Payet v Monthy (MA 199 of 2022) [2024] SCSC 148 (7 June 2024)

DODIN J.

1. On the 20^th day of March 2019, the Petitioner obtained a judgement against the Respondent whereby the Respondent was ordered by the Supreme Court to pay to the Petitioner the sum of SCR 907,000/-, with costs.
2. On the 2^nd day of May 2019, the Respondent filed a Notice of Appeal before the Seychelles Court of Appeal. At the conclusion of the appeal, in August 2021, the Respondent was ordered by the Seychelles Court of Appeal to pay the Petitioner the sum of SR845, 000/-, with costs.
3. The Petitioner avers that despite the aforesaid Judgments, the Respondent has failed to satisfy the said Judgment of the Court and he is still indebted to the Petitioner in the sum of SR845, 000/-, with costs taxed by the Registrar at SR21, 083/-. The Petitioner avers that the total sum owed to her by the Respondent amounts to SR866.083/-.
4. The Petitioner further avers that the Respondent has the means to satisfy the Judgment debt but is unwilling to do so.
5. The Petitioner moved the Court to issue a summons to show cause upon the Respondent, calling upon the Respondent to appear in Court and show cause as to why he should not be committed to civil imprisonment in default of satisfaction of the judgment of the Court and to order that the Respondent shall pay cost of the Petition.
6. The Respondent admitted that he has an outstanding judgment debt to the extent that the Court of Appeal ordered that the Respondent pays the sum of SCR845,000/- to the Petitioner.
7. The Respondent nevertheless averred that for the purpose of execution, a warrant or writ of execution is valid in the first instance of 12 months beginning with the date of its issue, and he was never served with, and neither does he have knowledge that any warrant or writ of execution was ever issued as per the requirement of section 245 of the Civil Procedure Code.
8. The Respondent further averred that despite there having been no service of a writ of execution on him as per the requirement of section 245, the Petitioner executed the judgment against him and on the 21^st December 2021 the only movable property in his name was seized and sold by public auction as prayed for by the Petitioner and the Court order dated 23^rd February 2022 in satisfaction of the judgment.
9. The Respondent avers that upon being served with notice of the impending sale, he filed an extremely urgent application to stop the sale on 21^st February 2022 averring therein inter alia that the jeep was pledged to the bank but despite this disclosure the Petitioner in her response thereto on the hearing of the motion insisted that the sale proceed and the court so ordered.
10. The Respondent averred further that the Petitioner knew that the proceeds of sale from the Lexus Jeep would go to the bank and still choose to proceed with the auction, therefore she willingly assumed the risk that the proceeds would go to the bank and cannot now seek a second bite at the cherry by claiming the judgment debt from him again.
11. The Respondent avers that the Petitioner not having  put a “reserve price” on the jeep it was sold below value, a consequence of which is, that he is still liable to the bank for the balance of money outstanding on the loan he took to purchase the vehicle, and it  would be unjust and inequitable for him to have to pay both the bank on the balance of the loan and to pay the Petitioner for a risk she voluntarily assumed based on the information provided  to her in the extremely urgent motion filed by him to stop the sale.
12. The Respondent avers that he has no means of satisfying the debt and calls upon the Petitioner to place before the court such evidence as she has that he can satisfy the judgment debt after the Petitioner seized “the tool of his trade” the jeep and had it auctioned off without a reserve price, and having done so in the full knowledge that it was pledge to the bank.
13. The Respondent is 26 years old and was called to testify on his means. He averred that he is a casual worker. He has several businesses registered in his name but which are not operational except a small cleaning business from which he earns SCR 28,000/- per month out of this SCR 10,000 goes to the employee, he kept SCR 10,000/- and SCR 4,000/- goes towards expenses. He also has other businesses registered jointly or solely in his name, namely, PDA cleaning Agency and X & M Supplies which are no longer functioning, Elegant Transfers which was making from SCR 4,000/- to SCR 30,000/- until the Lexus was sold and the bank took the proceeds; District Barber Shop which closed after 6 months; RM Investment Services which also failed. He also invested in a boat which he claimed he offered the Petitioner who refused. He also bought a Zotye Jeep for scrap and was gifted a Haussen motor-cycle by his father before the latter passed away.  
14. He did not dispute that he travelled and dined out quite often but maintained that all were at the expenses of his current girlfriend as he has no means. He maintains that he is also paying the Bank SCR 7,000/- every month for the outstanding debt on the Lexus.
15. The Respondent admitted that he has accounts at Mauritius Commercial Bank, the Seychelles Credit Union, Seychelles International Mercantile Banking Corporation (SIMBC), Barclays Bank (now ABSA) and Al Salaam Bank. However he maintained that these accounts are either dormant or have little funds due to the lack of business. He nevertheless offered to pay a sum of SCR 5,000/- per month towards the debt from his current earnings.
16. The Petitioner also testified that the Respondent also has a pick-up truck and a car and produced photographs of the same which she averred she downloaded from one Carla Monthy’s Instagram and WhatsApp accounts. She also testified that The Respondent travelled a lot, both locally to La Scala Restaurant, La Plage Restaurant, La Perle Noire and Maharaja Eden Island as well as overseas, particularly Dubai. She also testified that the allegation of offering her the boat is false because the Respondent had already sold the boat. She also maintained that she was aware that some of the Respondent’s assets are registered on his mother’s name.
17. Carla Monthy testified that she is the Respondent’s partner and that she supported him financially for the activities stated by the Petitioner. She averred that she paid for his trip to Dubai and also gave him money to organise her birthday at Kempinski Hotel and their engagement and she also paid for their restaurants outings. She did all that with the support of her family and from her income when she was working as a Fish Inspector.
18. Pascalina Monthy, the Respondent’ mother testified that ever since the Lexus vehicle was seized and sold, the Respondent does not have enough income to make payment. She testified that the Respondent helps her in her businesses and in return she gave money to pay his loans. She also paid for a trip he took to Dubai. She is willing to assist the Respondent to pay the judgment debt. She averred that since the Respondent’s father passed away some 11 years ago, the garage business has not been doing as well.
19. In his final submission, learned counsel for the Petitioner submitted that Section 251 of the Seychelles Code of Civil Procedure Act (the "SCCP") states as follows:

