JUDGMENT
[1] The originating Plaint was lodged in the Registry of the Supreme Court on 31 July 2009. It concerned a claim for the return of money already paid by the Plaintiff to the Defendant following his non-performance of a commercial transaction in 2003. There was service outside the jurisdiction. Counsel for the Defendant sought further and better particulars which were duly furnished. Defences were lodged with the Supreme Court on 25th May 2010. The Defences contained a preliminary plea, a plea in limine litis, averring that the Plaint was bad in law as it disclosed no cause of action and, secondly, it could not be maintained as the Plaintiff lacked status and representation in terms of the Seychelles Marketing Board Act, by then repealed. The Seychelles Marketing Board [hereinafter referred to as “the SMB”] had been established in 1984 by the Seychelles Marketing Board Act. The SMB ceased to trade following the enactment of the Seychelles Marketing Board [Repeal] Act 2009 [hereinafter referred to as “the repeal Act”] which came into force on 30th December 2009; this was some five months after the institution of these proceedings.
[2] The repeal Act narrated that, notwithstanding the repeal of the enabling Act of 1984, the SMB was to continue to exist for the purposes of being wound up and dissolved [section 2}. Section 3 of the repeal Act provided for the appointment of two liquidators. The responsible Minister appointed as liquidators Ramani & Company and Mr Steve Jardine and there was notification of their appointment in Public Notice 211 of 2010.The Court was advised that the two liquidators had been appointed and replaced Mr Dias, who was on the SMB staff.
[3] There was then a Notice of Motion supported by an affidavit dated 29 March 2012 signed by a Law Clerk of the attorney acting for the Plaintiff that an amendment of the Plaint was required “to better describe the current legal status of the Plaintiff, in terms of its liquidation status, a legal formality under the provisions of the Companies Act”.
[4] This Motion was granted and the Amended Plaint now showed the Plaintiff to be “Seychelles Marketing Board, now liquidated and represented by one of its liquidators Mr N Ramani having office Orion Mall, Victoria”. This was, in effect, a substitution for the name and designation of the Plaintiff from “Seychelles Marketing Board represented by Mr Errol Dias, Latanier Road, Victoria”.
[5] This produced an amended Defence dated 20th September 2012 containing again a preliminary plea. The pleas were now enumerated as:
a. The Plaint is bad in law as it discloses no cause of action.
b. The Plaint cannot be maintained in law since the Plaintiff lacks status and representation in terms of the Companies Act 1972 and the Seychelles Marketing Board Act [now repealed].
c. [This is additional] “The Plaintiff’s claim is prescribed by law”.
[6] There was no substantial movement in this case until 18th February 2014 when the Court heard Defence Counsel on the Preliminary Plea in the absence of Counsel for the Plaintiff. I consider this Submission to be part of the proceedings. Defence Counsel submitted that the SMB was established by statute and not under the provisions of the Company Ordinance 1972. He referred to provisions of the SMB Act and submitted that the liquidators should have been the Plaintiffs in the amended Plaint not SMB represented by a liquidator, N Ramani, whose letter of appointment had never been placed before the Court. He referred to the calling up for claims in” not less than 90 days” [section 3[b] of the repeal Act and that this defendant was never mentioned in a list of creditors or debtors of SMB. There was an adjournment for a ruling on the preliminary motion. The Court then decided that the preliminary issue could be determined when the merits of the case had been heard.
[7] This progress in the case occurred before I took carriage of this matter on 6th November 2014. The hearing on the merits commenced on 12th June 2015 and is now concluded. However I am asked to rule on the preliminary plea and have submissions from both Counsel for consideration. As stated before, I also take into account the no case to answer submission from Defence Counsel made before a brother judge on 18th February 2014.
[8] FINDINGS.
[9] I look to the earlier submission of 18th February 2014 and the final written submission of the Defendant.
[10] I agree with the submission that the repeal Act makes no reference to the Companies Ordinance of Seychelles. That is correct, but the reference only appeared in the Affidavit accompanying the Motion to Amend and this is not repeated in the amended Plaint. There is nothing in this point.
