Seychelles Code of Civil Procedure
- Commenced on 15 April 1920
- [This is the version of this document as it was at 1 December 2014 to 30 June 2021.]
1. Short titleThis Act shall be called the Seychelles Code of Civil Procedure.
2. DefinitionsIn this Act, unless there is anything in the subject or context repugnant thereto, the words hereinafter mentioned shall have or include the meanings following:"attorney" means an attorney at law and includes a barrister when acting as an attorney at law;"cause" shall include any action, suit or other original proceedings between a plaintiff and a defendant;"Chief Justice" means the Chief Justice of Seychelles;"Civil Code" means the Civil Code of Seychelles;"dies non" means a public holiday and includes a day on which the registry is closed;"Judge" means a Judge of the Supreme Court and includes the Chief Justice and a Puisne Judge;"judgment creditor" means a party to a cause or matter in whose favour a judgment or order of the court has been give;"judgment debtor" means a party to a cause or matter against whom a judgment or order of the court has been given;"matter" shall include every proceeding in the court not in a cause;"Mauritius Ordinance" means an Ordinance of the Legislature of Mauritius as extended or applicable to Seychelles;"party" includes every person served with notice or attending any proceeding;"Registrar" means the Registrar of the Supreme Court and includes the Assistant Registrar."Registry" means the registry of the Supreme Court;"suit" or "action" means a civil proceeding commenced by plaint;"Supreme Court" means the Supreme Court of Seychelles;"the court" means the Chief Justice or a puisne judge sitting in court or in chambers.
Sittings of Supreme Court
3. Supreme Court may sit at any timeSittings of the Supreme Court may be appointed and holden at any time or times, whether in term or vacation, at the discretion of the court.
4. Terms*There shall be three terms in each year for the despatch of civil business in the Supreme Court, the first of which terms shall commence on the fifteenth day of January and end on the fourteenth day of April; the second shall commence on the fifteenth day of May and end on the fourteenth day of August; and the third shall commence on the fifteenth day of September and end on the fourteenth day of December. Whenever any of such periods shall commence or end on a dies non, the term shall commence on the day following or end on the day preceding such dies non, as the case may be.
5. Vacation sittingsThe Supreme Court may sit during vacation either for the further hearing of part heard cases, or for the hearing of any cause or matter of an urgent nature.
6. Applications for hearing in vacationApplication for the hearing, during vacation, of a cause or matter on the ground of urgency, shall be made to a Judge in chambers, supported by an affidavit setting out the facts of the case and the grounds of urgency. Notice of such application shall be given to the opposite party
7. Appeals from lower courtsDuring vacation, the Supreme Court shall sit for the disposal of appeals from decisions of magistrates or of Justices of the Peace.
8. Terms may be altered by rules of courtThe Chief Justice may, by rules made under this Act with the approval of the President, alter the number of terms to be held in each year, or the days on which the terms shall commence and end.
9. Office hoursThe registry shall be open for the dispatch of business, whether in term time or during vacation, every day from 8 a.m. until 12 noon and from 1 p.m. until 4 p.m., except on Saturdays and public holidays, unless in any particular case the Chief Justice shall direct otherwise.
10. Books to be kept by the RegistrarThe Registrar shall keep the following books in accordance with the forms set out in Schedule A—
11. Registrar to pay receipts daily to treasurerThe Registrar shall pay to the Principal Secretary of the Ministry of Finance daily, on the day next after that on which they are received, the total amount of all fees, fines and forfeitures accruing to the Republic and received by him. If on account of illness or other unavoidable cause he is unable to pay such amounts to the Principal Secretary of the Ministry of Finance on the day next after that on which they were received, or if such next day is a dies non, he shall pay them on the day next following.
12. Quarterly return of out-standings to Auditor GeneralThe Registrar shall at the commencement of each quarter tender to the Auditor General a return of all fees, fines or forfeitures receivable by him, which are due to the Republic and are outstanding.
13. Custody of recordsThe Registrar shall have the custody of the records of the court and shall carry out the duties assigned to him by this Code or any other law in force for the time being and in regard to the time and manner of carrying out such duties he shall conform to any instructions which he may receive from the Chief Justice.
14. Clerks of the registryThe Assistant Registrar and the clerks of the registry shall be under the direction of the Registrar and shall carry out all orders in regard to their work given by him, subject to the supreme control of the Chief Justice.
15. Absence of RegistrarIf both the Registrar and the Assistant Registrar are temporarily absent or unavoidably prevented from carrying out their duties, or any of them, the Judge may direct one of the clerks of the registry to carry out any of such duties, and any acts performed by such clerk when so directed shall be as valid and effectual as if done by the Registrar or Assistant Registrar.
16. Weekly cause listThe Registrar shall, in conformity with instructions or directions which he may receive from the Chief Justice, prepare a weekly cause list of all causes and matters set down for hearing in court during the week and shall affix such cause list in a conspicuous place at the entrance of the Supreme Court not later than 9 a.m. on Monday in the week during which such causes and matters are to be heard.
17. Taxation of bills of costsThe Registrar shall tax all bills of costs when requested to do so by any party to any cause or matter, or in the case of bills of cost between solicitor and client, by any person interested.
18. Security to be given by RegistrarThe Registrar shall give security for five thousand rupees and the Assistant Registrar for two thousand rupees, respectively, for the due and faithful performance of their duties and for the due accounting for the payment of all monies received by them in performance of their duties.
19. Ushers' execution bookThe ushers shall keep a book in the registry called the usher's execution book in accordance with the form in Schedule A and each usher shall enter therein every warrant of execution which he has been required to execute together with the other particulars specified in such form in the several columns thereof.
20. Payment of receipts to RegistrarEvery usher levying or receiving any money by virtue of any process of court shall, within three days after the receipt thereof, pay the same into the hands of the Registrar.
21. Liability for neglectThe ushers are liable in damages for neglect in levying execution or for fraud in relation thereto, at the suit of the party prejudiced.
Commencement of action
22. Suits, in what court to be broughtAll civil and commercial suits, actions, causes and matters shall be brought before the Supreme Court, save in cases where other provisions is made by law.
23. Suits to be commenced by plaintEvery suit shall be instituted by filing a plaint in the registry.
24. Plaint must be signedEvery such plaint shall be signed by the plaintiff's attorney, or if the plaintiff sues in person, by the plaintiff.
25. Copies of plaintThe plaintiff shall in addition file in the registry as many copies of the plaint and notices of documentary evidence as there are defendants.
26. Particulars of plaint to be registeredOn receipt of the plaint the Registrar shall enter in the register of civil and commercial suits the names and places of residence of the parties, the nature of the action and the relief sought.Such entries shall be numbered in every year according to the order in which the plaints are received and the suit shall bear the same number.
27. Plaint noteAt the time of entering the plaint, the Registrar shall give to the plaintiff, or his attorney or agent, a note signed by the Registrar and under the seal of the court, according to the form set forth in Schedule C; and no money shall be paid out of court to the plaintiff, or his attorney or agent, except on production of such note:Provided that in the event of such note being lost or destroyed, no money shall be paid to any person unless it be proved to the satisfaction of the Registrar that the person applying is the plaintiff or his agent authorised in that behalf.
28. Prepayment of feesNo proceeding shall be had and no process shall be issued by the Registrar, unless upon prepayment into court of the fees established by law in respect of such proceeding or process.
29. Claims by or against the Government
Issue and service of summons
30. SummonsWhen the plaint has been entered in the register of civil and commercial suits, the Registrar shall issue a summons, under the seal of the court and signed by him, to each defendant calling upon him to appear in the Supreme Court at a date and time therein stated, to answer the claim. A copy of the plaint shall be served with each summons.
31. Commencement of suitThe summons to appear to a plaint shall be dated on the day on which the suit was entered, and such date shall be the commencement of the suit.
32. Date of appearance of defendantThe day for the appearance of the defendant shall be fixed by the Registrar so as to allow the defendant sufficient time to enable him to appear and answer on such day, according to the distance of defendant's place of residence from the court and to the circumstances.
33. Minimum time for appearanceThe time fixed for appearance shall not be earlier than forty eight hours after the service of the summons, except by leave of a Judge. When such leave is granted the words "By leave of the court" shall be written on the face of the summons.
34. Mode of serviceService of the summons shall be effected by delivering or tendering a copy thereof to the defendant personally, or if he cannot be found, to any member more than sixteen years old of the family of the defendant residing with him, or to any agent or manager of the defendant at the place where he carries on his business.
35. Service on agentIf the defendant have an agent empowered to accept service on his behalf, service on such agent shall be sufficient.
36. Service on GovernmentIf the defendant is the Government of Seychelles service shall be effected by delivering a copy of the summons to the Attorney General in his office.
37. On person dwelling in asylumWhen a defendant is employed and dwells in any mental hospital or other public asylum, it shall be sufficient service to deliver a copy of the summons to the superintendent of such hospital, who shall cause the same to be delivered to the defendant.
38. On police officersWhen a defendant is employed in a police force, it shall be sufficient service to deliver a copy of the summons to the Commissioner of Police who shall cause the same to be delivered to the defendant.
39. On person on board shipWhen a defendant is living or serving on board any ship, it shall be sufficient service to deliver a copy of the summons to the person on board who is at the time of such service apparently in charge of such ship, and such person shall cause the same to be delivered to the defendant.
40. On person in prisonIf the defendant is in gaol, it shall be sufficient service to deliver a copy of the summons to the Superintendent of Prisons who shall cause the summons to be delivered to the defendant.
41. On a partnershipIf the defendant is a partnership(société) and the suit relates to a partnership transaction or to an actionable wrong in respect of which relief is claimable from the partnership(société), service may be made either
42. Substituted serviceIf the defendant cannot be found and there is no agent empowered to accept service on his behalf, nor any other person on whom service can be made, or if the defendant is keeping out of the way for the purpose of avoiding service, it shall be sufficient service to affix the summons on the outer door of the house or place of business of such defendant and a copy thereof in some conspicuous part of the Court House;
43. Court may declare summons servedWhen service has been made in the manner mentioned in section 42 and the defendant does not appear on the day stated in the summons, the court may either, after making such inquiry as appears, to be necessary, declare the summons to be served and proceed in the absence of the defendant, or give such further order as to service as to the court may seem fit.
44. Ushers to make return of service to RegistrarAll summonses, notices, orders or other process of court required by this Code or any law in force or hereafter enacted to be served by the ushers of the court, shall within twenty four hours after such service be returned to the Registrar and the usher by whom such service has been effected shall certify thereon over his signature the day and hour of service and the place and the manner of service.
45. Service of other processAll summonses to witnesses, orders of the court and other process requiring to be served, may be served in the same manner as summonses to appear to a plaint, except where a special mode of service is directed by this Code or by any other law in force.