 

“A judgment creditor may at any time, whether any other form of execution has been issued or not, apply to the Court by Petition, supported by an affidavit of the facts, for the arrest and imprisonment of his judgment debtor and the judge shall thereupon order a summons to be issued by the Registrar, calling upon the judgment debtor to appear in court and show cause why he should not be committed to civil imprisonment in default or satisfaction of the judgment or order".

 

 

 

20. Section 253 of the SCCP states as follows:

 

 “If the judgment debtor does not appear at the time fixed in the summons or refuses to make such disclosures as may be required of him by the court or if the court is satisfied that the judgment debtor-

 

1. …

 

 (b) …

 

 (c) has refused or neglected to satisfy the judgment or order or any part thereof, when he was or since the date of the judgment has had the means of satisfying it, the court may order such debtor to be imprisoned civilly unless or until the judgment is satisfied.”

 

 

21. Learned counsel submitted that the evidence before the Court shows that on the 14th day of July 2023, the Petitioner deponed that since judgment was delivered by the Seychelles Court of Appeal on the 5th day of August 2021, the Respondent made no payments towards the debt owed to her which amounts to the total sum of SR 866,083.00cts (the "Judgment Debt"). On the 26th day of January 2023, the Respondent consistently testified that he has no means to pay the Judgment debt owed by him to the Petitioner, yet on the said date, he admitted, when examined by the Petitioner's counsel, to the following:

 

a) That he was operating a cleaning business under the name "R & M Cleaning Services" of which he was earning SR 28,000.00cts per month from a contract with LWMA. The Certificate of Registration of the said business was marked as Exhibit P1 .

 

b) That he purchased a Zotye Jeep for the sum of SR 8,000.00cts and then sold it for scraps, earning the sum of SR 16,000.00cts from the said sale;

 

c) That he also owned the following businesses:

 

 

 

• PDA Cleaning Agency. The Certificate of Registration of the said business was produced and marked as Exhibit P2;

 

 

• X & M Supplies;

 

• Elegant Transfers;

 

• District Barber Shop6.The Certificate of Registration of the said business was produced and marked as Exhibit P5;

 

• RM Investment Services⁷. The Certificate of Registration of the said business was produced and marked as Exhibit P6; and

 

 

• Monthy Glass.

