IN THE COURT OF APPEAL OF SEYCHELLES

Reportable
[2021] SCCA 18
Civil Appeal SCA 41/2018
(Appeal from CS 112/2014) SCSC645
 
Dora Shelly Helene Roselie
Joseph Mathew Roselie
Ralph Francis Roselie
Jourdan Gonsalve Roselie
Marie, Celine Roselie
Lucy Marline Nella Roselie
(rep. by Mr S. Rajasundaram)                                               Appellants                   
 
and
 
Molly Rita Roselie                                                                Respondent
(rep. by Mr France Bonte)

Neutral Citation: Roselie & Others v Roselie (SCA 41/2018) [2021] SCCA 18
30th April 2021
Before:                   Fernando President, Robinson, Dingake JJA
Summary:            
Heard:                    19 April 2021
Delivered:              30th April 2021

                                                                        ORDER
(1) The Appeal is dismissed.
(2) No order as to costs.

 
JUDGMENT
______________________________________________________________________________
ROBINSON JA (FERNANDO PRESIDENT concurring)

I have had the advantage of reading in draft the Judgment delivered by my learned brother, Justice Dingake. I also hold the view that the appeal should be dismissed, but for the reason that the plaint filed by the Appellant does not disclose a reasonable cause of action against the Respondent. I give reasons.
The action has been instituted against the Respondent based on Articles 913, 920 and 921 of the Civil Code of Seychelles. Section 71 (d) and (e) of the Seychelles Code of Civil Procedure stipulates ―″71. The plaint must contain the following particulars: […]; ″(d) a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action;(e) a demand of the relief which the plaintiff claims″.
I observe that the plaint filed by the Appellant did not aver with certainty, precision and clearness all the particulars in support of her claim. The plaint averred that the transfer of parcel C3387 to the Respondent purported to be a sale but was, in reality, a disguised donation. The plaint does not contain any averments about the disposable portion of which the deceased was entitled to dispose of and the reduction of dispositions made under the mentioned Articles. It is a fundamental rule of our system of pleading that every pleading must contain all the material facts on which a party relies for his claim or defence. ″The word ″material″ means necessary for the purpose of formulating a complete cause of action, and if any one ″material″ fact is omitted, the statement of claim is bad.″ (Bruce v Odhams Press Ltd. [1936 1 KB at p. 697]). The same principle applies to a defence. For example, in Gallante v Hoareau [1988] SLR 122, the Supreme Court, presided by G.G.D. de Silva Ag. J, at p 123, at para (g), stated ―

″[t]he function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the parties. It is for this reason that section 71 of the Seychelles Code of Civil Procedure requires a plaint to contain a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action″.
 

Moreover, the prayers are not without their challenges. The Appellant has asked the Court inter alia to declare the sale null. I hold the view that such a prayer is incompatible with the cause of action in such a case. I state this because once a plaintiff establishes a disguised donation, it yields to the rules of fonds of donations. Though the object of the disguise would have been to escape the rules of the reserve, the donation is not null. In such a case, the dispositions that exceed the disposable portion shall be liable to be reduced to the size of that portion. [See Encyclopédie Dalloz Donation p 350 note 523 ″c. ― Conséquences de la preuve de déguisement″. See Article 922 of the Civil Code of Seychelles. Thus, there is no relief prayed for in this case.
I mention in passing that I am reserving my opinion as to whether or not to prove a ″donation deguisée″, bad faith on the part of the deceased and to that matter, fraudulent pretence should not only be averred but must be proved against a defendant.

Section 92 of the Seychelles Code of Civil Procedure provides ―

 
″92 The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer …″. I order accordingly.
 
7.         For the reasons stated above, I dismiss the appeal but for the reason that the plaint discloses no reasonable cause of action against the Respondent. I make no order as to costs.
 
 
Signed, dated and delivered at Ile du Port on 30th  April 2021
 
___________________
Robinson JA
 
 
                                                            ________________
I concur                                               Fernando, President
 
 
DINGAKE JA
 
 
INTRODUCTION

This is an Appeal by the Appellants against the decision of the court a quo’s decision to dismiss the Plaintiff’s Plaint with costs. The court also dismissed the counterclaim.
The fate of this Appeal lies in the manner the cause of action was framed which in itself is dispositive of the matter and also on a consideration of whether the Appellants proved their claim in the court below, given the requirement of the law that he/she who alleges must prove.

