IN THE COURT OF APPEAL OF SEYCHELLES

COURT OF CIVIL APPEAL

SCA No: 16 of 2005

(EX PARTE MELVIN ESSACK)

MELVIN ESSACK Appellant

vs

MRS. MARIE GEMMA FERNANDEZ Respondent

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Before: Bwana, Hodoul, Domah, JJA

Counsel: Mr. C. Lucas for the Appellant

                Mr. Rajasundaram for the Respondent

Date of Hearing: 20 November 2006

Date of Judgment: 29 November 2006

JUDGMENT OF THE COURT

Domah, JJA

[1] The appellant is the only issue and heir of Collin Essack who passed away intestate. The respondent, Gemma Fernandez, is the mother of Collin Essack and has been living abroad for the past 50 years. She is over 72 years, elderly and physically mobile on a wheel-chair, resides in the United Kingdom and only periodically visits Seychelles where she owns the property in lite.

On 18 October 2004, Melvin was appointed executor of the estate of the Collin Essack. The estate included an immovable property, S 3845, registered in the name of Collin. Adjoining S3845 lies the property of respondent, S3844, on which stands a dwelling house  which Collin had permission to build and occupy with his concubine prior to his

death by the respondent herself. In January 2005, respondent applied to the Court for the removal of Melvin as executor and she prayed that she be appointed as executrix.

[2] The grounds she set out are as follows:

(a) Melvin was not the sole heir and he had misled the court in his application for appointment as executor;

2.  Having survived Collin, her consent was needed for the appointment of an executor and hers had not been obtained;

2.  Collin had suppressed the fact that he was survived by one brother and one sister (collaterals) residing in the United Kingdom and herself;

2.  She was the owner of title S3844 (which does not form part of the estate of Collin);

2.  Melvin was withdrawing funds from the Bank Account of the Collin.

[3] Her application was resisted and a plea in limine was filed. It was two-pronged:

(a) the application was

misconceived as regards the class of heirs relevant for the purpose;

(b) Gemma Fernandez had no locus

standi to file the application.

[4] A formal hearing took place in which the legal and factual issues were canvassed some even provoked quite pertinently by the court presided by the Chief Justice. After hearing the case and giving the parties time to review their positions which included initiating related actions concerning the property in dispute, the Chief Justice appointed Gemma Fernandez as co-executrix.

[5] The original executor, aggrieved by that joint-appointment has now appealed on the following grounds:

1.  the trial judge was wrong to find that Gemma Fernandez has an interest in the succession of the deceased merely on the ground that the land on which the house of
   
   the deceased is built belonged to her as per credible evidence when it was clear that the whole issue of the house and occupation of the land clearly indicated that there were other rights acquired by the deceased by right and presumption of law.

2.  the learned judge erred in appointing Gemma Fernandez as co-executrix to act jointly with Melvin as she has no interest in the estate of the deceased and cannot attend to her duties effectively as co-executrix as she is resident and domiciled outside the Republic
   
   of Seychelles. (Comment: so to do would be to deny her her right to property under the
   
   constitution on the ground of old age);

3.  the Learned Judge was wrong to appoint the Respondent as co-executrix since the evidence before the court clearly indicated that she would be interfering with and would
   
   be acting in conflict of interest as executrix with the estate of the deceased.

[6] In the 11-page written submission, applicant, it seems to us, demonstrates a strong self-belief in his objection to the appointment of the respondent as co-executrix along with him. In sum, learned counsel submitted that as the appellant is the only heir, the respondent should have nothing to do with his estate. That is true.

But the fact remains that appellant does claim interests in the property No. S3844 owned by the respondent which would not yet form part of the estate of his father, with the grand-mother being alive. Learned Counsel also submitted on the fact of her incapability to effectively serve on account of her non-residence, age and physical

unfitness. But the fact remains that she is entitled under the Constitution to the protection of her rights in her property being partly claimed by the appellant as part of the estate to which he is entitled. Learned Counsel also submitted that the respondent

is in a conflictual situation as executrix for having given usufructuary rights over title S3844 to the concubine of her son who is in occupation after the latter’s death, on the one hand, and her role as executor on the other. Such an argument would cut both ways.

Appellant’s situation would not be any better in his role as executor and claimant over disputed rights over property not his own.

It was also submitted before us that the respondent would “interfere” with the administration of the estate.

The evidence she gave clearly contradicts such a conclusion. The passages cited were selectively culled out of context. As regards his argument that the respondent has no lawful interest as required by law, that is an arguable interpretation of the law. But we shall say more about article 1026 later.

[7] The duties and responsibilities of an executor are set out in the Seychelles Civil Code: articles 1025-1034. One of the duties of the executor is to “make an inventory of the succession to pay the debts thereof, and to distribute the remainder in accordance with the rules of intestacy, or the terms of the will, as the case may be.”

 

[8] As regards 5 (a) above, the existence of other rights did not preclude the respondent from relying on her own rights in the property in lite as well as her concerns that they be properly accounted for until she dies. In our view, she has a lawful interest to safeguard. She did make it clear in evidence that that particular land is hers. She bought it from her grand-mother, the house and the land. She allowed her son and the latter’s mistress to stay in it. She has her own house and properties in United Kingdom. “If I am not well, if I am dead, he (Melvin) can take my place.” But until then it is she who should exercise her rights over it.

