Savy v Sinon & Anor (MC 42 of 2022) [2024] SCSC 207 (20 December 2024)

SUPREME COURT OF SEYCHELLES Reportablel Not Reportable [2024] MC 42/2022 1 Redact In the matter between: AMIRA MIANNA SAVY (rep. by B. Georges) and MATHIEU RICHARD JOSEPH SINON (rep. by E. Wong) DERECK FANCHETTE (rep. by S. Rajasundaram) Petitioner 1sf Respondent 2nd Respondent Neutral Citation: Before: Summary: Delivered: Savy v Sinon & Anor (MC 4212022) [2024] (20th December 2024). Carolus J, Plea in Limine Litis - Retrospective Application of Civil Code of Seychelles Act 2020 in relation to en menage relationships. 20th December 2024 The plea in limine litis is upheld. The petition is dismissed with costs. ORDER RULING CAROLUSJ Background [1] The petitioner Amira Mianna Savy has petitioned this Court for a property order under Articles 258(1) and 259(5) of the Civil Code of Seychelles Act 2020, on the basis that she and the 1st respondent Mathieu Richard Sinon were in a domestic relationship from around 2015 to 20th July 2019. The property in question is a vehicle of which the petitioner avers she and the 1st respondent are the registered co-owners, and that the first respondent has sold to the 2nd respondent Dereck Fanchette without her consent and without any legal transfer of ownership having taken place. In terms of the petition the petitioner prays for the following reliefs: (a) To order that the sale of motor vehicle S1553 by the I" Respondent to the 2nd Respondent be rescinded and that the possession of the motor vehicle be returned to the Petitioner, (b) To order that ownership of motor vehicle S1553 beplaced in the name of the Petitioner solely, subject to the Petitioner paying the lSI Respondent the sum of SCR140,000for his share, (e) To order that any sums owed to the 2nd Respondent as a result of the sale bepaidfor by the I" Respondent, (d) Alternatively, to order that the lsi Respondent pay the Petitioner the sum of SCR120,000 to purchase her share of the motor vehicle, (e) To make any order that the Court deemsfit, taking into account the circumstances of the case, (f) The whole with costs. [2] Both respondents opposed the petition. The first respondent filed a reply to the petition dated 19th October 2022 raising a plea in limine litis as well as dealing with the matter on the merits. His reply is supported by an affidavit sworn by him, praying the Court to dismiss the petition with costs. The plea in limine litis was dealt with by a ruling dated 21st April 2023. Subsequently the l " Respondent filed a further plea in limine litis dated 13th June 2023 which reads as follows: "The right claimed by the Petitioner is not afforded to her as the qualifying relationship ended prior to enactment of the Civil Code of Seychelles 2020 that has no retrospective effect", on the basis of which she prays for dismissal of the petition. The 2nd respondent, on his part, has filed an affidavit sworn by him in reply to the petition solely on the merits. This ruling will address the second plea in limine litis raised by the 1SI respondent. Counsels for the petitioner and the 15t respondent have both filed written submissions thereon. Submissions of the parties Submission of IS/ Respondent [3] Ms Wong for the l " respondent submits that Article 6 of the Civil Code 2020 which provides that "[ljegislation has no retroactive effect unless that is expressly stated in the legislation or arises by necessary or distinct implication ", prevents the retrospective application of the provisions of that Code. She submits that consequently as the rights given to people in en menage relationships under Articles 258(1) and 259(5) of the Civil Code 2020 (which came into operation on 151 July 2021) were not in existence at the time of the relationship between the petitioner and the l"respondent (which lasted from 2015 to 20th July 2019), the petitioner cannot be afforded such rights. [4] She also relies on Article 3A(1 )(b) of the Civil Code 2020 which provides that the repeal of the Civil Code 1976 does not affect any right acquired under the repealed Code, to submit that as the aforementioned rights of people in en menage relationships did not exist prior to the Civil Code 2020, and further as the relationship of the petitioner and the 151 respondent ended prior to its commencement, the petitioner cannot apply for relief under that Code. [5] Ms Wong also relied on the following obiter comments of Twomey JA at paragraph [14] of Labaleine & an or v Belle (SCA 42/2017) [2020) SCCA 18 December 2020: In any case I do not see how this appeal could have succeeded. In effect Mr. Rouillon in his