The Estate of the Late Andre Delhomme v The Attorney General (SCA11/2025) and The Attorney General v The Estate of the Late Andre Delhomme And (SCA 12/2025) [2025] (Arising in CS 79/2020) (15 December 2025) (2025) [2025] SCCA 34 (15 December 2025)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search [{"id": "h2_1", "type": "h2", "title": "Background facts", "children": []}] GUNESH-BALAQHEE JA (Sharpe-Phiri JA, Sichinga JA concurring) 1. The Estate of late Andre Delhomme (“the Estate”) is the appellant in SCA 11/2025 and the Attorney General (“the AG”) is the appellant in SCA 12/2025. They are both appealing against a judgment of the Supreme Court dated 28 March 2025 whereby the Supreme Court ordered the AG who was representing the Government of Seychelles to pay the Estate the sum of SCR 1.5 million with interest at the rate of 40a per annum from the date of the filing of the suit, i.e., 24 August 2020, up to the date of payment. Background facts 2, The undisputed facts giving rise to the present case are as follows: by a deed of sale dated 13 December 1979 and transcribed in Vol 64 No. 157, late Andre Delhomme and Madeleine Hery (“the vendors”) agreed to sell, and the Government of Seychelles (“the Government”) agreed to buy, Coetivy Island for the price of SCR 4 million. According to the deed of sale, the vendors acknowledged receipt of SCR 2.5 million and the Government undertook to pay the outstanding sum of SCR 1.5 million as follows: SCR 300,000 by 15 January 1980; SCR 300,000 by 15 February 1980; SCR 300,000 by 15 March 1980; SCR 300,000 by 15 April 1980; and SCR 300,000 by 31 May 1980. The parties to the deed agreed that, in the event the Government failed to make any two consecutive payments, the outstanding sum or the part thereof remaining would immediately become due and payable. The Government also granted the vendors a seller's privilege under Article 2103 of the Civil Code of Seychelles (“the Civil Code”) to secure payment of the sum of SRC 1.5 million. The Estate brought proceedings against the AG in his capacity as representative of the Government of Seychelles before the Supreme Court and alleged that the AG had failed, refused and neglectGd to pay to it the sum of SCR 1.5 million. It sought the following orders: an order ‹declaring that the contract of sale had become “frustrated, null and void' by reason of the failure of the AG to pay to it the balance of the purchase price in the sum of SCR 1.5 million, an order for rescission of the contract of sale, cancellation of the registration of Coetivy Island in the name of the Government, an order directing the Land Registrar to rectify the Laiad Register by cancelling, deleting and replacing the name of the Government as the i‘egistered owner of the island and replacing it with the name of the Estate. In the alternative, the Estate sought an order for the AG to pay to it the sum of SCR 1.5 million together with interest at the commercial rate of 12% from the date of the contract of sale (13 December 1979) until the date of judgment. A plea in /imine litis was raised by the AG which is to the effect that the action is based on a breach of contract and pursuant to Article 2271 of the Civil Code, which provides for a time bar of 5 years for personal actions, the action is time barred. The case was heard by the Supreme Court both on the plea in /imine litis and on the merits. However, the Supreme Court in a judgment dated 18 May 2021 ([2021] SCSC 227 (18 May 2021) dismissed the case solely on the plea in limine litis. On appeal, the Court of Appeal ([2023] SCCA 16 (26 April 2023)) quashed the decision of the Supreme Court dismisslng the appellant's action in /imine litis and remitted the case to the Supreme Court for the learned Judge to deal with the action on the merits only. 11, The Supreme Court proceeded to hear the case anew and delivered its judgment which is the subject of the present appeal. It is apposite to note that when the case was being heard on the merits by the Supreme Court, Mr. Elizabeth, Counsel appearing for the Estate informed the Court that it was abandoning the first prayer, namely the order for a declaration that the contract of sale had become “frustrated, null and void” by reason of the failure of the Government to pay to it the balance of the purchase price in the sum of SCR 1.5 million, so that the Supreme Court only had to detennlne whether to grant the following two prayers: an order for rescission of the contract of sale, cancelling the registration of the island of Coetivy in the name of the Government of Seychelles and ordering the Registrar