Delpech v Soomery & Ors ( CS 109/2016 ) [2020] SCSC 765 (14 October 2020);

search_summary: 

Locus standi – Fraud based on hearsay – Power of attorneys/fiduciary powers – prescription

Legislation considered: 

SUPREME COURT OF SEYCHELLES

 

Reportable

[2020] SCSC 765

CS 109/2016

 

In the matter between:

LYZA REGINA JULIE DELPECH                               Plaintiff

(rep. by Mr. S. Rouillon)

 

and

 

EDNA SOOMERY                                                            1st Defendant

(rep by Mr. A. Derjacques)

ELIE BAKAS                                                                    2nd Defendant

(rep by Mr.G. Roberts)

MARC ELIE JULIENNE                                                3rd Defendant

(rep by Mr. C. Andre)

VENGADACHALAM CHETTY                                   4th Defendant

(rep by Mr. B. Georges)

VASANTHI CHETTY                                                     5th Defendant

(rep by Mr. B. Georges)                                                                     

CHARLES LUCAS                                                          6th Defendant

(rep by Mr. C. Lucas)

NOELIN DIDON                                                               7th Defendant

(rep by Mr. C. Lucas)

 

Neutral Citation:   Delpech v Soomery & Ors (CS 109/2016) [2020] SCSC 765

Before:                   Andre J

Summary:              Locus standi – Fraud based on hearsay – Power of attorneys/fiduciary powers – prescription

Heard:                    15 July 2020

Delivered:              14 October 2020

ORDER

The following Orders are made:

 

  1. The Plaintiff’s Plaint is dismissed as against all defendants;
  2. Costs of the suit to be paid by the Plaintiff to all defendants;
  3. No order is made as to alleged unauthorized transactions with the deceased’s Barclays bank accounts in the absence of evidence;
  4. Noting the serious discrepancies in the pleadings of the Plaintiff inclusive of the serious allegations made to fraud and forgery with regards to the 1st and 6th defendants, which matters stands unsubstantiated before the court, this court hereby refers this matter to the Chief Justice for further determination and investigation on the filing of this civil suit by the Plaintiff and Plaintiff’s attorney-at-law. Mr. Serge Rouillion.

 

JUDGMENT

 

           

ANDRE J

Introduction

  1. This Judgment arises out of plaint filed by Mrs. Lyza Regina Julie Delpech (Plaintiff) of the 19 December 2016 and subsequently amended on the 17 May 2018.
  2. The plaint is filed against Edna Soomery (1s Defendant), Elie Bakas (2nd Defendant), Marc Elie Julienne (3rd Defendant), Vengadachalam Chetty (4th Defendant), Vasanthi Chetty (5th Defendant), Charles Lucas (6th Defendant), and Noelin Didon (7th Defendant).
  3. The Plaintiff is seeking orders as follows: (i) declaration that the three fraudulent powers of attorney documents namely, one dated 27 September 1991 where Mr. Elie Bakas sold Title S 2918 to Mr. Marc Elie Julienne on the 24 October 1991; one dated the 10 February 1992 where Edna Soomery sold title S 2917 to Mr. Vengadachalan Chetty on the 22 July 1996, Title S 2919 to Mr. Vasanthi Chetty on the 20 February 2001; and to herself title S 2916 on the 2 March 1992; and the transactions with the Deceased Barclays bank accounts; short call account number 7003959; account number 7549919; and account number 4402798 as fraudulent, void, invalid and with no legal effect; (ii) order that the land register of land titles S2920, S2916, S2918 and S2919, be rectified so that the said parcels be registered in the name of Plaintiff being the sole heir of the Deceased the late Mr. Regis Osman Bakas and consequently order the land registrar to so rectify the said register; (iii) order the Defendant to render full account of the dealings she had with the accounts of the Deceased in respect of the bank accounts of the Deceased; (iv) order the Defendant to pay costs to the Plaintiff and/or make any other order this honourable court deems fit and necessary.
  4. All Defendants filed their Statements of Defence ranging from 21 February 2017, 11 October 2018, 25 July 2018, 29 May 20; and 4 July 2018 respectively.
  5. All Defendants foremost raised several pleas in limine litis which shall be dealt with in this judgment.
  6. To be noted further that all Defendants filed written submissions of which contents have been considered in this Judgement.

Background of the case

The plaint

  1. The Plaintiff avers that she is the only child of late Mr. Osman Regis Bakas (Deceased), who died testate in England. The Deceased by Will executed in the United Kingdom appointed the Plaintiff as an Executrix of his estate and left the residuary estate on trust for the Plaintiff absolutely, subject thereto on trust for Leo and Victoria Delpech in equal shares. The Plaintiff has been confirmed as the Executrix of the estate by the Supreme Court Order dated 22 November 2016 (Exhibit P13).
  2. The Plaintiff avers that several portions of land (supra) have been fraudulently alienated without the Deceased’s consent, knowledge, or authority. The transfers of land were executed between 1991 and 2006.
  3. The Plaintiff further alleges that power of attorney documents (supra), on the basis on which the portions of land were sold are fraudulent. That the 1st Defendant Edna Soomery had two powers of attorney executed in her favour and sold three portions of land, one of which to herself and two to the 4th Defendant Vengadachalam Chetty and 5th Defendant Vasanthi Lucas.
  4. The Plaintiff further avers that the 2nd Defendant Elie Bakas is the brother of the Deceased, who sold the portion of land to the 3rd Defendant Marc Elie Julienne, based on power of attorney executed in his favour (supra).
  5. It is further averred that the 6th Defendant Charles Lucas is the attorney-at-law who executed two powers of attorney in favour of the 1st Defendant. The 7th Defendant Noelin Didon (now Deceased) was a retired director of a company Premier Services Limited and drew up a power of attorney draft in favour of the 2nd Defendant.
  6. The Plaintiff further prays the Court to declare the three powers of attorney and transactions with the Deceased’s Barclays bank accounts as fraudulent, void, invalid and with no legal effect, order that the land register of portions of land that were allegedly fraudulently sold be rectified and registered in the name of the Plaintiff being the sole heir of the Deceased; order the 1st Defendant to render a full account of the dealings she had with the Barclays bank accounts of the Deceased, and order for costs and any other order the Court deems fit and necessary.

The Statements of defence

  1. All the Defendants deny the allegations of fraud and raise several pleas in limine litis as follows.

1st Defendant

  1. The 1st Defendant avers as pleas in limine litis that: (i) the Plaintiff has not been recognized in law as the daughter of the Deceased, and has no locus standi to bring this action; (ii) that the civil action is prescribed as the transfers were executed on the 24 October 1991 (S2918), 24 July 1996 (S2917), on the 20 February 2001 (S2919); and on the 2 March 1992 (S2916). That, therefore, as this action was filed on the 19 December 2016, more than ten years after the said transfers, Article 2265 of the Civil Code applies hence the plaint is to be struck off; (iii) that this action is based on hearsay evidence and this as illustrated at paragraph 4 of the plaint, on unsigned documents, irrelevant comments, and opinions (paragraphs 7 and 8 of the plaint) and thus fails to meet the standards of a reasonable cause of action.; and (iv) that he action is frivolous and vexatious and further constitutes an abus de droit as against the 1st defendant.
  2. The 1st Defendant as a result of the above averments moves for the court to decide on the pleas in limine as raised foremost; to dismiss the plaint; award costs against the Plaintiff; and refer the matter to the Chief Justice for further determination and investigation on the filing of this civil action by the Plaintiff and Plaintiff’s attorney at law, Mr. Serge Roullion.

2nd Defendant

  1. The 2nd Defendant avers as a plea in limine litis that the plaint does not disclose a cause of action against him and moves for the dismissal of the plaint with costs.

3rd Defendant

  1. The 3rd Defendant also raises a plea in limine litis that the plaint discloses no cause of action against him in that he is a bona fide purchaser for value; and that the action against him is time-barred by prescription of 20 years.
  2. The 3rd Defendant moves for dismissal of the plaint with costs.

4th and 5th Defendants

  1. The 4th and the 5th Defendants also raise two pleas in limine litis to the effect that the plaint discloses no cause of action as against them who are bona fide purchasers for value; and that the action against the 4th Defendant is barred by the extinctive prescription of 20 years and that as against the 5th Defendant by the extinctive prescription of ten years with just title.
  2. The 4th and 5th Defendants move for the dismissal of the plaint with costs.