submissions has attacked the legislation with regard to paternity suits as being outdated and lacking. While we agree with him and note that the amendments have been passed by the Legislature but await publication and an effective date for commencement, the new provisions would not have retroactive effect on the present case. The learned trial judge in applying Articles 321 and 340 of the Civil Code to the evidence adduced cannot be faulted. [6] Ms Wong concludes by stating that the amendments brought by the Civil Code 2020, specifically those that introduce new concepts and rights, are not retrospective and therefore cannot find their application in the matter before this Court, As such the petitioner whose relationship ended in July 2019 cannot seek the remedy under Articles 258(1) and 259(5) of the Civil Code 2020. Submission of the Petitioner [7] Mr Georges for the petitioner submitted that the petitioner's right as a party to an en menage relationship under Articles 258(1) and 259(5) of the Civil Code 2020, came into existence upon the enactment of the Civil Code 2020. He submits that the petitioner's cause of action arose upon the commencement of the Code on pt July 2021 and that she would have had five years from then to file a suit. [8] He agrees that the right which the petitioner is seeking to exercise under the Civil Code 2020 did not exist prior to its enactment, either under the Civil Code 1976 or any other law. Hence he submits that Article 3A(1) does not find its application in the present case as it lays down the rule that the application of the new code (Civil Code 2020) does not retrospectively affect rights which existed prior to its enactment. He submits that the petitioner's right was born on 1st July 2021 when the Civil Code 2020 was enacted. [9] He further submits that Article 3A(2) prevents the retrospective revival of a right that may have been prescribed under the repealed Code. He submits that this bar to the retrospective application of the Civil Code 2020 is designed to prevent circumstances where a person whose exercise of a right has been prescribed under a repealed Act would attempt to file a suit under subsequent legislation which provides for a longer prescription period. [10] In support of his arguments, counsel relied on the following excerpt at paragraph [15] of the case of Suzarra Jorre De St. Jorre & Ors v Narcisse Stevenson (SCA 5 of 2015) [2017] SCCA 39 (6 December 2017: While retrospectivity in criminal cases (except for the offence of genocide or an offence against humanity) is not permitted in Seychelles and is enshrined in Article 19(4) of the Constitution, the situation is different in civil law. There is indeed a general presumption under rule of law principles that statute andjudicial decisions do not have retrospective effect on decided cases but that presumption against retrospectivity is not absolute (See Phillips v Eyre [1870) LR 6 QB 1, Maxwell v Murphy (J 957) 96 CLR 261. [11] In regards to Article 6 of the Civil Code 2020 which prohibits the retroactive effect of legislation unless such retroactive effect is expressly stated in the legislation or arises by necessary or distinct implication, Counsel submitted that the retrospective application of Article 259 arises by necessary or distinct implication in the circumstances. He explained that while the petitioner did not lose any rights with the coming into operation of the Civil Code 2020 on 151 July 2021, on that date she became a party to a qualifying relationship which had subsisted for fewer than seven years notwithstanding that that relationship had ended prior to 1st July 2021. He submitted that the petitioner could file her petition so long as it was within the prescription period. [12] Counsel submitted that the situation here is different from that envisaged in Article 3A(2) and explained that: The right [of the petitioner} came into existence on the date of commencement of the [Civil Code 2020). At that point, all the Petitioner needed to show was (i) that she had been in a qualifying relationship for a period of years with the I" Respondent, and (ii) that she was within the prescription period for bringing the action based on that this is not a matter or retroactivity, but - if it is relationship. To that extent, thus, thought to be - then the clear words of Article 259(5), 'Where the qualifying relationship has subsisted for fewer than seven years' are sufficient to show that the provision was not meant to be prospective only.1fthat had been the intention, the words used would have clearly said so, for example, 'Where, after the