Gold Coast Directors Limited v DePierpont (SCA 09 of 2022 (Arising in CS 79 of 2018)) [2023] SCCA 86 (25 August 2023)

COURT OF APPEAL OF SEYCHELLES ______________________________________________________________________________ Reportable [2023] SCCA 49 (25 August 2023) SCA 09/2022 (Arising in CS 79/2018) Appellant Gold Coast Directors Ltd In its capacity as the sole councillor of Françoise Foundation (rep. by Mr Serge Rouillon) and Alexandre de Pierpont In his capacity as protector of Francoise Foundation (rep. by Mr Bernard Georges) ______________________________________________________________________________ Respondent Neutral Citation: Gold Coast Directors Limited v Pierpont (SCA 09/2022) [2023] SCCA 49 Before: Heard: Summary: Delivered: (Arising in CS 79/2018) (25 August 2023) Twomey-Woods, Robinson, Tibatemwa-Ekirikubinza, JJA 10 August 2023 Foundations Act — Section 49 —Removal of Sole Councillor 25 August 2023 ______________________________________________________________________________ The appeal is dismissed with costs in favour of the Respondent. ORDER JUDGMENT Robinson JA (Dr M. Twomey-Woods, Dr L. Tibatemwa-Ekirikubinza JJA concurring) THE BACKGROUND 1. This appeal concerns an application for an order to remove the Appellant, an international company incorporated and licensed under the law of Mauritius, as the sole councillor of the Françoise Foundation. Page 1 of 24 2. The Françoise Foundation is a private foundation registered on 12 December 2016 under the Foundations Act, 2009, as amended (hereinafter referred to as the "Foundation"). The Founder of the Foundation, Mrs Francoise Van Bastelaer, passed away in Belgium on 15 February 2020. 3. This appeal also concerns a counter application for an order to remove the Respondent as protector of the Foundation. 4. On 12 December 2016, the Foundation's Charter and Regulations were registered, and the Founder appointed the Appellant as the sole councillor by way of a written resolution. Additionally, on the same date, the Founder appointed the Respondent and Mr Gaetan De Chezelles as the first protectors under the Foundation's Regulations. The Respondent and Mr Gaetan De Chezelles ceased to be the Foundation's first protectors on 6 July 2020 and 10 March 2020, respectively. 5. It was undisputed that after the registration of the Foundation, two private companies limited by shares were incorporated under the Mauritius Companies Act 2001 on 12 January 2017, namely Immocarol Ltd bearing company number 144160, and Patrim Ltd bearing company number 144158. 6. It was also undisputed that after the incorporation of Immocarol Ltd and Patrim Ltd, the Founder transferred her properties located in Belgium to them as follows — (i) Immocarol Ltd — the apartment situated 34; 33; (ii) Patrim Ltd — the apartment situated (iii) Patrim Ltd — the apartment situated Page 2 of 24 32; and (iv) Patrim Ltd — a garage 22. 7. The learned Chief Justice issued an order on 27 January 2022, which prohibited the disposal of the Foundation's assets, including the properties in Belgium, until this case is resolved. 8. The pleadings of the Respondent and the Appellant rehearsed hereunder provide a better understanding of the relevant issues to be determined in this case. The pleadings 9. On 25 June 2021, the Respondent, in his capacity as protector of the Foundation, filed an application, under section 49 of the Foundations Act. The application prayed for an order removing the Appellant as the sole councillor because it had engaged in actions contrary to clause 10.10 of the Foundation's Charter and the relevant provisions of the Foundations Act. The Respondent claimed in the application that clause 10.10 of the Foundation's Charter requires that each councillor act honestly and in good faith, with the best interests of the Foundation, when exercising his powers or discharging his duties. 10. It is claimed in the application that the Appellant had violated its prescribed obligations and duties by appointing itself as director of companies owned by the Foundation in an attempt to take control of the Foundation's assets. It is also claimed that the Appellant sought to remove the Respondent by way of a letter to strengthen its position and facilitate its takeover of the Foundation's assets. 11. According to the application, these actions were not done in accordance with the Foundations Act and, therefore, have no effect. The Respondent claimed that it is desirous of removing the Appellant as the sole councillor and appointing a new council in its stead. Page 3 of 24 12. On the other hand, the Appellant filed a defence and counterclaim to the Respondent's application denying the claims of the Respondent. The Appellant claimed that the Letter of Wishes requested that upon the death of the Founder, her nieces, Carole Peeters (Carole) and Patricia Peeters (Patricia), would become the Foundation's beneficiaries and benefit from its assets. 13. It is claimed that Carole and Patricia, by way of a letter dated 3 July 2020 to the Respondent, exercised their right inherited from the Founder under clause 17.5 (a) of the Foundation's Charter to remove the Respondent as protector. The council approved the letter removing the Respondent as protector on 6 July 2020. 14. It is claimed that the Respondent was removed as protector because he acted in bad faith and breached his duty by refusing to consent to amend the Foundation's Charter and Regulations to add Carole and Patricia as the Foundation's beneficiaries, as requested by the Letter of Wishes. 