Bristol and Another v Joseph (7 of 2007) (7 of 2007) [2007] SCCA 7 (13 December 2007);







IN THE SEYCHELLES COURT OF APPEAL







PAUL BRISTOL



DERRICK BRISTOL -Appellants







v.s






MARGUERITE MARIE JOSEPH -Respondent







SCA No: 7 of 2007



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



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.









  1. …”








(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 3rd
party (i.e. one Julita Bristol) and not the guardian.









    1. 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.











    1. 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. 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:-








    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.











    1. 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”.









  1. “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.”









  1. “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.”










    1. “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.