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TWOMEY CJ

RULING

The Writ of Injunction shall subsist until the determination of the suit in Civil Side Number 06 of2015 in this matter.

The Registrar of Lands and the Director of the Seychelles Licensing Authority are with service ofthese orders notified of the Court's Orders.

An injunction prohibiting the Respondent and any other person from transferring Parcels H ,H , H H and H and the cars with registration numbers S , S , S ,S S , S , S , S S , S , S2 S , S , S ,S ,S3 33 82 69 S , S3 is issued.

ORDER

Before:Summary:Heard:Delivered:

L v L MA81/2020 arising in DV56/2020 [2020] SCSC ~l(26 June2020)Twomey CJApplication for injunction pendente lite17 June 202026 June 2020

Neutral Citation:

RespondentD L(rep. by Vanessa Gill)

and

PetitionerO L(rep. by Somasundaram Rajasundaram )

In the matter between:

Reportable[2020] SCSC ~4 \MA81/2020(arising in DV56/2020)

SUPREME COURT OF SEYCHELLES

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[7] The Respondent has raised procedural matters, which she submits would bar the issue of

the injunction. In particular, she submits that an injunction is only granted if the main suit

contains a similar prayer to the interlocutory application, that is, that the Petitioner in the

[6] In her affidavit the Respondent has accepted signing the post nuptial agreement but claims

to only have had sight of its contents recently. She admits however, that she did not own

anything but various loans were taken in her name for the business and that she has many

financial commitments in this respect to honour. She also avers that she has sold only one

vehicle.

[5] He also avers that he fears that unless restrained by an injunctive order the Respondent

would liquidate his share in the properties as described and that he would suffer greater

hardship than the Respondent.

[4] He further avers that despite letters of notice and warnings being given to the Respondent,

she has already sold two cars and that in the event ofthe divorce proceedings being delayed

the Respondent may alienate the other properties in which he has an interest and which he

has fully set out in the Schedule to his application.

[3] In his affidavit supporting the application, he avers that in the post nuptial agreement signed

by the parties on 2 October 2018 he has set out the properties acquired by the Respondent

from funds that he has supplied and that in the event of the marriage breakdown the

remedies available to the parties.

[2] The Petitioner has in the instant application applied for an interim injunction to restrain the

Respondent from transferring five immoveable properties namely Parcels

4and movables, namely twenty-one cars with registration numbers

in which he depones that he has an interest.

[I] The Petitioner has tiled a petition for divorce against the Respondent which suit is to be

heard on 15 July 2020.

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[12] With respect to the application of the post-nuptial agreement and the time frame for its

operation, 1 find that it will necessarily be triggered if the divorce is granted

notwithstanding that the parties may not have lived apart for a period of nine months.

However, with respect to matrimonial properties, nothing in the postnuptial agreement

precludes a party to the marriage applying for the conservation of the matrimonial property

pending the hearing of the divorce.

[I I] r have considered the submissions of both parties together with their affidavits. On the

issue of whether an application for an interlocutory injunction can be entertained by the

Court in a divorce petition where the only prayer therein involves the dissolution of the

marriage, r find that the provisions of the Matrimonial Proceedings Act, namely section

20, make it clear that remedies by way of financial relief or claims in property can only

be made on the granting of the decree nisi and thereafter. The inference therefore is that

the main suit is a precursor to the ancillary relief but is part of the same matter. The

application for an interlocutory injunction is therefore admissible.

[10] She further submits that an interlocutory injunction is an equitable remedy only available

where there is no legal remedy and other such remedies are available. In her submission

the Petitioner could be compensated by way of monetary relief and lor by damages.

[9] On the merits of the case, the Respondent has submitted that although it is not the role of

the court at this initial stage to determine the facts deponed in the affidavits it ought to take

into consideration the fact that the car hire is registered in the Respondent's name.

[8] She has also submitted that the postnuptial agreement on which the interlocutory injunction

is also based does not come into operation until there is a separation of nine months or a

dissolution of marriage. The Respondent further submits that the principles for the granting

of an injunction have not been satisfied in the present application.

main suit has only prayed for a dissolution of the marriage and nothing else. He would

necessarily, she submits, had had to have applied for the division of matrimonial property.

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[17] Further in D'ofJay v Attorney-General (1975) SLR 118, it was held that where a plaintiff is

asserting a title or right, an interim injunction should be refused if the existence of such

title or right was open to serious doubt and that an interlocutory injunction should only be

granted if it is necessary to protect a plaintiff against irreparable injury which could never

be adequately remedied or atoned for by damages. Where a doubt exists as to the

applicant's right, the burden of proof is upon him to show that the inconvenience he will

(i) whether more harm would be done by granting or refusing the injunction;(ii) whether the risk ofinjustice is greater if/he injunction is granted than the risk0/ injustice if it is refused; and(iii) whether the breach ofthe appellant's rights would outhold the rights 0/othersin society.

[16] The Court in Dhanjee versus Electoral C0I11117ission,2011, SLR 141 interpreted the

balance of convenience test, to include the consideration of the following factors;

(i) whether there is a serious issue to be tried;(ii) whether damages would be inadequate to address the harm caused by the grantofthe injunction; and(iii) whether on a balance ofconvenience it would bejust to grant rather than denythe injunction(See Pest Control v Gill (1992) SLR 177, Techno international vGeorge(unrepol1ed CS147 0/2002), Dhanjee v Electoral Commission (2011) SLR141, Lefevere v Beau Vallon Properties Ltd & Ors (MA 154/2018) [2018] SCSC617 (J 6 October 2018).

[15] The jurisprudence constante in Seychelles in respect of injunctions is to the effect that

injunctions are equitable in nature and in applications for the same the Court is guided by

three considerations:

[14] I do not see what other effective legal remedies are presently available to the Applicant in

the present circumstances.

[13] On the merits, I note that orders for interlocutory injunction are made in pursuance of the

provisions of Sections 121, 122, 123 and 304 of the Seychelles Code of Civil Procedure

(Cap 213) as read with the provisions of Sections 5 and 6 of the Courts Act (Cap 52).

Twomey CJ

[22] The Registrar of Lands and the Director of the Seychelles Licensing Authority are with

service of these orders notified of the Court's Orders.

[21] The Writ ofInjunction shall subsist until the determination of the suit in Civil Side Number

5601'2020 in this matter.

[20] r therefore issue an injunction prohibiting the Respondent and any other person from

transferring Parcels and the cars with registration

numbers

[19] The matrimonial property ought to be preserved at all costs until the final determination of

the parties' shares therein.

[18] On the face of the pleadings and the affidavit and in the light of the authorities above 1am

satisfied that the Applicant appears to be have a bona fide claim against the Respondent in

the main suit. I am further satisfied that unless the Court grants the interlocutory injunction

as sought by the Applicant in this matter, the Applicant will suffer substantial and

irreparable loss, hardship and inconvenience in the event that judgment is given in his

favour.

suffer by a refusal is greater than that which the defendant will suffer by the grant of the

injunction.