SUPREME COURT OF SEYCHELLES
Reportable
CA 14/2023
In the matter between:
THE MAURITIUS UNION ASSURANCE Appellant
LIMITED OF VICTORIA, MAHE
(Represented by Mr. Bernard Georges)
and
STAR BOAT CHARTERS (SEYCHELLES) Respondent
(PTY) LIMITED
(Represented by Ms. Alexandra Benoiton)
Neutral Citation: The Mauritius Union Assurance Limited vs Star Boat Charters (Pty) Limited (CA 14/2023) [2024] (17 October 2024)
Before: Adeline J
Summary: Appeal against the decision of the learned Senior Magistrate not to set as side ex parte Judgment.
Heard: By submissions.
Delivered: 17 October 2024
FINAL ORDER
The Ruling of the learned Senior Magistrate is upheld and the appeal is dismissed with cost awarded to the Respondent.
RULING
Adeline J
Background Facts
[1] On the 5th October 2023, the Mauritius Union Assurance Limited, (“the Appellant”) was granted leave of the Supreme Court to file an appeal out of time against the decision of the learned Senior Magistrate Vipin Benjamin delivered in the Magistrates’ Court on the 28th March 2022 in MA 39 of 2021 arising in CS 39 of 2020.
[2] Proceedings before the Magistrates’ Court commenced by way of a plaint as amended filed in Court as CS 39/2020 by the Respondent who was then the Plaintiff, a limited liability company registered and incorporated in Seychelles carrying on the business of charter and leisure services, against the Appellant who was then the Defendant trading as MUA Seychelles, carrying on the business of an insurance provider.
[3] The case was heard against the Appellant (the Defendant then), ex parte following which an ex parte Judgment was entered in favour of the Respondent/ Plaintiff in the total sum of SCR 268,050 as claimed.
[4] By way of an application by notice of motion filed in Court as MA 39/2021, the Applicant/ Appellant who was then the Defendant in the suit (CS 39 of 2020) sought for a Court Order setting aside the ex parte Judgment delivered by the learned Senior Magistrate Vipin Benjamin on the 21st May 2021. The Court declined to set aside the ex parte Judgment and proceeded to dismiss the application.
THE MEMORANDUM OF APPEAL
[5] In its Memorandum of Appeal, the Applicant/ Appellant states the grounds for the purported appeal to be the following;
“1. The learned Magistrate erred in law by relying on Section 34 of the Seychelles Code of Civil Procedure to find that service had been properly effected as Section 34 does not pertain to body corporates, but rather to personal service on individuals.
2. The learned Magistrate erred in law by relying on Section 55 (1) of the Interpretation and General Provisions Act which providers for the service of documents or notices but not for the service of summons on a body corporate.
3. The learned Magistrate erred by not finding that the Appellant had been prevented by sufficient cause from appearing when the suit was called for hearing in accordance to Rule 22 of the Magistrates’ Court (Civil Procedures) Rules as upon the adjournment in CS 35 of 2020, the Appellant was only issued with a notice after the ex parte hearing had concluded and the Judgement date had been set.
4. As the laws of Seychelles are silent on the service of summons on body corporates, and for the foregoing reasons, the learned Magistrates erred in law and in fact by finding that summons has been properly served and thus ought not have dismissed the Appellant’s application to vacate the ex parte order.
SUBMISSIONS
GROUNDS 1 & 4 OF THE MEMORANDUM OF APPEAL
[6] Submitting on grounds 1 & 4 in the Memorandum of Appeal, learned Counsel for the Appellant states, that there is no specific statutory legal provision in the laws of Seychelles which provides for the service of summons on a body corporate as the Appellant. It is submitted by learned Counsel, that because of the non-existence of such a provision, in terms of Section 17 of the Courts Act, the rules of the Supreme Court of England known as the White Book should apply. In that regard, learned Counsel submits, that order 65 rule 3 of the White Book should apply as it provides for the instance when service should be effected on a company such as the Appellant.
[7] It is the submission of learned Counsel, that the rule provides, that every company having a registered office may be served with a document by leaving it at or sending it by post to the registered office of the company. It is also the submission of learned Counsel, that nonetheless, this does not specifically provide for service of summon although, one can imply that service of summons on a body corporate is also covered by this provision.
[8] It is submitted by learned Counsel, that the learned Magistrate wrongfully referred to Section 34 of the Seychelles Code of Civil Procedure for the service of summons on a body corporate. Section 34 as quoted by learned Counsel reads as follows;
“34 Mode of Service
Service of summons shall be effected by delivering or tendering a copy there of to the Defendant personally, or if he cannot be found, to any member of more than sixteen years old of the family of the Defendant residing with him, or to any agent or manager of the Defendant at the place where he carries on his business.”
[9] It is also submitted by learned Counsel, that this Section provides for various scenarios where a Defendant who is not a body corporate can be served. These include, through service on an agent, a family member of older than sixteen years old, or personally.