6th and 7th Defendants

  1. The 6th and the 7th Defendants raise as plea in limine litis that the plaint is bad in law and discloses no cause of action against them and no order of redress is sought as against the 7th Defendant; that paragraphs 5 and 6 of the plaint pleads and rely on hearsay utterances purportedly made by the Deceased person which renders corroboration thereof an absolute and legal impossibility; and that the Plaintiff fails to particularise the fraud alleged.
  2. Both the 6th and 7th Defendants move for dismissal of the plaint with costs. 

The Evidence

The Plaintiff

  1. In support of her Plaint, the Plaintiff testified on her behalf and called two other witnesses namely, Mr. Fred Hoareau Deputy Registry at the Land Registration Division, and senior immigration officer Ms. Julia Colette.
  2. The Plaintiff testified in her capacity as the Executrix to the estate of the Deceased and she also claimed as a Deceased daughter, in a gist as follows.
  3. That the Deceased passed away on 8 January 2015 (Certificate of death Exhibit P15). That before her father’s demise she met up with him and he gave her a file that had Mr. Didon’s paper inside and some of the papers of the bank that he had his deposit account in it (Exhibit P14).
  4. It is to be noted at this stage that because of hearsay evidence arising as to the truth of the contents of the exhibit as to letters written by the Deceased and unsigned copies of powers of attorneys, same was simply admitted for proof that it was sent and not the truth therein.
  5. Further, also to be noted at this stage of the proceedings that all other evidence of the Plaintiff as to what his father told her is not being reported in line with the rule against hearsay evidence in the absence of the Plaintiff establishing that the said evidence falls within the exceptions as provided by law as established. (The record refers)
  6. The Plaintiff testified further that the Deceased did make a power of attorney in her favour to title numbers S1892 and S 2178 on the 20 April 1990 (Exhibit P12) and duly registered on the 4 May 1990.
  7. Plaintiff further testified that as far as she could recollect the Deceased had during his lifetime a property at Anse Talbot Cascade, a shop and two houses: one big house with four bedrooms that was built in stone, and one was sold by the 2nd Defendant as per alleged fraudulent power of attorney of the 27 September 1991 (Exhibit P11). According to her knowledge, the Deceased never sold any of those properties.
  8. She testified further,  that according to the Will of the Deceased (Exhibit P13), which she claims she received from her lawyer in England she was the sole beneficiary and trustee of the estate of the Deceased alongside Leo and Victoria Delpech respectively.
  9. The Plaintiff testified that she came back to Seychelles in the year 2017 and she approached the 1st Defendant and found out that all of the Deceased’s lands had been sold by both the 1st and 2nd Defendants as per their alleged fraudulent powers of attorneys (Exhibits P11-power of attorney in favour of Mr. Elie Bakas and Exhibits P2, 3-powers of attorney in favour of Edna Soomery).
  10. Transfers deeds concerning the Deceased’s properties sold were produced as (Exhibit P4), the transfer of parcel S 2916 to Edna Soomery through power of attorney in favour of the Elie Bakas on the 5 October 2006); (Exhibit P8), transfer of parcel number S 2919 through the power of attorney of Edna Soomery to the Vasanthi Chetty on the 20 February 2001; (Exhibit P6), the transfer of parcel S2917 to the Vengadachalam Chetty on the 22 July 1996 by Elie Bakas through his power of attorney; and (Exhibit P1), the transfer to Marc Elie Julienne of the 24 October 1991 again through power of attorney in favour of Elie Bakas).
  11. According to the Plaintiff, her father did not come to Seychelles to execute the powers of attorneys in favour of the 1st and 2nd Defendants and, according to her, she was told of same by the Deceased. The Plaintiff avers that the Deceased came to Seychelles for her wedding in the 1980s and that she cannot remember if he came back after.
  12. Regarding the bank accounts of the Deceased, the Plaintiff testified that she had a fixed deposit account document, which her late father gave her, and that at Barclays bank there was a dormant account and a joint account and a fixed deposit account and as to inquiries regarding the arrangements as to the running of the accounts all were informed to her by the Deceased (which evidence is not being reported on the ground of hearsay) and the Plaintiff further testified that she was unaware of the bank transactions concerning anything that was going on in those specific accounts for she went to the bank and did not get anything.
  13. The Plaintiff finally moved the Court as per prayers in her plaint [paragraph 4 refers] and the cost of the suit.
  14. In cross-examination, the Plaintiff confirmed that she was unaware of the Deceased signed a power of attorney in favour of Elie Bakas.
  15. Mr. Fred Hoareau of the Land Registration Division was the second witness called on the behalf of the Plaintiff and produced several registered documents namely, the transfers of land, the duly authenticated and registered powers of attorney as averred in the plaint, and testified about by the Plaintiff. It is to be noted further, that the transfers produced by Mr. Fred Hoareau referred to transfers in favour of the 1s Defendant Edna Soomery from Mr. Elie Bakas, Mr. Marc Julienne the 3rd Defendant; Mr. Vengadachalam Chetty 4th Defendant and Mr. Vasanthi Chetty 5th Defendant, which transfers are subject of alleged fraud by the Plaintiff (supra). (Exhibits P1, 2, 3,4,5,6,7,8, 9, 10,11; and 12 refer respectively).
  16. Mr. Fred Hoareau also confirmed registration of the Will of the Deceased (Exhibit P13) confirming the evidence of the Plaintiff as to its contents (supra).
  17. Upon cross-examination, Mr. Hoareau confirmed that the power of attorney in favour of Mr. Elie Bakas (Exhibit P11), 2nd Defendant concerning parcels S 2916, 2917, 2918; and 2919 of 27 September 1991 was duly registered in October 1991; and that when parcel 2917 was transferred in July 1996 (Exhibit P6) and parcel S2919 in February 2009 (Exhibit P9), the power of attorney (Exhibit P11) was existent and in the Register as it was registered in October 1991.
  18. Mr. Hoareau further confirmed that both the 1st and 2nd Defendants namely, Edna Soomery and Elie Bakas had the authority through the required powers of attorney duly registered to effect the transfers as exhibited.
  19. The third and last witness called on behalf of the Plaintiff was Ms. Julia Collette, senior immigration officer, who testified as to the possible whereabouts of the Deceased in and out of Seychelles as follows:
  20. That as to the travel or immigration details of the Deceased Mr. Osman Baccas for the period beginning December 1991 to end of December 2004, “according to our database, there is no travel history found in respect of Mr. Osman Regis Bacca's”.
  21. She further testified that their database stretches back to the years 1994 or 1995 and that she was unaware of records which were kept before that for she started working in the year 1995 and that records use to be done manually.
  22. She further testified that she could not talk about the year 1991 because she was not yet there in 1991 but only as of 1995.
  23. Upon cross-examination, Ms. Juliette Collette further confirmed that from 1991 until 1995 she would not know whether Mr. Osman Bakas, the Deceased, had entered the country or not as the procedure was manual.

