Morel v Land Registrar (MC 57 of 2023) [2024] SCSC 223 (16 December 2024)

IN THE SUPREME COURT OF SEYCHELLES Reportable MC57/2023 In the matter between: MARIE-FRANCE MOREL PETITIONER (Acting in her capacity as Executrix to the Estate of the late Odette Morel) (rep. by Ms. Edith Wong) and THE LAND REGISTRAR (rep. by Ms. Ketlynn Marie) RESPONDENT Neutral Citation: M F Morel v Land Registrar MC5712023 Before: Summary: Adeline J Rectification of the Land Register Pertaining to land tittle LD1566/Affidavit on Transmissions by Death transmit entire property on some heirs/other heirs omitted from the proprietorship/ amended/ The Register to be rectified/ Section 89 of the Land Registration Act 16 December 2024 16 December 2024 list of co-owners and proprietors to be ORDER ON APPLICATION Heard: Delivered: Adeline J [1] By way of an application made by Petition dated 26th July 2023, Marie-France Morel ("The Petitioner"), in her capacity as executrix to the estate of the late Odette Morel, (commenced proceedings before the Supreme Court against the Land Registrar to have the land register pertaining to property title LD 1566, amongst other things, rectified. In her Petition as initially filed, the Petitioner pleads for the following orders; "(a) An order that the Affidavit on Transmission is cancelled and the entries against the register of the land made under it are removed. (b) An order that the Respondent registers the Application for rectification. (c) An order that the register of the land is rectified as per the last page of the application for rectification. (d) An order that the Respondent pays the Applicant a sum of Seychelles Rupees Twenty Five Thousand (SR25,0001-). [2] The application is made pursuant to Section 89 of the Land Registration Act, Cap 107, and is supported by an affidavit sworn by the Petitioner to which are exhibited, the necessary relevant documents in support of the averments made therein. [3] In the Affidavit in support, the Petitioner/Deponent, inter alia, make the following averments; 1. I am the Applicant in the above application and the executrix to the estate if the late Odette Laure ("The deceased") with my appointment, dated the 281hof May 2014, being registered on the I61hof June 2014. I attach and mark as exhibit AI, a copy of my appointment as executrix. 2. The Deceased was the registered owner of half of LDI566("the Land") by virtue of the agreements, (a) An agreement from France Mussard to herself dated the I21hof September 1989 and registered on the 281hof September 1989 in transcription Volume 77 number 212, marked and attached as exhibit A2. (b) An agreement from Philomena Mussard to herself, dated 12'h September 1989, and registered on the 28'h of September 1989 in transcription Volume 77 number 211, marked and attached as exhibit A3. 3. The other half of LD1566 was owned by the late Edmond Basil Mussard and Rosa Maureen Gemmell represented by their executor Edmond Mussard ("The Other Estates "). 4. On the 2nd of August 2017, the executor to the Other Estates sworn on affidavit on transmission by death purporting transmit the entirely of LD1566 onto the heirs of the other Estates ("The Affidavit on Transmission by Death "). 5. The Affidavit on Transmissions by Death stated that the land was owned by Francois Mussard (paragraph 4) who had 4 heirs at the time of his death (paragraph 6) and granted the heirs of the Other Estates 1128'"and 11181" each of the land. 6. However, the Affidavit on Transmission by Death failed to take into account that at the time of their deaths, Edmond Basil Mussard and Rosa Maureen Gemmell only owned one quarter of the land each, and that Philomene Mussard and France Mussard had each sold their share in the land to the deceased by virtue of the Agreements. 7. 171eAffidavit on Transmission by Death was registered by the Respondent on the 71h of June 2018 against the register of the land. 1attach a copy of the Affidavit on Transmission by Death marked as exhibit A4. 8. By registering the Affidavit on Transmission, the Respondent/ailed to take into account my appointment as executrix owing to the deceased having a half share in the land and erroneously registered the entirety 0/the land in the manner set out in the Affidavit on Transmission. 9. T71eRespondent also failed to take into account the lack of my signature on the affidavit on Transmission despite 711yregistration as executrix on the register of the land. I attach and mark as exhibit A5, a copy of the certificate of official search showing my name as executrix still subsisting. 10. On the 23rd of August 2021, J swore an affidavit to rectify the register of the land in order to place the heirs of the deceased against the register of the land and to correct the share allocation of the heirs to the Other Estate (The Application of Rectification). I attach and marked as exhibit A6A and A6B. 11. On the 141hFebruary 2022, the Respondent returned the Application for Rectification on the ground that they could not register it owing to the lack of consent of the heirs of the Other Estate to the rectification, marked Exhibit A7. 