[10] At this juncture, I have to agree with learned Counsel for the Appellant, that the learned Magistrate erred in relying on Section 34 of the Seychelles Code of Civil Procedure to establish that the Appellant, (the Defendant in the suit) was served with summons. Arguably, neither the Seychelles Code of Civil Procedure, nor the Companies Act for that matter, specifically provides for service on companies or body corporate.
[11] It is submitted by learned Counsel for the Appellant, that the learned Magistrate, in coming to its decision also relied on Section 55 of the Interpretation and General Provisions Act. Given that I am of the view, that Section 55 of the Interpretation and General Provisions Act provides the answer to the problem which this Court seeks to resolve, I find no necessity to seek recourse to the laws of England.
GROUND 2 OF THE MEMORANDUM OF APPEAL
[12] In its submissions on ground 2 of the Memorandum of Appeal, learned Counsel for the Appellant submits, that Section 55 (1) of the Interpretation and General Provisions Act which the learned Senior Magistrate relied on to determined that service of summons on the Appellant (the Defendant in the suit) has been properly effected, does not provide specifically for service of summons, but instead, provides for services of notices and other documents. In that regard, it is the submission of learned Counsel for the Appellant, that Section 55 does not cover service of summons on a body corporate, and as such, the learned Senior Magistrate was wrong to rely on Section 55 to conclude that summons was properly served on the Applicant, (the Defendant then).
[13] For ease of reference, Section 55 (1) of the Interpretation and General Provisions Act is couched in the following terms;
“Service of Documents and Notices
55 (1). A document or notice required or permitted to be served on, or given to, a person under or for the purpose of an Act, may be served or given…
(d) In the case of a body corporate, by leaving it at or sending it by post to the registered or principal office of the body corporate, or ..."
[14] It is submitted by learned Counsel for the Appellant, that a summons differs from notices and from other documents. Learned Counsel proceeded to state, that a Court’s summons is a legal process commanding a Defendant to appear before the Court on a specific day and to answer specific complaints made by the Plaintiff. It relies on the case of Government of Seychelles & AG v/s Poole 2016 as the legal authority for such proposition.
GROUND 3 OF THE MEMORANDUM OF APPEAL
[15] Submitting on ground 3 of the Memorandum of Appeal, learned Counsel for the Appellant states, that there was sufficient cause that prevented the Defendant (now the Appellant) from appearing before the Court when the suit was called for hearing. It is the contention of learned Counsel, that because the Appellant was only issued with a notice after the ex parte hearing had concluded and a hearing date has been set, the summons was not duly served for the day of the hearing.
[16] Learned Counsel for the Appellant sees it appropriate to make reference to Rule 22 of the Magistrate Court (Civil procedure) Rules that reads as follows;
“Rule 22
Setting aside Judgement given ex parte
If in any case where one party does not appear on the day fixed in the summons Judgement has been given by the Court, the party against whom Judgement has been given may apply to the Court to set it aside by motion made within one month after the date of the Judgement if the case has been dismissed, or within one month after execution has been effected if Judgement has been given against the Defendant, and if he satisfies the Court that the summons was not duly served or that it was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the Judgement upon such terms as to costs, payment into court or otherwise as it thinks fit and shall order the suit to be restored to the list of cases for hearing. Notice of such motion shall be given to the other side. (Emphasis is mine).
[17] Based on the provisions of Rule 22, it is the submission of learned Counsel for the Appellant, that there was sufficient cause that prevented the Appellant, (previously the Defendant) from appearing before the Court when the suit was called for hearing. Learned Counsel submits, that the Appellant was only issued with the notice after the ex parte hearing had concluded and the hearing date had been set, and as such, summons was not duly served for the day of the hearing.
[18] In its submissions in reply to the grounds of appeal, learned Counsel for the Respondent refutes the Appellant proposition that learned Senior Magistrate Vipin Benjamin erred by relying on Section 34 of the SCCP to come to his conclusion. Learned Counsel submits, that Section 34 of the SCCP provides for service on companies or corporate entities, and as such, it cannot subscribes to the view that the law is silent on service on body corporate.
[19] With that view, it is the submission of learned Counsel for the Respondent, that “service of the plaint and any subsequent notices on the Appellant’s address was proper and in line with Section 34 of the SCCP, given that Section 34 provides for service on a party at the place it carries out its business. Learned Counsel cites the case of H Savy Insurance vs Goldy Poris (SCSC 661/2018) to support its proposition. Learned Counsel goes further as to add, that service can even be effected on the administrative staff in a building rather than directly on employees of companies, provided that it is the registered address.
[20] It is also the submission of learned Counsel, that although learned Senior Magistrate Vipin Benjamin did consider Section 55 (1) (d) of the Interpretation and General Provisions Act, his emphasis was more on Section 34 of the Seychelles Code of Civil Procedure, and that is because in learned Counsel’s view the provision of the Interpretation and General Provisions Act do not override the specific provision of the SCCP”. Learned Counsel relies on the case of Barclays Bank PLC vs Moustache (1992) SLR 41 for such proposition.
