Vijay Construction (Proprietary) Limited v Eastern European Engineering Limited ((SCA 15/2024) [2025] (Arising in CC 17/2016) (22 April 2025)) [2025] SCCA 8 (22 April 2025)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2025] (22 April 2025)

SCA 15/2024

(Arising in CC 17/2016)

In the Matter Between

Vijay Construction (Proprietary) Limited Appellant

(rep. by Mr. Bernard Georges)

And

Eastern European Engineering Limited Respondent

(rep. by Mr. Basil Hoareau)

Neutral Citation: Vijay Construction (Proprietary) Limited v Eastern European Engineering Limited (SCA 15/2024) [2025] (Arising in CC 17/2016) (22 April 2025)

Before: Twomey-Woods, Robinson, Andre, JJA

Summary: Procedure — Function of pleadings and cardinal rules in pleadings — whether or not the Appellant's amended plaint alleged all material facts and is certain

Heard: 8 April 2025

Delivered: 22 April 2025

ORDER

1. The order of the learned Judge dismissing the Appellant's plaint is upheld.

2. The appeal is dismissed.

3. Each party shall bear its own costs.

______________________________________________________________________________

JUDGMENT

______________________________________________________________________________

ROBINSON JA

(TWOMEY-WOODS ANDRE JJA CONCURRING)

THE BACKGROUND TO THE APPEAL

1. The Appellant, the Plaintiff then, is a company registered in Seychelles carrying on trade as a building and civil contractor. The Respondent, the Defendant then, is a company registered in Seychelles promoting the construction of the Savoy and Spa at Beau Vallon, Mahe. The Appellant is appealing against the Supreme Court's decision dismissing its claim for damages against the Respondent.

2. I have presented a detailed summary of the pleadings in this case as grounds 1, 2, 3, 5, 6, 7, 8 and 9 of the appeal focused on whether or not the Appellant's amended plaint alleged all the material facts and is certain. Ground 4 of the appeal concerned the merits of the case.

3. At paragraph [2] of the amended plaint, it is averred that, by a series of agreements made in 2011, the Respondent engaged the Appellant to construct the Savoy Resort and Spa. At paragraph [3] of the amended plaint, it is stated that in or about February 2012, under the said agreements, the Appellant erected temporary buildings on the said Savoy Resort and Spa site to assist in its construction.

4. At paragraph [4] of the amended plaint, it is averred that the Respondent prematurely terminated the said contracts in April and July 2012, and the temporary buildings on the site of the said Savoy Resort and Spa and their contents were forcibly detained by the Respondent in September 2012.

5. At paragraph [5] of the amended plaint, it is averred that the Court of Appeal in SCA No. 10/2014, by a judgment dated 25 April 2016, ruled that the Appellant was the beneficial owner of the said buildings and their contents. It is averred at paragraph [6] of the amended plaint that, to date, the said buildings remain in the Respondent's possession despite the Appellant's demands that they be returned and the Appellant be indemnified for their loss. [Emphasis is mine]

6. At paragraph [7] of the amended plaint, the Appellant averred that the Respondent must make good its loss, which it values at USD1,016,789.48.

7. The particulars of loss averred at paragraph [7] are as follows: "1. Rent from 1 September 2012 until 30 April 2016 = USD828,564.00, 2. Interest on overdue rent at 1% per month = USD188,225.48, 3. Compensation for forceful acquisition = USD50,000.00." The Appellant prayed to the Supreme Court to enter judgment in its favour in the total sum of "USD1,016,789.48, with rent at USD18,831.00 per month from 1 May 2016 and interest accruing until the return of the buildings to the Plaintiff, with interest and costs". [Emphasis is mine]

8. The Respondent, in its amended defence, admitted paragraphs [1], [2], [3] and [5] of the amended plaint. With respect to paragraph [2] of the amended plaint, the Respondent averred that it had paid for the temporary buildings erected. The Respondent denied paragraph [4] of the amended plaint and averred that the Respondent terminated the contracts in accordance with the contracts due to the Appellant being in breach of the said contracts. The Respondent also denied paragraph [6] of the amended plaint. Paragraph [7] of the amended plaint is denied, whether as alleged or at all, and it averred that the Respondent has never entered into any rental agreement with the Appellant with respect to the temporary buildings. [Emphasis is mine]

9. The learned Judge reviewed the pleadings, the evidence presented by Mr. Kaushalkumar Patel (PW-1) and Mr. Eric Frank (PW-2) on behalf of the Appellant and Miss Cecile Bastille on behalf of the Respondent, and the final written submissions presented on behalf of both parties. Paragraphs [17] and [28] to [31] of the judgment state the relevant findings of the learned Judge —