BACKGROUND

The case concerns a family matter. The Appellants and the Respondent are siblings and heirs of late Helene Roselie who died intestate (“Deceased”). The Deceased was the owner of land parcel C1554, which was subdivided into parcels C 3385, C 3386 and C 3387. Parcels C 3385, C 3386 were transferred to the two of the Appellants, Ms Marie Celine Roselie (5th Appellant) and Ms Lucy Marline Nella Roselie (6th Appellant) by deeds of transfer in 1995 for the sum of Seychelles Rupees Ten Thousand (SCR10,000/-) each as stated on the transfer deed.
In 2009, the Deceased transferred Land Parcel C 3387 to the Defendant for the sum of Seychelles Rupees One Hundred and Seventy- Five Thousand (SCR175,000/-) as stated on the transfer deed.
The Appellant alleged that the transfer to the Respondent was carried out without their knowledge and amounts to a “donation deguisee” with the intention to deprive the Appellants from benefitting from the Deceased Estate.

 
THE LAW
 

Prior to the analysis of the pleaded law, it should be noted in general and in brief, that under Seychelles rules of succession certain portion of the deceased estate is reserved for the heirs and may not be disposed of (Articles 913-919 of the Civil Code deal with the disposable portion of the property; e.g. Article 913: “[g]ift inter vivos or by will shall not exceed . . .  one fourth [of the property of the donor], if he leaves three or more children; . . .”). This provisions do not apply to bona fide purchasers, however, certain purchases may be set aside if proved to be donation in disguise (donation deguisse). In such cases provisions relating to the Reduction of Gifts and Legacies may apply (Article 920-930; e.g. Article 920: “Dispositions either inter vivos or by will which exceed the disposable portion shall be liable to be reduced to the size of that portion at the opening of the succession”).
The main grievance of the Appellants in the present case appears to be that the 2009 transfer of the land by the deceased mother to one of her daughters, the Respondent, deprived the other heirs of their share in the inheritance. Although, two of the Appellants, Ms Marie Celine Roselie (5th Appellant) and Ms Lucy Marline Nella Roselie (6th Appellant) received a parcel of land each from their mother in 1995 by the deed of transfer of land, which states that the purchase price was SCR10,000.00 each. Although, Ms Lucy Marline Nella Roselie has actually testified during the Supreme Court proceedings (page 42 of the Court of Appeal Bundle; page 7 of 17 of the Supreme Court Proceedings on 20th May 2016 at 9a.m.) that she did not actually pay for the transfer of land as it was just given to her by her mother.

Pleaded in Plaint

Appellants (then Plaintiffs) did not rely on any specific statute or case law in the Plaint. In particular Article 922 of the Seychelles Civil Code that appears applicable should have been pleaded. More significantly the Plaintiff did not plead the disposable portion having regard to the relevant portions of the law earlier cited.
The plaint alleges that (i) the signature of the deceased on the 2009 deed is different to the 1995 deeds, indicative of a fraudulent transaction by the Defendant, also noting that the deceased was unwell for lengthy period of time; and (ii) that the 2009 transfer was donation deguisse with the intention of depriving the other heirs from benefiting from the said land parcel.
The trial judge identified three issues for determination, which related to authenticity of signature; donation deguisse; and lesion, which was counterclaimed by the Respondent (then Defendant).
With regards to the first issue of authenticity of document, the trial judge referred to provisions of Articles 1317 and 1319 of the Civil Code:

“Article 1317
           
An authentic document is a document received by a public official entitled to draw-up the same in the place in which the document is drafted and in accordance with the prescribed forms.
Article 1319     
 
An authentic document shall be accepted as proof of the agreement which it contains between the contracting parties and their heirs or assignees.
 
Nevertheless, such a document shall only have the effect of raising a legal presumption of proof which may be rebutted by evidence to the contrary. Evidence in rebuttal whether incidental to legal proceedings or not, shall entitle the court to suspend provisionally the execution of the document and to make such order in respect of it as it considers appropriate.”

