Carpede v Rosalie (MA 121 of 2021 (Arising in DV 110/2003)) [2023] SCSC 815 (30 November 2023)

IN THE SUPREME COURT OF SEYCHELLES MICHEL LOUIS CARPEDE (rep. by Wilby Lucas) and LOUISETTE MARIA ROSALIE (rep. by Divino Sabino) Reportable MA 121/2021 (Arising in DV J 10/2003) Applicant Respondent Neutral Citation: Michel Louis Carpede v Louisette Maria Rosalie. (MA 121/202J) (delivered on 30 November 2023). Vidot J Appl ication made in terms adjustment of property of patties to a marriage in terms with section 4(1)(f) as read with Form 2 of the Second Schedule of the Matrimonial Causes Rules 23-05-2022,22-06-2022 30 November 2023 and 32-03-2023 is allowed subject to the following adjustments of the property of a party to the ORDER Before: Summary: Heard: Delivered: Application marnage; (i) The Respondent shall pay to the Petitioner the sum SR965, 172.50 representing his half share of the property to the parties of the marriage within six months of this judgment, after which the Petitioner shall transfer his share of the property to the Respondent; (ii) In the event that the Respondent fails to pay the said sum, the said property shall be sold and the proceeds of sale distributed equally between the parties; (iii) The Respondent shall keep all furniture in the matrimonial home; RULING VIDOT J Background [I] The Petitioner has filed an application for adjustment and division of Matrimonial Property pursuant to Rule 4(1) as read with Form 2 of the Second Schedule Matrimonial Causes Rule. Matrimonial property is more precisely described in section 20(l)(g) of Matrimonial Causes Rules and Boniface v Malvina (SeA 41 of 2017) r2020] SCCA 11 (21 August 2020), as "properly of a party 10 a marriage ". [2] The parties' marriage was dissolved on 17th January 2019, following the issue of a Certificate of Absolute Order of Divorce. This application was filed by the Petitioner on 28th May 2021. Meanwhi Ie, the parties still occupy "matrimonial property" albeit that the Respondent occupies the main matrimonial home and the Petitioner occupies an extension (workshop) adjacent to the house. [3] The property in question is land Title V1227 of an area of 0.244 acres situated at Beau Vallon, Mahe. An Evaluation Report (Exhibit P4) prepared by N. S Valentin, Quantity Surveyor and Building Services Consultant, dated 17th June 2021, valued the property at SR 1,930,345.00. This is the only co-owned property that the parties have and the only place of residence of both of them. [4] The Petitioner values his share in the property as two thirds (2/3) while claiming that the Petitioner has one third (113). The Petitioner states that he is willing to sell his shares to the Respondent and further that the latter keeps all movables such as furniture and other items found in the matrimonial home. [5] The Respondent disputes that she has the share value in the property assigned to her by the Respondent. She disagrees with the Petitioner as to her contribution in the property and avers that her share is valued in excess of one half (~) the value of the property. She contends that she had contributed massively towards the property and is still undertaking maintenance when such need arises. She claims that her contribution was not only monetary but also physical whereby she assisted with the construction of the house including preparing the site for construction. [6] The children of the parties are all of the age of majority. The Respondent had submitted that parties bu iIt the house for the benefit of the parties ch iIdren. Evidence of the Parties [7] The Petitioner states that the parties were married 30th September 1975 and that at the time of the marriage he was employed by Bodco Ltd. He was employed as a cabinet maker. Basil Soundy, of Bod co seems to suggest that the Petitioner started to work there in early 1980, but he stressed that he could not be too sure as due to his age his memory would fail him especially as such events happened long in the past. . The Petitioner states that the land was purchased for SR25,000. OO from Jean-Claude Pool. The parties decided to build a house but no contractor was retained. He took a loan from his employer to build the house. Mr. Basil Soundy, Director of Bodco confirmed that the Petitioner approached his company for a loan to purchase land. The loan was approved and granted. It was around SR34,OOO. OOor SR35,OOO.00. He repaid the loan in full. [8] Mrs Rosalie explained that she is the one who located the property after her family was asked by Government authorities to relocate from where they were residing at Bel Eau. The authorities informed her that they will make necessary procedures for her to get a plot of land. She noticed a classified in the newspaper for the sale of the plot she now occupies. She informed the authorities and went to Housing. At that time she was working with the Town and Country Planning Authority. She states that they received money from Housing (l take that to mean the Seychelles Hosing Development Corporation (SHDC)) to purchase the land from Jean-Claude Pool. SHDC was a Government established entity with mandate to assist citizens with acquiring a home. The loan from Housing was in her name alone as Mr. Carpede was a non-Seychellois then but the Petitioner was then granted approval to sign. She said that she paid for the loan and that he contributed. The Respondent disagrees that it