2nd Defendant

  1. The 2nd Defendant Mr. Elie Bakas testified on his behalf in a gist as follows.
  2. That he was of 81 years old and brother of the Deceased.
  3. Concerning (Exhibit P11), namely, the power of attorney drawn on his behalf by the Deceased, he testified that that power of attorney was given to him by the Deceased in the year 1991 when the latter was in England and that: “He called me and say go to Mr. Noelin Didon. Mr. Noelin Didon was his agent. He has sent a power of attorney for me to sell the divided plots and I went to Mr. Didon and I collected it”.
  4. He further testified that his late brother asked him to sell the plots he sold: “because I tell you frankly, my brother was not in good terms with the Government and he wanted to sell”.
  5. According to Mr. Elie Bakas, the transfer of parcel S 2918 was executed upon instructions of the Deceased and the money for the sale was collected by late Mr. Noelin Didon, 7th Defendant, who was the agent of the Deceased then, and latter handed over the same to the Deceased.
  6. Mr. Elie Bakas further testified as to the relationship of the Deceased and the 1st Defendant Edna Soomery that: “well they were good friend…… for many years…. More than 10 years”.
  7. Mr. Elie Bakas further testified as to the whereabouts of his late brother, the Deceased, to the effect that during the year 1991, the last there months thereof, and the first 3 months of 1992 he was in Seychelles living at their house at Mont Buxton.
  8. As to the identity of the 6th Defendant Mr. Chalres Lucas, Mr. Elie Bakas testified that he knew him as a notary and that his late brother engaged him to prepare a power of attorney in favour of Edna Soomery and he knew about the same upon being told by the Deceased. He further confirmed that he was present at the time of the drawing of the said power of attorney (Exhibit P3) at Premier building in the office of lawyer Lucas and that both his late brother, the Deceased, and Edna Soomery were there also. He further testified that he could hear and see what was going on and that the power of attorney (Exhibit P2) was done in favour of Edna Soomery as Mr. Elie Bakas had told his late brother that he could not carry on because of his business and he was living on his own, so look for another one.
  9. Mr. Ellie Bakas further testified that he did execute a transfer on behalf of his late brother as per his said power of attorney as attested by (Exhibit P1), transfer of parcel S 2918 in favour of Marc Elie Julienne 3rd Defendant and same was done before notary Maurel.
  10. With respect to the Plaintiff, the 2nd Defendant confirmed that he knew her in the year 1990 and she was well aware of all the transactions with the 7th Defendant Mr. Noelin Didon and that she left Seychelles sometimes in the year 1991 to Canada as a refugee.
  11. As to the relationship between his late brother and the Plaintiff he testified that his brother was infertile, that it was in the family and that he does not know if the Plaintiff is the daughter of the Deceased.
  12. Upon cross-examination, Mr. Elie Bakas maintained that he had no knowledge of the paternity of his brother towards the Plaintiff and unaware of the Will of his late brother.
  13. He confirmed (Exhibit P11), whereby his late brother granted him power of attorney over certain properties and he reiterated that he was instructed to sell the land and not to collect rent for those lands.
  14. As to (Exhibit P14), being the letters of Mr. Noelin Didon to the Deceased, Mr. Elie Bakas acknowledged his name is there and that his late brother instructed him to go to Mr. Didon and: “so I went to Mr. Didon. Mr. Didon gave me the power of attorney”.
  15. Mr. Elie Bakas further informed that he was aware through his late brother that a power of attorney had been given to the Plaintiff but he never saw it.

6th Defendant

  1. The 6th Defendant Mr. Charles Lucas testified on his behalf in a gist as follows.
  2. That he was an attorney-at-law before 1990 and notary public since 1990.
  3. That he knew the Deceased as a friend of Noelin Didon and he was also instructed by the former to act as a notary for the Deceased.
  4. That as regards (Exhibit P11), a power of attorney granted by the Deceased to Elie Bakas and that the said document was executed in England and notarized and duly registered.
  5. As to (Exhibit P2), is the power of attorney in favour of the 1st Defendant Edna Soomery, Mr. Charles Lucas testified that same is duly signed by the Deceased and Edna Soomery and himself as an Attorney-at-law. That both parties signed the document in his office on 10 February 1992 and also duly signed and registered.
  6. As to the powers of attorneys granted the Edna Soomery (Exhibit P2), Mr. Charles Lucas further testified that: “she is appointed to do anything and everything that Osman Bacca's himself could do and to sign such acts and this has made him necessary including the power to sell so she had the permission to sell the ...... the top part contains 3 land parcels… Titles S2920, S2919, and S2917they are subdivisions of S 291”.
  7. Mr. Charles Lucas further testified that transfers signed by attorneys, who have been granted, the powers of attorney, which are deposited at the land registry or registration; and that once signed, dated and stamped and stamp duties paid, the transfer is completed as per the Land Registration Act.
  8. With regards to the 7th Defendant late Mr. Noelin Didon, Mr. Charles Lucas testified that he was a partner in Premier Services with the late Mr. Guy Morel. That he was not privy as to any correspondence and documents sent to the Deceased by the 7th Defendant to give the power to sell properties at Cascade but having had sight of (Exhibit P14) did refresh his memory.
  9. With regards to the transfers of title S2916 (Exhibit P4), he confirmed it was done before notary Francis Chang-sam duly stamped and registered by the registrar general. As to parcel S 2917 (Exhibit P6), he further confirmed that it was a transfer effected by Edna Soomery as per power of attorney before notary Gerard Maurel and duly stamped and registered as well as (Exhibit P8), transfer of parcel S2919 being a transfer executed before notary Gerard Maurel as an attorney-at-law duly stamped and registered.
  10. As to (Exhibit P12), namely, the power of attorney in favour of Plaintiff concerning parcel numbers S1892 and 2178, Mr. Lucas testified that the notary is a foreigner and not registered in Seychelles. The power of attorney is dated 20 April 1990 signed by the Deceased and registered in Seychelles in May 1990.
  11. As to the form of the power of attorney granted to the 1st Defendant Edna Soomery (Exhibit P2), Mr. Lucas testified that all the required standards and all the required law was applied into that document and to his knowledge and from his experience, it is a valid document, which gave her the power to sell.
  12. Mr. Lucas also further clarified that there was one issue about “sometimes in the past with powers of attorneys especially, sometimes some notaries will include with power to sell, others would not until there came the landmark case of Keven Parcou and Julien Parcou and from then on the court insisted that if one wishes to sell the need to have one: a document made with power to sell inscribed into the document and then number two: they require consents of heirs or consents of those whose continuants and number three: today also have to include the title number of the land which you have the power to sell”.
  13. Upon cross-examination, Mr. Charles Lucas reaffirmed that in the year 1991, when the power of attorney of Elie Bakas was executed, the jurisprudence of Seychelles had not moved onto these strict requirements of the insertion of ‘with the power to sell’.
  14. The 1st, 3rd, 4th; and 5th defendants chose not to call any oral evidence and relied on their filed submissions (supra).

Legal Analysis of the Issues Arising from the Pleadings and Evidence

Locus Standi: Plaintiff as the aughter of the Deceased

  1. Plaintiff’s averment that she is the daughter of the Deceased is challenged by the 1st Defendant (supra). The 1st Defendant avers that the Plaintiff has not been recognized in law as the daughter of the Deceased and that she has no locus standi to bring this action. The Plaintiff’s locus standi as an Executrix was established by Court Order dated 22nd November 2016 (Exhibit P13) confirming that in terms of the Will of the Deceased, the Plaintiff had been appointed the Executor and trustee.
  2. In paragraph 2.1 of the Will (Exhibit P13) the Deceased referred to the Plaintiff as ‘my daughter LYZA REGINA JULIE BAKAS-DELPECH’. Power of Attorney issued to the Plaintiff (Exhibit P12) refers to the Plaintiff noting her previous surname ‘Mrs. Lyza Delpech nee Bakas’. From those documents, it appears that, firstly, the Deceased considered the Plaintiff to be his daughter and, secondly, the Plaintiff also used to have the Deceased’s surname. At this point, there is no other documentary evidence recognizing the Plaintiff as a daughter of the Deceased.
  3. Article 319 provides that, “The descent of legitimate children shall be proved by the acts of birth registered in the register of civil status”. In the absence of such acts, under Article 320 “the constant possession of the status of a legitimate child shall be sufficient”. Article 321 deals with facts that can establish possession of the status and provides:

 

“Article 321

1.    Possession of status may be established when there is a sufficient coincidence of facts indicating the relationship of descent and parenthood between a person and the family to which he claims to belong.

The principal facts are:

That person has always borne the name of the father whose child he claims to be;

That the father has been treating him as his child and that, in his capacity as a father, he has provided for his education, maintenance, and start in life;

That he has always been recognized as a child of that father in society;   

That he has been recognized as such by the family.