15. The Appellant claimed that it approved the Amended and Restated Charter and Amended and Restated Regulations dated 20 August 2021, which appointed and designated Carole as the Foundation's beneficiary in accordance with the Letter of Wishes. After Patricia's death on 15 December 2020, Carole is the Founder's sole surviving niece and heir. 16. The Appellant denied the claim of the Respondent that it had acted in breach of clause 10.10 of the Foundation's Charter and the relevant provisions of the Foundations Act. The Appellant explained that it was appointed as director of Immocarol Ltd and Patrim Ltd, owned by the Foundation, to take control of the Foundation's assets to adhere to the Founder's wishes and prevent the dilapidation of the Foundation's assets by the Respondent. The Appellant claimed that these actions were lawful and proper, relying on sections 7 (1) ( b), 12, 33, 65 and 66 of the Foundations Act and clause 8.1 of the Amended and Restated Charter. The Appellant claimed that the duty of the council is to govern and manage the Foundation and its assets. As no protector had been appointed under the Amended and Restated Charter or Amended and Restated Regulations, the council is Page 4 of 24 responsible for managing the Foundation and dealing with its assets. 17. The Appellant argued that the Respondent acted in bad faith by violating its obligations outlined in the Charter (at clause 17.8), Amended and Restated Charter (at clause 17.10) and section 55 (2) of the Foundations Act and failed to fulfil his duties as protector, as follows — (i) the Respondent violated the Letter of Wishes by refusing or failing to consent to add Carole and Patricia as beneficiaries in the Charter and Regulations; (ii) the Respondent tried to enforce the Pierpont Agreement between himself and the Founder, which expired upon the Founder's death without any valid reason. This agreement required payment of CH30,000 every three months; (iii) the Respondent has made unauthorised payments of EUR 6,713.50 in November-December 2019 and EUR 13,466 in March 2020 to Vandendijk & Partners for legal services using the Foundation's assets that benefited him personally; (iv) the Appellant, the sole councillor and sole owner of Immocarol Ltd and Patrim Ltd, repeatedly asked the Respondent to return the keys to the unoccupied properties located in Belgium after the Founder's death. On or around 9 June 2020, the Appellant, acting on behalf of Immocarol Ltd, Patrim Ltd, and the Foundation, took possession of the unoccupied properties and changed the locks because the Respondent refused to return the keys; (v) the Respondent caused CFM Indosuez Wealth of 11, Boulevard Albert 1ER, MC 98000 Monaco (referred to as "Indosuez") to refuse to respond to communications from the Appellant and AAMIL (Mauritius) Ltd regarding changes to signatories on the Foundation's accounts. Indosuez officials stated that they were instructed to act in this manner. As the sole councillor Page 5 of 24 responsible for managing the Foundation's assets, the Appellant found this unacceptable as it requires full access and signatory power to the Foundation's bank and securities accounts. According to the Appellant, the Founder engaged the services of AAMIL (Mauritius) Ltd in or around December 2016 to form and administer the Foundation; (vi) according to a letter from Vandendijk & Partners, the Respondent's lawyers, dated 20 February 2020, to the Appellant, the Brussels Civil Court declared the Founder mentally incapacitated on 21 September 2019. The Respondent did not provide any details about the services he allegedly provided to the Founder; (vii) it has been alleged that the Respondent embezzled funds from the Foundation while the Founder was declared mentally incapacitated. The Respondent is said to have fled to Monaco, where a criminal case has been instituted against him. He later returned to Belgium, where the State Prosecutor in Brussels commenced a criminal case against him. 18. The Appellant claimed that the Respondent has no grounds to prevent the distribution of the Foundation's assets to Carole. The Amended and Restated Charter (at clause 8.1) and Amended and Restated Regulations (at clauses 2 and 3), and sections 7 (1) (b) and 12 (1) of the Foundations Act provide that the Foundation is solely for Carole's benefit. 19. The Appellant claimed in its counterclaim that the Respondent acted in bad faith and breached his duties as protector under clause 17.8 of the Charter, clause 17.10 of the Amended and Restated Charter, and section 55 (2) of the Foundations Act. The Appellant also alleged that the Respondent failed to fulfil his duties properly as protector, as outlined in its defence. 20. The Appellant prayed to the trial Court to make the following orders in its favour — (i) to dismiss the Respondent's application, with costs; Page 6 of 24 (ii) to declare that the Respondent is no longer the protector, and that the Appellant, as the Foundation's sole councillor, has the authority to amend the Foundation's Charter and Regulations to include the Founder's surviving heir, Carole, as the Foundation's sole beneficiary without requiring the consent of any other person; (iii) alternatively, an order under section 57 (1) of the Foundations Act to remove the Respondent as protector; (iv) to declare that the Appellant has not breached its duties owed to the Foundation as its sole Councillor; (v) to allow the Foundation, through the Appellant, to continue realising the properties in Belgium and distribute the net proceeds of sales to Carole, inter alia. 21. The Appellant tendered two affidavits in support of the defence and counterclaim. One was from Devendra Kumar Seebaluck, a director of the Appellant, who resides in Mauritius. The other was from Carole, a Belgian citizen born on 20 August 1953. I have considered the evidence tendered on behalf of the Appellant with care. 22. In its defence to the counterclaim, the Respondent disputed that he was lawfully removed as protector. He also denied that the Letter of Wishes requested Carole and Patricia to become the beneficiaries upon the Founder's death. 