Hoff v Servina (MA 54/24) [2024] SCSC 135 (10 July 2024)

PILLAY J:

1. By way of a motion dated 28^th February 2024 and filed on 5^th March 2024, the Defendant seeks an order setting aside the ex-parte hearing fixed for 23^rd March 2024 and consequently to allow the hearing of the suit to proceed inter partes.
2.  The Defendant objected to the motion on the basis that the Notice of Motion is defective as is the Affidavit in support of the motion.
3. The Motion was heard on 13^th June 2024. I have considered the arguments raised by both counsels in support of their position and do not propose to rehearse the lengthy submissions made by both.
4. In summary the objections from the Plaintiff is that the Defendant has not shown sufficient cause in that the excuse given by the Defendant that she mistakenly informed her counsel of the date fails to reach that standard as well as the Affidavit in support is defective in that it fails to state the Defendant’s occupation and her religious beliefs.
5. Learned counsel for the Defendant relies on section 23 of the Evidence Act in addressing the objection of the Plaintiff as regard the failure of the Defendant to state her religious belief and occupation.
6. Section 23 of the Evidence Act provides that:

Where an oath has been duly administered and taken, the fact that the person to whom the same was administered should have made a solemn affirmation under sections 18 and 19 or a declaration under section 21, or where a solemn affirmation or declaration has been made by a person who should have taken an oath, such error shall not affect the validity of the oath, solemn affirmation or declaration respectively, if no protest was made by the person sworn, solemnly affirmed, or making the declaration, at the time such oath, solemn affirmation, or declaration was made or taken.

7. Section 23 speaks for itself. The Defendant did not object to the manner that the oath was administered to her meaning that her oath is not affected by the nature of her religious belief or lack thereof.
8. As regard the failure to state her occupation, in Paul Chow v The Commissioner of Elections, CC 3/2007, the defects at issue in the affidavit were as follows:

“… it was averred in paragraph 5 of the Petition that the 1^st Respondent announced the dates of the election on 20^th March 2007, whereas it was done on 26^th March 2007. A more material error contained in paragraph 8 of the Petition was the averment that the 1^st respondent can only hold elections 30 days after the proclamation. As submitted by the Attorney General, that would have meant that the 1^st Respondent was correct in fixing the dates of the election to commence on the 50^th day after the proclamation.”

9. The Constitutional Court explained that it “expects the Petitioner and his Counsel to have acted with more diligence, seriousness, and with responsibility and at least peruse the pleadings once after typing for possible defects.” And it expressed its strong disapproval of such irresponsibly drafted pleadings. However, given that the petition concerned the constitutionality of an impending General Election which affected the whole country, the court explained that it was “prepared to acknowledge human errors and omissions” regarding certain defects in an affidavit. Moreover, it noted that “[t]hose errors and omissions were however permitted to be amended under Rule 5(3) as they did not constitute any new matter not pleaded in the Petition.”
10. In Mrs Lea Raja M Chetty v Mr Mariapen Srinivasen Chetty, CS 327 of 2006 (“Lea Raja”), a case dealing with an application for a freezing order signed by an attorney and an affidavit signed by the same attorney in his capacity as a public notary, the Supreme Court concluded that “[g]iven the relationship of the parties, their state of affairs, as well as the redress sought and the urgency of the application, the Court [was] prepared to entertain it the way it is in the interest of justice.” In reaching this conclusion, the Supreme Court referred to the court’s ruling in United Opposition v Attorney-General (unreported) CC 8/1995.
11. As demonstrated in these various cases, while the Court of Appeal has interpreted the requirement for having a proper affidavit more strictly and dismissed applications with defective affidavits, lower courts dealing with constitutional issues and urgent applications have focused on the nature (see Chow, United Opposition, and Mersia Chetty) and content (see Lea Raja) of the purported affidavit, and have interpreted the affidavit requirements less strictly by characterizing there more liberal approach as being in the better interest of justice.
12. I now turn to the issue of good cause.
13. Learned counsel for the Plaintiff argues that the Defendant has not shown good cause in accordance with section 69 of the Seychelles Code of Civil Procedure in order to satisfy the Court to set aside the order for an ex parte hearing whereas counsel for the Plaintiff argues that there is no requirement to show that there is good cause so much as it is in the interest of justice to allow the matter to be heard inter partes. The basis for the argument of Learned counsel for the Defendant is that his motion to set aside the order for ex parte hearing is not grounded in section 66 of the Seychelles Code of Civil Procedure.
14. Section 66 of the Seychelles Code of Civil Procedure provides;

