Payet v Green & Anor ((Civil Appeal SCA 01/2024) [2024] (19 August 2024) (Arising in MC 40/2021) SCSC 777)) [2024] SCCA 23 (19 August 2024)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2024] Civil Appeal SCA 01/2024 (19 August 2024) (Arising in MC 40/2021) SCSC 777 Appellant In the matter Between Anthony Valer Payet (rep. by Miss Karine Dick) And Marise Green Allen Hoareau (rep. by Mr. Kieran Shah) ____________________________________________________________________________ 1st Respondent 2nd Respondent Neutral Citation: Payet v Green and Anor (SCA 01/2024) [2024] (Arising from MC 40/2021) Before: Summary: Heard: Delivered: (19 August 2024) Robinson, Tibatemwa-Ekirukubinza, Andre JJA Petition for division in kind — The Immovable Property (Judicial Sales) Act & Civil Code of Seychelles 6 August 2024 19 August 2024 MINORITY OPINION ROBINSON JA THE BACKGROUND 1. I had the opportunity to read in draft the judgment of Andre JA with which Tibatemwa- Ekirukubinza JA agreed. 2. 3. I conclude that the appeal should be dismissed. My reasoning is as follows. This is an appeal against a judgment of the learned Judge of the Supreme Court delivered on 22 November 2023, dismissing the Appellant's petition asking that parcel T573 of the extent of 1,011,500 square meters situated at Capucins, Takamaka, Mahe (hereinafter referred to as the "Property") be divided in kind. 4. The Appellant averred in the petition that he is a co-owner of an undivided 17/288 (5.903% or 59,706.5 square meters/14.7 acres) in the Property. He also averred that he no longer wishes to remain in a state of indivision with the Respondents and is desirous of excising his share from the Property. The Appellant prayed that the trial Court ordered an appraisement of the Property and the division in kind of the same in order that his share could be extracted from it. 5. In answer to the petition asking that the Property be divided in kind, the Respondents prayed that the petition be dismissed with costs for the following reasons. The Respondents claimed that the Property should be sold as a whole, as approved by the order of the Supreme Court dated 29 March 2019. The Respondents also alleged that it would be to the manifest disadvantage of the rest of the co-owners if any portion of the Property is excised because — (i) the Property lacks an access road and services; (ii) a significant part of the Property is located within the nature reserve; (iii) a division in kind among all the co-owners would incur significant costs for access roads, electricity and water services, and sub-division fees; (iv) it would be impracticable to divide the Property among all the co-owners because some of the co-owners have very small shares, such as 1/2260, 1/2400, 1/1680, 1/960, 1/384. The costs of sub-dividing these small shares would be excessive, regard being had to the value of these small shares. 6. The learned Judge ordered an appraisement of the Property on 26 October 2021 to be done by Mr. Allain Savy under section 112 of the Immovable Property (Judicial Sales) Act, hereinafter referred to as the "IPJS Act". I reproduce the order of the learned Judge in part — "[3] Appraisement for the purposes of a division-in-kind is done in accordance with section 112 of the Immovable Property (Judicial Sales) Act. [4] Section 112 of the Act reads as follows: 112. "The Judge may also, before deciding upon the demand, order an appraisement (espertise) by an appraiser to be named by him. In such case, the appraiser shall, within a delay to be fixed by the Judge, make and file in the registry his report, which shall, in a summary manner, give a description of the property, the estimated value thereof, and the basis upon which such valuation is made. The report shall further state whether or not the property can conveniently be divided in kind, and if so divisible shall set forth the proposed lots in conformity with this Act and the provisions of the Civil Code of Seychelles. In no case of appraisement under the provisions of this Chapter shall it be necessary to administer an oath to the appraiser. The parties to the division in kind shall be summoned, by a notice served upon them in person or at the domicile elected by them in accordance with section 110, four days at least before the day fixed for the appraisement, to attend at the time and place where the said appraisement is to be made." [5] [6] The parties have agreed for an appraiser to be appointed, so they will each bear a portion of the costs. In the circumstances, in terms of section 112 of the Immovable Property (Judicial Sales) Act, I hereby appoint Mr. Alain Savy to carry out an appraisement of the land comprised in Title 573 situated at Capucins, Takamaka, Seychelles, and to submit a Report complying with the above provision, proposing partition of the property allowing for the undivided share of the Petitioner to be extracted, to this Court on or before 16th February 2022 at 2:00 pm." [Empasis is mine]. 