of Lands to rectify the Land Register by cancelling, deleting and replacing the name of the Government as the registered owner of the island and replacing it with the name of the Estate; or in the alternative, an order for the Government of Seychelles to pay to the Estate the sum of SCR 1.5 million together with interest at the commercial rate of 12% from the date of the contract of sale (13 December 1979) until the date of judgment. Findings and Order of the Supreme Court The Supreme Court found that the Estate had proved the debt of the Government, that the latter had failed to prove that it had paid the debt in accordance with Article 1315 of the Civil Code and that the Estate had accordingly made out its case on a balance of probabillties. It ordered the AG to pay to the Estate the sum of SCR 1.5 million with interest at the rate of 4% per annum from the date of the filing of the suit, i.e., 24 August 2020 up to the date of payment. Grounds of appeal The Estate is appealing against the judgment of the Supreme Court on 5 grounds which are subdivided into a number of sub-grounds, while the AG is appealing against the judgment on four grounds. The Estate is not challenging the Supreme Court's findlng that it had established its case against the Government but is challenging the orders made by the Supreme Court, whereas the AG is challenging the finding that the Estate had established its case on a balance of probabilities and is seeking a dismissal of the Estate's claim. I therefore find lt appropriate to first deal with the appeal of the AG whose grounds of appeal are as follows: “(i,l The Learned Trial Judge erred in law and misdirected her on the provisions of the Civil Code of Seychelles pertaining to prescription in holding that the right of action is not prescribed in terms of Article 2271(1) o[the said Civil Code of Seychelles which led to the judgment dated 28/03/25 to be in contravention of the said provisions of Article 2271(1) o/ the said Civil Co Je, The Learned Trial Judge erred in law and misdirecteJ her on the provisions of Article 1315 of the Civil Code of Seychelles in holding that the Plaintiff had proved the case on the basis of the said provisions under Article 1315,- The Learned Trial Judge erred in law and in fact by holding that the Plaintiff had proved the case, where the Learned Judge had in fact made findings to the contrary leading to the conclusion that the Plaintiff's case has not been proved on a balance of probabilit y where the LearneJ Judge had found that the evidence on behalf of the Plaintiff regarding the non-payment of the purchase price is less than convincing and that the evidence on behalf of the defence has presented a plausible explanation,’ The judgment is contrary to the weight of evidence presented be%re the Court.” I have duly considered both the oral and written submissions made by the parties as well as the cases referred to by them, but do not propose to recite the submissions in my judgment. I shall first deal with grounds of appeal (ii), (iii) and (iv). Grounds (ii), (iii) and (iv) The above grounds, in a gist, all challenge the finding of the learned Judge that the Estate had established that it had proved that the Government had failed, refused or neglected to pay the Estate the sum of SCR 1.5 million as agreed or at all. The evidence adduced on behalf of the Estate, which was tlae plaintiff in the present case, was from its sole witness, Mr. Hoareau, the agent of the Executrix of tlae Estate, who also stated that he considered the late Mr. Delhomme and his late wife as his parents and tlae Executrix as lais sister. The material part of his testimony with regard to the question as to whether the Government had failed to pay the sum due is as follows: “Q.’ Okay. Now do you 1 how whether this 1.5 million rupees has actually been paid by the Government to the deceased? A.- Truthfully, I cannot telf yau yes ar no but according to what I have read in the transcript it has never been paid.” A perusal of the transcript shows that it consists of the deed of sale, the description of the property and the derivation of title of the late Mr. and Mrs. Delhomme. It is amply clear from the transcript that it did not contain any information as to whether the sum of SCR 1.5 million was paid by the Government as agreed in the deed of sale. In her judgment, the learned Judge stated that two issues arose for her consideration: “{jfirstly, whether the plaintiff has proved ill case to the required degree, which requires an assessment of whether the burden of proof has been di,scharged hy the party who