IN THE COURT OF APPEAL OF SEYCHELLES
Reportable
[2025] Civil Appeal SCA 20/2024
(22 April 2024)
(Arising in CS 55 of 2024)
In the matter Between
Jane Hunt Appellant
(rep. by Mr. S. Rajasundaram)
And
Anthony Hunt Respondent
(rep. by Mrs. Alexia Armesbury)
Neutral Citation: Hunt v Hunt (Civil Appeal SCA 20/2024) [2025] (22 April 2025) (Arising in CS 55 of 2024)
Before: Fernando (PCA), Twomey-Woods, Andre JJA
Summary: Appeal against a decision of the Supreme Court – Judgment entered in default of statement of defence in terms of section 128 of the Seychelles Code of Civil Procedure (Cap 213) - Defective affidavit– (Procedure)
Heard: 7 April 2025
Delivered: 22 April 2025
ORDERS
The Court makes the following Orders:
The appeal is dismissed in its entirety and the Judgment of the Supreme Court is upheld accordingly.
Costs are awarded for the Respondent as prayed.
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JUDGMENT
______________________________________________________________________________
ANDRE, JA
INTRODUCTION
[1] This is an appeal arising from the Notice of Appeal dated 5th November, 2024, filed by Jane Hunt (Appellant) against Anthony Hunt (Respondent). The appeal challenges the Supreme Court’s decision delivered on 9th October, 2024 by Judge Vidot, in which the Judge entered judgment in terms of Section 128 of the Seychelles Code of Civil Procedure (SCCP) without hearing in favour of the Appellant.
[2] The Appellant as per the cited Notice of Appeal, appeals against the whole of the decision upon the grounds of appeal set out in paragraph 2. The Appellant further seeks the relief set out in paragraph 3 of the said Notice of Appeal as follows:
To quash the decision of the Trial Judge to enter judgment without hearing the plaint.
To remit the case to the Supreme Court for an inter parte hearing
Any other order this Honourable Court deem fit and necessary in the circumstances.
GROUNDS OF APPEAL
[3] The Appellant raises the following grounds of appeal which state verbatim as follows:
The Learned Trial Judge erred in law and in facts on the following:-
(a) The Respondent moved the court for an ex-parte hearing on the 18th of September, 2024 in the absence of the Appellant and without a Statement of Defence on file.
(b) The ex-parte hearing is set for Friday 11th of October, 2024 at 1.30
(c) The Appellant was served with notice to appear on Friday 11th October,2024, at 1.30 pm.
(d) The case was instead called on Wednesday 9th of October, 2024 at 11am in the absence of the Appellant. On the application of the Respondent, the Court entered judgment.
The Trial Judge has ignored the facts that on the 9th of October,2024 there is a statement of Defence filed by the Appellant, expressly indicated the existence of a Judgement by Consent (JBC) which challenged the credibility of the Respondent's claim on the ground that the claim is outside the scope of the JBC., therefore the court ought to hear the matter.
2.3 The Trial judge erred for its failure to consider that the Respondent in its Plaint expressly give indication that he will rely on receipts, invoices and bundle of documents in support of its claim.
2.4 The Trial Judge ignored the fact that the law impose an evidential burden on the Respondent to establish its claim on a balance of probabilities, therefore the court has an obligation to direct the Respondent to adduce evidence for that purpose.
SUBMISSIONS OF PARTIES
APPELLANT’S WRITTEN SUBMISSIONS
[4] The Appellant, through Counsel Mr. Rajasundaram, filed heads of arguments dated 24th February, 2025. She submitted that the learned Trial Judge erred in law and fact by proceeding with an ex-parte judgment despite the existence of a valid defence on record.
[5] The Appellant further submitted that while the court initially adjourned the matter for the filing of a defence, it subsequently set a date for ex-parte hearing without issuing a specific order for ex-parte.
[6] It is further submitted that the defence and a motion to set aside the ex-parte order were both filed on 9th October, 2024, yet the court disregarded these pleadings and proceeded to judgment under Section 128 of the Seychelles Code of Civil Procedure.
