Hollanda v The Estate of the Late Norson Robert Hollanda (Civil Side 40/2017) [2018] SCSC 1096 (30 November 2018);

 

IN THE SUPREME COURT OF SEYCHELLES

 

Civil Side No: 40 of 2017

 

[2018] SCSC 1096

                                                                                                                                                           

 

 Marie Therese Augustina Hilday Hollanda

Plaintiff

Versus

The Estate of the Late Norson Robert Hollanda

Represented by the Executors:

 

Richard Marcus Nigel Hollanda

1st Defendant

 

And

 

Nadine Richardson Hencel Hollanda

2nd Defendant

                                                                                                                                                           

 

Heard:             11th January and 12th June 2018.

 

Counsel:          Mr. Oliver Chang-Leng for the Plaintiff

                        Ms. Karin Dick standing in for Mr. Bernard Georges for the 1st Defendant

                        Second Defendant: Present and unrepresented.

 

Delivered:       30th November 2018

                                                                                                                                                           

 

JUDGMENT

                                                                                                                                                           

 

ANDRE J

 

[1]        This Judgment arises out of a Plaint filed before the Supreme Court on the 21st April 2017 by Marie-Therese Augustina Hilda Hollanda Bernadette represented by Robert Vidot acting as per power of attorney (“Plaintiff”), against the Estate of the late Norbert Robert Hollanda (“the deceased”) represented by the executors namely Richard Marcus Hollanda (“1st Defendant”) and Nadine Richardson Hencel Hollanda (“2nd Defendant”) cumulatively referred to as (“Defendants”) and in which plaint, the Plaintiff prays for an Order causing the Defendants to transfer land parcel C 9168 (“the Property”) to her and in the event of their continuing refusal to do so within a period of 30 days from the date of the Judgment, that the Judgment will stand in lieu of an instrument of transfer and constitute valid authority for the Land Registrar to cause the Property to be recorded in her name; to grant to the Plaintiff the sum of Seychelles Rupees Fifty Thousand (S.R.50,000/-)in damages together with interest at legal rate form the 19th January 2017 being the date of the last letter of demand; costs and to any other Order that the Court deems fit. The above claims arise out of an alleged breach of an oral agreement (“the Agreement”) before the deceased passed away to sub-divide his Estate giving rise extraction of the Plaintiff’s house from the Estate hence the Property and transfer same to the Plaintiff.

 

[2]        The 1st Defendant filed statement of defence of the 4th September 2017 denying the plaint            and further proposing to sell his share of the Property to the Plaintiff provided she was            willing to pay half the value of the Property.

 

[3]        The 2nd Defendant entered into a Judgment by consent with the Plaintiff of the 19th           September 2017 wherein, in a gist he agreed that, “pursuant to an oral agreement        between the deceased and the Plaintiff to which he was privy of for he was informed by       the deceased before his death of same, to transfer his undivided share in the property to             the Plaintiff”.

 

[4]        The hearing took place on the above-mentioned dates with respect to the 1stDefendant      and upon completion of the hearing, both parties filed written submissions of the 3rd and       the 25th July 2018 respectively of which contents have been duly considered for the    purpose of this Judgment.

 

[5]        The following is in a gist is the relevant factual background as per Pleadings filed on record.

[6]        The 1st Defendant is one of the sons of the deceased who passed away in the year 2014.   Thereafter, his two sons, the Defendants are his only heirs and were subsequently  appointed as the executors of his Estate. The Plaintiff, the sister of the deceased at all  relevant times  was domiciled in Italy. Prior to moving to Italy she lived on the Property forming part of the deceased Estate during the deceased lifetime in a house that she built  in the early 1980s. The deceased at the time lived in a separate house built on the Estate.

