Labonte and Another v Bason (14 of 2005) (14 of 2005)  SCCA 16 (28 November 2006);
IN THE COURT OF APPEAL OF SEYCHELLES
COURT OF CIVIL APPEAL
SCA No: 14 of 2005
JEAN BAPTISTE LABONTE Appellants
ROBERT BASON Respondent
Before: Bwana, Hodoul, Domah, JJA
Counsel: Mr. Renaud for the Appellants
Mr. Derjacques for the Respondent
Date of Hearing: 22 November 2006
Date of Judgment: 29 November 2006
JUDGMENT OF TH E COURT
 This is an appeal against the judgment of the Supreme Court which, following a new trial, found for the respondent against the appellants (defendants nos 2 and 3 below) and the respondent’s wife (defendant no 1 below) who, for her part, has left default in the case. Nor has she lodged any appeal.
 The essential facts are as follows. The respondent was a foreign national until 1990 when he obtained his Seychelles citizenship. He married a Seychelles national in 1976 and moved to England where lived for a while. He worked. She also worked for a while and then decided to care for the family with two children. By 1987 they were able to buy a house on mortgage. Soon they decide to return to Seychelles. They sold their assets and settled in Seychelles. In June 1998, they bought a residential property (S 1640) for the sum of Rs 100, 000 close to the property of the in-laws. As the respondent was a non-Seychellois and was prohibited from owning any immovables in Seychelles but that the funds were all his, he had it transferred in the name of the wife (defendant No. 1 in the court below). Their lives, however, took a dramatic turn when a second Englishman entered the scene. The wife lost her affections to him and the marriage broke down. She tried to obtain a non-cohabitation order, unsuccessfully. Then, she deserted him and left the matrimonial home. She soon applied for Writ Habere Facias Possessionem to enter into possession of the house, again unsuccessfully. Reconciliation attempts between the couple failed. The came the critical date. On 11 January 1990, the respondent obtained his Seychellois citizenship. On 29 January 1990, she ended up at her attorney to have the matrimonial home where respondent was living “sold” to her brother and to his wife (respectively appellant no 2 and appellant no 1 before us) for a sum of Rs 100, 000. On 6 February 1990, she left Seychelles and flew for good to England with her new English partner, receiving on the same day Rs 50, 000 from Attorney Me J. Renaud as her share of the purchase price. In a letter she wrote to her attorney, she stated that the house belonged to her and her husband. If sold, it would fetch Rs 100, 000 out of which Rs 35, 000 should be paid to him. The marriage was dissolved in England.
 On somehow learning of the transfer, the plaintiff would contact an attorney. However, before he could file a suit, appellant No 1 had already served him with a petition for him to vacate the property. The matter came before the Rent Board and was unsuccessful. The respondent lodged his first case in 1992 against the wife and the two in-laws alleging that the transaction was a sham and should be declared null and void. The Supreme Court found for him. But the Court of Appeal ordered a new trial on the ground that fraud had not been specifically pleaded. The present appeal is on the judgment given in the new trial the outcome of which has not been any different from that of the first case.
 The Supreme Court found, on hearing the respondent and appellant no 2, that fraud had been proved in the transaction and –
set aside the transfer of the land in lite bearing title No S1640 made by the wife in favour of the first and the second appellant for being fraudulent; and
declared the respondent to be the lawful owner of the property; and
(c) directed the Land Registrar to cancel the registration of the transfer to the appellants in favour of the respondent
 The appeal on that judgment is based on the ground that the learned trial judge was wrong to find that the defendants in the court below had acted fraudulently in the dealings with the property culminating in the eventual purchase by the appellant couple.
 We have perused the record. We find that the findings of the learned Judge are warranted on the facts based on the evidence adduced, the nature of the documents produced in support and the recorded observations of the trial Judge. It was not a case of subjective appreciation of one witness against the other. It cannot be seriously challenged that the wife knew what she was up to. She knew of the husband’s equity in the property both by virtue of his total contribution for its purchase, by its status as a matrimonial home and the fact that it was being occupied by the respondent. She chose to dispose of it in complete disregard of those rights on the eve of her flight by night. She left default in the case below. Accordingly the learned Judge had unrebutted evidence of her “dol” involving her brother and sister-in-law to whom the property was sold not at the open market value.