The trial judge also noted that since the plaintiffs failed to prove mental incapacity of the deceased, the contract (deed of transfer) was valid under Article 1108 of the Civil Code as it did not lack consent “which is a very crucial element of the validity of a contract”. Article 1108 provides conditions for validity of agreement:

“Article 1108
Four conditions are essential for the validity of an agreement –
The consent of the party who binds himself,
His capacity to enter into a contract,
A definite object which forms the subject‐matter of the undertaking,
That it should not be against the law or against public policy.”

With regards to donation deguisse, the trial judge considered the principles established in Pragassen v Vidot (2010) SLR 163. It was held in Pragassen:

Generally, an inter vivos gift made during the lifetime of the deceased is legal.
An inter vivos gift (made by a deceased who is survived by 9 heirs), which is in excess of one fourth of the value of the estate, is contrary to art 913 of the Civil Code. The party who is relying on art 913 of the Civil Code must prove the value of the gift and the estate in order to successfully rely on art 913.
To invoke the notion of disguised donation, bad faith and fraudulent pretence of the deceased must be proved.
To prove a disguised donation, the plaintiffs must prove that the gift infringed the basic principles of ordre public and was executed fraudulently to deprive the plaintiffs of their inheritance. (emphasis added)

With regards to bad faith, it was also stated in the Pragassen:

“To invoke “donation deguisee”, bad faith on the part of the de cujus and for that matter fraudulent pretence not only be averred but must be proved against the defendant. In this case, none of the elements which constitute “donation deguisee” has been proved nor is apparent in the pleadings. It is clear that the lease agreement was a legally executed legal document as far as competence of the parties it and its form is concerned hence the issue of disguised donation does not arise at all unless proved otherwise”. (emphasis added)

Furthermore, with regards to fraud it should be added that Article 1116 and numerous case law states that fraud shall not be presumed and must be proved:

 
“Article 1116
 
Fraud shall be a cause of nullity of the agreement when the contrivances practiced by one of the parties are such that it is evident that, without these contrivances, the other party would not have entered into the contract. It must be intentional but need not emanate from the contracting party.
 
It shall not be presumed and it must be proved.”

It is a settled principle of our law that the burden of proof is on the party who challenges a document to prove its falsity; that fraud must be proved by adducing positive evidence and that higher degree of probability is required but not so much as in criminal cases (Charles Lucas v Marie Georges (Civil Appeal SCA13/2018) [2019] SCCA 13 (10 May 2019); Albert v Rose (2006) SLR 140; Houareau v Houareau (2011) SLR 47; Basson v Bason (2005) SLR 129; Katz v Ward & Anor (CS 11/2015, CS 12/2015) [2017] SCSC 780 (04 September 2017)).

 
GROUNDS OF APPEAL

The Appellant submitted three grounds of appeal in the Notice of Appeal, however, indicated in Skeleton Heads of Arguments that the third ground will not be pursued. The two grounds of appeal are:

 
Ground 1 – The learned trial Judge erred in dismissing the plaint of the Appellants despite the overwhelming evidence adduced in support of the case;
            Ground 2 – The learned trial Judge erred in dismissing the plaint of the Appellants despite the contradictory evidence given by the Defendant and the Mr Maurel who deponed as witness;
Ground 1 – overwhelming evidence adduced in support of the Appellant’s case

Submissions of the Appellant in support of the first ground of appeal can be subdivided into three themes of arguments:

No proof of payment & receipt does not assist;
Deceased was not in good health;
Authenticity of signature.

No proof of payment & receipt does not assist

The Appellants argue that statement of the learned trial judge that, “proof of non-payment was never adduced before the Court” (para 57 of the Supreme Court Judgement) is contrary to what was adduced by the first Plaintiffs, which as per submissions of the Counsel appears to be that, “the first Appellant was twice responded that there was no proof of payment for the sale of the parcel . . . The Defendant did not adduce any proof of payment either”.
The Appellant has failed to tender any cogent and credible evidence to show that payment was never made.
On the other hand the Defendant has produced receipt dated 7th April 2008 signed by the deceased acknowledging the receipt of “the sum of SR. 175,000/-, being for the purchase of the dwelling-house and land Parcel C.3387” (E5 of the Court of Appeal Bundle “CA Bindle”). The Appellant argues that this document does not assist the Respondent’s case because acknowledgment was dated 2008 and transfer was done one year after. However, it is not implausible that the payment was done before the official transfer by deed was finalised and registered.