12. J am advised by my lawyer, and verily believe the same to be true, that the Respondent ought to have seen my appointment as executrix against the register of the land, and ought not to have registered the Affidavit on Transmission that disposed of the entirety of the land without my consent and the entries against the register of the land because of it, should therefore be struck off 13. J am also advised by my lawyer, and verily believe the same to be true, that the register of the land ought to be rectified by an order of this Court as per the allocation set out in the last pages of my affidavit in the Application for rectification. 14. The error of Respondent has meant that the estate of the Deceased has suffered inconveniences in trying tofix this error which amounts Seychelles Rupees Twenty-Five Thousand (SR25,0001-) given that the Respondent ought not to have initially registered the Affidavit on Transmission by Death. [4J In answer to the Petition, learned counsel for the Respondent raised a preliminary objection based on two main propositions, notably, (i) The Petition should be dismissed as proceedings should have been convened by way of a Plaint pursuant to Section 23 of the Seychelles Code of Civil Procedure, and (ii) If the Court disagrees, the persons whose names are entered in the register of tittle LD1655 as theproprietors, ought to be made parties to the Petition, or in the alternative, those listed in the affidavit on Transmission by Death as the legal heir of France Mussard and Philomene Mussard or the executrix of the estate of Francois Mussard. [5J In its written submissions, learned counsel for the Respondent does acknowledge, that Section 89 of the land Registration Act does not say how proceedings under the same should be instituted. It is submitted by learned counsel, that in the absence of any guidance, the Petitioner ought to have had recourse to Section 23 of the Seychelles Code of Civil Procedure for the reason that Section 23 says, that "evelY suit shall be instituted" by filing a Plaint in the Registry'. [6J Leamed counsel further supports her view by submitting that given that the Petitioner, amongst other things, is seeking for a monetary relief of SR25,0001- for a wrong allegedly committed, proceedings should have been instituted by way of Plaint. Learned counsel relies on the pronouncement of Twomey JA in Quilindo and others v Monchouguy and others, SCA 29 of 2009, and Medine v Vidot CS 266/2004 cited in Quilindo and others (Supra) in which two cases the issue was about whether instituting proceedings for a declaration status (Affiliation Order under Article 321 or 340 of the Civil Code of Seychelles Act) should have been by way of a Petition or a Plaint. The finding and conclusion, was that it should have been instituted by way of a Plaint. [7J As regards to the proposition that the interested persons ought to be heard, it is the submissions of leamed counsel, that the Petitioner ought to have been made the heirs of the Other Estate who had acquires the entirety of the land Title LD 1566 by way of the Affidavit on Transmission by Death parties to the proceedings. Learned counsel relies on the case of David vis Land Registrar (SCA35 of 1997) (1990) in which case the Court made the point that this constitutes a denial of natural justice and a breach of Article 19(7) of the Constitution of this country. [8] In its submissions in reply, learned counsel for the Petitioner relies on English law which its submits, is highly persuasive when it comes to deciding which proper manner or form should be used to apply for an order of rectification of the Land Register to the Supreme COUl1. At this juncture, it is appropriate for us to be reminded that Section 89 of the Land Registration Act ("LRA") does empower this Court to grant orders of rectification of the Land Register Section 89 of the Land Registration Act reads, "89(1) Subject to subsection (2) the Court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied, that any registration has been obtained, made or omitted byfraud or mistakes ".. [9] As regards to the English Land Registration Act, learned counsel for the Petitioner relies on Volume 26 of the Halsbury's Law of England, which she submitted, provides for the functions of the Registrar, and the jurisdiction of the COUl1. Learned counsel makes special mention of paragraph 1482 of the Halsbury's law of England, Volume 26, that reads as follows; "Except where it is otherwise expressed and subject to any rules of the Court to the contrary, every application to the Court must be by summons at Chambers and the Court has the full power and discretion to make such order as it thinks fit respecting the costs, charges and expenses of all, or any of the parties to any application ". [10] As a matter if construction, therefore, learned counsel submits, that given that in English law application of this nature is made by way of originating summons supported by affidavit, an application for rectification of the land register under the Land Registration Act must be by Petition supported by an affidavit not by way of a Plaint. Learned counsel also submits, that it is persuaded that its view is correct, given that an application for an inhibition order under Section 76 of the Land Registration Act is