Louise v Maria and Or (MA 165 of 2024) [2024] SCSC 173 (23 October 2024)

Introduction

1. This is an application by way of Notice of Motion seeking leave of the Court to intervene in the matter namely in Civil Side 17/2022 and granting reasonable time for the Intervenor to file his statement of demand.

The Pleadings

 

2. The Application is supported by the Affidavit of the Applicant Johinathan Naidoo who avers inter-alia in  his Affidavit the following;

‘2) I aver that I, together with my wife, Bharati Johinathan and my son, J. Sanjay Kiran Naidoo, are purchasers of the property, namely title number V21776, from the defendant Brian Maria, for the sum of SCR 3,500,000.00. I aver that we have paid the outstanding loan due in respect of the property in order to obtain a clean title to the same. Copy of the notorised transfer of land herewith and marked as JN 1)

 

3. I aver that I am not a party to these proceedings but have a legitimate interest to protect in the subject matter of the suit.
4. I aver that Tasiana Louise has caused an inhibition to be registered against the property as entry No 5, which has prohibited me from registering, the property in my name. (copy of Certificate Official search attached and marked as JN 2).
5. I aver that it is necessary and in the interest of Justice for the Court to grant me leave to intervene in this matter to protect and maintain my rights to the property, as it would be extremely unfair and unjust in all circumstances to allow the inhibition to remain to subsist against the property and deny me my constitutional right to property.
6. This Application is being made before parties to the suit have closed their respective cases.
7. That all statements contained herein are true and correct to the best of my information, knowledge and belief.’

3. On the other hand, the Plaintiff has filed an Affidavit in reply to the application and avers inter-alia the following;

‘3) I aver that the pending suit, which I have instituted before the Supreme Court, against Brian Maria – Civil side 17/2022 (hereinafter ‘the suit’) relates to agreement entered into between myself and the said Brian Maria. The only parties to the agreement are myself and Brian Maria.

 

4. I aver that on the basis of all the above, it cannot be said that Johinathan Naidoo is interested in the event of the suit, and he has no right to maintain in the suit.
5. I have been informed by attorney-at-law Basil Hoareau and verily believes that-

1. Mr Johinathan Naidoo has not established any grounds and facts to satisfy this Honourable Court that he is interested in the suit, and
2. the Affidavit of Mr Johinathan Naidoo is defective and bad in law’.

 

Submissions of Counsels 

 

4. Counsel for the Applicant relied on section 117 of the Seychelles Code of Civil Procedure. According to Counsel, the Applicant is a person interested in the pending suit and that the Court has to make him a party to the main suit since Mr Naidoo paid the loan and purchased the said property by paying the balance of 3.5 million rupees to the defendant after doing a search at the Land registry. Thereafter the Plaintiff caused an inhibition order to be registered against the property prohibiting him to register the property in his name. Hence he wishes to intervene to protect his right to property under section 26 of the Constitution.
5. He submitted to the court that the defendant is not contesting the said application. He further submitted that counsel for the plaintiff contention that he is not interested in the pending suit because the land has not been registered in the name of the Applicant is a narrow interpretation since there are financial consequences if he is not made a party to the case and furthermore he would have to filed another case in order for the Court to deal with residual issues between the parties.
6. On the other hand, counsel for the plaintiff relied on section 117 of the Seychelles Code of Civil Procedure. According to counsel, the event of the pending suit is a verbal contract between the plaintiff and the defendant having given the money to the defendant to transfer half of the said land after the period of restriction to sell the land was over. According to counsel for the plaintiff, the Applicant is not interested in the event of the pending suit which is a contractual relationship between the plaintiff and the defendant
7. Furthermore, counsel submitted that when we look at the averments in the Affidavit, the Applicant does not aver that he has paid all the purchase price but that only that he has paid the outstanding loan. Counsel relies on Article 1165 of the Civil Code which provides that contacts have effects only between the parties and hence only parties have an interest in the contract. Further, Counsel submits that the said purported transfer agreement between the Applicant and the defendant is undated and hence is an instrument that is invalid contrary to the prescribed form in the Land Registration Act.
8. Counsel further submitted that since section 118 of the Seychelles Code of Civil Procedure provides that the application must be made by way of motion supported by an Affidavit and as such the Affidavit must contain the grounds which means that the documents which you rely upon must be exhibited. He submitted such a document he relies upon is incomplete and has not been exhibited to the Affidavit and hence cannot be only attached. Counsel relies on Order 41 of the white book which provides that documents should be exhibited to an Affidavit.
9. Counsel also relied on Article 1583 of the Civil Code that the Applicant has no right against the property not being an action in rem but he has an action in personam. Counsel further submitted that there is another defect in the Affidavit in that Mr Naidoo avers at paragraph 7 of his Affidavit that ‘the statements contained herein are true and correct to the best of my information, knowledge and belief’. Counsel relied on the case of L’union Estate Management V/S Mittermayer SLR 1979 which was upheld in the case of Faure V R SCA 11 of 2023. He submitted that since Mr Naidoo does not distinguish between what is within his information, knowledge or belief, the Affidavit is therefore defective.
10. In reply to the submissions of Counsel for the Plaintiff, counsel for the Applicant submitted to the Court that counsel for the Plaintiff by saying that since the Applicant has not averred   that the documents should be exhibit but rather used the words attached that this is splitting hairs and that the Court should not lose sight that justice is done and relied on the Court of Appeal case of Kilindo.  That the issue of the Affidavit being defective should not be considered at this stage of the proceedings.