7. Mr. Allain Savy, who has been working as a land surveyor since 1990 and holds a licence to practice, was appointed to do the appraisement according to the order of 26 October 2021. I am reproducing the evidence of Mr. Allain Savy. 8. The evidence of Mr. Allain Savy (PW-1). Mr. Savy prepared two reports in this case, which are before the Court as exhibits P1-A dated 12 October 2022 and P1-B (undated). Exhibits P1-A and P1-B are titled, "APPRAISEMENT OF PARCEL T573 FOR DIVISION-IN-KIND ANSE MARIE-LOUISE, MAHE". Mr. Savy testified that the Property is 101 hectares and is registered in the name of the heirs of the late Francois Mondon. The share of the Appellant in the Property is 17/299, which is equivalent to 5.9 percent of the entire Property. 9. Mr. Savy testified that he had to find a way to determine the Appellant's share in a manner that would not have an adverse effect on the remaining Property. He stated that the "[P]roperty is quite steep, it goes from the shore, it is very flattish and then in the middle, it goes fairly steep and then very steep towards the end". 10. In the initial report, exhibit P1-A, Mr. Savy proposed removing a strip of land from the Property, stretching from the coastline to the hill, constituting the exact share he claimed the Appellant is entitled to receive. The strip of land proposed in exhibit P1-A is located at the beginning of the Property. He added that removing the strip of land would not significantly affect the value of the remainder of the Property as long as access to the remainder of the Property is ensured, which he had taken into account. The Appellant would receive the coastline, some flat land, and some hillside as well, which is a fair share of the Property. 11. In exhibit P1-B, the Appellant requested to include the two ruins, which he [the Appellant] had identified on the Property. According to Mr. Savy, the location where the ruins were identified is where the Appellant's mother grew up, and they hold sentimental value. He stated that the Appellant is willing to sacrifice half of his share in the Property to receive the ruins in his allocated portion. He claimed that the second option measures about 164 x 166 meters, resulting in 29,850 square meters. 12. He expressed the view that the first proposal in exhibit P1-A would be better for the remaining heirs because it involves a narrow strip of land and would have less impact on the remaining Property, while the second proposal involves a much larger area. He also mentioned that there is currently no right of way on the Property. He proposed that the footpath should be adopted as the eventual road reserve. He opined that it is possible to extract the share of the Appellant and do so conveniently provided an easement for the right of way is provided. 13. During cross-examination, Mr. Savy was asked if it would be possible to divide the Property into 8 equal portions. He mentioned that if the Property were to be divided into 8 portions, a portion of the beachfront area of the Property would not be included in all the 8 portions. The beach is located in the central part of the property, recognised as the most valuable area. He stated that any portion of the Property with a beachfront area should be considered of higher value. In this regard, Mr. Savy proposed that the part of the Property without a beachfront area should be larger than the part with a beachfront area to offset the difference in value. He stated that the ruins in exhibit P1-B were included after he had spoken to the Appellant. 14. When re-examined, he claimed that the Court ordered him to extract one portion and not to partition the whole Property. He claimed that after he had completed exhibit P1-A, he did not receive any request from the Respondents regarding the partition among all the heirs. 15. In the Supreme Court, Mr. Georges, on behalf of the Petitioner, presented the following arguments in favour of a division in kind of the Property to extract the Petitioner's share by dividing the Property into two plots. He contended that the conditions for division in kind had been met, specifically— (i) the Petitioner's share could be ascertained; (ii) the Property could be conveniently divided into two plots to extract the Petiitoner's share; (iii) the Appellant would only be responsible for the costs associated with extracting his share of the Property; and (iv) division in kind is the most advantageous option for the heirs. 