by application supported by affidavit. In a ruling of this Court on the 8th of March 2024, this Court overruled the objection made by learned counsel based on its proposition that proceedings for the reliefs which the Petitioner was seeking for should have commenced by a Plaint. However, this COUlt agreed that the persons who had obtained interest in parcel LD 1566 by having the Affidavit on Transmission by Death registered against Land Tittle LD1566 ought to be given an opportunity to be heard over the proposed rectification. [11] Amid the COUlt'Sruling, efforts were made to locate and secure the appearance of the co owners and proprietors of half of the land pertaining to tittle LD 1566 whose names feature in the Certificate of Official Search dated 20th July 2023 exhibited to the affidavit in support of the application for rectification of the land register (Exhibit A5). Amongst the 29 registered co-owners and proprietors of half of the Other Estate, almost all of them who are still alive and live in Seychelles did put appearance in COUltto be heard over the application as well as to assist the Court as to the whereabouts of the other co-owners and proprietors who were not present in Court for different reasons. [12] Those who put appearances in COUltwere unanimously in agreement for the register in respect of Land Tittle LD 1566 to be rectified on the basis that if there has been an omission, in that, the Affidavit on Transmission by Death purported to transmit the entire land onto the heirs of the Other Estate to the exclusion of the heirs of the late Odette Laure Morel comprising half of the land in LD 1566, then such anomaly has to be rectified. [13] It has to be noted that in the Course of the proceedings, with leave of this Court, the Petitioner amended her pleadings for her prayer to read as follows; (i) That the affidavit on Transmission by Death sworn by the late Edmond Mussard be cancelled. (ii) That an order to the Land Registrar for rectification of the land register pertaining to title LD1566, as per exhibits 6A6(a). (iii) An order that the tittle int the register be rectified as per the affidavit for rectification which is exhibit A 6(b). [14] On account of the affidavit evidence and the documents exhibited thereto, it is the finding of this COUl1,that Land parcel LD 1566 belongs to three separate estates. That is to say, the estate ofthe late Edmond Basil Mussard who at the time of his death owned y.; of the land parcel LD 1566, the estate of the late Rosa Maureen Gemmel who at that the time of her death also owned y.; of the land parcel LD 1566 and the estate of the late Odette Laure Morel who at the time of her death owned half of the land in LD 1566 which she acquired by way of two separate agreements both dated 12 September 1989, one between the late France Mussard and the late Odette Laure Morel (exhibit A2), the other between the late Philomene Mussard and the late Odette Laure Morel (exhibit A3). By virtue of the two agreements, the late France Mussard and Philomene Mussard each sold y.; of the land parcel LD 1566 to the late Odette Laure Morel. [15] On the 2nd August 2017, Edmond Francois Mussard who had been appointed as executor to the estate of the late Francois Mussard as well as executor to the estate of the late Rosa Laurenza Mussard sworn an Affidavit on Transmission by Death (exhibit A4) which was duly registered in the Land Registry on the 7thJune 2018. The Affidavit on Transmission by Death purported to transmit the entire land parcel LD 1566 onto the heirs of the other two estates, that is, the estate of the late Edmond Basil Mussard and the late Rosa Maureen Gemmel, excluding the heirs of the late Odette Laure Morel who were omitted from the Affidavit on Transmission by Death (exhibit A4), and therefore not registered as co-owners and proprietors of land parcel LD 1566. As a consequence thereof, their names have been omitted and are not featured in the Certificate of Official Search dated 20th July 2023 (Exhibit AS). [16] It is the omission of the heirs of the late Odette Laure Morel in the Affidavit of Transmission by Death and their names omitted in the proprietorship register of land parcel LD 1566 as co-owners and proprietors of the other half in land tittle LD 1566 which by this petition, the Petitioner seeks to correct and have the land Register pertaining to title LD 1566 rectified by registering them as co-owners and proprietors. [17] In the Affidavit for rectification exhibited to the Affidavit in support of the Application sworn by the Petitioner on the 23rd August 2021 (exhibit A6 (b) ) the Petitioner, inter alia, makes the following averments; "9. However, the executor of the other estates in the wrong affidavit failed to account for thefact that Francois Mussard passed away intestate before Anna Edna Morel and the implication of that. 10. Given that Francois Mussard was married to Anna Edna Morel, upon his death, half of his property went to Anna Edna Mussard and the other half was divided between his heirs named in paragraph 6 of the wrong affidavit. This implies that the heirs of Francois Edmond Mussard were each entitled to 118 of LDI566 and Anna Edna Morel was entitled to 0? ofLD 1566. II. Upon her death, Anna Edna Morel's half share in LDI566 now vested in her heirs, who were the heirs named in paragraph 6 and my mother Odette Laure Morel who was not the daughter of Francois Mussard. 