Lesperance v Bastienne (26 of 2006) (26 of 2006) [2007] SCCA 4 (23 August 2007);






IN
THE SEYCHELLES COURT OF APPEAL








ROSY
LESPERANCE
-Appellant







v.s






BENNY
BASTIENNE
-Respondent






SCA
No: 26 of 2006



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


Before:
MacGregor,
P., Hodoul, Domah, JJA






Counsel: Mr.
F. Elizabeth for Appellant



Ms. Domingue for Respondent










J
U D G M E N T








MacGREGOR,
P.,






[1] This
is an appeal against a ruling of Renaud J on 26
th
October 2003 (Cs112/03) when he ordered a new trial in a matter
concerning a hearing where the Respondent was trying to obtain
inheritance
through a new trial of a case of lesion where his father
was effectively disposed of his purchase of land.







[2] The
background to this case requires we peruse a series and sequence of
events starting over 20 years back. They also show a multiplicity
of
court referrals and adjudications, ‘under cross current”
of events that may cloud or indicate a significant pattern.
The
events are as follows:







Sequence of Events –
Background



1. Evangeline Payet sells land to
her son Joachim Lesperance in 1985;



2. Joachim Lesperance died
(herein referred to as the deceased) in June 1997;







3. Respondent, Benny Bastienne
applies to the Supreme Court to be declared the child of the deceased
July 1997;







4. Peter Lesperance brother of
the deceased applies to the Supreme Court to be appointed executor of
the estate of the deceased December
1998;







5. Respondent, declared child of
the deceased by the Supreme Court November 2001;







6. Respondent, applies to the
Supreme Court be appointed executor of the estate of the deceased
2002;







7. Rosy Lesperance, sister of the
deceased and Appellant in this appeal applies for rescission on
lesion of the sale of 1985 between
her mother and her brother the
deceased 2003;







8. Supreme Court declared
rescission in an ex parte hearing March 2004;







9. Respondent appointed by the
Supreme Court executor of the estate of the deceased July 2004;







10. Respondent seeks accounts
from Peter Lesperance, former executor of the estate of the deceased
September 2004. Despite acknowledgment
of the request by the lawyer
of the former executor, they have never been fortcoming.







11. Respondent petitions for new
trial of the case of rescission/lesion December 2004;







12. Injunction
against dealings and disposal of the land subject of
rescission/
lesion
February 2005; and







13. Ruling
for new trial on the case of
lesion
October 2006.







Consideration of grounds of
appeal



[3] On
the issue of
Locus standi,
it is submitted that
“the
Learned Judge erred in law when he granted the application of the
Respondent since the Respondent was not a party to Civil
Side Cs No.
112/03 he has no locus standi to make the application.”
At
the time the application was made for new trial the Respondent did
have locus standi, and the Learned Judge so ruled in his judgment
at
page 42 of the record. One of the parties in Cs112/03 was the
Executor of the Estate of Joachim Lesperance. I find whoever is
the
Executor of the estate as is the Respondent has locus standi to seek
a new trial to that case. Ground 1fails.







[4] On
the issue of
time bar,
the judgment is challenged in that
“the
Learned Judge erred in law when he ruled that the Respondent was not
out of time and was accordingly within the prescribed
period when the
Respondent filed the application. The Learned Judge erred when he
ruled that the present petition was “executed”
on the
28
th
September 2004. The Appellant avers that the Judgment was registered
on the 20
th
May 2004 and the Respondent filed his application on the 22
nd
December 200, four months out of time in law. The Appellant averred
that Judgment in this case was never executed”.
I
find the learned judge determined the registration of the order on
28
th
September 2004 as the execution and counted time from then to
the date of application for new trial, and rightly found the
Respondent to be within time. Ground 2 and 3 fail.







[5] On
the matter of
interest of justice,
the submission is that
“the
Learned Judge erred when he ruled that it was in the interest of
justice to order a new trial in this case on the circumstances
of the
case did not reveal any factors or considerations to order a retrial
on the basis of “interest of justice.”
I
find the Learned Judge’s mind was clear as to why he felt it
was in the interest of justice because it was clear to him
convincingly
that there were then legal manoeuvres and other events
to thwart the attempt of an heir to claim his rights. Ground 4
fails.







[6] It
is also submitted, on the merits and substantive aspect, that
“the
learned Judge erred when he considered the merit of the substantive
case and express his personal opinion on the facts
of the case when
the application before the Courts was merely one for a new trial..”
I disagree, the
substantive case concerned lesion whereas his mind was focused on
circumstances allowing that the case to be improperly
conducted at
the expense of what may have been rightful heirs. He has never gone
or touched the meat of the case of lesion as such,
which really aims
at an under evaluation or price of sale even if there was consent of
the parties then, see article 1674 of the
Civil Code of Seychelles.
Ground 5 fails.







[7] It
was argued before us that the upholding of the 2
nd
plea “in limine” was not justified in the invocation of
194(c) of Seychelles Code of Civil Procedure.







[8] That
plea was that the application does not reveal a reasonable cause of
action against Respondent and ought to be dismissed.











[9] Upholding
a plea in limine which in this case was a point of law does not
necessarily dispose of a case. A reading of Section 91,
of the
Seychelles Code of Civil Procedure reads “
if
in the opinion of the court the decision of such point of law
substantially disposes of the whole cause of action, ground
of
defence, set-off or counterclaim the court may
thereupon dismiss the action, or make such order therein as may
be
just.”
In those
circumstances, the learned judge was entitled to decide that the
point of law in question did not substantially dispose
of the
case. He was therefore globally within the parameter of not
dismissing the application.







[10] Despite
upholding the 2
nd
plea in limine the judge went on to find
“that
it would be in the interest of justice that he should exercise his
equitable power”

in accordance with s.194 (c) of the Seychelles Code of the Civil
Procedure to order a retrial in this matter.




[11] It
appears contradictory but as a court of appeal we have to make out of
it what we can and also consider that in those circumstances,

what will serve the
interest of justice.







[12] It
is unfortunate that the learned judge referred to the petition of the
Respondents as not based on fraud as a ground for the petition
at
page 42 of the record when paragraph 17 of the petition of the
Respondents dated 20
th
December 2004, clearly averred fraud. Ground 6 fails.







[13] The
phrase “
Sequence of events”,
conspicuously remarkable, has been uttered at least four times in
this case, three itself in the judgment appealed against.
Those
sequences I find are indicative and consistent with a train and
current of events that led to the learned judge concluding
what
turned out to be suspicious or doubtful happenings smacking of the
fraudulent and injustice that convinced him a new trial was
in the
interest of justice and I agree so.







The appeal is dismissed with
costs.











………………………… …………………………. ……………………………….



F. MacGREGOR J. M. HODOUL S. B.
DOMAH



President Justice of
Appeal Justice of Appeal











Dated
this 24
th
August 2007, Victoria, Seychelles.