was the Petitioner who paid for the land. She states that he was a non-Seychellois and under the law of Seychelles he was not able to purchase land. [9] Mr. Soundy also testified that the Petitioner was employed on contract by Bodco as a carpenter. He started working in the 1980s and then the average take home pay was around SR4000.00 to SR6000.00 per month. He states that Mr. Carpede was on GOP and the same was renewed from time to time. Mr. Soundy states that he believes that the Petitioner's employment with Bodco was continuous. [J 0] However, the Petitioner also testified that another loan was received from "Housing". Actually, he says that they were repaying a loan with such institution. The Respondent states that she contributed towards the land and house. The Petitioner states that she did not. He insists that he solely contributed towards the purchase of the land. [II] Mr. Carpede said that he undertook the building of the house and was assisted by some other workers including the brother of the Respondent. The Respondent disagrees that the brother only assisted but states that he was the one building the house. This is disputed by the Petitioner. He mai ntai ns that the brother contributed in bui Iding the foundation but then left and that he had to pay the brother for his service. Mrs. Rosalie said that her brother built the house for free. She nonetheless agrees that her brother at some point went on an outer island and never returned and a young man was hired to do other jobs but that the majority of the work was done by her brother. [12] The Petitioner testified that he prepared the land for construction whereon there were rocks that needed to be removed and built a drive to the property. The Petitioner also testified that being a carpenter he did all the carpentry work himself. [13] At the time of construction he was working at Bodco. He refuted challenges from the Respondent that around 1977 to 1980 he was unemployed. The Respondent argues that since he was a non-Seychellois and did not hold a GOP, he could not work. Learned Counsel for the Respondent put it to the Petitioner that he was naturalised on 31st October 1980. Counsel also put it to him that during that time he was diagnosed with a weak left arm and shoulder and he had to undergo physiotherapy and could not work. Mr. Carpede maintains that despite that problem he was always working but doing lighter jobs. [14] The Petitioner also testified that he constructed the adjacent apartment/workshop (extension). Counsel for the Respondent put it to him that that extension was being used by the Respondent for her seamstress business. He disagreed with Counsel and maintained that it is his workshop and that he now occupies it as living accommodation. He testified that he built that extension. [15] The Respondent maintains that throughout the marriage she worked but that it was in fact the Petitioner who at times was out of employment. This is disputed by the Petitioner. He testified that the Respondent even attempted to have him fired from a place of work. The employer was a Russian. In the end that job was given to his son. At some point the Respondent stated that the Petitioner worked but never gave her any money. [16] The Respondent explained that in fact she was working as a housemaid and a seamstress. She named some establishments she worked for from private individuals to hotels. She still works for different individual and different days of the week. She still maintains her seamstress business. In fact, she was once contracted to sew costumes for the Indian Ocean Games. Presently, she continues to work. [17] Mr. Valentin testified as to the state of the house and produced his evaluation report. He notes that maintenance of the house has been neglected. As stated above he assesses the value of the property (land and buildings) at SR 1,930,345.00. He values the house excluding the extension at SR718, 777.00. The extension is valued at SR202,236.00 Evaluation of Evidence [18] This is indeed an unfortunate case. The parties are well into their 70s and one or both will have to start over to find alternative accommodation. I only wish that they could maintain the status quo whereby the Respondent wi II continue to occupy the matrimonial home whilst the Petitioner would occupy the extension and both keep on enjoying their craft without any display of animosity. However, this is life, amicable co-existence is not to be. Yet both parties expressed that it was always their intention to build the house for their benefit and that of their children and that when the time would have been right, the property would have devolved to their children. I believe that this is the reason why there was no prayer that the house should be sold by licitation. Therefore following from Vel v Knowles, Civil Appeal NosAl & 44 of 1998, and the court cannot consider such relief at this stage. [19] I note also that the parties did not present to Court any documents, payslips, bank statements and receipts of expenses incurred to support their claims and to make a better assessment of their share in the property. However, it is understandable that when things are working out, there is a trust built that there will not be a breakup of the relationship and the necessity to keep such documents is not paramount. [20] The land as per Deed of Transfer was purchased for the sum of Twenty Five Thousand Rupees.