 

d) That he owned the following assets:

 

• A black Toyota Pickup Truck ^;

 

• A Zotye Jeep;

 

• A motor cycle¹; and

 

• A Toyota Celica .

 

 

 

22. The Petitioner avers that although the Respondent has alleged that his aforesaid businesses are not operating or earning an income and alleged that he no longer owns the aforementioned assets, it is submitted by the Petitioner that the Respondent's testimony cannot be trusted as the Respondent has on numerous occasions made false statements before the Court. The said occasions are as following:

 

a) Whilst being examined by the Petitioner's Counsel, the Respondent deponed that the Toyota Celica no longer has any value as it has rusted away. However, on the 14^th day of July 2023, the Petitioner deponed that the said vehicle can still be found at the Respondent's mother's villa «Alha Villa" and that a photo of the said vehicle was recently posted on the social media of the Respondent's sister in November 2022¹⁴. The said photograph, which showed the vehicle in good condition, was produced and marked as Exhibit P13.

 

The Petitioner further deponed that she had called the owner of Clinton Garage, who confirmed that he had carried some works on the said vehicle approximately two years ago. The Petitioner also confirmed that she has personally seen the said vehicle at the Respondent's residence;

 

b) Whilst being examined by the Petitioner's counsel, the Respondent testified that his Black Toyota Pickup no longer has value as it was declared as a write-off. He further deponed that the said vehicle was allegedly given to a person named Allan Khan as scraps¹⁶. However, the Petitioner testified that the said pick up can still be found at the Respondent's mother's residence. To support her testimony, the Petitioner produced a photograph of the said pickup truck, recently taken from the Petitioner's mobile phone, which was produced and marked as ExhibitP14.

 

 

c) The Respondent, whilst being examined by the Petitioner's counsel, also deponed that he was unable to earn an income from his business «Elegant Transfers" to pay the Judgment Debt owed to the Petitioner as the vehicle, namely a White Lexus Jeep, which was to be used in the business had been seized and sold by the Petitioner. The Respondent further testified that the said business had just started and that when the seizure of the said vehicle took place, it was the first month that his business would have earned an income from the contract with Creole Travel.

 

However, when being examined by his own counsel, the Respondent's testimony changed, whereby he testified that he signed the contract with Creole Travel in late 2020 and that the said jeep started to work in early 2021.

 

 

 

It is thus submitted by the Petitioner that from the Respondent's testimony, it is apparent that the Respondent was earning an income from his said business (since early 2021) prior to the seizure of the said vehicle in December 2021 and thus had the means to satisfy the debt owed to her.

 

d) The Respondent alleged that he offered the Petitioner a boat as part compensation for the debt owed to the Petitioner however failed to provide any evidence before this Honourable Court that any such offer was made.

 

23. Learned counsel submitted that on the 14th day of July 2023, the Petitioner deponed that the Respondent has the money to pay the debt owed to her as he lives a very extravagant lifestyle. She testified that this is evident from the photographs posted by his fiancé, Ms. Carla Monthy, on her public social media account which showed the following:

 

•    A photograph of a ring from Jewel being given to Ms. Carla Monthy by the Respondent. The said photograph was produced and marked as Exhibit P15;

 

•   A photograph of the Respondent and his fiancé, Ms. Carla Monthy, having lunch at Kempinski Hotel, whereby she thanked the Respondent for the day spent at the said hotel. The said photograph was produced and marked as Exhibit P1 6;

 

•   A photograph of the Respondent and his fiancé, Ms. Carla Monthy, on a Jetski. The said photograph was produced and marked as Exhibit P16 and P17. The Petitioner deponed that the Jetski belongs to the Respondent which is parked under his garage at his residence. The Petitioner further deponed that the Respondent would utilize the said Jetski every weekend;

 

•     Photographs of the Respondent and his fiancé, Ms. Carla Monthy, travelling to Dubai. The Petitioner testified that the Respondent had, during the time that this action was being heard by this Honourable Court, travelled three times to Dubai. The said photographs were marked as Exhibit P18;

 

•     Photographs of the Respondent and his fiancé, Ms. Carla Monthy, travelling, dining in restaurants, quad biking and enjoying himself in the desert safari in Dubai. The said photographs were produced and marked as Exhibit P19 and 20;

 

•     Photographs of the numerous tattoos of the Respondent. The said photographs were produced and marked as Exhibit P21 and P22. The Petitioner deponed that a small tattoo would normally cost SR

3,000. 00cts and thus testified that the tattoos which the

Respondent got on his whole or half back must have cost a lot of money .