23. The Respondent claimed that there was no hindrance for the Foundation and the Appellant to compensate him for his services as per the Pierpont Agreement and his instrument of appointment. 24. Regarding the refusal to authorise the amendment of the Foundation's Charter and Regulations, the Respondent argued that he needed to be convinced that the changes were necessary or desired by the Founder. Moreover, he claimed that the amendments could not have been made without his consent. Page 7 of 24 25. Regarding the allegations of breaches of duties and bad faith, the Respondent denied any wrongdoing and claimed that the Appellant acted in bad faith by attempting to go against the Founder's wishes. The Respondent argued that the Appellant's claims of breaches of duty were made to justify its actions, and that the letter removing him as protector did not create any legal or factual rights. 26. The Respondent argued that the Appellant's actions were aimed at taking control of the Foundation without any oversight. Additionally, he claimed that the allegations made against him by the Appellant were baseless and being used to fabricate a case against him. 27. The Respondent claimed that all his actions were done legally to protect the Foundation, as per his role as protector. The Appellant's actions were focused on taking over the Foundation and managing it for its benefit, clearly violating section 37 (4) of the Foundations Act. 28. The Respondent claimed that the Founder, who completely trusted him, chose him as protector. The Appellant had no connection with the Founder and sought to remove the Respondent as protector to gain complete control over the Foundation, against the Founder's wishes. The Respondent argued that the Founder's right to remove a protector was personal and did not pass to her heirs. Any attempts by the Appellant to remove the Respondent as protector or amend the Foundation's Charter after the Founder's death were illegal and void. 29. In support of his claim, the Appellant tendered affidavit evidence, which I have considered with care. The determination of the learned Chief Justice 30. Based on the pleadings, evidence presented through affidavits, and closing submissions from the Respondent and Appellant, the learned Chief Justice concluded that (i) the removal of the Respondent as protector was unlawful, and (ii) the Appellant should be removed as the sole councillor of the Foundation. Hence, the learned Chief Justice made an order removing the Appellant as the sole Councillor. Page 8 of 24 31. The learned Chief Justice also made the following orders at paragraph [71] of the judgment — "[71] […] an order that the freezing order that I made on the 27th of January 2022 be further extended until further orders of this court. Regarding the sale proceeds that have been received concerning any of the Belgium properties, I order that the purported beneficiary Carole Peteers or any persons holding the set sale funds thereof shall hold the funds in trust until further orders." THE PROCEEDINGS AT THE APPEAL The Grounds of Appeal 32. The Appellant has challenged the judgment on the following grounds — "(1) (2) The learned trial judge erred in fact and law in failing to rule on or have regard to the Respondent’s omission from his Application and Affidavit of the Letter of Wishes and of any proof of his entitlement to any remuneration from the Appellant or the Foundation, which meant that the Respondent’s Application was incomplete and incompetent and his Application was fatally defective. The learned judge’s decision was wrong at law and fact in that it failed to have regard to the breach of duty as Protector constituted by the Respondent’s failure or refusal after the Founder’s death in breach of the Letters of Wishes (signed in acceptance by the Respondent) and in obstruction to the Foundation’s purpose “to organise the Founder’s estate and succession” (hereinafter referred to as the “Foundation’s Purpose”) to agree appointing the Founder’s surviving heirs, as beneficiaries of the Foundation and to thereafter to wind up the Foundation and to realise and distribute its net assets to the sole surviving heir, Carole Peeters (hereinafter referred to as “Carole”). (3) The learned judge’s decision was wrong at law and fact in that: (a) he states that the Respondent was wrongfully blocked out of the business of the Foundation by the actions of the Appellant and the heirs, while the Foundation’s Purpose read with the Letters of Wishes made clear they were to become the beneficiaries on the Founder’s death the Respondent acted wrongly and in breach of his duty as Protector to block their ability to become the Foundation’s beneficiaries; Page 9 of 24 (b) (c) it is inconsistent with the rights and interests of Carole, the Foundation’s sole beneficiary and Founder’s sole surviving heir, deprives her of her lawful ability to benefit from the Foundation’s assets, and the judgment empowers the Respondent (a non- beneficiary), acting with a new Council appointed by him, to potentially distribute the Foundation’s assets to persons other than Carole, in breach of the Letters of Wishes, the 2016 Charter and the 2021 Charter and 2021 Regulations; it fails to have regard to the Respondent’s duties to act in accordance with the Letters of Wishes in furtherance of fulfilling the Foundation’s Purpose per the 2016 Charter and the Respondent’s failure or refusal to do so; and has the effect of overriding the rights of Carole (the Founder’s sole heir and beneficiary) to that of the Respondent, who is neither a beneficiary nor councillor, and to wrongfully punish the Appellant for seeking to carry out the Founder’s wishes and the