commencement of this Act, the qualifying relationship has subsisted for fewer than seven years ... '. [13] On the basis of the above counsel prays for dismissal of the plea in limine litis. The Law [14] The present application is made pursuant to Articles 258(1) and 259(5) of the Civil Code of Seychelles Act 2020 ("Civil Code 2020") which came into operation on 1st July 2021 by virtue of section 2 of the Civil Code of Seychelles Act, 2020 (Commencement) Notice, 2021. The Civil Code 2020 in its section 3 repealed the Civil Code of Seychelles Act 1976, Cap 33 ("Civil Code 1976"), which was applicable prior to the coming into operation of the Civil Code 2020. Articles 258(1) and 259(5) of the Civil Code 2020 introduced the concept of en menage relationships which was not previously recognised in Seychelles law. It also introduced the right for parties to such relationships to apply for a property order where their relationships had ended. [15] Article 6 of the Civil Code 2020 provides as follows: Legislation has no retroactive effect unless that is expressly stated in the legislation or arises by necessary or distinct implication. [16] Article 258(1) of the Civil Code 2020 provides: 258. (1) In any question between spouses orparties to a domestic relationship as to the title to or possession of property, either party, or any public or private body in whose books any stocks, funds, or shares of either party may be standing, may apply by petition in a summary way to a Judge in Chambers. [17] Article 259(5) of the Civil Code 2020 provides as follows: 259. (5) Where the qualifying relationship has subsisted for fewer than seven years, the court may, having regard to all the circumstances of the case, including each party's contribution to the relationship, the educational and professional qualifications and thefinancial means of theparties, make such order, as the court thinksfit, in respect of any property of either party to the relationship or in respect of any interest or right of a party in any property, for the benefit of the otherparty or a child of the relationship. [17] Section 31 of the Interpretation of General Provisions Act which deals with the effect of the repeal of an Act provides as follows: 31.(1) The repeal of an Act does not (a) affect the previous operation of the Act or anything duly done or suffered under it; (b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act; (c) affect any penalty, forfeiture or punishment incurred in respect of any offence against the Act,' or (d) affect any investigation, legal proceedings or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (b), or any penalty, forfeiture referred to in paragraph (c), and the investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Act had not been repealed. or punishment (2) Where an Act repeals part only of any other Act, subsection (1) applies in relation to the part as it would apply if the other Act were wholly repealed. [18] Section 3A of the Civil Code, 2020 provides for accrued or lost rights: 3A.(1) The repeal of the Civil Code of Seychelles Act (Cap 33) does not- (a) affect the previous operation of the repealed Civil Code of Seychelles Act or anything duly done or suffered under it,' (b) affect any right, interest, privilege, obligation or liability acquired or accrued under the repealed Civil Code of Seychelles Act, unless affected under any law,' interest, or remedy in respect of any right, (c) affect any legal proceedings privilege, obligation or liability referred to in paragraph (b). (2) No loss of right, commencement of the Civil Code of Seychelles Act, 2020 (Act 1of2021) revived by the Civil Code of Seychelles Act, 2020 (Act 1of2021). interest, privilege or obligation occurring prior to the date of shall be deemed Analysis [19] The 151 respondent's argument is essentially that the provisions of the Civil Code 2020 relating to en menage relationships cannot apply to a claim made in relation to an en menage relationship which existed and ended before the coming into operation of the Civil Code 2020. This is because Article 6 of the Civil Code 2020 prevents the retroactive effect of laws and en menage relationships were not recognised by law prior to the coming into operation of the Civil Code 2020. [20] When interpreting statutes, courts are guided by the principle that the interpretation should align with the purpose of the legislation. This requires construing the language of the statute, as far as possible, in a manner that achieves its intended purpose. There is a presumption that the grammatical and ordinary meaning of the text reflects the