 

•     Photographs of the Respondent's engagement to his fiancé, Ms. Carla Monthy, on the beach. The Petitioner testified that an engagement quotation from Soul Sisters, the business which organised the said event for the Respondent, would cost SR9,900.00cts and that the said price excluded the cost of the engagement ring given to Ms. Carla Monthy by the Respondent.

 

The Petitioner produced a quotation received from Soul Sisters for such an engagement event, which was produced and marked as Exhibit P23. The photographs of the Respondent's engagement were also produced and marked as Exhibit P27;

 

•     Photographs of the Respondent's fine dining in numerous restaurants. The Petitioner deponed that the photographs showed the Respondent and his fiancé, Ms. Carla Monthy dining at the following restaurants:

 

5. La Scala Restaurant, Bel Ombre, which the Petitioner described as an expensive restaurant. The said photographs were produced and marked as Exhibit P28²⁸;

 

5. La Plage Restaurant, Beau Vallon and Maharaja Restaurant, Eden Island. The said photographs were produced and marked as Exhibits P29 and P31 ; and

 

5. La Perle Noire, Beau Vallon . The said photographs were produced and marked as Exhibit P30.

 

 

 

 

24. Learned counsel further submitted that the Petitioner also testified that the Respondent has transferred a lot of his assets onto his mother's name to defeat her claim against him and deponed that he has the ability the pay her the Judgment Debt.

 

25. The Petitioner further deponed that the garage business owned and operated at the Respondent's residence is doing well as she often sees vehicles going in and out of his residence.

 

26. Learned counsel further submitted that whilst being examined by the Respondent's counsel, Ms. Carla Monthy, the fiancé of the Respondent, alleged as follows:

 

a) That she paid for the plane tickets, activities, hotel and dinners when she and the Respondent went on their trips to Dubai;

 

b) That she had paid for her own birthday celebration at Kempinski Hotel and that she had given the Respondent the money to treat her at the said hotel, as the Respondent had no money ;

 

c) That she had given the Respondent money to plan their engagement on the beach and had even bought the engagement ring given to her by the Respondent from her own money; and

 

d) That she paid in cash for the dinner that she and the Respondent had at La Perle Noire.

 

27. During cross-examination, it was established that:

 

a) Ms. Carla Monthy was unemployed and was in the process of seeking employment;

 

 

b) That when she was in employment, she was only earning a salary of SR 12,600.00cts³⁸. I t is thus submitted by the Petitioner that Ms. Monthy could not have afford to cater to their luxurious lifestyle all on her own;

 

c) That although she was not working, she would get financial assistance from her family and that such assistance would conveniently be made in cash to her.

 

12. The Petitioner avers that although Ms. Carla Monthy has testified that she pays for their entertainment, namely costs for their trips to Dubai, dinners to various restaurants and their engagement celebration, it is submitted by the Petitioner that her testimony cannot be trusted by this Honourable Court for the following reason:

 

a) During cross-examination, Ms. Carla Monthy testified that the SR 24,000.00, deposited in cash in her bank account was from her savings and that the said money was used to pay for the plane tickets for herself, the Respondent and her grandmother39. She then changed her testimony whereby she stated that the said money was given to her by her grandmother to pay for the plane tickets for herself and grandmother and used her own savings to pay the Respondent's ticket .

 

28. Learned counsel submitted that Ms. Carla Monthy has clearly been lying to this Court to cover for the Respondent and further submits that it is evident that the Respondent has been using Ms. Monthy to conceal his earnings.

