Bristol and Another v Joseph (7 of 2007) (7 of 2007)  SCCA 7 (13 December 2007);
IN THE SEYCHELLES COURT OF APPEAL
DERRICK BRISTOL -Appellants
MARGUERITE MARIE JOSEPH -Respondent
Before: Bwana, Hodoul, Domah, JJA
Counsel: Mr. C. Lucas for Appellant
Mr. F. Chang Sam for Respondent
J U D G M E N T
1. The Respondent herein made an exparte application in 2003 (Cs. 305 of 2003) for the interdiction of one Didier Bristol (hereinafter referred to as the “interdictee”) who is the father of the two Appellants. At the time the said application was made, the two Appellants were studying overseas. The Respondent never informed them of the interdiction. Didier Bristol who is a brother of the Respondent, was and continues to be unwell.
Upon the Appellants’ return from their overseas studies and following what they heard and saw in respect of the state of their father and their father’s estate, they filed the necessary documents for the removal of their aunt (the Respondent) as guardian, pursuant to the provisions of Article 445 of the Civil Code which states:
Any interested party or the Attorney General may start proceedings for the removal of an incompetent or dishonest guardian.
2. The Appellants gave the following grounds in support of their claims of incompetency and dishonestly on the part of the guardian cum respondent:
2.1 The interdictee was in the custody and day to day care of a 3rd party (i.e. one Julita Bristol) and not the guardian.
They were refused access to their father by the guardian who also refused to discuss affairs of the latter with them despite their interest in his affairs.
Their epileptic and feeble minded father was not looked after properly as he often escaped from Takamaka where he is kept to visit the Appellants at La Louise without the approval, knowledge or contact by the Respondent.
2.4 The Respondent was a bad manager of the assets of the interdictee such as the minibus, the leased bakery, the house at North East Point, the various bank accounts, and the five plots of land.
2.5 The failure to collect funds that were potentially available and disposal of the bus without accounting for the proceeds of sale.
The Appellants therefore sought the assistance of the Supreme Court to redress the situation by appointing them in place of the Respondent, so that they could exercise their duty towards their father, to protect the assets and collect rent.
3. On 3 March 2007, the Supreme Court dismissed their application. Aggrieved by that decision, they have now appealed to this Court raising three grounds of appeal as follows:-
That the trial judge failed to consider the facts before the court on averments of mismanagement and indeed expressly made the finding that “obviously in the instant case, it is not the allegation of the interveners (the Appellants) that the present guardian is a person whose conduct is notorious or dishonest, a finding which was just contrary to what the Appellants had said.
The trial judge was wrong to conclude that –
“I do not find any scintilla of evidence to substantiate any such grounds to justify her removal as guardian”.
“The (sic) “Respondent” who appeared to be a reasonably intelligent person, whilst in court on the 9th June 2006, expressed his fear that if interveners herein were appointed as his guardian, they might kill him for reasons obviously best known to him only.”
“The interveners who claim to be the children of the interdictee evidently did not take any steps for about three years. However only in 2006, they both suddenly and surprisingly realised that the Petitioner (Respondent herein) was incompetent and mismanaging the estate … I do not find any plausible reason on record to justify the lethargic attitude of both children and their inordinate delay in applying for the removal of the present guardian.”
“In all circumstances of the case, the court was wrong in law in terms of Articles 205, 208 and 210 of the Civil Code of Seychelles and on the fact that the interdictee who was not in custody and care of the Respondent, to refuse the appointment of the Appellants as guardian.”
4. Both counsel presented well argued submissions in support of their respective views.
5. Articles 205, 208 and 210 referred to above, do spell out the duty of maintenance which, children have over their parents. Art. 205 (1) provides for a mandatory obligation children have to maintain their parents. That role is applicable without prejudice to the provisions of any other law. However, according to Article 208, such maintenance shall only be granted in proportion to the needs of the claimant and the means of the party under the obligation. Article 210 empowers the court to order for the custody and maintenance of the interdictee.