"[17] Having carefully scrutinised the amended plaint, this Court is also of the view that the Plaintiff has clearly made a claim for rent against the Respondent as per his pleadings and his demand letter P3. Nowhere is it mentioned that the claim is based on the loss of use of the buildings, on the basis that the buildings had a residual life and would have been re-erected and reused on another site of works by the Plaintiff or that the loss of the buildings was a loss to the Plaintiff who was unable to use them elsewhere. The failure to include these facts, thereby somewhat disguising the circumstances of the claim, has misled the Defendant into believing this was a simple claim of rent. The Defendant also relies on the case of Tirant & Anor v Banane [1977] 219, where Wood J. held: "In civil litigation each party must state his whole case and must plead all facts on which he intends to rely, otherwise strictly speaking he cannot give any evidence of them at the trial. The whole purpose of pleadings is so that both parties and the Court are made fully aware of all the issues between the parties.

[28] It is the Defendant's contention that there is a factual finding of the Arbitrator that the Defendant's occupancy of the temporary buildings ended when Savoy Resort opened (May 2014) however there is no such express finding by the Arbitrator. The Arbitrator however in his award has not awarded rent as compensation until the temporary buildings are returned to Vijay, it has awarded compensation until a specific date, namely, when the Savoy has opened for business. Therefore, it is clear that the Arbitrator found that there was a cut-off date for the compensation for occupancy as claimed. Such a date was the opening of the resort and not until the temporary buildings are returned as the Plaintiff is claiming in the present suit. In the view of this Court, this finding means that the occupancy basis of the claim has expired at the time the resort has opened. For this reason, this Court agrees with the Defendant's submissions that finding that the occupancy carried on after the opening of Savoy would be finding contrary to the arbitrator's determination.

[29] Consequently, it is clear to this Court that the Plaintiff's relief for the period from September 2012 to May 2014 has already been decided upon by the arbitrator and cannot be claimed again in these proceedings. This Court further finds that after May 2014 there is no legal basis for the claim of rent for occupancy of the buildings in the strict meaning of the term rent as there is no further rental agreement between the parties.

[30] The Court, further agrees with the Defendant's submissions that firstly there is no agreement between the Plaintiff and the Defendant for rent of the temporary buildings. Therefore, there is no basis for the Court to award the Plaintiff rent as damages claimed. Secondly, in light of the testimony of the QS Cecile Bastille regarding the demolition and removal of temporary structures after completion of the project and salvage value thereof, the Plaintiff has failed to establish that the said temporary structures relevant to this case could be reused. Furthermore, the Plaintiff has not substantiated their submissions that the amount claimed is for the actual loss they sustained by renting temporary buildings on other site while they could have re-used the ones left on the Defendant's site.

[31] On this basis and as explained above, this Court cannot award the Plaintiff damages as claimed in the amended plaint's 'Particulars of Loss'. "[Emphasis is mine]

10. The learned Judge dismissed the plaint, and considering the facts peculiar to this case, he made an order that "both parties have to bear their own costs", at paragraph [31] of the judgment.

THE APPEAL

11. The Appellant, dissatisfied with the judgment, has filed nine grounds of appeal against it, as follows —

"2. Grounds of Appeal:

The learned Trial Judge erred:

1. In that, having accepted as a matter of fact that the buildings and assets belonged to the Appellant and that they were retained by the Respondent beyond the completion of the hotel in 2014, in not granting the Appellant damages for this retention and use.

2. In not applying himself, notwithstanding the submissions made at the conclusion of the hearing, to the fact that the case had been fought by both parties on the assessment of the rent which the buildings and assets retained by the Respondent could have fetched and should have been paid by the Respondent for its use of these assets.

3. In not considering that both expert witnesses had applied themselves to the same issue, namely to valuing the rent which could have been claimed for the use of the buildings and assets retained by the Respondent, and in refusing to grant the Appellant damages based on that assessment of rent claimable.

4. In not accepting that the Appellant's witness, Frank, was qualified to give evidence and in fact gave evidence which supported the Appellant's claim of rent.

5. In focusing on the submission of the Appellant that its assessment of its loss was based on the rent which it would have had to pay for similar buildings and ignoring the submissions of the Appellant that it was claiming the rent that the Respondent would have had to pay for its retention and use of the buildings and assets.

6. In his finding that a claim of rent could only succeed where there was a real agreement between the parties.

7. In finding that the plaint as drafted did not provide the Respondent with sufficient notice of the claim of rent and in so finding while ignoring that the evidence of all the witnesses was predicated on a claim of rent and that the whole case was contested on the issue of the value of the rent due by the Respondent for its use of the buildings and assets.

