Estate of late Dr. Hilda Stevenson-Delhomme v Government of Seychelles & Anor (MA 03 of 2024 (Arising from CP 08 of 2023)) [2024] SCCC 3 (21 May 2024)

IN THE CONSTITUTIONAL COURT OF SEYCHELLES Reportable MA 3/2024 Arising from CPOS/2023 In the matter between ESTATE OF LATE DR. HILDA STEVENSON-DEL HOMME (rep. by Phillipe Boulle) PETITIONER AND GOVERNMENT OF SEYCHELLES (Mrs. Monthy) ATTORNEY GENERAL (Ms. MOl1thJ~ 1STRESPONDENT 21"D RESPONDENT Neutral Citation: Estate of late Dr. Hilda Stevenson-Delhomme vs Government of Seychelles & Before: Heard: Delivered: Anor (MA0312024) Dodin J, (Presiding) Vidot & Pillay JJ. 27th February 2024 24 May 2024 ORDER NIl' Allen Hoareau could not have acted for or on behalf or as representative of Mrs Veronique Marie Hilda Maryan Green or the Estate of the late Dr Hilda Stevenson-Delhomme on the IDth July, 2023 due to lack of legal capacity. M1'Allen Hoareau's appointment as executor on 12th January, 2024 cannot be used retroactively to amend the Petition of the 10th July, 2023. The objection is sustained. Motion for amendment is dismissed RULING OF THE COURT Dodin . J. (Presiding), Vidot J., Pillay J. lJ] The Petitioner in case Number CP 8/2023 is Estate of the late Hilda Stevenson-Delhomme vested in the execution to (he succession Airs Veronique Green represented by Mr Allen Hoareau of Beau Vallon, Mahe, Seychelles. The pl Respondent is the Government of Seychelles and the 2nd Respondent is the Attorney General, the statutory respondent. [2] The Petition is founded on the averments by the Petitioner that the late Dr. Hilda Stevenson Delhomme was the owner of two parcels of land registered as Title Nos V962 and VI 099 of the extent of 346,686 sq. metres and 6,332 sq. metres respectively, situated at Beau Vallon, Mahe, Seychelles which on the 3pt day of March 1984, were compulsorily acquired by the 15t Respondent. Negotiations were ongoing pursuant to the provisions of Schedule 7 of the Constitution but was not concluded by the time Dr. Hilda Stevenson Delhomme passed away on the 4th of January 2002. [3] By Order of the Supreme Court in case Civil Side 153/2002, Veronique Marie Hilda Maryan Green, born Delhomme was appointed Executrix of the succession of the late Dr Marie Hilda Stevenson-Delhomme. [4] This Petition which has been signed by the Attorney-at-Law, Mr Philippe Boulle, is accompanied by an Affidavit in Support sworn by Allen Hoareau, of Beau Vallon, Mahe, Seychelles and a Power of Attorney granted to Mr Allen Andre Joseph Hoareau Clo Augerine Guesthouse, Beall Vallon, Mahe, Seychelles by Veronique Marie Hilda Hugette M. Delhomrne of 111 Ave de la Motte Piquet, Paris, France. [5] The Respondents raised preliminary objections to the Petition out of which the following two grounds of objection are still ill contention in respect of the motion for amendment, namely; "1.3 an agent is 1101 entitled 10 depone 011 behalf of the executor of an estate; and 2. The Petitioner is the Estate of the late Dr Hilda Stevenson-Delhomme of which lvII'S. Veronique Green has been appointed as the executrix by the order of the Supreme Court. However, the Petition is by representative of Mrs. Green, namely Allen Hoareau, who had sworn to the affidavit as well. II is averred that the Estate is 110tproperly represented in the Petition as a purported agent of the executrix has no capacity to act for and on behalf 0/ the estate. Further the executor should be the one acting in person and not through an agent. " [6] By Notice of Motion dated 121hJanuary, 2024 and filed on the lth January, 2024, the Petitioner moved for leave to amend the Petition by substituting-the executrix of tile estate of the late Dr Hilda Stevenson-Delhomme, namely Mrs Veronique Green with Mr Allen Hoareau as executor of the said estate and consequently replacing the original Petition with the amended Petition. The Notice of Motion is accompanied by an affidavit of Allen Hoareau deponing as follows: "1) By order of the Curator dated 12thday of Janu01Y 2024 I was appointed executor of the Estate of the late Dr. Hilda Stevenson-Delhomme jointly with Mrs. Veronique Green. 2) 1 am aware of the Petition filed in the Constitutional Court namely the Estate oj the late Dr. Hilda Stevenson-Delhomme vs. Seychelles Government and Attorney General CP No.8 of 2023. 