Samson v Hermitte (XP 187/19) [2020] SCSC 132 (18 February 2020);

Headnote and Holding: 

Demand for sale by licitation – Objection to licitation - Conditions of sale or nullities - Sections 98, 102 and 103 of the Immovable Property (Judicial Sales Act) (Cap 94)

Introduction

[1]       This Ruling arises out of an objection to a Petition for a demand for a sale by licitation by virtue of Section 98 of the Immovable Property (Judicial Sales Act) (Cap 94) (“the Act”).

Petition

[2]       Doricia Marieline Samson (“Petitioner”), filed a Petition to the above effect, on 20 September 2019, duly endorsed by myself as Judge in Chambers, on 30 September 2019 at 11:30 in the forenoon and Memorandum of charges filed on 9 October 2019, and case was first called on 23 October 2019, and there were subsequent mentions to allow the Respondent to seek Counsel and file objections if any.

 

Objection to the Petition

[3]       Daniel Hermitte (“Respondent”), filed objections to the Petition on 10 December 2019, objecting firstly, to the mise a prix being fixed in respect of parcel S 2103, with the house thereon (cumulatively “the property”), at One Million and Seventy Thousand Seychelles Rupees S.R.1,070,000/-, on the ground that the Quantity Surveyor grossly undervalued the property, and if allowed to stand, it would severely prejudice the Respondent, in that the judgement creditor would obtain one property with a house thereon for less than the market value and could result in him still owing the judgment creditor after the property is adjudicated to him. Secondly, that the mandatory provisions regarding the process and procedures set out under the Act had not been complied with and adhered to in that it is lacking in the endorsement by the Judge.

 

[4]       The Petitioner vehemently objects to the objections and duly supports the same by written submissions of Learned Counsel Mr Serge Rouillon of 11 December 2019. Learned Counsel for the Respondent also filed written submissions and the Court has taken due cognizance of the same for the purpose of this Ruling.

Legal analysis

[5]       The Court in deciding the objections as raised by the Respondent has considered the             provisions of sections 98 and section 103 of the Act which provides as follows.

[6]       Section 98 of the Act entitled Demand in licitation sets out the procedure for the             initiation of a demand for a sale by licitation as follows:

            In any case where according to law, the sale by licitation of an immovable property          can only take place under judicial authority (en justice) the demand in licitation     shall from henceforth be made ex parte, by petition to a Judge setting forth a summary description of the property sought to be licitated, and the respective        names, places and abode, and callings of the several parties against whom the         licitation as to be prosecuted.

            The Judge shall, upon the petition being presented to him, note thereon the day and           hour when the same has come to his hands.”

[7]      Section 102 of the same Act, entitled Objection to licitation. Conditions of sale or        nullities, on its part, provides that:

            “Within thirty days, after the expiry of the period for notice prescribed in section             102, , any defendant in the licitation, or any inscribed Judgment creditor may, if he      thinks fit, object to the licitation,, or to any of the causes or conditions of the         memorandum of charges, or to any nullities on the  memorandum of charges,       or to any nullities in the proceedings, such objections shall be made, heard and             determined in like manner and subject to the same rules as are hereinbefore    prescribed ins sections 85 and 86 , the provisions of which said sections are hereby     extended and applied to the proceedings.”

[8]       Now, I shall move on to consider the objections as raised by the Respondent in the order             above-referred.

[9]       Firstly, vis-à-vis the mise a prix, which the Respondent considers to be a gross             undervaluation of the property.

[10]     I note in that respect that there are two valuations reports as part of the pleadings one of 9             August 2014 drawn up by Quantity Surveyor and Property Consultant, Nigel Antoine             Roucou on behalf of the Petitioner, and setting the value of the property at Seychelles             Rupees One Million and Sixty Thousand S.R. 1.060,00/-. A second valuation of 4 July             2019 drawn up by Quantity Surveyor Jacques Renaud on behalf of the Respondent, valuing            the property at Seychelles Rupees One Million and Sixty Eight Thousand S.R. 1,068,000/-      The Respondent argues that the mise a prix as per the Memorandum of Charges in the sum           of Seychelles Rupees One Million and Seventy Thousand S.R. 1,070,000/-, is grossly             undervalued.

[11]     The Court noting the valuations presented as attachments to their respective pleadings as             above-illustrated find no gross undervaluation in the mise a prix, which in effect is higher          than even the valuation conducted by the quantity surveyor hired by eh Respondent             himself, hence that ground of objection fails accordingly.

[12]     With respect to the second ground of objection, in that the procedures and process for             endorsement of a Judge which is mandatory under Section 98 of the Act have not been             followed hence the validity of the petition and memorandum of charges invalid. I refer to             the Petition of the Petitioner as filed on 20th September 2019 and thereon it is clearly shown             the endorsement of the Judge being myself of 30 September 2019 at 11:30 a.m. in the             forenoon, hence the preconditions to the validity of the Petition has been duly abided to by             the Petitioner as per Section 98 of the Act. It follows, that the second ground of objection             also miserably fails in the circumstances and thus dismissed accordingly.

 

 

 

 

 

 

Conclusion

[13]     It follows thus, based on the above analysis and findings, that the objections as raised the             Respondent, are hereby dismissed and cost of objections is to be borne by the      Respondent being the unsuccessful party in line with the provisions of Section 86 of the           Immovable Property (Judicial Sales Act) (Cap 94).

Signed, dated and delivered at Ile du Port on 18 February 2020.

 

 

                                   

Andre J