Gobine v Gobine (SCA 18/2023) [2024] ((SCA 18/2023) [2024] (Arising in DC 224/2019) (3 May 2024)) [2024] SCCA 12 (3 May 2024)

IN THE COURT OFAPPEAL OF SEYCHELLES ______________________________________________________________________________ Reportable [2024] (3 May 2024) SCA 18/2023 (Arising in DC 224/2019) Appellant Respondent In the Matter Between Andy Gobine (rep. by Mr. Charles Lucas And Noemie Gobine (rep. by Mr. Kieran Shah) ___________________________________________________________________________________ Neutral Citation: Gobine v Gobine (SCA 18/2023) [2024] (Arising in DC 224/2019) Before: Summary: Heard: Delivered: (3 May 2024) Twomey-Woods, Tibatemwa-Ekirikubinza, Gunesh-Balaghee, JJA Adjustment of property under section 20(1) of the Matrimonial Causes Act 18 April 2024 3 May 2024 _____________________________________________________________________________ ORDER 1. I quash the order made by the trial Judge and make the following order- (i) (ii) The property adjustment is made in favour of the appellant, Mr Gobine. The appellant, Mr Gobine, shall pay two million eight thousand and nine hundred and ninety-five Seychelles Rupees (SCR 2,008,995.00) to the respondent, Mrs Gobine, in respect of her 50% share in the matrimonial property, and such payment shall be made within six months of the date of this judgment. On receipt of the above sum, Mrs Gobine shall forthwith pay the loan due. (iii) Following the full payment of the sums referred to in paragraph (ii) above, Mrs Gobine’s name shall be removed from title C7623 and the Land Registrar is ordered to effect the necessary changes in title C7623 to reflect that Mr Gobine is the sole owner accordingly; (iv) Where Mr Gobine fails to comply with paragraph (ii) above, Mrs Gobine may instead pay Mr Gobine his 50% share of SCR 2,008,995.000 within six months. (v) Following the full payment of the sum referred to in paragraph (v) above, Mr Gobine’s name shall be removed from title C7623 and the Land Registrar is ordered to effect the necessary changes in title C7623 to reflect that Mrs Gobine is the sole owner accordingly; (vi) Where Mrs Gobine fails to buy out Mr Gobine’s share in the six months in accordance with paragraph (iv) above, the property C7623 shall be sold by licitation. Half of the proceeds shall be attributed to each of the parties and the proceeds attributed to Mr Gobine shall be paid to him. The loan due will be repaid from the other half of the proceeds, following which the remaining money will be paid to Mrs Gobine. 2. The appeal is otherwise set aside with no order as to costs. ___________________________________________________________________________ ___________________________________________________________________________________ JUDGMENT GUNESH-BALAGHEE JA (Dr. M. Twomey-Woods, Dr. L. Tibatemwa-Ekirikubinza JJA concurring) 1. Following the dissolution of her marriage with the appellant (then respondent), the respondent (then applicant) made an application for “adjustment of property” in her favour. The appellant (then respondent) resisted the application and filed a cross- application seeking an order for “adjustment of property” in his favour. 2. It is common ground that the parties are the registered co-owners of a plot of land (title No. C7623) which they acquired during the subsistence of their marriage and on which they subsequently constructed a house (hereinafter jointly referred to as “the matrimonial property”). After a contested hearing, the learned judge gave a judgment whereby she made orders as follows- “(i) The property adjustment is made in favour of the Respondent. (ii) The Respondent shall pay Two Million and Nine Hundred and Ninety-five Seychelles Rupees (SCR 2,000,995.00) to the Applicant for her 50% share in the matrimonial property, and such payment shall be made within three months of the date of this Order. (iii) The Respondent shall pay in full the remainder of the loan within three months of the date of this Order. (iv) Following the full payments in (ii) and (iii) above, the Applicant’s name shall be removed from the title of C7623 and the Land Registrar is ordered to effect the same accordingly; (v) Where the Respondent has failed to meet the payments in (ii) and (iii) above, the Applicant may instead buy out the Respondent for his 50% share of SCR 2,000,995.000 within three months and simultaneously bear the responsibility to pay off the loan as the sole owner of C7623. (vi) Where the Applicant fails to buy out the Respondent in the three months in accordance with (v) above, the property C7623 shall be sold by licitation and the parties shall equally pay the loan due at the time of the sale and distribute the proceeds as per above distribution as ordered. (vii) Both parties shall bear their own costs. 3. The appellant is seeking a dismissal of the above orders and a re-assessment of the contribution made by the parties so that he be awarded a share in excess of 50%. The grounds of appeal are as follows - “1. The trial Judge having made an Order in paragraph [37]ii, for the Appellant to pay the Respondent her 50% share in the sum of SCR 2,000, 995.00 was wrong in all the circumstances of the case to further burden the Appellant in paragraph [37]iii with the payment of the remainder of the Respondent’s loan, which in itself was her contribution in the matrimonial house and to enable her to be entitled to a share. In all fairness the Respondent ought to have been ordered to pay the remainder of her loan account. 