46. No service on dies non without leaveNo summons, notice or other process shall be served on a dies non, or between the hours of six in the evening and six in the morning, except in case of urgency, with the leave of a Judge.When such leave is granted, the words "By leave of the court" shall be written on the face of the summons, notice or other process. A dies non shall be counted in any computation of time required by this Code, unless any such day shall be the last of such time, in which case it shall be excluded from such computation.
Service out of the jurisdiction
47. No service out of the jurisdiction without leave of court. Mode of service out of the jurisdiction. Notice in lieu of service
48. When service out of the jurisdiction is allowedThe issue and service out of the jurisdiction of a summons may be allowed whenever
49. Application for leave to serve out of the jurisdictionEvery application for leave to issue and serve a summons on a defendant out of the jurisdiction shall be supported by affidavit stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country the defendant is or probably may be found, and whether such defendant is a citizen of Seychelles or not, and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Code.
50. Time for serviceAny order giving leave to effect such service shall limit a time after such service within which such defendant is to appear to answer the claim. The time so limited shall not(unless the judge see fit to order otherwise), in the first instance, exceed
51. Setting aside serviceThe defendant before appearing shall be at liberty without entering a conditional appearance to serve notice of motion to set aside such service, or to discharge the order authorising such service, or to enlarge the time within which an appearance is to be made.
52. Substituted service, out of jurisdictionThe summons shall be served personally on the defendant; but the court on being satisfied that reasonable efforts have been made to effect personal service thereof may, on the application of the plaintiff, make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may seem just.Such application shall be supported by an affidavit setting forth the grounds upon which the application is made.The order made under this section shall specify the time after the substituted or other service has been effected, or after the publication of the notice by advertisement or otherwise, within which the defendant is to appear to answer the claim: such time shall be limited as specified in section 50.
53. Procedure when defendant does not appearAfter the time limited by an order made under section 50 or section 52, the court, on proof being shown that the said order has been complied with and that the defendant has not appeared to answer the claim, may direct that the plaintiff shall be at liberty to proceed in the suit in such manner and subject to such conditions as to the court may seem fit:Provided that the plaintiff shall prove his case in such manner as the court shall direct, and the making of such proof shall be a condition precedent to the plaintiff obtaining judgment.
54. Suits begun by service within the jurisdiction may be continued by leaveWhen a defendant who has been personally served with a summons in Seychelles quits Seychelles without leaving an attorney or agent to make an appearance for, or represent and defend him, it shall be lawful for the court, after the time within which the defendant so served within the jurisdiction should have appeared to answer the claim, to order that all ulterior orders, summonses, notices and process be not served personally but be served at the defendant's last place of abode or business in Seychelles; and such service shall be sufficient to entitle the plaintiff to proceed in the action as provided in section 53.
55. Election of domicile for serviceIn any case where a defendant who is outside the jurisdiction of the Supreme Court has in Seychelles no attorney or agent duly empowered to make an appearance for, or represent and defend him, but has in the particular contract on which he is sued, specially elected a domicile for service, service at such domicile shall, for the particular matters or things for which the domicile was elected, be sufficient not only for the summons, but also for all ulterior orders, summonses, notices or process in the suit;Provided that in the case of minors or interdicted persons the summons, as well as all ulterior orders, summonses, notices or process in the suit, shall also be served on the Attorney General.
56. Where defendant out of the jurisdiction has an agent who is not knownIn case any defendant, who is out of the jurisdiction of the supreme Court, has in Seychelles an attorney or agent duly empowered to make an appearance for or represent and defend him, but such attorney or agent is unknown to the plaintiff, proceedings shall begin and be carried on as herein enacted and as if there were no such attorney or agent:Provided that it shall be lawful for such attorney or agent to intervene at any stage in the proceedings and by leave of the court to appear for such defendant and defend the action, subject to such terms as to time, costs or otherwise, as the court may think fit, having in view the reasons set forth by such attorney or agent for not having made himself known.
57. Deposit of deed appointing attorney or agentIf the attorney or agent has been appointed by an authentic deed, or by power of attorney whether authentic or under private signatures, it shall be the duty of the notary in Seychelles who has drawn up such deed, or who has received the deposit of such power of attorney, or of the holder of any such power under private signatures where it has not been deposited with a notary, under a penalty not exceeding five hundred rupees, to file in the registry within one month from the date on which such deed or power was drawn up by, or deposited with, such notary, or came into the hands of such holder, as the case may be, a memorandum setting forth the names of the principal and agent. Such memorandum may be inspected without payment of a fee and it shall not be lawful for the plaintiff to pretend ignorance of the same.
58. Foreign deed of appointmentIf the power of attorney or other deed appointing an attorney or agent has been drawn up in any place outside the jurisdiction of the Supreme Court, the attorney or agent appointed thereby may deposit the same with a notary in Seychelles, and the provisions of section 57 shall apply thereto.
59. Suits against Curator when allowedWhenever the Curator of Vacant Estates is vested with any property or right belonging or accruing to an absentee, and a suit is brought against the Curator as representing such absentee, it shall be lawful for the Curator before appearing to answer the claim to apply by way of summons to the court for a stay of proceedings to enable him to communicate with the absentee. The court in making an order on the said application shall have regard to the times specified in section 50, to the nature and circumstances of the case, and to the nature of the process which has been served upon the Curator:Provided that when the Curator is vested with the estate of an absentee, it shall not be lawful for him to be made a defendant in any suit of tort(délit or quasi délit) committed before the date of the vesting order, for which the absentee is liable, as representing such absentee:Provided further that the Curator shall not be made a defendant in a suit with respect to a mere right existing or alleged to exist in an absentee when the estate or alleged estate of the absentee consists solely of such right.
60. Government not liable for costsIn no suit against the Curator shall the Government be liable to pay the costs of such suit.
61. Service on parties on certain islands
62. Civil Code, art. 1985Nothing in sections 47 to 61 shall be held to alter or amend article 1985, paragraph 1 of the Civil Code.
63. Appearance of Parties Parties appear on date fixed in summonsOn the day fixed in the summons for the defendant to appear and answer to the claim, the parties shall be in attendance at the Court House in person or by their respective attorneys or agents.
64. Procedure if neither party appearsIf on the day fixed for the defendant to appear and answer the claim, or on any other subsequent day to which the hearing of the suit is adjourned, when the case is called on, neither party appears, the suit shall then be dismissed unless the court, for reasons to be recorded, otherwise directs.When a suit is dismissed under this section, the plaintiff may bring a fresh suit, subject to the law as to prescription.
65. Procedure if defendant does not appearIf on the day so fixed in the summons when the case is called on the plaintiff appears but the defendant does not appear or sufficiently excuse his absence, the court, after due proof of the service of the summons, may proceed to the hearing of the suit and may give judgment in the absence of the defendant, or may adjourn the hearing of the suit ex parte.
66. Procedure if defendant appears subsequentlyIf the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
67. Procedure if plaintiff does not appearIf on the day so fixed in the summons, when the case is called on, the defendant appears and the plaintiff does not appear or sufficiently excuse his absence, the plaintiff's suit shall be dismissed.If the defendant admits the plaintiff's claim or part thereof, the court shall give judgment for the plaintiff for so much of the claim as is admitted. If the defendant has claimed a set off(compensation), the court may proceed to the hearing of the set off and may give judgment thereon.
68. Procedure if only some of the defendants appearIf there be more defendants than one, and one or more of them appear, and the others do not appear, the suit may proceed, and the court shall, at the time of passing judgment, make such order as it thinks fit with respect to the defendants who do not appear.
69. Setting aside judgment given ex parteIf in any case where one party does not appear on the day fixed in the summons, judgment has been given by the court, the party against whom judgment has been given may apply to the court to set it aside by motion made within one month after the date of the judgment if the case has been dismissed, or within one month after execution has been effected if judgment has been given against the defendant, and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall set aside the judgment upon such terms as to costs, payment into court or otherwise as it thinks fit and shall order the suit to be restored to the list of cases for hearing. Notice of such motion shall be given to the other side.
70. How parties may appearA party to a cause or matter may, except when otherwise expressly provided by any law for the time being in force, appear in person or by an attorney or barrister at law. A party not resident within Seychelles may appoint some other person by power of attorney to appear on his behalf:Provided that the court may for sufficient reasons allow any other person to appear on behalf of any party.
Pleading and inspection
71. Particulars to be contained in plaintThe plaint must contain the following particulars:
72. In money suitsIf the plaintiff seeks the recovery of money, the plaint must state the precise amount, so far as the case admits.
73. Capacity of plaintiff and defendant to be statedIf the plaintiff sues, or the defendant or any of the defendants is sued in a representative character, the plaint must state in what capacity the plaintiff or defendant sues or is sued.
74. Copies and lists of documentsIf the plaintiff sues upon a document other than a document transcribed in the Mortgage Office of Seychelles, he shall annex a copy thereof to his plaint. If he rely on any other documents(whether in his possession or power or not) as evidence in support of his claim, he shall annex a list thereof to his plaint and shall state where the same may be seen a reasonable time before the hearing.
75. Statement of defence contentsThe statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim. A mere general denial of the plaintiff's claim is not sufficient. Material facts alleged in the plaint must be distinctly denied or they will be taken to be admitted.
76. Statement of defence must be filed in registryThe statement of defence shall be filed in the registry and shall form part of the record and the defendant shall in addition supply one copy to the plaintiff, or if there be more than one plaintiff, to each plaintiff, unless the court directs otherwise.
77. List of defendant's documentsIf the defendant intends to produce any documentary evidence, he shall annex a list thereof to his statement of defence and shall state where the same may be seen a reasonable time before the hearing.
78. Copies of documents for courtA copy of every document tendered as evidence must be provided for the use of the court, unless the court otherwise directs.
79. Set offIf the defendant relies upon a set off(compensation), his statement of defence must contain particulars of such set off and a statement of the material facts necessary to sustain the same. If the set off depends upon a document, he must annex a copy of such document to his statement of defence.
80. Counter claim
81. Failure to supply lists of documentsIf either the plaintiff or the defendant omits to comply with sections 74 and 77 he shall not be allowed to produce in evidence on his behalf at the hearing any document in respect of which such omission has been made without the leave of the court and subject to such terms as the court may direct.
82. Exception to section 81Nothing in sections 74 and 77 applies to documents produced for cross examination of the witness of the other party, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.
83. Document not in possession of partyIf any document included in the list of documents attached to the plaint or the statement of defence is not in the possession or power of the plaintiff or the defendant, as the case may be, the plaintiff or defendant shall state, if possible, in whose possession it is.