 

2.         Natural descent may also be established by the possession of status, both as regards the father and the mother in the same manner as legitimate descent.” (emphasis added)

 

  1. Therefore, (Exhibit P12-power of attorney) and (Exhibit P13 - the Will) tend to suggest that the Plaintiff satisfies Article 321 at least in terms of bearing the name of the Deceased and the Dceased referring to her as a daughter in his Will.
  2. It is not known whether the Plaintiff’s mother and the Deceased were ever married. Under Article 312 there is a presumption that: “a child conceived during marriage shall be presumed to have the husband as the father”. Article 312 (2) further provides that the presumption as to the legitimacy or illegitimacy can be rebutted: “by evidence which shows that it is more probable than not that that person is illegitimate or legitimate . . . and it shall not be necessary to prove that fact beyond a reasonable doubt to rebut the presumption”. Even if the Deceased and Plaintiff’s mother were not married Article 757 provides that natural child shall have the same rights as the legitimate child.
  3. The Defendants do not provide much evidence showing why the Plaintiff is not a daughter. Mr. Yves Baccas testified that: ‘I will tell you frankly my brother was infertile. It is in the family. Now Lyza's mother was a common prostitute and I know what a prostitute does’. It is unclear what exactly Mr. Baccas referred to when he said he ‘knows what a prostitute does’ and how it relates to paternity. Nevertheless, he seems to suggest that the Deceased was infertile. This assumption is not supported by any evidence and, in any case, even if it was so, the child could have been adopted.
  4. Furthermore, with regards to the Plaintiff’s locus standi, even if she is not the daughter of the Deceased (and it is evident that the proper action and more evidence is needed to show that), she still has locus standi as an appointed Executor. Article 724(4) provides that: “if any part of the succession consists of immovable property, the property shall not vest as of right in any of his heirs but in an executor who shall act as fiduciary”.
  5. In Suttie & Anor v Rebecca David (Civil Appeal SCA 25/2015) [2017] SCCA 37 (07 December 2017), the Court considered whether it was necessary to remove the Respondent as an executrix of the estate on the basis that the official birth certificate failed to show that the Respondent was the daughter of the Deceased. It was stated:

“[16] It is important to note from the start that any person can be appointed as executor of a succession. That person need not even have a lawful interest in the succession. Hence, whether the Respondent is the daughter of the Deceased or not is immaterial as concerns her appointment as executor of his succession. What is important is that she fulfills her duties and obligations under the Civil Code.”

  1. The Court acknowledged that the Respondent had not yet proved that she was the daughter of the Deceased, nevertheless, upheld her appointment as an executor and reminded the Respondent that it is: “her duty to distribute the succession in accordance with the rules of intestacy”.
  2. Similarly in the present case, it is clear that the Plaintiff has not proved that she is the daughter of the Deceased as per the relevant cited provisions of the Civil Code (supra), but she still has locus standi as an Executor with the capacity to ensure the distribution of the estate of the Deceased and she has to consider other available heirs, rules of succession, powers and obligations of the executor as well as the Will of the Deceased in accordance with provisions of the Civil Code.

Fraud, Forgery

  1. It is established by Article 1116 of the Civil Code and numerous case law that fraud shall not be presumed and must be proved:

“Article 1116

Fraud shall be a cause of nullity of the agreement when the contrivances practiced by one of the parties are such that it is evident that, without these contrivances, the other party would not have entered into the contract. It must be intentional but need not emanate from the contracting party.

It shall not be presumed and it must be proved.”

  1. Our local case law establishes that the burden of proof is on the party who challenges a document to prove its falsity; that fraud must be proved by adducing positive evidence, and that higher degree of probability is required but not so much as in criminal cases (See: (Charles Lucas v Marie Georges (Civil Appeal SCA13/2018)) [2019] SCCA 13 (10 May 2019); Albert v Rose (2006) SLR 140; Houareau v Houareau (2011) SLR 47; Basson v Bason (2005) SLR 129; Katz v Ward & Anor (CS 11/2015, CS 12/2015) [2017] SCSC 780 (04 September 2017)).
  2. Fraud on sale or mortgage of property is an offence under section 302 of the Penal Code. Forgery is defined by section 331 of the Penal Code and section 336 provides that forgery of power of attorney is punishable by imprisonment for life.

Evidence

Hearsay

  1. According to section 12 of the Evidence Act, English law of evidence and practice shall be followed: “Except where it is otherwise provided in this Act or by special laws now in force in Seychelles or hereafter enacted, the English law of evidence for the time being shall prevail”. The general English common law rule against hearsay in civil cases was abolished by the Civil Evidence Act 1995 (the “CEA”). Section 1(1) states, that ‘in civil proceedings evidence shall not be excluded on the ground that it is hearsay’. Roble & Ors v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) and Payet v Monthy (CS 56/2017) [2018] SCSC 512 (01 June 2018) acknowledge the Civil Evidence Act 1995, albeit in a different context than circumstances of this case. The CEA 1995 also provides safeguards in relation to hearsay evidence, one of which is that under section 2 a party seeking to rely on hearsay evidence must provide a notice of a proposal to adduce hearsay evidence. Section 2(4) provides, though, that even when notice is not given, it does not automatically make the hearsay inadmissible:

“(4) A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court—

(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and

(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4”

  1. The court has a discretion as to the weight it gives to the hearsay evidence and under section 4 of the CEA 1995 it should consider all the relevant circumstances:

“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

  1. In the present case, the main witness who could have resolved the matter is Deceased. Although section 4 of the CEA does not expressly provide for witness being Deceased, even Criminal Justice Act 2003, which governs evidence in criminal cases, and is less inclusive of hearsay evidence provides for the admissibility of a hearsay statement made by a dead person under the statutory "unavailability" exception (s. 116(2)(a)) subject to the courts' discretion to exclude unreliable evidence.
  2. Introduction to the Law of Evidence in Seychelles (Second Edition) by André Sauzier, 2011 points out that Seychelles Construction v Braun SCA 9/2004, 20 May 2005; LC 264 held that Court: “has the discretion to admit hearsay evidence in conjunction with other credible evidence”[1]. The decision also noted section 14(1) (b) (i) of the Evidence Act, which addresses the situation where a person who supplied the information is dead, however, this section applies to admissibility of documentary evidence.

 

  1. Civil Evidence: The Essential Guide by Martin Iller, 2006 also makes examples of evidence, which is not hearsay and can be admissible without giving notice under section 2 of the CEA 1995. The examples of not hearsay evidence at 7-14[2] are calling a person to testify as to what someone else said if what was said is the material fact as such statement constitutes direct evidence of a relevant fact. For instance, a witness testified that “X told me he was getting worried about situation” or “X told me he knew he was taking a risk”. Martin Iller differentiates situations at 7-09 where a witness is testifying as to what the “eye-witness” perceived, which would amount to hearsay. For example, “X told me he had seen an accident and this is what he said happened…”.[3] The Plaintiff avers in the Plaint that the Deceased informed her that he had not given the Defendant authority to sell the property at Cascade but simply to maintain, collect rentals and deposit it to the bank. To my mind, such a statement does not fall within the outlined exceptions and cannot be considered for it is hearsay albeit could be argued as being a material fact that constitutes evidence that he did not authorize the sale of the Cascade property and not a perception of some events.

 

Power to Sell

  1. Furthermore, there is indeed a difference in the wording of Power of Attorney documents granted to the 2nd Defendant Mr. Elie Bakas (Exhibit P11), and the 1st Defendant Ms. Edna Soomery (Exhibits P2, P3). Ms. Edna Soomery’s both Powers of Attorney include: “given with power to sell”, whereas, Mr. Elie Bakas’ Power of Attorney does not have an express power to sell. The latter power of attorney, however, clearly provides that: “I hereby appoint Mr. Elie Bakas, of Mont Buxton, Mahe, Seychelles, to be my attorney and generally in relation to my interest in the above-mentioned titles to do anything and everything that I could do, and for me and in my name to execute all instruments and to do all such acts, matters and things as may be necessary or expedient for carrying out the power hereby given.” As indicated earlier the statements of the Deceased are irrelevant with regards to the intention of the Deceased on the grounds of hearsay (supra). At this point, the question that comes to mind is why there is a difference between the Power of Attorney to Mr. Elie Bakas and Ms. Edna Soomery. And I note in that respect the evidence of Learned notary public Mr. Charles Lucas that: “sometimes in the past with powers of attorneys especially, sometimes some notaries will include with power to sell, others would not until there came the landmark case of Keven Parcou and Julien Parcou and from then on the court insisted that if one wishes to sell the need to have one: a document made with power to sell inscribed into the document and then number two: they require consents of heirs or consents of those whose continuants and number three: today also have to include the title number of the land which you have the power to sell.” And further, in cross-examination whereby Mr. Charles Lucas testified that: “in the year 1991, when the power of attorney of Elie Bakas was executed, the jurisprudence of Seychelles had not moved onto these strict requirements of the insertion of with the power to sell.”
  2. Further, the court notes that both said powers of attorney documents (supra) adopt template provided in the Second Schedule (Rule 3): Forms of Land Registration Act:

 

THE LAND REGISTRATION ACT

 

POWER OF ATTORNEY

 

Title No. ................

 

 

I hereby appoint ............................................................... of  .................................. to be my attorney and generally in relation to my interest in the above-mentioned title to do anything and everything that I could do, and for me and in my name to execute all such instruments and to do all such acts, matters and things as may be necessary or expedient for carrying out the power hereby given.