“If the Court has adjourned the hearing of the suit ex-parte, and the Defendant, at or before the hearing (underline mine) appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to cost or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”

15. Section 65 of the Code provides that:

If on the day so fixed in the summons when the case is called on the plaintiff appears but the defendant does not appear or sufficiently excuse his absence, the court, after due proof of the service of the summons, may proceed to the hearing of the suit and may give judgment in the absence of the defendant, or may adjourn the hearing of the suit ex parte.

16. On a reading of the two sections it is clear that section 66 follows on from section 65 and cannot be read in isolation. Furthermore, section 65 provides for the procedure if the Defendant does not appear on the date fixed in the summons, which would in practical terms be the first date on which the matter is mentioned. In the circumstances I would agree with counsel for the Defendant that section 66 has no application to the present matter wherein the Defendant did appear on the date fixed in the summons, was given time to file her Defence but failed to do so and to appear subsequently.
17. What is the position in circumstances where the Defendant put appearance on the date fixed in the summons but thereafter defaults appearance?
18. Section 64 provides that:

… on the day fixed for the defendant to appear and answer 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 a suit is dismissed under this section, the plaintiff may bring a fresh suit, subject to the law as to prescription.

19. Section 128 of the Code provides that:

On the date to which the suit has been adjourned under the last preceding section, the parties shall appear and the Court shall then adjourn the suit to a date to be fixed by the court for the hearing. If the defendant has neglected to file his statement of defence within the time ordered by the court, the court may either give judgment for the plaintiff on his claim or grant further time, subject to such order as to costs, as to the court may seem fit.

20. The proper course of action would have been for the Court to give judgment on the Plaintiff’s claim or to grant further time for the Defence to be filed. The Court however opted to schedule the matter for ex parte hearing.
21. Having done so the Defendant seeks that the order for ex parte hearing be set aside in the interests of justice. Learned counsel submits that it is a well-established principle that parties should not be punished for their mistake but that the Court is here first and foremost to administer justice. Learned counsel relied on the case of Cropper v Smith (1884) as well as Queensland and Another v JL Holdings Pty Limited (1997) 141 ALR353.
22. I see no need to go to a foreign jurisdiction for clarity on the issue. In our own local case of Casamar v Aristotle SSC 341/1996, 25 July 2002 the Supreme Court found that the Court’s role is to determine the rights of the parties and not to punish them for their mistakes in conducting their cases by deciding the matter otherwise than in accordance with the parties’ rights.
23. In the case of Pillay v Bedier (1991) SLR 84 the Court found that it has the discretion to grant leave out of time it if is satisfied that there is a legal or equitable defence and that the delay had been occasioned by equitable reasons.
24. In my view, in the current matter the Court needs to look to equity there being no provision that deals with the present circumstances. Section 6 of the Court’s Act provides as follows:

The Supreme Court shall continue to be a Court of Equity and is hereby invested with powers, authority, and jurisdiction to administer justice and to do all acts for the due execution of such equitable jurisdiction in all cases where no sufficient legal remedy is provided by the law of Seychelles.

25. In looking to equity the Court is required to look at the principles of fairness and justice. I am mindful of the remarks of his Lordship Domah JA in the case of Gill & Ors v Film Ansalt (SCA 28 of 2009) [2013] SCCA 11 (3 May 2013) that:

 Equity serves the diligent and not the indolent

26. It is noted that the order for ex parte hearing was made on 21^st February 2024. The motion to set aside the order is dated 28^th February 2024 and was filed on 5^th March 2024. So the motion was filed 13 days after the order was made. It is further noted that a Defence dated 28^th February 2024 was filed on 4^th March 2024.
27. In as much as it can be argued that the Defendant was negligent in not ensuring her or counsel’s attendance on 21^st February 2024, it cannot be said that she was lazy in addressing her mistake. In the circumstances, I find that it is just and fair for the order for the matter to proceed ex parte be set aside.
28. In the circumstances the Motion is granted.
29. No order as to costs.

Signed, dated and delivered at Ile du Port on …………

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Pillay J