2. The trial judge erred in her reasoning is in paragraphs [26] and [27] of the judgement for making the Order of 50/50 share to each party, where there was overwhelming evidence in the Appellant’s favour for her to depart from the 50/50 and to award the Appellant a share well in excess of half share. 3. The trial judge ought to have excluded the value of the land in her judgement since it was applied for in the Appellant’s sole name and the consideration of sale was paid solely by himself with his own funds. 4. The trial judge was wrong in all circumstances to order the Appellant to pay the Respondent within three months, the aggregate sum of SCR 2,875,712.73 as her half share out of the matrimonial property valued at SCR 4,017,990, which payment well exceeds 2/3rd of the value of the subject matter of the case.” Grounds 2 and 3 4. Grounds 2 and 3 are intricately linked and will be considered together. 5. The appellant, in a gist, testified that he was employed as Dangerous Goods Safety Oversight Inspector with the Seychelles Civil Aviation Authority and also worked part time under a contract with the US Airforce. He agreed to have the land registered in the name of the respondent because they were in love at the time and he had no other option but also because the respondent worked at a bank and could obtain the loan at a better rate, but for that the land had to be also registered in her name. The land was acquired with his own funds and it was agreed between the parties that the respondent would pay the loan while he would meet the household expenses. He used his own funds to clear the site, he was the only one who supervised the works, he improved the landscape for which he spent SCR 300,000 out of his personal funds and injected SCR 500,000 for finishing the house. He was also the one who paid the insurance for the house. The appellant further alleged that the respondent did not use all the earnings for meeting the expenses of the household but helped her mother with changing the roof of the latter’s house. 6. The testimony of the respondent before the trial court was, in a nutshell, to the following effect: at all material times, she was employed and earned more than the appellant, she took a loan of SCR 1.2 million for building the house, the loan has always been and is still being repaid solely by her. The appellant had during the subsistence of the marriage acquired another plot of land which was registered only in his name and he subsequently sold it at a profit and kept the proceeds. Both the respondent and herself contributed in the household expenses. 7. It transpires from the evidence adduced before the learned Judge that the parties had been living together in a rented apartment prior to their marriage in 2005 and they continued living there after their marriage. The appellant had made an application for the purchase of the land from the government and when he got an offer to do so in 2010, he applied to have the name of the respondent added on the title deed as purchaser. The appellant paid for the land and the respondent took a loan to construct the house. Following the completion of the construction of the house in around 2012, they moved into the house although there were still some outstanding work and lived there up till 3 December 2018 when the respondent moved out together with their child who was born in December 2009. The share of the parties 8. The application for adjustment of property is governed by section 20(1) of the now repealed Matrimonial Causes Act (“the Act”) which, so far as relevant, provides as follows: “20. Financial relief (1)Subject to section 24, on the granting of a conditional order of divorce or nullity or an order of separation, or at any time thereafter, the court may, after making such inquiries as the court thinks fit and having regard to all the circumstances of the case, including the ability and financial means of the parties to the marriage- … g) make such order, as the court thinks fit, in respect of any property of a party to a marriage or any interest or right of a party in any property for the benefit of the other party or a relevant child. 9. Where the parties are co-owners of property, section 20(1) must be considered along with article 815 of the Civil Code which provides that “[i]n the absence of any evidence to the contrary it shall be presumed that co-owners are entitled to equal shares”. 10. In the present case, it was undisputed that the land on which the house of the parties was constructed was registered in the names of both parties. Therefore, pursuant to article 815, the matrimonial property belonged to both parties in equal shares. In addition, since the house was constructed on land jointly owned by the parties, the house was also jointly owned by them pursuant to article 552 of the Civil Code. However, it was open to the parties to rebut the presumption created by article 815, that they co-owned the matrimonial property in equal shares, by adducing evidence to the contrary. 11. It is clear from the judgment that the learned judge was fully alive to the principles applicable when determining an application for property adjustment under section 20 of the Matrimonial Causes Act. She rightly stated that the starting point is that there are equal shares and referred to the cases referred to in the paragraphs below which provide guidance as to how the discretion conferred under the section 20 is to be exercised. 