 

(If the power is to be limited to particular acts only, delete all the words after the word “attorney”, and set out what powers are to be conferred.)

 

Dates this ......................... day of .......................... 19 .........

 

  1. As pointed out in the submissions of Counsel for the 2nd Defendant of the 30th June 2020, and position is endorsed by this Court, a template does not provide express words of“power to sell” and, therefore, words “transfer or sell” is not necessary to have the power to dispose of as per section 70 of the Land Registration Act. As a matter of interest the penultimate part of the template (supra) does provide that: (If the power is to be limited to particular acts only, delete all the words after the word “attorney”, and set out what powers are to be conferred.)”,and the same is not evident in the power of attorney granted to Mr. Elie Bakas hence the unsustainability of the legal argument of the Plaintiff in that regards as to the real intention of the Deceased with regards to the power granted to Mr. Elie Bakas.

 

  1. Further, in the same regards, section 70 provides:

 

“Powers of attorney

 

70.        (1) Upon the application of the donor or the donee of a power of attorney which contains any power to dispose of any interest in land, such power of attorney shall be entered in the register of powers of attorney and the original, or with the consent of the Registrar, a copy thereof certified by the Registrar shall be filed in the file of powers of attorney.

 

(2) Every such power of attorney shall be in the prescribed form or such other form as the Registrar may in any particular case approve, and shall be executed and attested in accordance with section 60.” (emphasis added)

 

  1. In the matter of Chetty vs Pillay (SCA 61 of 2011) [2014] SCCA 7 (11 April 2014), was duly analyzed the definition in relation to lease. The court stated that “There is, therefore, a distinction made between a lease and an agreement for a lease but also between different forms of powers of attorney”. The Court concluded that there was, therefore, the distinction between rights in rem and rights in personam:

 

“There should be no further doubt as to the distinction between rights in rem and rights in personam or between property rights and personal rights. Whilst the agreement between the appellant and the respondent was not one that conveyed property rights (rights in rem), they did convey personal rights. In this respect, if the lease had been executed in accordance with the Land Registration Act, it would have conveyed absolute property rights. The appellant would have been entitled, for example, to take a charge on the lease. As it was not, it was merely reduced to a binding agreement between the parties, producing personal rights and conveying obligations. Whereas property rights command respect and abstention from everyone in the whole world, personal rights reflect the rights and duties that our law of contract recognizes and protects between two parties (vide article 1718 (1) Civil Code of Seychelles).”

 

  1. Albeit the combined reading of sections 70 and 2 of the Land Registration Act and the decision in Chetty vs Pillay (supra), latter in relation to lease, illustrate that disposition does not include an agreement to transfer and disposition of rights in rem, I still consider that in the absence of evidence as to the contrary intention of the Deceased in line with the provisions of section 70 of the Land Registration Act (supra) that there was no specific need to add the specific power to sell/transfer in the Power of Attorney. I adopt the same analysis upon a careful reading of the provisions of Article 1988 which also provides:

 

“Article 1988

 

The power of attorney couched in general terms only covers acts of administration.

 

If it relates to a sale or mortgage or some other act of ownership the power must be expressly granted.”

 

  1. The power of attorney document (Exhibit P11) in favour of Mr. Elie Bakas was clear as to the extent of powers granted to the 2nd Defendant in that it provides that: “ in relation to my interest in the above-mentioned titles to do anything and everything that I could do, and for me and in my name to execute all instruments and to do all such acts, matters and things as may be necessary or expedient for carrying out the power hereby given.” And Mr. Elie Bakas testified as to the reason his late brother wanted to sell the plots of land namely, “He called me and say go to Mr. Noelin Didon. Mr. Noelin Didon was his agent. He has sent a power of attorney for me to sell the divided plots and I went to Mr. Didon and I collected it.”….“because I tell you frankly, my brother was not in good terms with the Government and he wanted to sell.”
  2. To my mind, the words used in the power of attorney are very explicit as to the intention of the Deceased “de son vivant” and the same as testified by Mr. Elie Bakas himself in evidence rather than speculations of the Plaintiff based on hearsay evidence.
  3. Further to the above analysis as to the intention of the Deceased as to the power of attorney granted to the 2nd Defendant with regards to the power to sell, hence, not exceeding his fiduciary powers, it is also unproved that forgery of the Deceased’s signature, as averred by the Plaintiff in the Plaint, has been committed.
  4. With regards to the Power of Attorney in favour of Mr. Elie Bakas, the Plaintiff avers that the Power of Attorney documents sent to the Deceased (Exhibit 14) were not signed by the Deceased; that Power of Attorney executed in favour of Mr. Elie Bakas contain the same typing mistake and correction by hand as in those templates sent to him. This document, as testified by Mr. Charles Lucas, the 6th Defendant, was not notarized in Seychelles and appears to be notarized in the UK. Thus it is unlikely that the signature was forged by any of the Defendants, who reside in Seychelles, and document was then notarized in the UK and registered in Seychelles Land Registration’s Division only on the 14 October 1991.

Presence of the Deceased in Seychelles to Execute Power of Attorney

  1. With regards to the Power of Attorney documents issued to Ms. Edna Soomery (Exhibits P2-P3), the allegation of forgery is also made by the Plaintiff because of their execution and notarization in Seychelles. The Plaintiff avers that the Deceased was not in Seychelles to sign the documents and called Julia Colette, a senior immigration officer, to testify in court regarding records of the Deceased coming and leaving Seychelles. In reply to the question whether immigration has any trace of the Deceased coming or leaving Seychelles during the period starting December 1991 until the end of December 2004, Ms. Collette stated that “according to our database, there is no travel history found in respect of Mr. Osman Regis Bakas. However, Ms. Collette also testified that the records database started from approximately 1995 and she is not aware of how records were kept before 1995 as she started with immigration in 1995. Furthermore, she has stated that when she had started, the arrival and departure cards were collected manually. Nevertheless, when asked again by the Court whether there is any record of the Deceased travel to Seychelles from 1991 to 1995, disregarding who collected the records at that time, she has confirmed that “we do not [have] because I believe we have been there twice before and nothing has come up.”
  2. The testimony of Ms. Collette had a potential to provide strong evidence supporting the allegation of fraud and/or improper execution of the documents but arrival/departure cards were collected and recorded manually between 1991 and 1995 and there is a possibility that records are not found because they were lost or not properly recorded. Thus, while the conclusion can be drawn that records of his travel to Seychelles were not found, reasons for the records not being there are not certainly conclusive whether it was due to the Deceased not traveling to Seychelles at that time or records being not properly kept/lost. Hence, again the allegations of the Plaintiff (supra) untenable in the light of the evidence of Ms. Collete her witness.

           

Signature Evidence

  1. With regards to the alleged forgery of signature, in Suzarra Jorre de St. Jorre & Ors v Narcisse Stevenson (Civil Appeal SCA 5 and 6 /2015 (Consolidated)) [2017] SCCA 39 (07 December 2017) the Court reviewed the signatures and came to conclusion that, “We have also examined the documents and can say without a doubt that the signatures are markedly and significantly different”. In Garys Banks v Giroux and others (353(A) of 2005) [2007] SCSC 42 (24 November 2007), although the court also reviewed the signatures, it was noted that there is a danger of analyzing signatures without expert assistance. Taking all the evidence into account the court concluded:

 

“As regards the alleged forgeries, there is a danger in comparing disputed signatures with genuine ones without the assistance of an expert in handwriting. However, the Court is satisfied based on the oral evidence of Mr. McCarthy and the documentary evidence adduced by him that the defendants have gained control of the company by resorting to irregular procedures. This finding is sufficient for this Court to hold that the alleged resignation of Mr. Banks as Director, and the alleged appointments of the defendants as Directors and the transfer of shares are not genuine and therefore null and void.”

