IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CS. 35 of 2017

[2018] SCSC 777

JEAN LOUIS CONFIANCE
First Plaintiff

ANGELINE DUGASSE
Second Plaintiff

MAXIME CONFIANCE
Third Plaintiff

versus

JEANETTE IDA PIA MONDON
Defendant

Heard:             1st March, 2018

Counsel:          Mr. J. Camille for the Plaintiffs

                        Ms. V. Gill for the Defendant

Delivered:       17thAugust 2018

                                                            JUDGMENT

ANDRE J

[1]       This Judgement arises out of a Plaint filed before the Court by Jean Louis Confiance       (First Plaintiff); Angeline Dugasse (Second Plaintiff),and Maxime Confiance (Third        Plaintiff), (Cumulatively referred to as (“Plaintiffs”), on 30th March 2017 and filed on        the 18th April 2017 against Jeanette Ida Pia Mondon (“Defendant”),wherein it is prayed   inter alia, that, (1) the transfer of title T2840 be  declared illegal for having excluded            all legal heirs to the estate of the deceased; (2) that the Court directs that the land title        T2840 be returned to the hotchpotch and distribution of the same property to the    Plaintiffs as legal heirs, as per the rightful entitlement in law, and (3) that for any     other order that is deemed fit in the circumstances.”

[2]       On 11th July 2017, the Defendant filed a statement of defence, wherein she raises a plea    in limine litis in that the Plaint is time barred by prescription of five years and generally    denies the averments of the Plaint and further avers that the Last Will and Testament is            not illegal and moves for dismissal of the Plaint with costs.

[3]       Thereafter, the matter was heard on the above-mentioned date and the parties then     respectively submitted written submissions of which contents have been duly considered      for the purpose of this Judgment.

[4]       The salient factual background as per the records of proceedings pertinent for this Judgment reveal as follows.

[5]       The Plaintiffs are three of five surviving heirs of the late Ameda Marie Confiance (herein after referred to as (the “deceased”)), who passed away on 25th August 2009,        leaving behind a Last Will and Testament made before Notary Public, Mr. Bernard          Georges, dated 18th January 2008 in which she bequeathed the property to her grand- daughter, the   Defendant being the daughter of Plaintiff’s sister namely Joyceline    Horace. (Exhibit P6)

[6]       As per the Plaint, the Plaintiffs aver that at the time of her death, the deceased was the      registered owner of a property situated at Val Mer, Baie Lazare, Mahe, Seychelles             known as land parcel Title T2840, (“the property”).

[7]       Plaintiffs further aver that in pursuance of an Affidavit of transmission by death of the         20thApril 2010, the said property was bequeathed on the Defendant solely. In addition,            the same Affidavit was registered and transcribed at the Registrar General’s Office in       Volume 11, Folio 100 File T2840. (Exhibit P7).

[8]       Further, the Plaintiffs aver that the disposition made by the deceased in the above        referred Last Will and Testament is illegal for having excluded all the legal heirs to the   estate of the deceased. Moreover, the Plaintiffs allege that on the basis of the matters          aforesaid, the Defendant has to return the property to the succession of the deceased to      be equally distributed amongst the rightful heirs as joint owners.

[9]       The Plaintiffs moves the Court as per prayers at [paragraph 1] (supra).

[10]     The Defendant on her part, avers that the Plaint is time barred by prescription of five            years in that the computation of the time to file the Plaint ought to start from the date of    the death of the deceased.

[11]     The Defendant on the merits denies the Plaint and further avers that the Last Will and    Testament of the deceased is not illegal hence moves for dismissal of the Plaint with            costs.

[12]     At the hearing, the 1st Plaintiff Jean Louis Confiance testified on his own behalf and that     of the other two Plaintiffs and the Defendant testified on her own behalf and called two      witness Joyceline Horace her mother and Wilhem Confiance (both siblings of the         deceased).