12. In Esparon v Esparon (2012) SLR 39 the Court laid down that the factors to be considered in determining an application for property adjustment include “who paid the purchase price and the loans for the family home as well as the: a) Standard of living before the breakdown of the marriage; b) Age of the Parties; c) Duration of the Marriage; d) Physical and mental disability of either party; e) Contributions made by each party to the welfare of the family, including housework and care roles; and f) Any benefits which a party loses as a result of the divorce’. 13. In Esparon, the Court further observed that the purpose of the adjustment is to find an equitable balance in the attribution of the share of each party to the property: “there is no set mathematical formula by which such cases are decided and each case is considered on its own merits. The cardinal principle is that there must be a level of equity in that the respective party is not deprived of their fair share of contributions in the matrimonial asset despite such asset being registered in the sole name of one party…. In determining that equitable balance the Court normally starts by looking at the legal ownership and then adjusts the shares of each party based on the level of contributions made by each party, be such contributions in cash, in kind or otherwise.” 14. In Chetty v Emile SCA 11/2008 SCAR (1998 – 1999) 65, it was made clear that it is not only the monetary contributions of the parties that need to be considered - ″[30] Contributions towards matrimonial property cannot be measured in pure monetary terms, in hard cash. As stated earlier the love and sweat and the long hours of vigil to bring up a family by the spouses all have a role to play in the accumulation of matrimonial property. […]. We also find it difficult to accept that once a party makes a choice of his or her partner and decides to live together as husband and wife, one party cannot be heard to say that I had the better job or I am a person who brought in more money when the relationship goes sour as the respondent has done in this case. The position certainly would be different if there was evidence to the effect that one party squandered the wealth or deliberately omitted to do what is reasonably expected of that party as a spouse.″ 15. In Pillay v Pillay [2017] SCSC 545, the Court further laid down that factors to be considered were the length of the marriage, economic advantage or disadvantage gained or lost by the parties during the marriage, the burden of looking after children of the marriage and whether a party might suffer financial hardship as a result of the divorce. 16. The learned Judge started off from the presumption that that each of the parties owned the land in equal shares. She then noted that the appellant had failed to rebut that presumption. It is amply clear from the judgment that the learned Judge was fully alive to the fact that the factors which the Court has to take into account in determining how to exercise its discretion varies from case to case. 17. She noted that pursuant to section 20(1)(g) she had a wide discretion in making an order for adjustment of property and rightly referred to the case of Renaud v Renaud SCA 48/1998 which lays down that the purpose of section 20 is to ensure that upon dissolution of the marriage, a party to the marriage is not put at an unfair advantage in relation to the other, by reason of the breakdown of the marriage and, that as far as possible, the purpose is to enable the applicant to maintain a fair and reasonable standard of living with or near the standard the parties had maintained before dissolution. 18. After taking into consideration, the financial contributions to the property by both parties, the learned judge concluded on the basis of the evidence adduced that since both parties in the present case had their part to play in the accumulation of the matrimonial property and sustaining it thereafter, the shares owned by each party is 50/50. Although the learned judge does not specifically state so in her judgment, it can be inferred that she arrived at the above conclusion after having considered the sum total of the evidence and I am unable to find any fault with her conclusion for the reasons given below. 19. It is patent from the evidence on record that the parties, who had been married for 5 years at the time that they acquired the land, meant to acquire it for both of them for the purpose of building the family home thereon. It is also manifest that both parties contributed in the construction of the house, the respondent through her contribution which consisted largely of the loan which she took and the appellant through the supervision of the works, his personal labour for the landscaping of the property and by financing part of the construction works. It can also be gleaned from the evidence on record that they contributed more or less equally in the running of the household. I further note that learned Counsel for the appellant himself states at paragraph 5 of the Skeleton Submissions of the appellant that “there were no exigent consideration to be taken by the court. Both parties’ financial, social and economic positions are more or less at par.” 20. In the circumstances, I am unable to find that the trial Judge was wrong in her assessment of the evidence that the parties held an equal share in the property. Although under ground 2, it is contended that there was “overwhelming evidence in the Appellant’s favour for the Judge to depart from the 50/50 [share] and to award the Appellant a share well in excess of half share”, learned Counsel for the appellant has failed to direct the Court’s attention to any evidence from which it can be concluded that the assessment of the share of the parties by the learned Judge is faulted. A perusal of the evidence on record does not show that any “overwhelming evidence” titling the balance one way or the other so that I am unable to conclude that the calculation of the shares of the parties in the property is erroneous. 