The Attorney General v Dodin (CS 86 of 2022) [2023] SCSC 516 (10 July 2023)

ESPARON J,

Introduction

1. This is an action by way of Plaint whereby the Plaintiff is seeking an Order from this Court that declares that the defendant has trespassed on, and /or is in lawful possession or occupation of the property and to order the defendant to quit, leave and vacate the property and remove his moveable possessions from the property.
2. The defendant has filed his defence and raised a Plea In Limine Litis or a point of law in his defence namely that the Plaint should be dismissed for being an abuse of process of this Honourable Court as it seeks to litigate matters which were abandoned, overlooked or dismissed in two previous proceedings, i.e Civil side 26 of 2021 and civil side 108 0f 2008. respectively.

Submissions of Counsels

3. Counsel for the defendant submitted to the Court in support of the Plea In Limine Litis that the present matter is the same as the two previous matters filed before the supreme Court namely that they are between the same parties in the same capacity, and regarding the same subject matter of which the two previous one had been abandoned or overlooked by the Plaintiff and dismissed by the Court and hence it is an abuse of process of the Court. According to Counsel for the defendant, the first suit was filed in 2008 namely CS 108/2008 and was adjourned sine die due to the plaintiffs non- appearance in Court and CS 26/ 2021 was dismissed for the same reason and that a similar suit has now been filed a new and further submitted to the Court that this is an abuse of the judicial process of the Court and shows chronic lack of diligence on the part of the Plaintiff which in turn caused undue stress and inconvenience to the defendant to defend himself on each occasion.
4. Counsel for the defendant relied on the case of Gomme V/S Maurel and Anor (2012) SCA 28, the case of Bradford and Bingley Building society Hancock and ORS (1999) EWCA Civ. 944 and the case of Wilfred Freminot and Ors V/S Christopher Gill Civil Appeal, SCA 30/2016 and cross Appeal SCA 32 /2016. He further submitted to the Court that whilst the Plaintiff may have a genuine claim, it had the responsibility to avail itself of the judicial process in an efficient and responsible manner instead of having the defendant to have to defend himself over the same subject matter 15 years after the initial suit was brought and that this was also tantamount to harassment of the defendant through the Court process and it would also amount to an ‘’ unjust hounding’’ of the defendant.
5. Counsel for the defendant also submitted to the Court that the principle of abuse of process of Court is not meant to be a restrictive doctrine with limited application and it can be even applied to litigation between new parties and /or determination of new issues where these should have been resolved in earlier proceedings.
6. On the other hand Counsel for the plaintiff submitted to the Court that the case of C S 108 of 2008 which was a case of writ Habere facias possessionem, both Counsel for the Applicant and counsel for the Respondent were absent and that such an action is a summary action and that even if they had not been successful, they would still have had recourse through an ordinary action and that was what the Plaintiff had done by filing a case in 2021. She further submitted that CS 26 of 2021 was dismissed for want of prosecution and that where a case is dismissed, it is the right of the Plaintiff to refile the case and relied on the case of Feuilles limited V/S Pamela Charlette and Peter Tankov MA 213 arising in MC 65/2020.
7. Counsel for the Plaintiff also submitted that had the case been heard and the Court would have heard the witnesses in the matter and that would have been a different matter and that the said case had not been heard on the merits and neither had the court heard the evidence of any witnesses.
8. Counsel for the Plaintiff further submitted that counsel for the defendant did not show or prove how refiling this matter has caused prejudice towards the defendant or towards the conduct of his defence and relied on the case of Acsent projects V/S Evelyn Fonseka civil side 19 of 2017 and submitted to the Court that there is no prejudice caused to the defendant and hence the matter should be allowed to proceed on the merits.

