N.D.L.F v M.G ([node:field-casenumber]) [2018] SCSC 667 (12 July 2018);

This Judgment has been redacted

 

 

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: MA 324/2017

(arising in 122/2009)    

 

       [2018] SCSC 667

 

    

N.D.LF

Petitioner

versus

M.G

(in her capacity as Guardian of R.S)          

 

Heard:             9 February 2018, 23 February 2018, 20 March 2018, 23 April 2018                 

Counsel:          Ms. Alexandra Madeleine for petitioner                         

                        Mr. Joel Camille for   respondent                                   

 

Delivered:       12 July 2018        

 

 

JUDGMENT

 

M. TWOMEY, CJ

 

  • Background

 

  1. The Petitioner and R.S were married for a period of 18 years and divorced in 2012.
  2. Subsequent to the divorce, both the Petitioner and R.S filed applications for ancillary relief with regard to the matrimonial property. Subsequent to these applications, R.S was interdicted. In February 2017, the Court dismissed a further application by the Petitioner for the amendment of his petition to sue the present Respondent in her representative capacity stating that it had no discretion to substitute the Respondent as a party to the petition for ancillary relief.  Finally, in May 2017, the court without hearing the merits of the case, dismissed the petition for ancillary relief on the ground that the Petition should have been filed against the present Respondent in her representative capacity.
  3. While I am reluctant to sit on appeal on a decision of my learned sister, I note that this circular argument and the needless adjournments in this matter have resulted in justice being denied to all parties and the resolution of this matter held in abeyance for eight years. 

Pleadings

  1. In November 2017, the Petitioner filed a new application for ancillary relief against the Respondent in her representative capacity as guardian of R.S asking for orders that she vacates the matrimonial home registered in the Petitioner’s name and that she continued to  occupy solely and a declaration that she had no share in the same.
  2. He has averred in his affidavit that he solely purchased Title S2645 and built the matrimonial home from two loans which he raised with Banque Francaise Commerciale in the respective sums of SR 250,000 and SR 110,000 and that he repaid the loan at the rate of SR 3,500 from his salary.
  3. He stated that he earned more than R.S and had bought most of the furniture and paid for all household expenses and the school fees for their daughter. He also incorporated and set up X (Pty) Ltd and carried out an air conditioning business. He also invested substantially in Y (Pty) Ltd. He averred that R.S had acquired a parcel of land, namely Title H5763 in her sole name during her marriage to him. 
  4.  In reply, the Respondent has averred that the application is time barred having been prescribed in excess of five years. She also however indicates that she is in her representative capacity proposing to counter apply for orders for her sister’s sole ownership of the matrimonial property.
  5. She has further averred that R.S is destitute with no abode of her own and greater hardship would be visited on her if she were to be evicted. She averred that it was within her knowledge that the Petitioner and R.S had cohabited before their marriage and R.S had a salary exceeding that of the Petitioner’s and had contributed to the purchase of the property and building of the matrimonial home and that the furniture therein was a gift from her to her sister.  She denied that the Petitioner had invested in the car hire business.
  6. She averred that Roucou Construction had assisted in the construction of the matrimonial property. She further averred that X (Pty) Ltd had failed and that hers sister’s share therein had never been paid for.
  7. She denied that the Petitioner had paid for his daughter’s school fees and that she instead personally paid the fees including one year of University in Italy. 

