1; 5.2; 5.3

and 5.5 of the grounds of appeal.

10. The

remaining issue for our determination is as stated under para 5.4

above. Mrs. Colling filed with the Land Registrar in Seychelles

an

affidavit of transmission by death in compliance with section 72(1)

(supra). It was in conformity with those provisions that

the

Registrar registered the ownership of that property in the name of

the Respondent in accordance with the wishes of his late father.

Therefore, whether the form in which the said affidavit of

transmission was drawn satisfies the conditions of validity as

required,

this was an issue to be determined by the Registrar. It is

our considered view that if there were minor errors in the form or

other

compliance needed, that should not affect the substantive issue

and deny the Respondent his rightful position over the property.

11. In

conclusion, we dismiss this appeal in its entirety with costs. The

grounds of appeal and the submission in support thereof did

not make

us differ with the findings of the trial court. We do note further

that other findings of the trial court were not appealed

against.

Such findings include a permanent injunction preventing the Appellant

from interfering with the suit property; an order

to the Registrar to

discharge the Charge and cancel the relevant entries in the Land

Register; and costs. We do reaffirm those orders

of the Supreme

Court.

……………………………………….

S. J. BWANA

JUSTICE

OF APPEAL

 concur: ………………………………………

M. M. RAMODIBEDI

PRESIDENT

I concur: ……………………………………….

J. M. HODOUL

JUSTICE OF APPEAL

Delivered at Victoria, Mahe, Seychelles this 25^th day of November 2005