8. In preferring the testimony of the witness Bastille to that of the witness Frank, while ignoring the written report of the witness Bastille that rent was due to the Appellant and that only the quantum of the rent was disputed.

9. In finding that it was incumbent on the Appellant to have proved that it needed the buildings for its own use and, in doing so, ignoring the fact that the case of the Appellant was not predicated on its use of the buildings but the detention and use of them by the Respondent."

12. The Appellant prayed the Court of Appeal to make orders allowing the appeal, setting aside the Supreme Court's judgment, and returning the case to the Supreme Court for an assessment of the rent due to the Appellant by the Respondent.

13. I have carefully considered the grounds of appeal, the record of appeal, including the final written submissions presented on behalf of the Appellant and the Respondent in the Supreme Court, the heads of argument presented on behalf of both parties and the oral submissions made at the hearing of the appeal.

14. Counsel for the Appellant did not argue the nine grounds of the appeal, in his heads of argument, in the order they were presented in the notice of appeal. Firstly, he dealt with ground 6 of the appeal, in his heads of argument, which addressed the claim pleaded by the Appellant.

15. Secondly, he dealt with grounds 5 and 9 of the appeal, which concerned the formulation of the suit. In his heads of argument, Counsel for the Appellant stated that grounds 5 and 9 of the appeal are a continuation of ground 6.

16. Thirdly, he dealt with grounds 1, 2, 3, 7 and 8 of the appeal, which argued that the Respondent's submissions with respect to the lack of pleadings and fair notice of the case were an afterthought.

17. Fourthly, he dealt with ground 4 of the appeal, which challenged the judgment on the merits.

18. Counsel for the Respondent argued these grounds of appeal in the order they appeared in the Appellant's heads of argument.

19. I have considered grounds 1, 2, 3, 5, 6, 7, 8 and 9 of the appeal together, as they all focus on whether or not the Appellant's pleadings alleged all material facts and are certain. I have considered ground 4 of the appeal separately as it challenged the judgment on the merits.

Grounds 1, 2, 3, 5, 6, 7, 8 and 9 of the appeal

20. I have reproduced only the submissions of the Appellant and the Respondent relevant to the determination of grounds 1, 2, 3, 5, 6, 7, 8 and 9 of the grounds of the appeal.

Submissions on behalf of the Appellant

21. The submissions presented on behalf of the Appellant argued that the Appellant's amended pleadings averred all facts, which must be proved to establish the Appellant's ground of claim. The submissions also argued that the facts averred in the Appellant's plaint have put the Respondent on its guard. Counsel for the Appellant advanced the following arguments in support.

22. He argued that the learned Judge made an error in concluding that a claim for rent could only be valid if a rental agreement existed between the Appellant and the Respondent. He argued that the action was not based on a rental agreement, which is why there was no plea averring the existence of such an agreement between the Appellant and the Respondent.

23. He argued that this was an action of delict and that the "claim of rent was a method of calculating the loss claimed" under article 1149 (1) of the Civil Code of Seychelles (1976), which stipulates: "[t]he damages which are due to the creditor cover in general the loss that he has sustained and the profit of which he has been deprived, except as provided hereafter."

24. He argued that the plaint stated clearly and intelligibly the material facts on which the Appellant relied and gave notice of the Appellant's claim, namely that —

1. the buildings were forcibly detained by the Respondent (at paragraph [4]);

2. the Appellant was the beneficial owner of the buildings and their contents (at paragraph [5]);

3. the Appellant sought to be indemnified for the loss of the buildings and their contents (at paragraph [6]);

4. the Respondent should make good the Appellant's loss, valued at USD1,016,789.48 (at paragraph [7]); and

5. the sum was made up of rent from the 1 September 2012 until 30 April 2016 (under the particulars of loss).

25. Counsel for the Appellant also argued that the only defence raised on the matter of loss was the lack of a tenancy agreement. In its pleadings, the Respondent never provided the Appellant with fair notice that the claim for rent was invalid. He claimed that all the Respondent was willing to do regarding paragraph [7] of the plaint (which pleaded that the Respondent should make good its loss and particularise it as rent) was to deny the same paragraph and plead that there was no rental agreement. After that, the case proceeded to determine a fair rental amount.

26. Counsel for the Appellant argued that the Appellant's claim is a continuation of the arbitrator's award. Since the arbitrator has determined that rent is payable as compensation for the temporary unavailability of the Appellant's buildings and assets for use elsewhere, it follows that the Appellant's claim should be considered in the same context. He argued that it is hard to believe that the Respondent was caught off guard by the evidence presented.