84. Inspection of documentsEach party shall be entitled to demand of the otherinspection of any deed, agreement, bill or other document mentioned or referred to in his pleading or in the list of documents annexed thereto or which are or have been in his possession or power, relating to the matter in question, and in the event of such inspection not being granted, the party desiring the same may apply to the court by motion, of which notice shall be given, at least two clear days before the hearing for an order for such inspection, and the court may make an order for inspection in such place and in such manner as it may think fit:Provided that the order shall not be made when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.
85. Non compliance with order for inspectionIf any party fails to comply with any order for inspection of documents, he shall be liable, if a plaintiff, to have his suit dismissed and, if a defendant, to be placed in the same position as if he had not appeared on the day fixed in the summons to answer the claim.
86. Further particulars of plaintA defendant may apply on the day fixed in the summons to appear and answer to the claim or prior thereto, for further particulars of the plaintiff's claim, and the court shall direct the furnishing of such particulars as appear to be necessary and may make such order as to costs and the time within which such particulars shall be furnished as may seem just.
87. Further particulars of defenceThe plaintiff may apply within four days after the statement of defence has been filed in court for further particulars of the defence or set off, and the court shall direct the furnishing of such particulars as appear to be necessary and may make such order as to costs and the time within which such particulars shall be furnished as may seem just:Provided however that the court may at any time of its own motion or on the application of either party order particulars or further particulars to be supplied and may adjourn the hearing for that purpose and may make such order as to costs and the time within which such particulars shall be supplied as appears to be just.
88. PlansThe court may order plans for any locus in quo to be supplied by either party in the same manner as particulars.
89. Copies of particulars to be suppliedWhen particulars are ordered, one copy shall be filed in the Registry and shall form part of the record, and one copy shall be supplied to each plaintiff or each defendant, as the case may be, by the party ordered to supply such particulars, unless the court directs otherwise.
90. Points of lawAny party shall be entitled to raise by his pleadings any point of law; and any point so raised shall be disposed of at the trial, provided that by consent of the parties, or by order of the court, on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
91. Decision on point of law onlyIf in the opinion of the court the decision of such point of law substantially disposes of the whole cause of action, ground of defence, set off or counterclaim, the court may thereupon dismiss the action, or make such other order therein as may be just.
92. Striking out pleadingsThe court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in such case, or in case of the action or defence being shown by the pleading to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or may give judgment, on such terms as may be just.
93. Pleadings to be endorsed by attorney or partyAll pleadings, particulars and applications of whatever nature shall be endorsed with the name and address of the attorney of the party on whose behalf they are made, or, if the party sues in person, with the name, description and address of the party. At the head of each pleading or application its description and the title of the suit shall be given.
94. Election of domicileEvery party who is represented by an attorney shall elect domicile in the office of his attorney. If he is not so represented, he shall be deemed to have elected domicile at the place of residence endorsed by him on the pleadings or other application as the case may be, unless he file in the registry a written declaration electing domicile elsewhere within Seychelles.
95. Impounding of documentsThe court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as the court thinks fit.
96. Return of documents produced in evidenceIn suits in which an appeal is not allowed, when the suit has been disposed of, and in suits in which an appeal is allowed, when the time for preferring an appeal has lapsed, or, if an appeal has been preferred, then after the appeal has been disposed of, any person whether a party to the suit or not, desirous of receiving back any document produced by him in evidence, shall, unless the document is impounded under the preceding section, be entitled to receive back the same:Provided that no document shall be returned which by force or the judgment has become void or useless. A receipt shall be given on the return of the document by the person receiving it.
97. Possessory actions when maintainablePossessory actions(actions possessoires) in which the plaintiff claims to be maintained in, or restored to the quiet enjoyment and possession of land, premises, water rights, or other immovable property or any other right arising out of immovable property, shall only be maintainable when
98. When possession and trespass are deniedIn such actions, if the possession and trespass are denied, it shall not be competent to raise the question of title or ownership.
99. Possession and ownershipPossession and ownership shall not be alleged in the same plaint.
100. When petitory action failsIt shall not be lawful for an unsuccessful plaintiff in a petitory action (action pétitoire) to enter a possessory action.
101. Petitory action may not be entered until possessory action is disposed ofNo petitory action shall be entered by a defendant to a possessory action before such possessory action shall have been first disposed of by the court, and the judgment of the court satisfied by the defendant if unsuccessful. Should it be shown to the satisfaction of the court that it is owing to the negligence of the successful plaintiff that the defendant has not satisfied the aforesaid judgment, the court shall on the application of the latter fix a time within which such judgment shall be satisfied; when such time is over, the court shall proceed with the petitory action.
102. Payment into Court Payment into court in full satisfaction of demandThe defendant in any suit may pay into court, at any stage of the suit, such sum of money as he shall consider a full satisfaction for the demand of the plaintiff. Notice of such payment shall be given forthwith by the Registrar to the plaintiff in writing, and the amount shall be paid out to the plaintiff on his application.
103. Acceptance in part satisfactionIf the plaintiff accept such amount only as satisfaction in part of his claim, he may prosecute his suit for the balance; and if the court decides that the amount paid into court was a full satisfaction of the plaintiff's claim, the plaintiff shall pay to the defendant the costs of the suit incurred by him after such payment and the costs incurred by him previous thereto, so far as they are caused by excess in the plaintiff's claim.
104. Acceptance in full satisfactionIf the plaintiff accept such amount as satisfaction in full of his claim, he shall file in court a statement to that effect and the court shall pass judgment accordingly, and shall make such order as to the costs of the suit as shall appear to the court to be just under the circumstances.
Joinder of causes of action
105. When different causes of action may be joined in same suitDifferent causes of action may be joined in the same suit, provided that they be between the same parties and that the parties sue and are sued respectively in the same capacities, but if it appear to the court that any of such causes of action cannot be conveniently tried or disposed of together, the court may, either of its own motion or on the application of the defendant, order separate trials of any of such causes of action, or may make such other order as may be necessary or expedient for the separate disposal thereof, or may order any of such causes of action to be excluded, and may make such order as to costs as may be just.
106. When suits may be consolidatedIf more than one suit has been entered by the same plaintiff against the same defendant or if more than one suit has been entered by different plaintiffs against the same defendant in respect of claims arising out of the same transaction or series of transactions or if cross suits have been entered between the same parties, and the parties sue and are sued respectively in the same capacities, the court may either of its own motion or on the application of any of the parties order such suits or any of them to be consolidated and tried as one suit, if it appear to the court that they can be conveniently tried or disposed of together, and the court may make such other order as may be necessary or expedient for the purpose of trying such suits together, and may make such order as to costs as may be just.
107. Who may be joined as plaintiffsAll persons may be joined in one suit as plaintiffs in whom the right to any relief claimed is alleged, whether jointly, severally or in the alternative, in respect of the same cause of action. And judgment may be given for such one or more of the plaintiffs as may be found entitled to relief, for such relief as they or he may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who is not found entitled to relief, unless the court in disposing of the costs of the suit otherwise direct.
108. Suits commenced in name of wrong personWhere a suit has been commenced in the name of the wrong person as plaintiff, or where it is doubtful if it has been commenced in the name of the right plaintiff, the court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person with his consent to be substituted or added as plaintiff upon such terms as the court thinks just.
109. Who may be joined as defendantsAll persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.
110. Option as to joining parties in same suitThe plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.
111. Numerous persons having same interest in one causeWhere there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court to defend in such cause or matter, on behalf of or for the benefit of all persons so interested, subject to such notice to the persons interested as the court may direct.
112. Misjoinder, adding of parties, etcNo cause or matter shall be defeated by reason of the misjoinder or non joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any persons improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.
113. No person to be added as plaintiff without his consentNo person shall be added as a plaintiff without his consent in writing thereto.
114. Procedure where a defendant is addedWhere a defendant is added or substituted, the plaint shall, unless the court direct otherwise, be amended in such manner as may be necessary, and a summons with a copy of the amended plaint attached shall be served on the new defendant and the proceedings as against such party shall be deemed to have begun only on the service of such summons. The court may order a copy of the amended plaint to be served on or supplied to the original defendant.
115. Application to add or strike out partiesAny application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by motion, or at the trial of the action in a summary manner.
116. Joinder of suretiesIf on the day the plaint is made returnable, the defendant to a suit moves for leave to join as parties to the suit one or more persons alleged to be liable as sureties, the court shall grant the defendant a reasonable time within which to join such persons. In such case the defendant shall serve upon the person alleged to be so liable a copy of the plaint but it shall not be necessary to serve upon such person a copy of the order of the court directing him to be joined as a party.If no such application is made on the return day of the plaint or if the plaint has not been served upon the surety within the time fixed by the court, it shall be lawful for the court to proceed with the principal action and adjudicate separately upon the question of the security.
117. Who may intervene and at what timeEvery person interested in the event of a pending suit shall be entitled to be made a party thereto in order to maintain his rights, provided that his application to intervene is made before all parties to the suit have closed their cases.
118. Application to be by motionAn application to intervene in a suit shall be made by way of motion with an affidavit containing the grounds on which the applicant relies in support thereof.
119. Notice to be givenNotice of such motion shall be served upon all the parties to the suit.
120. Intervener must file statement of demandIf leave to intervene is granted by the court, the intervener shall, within the period fixed by the court, file a statement of his demand and of the material facts on which it is based and shall at the same time supply a copy of such statement to the other parties to the suit.
121. Application to be by motionEither party to a suit may, in the course of such suit, apply to the court by way of motion to make an incidental demand.
122. With affidavitThe motion shall be accompanied by an affidavit of the facts in support thereof and shall be served upon the adverse party.
123. All incidental demands to be made at same timeAll incidental demands shall be made at the same time. The costs of any subsequent incidental demand made on grounds which already existed at the time when a prior demand was made shall be borne by the party making such demand.
124. Judgment may be given on principal demand onlyThe court may, in its discretion, give judgment in the principal demand only, if the incidental one be of a nature unjustly to delay the plaintiff in the principal demand, and afterwards give judgment upon the incidental demand.
125. Affidavit in replyIf the adverse party contests the incidental demand he shall file an affidavit in reply, unless the court otherwise direct.
126. If defendant admits claimIf on the day fixed in the summons for the defendant to appear, the defendant appears and admits the plaintiff's claim, judgment shall be given for the plaintiff.
127. If claim denied, statement of defence to be filedIf the defendant denies the plaintiff's claim or any part thereof, the court shall adjourn the case to a date to be fixed by the court and shall order the defendant to file a statement of defence on or before such date.If there are more than one defendant, with different defences, separate statements of defence shall be filed by such defendants. The court may, if it think fit, give judgment for the plaintiff for such part of the claim as is admitted by the defendant to be due:Provided however that, if the defendant appears in person and the plaintiff's claim is for less than five hundred rupees, the court, if it think fit, may allow the defendant to make his statement of defence verbally, which statement shall be recorded by the Registrar, and may either hear the suit forthwith or fix another date for the hearing:Provided also that the court may, at any time after the parties have appeared, proceed to hear the suit, if the parties are ready and consent thereto.