6. The above considered, it is our view that the court a quo should have guided itself by the provisions of Article 445 (supra) in arriving at its conclusion. The guiding criteria therein was and still remains to be whether the guardian is incompetent or dishonest. We find it proper to point out the following aspects of this case which either escaped the attention of the Supreme Court or perhaps it was a lapse on the part of the trial court. We note that these allegations were never controverted by the Respondent.
7. We begin by considering the issue of incompetence. It is evident from the record that the interdictee had a number of properties – both movables and immovables. There was an order for accounting for the management of the estate. However, it would appear that the Respondent never complied with that obligation. It is on record, inter alia, that properties such as the bakery situate at La Louise as well as the house at North East Point were not rented for apparently no good cause shown. Had they been rented or fully utilized, they would have generated income sufficient to pay off the debts that were to be settled with the various banks and financial institutions. The various plots of land were not put to better utilisation. Instead, some of them were sold to pay off debts at prices below what would have been their real values. Better and more efficient ways and means should have been applied for the betterment of the estate.
8. On the issue of dishonesty and while reminding ourselves that the Respondent was under obligation to disclose to the Court all dealings with the interdictee’s property, it is the Appellants averment that she did not comply with that requirement. While, for example, the court made an order on 2 September 2005 for the sale of some of the assets belonging to the interdictee in order to pay for his outstanding debts, the said court has never been informed of the proceeds of those sales. Instead, the two assets namely the bakery and minibus, were sold to a company known as Island Bakery, whose proprietors are Regis Bristol and Linda Bristol – both related to the Respondent. There is no evidence that these sales were disclosed to the court. Clearly, this is proof of dishonesty. Therefore what is averred by the Appellants (3.1 supra) has substance.
9. We do note the submission by Mr. Chang Sam that there were procedural flaws in respect of how this case was handled by the Supreme Court and this appeal before us. With due respect to Mr. Chang Sam, it is our considered view that the said procedural flaws are not fatal to the appeal in as much as the matter we are dealing with is not strictly between parties but where the courts keep an oversight.
10. We would like to note the following as well, albeit in passing. First is the observation by the trial judge that the interdictee had intimated in court of his fears that the Appellants might kill him (3.2.ii supra). There would be reasons for that. However, the trial judge ought to have taken note of the provisions of Article 509 of the Code and warned himself of the danger of relying upon such unsworn statement made in court.
Article 509 states:
“The interdicted person is assimilated to a minor, both in regard to his person and to his property; the laws relating to guardianship of minors shall apply to the guardianship of interdicted persons.”
Such laws relating to the guardianship of minors, include article 450 of the Code which states –
Article 450 states:
”(1) - The guardian shall have the care of the person of the minor and shall represent him in all legal acts .. “
The trial judge should have, therefore, not taken into consideration whatever the interdictee said in court.
11. Second, we would like to note what is evidently presented before this Court by the two Appellants in their respective affidavits. It is said that the interdictee does not live with the Respondent but rather with a third party – as earlier noted herein above. As a consequence thereof, the interdictee escapes from time to time for a floric of his own. Likewise there is the Social Services Report which paints a sad picture on the state of affairs not so favourable to the interdictee. These averments, again, are not controverted.
12. We do concur with the Supreme Court and confirm its decision in respect of the guardian being under obligation to render statements of accounts of the estate of the interdictee. But only to that extent.
13. The issues raised in paragraphs 7 to 11 (supra) lead us to an irresistible conclusion that the Respondent has mismanaged the estate of the interdictee due to incompetency and dishonesty. This Appeal therefore succeeds to this extent. We, therefore, reverse the decision of the Supreme Court and we revoke the appointment of Marguerite Marie Joseph as guardian. In as much as the Supreme Court has supervisory powers over the administration of the interdictee’s property, we (a) direct that the appellants be appointed guardians in the circumstances subject to such terms as the Supreme court might think fit, and (b) confirm (as per para. 12 supra) the Supreme Court’s decision on the respondent rendering of all accounts due to date. Costs of this appeal to be met by the Respondent (Art. 447 of the Code).
I concur I concur
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S. J. BWANA J. M. HODOUL S. B. DOMAH
JUSTICE OF APPEAL JUSTICE OF APPEAL JUSTICE OF APPEAL
Dated this 14 December 2007, Victoria, Seychelles.