IN THE COURT OF APPEAL OF SEYCHELLES
Reportable
[2022] SCCA 52 (19th August 2022)
SCCA 52
SCA 19/2020
(Arising in CS 02/2019)
In the Matter Between
Dynamics (Proprietary) Limited First Appellant
Gregory Albert Second Appellant
(rep. by Mr Guy Ferley)
And
Daniel Vadivello First Respondent
Lidianne Agathine Second Respondent
(rep. by Mr Serge Rouillon)
Neutral Citation: Dynamics (Pty) Ltd (herein rep. by its Director Mr Gregory Albert) & Anor v Vadivello & Anor (SCA 19/2020) [2022] SCCA 52 (Arising in CS 02/2019) (19 August 2022)
Before: Robinson, Tibatemwa-Ekirikubinza, Andre, JJA
Summary: Damages for breach of contract
Heard: 5 August 2022
Delivered: 19 August 2022
ORDER
(i) The appeal is dismissed in its entirety.
(ii) The order of the learned Chief Justice that ― ″under the written contract, they [the respondents] are due half of this loss, that is SR91,700″, is upheld.
(iii) Hence, the total award of the learned Chief Justice that the appellants shall pay the respondents the sum of SCR108,300 is upheld.
(iv) With costs in favour of the respondents before the Supreme Court and at the appeal.
JUDGMENT
ROBINSON, JA
The respondents, the plaintiffs then, filed a plaint against the appellants, the defendants then, before the Supreme Court, for damages for the loss they have sustained in the total sum of SCR920,000 for breach of a written agreement entered into by the first appellant and the first respondent on the 6 August 2016, hereinafter referred to as the ″Agreement″. The appellants' defence pleaded a counterclaim.
The plaint pleaded the following particulars of loss and damage ―
″a) Loans and bills plaintiffs have had to pay less half of the income as per the parties' agreement and continuing with interest and costs 200,000
Loss of profits with interest and costs continuing 350,000
Special damages for moral, physical and traumatic stress for 1st plaintiff 300,000
Special damages for moral, physical and traumatic stress for 2nd plaintiff 70,000
TOTAL 920,000″.
The learned Judge delivered a judgment ordering the appellants to pay the respondents the sum of SCR108,300 with costs.
The reasoning of the learned Judge is found inter alia in paragraphs [77] and [78] of the judgment ―
ʺ [77] I have already indicated that the written contractual terms are to the effect that both parties would share equal liability for the profit and loss of the event. The additional terms and conditions in terms of responsibilities of each party as adduced are unclear and unreliable. In the circumstances, I can only give effect to the clear terms of the contract as supported by evidence. I find that the Plaintiffs expended SR183,400 as supported by the receipts they have produced and has been acknowledged by the Defendants. Under the written contract, they are due half of this loss, that is SR91,700.
[78]With regard to the profits under the written contract, I take the evidence of all the parties concerning the concert attendance at its lowest - 2000 patrons at SR200 per ticket equals SR400, 000. Each party is due half of that, that is SR200,000ʺ.
The appellants have challenged the judgment of the learned Chief Justice on the following grounds ―
″i. The Honourable Chief Justice erred in law in failing to find the 1st and 2nd Respondents liable to the Appellants.
The Honourable Chief Justice erred in law in failing to properly calculate the quantum of damages payable and further failed to hold that damages should have been paid by the 1st and 2nd Respondents to the Appellants.
The Honourable Chief Justice erred in law in computing the damages and compensation in accordance with the evidence, both oral and documentary.″
Analysis of the grounds of appeal
Ground ″i″ of the grounds of appeal
Ground ″i″ of the grounds is vague and cannot be entertained as it amounted to no ground of appeal under rule 18(3) and (7) of the Seychelles Court of Appeal Rules, 2005, as amended (S. I. 13 of 2005). Rule 18(3) of the Seychelles Court of Appeal Rules, 2005, as amended, stipulates ―
″18 (3) […] grounds of appeal shall set forth in separate numbered paragraphs the findings of fact and conclusions of law to which the appellant is objecting and shall also state the particular respect in which the variation of judgment or order is sought.
