Judge Ellen Carolus dismisses plaint over Coetivy island |19 May 2021

In December 13, 1979, the one party state government bought Coetivy island from the late Andre Delhomme (who in 1948 had inherited the island from his deceased French wife, Myriam Hadee) for a sum of R4 million. In the sale agreement, Mr Delhomme was paid R2.5 million upfront and the R1.5 million was to be paid by monthly R300,000 installments. Through a written hypothesis, in favour of Mr Delhomme, the government was to return the island to him in default of paying the outstanding balance.

In his claim set before the court in 2020, Alain Hoareau, heir to Delhomme, had said that the government had not paid the remaining balance and therefore is liable to return the island to the family.

A judgement was made yesterday in a closed session at the Supreme Court.

In her final decision Judge Ellen Carolus explained that the cause of action in the present case accrued on February 15, 1980 and proceedings commenced with the filing of the plaint on August 24, 2020. Forty years have elapsed between the accrual of the cause of action and filing of the plaint. No evidence has been brought by the plaintiff of the occurrence of any event which may have interrupted prescription which in any event was not raised by the plaintiff.

“In his testimony Mr Hoareau, the sole witness for the plaintiff, admitted that he had no evidence either that Mr Delhomme made any demand to the government for payment of the outstanding sum, or that the government had acknowledged any debt due by it to Mr Delhomme. I therefore find that the present action, having been filed more than 20 years after the accrual of the cause of action, is prescribed.

“Having found that the action is prescribed, I decline to consider the matter on the merits as to do so would be purely an academic exercise in the circumstances,” said her Lordship before dismissing the plaint.

Speaking to the press after the judgment, Mr Hoareau expressed his dissatisfaction over the decision that judge Carolus had taken.

“Many things were not taken into consideration such as the years that my family had suffered under the dictatorship of Albert Rene, and the abuse that my parents faced into selling their land,” he said.

He added that he plans to appeal the case as he believes that they are the rightful owners of Coetivy island.

Steven Knight, who was representing the government in the matter, stated that when the land was sold in 1979, Andre Delhomme’s son was not aware about contractual arrangements made by the government and his late father so during the cross examination he acknowledged that his father received R2.5 million, however he was not aware which account received this payment.

“It is up to the family to go and check which bank account the money was transferred into, and if the money was not paid then they can come and bring evidence. They cannot expect the government to go and waste taxpayers money to conduct this investigation on behalf of the family,” said Mr Knight.

He clarified by noting that in the law it is up to the plaintiff to provide evidence against the defendant.

“No one knows if the outstanding balance was settled or not as the family has provided no evidence,” he said.

The lawyer for the plaintiff, Frank Elizabeth, said that he was not satisfied with Judge Carolus' ruling.

He stated that her Lordship did not see the necessity in this case as she stated that the prescription period had expired 20 years ago and based on that she decided to dismiss the case 

“I refute the claim made by Mr Knight because the government should have been able to prove that they paid their debt, in this case the government should have brought the proof of payment,” he said.

The attorney added that they will bring this case to the Court of Appeal as they will go before three judges and decide if the judgement will be upheld or not.

Mr Elizabeth further added that they cannot prove that Mr Delhomme was coerced into selling his land due to political pressure at the time, adding that the reason it took 40 years to bring this claim to court was because in his time Mr Delhomme was persecuted and had to emigrate to France.

Mr Elizabeth called upon the new government to sit down with the family and try to mediate the situation as they have been victimised.

Christophe Zialor