128. Failure to file statement of defenceOn the date to which the suit has been adjourned under the last preceding section, the parties shall appear and the Court shall then adjourn the suit to a date to be fixed by the court for the hearing.If the defendant has neglected to file his statement of defence within the time ordered by the court, the court may either give judgment for the plaintiff on his claim or grant further time, subject to such order as to costs, as to the court may seem fit.
129. Hearing and adjournmentOn the date fixed by the court for the hearing of the suit, the parties shall appear and the court shall proceed to the hearing of the suit. The court may, at any stage of the suit, if sufficient cause be shown and subject to such order as to costs as to the court may seem fit, grant time to the plaintiff or defendant to proceed in the prosecution or defence of the suit and may adjourn the hearing of the suit.
130. Procedure when suit is settledIf on the day fixed in the summons for the defendant to appear, or on any subsequent day before judgment has been given, the parties or the plaintiff if no set off has been pleaded, appear in court and state that the suit has been settled, the suit shall be struck out and no suit shall thereafter be brought between the same parties in respect of the same cause of action.
131. Judgment by consentThe parties may at any stage of the suit before judgment, appear in court and file a judgment by consent signed by both parties, stating the terms and conditions agreed upon between them in settlement of the suit and the amount, if any, to be paid by either party to the other and the court, unless it see cause not to do so, shall give judgment in accordance with such settlement.
132. Absence of JudgeWhen by reason of the illness or unavoidable absence of the Judge, the court cannot be held, the Registrar shall call into court all the parties to the cases fixed for the day and all witnesses summoned for such day, and shall adjourn the court to such other day as he may deem expedient.
133. Non appearance at adjourned hearingIf on the day to which the hearing of the suit has been adjourned by the court or by the Registrar under section 132, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the manners directed in that behalf by sections 64, 65 and 67 or may make such order as it thinks fit.
134. Procedure if parties fail to produce evidence, etc.If any part to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witness or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.
135. Delivery of judgment
136. Payment by instalmentsThe court may, save where otherwise provided by law, when delivering judgment make such orders concerning the time or times at which, and by what instalments, any debt or damages or costs for which judgment shall be obtained in the said court, shall be paid and all such moneys shall be paid into court unless the court otherwise direct. Such orders may be made subject to payment of interest on the amount of the judgment debt remaining unpaid, or to the finding of security therefor by the judgment debtor.
137. Hearing of suit in situThe court may in any suit, either of its own motion or at the request of any party to the suit, if the court be of opinion that the hearing of the suit will be facilitated thereby
138. Expenses to be deposited in advanceThe expenses of such hearing or inspection shall be deposited in the registry in advance by the party requesting it, but the court may make such order as to the party by whom such expenses are to be borne as it thinks fit.
139. Duties of Registrar to be present in courtThe Registrar shall be present at every sitting of the court and shall accompany the Judge when hearing evidence on any land or premises in dispute or at any place where any matter in dispute in the suit has occurred, but he needs not be present when the Judge proceeds to such land, premises or place for the purpose of inspection only, unless the Judge otherwise directs.
140. To make entries on recordThe Registrar shall enter in the record of every cause or matter the date or dates on which it is called on, the names of the parties appearing and of the lawyers, if any, by whom they are represented, and the name, description and place of residence of every person who has given evidence.He shall also make an entry of all orders and judgments of the court, of all admissions made, of all objections taken and the ruling of the court thereon and of any other matter which appears to be requisite or which the Judge shall direct to be noted, and he shall note the authorities cited by either party.
141. To make down evidence in appealable casesIn all cases in which an appeal lies, the Registrar shall in addition take down in writing and attach to the record the evidence of the witnesses and the answers of a party examined on personal answers.
142. To mark documents admittedAny document admitted in evidence shall be marked in the Registrar with a distinguishing number or letter and with the title of the cause or matter to which it relates and shall be attached to the record.
143. Or rejected if party requestsIn all cases in which an appeal lies, any document tendered in evidence but not admitted by the court shall be similarly marked by the Registrar for the purpose of identification, and as having been rejected and shall be attached to the record, if the party tendering the same in evidence so require.
144. To register judgmentThe Registrar shall enter in the register of civil and commercial suits, against each cause or matter, the judgment or final order of the court therein.
145. Sittings of court open to publicAll sittings of the court shall be open to the public except when the law directs that they shall be held with closed doors, but the court may, in any particular cause or matter, if the court think necessary in the interest of public order or decency, order all persons not directly interested in such cause or matter, or any particular class of persons, to leave the court, during the hearing.
146. Amendment of pleadingsThe court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:Provided that a plaint shall not be amended so as to convert a suit of one character into a suit of another and substantially different character.
147. Clerical error in judgmentsClerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court on motion.
148. Amendments of errors in proceedingsThe court may at any time, and on such terms as to costs or otherwise as the court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.
149. Amended pleading to be supplied to adverse partyWhere a pleading is amended by order of the court, the pleading shall be redrawn in its amended form and a copy thereof supplied to the opposite party if the court so order, subject to any order as to costs which the court may think fit to make.
150. Suspension or variation of judgmentsThe court may, after hearing both parties, alter, vary or suspend its judgment or order, during the sitting of the court at which such judgment or order has been given.
Conclusions of the Ministère Public
151. Matters which must be referred to the Attorney General for conclusions as Ministère PublicThe following matters shall be referred to the Attorney General for his conclusions as Ministère Public, but there shall henceforth be no obligation upon him to give conclusions as Ministère Public, in any matter referred to him, unless required to do so by the court, and no judgment shall be held to be invalid for want of such conclusions whenever such matter shall have been referred to him according to law:
152. Witness summonsesAny party to a cause or matter may obtain, on application to the Registrar of the court, summonses to persons whose attendance is required to give evidence or to produce documents.
153. Payment into court for expenses of witnessThe party applying for a summons shall, before the summons is granted, pay into court a sum of money sufficient to defray the travelling and other expenses of the person so summoned, and for one day's attendance. He shall state in his application the description and the place of residence of the witness whom he desires to summon.
154. Particulars to be contained in witness summonsEvery summons for the attendance of a person to give evidence or produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document or for both purposes; and any particular document which the person summoned is called upon to produce shall be described in the summons with reasonable accuracy.
155. Summons to produce documentAny person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
156. Evidence of person present in courtAny person present in court may be required by the court to give evidence or to produce any document then and there in his actual possession or power.
157. Witness summons to be served by an usherEvery summons to a witness to give evidence or produce a document shall be served by an usher of the court in the manner prescribed in this Code for the service of a summons on a defendant, as nearly as may be.
158. Time for serviceThe summons shall in all cases be served a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the Court House. A summons shall not be issued less than twenty-four hours before the time when the attendance of the witness is required, without the special leave of the court.
159. When witness may departNo person so summoned and attending shall depart unless and until
160. Witness about to leave the jurisdictionIf awitness be about to leave the jurisdiction of the court, or if other sufficient cause be shown to the satisfaction of the court why his evidence should be taken immediately, the court may upon the application of either party take the evidence of such witness at any time after the commencement of the cause or matter. Sufficient notice of the application shall be given to the adverse party.
161. Witness refusing to give evidence etc., may be finedEvery person summoned to give evidence or to produce a document or to appear in court to give his personal answers not upon oath, who shall fail without sufficient cause to comply with the summons or who departs contrary to the provisions of section 159 or who being in court refuses without sufficient reason to give evidence or to be sworn when required by the court, may be ordered by the court to pay a fine not exceeding one hundred rupees and a warrant may be issued to bring such person before the court.
162. Personal answers rules relating to examination of parties on personal answers
163. Procedure to obtain attendance of adverse party, for examinationWhenever a party is desirous of obtaining the personal answers not upon oath of the adverse party, he may apply to the Judge in court on the day fixed for the defendant to file his statement of defence or prior thereto, or he may petition the court exparte at any time prior to the day fixed for the hearing of the cause or matter to obtain the attendance of such adverse party and the court on sufficient ground being shown shall make an order granting the application or petition. And the party having obtained such order shall serve a summons, together with a copy of the order, on the adverse party to appear in court on the day stated therein.
164. Party present in court may be examinedIf a party to the cause or matter is present in court at the hearing of the case, he may be examined on his personal answers with the permission of the Judge, without any previous application.
165. When the Republic is a partyIn no cause or matter where the Government or the Republic is a party shall the Minister represent or be regarded as the agent of the Government or of the Republic nor shall the Minister be made a party to such cause or matter or be summoned thereto on personal answers or otherwise except as an ordinary witness. In any such cause or matter the Attorney General shall represent the Government or the Republic.
166. Examination when to take placeThe examination on personal answers shall be in open court at the hearing of the cause or matter, but no party having closed his case shall be allowed thereafter to examine the adverse party on his personal answers.
167. Examination may be separateIf more than one person be called by either party to a cause or matter to give personal answers, the court may direct that each such person shall give his answers out of the hearing of the others.
168. When court may order facts to be proved by affidavitThe court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:Provided that where it appears to the court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
169. Cross examinationUpon any motion, petition or application, evidence may be given by affidavit; but the court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.
170. What affidavits may containAffidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory applications, on which statements as to his belief, with the grounds thereof, may be admitted.
171. Before whom affidavits may be swornAffidavits may be sworn in Seychelles —
Opposition by third parties
172. Who may file opposition to judgmentAny person whose interests are affected by a judgment rendered in a suit in which neither he nor persons represented by him were made parties, may file an opposition to such judgment.
173. ProcedureSuch opposition shall be formed by means of a principal action to which the parties to the suit, in which the judgment sought to be set aside was obtained, shall be made defendants.
174. Opposition not to delay execution of judgmentSuch opposition by a third party shall not delay the execution of the judgment sought to be set aside unless the court orders a stay of execution.
175. Opposition when judgment is res judicataExecution of judgments ordering a party to give up possession of an immovable property shall not be stayed by an opposition to such judgment made by third parties whenever such judgments are resjudicata between the parties to the original suit.
176. No abatement if cause of action survivesA cause or matter shall not become abated by reason of the death, bankruptcy or insolvency, or change of status or of capacity, of any of the parties, if the cause of action survives; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the hearing and the judgment.
177. Death, bankruptcy, etc., of a partyIn case of the death, bankruptcy or insolvency, or change of status or of capacity, of a party to a cause or matter, the court may order that any necessary party be added or that any person entitled to represent the party who has died or become bankrupt or insolvent, or being the successor in interest of any such party, be substituted for such party.