beaFs that burden. Secondly, if the plaintiff has proved its case, whether rescission of the contract of sale should be ordered or alternatively specific per/ormance.” At paragraph 53 of her judgment, the learned Judge stated that “{ion this case, the averment of the plaintiff that ltte sum of SCJt 7, 500, 000 was not paid has to be proved.” After referring to extracts of Dalloz on the burden and standard of proof, at paragraph 58, she rightly stated that the plaintiff alleges that the defendant has not paid the outstandlng sum of SCR 1,500,000. She then made the following findings: “The oral testimony of the plaintiff's sole witness, Mr Hoareau, is not convincing on that score... I agree with counsel for the defendant that the claim that the sum of SCO I,500,000.00 remained unpaid by the Government seems to be founded purely on speculation on the part of Mr Hoareau, and not on any reliable information or evidence. In addition to his oral testimony he has produced the title deed which shows that the defendant had an obligation to pay an outstanding sum of SCR 1,500,000.00, This is obviously not sufficient to show non-payment of the debt by the defendant,” Now, section 12 of the Evidence Act provides that the English law of evidence and practice is to be followed. It reads as follows “12. fing/i,sñ law oJ e.violence and f›raclic‹ to be follo z eJ Exceyl wherc• it i. otherwisc• Provided in thi.s Act or by special lows non in forces in heychelle.s or het'eufter enact‹•d, the Engli,sh law of e»i‹lencc•/'or the time hc•ing shull It is trite law that in any civil proceeding, he who avers must prove. In this respect, it is relevant to refer to to paragraphs 4-03 and 4-04 from Phipson on Evidence, fifteenth edition, chapter 4- Burden and Standard of Proof : “(2) The persuasive burden in civil cases 4-03 So far as the persua.five burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue. In Constantine Line v, Imperial Smelting Corporation. Lord Maugham said.' “The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit probatio. It is an ancient rule founded on considerations of good sense and should not be departed j'rom without strong reasons.” This rule is adopted principally because it is but just that lie who invokes the oid af the law should he the first to prove his case; and partly because, in the nature of things, a negative ie more difficult to establish t/tax an affirmative. The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting, IQ when all the evidence, by whomsoever introduced, is in, the party who has this harden hac nat discharged it, the decision must be against hint. While a judge or tribunal of fact should make findings of fact if they can, in the exceptional case in which they are forced to the conclusion that they do not lmow which side of the decision ought to be, the principle of the burden of proof determines which party should succeed. A striking example of this was The Popi M. The vessel sunk in good weather during a voyage in the Mediterranean as a result of water entering a hole in the shell-plating on her port side and flooding the engine room and holds. Shipowners contended the vessel collided with a submarine, underwriters contended the cause was prolonged weaF and tear of the ship’s hull. The judge thought the submarine explanation was improbable hut more lil ely than the wear anif tear explanation and thus gave judgment for the owners. The House of ords held that in the circumstances the true cause of loss was in doubt and it was one of those rnre cases which fell to be decided on the burden of proof, which lay on owners. Lord Brandon said, in characterising the reasoning of the Judge as that of sherlock Holmes and rejecting it for that reason said.’ “The first reason is one which I have already sought to emphasise as being of great importance, namely that the judge is nat bound always to ineke a finding ane way ar the othc•r with regaFd to the facts overred by the fiarties. He has open /o him the thfrd alternative saying Hot the party an whom the burden af proof lies in relation to any averment made by him has failed ta discharge that barden. No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactoi y state of the evidence or otherwise, deciding on the burden of proof i5 the only just course for hint to take, 4-04 The second reason is that the dictum can only apply when all relevant facts are lmown, so that all possible explanations, except a single extremely improbable one, can ¿Properly be eliminated. That state of affairs does not exist in the present case.' to take but one example, the ship sash in such