 

  1. In the present case, looking at the signature of the Deceased, in my not signature expert opinion, it is a difficult one to replicate, although not impossible of course. Therefore, handwriting expert evidence as to the authenticity of the Deceased signatures on the documents would have been helpful and was called for; and the Plaintiff failed to do so and hence failed to discharge the burden of proof required standard.
  2. As pointed out earlier, fraud cannot be presumed and must be proved by the Plaintiff, and the standard of proof is higher than on the balance of probabilities (supra). In this case, there are alleged statements from the Deceased that he did not instruct to sell the land, inconclusive evidence of not found records of the Deceased travel to Seychelles against written documents notarized and registered by the Land Registrar. Considering the very serious allegations, it is evident and clear that the evidence provided by the Defendants (supra) outweighs the evidence provided by the Plaintiff. As noted above, potentially expert evidence regarding the authenticity of the signature was called for and would have been helpful to the Court.
  3. It is to finally be noted that the adduced evidence leave more questions unanswered than answer the averments in the plaint. The plausibility of scenarios arising in this case out of the evidence adduced shows that the Plaintiff has failed to provide evidence to prove that it is more probable than not that fraud had occurred. Furthermore, the allegations are not just that the signature was forged but also that the notary certified forged signature with no presence of the Deceased. Again, it is repeated that the allegations are very serious and the evidence provided by the Plaintiff is not sufficient enough to prove that it is more likely than not that fraud did occur and further, at a higher standard than the balance of probabilities.

Fiduciary Powers under Power of Attorney

  1. In Suzarra Jorre de St. Jorre & Ors v Narcisse Stevenson (Civil Appeal SCA 5 and 6/2015 (Consolidated)) [2017] SCCA 39 (07 December 2017) apart from reviewing the documents allegedly granting agency powers to the Appellant and concluding that there was no proof of agency, the Court also reviewed the powers of the Appellant as an executrix as well as fiduciary powers under the Civil Code and whether these powers were sufficient to allow the Appellant to make the transfers she did. The analysis is useful in the present case in terms of fiduciary powers granted to the 1st and 2nd Defendants by the Powers of Attorney.
  2. The relevant provisions of the Civil Code are:

 

Article 825: The functions of the fiduciary shall be to hold, manage, and administer the property, honestly, diligently, and in a business-like manner as if he were the sole owner of the property. He shall be bound to follow such instructions, directions, and guidelines as are given to him in the document of appointment by the unanimous agreement, duly authenticated, of all the co-owners or by the Court. He shall have full powers to sell the property as directed by all the co-owners, and if he receives no such directions, to sell in accordance with the provisions contained in articles 819, 1686, and 1687 of this Code and also in accordance with the Immovable Property (Judicial Sales) Act, Cap. 94 as amended from time to time.

Article 826: Where fiduciary wishes to proceed to the sale of a property, he shall communicate to all those entitled a formal notice of the intended sale. The sale shall not take place until six months after such notice has been issued. However, the Court, upon application by a party may, on reasonable grounds, grant permission to sell the property earlier or later than the period of six months or without notice.”

Article 819: In the case of immovable property held in co-ownership, unless all the co-owners agree to postpone the sale, such property shall be sold. If the co-owners do not agree to a private sale, or if one of them is subject to an incapacity such as minority or interdiction or is absent from Seychelles and is not represented therein by a duly appointed agent, the property shall be sold at a public auction. In this respect, articles 1686, 1687, and 1688 of this Code relating to licitation shall have application.

Nevertheless, even if one or more of the co-owners is subject to incapacity as aforesaid, or is absent from Seychelles, the property may be sold otherwise than by a public auction with the permission of the Court.” (emphasis added)

 

  1. The Court in Suzarra (supra) also noted decisions in Parcou & Ors v Julien Parcou & Ors (unreported) Civil Side No. 38 of 1994 (2 November 1994) and Rajasundaram & Ors v Romesh Pillay Civil Appeal SCA09/2013 (17 April 2015) and stated that:

“In Parcou, case number 38/1994 the Court of Appeal recommended that written consent of heirs be sought before an executor sells co-owned land. In Rajasundaram, the court interpreted the law to mean that fiduciaries had powers to sell or alienate property. That is subject of course to the caveats in the provisions of the Civil Code (supra) including the fact that the consent of the heirs must be obtained and failing that an order of the court must be sought.”

  1. Although, Suzarra (supra) mainly relates to the issue of whether an executor of the estate can alienate the property and whether the consent of heirs is necessary, the finding that even though fiduciaries have powers to sell the property, it is subject to caveats in the provisions of the Civil Code can be useful in the present case. As noted above, Articles 825 and 826 contain potential limitations of the fiduciary’s power to sell, that is directions from the owner of the land and formal notice to the owner regarding the sale. Unfortunately, it is not clear from the provisions whether Power of Attorney with the express power to sell can amount to a direction to sell. Fiduciary “shall be bound to follow such instructions, directions, and guidelines as are given to him in the document of appointment”. Document of appointment (Power of Attorney) does grant power to sell the property, however, power is not a direction. Following this logic, the additional document would have been needed expressly directing the agent to sell the particular plot of land. There is, however, no such requirement under the Land Registration Act, which provides that the Power of Attorney as prescribed by the Act shall suffice.
  2. The Court in Dorothy Hall v Maria Amina Morel & Ors (Civil Appeal SCA22/2017) [2019] SCCA 24 (23 August 2019) provided a good analysis of findings in Suzarra (supra) at paragraphs 73-83. Apart from whether the consent of owners is needed or not, the Court also considered the form of consent and directions that should be provided. Firstly, it was held that:

 

“I hold that it is the duty of the fiduciary to obtain the written consent of all the heirs before proceeding to sell a co-owned property. Where the fiduciary does not obtain the written consent of all the heirs, the relevant provisions of the Civil Code apply.” (emphasis added)

 

  1. Secondly, the Court emphasized provisions regarding the direction in Article 825:

“In relation to the fiduciary’s power to sell co-owned property, the fundamental factors that need to be taken into account are that he may exercise such power to sell as directed by all co-owners, and if he receives no such directions, to sell in accordance with the provisions contained in Articles 819, 1686 and 1687 of the Civil Code and also in accordance with the Immovable Property (Judicial Sales) Act.

 

The word ″direction″ is an ordinary English word. The relevant dictionary definition of ″direction″ in the Oxford English Dictionary (online edition) is the action or function: ″of instructing how to proceed or act aright, authoritative guidance, instruction″. The Concise Oxford Dictionary defined the word ″direction″ as ″1. The act or process of directing; supervision. 2. (usu. In pl.) an order or instruction″.

 

The combination of the weight of the provisions of Article 825, 819, and the other provisions of the Civil Code supra, and the dictionary definitions lead me to the conclusion that something more than the mere consent of all the heirs is required. What is required is the written consent of all the heirs. Accordingly, I hold that a fiduciary, in the exercise of his powers to sell co-owned land, should be directed in writing by all the co-owners before he can act. In that regard, I adopt the observations by the learned trial Judge in J. Kaven Parcou & Ors v Julien Parcou & Ors (unreported) Civil Side No. 38 of 1998, which are repeated in paras [63], [64], and [65] hereof.

 

I am further convinced by the validity of this approach, after having also considered the weight of Article 826 of the Civil Code which expressly provides that where fiduciary wishes to proceed to the sale of a property, he shall communicate to all those entitled a formal notice of the intended sale. . . . the question arises as to whether or not the legislator intended that the words ″as directed by all the co-owners″ under Article 825 of the Civil Code should be interpreted to mean directions that are given to a fiduciary in writing, comparable to Article 826 of the Civil Code that stipulates for the stringent requirement of a formal notice where fiduciary wishes to proceed to the sale of co-owned property. After having considered both Articles with care and the other provisions of the Civil Code supra, it is plain that ″as directed by all the co-owners″ should be interpreted to mean directions that are given to a fiduciary in writing by all the co-owners.” (emphasis added)

  1. The Court further considered Notes 942 and 944 from Encyclopédie Dalloz. Code of Civil. V. Succession and concluded that:

“Likewise it could be said that directions that are given to a fiduciary in writing by all the co-owners, is ″une Mesure de méfiance prise à légard″ of the fiduciary ″dont on redoute qu’ils puissent dépouiller″ the heirs. Accordingly, it is clear that an interpretation of the provisions which permits a fiduciary to dispose of the property without obtaining the written consent of all the heirs is tantamount to giving a free-right to a fiduciary to sell a property. Such an interpretation will not be in the public interest under Article 26 of the Constitution. Under the law, persons are given the free-right to dispose of property which belongs to them, subject to the restrictions laid down by law.” (emphasis added)