[7]        The Estate formerly constituted of one large parcel and sub-divided into different parcels.   But before the deceased passed away he started the process to sub-divide his Estate.    Mr Robert Vidot (“Mr Vidot”), the Plaintiff’s son and representative in these  proceedings, was the one who initiated the application process by approaching Sinon Surveys. The deceased signed the application forms and was present when the process of    beaconing took place and same was confirmed by surveyor Mr. Joelane Rodney Sinon. Sadly, the deceased passed away when the sub-division process was not yet finalised.

[8]        After the deceased death the sub-division was effected and the sub-divided parcels are    C1966, C1967 and C1968 (later the Property). The Plaintiff’s house is on the Property,      which is also the largest of the three parcels. This parcel is the subject of this dispute. The         house of the deceased is on C1967. The 2nd Defendant is currently living in this house  and parcel C1966 remains vacant.

[9]        Since the deceased died intestate, the three parcels were inherited by the Defendants in    half shares. The Plaintiff claims that she is entitled to the Property because the deceased   had orally agreed to give it to her. She claims that the deceased made this undertaking before he passed away in 2014 and also agreed to sub-divide the land for this purpose. The 2nd Defendant subsequently gave up his half share in the Property to the Plaintiff at             no cost by virtue of the Judgment by consent (supra) and according to him confirming the       plaint of the Plaintiff, the deceased orally agreed to give the Plaintiff the Property which is why the deceased sanctioned the sub-division of the Estate. The 1st Defendant refused       to do so hence raison d'être of the current Judgment.

[10]      At the hearing, the testimonies that were adduced in evidence, in support of Plaint            and the Defence reveal briefly as follows.

 

[11]      The Plaintiff called three witnesses namely her son Mr Vidot, the 2nd Defendant and         the surveyor Mr. Joelane Sinon.

[12]      Mr Vidot testified primarily in a gist, on the history of the Property and the relationship    between the Plaintiff being his mother and the deceased and the alleged oral agreement             and the subsequent sub-division. He testified that the property had belonged to his family   before the deceased owned it. That the Plaintiff had lived in the house on the Property         since 1984, when she built it. According to him, the Plaintiff and the deceased had a good           relationship and before the deceased passed away suddenly in 2014. That he was present      when the oral Agreement was made between the Plaintiff and the deceased about the       transfer of the sub-divided portion being the property to her. He further testified that they            were the only three persons present.

[13]      That the reason why the Agreement was not reduced into writing was because they had a             good relationship. He also testified that the Defendants were both aware of the Agreement because the deceased told them about it afterwards. He was not present when       this information was conveyed but the deceased informed him that he had told his sons          about the Agreement. That he could not recall when the Agreement was made but he could   only recall that the Plaintiff was on holiday in the Seychelles when it happened.        According to him, the deceased action to commence the sub-division later is confirmation  as to the follow-up to this Agreement.

[14]      Mr. Vidot further testified in support of the plaint that the deceased started the sub-  division application process before he passed way and that he paid for the sub-division  when the deceased was unable to pay. He testified that after the passing away of the  deceased, the surveyor informed that the consent of the executor was required if the sub-division was to proceed. Initially, all were agreed about the sub-division and transfer,  but later, the 1st Defendant refused to sign the transfer papers. He thus testified that he  was taken aback by his refusal.

[15]      With regards to the occupation of the house on the Property, Mr. Vidot testified that  he had always lived at the house and that he made improvements thereto after the  deceased passed away. He also stated that whenever the Plaintiff came to visit Seychelles, she would live in that house and she left him in charge of the house. He  testified that he firmly believed that the deceased his late uncle’s, his intention was to sub-divide the land and transfer it to his mother.

[16]      Under cross examination, he denied that the mother’s house was abandoned for some time and confirmed that his mother instructed him to pay the surveyor for the sub-   division. His testimony was also to the effect that there had been meetings between   him and the Defendants and the deceased concerning the sub-division prior to the latter’s death. It was only after the passing away of the deceased that the 1st Defendant began to    withdraw from the transfer. Lastly, he reiterated that the reason why there was no will was because of the close family relationship.