deep water that a diver’s examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on o balance of prabahilities mast he applied cii/i common sense. It requires a ju Jge of first instance, before he finds that a particular event incurred, to be satisfied on the evidence that it is mare likely ta have occurred thnn not If such a jadge concludes, on a whole series of cogent grounds, that the occurrence of such an event fS extremely improbable, a finding by Aim r/ref it is nevertheless more likely to have occurreJ than not, does not accord »'iiA common sense. ThiS f5 especially sa when ii is apen to the judge to say simply thot the evidence leads him ta doabt whether the event occurred or not, and that the party on whom the burden af proving that the event occurred lies has therefore failed ta discharge such harden.” In deciding which party asserts the afrmative, regard must be had to the substance of the issue and not merely to its grammatical J'orm, which latter the pleaded can frequently vary at will. Moreover, a negative allegation must not be con/used with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the firoof af such allegation rests on him. An alternative test, in this connection, is to stril e out of the record the particular allegation in question, the onus lying upon the party who would Jâil if such a course were pursued. In all but the simplest cases, the burden of the issues is divided, each party having one or more cast ypon him, As will be seen below, the incidence of the hurden of proof in this context is feed either by the substantive law or on the pleadings.” [Emphasis added] It can be gathered from the above that where a party wlao has the burden of proving something does not discharge that burden, the decision must be against him. The Judge always has the option of malting a finding that the party who had the burden of proof has failed to discharge that burden. In determining whether an event occurred on a balance of probabilities, one naust use common sense. If on a number of cogent grounds a Judge finds that the occurrence of an evelit is extremely improbable, he cannot find that it has been proved on a balance of probabilities. It does not matter whether an averment is affirmative or negatlve, 1f it forms an essential part of a party's case, the burden of proof is on him. In its plaint, the Estate, which was the plaintiff, averted that, in breach of the agreement, the defendant, i.e., the Government has failed, refused or neglected to pay the sum of SCR 1.5 million as agreed. As per the above extract from Phipson, the burden of proving the above avenrents was upon the plaintiff. Further, although what was being averred was in fact a negative, i.e., that the Government did not pay the sum of SCR 1.5 million, the true meaning of the rule is that although the allegation was negative, since it formed an essential part of the Estate's case, the proof of such allegation rested on it. Having found that the oral testimony of the plaintiffs sole witness, Mr. Hoareau, was not convlncing on the question as to whether the claim that the sum of SCR 1.5 million had been paid and that the evidence was not sufficient to show non-payment of the debt by the Government, the Judge should have found that the Estate, which had averted that the Government load failed to pay the sum of SCR 1.5 million, had failed to discharge the burden of proof which was cast upon it. The learned Judge also rcfcrred extensively to the French doctrine on article 1315 of the Civil Code which is found under the heading “Proofs of obligations” and which provides as follows: “Article 7375 A person who demands the performance of an obligation must prove it. Conversely, a peFson who claims to have been released from an obligation must prove the payment or the performance that has extinguished the obligation.” The learned Judge stated that, in the present case, the defendant, i.e., the AG denied the above averment but did not aver that it had paid the sum of SCR 1.5 million. She relied on section 75 of the Seychelles Code of ClVil Procedure which is reproduced below and stated that, according to the rules of pleading, what is simply denied is talien to be admitted. Section 75 reads as follows: “75. SP.ule.ment r›f defence. ‹,•‹iiitciitr The .statement of’ Je,f’ence mu,y/ contain a clear anal ‹li.stinct statement of’ the material fact.s on whim:h thr. d‹:fr.ildnnt relies to meet the claim. A mere general denial of’ the plainerff!S claim is not sufficient, Material f’u‹,•t. alleged in they plainl mu.set he di. tins.'tly ‹len red or th‹•y v ill he tul can to he