178. Substitution of name on record application by representative of deceased partyAny person claiming to be the representative of a deceased plaintiff or for a deceased defendant may apply to the court to substitute his name on the record for that of the deceased plaintiff or the deceased defendant, as the case may be. The application shall be by petition served on the defendant or the plaintiff, as the case may be.
179. Application by plaintiff or defendantAny plaintiff or defendant may apply to the court to substitute any person alleged to be the representative of a deceased defendant or of a deceased plaintiff for the deceased defendant or the deceased plaintiff, as the case may be. Such application shall be by petition served on the person whom it is desired to substitute.
180. Procedure where party is added or substitutedIf the court order any party to he added or any person to be substituted under sections 177, 178 or 179, the cause or matter shall proceed in the same manner as if such person or parties had been parties at the commencement of the cause or matter.
181. Summons to compel a party to proceedWhen the plaintiff or defendant in a cause or matter dies and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant or the person against whom the cause or matter may be continued may apply by summons to compel the plaintiff or the person entitled to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued.
182. When plaintiff may discontinue suit. Leave of court, when requiredThe plaintiff may, at any time before the statement of defence has been filed, or after it has been filed before taking any other proceeding in the suit(save any interlocutory application) by notice in writing to the Registrar, wholly discontinue his suit against all or any of the defendants or withdraw any part of his claim and thereupon he shall pay such defendant's costs of the suit, or if the suit be not wholly discontinued, the costs occasioned by the part of the claim so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.Save as in this section otherwise provided, it shall not be competent for the plaintiff to discontinue the suit without leave of the court, but the court may at any time before judgment, upon such terms as to costs, and as to any other suit, and otherwise as may be just, order the suit to be discontinued, or any part of the claim to be struck out.The court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence to be withdrawn or struck out, but it shall not be competent for a defendant to withdraw his defence or any part thereof without such leave.
183. Notice of discontinuanceThe Registrar shall on receipt of such notice in writing forthwith give notice to the defendant of such discontinuance or withdrawal.
184. Costs of discontinued suitThe defendant may recover the costs of a suit which has been discontinued under section 182 in the same way as if such costs had been granted by a judgment of the court.
185. Subsequent action may be stayedIf any subsequent suit shall be brought before payment of the costs of a discontinued suit, for the same, or substantially the same cause of action, the court may, if it thinks fit, order a stay of such subsequent suit, until such costs shall have been paid.
Peremption of suits
186. Want of prosecutionAll causes and matters are extinguished for want of prosecution when no proceeding has been taken therein during three years.
187. When peremption does not take placePeremption does not take place when proceedings are compulsorily stayed by any incidental proceeding, an interlocutory judgment, reference to experts, arbitrators, or commissioners or when the record cannot be found.
188. Against who peremption takes placePeremption takes place against the Republic, public establishments(établissements publics), and all persons even such as are represented by guardians and curators, without prejudice to any action in damages against the administrators of such establishments, and such guardians and curators for any loss incurred through their fault or negligence.
189. Peremption must be decreed by the courtPeremption to be effective must be decreed by the court upon a motion made to that effect by one of the parties to the suit in respect of which presumption is alleged to have taken place.Notice of such motion shall be given to the other parties to such suit.
190. When peremption is inoperativeAny valid act of procedure made by one of the parties in a suit, although made after the lapse of three years, renders peremption inoperative, if made before notice of the motion mentioned in section 189 is given to the adverse party.
191. Effect of peremptionPeremption puts an end to the cause or matter, but it does not extinguish the right of action itself.
192. Procedure if peremption is decreedThe parties to a cause or matter in respect of which peremption has been decreed by the court to have taken place, shall not be entitled to avail themselves of any act of procedure done in the course of such cause or matter.
193. CostsIf peremption is decreed by the court to have taken place with respect to a cause or matter, the court shall, unless good cause be shown to the contrary, require the plaintiff to pay the costs of such cause or matter.
194. When a new trial may be grantedA new trial may be granted on the application of either party to the suit—
195. Procedure to obtain new trialApplication for a new trial shall be made by petition supported by an affidavit of the facts, and shall be served on the opposite party in the same manner and subject to the same rules as to time for appearance as in the case of plaints.
196. Application, when to be madeApplication for a new trial must be made,—
197. Forgery, fraud or new evidenceWhere a new trial is applied for on the grounds of forgery, fraud or new evidence, the period of three months mentioned in section 196 shall only run from the day on which the forgery or fraud shall have been known or the new evidence discovered, provided that in the last two cases there is written proof of the day on which such fraud or new evidence shall have been discovered.
198. Court may impose termsThe court may grant an order for a new trial on such terms, if any, as to costs and finding of security for the amount for which judgment was given at the first trial, or such other terms as to the court may seem fit.
199. Date for new trialWhen a new trial is granted, the court shall fix a date for the hearing.If the adverse party does not appear on the hearing of the petition for the new trial and an order is made granting the application, the party in whose favour the order is made shall summon the adverse party to appear on the date fixed by the court for the new trial and the trial shall then proceed in all respects as if it has been a first trial.
200. Stay of executionThe court may grant a stay of execution pending the hearing of the new trial.
201. What issues may be raised at new trialIt shall not be competent for the applicant to raise any other issues at the new trial except those alleged in his application for such new trial.
202. Effect of judgment for the applicantIf, at the new trial, judgment be given in favour of the applicant, all sums of money paid under the first judgment shall be returned to the applicant and the parties shall be put back in the same position as if there had been no first trial, unless the court orders otherwise.
203. No new trial of a new trialWhenever an application for a new trial shall have been made and refused or whenever a new trial has been granted and adjudicated upon, it shall not be lawful for the same party to apply again for a new trial of the same suit or for a new trial of such new trial.
204. New trial ordered by appellate court procedureIf, on appeal, a new trial be ordered by the appellate court, either party may file in the registry of the Supreme Court the original judgment or order of the appellate court, or a copy of the formal judgment or order certified to be correct and sealed by the Registrar of the appellate court, and within one month after filing such judgment or order such party shall apply to the Registrar to fix a date for the hearing of such new trial and shall summon the adverse party to appear on the date fixed for the new trial and the trial shall then proceed in all respects as if it had been a first trial, subject however to any order made by the appellate court.
205. Reference to arbitrationThe court may, in any cases other than those mentioned in article 1004 of the French Code of Civil Procedure, with the consent of both parties to the suit, and also in any case in which the law permits arbitration independently of such consent, order such suit, with or without other matters within the jurisdiction of the court in dispute between such parties, to be referred to arbitration, to such person or persons, and in such manner and on such terms, as the court shall think reasonable and just, and if more than one arbitrator has been appointed, it may appoint an umpire if it thinks fit.Such reference shall not be revocable except with the consent of the court:Provided that nothing in this section shall be deemed to prevent persons from submitting their dispute to arbitration in accordance with the provisions of Book Three of the French Code of Civil Procedure, without an order of the court.
206. Objections to awardWhen the award of the arbitrators or umpire has been filed in court, the Registrar shall give notice to the parties. If no objection to the award be filed in the registry within 10 days from the receipt of such notice by either party, the court shall give judgment in accordance with the award.
207. When award may be set aside or modifiedAn award shall not be objected to and shall not be set aside except on one of the following grounds—
Suits in formå pauperis
208. Who may sue as paupersAny person may on application to the court be admitted to sue or defend as a pauper, but no person shall be so admitted unless he satisfies the court —
209. Examination of applicantThe court may examine the applicant on oath or take such other evidence as may be requisite to enable it to decide on the application.
210. Fees of courtA person admitted to sue or defend as a pauper shall not be liable to pay any fees of court, but unless the court certify in writing that the suit is one of public policy(ordre public), he shall not be exempted from the payment of the stamp or registration dues.
211. When suit is one of public policyIf the court certify that the suit is of public policy, witnesses shall be bound to attend and give evidence, when summoned, without the previous payment of the fees or allowances authorised by law but no witness shall be summoned unless the court is satisfied that the evidence of such witness is necessary for the ends of justice.
212. Counsel and attorney may be assigned
213. RemunerationWhilst a person sues or defends as a pauper, no person shall take or agree to take, or seek to obtain from him any fee, profit or reward, for the conduct of his business in the court, and any person who takes, or agrees to take, or seeks to obtain any such fee, profit or reward, shall be guilty of a contempt of court.
214. Pauper may be dispauperedIf any person admitted to sue or defend as a pauper gives, or agrees to give, any such fee, profit, or reward, he shall be forthwith dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper.
215. Attorney to sign proceedingsNo proceeding shall be served, and no petition shall be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his attorney, unless it is signed by his attorney, if any attorney has been assigned to him.
216. Unnecessary proceedingsIt shall be the duty of the attorney assigned to the person admitted to sue or defend as a pauper, to take care that no proceeding is served or petition presented without good cause.
217. DisbursementsNo attorney or usher shall be bound in any civil suit brought by or against paupers to make any disbursement of his own moneys.
218. Recovery of feesIf the court order any costs to be paid to any person admitted to sue or defend as a pauper, the court, stamp, or registration fees which would have been paid by such person if he had not been admitted to sue or defend as a pauper and the remuneration of counsel or the attorney which has been paid or is payable under subsection(2) of section 212, shall be deducted from the amount of the costs so ordered to be paid and shall be paid to the Registrar for the benefit of the Republic and shall be recoverable by the Attorney General in the same manner as if the order for cost., had been in his favour. Such costs may be taxed as in other cases.
Of furnishing of security
219. When security may be requiredThe court may, on the application of the defendant, require the plaintiff to give security for costs in all cases in which under the Civil Code such security may be required and also when the plaintiff is known to be insolvent.
220. Time within which security is to be furnishedWhenever a party to a suit shall have been ordered to furnish security, the court shall, by the same order, fix the time within which such security shall be furnished by such party and accepted or objected to by the other party.
221. Notice of sureties offeredThe party to a suit ordered to give security shall give notice to the other party or his attorney of the persons intended to stand as sureties. Such notice shall state the names of the persons suggested as well as the means of such persons.
222. ObjectionsIf the surety is objected to, the matter shall be summarily dealt with by aJudge in chambers.
223. Determination of amount of damagesWhenever damages or any sum of money to be paid shall not have been definitely determined by the judgment of the court it shall be lawful for the plaintiff, after notice given to the defendant and failure on his part to tender an acceptable amount, to apply to the court by way of motion for an order fixing the amount of such money or damages and the court after hearing the parties shall make an order fixing the amount.
224. CostsShould the amount tendered by the defendant be found by the court to have been sufficient, costs shall be granted against the plaintiff.
