IN THE SEYCHELLES COURT OF APPEAL

PAUL BRISTOL DERRICK BRISTOL -Appellants

v.s

MARGUERITE MARIE JOSEPH -Respondent

SCA No: 7 of 2007

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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

Bwana, JA.,

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:

“Art. 445.

1. 
   
   Any interested party or the Attorney General may start
   
   proceedings for the removal of an incompetent
   
   or dishonest guardian.

2. 
   
   …”

(emphasis provided)

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 3^rd

party (i.e. one Julita Bristol) and not the guardian.

2.  
   
   
   

   2. 
      
      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.




 

2.  
   
   
   

   2. 
      
      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.

1.  
   
   0.  
      
      0.  
         
         0.  
            
            0.  
               
               0.  
                  
                  0.  
                     
                     0.  
                        
                        
                        

                        0. 
                           
                           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:-

3.  
   
   
   

   1. 
      
      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.




 

3.  
   
   
   

   2. 
      
      The trial judge was wrong to conclude that –




 

1. 
   
   “I do not find any scintilla of evidence to substantiate any
   
   such grounds to justify her removal as guardian”.

2. 
   
   “The (sic) “Respondent” who appeared to be a
   
   reasonably intelligent person, whilst in court on the 9^th
   
   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.”

3. 
   
   “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.”

3.  
   
   
   

   3. 
      
      “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

……………………………… ………………………………

………………………………..

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.