[17]      The 2nd Defendant, Mr Nadine Hollanda, also brother of the 1st Defendant largely    corroborated Mr Vidot’s evidence (supra). He testified briefly, that he was aware that the   deceased wanted to sub-divide the Estate and transfer the Property to the Plaintiff. That      the deceased had various projects planned, which included subdividing the Estate and   transferring the three portions to himself, the 1st Defendant and the Property to the Plaintiff. That he personally had the conversation with the deceased about four or five  years before he passed away and that these conversations sometimes took place with the   1st Defendant being present and sometimes only with him. He also confirmed that the  deceased began the process of sub-division, but that he passed away suddenly and        therefore did not finish it.

[18]      He further testified that after the passing of the deceased, Mr Vidot approached him and told him about the Agreement and that they needed to sub-divide the Estate. He told Mr    Vidot that he had heard about the Agreement through the deceased. Mr Vidot explained     the procedure to continue, telling him that they had to be appointed as executors. They went to speak with the 1st Defendant and they all agreed to commence the process. The    sub-division was completed, but when they were to sign the transfer forms, the 1st        Defendant refused to sign. He did not provide a proper reason for the refusal. He testified            that he believed that it was the deceased wish to transfer the Property to the Plaintiff   before he died. He further testified that he signed the Judgment by consent in favour of          the transfer, and that he believed that the 1st Defendant should transfer his undivided share of the Property also as per wish of their late father.

[19]      Under cross-examination, he further confirmed that he was not present when the oral        Agreement was made but he heard about it from his father afterwards. He testified that he      spent two or three months with the deceased before his passing away but he was abroad          when the deceased fell ill. With regards to the Property and the other two sub-divided   parcels of land forming part of the Estate of the deceased, he reiterated that the former        was intended for the Plaintiff. He denied that there was a dispute about the other two      parcels between himself and the 1st Defendant. According to him, the deceased had          wanted to divide the Estate into five portions. He confirmed as Mr Vidot testified that the    deceased started the process of sub-division but passed away before it could be   completed. He also confirmed that the Plaintiff paid for the process, as per her Agreement      with the deceased. As to his father health, he testified that his father was fit and healthy             when the application was done and that the Plaintiff and his father were very close hence             the reason why his father left no Will and this is how things were done in their family. He             also confirmed in cross-examination, that the estate formerly belonged to their family and        it was his father’s wish that they would all live communally, with the Plaintiff.

[20]      The last witness called by the Plaintiff was the surveyor, Mr Joelane Rodney Sinon who   testified mainly about the application process for the sub-division of the Estate of the          deceased. Mr. Sinon testified that he was first approached about the sub-division of the land by Mr Vidot on behalf of deceased and that Mr Vidot paid for the sub-division. That     the application for sub-division was completed and signed by the deceased and that was a          prerequisite of the application. That he met the deceased on the Property when he went to         conduct the survey and to place the beacons marking the sub-division. Mr Vidot was also             present. That the deceased informed him that he wanted to sub-divide the land to give to his relatives. He testified further that after the ceased passed away continued with the   sub-division without contact with the heirs. He stated that this was permissible, as the deceased had signed all the documents prior to his death and the sub-division was        approved on 2nd May 2014.

[21]      The 1st Defendant on his part, testified on his own behalf and dwell mainly on his relationship with the deceased and the 2nd Defendant and the Property. He testified in a gist, that he lived with the deceased until the age of nineteen (19) and that his brother did       not grow up with him. That had a close relationship with his father and that he never    heard   his father speak about subdividing the Property and or transferring any part of his        Estate to the Plaintiff. That his father was ill for about three months before he died. That it was only after his death that he was approached by his brother and Mr Vidot and that       he did not know about any sub-division prior to this. He thereafter according to him,            agreed to the   sub-division but was dissatisfied with the intended allocations. He testified         that he did not            want to remain in co-ownership with his brother and intended to file an    application for a sub-division in kind. He also said that he was not opposed to transfer of           the Property but he would transfer his share to his aunt upon payment of half the value of          Property. He    testified that he had an offer letter sent to his aunt, but received no reply.

