IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CS 63 /2015

[2017] SCSC     

1. Daniel Jean

2. John Jean

3. Dorisca Legaie

4. Cecile Jean

5. Sonia Rachel                       Plaintiffs

versus

Angelita Jean                           Defendant

Heard:             29 March 2017         

Counsel:          Mr. Nichol Gabriel for plaintiffs

                        Ms. Lucy Pool for defendant

Delivered:       11 May 2017

M. TWOMEY, CJ

[1]        The Plaintiffs and the Defendant are the heirs of Jean-Baptiste Jean (hereinafter the Deceased) who died intestate on 14 July 2014.

[2]        The Deceased was the owner of immoveable property at Anse Royale, Mahé.

[3]        The first Plaintiff resides in the Deceased’s house, which house and land was transferred to the Defendant.

[4]        The Plaintiffs aver that the transfer of the property was a donation deguisee and should be returned to the succession.

[5]        The Defendant has raised a plea in limine litis in which she submits that since the land and house is co-owned by all the parties by virtue of the law of intestacy, and neither an executor to the Estate or a fiduciary of the co-owned property has been appointed the Plaintiffs cannot act and their plaint is not property brought.

[6]        The Plaintiffs made no submission on the issue.

[7]        Articles 817- 818 of the Civil Code of Seychelles provides that:

“817 1. When property, whether moveable or immoveable, is transferred to two or more persons, the right of co-ownership shall be converted into a claim to a like share in the proceeds of sale of any such property

2. Paragraph 1 of this Article regulates the exercise of the right of co- ownership. It does not affect the rights of co-ownership itself.  

818 If the property subject to ownership is immovable, the rights of the co-owners shall be held on their behalf by a fiduciary through whom only they may act.”

[8]        Article 817 2 is drafted in infelicitous language and has had to be interpreted by the courts over the years. In both Michel v Vidot No. 2 (1977) SLR 214 and Mathiot v Julienne (1992) SLR 135, where the rights of co-owners to bring actions in relation to property were challenged, the court found that co-owners could indeed bring actions without representation by a fiduciary if those actions related to the protection of their individual rights of occupation of the property and that a fiduciary was only necessary in respect of actions which affected rights to the common property.

[9]        In Michel Sauzier J stated that:

“Article 818 only affects the exercise of the right of co-ownership insofar as it relates to the immoveable property itself and does not affect the right of the individual co-owners to deal with their rights of co-ownership.” 

[10]      Hence where they are dealing with their respective shares in the property the heirs can act directly instead of through the intermediary of a fiduciary.

[11]      The Defendant’s plea is therefore dismissed and the court shall proceed to hear the case on its merits.           

Signed, dated and delivered at Ile du Port on 11 May 2017.