Analysis and determination

 

11. This Court shall deal with the point of law raised in the Affidavit by the Plaintiff first namely the Affidavit of Mr Johinathan Naidoo is defective and bad in law before proceeding to deal with the merits of the case. Counsel for the Applicant has submitted before the Court that such a document he relies upon is incomplete and has not been exhibited to the Affidavit. This Court refers to the white Book Order 41, r. 11(1) of the Rules of the Supreme Court which reads as follows;

‘Any documents to be used in conjunction with an affidavit must be exhibited, and not annexed, to the Affidavit’.

 

12.  In the case of ACCS V Valabhji and Ors (114 of 2021 (2024) SCSC 117 (22  April 2024), Govinden CJ stated the following;

‘100) In relation to documents enclosed with the Affidavit, the Court of Appeal decision in Lablache De Charmoy v Lablache De Charmoy (SCA 8 of 2019) [2019] SCCA 35 (16 September 2019), while stating that documents to be used in combination with an affidavit must be exhibited and filed, did not prohibit filing of such documents by way of annexure. The approach taken in Lablache De Charmoy and Elmasry & Anor v Hua Sin [2019] SCSC 962 is a strict approach in relation to defective affidavits. It is established that parties cannot waive the evidential rules regarding affidavits. However, both cases were in respect of application for stay of execution where a general rule is to decline a stay unless solid grounds are shown. Arguably such applications require a very strict approach in relation to defective affidavits, however, this is not necessarily applicable to every other case with different circumstance. The said judgments do not expressly exclude court’s discretion to admit a defective affidavit or permit the defect to be remedied in certain circumstances. Further, in Elmasry the court analyzed the defect in relation to jurat and emphasized that the requirement must be followed in order to prevent potential tampering with evidence. The affidavit of Officer Stephenson even though is printed not on both sides, contains numbered paragraphs, which arguably may also prevent tampering with the testimony. In any case there is also case law where the courts have admitted defective affidavits or permitted the defect to be remedied (see Mrs Lea Raja M Chetty v Mr Mariapen Srinivasen Chetty, CS 327 of 2006; Paul Chow v The Commissioner of Elections, CC 3/2007; United Opposition v Attorney-General (unreported) CC 8/1995).

 

101) Furthermore, the courts also recognize that while procedure must be followed it must also not defeat justice. In Chetty v The Estate of Regis Albert & Ors (CS 131/2018) [2020] SCSC 500 (7 May 2020), albeit in relation to civil procedure requirements, it was stated:

“The issue of a procedural irregularity being a bar to a legal remedy has been considered on many occasions. Courts have recognised that a strict adherence to procedural requirements risks a perverse outcome and that a failure to comply with civil procedure should not be the basis for denying otherwise legally acquired rights. In Coles and Ravensher (1907) I KB 1 Collins MR aptly stated:

“Although I agree that a court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.”

102) Having scrutinized the Affidavit of Officer Stephenson and Submissions of the 2^nd Respondent, in my considered view, the fact that strict adherence to Order 41 of the White Book as submitted was not followed, in particular: printing affidavit on both sides and enclosing current and proposed charges as annex instead of exhibit, does not affect the substance of the Motion, does not render the affidavit defective and does not render the application incurably defective to justify its dismissal’.

