Monchouguy v Monchouguy (CS 37 of 2016) [2023] SCSC 424 (5 June 2023)

MADELEINE, J

Introduction

1. This ruling arises from an action brought by the Plaintiffs for the recission of the sale of land parcel C5724 and building thereon from the late Dorothy Ida Monchouguy to the Defendant dated 17 April 2013 and registered on 18 April 2013 on the grounds of lésion.

Background

2. The Plaintiffs and the Defendant are the heirs of the late Dorothy Ida Monchouguy. The Plaintiffs are the appointed executrices to the estate of their late mother.
3. The Plaintiffs claim that their late mother, Dorothy Ida Monchouguy, sold land parcel C5724 of an extent of 3,505 square metres with a building thereon (hereafter the “Property”) to the Defendant for SCR.30,000/- only. They allege that at the time of sale, the value of the Property was in excess of an amount that doubled the price paid by the Defendant or that the price paid by the Defendant was less than half of the value of the Property. From the circumstances of the sale and transfer of the Property, the Defendant took some unfair advantage causing loss to their deceased mother and to her estate in the difference between the value of the Property and price paid by the Defendant.
4. In his statement of defence, the Defendant avers that the real intention of the transfer and of the late Dorothy Ida Monchouguy was to distribute her estate amongst her heirs. No unfair advantage was obtained by him, and the transfer of the Property was made knowingly and willingly by the late Dorothy Ida Monchouguy.

Law and Analysis

5. The action brought by the Plaintiffs is grounded in Article 1674 of the Civil Code of Seychelles Act, Cap 33 (hereinafter referred to as the “Civil Code”) which stipulates that –

“If the price paid by the buyer is less than half of the value of the thing bought, whether it be movable or immovable, the seller shall be entitled to a recission of the contract, even if he has expressly waived his right to do so, and even if he has declared his willingness to give the surplus value of the property. Subject to the provisions of this article and articles 1675 and 1676, the rule in article 1118 of this Code shall have application.”

6. Before the claim for the rescission of the sale of the Property can be admitted by this Court, the Plaintiffs must, in terms of Article 1679[1] of the Civil Code (Cap 33), make out a prima facie case that the circumstances are sufficiently serious to warrant an investigation by the Court.
7. In Adrienne v Adrienne (1978) SLR 88 Sauzier J held that –

“Before the Plaintiff may be allowed to prove lesion it is necessary that she be granted  permission to do so by the Court in a preliminary judgment. Such permission however will not be granted unless the Plaintiff has set out in her pleadings facts which are sufficiently probable (“vraisemblables”) and serious (“graves”) to allow the court to presume a prima facie case of lesion. It is not sufficient that those facts should only be alleged in the plaint. To found a prima facie case of lesion the facts alleged must be supported by evidence. That is why evidence was allowed to be brought by the plaintiff in support of the allegations contained in her plaint.” (emphasis added)

8. In Marie v Marie & Anor (SCA 34/2013 [2016] SCCA 18 (12 August 2016), Twomey JA confirmed that an interlocutory hearing should first be held for the plaintiff to adduce evidence of facts that are probable and serious enough for the Court to presume lesion:

“15. An interlocutory judgment on the issue of whether a case for lesion is made out is necessary before one can proceed to hear the matter on substantive issues. As pointed out by Sauzier J (in Adrienne supra), the essential elements that must be made out by evidence at that interlocutory hearing is whether the facts are probable and serious enough for the court to presume lesion. Then and only then can the case on lesion be heard, including the calling of experts for the valuation of the property sold.” (emphasis added)

9. In Marlene Domingue & Ors v Elvis Domingue Carolus J considered Articles 1679 and 1680[2] of the Civil Code (Cap 33) and the findings of the Court in Adrienne and Marie (supra), and held as follows –

“[4]     It is clear from these two provisions, as stated in Marie v. Marie (supra) that the procedure in respect of claims of lésion is a two stage process. First the court must be satisfied that the plaintiff has made out a prima facie case “that the circumstances are sufficiently serious to warrant an investigation by the Court”. Once the Court is so satisfied, according to Sauzier J in Adrienne v Adrienne (supra), it renders a preliminary judgment granting permission to the plaintiff to bring proof of lesion, in the second stage of the process. As pointed out by Twomey JA in Marie v Marie (supra), “[A]n interlocutory judgment on the issue of whether a case for lesion is made out is necessary before one can proceed to hear the matter on substantive issues.”

[5]       What then, at the first stage of the process, must the Court rely on to find that the plaintiff has made out a prima facie? The wording of Article 1680 appears to suggest that the Court has to rely on the single report drawn up by three experts to do so.

        ………….

[8]       Both of these cases appear to suggest that the single report drawn up by three experts required under Article 1680 is produced at the second stage of the process to prove lesion, after the Court has given its preliminary ruling that the plaintiff has made out a prima facie case. This view is confirmed by the following in Dalloz Encyclopedie Juridique, 2˚edition, Repertoire de Droit Civil, Tome V11, V˚ Vente:

491 - 2˚Preuve –Une fois que par un premier judgment, le tribunal a autorise le demandeur a faire la prevue de la lésion, la prevue de la lésion peut etre faite.Aux termes de l’Article 1678 [our Article 1680], la prevue de la lesion “ne pourra se faire que par un rapport de trois experts qui seront tenus de dresser un seul process verbal commun et de ne formuler qu’un seul avis a la pluralité des voix”…Emphasis added”

10. In their pleading, the Plaintiffs have merely alleged lesion and attached a photocopy of the transfer of the Property from the late Dorothy Ida Monchouguy to the Defendant.  Plaintiffs’ first prayer is for the Court to appoint three experts to submit a report on the value of the immovable property at the time of the sale or transfer by the Deceased to the Defendant. Before we reach that stage, the Court should, following Marie and Domingue (supra), hold an interlocutory hearing to establish whether the facts alleged are probable and serious enough for the court to presume lesion. It is only after this interlocutory hearing that this Court can, upon being satisfied of a prima facie case of lesion, deliver a preliminary Judgment allowing the Plaintiffs to prove lesion including the calling of experts for the valuation of the property sold.

Order

11. Based on Article 1679 of the Civil Code (Cap 33) and the above referred authorities, the matter is to be fixed for hearing of evidence from the Plaintiffs to show a prima facie case of lesion.

Signed, dated and delivered at Ile Du Port on 5th June 2023.

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Madeleine, J