[13]     The 1st Plaintiff testified that he was appointed as an Executor in the matter of the late      Ameda Confiance (Exhibit P4).The Last Will and testament of the deceased of the 18th          January 2008 and registered on the 16th December 2009 was also produced (Exhibit P6)   which provides that the deceased bequeathed the property to the Defendant only.

[14]     The 1st Plaintiff further testified that in line with the Last Will and Testament, the       Defendant transferred the property on to her sole name by way of an Affidavit of         transmission by death (Exhibit P7).

[15]     The 1st Plaintiff further testified that albeit his attempts to try to communicate with the           Defendant about the property, he got no response and thus proceeded to a lawyer, Mr. Frank Ally, who sent a letter written on behalf of the Plaintiff to the Defendant (Exhibit     P8), informing her to return the property to the succession of the deceased within          fourteen days of the receipt of the letter and failure of which appropriate legal action and   or legal proceedings against her would be taken for such return and this in line with the           laws of succession.

[16]     The 1st Plaintiff additionally testified that he was not aware of the transactions at first, as        he was             not consulted and had not been paid anything for his part of the share and that   when he was appointed as an Executor, two of his siblings did not agree to the     appointment, including Joyceline Horace (mother of the Defendant) and Wilhelm          Confiance, (latter his brother).

[17]     The Defendant on her part, testified that the deceased left the property onto her name in           her Last Will and that this was because of their close relationship. In addition, she   testified that she was aware that the 1stPlaintiff was in fact the Executor of the property.

[18]     She further testified that nobody helped the deceased as much as her and her mother did,     and insisted that she paid for the land when her grandmother bought it from the          Government. Furthermore, she denied having seen the letter sent by the lawyer(Exhibit            P8), on behalf of the Plaintiffs.

[19]     Joyceline Horace, the mother of the Defendant, testified that the deceased asked help     from her children, especially Jean Louis Confiance her brother being the 1st Plaintiff to      purchase the property from the government but however he refused and did not help.    Instead, it was her daughter, the Defendant who paid for the property.

[20]     Furthermore, she denied to have been approached by the 1st Plaintiff concerning the       property and that all heirs being the Plaintiffs were aware that the property of the       deceased was to be transferred onto the Defendant.

[21]     Wilhelm Confiance brother of the 1st Plaintiff and uncle of the Defendant testified on his            part that the Plaintiffs never approached him about the property, about any shares after            the passing away of their mother, the deceased. He also agreed that the property         rightfully belongs to the Defendant as that was what was written in the Will of the       deceased.

[22]     I shall now move to consider the legal standard and analysis thereto in line with the       above illustrated evidence pertinent to this matter.

[23]     I shall foremost treat the plea in limine litis as raised by the Defendant for the Plaint falls      and or succeeds dependent on the Ruling of this Court on the issue of prescription.

[24]     The Defendant argues in her defence that the case filed by the Plaintiffs is time barred by a prescription period of five years as per Article 2271 (1) of the Civil Code of         Seychelles (Cap 33) (“the Code”) which provides that, “All rights of action shall be           subject to prescription after a period of five years except as provided in articles 2262   and 2265 of this Code.”

[25]     Article 2262of the Code provides that, “all real actions in respect of rights of             ownership of land or other interests therein shall be barred by prescription after twenty years whether the party claiming the benefit of such prescription can produce a title or             not and whether such a party is in good faith or not.”

[26]     Article 2265 on its part provides that, “if the party claiming the benefit of such             prescription produces a title that has been acquired for value and in good faith, the       period of prescription of Article 2262 shall be reduced to ten years.”

[27]     Now, this mater pertains to the challenge of Will and Last Testament of the deceased by    some of his children the Plaintiffs, legal heirs of the donor, the right to inherit in favour         of a third party, being the Defendant grandchild of the deceased. (Plaint refers)

[28]     The right of action hence in this case arises out of a right to inherit accruing to the       Plaintiffs, heirs, by virtue of the provisions of Article 718 of the Code (The opening of       the succession and seisin of heirs) as read with Article 731 of the Code (latter entitled             the Various orders of succession).