aclmittecl,” It is clear that the learned Judge misdirected herself as to the meanlng of section 75. What the said section provides is that a defendant must aver material facts on which he re1ie8 in support of hls case. He cannot simply plead by demuirer, that is, by denying the averinents in the plaint in toto, If he does so, it will be considered that the facts which have not been specifically denied are admitted. In the present case, the AG specifically denied that it had failed to pay the sum of SCR 1.5 million. In the circumstances, it was Slmply preposterous to conclude that the Estate's averment that the AG had failed to pay the sum of SCR 1.5 million had been admitted. The learned Judge also interpreted the following extract found under paragraph 88 of Dalloz Recueil V° Preuve and Article 1315 of the Civil Code and concluded that since the AG had denied that the sum of SCR 1.5 million had not been paid, he hnd to prove same: “ Il faut cependant bien préciser que lorsque vous parlons de contestation, il s'agit d'une simple dénégation et non d'une preuve contraire. La seule contestation d'un fait allégué suffit à interdire de considérer que ce fait est établi par la déclaration de celui qui se prévaut de son existence. Le fait contesté ne peut être retenu que s'il est prouvé, c'est-à-dire lorsque, par des moyens adéquats, le juge a été convaincu de la véracité de l'allégation. [...]” I do not agree with the learned Judge. What the above extract means, in a gist, is that when we speali of “contestation”, it is a simple denial and not counter-evidence. The mere fact of contesting an alleged fact is enough to prevent it from being considered as established by the declaration of the party who claims its existence. The contested fact can only be accepted if it is proved, i.e., when, through adequate means, the Judge has been convinced of the truth of the allegation. I also find it apposite to refer to paragraph 107 of Dalloz Recueil V° Preuve which sheds light on the test that should have been carried out in the present case. Paragraph 107 reads as follows: “107, Il est classique de tirer de l'article 1315 du code civil le schéma suivant. Le demandeur allègue un fait à 1’appui de sa prétention. Si le défendeur le conteste par une simple dénégation, il appartient au demandeur de faire la preuve de son allégation : actori incuuibit probatio. Lorsque le demandeur a rapporté la preuve qui était exigée de lui, le défendeur peut opposer une exception ,- si celle-ci est déniée par le demandeur, il appartient au défendeur de prouver les faits sur lesquels il fonde 1’exception qu'il allègue .’ reus in excipiendo fit actor. Ainsi au cours du procês, la charge de la preuve peut peser alternativement sur chacune des parties, au fur et à mesure qu'elles alléguent de nouveaux faits .' onus probandi uncumbit ei qui dicit... » It can be gathered from the above extract that the burden of proof can shift during trial. If the plaintiff mattes averments in support of his contention, he has the burden of establishing those averments. It is only after he has established those averrnents that the burden shifts onto the defendant. In the present case, the Estate alleged that the Government had failed to pay the sum of SCR 1.5 million. It is only after it had established Same that the burden of proof would have shifted to the Government. The learned Judge herself correctly stated that the Estate alleged that the AG had not paid the outstanding sum of SCR 1,5 million and found that the oral testimony of the Estate's sole witness, Mr. Hoareau, was not convincing on that score. She also agreed with Counsel for the AG that the claim that the sum of SCR 1.5 million remained unpaid by the Government seemed founded purely on speculation on the part of Mr. Hoareau and not on any reliable information and evidence. She also concluded that the title deed produced by Mr. Hoareau wlaich shows that the AG had an obligation to pay an outstanding sum of SCR 1.5 million was not sufficient to show non-payment of the debt by the AG. However, she misconstrued article 1315 when she found that the Estate simply had to bring proof of the existence of the obligation to pay and since it had established the existence of such an obligation, the AG had the burden of proving that it had discharged its obligation. It is trite law that the burden to prove the case against the defendant on a balance of probabilities lles on the plaintiff. It is only 1f sufficient evidence 1S adduced in support of the plaintiffs claim which if believed would lead to a finding in his favour that the evidential burden shifts onto the defendant to adduce evidence in rebuttal of the plaintiff s case. Given that the learned Judge had found that the Estate, which was the plaintiff in the Supreme Court case, had failed to adduce sufficient evidence in support of its contention that the defendant had failed to pay the sum of SCR 1.5 million, the question of the burden of proof shifting onto the defendant did not arisc. For all the reasons given above, I find that grounds (ii), (iii) and (iv) must succeed. I accordlngly uphold the above grounds. 