legislator's intent. If a statutory provision has a clear and unambiguous meaning, and no interpretive principles or factors cast doubt on that meaning, it is to be understood in its plain sense. This principle, commonly referred to as the "golden rule" of statutory interpretation, emphasizes that words should generally be interpreted in their ordinary and natural sense, as affirmed in Cinan and Another v R (SCA 26 and 27 of 2009) [2013] SCCA 12. [21] Article 6 of the Civil Code 2020 encapsulates the principle of non-retrospectivity with such clarity and precision, serving as an unequivocal guide on the matter as to leave no room for alternative interpretations. [22] This principle of non-retrospectivity forms the foundation for interpreting new legislative provisions. It is well-established that, unless expressly stated, new laws do not have retroacti ve effect. [23] In Geers v Government of Seychelles & Ors (CP 1 of 2018) [2019] SCCC 3 (30 May 2019) the Constitutional Court noted as follows: It is trite that an Act has prospective effect. Retrospectivity may be permissible where legislation is declared unconstitutional. [24] The Halsbury's Laws of England, 4th Edition Vol 44 at p 570 states: legislation, As for non-criminal the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. [25] Further, the Supreme Court of Appeal of South Africa in Kaknis v Absa Bank Limited; Kaknis v Man Financial Services SA (Pty) Ltd (08/16) [2016] ZASCA 206; [2017] 2 All SA 1 (SCA); 2017 (4) SA 17 (SCA) (15 December 2016) explained the application of the presumption against the retrospective application of statutes as follows: [10} I must mention from the outset that 1am alive to the existence of a strong presumption that legislation is not intended to be retroactive, - nor retrospective (see S v Mhlungu & others [1995] ZACC 4; 1995 (3) SA 867 (CC) paras 65 - 67), where Kentridge AJ observed that: '[65] First, there is a strong presumption that new legislation is not intended to be retroactive. By retroactive legislation is meant legislation which invalidates what was previously valid, or vice versa, ie which affects transactions completed before the new statute came into operation .... It is legislation which enacts that "as at a past date the law shall be taken to have been that which it was not". See Shewan Tomes & Co Ltd v Commissioner of Customs and Excise 1955 (4) SA 305 (A) at 311H, per Schreiner ACJ There is also a presumption against reading legislation as being retrospective in the sense that, while it takes effect onlyfrom its date of commencement, impairs existing rights and it obligations, eg by invalidating current contracts or impairing existing property rights. See Cape Town Municipality v F Robb & Co Ltd 1966 (4) SA 345 (C) at 351,per Corbett J Thegeneral rule therefore is that a statute is asfar as possible to be construed as operating only onfacts which come into existence after itspassing. [66] There is a different presumption where a new law effects changes in procedure. It is presumed that such a law will apply to every case subsequently tried "no matter when such case began or when the cause of action arose" - Curtis v Johannesburg Municipality 1906 TS 308 at 312. It is, however, not always easy to decide whether a new statutoryprovision ispurely procedural or whether it also affects substantive rights. Rather than categorising new provisions in this way, it has been suggested, one should simply ask whether or not they would affect vested rights if applied retrospectively. See Yew Bon Tew v Kenderaan Bas Mara (supra at 563 (AC)); Industrial Council for Furniture Manufacturing Industry, Natal v Minister of Manpower and Another (supra at 242). " [26] Against that background, it is clear that retrospective application of laws is largely barred. However, Article 6 provides two exceptions to this bar against retrospective application of the law, namely, that retrospectivity is expressly stated in the legislation or arises by necessary or distinct implication. [27] In regards to the first exception, there is no express provision in the Civil Code 2020 that allows for its retrospective application. It is clearly for this reason that the petitioner has then proceeded under the second exception and submits that the retrospective application of Article 259 of the Civil Code 2020 arises by necessary or distinct implication. [28J In so doing, the petitioner has invited this Court to undertake a process of statutory interpretation. As the Court of Appeal affirmed in Financial Intelligence Unit v Cyberspace Limited (SCA 27A of 2012,2013 SCCA 2, para 23), The