27. I pause at this point to refer to exhibit P9, which comprised of pages 2, 77, 78 and 79 of the "Final Award rendered in conformity with the Rules of Arbitration of the ICC International Court of Arbitration, ICC INTERNATIONAL COURT OF ARBITRATION CASE No. 18943/MCP/EMT EASTERN EUROPEAN ENGINEERING LTD (Seychelles) vs/ VIJAY CONSTRUCTION (PROPRIETARY) LTD (Seychelles)", tendered in evidence by Mr. Patel.

28. The Appellant and the Respondent placed emphasis on paragraphs [298] and [299], at page 78 of exhibit P9, which stated —

"298. Thus, the Claimant's use of the Respondent's temporary staff buildings was in accordance with the Parties' agreement under Clause 15.2 of the Contracts. The Contracts are silent on whether the Respondent is entitled to rent for any Goods used by the Claimant to finish the construction works after termination. The Sole Arbitrator finds that such rent must be paid as compensation for the temporary unavailability of the Respondent's property for use by the Respondent on other construction projects. The Sole Arbitrator agrees with the Claimant, however, that the amount appears exaggerated. Thus, the Sole Arbitrator follows the Respondent's invitation to assess a reasonable amount of rent and applies his discretion under the ICC Rules and Seychelles law to determine that a reasonable amount should be half, i.e., € 12,500 per month.

299. It is undisputed that the Claimant's occupation of the temporary buildings started at the end of September 2012 and that the Savoy Resort opened its doors for business in May 2014. The Respondent is therefore entitled to twenty months of rent at € 12,500 per month, for a total of € 250,000."

29. Counsel for the Appellant further argued that the Respondent's claims based on the lack of pleadings and fair notice of the case were an afterthought. He stated that these claims were raised for the first time in the final written submissions presented by the Respondent in the trial Court. He argued that it was clear to the Respondent what the issue was up to that point, as the Respondent had been able to have a rental assessment made and proceed with the whole case based on the fact that it was a rental assessment exercise.

30. Counsel for the Appellant argued that the record of appeal revealed numerous instances where both Counsel and the witnesses proceeded on the basis that the whole case was a rental valuation case. He argued that while it is true that the Respondent had from the outset raised the plea that there was no rental agreement between the parties, the learned Judge first needed to determine whether or not this was a rental case or whether or not the rent was a method of calculating damages, and if the latter, the case necessitated a finding regarding the proper assessment and the residual sum.

31. Counsel for the Appellant further argued that considering how the case was presented, it is perplexing to see the learned Judge conclude that the Appellant had "failed to give fair notice of [its] case" (at page 604 of the record of appeal and paragraph [18] of the judgment).

Submissions on behalf of the Respondent

32. Counsel for the Respondent argued that the amended plaint did not fulfil the requirements set out in section 71 (d) of the Seychelles Code of Civil Procedure. He argued that the plaint did not allege all the material facts on which the Appellant relied and failed to give fair notice of the Appellant's claim.

33. He argued that it was incumbent on the Appellant to clearly set out its cause of action in the plaint and all the material facts necessary to sustain its action. He argued that the Appellant, in leading evidence in the Supreme Court, has tried to make a claim for unpaid rent on the basis that the unpaid rent represented its loss of use of the temporary buildings. He argued that the claim for the loss of use of the temporary buildings was outside of the pleadings for unpaid rent. He argued that the Appellant should, instead of a claim for unpaid rent, have made a claim for damages under article 1149 of the Civil Code of Seychelles (1976), which would have covered the loss that the Appellant sustained as a result of the loss of use of the temporary buildings. Hence, Counsel for the Respondent argued that the evidence relating to the loss of use of the temporary buildings should be disregarded.

34. Counsel for the Respondent argued that the Respondent, in its defence, in reply to the claim of rent, averred that there was no rental agreement between the Appellant and the Respondent. He argued that under article 1728 (2) of the Civil Code of Seychelles (1976), rent is payable when there is a rental agreement between the parties. Additionally, the Appellant failed to adduce any evidence to establish a lease agreement or an agreement for a lease between the Respondent and itself regarding the temporary buildings.

35. Counsel for the Respondent argued that at the stage of the appeal, the Appellant is seeking to introduce new matters, which it has not pleaded. He pointed out that the Appellant argued that its claim is a continuation of the arbitrator's award. He argued that if this were the case, it would constitute a material fact, which should have been pleaded. The Appellant's pleadings did not refer to the arbitral award, nor did they claim that the amended plaint is a continuation of or related to, the arbitral award.