3) It is necessary that I be substituted as the Executor representing the Estate of the late Dr. Hilda Stevenson-Delhomme in lieu of Mrs. Veronique Green who resides in France as I reside in Seychelles and better able to pursue the proceedings before the Constitutional Court. 4) To the best 0/ my information, knowledge and belief, it is fair, just and reasonable that a leave he granted by the Honourable Constitutional Court fa amend the Petition as per amended Petition attached herewith and I pray accordingly. " [7] The Respondents objected to the motion to amend the Petition raising the following ground of objection: 1. 1 The Petitioner of the Petition dated J 9107123was named as Estate of the late Dr. Hilda Stevenson-Delhomme represented by Allen Hoareau where the said Allen Hoareau was purportedly a holder of a Power of Attorney of Veronique Green who was the only Executrix appointed for the said estate as at the dale of the Petition. 1.2 The said Petition was accompanied by an affidavit of the said Mr. Allen Hoareau. Thus for all purposes {he said Petition dated 19107123was filed by the said Mr. Allen Hoareau who did not have the capacity to file such Petition on behalf of the estate of the late Dr. Hilda Stevenson-Delhomme. 1.3 The Respondents have filed preliminary objections ;'1 relation to the said Petition where one of the grounds of objections was that the said Mr. Allen Hoareau does not have the capacity to act for and on behalf of the said estate. 1.4 An application to amend the Petition dated 12101124has now been filed to amend the caption of the said Petition by stating that the said estate is represented by Mr. Allen Hoareau as the executor of the said estate on/he basis that the said Mr. Allen Hoareau was appointed as a joint executor on 12101124. 1.5 In view of the above circumstances, the Respondents object 10 the said application to amend the Petition for the following grounds inter alia; 1.5.1 Mr. Allen Hoareau was 1101 an executor as at the date of the Petition which is 19107123and did not have the capacity tofile the said Petition. Therefore ..the Petition was defective and the said defect cannot be cured by way of an amendment to substitute Mr. Allen Hoareau as the executor who has been appointed as an executor on 12101124,about six months after the said Petition was filed where he was nor an executor as at the date of the Petition and did not have the capacity tofile the said Petition as of 19107123;and 1.5.2 Without prejudice to the above objection, according to the Order dated 12101124 attached with the instant application Mr. Allen Hoareau is a joint executor of the said estate of the late Dr. Hilda Stevenson-Delhomme, and therefore the said Mr. Allen Hoareau does not have the capacity 10file action purporting 10 be the sale executor of the said estate. 1.6 The Respondent would further wish to highlight that the caption of the application to amend the peri/ion is no/the caption of the Petition dated 19107123filed before this court and this renders the instant application defective if not misleading. " [81 Learned counsel for the Petitioner and Respondents in addressing the Court narrowed the ground of contention substantially. Learned counsel for the Respondents submitted that by the very fact that the Petition was filed with an accompanied affidavit of Mr Hoareau as agent to Mrs. Green renders the Petition defective at the point of it being filed for two main reasons. The first reason is that the duties and the powers of an executor cannot be delegated as provided by Article 1025 sub Article 3 of the Civil Code of Seychelles which is also in line with the legal principle of deligatus non-potest delegare. Secondly an agent cannot give evidence for and on behalf of the principal and therefore it was submitted that the Petition in itself is void ab initio and the subsequent appointment of Mr. Allen Hoareau as joint executor cannot cure this defect. Learned counsel submitted further that ifanything the very recent appointment of executor is a clear indication that the Petition is bad in law and should be dismissed. To allow for the amendment would be to allow for a new case to be brought before the Court by way of this amendment. [9j Learned counsel submitted further that the order of the Curator dated the 