Ralph v Curator of Vacant Estates (Ruling) (MC 15/2017) [2016] SCSC 932 (19 June 2016)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: MC 15/2017 r20111 scsc G~ In the matter of EX PARTE ORLA COLETTE JACQUELINE RALPH Petitioner Versus CURA TOR OF VA CANT ESTATES Rerspondent Heard: Counsel: 24th May, 2017. Mr. B. Georges for petitioner Mr. Hernrnanth Kumar for the Respondent Delivered: - -- - - - - - - - - - - - - - - -·- - - 20th June, 20 16 RULING Carolus Master [1] This Order is made in respect of an Application for a vesting order made under the provisions of the Curatelle Act (Cap 55) (hereinafter referred to as the Act). [2) The following is averred in the Application: "1. The Petitioner is a church warden of All Saints' Anglican Church in Milan, Italy. 2. On 15th May 2002 Isabelle Elsie Jean-Baptiste died in Milan, Italy intestate and without heirs. 3. Isabelle Elsie Jean-Baptiste died leaving an account m Barclays Bank, Independence A venue, Victoria, Mahe, Seychelles. 4. The Petitioner is claiming the vacant succession J Isabelle Elsie Jean-Baptiste as Isabelle Elsie Jean-Baptiste expressed the wish for her money in the said bank to be given to the All Saints' Anglican Church in Mi\an, Italy, after her death. 5. On 6th August 2015 the Petitioner wrote to the Respondent requesting that the Respondent apply to the Court for a vesting order. 6. The Respondent declined and advised the Petitioner to proceed with the application to the Court to vest the vacant succession of Isabelle Elsie Jean Baptiste in the Respondent. 7. The Petitioner is desirous of receiving the money left in the said account at Barclays Bank." [3] In terms of tlie Application, the Petitioner prays the Court to vest the vacant succession of Isabelle Elsie Jean-Baptiste in the Curator of Vacant Estates. [4] The Application is supported by an Affidavit which in essence repeats what is averred in the Application. The Affidavit is sworn by the Petitioner before Notary Fabiano Pietro of Sesto San Giovanni (MI) via Roma n. 7. In addition to the signature of the Petitioner, the signature of Reverend Sims Vicky Leila, Dr. Morley Robert and Dr. Engel Daniella Rachel also appear on the Affidavit. The signatures of all our have been notarised by the abovementioned Notary who identifies them as follows: Dr. Ralph Orla Colette Jacqueline acting as former Churchwarden (until 2016) of "ALL SAINTS' CHURCH", Chaplaincy of the Anglican Church in Italy; Reverend Sims Vicky Leila, acting as Chaplain in charge of the aforementioned "ALL SAINTS' CHURCH", Chaplaincy of the Anglican Church in Italy; Dr. Morley Robert, acting as Churchwarden in charge of the aforementioned "ALL SAINTS' CHURCH", Chaplaincy of the Anglican Ch&ch in Italy; and Dr. Engel Daniella Rachel acting as Churchwarden i? charge of the aforementioned "ALL SAINTS' CHURCH", Chaplaincy of the Anglican Church in Italy. [ 5] The following documents have also been produced in support of the Application: (i) The death Certificate of Elsie Isabelle Jean-Baptis~e showing that she died on 15th May,2002; I (ii) A letter dated 6th August, 2015, written by Mr. Glorges on behalf of the warden and officers of the All Saints Anglican Church in Milan, Italy, addressed to the Curator of Vacant Estates; and (iii) A letter dated ih December, 2015, signed by Mr. F. Hoareau, on behalf of the Land Registrar (who is also the Registrar General who was appointed the Curator of Vacant Estates by GN 149 of 1997) addressed to Mr. Georges. [ 6] In terms of section 14 of the Act, a vesting Order may be made in respect of vacant successions, unclaimed property or property or right ( elonging or accruing to an absentee. The terms "vacant succession", "unclaimed property" and "absentee" for the purposes of the Act are defined in sections 11 and 12 of the Act respectively. These sections are reproduced below: " 11 (1) Vacant estates shall comprise vacant successions and unclaimed property. (2) Whenever any person shall have died and there shall be reason to believe that such person died possessed of property in Seychelles 'Vhether such property shall be ascertained or not, and that such person died intestate al).d without heirs in Seychelles, such person shall for the purposes of this Act be considered to have left a vacant succession. (3) Wherever there shall be any property movable or immovable in Seychelles the owner of which cannot be ascertained, such property shajll, for the purposes of this Act, be considered to be unclaimed property. 12. Whenever there is reason to believe that any person absent from and not legally represented in Seychelles is entitled to property therem, such person shall, for the purposes of this Act, be considered an absentee." Emphas·s is mine. [7] In terms of section 11 (1) and (2) of the Act, Isabelle Elsie Jean-Baptiste is considered to have left a vacant succession upon her death. [8] It is now necessary for the Court to ascertain who may apply for a vesting Order. Under the provisions of section 14 of the Act, a vesting Order is made on the Application of the Curator of Vacant Estates (hereinafter referred to as the Curator). Section 14 provides as follows : I "14 (1) Whenever the Curator shall have reason to belieJ that there exists in Seychelles any vacant succession, unclaimed property or any propert or right belonging or accruing