42. This is sufficient to allow the appeal of the AG in case SCA 12/2025. However, for the sake of completeness, I shall proceed to conslder ground (i). Ground (i) The plea in /iniine litis raised by the AG was worded as follows: “Ex facie the pleadings, the Plaintiff is barred from bringing the cause of action by prescription.” Before the trial Court, it was argued by the AG that the cause of action pleaded in tlais matter is breach of contract and the said cause of action is barred by Article 2271 of the Civil Code which prevents the plaintiff from bringlng an action after five years except as provided otherwise under Article 2262 and Article 2265. The Supreme Court found that the cause of action was time-barred under the prescription period of twenty years provided by Article 2262 of the Civil Code, not under the prescription period of five years provided under Article 2271 (which was in fact the plea in limine litre that had been raised by the AG) and dismissed the case on the plea in limine litre. The Estate was the only party to appeal the first judgement of the Supreme Court ([2021] SCSC 227 (18 May 2021) before the Court of Appeal. One of the grounds of appeal on which the Court of Appeal had to rule was whether the trial Judge erred in law in dismissing the case and in holding that the Estate's actlon was time-barred by the prescription period of twenty years under Article 2262, when same had not been pleaded by the AG and whether the issue was ultra petita, The Court of Appeal found that the above ground of appeal was well taken. It quashed the judgment of the Supreme Court dismissing the plaint on the ground that the action was prescribed for having been filed more than twenty years after the accnlal of the cause of action and remitted the matter to the Supreme Court to be heard on the merits ([2023] SCCA 16 (26 April 2023)), It is significant to note that the Court of Appeal substituted the order made by the trial Judge by an order dismissing the plea in limine litis. The AG, who appeared in person in the present case, argued that it was unfair for the Court of Appeal to have ordered the Supreme Court to consider only the merits of the case as the Supreme Court had failed to adjudicate on the plea in limine litre raised by him, which was that the cause of action was time-barred by the prescription period of five years provided for by Article 2271. The AG argued that since the Court of Appeal quashed the judgment of Supreme Court on the ground that the judgment was ultra petita, it should have remitted the matter back to the Supreme Court for a fresh hearing both on the plea in limine litis and the merits. It was lais contention that it is not because the AG did not appeal against the judgment that he should have been debarred from having an issue raised by him, which through no fault of his was not adjudicated upon by the trial Court, simply dismissed. The Court of Appeal specified that it was remitting the matter back to the Supreme Court to be heard on the merits only. On hearing the case anew, the learned trial Judge stated in her judgment that the Court at first instance was precluded from considering the issue of prescrlption and she did not consider the said issue. She was peffectly entitled to say in her judgment that “this court cannot make any determination on the issue of prescription” as she was bound by the order of the Court of Appeal. Ground (l) is clearly misconceived and it is dismissed. For all the reasons given above, I allow the appeal lodged by the AG against the Estate in case SCA 12/2025. The appeal of the Estate against the judgment It follows from the above that the Estate's plaint should be dismissed. Since the appeal lodged by the Estate agalnst the judgment of the Supreme Court is premlsed on the Supreme Court's finding that the Estate had established its case against the AG, the question of l2onsidering the grounds of appeal of the Estate does not arise. The appeal of the Estate is otiose. I accordingly dismiss the appeal lodged by the Estate in case SCA 11/2025, with costs.