12th of January 2024 names Mr. Allen Hoareau as a joint executor of the estate therefore Mr Hoareau does not have the capacity to file the action purporting to be the sole executor to the estate. [10] Learned counsel for the Petitioner submitted that at no time had Mr Allen Hoareau entered the action as representing the estate. The heading of the first Petition is estate of the late Doctor Hilda Stevenson Delhornme vested in the executor to the succession Ms Veronique Green represented by Mr. Allen Hoareau. It was the executor that he was the representative of and not the estate. Secondly, Mr Hoareau is not entering as a sole executor. He is entering as an executor appointed for that purpose and empowered under the Civil Code to act solely. f 11] Learned counsel submitted further that absentees can be represented but this is not an argument ready to be made at this stage where the motion is only for amendment. Learned counsel referred the Court 10 Part 1II of Schedule 7 paragraph 14(4) of the Constitution under which the claim is brought arguing that where the person eligible to make an application to receive compensation under this paragraph is dead, the application may be made by or the compensation may be paid to the legal representative of the person. This has entitled the heirs to come before the COUlt as they have done in many instances. [12j Learned counsel further subm irted that the petition is not brought by the executor. The petition is brought by the heirs. Regarding power of representation learned counsel referred the Court to Article 1028(1)(d) of the Civil Code which states that the executor shall represent the estate in all legal proceedings and act in any legal action the purpose of which is to declare the will null and void. This amendment only seeks to replace one executor by another and referred the Court to Article 1033(1) of the Civil Code which states that if two or more executors have been appointed one may act in the absence or on the failure to act of the other. The other executor is in France and she has sought this application to give Mr. lloareau specific powers to deal with that case, [13] The Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules ("the Rules") provides only the following in respect of amendment of Petition in paragraph 5(3): "5(3)The Court shall 1101 permit an amendment ofa petition which seeks /.0 include any ne)'1!matter not pleaded in the petition. " This does 110t help with the amendment being sought tor in this case. [ 14] Paragraph 2(2) of the Ru I.esprovides certain guidance with the following provision: 2(2) Where any matter is not provided for in these Rules. the Seychelles Code of Civil Procedure shall apply to the practice and procedure of the Constitutional Court as they apply to civil proceedings before the Supreme Court. This leads us to consider Article 146 of the Seychelles Code of Civil Procedure which provides: "146, The court may, (It any stage of the proceedings. allow either party to alter or amend his pleadings, in such manner and on such terms as may be just. and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the pat 'ties: Provided that a plaint shall not be amended so as to convert a suit of one character into a suit of another and substantially different character. " [15] This provision has been extensively considered by the Court in many cases and can be summarized thus: It is not in dispute that parties may amend pleadings with leave of the Court at any stage of the proceed ings as long as the amendment is not proh ibited by law and the amendment is necessary for the purpose of determining the real issues between the parties. See the cases of Okello Wilhert v Obel Ronald MA No: 9712020 arising in CS No. 15712017; UniversilV of Seychelles American Institute of Medicine vs The Attornev General ,MA1912022 arising from (CS131120J9; Petit Car Hire v lvfandelson [19777 SLR 68 and Eastern European Engineering Ltd v Vijal' Construction (Pry) Ltd SeA 10/201-1 [20161 SCCA 4." [J 6] The contention here however surpasses the above provisions and goes to the very foundation of the Petition. The objection is that if the initial petition was defective and hence void by reason of the lack of lawful authority of A lien Hoareau to bring the petition on behalf of Mrs Green, who