 
Deceased was not in good health

The Appellant argues that the deceased being “unwell during a lengthy period of time, a medical condition which could have affected her ability to make proper decisions including signing and execution of documents”.
This argument has been exhausted during the Supreme Court proceedings. The medical report does not indicate that the deceased suffered from any mental health conditions or had any mental incapacity due to strokes or any ailment.
Doctor Sahar, witness for the plaintiff, testified that he was not able to address the deceased mental capacity as he had not seen her in person, but opined that some patients recover very well from strokes. (page 39 of the CA Bundle).
Physical ill-health does not necessarily mean that the person lacks mental capacity. Further, as indicated by Doctor Sahar, some stroke patients recover very well. Not all stroke patients are thereafter suffering from mental difficulties. The medical report relied upon by the Appellant do not indicate that the deceased lacked mental capacity.
The Respondent, on the other hand, via testimony of Mr Maurell, Attorney-at-Law present at the time when the transfer was executed supported their averments that the deceased was of sound mind and capable of executing the document (pages 95-96 of the CA Bundle).

Authenticity of signature

The Appellant challenged the authenticity of the mother’s signature, contending that the signature on the 2009 transfer deed was different from the ones on the 1995 transfers; that the trial judge queried whether expert evidence would be adduced; that the trial judge noted that her own signature changed over the years and the Appellant’s Counsel remarked that in this case the change was gross; that the trial judge reiterated the need to have an expert when dealing with fraud and donation deguisee.
The Appellant argued that the trial judge misdirected herself during the course of proceedings. In support of this part of argument the Appellant relies on Michaud v Ciunfrini SCA 26/2005, 24 August, 2007 and the authorities cited in Charles Lucas v Marie Georges (Civil Appeal SCA13/2018) [2019] SCCA 13 (10 May 2019) at paragraphs [32]-[35] (reproduced below).
It was held in Michaud:

“If a handwriting expert is not available, the judge may make a determination on the comparison of genuine handwriting compared with disputed handwriting. However, the judge must bear in mind that justice would be better served by the assistance of an expert.” (emphasis added)
 

It was stated in Charles Lucas v Marie Georges at paragraphs [32]-[35] that assistance of an expert is as a general rule desirable when it comes to comparing or verifying disputed hand writings and or signatures.
In the paragraphs following the abovementioned, the Court in Charles Lucas v Marie Georges went further to indicate other ways by which handwriting may be proved:

“[36] According to Cross & Tapper on Evidence, 12th edition (2010), evidence can be proved by three types of evidence, namely:

Testimonial evidence: “…the testimony of someone who saw the document executed (…an attesting witness…)…it is usually unnecessary, in the first instance, for a witness to the signature to do more than swear that he saw someone sign in a particular name…unless there are circumstances calling for investigation.”
Someone acquainted with the handwriting
Evidence of a handwriting expert. According to Cross, “It is wrong for a judge to invite the jury to make a comparison without guidance of an expert…”, and cites the New Zealand case of R V Stephens [1999] 3 NZLR 81.
The alleged writer may be asked to write in court for comparison with that on the disputed document. [Cobbett V Kilminister (1865) 4 F &F 490”.

