Rose v Richemond ((SCA 07/2024) [2024] (Arising in MA 97/2022 out of DC 227/2019)) [2024] SCCA 25 (19 August 2024)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2024] (19 August 2024) SCA 07/2024 (Arising in MA 97/2022 out of DC 227/2019) In the matter between Genevieve Caroline Christel Rose (formerly Richemond) (rep. by Mr. Guy Ferley) Appellant And Robin Richemond (rep. by Mr. Ryan Laporte) Respondent Neutral Citation: Rose v Richemond (SCA 07/2024) [2024] (Arising in MA 97/2022 out of DC Before: Summary: Heard: Delivered: 227/2019) (19 August 2024) Twomey-Woods, Robinson, Andre, JJA Husband and Wife — Divorce — Ancillary relief — Matrimonial Causes Rules, rule 4 (1) and Form 2. 7 August 2024 19 August 2024 (1) The appeal is allowed. ORDERS (2) (3) (4) The order of the learned Judge upholding the plea in limine litis and, consequently, dismissing the Appellant's application for ancillary relief is quashed. For the order of the learned Judge, an order dismissing the plea in limine litis is substituted therefor. The application for ancillary relief is remitted for hearing and determination by the learned Judge. Costs shall follow the event. (5) ______________________________________________________________________________ JUDGMENT ______________________________________________________________________________ Robinson JA (Dr. Twomey-Woods, Andre, JJA concurring) 1. This is an appeal against a ruling of the learned Judge of the Supreme Court delivered on 7 February 2024, dismissing the Appellant's application for ancillary relief. The learned Judge's ruling addressed two pleas in limine litis raised by the Respondent. This appeal concerns the first plea in limine litis, upheld by the learned Judge, which contended that the ancillary application should be dismissed because it ran afoul of rule 4(1) of the Matrimonial Causes Rules and, hence, was bad in law. The Matrimonial Causes Rules are hereinafter referred to as the "Rules". The issue to be determined in the appeal 2. The main issue to be determined in the appeal is whether the Appellant's application for ancillary relief, which was not made in the divorce petition, should be dismissed because it ran afoul of rule 4(1) of the Rules and Form 2 (enabled by rule 4(1) of the Rules). Form 2 is set out in the Schedule to the Rules, hereinafter referred to as "Form 2". The background to the appeal 3. The Appellant (wife) and Respondent (husband) were married on 14 May 2008. After twelve years of marriage, they divorced on 24 July 2020. The order of divorce was made final and absolute on 15 September 2020. There are three children of the marriage, two of whom are minors. 4. The application for ancillary relief prayed for the following orders to be made in favour of the Appellant (reproduced verbatim hereunder) — "a. an order that all the properties held in the name of the Respondent be valued. b. An order that the shares in the following companies be valued. i. Bois Sagailles Estate limited ii. Bois Cato Estate limited, and iii. Classica limited c. An order that the Petitioner is awarded a half share in all the properties, both by being awarded a monetary share and being awarded either of the following properties; i) ii) The matrimonial properties situated at Ma Constance, namely, land parcels H494 and H1201 The properties situated at Les Cannelles, namely, land parcels C545 and C546 iii) The property situated at Anse La Mouche, namely land parcel C122 iv) The property situated at Baie Ste Anne, Praslin, namely land parcel PR 3117 d. An order that the Petitioner is awarded a half share in the Respondent's share in the following companies i) Bois Sagailles Estate Limited, a company which currently owns land parcels S3726, J311, J312 and a portion of land situated at Nid d' Aigle, La Digue, Seychelles. ii) Bois Cato Estate Limited, which currently owns land parcel T2019 and T1901, and iii) Classica limited e. An order that the Petitioner is awarded a half share in the following businesses i. Truffle ii. Robin Richmond Construction iii. Horizon Complex, and iv. 340 Mountain View Apartment f. An order that the Petitioner is awarded a half share of the monies in the following bank accounts, held in the Respondent sole name; (i) (ii) Bank account number 001-5-201192, 0001-00731302-0 and 0001- 10033568-4, held with the DBS Bank Ltd, in Singapore, and Bank account number 91002600 and 91002601, held with the bank of Baroda (UK) Ltd, in the United Kingdom. g. h. i. An order that the Respondent transfers all his shares in Cavern Self- catering Apartment situated at Praslin to the Petitioner. An order that the Respondent transfers the Korondo Jeep, holding registration number S443, currently held in his name, onto the Petitioner's sole name. Any other orders that this Honourable court deems fit and proper in the circumstances of this case." The proceedings on the plea in limine litis upheld by the learned Judge 5. I present a summary of the contentions of the parties in their written submissions presented in the Supreme Court. 6. Counsel for the Respondent pointed out that the application was based on sections 20 and 21 of the Matrimonial Causes Act, rules 3 and 4 of the Rules and Form 2. He argued that these provisions of the Matrimonial Causes Rules should be strictly interpreted as they are mandatory. Based on this argument, he contended that since the application for ancillary relief failed to specify the relevant matters required by these provisions of the Rules, the application was bad in law and, hence, should be dismissed. In support of his submission, Counsel for the Respondent relied on the authority of Gill v Film Ansalt (2013) SLR 137. 