- Case summary
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Application to amend the Plaint
ESPARON J
Introduction
- In this matter, the defendant had filed his defence to the plaint whereby the defendant had raised a Plea In Limine Litis namely that the action is prescribed by law.
2. Subsequently the Plaintiff filed a notice of motion seeking for leave of this Court to amend his Plaint.
The Pleadings
3. The Plaintiff has filed an Affidavit in support of the Notice of Motion sworn by Hafid Ally who avers in his Affidavit that ‘I am duly authorized representative of Pro-diving (Seychelles) (Pty) Limited.
4. The deponent avers in paragraph 3 of his Affidavit that “I am advised by the Attorney of the Plaintiff and verily believe that it is no longer necessary to claim the interest of 2 % per annum which was due quarterly after the date of the agreement between the Plaintiff and the Defendant”.
5. The deponent has averred in paragraph 4 of his Affidavit that ‘I am advised by the Attorney of the Plaintiff and verily believe that further documents are to be listed in the Plaint in order to disclose documents which will be relied upon.
6. The deponent further avers in paragraph 6 of his Affidavit that ‘I am advised by the Attorney of the Plaintiff and verily believe that it is in the interest of justice and necessary for these sections of the Plaint to be rectified upon an order made by the Court so that the Court may try the real issues at hand.
7. The defendant on the other hand has filed an Affidavit in reply sworn by Stacy Nair being the Secretary of the defendant.
8. The deponent avers inter-alia in her Affidavit the following;
6) I am advised and verily believe that the amendments sought are not made in good faith and made in an attempt to try and circumvent the legal prescription in relation to the case.
7) I am advised and verily believe that the affidavit as sworn evidence is in fact defective in that it fails to meet the requirements of the body of the Affidavit and the manner of exhibiting documents in the Affidavit.
8) That I am verily advised by my Attorney that the amendment of the Plaint ought to be refused by the Court as it is not sought in good faith and the amendments are intended to cause serious prejudice and injustice to the Respondent who has already raised a Plea In Limine in this matter, Vide Petit Car Hire V Mendelson (1977) SLR, De Silva V United Concrete (1996) SLR 68.
9) That I verily believe and I am advised by my Attorney that the cause of action in the Plaint CS 87 of 2022 is purported to be on the breach of a loan and the amendment now sought is intended to substantially change the character of the suit.
10) That the Applicant’s Affidavit is clearly frivolous and vexatious.
Submissions of Counsels
9. Counsel for the Plaintiff relies on section 146 of the Seychelles Code of Civil Procedure. The said Counsel also relies on the Authority of the case of Morin V Pool, 2022 SLR 144, Petit Car Hire V Mandleton and the case of Casimir V/S Aristotle SC 341 /1996
10. Counsel for the Plaintiff submitted to the Court that with regards to good faith that the case was filed seeking recovery of a loan which included the principal sum of 5 million which became due 7 years after the date of the agreement and the sum of 1 million one hundred and ninety-three thousand, three hundred and twenty-nine in order to pursue the principal sum which is not prescribed and that is prime example of amending the pleadings in order to try the real issues at hand. According to Counsel for the Plaintiff, if the principal sum is not prescribed whilst the interest could be, it would be just for the Court to pursue the matter which is not prescribed.
11. It is hence submitted by Counsel for the Plaintiff that there cannot be bad faith for simply seeking to pursue what is alleged to be owed to it of which a small portion namely the interest may be prescribed. According to Counsel, such amendment does not change the nature of the suit or cause of action at all of which only the sum being claimed is reduced and hence there is no longer interest being claimed. It is still seeking recovery of a debt from a loan.
12. It is submitted that as regards to prejudice the balance of hardship will be more towards the plaintiff than the defendant, Should the motion not be allowed of which the plaintiff would lose the principal sum which is not prescribed and that the defendant would essentially escape paying back a substantially large amount of loan and the plaintiff would now be prescribed from refiling since by now the entire case would be prescribed. However, in the event the plaintiff loses the case, the defendant can always be compensated with cost.
13. As to the Point of law raised in the Affidavit in reply, Counsel for the defendant submitted to the Court that the Affidavit is defective for in the manner of exhibiting documents in the Affidavit. He further Submitted to the Court that the deponent Hafid Haiz Ally avers that ’he is duly authorized to represent’ of which such authorization has not been exhibited and that the Court has no way to confirm as to whether the individual is indeed authorized to swear this Affidavit on behalf of the Applicant.
14. Counsel for the defendant relied on the cases of Savoy V/s Sharifa Salum and the case of Elmasry where the Court of Appeal found that where such authorization has not been exhibited, the Affidavit was defective and is fatal to the Application.
15. He further submitted that when the Plaintiff avers in his Affidavit that he is exhibiting a document, there is a format pursuant to the Civil Procedure rules in the UK namely that the deponent must state that ‘there is now shown to me, marked, produced as exhibit’.