36. Counsel for the Respondent contended that the argument of Counsel for the Appellant that the Respondent's submissions with respect to the lack of pleadings and fair notice of the case were an afterthought was misleading. He explained that with respect to the element of liability, the Respondent has pleaded that "the Respondent never entered into any rental agreement with the plaintiff in respect of the temporary buildings". He argued that this was a live issue during the hearing of the suit. Mr. Patel, PW-1, was cross-examined in relation to the fact that there was no rental agreement between the Appellant and the Respondent, at page 350 of the record of appeal. As regards the element of quantum, the Respondent denied the Appellant's averments relating to quantum "whether as alleged or at all". He argued that it was in respect of the issue of quantum that the assessment of damages was relevant.

37. Furthermore, Counsel for the Respondent argued that it was surprising for the Appellant to claim that the Respondent's submissions with respect to lack of pleadings and fair notice of the case were an afterthought. He pointed out that it was only at the stage of final written submissions in the Supreme Court that the Appellant argued that the claim for rent was a method of calculating its loss.

38. In support of his arguments, Counsel for the Respondent relied on the established case law, which enunciates the principles concerning the function of and the cardinal rules in pleadings, which I have set out in the analysis below.

39. In light of the arguments presented, Counsel for the Respondent contended that the learned Judge was correct in determining that the Appellant has made a claim for rent against the Respondent as per its pleadings. He also argued that the learned Judge was correct in finding that the Appellant "had failed to give fair notice of its case", at page 604 of the record of appeal and paragraph [18] of the judgment.

Analysis of the contentions of the parties

40. I determine whether or not the Appellant's pleadings averred all facts which must be proved to establish the Appellant's ground of claim and stated facts, which have put the Respondent on its guard.

41. Counsel for the Appellant argued that the plaint clearly and intelligibly stated the material facts on which the Appellant relied and gave notice of the Appellant's claim, paragraph [24] of the judgment refers. However, I respectfully conclude that the argument of Counsel for the Appellant is misconceived. I give reasons for this conclusion.

42. Section 71 (d) of the Seychelles Code of Civil Procedure stipulates —

"71. [T]he plaint must contain the following particulars – (d) a plain and concise statement of the circumstances constituting the cause of action and when it arose and of the material facts which are necessary to sustain the action."

43. I set out the function of pleadings and the cardinal rules in pleadings as enunciated in ODGERS ON HIGH COURT PLEADING AND PRACTICE Twenty-Third Edition D.B. CASSON. The established case law of the Courts of Seychelles with respect to the functions of pleadings and the cardinal rules in pleadings is consistent with the legal principles stated in ODGERS ON HIGH COURT PLEADING AND PRACTICE¹.

44. ODGERS ON HIGH COURT PLEADING AND PRACTICE² on the function of pleadings states —

"The function of pleadings is to ascertain with precision the matters on which the parties differ and the points on which they agree; and this is to arrive at certain clear issues on which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings interchanged between the parties should be conducted according to certain fixed rules…The main purpose of these rules is to compel each party to state clearly and intelligibly the material facts on which he relies, omitting everything immaterial, and then to insist on his opponent frankly admitting or explicitly denying every material matter alleged against him. By this method, they must speedily arrive at an issue. Neither party needs to disclose in his pleading the evidence by which he proposes to establish his case at the trial. But each must give his opponent a sufficient outline of his case." [Emphasis is mine]

45. With respect to the cardinal rules in pleadings, ODGERS ON HIGH COURT PLEADING AND PRACTICE³ informs that the allegations in every pleading must be (i) material and (ii) certain. [Emphasis is mine]

46. I turn to the cardinal rule in pleadings that the allegations in every pleading must be material. ODGERS ON HIGH COURT PLEADING AND PRACTICE⁴ on material facts states —

"[t]he fundamental rule of our present system of pleading is this —

"Every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits "(order 18, r. 7(1)). This rule involves and requires four separate things —

Every pleading must state facts and not law.

It must state material facts and material facts only.

It must state facts and not the evidence by which they are to be proved.