7. Counsel for the Appellant in his counter submissions contended that the Respondent through Counsel had misunderstood the law. In this regard, he pointed out that a petitioner's divorce petition (i.e., the original petition) should provide the details set out under rule 3(2) of the Rules. Whereas a claim for ancillary relief not made in the divorce petition should set out the details specified in Form 2. In this regard, he submitted that the Appellant's application for ancillary relief meets the requirements of rule 4(1) of the Rules and Form 2, and, hence, the Appellant has given the required notice in accordance with Form 2. 8. The learned Judge determined that the application as framed was bad in law as it ran afoul of rule 4(1) of the Rules as read with Form 2. As he considered rule 4(1) of the Rules as read with Form 2 to be mandatory, the learned Judge dismissed the application for ancillary relief. The learned Judge's reasoning and findings can be found at paragraph [22] of the ruling as follows — "[22] I have given due consideration to the provisions of Rule 4 (1) of the Matrimonial Causes Rules in the light of the parties' stance that comes out of their pleadings and submissions. I note that Rule 4 (1) is without ambiguity, and that it is a mandatory provision making it an obligation for the Petitioner who seeks for such relief as in the instant case, to make it by notice in accordance with Form 2 issued out of the Registry of the Supreme Court. I have in the process, had sight of Form 2. I am not persuaded that on the facts laid before this court that the Petitioner has complied with Rule 4 (1) of the Matrimonial Causes Rules. As such, I therefore find that the plea in limine litis raised by Counsel for the Respondent that the Petition is bad in law and untenable in law in that it falls foul of Rule 4 of the Matrimonial Causes Rules has merit and therefore succeeds." [Emphasis supplied] The appeal proceedings 9. The Appellant, dissatisfied with the reasoning and findings of the learned Judge in the ruling delivered on 2 June 2023, concerning the first plea in limine litis, has appealed against the ruling on the following ground — "1. [t]he Honourable Judge erred in law and on facts in holding that the Appellant had not complied with Rule 4 (1) of the Matrimonial Causes Rules, in that the Honourable Court failed to appreciate that the Appellant had in fact included in her Petition the information contained in Form 2 of the said rule." 10. The Appellant is seeking the following orders from the Court of Appeal — "a) b) [t]o quash the judgment of the Supreme Court, with costs in favour of the Appellant and that the Appeal is upheld; and [t]hat the Court of Appeal orders for the Appellant's petition for adjustment of matrimonial property to be heard by the Supreme Court." Ground one of the appeal 11. As mentioned above, the main issue to be determined in the appeal is whether the Appellant's application for ancillary relief, which application was not made in the divorce petition, should be dismissed on the basis that it ran afoul of rule 4(1) of the Rules and Form 2, and, hence, was bad in law. I briefly rehearse the contentions of the parties as they have presented the same arguments in the Supreme Court. Submissions on behalf of the Appellant 12. Counsel for the Appellant contended in his skeleton heads of argument that the application meets the requirements of rule 4(1) of the Rules and Form 2, by setting out the ancillary relief claimed by the Appellant. He also submitted that the learned Judge erred by not explaining in his ruling which facts had been presented to the Court, which led him to conclude that the application did not meet the requirements of rule 4(1) of the Rules and Form 2. Submissions on behalf of the Respondent 13. Counsel for the Respondent contended that the notice of application for ancillary relief did not comply with the provisions of rule 3 of the Rules and Form 1. I state at this juncture that the argument of Counsel for the Respondent grounded on rule 3 of the Rules and Form 1 was misconceived. Counsel for the Appellant has correctly submitted that rule 3(2) of the Rules did not apply to this case. The rest of the points raised in the skeleton heads of argument of Counsel for the Respondent were difficult to understand. Hence, I have not reproduced them. Analysis of the contentions of the parties 14. I have carefully considered the record of appeal, the skeleton heads of argument submitted on behalf of the parties, and the oral submissions of both Counsel at the hearing of the appeal. 