21. I must point out that the appellant is under the above grounds challenging the appreciation of the evidence by the trial Judge. It is well settled that the appellate court will be loath to interfere with the appreciation of the evidence of a trial court unless it can be shown that the findings of fact of the trial court are unreasonable, unwarranted or perverse. The learned Judge was confronted with two versions, that of the appellant and that of the respondent. She had the benefit of seeing both of them depose and to assess their credibility. There is nothing on record to show that the assessment of the learned Judge was unreasonable, unwarranted or perverse. 22. Before concluding, I must make one observation. It is apparent from the judgment that the trial Judge took the value of the property to be the mean of the value as per the two valuation reports which were before her. The method used in arriving at the value of the matrimonial property is not being challenged on appeal. In the circumstances, it must be assumed that the learned Judge was right in computing the value of the matrimonial property by the above method. 23. Now, the appellant’s valuer valued the matrimonial property at SCR 3,846,980 while, as per the report of the respondent’s valuer, the value of the matrimonial property was SCR 4,189,000. Thus, using the method adopted by the learned Judge, the value of the matrimonial property was SCR 4,017,990 and half of that share would be SCR 2,008,995. 24. The learned Judge found that it was the appellant who should keep the matrimonial property with the corresponding obligation to repay the share of the respondent to her. Since the decision of the Judge to attribute the matrimonial property to the appellant is itself not being challenged, it follows that, in line with the judgment, the respondent should have been attributed an equal share in the matrimonial property, i.e., 50% of the trial Judge should have ordered that the above sum be paid by the appellant to the respondent. 25. There is a typographical mistake in the judgment as it refers to 50% of the share as being SCR 2,000,995 when the said figure should in fact read SCR 2, 008,995. Value of the land 26. It is the appellant’s contention that the value of land should have been excluded from the value of the matrimonial property in assessing the share to be attributed to the respondent. The question of excluding the value of the land does not arise for the simple reason that it was jointly owned and the respondent had legal ownership of half of the land. Although the appellant paid for the property with his own funds, it is undeniable that the land was registered in both parties’ names and that the appellant himself wrote to the Principal Secretary of the Ministry of Land Use and Housing to request that the name of the respondent be included in the deed (Exhibit D1). 27. Further, it is clear that the parties intended to own the land jointly for the purpose of building their home. In the circumstances, the learned Judge was perfectly right in including the value of the land in the value of the matrimonial property. I have already explained above that the learned Judge found that the matrimonial property should be divided equally between the parties. Since the appellant was unable to establish that the learned Judge was wrong in coming to the above conclusion, the value of the land was rightly included in the value of the property to be shared equally between the parties. 28. Taking all the above into consideration, I amend paragraph [37] i. and v. of the judgment by substituting the figure 2,000,995 by the figure 2,008,995. Grounds 2 and are otherwise devoid of any merit and are accordingly dismissed. Grounds 1 and 4 29. Under ground 1 it is the appellant’s contention that the learned Judge was wrong to order him to pay the remainder of the loan while under ground 4, he contends that the trial judge was wrong to order him to pay the respondent within three months, the aggregate sum of SCR 2,875,712.73 as her half share out of the matrimonial property valued at SCR 4,017,990. I must straight away state that the appellant was ordered to pay to the respondent 50% of the value of the matrimonial property which was assessed as being SCR 4,017,990, i.e., SCR 2,008,995 (wrongly stated as being SCR 2,000,995 in the judgment) and not SCR 2,875,712.73. 30. However, learned Counsel for the appellant explained that the sum of SCR 2,875,712.73 is arrived at by adding 50% of the value of the property to the amount of the loan which the appellant was also ordered to pay to the respondent. 31. In her application, the respondent herself stated that the loan was taken to finance the construction of the house and, in court, she confirmed that all the loan money was used for that purpose. Further, it is clear from the evidence on record that the loan represented a major part of the respondent’s contribution in the matrimonial property which was assessed as being worth SCR 4, 017,990. 