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 26th 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 28th September 2004. The Appellant avers that the Judgment was registered on the 20th May 2004 and the Respondent filed his application on the 22nd 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 28th 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 2nd 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 2nd 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 20th 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 24th August 2007, Victoria, Seychelles.