15. Section 8(d) of the Civil Code of Seychelles (Consequence of Enactment) Act 2021 (Act 24 of 2021), which came into operation on 1 July 2021, the same date that the Civil Code of Seychelles Act 2020 (Act 1 of 2021) came into operation, repealed the Matrimonial Causes Act (Cap 124). As a result of the repeal of the Matrimonial Causes Act, the relevant articles of the Civil Code of Seychelles now deal with financial provision and property adjustment orders, inter alia. It is unnecessary for me to address the provisions of the Civil Code of Seychelles that deal with financial provision and property adjustment orders in light of the issue to be determined in the appeal. The relevant provision of the Civil Code of Seychelles applies to this case and not the Matrimonial Causes Act. 16. Further, section 9(4) of Act 24 of the Civil Code of Seychelles (Consequence of Enactment) Act 2021 stipulates: "unless expressly repealed, rules made under repealed Acts continue in force to the extent that they are not inconsistent with the provisions of the Civil Code of Seychelles Act, 2002 (Act 1 of 2020)". Under this transitional and saving provision, the Matrimonial Causes Rules continue to be in force as if made under the Civil Code of Seychelles. 17. Rule 4(1) of the Rules requires the Appellant to file her application for ancillary relief by notice in Form 2 and to set out the ancillary relief claimed. A notice of an application for ancillary relief under rule 4(1)(a), (b), (c), (d) and (e) of the Rules shall also contain a notice to file evidence in accordance with Form 5. It is not for determination in this appeal whether the application for ancillary relief also pertains to any of the mentioned provisions, namely rule 4(1)(a), (b), (c), (d) and (e) of the Rules. 18. Rule 4 of the Rules stipulates — "4. Claim for ancillary relief not included in the petition (1) Every application in a matrimonial cause for ancillary relief where a claim for such relief has not been made in the original petition, shall be by notice in accordance with Form 2 issued out of the Registry, that is to say, every application for:— (a) maintenance pending suit; (b) (c) payment by one party to the marriage to the other party or to any person for the benefit of the other party of periodical payments or for securing such periodical payments; payment by one party to the marriage to the other party or to any person for the benefit of the other party a lump sum of money or for securing such payment; (d) payment by one party to a marriage to any person for the benefit of a relevant child periodical payments or for securing such payments; (e) (f) payment by one party to the marriage to any person for the benefit of a relevant child a lump sum of money or for securing such payment; an order 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; (g) the protection of a party to the marriage or a relevant child; (h) restraining a party to a marriage— (i) (ii) from entering or remaining in any premises or any part of premises including the matrimonial home, where the other party resides or works; from entering the premises of any educational or training institution at which a relevant child is attending. an order for the protection of the property of a party to the marriage or the matrimonial home; an order relating to the occupancy of the matrimonial home; the discharge, modification or temporary suspension of an order made under paragraphs (a) to (j). (i) (j) (k) (2) Unless these rules otherwise provide, every other application in a matrimonial cause or matter shall be made, and any leave or directions shall be obtained, by summons to a judge in accordance with Form 3." 19. I now set out Form 2 (and it is questionable whether it is appropriate to categorise the notice of application as pleadings in the full sense) — "Form 2 (Rule 3(1)) (sic) IN THE SUPREME COURT OF SEYCHELLES IN THE MATTER OF A PETITION BY __________ for __________ (here set out particulars of the matrimonial cause in which the application is made) To ____________________ TAKE NOTICE that the petitioner (respondent) intends to apply to the Court for an order that ____________________(here set out the ancillary relief claimed.) And take notice that the petitioner will be heard on the ____________ at ______________ and should you the said __________________ desire to be heard on the said application you are at liberty to appear to the said application on the said date and time. This notice is issued by ____________________ (name and address of applicant or attorney) ____________________ Dated the __________ day of ____________ 19 ________". (Emphasis is mine) 20. I observe that the written submissions of Counsel for the Respondent, presented in the Supreme Court, did not address the matters that he claimed the Appellant had omitted to state in her application. Hence, it is unclear on what basis Counsel for the Respondent is proposing that Gill v Film Anstalt (2013) SLR 137 applies to his argument. 21. Further, upon reviewing the ruling, it is unclear, as submitted by Counsel for the Appellant, which facts were presented to the Supreme Court, leading it to determine that the application ran afoul of rule 4(1) of the Rules. In other words, the learned Judge did not provide any basis for his conclusion that the application ran afoul of rule 4(1) of the Rules and Form 2. 22. At the hearing of the appeal, we asked Counsel for the Respondent to clarify the argument presented in his skeleton heads of argument with respect to the property adjustment orders claimed because it was not clearly stated. In response, Counsel claimed without more that there was no effective application for ancillary relief because the Appellant had not adequately set out the ancillary relief claimed. I noted that Counsel for the Respondent had not raised this argument in the written submissions presented in the Supreme Court. Additionally, the learned Judge's ruling did not consider this particular point. 