Court can properly interpret laws infact that is its duty and the interpretations of legislation consists of both the elucidation of its substantive provisions as well as its procedural provisions. [29J Building on this foundational principle of statutory interpretation, it becomes necessary to examine the meaning and scope of the phrase "by necessary and distinct implication." This phrase "by necessary and distinct implication" refers to situations where the retroactive application of legislation is not explicitly stated but can be inferred from the context, purpose or language of the statute in a manner that leaves no doubt about the Legislature's intention. [30] Necessary implication arises when the retroactive application is essential to achieve the purpose of the legislation and distinct implication suggests a clear and unmistakable inference of retroactivity, based on the structure, wording or surrounding provisions of the statute. [31J In the context of Article 6 of the Civil Code 2020, if the language of the statute does not explicitly provide for retroactive effect, nor is such an effect essential and unmistakably implied, the provision must be interpreted to apply prospectively only. [32] I have carefully considered the petitioner's submission under this second exception and conclude that it cannot be sustained in light of the explicit terms of Article 6 of the Civil Code. The petitioner's submission that Article 259 of the Civil Code 2020 applies retroactively by necessary and distinct implication is flawed. The argument hinges on the assertion that, while the petitioner did not lose any rights upon the Civil Code's commencement on 151 July, 2021, she became a party to a qualifying relationship that had subsisted for fewer than seven years, despite that relationship having ended before the law's effective date. In my view, this interpretation does not meet the threshold of necessary and distinct implication as discussed above. [33] For retroactivity to arise by necessary and distinct implication, it must be essential to achieve the purpose of the legislation and there should be a clear and unmistakable inference of retroactivity from the statute's language or structure. There is no indication that the application of Article 259 to relationships that ended before the Code's commencement is vital to fulfilling its objectives and there is similarly no explicit or evident intent within the language of Article 259 to confer retroactive rights to relationships terminated prior to pI July, 2021. Consequently, the submission stretches the provision beyond its clear and prospective scope, contrary to the principle established under Article 6. [34] In the circumstances, I agree with the l " respondent's argument that the provisions of the Civil Code 2020 relating to en menage relationships cannot apply to a claim made in relation to an en menage relationship which existed and ended before the coming into operation of the Civil Code 2020. The Civil Code 2020, which introduced the concept of en menage relationships, governs new rights that were not available before its enactment. [35] The petitioner's relationship with the l " respondent, which ended prior to the commencement of the Civil Code 2020, cannot be considered a "qualifying relationship" under Article 259, as applying the provision to past relationships would, in effect, contravene Article 6 by imposing a retroactive application of the new law. [36] The Court finds no express provision or compelling implication within the Civil Code 2020 that mandates or justifies such retrospective effect. Therefore, the petitioner's claim brought under Articles 258(1) and 259(5) is dismissed as falling outside the scope of the Civil Code 2020. [37] Further, the petitioner had no accrued rights under the repealed Civil Code 1976 that could be preserved or revived under the transitional provisions of the Civil Code 2020. [38] I do not agree with the Petitioner's assertion that her cause of action arose upon the commencement of the Civil Code, 2020. A cause of action arises from specific facts that establish the right to seek relief, not from the mere enactment of legislation. The cause of action arose during the period which the Civil Code of Seychelles Act, 1976, was in operation, when the 1st Respondent sold the motor vehicle in 2020, after their relationship had ended sometime in 2019. [39] On the basis of the foregoing, the plea in limine litis raised by the 1st respondent is upheld. The petition is dismissed with costs. Signed, dated and delivered at Ile du Port on 20th December 2024. Carolus J 12