Foundation’s Purpose; and (d) whereas the Respondent’s Application in the SC Proceedings solely based its claim for breach of duty by the Appellant as councillor on the Appellant being appointed as director of the Companies, which are owned by the Foundation, and taking control of the Foundation’s assets, the Judgment failed to have regard to the fact that such steps by the Appellant were not in breach of its duty and were done in the proper performance of its duties as sole councillor to manage the Foundation and its assets and income (per sections 7(1)(b), 12, 33, 65 and 66 of the Act, clause 8.1 and 8.2 of the 2016 Charter and of clause 8.1 of the 2021 Charter) and to give effect to the Letters of Wishes and the Foundation’s objects. (4) The learned judge erred in law and fact in failing to note that: (a) (b) neither the Foundation nor the Appellant was party to the Founder Pierpont Agreement by which the Founder personally agreed to pay for the Respondent’s services (including for matters unconnected to the Foundation), and the Founder Pierpont Agreement was not binding on the Foundation or the Appellant; following the founder’s death, neither the Foundation nor the Appellant was legally obligated to remunerate the Respondent; the Foundation and Appellant (unlike the Respondent, who signed the Letters of Wishes in acceptance thereof) were not bound by the Letters of Wishes and payment of any remuneration by the Foundation to the Respondent after the Founder’s death was subject to the Appellant’s consent under clause 17.10 of the 2016 Charter, which consent was not appropriate or given in light of the Page 10 of 24 (c) (d) (5) (6) to consent Respondent wrongful refusal or appointment of the heirs as the Foundation’s beneficiaries; failure to the the Foundation and the Appellant are not aware of any work done by the Respondent for the Foundation since the Founder’s death (and before her death, she remunerated the Respondent); and the Respondent’s Application in the SC Proceedings made no claim with respect to his remuneration as Protector, including no allegations of breach of duty by the Appellant based on non-payment of his alleged remuneration as Protector. The learned judge erred in law and fact where he wrongly referred to the purported removal of the Respondent as Protector pursuant to clause 17.7 of the 2021 Charter when, the removal was served under clause 17.5(a) of the 2016 Charter (and, alternatively, a removal order was sought by the Defence and Counter-Claim). That the judgment is unreasonable and not supported by the evidence and in the circumstances, the orders removing the Appellant as councillor and affirming the appointment of the Respondent as Protector and/or failing to remove the Respondent as Protector were unsafe and wrong and jeopardise the entitlement of the Foundation’s assets. the Foundation’s sole beneficiary to benefit from 33. The Appellant claimed the following reliefs from this Court — "(1) A finding that the Respondent has violated his duties as Protector and an order that he be removed from his position as Protector of the Foundation under either section 57 or section 113 of the Foundations Act; (2) (3) An order that the Appellant shall remain as the Foundation's sole councillor or be reappointed to the position; An order that the Foundation will be dissolved and its net assets, including proceeds from the sale of the Belgium Properties as defined in paragraph 4(d)(1) of the Defence, will be distributed to the Foundation's sole beneficiary, Carole Peeters, after paying any outstanding costs and liabilities; and (4) The costs of this appeal and Supreme Court case number MC. 62/2021 will be covered by the Foundation's assets." Page 11 of 24 The analysis of the Contentions of the Appellant and Respondent Grounds one, two, three (a), (b), (c), (d), four and five of the grounds of appeal 34. Counsel for the Appellant, in his skeleton argument, has combined all the grounds of appeal and presented the following issues for consideration — (i) whether the removal of the Respondent as protector by Carole and Patricia by way of the letter dated 3 July 2020 was valid and lawful; (ii) if the removal of the Respondent as protector was invalid, whether the Respondent was in breach of his duties as protector and should be removed from his position; (iii) whether the Appellant was in breach of its duties as the sole councillor and should be removed from its position. 35. On the other hand, the Respondent contended that the learned Chief Justice had correctly summarised the issues at paragraph [39] of his judgment as follows — (i) (ii) whether the Respondent had been validly removed as protector of the Foundation; if he remained as protector, had his acts or omissions constituted breaches of his statutory duties meriting his removal as Protector; (iii) whether the Appellant had failed in its statutory duties towards the Foundation meriting its removal as council; (iv) what was the effect of the Foundation's intervening actions on the assets of the Foundation. 36. Based on the above, the issue that arises for determination is whether the decision made by the learned Chief Justice to remove the Appellant as the sole councillor under section 49 of the Foundations Act was correct. This requires considering whether the removal of the Respondent by way of the letter dated 3 July 2020 violated the Foundation's Charter and Regulations and the relevant provisions of the Foundations Act. 37. The primary contention of Counsel for the Appellant was that the learned Chief Justice Page 12 of 24 erred in finding that the removal of the Respondent by way of the letter dated 3 July 2020 was invalid. 