Jumaye & Anor v De Matos (CS 2 of 2023) [2024] SCSC 35 (28 February 2024)

SUPREl\1E COURT OF SEYCHELLES Reportable [2024] CS02/2023 Plaintiffs In the matter between: GEORGES JUMA YE l\1ARY-ANNE JUMA YE (rep. by France Bonte) and SHEENA RACHEL CHATTERLEY DE MATOS (unrep.) Defendant Neutral Citation: Before: Summary: Heard: Delivered: Jumaye & anor v De Matos (CS 02/2023) [2024] 28 February 2024. Dodin J. Land Transfer - lack of consideration - rescission - whether further damages due. 6 February 2024 28 February 2024 ORDER JUDGMENT DODIN J. [1] The Plaintiffs Georges Jumaye and Mary-AIU1eJumaye are the parents of the Defendant, Sheena Rachel Chatterley De Matos. The Plaintiffs are the owners of a parcel of land, namely parcel V3484, situated at La Louise, Mahe on which they have a dwelling house in which they are staying. The l" Plaintiff further had a parcel of land parcel J2643, situated at Cap Temay, Mahe consisting of an area of 3,880 square meters. [2] On the 2 l " June, 2013, the Plaintiffs and the Defendant entered into an agreement to transfer parcel J2643 to the Defendant for a consideration equivalent to a sum of Seychelles Rupees five hundred Thousand (SCR 500,000). The Defendant was to use the sum of SCR 500,000 to rebuild the Plaintiffs' house on parcel V3494. Both agreement and transfer was drawn up and signed on the 2pt June 2013. The Transfer was registered on the 15thJuly, 2013. [3] The Plaintiffs aver in their Plaint that to date the Defendant has not honoured the undertaking to rebuild their dwelling house which remains in a dilapidated state and therefore has not met the consideration agreed upon and included in both the Agreement and the transfer document. [4] The Plaintiffs move the court for a cancellation or rescission of the transfer for lack of consideration and for damages in the sum of SeycheIIes Rupees 900,000 thousand. [5] The Plaintiffs testified that the failure of the Defendant to reconstruct the Plaintiffs' house which remains in a dilapidated state has caused them serious prejudice which the Defendant is bound to make good in damages in addition to the retum of the land parcel J2643 for which consideration has not been met at all. [6] The Defendant who currently resides in Portugal was served by registered mail issued on 10th May, 2023 but failed to make any appearance or representation until the date of hearing when proceeded ex-parte. [7] There is a distinction between lack of consideration which results in the contract never having been valid or enforceable and failure of consideration which occurs where a valid contract with a valid consideration clause becoming unenforceable due to the consideration no longer being valuable for the purpose and time it was agreed upon. [8] This becomes more pronounced in the manner of land transfer under the Land Registration Act of SeycheIIes where the transfer document has the provision which states "(which sum has been paid) " which translates into consideration having been met. However in the attached agreement of the same dated signed by the patties it is stated that: " The daughter of party one has agreed to rebuild the dwelling house standing on parcel V3494 and shall spend the sum of around Seychelles Rupees Five Hundred Thousand (SR 500,0001-) for the rebuilding of the dwelling house." Hence the consideration at the time was for the rebuilding of the Plaintiffs' house, the expectation of which failed once the Defendant moved overseas and did not abide by the term of the agreement to rebuild the Plaintiffs' house to date. [9] I do hereby observe that the Transfer document could have been better drafted to cater for the latter eventuality but since the Defendant never contested the plaint or the averments of the Plaintiffs, I find no reason not to accept their understanding and expectation at the time of entering into the agreement and transfer that consideration for the transfer of J2643 was the rebuilding of the dwelling house situated 0 V 3494 in which they were living. This amounts to an enforceable promise given which also amounts to valuable consideration. [10] In our common law system, the courts often resort to the doctrine of promissory estoppel to address the enforceability of the promise and to grant remedy to the promisee, provided that the promise was reasonably relied on by the promisee and reliance on the promise results in a detriment to the promisee. In the case of Luo Xing Juan v Estate of Hut SInd See (2009) 12 HKCFAR 1, [20081 HKCU 918 (CFA) the Court addressed and applied that principle elucidating further that as the promisee reasonably relied upon the promise and was induced to alter his or her position on the faith of it, it would be inequitable or unconscionable for the promisor to act inconsistently with the promise. [11] I therefore find that in the