Paulin v Guichard (CA 23 of 2023) [2024] SCSC 151 (29 July 2024)

SUPREME COURT OF SEYCHELLES

Reportable

CA23/2023

In the matter between

CHARLES PAULIN Appellant

(Rep. by Mr. Joshua Revera)

and

JEAN PAUL GUICHARD Respondent

(Self-represented

Neutral Citation: Paulin v Guichard (CA23/2023) [2024] 29 July 2024

Before: Adeline J

Summary: Preliminary objections to hear purported appeal/whether or not Memorandum of Appeal was filed within the prescribed limitation period/Rule 11 and 14 of the Appeal Rules/whether the content of the Memorandum of Appeal particularly the grounds of appeal meet the requirements of rule 12 of the Appeal Rules.

Heard: Submissions

Delivered: 29 July 2024

FINAL ORDER

1. The Preliminary Objection to the purported appeal grounded on the proposition that the Memorandum of Appeal was filed out of time is overruled, and is thereby dismissed.

2. The Preliminary Objection to the purported appeal grounded on the proposition that the grounds of appeal are “vague and too general in terms” is overruled, and is thereby dismissed.

______________________________________________________________________________RULING ON PRELIMINARY OBJECTIONS

Adeline J

[1] By way of a Notice of Appeal filed in Court on the 18^th December 2023, Charles Paulin of Belvedere, Mahe Seychelles (“the Appellant”), who was Defendant in the Court aquo, appeals to the Supreme Court against the decision of the learned Senior Magistrate in a Judgment delivered on the 4^th December 2023 in Civil Side 27/2018.

[2] On the 21^st February 2024, the Appellant filed its Memorandum of Appeal which sets out the grounds of appeal, which are the following;

“

1. The learned Magistrate erred in giving Judgment in favour of the Respondent herein.

2. The learned Magistrate erred in law and facts in its award of damages to the Respondent

3. The learned Magistrate erred in Law by awarding separate damages for pain and suffering and moral damage, and the learned Magistrate erred in fact and in law by awarding material damage due to an alleged incapacity to work, contrary to evidence showing that the Respondent was gainfully employed during the said period.”

[3] In reply, Jean Paul Guichard of Perseverance, Mahe, Seychelles (“the Respondent”) who was the Plaintiff in the Court aquo, raised preliminary objections to the proceedings to the effect that;

“

1. The Appellant has filed his Memorandum of Appeal outside the prescribed time limit provided for under Rule 11 of the Appeal Rules for Civil Appeal from Magistrates Court (SI 11 of 1961) read with Section 57 of the Interpretation and General Provisions Act. Appeal is henceforth out of time and defective and the Respondent prays for its dismissal pursuant to Rule 14 of the same Appeal Rules cited above and with costs.

2. The grounds of appeal are vague and too general in terms, do not disclose reasonable grounds of Appeal and do not constitute proper grounds of Appeal, thus offending rule 18 (3) and (7) of the Court of Appeal Rules. The Appeal must be struck off.

3. The Respondent reserves his right to reply on the merits of the Appeal.

[4] In its written submissions to canvass the preliminary objections raised, the Respondent made the point, that the Notice of Appeal to kick start the Appeal proceedings was filed in Court on the 18^th December 2023 and the Memorandum of Appeal was only filed on the 21^st February 2024, more than two and a half months after the learned Magistrate delivered its Judgment, and two months after the Notice of Appeal was filed. It is contended by the Respondent, that the Memorandum of Appeal was filed way beyond the prescribed time limit of 14 days in breach of the Appeal Rules, and the fact that the Respondent has not made an application for leave of the Court to file its Memorandum of Appeal out of time, the appeal should be dismissed with cost.

[5] It is also the contention of the Respondent, that the Grounds of Appeal upon which the Appellant pursues the Appeal are defective and must therefore be struck off. The Respondent contends, that the Grounds of Appeal are vague and amount to no grounds of Appeal. The Respondent makes specific mention of Rule 18 (3) and (7) of the Seychelles Court of Appeal Rules, 2005 (SI 13 of 2005) as amended, citing the case of Priya Chetty Vs Emmanuel Esther SCA 44/2022, Elmasry and Anor Vs Hua Sun (SCCA 66) (17 December 2021) SCA 28/2019, and Cedrick Petit Vs Marguita Bonte SCA 11 of 2003.

[6] In its oral submissions in reply, learned Counsel for the Appellant contended, that the Appellant is not out of time as the Respondent suggests, and that is why ever since the preliminary objections were raised, he decided that he would answer the objections orally rather than by way of written submissions. It is the contention of learned Counsel for the Appellant, that the objections raised by the Respondent are frivolous and vexations and that they are intended to merely waste the Court's precious time.

