IN THE COURT OF APPEAL OF SEYCHELLES
[Reportable]
[2025] (22 April 2025)
SCA 17/2024
(Arising in CS 132/ 2019)
Doris Matile-Otar Appellant
(rep. by Joel Camille)
and
Gopinath Builders (Pty) Ltd Respondent
(rep. by Karine Dick)
Neutral Citation: Matile-Otar v Gopinath Builders (Pty) Ltd [2025] (22 April 2025) SCA 17/2024 (Arising in CS 132/ 2019)
Before: Twomey-Woods, Robinson & Andre (JJA)
Summary: Breach of procedural rules - Breach of building contract - defective workmanship - delays - unpaid retention sums -financial claims by both parties- professional misconduct in prosecuting appeal
Heard: 8 April 2025
Delivered: 22 April 2025
ORDER
The appeal is dismissed. The costs of the appeal are to be borne by Counsel for the Appellant who is also ordered to refund all monies paid to him by the Appellant. Counsel is referred to the Chief Justice for appropriate action for his misconduct.
JUDGMENT
DR. M. TWOMEY-WOODS JA
Background
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The facts of this case are eloquently set out by the learned trial judge, Dodin, and I can do no better than to concisely recount the events that led to this dispute and the final judgment rendered by the court a quo.
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The Appellant and Plaintiff in the court a quo, Doris Matile-Otar (Mrs. Matile-Otar), entered into a contract with the Respondent and Defendant in the court a quo, Gopinath Builders (Pty) Ltd (the Contractor), for the construction of a three-bedroom house on her property at Au Cap, Mahé, for the sum of SCR 2,817,520. This agreement was later expanded to include the construction of a basement unit for an additional SCR 1,025,000. Mrs. Matile-Otar alleges that the Contractor failed to complete the house by the agreed deadline of late 2016 or early 2017, misled her about its progress, and delivered a structurally defective building requiring extensive repairs, estimated at SCR 2,840,309.93. She seeks SCR 1,010,000 in damages for financial losses—including rent, assessments, and delays—as well as emotional distress. Additionally, she demands that the Contractor either complete and rectify the house or bear the costs of the necessary repairs.
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The Contractor, however, denies any wrongdoing, refuting claims of delays or misleading conduct. It asserts that the delays were a direct result of Mrs. Matile-Otar’s numerous additional requests. The Contractor maintains that the house is safe, habitable, and consistent with the approved plans, requiring only minor cosmetic adjustments. In response, it counterclaims SCR 669,284 for unpaid works and SCR 452,935.80 for additional works performed at her request, seeking dismissal of her claims and payment of these sums, along with interest and costs.
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After a thorough examination of the evidence, including testimony from multiple witnesses and conflicting expert reports, as well as final submissions on both fact and law from each party, the learned trial judge concluded that Mrs. Matile-Otar had failed to substantiate her claims that the Contractor breached the contract or that the house required complete reconstruction, despite some expert opinions suggesting extensive repairs or even demolition.
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The Court observed that Mrs Matile-Otar has resided in the house since 2018 without incident, and while certain cracks were present, they were deemed largely superficial, apart from one major crack. The delays in construction were partially attributed to her own additional requests. Consequently, the Court awarded her SCR 403,300 to cover rental costs, partial delay damages, and moral distress.
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Notably, the court failed to make an award or grant a remedy for a significant crack it had noted on its two visits to the locus in quo.
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In contrast, the Court upheld the Contractor’s counterclaim in full, awarding SCR 1,084,043 for unpaid and additional works. This decision was based on Mrs. Matile-Otar’s admission that she owed the original contract balance which she had withheld pending the completion of repairs and the Contractor’s demonstration that the extra work had been carried out at her behest.
The Appeal
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Ultimately, Mrs. Matile-Otar’s claims met with only partial success, while the Contractor’s counterclaim was entirely vindicated. Dissatisfied with this decision, Mrs. Matile-Otar has filed four grounds of appeal, which contents and their consideration have now become redundant given the serious procedural irregularities in the appeal. I explain.
Fatal Procedural irregularities
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Rule 24(1) (a) of the Seychelles Court of Appeal Rules 2023 provides that:
“The Appellant shall lodge five copies of the Appellant’s main heads of argument with the Registrar within one month from the date of service of the records. A copy of such heads of argument shall be served on each of the Respondents at the same time.”