Analysis and determination

9. It is clear from the Plea In Limine Litis raised by the defendant that the issue to be determined by this Court is as to whether the refiling of the Plaint after it had been dismissed at least once and the fact that there was another action which had been adjourned sine die namely an action of writ Habere Facias Possessionem amounted to an abuse of process of court.
10. In the case of  Gomme V/s Maurel, Court of Appeal  6/ 2010, the Court relied on the case of Bradford and Bingley Building society V/S Sedon Hand Cock  and Org ( 1999) 1 WLR 1482 where the Court held ;

 ‘The rule of abuse of process encompasses more situations than the three requirements of res- Judicata. Courts cannot stay unconcerned where their own processes are abused by parties and litigants. There is a time to decide enough is enough, where lawyers have not advised their clients. Abuse of process will also apply where it is manifest on the facts before the Court that advisors are indulging in various strategies to perpetuate litigation either at the expense of their clients who may be hardly aware or at the instance of their clients who have some ulterior motive such as harassing parties against whom they have brought actions or others who may not be parties. Courts have a duty to intervene to put a stop to such abuses of legal and judicial process’.

11. In the case of Bradford  and Bingley Building Society (supra) Auld  LJ Stated the following;

‘In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the Courts ‘ subsequent application of the dictum. The former, in its cause of action estoppel  form, is an absolute bar to re-litigation, and in its issue estoppel form also save in ‘ special cases ‘ or special circumstances  see Thoday V Thoday ( 1964) P. 181 197-198 per Diplock LJ and Arnold V National Westminster Bank  PLC ( 1991) 2 AC 93. The latter, which may arise where there is no cause of action or issue estoppel, is not  to be unjustly  hounded given the earlier history of the matter’.

12. In the case of Gomme V/S Maurel  (supra)  Domah J stated the following;

‘Abuse of process is not a new discovery under the rule of law and the Court’s control of cases coming to Court. The source of the doctrine of abused of process may be traced to a 1947 decision of Somervell LJ in Greenhalgh v mallard (1947) 2 All ER 255 at 257. The scope may be found in the following pronouncement of the Court that abuse of process is:

…not confined to the issues which the Court is actually asked to decide, but …covers issues or facts which are so clearly part of the subject matter of litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them’.

13. The Court in the Case of Gomme (supra)  stated the following;

‘So much for the scope. Now for the limit that may be found in what Lord Wilberforce delivering the opinion of the Board of Brisbane City Council V  Attorney General for Queensland (1979) AC 411 at 425, stated when he confined it to its ‘true basis’ the prohibition against re-litigation on decided issues. Abused of process-

…. ought only to be applied when the facts are such as to amount to an abuse, otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation’.

14. The Court held in the above-mentioned case the following;

‘To come back to the present Appeal, we have gone through the record of the history of the dispute which started 11 years ago. The decision of the Chief Justice cannot be impugned when he found that the Appellant was engaged in re- litigation. The case of Bradford and Bingley Building society (supra) is pretty clear on this point that even parties who were not originally in the case may be caught by the doctrine of abuse of process if seek a re-litigation of a case which has already decided upon’.

15. In the case of Ascent Projects (Sey) Ltd V/S Evelyn Fonseka and Ors,CS  19/2017 whereby in this matter a Plea In Limine Litis was raised  that the plaint is an abuse of process of Court since identical plaints between the same parties raising the same  cause of action were dismissed by this Honoiurable Court in CC 01/2013 and CC 27/2014.  The Court in this case relied on the case of Board of Brisbane  Council V/s Attorney general for Queens land  ( 1979) AC. 411, 425, the case of DPP V/S Humphrys  (1970) A.C 1 at 46 and the case  of Hui Ming  VR ( 1992) 1 A.C  34,  Judge S Govinden as she was then stated the Following;

‘Now in the case, this Court based on the above analysis of the facts in line with the rule of abuse  of process and its irrelevant criteria  as set out by case law  both in the Jurisdiction and other relevant Jurisdictions. I find that the Plea in Limine Litis as raised, has no reasonable basis, for there is no evidence ex-facie the pleadings of any manipulation and or misuse   of the process of the Court so as to deprive the defendants of a protection provided   by law or to take advantage of a technicality and or that the defendants will be prejudiced in the preparation or conduct of their defence’.