[7] On the law, Learned Counsel for the Appellant referred this Court to rule 11 of the Appeals Rules, contending, that under rule 11, the Appellant had to file its memorandum of Appeal within 14 days from the date of service of copy of the record. It is also contended by learned Counsel for the Appellant, that service of the record on the Appellant was effected on the 1^st February 2024, which learned Counsel submitted, was a Thursday. Learned Counsel submitted, that given that the 1^st day after the 1^st February 2024 is not counted, Friday the 2^nd February 2024 cannot be counted as well as Saturdays and Sundays, which are public holidays. Learned Counsel submitted, that the days to be counted are Monday 5^th February 2024 to the 21^st February 2024(excluding Saturdays and Sundays) adding up to a total of 13 days. It was the submissions of learned Counsel for the Appellant that based on its calculation, the Memorandum of Appeal was filed within time.

[8] The vexed question that falls to be determined, is whether when the Appellant filed its Memorandum of Appeal on the 21^st of February 2024, it was within the prescriptive limitation period under the Appeal Rules. If the answer to this question turns out to be in the affirmative, then the objection is liable to be overruled and the appeal proceedings shall continue. But, if the answer turns out to be in the negative, then the preliminary objection would be sustained and the appeal would be dismissed with cost, putting an end to the Appeal proceedings.

[9] To make such a determination, it is necessary to have regard to the Appeal Rules of the 27^th February 1961. Rule 11 of the Appeal Rules is couched in the following terms;

“11. If the Appellant wishes to proceed with the Appeal he shall, within fourteen days from the date of service of copy of record referred to in the proceeding rule, deliver to the clerk of the Court a Memorandum of Appeal.” (The underlined emphasis is mine)

[10] At this juncture, it is worth noted, that none compliance with Rule 11 of the Rules, means, that the appeal is deemed to be withdrawn by virtue of Rule 14 of the Appeal Rules. It is also worth noted, that the Respondent made no mention of the date of service of the record on the Appellant.

[11] This purported appeal against the decision of the learned Magistrate in a Judgment delivered on the 4^th December 2023, was triggered by the filing of the Notice of Appeal on the 18^th December 2023. It was mentioned before this Court for the first time on the 7^th February 2024 when learned Counsel for the Appellant informed the Court, that he only received copy of the record yesterday, meaning the 6^th of February 2024 I confirmed that there was a copy of the record on the Court’s file.

[12] The Civil Code of Seychelles (Consequence of Enactment) Act, 2021 (Act 24 of 2021)that came into force on the 1^st July 2021, the same date the Civil Code of Seychelles Act 2020 came into force, under Section 4 of its Schedule, it amends Section 57(4) of the Interpretation and General Provisions Act, Cap 103, which now reads;

“57 (4) in this section “exclude” day means Saturday, a public holiday declared under Section 64 of the Financial Institution Act 2024”

[13] Copy of the record was served and received by the Appellant on the 6^th February 2024. The Appellant had 14 days from the 6^th February 2024 (as per Rule 11 of the Appeal Rules”) to file in Court the Memorandum of Appeal. As per Section 57 (1) (a) of the Interpretation and General Provisions Act, counting of the 14 days should start the following the 7^th February 2024. As per Section 57 (4) of the Interpretation and General Provisions Act, Saturdays and Sundays are excluded for being public holidays, having so provided for under the Schedule to Section 2 of the Public Holidays Act (Act 19 of 1976) and are therefore excluded by virtue of Section 57 (4) of the Interpretation and General Provisions Act.

[14] Clearly, therefore, when the Appellant filed the Memorandum of Appeal on the 21^st February 2024, it was well within the prescriptive period of 14 days from the date of service and receipt of the record. As such, the preliminary objection raised by the Respondent that the Memorandum of Appeal was filed outside the time limitation period is overruled.

[15] In its preliminary objection, the Respondent also contends, that the grounds of appeal in the Memorandum of Appeal are “vague and too General in terms, do not disclose reasonable grounds of appeal and do not constitute proper grounds of appeal”. I am somewhat perplexed by the Respondent having had to rely on the Court of Appeal Rules in support of its proposition, claiming that the Memorandum of Appeal breaches rules 18 (3) and (7) of the Court of Appeal Rules.

[16] Perhaps more relevant, is the fact that in its written submissions, the Respondent does quote Rule 12 of the Appeal Rules that reads as follows;

“12. The memorandum shall contain a concise statement in the numbered paragraphs of the point or points on which the Judgment is alleged to be erroneous, without any arguments or narrative, and a concise prayer for the relief claimed”

[17] Although, admittedly, the drafting of the Memorandum of Appeal is not the best that the Court has come across in the recent years, the Court cannot share similar opinion to that of the Respondent that the grounds of appeal in the Memorandum of Appeal “are vague and too general”. They may not be at the standard that the Court would have expected. However it is my considered opinion, that they “are not vague and too general” to warrant the purported appeal to be struck off. Therefore, the preliminary objection on the basis that the grounds of appeal are “vague and too general” is overruled and is therefore dismissed

Signed, dated, and delivered at Ile du Port on 29 July 2024

____________

Adeline J