Fikion v Cecile and Others (Civil Side No 22 of 2011) [2011] SCSC 47 (28 July 2011);

IN THE SUPREME COURT OF SEYCHELLES

 

BERNADETTE FIKION

Acting in her capacity as Executor of
the Estate of Late
AGNES CECILE and
the Late
MICHEL ITNEY CECILE ….................................PETITIONER

 

VERSUS

1. GUY CECILE

2. JEMMY CECILE

3. CARL HALL ….................................................................RESPONDENTS

 

Civil Side No 22 of 2011

 

 

 

Mr. Joel Camille for the Petitioner Mr. Daniel Cesar for the Respondents

 

RULING

 

B.Renaud J

The Applicant acting in her capacity as Executrix to the estate of the late Agnes Cecile and the late Michel Itney Cecile of Roche Caiman, Mahe, entered this Application and Notice of Motion on 31st January, 2011moving this Court for an order for the Respondents to quit, leave and vacate the Applicant's property known as parcel V2724 at Foret Noire, Mahe, and should they fail to do so, to issue a Writ of Habere Facias Possessionem against the Respondents.

The Respondents were duly served with summons and the Petition and they objected to the Application and entered an Affidavit-in-Answer onl8th February, 2011 and prayed for the dismissal of the Application with cost.

 

 

The Supreme Court of Seychelles derives its powers, to determine in a summary manner, application for the issue of a writ habere facias possessionem, under Articles 806-811 of the French Code of Civil Procedure. The practice of the Court generally, is to determine application for such writ based on the Affidavit of the Applicant and the Respondent's Affidavit-in-Reply. All relevant material evidence must be disclosed in the affidavits, with the relevant documents in support, exhibited therewith. In normal circumstances the Court proceeds to adjudicate the matter on the basis of the Affidavits only and issue or refuse to issue the Writ. However, the Court may allow the parties to make oral submissions.

 

 

The issue of a writ habere facias possessionem is a special remedy available to anyone who is dispossessed otherwise than by a process of law, and, is available to a party whose need is of an urgent nature and who has no other equivalent legal remedy at his disposal. The Court may issue such a writ upon the application by the owner or the lessor of the property. If the Court is satisfied that the Respondent has raised substantial grounds indicating that he/she has a bona fide, genuine, serious and/or a valid defence, the application is refused and the Applicant may pursue a regular action to obtain an alternative remedy.

I have carefully analised the Affidavit of the representative of the Applicant. The Applicant was appointed by the Court on 30th November, 2010 and 21st December, 2010 respectively, to be the Executrix of the estate of the late Agnes Cecile and the late Michel Itney Cecile who were the owner of the property in issue occupied by the Respondents.

 

 

As Executrix of the estate of her late mother and father she urgently need the property for the purpose of renting it out and account the proceeds of rent thereof. According to the Applicant, the Respondents have their own home and are occupying the house in issue purposely to deprive the estate of any proceeds of rents that could have been realized. She claimed that the Respondent have no right or legal interest in the said property which they are illegally occupying. The Respondents are in her view trespassers.

 

 

The Applicant averred that she had requested the Respondents to leave and vacate the said Apartment on several occasions but they have refused to do so.

 

 

Having no other option and as a last recourse he is now praying for a writ habere facias possessionem to issue.

 

 

The Respondents in their Affidavit in answer, inter alia, averred that although the Applicant was appointed Executrix all other heirs did not have notice of the Applicant's appointment. The heirs object to the Applicant being appointed sole Executrix to the estate of the late Michel Itney Cecile.

The Applicant averred that the Applicant never sought the consent of the Respondents nor followed the proper legal procedures including that of fiduciary's duties of Executrix but unilaterally instructed the Lawyer to execute the Applicant appointment before Court. The Respondent also averred that the Applicant sought to prevent them from having access on and to the property of the late Michel Itney Cecile. The 1st Respondent averred that he is a direct heir of the late Mr. Itney Cecile and has been occupying the property all his life. The 2nd Respondent is and has been occupying the house for all his life with the permission and consent of his mother Marie Andre Cecile, the latter a direct heir of the deceased. The 3rd Respondent is the son of Marie Cecile Kozik who is a direct heir and who permitted and consented for her son to live there. All the Respondents further averred that they are ready and willing to buy out the shares of the Applicant in the said property which is the family home. The Respondents also averred that the Applicant does not reside in this jurisdiction as she has been residing in New Zealand for over 30 years. Finally the Respondents averred that they have right, legal interest, license, permission and authority to be in the said property.

 

 

The Respondent prayed this Court, in the interest of justice, not to grant the writ prayed for and to revoke the appointment of the Applicant as the sole Executrix of the property in issue.

 

 

I have given careful consideration to the contents of the application and response as well as the affidavits for and against the application. Ex-facie the pleadings and affidavit evidence it is evident that the Respondents are not squatters or trespassers on the property in issue as they have right and interest in that property which they are claiming. The Respondents jointly hold the majority shareholdings in that property and want to buy out the shares of the Applicant who is a minority shareholder. Furthermore the Respondents claim that the Applicant sought for and was appointed Executrix of the estate without their knowledge and consent and want her removed as such.

 

 

In an application for a writ, this Court cannot remove the Applicant as Executrix. The Respondents if so minded will have to initiate a separate application for that.

 

 

On the basis of the pleadings before this Court as revealed in the Affidavit-in-Answer this Court is satisfied that the Respondents have advanced sufficient ground indicating that they have bona fide, genuine, serious and/or a valid defence to this Application.

 

 

In the circumstances, the application is refused and is accordingly dismissed. I award cost of this action to the Respondents.

B. RENAUD

JUDGE

Dated this 29th day of July, 2011