It must state such facts concisely in a summary form." [Emphasis is mine]

47. With respect to the second requirement that every pleading must state material facts only, ODGERS ON HIGH COURT PLEADING AND PRACTICE⁵ states —

"What facts are material? "The word 'material' means necessary for the purpose of formulating a complete cause of action, and if any one 'material' fact is omitted, the statement of claim is bad" (per Scott L.J. in Bruce v. Odhams Press Ltd) [1936] 1 K.B. at p. 172]. The same principle applies to defences…If after consideration you are still in doubt whether a particular fact is or is not material, the safer course is to plead it if you think you can prove it. For if you omit to plead it, and it is held to be material, you cannot strictly give any evidence of that fact at the trial, unless the judge will give leave to amend, and such leave may be upon terms as to payment of cost. [See Byrd v. Nunn (1877) 5Ch. D. 284; and Brook v Brook (1866) 12 P.D. 19]." [Emphasis is mine]

48. With respect to the second cardinal rule in pleadings that the allegations in every pleading must be certain, ODGERS ON HIGH COURT PLEADING AND PRACTICE⁶ states —

"[m]aterial facts must be alleged with certainty. The object of pleadings is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision…The amount of detail necessary to ensure precision naturally varies with the nature of each case. The only general rule that can be laid down is this - that the party pleading must use such particularity as will make it clear to the court and to his opponent what is the precise question which he desires to raise. "What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they will have to meet when the case comes on for trial." [Per Cotton L.J. in Philipps v. Philipps (1878) 4 Q.B.D.139]…If you omit a material fact altogether from your pleading, this slip may lose the case for your client [see, e.g. Collette v. Goode (1878) 7 Ch. D. 842; Byrd v. Nunn (1877) 5 Ch. D. 781; 7 Ch. D. 284], or at the very least involve delay and expense in amendment. If you plead the fact, but with insufficient detail, the worst that can happen is that you have to give particulars…" [Emphasis is mine]

49. Counsel for the Respondent referred to the following cases in his heads of argument in support of his arguments that the Appellant's pleadings did not allege all the material facts and are not certain.

50. In Tirant & Anor v Banane [1977] 219, Wood J made the following observations ―

″[i]n civil litigation each party must state his whole case and must plead all facts on which he intends to rely, otherwise strictly speaking he cannot give any evidence of them at the trial. The whole purpose of pleading is so that both parties and the court are made fully aware of all the issues between the parties. In this case at no time did Mr Walsh ask leave to amend his pleadings and his defence only raised the question of plaintiff's negligence.

In Re Wrightson [1908] 1 Ch. at p. 799 Warrington J. said:

The plaintiff is not entitled to relief except in regards to that which is alleged in the plaint and proved at trial.

In Boulle v Mohun [1933] M. R. 242 on an issue of contributory negligence, which had not been pleaded in the statement of defence, the Court found against the defendant, but held that such issue could not in any event have been considered as it has not been raised in the pleadings.

In my judgment that is the law of Seychelles in terms of section 15 of the Courts Act [CAP 43] and I agree with Mr. Valabhji that I cannot consider the defence of an act by a third party.″ [Emphasis is mine]

51. In Jean Jacques Leveille v Pascal SCA No. 5/04 (20 May 2005), the Court of Appeal held —

"[w]e do reiterate our views as we did in SCA No. 2/04 (A. Leon v Volare (Pty) Ltd - our concern over the drafting of pleadings. The mere skeleton information provided, as in the case at hand, left much to be desired. It does not conform to the requirements of sections 71 to 76 of the Seychelles Code of Civil Procedure. It is trite that parties are bound by their pleadings and that one must not be allowed to depart from what one has pleaded. Doing so, may lead to a claim of ultra petita as is now alleged in this appeal. The evidence given at a trial must be intra petita. Material facts have to be pleaded as required under section 71-76 (supra)." [Emphasis is mine].

52. In Gallante v Hoareau [1988] SLR 122, the Supreme Court, presided by G.G.D de Silva Ag. J, at p 123 at paragraph [g], states: "[t]he function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties."

53. In Marie-Ange Pirame v Armano Peri SCA No. 16/2005, the Court of Appeal held that "…this Court did state (in CA 8/87) inter alia that evidence outside the pleadings although not objected to and the relief not pleaded for, cannot and does not have the effect of translating the said issues into the pleadings or evidence. Indeed, we should reiterate here that the quoted views of this Court still remain to be good law", at paragraph [8] of the judgement. [Emphasis is mine]

54. In Tex Charlie v Marguerite Francoise Civil Appeal No. 12 of 1994 (12 May 1995), the Court of Appeal held that ″the system of Civil justice in this country does not permit the court to formulate a case for the parties after listening to the evidence and to grant a relief not sought by either of the parties that such evidence may sustain without amending the plaint. In the adversarial procedure the parties must state their respective cases on their pleadings…″ [Emphasis is mine]

55. I turn to the facts of this case. The Appellant argued that its claim is the continuation of the arbitrator's award. Mr. Patel (PW-1) gave evidence with respect to exhibit P9. He testified that the dispute between the Appellant and the Respondent with respect to the termination of the contracts was submitted to arbitration. He also testified that during the arbitration proceedings, the Appellant raised the issue of loss of rental income from the temporary buildings it had constructed, which the Respondent retained and occupied. He testified that the arbitrator awarded the Appellant twenty months of rent at the rate of EUR12,500.00 per month, for a total of EUR250,000.00. The Respondent did not pay any rent to the Appellant. He testified that as the Respondent still possesses the Appellant's buildings, the Appellant is seeking rent from the end of the twenty months awarded by the arbitrator up to the present day, and the Appellant's claim is continuing.