16. Mr. Shah, on behalf of the Respondent, contended that the trial Court should dismiss the application for division in kind for the following reasons— (i) the order would be contrary to the order of the Supreme Court authorising the sale of the entire Property; (ii) the allocation would be unfavourable for co-owners holding minimal shares such as 1/3360, 1/2400, and 1/1680; (iii) should the partition be granted, the Property must be sub-divided among the 8 primary heirs, and the Appellant's share would need to be determined through a drawing of lots; (iv) sub-division of the entire Property would necessitate all co-owners to provide and financially contribute to an access road and utility services. Hence, allowing the Appellant to distract his share, as proposed by Mr. Savy, would exempt him from fairly contributing to the provision of a road and services for the other co-owners. 17. Upon thorough consideration, the learned Judge concluded that the Property could not be conveniently sub-divided into two plots to extract the Appellant's share. She concluded that dividing the Property into two plots would be impractical and result in inequities in various aspects, such as area, development costs and value. 18. Concerning the point raised that an order granting the petition would be contrary to the order of the Supreme Court authorising the sale of the entire Property, the learned Judge concluded that "the Order of the Learned Chief Justice dated 29th March 2019 refers to the specific proposed sale to a known purchaser in the sum of Euros 18 million and no other". THE APPEAL 19. The Appellant, dissatisfied with the judgment of the learned Judge, has appealed against it on the following grounds: "2. Grounds of Appeal: 1. 2. Having correctly set out the law governing division in kind under section 107(2) & 111(2) of the Immovable Property Judicial Sales Act, the Learned Trial Judge misapplied the law to the facts of the Appellant's case. The Learned Trial Judge erred in her definition of "conveniently" as having greater reach than physical convenience and requiring mutual convenience between the Appellant and other co-owners. 3. 4. The Learned Trial Judge erred in failing to adopt the land surveyor's report, which clearly stated that the share of the Appellant can be conveniently extracted from the parcel. The Learned Trial Judge erred in dismissing the Appellant's petition without calling for and considering other options for extracting his share from the parcel." Grounds one, two, three, and four of the appeal 20. I have considered the four grounds of appeal together. I have carefully considered the grounds of appeal and the main points of argument submitted on behalf of the Appellant in the skeleton heads of argument. Counsel for the Appellant submitted that the Appellant has satisfied the legal requirements provided in the IPJS Act, and that the Property can be conveniently partitioned. He submitted that the learned Judge should have adopted one of Mr. Savy's reports and proceeded to the sub-division of the Property. 21. Counsel for the Respondent, in his counter submissions, contended that the learned Judge was correct in her interpretation that the Property cannot be conveniently divided and was right to take into account inter alia the following— (i) Mr. Savy only interacted with the Appellant and sought to accommodate the Appellantʹs wishes and did not discuss any proposal with the Respondents; (ii) Mr. Savy did not propose a division in kind comprising of 8 lots for the 8 first-line heirs or for all the heirs as required under sections 112 and 113 of the IPJS Act; (iii) Mr. Savy presented no solution for the heirs having minuscule shares. Counsel for the Respondent claimed that a private sale would be better for the heirs having minuscule shares. Analysis of the contentions of the parties 22. I have considered with care the record of appeal, the skeleton heads of argument of the parties, and their respective oral submissions during the hearing of the appeal. 