The Evidence

  1. The Petitioner testified and reiterated the averments in his pleadings. He introduced among other things the interdiction order dated 9 December with regard to his then wife, R. S. The file of these proceedings were later produced by the Deputy Registrar.  The proceedings reveal that the order was made on the strength of the Petitioner’s daughter’s evidence and both the Petitioner’s and Respondent’s evidence including the latter’s affidavit in which she deponed that her sister suffered from Alcohol Dependence Syndrome and was in imminent danger of losing her life unless treated.
  2. The evidence from those proceedings was inter alia of R.S inability to run the car hire business with accumulated debts and her dipping into the funds to feed her alcohol habit, of reports of her drinking with undesirable persons, and of her being drunk and falling into ditches with her bags of beer.
  3. The Petitioner further testified that he had purchased Parcel S2645 in 1990 before he married the Respondent. He was then in gainful occupation with Cable and Wireless Ltd as a technician earning with overtime a monthly average package of SR11, 000 and as an employee obtained dividends and used SR22, 000 of it to purchase the property. He had subsequently worked for HIS, his brother in law’s air conditioning business, where he was paid SR 9,000 monthly. He remained there for six years after which time he opened his own business X (Pty) Ltd in 1994, also an air conditioning business which ran until it became un-operational in 2010 as a result of differences with his wife who like him was a director of the company. During the time the company was operational they both took a salary of SR 5,000. His wife had 5 shares in the company, and he held the 95 remaining shares therein.  
  4. From 2005, they had also operated a car hire company together,Y , in which his wife had held 60 shares and he had 40 shares. He contributed about SR 40,000 to the business. He had no documentation of the same as he had been barred from his home where his documents were kept. His wife had fallen out with the Respondent, whose hotel had provided most of the car hire clients as a result of which the business suffered and his wife took to drinking. The cars were abandoned, his wife could not keep track who had rented the cars. Then the Respondent opened her own care hire company, in the Petitioner’s words “a heavy hammer to hammer Petit Paris”. He had subsequently not taken part in the operation of the company since 2009.
  5. In order to build the house on Parcel S2645, he solely obtained a loan from Banque Francaise for SR250, 000 secured by a guarantee from his mother and a further loan of  SR 100,000 from Seychelles Housing Development Corporation secured by a charge on the land. He produced documentary evidence of the loan repayment to the housing company which he completed in March 2004. He repaid the loans at the rate of SR3, 500 monthly from his salary which was deposited in his bank account and from where the loan repayments were made.
  6. He did not cohabit with his wife before marriage as it was forbidden by her faith in the 7th Day Adventist Church. He rented an apartment at St. Louis and then Rassool’s apartment whilst his wife, then girlfriend lived across the road at her mother’s house.
  7. When they moved into the matrimonial home he had a surplus of SR 25,000 from the loans he had taken out which he gave to his wife who in turn gave it to the Respondent who imported the furniture for the house.
  8. He moved out of his home in 2010 and had not been able to retrieve his personal belongings and documents which would have assisted him in proving his case. He had moved out because of his wife’s drinking habits and frequent accidents and was afraid he might be blamed for it. Even after her interdiction she remained in the house, unsupervised and continued drinking until the present case.
  9. When they married his wife was earning about SR 4000 to SR 4, 500 as manager in her sister’s shop. As his employment generated more income he had paid for most of the household expenses. He also paid for his daughter’s school fees. He had also done home improvements to the house. He did up the kitchen and refurbished a bedroom. He also extended the main bedroom and the cost of the works was about SR 60,000 to SR 70,000.
  10. In November 1999 his wife had purchased property at Glacis, namely Title H5763 from her sister, ostensibly for her hard work in her sisters’ shops.
  11. Despite vigorous cross examination he denied that he had cohabited with his wife before their marriage, only accepting that he had visited her often and sometimes stayed over wherever she was residing. He also accepted that his wife’s sister had told them of the land going for sale which he then purchased but without any contribution from his wife, then girlfriend. He denied that his girlfriend’s, family had helped construct the house and only accepted that his wife’s brother had supposed to supervise the works but didn’t which resulted in faulty work. He had then asked him not to bother.
  12. In further cross examination, he stated that he was experiencing hardship as he had entered into a new relationship and had two young children and was paying rent of SR 15,000 monthly for his family home. He accepted that he took appliances of which there were two of each in the matrimonial home, namely a TV, rice cooker and washing machine.
  13. The Respondent, a hotelier stated that her sister had managed her shop for thirty years. She had first met the Petitioner in 1984 when he was residing in one of her villas at her hotel which was being rebuilt at the time. The Petitioner and her sister, R.S, subsequently moved out to St. Louis in Rassool’s apartment and then to her brother’s J.S.
  14. The property next to her sister’s A.S at P.P was bought but she did not know whether it was the Petitioner who had bought it. When the house was being constructed the Petitioner and her sister lived with her brother and her brother helped out with the plans and the supervision of the construction.
  15. She also purchased tiles and furniture for the house. When her sister managed her shop she had been paid a salary of SR 10,000 to SR 12,000 in the years 1991 to 2009.
  16.  She also bought a car hire business for her sister. She had paid for five cars. She stated in cross examination that her sister had only stopped working for her for a few months while she ran the car hire company at P.P. She admitted that the Petitioner had cleared the cars that were bought for the company at customs and had paid for the duty and the insurance.
  17. She stated that her sister had always worked. After her interdiction and within three months of her rehabilitation she had returned to work. She had applied for her sister’s interdiction because she was being forced to sign the house over to the Petitioner. She had paid for her niece’’ education from the time the Petitioner had moved out of the house.  
  18. In cross examination she stated that her sister had been interdicted due to her being battered and the misery caused by the Petitioner. She denied that her sister had at any time not been able to manage her affairs.
  19. The Company Registrar, Mr. F.H testified that Company X was in the process of being struck off the Company Register as it was not in good standing and had not made annual returns since the year 2000. Similarly, Y Pty Ltd was not in good standing as no annual returns had ever been submitted.
  20. Mr. J. S also testified that the Petitioner and his sister, R.S had occupied one of the villas at Sunset Hotel prior to the marriage and that they had lived with him for a while as well. He had also provided guidance to them while they were constructing the house at P.P. He did not know whether the Petitioner had solely purchased the property at P. P or whether he taken our loans for the same. He had not been a project manager for the construction of the house.
  21. A valuation of the house by  N.R accepted by both parties gives the value of the house as SR1, 950,000.