38. In his skeleton argument, Counsel for the Appellant also presented an alternative contention in case the Court of Appeal agrees with the learned Chief Justice's decision that the removal of the Respondent as protector by way of the letter was unlawful. However, I find it difficult to understand the main point of the alternative contention. Regardless, Counsel for the Appellant contended in the skeleton heads of argument that the learned Chief Justice failed to consider some important matters, which, in my view, were the same ones presented in the primary submission. 39. Counsel for the Appellant claimed that the Respondent was validly removed as protector by way of the letter dated 3 July 2020. In this respect, Counsel for the Appellant disagreed with the finding of the learned Chief Justice that the Foundation's Charter did not make provision for the removal of the Respondent as protector. The skeleton argument claimed that clause 17.5 (a) of the Foundation's Charter provides that the Founder may remove the protector from office by written notice to the protector. The skeleton argument contended that while the Foundation's assets did not form part of the Founder's deceased estate, the Founder's right to remove protectors under clause 17.5 (a) of the Foundation's Charter constituted a personal property right belonging to the Founder. Hence, the Founder's right to remove protectors formed part of her estate on death and, thus, vested on her death in Carole and Patricia. 40. In light of his submissions, Counsel for the Appellant disagreed with the learned Chief Justice's finding that it had breached its duties as the sole councillor and should be removed. The position of the Appellant, through Counsel, was that as no protector was appointed under the Amended and Restated Charter and the Amended and Restated Regulations, the Appellant as the sole councillor was responsible for managing the Foundation and dealing with its assets. Counsel for the Appellant argued that the Appellant's appointment as director of the companies and management of the Foundation's assets were done in accordance with its duties as sole councillor, as provided in sections 7 (1) (b), 12, 33, 65 Page 13 of 24 and 66 of the Foundations Act, clause 8.1 and 8.2 of the Foundation's Charter, as well as clause 8.1 of the Amended and Restated Charter and the Founder's Letter of Wishes. 41. On the other hand, Counsel for the Respondent argued that the Court of Appeal had to determine the legality of the Appellant's actions, which clearly violated the law in seeking to remove the protector. He claimed that this should be weighed against the powers granted to the Respondent by the Founder and the reasons given as to why she was making provision for protectors and appointed the Respondent as one of the protectors. 42. Counsel for the Respondent submitted that the learned Chief Justice's decision was correct. The skeleton argument of Counsel for the Respondent claimed that the removal of the Respondent was contrary to the Foundations Act, the Foundation's Charter and Regulations and the wishes of the Founder, and in consequence, the Appellant could no longer act as the council and should be removed from office. Counsel for the Respondent argued that only the Founder (at paragraph 17.5 (a) of the Foundation's Charter) and the Court (at section 57 of the Foundations Act) have the power to remove the Respondent as protector. If the Founder had intended for her Founder's rights to be transmitted to her heirs, the Foundation's Charter or Regulations would have expressly stated so. 43. I consider the relevant provisions of the Foundations Act and the Foundation's Charter and Regulations in order to determine the question at issue. I bear in mind that the Amended and Restated Charter and Amended and Restated Regulations were registered after the Respondent was removed as protector. When addressing the issue at hand, I also take into consideration the letters dated 18 October 2016 and 3 July 2020; the Letter of Wishes; and other matters contained in the record of appeal. 44. Under the Foundations Act, once the Founder transferred ownership of her properties referred to at paragraph [6] hereof to the Foundation, she no longer has any rights over them. The Foundation's Charter provides that — "the Foundation is the sole legal and beneficial owner of the Foundation". 45. The following provisions of the Foundations Act apply to the issue for determination — Page 14 of 24 (i) the assets of a foundation shall be exclusively managed inter alia in accordance with the charter, regulations and the Foundations Act for the attainment of the objects specified in the charter and authorised by the Act (section 12 (1)); (ii) the duties of the council are to carry out the objects of the foundation, manage and administer its assets and do such other acts as are provided by the foundation's charter, regulations, and the Act (section 33); (iii) the council shall act in accordance with the charter, regulations and the Act (section 37 (1)), and the council in the discharge of its duties, performance of its functions and exercise of its powers shall act honestly and in good faith with a view to the best interests of the foundation (section 37 (2) (a)), and that the duties imposed on it are owed to the foundation alone (section 37 (4)); (iv) the council (or a councillor) may be removed in accordance with the charter, regulations or the Act (section 49(1)) and where the charter and regulations are silent, by the court upon application by the founder, councillor, beneficiary or protector, inter alia, where the council or councillor has failed to carry out properly its duties or functions, inter alia (section 49 (2)); (v) the duties of a protector are as set out in the charter or regulations and include the taking of necessary action to ensure compliance by the foundation and council with