225. Procedure on application for execution. UrgencyIf the party liable fails to satisfy the judgment or to comply with the order of the court, application may be made to the Registrar by the judgment creditor, forty-eight hours after such default, for the enforcement of the judgment or order by means of execution. Before applying for execution, the judgment creditor must have his bill of costs taxed by the Registrar and where the judgment is for a sum of money exceeding sixty rupees or for the delivery of property exceeding sixty rupees in value, the judgment creditor may also obtain from the Registrar a formal judgment stating the substance of the judgment or order and must cause the same to be registered at the Registration Office:Provided that the court may, on grounds of urgent necessity, direct that a judgment or order be enforced by execution, except in so far as it relates to the costs of the suit, immediately after judgment has been given and before the costs incurred in the suit can be ascertained by taxation, and that the judgment or order, in so far as it relates to the costs, be enforced by execution so soon as the amount of the costs shall have been ascertained by taxation.
226. Cross judgmentsIf there be cross-judgments between the parties, execution shall be taken by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction of the judgment for the smaller sum; and if both sums shall be equal, satisfaction shall he entered upon both judgments.
227. Foreign judgmentsForeign judgments and deeds drawn up in foreign countries can only be enforced in the cases provided for by articles 2123 and 2128 of the Civil Code and agreeably with the provisions of the aforesaid articles.Arbitral awards under the New York Convention, as provided under articles 146 and 148 of the Commercial Code of Seychelles, shall be enforceable in accordance with the provisions of Book 1, Title X of the said Code.
228. When property may be seizedProperty whether movable or immovable can only be seized and sold in virtue of an executory title (titre exécutoire) and for a determined and liquidated amount.Should the claim not be in respect of a liquidated sum of money, the property seized shall not be sold until the amount of money which is due has first been determined by the court.
229. Caption of the bodyCaption of the body shall not be granted or enforced until the amount due has first been determined.
230. Appeal not to operate as stay of executionAn appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court or the appellate court so orders and subject to such terms as it may impose. No intermediate act or proceeding shall be invalidated except so far as the appellate court may direct.
231. Execution of judgment after appealWhen the appellate court has given judgment on the appeal, either party may file in the registry of the Supreme Court the original judgment or order of the appellate court, or a copy of the formal judgment certified to be correct and sealed by the Registrar of such court, and such judgment may then be enforced and the taxed costs of the appeal recovered by execution, in the same manner as is provided by this Code in the case of judgments of the Supreme Court, subject however to any order of the appellate court.
232. Duration and extension of validity of warrant or writ of execution
233. Execution to issue within six years. Leave to issue in certain cases
234. Fines may be recovered by executionAny fine imposed by the court in virtue of the powers conferred by this Code may be enforced and recovered by execution in the same manner as a judgment of the court.
235. Police to assist ushersAll police officers are authorised and required to assist the ushers of the court in executing any warrant of execution, if called upon to do so by the usher executing the warrant.
236. Movable property which may not be seized in executionThe following movable property may not be seized in execution: —
237. Except in certain casesThe things mentioned in section 236, except those mentioned in paragraph (b) thereof, shall however not be exempt from seizure and sale when the suit is to recover an amount due—
238. Court may appoint person to work landIn the case of seizure of cattle and implements of husbandry necessary for the working of lands, it shall be lawful for the court, on the application of the judgment creditor, and after hearing the owner and the judgment debtor, to appoint a fit and competent person to carry on the working of such lands.
239. Particulars to be contained in application for executionEvery application for execution shall be in writing and signed by the judgment creditor or by his attorney, if any, and shall contain the following particulars:
240. Procedure when judgment is for a sum of moneyIf the judgment is for a sum of money, the Registrar, on receipt of the application, shall issue under the seal of the court a warrant of execution to one of the ushers of the court, who by such warrant shall he empowered to levy such sum of money and also the costs of execution by distress and sale of the movable property of the party named in the warrant.
241. When judgment is for delivery of movable propertyIf the judgment is for the delivery of any specific movable property, the Registrar shall, on receipt of the application, issue a warrant to an usher of the court to seize such property, if practicable, and to deliver it to the person to whom it has been ordered to be delivered by the judgment of the court.If the party who has been ordered by the judgment of the court to deliver any such movable property to any person intentionally refuses or neglects to comply with the judgment or order of the court, he may be committed to civil imprisonment for a period not exceeding six months, on the application of the judgment creditor.
242. When judgment is for delivery of, or to place in possession of immovable propertyIf the judgment be
243. Civil imprisonmentBefore any person is committed to civil imprisonment under section 241 or 242 such person shall be summoned to show cause why he should not be committed, and if he fail to appear or to show cause to the satisfaction of the court, the court may make such order as to committal as it considers just.Witnesses may be heard in support of the application and on behalf of the person summoned.
244. Amount recoverable to be endorsed on warrants and writsThe Registrar shall cause to be endorsed on every warrant of execution and on every writ to place in possession of immovable property, the sum of money and the costs adjudged to be paid, together with the approximate amount of the costs of execution of such warrant or writ, and the value of the movable property which the usher shall seize, shall correspond as nearly as may be with the total amount endorsed on the warrant or by the Registrar. If the party against whom such warrant or writ has been issued pay into the registry, or to the usher charged with the execution of the warrant or writ, such sum of money and costs as aforesaid or such part thereof as the judgment creditor shall agree to accept in full discharge, the execution shall be removed and the property seized shall be released from seizure.
245. Warrants and writs to be in force for 12 monthsWarrants of execution and writs shall bear the date of the day on which they are issued and shall continue in force for twelve months.
246. When movable property is insufficient to satisfy judgmentIf the movable property of the judgment debtor be insufficient to satisfy the judgment and the costs of execution, the Registrar shall on the application of the judgment creditor issue a writ of execution against the immovable property, if any, of the judgment debtor.Such immovable property shall be seized and sold in accordance with the procedure laid down by the Immovable Property(Judicial Sales) Act and any other law relating to the seizure and sale in execution of immovable property in force for the time being in Seychelles.
247. AttachmentA judgment creditor may apply for an order of attachment(opposition) of any money or movable property due to or belonging to his judgment debtor in the hands of any third person and the Registrar on receipt of such application shall issue an order prohibiting the person in whose hands such money or other movable property is from paying such money or delivering such property to any other person pending the further order of the court.
248. Validation of attachmentWithin fifteen days from the date of the issue of the order of attachment, the judgment creditor shall apply to the court to validate the same and the Registrar shall thereupon summon the judgment debtor to appear before the court on such day as shall be fixed by the summons to show cause why such money should not be paid to the judgment creditor, or why such other movable property should not be seized and sold in execution of the judgment.The third party in whose hands such money or other movable property has been attached shall be summoned to appear at the same time to state what money or other movable property belonging to the judgment debtor is in his hands.
249. Hearing of application to validateOn the day so fixed by the summons, the court shall examine the person in whose hands such money or other movable property has been attached, on oath, concerning the money or other movable property alleged to be due to or to belong to the judgment debtor and shall hear all such evidence as may be produced by the parties or that the court may think fit to call for, and after hearing such evidence the court shall either validate the attachment and direct the money or other movable property to be seized in execution or shall release the same from the attachment.
250. Effect of failure to validateIf no application be made to validate the order of attachment within fifteen days from the date on which it was issued or if the judgment creditor fails, without sufficient excuse, to appear in support of the application to validate it, the attachment shall cease to have effect and the money or other property shall be released from attachment.
251. Procedure for arrest and imprisonment of judgment debtorA judgment creditor may at any time, whether any other form of execution has been issued or not, apply to the court by petition, supported by an affidavit of the facts, for the arrest and imprisonment of his judgment debtor and the judge shall thereupon order a summons to be issued by the Registrar, calling upon the judgment debtor to appear in court and show cause why he should not be committed to civil imprisonment in default or satisfaction or the judgment or order.
252. Examination of judgment debtorThe judgment debtor on the day on which he has been summoned to appear, shall be examined on oath as to his means and witnesses may be heard on his behalf and on behalf of the judgment creditor.
253. When a judgment debtor may be imprisoned civillyIf the judgment debtor does not appear at the time fixed by the summons or refuses to make such disclosures as may be required of him by the court or if the court is satisfied that the judgment debtor —
254. Period of civil imprisonmentThe imprisonment which may be ordered under the last preceding section may be for the periods specified by section 10 of the Imprisonment for Debt Act.Section 10 to 15 of that Act shall apply to and be read with sections 251, 252 and 253 of this Code.
255. Process of execution notices to be given before sale in executionEvery usher execution any process of execution against the movable property of any person, before selling such property, shall give at least four days’ notice of the intended sale, by publication in the Gazette and by posting up notices on the court notice board, outside the principal post office in Victoria, on the main door of the market place in Victoria, outside the police station nearest to the place where the property is to be sold and on the outer door of the house or place where the property has been seized. Such notices shall state the place and the date and the hour of the intended sale and shall specify in a general manner the nature of the property to be sold:Provided however that if the property seized by the usher is of a perishable nature and cannot be kept without deterioration for a sufficient time to permit such notice to be given, or if the party whose property has been seized so request in writing, the sale may take place after shorter notice and without any publication in the Gazette.The notices required to be posted up by articles 629 and 645 of the French Code of Civil Procedure shall be posted up at the same places as required by this section in the case of an intended sale in execution.
256. Movable property seized to be sold within one month from seizureMovable property seized in execution shall be sold by the usher within one month from the date of the seizure, unless the court directs otherwise. If the judgment creditor at whose instance the movable property was seized neglect to cause such property to be sold within the period of one month aforesaid or to obtain an order of the court extending the period within which such sale is to take place, the person whose property has been seized may apply to the court by motion made ex-parte to release such property from seizure.
257. Postponement of saleIf the sale of the property seized is postponed (a) by the court or (b) by the usher to a later date within the period of one month mentioned in the last preceding section, fresh notice of the adjourned sale shall be given by the usher in the same manner as provided by section 225.
258. Witnesses to seizureThe usher executing a warrant shall be accompanied by two witnesses, who shall be citizens of Seychelles, of age, and not nearly related to the usher by blood or marriage.
259. Entry on premises to effect executionEvery usher acting under a warrant to levy, or arrest any party, may open any outer door or window of any dwelling house, or other building, in order to execute such warrant, if, after notification of his authority and purpose and demand of admittance duly made, he cannot obtain admittance; and he shall be obliged to show his warrant, if required to do so.
260. Property seized to be placed in charge of custodianThe movable property seized by the usher shall be deposited by him in some fit place or may remain in the custody of a suitable custodian (guardian) approved by the usher, until the sale takes placeIf the party whose goods have been seized offers a suitable person who is solvent and who is willing to act as custodian without remuneration and at once, such person shall be appointed custodian by the usher.The judgment creditor, the husband or the wife or near relations by blood or marriage, or servants of the judgment creditor may not be appointed custodians, but the party whose property has been seized and the husband or wife or relations by blood or marriage or servants of such party may be appointed custodians, if they consent and if the judgment creditor consent.A list of the articles seized shall be given to the custodian by the usher at the time when they are seized.The usher after seizing any property shall close all the doors and windows of the building or premises in which such property is deposited and shall affix his seals on all such doors or windows and each time that it may be necessary for him to remove any seal so affixed, for the performance of his duties, he shall reaffix such seal on leaving the premises.