 

 

29. Learned counsel submitted that in his written submission, the Respondent claimed as follows:

"3.3 ... it is to be noted that despite the Petitioner producing all these exhibits she did not produce the one thing that would show that the said businesses were generating an income through the production of tax returns easily available from the registrar of companies..."

 

It is submitted by the Petitioner that Section 251 of SCCP requires the Respondent to prove to this Honourable Court why he should not be committed to civil imprisonment in default or satisfaction of the judgment. Hence, the said section places a burden on the Respondent and not the Petitioner, to prove that his businesses are not doing well by means of tax returns, which the Respondent had failed to do so.

 

30. Learned counsel submitted that from the evidence presented in Court, it is apparent that:

a) That the Respondent is a 27-year-old man, who is fit and capable of working to satisfy the Judgement debt owed to the Petitioner;

 

b) That the Respondent has since the date of the Judgment, had the means to pay the Judgment Debt owed to the Petitioner as he owns several businesses and assets;

 

c) That the Respondent has proved to be arrogant and dishonest when testifying whereby he gave false evidence on several occasions before this Honourable Court. As such, this Court cannot hold him to be a credible witness when he states that his several businesses are not doing well and thus not earning an income from said businesses; and

 

d) That the Respondent has, since the date of the Judgment, the means to satisfy the Judgment debt owed to the Petitioner as he lives a very luxurious and extravagant lifestyle. This was evident from the numerous photographs produced and marked as exhibits before this Honourable Court.

 

31. Learned counsel submitted in conclusion that from all the evidence presented before this Court, it is evident that the Respondent has, since the date of the Judgment, refused and neglected to satisfy the Judgment debt owed to the Petitioner and most importantly the Respondent had the means to satisfy the said debt. The Petitioner prays to this Court for a Judgment ordering the following:

 

a) That the Respondent be civilly imprisoned until the Judgement of the Court of Appeal dated 5^th August 2021 is satisfied; and

 

b) Costs of this Petition.

 

32. Learned counsel for the Respondent submitted that there is a special Procedure referred to as Summons After Unsatisfied Judgement under sections 251, 252, and 253 of the Seychelles Code of Civil Procedure. This is a special procedure referred to as SAUJ ( Summons After Unsatisfied Judgement) under sections 251,252 and 253 of the Seychelles Code of Civil Procedure.[ Paul & Lucy Chow v. Heirs Bossy Civil Appeal  SCA 11/14]

Section 251 reads:

“251. A judgment creditor may at any time, whether any other form of execution has been issued or not, apply to the court by petition, supported by an affidavit of the facts, for the arrest and imprisonment of his judgment debtor and the judge shall thereupon order a summons to be issued by the Registrar, calling upon the judgment debtor to appear in court and show cause why he should not be committed to civil imprisonment in default or satisfaction of the judgment or order.”

The day indicated in the Summons is a critical day. If he does not appear, an  order of imprisonment may issue. It is submitted that on each and every day that the Respondent was summoned he appeared even without his Counsel out of respect for court orders.

 

33. Learned counsel submitted that in respect of Civil imprisonment the SCCP states that

243. Before any person is committed to civil imprisonment under section 241 or 242 such person shall be summoned to show cause why he should not be committed, and if he fail to appear or to show cause to the satisfaction of the court, the court may make such order as to committal as it considers just.”

 

Section 252 reads:

“252. The judgment debtor on the day on which he has been summoned to appear, shall be examined on oath as to his means and witnesses may be heard on his behalf and on behalf of the judgment creditor.”

Section “253. If the judgment debtor does not appear at the time fixed by the summons or refuses to make such disclosures as may be required of him by the court or if the court is satisfied that the judgment debtor-

 

 

(a)        has transferred, concealed or removed any part of his property after the date of commencement of the suit in which the judgment sought to be enforced was given or that after that date he has committed any act of bad faith in relation to his property with the object or effect of delaying the judgment creditor in enforcing his judgment or order; or

(b) has given an undue or unreasonable preference to any of his other creditors; or

(c) has refused or neglected to satisfy the judgment or order or any part thereof, when he has or since the date of the judgment has had the means of satisfying it,

the court may order such debtor to be imprisoned civilly unless or until the   judgment is satisfied.”