  1. The reasoning in Dorothy Hall (supra) that fiduciary should be given express written instructions and/or consent is favorable in terms of preventing abuse of fiduciary powers and emphasizing that free-right to dispose of property should be with the owner of the land, not the fiduciary. Fiduciary should have such right if specifically instructed and authorized to do so. Arguably then a mere inclusion of power to sell in the Power of Attorney should not automatically grant the fiduciary free-right to dispose of the property.
  2. For instance, a person, who does not reside in Seychelles is considering selling the property here. Upon his visit, he decides to execute the Power of Attorney with the power to sell in anticipation that he might sell the land. He then changes his mind and never instructs the fiduciary to go ahead with the sale. Therefore, the power was given but instructions to sell were not. At the same time, the situation may well be that person orally instructs the fiduciary as to the sale of land, executes necessary documents (Power of Attorney), and does not anticipate that any further documents are needed as Land Registration Act provides that Power of Attorney is sufficient.
  3. The difficulty in the present case is that the true intention of the Deceased cannot be exactly ascertained through the evidence of the Plaintiff who has the burden to prove her plaint as against the defendants. The Defendants presented registered documents as evidence of authorization to sell, but following the reasoning regarding abuse of fiduciary power, there is no other evidence regarding intentions and instructions of the Deceased to sell the plots of land other than a brief indication in the testimony of Mr. Elie Baccas as to why the Deceased could have been thinking to sell the land. There is no evidence that proceeds of the sale were paid to the Deceased either and the Plaintiff could not provide any evidence of any proceeds and its whereabouts and the same applies to the bank accounts and details thereof, which she claims were in the name of the Deceased.
  4. It is concluded, therefore, that the documents were executed legitimately and are not forgeries based on the evidence of the 2nd and 6th Defendants (supra), and I find in line with the above analysis with regards to fiduciary powers as per illustrated positions of the law through case law, that no abuse has been proved to the required standard by the Plaintiff.

Prescription

  1. Under Article 2271(1) “All rights of action shall be subject to prescription after five years as provided in articles 2262 and 2265 of this Code”. Articles 2262 and 2265 apply to land and state:

 

“Article 2262

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 party is in good faith or not.

 

 

Article 2265

If the party claiming the benefit of such prescription produces a title which has been acquired for value and in good faith, the period of prescription of article 2262 shall be reduced to ten years.” (emphasis added)

 

  1. Therefore, the prescription period for matters involving immovable property is 20 or 10 years. Judgment in Gomme and Another v Maurel and Another (19 of 2004) (19 of 2004) [2006] SCCA 15 (28 November 2006) further reaffirmed that point.
  2. Suzarra Jorre de St. Jorre & Ors v Narcisse Stevenson (Civil Appeal SCA 5 and 6 /2015 (Consolidated)) [2017] SCCA 39 (07 December 2017) further pointed out the relevance of Land Registration Act provisions in addition to the above-mentioned Civil Code provisions:

 

“In addition to these provisions of the Civil Code section 89(2) of the Land Registration Act provides:

 

(1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be canceled or amended where it is satisfied that any registration has been obtained, made, or omitted by fraud or mistake.

 

(2) The register shall not be rectified to affect the title of a proprietor who is in the possession and acquired the land, lease, or charge for valuable consideration, unless such proprietor knew of the omission, fraud, or mistake in consequence of which rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.” (emphasis added)

 

  1. Botel v Monnaie Ruddenklau (CS 55/1999) [2001] SCSC 20 (28 September 2001) also considered the defect of a form of transfer, in which case Article 2267 applies: “a title which is found null because of a defect in form cannot serve as the basis for the prescription of ten years”. It was claimed in this case that a transfer of property witnessed by way of a deed under private signature amounts to a gift inter vivos; and the said gift, “not being by way of a notarial deed, offends against Article 931 of the Civil Code thereby rendering the deed and the transfer sought to be effected thereby null and void ab initio”.
  2. With regards to fraud and action for nullity or rescission of a contract Article 1304 provides: 

“In all cases in which the exercise of action for nullity or rescission of a contract is not limited to a shorter period by special legislation, that action shall be available for five years.

 

That period shall only run in the case of duress as from the day that the duress came to an end; in the case of mistake or fraud, as from the day when they were discovered.” (emphasis added)

 

  1. Under this section, the prescription period, however, is 5 years. It is not clear whether the second part of the section is therefore applicable to matters involving land. In Attorney-General v Robert (CS 428/1995) [1997] SCSC 17 (29 October 1997) the Counsel for Defendant raised the point of law arising on the plea of prescription “on the basis that the Plaintiff has sued on the contract where the five years period of prescription is applicable under article 2271 of the Civil Code, but he conceded that the point of law should fail if it is decided by the Court that the action of the Plaintiff is real action in respect of rights of ownership of land or other interests therein”. The Court concluded on this point raised:

 

“I am satisfied that on the Plaintiffs' pleadings and the admissions by the defendant it is established that the action before this Court is real action in respect of the Plaintiffs' right of ownership acquired by a purported purchase of parcel S 365 established by exhibits P1 and P4 for valuable consideration. Hence the period of extinctive prescription applicable to the instant action is 20 years which has not yet elapsed since the offer and acceptance and the presumed sale dates back to the year 1986. I, therefore, deny the defendant’s point of law.”

 

  1. It should also be noted that there is a distinction between action in respect of rights of ownership of land and action to recover the value of the property. Where the action is for the latter, a prescription of 5 years may apply (Reddy & Ano. v Ramkalawan (CS 97/2013) [2016] SCSC 31 (26 January 2016); Albert v St Jorre (2002) SLR 30; Gayon v Collie (2004-2005) SCAR 67; Armand Khany & Others v Leonel Cannie (1983) SLR 65; Nourrice & Ors v Nicette (CS 57/2015) [2016] SCSC 208 (29 March 2016))
  2. With regards to the claims of prescription by the Defences of the 1st, 3rd, 4th, and 5th Defendants (supra), the Plaintiff argues that the prescription period should run from 2013, the year when the Plaintiff was allegedly informed that the Deceased did not consent to the sale of land and not from the year of transfers. Camille v Government of Seychelles (CS 8/1997) [1998] SCSC 21 (14 December 1998) noted decision in AG v Voysey (SCA 12/1995) [1996] SCCA 5 (05 July 1996):

 

“There is no statutory provision that confers power on the Court in this jurisdiction to postpone the accrual of a right of action because of ignorance of the Plaintiff of the material facts relating to the cause of action.”

 

  1. AG v Voysey (supra) is also an authority stating that the right of action may not accrue if the facts were fraudulently concealed by one of the parties. The Court in Camille v Government of Seychelles (supra) further noted regarding AG v Voysey decision:

“Ayoola JA stated, albeit obiter, in the case of Voysey stated that –

 

Normally, a right of action accrues when the essential facts exist and, barring statutory intervention, does not arise with the awareness, for instance, of the attributability of the injury to the fault of the other party, unless there has been fraudulent concealment of facts. The date of manifestation of damage may be specifically made the commencement of a right of action.

 

Hanbury on Modern Equity (8th edition) dealing with equity in relation to the Statute of Limitations states on page 307–

 

The doctrines of laches and acquiescence in the case of purely equitable claims, substituted by equity for the statutes of limitation as deterrents to the tardy assertion of rights unless one of those statutes had expressly included equitable claims within its orbit. In the case of legal claims, or even of equitable claims which it would regard as analogous to legal claims, equity rigidly enforced the observance of the statutory periods. But one important reservation equity permitted to itself.  If there had been fraud on the part of the defendant, and the Plaintiff did not discover it, through no fault of his own, until the statutory period had elapsed, equity would consider that the period had not begun to run until the date of its discovery.