[11] I look to item b. as set out in the written submission in respect of the preliminary plea. It reads that the Plaint cannot be maintained in law since the Plaintiff [that is now the name and designation recorded in the Amended Plaint] lacked status and representation in terms of the Companies Ordinance 1972 and the Seychelles Marketing Board Act [now repealed]. My understanding of the thrust of the Defence Counsel’s argument is that the “new” Plaintiff is not a legal person, not accurately defined and, in fact, the Plaintiff should be the liquidator. Furthermore he does not know who “N Ramani” is. As far as the final point is concerned the Public Notice 211 of 2010 gave the name of Ramani & Company as a liquidator. Produced as Exhibit P4 is a letter dated 15th February 2017 advising this Court of the status of one Errol Dias; it is signed “Mr N Ramani JOINT LIQUIDATOR”. I t is clear that Mr N Ramani and the firm of Ramani & Company are one and the same. There is nothing in this point.
[12] I now look to the point of the correct name and designation of the Plaintiff. Defence Counsel stated in his earlier submission to my brother judge that SMB, after the repeal Act, was no longer in existence and hence is not a legal person. He also addressed the point in paragraphs 4,5, 6 and 7 of his written submission. He provided no supporting authority. I refer to Book 2 of the White Book 2010 edition at paragraph 3E-84 “The winding up of a company [whether voluntary or by the Court] does not bring the life of the company to an end. The company, acting by its liquidator, may bring proceedings in its own name even after it has been wound up. Thus the company may by its liquidator and in its own name issue proceedings to collect a debt or to enforce any other right” . While I accept that this is in relation to the Law of England and its Insolvency Act I find that this is good law and apply it in this connection. Consequently there is nothing in this point.
[13] Defence Counsel also submitted at paragraph 3 of his submission that while the liquidator is given prescribed powers in the repeal Act to call for claims from creditors of SMB there is no corresponding provision giving him power to seek payment from debtors of SMB. It is true that it is not expressly provided but I keep in view that a liquidator has wide powers during winding-up proceedings and it is my opinion that the prudent liquidator is entitled to pursue debtors by letters of claim and if necessary court action for repayment of sums due and owing. Since SMB was a legal entity created by statute with full government involvement there is also a public interest element which requires the liquidator to seek repayment from the debtors of SMB. I reject the submission by the Defence Counsel on this point.
[14] In respect of paragraph 2 of his written submission, it is correct in my view that the provisions of the Companies Ordinance do not apply to the winding up procedure of SMB; there is no provision in the repeal Act providing this. However the liquidator derives his authority from the Act itself and is entitled to exercise all the normal powers vested in a liquidator.
[15] Defence Counsel confirmed on 18 February 2014 that he did not intend to pursue his objection on the grounds of prescription.
[16] Consequently I dismiss the plea in limine litis and look to the evidence and merits of the case. Defence Counsel has already confirmed that he does not intend to call witnesses.
[17] The averments in the Plaint were as follows. The Plaintiff was a trading business in Seychelles. The Plaintiff purchased perfumes and other aromatic products from the Defendant, who was based in France. He had been a regular supplier since 2001. In 2003, in the normal course of these transactions, the Plaintiff ordered a supply of aromatic products from the Defendant and, as was normal, paid the purchase price of Euros 50,486.86 in advance. Prior to delivery the Plaintiff cancelled this order and sought a refund of the monies already paid. This was not forthcoming and by 1st July 2005 a formal letter of claim was issued. It is averred that by letter dated 12th September 2005 the Defendant admitted liability and offered to repay the sum due in four installments. No payments were received and hence the action was commenced in name of the Plaintiff by Plaint lodged with the Supreme Court of Seychelles on 31 July 2009, that is, on a date prior to the date when the repeal Act came into force.
[18] The first witness for the Plaintiff was Ms Paula Andre who, at the material time, was the product manager for the Plaintiff and, with her team, was responsible for the importation of goods. She was aware that SMB had gone into liquidation. She knew that the Defendant imported goods into Seychelles, was the only employee who handled this connection and had knowledge of this particular order. It was her evidence that the said payment was made in advance as was the custom but for market reasons the Defendant was instructed to delay delivery until further instructions were given. She further stated that the full payment of Euros 50,486.86 was made in two installments and she sought to introduce two documents in support of her evidence. The production of the documents was objected to by Defence Counsel since it appeared to be a copy of a document. However I was advised that it was a letter which had arrived as a fax and this explained the nature of the paper I allowed the document to be entered as an exhibit at this stage.