34. Learned counsel submitted that Section 243 of the SCCP, therefore, allows for civil imprisonment on a finding of default of appearance, refusal, neglect, fraud to frustrate a monetary judgment of a court determined through an oral examination as to means of the judgment debtor: means testing. It cannot be ordered if the Court finds that the judgment debtor has been genuine and honest in his conduct but is in all sincerity unable to abide by the monetary burden imposed upon him: integrity testing. The last line of section 243 reads:

 

1. 1. 1. 1. “Witnesses may be heard in support of the application and on behalf of the person summoned.”

 

The Court ordered an oral examination of the Respondent and witnesses which commenced on 26^th January 2023. It is submitted that the Court allowed the parties to testify in a bid to arrive at a fair determination as to the Respondents means.

 

35. Learned counsel submitted that the Respondent produced all documents requested by the Court and during examination-in-chief admitted that he has a contract with LWMA which earns SR 28,000 per month he also admitted that he and his mother (a witness later in the case) tendered for another cleaning business PDA  but no records as to its earning nor if it was a viable and an operational business.  The next business name was X & M supplies to which the respondent response was that it has been dead for 3 years and no evidence adduced to prove otherwise.
36. Learned counsel submitted that the next Exhibit was Elegant transfers the business for which a Jeep had been purchase through a bank loan which had a potential of earning SR 30,000 per month but the jeep was seized at the request of the Petitioner and sold landing the Respondent with having to pay the balance of the bank loan on the jeep plus now the debt. The Respondent will also rely on his first Answer to the Petition dated 9^th November 2022.
37. Learned counsel submitted that the Respondent explained how the SR 28,000 he earns from LMWA is distributed. The Respondent admits to owning another business, a barber shop which functioned for about 6/7 months but it too closed down it is to be noted that despite the Petitioner producing all these exhibits she did not produce the one thing that would show that said businesses were generating an income through the production of tax returns easily available from the registrar of companies.
38. Learned counsel submitted that it was incumbent on the Petitioner to produce proof that the said businesses were generating funds. The only possible profitable business venture with any hope of generating a sufficient income to pay the debt was Elegant Tours but that was destroyed when the Petitioner had the Jeep sold through a court auction. The Respondent averred that he offered the Petitioner a boat which she refused, and made offers of 4,000, 5,000 and 8,000 rupees respectively which sums were refused by the Petitioner. This it is submitted is proof that the Respondent has not refused to pay but has made bona fide offers within his means.
39. Learned counsel submitted that the Respondent provided all bank statements and other documents requested by the court and provided same to the Petitioner. It is worth noting that the Petitioner failed to provide a single document not even photographs from which evidence was adduced, despite objections raised by the Respondent. A point that the court will no doubt take into consideration when making the final determination as to whether the Respondent should be civilly imprisoned or ordered to pay such sums as he, with his mothers can help him pay.
40. Learned counsel submitted that the registration of  a Business Name or company without producing proof of the viability or the statement of accounts of these companies to show whether they are functioning or not, or even profitable is no proof that the person has money or that he is even a successful business man. In fact he admits honestly before the Court that he has failed in almost every business endeavour he has engaged in and his mother has had to step in to help him out. The Respondent submits that based on the above he has not breached the conditions set out in Section 253 of the Seychelles Code of Civil Procedure for which he should be civilly imprisoned.
41. Learned counsel submitted that the other evidential matters raised by the Petitioner concerns a number of motor vehicles. First a jet ski is mentioned with no proof of ownership, a Toyota pickup written off as the result of an accident. Next a pick up The Respondent admits he owned it but once again no proof is provided by the Petitioner. The pick –up is probably a written-off pickup. A Zotye jeep which the Respondent averred he purchased for SR 8,000 to get spares to fix a Terios.
42. Learned counsel submitted that the Respondent admits that the money he obtained for the sale of the jeep he bought, scrapped it and sold it off making double the money he bought it for and  the money was used to pay his legal fees see bottom of page. Once again it is noted that he did not lie to the court. Next a motor cycle left to him by his deceased father which he crashed 3 years ago. A Toyota Celica which rusted away. If those items were items of value why did the Petitioner not seize them and sell them off?
43. Learned counsel submitted that the tenacity of the Respondent in trying to get things to earn some money is admirable and should not be used as a reason to get him imprisoned for failure to meet his debt obligation. If,  as put to the Respondent during his testimony he had all these assets the proof of which the Petitioner is alleged to have in her possession why were they not all seized and sold in the same manner that the LEXUS jeep was seized and sold ? This can only show that the petitioner was fully aware that the LEXUS Jeep was the only real asset the Respondent had and even that he was taken from him.
44. Learned counsel submitted that all documents produced by the Respondent  and his witnesses simply show his several loans with different financial institutions, and he persistently says that he has not refused to pay he just does not have the means to pay it all off at once.
45. Learned counsel also reviewed the evidence of the Petitioner and submitted that the Respondent is hard pressed to see the relevance of the testimony of the Petitioner comprising of photograph from Instagram showing the movements and whereabouts of the Respondent, his travelling and his tattoos, all of which were explained by the second defence witness Carla Monthy.
46. Learned counsel also reviewed the evidence of Carla Monthy and submitted that her testimony comprised of her showing documentary proof of her expenditures on the Respondent whether it was by paying for his tickets for overseas travel or meal at restaurants   she produced her bank statements showing the source of her funds being from her mother and other relatives plus her savings which she paid into the bank by making cash deposits.
47. In respect of the evidence of Pascalina Monthy, the mother of the Respondent, learned counsel submitted that witness testified that the Respondent is not refusing to pay, it is just that he does not have any money to pay. For the time being she is helping to pay for his loan and other expenses that he has, home expenses, everything she finds herself paying for it. Whatever he is receiving is not even enough to sustain himself so if there is a debt he is unable to pay she finds herself supporting him.  She produced and exhibited all the bank loans.
48. Learned counsel concluded her submission moving the Court to find that despite the fact that Section 243 of the SCCP allows for civil imprisonment, the Respondent prays that the Court does not make a finding that through his testimony and that of his witnesses he has not breached any of the conditions in section 243 that would warrant civil imprisonment.
49. Both learned counsel have elaborated extensively on the law and rehearsed the facts laid before the Court by the witnesses and the exhibits adduced by both the Petitioner and the Respondent. It is clear that the most pertinent legislation in such matter is article 243 of the Seychelles Code of Civil Procedure which provides:

“Before any person is committed to civil imprisonment under section 241 or 242 such person shall be summoned to show cause why he should not be committed, and if he fails to appear or to show cause to the satisfaction of the court, the court may make such order as to committal as it considers just.

Witnesses may be heard in support of the application and on behalf of the person summoned.”

Articles 241 and 242 of the SCCP make specific references to delivery of movable and immovable properties respectively, which are not particularly relevant at this stage of this proceedings.

50. Article 18 (15 ) and (16 ) of the Constitution also make has provision for non-imprisonment for contractual obligation but does not prescribe the Court from ordering civil imprisonment if the judgment debtor is in breach of provisions of articles 241, 242 and 243 of the SCCP by providing:

“(15) A person shall not be imprisoned merely on the ground of the inability to fulfil a contractual obligation.

(16)Clause (15) shall not limit the powers of a court under any law in enforcing its orders.”

Since this case is not concerned with contractual obligations, only clause 16 of article 18 remains relevant.

51. The Court must also take note of  section 2 of the Imprisonment for Debt Act CAP 96 which provides:

“Imprisonment for debt in civil and commercial matters and against foreigners is abolished in Seychelles, except in the cases hereinafter provided for.

            Section 5 of the same Act states:

“In any civil suit or action before the Supreme Court, it shall be lawful for the said court to decree that its judgments shall be enforced by imprisonment, whenever the said court shall have condemned to the payment of a sum of money or to the restitution of property any of the parties to the said suit or action, in any of the following cases:-

(i)when a contract is annulled, as having been obtained by fraud or violence, or as having been made for the purpose of defrauding third parties;

(ii)when damages have been given by the court as amends for a prejudice caused by a fraudulent act, or by an act of bad faith;

(iii)when lessees of property do not produce at the expiration of their lease the cattle leased to them under a contract of mutual profit, or the farming or agricultural implements, or the chattels which have been entrusted to them, unless they prove to the satisfaction of the court that such cattle, implements or chattels have perished or are deficient by no fraud of theirs;

(iv) when damages have been obtained on account of any fraudulent possession of property.”