to an absentee, the Curator shall apply to a Judge for an order (hereinafter called a vesting order) vesting in him such vacant succession, unclaimed property or property or right of the absentee as the case may be. I I (2) The order shall be granted as of course, upon the ex P.arte application of the Curator and affidavit that diligent inquiry has been made, and tha he or other deponent believes that the estate or property for which the order is claimed is vacant or unclaimed or belongs to an absentee as the case may be. (3) The Curator shall, if the estate has sufficient funds, notify the order by advertisement in two consecutive numbers of the Gazette." [9] Section 15 of the Act however, provides for when a vestr~ng Order may be made at the instance of a third party, namely in the case where a Pyrson has by notice in writing called upon the Curator to make an Application to the Co~rt for a vesting Order and the Curator has failed to do so within reasonable time affo ded by the notice. Section 15 reads as follows: "15. Failing any such application by the Curator an person may apply, after the expiration of reasonable notice in writing calling upon the Curator to make such application, for an order vesting in the Curator any vacant estate or the right of any absentee. Such order may be made by a Judge upon a surhmons calling upon the Curator to show cause why it should not be made, and upon satisfactory proof being adduced that such order is necessary for the protection of the rights of the Petitioner. Emphasis is mme. [10] In the present case, Counsel for the Petitioner, Mr. Georges wrote a letter dated 61 h August, 2015, to the Curator of Vacant Estates on behalf of the warden and officers of the All Saints Anglican Church in Milan, Italy, the relevant part of which reads as follows: "It appears that a Seychellois, Isabelle Jean-Baptiste, died in Milan, intestate, and leaving no heirs. She left an account at Barclays Bank, Independer e A venue, Victoria. Everything we have points to Mrs. Jean-Baptiste having desired that her possessions be left to the church in which she worshipped and which as the centre of her life. We attach some documents to support this from members of the church who knew her . Also enclosed are the death certificate of Mrs. Jean-Baptiste and correspondence with Barclays Bank. Given that the succession is vacant, the only way of getting hold of the money in the account is through you as Curator. In these circumstances we request you kindly to apply to the Court under the Curatelle Act for a vesting order in your favour enabling you to take control of the monies in the account of the Deceased. Once this has been done, you may then consider whether the church in Milan is entitled to the monies. We are prepared to urge you to so find and, if necessary, to put up a case to the Government for release of the money to the church, after ascertaining that the succession of Mrs. Jean-Baptiste is truly vacant." [11] Mr. F. Hoareau, on behalf of the Land replied by letter da~ed i h December, 2015. In his letter Mr. Hoareau informed Mr. Georges that the request could not be entertained and advised Mr. Georges to proceed with an Application to Court to vest the Vacant Succession of Mrs. Isabelle Jean-Baptiste in the Curator of Vacant Estates. [12] The first limb of section 15 was complied with, in that notice in writing was given to the Curator calling upon him to apply for an order vesting the vacant succession of Isabelle Elsie Jean-Baptiste in him. The Curator not having done so in a reasonable time, I summons was issued calling upon him to show cause why the vesting order should not be made as required by the 2 nd limb of section 15 of the Act. I note that Mr. Kumar appearing for the Curator did not object to the making of the vesting order. It now remains for the Court to ascertain whether satisfactory proof has been adduced that such order is necessary for the protection of the rights of the Petitioner. In that respect, it is averred in both the Application and the Affidavit in support of the Application that Isabelle Elsie Jean-Baptiste died on 15th May 2002 in Milan, Italy, intestate and without heirs; that Isabelle Elsie Jean-Baptiste died leaving an account in Barclays Bank, Independence Avenue, Victoria, Mahe, Seychelles; and that the Petitioner is claiming the vacant succession of Isabelle Elsie Jean-Baptiste as Isabelle Elsie Jean-Baptiste expressed the wish for her money in the said bank to be given to the All Saints' Anglican Church in Milan, Italy, after her death. [13] In my view, the Petitioner falls short of establishing to the satisfaction of this Court that the Order sought for is necessary for the protection of the rights of the Petitioner for lack of independent evidence of the same. In that respect, there is only the Affidavit evidence of the Petitioner to the effect that Isabelle Elsie Jean-Baptiste expressed the wish for her money in Barclays Bank to be given to the All Saints' Anglican Church in Milan, Italy, after her death. In my view, the Petitioner being a church warden of the said All Saints' Anglican Church cannot be considered as independent. [14] In the circumstances I dismiss the Application. Signed, dated and delivered at Ile du Port on 201h June, 2017 ®0v-o ( Vs <.9 ~ E. Carolus Master of the Supreme Court 7