The Law

  1. An application for the division of matrimonial property is provided as ancillary relief to a divorce petition under section 20 (1) (g) of the Matrimonial Causes Act which provides:

                        “… the court may, after making such enquiries as the court thinks fit and having                             regard to all the circumstances of the case, including the ability and financial                               means of the parties to the marriage…make such order as the court thinks fit,                                 in respect of any property to a marriage or any interest or right of a party in any                                 property for the benefit of the other party…” (Emphasis mine).

  1. In the interpretation of section 20(1) (g) of the Matrimonial Causes Act, the court has to look at all the circumstances of the case which are not limited to the material aspects. In this regard, the Court stated in Esparon v Esparon (2012) SLR 39, that there is no set mathematical formula by which the property should be divided and each case is to be considered on its own merits.
  2. As the Court has on countless occasions reiterated, the statutory provisions give the court wide powers to inquire into all matters which may be of assistance when settling matrimonial property.
  3. In this context, Adam JA stated in Maurel v Maurel (1998-1999) SCAR 57 that:

“…any assets acquired during marriage are not necessarily held by each spouse in co-ownership of a half share each. Spouses can enter into pre-nuptial and post-nuptial contracts relating to property. But when this is not the case, assets owned in the name of each spouse must be regarded as such spouse’s property unless it can be established that that was not the intention of the party or parties.”

  1. In Pillay v Pillay (Civil Side: MA 322/2016 and MA 43/2016 (consolidated)  (arising in CS 78/2015), I  stated that :

 “the Court also has to take into account the following principles: the length of the marriage; economic advantage or disadvantage gained or lost by the parties during the marriage; the consideration of the burden of looking after children of the marriage and whether a party might suffer financial hardship as a result of the divorce.”

Time Bar

  1. I need say very little on the issue of limitation of the Petitioner’s action raised in the plea in limine by the Respondent.  Section 20 (1) makes it clear that on the granting of a decree of divorce or at any time thereafter, the court may make orders in respect of the property of a party. In any case the five year limitation rule would not be applicable in this case as this is a claim in a property right. That plea is therefore rejected.

Discussion with regard to the evidence and the share of the parties in the matrimonial home