56. Counsel for the Appellant clarified in the final written submissions presented on behalf of the Appellant in the Supreme Court that paragraphs [298] and [299] at page 78 of exhibit P9 provided the background for the Appellant's plea for rent in the particulars of loss. Counsel for the Appellant further explained that this period started from the end of September 2021, when the Appellant left the construction site and ended on the date of the arbitral award, which was the 14 November 2014. According to Counsel for the Appellant, the Appellant's claim covered the period from that date until the date of the plaint in June 2016, and continuing thereafter until the return of the buildings to the Appellant.

57. With respect, I conclude that the Appellant's amended plaint is embarrassing to the Respondent. The Appellant's amended plaint did not contain any plea with respect to the arbitral award, nor did it include any averments indicating that the amended plaint is a continuation of or related to, the arbitral award. I agree with Counsel for the Respondent that these facts are material and should have been pleaded. As the Appellant has omitted to plead such material facts, Mr. Patel cannot give any evidence of these facts at the trial without leave from the learned Judge to amend the plaint. Hence, I conclude that the learned Judge erred by considering exhibit P9 and other evidence related to the arbitral award in the judgment, as the evidence falls outside of the pleadings. See Tirant supra, Jean Jacques Leveille supra, Gallante supra, Marie-Ange Pirame supra and Tex Charlie supra.

58. I turn to the argument of Counsel for the Appellant that this is an action of delict and that the "claim of rent was a method of calculating the loss claimed" under article 1149 (1) of the Civil Code of Seychelles 1976. Counsel for the Appellant stated the following in his written submissions presented on behalf of the Appellant in the Supreme Court to explain the claim for rent under the particulars of loss —

"9. The Plaintiff could have claimed the value of the building. It chose not to do so and, instead, to claim the loss of use of the buildings on the basis that, as deponed to by the witness Kaushalkumar Patel, the buildings had a residual life and would have been re-erected and reused on another site of works by the Plaintiff. The loss of the buildings was a loss to the Plaintiff who was unable to use them…" [Emphasis is mine]

59. However, upon examining the amended plaint, it is noted that the Appellant did not make a claim for damages, which covered the loss that it had sustained as a result of the loss of use of the temporary buildings under article 1149 (1) of the Civil Code of Seychelles (1976). It is noted that paragraph [6] of the amended plaint essentially averred that the "buildings remain in the possession" of the Respondent, and paragraph [7] under the particulars of loss stated: "rent", inter alia. Furthermore, I refer to exhibit P3, which is a letter dated 3 May 2016 from Mr. Patel to the Respondent in which the Appellant claimed EUR1,008,188.00 in total compensation. This amount of EUR1,008,188.00 breaks down as follows: (a) EUR50,000.00 for forceful acquisition, (b) EUR785,400.00 for 44 months of overdue rent from the 1 September 2012 to 30 April 2016, calculated at EUR17,850.00 per month, and (c) EUR172,788.00 in interest on the overdue rent at a rate of 1 percent per month. However, Counsel for the Appellant argued that the action was not predicated on a rental agreement. He claimed that this is why there was no plea averring the existence of such an agreement between the Appellant and the Respondent. However, I disagree with the arguments presented by Counsel for the Appellant. I conclude that the learned Judge was justified in concluding that the Appellant's pleadings have made a claim for rent.

60. Furthermore, the Appellant's case is not strengthened by its argument that the Respondent's submissions about the lack of pleadings and fair notice of the case were an afterthought because they were raised for the first time in the final written submissions of the Respondent, and that it was clear to the Respondent what the issue was up to that point. In the same vein, it does not help the Appellant's case for Counsel to argue that the submissions about the lack of pleadings and fair notice of the case were an afterthought because the record of appeal showed numerous instances where both Counsel and the witnesses proceeded on the basis that the whole case was a claim for unpaid rent on the basis that the unpaid rent is the Appellant's loss of use of the temporary buildings. It is noted that Counsel for the Appellant conceded, at paragraph [30] of his heads of argument, that "evidence is no substitute for pleadings and that proof of a fact will not cure defective pleadings".