[7] The Appellant contended that this provision should only apply in cases where no defence is on record, which was not the case here.
[8] Additionally, the Appellant submitted that she was unfairly prejudiced by the defective affidavit sworn by her former counsel, which led the court to dismiss her motion. It was her further submission that by means of an application for execution by the Respondent, in pursuance of the ex-parte judgment, she was forced to personally pay the claim in the plaint. Given that she was acting in her capacity as a co-executrix of the estate and not in her personal capacity, the Appellant urged this Court to set aside the ex-parte judgment and remit the matter to the Supreme Court for a hearing on the merits, ensuring her right to a fair trial.
RESPONDENT’S WRITTEN SUBMISSIONS
[9] The Respondent through Counsel Mrs. Amesbury, filed heads of argument dated 10th March, 2025 and he submitted that the appeal lacks merit, emphasizing that the Appellant failed to ensure her defence was properly filed before the court.
[10] The Respondent further submitted that the affidavit supporting the Appellant’s motion was defective as it was sworn by counsel, contrary to established legal principles. The Respondent further submitted that the Appellant was present in court when the judgment was issued and that the Appellant cannot now invoke procedural fairness after failing to comply with court rules.
[11] The Respondent’s submissions refute claims of personal execution against the Appellant and highlights inconsistencies in her arguments, including her continued engagement with the same counsel she discredits. Citing relevant case law, the Respondent maintains that the Trial Judge acted correctly and urges this Court to dismiss the appeal with costs.
ISSUES TO BE DETERMINED IN THIS APPEAL
[12] Having read the grounds presented by each Counsel in the heads of argument, I am of the view that they ought to be synthesized as follows:
The Trial Judge erred in law and in fact by entering judgment under Section 128 of the Seychelles Code of Civil Procedure in the absence of the Appellant.
The Trial Judge erred in law and in fact by ignoring the fact that the Appellant had filed a Statement of Defence on 9th October, 2024.
The Trial Court erred in law and in fact by failing to ensure the Respondent discharged the evidential burden of proving his case on a balance of probabilities.
ANALYSIS OF THE ISSUES
[13] GROUND 1
The Trial Judge erred in law and in fact by entering judgment under Section 128 of the Seychelles Code of Civil Procedure in the absence of the Appellant.
[14] Section 128 of the SCCP provides that where a Defendant fails to file a statement of defence within the prescribed time, the court has the discretion to either enter judgment for the plaintiff or grant the Defendant additional time to file a defence.
[15] In this case, the Appellant/Defendant was required to file the statement of defence by 4th September 2024, as directed by the court on 17th July, 2024. However, the defence was not filed within the stipulated timeframe, placing the Appellant/Defendant in default. The Statement of Defence in the brief contains a Supreme Court stamp indicating that it was filed on 9th October, 2024 but does not indicate the time it was filed. Now, from the proceedings, it is evident that neither the Court nor the Respondent’s Counsel had had sight of it. This notwithstanding, the fact still remains that the Appellant was already in default, whether or not it was filed on 9th October, 2024 or if it was in the file when the matter was before court on the same date.
[16] Consequently, the trial judge exercised his discretion under Section 128 of the SCCP and entered judgment in default of defence in favour of the Plaintiff.
[17] As reaffirmed in Burka v Ventigadoo (08 of 2009) (2009) SCSC5 (15 November 2009), Section 128 of the SCCP provides the court with two options when a Defendant neglects to file a defence: to either enter judgment for the plaintiff or grant the defendant additional time. The Appellant’s failure to seek an extension before the deadline elapsed and the absence of any attempt to remedy the default in a timely manner left the trial court with the authority to proceed as it did.