[19] Ms Andre then stated that, having instructed a delay, for business reasons the Plaintiff no longer wished the contract to be implemented, in other words, it wished to cancel the order and enquired as to a refund of the full payment made. The Defendant wrote to the Plaintiff that he was basically in agreement in respect of the refund and Ms Andre was referred to items of correspondence written in French. This was also subject to objection since no proper translation was available but I admitted them as “items” at that time. Counsel for the Plaintiff obtained the services of a translator, Mrs Joanna Nicette, whose credentials were accepted by Defence Counsel. At a later date she presented the translations of 2 documents and the two items were formally admitted as P2 and P3 with translations. Mrs Nicette then read out to the Court the English translations of exhibits P2 and P3. She confirmed that the dates on both letters were February 2005.
[20] Exhibit P2 was a letter dated February 2005 from the Defendant confirming receipt of two payments from the Plaintiff, namely, Euros 25,243.24 sent in November 2003 and Euros 25,243.24 sent in December 2003. Hence the total amount held at the credit of the Plaintiff was Euros 50,486.86.
[21] Exhibit P3 was a letter from the Defendant received by the Plaintiff on 7 October 2005. It was in answer to a claim for reimbursement of the total sum of Euros 50,486.86. The Defendant advised the Plaintiff that he had already incurred costs Euros 12,500.00 in respect of the packing of the order. The Defendant acknowledged that the Plaintiff had been a good customer and, if the Plaintiff did not wish to proceed with the order, repayment by four installments could be arranged, which would represent repayment of the full sum. There is no evidence of any further correspondence.
[22] This allowed the evidence in chief of Ms Andre to continue. She was aware that a formal letter of claim had been issued in the normal way. She was aware that no repayment had been made. She could say that there had been similar prior transactions between the two companies. She confirmed that the Plaintiff had elected to have settlement of this matter by payment by installments, but no payments were made. In cross-examination Ms Andre agreed with Defence Counsel that the provisions of the repeal Act did not contain a specific provision granting power to the liquidator to recover debts due to SMB.
[23] The final witness was a Mr Errol Albert Dias who is an employee of the Seychelles Postal Services but according to him, is also looking after the affairs of SMB. He stated that he is an “administrator” of SMB. He was, in fact, named in the originating Plaint as representing the Plaintiff and this is apparently borne out by the terms of exhibit P4, a letter dated 15th February 2017, in which Mr N. Ramani confirms that Mr Errol Dias is the ”official Administrator” of SMB. There was considerable legal argument concerning the admissibility of this letter and I admitted it into evidence at the time subject to any further adjustment of this Ruling. It is to be noted that the original Plaint had Mr Dias as representing the Board. I find that due to his experience he has continued to be involved in its business even after the repeal Act but I would put his position as no more than an employee of SMB before and after it ceased trading. This seems to have been no more than a matter of convenience due to his prior experience of its affairs. All he could add is that he was aware of the transaction with the Defendant and that no goods were received and no refund was made. He was cross-examined as to his status and the status of SMB but not about this particular transaction.
[24] Defence Counsel elected to call no witnesses and stood on his submission.
[25] The preliminary plea having been dealt with I look to the merits of the case on the available evidence.
[26] I find the evidence to be that the Plaintiff ordered the goods from the Defendant and in accordance with normal practice made payment in advance; this payment was Euros 50,486.86. Thereafter, for business reasons, it cancelled the order and sought re-imbursement of the total funds paid. No goods were delivered. The Defendant suggested repayment by installments. While there is no specific correspondence on this I find that it is more likely than not that SMB elected to proceed on this basis. I accept that no repayment has been made. The Plaintiff seeks payment of the principal sum of Euros 50,486.86 plus interest on the sum from November 2003 until 30th July 2009 [the date that the Plaint was lodged in the Supreme Court]. While the Defendant by letter received 7th October 2005 stated that he had incurred packing expenses he still seemed to have been prepared to repay the whole amount. This is a point of concern as is the high interest figure claimed by the Plaintiff.
[27] I am going to resolve the matter in this way. I make no deduction for possible expenses incurred by the Defendant and I also refuse the large claim for interest as set out in the Plaint.
[28] Accordingly, there will be Judgment for the Plaintiff against the Defendant in the sum of Euros 50,486.86 with interest thereon from the date the Plaint was lodged in the Supreme Court, 31 July 2009, and costs.
Signed, dated and delivered at Ile du Port on 16 March 2017