  1. At the outset I wish to state that I empathise with both the Petitioner and R.S and in my considerations have tried to embrace the principle of fairness which can best be described as an elusive concept. I cannot however cloud my judgment with extraneous matters, such as the sad matter of R.S interdicted state, which is not a consideration that should allow the court to deviate from accepted jurisprudence in Seychelles in matters relating to matrimonial property.
  2. In respect of the Petitioner’s and R.S shares in the companies X Pty Ltd and Y Pty Ltd, since both companies are not in good standing and are to be struck off, the court is not in a position to assess their shares in the same.
  3. With regard to the matrimonial property, I propose to use as a starting point the legal ownership of the matrimonial property for an assessment of the shares in the same. In this case, it is not disputed that the property was bought solely by the Petitioner on 7 March 1990 before his marriage to R.S on 10 July 1991 and legal ownership of the property remains in his name. Equally, it is not disputed that the financing of the construction of the matrimonial home was borne by the Petitioner. The loans were taken out in in his sole name and the deductions for the repayment of the same made from his salary as supported by the documentary evidence.
  4. What if any were the contributions of R.S towards the purchase of the land and the construction of the house? There is much dispute about whether or not the parties lived together before the house was built. The Petitioner stated that they did not live together given R.S religious beliefs. The Respondent and her brother on the other hand testified that the parties lived together before they married. What is not contested that the Petitioner and Ms. S dated for about eight years before they married but the court is none the wiser of the impact of this alleged cohabitation had in the acquisition of the matrimonial home. There is no evidence that labour and finances were pooled to purchase the land and build the matrimonial home.
  5. The Respondent’s evidence on the part played by R.S in contributing to the matrimonial home is sparse verging on the non-existent. While on the one hand the Respondent testified that her brother supervised the construction work, he on the other hand testified that he only gave advice to the Petitioner. Further, the Respondent testified that the contractor had been working for her at her hotel before he constructed the house at P.P. While this may show that she referred the contractor to the Petitioner, it is not evidence showing contributions by her on behalf of her sister or by R.S herself. All it possibly shows is the good will of her family for the couple but nothing more.
  6. Once the Petitioner and R.S were in the matrimonial home there is evidence that both worked and contributed towards their daughter’s maintenance. This is not a case of one party staying at home to look after the home and rear the child releasing the other party to work and earn an income from which a share can be derived in the matrimonial home for the stay at home partner.
  7. I remain guided by the provision of section 20 (1) (g) of the Matrimonial Causes Act and take into account “all the circumstances of the case, including the ability and financial means of the parties to the marriage” (emphasis the court’s).
  8. In the scrutiny of the evidence before this court, I find the evidence of the Petitioner more credible that that of the Respondent. It is in any case not disputed that the Petitioner paid for the property and the construction of the house from his salary. He has also supported his testimony with documentary evidence. The credibility of the Respondent who has in fact provided the only substantial evidence for her charge, RS, is severely undermined by the contradictions between the testimony she gave in this court and her deposition in the application of the interdiction of her sister.  
  9. It is for this reason that I cannot believe that R.S contributed to the matrimonial home in any substantial way. Much as the situation is tragic and the court exercises great sensitivity in this matter, I cannot but be struck by the fact that the order for interdiction in 2010 is based on findings of her alcohol dependence, her need for immediate and long term treatment as “she [was] in imminent danger of losing her life” and that her business was mismanaged, that she was indebted and in danger of losing all her assets. The Respondent herself during those proceedings stated that even when the business generated money, R spent it on buying alcohol and was left with accumulated debts, that she had not paid her business taxes and social security contributions for almost a year at that time. How can the court square this evidence with the Respondent’s present testimony that the Respondent has been working all the time only stopping for a few months for treatment and that she had been productive all her life?
  10.  Her contribution therefore was relatively unimportant and certainly insufficient to support a claim either of absolute ownership or even a substantial share in the matrimonial property. While I can find that in the early years of the marriage she may have made some contributions thorough the Respondent’s gifts and perhaps thought her household contributions from her salary I find the assessment of her share difficult. I also bear in mind that she has had exclusive possession of the matrimonial home for about eight years while the Petitioner has had to pay for rent.
  11. Insofar as the movables in the house are concerned I am prepared to believe that both parties contributed to the purchase of furniture and equipment in the matrimonial home. However I do not have an inventory of these items.
  12. I am also concerned that R.S although interdicted is living alone and seemingly unsupervised in the house. The Respondent has stated that she gifted her a property at Glacis. She is therefore not without means to provide accommodation for her charge. I also take into account that the Petitioner has rebuilt his life and has a young family with housing needs.

Decision and Order

  1. Having regards to all the circumstances of the case, I assess the Petitioner’s share at 90% of the value of the matrimonial property, that is, of Title S2645 and the house thereon and R.S share at 10%.  In monetary terms the Petitioner’s share is SR1, 755,000.00 and that of the R.S at SR195, 000.
  2. With regard to the furniture and other movables, the Respondent is to provide an inventory of the same and the parties are to have an equal share in kind or in their monetary value.    
  3. I make the following orders:
    1. I order the Petitioner to pay the Respondent, on behalf of and for the benefit of R. S, the sum of SR195, 000 on or before the 31 October 2018. RS is ordered to vacate the property, Title S2645, on the payment of the said sum but not later than 31 October 2018.
    2. In the event that the Petitioner fails to make the payment by the due date, the Respondent is to pay the Petitioner the sum of SR1, 755,000.00 on the same date with the Petitioner transferring Title S2645 to R.S.
    3. If, despite receipt of the sum of his share in full, the Petitioner fails to execute the transfer, I direct the Land Registrar to effect registration of the said title in the sole name of RS upon proof to her satisfaction of payment of the sum stipulated.
    4. In the event that neither party is in a position to pay the other party his/her share in the matrimonial home on or before the 31 October 2018, Title S2645                             is to be sold by public auction with the proceeds of sale being divided 90% for the Petitioner and 10% for the Petitioner.
    5. Each party is to bear his/her own costs.

             

 

Signed, dated and delivered at Ile du Port on 12 July

 

   

 

 

 

 

M. TWOMEY

Chief Justice