[18] The Appellant's argument that judgment was entered in their absence is without merit. The Appellant was represented by counsel, whose presence in court was sufficient. Section 70 of the SCCP provides that:
“A 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…”
[19] In Muller v Benoiton Construction (SCA 78 of 2022) [2022] SCCA 79 (16 December 2022), the Court of Appeal found that “Notwithstanding physical absence for one reason or another, … a defendant in a matter may be considered present through representation of counsel.”
[20] Accordingly, the absence of the Appellant personally did not preclude the court from exercising its discretion under Section 128 of the SCCP.
[21] It is trite that the Court of Appeal may only interfere with the trial court’s discretion if it was exercised arbitrarily, unreasonably or unfairly. See Jean Francois Adrienne & Anor v R (SCA 25 of 2015) [2017] SCCA 25 (10 August 2017); Intelvision Network Ltd & Ors v Multichoice Africa Ltd (SCA 31 of 2014) [2015] SCCA 31 (28 August 2015).
[22] In this case, the trial judge acted within the confines of the law and exercised his discretion appropriately. The Appellant, having failed to comply with the Court's directions and take necessary steps to rectify the default, cannot now claim that judgment was wrongly entered.
[23] Accordingly, this ground of appeal is without merit and is dismissed.
[24] GROUND 2
The Trial Judge erred in law and in fact by ignoring the fact that the Appellant had filed a Statement of Defence on 9th October, 2024.
[25] The Appellant argues that her statement of defence was filed on 9th October, 2024, before the court entered judgment the same day. However, the defence was due on 4th September, 2024. By failing to file within this date set by the Court, the defendant was already in default as discussed in ground 1.
[26] The Supreme Court was under no obligation to consider a defence that was filed out of time. Compliance with procedural deadlines is essential for the fair and efficient administration of justice. In Bordino v Government of Seychelles (SCA CL 01/2024) [2024] SCCA 36 (18 December 2024), the Court of Appeal underscored that failure to comply with prescribed timeframes not only undermines the integrity of the administration of justice but also results in a waste of judicial resources and erodes public confidence in the judicial system, consequences that cannot be tolerated.
[27] When the matter was heard on 9th October, 2024, the statement of defence was not on the court record, and neither the court nor the Respondent’s counsel had seen it. Even if it had been on record, the court was not bound to consider it, as it retained discretion under Section 128 of the Civil Procedure Code to either enter judgment in default or grant an extension. In this instance, the court exercised its discretion and entered judgment.
[28] The burden was on the Appellant to either file within time or seek an extension before the deadline expired. Given that the Appellant failed to appear on 4th September, 2024 and did not proactively seek leave to extend time or even show exceptional circumstances that led to late filing of the defence, the trial court acted within its discretion in entering judgment in default.
[29] This ground of appeal lacks merit and is dismissed.
[30] GROUND 3
The Trial Court erred in law and in fact by failing to ensure the Respondent discharged the evidential burden of proving his case on a balance of probabilities.
[31] The Appellant/Defendant contends that the Plaintiff did not prove his case on a balance of probabilities before obtaining judgment. However, this argument is misplaced as a judgment in default under Section 128 SCCP is not based on an evaluation of evidence but rather on procedural non-compliance.
[32] The requirement to prove a case on a balance of probabilities applies only where there is a contested hearing or where there is an ex-parte hearing as per Section 65 of the SCCP. When a defendant fails to file a defence, the court is entitled to treat the claim as unopposed and enter judgment accordingly.
[33] The purpose of requiring a defence to be filed is to provide the defendant with an opportunity to contest the plaintiff’s claim. Since the defendant failed to meet this procedural requirement as established in Grounds 1 and 2 (supra), she cannot claim that the Plaintiff did not prove her case. By failing to file a defence, the Defendant’s omission is treated as an admission of the claim, and thus cannot claim that the Plaintiff/Respondent did not prove her case.
[34] Therefore, this ground of appeal is without merit and dismissed.
[35] The Court notes that several issues raised in the Appellant’s submissions, including the trial court’s decision to proceed ex-parte, the defectiveness of the affidavit sworn by counsel, and the alleged personal liability of the Appellant for the claim in the plaint, were not pleaded in the Notice of Appeal or the grounds of appeal.