261. Custodian not to use articles seizedThe custodian is not permitted to make use of the articles seized or to hire them out or to lend them, and he must account for any profit or revenue which they produce. He shall be liable in damages for any failure to comply with the provisions of this section.
262. Dismissal of custodianA custodian may be relieved of his duties by the Registrar at any time before the sale takes place, on the application of the custodian himself or he may be dismissed by the Registrar on the application of the usher if it be shown that he has been guilty of misconduct or of neglect of his duties. In any such case a new custodian shall be appointed who shall verify the articles seized with the list made by the usher, before commencing his duties.
263. Particulars to be contained in memorandum of seizureThe usher executing the warrant shall return to the Registrar a memorandum of the seizure (procès verbal de saisie) to be filed with the record.The memorandum shall state the date on which the seizure was made, the name and residence of the plaintiff and of the defendant in the suit, the name of the custodian appointed by the usher, the names of the persons with whom a copy of the memorandum of seizure has been left, and it shall contain a detailed list of the articles seized. It shall be stated whether seals have been affixed by the usher. The memorandum shall be drawn up and signed, both as regards the originals and the copies, by the usher, by the custodian and by the witnesses to the seizure. If the custodian cannot write, mention shall be made of this.
264. Merchandise and plateIf the articles seized include merchandise, such merchandise shall be weighed and measured.If they include plate (argenterie), the pieces of plate and the plate-marks shall be specified and they shall be weighed.
265. Valuable securitiesIf the article seized include bank notes, drafts, valuable securities or money in cash, their number and description and the value so far as is apparent, shall be specified in the memorandum and they shall be deposited by the usher with the Registrar.
266. Private papersIf the person whose movable property is seized is not present when the seizure is made, and any room or piece of furniture is found to be locked, the usher shall open such room or piece of furniture in the presence of a police officer and if he finds there any private papers, he shall place them in some suitable receptacle within the building where the property has been seized and shall affix his seals to such receptacle.
267. Copy of memorandum of seizure to be left with person whose goods are seizedA copy of the memorandum of seizure shall be left by the usher with the person whose goods are seized —
268. Where property seized is to be soldMovable property seized in execution shall be sold by the usher by auction at the premises of the person whose property has been seized or at some other suitable place within the district where the seizure has been made:Provided that if either the usher or the judgment creditor or the judgment debtor is of opinion that no adequate price can be obtained by selling the property at any such place, any of them may apply to a Judge to fix another place for the sale and the Judge shall thereupon fixsuch place as he shall think fit:Provided also that silver plate (vaiselle d'argent) or jewellery exceeding one hundred and fifty rupees in value shall be sold at some suitable place in the town of Victoria.
269. Execution not to be delayed by objectionsThe usher in charge of any warrant of execution or writ to place in possession shall proceed with the execution thereof notwithstanding any objection made by the party against whom such warrant or writ has been issued, but such party in case of need may apply to the court by a reference under article 806 of the French Code of Civil Procedure.
270. How property to be soldThe property seized shall be sold to the highest bidder for cash. If the purchaser makes default in payment, the article purchased by him shall be resold by folle enchère. If the value of the property seized exceeds the amount which the usher is empowered to levy by the warrant of execution, the usher shall only sell so much of the property as shall be sufficient to realise such sum.
271. Particulars to be contained in memorandum of saleThe usher in charge of the sale shall return to the Registrar a memorandum of the sale (procès verbal en vente) to be filed with the record. The memorandum of sale shall state the date and the hour of the sale and the place where it was held. It shall give the name and residence of each purchaser and the price paid for each article sold. The usher shall attach to the memorandum the notice announcing the sale and a certificate stating where copies of such notice have been posted up and he shall sign the memorandum. The usher is personally responsible for the purchase price of the articles sold. He may not receive more than the amount bid.
272. Usher to return memorandum of execution to RegistrarEvery usher executing any warrant for the delivery of specific movable property or any writ to place any person in possession of immovable property shall return to the Registrar, to be filed with the record, a memorandum stating what he has done in execution of such warrant or writ.
273. Claims by third partiesIf when any movable property has been seized in execution any third party claims such property or any part thereof, or the proceeds thereof, as his own property, or in the case of a landlord as a distress for rent, such third party may lodge an opposition in the hands of the usher executing the warrant, either against the sale of such property or against payment to the party at whose instance it has been seized, of the proceeds of such sale.The usher shall record the opposition lodged in his memorandum of seizure.
274. Procedure to release property from seizureWithin three days from the date when such opposition has been lodged, the claimant shall apply to the Registrar for a summons calling upon the party at whose instance the property has been seized to show cause why such property should not be released from seizure.Failing such application, the opposition shall be of no effect.
275. Hearing of applicationThe Registrar shall thereupon issue a summon to the judgment creditor to appear before the court on a date to be fixed in the summon, and the court after hearing both parties on oath and their witnesses, if any, shall adjudicate upon the claim and either order the property claimed to be released from seizure or may make such other order as shall be just and may make such order as to costs as it considers fit.If either party fails to appear on the date fixed in the summons, without sufficient excuse, the court may proceed with the hearing and adjudication in the absence of such party.
276. Postponement of sale pending hearing of applicationThe court may order that the sale of the property seized be postponed pending the hearing of the summons or that the sale proceed but that the property claimed be excluded from the sale.If any such order be made, the usher shall give notice thereof and of the date to which the sale has been postponed, in the same manner as notice of a sale in execution must be given under this Code:Provided that the court shall not make any such order unless the claimant deposit with the Registrar a sum of money sufficient to cover the costs of such notice.
277. Opposition by creditorsThe creditors of the party whose movable property has been seized in execution may only lodge an opposition against the proceeds of the sale of such property.The opposing creditor shall either hand to the usher a written statement of the grounds, of his claim (opposition), or he shall make a verbal claim, which shall be recorded by the usher in writing.The usher shall thereupon notify the creditor at whose instance the movable property was seized of the opposition lodged.
278. No suits between creditorsNo suit shall be brought by the opposing creditor in regard to his claim except against the party whose movable property has been seized, and for the amount of his claim; and no suit shall be brought by other creditors against the opposing creditor in regard to their claims, but such other creditors may make their claims when the proceeds of the property sold are being distributed.
279. Procedure when a prior seizure has been effectedIf an usher who is about to seize any movable property in execution finds that such property has already been seized and placed in charge of a custodian, the usher shall not effect a second seizure but he may check the list of articles seized, which list the custodian shall be bound to show him, with the articles found on the premises.The usher shall seize any articles which have not been included in the list and shall draw up a memorandum of verification (procès verbal de recolement) which shall contain a list only of the articles not included in the first seizure.Such memorandum of verification shall be served upon the party at whose instance the first seizure was made, and shall have the effect of an opposition to the proceeds of the sale.
Provisional seizure and attachment
280. Application to seize or attach provisionallyAt any time after a suit has been commenced, the plaintiff may apply to the court to seize provisionally any movable property in the possession of the defendant in the suit or to attach provisionally any money or movable property due to or belonging to the defendant in the suit, which is in the hands of any third person.The application shall be by petition supported by an affidavit of the facts and shall be signed by the plaintiff or his attorney, if any, and shall state the title and number of the suit.
281. When application may be grantedIf the court is satisfied that the plaintiff has a bona fide claim, the court shall direct a warrant to be issued to one of the ushers to seize provisionally such property, or shall make an order prohibiting the third person in whose hands such money or other movable property is from paying such money or delivering such property to any other person pending the further order of the court. The order shall be served on the third party by an usher of the court.The court, before any such warrant or order is issued, may require the applicant to find such security as the court may think fit.
282. Property seized not to be sold until after judgmentThe usher making the provisional seizure shall place the property seized in the custody of a responsible person and the property shall not he sold until after judgment has been given in the suit.
283. Validation of provisional seizureIf the plaintiff obtain judgment in his favour, any property provisionally seized shall remain under seizure, unless the plaintiff otherwise request, until the seizure is validated. If no application be made within eight days after judgment has been delivered to validate such seizure, the property seized shall be released from seizure on motion made ex parts by the judgment debtor.If the provisional seizure be validated, the procedure thereafter shall be the same as in the case of movable property seized in execution after judgment.
284. Procedure to validate provisional attachmentIf the plaintiff obtain judgment in his favour, any money or other movable property attached in the hands of a third person shall remain under attachment, unless the plaintiff otherwise request, until the attachment is validated. Within eight days after judgment has been delivered, the judgment creditor shall apply to the court to validate the attachment and he shall within the same period issue a summons(a) to the judgment debtor to show cause why such money should not be paid to the judgment creditor or why such other movable property should not be seized and sold in execution of the judgment and(b) to the third party to appear in court and state what money or other movable property due to or belonging to the judgment debtor is in his hands and the court shall thereupon proceed in the manner laid down in section 249. If the judgment creditor fails to take any of the steps required by this section within the time specified, or if he fails without sufficient excuse to appear in support of his application, the money or other property attached shall be released from attachment on motion made to the court ex parte by the judgment debtor and notice of such release shall be given to the third party, at the cost of the judgment debtor unless the court direct otherwise.
285. Effect of judgment against the plaintiffIf a plaintiff, who has seized or attached money or other property provisionally, have judgment given against him, the provisional seizure or attachment shall he removed forthwith and notice thereof shall be given to the third person in whose hands such money or property was attached provisionally, at the cost of the plaintiff.
286. What movable property may not be attachedThe following movable property shall not be liable to attachment:
287. Exceptions to rule as to non attachment
Attachment of salaries and pensions
288. Definition of termsIn this Code the term 'Government" shall include all departments borne upon the annual estimates of revenue and expenditure.The term 'insolvency" shall mean any judicial application for leave to make a cessio bonorum, or for a full discharge of all debts.The term "insolvent" shall mean any person making such judicial application.
289. Opposition to salaries and pensions abolishedNo opposition to the payment or saisie arrêt of any sum of money or of any goods due by way of salary or pension to any person in the employment of the Government or of any partnership, corporation, or person shall, except as hereinafter provided, be in any case made or permitted.