circumstances as they stand un-contradicted, there is a failure of consideration as the Defendant who had to meet certain conditions she promised but she has to date not met those conditions hence requiring this Court to order the rescission of the otherwise valid transfer agreement. [12] I now refer to the claim of damages. The Plaintiffs claim damages in the sum of SCR 900,000/- . Neither Plaintiff produced any evidence of direct pecuniary loss resulting from the failure of the Defendant to meet her part of the bargain. The Plaintiffs claim is based on the fact that as a result of the Defendant's failure to perform as promised, they have to date lived in their old dilapidated house and had been deprived unjustly of land parcel J2643. [13] Damages can indeed be claimed for breach of contract. The calculation of the damages is based on the actual losses the party has sustained as a result of the breach of contract. These typically fall into two categories which are expected damages and consequential damages. Such damages must however be proved to the satisfaction of the Court. It is not awarded as a matter of course. The party claiming damages for breach of contract must prove that the losses that the claimant suffered was a direct and inevitable result of the breach happening. These are the obvious losses that anyone who was party to the contract would foresee or face due to the breach. [14] Furthermore, the injured party should, so much as possible, be left in the same position as if the contract had been performed. In this case, the Plaintiffs are claiming rescission of the contract by reason of the non-performance by the Defendant and in addition SCR 900,0001- in monetary damages. As was stated in the Ugandan case of Waiglobe (U) Limited v Sai Beverages Limited (CIVIL SUIT No. 0016 OF 20J 7) [20171 UGHCCD J 72 (14 December 2017): "The rule of the common law is that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be to damages, as if the contract placed in the same situation, with respect had been performed (see Robinson v. Harman (J 848) 1 Exch 850 at 855, [1843-60J All ER Rep 383 at 385 and Kibimba Rice Ltd v. Umar Salim, S.c. Civil Appeal No. J 7 of 1992} .... ... This does not mean that in every case of breach of contract the plaintiff can obtain the monetary equivalent of specific performance. It is first necessary to ascertain the loss the plaintiff has in fact suffered by reason of the breach. If he has suffered no loss, as sometimes happens, he can recover no more than nominal damages. For the object of damages is always to compensate the plaintiff, not to punish the defendant ... ... Therefore, when a claim for damages is made, the plaintiff is required to provide evidence in support of the claim and to adduce facts upon which the damages could be assessed. Before assessment of damages can. be made, the plaintiff must first furnish evidence to warrant the award of damages. The plaintiff must also provide facts that would form the basis of assessment the damages he would be entitled to. Failure to do so would is fatal to a claim for damages. " [15] The Plaintiffs in this case admit that despite the non-performance of the Defendant, they have continued to live in their house, albeit without the anticipate rebuilding, and the lsi Plaintiff parted with the ownership of parcel J 2643 which was transferred to the Defendant. The 1st Plaintiff did not identify any loss suffered by virtue of the transfer of parcel J 2643 to the Defendant. The Plaintiffs also were not specific about any loss suffered in respect of their property on parcel V 3484 other than they did not have the comfort that they expected from the proposed rebuilding. I therefore conclude that with the rescission of the transfer of J 2643 no substantial damage has been suffered by the Plaintiffs except the lack of comfort they expected to obtain from the transaction. For that, only nominal damages can be awarded which is only to mark the vindication where no real damage has been suffered. [16] Consequently, I award the Plaintiffs the sum of Seychelles Rupees One Hundred Thousand (SCR 100,0001-) each as compensation for loss of expectation and comfort which did not materialise due the breach of contract by the Defendant. [17] In final conclusion, the Court orders as follows: 1. That the sale and transfer of land parcel J 2643 is rescinded and the Registrar of Lands is hereby ordered to stlike out the name of the Defendant as owner 11. of the said land title and to enter the name of the 1st Plaintiff as the sole owner of title J2643; and 111. The Defendant shall pay the Plaintiffs the sum of SCR 100,0001- each as damages for breach of the contract which now stands rescinded. [18] I award cost to the Plaintiffs Signed, dated and delivered at Ile du Port on 28 February, 2024. Dodin J. 6