13. In the present case at paragraph 2 and 4 of the Affidavit of the Applicant, the Applicant avers that the copy of the said document is attached and marked as JN1 and JN2.         This Court shall follow the decision in the case of ACCS V Valabhji and Ors, 114 of 2021 (2024) SCSC 117 ( 22  April 2024) and I accordingly hold that the fact that strict adherence to Order 41 of the White Book as submitted was not followed, in particular: attaching the said documents and marking them instead of exhibiting them, does not affect the substance of the Application and does not render the affidavit defective and does not render the application incurably defective to justify its dismissal.
14. The Plaintiff raised another issue with respect to the Affidavit being defective and bad in law namely that by averring at paragraph 7 of his Affidavit that “the statements contained herein are true and correct to the best of my information, knowledge and belief”, the Applicant does not distinguish between what is within his information, knowledge or belief, and hence the Affidavit is therefore defective.
15. As regards to the above, this Court shall seek guidance with the case of Union Estate Management (propriety) Limited V Herbert Mittermeyer 1979 SLR where Sauzier J stated the following;

‘an Affidavit which is based on information and belief must disclose the source of the information and the grounds of belief. It is therefore necessary for the validity of an Affidavit that the affidavit should distinguish what part of the statement is based on information and belief that the source of the information and ground of belief should be disclosed’.

16. In the present case, when one looks at paragraph 7 of Johinathan Naidoo, it is evident that it does not meet the requirements of what Judge Sauzier stated in the case of union Estate (Supra) for the validity of the Affidavit. However, on a careful perusal of the said Affidavit, it shows that save paragraph 4 of his Affidavit, all the other averments in the Affidavit are within the personal knowledge of the deponent of which the deponent seemed to have been present in court almost all throughout the proceedings.
17. The above being said, I also take the view that  while procedure must be followed it must also not defeat justice as outlined in Chetty v The Estate of Regis Albert & Ors (CS 131/2018) [2020] SCSC 500 (7 May 2020).  Hence I find that since all the averments in the affidavit save in paragraph 4 is within the personal knowledge of the deponent, I find that such an omission in the affidavit  does not affect the substance of the Application and  does not render the affidavit defective and does not render the application incurably defective to justify its dismissal since the Court can easily distinguish what are within the personal knowledge of the deponent  in the Affidavit and what part of the statement is based on his information and belief. To find that the affidavit to be defective and render it inadmissible may defeat the course of justice or may cause a great injustice to the Applicant. Hence I shall distinguish the present case with the case of Faure V R CR SCA 11 of 2023 where the facts and circumstances and the contents of the Affidavit of the Applicant were different from the present case.
18.  As regard to the submissions of counsel for the Plaintiff that the instrument of transfer attached to the Affidavit is invalid, it is evident that such deed of transfer of land is not in accordance with the prescribed form under the second schedule (Rule 3) of the Land Registration rules made under the Land Registration Act.  However, this Court finds that it must consider such document in relation to the facts and circumstances of this case in view that there was an order of inhibition made by this Court to prevent the registration of the said transfer of land and hence there was an impossibility for the Applicant to have the said transfer registered.
19. Be that as it may, this Court notes that the Applicant has averred in his Affidavit that ‘I aver that I, together with my wife, Bharati Johinathan and my son, J. Sanjay Kiran Naidoo, are purchasers of the property, namely title number V21776, from the defendant Brian Maria, for the sum of SCR 3,500,000.00. I aver that we have paid the outstanding loan due in respect of the property in order to obtain a clean title to the same. Copy of the notorised transfer of land herewith and marked as JN 1)
20.  As regards to the merits of this Application, this Court hereby reproduces Section 117 of the Seychelles Code of Civil Procedure which reads as follows;

‘every person interested in the event of a pending suit shall be entitled to be made a party thereto in order to maintain his rights, provided that his Application to intervene is made before all parties have closed their case’.

21.  It is clear from the above provision of the law that a person is entitled to intervene if the said person is interested in the event of a pending suit in order to maintain his rights and such an application must be made before all parties have closed their case.
22. In the case of Essack vs Auto Clinic (Pty) Ltd (2000) SLR12, the petitioner commenced proceedings before the Court upon a commandment on the Respondent. One of the Directors of the company wanted to intervene in the proceedings since another director had signed a judgment by consent leading to the execution of the Judgment. The Court held that what is pertinent for the present purposes is that the intervener has an interest in the present proceedings. A sale of leasehold interest in the company would affect such interest. Hence it is equitable that he be allowed to intervene to protect his interest.
23. In the case of Shapiro V/S South African Recording Rights Association LTD 2008 (4) SA 145, the Court held that an intervener in an insolvency Application must show legal interest (i.e. direct and substantial interest and not just financial interest in the outcome of the proceedings.
24. In the case of In Re: Mercantile Bank Limited Case no. 2020/ 19971, a high court Judgment of South Africa, of which it concerned an Application of the intervening party who was the ex-wife of the Respondent seeking leave to intervene in the main sequestration Application. The Court held;

