Lesperance v Rose (CS 105/2020) [2022] SCSC 1061 (31 January 2022)

, IN THE SUPREME COURT OF SEYCHELLES In the matter between: Lisette Lesperance Rep by Ms Pool vs Robert Emilson Rose of Anse aux Pins, Mahe (;'5 Reportable [2021] sesc ... CS94/2020 Plaintiff Defendant Neutral Citation: Lesperance vs Rose (CSI05/2020) Govinden C J Before: Summary: Unjust enrichment; Immoveable jointly acquired in common law relationship. Heard: 27th September 2021 Delivered: 31st January 2022 [2021] SCSCG5 (3Pt January 2022). ORDER The Defendant is ordered to transfer parcel C 561LJ.in the Plaintiffs this Judgment. Failure of which the Registrar of Lands is ordered to remove the name of the Defendant as joint owner of the said title in the register of lands, kept under the Land Registration Act and to insert in lieu the name of the Plaintiff as the sole owner of parcel C5614. sole name within 14 days of GOVINDEN CJ JUDGMENT Introduction [1] As was held in the Court of Appeal case of Monthy vs Esparon SeA 2912010, in cases of co-ownership there are three options available under the Civil Code to the joint owner who does not wish to remain in indivision: sale by licitation, partition, or action de in rem verso, which is based on unjust enrichment (vide Edmondv Bristol (1982) SLR 353). The Plaintiff initiated case CS7/20 18, which was dismissed by the Supreme Court as the Plaintiff had not pleaded any of those specific causes of actions which were available to her, as listed in Monthy (supra). As a direct result, she has filed the present suit against the Defendant, this time based on unjust enrichment. The Defendant not having responded to a substituted service ordered by the court, the hearing proceeded ex parte in favour of the Plaintiff. The Plaint [2] The Plaintiff avers that she and the Defendant cohabited with each other as common law spouses for three years, that their relationship ended in 2006 and that during the period of cohabitation the Plaintiff purchased Title C5614 from the Ministry of Land Use and Habitat for the sum ofSR 30,000. This parcel was registered in the name of both parties. She avers that prior to her purchase the property belonged to her late father and she later rent it from the Ministry of Agriculture. It is the averments of the Plaintiff that during her common law relationship, she paid the consideration ofSR 30,000 for the purchase of the parcel and that she solely contributed towards the renovation and extension of the house. Based on these averments she claims that she has suffered detriment, whilst the Defendant has been unjustly enriched. As a result she prays that that the court declares that the Defendant has been unjustly enriched to her detriment and orders that the Defendant transfers C5614 in her own name. The evidence [3] The Plaintiff is Lisette Lesperance and she lived on parcel C5614 situated at Anse Boileau. She testified that the Defendant was once her common law spouse and they started to live as husband and wife since 2001. Her father rented an agricultural plot from the Government and she and her mother was transferred to another plot nearby, being Title C5614, after her father's demised. Upon the death of her mother, she took over the property and she started paying rent for it. She started rent payment in 2001, when the Defendant came to reside with her. She says that she acquired the property in August 2003 and that both the Defendant and herself were jointly entered as proprietors although she protested this. She paid half of the price from her savings. The other half was paid through deductions from her salary whilst she was working at the Plantation Club. After they had separated and when she was making these payments, she requested from the Government that the Defendant be removed as a joint registered owner, but she was informed that this cannot be done without a court order. She completed her loan repayments in July 2006. Thereafter, she tried to write to the Defendant for him to get his name removed as co-owner but it was to no avail. Which led her to institute her first case against the Defendant, which failed for the above reasons. [4] I have carefully examined the testimony of the Plaintiff in the light of the facts and circumstances of the case. Having done so, Ifind her evidence to be cogent, consistent and accurate throughout. Itherefore accept the testimony as a whole as credible and Iwill rely on it. The law [5] Article 1381 (1) of the Civil Code provides: "If a person suffers some detriment without lawful cause and another is correspondingly enriched without lawful cause, theformer shall be able to recover what is due to him to the extent of the enrichment of the latter. Provided that this actionfor unjust enrichment shall only be admissible if the person suffering the detriment cannot avail himself of another action in contract, or quasi-contract, delict or quasi-delict,'provided also that detriment has not been caused by thefault of the person suffering it." [6] It is trite that an action de in rem verso or in unjust enrichment is maintainable so as long as all the five conditions specified in Article 1381-1 are fulfilled: an enrichment, a corresponding impoverishment, a connection between the enrichment and the impoverishment, the absence of lawful cause, no other remedy being available (see Dodin v Arrisol2003) SLR 197. Determina tion [7] The Plaintiff, the mother of four children, was the sole breadwinner when she was in the common law relationship with the Defendant. She had been working in the hotel industry since a young age and like in many Seychellois family the "menage" with the Defendant was only provisional. However, sadly for her it fell in the period when she was to be transferred C5614, which through a series of events, including Government policy and other pressures meant that both the Defendant and herself had to sign the transfer document as transferees. However, the facts of the case shows that she signed under great protest. [8] On the other hand, the presence of the Defendant during that period did not bring about anything significant. She described him as a "drunkard", who did not bring anything into the family circle, who was living free of charge on her income. [9] I am satisfied that the Plaintiff suffered a detriment. Her detriment consist of paying wholly, from her own funds, the consideration for the property Title C5614, for which she was transferred only a half share. On the other hand, the Defendant enriched himself by benefiting from that same half share without paying a cent. This was done without lawful cause as I see no reason that the Plaintiff should have been pressured into making the Defendant as ajoint owner, given the circumstances. [10] I am furthermore satisfied that the Plaintiff cannot avail herself of any other action in contract, or quasi-contract, delict or quasi-delict and that she does not stand to benefit from the provisions of the Matrimonial Causes Act, given that the parties were not in a legal marriage. I am finally satisfied also that the detriment has not been caused by the fault of the Plaintiff. Final determination [11] As a result I declare that the Defendant, Robert Emilson Rose has been unjustly enriched to the detriment of the Plaintiff Lisette Lesperance and therefore I order him to transfer parcel C56I4 in the Plaintiff's sole name within 14 days of this Judgment. Failure of which I order the Registrar of Lands to remove the name of the Defendant as joint owner of the said title in the register of lands, kept under the Land Registration Act and to insert in lieu the name of the Plaintiff as the sole owner parcel C5614. , · . [12] Signed, dated and delivered at IIe du Port on 31st day of January 2022 Govinden CJ 5