16. As regards to the merits of the case, Counsel for the defendant invited the Court to draw its attention to paragraph 3 of the Affidavit and submitted that what the plaintiff seeks to do now after the defendant has filed a Plea in Limine Litis as regards to prescription, is that the plaintiff seeks to circumvent the prescription by way of removing the claim for interest in his Plaint and submitted that this is made in bad faith as it has been done purely to circumvent the plea of prescription. According to Counsel for the defendant, the interest is part and parcel of the loan agreement.
17. Counsel for the defendant further submitted that the Court has a discretion under section 146 of which the Court should exercise its discretion by not allowing this amendment of the Plaint since It is not being done in good faith as the amendment sought will prejudice the defendant by way of trying to circumvent the plea of prescription.
18. Counsel for the defendant submitted to the Court that in removing interest in the plaint, the Plaintiff is in effect changing the character of the suit if it is in fact a loan with interest.
Analysis and determination
19. First and foremost, since the defendant has raised a point of law namely that the affidavit is defective since the deponent Hafid Haiz Ally avers that ’he is duly authorized to represent’ of which such authorization has not been exhibited and that the Court has no way to confirm whether the individual is indeed authorized to swear this Affidavit on behalf of the Applicant, this Court shall deal with this point of law first before dealing with the merits of the case in the event there is a need.
20. As regards to this point of law, guidance may be sought with the case of Savoy Development Ltd V/S Salum SCA MA 16 of 2021, (2021) SCA 45, which relied on the case of Elmasry and Anor V/s Hua Sun, SCA 28 of 2019, (2020), SCA 2 Where A. Fernando (President) stated the following;
“The Power of Attorney has not been attached to the Affidavit. I am of the view that the Power of Attorney had necessarily to be attached as this Court is unable to know otherwise in which capacity the Applicants are before the Court. A mere statement that the Applicants are represented by Mr. Nabil Elmasry does not suffice. Counsel for the Applicants tried to argue that the Power of Attorney had been filed before the Supreme Court. This Court does not know whether Mr. Nabil Elmasry has been authorized to represent the Applicants in the appeal case since the power of attorney as stated at paragraph 8 above bears a date 4 years prior to the filing of the application. It is not stated in rule 25 which deals with ‘Interlocutory matter’ that the Registrar shall undertake the preparation of the record after an application for stay of execution is lodged, unlike in the case of the preparation of the record of appeal after the notice of appeal is filed in accordance with rule 23. In the case of D.L. de Charmory V P.L. de Charmory, SCA MA 08/2019 (17 September 2019) this Court stated: “In Re Hinchliff, A person of Unsound Mind, Deceased, [1895] 1 Ch 117, the Court of Appeal held that any document to be used in combination with an affidavit must be exhibited. In the same light any document to be used in combination with an affidavit in support of an application to stay execution must be exhibited to and filed with it. Counsel for the applicant should be mindful that the affidavit stands in lieu of the testimony of the applicant.” Re Hinchliff had been quoted with approval in the cases of Trevor Zialor V The Republic SCA MA 2017 (unreported 17 October 2017) and Marie-Therese Boniface V Maxime Marie SCA MA 01/2019 (unreported 28 May 2017)”.
- A. Fernando (President) further stated in Elmasry (Supra) the following:
“The defects in the Affidavit highlighted above is sufficient to dispose of this application, but I have decided to examine the case further at the request of Counsel who have sought guidance from this Court as to the grounds upon which a Stay of Execution may be sought and granted by a Court”.
- In the case of Savoy Development Ltd V/S Salum, SCA MA 16 of 2021, (2021) SCA 45, Twomey JA stated the following;
“The Court of Appeal in Lablache de Charmoy (Supra) held that irregular affidavits cannot be waived by the parties. Affidavits are sworn evidence and evidential rules for their admission cannot be waived by the Court either. The defect in the Affidavit is fatal. In the Circumstances, as the Application is improperly supported and it is dismissed with cost’.
- In the present matter, the deponent has averred in his Affidavit in support of the Application that ‘I am duly authorized representative of Pro-Diving (Seychelles) (Pty) Limited’ without averring in what capacity he represents the Respondent. The deponent has also not exhibited a Power of Attorney in order for the Court to know otherwise in which capacity the Applicant is before the Court.
- This Court has meticulously considered the submissions of Counsels on this issue as well as the case laws cited above and holds that a mere averment that the deponent is a duly authorized representative of the Applicant does no suffice and hence it is this Court’s view that the power of Attorney should have been exhibited in order for the Court to know in which capacity the Applicant is before the Court.
- This Court is also of the view that such irregularity or defect in the Affidavit cannot be waived by the parties or by the Court and hence this Court holds that the defect in the Affidavit is fatal as the Application is improperly supported.
- Since the defect in the Affidavit highlighted above is sufficient to dispose of this application, this Court finds no need to make any pronouncement on the 2nd point of law and on the merits of the Application.
- For the above reasons, I accordingly dismiss the Application with Cost.
Signed, dated and delivered at Ile du Port on the 25th September 2023
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Esparon J