[22]      Under cross-examination, he testified that he and his brother did not have a good relationship and that he did not know why his father commenced the sub-division and    reiterated that his father did not speak with him about this. He confirmed that he signed forms regarding the sub-division but that he did not know what his father’s motivation            was for the sub-division. He confirmed that he was prepared to sell his share in the       Property but was not willing simply to give it up at no cost. He testified that his brother    had asked him for half a share in the house where the father lived which is why he      required the half share from the aunt.

[23]      Noting the salient evidence relevant to the pleadings, I shall now turn to address the legal             standards and its analysis based on the evidence led in this matter.(supra).

 

[24]      The crux of the dispute arising in this case is, “whether the deceased orally undertook to    transfer the Property on which the Plaintiff’s house is situated (C1968) to her after the   sub-division had taken place. In other words, whether despite the absence of a Will, this         Court must find that the intention to transfer to the Plaintiff has been proved”. To arrive at such a determination, the Court is required to analyse the evidence led in this case       (supra).

[25]      The relevant provisions of the law to be considered in this matter are Article 718 as read   with the provisions of Article 1026 of the Civil Code (“Code”), which Articles provide       for the opening of the succession upon the death of a person and in this case the deceased,           as well as to the duties of the Heirs/Executors by virtue of Article 1026 of the Code          whereby they are to inter alia, to represent the estate in all legal proceedings.

[26]      Further, Article 1026 of the Code read together with the provisions of Article 1029 of the             Code, in turn provides additionally, for the, “executors to represent the Estate in all legal             proceedings”, hence obligating the executors to do any act and all things in legal   proceedings that the deceased person could have done had they been alive. It thus          follows, that that any rights, debts or obligations of the deceased person as provided         under   Article 1028 of the Code fall under the responsibility of the deceased estate duly      represented by the executors.

[27]      Following the above purposeful interpretation and meaning of the provisions of Article     1028 as read with Article 1029 of the Code, it is evident that albeit distribution of the    entirety of the estate of the deceased ‘de cujus’ to the heirs, there can still be found       liability on behalf of the Estate for failing to honour obligations of the de cujus and in this            case the alleged Agreement between the deceased and the Plaintiff. To rule to the           contrary would lead to complete absurdity and breach of natural justice if through bad      faith and a way to bypass the legal obligations of the deceased, the executors acted           otherwise.

[28]      It is common cause that the Plaintiff did not testify at the trial and the only evidence        about the details concerning the existence and contents of the alleged oral Agreement was    led by Mr Vidot, her son who testified that he was present when it happened. His      evidence about the details of the Agreement, for instance the date on which it was made,        was not very clear. He could not state when the agreement was made but testified that it        could have been seven (7) or eight (8) years ago when his mother was on holiday in the   Seychelles. The 2nd Defendant substantiated the existence of the oral Agreement, stating   that his father   informed both him and his brother about the Agreement. The 1st Defendant            however disputes the Agreement.

[29]      It is to be noted at this juncture that it is a difficult task to reconcile these conflicting        versions, which is a difficulty expected where a claim of oral Agreements are made. But      Jurisprudence has extended the principle of impossibility to secure written proof to moral           impossibility and such moral impossibility may arise from the relationship between the parties inter alia, where close family ties are involved where written proof may not             possible. (Reference is made to the matter of (Pamela Coopoosamy v Joe Morel Duboil             SCA 1 of 2011) and (extracts from the book of Justice Ander Sauzier Introduction to             the Law of Evidence in Seychelles (Second Edition 1983)).It thus follows, that the         Court   has a judicial and wide discretion to determine whether such a link exists            depending on the facts of the case.

[30]      In performing the above exercise judiciously, it is for this Court to determine which           version it prefers taking into account several factors including the credibility of the    witnesses subject to the trite principle in civil matters that the burden rests on the Plaintiff           to prove their claim on a balance of probabilities “he who avers must prove”. (Reference             is made to the matter of, (Robert Horwath v Gilles Pinchon & Ors (Civil Appeal SCA 30/2013) [2018] SCCA 8 (11 May 2018)).