[…]
7 No ground of appeal which is vague or general in terms shall be entertained, save the general ground that the verdict is unsafe or that the decision is unreasonable or cannot be supported by the evidence.″. [Emphasis supplied]
[7] The Court of Appeal has held that the word ″shall″ in rule 18(3) is mandatory; see, for example, Petit v Bonte [2000]SCCA 1 (SCA45/1999) [2000]SCCS 13 (14 April 2000); Chetty v Esther (SCCA 1 (SCA 44/2020) (appeal from MA No. 156/2020 and MC No. 69/2020; Elmasry and anor v Hua Sun (SCCA66) 17 December 2021) SCA 28/2019 (Arising in CC13/2014) SCSC451. In Petit [supra], the Court of Appeal stated ―
″It is important to note that Rules of Court are made in order to be complied with. Without complying with and should the Court allow that to happen, then it is both sending wrong signals and establishing precedent, which may eventually lead to flouting and abuse of the whole court process. That should not be allowed to happen […]″.
[8] For the reasons stated above, we strike out grounds ʺ(i)ʺ of the grounds.
Grounds ″ii″ and ″iii″ of the grounds
[9] The appellants argued grounds ″ii″ and ″iii″ together.
[10] These two grounds essentially contended that the learned Judge was wrong in awarding damages in this case as there was no evidence to prove the damages.
[11] We have considered prudently the skeleton heads of argument submitted on behalf of the appellants and the respondents concerning these two grounds. Learned Counsel for the appellants, in his skeleton heads of argument, disputed the sum of SCR91,700 awarded by the learned Chief Justice concerning the loss the respondents claimed to have suffered.
[12] Nadege Malbrook PW-3, who had been the first appellant's accountant at the time of the event, gave evidence that she was aware of the Agreement between the parties, which provided that the profits and losses would be shared equally between them. She testified about a spreadsheet, exhibit P3, which she had prepared. According to her, the spreadsheet inter alia explained the losses made. We were shocked that she could not clearly explain the spreadsheet's items. The learned Chief Justice remarked during the cross-examination of Nadege Malbrook PW-3 that the figures did not match. We have examined the spreadsheet and the testimony of Nadege Malbrook PW-3 with care. We also noted that the figures did not match.
[13] The first respondent testified that his expenses included the payment for logistics, namely the sound, the lights, the rehearsals, power and marketing. He gave all the receipts of his expenses to the appellants, which were in the expenses spreadsheet. His expenses were SCR183,400, which were tallied with the spreadsheet ― the receipts were exhibited.
[14] We observe that the appellants, who had counterclaimed, did not show what their expenses would have been. They relied principally on the spreadsheet and the testimony of Nadege Malbrook, PW-3.
[15] In light of the above, we conclude that the learned Chief Justice cannot be faulted for taking the approach she did in this case concerning the calculation of the loss suffered. We agree with the award of the learned Chief Justice and accept the respondents' submission that the appellants/counterclaimants have failed to prove the quantum of their loss in this regard. In the case of Pool v H. Savy Insurance (SCA 27 of 2019) [2021] SCCA 70 (delivered on the 17 December 2021), this Court reiterated that where the plaintiff is entitled to recover from the defendant, to do so, he still has to prove the loss he has suffered and the quantum thereof.
[16] For the reasons stated above, we accept the conclusion of the learned Chief Justice that ― ″under the written contract, they [the respondents] are due half of this loss, that is SR91,700″.
[17] Hence, grounds ″ii″ and ″iii″ of the grounds are misconceived and stand dismissed.
Decision
[18] In the final analysis, we uphold the order of the learned Chief Justice that the appellants shall pay the respondents the total sum of SCR108,300. With costs before the Supreme Court and at the appeal in favour of the respondents.
________________
F. Robinson
Justice of Appeal
I concur: ________________________ Dr. L. Tibatemwa-Ekirikubinza, JA
I concur: _________________________ S. Andre, JA
Signed, dated and delivered at Ile du Port on 19 August 2022.
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