(SR25,000. OO). Mr. Carpede testified that he borrowed from his employer Bodco and Mr. Soundy confirmed that the Petitioner borrowed SR34,OOO. OOof SR35,000. OO for that purpose. J believe Mr. Soundy that there was a loan advanced to the Petitioner. The Respondent state that the sum of SR35,OOO.00borrowed from Housing. She attached a statement of the loan from SHOC to her Affidavit in Reply. However the document was not formally introduced to this Court, but since it provides a little guidance in respect of the transaction, J shall still refer to it with an abundance of caution. Nonetheless, I take it that the land was bought for the sum of SR25,OOO.00because if it was bought for a higher price and a lower price is quoted on the Deed on Transfer, the parties would have been acting fraudulently. That if that was done, I am convinced it would have been in an effort to avoid paying stamp duty at the legally prescribed rate. As far as this Court is concerned, as per the Deed of transfer the property is co-owned by the parties irrespective of whatever each of them contributed towards its purchase. [21] The Deed of Transfer is dated °I" August 1978. On a Discharge of Charge dated 04th August 1998 (a document not formally produced but attached to the Affidavit in Reply), Mr. Joseph Nourrice, Principal Secretary of the Ministry of Land Use and Habitat, as he then was, discharged the Charge in the sum ofSR35,OOO. OOsecured against parcel V1227. Mr. Nourrice was not acting on behalf of the SHDC which was established under Seychelles Housing Development Corporation Act (1981). Under section 3 of the SHOC Act, the SHOC was established as a body corporate. It had a Chairman and a Board of Directors. Therefore, Mr. Nourrice could not have been mandated to discharge a charge on the SHDC's behalf. To my mind, the sum borrowed from the SHDC was not for the purchase of the land title. In any case, SHDC's mandate was not necessarily to advance loan for purchase of land, but to assist with building of houses or other accommodation. I am of the opinion that that loan from Sf-IDCwent towards the building of the house. [22] The point of view adopted above is supported by the fact that loan document from SHDC is dated 0211d August 1991, at which point the loan was still being repaid. A Discharge of Charge for that loan would have been signed only after the loan had been fully settled. It is recorded on that document that the loan sanctioned was for the sum of SR35,000.00, with interest at 5% and monthly instalment payment ofSR335.00 per month. From the date of the Discharge, it can safely be stated that the discharge is not related to the SHDC loan and that by 31SI December 2021, the loan balance stood at SR29,475.00. Assuming the loan was borrowed for purchase land, it would have been almost cleared (considering the date of purchase of the land) by that date provided the loan was being honoured as per a Loan Agreement. In any case, the land was purchased before the promulgation of the SHDC Act. Following from the evidence adduced before Court, there is no reason to believe that there was default in the payment of the loan. If SHDC was not in existence when the land was purchased, it could not then have advanced such a loan. [23] However, r do not believe that the money borrowed from Bodco, if in actual fact it was advanced in early 1980s, was for the purchase of land. This is because if it was for purchase of land, it makes no sense to have had a Charge registered against the property when the amount borrowed exceeded the sum paid for the land. Furthermore, if the laon was advanced in early 1980s, the land was purchased on 0 l" August 1978. I believe the Petitioner and Mr. Soundy that a sum was borrowed but it could not have been for purchase ofV1227. Even the loan from SHDC could not have gone towards the purchase of the land. The SHDC Act was enacted on 071h January 1981 long after the land was purchased. From the evidence adduced, it is evident that both parties were not testifying accurately on that issue. This could be because the land was purchased long ago and the parties have now forgotten the details as to that regard. [24] As regards employment of the parties, I believe that sufficient evidence was adduced to establish that both parties were working. Mr. Soundy stated that the Petitioner was in employment and does not indicate that there was break in employment. He stated that the Petitioner started working for his company in the early 1980s, but adds that due to his age, his memory is not as sharp and that cannot be confirmed, unless he had before him the employment record of the Petitioner. The Respondent argues otherwise, yet she testified that when the Petitioner did not have the necessary GOP, he was working underground. However, the loan advanced by Bodco suggests that the Petitioner would have been in employment prior to 1978 as the land was purchased then. However, there is no evidence to confirm that. Nonetheless, the Respondent even stated that the when the Petitioner breached his work contract, he worked "underground. "The Petitioner denies that he ever breached any work contract. The Respondent even said that at some point the Respondent injured his arm but conceded that he then did light work. That is not disputed by the Petitioner. [25] I totally believe the Respondent when she testified that she was