 

  1. Following this passage, the courts may arguably decide that the prescription period should start to run at the time the alleged fraud was discovered, allegedly in 2013; but to do so, the Plaintiff must prove the alleged fraud first. Another issue arising in this case is when the alleged fraud/abuse of power/lack of consent was discovered first. If the Deceased had indeed made the statements to the Plaintiff that he had not consented to the sale of land (which evidence has not been admitted to the Court on grounds of hearsay (supra), the questions whether he knew that the plots of land were sold, when did he find out about that and why nothing was done by him about it remain unanswered. Therefore, the discovery of the alleged fraud could have occurred before 2013 by the Deceased himself and the prescription period arguably should have started to run when the Deceased discovered fraud, not the Plaintiff.
  2. Noting the Defenses as raised by the 1st, 3rd, 4th, and 5th Defendants with regards to the issue of prescription the following is revealed. The Plaintiff filed this cause of action at the Registry of the Supreme Court, against the 1st Defendant, in respect of three allegedly fraudulent power of attorneys, which granted the 1st Defendant the power to sell title S2918 to the 3rd Defendant on the 24th of October 1991, land title S2917 to the 4th Defendant on the 24th July 1996, land title S2919 to the 5th Defendant on the 20th February 2001 and land title S2916 to herself on the 2nd March 1992. In the plaint, the Plaintiff also alleges unauthorized transactions with regards to the Deceased’s Barclays bank account, namely bank account 7003959, 7549919, and 4402798.
  3. Noting the provisions of Article 1304 (supra) concerning recission, it is clear that the Plaintiff’s right to rescind the power of attorneys with regards to the 1st Defendant dated the 27 September 1991, 10th February 1992, and 2nd March 1992 has lapsed, hence rendering the action untenable as against the 1st  Defendant.
  4. With regards to the transfer of land title S2916 by the 1st Defendant to herself as per the power of attorney of the 2nd March 1992 and registered on the 5th October 2006, there again noting the provisions of Article 2265 of the Code (supra) if the party claiming the benefit of such prescription produces title, which has been acquired for the value and in good faith, the period fo prescription of Article 2262 shall be reduced to ten years. Now it is abundantly clear that the Plaintiff’s action in that light filed in 2016 (in the absence of a finding of fraud (supra) is clearly beyond the ten years limit as prescribed by the Code, hence, out of time and subject to suffer her loss of right through failure to act within the limits established by law.
  5. As regards the 2nd Defendant, the same analysis is adopted with regards to the prescription limit applicable for the power of attorney of the 1st Defendant, hence the Plaintiff being time-barred as per the provisions of Article 1304 of the Code.
  6. Moving to the 3rd Defendant, a similar Defence has been raised under the provisions of Article 2262 of the Code in that the transaction impugned was executed on the 24th of October 1991 and registered on the 28th of October 1991. Noting the pleadings, the action is time-barred by seven years and in the absence of any interruptions as permitted by law, the Plaintiff is time-barred.
  7. As to the 4th and 5th Defendants, they both raise the same Defences as a plea in limine litis on the basis that the actions of the Plaintiff as against the 4th and 5th Defendants are time-barred with regards to the alleged illegal transfers of title S2917 to the 4th Defendant on the 24th July 1996 and registered on the 24th July 1996 and the 5th Defendant transfer of land title S 2919 on the 20th February 2001 and registered on the 9th March 2001.
  8. Since the court has analyzed the evidence with regards to the alleged fraud/forgery of the Plaintiff as against the powers of attorneys in favor of the 1st and 2nd Defendants (supra), it follows that the extinctive prescription limits of 20 and 10 years as raised by the 4th and 5th Defendants on the basis of just title acquired in good faith under Article 2262 applies. And since the Plaintiff filed her plaint far beyond the prescribed time limits namely, 10 years as prescribed, then it follows that the plaint is time-barred as against them.

Findings

  1. Following the above analysis, the following are the findings of the court.

Locus standi of the Plaintiff

  1. With regards to the locus standi of the Plaintiff as a daughter of the Deceased, documents that support her averment that she is the daughter are the Will of the Deceased where he refers to her as daughter and power of attorney indicating that she used to bear his surname. Article 321 of the Civil Code provides that the possession of the status of a legitimate child can be established when, among other factors, the child borne the name of the father and the father has been treating him/her as a child. There was no further documentary evidence submitted by the Plaintiff to that effect. The Defendants also did not submit much evidence in support of the averment that the Plaintiff is not a daughter other than that allegedly the Deceased was infertile.
  2. Even if the Plaintiff has not yet sufficiently proven that she is the daughter of the Deceased, she has locus standi as an Executrix of the Deceased estate. In Suttie & Anor v Rebecca David (Civil Appeal SCA 25/2015) [2017] SCCA 37 (07 December 2017) the Court has held that any person can be appointed as executor and it is immaterial whether the person is a daughter or not as concerns her appointment as executor; what is material is that she fulfills the duties as executor distributing succession in accordance with the rules of intestacy. Therefore, the Plaintiff will have to ascertain any other available heirs at the time of distributing the estate and if needed provide more evidence with regards to her being an heir.

Fraud/Forgery

  1. It is established that fraud cannot be presumed and must be proved. With regards to the hearsay evidence, the Court has the discretion to admit hearsay evidence in combination with other credible evidence and discretion as to the weight it gives to it considering all the relevant circumstances. Apart from hearsay evidence, the Plaintiff avers that the signature of the Deceased was forged, but expert evidence was not provided. The Plaintiff also avers that the signature was a forgery as the Deceased had not been present in Seychelles to execute Powers of Attorney. The evidence of the immigration officer is conclusive that no records were found but inconclusive as to reasons why. It appears from her testimony that records were manually collected at the material time and it is not clear whether records are not present due to the Deceased not traveling to Seychelles or records being lost/not properly kept.
  2. The Powers of Attorney followed the template provided in the Land Registration Act. The difference in wordings in the powers of attorneys to the 1st and 2nd Defendants has not given rise to any intention of the Deceased to have not wanted to include the power to sell and evidence led by the Plaintiff is hearsay and could not be considered by the Court on that basis, and further, it was testified by the 6th Defendant that it could be drafting manner also leading to the difference. As analyzed above, there is no statutory requirement under section 70 of the Land Registration Act that “power to sell” shall be included in the power of attorney. It generally states that the power of attorney should contain “any power to dispose of any interest in land”.
  3. Additionally, Article 825 of the Civil Code provides that fiduciary may exercise power to sell the co-owned property as directed by co-owners. Decisions in Suzarra Jorre de St. Jorre & Ors v Narcisse Stevenson (supra) and Dorothy Hall v Maria Amina Morel & Ors (supra) point out the need for written consent from the heirs for the executor to sell the land. Even though the cases relate to executor more that to the fiduciary, Dorothy Hall v Maria Amina Morel & Ors points out that giving fiduciary power to dispose of land without written consent may amount to giving them a free-right to sell the property, and such interpretation is not in the public interest as such free-right should be vested in the owner of the property, not a fiduciary without proper authorization. Such reasoning is favorable as it reduces the risk of abuse of power by the fiduciary, however, the Land Registration Act does not require further written consent/authorization/direction in addition to Power of Attorney containing the power to dispose of an interest in land.
  4. In the present case, there are no additional documentary authorizations/instructions to sell the plots of land apart from Powers of Attorney, one of which does not contain express power to sell but all comply with the Land Registration Act template. The most plausible finding based on the analysis of evidence (supra), is that the Deceased did authorize the sales and the parties did not see the need for additional documentation, and this because of observance of the land Registration Act provisions cited.

Prescription

  1. Articles 2262 and 2265 of the Civil Code provide an exception to the general prescription of five years under Article 2271. Actions in respect of rights of ownership of land are time-barred either after twenty years or ten years where a title has been acquired for value and in good faith. There is a distinction between the rights of ownership of land and action to recover the value of the property. The latter may be prescribed after five years. Decisions in Camille v Government of Seychelles (CS 8/1997) [1998] SCSC 21 (14 December 1998) and AG v Voysey (SCA 12/1995) [1996] SCCA 5 (05 July 1996). In cases where fraud is involved the courts have the discretion to decide that the prescription period should run from the time that fraud was discovered.
  2. In line with the above analysis (supra), it is clear that in the absence of proof of fraud/forgery, that the plaint of the Plaintiff is time-barred as against the 1st, 2nd, 3rd, 4th, and 5th Defendants and this under the provisions of articles 2271 as read with 2262 and 2265 of the Code.

Conclusion

  1. As the result, the following orders are made:
  1. The Plaintiff’s Plaint is dismissed as against all defendants;
  2. Costs of the suit to be paid by the Plaintiff to all defendants;
  3. No order is made as to alleged unauthorized transactions with the deceased’s Barclays bank accounts in the absence of evidence;

 

  1. Noting the serious discrepancies in the pleadings of the Plaintiff inclusive of the serious allegations made to fraud and forgery with regards to the 1st and 6th defendants, which matters stands unsubstantiated before the court, this court hereby refers this matter to the Chief Justice for further determination and investigation on the filing of this civil suit by the Plaintiff and Plaintiff’s attorney-at-law. Mr. Serge Rouillion.

 

Signed, dated and delivered at Ile du Port on 14th October 2020.

 

 

 

ANDRE J

 

 

[1] Page 42 of Introduction to the Law of Evidence in Seychelles (Second Edition) by André Sauzier, 2011

[2] Page 206 of Civil Evidence: The Essential Guide by Martin Iller, 2006

[3] Page 205 Ibid