52. I hold with Twomey CJ who stated in the prominent case of  Development Bank of Seychelles v Morel (MA 173 of 2016 arising in CS 4 of 1999)
    (2016] sese 473 (06 July 2016) that "the substantive
    law of Seychelles in relation to civil imprisonment is provided by the Constitution and the
    imprisonment For Debt Act”.

The same position is maintained in the case of Essack v Morel (MA 152/20 19) [2021] delivered on 3^rd August 2021.

The steps to be followed are found in the case of Chow v Bossy Civil Appeal SCA 11/2014 which are as stated in paragraph 34 of the Judgment of the Court of Appeal as follows:

[34]In practical terms, it means the steps are as follows:

1. Where a judgment has been pronounced by a court and the debtor has not complied with it, it is open to the judgment creditor to apply for a Summons After Unsatisfied Judgment on the strength that the judgment debtor has the means to pay but is frustrating it by his conduct.
2. If the judgment debtor is not present albeit the Summons issued, an order for civil imprisonment may be made for default in submitting to court jurisdiction.
3. Once the SAUJ process is engaged, the judgment debtor is under an ensuing and continuing duty to submit to an examination as to his means and integrity.
4. If the facts in examination reveal that he has the means to pay, an order should be made for payment forthwith or such terms as are reasonable in the circumstances which terms, if not adhered to, may result in a committal.
5. If the facts in examination reveal that the judgment debtor is unable to pay account taken of his conduct since the judgment was pronounced, no order may be made for imprisonment. He is protected by Article 18(15) of the Constitution.
6. On the other hand, if on examination it is found that his post-judgment conduct does not satisfy 253 (a), (b), and (c), the court may order the judgment debtor to be imprisoned civilly unless and until the judgment is satisfied.

 

53. In the actual case, the Petition has been properly presented. The Judgment Debtor, Respondent has been present whenever required and has been questioned in respect of his means and income and produced all document requested of him. Whilst I have my own opinion on the work ethics of the Respondent, it is not sufficient to base the decision as to whether to commit the Respondent to civil imprisonment on the perceived or prevalent attitude of the Respondent towards work. Such decision must be based on hard facts and findings that shows that the debtor/Respondent is able to pay but is unwilling, deliberately or otherwise to do so.
54. In the light of the above analysis, I come to the conclusion that the Respondent can and should make the efforts to earn sufficiently to pay the debt at least by instalments but he appears too comfortable in his current living condition to see the need the do more. A proper assessment of the law leaves the Court with the finding that such is not sufficient cause to commit the Respondent to civil imprisonment at this moment.
55. Nevertheless I do find that the Respondent earns sufficient income for him to pay some instalments towards the judgment debt, which he has not been doing until now despite admitting that he has been earning at least SCR 28,000 from a business contract out of which he keeps at least SCR 10,000 for himself and after paying his employees and transportation which is supplied by his mother, he has about SCR 4,000/- left. His mother assists him in the payments of his other loan commitments and it is noted that the Respondent has a share of inheritance from his father’s estate which has not yet been distributed. The Respondent has also offered the Petitioner the sum of SCR 4.000/- per month whilst he keeps SCR 10,000 for himself. Hence I will make the following orders:
    1. 1. The Respondent shall start depositing the sum of SCR 10,000/- (Seychelles Rupees Ten Thousand) per month towards the judgment debt with effect from the 30^th day of the month of July, 2024.
       2. The Respondent shall retrieve further documents from all his existing loan accounts for which payments are being made and produce to the Court at the end of the year for review.
       3. The Respondent shall produce all receipts of payment on the next appearance date.
       4. Any default of the above orders may result in the Court imposing a term of imprisonment for contempt or in terms of the Imprisonment for Debt Act.
56.   I award costs to the Petitioner.

  

Signed, dated and delivered at Ile du Port on 3^rd July, 2024.

 

____________

Dodin J.

Judge