working throughout the marriage. The Petitioner was not being truthful when he stated otherwise. Ibelieve that the Respondent was working at various jobs including cleaning and as a seamstress. Therefore she was earning and there is no doubt in my mind that some of that money went towards the construction of the house. On the other hand, I equally believe that some of the Petitioner's earning was going towards the construction. At that time the parties bought the land and started to build, they were 011 good terms. They had one common purpose. That was to build a home for themselves and their family. [26] Mr. Carpede states that he built the house and that the Respondent's brother helped. The Respondent states that it was her brother that built the house and after he left when the house was almost completed, they paid other workers to assist. Mr. Carpede does not dispute that the brother-in-law helped but that since he was a fisherman his assistance was not on a regular basis. After a while he left completely. I believe that to be what happened. After all, the assistance the brother-in -law was given to the couple and necessarily on behalf of Mrs. Rosalie alone. All the carpentry work was done by Mr. Carpede and both parties agree that other labourers were hired to assist with the construction. The only contentious issue is as to who paid these labourers. [27] Mr. Carpede testified that he constructed the bricks to construct the house. Mrs. Rosal ie states that she helped out. I do not doubt that but I am sure that since Mrs. Rosalie was also engaged with maintaining a home, the majority of such work was done by Mr. Carpede. However, the fact that she was maintaining the house and allowing Mr. Carpede time to do things like making the bricks, will be considered whilst assessing the parties' contribution in building the house. The same consideration will apply to the construction of the drive. Discussions [28] The applicable legal provision in regards to disputes to claims between parties to a marriage in matters of matrimonial causes is found in section 25(1)(c) of the Matrimonial Causes Act which provides as follows; "S25 (1) Without prejudice to any power ofthe court, the court may, on an application by a party to the marriage, grant order as it thinks fit,' (a) (b) (c) in relation 0.1property 0.1the marriage or the matrimonial home. " [29] In Dijoux v Dijoux [20121 SLR 1, quoting Renaud v Renaud seA 48/1998, the court remarked that "in respect 0.1property disputes between the parties, following the divorce, the Court 0.1Appeal held that the Supreme Court has jurisdiction pursuant to S25(l)(c) of the Act, without prejudice to any other power of the Court, on an application by a party to to grant order as it thinks .fit in relation to the property 0.1 a party to the a marriage, marriage or the matrimonial home. In addition, the Court may exercise its equitable power to make any order in the interest of justice under s 5 of the Courts Act. " [30] Indeed, section 5 of the Courts Act confirms this Court's equitable powers. It provides that this Court has inherent powers vested in, or capable of being exercised by the High Court of Justice in England. In Mathiot v Mathiot SC10S/1994, the court used both its inherent powers as well as statutory powers to determine property disputes between parties in granting ancillary relief following dissolution of their marriage. In Esparon v Esparon [2012] SLR 39, it was held that there is no mathematical formula for which property should be divided. The cardinal principle is that there must be a level of equity in that each party is not deprived of their fair share of contributions to their matrimonial assets despite such assets being registered in the name of one party. It further held that where legal ownership of the matrimonial asset is vested solely in one party but there is overwhelming and convincing evidence that the other party made contributions towards the matrimonial asset in issue, the matrimonial property should be vested in both parties. Esparon v Esparon SCA 12/1997, LC 148, provides factors the Court may have regard to in considering allocations of shares of matrimonial property. These include (a) standard of living before the breakdown of the marriage; (b) age of the parties; (c) duration of the marriage; (d) physical and mental disability of either party; (e) contributions made by each party to the welfare of the family, including housework and care roles; and (f) any benefit which a party loses as a result of the divorce. [31] This Court will adopt the considerations laid down in Esparon v Esparon (supra) when apportioning the share of the parties in the property. The parties were married for quite a long time and are now advanced in age and as I have stated, is a sad state of affairs that they cannot agree to maintain the status quo, as far as the living arrangement is concerned. In such circumstances, the extension would have had to be connected to separate utility meters and each party to maintain the peace. [32] I have made known my reflection on the purchase of land Title V 1227. Both parties version on how funding for the purchase of the land was secured is flawed or has not been sufficiently established. I take it that both contributed to its purchase. As I said, I believe that the Petitioner borrowed a sum of SR34,000.00 or SR35,000.00 from his employer; Bodco