 With respect to the involvement of the two appellants, the learned Judge found the case proved against them after weighing the evidence given by the respondent and defendant no 2. In law, after the respondent had given evidence in support of his contention and in the light of the default of defendant no 1, the evidential burden shifted upon the two appellants to show that they were purchasers in good faith and for value. The learned Judge gave reasons why he found that the appellants had been unable to discharge that evidential burden. The price which the appellants had paid despite the passage of time was the same amount at which the house had been bought in 1998. It was Rs 100, 000 which was very much less than what it would have fetched in the open market. The second appellant knew of the fact that the purchase price in 1998 had been advanced by the respondent since the decision had taken place in a family meeting. It would have been utterly naive to assume that the two appellants were blissfully unaware of the fact that the respondent was in actual occupation of the matrimonial home and also that their sister, the registered owner, had been refused a writ of habere facias in possessionem by the Rent Board.
 On this matter of the relative responsibilities of proving good faith and bad faith of parties in any proceedings relating to transactions of land, one may refer to Encyclopédie Dalloz, Vol. VI, Vo Prescription Civile, para 77-78:
“La présomption de bonne foi établie au profit du posesseur, peut être combattue par la prévue contraire, dont la charge incombe au revendiquant et qui consiste à démontrer que le possesseur connaissait ou du moins soupconnait le défaut de droit de l’aliénateur: civ. 15 févr. 1927, Gaz. Pal. 1927.1.730; Req. 17 déc. 1934, S. 1935.1.204; Planiol et Ripert, t. 3, no. 713).
 As regards the right of the respondent to question the transaction, his various interests were never in doubt. On the evidence, the letter the wife addressed to the Attorney was a clear admission thereof, except that they are understated. The two appellants knew that they could not afford to league with their sister in a transaction as regards that particular property. If they did not know, they were grossly reckless about it and, on that score, they did so at their own risk and peril. Their collusion with their sister was more than evident. As has been commented in French jurisprudence from which the Seychelles Code is inspired:
“Dans les rapports entre les parties avec des tiers, la mauvaise foi du débiteur qui entre en collusion avec un tiers pour se soustraire à l’éxécution de ses obligations constitue une fraude qui entache son acte de nullité…” Encycl. Dalloz, Vo. !, Vo. Bonne Foi, § 21.
 The nullity is retroactive in its effect so that the successors in title lose their title which, therefore, is restored to the original owner. In Dalloz, Droit Civil, Nullité, § 108, the following proposition is laid down:
“La rétroactivité provoquera ses effets à l’égard des tiers dont les droits dépendent de l’acte annulé. Ainsi l’annulation de l’acte translatif de propriété emporte la disparition des droits constitués par l’acquéreurs sur l’immeuble ….De la même facon, les droits transferés au sous acquéreurs seront affectés en vertu du principe selon laquelle nul ne peut transmettre plus de droit qu’il en a lui-même – Nemo plus juris ad alium transferre potest quam ipse habet.”
 The application of this principle constitutes the additional reason for which we would say that the wife’s title which subsisted in law as long as he was not a citizen (as found by the judge) lapsed in equity when on 11 January 1990, the latter obtained his citizenship. She, accordingly, could not have passed a good title to her bother and her sister-in-law in the circumstances.
 The facts, indeed, show more than a deserted husband’s equity. It is also a foreign investor’s equity in Seychelles. Section 6 of the Courts Act (Cap 52) provides for an aggrieved person not to be left without a remedy notwithstanding that “no sufficient remedy is provided by the law of Seychelles.”
 We find no merit in the grounds of appeal raised. We maintain the orders granted by the Supreme Court and we dismiss the appeal. With costs.
S. B. DOMAH
JUSTICE OF APPEAL
I concur: …………………………………….
S. J. BWANA
I concur: …………………………………….
J. M. HODOUL
JUSTICE OF APPEAL
Delivered on 29 November 2006, Victoria, Seychelles