[29]     Article 718 provides that, “A succession shall open upon the death of a person. The      succession shall open in the place where the deceased had his domicile”.

[30]     It follows thus that the right of the heirs, Plaintiffs would have accrued upon the opening           of the succession, more particularly the death of the deceased. In that respect our      provision of the Code reflects the French Civil Code Article 78, to the effect that, “Les          successions s’ouvrent par la mort naturelle”.

[31]     In further analysing the prescription period that should apply in relation to this case I   further consider the Jurisprudence on the subject matter namely,[Neddy Sandra             Mirenda Nourrice and Ors v/s Flora Nicette (CS No. 57 of 2015)], wherein the same          subject matter             was treated and the Court endorsed the applicability of the provisions of       Article 2271 of the Code (supra) and I also refer to the case of [(CS 97/2013): Lizianne         Reddy, Michel Gouffe v Wavel Ramkalawan] (“Reddy case”), wherein the Chief   Justice Dr M. Twomey held that, “In France the prescriptive period is now statutorily          fixed by Article 9 of the Loi no 2006-728 du 23 Juin 2006 in that, "le délai de    prèscription de l’action en réduction est fixé a cinq ans a compter de l’ouverture de la            succession, ou a deux ans a compter du jour ou les héritiers ont eu connaisance de l’atteinte portée a leur réserve, sans jamais pouvoir exceeder dis ans a compter du    decès.”

            It was further held that, “it is important that one takes heed of the legal position in         France in view of the fact that Seychelles Civil Law has derived from the French Civil    Law”.

[32]     The same case also reiterates the fact that in cases such as this one, an action can be brought before the Court from the death of the de cujus which is 5 years. In the Reddy case it was also further held that, ‘Contoret v Contoret (1971) SLR 257 and             Hoareau v Contoret (1984) SLR 151 are authority for the principle that the heirs’ rights    vest at the moment of death’. In the latter cited case, the Court held that, “all real actions except in respect of ownership of land or other interests therein were subject to           prescription after a period of five years. That the action for reduction of the disposable    portion was an action for recovery of compensation and therefore not an action in      respect of rights of ownership in land hence the right of action arose on the death of   Guy Contoret in 1976 and therefore was time barred by prescription.”

[33]     In regards to the Interruption of Prescription as established namely five years, it is      essential to analyze whether prescription was ever interrupted or not as claimed by the Plaintiffs. In that respect the provisions of Article 2244 of the Code is relevant and      provides for causes for legal interruption of prescription and stipulates that same  can        be interrupted by, “A writ summons or a seizure served upon a person in the process of acquiring by prescription shall have the effect or a legal interruption of such            prescription".

[34]     Now, in this case, upon a careful reading and analysis of the relevant provisions of the   Code with respect to the applicable prescriptive period in cases of contest of succession       and the right to and opening of the succession, it is clear that the succession opens upon           the death of the de cujus,  in this case on the 25th day of August, 2009 upon the death of         late Ameda Marie Confiance. I further note that there were no interruption to the       prescription period as laid out in article 2244 of the Code (supra) and or article 2248 of         the Code which provides that in that, “prescription shall be interrupted by an       acknowledgment by a debtor or a possessor of the right of the person against whom        the prescription was running”. All evidence proves to the contrary on record in the latter         regards.

[35]     It follows thus and I find that the Plaint of the Plaintiffs has been filed around eight    years after the opening of the succession of the deceased and therefore it is accordingly     time barred as per the provisions of Article 2271 of the Code.

[36]     The Plaint is thus accordingly dismissed on the plea in limine litis as raised with costs to   the Defendant.

Signed, dated and delivered at Ile du Port on the 17thday of August 2018.

S. ANDRE

Judge of the Supreme Court