[36] It is a well-established principle of appellate practice that an appeal is confined to the grounds properly set out in the Notice of Appeal, as these define the parameters within which the Court’s jurisdiction is exercised.
[37] Rule 18(8) of the Court of Appeal Rules is clear on this issue. It provides that the appellant shall not without leave of the Court be permitted on hearing of that appeal, to rely on any grounds of appeal other than those set forth in the Notice of Appeal.
[38] In Amos Wedzi v Hotel Majorie (Civil Appeal No. J4/45/2013), the Supreme Court of Ghana held:
“Grounds of appeal are analogous to pleadings at the commencement of a trial. They form the foundational basis for the hearing, and the rules of court provide comprehensive guidance on their preparation. Procedural and evidentiary rules prescribe how pleadings must be framed, specifying what they should or should not include, and outline the circumstances under which pleadings may be amended, whether with or without leave.
[39] Further in another Ghanaian Supreme Court case of Volta Aluminium Co. Ltd vs Akuffo & Ors [2003-2005] 1 GLR 502, it was held that:
“Additional grounds of appeal were filed by the defendant company, but leave was not sought by their counsel from this court for them to be argued. Accordingly, strictly speaking, according to…the Supreme Court Rules.., the arguments of the defendant based on the additional grounds should be ignored.”
[40] Consequently, the Court cannot consider new grounds unless leave is sought. To do so would be to allow the Appellant to introduce new arguments beyond the scope of the appeal, contrary to procedural fairness and established precedent. (See Gabriel v The Registrar of the Supreme Court (Civil Appeal SCA 02/2024) [2024] (19 August 2024) (Arising in MA 184/2023 Out of CA 19/2022) SCSC 568). Accordingly, the Court will not take cognisance of these submissions, and its determination shall be strictly limited to the matters properly raised in the appeal.
[40] Lastly, Counsel should take note that when drafting a Notice of Appeal, it ought to be drafted with clarity and precision, ensuring that the grounds of appeal are distinctly framed and aligned with the issues in contention. The Court emphasizes that a well-structured Notice of Appeal should unambiguously identify the errors being challenged, avoid vague or general assertions, and conform to the prescribed procedural requirements. Proper drafting not only assists the Court in understanding the appellant’s case but also enhances the efficiency of appellate adjudication.
[41] As obiter, it is prudent and of importance to note that the trial Court was right to dismiss the application to set aside the ex-parte hearing on the grounds of defective affidavit sworn by counsel. See Elizabeth v Commissioner of Police ((SCA 16/2024) [2024] (Arising in MC 57/2024) (18 December 2024) In this case, the Court of Appeal found that an Attorney cannot swear an Affidavit and simultaneously appear as Counsel in the same matter as it contravenes Rule 11(5) (a) of the Legal Practitioners (Professional Conduct) Rules, 2013.
“Given that [the attorney] is the applicant in this matter (as he was in the lower court), I am of the view that he is entitled to depose to an affidavit in the matter, as the applicant, but not as legal counsel representing [his clients]. This being the case, I find that the affidavit filed in support of the application for leave to amend deposed to by [the attorney], is valid.
However, while the affidavit supporting the Notice of Motion to amend is not defective,…his simultaneous appearance as legal counsel contravenes Rule 11(5)(a) which stipulates that: “a legal practitioner must not appear before any court in a matter where they have reason to believe they will be required to give evidence, whether verbally or by affidavit. If such a situation arises, they are obligated to withdraw from the case.”
CONCLUSION AND ORDER
[42] In consideration of the above, the appeal is dismissed in its entirety and the Judgment of the Supreme Court is upheld accordingly.
[43] Costs are awarded for the Respondent as prayed.
Signed, dated, and delivered at Ile du Port on 22 April 2025.
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S. Andre, JA
I concur _____________________
Fernando, President
I concur
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M. Twomey-Woods, JA
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