Limited. Both parties concur that there was a loan taken from SHDC, but the documents does not support that it was borrowed for that purpose. The Deed of Transfer is dated 0 l " August 1978. The Petitioner started employment in early 1980s and the SHDC was enacted in 1981. The purchase of the land predates the start of employment with Bodco and the enactment of the SHDC. [33] It is also the case that both parties contributed towards the construction. It is my opinion that the Respondent was not as physically involved in the construction of the house as the Petitioner. They received helped as a couple from the Respondent's brother and other people were employed to assist. The brother-in-Law did not build the house on his own. At best he assisted and then left. He was a fisherman. The Respondent however, was at the time running the household. The parties were both in employment and making contribution towards the construction. I have not been presented with concrete proof of either party making a contribution towards the construction which is sizeably larger than the other. [34] The Respondent testified that the parties held a joint bank account and that the Petitioner withdrew all the cash therefrom. The Petitioner denies that. He denies the existence of a joint account. There is no evidence of the amount held in that account and how much money the Petitioner withdrew from that account and the various deposits the parties made to that account. The Respondent complains also about a pickup truck that was used by the family but thereafter she does not know what the Respondent did to it. I do not have any indication as the value of the pickup at the time of purchase, for how long it was used and its value when it was supposedly disposed of by Petitioner. She also states that she incurred expenses to have some trees cut down and the Petitioner did not make any contribution and she paid SR28,OOO. OO. The Petitioner said that he had the tress cut down but did not produce any receipt. Further the Respondent testified that she paid for utilities. At this point I should be concerned with utilities paid following the Order of the Family Tribunal for Mr. Carpede to move out ofthe family home. Mr. Carpede does not dispute that he did not contribute towards the payment of the utilities. There are single utility connections to the house and the extension. However, Mr. Carpede notes that their son operates a mechanical garage on the premises and that uses a lot of electricity and the son contributes towards the payment of such utility, same as for water. [35] In considering all that, 1 bear in mind that the Petitioner is not laying claim to any of any of the furniture. The Respondent claims that all the furniture is hers except for a bed. 1 am of the opinion that the Petitioner being a carpenter made a contribution towards the furniture and that when things were running smoothly within the marriage, the Petitioner could have purchased the furniture but then there is no evidence that the Petitioner was not making contribution towards the household. Determination [36] Tnmaking a determination of the parties share in the property of the marriage the Court has to consider what is reasonable in the circumstances. The Court needs to look at all the circumstances of the case. In Cumming v Danson [1942J 2 ALL ER 653 (p 656) Lord Green MR noted that in "considering reasonableness, it is in my opinion perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of hearing that he must do, in what 1venture to call, a broad common sense way as a man of the world, and come to his conclusion giving such weight, as he thinks right to the variousfactors in the situation. Some factors may have little weight; others may be decisive but it is wrong for him to exclude from his consideration matters which he ought to take into consideration" [37] I have considered above the direct and probable contributions made by each party to the property of the marriage. It has not been easy with the absence of appropriate documents. The Surveyor' Valuation Report has been helpful. The Respondent has claimed that she has made repairs to the house but no figure was given and no receipts were presented. The Report states there is the house requires some attention and in evidence Mr. Valentin, the Quantity Surveyor has testified that the house needs maintenance. Therefore, if such had been carried, such maintenance was very minimal. [38] After much consideration, 1 am of the view that the parties are each entitled to halfofthe property. The Petitioner has agreed that the Respondent takes the furniture. The Petitioner prayed that the house be transferred into the sole name of the Respondent upon payment of his share of the property. [39] Therefore, 1 make the following Orders; (i) The Respondent shall pay to the Petitioner the sum SR965, 172.50 representing his half share of the property to the parties of the marriage within six months of this judgment, after which the Petitioner shall transfer his share of the property to the Respondent; (ii) In the event that the Respondent fails to pay the said sum, the said property shall be sold and the proceeds of sale distributed equally between the parties; (iii) The Respondent shall keep all furniture in the matrimonial home; and (vi) Each party shall bear their own cost. Signed, dated and delivered at Ile du Port on 30 November 2023 13