the charter, regulations and the Foundations Act and monitoring the management of the foundation by the councillors, including their conduct (section 55(l) and (2)); (vi) "subject to the terms of the charter or regulations where a person ceased to be qualified to act as protector or has failed to carry out the duties required of a protector under the charter, regulation or this Act, on application to the court by a founder, a councillor, a beneficiary or a supervisory person, the court may order the removal of the protector", inter alia (section 57 (1)). Page 15 of 24 46. It was undisputed that the Foundation was formed as a purpose foundation (without beneficiaries) under section 7 (1) (b) (ii) of the Foundations Act. Clause 8 provides for the "purposes " and "objects" of the Foundation as follows — "8.1 The purposes for which the Foundation is established (the "Purposes") are to hold various assets including, but not limited to, shares in two companies to be incorporated in Mauritius, namely Carolim Ltd and Patrim Ltd […] and more generally to organize the Founder's estate and succession. 8.2 Subject to clauses 7.9, 8.3 and 8.4, the Foundation's objects are — (a) The ongoing fulfilment of the Purposes (or any of them); and (b) The management, investment, administration and distribution of the Foundation Assets as the Council may by resolution of councillors determine, in fulfilment of the Purposes and in otherwise accordance with and subject to the provisions of the Charter and the Regulations. […]." 47. The Appellant presented the following evidence to show the level of trust the Founder had in the Respondent. The Founder intended for the Respondent, who had a personal relationship with her, to be consulted at all times and to have the authority to override the decision of the council. The Founder stated in her letter dated 18 October 2016 that the Respondent and Mr Gaetan de Chezelles have an intimate knowledge of her wishes and her family context. According to the letter dated 22 February 2012, the Founder granted the Respondent free use of her apartment in Brussels. According to the letter dated 18 October 2016, she invited the two to be the first protectors and invested them with "pouvoirs les plus étendus". She also granted them the power to modify the Regulations and the Letter of Wishes, including the power to substitute beneficiaries in extreme cases, inter alia. I reproduce the said letter in part — "Baronne Françoise Descamps 19 Boulevard de Suisse Monaco A l’attention de Page 16 of 24 Monsieur Alexandre de Pierpont Monsieur Gaetan de Chezelles Monaco, le 18 octobre 2016 Messieurs, Depuis plusieurs années, je recours à vos services pour m'assister dans l’administrations et la gestion de mon patrimoine. Comme vous le savez, j'ai pris la décision d'adopter une nouvlee organisation du mode de détention de mes actifs, tant mobiliers qu'immobiliers. Dans ce cadre, je vous serais reconnaissance de bien vouloir: - Faire constituer une foundation des Seychelles, nommée Françoise Foundation, dont je serai la Fondatrice et Première Bénéficiare. - Accepter d'en être les Protecteurs, et de disposer des pouvoirs les plus étendus pour vous permettre d'assumer vos missions et de pouvoir à son bon fonctionnement. Plus précisément, outre les pouvoirs habituellement dévolus aux protecteurs par les dispositions légales applicables aux fondations de même nature: […] - Vous représenterez la foundation en siégeant aux conseils d’administrations des sociétes lui appartenant. - En raison de votre connaissance intime de mes volontés et de mon context familial, vous pourrez, si nécessaire, interpréter, adapter ou, à l'extrême, modifier les règles édictées par le Règlement Interne (Letter of Wishes) de la foundation, y compris en nommant de nouveaux bénéficiares et en faisant procéder à des distributions différentes de celles prévues. - En cas de divergence de vue avec le Conseil de Fondation, la décision ultime vous reviendra. […]. D'une manière générale, je compte sur votre constant assistance dans tout ce qui a traut à la gestion de mes affaires, et souhaite vous déléguer les pouvoirs les plus étendues. […]. Je vous remercie de bien vouloir accepter de vous acquitter de ces missions de Page 17 of 24 confiance. […]". [Emphasis is mine] 48. It was undisputed that the Letter of Wishes was not binding on the Foundation. Nonetheless, I reproduce these wishes of the Founder. The Letter of Wishes established the "rules for the use and distribution of the funds belonging to the Foundation" (at Article 3 of the Letter of Wishes). The Preamble to the Letter of Wishes stated inter alia that — "[t]he Foundation is created first and foremost for the benefit of Françoise. She has, in that respect, full powers over the Foundation and remains the first beneficiary. Françoise has decided to make her nieces Carole and Patricia become her principal beneficiaries. Her intention is to distribute the assets of the Foundation in equal shares between them, after her demise." 49. Article 9 of the Letter of Wishes which deals with protectors stated that — " "[o]n account of the first-hand knowledge they have of the wishes of Françoise and of her family context, the protectors shall, if necessary, interpret, adapt or, in the extreme case, amend the rules set out by the Letter of Wishes, including by appointing new beneficiaries and by proceeding to distributions different to those provided". 