[21] As regards to ground 3 of the Appellant’s grounds of appeal suggesting that the learned Senior Magistrate erred by not finding that the Appellant had been prevented by sufficient cause from appearing before the Court when the suit was called, it is submitted by learned Counsel, that this ground is not in compliant with the Appeal Rules because it fails to state whether the error allegedly committed by the learned Senior Magistrate was one of fact or law.
[22] It is the submission of learned Counsel, that the Court did follow the procedure in accordance with Section 65 of the SCCP and proceeded to hear the plaint ex parte because the Defendant failed to put appearance in Court. As such, it is contended by learned Counsel, that it was not an error for the Court to hear the plaint ex parte, and that the learned Senior Magistrate took the correct view that there was a lack of sufficient cause to warrant set aside the ex parte judgment.
[23] Lastly, learned Counsel for the Respondent took issue over the proposition made by learned Counsel for the Appellant as ground 4 of the grounds of appeal, that the laws of Seychelles are silent on the service of summons on body corporate. It is submitted by learned Counsel, that the laws of Seychelles are not silent on service of summons on body corporates given that there are provisions in the SCCP as well as in the Magistrates’ Court (Civil Procedure) Rules which have a general application, and for this reason, the learned Senior Magistrate was correct in dismissing the application to set aside the ex parte Judgment given that service of summons was properly effected, and the Appellant could not give sufficient cause for failing to appear before the Court for hearing.
DISCUSSIONS ABOUT THE ISSUES
[24] At this juncture, the first question that this Court is called upon to determine, is whether summons was duly served or not on the Defendant for the hearing of the plaint as amended. Section 55 (1) of the Interpretation and General Provisions Act offers this Court with the answer to this question for a correct finding. The wording “document” in Section 55 (supra) is broad and encompasses a range of legal documents that might be required or allowed to be served on a person or a corporate body. Since by definition a summons is a document issued by the Court ordering a specific person to appear at a specific time for some specific purpose, the word “document” refers to summons as well as other documents use in the legal procedural process. Perhaps more relevant to the instant case, this is further confirmed in the Interpretation Section of the Companies Act 1972 given that the definition of “document” include a summons, notice, order or other legal process, and a register.
[25] Therefore, contrary to learned Counsel for the Appellant’s proposition that the finding of the learned Senior Magistrate in reliance on Section 55 (1) of the Interpretation and General Provisions Act that summons was properly served on the Appellant (who was then the Defendant) when according to learned Counsel it was not, this Court finds, for the reasons discussed in the proceeding paragraphs of this Ruling, that the Appellant (Defendant in the suit) was properly served with summons for the hearing of the amended plaint.
[26] The second question that is called to be determined is whether there was sufficient cause preventing the Appellant (the Defendant then) from appearing before the court when the suit was called for hearing. In its ruling, the learned Senior Magistrate had found, that the Appellant (the Defendant then) had failed to satisfy the Court that they were prevented by any sufficient cause from appearing when the suit was called for hearing.
[27] In its submissions, the Appellant (the defendant then) states, that it only received notice to appear in court on the day that the ex parte Judgement was read in open Court and that on the same day learned Counsel for the Defendant who was Ms. Kelly Louise then, had to report to the Glacis Health Centre to undergo a PCR test and had to then go in isolation due to a suspected positive test of Covid 19.
[28] Extract of paragraph [27] of the learned Senior Magistrate Vipin Mathew Benjamin’s Ruling dated 28th March 2022 in MA 39/2020 reads
“…… On the 21st May 2021 no one appeared as per Court’s records and the ex parte Judgment was delivered it is also contention of the Applicant insurance company that they had briefed their Counsel to appear on the 21st May 2021 but could not do so since she was under quarantine due to Covid 19, but the document attached with the affidavit filed by the Applicant insurance company is an attendance paper dated 19th May 2021 at Glacis Health Centre and does not specify anything about being in quarantine or in isolation due to Covid 19.
CONCLUSION
[29] In conclusion, therefore, it is my considered opinion, that Section 55 of the Interpretation and General Provisions Act read with the definition of “document” in the interpretation Section of the Companies Act, 1972 does provide for service of summons on a body corporate as the instant one incorporated under the Companies Act 1972. Therefore, I am satisfied, that the learned Senior Magistrate rightfully and correctly relied on the said provision of the law to conclude that summons had been properly served on the Appellant (the Defendant then). I am equally satisfied, that the finding of learned Senior Magistrate Vipin Benjamin that the Appellant (previously the Defendant) did not satisfy the Court that it was prevented by any sufficient cause from appearing in Court when the suit was called for hearing was a correct finding of facts for the reason given in his Ruling.
[30] Therefore, the Ruling of learned Senior Magistrate Vipin Benjamin is upheld and the appeal is dismissed with cost awarded to the Respondent.
Signed, dated and delivered at Ile du Port on 17th October 2024.
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B Adeline J