23. Ex facie the application, I am satisfied that the Appellant has set out in the application with some particularity the ancillary relief claimed in terms of rule 4(1) of the Rules. ANDRE, JA IN ADDITION TO THE JUDGMENT OF ROBINSON JA [1] I have read the Judgment of my learned Sister F. Robinson JA, and I concur with her decision and order. Notwithstanding her able exposition of the above issues, I wish to address the question of fatality of suits by reason of their being instituted by one procedure contrary to another, to wit, the Appellant instituting proceedings by way of a plaint instead of a petition in terms of Rule 4(1). This Court has addressed this question in past occasions, and both parties cited authorities in support of their positions. These are canvased below. [2] In the case of Quilindo & Ors v Moncherry & Ors (SCA 29 of 2009) [2012] SCCA 39 (6 December 2012), the Appellant’s third ground of appeal was that the case was wrong suited, in that an action to prove paternal descent can only be properly instituted by a plaint whereas in this case it was done by petition. [3] This Court in Quilindo referred to trial Judge Perera’s judgment on this issue as he stated: for individual recovery of in a Civil Court “Stroud's Judicial Dictionary, citing the case of Bradlaugh v Clarke 8. App. Cases 353, defines the term 'action" basically as a generic term meaning right or litigation redress of individual wrong. Hence proceedings under either article 321 or 340 of the Civil Code are for declaration of status and not actions or suits to recover right, which necessarily should commence by plaint and be opposed by a defence so that article 340(3) uses the term action in the generic sense not in the procedural sense as Section 25 of the Code of civil procedure, and that hence, the present not proceedings incompetent.” [Emphasis added] litis contestation. Hence I hold to redress grievances or there would be initiated affidavit petition that and are by [4] The Court further quoted the case of Choppy v Choppy SLR 1956 p162 where it was stated: “I conclude that a party seeking a declaratory relief in respect of paternal descent under Article 340 of the Civil Code, should commence the action by way of plaint. In my view, this is the proper procedure, which must be adopted in all cases of this nature, and failure to follow this procedure meant that the court has no jurisdiction to try the matter.” [Emphasis added] [5] The above Choppy precedent was followed in the case of Medine v Vidot C. S. 266/2004 (unreported). The Court in Quilindo went on in paragraph 24 to lay down the principles it will follow in the event where the parties have proceeded with the wrong suit as in the present case thus: “True the Civil Procedure Code indicates that the matter should be brought by plaint but it also states that where there are other provisions made in law, section 22 does not have to be followed. As we have stated the introduction of English affiliation concepts logically implies English procedural rules. Can we as a Court of Equity (viz sections 5 and 6 of the Courts Act (Cap. 52) deny the Respondents the right to be heard because they have brought the action by petition instead of a plaint when the procedure for the same is not clear? We think not.” [Emphasis added] [6] Finally, the Court in Quilindo concluded with a reference to the Mauritian case of Toumany and anor v Veerasamy [2012] UKPC 13 where Lord Brown, faced with a similar enquiry stated [21 -24]: “The Board has sought in the past to encourage the courts of Mauritius to be less technical and more flexible in their approach to jurisdictional issues and objections ... Let the Board now state as emphatically as it can its clear conclusion on this appeal. In cases like these, where mistakes appear in documentation as which particular jurisdiction of the Supreme Court has been involved, those mistakes should be identified and corrected without penalty unless they have genuinely created a problem) as soon as practicable and the court should proceed without delay to deal with the substantive issues raised before it on the merits.” [Emphasis added] [7] The Court in Quilindo stated that this analogy could be brought to that case and held as follows: “No prejudice whatsoever was suffered by the Appellants by the proceedings being initiated by petition instead of plaint. In fact the issue was not raised until at the close of the Appellant's case. Lord Brown considered these technicalities a blot on the record of Mauritius for the fair administration of justice. We do not need to fall in the same trap…. We are of the view that in affiliation proceedings until and unless procedures and forms of pleadings are clearly indicated, an applicant cannot be denied the right of hearing for want of proper pleadings. For the moment it would appear that either a plaint or a petition is acceptable as proper pleadings by which such action might be commenced. The same analogy can be brought to this case.” [Emphasis added] [8] This principle was echoed in the case of Ramkalawan v Agency of Social Protection [2016] SCSC 88 where an application for an order of discovery under Norwich Pharmacal principles was brought. Though unknown to the Seychelles Civil Code of Procedure, Norwich Pharmacal orders in England are commenced by originating summons. The Respondent objected alleging procedural irregularities of the application. Holding that the objection could not be sustained, the Court in