50. The reason for the removal of the Respondent contained in the letter dated 3 July 2020 was the alleged "divers actes de malversations" done by the Respondent to his benefit. The written resolution of the sole councillor dated 6 July 2020 resolved that the Respondent should be removed with immediate effect for the following reasons — "REMOVAL OF PROTECTOR IT IS NOTED THAT Ms Carole PEETERS and Ms Patricia PEETERS are the sole custodians (the "Custodians") of the memory of Mrs Françoise Van BASTELAER by way of being the only members related by blood to the latter. IT IS ALSO NOTED the Custodians now wish to remove Mr Alexandre de PIERREPONT as the Protector of the Foundation in light of the misuse of the powers granted to him in his personal interests, as evidenced by the duly executed letter dated 03 July 2020. A copy of the letter is enclosed herewith and forms part of the present resolution. […]." [Emphasis is mine] Page 18 of 24 51. The affidavit evidence of Devendra Kumar Seebaluck and Carole set out the reasons why the Respondent should be removed as protector. Upon examining their respective affidavit evidence1, the only relevant concerns are the allegations that the council approved the Respondent's removal because he failed to include Carole and Patricia as beneficiaries in the Foundation's Charter and Regulations. Upon a thorough examination of the skeleton argument, it became clear that the main argument of Counsel for the Appellant concerned the allegation that the Respondent failed and refused to include Carole and Patricia as beneficiaries in the Foundation's Charter and Regulations. Counsel for the Appellant claimed that this went against the wishes of the Founder as expressed in the Letter of Wishes. 52. Counsel for the Appellant also claimed in his skeleton argument that the Respondent's refusal to add Carole (and Patricia before her death) as beneficiaries after the Founder's death raised concerns about his credibility and motives. However, these concerns were not placed before the trial Court. 53. In the present case, the Appellant was aware that it needed to file an application under section 57 of the Foundations Act for an order from the Supreme Court to remove the Respondent as protector. It was undisputed that Carole and Patricia were not the named beneficiaries of the Foundation under the Foundation's Charter and Regulations. The Foundation's Charter and Regulations did not expressly state that Carole and Patricia had 1 The affidavit evidence of Devendra Kumar Seebaluck averred in part — "Pierpont is wrongfully seeking to control the Foundation and has shown bad faith and misconduct in obstructing and defying the Founder’s Letters of Wishes request that on her death Carole and Patricia become the Foundation beneficiaries, and Pierpont has failed to carry out or to properly carry out his duties as Protector of the Foundation […]," at paragraph [28] of the affidavit. And the affidavit evidence of Carole stated in part — "12. I have been informed by the Respondent [Appellant] and Françoise's estate lawyers and verily believe that Françoise wishes in respect of who should benefit from the Foundation's assets after her death, were formalized by way of a Letter of Wishes dated 18 October 2016 and Amended Letter of Wishes dated 5 December 2017 issued and signed by Françoise (together hereinafter referred to as the "Letter of Wishes") with respect to the Foundation, requesting that upon her death that Patricia and I, Carole, her nieces, become the Foundation's beneficiaries and benefit from the Foundation's assets." Page 19 of 24 the power to remove the Respondent as protector. Despite this knowledge, the Appellant attempted to justify why Carole and Patricia had the authority to do so in the letter dated 3 July 2020. 54. The Foundation's Charter stipulates with respect to the removal of a protector — "17.5 A Protector may be removed from office (with or without cause) by written notice (Removal Notice) to the Protector by: (a) the Founder; or (b) such other Person (if any) as may be designated in the Regulations as being empowered to remove a Protector: provided that a copy of the Removal Notice shall also be given by the Founder (or other Person giving it to the Protector) to the Council and to the Foundation's Registered agent." [Emphasis is mine] Paragraph 17.7 of the Foundation's Regulations includes the same provision. 55. The provisions of the Foundation's Charter and Regulations required the consent of the Respondent as protector under clause 19.1 of the Charter and clause 4.1 of the Regulations to amend both the Charter and Regulations. 56. Clause 19.1 of the Charter provides — "Subject to clause 19.2, the Foundation may at any time change its name or otherwise amend or replace the CHARTER by resolution of councillors […], PROVIDED that: (a) The council shall not amend or replace the Charter without having obtained the prior written consent of the Protector; […]." [Emphasis is mine] 57. Clause 4.1 of the Charter provides — "Subject to clause 4.2, the Foundation may at any time amend or replace the Regulations (including, without limitation, to add, remove or exclude a beneficiary’s entitlement) by resolution of councillors […], PROVIDED that: (a) The council shall not amend or replace the Charter without having obtained the prior written consent of the Protector; […]." [Emphasis is mine]. 58. Therefore, I agree with the argument of Counsel for the Respondent that the Appellant's claim that the Founder's right to remove protectors was part of her estate and vested in Page 20 of 24 Carole and Patricia after her death, justifying the illegal removal of the Respondent as protector, is unconvincing and lacks merit. Additionally, Carole and Patricia claimed to be "the sole […] custodians of the memory of Mrs Françoise Van BASTELAER by way of being the only members related by blood to the [Founder]". During the appeal, Counsel for the Appellant was unable to provide a legal basis for these submissions. 