[9] Indeed, when she was told that the law says that if a father dies and he has no wife, he has one child, everything goes to that child, her answer was eloquent: “You mean to tell me that my house belongs to him (Melvin) and the property also.” Her

concern has been what she expressed in evidence. “The court has to decide what to do now, what is right, what is wrong.”

 

[10] Compared to that attitude which can be stated to be diligent, that of the applicant must have looked unfavourable to the trial judge. True it is that the

version of the appellant is not available inasmuch as the decision at the hearing was determined on a plea in limine. Be that as it may, on such one-sided material before the trial judge which showed that the appellant was claiming certain rights over a property that belonged to Gemma Fernandez and that he had altogether ignored her

existence and that of her son and daughter in his application to become sole executor, the judge could not have reached a different conclusion. With regard to the freedom of

Melvin to deal with what his father left, the attitude she expressed at the hearing was quite clear. If Melvin wants money, he can take his daddy’s money.

Nobody can stop that. That was very succinctly put. And nobody could have expressed it better.

[11] In the light of the above, it cannot be said that the trial court came to a perverse conclusion when it appointed the respondent as a co-executrix. As an appellate court, we would be ill-placed to disturb the findings of the trial judge on the evidence on record.

[12] As regards 5 (b) above, while it is accepted that the co-executrix may not be a

potential beneficiary in the estate, her presence as co-executrix will be vital in the prime task of “making an inventory of the succession” and lawfully fulfilling the purposes of “distributing the remainder in accordance with the rules of intestacy.” Her role would also be vital in ensuring in the circumstances that the functions of the fiduciary are properly discharged, which are: “to hold, manage and administer the property, honestly, diligently and in a business-like manner.”

 

[13] The argument that the respondent cannot attend to her duties effectively as co-executrix as she is resident and domiciled outside the Republic of Seychelles is flawed. First, the facts show on a partial mobility problem but her mental alertness is evident in her answers. Second, to deny the respondent in view of her old age and residency abroad is to deny her a right as a citizen of this country to the protection of her property claims under the Constitution of Seychelles.

[14] As regards 5 (c) above, it was urged before us that the Learned Judge was wrong to appoint the Respondent as co-executrix since the evidence before the court clearly indicated that she would be interfering with and would be acting in conflict of interest as executrix with the estate of the deceased. We have perused the evidence. To those who would want to read her objectively and dispassionately, she shows her sense of fairness and uprightness. Learned Counsel passionately and rhetorically submitted before us that the respondent has succeeded in hitting the last nail on the coffin by preventing the appellant from dealing with his own property. In actual fact, it is not very obvious why there should be such an indecent haste in the appellant wanting to dispose of the property before the conclusion of his duties as executor. One would

have understood his intentions if his claims were limited to the undisputed property,

i.e. S 3845. But the out of the ordinary amount of his bank withdrawals, without due explanation on record, and his unsuccessful writ of Habere Facias Possessionem as regards  respondent’s property render his designs not very flattering of him and provoke live issues with respect to his fiduciary duties under article 1026. In the circumstances, we confirm the respondent’s appointment as co-executrix but with the rider stated below.

[15] This case has begged the question as to the meaning of “lawful interest” in

article 1026. A number of cases were cited before us in written submission from which it transpires that a person with a lawful interest within the meaning of article 1026

is not somebody who has an actual or potential hereditary right in the estate to be

administered. It is someone who in good faith has a legitimate concern that in the administration of that particular estate, the provisions of the law will be complied with. An actual or potential heir may be one such person but not necessarily so. That is, indeed, reflected in all the decisions given by the Supreme Court on the matter. We endorse them as correct.

[16] With respect to the order, on the evidence before the court, the respondent has admitted, quite fairly, that she is not concerned with the estate of the Collin Michel Sady ESSACK, her deceased son. What she is concerned with is that the appellant does not interfere with her interests in the property S3844 where he has already started taking confrontational actions. We shall accordingly add a rider to the order made by the Supreme Court to take into account the respective concerns of the two parties. The appellant may be liberated to “to hold, manage and administer the property, honestly, diligently and in a business-like manner” that is not in dispute: i.e. S3845 and any other undisputed immovable or movable.

However, with respect to the property comprising S3844, he may not do so either -

1.  without the concurrence of the respondent; or

2.  until a competent court decides with finality that that property or certain rights over it also forms part of the estate of the Collin Michel Sady ESSACK; or

3.  until the parties by some formal agreement resolve the issues with respect to their respective claims.

[17] Accordingly, we order that the status quo be maintained subject to such events specified in paragraph 16 (b) and (c) above, whereupon the participation of the respondent in the estate of her son shall lapse by virtue of the said event.

[18] To that extent, the appeal is allowed and the decision of the Supreme Court is amended accordingly. With half costs.

…………………………………….

B. DOMAH

JUSTICE OF APPEAL

I concur: …………………………………….

S. J. BWANA

AG. PRESIDENT

I concur: …………………………………….

J. M. HODOUL

JUSTICE OF APPEAL

Dated this 29 November 2006, Victoria, Seychelles