290. Salaries and pensions when attachable and to what extent
291. Form and service of order. Payment of sum attachedSuch order shall be directed to the Principal Secretary of the Ministry of Finance or to the employer as the case may be, and shall specify the name and position of the bankrupt, insolvent, or judgment debtor, the date of the bankruptcy, insolvency, or judgment awarding the alimony, the person to whom payment is to be made, the amount to be paid per month, and the period for which such payments are to continue. On such order being served by an usher upon the Principal Secretary of the Ministry of Finance, or the employer, it shall be their duty respectively to pay on demand, accompanied by tender of a receipt in writing, to the person appointed by the order to receive payment, on the first day of each month during the continuance of the order, the specified portion of all salary or pension accruing due to the bankrupt, insolvent, or judgment debtor after the date of such service.
292. Revocation and amendment of orderAny such order may, at any time, be revoked or varied by the court or Judge aforesaid.Such amended order shall be mutatis mutandis in the form of an original order, and shall take effect from the date of its service by an usher upon the Principal Secretary of the Ministry of Finance, or the employer as the case may be.
293. Registrar to report judgments obtained against civil servantsIt shall be the duty of the Registrar or clerk of the court in which any judgment for debt shall be given against any person in the employment of the Government to report the said judgment to the Minister responsible for Finance for the information of the President.
294. Effect of order of attachmentAny order of attachment given under the provisions of this Code shall have the force and effect of a judgment validating an opposition or saisie arrêt saving the right which any party may have to obtain the removal of the said attachment before the competent court.
Summary procedure on bills of exchange
295. Special writ; judgmentAll actions upon bills of exchange or promissory notes commenced within six months after the same shall have become due and payable may be by writ of summons in the special form contained in Schedule D, and indorsed as therein mentioned, and it shall be lawful for the plaintiff, on due proof of personal service of such writ within the jurisdiction of the court, or an order for leave to proceed, and a copy of the writ of summons and the endorsements thereon, in case the defendant shall not have obtained leave to appear and have not appeared to such writ according to the exigency thereof, at once to sign final judgment in the form contained in Schedule E, for any sum not exceeding the sum endorsed on the writ, together with the interest at the rate specified(if not exceeding the legal rate of interest) or if none be specified, the rate of interest allowed by law in such cases to the date of the judgement, and a sum for costs to be fixed by the court, unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way, and the plaintiff may, upon such judgment, issue execution forthwith.
296. Leave to appearThe court shall, upon application within the period of twelve days from such service, give leave to appear to such writ, and to defend the action, on the defendant paying into court the sum indorsed on the writ, or upon affidavits satisfactory to the Judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the Judge may seem fit.
297. Leave to appear after judgment in special circumstancesAfter judgment the court may, under special circumstances, set aside the judgment, and, if necessary, stay or set aside execution, and may give leave to appear to the writ, and to defend the action, if it shall appear reasonable to the court so to do, and on such terms as to the court may seem just.
298. Deposit of bill, security for costsIn any proceedings under this Code, it shall be competent to the Court or a Judge to order the bill or note sought to he proceeded upon, to be forthwith deposited with an officer of the court, and further to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs thereof.
299. Recovery of expenses, etcThe holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in protesting the same, for non-acceptance or nonpayment, or otherwise, by reason of such dishonour, as he has under this Code for the recovery of the amount of such bill or note.
300. Writ to all parties to billThe holder of any bill of exchange or promissory note may, if he thinks fit, issue one writ of summons, according to this Code, against all or any number of the parties to such bill or note, and such writ of summons shall be the commencement of an action or actions against the parties therein named respectively, and all subsequent proceedings against respective parties shall be in like manner, so far as may be, as if separate writs of summons had been issued.
301. Application of certain English ActsThe provisions of the Common Law Procedure Act, 1852, and the Common Law Procedure Act, 1854, and all rules made under or by virtue of either of the said Acts, shall, so far as the same are or may be made applicable, extend and apply to all proceedings to be had or taken under section 295 to 300.
302. ExecutionJudgments recovered under section 295 to 301 upon bills of exchange and promissory notes may be executed by arrest of the body in execution under the provisions of the Imprisonment for Debt Act and of this Code.
303. Jurisdiction in partnership disputes Supreme Court to decide in matters of partnershipThe Supreme Court shall have like jurisdiction for hearing and determining as ordinary commercial actions, any matters in disputes between partners relative to the affairs of their partnership, as such court has concerning other matters now triable before it.
Grant of injunctions and orders of sequestration
304. Court to have power to issue injunctions pendente lite or after judgmentIt shall be lawful for any plaintiff, after the commencement of his action and before or after judgment, to apply to court for a writ of injunction to issue to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and such writ may be granted or denied by the said court upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as shall seem reasonable and just.
305. Application for injunction may be by motion with noticeApplication under section 304 shall be made by way of motion in court upon due notice given to the defendant.
306. Orders for writs of injunction may be enforced by attachmentOrders for writs of injunction issued under section 304 may be enforced by attachment in the same manner and to the same extent as similar writs issued by the Supreme Court of Mauritius.
307. Right of the court to make sequestration orders as to property in disputeIt shall be lawful for the court upon the application of any interested party and applying the provisions of article 1961 of the Civil Code at any time after the entering of the action and before the final judgment of the court, or in the case of an appeal, before the final judgment of the appellate court, has been filed, to order the sequestration of any movable or immovable property, the ownership or possession of which is the subject of any suit or action or as to which any action in cancellation, rescission or resolution of sale has been entered.The sequestration shall be under such conditions as the court in its discretion may determine.
308. Procedure to arrive at sequestrationThe procedure to arrive at such sequestration shall be that provided in sections 123, 124 and 125 of the Immovable Property(Judicial Sales) Act, with the exception that applications shall be made to the Judge, and be returnable before the court, and that publication in the official Gazette shall be sufficient publication of such application and of the return-day.
309. Expenses of the sequestration, by whom to be paid. Security may be requiredThe expenses of the sequestration shall be provided in the first instance by the party applying for the same, and the court may before ordering such sequestration require security to be furnished for the due payment of such expenses.
310. Accounts of sequestrator to be deposited in the RegistryThe sequestrator shall be bound to deposit in the registry of the court a copy of the accounts of his administration at the time which may have been specified in the sequestration order, or at any other time which the court may order.
Power to appoint commissioner to examine accounts
311. Power of court to appoint commissioners to examine accountsIn any suit or cause in which an account has to be rendered or in which an examination or adjustment of accounts is necessary, the court may at any stage of the proceedings issue a commission to some fit person, chosen by the parties or in default of agreement by the court, directing him to make an examination or adjustment of such accounts, within such time as may be fixed by the court:Provided that the court may appoint more than one person as commissioner.
312. Court to give commissioner necessary instructionsThe court shall furnish the commissioner with such part of the proceedings and such detailed instructions as may appear necessary and the instructions shall specify whether the commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the points referred for his examination.
313. Expenses to be deposited in the registryBefore issuing any commission under this Code, the court may order such sum as it thinks reasonable for the expenses of the commission to be deposited in the registry, by either party, within such time as may appear necessary.
314. Court to direct parties to appear before commissionerWhenever a commission is issued under this Code, the court shall direct the parties to the suit to appear before the commissioner in person or by their agents, counsel or attorneys.The commissioner shall fix a time and place for proceeding with the inquiry and any adjournment thereof and shall inform the parties. If at the time and place appointed by the commissioner one of the parties fails to appear, the commissioner may proceed ex parte; if neither party appears the commissioner shall refer the matter back to the court and the court may thereupon either dismiss the case or make such order as shall appear just under the circumstances.
315. Powers of commissioner
316. Proceedings to be filed in courtWithin the time fixed in the order of appointment or within such further time as may appear necessary to the court, the commissioner shall file in court the proceedings held by him, and his report if any.
317. Proceedings in court after inquiryWithin seven days from the date of the filing of the proceedings and report the parties may file their objections, and the court after hearing argument thereon on either side may either accept the report or direct that further evidence be heard in court on any point in dispute or refer the matter back to the commissioner for further inquiry and report.
318. Penalties for obstructing commissionerWhoever insults, obstructs or otherwise interferes with the commissioner while acting in the discharge of his duties shall be liable to prosecution and on conviction to a fine not exceeding eight hundred rupees.
319. Receipts produced in support of items in cases of rendition of accounts to be exempt from registrationReceipts of suppliers of goods, workmen, hotel keepers and others of the like nature, produced in support of the items of an account before the commission or before the court, in case of rendition of account, shall be exempt from registration.
320. Parties entitled to travelling expensesIn all cases in which an account has to be rendered, other than commercial cases, the party rendering the account shall be entitled to his travelling expenses if any, fair remuneration for the preparation of the account, and the cost of filing the account.
321. Periods of time how to be interpretedWhenever any period of time is fixed by the court or by any law for any appearance to be made or any act to be done, the day on which the order is made by the court and the day on which the period specified in such order of the court or by such law expires, shall not, unless otherwise stipulated, be reckoned in computing the period of time fixed by the court or by such law.
322. Valuation by experts, attendanceWhenever any person has been summoned or given notice to be present at a valuation to be made by experts(under the French Code of Civil Procedure) and such valuation is not completed at the first meeting of the experts, but is adjourned to a later date, it shall not be necessary to summon or give notice to such person to be present at the adjourned meeting of the experts.
323. When Judge may make orders at his own houseIn cases of emergency, it shall be lawful for a Judge to make at his own residence any order upon any application or petition which could lawfully be made by him at chambers.
324. Place of sittings of the courtThe court shall ordinarily sit in the town of Victoria at the building now used by the Supreme Court or in any other building which may be provided by the Government for the use of the court, but the Judge may, if he considers it expedient or convenient in the interests of justice, hold sittings of the court in the Districts of Praslin and South Mahé. Such sittings shall be held in the Court House of the Justice of the Peace in the District in which the court is to be held.Notice of intention to hold any such sitting of the court shall be given by publication in the Gazette and by posting a notice in a conspicuous place outside the Court House in which the court is to be held not less than seven clear days prior to the date on which the court is to be held.
325. Rules of CourtThe Chief Justice may, with the approval of the Minister, make rules for more effectually carrying out the provisions of this Code, and may amend or cancel rules made in virtue of the powers conferred by this section.
326. RepealsThe laws, enactment, Ordinance, rules and orders, and the Arrêtés mentioned in the first column of Schedule B are hereby repealed to the extent specified in the second columnthereof.
327. French Code of Civil ProcedureArticles of the French Code of Civil Procedure repealed by any law which is repealed by this Code shall remain repealed.
328. FormsThe forms set forth in Schedule C, with such variation as the circumstances of each case require, shall be used for the respective purposes therein mentioned and where no form for any proceeding is given, they shall be looked upon as models and followed so far as possible, according to the requirements of the case.
History of this document
01 July 2021 amendment not yet applied
15 April 1920
|Counsel and Attorneys Fees Regulations||Statutory Instrument 6 of 1980|
|Supreme Court (Term) Rules||Statutory Instrument 16 of 1981|