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The records were duly served on Mr. Joel Camille, Counsel for Mrs. Matile-Otar, on 24th January 2025, and his heads of argument, therefore, should have been filed no later than 23 February 2025. Despite repeated reminders, Mr Camille failed to comply with the rule.
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The heads of argument were finally filed on Thursday, 3 April, the weekend just before the appeal hearing was set to begin. The following day, Counsel filed a motion for condonation of the delay, accompanied by an affidavit in which he explained the reasons for the late submission. He stated that he had notified his landlord to terminate his lease on 22 January 2025, requiring him to vacate the premises he had occupied since 2019 by 23 March 2025. Although he secured new premises in Market Street, he experienced electronic communication issues during the move, forcing him to close his office for the entire month of February 2025. His practice only became fully operational again on 17 March 2025.
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Learned Counsel for the Contractor, Ms. Dick, opposed the application for condonation of the delay. In her submissions, supported by the Contractor's affidavit, she argues that Mr. Camille's reasons for the delay were neither reasonable nor sufficient to demonstrate good cause. She contends that he could have sought the court's permission for an extension of time to file his skeleton arguments before the statutory 30-day deadline expired but failed to do so. Instead, his condonation motion was filed just two days before roll call, which she maintains constitutes a serious violation of procedural rules.
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I agree with Ms. Dick the reasons given for condonation are void of merit. This court has explained in a number of authorities what constitutes good reasons for delay and what does not, and what the consequences of failure to adhere to the rules entail (See Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68 (CC); Aglae v Attorney General (SCA 35 of 2010) [2011] SCCA 3 (2 March 2011), Ratnam v Cumarasamy [1964] 3 All ER 933 (PC)), Auguste v Singh Construction (Commercial Case 71 of 2022) [2022] SCCA 69 (16 December 2022) (2022), Chang Sing Chung v Kim Koon and Ors (SCA MA 38 of 2023) [2023] SCCA 48 (25 August 2023) (2023).
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Counsel has a fundamental duty to uphold the administration of justice by diligently adhering to both legal and ethical obligations to clients and the court. This includes strict compliance with procedural rules, timely filing of documents, and maintaining transparency in professional conduct. His failure to meet filing deadlines despite having planned his office relocation demonstrates a disregard for these responsibilities. It is particularly reprehensible that he sought to justify his non-compliance by citing the move, which he had planned well in advance. If he was aware that the relocation would disrupt his ability to work, he should not have accepted fees for cases he could not properly service, as this constitutes a breach of trust toward his clients.
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Moreover, his averments lack credibility, given his earlier assurances during case management that he would comply with procedural timelines, albeit requesting additional time to review the appeal brief since he had not handled the matter at the trial stage. This inconsistency suggests either negligence or deliberate disregard for court directives. Such conduct not only undermines the integrity of legal proceedings but also erodes confidence in the profession. Courts and clients alike are entitled to rely on Counsel’s commitment to diligence and accountability; any deviation from these standards warrants serious censure.
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I am compelled to dismiss this appeal, not due to any lack of merit in the case itself, but because of Counsel’s inexcusable failure to adhere to procedural rules and fulfil his professional obligations. His neglect has done a grave disservice to his client a vulnerable and elderly woman who placed her trust in him to pursue justice on her behalf. The dismissal of what may have been a meritorious appeal is a profound injustice, one that could have been avoided had Counsel acted with the diligence and integrity expected of an officer of the court. This outcome underscores the severe consequences of legal malpractice, particularly when it deprives those most in need of a fair hearing. The Court is left with no choice but to dismiss the appeal.
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Before concluding, I must address the unfortunate predicament faced by Mrs. Matile-Otar. Through no fault of her own, her appeal which may well have had merit has been left unheard due to procedural failures beyond her control. In light of the trial court’s finding regarding a significant structural crack in her home, I strongly urge the Contractor to engage in good-faith negotiations toward an amicable settlement.
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Should this avenue prove unfruitful, Mrs. Matile-Otar retains the right to pursue alternative legal remedies. I draw particular attention to Article 2270 of the Civil Code, which stipulates that architects, contractors, and service providers are only released from their warranty obligations ten years after completion of the work. The Court expresses its sincere hope that justice may yet be achieved through equitable means.