12. This implies, that at the time of Anna Edna Morel, the heirs Francois Mussard, being the persons named in paragraph 6 of the wrong affidavit were each entitled; (a) to I 110 of their mother's estate (b) and 118of their father's estate, and my mother, Odette Laure Morel being the child of only Anna Edna Morel was only entitled to IIIOIIiof her mother's estate. 13. By virtue of the Agreements, wherein my mother purchased her brother's and sister's share in LD 1566 her total share increased to II1201h. 14. Whilst . Edmond Basil Mussard and Rosa Laurenza Mussard had 9140shares each in LDI566. 15. This means that the heirs of Edmond Basil Mussard, given that there were 14 of them each received 91560111in LDI566. 16. Further, that Rosa Laurenza Mussard 's heirs, given that there were 9 of them, J140'/1each in LD 1566. 17. The executor to the other estate stated at paragraph 11 and 12 that Mildred Rosie Joyce Brinsley nee Gemmel and Maizy Laura Gemmel being the children of Rosa Laurenza Mussard passed away and each had 4 heirs. Therefore, each heirs receives 1I160,h in LD1566. 18. As heirs of my mother, by virtue 0/ her death, we are entitled to her 11120,hshare in LD1566 asfollows; (a) Marcel Jourdan Morel born on the 20'h September 1948, 111120,h (b) Marie-France Edna Morel born on 30,11July 1950 111120111 (c) Elvire Gabrielle Morel born on the 261hof February 1953 111120,h (d) Williff Aime Morel born on the 131ha/September 1955, 111120,h (e) Asia Stella Morel born on the 27,h of March 19531111201h (f) Etienne Georges Morel born on the 20lhof November 1963,111120111 (g) France Michel Morel born on the 2nd of January 1962, 111120'" 19. Of the heirs named above in paragraph 18, Marcel Jourdan Morel passed away intestate as a bachelor without any issue on the 61hof December 2012and as a result, the other heirs of the deceased became entitled equally to his 1120'11share in the immovable Property amounting to an extra 111600'11each. I attach a copy of the birth certificate of the heirs mentioned in paragraph 10 and a copy of the death certificate of Marcel Jourdan Morel. 20. As a result of the above, thefollowing persons have become entitled to thefollowing shares in the immovable property; (a) Marie-France Edna Morel 111100111share (b) Elvire Gabrielle MoreLlI /1 ootllshare (c) Williff Aime Morel 11/100,11 share (d) Asia StellaMoreLll/iOOtll share (e) Etienne Georges MoreLII/iOOtll share (f) France Michel Morelii/iOOtll share. [18] This COUltis vested with the power to order rectification of the land register pertaining to land parcel LD1566 by virtue of Section 89(1) of the Land Registration Act, Cap 107, that reads as follows; 89. (1) Subject to subsection (2), the Court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied, that any registration has been obtained, made or omitted byfraud or mistake. [19] Hence, therefore, in exercise of its powers under Section 89(1) of the Land Registration Act, this Court orders the Land Registrar to amend the list of the proprietors in the proprietorship register pertaining to land parcel LD 1566 to add the names of the following persons as co-owners and proprietors, namely; 1. Marie-France Edna Morel 2. Elvire Gabrielle Morel 3. Wiliff Aime Morel 4. Asia Stella Morel 5. Etienne Georges Morel 6. France Michel Morel [20] Therefore, once amended and the Register rectified, the register of LD 1566 should reflect the actual co-owners and Proprietors who are to be the following persons, couples with their respective shares; 1. Joyce Laura Gemmell 9/560th 2. Philippe John Gernmel 9/560lh 3. Jean Francois Ainslay Gemmell 9/560lh 4. Edmond Francois Mussard 9/560th 5. Hortense Jenita Gemmell 9/560lh 6. Bienna Marie Mussard 9/560lh 7. Marisa Berth Mussard 9/5601h 8. Edma Marielle Rite Mussard 9/5601h 9. Edmee Marreline Rita Mussard 9/560lh 10. Judith Clivy Mussard 9/560111 11. May Eline Mussard 9/560lh 12. Georges Danny Mussard 9/560th l3. Maurice Teddy Mussard 9/560lb 14. Billy Xavier Mussard 9/560th 15. Joeliff Philip Gernmel 1/40th 16. Huguette Marie Gemmel L'df)" 17. Miryam Catherine Gemmel L'eu" 18. May Agnes Gemmell L'du'" 19. Rose May Anita Gemmell 1I40lh 20. Taffy Gemmell 1/401h 21. Molly Smith (nee Gemmell) 1I40lh 22. David Balcin 1/160lh 23. Micheal Balcin 1I160lh 24. Chantal Balcin 11160111 25. Monique Brinsley 11160lh 26. Marcus Gemme1l1l160th 27. Gilbert Patrick Gemmell 1I160th 28. Roy Danny Dean Gernmel 1I160th 29. Marcel Jude Gemmell 11160th 30. Marie France Edma Morel 1111 OOth 31. Elvire Gabrielle Morel 111100th 32. Williff Aime Morel 11/100th 33. Asia Stella Morel 1111OOth 34. Etienne Georges Morel 111100th 35. France Michel Morel 111100th [21] A copy of this order shall be served on the Land Registrar who shall effect the necessary rectification of the register pertaining to land parcel title LD 1566 to reflect the names of the co-owners and Proprietors as well as their respective shares as listed at paragraph [20]. Signed, dated and delivered at Ile du Port on 16 December 2024. 13