[31]      I note at this stage also that the evidence led on behalf of the Plaintiff as above-referred   and illustrating the surrounding circumstances of the oral Agreement withstood cross-  examination. Similarly, the 2nd Defendant’s corroboration of the existence of the oral    Agreement and his knowledge of it and the extent of the 2nd Defendant’s knowledge of it          was not seriously challenged. The 1st Defendant, on his part merely challenged that he       had knowledge of any intention to sub-divide or transfer the Property.

[32]      It is undisputed that the deceased land started to sub-divide his Estate before his death    and of crucial importance, the 1st Defendant has accepted that his father had begun the    sub-division process. He accepted Mr Vidot’s version that this was what happened and he    did not adduce any evidence to disprove it either. It is thus abundantly clear that he        participated with the conclusion of the sub-division after he was advised by Mr Vidot that       his father started the process. He has not shown that he did not understand what the       process was all about then and did not either challenge the motivations for the sub-           division at that stage. He partook in it, it seems, with the knowledge that it would result in     the transfer to the Plaintiff for why would he accede to the request of Mr. Vidot and his          own brother the 2nd Defendant. He has not led any evidence to the effect that he was     misled at that stage.

[33]      The 1st Defendant did not adduce any evidence to the effect that he disputed what Mr     Vidot told him, about the sub-division and the intended transfer because he had not heard      about this from his father. A reasonable Tribunal would presume that on a balance of       probabilities, he would have challenged the sub-division that that very stage. I am      therefore in the circumstances inclined to prefer the Plaintiff’s version, namely, that at            least at the stage of sub-division when the deceased had passed away, the 1st Defendant             accepted the sub-division and the purpose for it.

[34]      It follows, thus and determined that the surrounding circumstances after the death of the deceased and the 1st Defendant’s voluntary participation in the sub-division processes           supports the version of the Plaintiff and to the existence and follow-up pf the alleged oral        Agreement and hence it is accepted by this Court as the most credible version and is to be          preferred and upheld. It thus follows, that the evidence adduced by the Plaintiff as     compared to that of the 1st Defendant’s own evidence, shows on balance of probabilities     that the intention of the deceased and the first parties was to sub-divide and transfer the             Property to the Plaintiff after the death of the deceased.

[35]      As a direct consequence of the above analysis and finding, the Plaintiff is thus entitled to             her prayer for the transfer of the Property in her name as sought in the plaint (supra).

[36]      It is to be noted however, that this Court finds that the Plaintiff is not entitled to her claim           for damages as same is not supported factually and or legally given all the circumstances         surrounding this case.

[37]      In conclusion, the Plaint is partially granted in the following terms:

            (i)         The Defendants are ordered to transfer the Property namely, Parcel No. C1968 in                          the name of the Plaintiff within a period of thirty (30) days hereof and failure of                           which the Registrar of Lands is ordered and directed to effect the indicated                                  transfer without any further delay;

            (ii)        The Plaintiff’s claim for damages is dismissed for reasons given; and

            (iii)       Each party shall bear their own costs.

 

[38]      As obiter, this matter clearly demonstrates the difficulties arising when the deceased dies intestate and no proof of written documentations as to the deceased intention as to the   disposition of his estate to unreserved heirs. It is unfortunate that in such instances, the            Court is placed in the invidious position of having to consider the intention of a deceased          whose intention is difficult to discern where conflicting versions are presented. The     determination of cases like this, based on ordinary rules of evidence is onerous and may          in certain instances be viewed unfairly especially in a case like the present one where             family members are concerned. However, in the end it is the Court’s hope that the            outcome will             seldom resolve the family dispute satisfactorily.

 

 

Dated this…………………………….. day of ………………………………. 2018.

 

 

 

 

 

 

ANDRE- J

Judge of the Supreme court