IN THE SEYCHELLES COURT OF APPEAL

[Coram:     F. MacGregor (PCA), S. Domah (J.A),   M. Twomey (J.A)]

Civil Appeal SCA 09/2012

(Appeal from Supreme Court Decision CS 84/2002)

Heard:             05 December 2014

Counsel:          Mr. Basil Hoareau for Appellant 

                        Mr. Daniel Cesar for Respondent 

Delivered:       12 December 2014

JUDGMENT

S. Domah (J.A)

[1]   This is an appeal against the decision of Egonda-Ntende CJ who in an application under section 20(1) (g) of the Matrimonial Causes Act regarding the settlement of dispute on the residential property between the above-named parties following their divorce decided for a sub-division of the property with mutual benefits and burdens as regards the respective ownership and their use, with each party to bear the costs of his or her case. The ex-husband has appealed.

GROUNDS OF APPEAL

[2]   He has put up 2 grounds of appeal which are as follows:

1. The learned trial Judge erred in law and on the evidence in failing to attach sufficient weight to the acrimonious relationship that exist between the Appellant and the Respondent, and as such that the two cannot be neighbours;
2. The learned trial Judge failed to sufficiently enquire into the negative impact that that order of joint occupation of the building, located on Plot A would have on the Appellant, an elderly gentleman.

[3]   The respondent is resisting the appeal and has taken view that the decision of the learned Chief Justice was correct.

[4]   The parties were married in 1979. One child was born of the marriage. She is today of age. They had adopted another who has today passed away. They lived in separation for a while before they obtained a divorce in 2003. The property in dispute which has been the subject-matter of the order under section 20(1)(g) of the Matrimonial Causes Act comprises a residential property, Parcel V3194, which, on the strength of the Report of Land Surveyor, was divided into two plots. Plot A comprising the land of 1000 m² on which stands a storeyed house was attributed to both the appellant and the respondent jointly, with exclusive occupation given to the respondent on the upper floor (Apartment A2) and excusive occupation given to the appellant on the ground floor (Apartment A1). Separate access has been provided to both parties: to A2 from the back and to A1 from the front.

[5]   Plot B, of an approximate area of 777m², was attributed solely to appellant on account of the outstanding mortgage payments he has to service. Access to this plot is provided for by a right of way of 3-metre wide on the extreme left side of Plot A when facing the North. That is also  designed to compensate, as the learned Chief Justice stated, for the smaller surface area appellant has obtained on Plot A compared to what the respondent obtained on it.

[6]   The main contention of the appellant is that this property arrangement has not afforded him the clean break from his unhappy relationship with the respondent. Further, he has to suffer the presence around of the male visitor for whom the appellant left him. He had always been for selling the property and sharing the proceeds between them.

[7]   Now the matter of sale was considered by the learned Chief Justice. His view has been that, on account of their old age and lack of income, they risk not having a roof at all over their heads.

[8]   The acrimonious relationship which was apparent between them as well as the presence of the third person, even if adverted to in evidence, were factors considered by the learned Chief Justice. He, however, did not give much weight to them in the final analysis, deciding that they would be able to live under the same roof with minimal contact.

[9]   In our view, this aspect of the arrangement should have been given its due weight. If marriage is a union of corps et biens, divorce is a disunion of both the corps as well as the biens.  If the two corps are put asunder, the biens should also be put asunder as a rule so that the biens does not take back the freedom which the corps has given. The divorce should not be on paper only but in fact as well, not only in body but also in property, not only in theory but in effect. The reasoning of the learned Judge that sale of the properties may result in their not having a roof over their heads in their old age is a possibility too remote considering the personal conditions and possibilities of the two parties.

[10]   It is our view that, while the sub-division into Plot A and B and the distribution is fair and reasonable and so is the joint ownership, the proximity of the two in the same house has placed the estranged couple in a position of unequal dignity. It has given more dignity to the respondent than it has given to the appellant in his lonely and weakening old age. Human dignity,  which is one of our constitutional guarantees is far too often taken for granted. Likewise, it is far too often overlooked that a civilized society should ensure that its ageing folks do not end their last days on earth in loneliness, bereft of any dignity. In such a situation, the appellant is being forced into an arrangement where he will be daily reminded of a partner who left him for another with the physical presence of both under the same roof even if on different floors.

[11]   In the interpretation of section 20(1)(g) of the Matrimonial Properties Act, we have to look at all the circumstances of the case which are not limited to the material aspects only: see Senville Esparon v Beryl Esparon SCA 12 of 1997; Maurel v Maurel (Unreported Civ A 1 of 1997; Gissing v Gissing [1971] AC 886; [1970] 2 All ER 780 (HL); Pettit v Pettit [1970] AC 777; [1969] 2 All ER 385 (HL).  To restore them to a fair property arrangement as well as equal dignity, to remove the psychological trauma the co-occupation causes to one party at the expense of the other and to restore their respective dignities on an equal measure, the best option is a sale of the property at market value with the proceeds to be shared on an equal 50:50 basis of Plot A. Effect should be given to the Constitutional provision which provides, in section 16, that a citizen has a right to be treated with dignity. 

[12]   We have considered the stand of the appellant  that he would be happy with paying the respondents a sum of ¼ value of Plot A and of the building situate thereon in return for the Respondent transferring her half share of Plot A to him.  That is an offer that respondent may still consider for a period of two months from the date of the judgment, failing which procedure should be engaged for the sale of the property, with the appellant retaining a first option to buy out the respondent at market price.

[13]   We, therefore, quash part of the orders made and substitute that part with an order for the sale of Plot A which is in the joint names with occupation of Apartment B to respondent and occupation of Apartment A to appellant and which is burdened with a 3-meter access road provided on the extreme western border of Plot A when facing the North as indicated on the Survey Report of Mr Yvon T Fostel dated 21^st July 2011; the sale should be at market price and the proceeds shared between the two parties in equal shares; and the appellant will have the first option to buy same.

[14]      Each party to bear half of the costs of this appeal.

S. Domah (J.A)

I concur:.                                ………………….                                           F. MacGregor (PCA)

I concur:.                                ………………….                                           M. Twomey (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014