‘In the context, a direct and substantial interest ‘means a legal interest in the subject matter of the action which could prejudicially affected by the Judgment of the Court. A mere financial interest is only an indirect interest in such litigation and is insufficient.’

25. The Court further held that ‘the allegations made should directly and adversely involve and implicate the intervening party. A failure to give her an opportunity to rebut the obviously prejudicial allegations, which require proof on a balance of probabilities on return date, would mean that her property would remain at risk based on prima-facie conclusions reached by a Judge and which, in the absence of controverting evidence, would result in conclusive proof. In that sense she has a material interest in the subject matter of the litigation and any Judgment that the Court hearing the main Application will be asked to give.’
26. The Court in the above mentioned case relied on the case of Maritz t/a Maritz and kie Rekenmeester V/S Walters and others 2002 (1) SA 689 (c) of which the Court held the following;

‘In these circumstances I am of the opinion that it can hardly be said that the intervening Respondent does not have an interest in the present litigation where the expressly stated purpose is to have a trustee appointed so that he can set aside the transaction which the intervening Respondent seek to protect.’

27. In the case of In Re: Mercantile Bank Limited Case no. 2020 /19971, the Court further held that ‘moreover, the intervening Respondent when seeking to intervene need to provide no more than prima facie proof of his interest, albeit in a sale which may be set aside, and his right to intervene, which is in my opinion the intervening Respondent has done. See Elliot v Bax 1923 WLD 228; Ex parte Marshal: In re Insolvent Estate Brown 1951 (2) SA129 (N).
28. In the case of Mari- Ange Houareau and Ors V/S Karunakaran and Ors SCA 3 of 2017, Fernando JA stated;

‘I’m of the view that we have to be guided by section 117 of the Seychelles Code of Civil Procedure in considering whether an intervention should be permitted or not is not a matter of right but may be permitted by the Courts only when the statutory conditions set out in section 117, for the right to intervene is shown.’

29. The Court in the afore- mentioned case relied on the authority of Big Country Ranch Corporation V/S Court of Appeals (227 SCAR 161 (1993) where it was held that;

‘in allowing or disallowing a motion to intervene it is the function of the Court to also consider whether or not the intervention will unduly delay or prejudice the adjudication of rights of the original parties, and whether or not the intervenors’ rights may be fully be protected in a separate proceedings.’

30.  In this matter, it is clear that the Applicant has an interest in the event of the pending suit. In fact this Court is of the view that the applicant has a direct and substantial interest and hence a legal interest in the subject matter of the action which could prejudicially affected by the judgment of the Court since the Applicant has averred in his Affidavit that he has purchased the said property albeit by paying the amount of the loan agreement. Furthermore, the Applicant has attached the certificate of official search showing that the defendant is the owner of the said property and as such since good faith is presumed, the applicant has to be given the benefit of the doubt.
31.  As a result of the above, it is pertinent that the Applicant be allowed to intervene in CS 17/2022 in order to maintain his rights in view that there is a risk that the applicant may lose the said property in lite as a result of the judgment of the Court.
32. This Court also notes that the purported deed of transfer was not registered as a result of the order of inhibition made by this Court which prevented the registration of the said transfer of land.
33. This Court further finds that the Applicant has filed the Application before the Plaintiff had closed its case and at a very early stage in the proceedings of the hearing of the case since only one witness had started to testify. Hence, this Court is of the view that such intervention will not cause undue delay or prejudice the adjudication of rights of the parties (vide Big Country Ranch Corporation (Supra)) in view of the early stage in the proceedings that this case is presently at.
34. In view of the above, I accordingly allow the Application and grant leave to the Applicant Johinathan Naidoo to intervene in CS 17 of 2022 and to be made a party to the said pending suit in order to maintain his rights. Furthermore, the Applicant should file his statement of demand within 3 weeks from the date of this Ruling.

 

 

Signed, dated and delivered at Ile du Port on the 23^rd October 2024.

 

 

                                  

Esparon J