Order
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The appeal is dismissed:
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The costs of this appeal are to be paid by Mr. Camille.
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Mr. Camille is to refund all fees to Mrs. Matile-Otar.
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Given the circumstances, I hereby direct the Registrar to forward a copy of this judgment, along with the complete records form the current session to the Chief Justice. These documents pertain to matters in which Mr. Camille neglected his professional obligations by failing to file pleadings within the prescribed timelines. This referral is necessary to ensure appropriate oversight and accountability.
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Dated, signed, and delivered at Ile du Port on 22 April 2025.
_____________________________
Dr. M. Twomey-Woods, JA.
ANDRE JA
[20] I concur with the lead judgment and wish to add the following remarks in agreement.
[21] Firstly, I agree with the finding that the Appellant’s Counsel failed to show good cause for the late filing of skeleton heads of argument. As stipulated in Rule 24(1)(a) of the Seychelles Court of Appeal Rules, 2023:
“The Appellant shall lodge with the Registrar five copies of the Appellant's main heads of argument within one month from the date of service of the record. A copy of such heads of argument shall be served on each of the respondents at the same time.”
[22] The record clearly shows that Counsel for the Appellant failed to comply with this rule, and the reasons advanced do not meet the threshold of “good cause.” The disruption from a planned office relocation, without proactive notice to the Court or a prior request for extension, reflects a disregard for procedural obligations, not a justifiable excuse.
[23] Secondly, as regards the issue of costs being borne personally by Counsel, I affirm that this Court acted within its discretion under paragraph 10 of the Third Schedule to the Court of Appeal Rules, 2023. Counsel was given an opportunity to justify the circumstances surrounding his negligence. However, no credible or compelling explanation was offered. The Court is not only empowered but obligated to ensure that such misconduct is not normalized through inaction. The costs de bonis propriis order and refund directive are appropriate to vindicate the client’s rights and preserve the integrity of this Court.
[24] Finally, while the appeal has been dismissed due to procedural default, I acknowledge the seriousness of the underlying grievances concerning the structural integrity of the Appellant’s home. The door remains open to explore further remedies under substantive law, particularly in light of Article 2270 of the Civil Code. Such recourse, of course, must be pursued within the bounds of any applicable prescriptive periods and the doctrine of res judicata. It is not the intention of this Court to preclude substantive justice where it may still be pursued lawfully.
ANDRE JA
Dated, signed, and delivered at Ile du Port on 22 April 2025.
ROBINSON JA
______________________________________________________________________________
Summary: Procedure – The Seychelles Court of Appeal Rules 2023, rule 26 – Application to extend time – Application dismissed.
Heard: 8 April 2025
Delivered: 22 April 2025
ORDER
The appeal is dismissed. Mr. Camille is ordered to refund all monies paid to him by the Appellant.
JUDGMENT
ROBINSON JA
[25] I need to decide whether or not to exercise my discretion under rule 26 of the Seychelles Court of Appeal Rules 2023 to extend the time for the Appellant to file her heads of argument, filed on the 3 April 2025. Rule 26 of the Court of Appeal of Seychelles Rules stipulates: "[t]he times fixed within these Rules may, on good cause shown by notice of motion supported by affidavit, be extended by the President or the Court."
[26] The Appellant sought an extension of time, explaining that her Counsel could not work on the appeal because he was in the process of moving his practice to a new location. She stated that her Counsel faced various problems related to this move and that he did not have the facilities to work on the appeal outside of his office. While there is nothing wrong with Counsel for the Appellant moving his practice to a new location, the reason provided that he did not have the facilities to work on the appeal outside of his office, is quite weak and unacceptable.
[27[ Having considered the notice of motion supported by affidavit, I conclude that the reasons advanced by the Appellant do not amount to good cause under rule 26 of The Court of Appeal of Seychelles Rules 2023. Hence, I will not exercise my discretion to extend the time under the same rule.
[28] I agree with the conclusion of Twomey-Woods and Andre JJA, that the appeal should be dismissed. I also agree with the order made by Twomey-Woods and Andre JJA that ʺMr. Camille is to refund all fees to Mrs. Matile-Otar.ʺ
_____________________________
Robinson JA
Dated, signed, and delivered at Ile du Port on 22 April 2025.
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