paragraph 20 noted as follows: “I am loathe to allow a departure from procedure when this is clearly established by rules but there are some circumstances where procedures to be followed are not entirely clear. In such cases, as Domah JA has pointed out in Ablyazov v Outen & Ors (2015) SLR 279: ‘…procedure is the hand-maid of justice and should not be made to become the mistress even if many hand-maids would aspire to become mistresses.’” [Emphasis added] [9] From the preceding paragraphs, this Court in Quilindo came to a number of deductions: Firstly, the Court was clear on the authority of Choppy v Choppy that the proper procedure to institute the present suit is by way of a plaint, not by petition. Second, the Court went on to trace the history of the development of the civil procedure and the introduction of English procedural rules, thus in the process causing the law not to be so clear cut. That with that scenario, and the Court being a Court of Equity [per sections 5 and 6 of the Courts Act], it would not leave litigants to flounder without assistance where they have brought an action by petition instead of a plaint. The Court’s answer to this question was an emphatic yes that it will come to the aid of litigants in such situations. Third, the Court held that where no prejudice is suffered by the parties in instituting a petition instead of a plaint, that these technicalities should not stand in the way of the proper administration of justice. [10] Another important case which came before this Court is that of Jacintha Volcere & Others v The Attorney General & Others (SCA MA 06/2024). The Appellants had approached the court a quo by way of Plaint. The Respondents raised this as a point of law to the effect that the suit was improperly brought. On appeal as Ground No. 4: the appellant stated: “The learned judge despite having commented that the form and procedure do not deny justice, erred in holding that only a Petition is the proper was of pleading as against the Appellant’s Plaint while overlooked the latest decided cases of the Seychelles Court of Appeal in our jurisdiction that a Plaint does not cause any prejudice and or suffering to the other party with the nature of the Plaint or Petition as the case may be. The learned Judge ought to have held that the Plaint is the proper way seeking declaratory relief.” [11] In his decision on this point, the learned trial Judge in addressing the issues as to whether a case for nullity of marriage can be made by plaint, observed that there is already settled law for which the case of Choppy v Choppy is most prominent which emphasized that such suit must be by way of petition. Noting that the Court takes great care to ensure that justice is done to the parties and must as much as practicable not let procedures and form deny the litigants justice, however the trial Judge insisted that courts should be careful that pleadings are adequately and clearly drawn up and proceedings are effectively managed so as to not waste the litigant’s resources on some unattainable principles and objectives. [12] In the present proceedings, the Appellants challenged the above finding of the learned trial judge. Allowing the appeal, this Court in Jacintha Volcere reiterated that if the correct form is by way of application, then a Plaint would be an incorrect form. The Court pointed out however that even with the case of Choppy v Choppy where the Court made a similar finding on the procedure to be adopted, the Court still proceeded to determine the merits of the case. The Court declared that: “Therefore, a court can still hear the merits of the case in an action of nullity of marriage even when the form is, admittedly, wrong. This is in line with recognising that substantive justice is far more important that procedural justice, and parties must be afforded the opportunity to present their cases without unnecessarily hindering them by procedural shackles.” [Emphasis added] [13] Another observation made in paragraph 38 in the case of Jacintha Volcere is that while the Court in Choppy v Choppy made a finding that the form of the suit was not in accordance with the Matrimonial Causes Rules, it did not dismiss the appeal on that account. Instead, it drew more attention on the standing of the parties and dismissed the case on that basis. There was never a clear pronouncement on whether the form makes the case fatal or not. [14] Thus, the equity rationale in Quilindo, the non-pronouncement in the case of Choppy (and subsequent enquiry into the merits of the case, the pronouncement that substantive justice is weightier than procedural issues in Jacintha Volcere, it is clear that even though the form used may have been wrong, the courts in the matter of this question have more than not given the errant litigant the benefit of a doubt and granted the petition sought, so long as the party’s suit has merit. [15] Another case exemplifying the significance of courts paying more attention to substance than form (and serves to elucidate the point I am trying to make), is that of P. K. Palanisamy v N. Arumugham & Anr., reported in 2007(9) SCALE 197 where the court held in that case that mentioning of a wrong provision does not disentitle a person for relief, if entitled otherwise. The well settled provision of law is evident from para 13 of the said judgment reproduced as under: "13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would 15