59. Further, it is unclear in what manner the Appellant was using the Letter of Wishes to claim that Carole and Patricia are the beneficiaries of the Foundation, as the Letter of Wishes was not binding on the Foundation. Even if the Letter of Wishes was binding on the Foundation, it would not help the Appellant's case because it specified that the protectors could alter it, including the ability to replace beneficiaries in extreme cases, inter alia. As submitted by Counsel for the Respondent, the Founder granted this power to the first protectors because she trusted them and they enjoyed her trust as shown by the two letters dated 18 October 2016 and 22 February 2012. 60. In this respect, I agree with Counsel for the Respondent that there was no reason to think on the evidence that the Respondent will not act based on the wishes of the Founder in terms of her desire to leave the assets to Carole. Based on my observations, it seemed that the Respondent did not comply with the desired timeframe of the Appellant. It is worthy of note that the Respondent was removed from the position of protector five months after the death of the Founder. 61. Hence, I uphold the conclusion of the learned Chief Justice that the Appellant, as the sole councillor, violated the Foundation's Charter and Regulations by amending and replacing them to make Carole and Patricia the Foundation's beneficiaries. 62. I consider the other allegations contained in the pleadings of the Appellant in light of the affidavit evidence. A careful reading of the affidavit evidence of Devendra Kumar Seebaluck and Carole showed that their evidence did not substantiate the allegations made against the Respondent in the defence and counterclaim, repeated at paragraph [17(iii), (v),(vi) and (vii)] hereof. At the hearing of the appeal, Counsel for the Appellant informed this Court that the Appellant was unable to substantiate these allegations. Page 21 of 24 63. In his affidavit evidence, Devendra Kumar Seebaluck made unsubstantiated claims about Indosuez's refusal to provide account information and appoint the Appellant as the signatory to the Foundation's Indosuez accounts. He also claimed that Indosuez refused to remove the Respondent as the signatory to the Foundation's accounts. I observe that the Appellant was attempting to gain full access and signatory power to the Foundation's bank and securities accounts after unlawfully removing the Respondent as protector via the letter. 64. Further, Carole averred that the Appellant informed her that the Respondent paid his personal lawyer from the Foundation's bank account without the approval of the Appellant, totalling approximately Euros 30,000. She also alleged that the Respondent embezzled funds from the Foundation after the Brussels Civil Court had declared the Founder mentally incapacitated on 21 September 2019. She claimed that criminal cases have been instituted against the Respondent. These claims were unsubstantiated. 65. I now turn to the claim of the Appellant that the Respondent should be removed because of his attempt to enforce the expired Pierpont Agreement between himself and the Founder, inter alia. This claim is irrelevant in my determination as to whether the learned Chief Justice was correct to remove the Respondent as sole councillor. I provide an explanation for this. 66. The learned Chief Justice stated in his judgment that — "[55] [t]he action of the Respondent to support outright an act which deprived the Applicant his fees and the ensuring consequential embittered relationship of the parties are relevant to make a decision on this issue. To me, this act led to an impasse that prevented and hindered the Applicant [Respondent] from carrying out his statutory duties. Moreover, I have already found that the unilateral attempt to remove the Applicant from his position was wrong. This being an act that had the effect of locking the Applicant out of the affairs of the institution and prevented him from carrying his statutory duties under the Act, especially Section 55". 67. I find that there is no evidence on which the learned Chief Justice could have inferred that Page 22 of 24 the remuneration issue had led to a breakdown of relations that were having a seriously detrimental effect on the execution of the Foundation and was likely to continue to do so. I quash this finding of the learned Chief Justice. 68. I also note that the question of how the Foundation's assets were affected by the intervening actions of the Foundation does not arise for consideration on the pleadings in this case. 69. For the reasons stated above, I do not accept the submission of Counsel for the Appellant that the learned Chief Justice erred in concluding that the removal of the Respondent was invalid. Hence, I accept the conclusion of the learned Chief Justice that the Appellant has not demonstrated that the Respondent "has failed to carry out the duties required of a protector under the charter, regulation or this Act" as per section 57 of the Foundations Act. 70. For the reasons stated above, the Appellant cannot claim that its actions were lawful and proper, relying on sections 7 (1) (b), 12, 33, 65 and 66 of the Foundations Act. Hence, I accept the finding of the learned Chief Justice that the Appellant had engaged in actions contrary to clause 10.10 of the Foundation's Charter and section 37 of the Foundations Act. THE DECISION 71. The appeal is dismissed in its entirety. 72. I uphold the order of the learned Chief Justice removing the Appellant as the sole councillor of the Françoise Foundation. 73. The order made by the learned Chief Justice on 27 January 2022, which prohibited the disposal of the Foundation's assets until this case is resolved falls as a result of the order made by this Court upholding the removal of the Appellant as the sole councillor of the Françoise Foundation. 74. With cost in favour of the Respondent. Page 23 of 24