OL v DL (MA 81/2020 ) [2020] SCSC 341 (26 June 2020);

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Civil Procedure : Matrimonal Property : Application for injuction pending divorce.   

TWOMEY CJ

  1. The Petitioner has filed a petition for divorce against the Respondent which suit is to be heard on 15 July 2020.
  2. The Petitioner has in the instant application applied for an interim injunction to restrain the Respondent from transferring five immoveable properties namely Parcels H___, H___, H___, H___ and H____ and movables, namely twenty-one cars with registration numbers S____, S____, S____, S___, S____, S____, S____, S____, S___, S___, S____, S___, S____, S____, S____, S__, S___, S___, S___, S___, S___ in which he depones that he has an interest.
  3. In his affidavit supporting the application, he avers that in the post nuptial agreement signed by the parties on 2 October 2018 he has set out the properties acquired by the Respondent from funds that he has supplied and that in the event of the marriage breakdown the remedies available to the parties. 
  4. He further avers that despite letters of notice and warnings being given to the Respondent, she has already sold two cars and that in the event of the divorce proceedings being delayed the Respondent may alienate the other properties in which he has an interest and which he has fully set out in the Schedule to his application.  
  5. He also avers that he fears that unless restrained by an injunctive order the Respondent would liquidate his share in the properties as described and that he would suffer greater hardship than the Respondent.
  6. In her affidavit the Respondent has accepted signing the post nuptial agreement but claims to only have had sight of its contents recently. She admits however, that she did not own anything but various loans were taken in her name for the business and that she has many financial commitments in this respect to honour. She also avers that she has sold only one vehicle.
  7. The Respondent has raised procedural matters, which she submits would bar the issue of the injunction. In particular, she submits that an injunction is only granted if the main suit contains a similar prayer to the interlocutory application, that is, that the Petitioner in the main suit has only prayed for a dissolution of the marriage and nothing else. He would necessarily, she submits, had had to have applied for the division of matrimonial property.
  8. She has also submitted that the postnuptial agreement on which the interlocutory injunction is also based does not come into operation until there is a separation of nine months or a dissolution of marriage. The Respondent further submits that the principles for the granting of an injunction have not been satisfied in the present application.
  9. On the merits of the case, the Respondent has submitted that although it is not the role of the court at this initial stage to determine the facts deponed in the affidavits it ought to take into consideration the fact that the car hire is registered in the Respondent’s name.
  10. She further submits that an interlocutory injunction is an equitable remedy only available where there is no legal remedy and other such remedies are available. In her submission the Petitioner could be compensated by way of monetary relief and /or by damages.
  11. I have considered the submissions of both parties together with their affidavits. On the issue of whether an application for an interlocutory injunction can be entertained by the Court in a divorce petition where the only prayer therein involves the dissolution of the marriage, I find that the provisions of the Matrimonial Proceedings Act, namely section 20,   make it clear that remedies by way of financial relief or claims in property can only be made on the granting of the decree nisi and thereafter. The inference therefore is that the main suit is a precursor to the ancillary relief but is part of the same matter. The application for an interlocutory injunction is therefore admissible.
  12. With respect to the application of the post-nuptial agreement and the time frame for its operation, I find that it will necessarily be triggered if the divorce is granted notwithstanding that the parties may not have lived apart for a period of nine months. However, with respect to matrimonial properties, nothing in the postnuptial agreement precludes a party to the marriage applying for the conservation of the matrimonial property pending the hearing of the divorce.
  13. On the merits, I note that orders for interlocutory injunction are made in pursuance of the provisions of Sections 121, 122, 123 and 304 of the Seychelles Code of Civil Procedure (Cap 213) as read with the provisions of Sections 5 and 6 of the Courts Act (Cap 52).
  14. I do not see what other effective legal remedies are presently available to the Applicant in the present circumstances.
  15. The jurisprudence constante in Seychelles in respect of injunctions is to the effect that injunctions are equitable in nature and in applications for the same  the Court is guided by three considerations:

(i)  whether there is a serious issue to be tried;

(ii) whether damages would be inadequate to address the harm caused by the grant of the injunction; and

(iii)  whether on a balance of convenience it would be just to grant rather than deny the injunction

(See Pest Control v Gill (1992) SLR 177, Techno International v George(unreported CS147 of 2002), Dhanjee v Electoral Commission (2011) SLR 141, Lefevere v Beau Vallon Properties Ltd & Ors (MA 154/2018) [2018] SCSC 617 (16 October 2018).

 

  1. The Court  in Dhanjee versus Electoral Commission, 2011, SLR 141 interpreted the balance of convenience test, to include the consideration of the following factors;

(i)  whether more harm would be done by granting or refusing the injunction;

(ii) whether the risk of injustice is greater if the injunction is granted than the risk of injustice if it is refused; and

(iii) whether the breach of the appellant’s rights would outhold the rights of others in society.

 

  1. Further in D'offay v Attorney-General (1975) SLR 118, it was held that where a plaintiff is asserting a title or right, an interim injunction should be refused if the existence of such title or right was open to serious doubt and that an interlocutory injunction should only be granted if it is necessary to protect a plaintiff against irreparable injury which could never be adequately remedied or atoned for by damages. Where a doubt exists as to the applicant’s right, the burden of proof is upon him to show that the inconvenience he will suffer by a refusal is greater than that which the defendant will suffer by the grant of the injunction.
  2. On the face of the pleadings and the affidavit and in the light of the authorities above I am satisfied that the Applicant appears to be have a bona fide claim against the Respondent in the main suit.  I am further satisfied that unless the Court grants the interlocutory injunction as sought by the Applicant in this matter, the Applicant will suffer substantial and irreparable loss, hardship and inconvenience in the event that judgment is given in his favour.
  3. The matrimonial property ought to be preserved at all costs until the final determination of the parties’ shares therein.
  4. I therefore issue an injunction prohibiting the Respondent and any other person from transferring Parcels H___, H___, H___, H___ and H____ and movables, namely twenty-one cars with registration numbers S____, S____, S____, S___, S____, S____, S____, S____, S___, S___, S____, S___, S____, S____, S____, S__, S___, S___, S___, S___, S___ .
  5. The Writ of Injunction shall subsist until the determination of the suit in Civil Side Number 56 of 2020 in this matter.
  6. The Registrar of Lands and the Director of the Seychelles Licensing Authority are with service of these orders notified of the Court’s Orders.

 

Signed, dated and delivered at Ile du Port on 26 June 2020.

 

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Twomey CJ