23. Applications for division in kind are governed by the provisions of the IPJS Act. The petition is made pursuant to section 107(2) of the IPJS Act, which stipulates — "107(1)… (2) Any co-owner of an immovable property may also by petition to a Judge ask that the property be divided in kind or if such division is not possible, that it be sold by licitation." Emphasis is mine. 24. In his petition, the Appellant prayed for an appraisement of the Property under the IPJS Act and its partition in kind so that he could receive his share. The Respondents, in their answer to the petition, averred that it would be impracticable to divide the Property among all the co-owners because some of the co-owners have very small shares, such as 1/2260, 1/2400, 1/1680, 1/960, 1/384. Counsel for the Respondent pointed out in his skeleton heads of argument that Mr. Savy should have proposed a sub-division of the Property into 8 lots with respect to the first-line heirs or among all the co-owners, as required by sections 112 and 113 of the IPJS Act. Mr. Savy testified that he had been directed by the order of the learned Judge to form two lots. I have tried my best to understand the proceedings before the Supreme Court. At this point, I mention that one of my concerns in this case is the lack of clarity regarding the information about the co-owners. 25. The learned Judge appointed Mr. Savy, in terms of section 112 of the IPJS Act, to appraise the Property. Based on exhibits P1-A and P1-B, Mr. Savy proposed two options for partitioning the Property into two lots. The Appellant did not ask in the petition for the formation of two lots. The learned Judge did not direct Mr. Savy to form two lots. Hence, I am left questioning why Mr. Savy proposed two lots in this case and why he only engaged with the Appellant, sought to accommodate the Appellantʹs requests, and did not communicate any proposals with the Respondents, as highlighted by Counsel for the Respondent. 26. In reviewing this case, it's puzzling that the learned Judge based her decision on reports (exhibits P1-A and P1-B) that did not comply with the order for appraisement of the Property under section 112 of the IPJS Act, which stipulates inter alia: "[t]he report shall further state whether or not the property can conveniently be divided in kind, and if so divisible shall set forth the proposed lots in conformity with [the IPJS Act] and the provisions of the Civil Code". It is my opinion that the learned Judge erred in adopting this approach in this case. 27. Counsel for the Appellant argued in his skeleton heads of argument that the learned Judge should have allowed the Appellant's shares to be extracted based on either report of Mr. Savy – (exhibits P1-A or P1-B). This argument is based on the premise that the Property can be conveniently partitioned into two plots, and that the Appellant has met the requirements of section 112 of the IPJS Act. Given my conclusion that the learned Judge took the wrong approach in this case, it follows that the argument of Counsel for the Appellant is misconceived – consequently, grounds one, two, three, and four of the appeal are misconceived. 28. It also follows, therefore, that the relief prayed for by the Appellant is misconceived. The Appellant prayed that this Court allow the appeal, setting aside the judgment of the Supreme Court for the process of the extraction of the Appellant's share from the Property to proceed. 29. Having arrived at this conclusion, I need not address the issue raised regarding a potential conflict with the order of the Supreme Court authorising the entire sale of the Property. MISCELLANEOUS POINT 30. I read the following from Juris-Classeur Civil Art. 711 à 881— "II. —DEFENDEUR A L'ACTION EN PARTAGE A. — Réciprocité de l'action en partage 58. — Doctrine et jurisprudence sont généralement d'accord pour admettre que l'action en partage est une action réciproque..., en ce sens qu'elle doit être intentée contre les personnes mêmes qui ont le droit de l'exercer et que les qualités de demandeur et de defendeur au partage appartiennent à chaque copartageant… … B. — Indivisibilité de l'action en partage 60. — L'action en partage est indivisible parce qu'elle doit être intentée contre tous les coindivisaires. C'est ce qu'admettent géneralement les auteurs et les tribunaux… De nombreuses conséquences découlent de ce caractère d'indivisibilité de l’action en partage". [Emphasis is mine] 31. The Respondents to the petition are the executors. A question has arisen about whether the executors are the proper parties to answer the petition under the IPJS Act and Civil Code of Seychelles, based on the notes from Juris-Classeur. I brought up this issue in Court, but both Counsel were not fully prepared to argue this point. 32. I can leave open the question to which I have referred because, in my opinion, the answer makes no difference to the conclusion I have reached in this appeal. Nonetheless, I acknowledge its significance and the necessity to address it. F. Robinson, JA Signed, dated and delivered at Ile du Port on 19 August 2024 10