The evidence provided by the Appellants in the Supreme Court was testimony of the Appellants (then Plaintiffs) themselves and ID card of the deceased issued in 2007. Expert evidence was not provided by the Appellants. It appears that the Appellants were asking the court to compare the signatures on the ID card, 1995 transfer deeds with the 2009 deed and take into account evidence of ‘someone acquainted with the handwriting’.
The guidance referred to in Michaud and cited by the Appellants in my opinion is applicable when the court, despite the cautions that expert evidence should be used, decides to nevertheless compare the handwriting themselves. Furthermore, the Supreme Court in the present case did not make a ruling on whether signature was authentic or not, its conclusion with regards to the signature was that the plaintiff did not provide sufficient proof that signature was not authentic. That was concluded after weighting the plaintiff’s evidence with the defendant’s evidence (para [49] of the Supreme Court Judgment).
Defendant’s witness, third party, Attorney-at-Law Mr Gerard Maurel testified that the document was signed by the deceased in his presence. Considering four ways of proving handwriting mentioned in the Charles Lucas v Marie Georges, the evidence provided by the Respondent (then Defendant) outweigh the evidence of the Appellant. Expert evidence was not provided, sample of signature of course could not have been provided by the writer, therefore leaving the two ways of proof: testimony of someone who saw the document being executed and someone who knew the writer.
Both the Appellant and the Respondent of course knew the writer, being their deceased mother, and provided opposing evidence in support of their respective cases. The Respondent’s testimony was also corroborated by testimony of Mr Maurel, Attorney-at-Law in whose presence document was executed. The trial judge did not err in her findings, in our opinion, as the Appellants did fail to prove its case in accordance with standard specified in Pragassen.

Ground 2 – The learned trial Judge erred in dismissing the plaint of the Appellants despite the contradictory evidence given by the Defendant and the Notary who deponed as witness

Learned Counsel for the Appellant submits that the essence of contradiction is in that the Respondent stated in the Court Proceedings (page 84 of the CA Bundle) that document date had been corrected from 2007 to 2009 by ‘them’ (likely meaning the deceased and the Notary) without any initials and that the Notary testified that the year of transfer was 2009 and denied there was another date prior to that. Counsel argues that this contradiction is material as the deceased was hospitalised in 2007. With regards to the deceased being hospitalised in 2007, as per medical report she was admitted to hospital for only 2 days and it is not specified when exactly in 2007.
The referred to testimony of the Notary can be found at page 94-95 and there is no need to traverse it in any detail. The Notary was clear that the transfer was signed in December 2009.
The question put to the Mr Maurel was when the document was signed. There is no express question in the Court Transcripts regarding the changes made in the year of the document  put to Mr Maurel and no testimony of the Mr Maurel expressly denying another date prior to that.
At page 95 learned Counsel carries on to question regarding when the document was brought to the Registry and regarding the Registry stamp, which is dated 2 months after the document date, year 2010. Learned Counsel then questions why there was a delay between date of signature and the presentation to the Registry in two months. Mr Maurel replies “maybe different reasons, delay with the presented to the secretary and the secretary is delayed forwarding to the Registry”.
Learned Counsel finishes the Ground 2 of Appeal submission stating that “failure to initial a public document duly corrected is serious and amounts to tampering. This failure was not taken up in the judgement of the learned trial Judge (Case of Jerry Hoareau v/s the Republic SCA 13/2010”. A document becomes public once it is stamped by the public authority, which was stamped in 2010 and further certified as true copy of the original by the Registrar General in 2014. If the correction to the year was done prior to the registration of the deed, there is no tampering with public document.
With regards to the first ground of appeal relating to proof of non-payment and mental capacity of the deceased, the Appellant repeats the arguments already addressed by the Supreme Court without strong indication of error of the trial judge. Averment of the plaintiffs that payment was not made is not supported by any evidence, whereas the Respondent produced signed acknowledgment of payment. The medical report does not provide information on the mental capacity of the deceased, whereas Attorney-at-Law Mr Maurel testified that the deceased was of sound mind during execution of the transfer deed. The supporting arguments relating to signature, in our opinion, do not support the Appellants’ case and on the contrary shows that the judge did not err as she did take caution not to rely mainly and solely on the comparison of the signature and dismissed the case due to not sufficient evidence provided by the plaintiff to prove that signature was not authentic.
With regards to the second ground of appeal, it is our view that Mr Maurel’s testimony does not contradict the Respondent’s testimony, on the contrary it corroborates it. If the year on the deed was corrected prior to its registration with the Register, as it appears to be from the testimony of the Respondent and Mr Maurel, there is no tampering with public document.

[43]     In the result, and for the reasons stated above, this appeal is without merit, and it is dismissed.  There is no order as to costs.
 
 
Signed, dated and delivered at Ile du Port on 30th  April 2021
 
_______________
Dingake JA
 
                                                            ________________
I concur                                               Fernando, President
 
 
                                                            __________________
I concur                                               Robinson JA