Mike Maria v Beranger Pelisier (MA 280 of 2023) [2024] SCSC 157 (29 July 2024)

Vidot J

The Application

[1] The Plaintiff has filed a Notice of Motion supported with an affidavit sworn by him, in terms of section 146 of the Seychelles Code of Civil Procedure seeking leave of the Court to amend the Plaint in case CS 8 of 2023.

[2] The case is in regards to repairs that was to be undertaken and performed on the Applicant's then vehicle by BP Injection Services which is a garage. BP Injection Services is apparently owned by the 1st Respondent but is a business name under which all Respondents operate. It is alleged that after the Plaintiff's vehicle was damaged in an accident, the Petitioner entered into an agreement with the 2nd Respondent for the repair of the vehicle. The Petitioner paid for ai rfare for the 2nd Respondent and excess Iuggage allowance to faciIitate the purchase and carriage of spare parts from abroad. Later on he was informed by the 4th Respondent that some of spares were broken or loss and he had to incur further cost to have them replaced. On top of that, he paid taxes that was levied on the spares. The 2nd Respondent was supposed to pick up the vehicle for repairs, he failed to do so and the Petitioner incurred additional cost to have it transported to the garage. In September 2019 he was advised by the 3rd Respondent that the cost of repairs has been increased. The Respondents refused to give him hard copies of receipts for the spares. He lodged a complaint with the Fair Trading Commission ("FTC"). However, following advice given by FTC, he withdrew the complaint. He had to make application to this Court to have the vehicle returned to him. The Respondents then returned the vehicle to him and he had to hire another mechanic who informed him of some defective works. He incurred cost to rectify the defects. He alleges that he later sold the vehicle under value.

[3] The proposed amendment concerns the extra costs incurred following the return of the vehicle and the loss incurred when he sold the vehicle.

[4] The 3rd Respondent filed an Affidavit in reply and he states that he makes this affidavit in his own name and on behalf of the other Respondents. He avers that the Petitioner is trying to circumvent the Defence and Counterclaim. He states that the Petitioner quote in respect
of the sum he sold the vehicle for as misleading. He avers that the vehicle was given to its present owner and not sold. He further avers that the amendment alters the character of the suit. He claims that the proposed amendment is an abuse of Court's judicial process. He disputes this Court's jurisdiction to hear the matter in view of the quantum of damages claimed under the initial Plaint.

The Law on Amendment of Pleadings

[5] Amendments to pleadings is at the discretion of the Court. Section 146 of the SCCP lays down the consideration that would allow the Court to exercise that discretion judiciously. Section 146 of the SCCP provides;

"The court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that a plaint shall not be amended so as to convert a suit of one character into
a suit of another and substantially different character."

[6] In Petit Car Hire v Mandelson [1997] SLR 68 the principles which ought to be considered before allowing amendments were formulated by Sauzier J as follows;

(i) It is necessary to enable-the real question in controversy between the parties to be settled;
(ii) The amendments are made in good faith;
(iii) The amendments will not cause any injustice to the other party; and (iv) The amendment would not alter that nature of the suit or its cause of action.

[7] In Zabe v Berlouis [1994] SLR 178 it was held that amendments of pleadings may be allowed before or after the trial, or following a judgment or on appeal and that the court has a discretion in deciding whether or not to allow any amendment to pleadings. In Prunias v Darou SSC [1997] SLR 87 reinforces the fact that amendments may be allowed
at any time of proceedings. These same principles were adopted Casarnar v Aristotle
SSC 341/1996, 25th July 2022. In Fisherman Cove Limited v Petit and Dumbleton
Limited [1978] SLR 15, Sauzier allowed an amendment to include another cause of action in the alternative.

[8] Furthermore, in Fisherman's Cove Limited v Petit and Dumbleton Limited (1978) SLR 15, 18 in which Sauzier J stated that an amendment sought would be permitted where it was necessary for the real questions in controversy between the parties to be determined once and for all. He permitted an additional cause of action in the alternative.

[9] Therefore section 146 provides for a very liberal approach to amendment of pleadings.

Arguments

[10] As I have stated the Applicant seeks the amendment to reflect the state of the vehicle after it was retrieved from the Respondents. The vehicle was released from the Respondents custody after the case has been filed. After the release of the vehicle, the Applicant avers that numerous other defects were discovered which they attribute to poor workmanship of the Respondents. It is aimed at resolving the real issue in controversy between the parties with which I respectfully agree. To my mind this would be just and necessary and such application should be granted.

[11] The Respondent disputes that and states that was merely a way of circumventing the points of law raised in the Defence. This he states is designed to increase the quantum of damages
claimed so as to allow this Court jurisdiction to deal with the case. This is not a reason to deny the amendment. The pointof law can still be argued at trial. That is a pre-emption of decision of the court on that argument. The proposed amendment does not in any way change the suit into an entirely different suit. The cause of action remains the same.