16. In the case of Feuilles Limited V Pamela Charlette and Peter Tankov  MA 213/ 2021 arising in MC 65/ 2022 which was an Application arising out of a dismissal of a plaint in MC 65 of 2020 as a result of non- appearance of the plaintiff and his counsel asking for re-instatement of the case,  the Court in this case relied on section 64 of the Seychelles Code of Civil Procedure of which  Andre J as she was then stated the following;

‘Now, noting the ratio decidendi of our own case laws and also clear provisions of section 64 and 67 of the Code, I find that the decision of Learned Chief justice on the 19th May 2021 at 11am proceedings clearly illustrates the absence of both Parties and legal representative alike, was legally proper and appropriate in all circumstances of the case. The case cannot be reinstated. Hence, the application for reinstatement should be dismissed and the Applicant is at liberty to enter a fresh suit as per the provisions of section 64 of the Code’.

17. This Court hereby reproduces section 64  of the Seychelles Code of Civil Procedure which reads as follows;

‘If on the  day fixed for the defendant to appear and answer to the claim, or on any other  subsequent  day to which the hearing of the suit is adjourned, when the case is called on, neither party appears, the suit shall then be dismissed  unless the Court, for reasons to be recorded, otherwise directs. When the suit is dismissed under this section, the Plaintiff may bring a fresh suit subject to the law as to prescription’.

18. First and foremost this Court notes that both in CS 26 of 2021 and CS 108 of 2008, the matters were dismissed before the Court or adjourned sine die since both parties did not appear. Hence it is clear that section 64 of the Seychelles Code of Civil Procedure is applicable in the present matter and that the plaintiff could bring a fresh suit in the event the plaintiff wishes to since there is no plea of prescription that has been raised in the present matter (vide Feuille Limited V/S Pamela Charlette and Ors MA 213/2021 arising in MC 65 /2022).
19. This Court is also of the view that CS 28 of 2008 is a different action filed in court being an Application for a writ habere facias possesionem whereas CS 26 of 2021 is of the same type of action as in the present matter which was filed by way of Plaint. Hence it is this Court’s view that the matter with the same type of action is to be taken to have been dismissed only once since in any event the dismissal of an application for a writ of habere facias possessionem which is an expeditious remedy is not a bar to filing an ordinary action by way of Plaint in the event it is dismissed. It is this Court’s view that the fact that CS 28 of 2008 had been adjourned sine die though of some relevance is not material to determining whether there has been an abuse of process of Court since in any event the Plaintiff would have been able to file an ordinary action in the event of the dismissal of the Application for a writ habere facias possessionem.
20.  This Court has considered the submissions of Counsel for the defendant as well as the submissions of Counsel for the Plaintiff in the matter and  as a result of paragraphs 17, 18 and 19 of this judgment and the authorities as case law cited above , this court although recognizing  there are no closed categories of cases which may be seen as an abuse of process of court, this Court finds that  it could not be said that the defendant is being unjustly hounded by the refiling of the case as a result of the history of the matter since section 64 of the Seychelles Code of Civil Procedure allows the Plaintiff to bring a fresh suit  in the event the case is dismissed as a result of non-appearance  of both parties. Furthermore  the  matters dismissed or adjourned sine die were never  heard on the merits and as such there were no  witnesses nor material witnesses   heard in the matter  so that  it could be said that the defendant  will be prejudiced in the preparation or conduct of his defence (vide: Ascent Projects (Sey)  Limited  V/S Evelyn Fonseka and Ors  CS 19/2017).
21. The above is said bearing in mind that of what was said in the case of Gomme (supra)  that;

‘So much for the scope. Now for the limit that may be found in what Lord Wilberforce delivering the opinion of the Board of Brisbane City Council V  Attorney General for Queensland (1979) AC 411 at 425, stated when he confined it to its ‘ true basis’ the prohibition against re-litigation on decided issues. Abused of process-

…. ought only to be applied when the facts are such as to amount to an abuse, otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation’.

22. This Court has perused the Plaint in the instant matter and without going into the merits of the case, this court is of the view that there may be a danger in the present matter of a party namely the plaintiff being shut out from bringing forward a genuine subject of litigation if proved that the Plaintiff is still the proprietor of the land parcel in lite.
23. For the above reasons, this Court finds that there is no abuse of process of Court in the plaintiff re-filing the present suit and I accordingly dismiss the Plea In Limine Litis.

Signed, dated and delivered at Ile du Port on 10 July 2023

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Esparon J