32. The learned Judge determined that each of the parties had an equal share in the matrimonial property so that each of them was entitled to half of the monetary value of the matrimonial property. However, since the appellant was residing on the matrimonial property, the learned Judge determined that “the property adjustment should be made in his favour”, i.e., he should be solely attributed the whole of matrimonial property and bear the corresponding obligation of paying back the respondent’s share (i.e., half of the value of the matrimonial property which was SCR 2,008,995) therein to her. As stated above the attribution of the matrimonial property to the appellant is not being challenged. In the circumstances, it follows that he should only pay half of the value of the matrimonial property to the respondent, i.e., SCR 2, 008,995. 33. However, the learned Judge, over and above making an order that the appellant pays SCR 2, 008,995 to the respondent, also ordered him to pay the remaining loan within three months of the judgement. The learned Judge was clearly wrong to have so ordered as this runs counter to her own finding that the parties are entitled to an equal share in the matrimonial property. 34. As explained above, the loan of SCR 1.2 million was part of the respondent’s contribution in the matrimonial property. She has already repaid SCR 754,594.22 as part of the loan since 2011 and as per the judgment the sum of SCR 874,717.73 was yet to be paid at the time of trial. If the respondent had paid the sum of SCR 1.2 from her own funds upfront, she would still have been entitled to half of the matrimonial property and the question of repayment of any loan would not have arisen. The appellant would simply have had to repay SCR 2, 008, 995 to her as part of her share of the property. 35. The appellant cannot be ordered to repay the loan simply because he has been attributed the matrimonial property. Ordering the appellant to pay the remaining loan, which was SCR 874,717.73 according to the judgment, will in effect result in the him being attributed only SCR 1,134,277.27 out of the sum of SCR 4,017,990 which represents the value of the matrimonial property and, in fact, receiving only 28% of the value of the matrimonial property when his share therein was half according to the trial Judge. Thus, the order that the appellant should pay the remainder of the loan is clearly inconsistent with the learned Judge’s finding that the parties are entitled to an equal share in the matrimonial property. 36. With regard to the payment to be effected by the appellant to the respondent, I note that the learned Judge ordered that it be effected within a delay of 3 months from the date of the Order. This is an extremely short delay for arranging for the payment of such an amount. Learned Counsel for the appellant submitted that a delay of 6 months would be more adequate. I agree. 37. During the hearing of the case, we raised an issue regarding the charge on the land (Title No. C7623) in favour of the Central Bank (“the bank) to secure the repayment of the loan granted by the bank to the respondent. It is apparent from the charge document (Exhibit P6) which was filed on record that so long as the respondent is indebted to the bank, the land cannot be sold, transferred or disposed of without first obtaining the written consent of the bank. 38. It can also be gleaned from paragraph 2 of the charge document that the chargors (i.e., the parties) consented that the Land Registrar enters a restriction in respect of the land preventing all dealings with the land unless consented in writing by the bank so long as charge subsists against the title. 39. Although Counsel did not address the above issue in their Skeleton Heads or in Court, I cannot overlook the above aspect of the case. Neither the bank nor the Land Registrar have been joined as a party to the present case and the orders which have been made will inevitably affect the agreement between the bank and the parties without the bank, as holder of the charge, having been given an opportunity of being heard. The orders also impact the agreement between the parties and the Land Registrar. 40. Taking all the above into consideration, I quash the order made at paragraph [37] of the judgment and make the following order whilst trying to ensure that the rights of the bank, as holder of the charge, are as far as possible not adversely affected by same - (i) The property adjustment is made in favour of the appellant, Mr Gobine. (ii) The appellant, Mr Gobine, shall pay two million eight thousand and nine hundred and ninety-five Seychelles Rupees (SCR 2,008,995.00) to the respondent, Mrs Gobine, in respect of her 50% share in the matrimonial property, and such payment shall be made within six months of the date of this judgment. On receipt of the above sum, Mrs Gobine shall forthwith pay the loan due. (iii) Following the full payment of the sums referred to in paragraph (ii) above, Mrs Gobine’s name shall be removed from title C7623 and the Land Registrar is ordered to effect the necessary changes in title C7623 to reflect that Mr Gobine is the sole owner accordingly; (iv) Where Mr Gobine fails to comply with paragraph (ii) above, Mrs Gobine may instead pay Mr Gobine his 50% share of SCR 2,008,995.000 within six months. 12