61. I state that the Appellant should have examined its pleadings to ascertain whether or not any amendments were necessary, especially given the Respondent's defence and amended defence, which claimed that it never signed a rental agreement with the Appellant for the temporary buildings. Moreover, as pointed out by Counsel for the Respondent, Mr. Patel was cross-examined in relation to the fact that there was no rental agreement between the Appellant and the Respondent, at page 350 of the record of appeal.

62. Furthermore, I am uncertain about the basis of Counsel for the Appellant's argument regarding the learned Judge's finding that the Appellant "had failed to give fair notice of [its] case". Counsel for the Appellant argued that it was clear to the Respondent that the whole case pertained to a rental valuation, and the Respondent obtained a rental assessment. I conclude that the learned Judge was justified in reaching this conclusion, as the Appellant has made a claim for rent in its pleadings. Furthermore, if the Appellant's claim was based on article 1149 (1) of the Civil Code of Seychelles 1976, its pleadings omitted material facts, as correctly argued by Counsel for the Respondent.

63. Case law clearly states that if a material fact is omitted altogether from the pleading, this slip may lose the case for the client. See, e.g. Collette v. Goode (1878) 7 Ch. D. 842; Byrd v. Nunn (1877) 5 Ch. D. 781; 7 Ch. D. 284. "[I]t is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they will have to meet when the case comes on for trial." Per Cotton L.J. in Philipps v. Philipps (1878) 4 Q.B.D.139. See, also, Marie-Ange Pirame supra, which I repeat to emphasise the point I am addressing, "…this Court did state (in CA 8/87) inter alia that evidence outside the pleadings although not objected to and the relief not pleaded for, cannot and does not have the effect of translating the said issues into the pleadings or evidence." See also Tirant supra, Jean Jacques Leveille supra, Gallante supra and Tex Charlie supra.

64. For the reasons stated above, I conclude that the Appellant has claimed rent against the Respondent as per its pleadings and demand letter, exhibit P3, and that the Appellant's claim for rent is not supported by any evidence. I also conclude that the Appellant's plaint ran afoul of section 71 (d) of the Seychelles Code of Civil Procedure. It was incumbent on the Appellant to clearly set out its cause of action in its pleadings and all the material facts necessary to sustain the action.

65. Hence, I uphold the findings of the learned Judge, at paragraphs [17] and [30] of the judgment, that —

"[17] …this Court is…of the view that the plaintiff has clearly made a claim for rent against the Respondent as per his pleadings and his demand letter P3. Nowhere is it mentioned that the claim is based on the loss of use of the buildings, on the basis that the buildings had a residual life and would have been re-erected and reused on another site of works by the Plaintiff or that the loss of the buildings was a loss to the Plaintiff who was unable to use them elsewhere. The failure to include these facts, thereby somewhat disguising the circumstances of the claim, has misled the Defendant into believing this was a simple claim of rent. The Defendant also relies on the case of Tirant & Anor v Banane [1977] 219, where Wood J. held: "In civil litigation each party must state his whole case and must plead all facts on which he intends to rely, otherwise strictly speaking he cannot give any evidence of them at the trial. The whole purpose of pleadings is so that both parties and the Court are made fully aware of all the issues between the parties.

[30] The Court, further agrees with the Defendant's submissions that firstly there is no agreement between the Plaintiff and the Defendant for rent of the temporary buildings. Therefore, there is no basis for the Court to award the Plaintiff rent as damages claimed..."

66. I dismiss grounds 1, 2, 3, 5, 6, 7, 8 and 9 of the appeal.

67. I uphold the order of the learned Judge dismissing the plaint.

Ground 4 of the appeal and the residual matters

68. After making the order that the Appellant's amended plaint as formulated is bad, I do not need to address ground 4 of the appeal, which deals with the issue of quantum.

69. The same applies to the residual matters, which Counsel for the Appellant has raised in his heads of argument. The residual matters concerned the testimony of Miss Bastille, a quantity surveying expert. It is also noted that the matters raised with respect to the expert report of Miss Bastille are not matters raised as part of the grounds of appeal.

70. Ground 4 and the residual matters stand dismissed.

THE DECISION

71. The order of the learned Judge dismissing the plaint is upheld.

72. The appeal is dismissed.

73. Each party shall bear its own costs.

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F. Robinson JA

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I concur: M. Twomey-Woods JA

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I concur: S. Andre JA

Signed, dated and delivered at Ile du Port on 22 April 2025.