Labonte and Another v Bason (14 of 2005) (14 of 2005) [2006] SCCA 16 (28 November 2006);







IN THE COURT OF APPEAL OF
SEYCHELLES



COURT OF CIVIL APPEAL







SCA
No: 14 of 2005



JACQUELINE LABONTE


JEAN
BAPTISTE LABONTE
Appellants







vs






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











Domah, JA






[1] 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.






[2] 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.







[3] 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.







[4] The
Supreme Court found, on hearing the respondent and appellant no 2,
that fraud had been proved in the transaction and –








  1. 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



  2. 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







[5] 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.







[6]
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.







[7] 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.







[8] 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).







[9] 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.







[10] 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, Nullit
é,
§
108
,
the following proposition is laid down:







“La
r
étroactivité
provoquera ses effets
à
l’
égard
des tiers dont les droits d
épendent
de l’acte annul
é.
Ainsi l’annulation de l’acte translatif de propri
été
emporte la disparition des droits constitu
és
par l’acqu
éreurs
sur l’immeuble ….De la même facon, les droits
transfer
és
au sous acqu
éreurs
seront affect
és
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.”







[11] 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.







[12] 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.”







[13] 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


AG.
PRESIDENT











I
concur: …………………………………….


J.
M. HODOUL


JUSTICE
OF APPEAL








Delivered
on 29 November 2006, Victoria, Seychelles