[12] The Respondent then attacks the affidavit as being defective as there was failure on the part of the Applicant to attach the proof, which I am assuming should be in the form of a receipt, to confirm that the actual price for which the vehicle was sold for. Affidavits are evidence.
There is a plethora of cases that establishes that. Such a case is Morin v Pool [2012] SCCA 37.

[13] Counsel for the Defendant refers to case of Elmastry & Anor v Hua Sun [2019] SCSC 962 whereby failure to attach a Power of Attorney to establish representation was declared fatal. Counsel also referred to D.L de Charmoye v P.L de Carmoye SCA MA08/2019 (17 September 2019) wherein the Court of Appeal quoted Tn Re Hinchliff, A person of Unsound Mind, Deceased [1895] LCh 177 wherein it was held " ....... 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 for stay of execution must be filed with it. Counselfor the applicant should be mindful  that the affidavit stands in lieu of the testimony of the applicant."

[14] The approach adopted by Counsel for the Respondent definitely has merit.

The Respondents Affidavit

[15] However, I need to address the Affidavit in Reply filed by the 2nd Respondent wherein he claims that he swears the affidavit in his own name and on behalf of the other Respondents. The Court finds this affidavit defective. Section 170 of the SCCP explains what should be
contained in an affidavit. It states [A]ffidavits shall be on confined to such facts as the
witness is able of his own knowledge to prove, except an interlocutory application, on which statements as to belief with grounds thereof,' may be admitted." In Union Estate
Management (Proprietary) Limited v Herbert Mittermayer [1979] SLR 144 that the deponent of an affidavit should expressly distinguish between averments that is within his knowledge and those that are within his information and belief.

[16] The concern the Court is the fact that a person cannot swear an affidavit on behalf of another. Herein, there is no proof that the yd Respondent is authorized to make declarations in the affidavit on behalf of other Respondents. The affidavit does not satisfy section 170 of the SCCP. It is definitely not clear which of the averments therein are with the knowledge, belief and information of the Respondents. In Elmastry & Anot v Hua Sun [2019] SCSC 962, the affidavit was signed by one party but stating there he represents another, the Court of Appeal stated;

"The Affidavit had been signed by one Mr. Nabil Elmasry, on behalfof or as representing
both Applicants, individually and separately. At the commencement of then Affidavit it is stated:

We, Dr. Ashraf Elmasry and Elena Kozlova herein represented by Mr. Nabil Elmasry by virtue of a power of attorney dated 20th August 2015 electing our legal domicile in the Chambers of Mr. Frank Elizabeth of Suite 212B, Premier Building, Albert Street, Victoria, Mahe, Seychelles hereby make oath and say as follows:" (emphasis by me)
The averment in paragraph 1 of the Affidavit however is to the effect: "We are the
deponents above-named and we are duly authorized to swear this affidavit being the
Applicants in this case and the Appellants in a connecting case, " It is therefore not clear
as to 'who is the deponent to the Affidavit, namely the Applicants or Mr. Nabil Elmasry. This offends Order 41, rule 1 (4) of the White Book (R.S.C. 1965) which can be made use of in the Seychelles in accordance with Section 17 of the Courts Act referred to at paragraph 4 above and section 12 of the Evidence Act referred to at paragraph 5 above,' since Seychelles laws on the format of an affidavit is silent. However, it is noted that in view of the decision in Kimkoon & Co Ltd V R (1969) SCAR 60 we can only follow the procedure, rules, and practice of the High Court ofJustice in England prior to Seychelles gaining independence in 1976, Order 41, rule 1 (4) of the White Book which sets out the
form ofaffidavits states: "Every affidavit must be signed by the deponent ... "

[16] Order 41 r2 of the White Book 1965 makes provision that two or more deponents to swear to an affidavit. That was not done here. Therefore, that affidavit is defective and cannot be relied.

Determination

[17] There is no valid opposition to this Application as the Affidavit in Reply of the Respondents is defective.

[18] The Application fails partly. Averments of discovery of future defects being detected after the vehicle was released is allowed but no claim can be made as a result thereof as a result of failure to file necessary documents in support. Clauses 40 to 45 of the attached Amendment Plaint cannot be included as part of the amendment. Claims of Damages for
costs incurred for fixing the vehicle cannot be entertained. Clauses 36 to 39 will only be
allowed to show that there was poor workmanship by the Respondents and workmanship was not of acceptable standard and nothing more. Therefore, I invite the Applicant, if he so wishes amend his Plaint as directed by this Court hereabove.

[19] I make no order as to cost.

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

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Vidot J