should have been representing the Petitioner, the defective and void petition cannot be cured or rescued by amendment. [17] The argument of the Respondents is founded on Article 1025 of the Civil Code which provides: "Article 1025 (l)A testator may appoint not more than three testamentary executors. (2)An executor must comply with the provisions of the Curatelle Act. (3)The powers and dulies o(lhe executor are not.transmissible. "(Emphasis ours]. The Respondents' main contention is that the executrix, Mrs Green, could not lawfully be represented by Mr Hoareau since the executrix cannot delegate or transmit the powers and duties to an agent or representative and not even by power of attorney. Since the initial Petition was brought by Mr Hoareau as representative of Mrs Green, the petition was detective in that Mr Hoareau did not have capacity to bring the petition nor to swear the supporting affidavit at the time. [18] Learned counsel for the Petitioner argued that the original Petition was brought by the then executor and the Petitioner was and is still Estate of the late Hilda Stevenson-Delhornme vested in the execution to the succession Mrs Veronique Green. The amendment only seeks to replace one executor by another and permitting the executor to act as per Articles 1028(1)(d) and 1033 of the Civil Code which slate: 1028(1) "The executor mus{- (cl) represent the estate in all legal proceedings, and act in any legal action the purpose of which is 10 declare the will null. " 1033 ., (l)lftwo or more executors have been appointed, one may act in (he absence or 011 the failure to acl of the other. (2)The executors are jointly and severally liable for/he execution of the will unless there is agreement to the contrary. " [19] This where we find the argument of learned counsel. for the Petitioner difficult to sustain. At the time of filing the Petition on the 19th July, 2023, there was only one appointed executor namely, Veronique Marie Hilda Maryan Green, born Delhornme appointed On 8th July, 2002 in CS No: 153/2002. Mr Allen Hoareau came into the Petition as representing Mrs Veronique Green on the 19th July, 2023. Mr Allen Hoareau even swore to an Affidavit In Support Of The Petition which started with the words: "~Irepresent tire executor of the estate a/the late Dr Hilda Stevenson Delhomme ,.. ". This is contrary to Article J 028(1)(d) which requires that the executor must represent the estate in all legal proceedings. Further this is also contrary to Article 1025(3) which clearly provides that the powers. and duties of the executor shall not be transmissible. {20] Whilst we may be amenable to the proposition that the Estate of the late Hilda Stevenson Delhomme vested in the execution to the succession Mrs Veronique Green or only Estate of the late Hilda Stevenson-Delhomme was the Petitioner in the original Petition, we cannot agree that Mr Allen Hoareau had the capacity to represent either in the original Petition. [21] We therefore find that since Mr Allen Hoareau had no capacity to represent the estate of the tate Mrs De!homme nor the executrix Mrs Green, the Petition could not have proceeded on that ground. Mr Hoareau rightly sought appointment as executor and was appointed on 12 January, 2024. Mr Hoareau cannot now amend his lack of capacity. He could however Petition the Court in his new capacity as executor of the estate of Dr Hilda Stevenson Delhomme. [22] We further note that the question of whether Mr Hoareau could Petition as sole or joint executor to be irrelevant at this stage. [23] Consequently, we rule that Mr Allen Hoareau could not have acted on behalf or as representative of Mrs Veronique Marie Hilda Maryan Green or the Estate of the late Dr Hilda Stevenson-Delhomme on the lOth July, 2023 due to lack of legal capacity. Mr Hoareau can only start acting for and representing the Estate of the late Dr Hilda Stevenson Delhomme after his appointment as executor on the 12th January, 2024. His new appointment cannot be used retroactively to amend the Petition of the lOth July, 2023. [24] The objection is sustained on that ground only and the Motion for amendment is dismissed. [25] We make no order for cost. Signed, dated and delivered at lie du Port on 21 day of May2024. ~ C G DODIN Judge (Presiding) Judge PILLAY Judge 10