- Case summary
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Plea in limine litis - prescription of 5 years.
[1] The Plaintiff brought an action against the defendant claiming the sum of SCR 604,967.66
with interest and costs arising from transactions amounting to the above sum which
occurred during the years 2014 to 2016 which the Plaintiff alleges have not been accounted
for by the Defendant.
[2] The Defendant raised a plea in limine litis maintaining that "the plaintiff's claim in respect
of payments made between the years of 2015 and 2016 as per the plaint cannot be
entertained by tis court as they are prescribed in law. JJ Defence on the merits followed.
[3] The court opted to give a ruling on the plea in limine prior to the hearing of the case on the
merits and heard submissions from the parties on the plea since if the plea is upheld the
case would be disposed of and would no proceed to hearing on the merits.
[4] Learned counsel for the Defendant submitted that claim is prescribed by virtue of article
2271(1) of the Civil Code of Seychelles Act which provides for a period of5 years for such
cause of action to be initiated before Court. Learned counsel referred the Court to several
cases in support of the contention, namely Bibi & Drs v Stravens (CS15012019) [20207
SCSC 345, Public Utilities Corporation v Elisa (2011) SLR 100, Camille vs Government
of Seychelles (CS811997) [19987 SCSC 21, Attorney General vs Voysey (SCAI211995),
Malvina & Drs vs Esparon & Drs (CS0412017) [20181, Review Commissioner v Yangtze
Construction Co Pty Ltd [20187 SCSC 545,' Gopal and Another v Barclays Bank
(Seychelles) (SCA No.51 of 2011) [20137 SCCA 23, Felix Amelie v Marc Marguerite
(2017) SCse, Zatte v Joubert (1993) SLR 132, Elfrida Vel v Selwyin Knowles Civil Appeal
No 41 and 44 0{]988, Banane vs Banane (SCA 2912018) [20201 SCCA 40,' Cailachame v
Monthy (CS4412017) [20181 SCSC 242. The gist of the Defendant's contention is that if
as pleaded by the Plaintiff, the alleged transgressions occurred during the years 2014 and
2016, this matter had to have been initiated by July 2021. Learned counsel referred the
Court to article 2246( 1) and (2), argu ing that if proceedings started are not concluded for
the reasons contained in article 2246, prescription is not deemed to have been interrupted.
Learned counsel moved the Court not to sanction this proceedings beyond the limit of
statutory limit provided by law by allowing the Plaintiff to maintain an action after the
prescribed time has elapsed.
[5] Learned counsel for the Plaintiff avers that the Plaintiff only discovered the misdeeds of
the Defendant in 2018 and proceedings were initially filed against the Defendant in 2019
but were eventually dismissed by the Court for lack of appearance by counsel and the
litigants in 2021. Learned counsel submitted that despite article 2246(2) of the Civil Code,
there was interruption in terms of article 2244 of the Civil Code. Learned counsel referred
the court to several cases in support of his submission, namely Sheldon vs R.HM
Outhwaite (Underv1iritingAgencies) Ltd (J996) AC 102,' Yves Maurel and another vs Mmy
Geers and another CS No. 30 of2015: Allen Jude Medine versus The Estate ofthe late Jean-Claude Vidot Civil Side No: 293 of 2007,' .... Learned counsel submitted that the
Defendant deliberately concealed the material facts from the Plaintiff for two years after
the accrual of the cause of action and in the circumstances the prescription period for the
cause of action could only start to run upon the discovery of the fraudulent acts,
[6] The relevant articles relied upon by the litigants are article 2271(1) of the Civil Code which
states:
2271. (1) All rights of action shall be subject to prescription
after a period offive years except as provided in articles 2262.
Articles 2262 deal with action in rem in respect of ownership of land or interest therein and
is not applicable to this case. Article 2244 provides as follows:
2244. A writ or summons or a seizure served on a person in
the process of acquiring by prescription has the effect of a legal
interruption of such prescription.
Article 2246(1) and (2) provide:
"2246. (1) A writ or summons to appear before a court, even if that court
has nojurisdiction, interrupts the prescription.
(2) The interruption shall be deemed not to have occurred
if-
(a) the proceedings are dismissed owing to aformal defect,'
(b) the plaintiff's claims are withdrawn,'
(c) the plaintiff allows the proceedings to lapse,'
(d) the plaintiff's claim is rejected".
[7] Interruption of prescription under article 2244 is clearly provided for acquisition of
ownership or right or interest but not for limitation of the prescribed period for legal action.
The argument advanced by the Plaintiff in relying on article 2244 is therefore misconceived
in respect of the case previously filed.
8] Exceptions to article 2271 (1) are contained in article 2246(1) and article 2246(2) clearly
states the circumstances when prescription is not interrupted. It is clear from the submission
of leaned counsel that the case CS29/2019 was dismissed for want of prosecution which
allowed the case to lapse as per article 2246(2)(c). Although it was re-instated, it was
subsequently withdrawn by the Plaintiff upon her own motion as per article 2246(2)(b).
Hence prescription was not interrupted.
[9] The only avenue remaining is when prescription started to run. Prescription period cannot
be varied or extended by the Court in any circumstances even if strictly applying it would
on the face of it be unfair to the litigant. The arguments of learned counsel for the Plaintiff
and the Defendant vary only on the point of when prescription stared to run. Learned
counsel for the Defendant argues that prescription started to run in 20] 6 when the alleged
transactions had been made and hence ran the 5 years by 2021.
[10] Learned counsel for the Plaintiff submitted that prescription started to run only in 20] 8
when the Plaintiff after investigations discovered the transgressions of the Defendant.
Either may be correct but such a determination would depend entirely on the evidence
adduced. As stated in the case of Nolin v Nolin CS 75/2002 judgment delivered on 15
January, 20] 4 in regards to whether prescription starts to run upon the discovery of the
misfeasance by the Defendant:
"Learned counselfor the Plaintiff nevertheless maintained that time would
only start to run when the Plaintiff became aware of the matter in issue
which he submitted must have been sometime after the signature of the
documents. This would have been true had the Defendant conducted the
transaction away from and without any input from the Plainti((who was
ignorant that the transaction has been made. [Emphasis mine].
[11] I therefore consider it unfair to make a determination on that last arguments without first
having heard evidence on whether the argument that the Plaintiff could only become aware
of the transgression was in 2018 or exactly when. Should the Plaintiff fail to satisfy the
Court by evidence to that effect, the plea in limine litis should succeed. To that end the Defendant is entitled to raise the matter again during the hearing when evidence is adduced
and the Court would revisit the issue in its final judgment.
[12] Consequently, the plea in limine litis is not dismissed but is placed in abeyance to be further
determined after hearing of all the evidence which have a bearing on its determination.
[13] Costs shall follow the event.
Signed, dated and delivered at Ile du Port on 19 October 2022
Dodin J