Maeschig v Colling (11 of 2004) (11 of 2004) [2005] SCCA 15 (24 November 2005);






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 30th 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 …









    1. 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:-









    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.











    1. 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.









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











    1. 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.











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











    1. 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









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









  1. 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:-









    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.











    1. 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





I
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