X-Trim Fitness Centre (Pty) Ltd v Global Property Limited (MC 4 of 2024) [2024] SCSC 50 (23 February 2024)

 

PILLAY J:

1. The Applicant by way of a motion registered on 1 February 2024, supported by affidavit of Chantal Pinchon sworn on 31^st January 2024, seeks orders for:

1. For the motion to be heard out of extreme urgency;

 

2. For the seizure of the goods and chattels found in Orion Mall belonging to the Applicant to be stopped, cancelled and revoked;

 

3. For an order that the aforesaid goods and chattels found in Orion Mall belonging to the Applicant cannot be sold pursuant to section 236 of the Seychelles Code of Civil Procedure Act.

 

4. For an order that the Applicant not be evicted from its leased premises.

 

2. The deponent states that she is a Director of the Applicant company and is authorised to swear the affidavit.
3. It is not in dispute that a warrant of levy dated 19^th January 2024 signed by the Registrar of the Supreme Court ordered and directed for the seizure and sale of the Applicant’s movables including a writ for possession.
4. She avers that the sum claimed by the Respondent is incorrect. She avers that since signing of the Judgment by Consent the Applicant has been paying its rent on time. She avers that with regard to the sum of SCR 200, 000.00 she made a mistake and issued the cheque from X-Trim Providence (Pty) Ltd instead of X-Trim Fitness Centre (Pty) Ltd. As for the monthly rental she avers that payments were made on time but admits that there is a shortfall of SCR 10, 000.00 per month from October 2023 resulting in arrears of SCR 40, 000.00 for the monthly rental.
5. The deponent avers that should the seizure and sale proceed the Applicant will suffer extreme hardship for the reasons that:

1. The Applicant company will lose its tool of trade and as shareholders of the said company, the deponent and her husband, Gilles Pinchon, will lose their sole source of income.

 

2. The Applicant will not be able to repay its loan with the Seychelles Commercial Bank in the sum of SCR 7, 200, 000.00 which will result on the said bank foreclosing on land that belongs to the deponent personally, namely land parcel C7686.

 

3. The Applicant has an interest in the premises leased to it by the 1^st Respondent, whereby it invested the sum of SR 12, 000, 000.00 in the said premises, which is confirmed and acknowledged by the 1^st Respondent in clause 10 (b) of the parties’ sub-lease agreement dated 10^th October 2014.

 

6. The deponent avers that the Applicant is in process of applying for a loan with the Seychelles Commercial Bank for SCR 1, 200, 000.00 to fully pay the Respondent the sums owed to it. She avers that on the basis of her statements it is in the interests of justice for the Orders sought be granted.
7. Learned counsel for the Applicant submits that in accordance with section 236 of the Seychelles Code of Civil Procedure (the Code) the property of the Applicant cannot be seized as being tools of trade necessary for their work. He submits that the case of Confait & Anor v Port-Louis & Anor (MA 06/2020 (arising out of CS 06/2016)) [2020] SCSC 501 (14 May 2020) supports this notion.
8. Learned counsel submits that the Court has powers under section 269 of the Seychelles Code of Civil Procedure to postpone the sale. He submits that on the basis of Tuiles et Briques des Seychelles Ltd v Bouisson (1978) No. 36 the Court has powers pursuant to sections 4, 5 and 6 of the Courts Act to cancel the sale. It is his submission that the deponent undertakes to make payments as her and her husband have heavily invested in the Applicant company. 
9. The Respondent objects to the motion. Learned counsel for the Respondent submits that the Applicant is a company and not an individual. She defined “tool” and “trade” in their ordinary meaning as equipment used by hand and as a person practicing a trade respectively. It is her submission that the Code has been in use since 1920 and the definitions were so then.
10. It is her submission that section 236 makes reference to tools of artisans. She stresses that the exception is for an artisan meaning the debtor who seeks to use the protection afforded by section 236 of the Code has to be handcrafted person in reliance on the case of Sea Cliff Resort & Spa v Stephen Bernard Bakari MC29 of 2019.
11. It is her submission that section 237 is in line with the section 13 of the Control of Rent and Tenancy Rent Act.
12. She further relies on the case of David v Mortier (MC08/2018) [2018] SCSC 8124 (25 March 2018). She concedes that the Court may postpone the sale but argues that such a postponement would be prejudicial to the Judgment Creditor.
13. For ease of reference let me proceed with the application as it appears on the Notice of Motion.
14. The Motion for the matter to be heard out of extreme urgency was dealt with and granted on the day the case was called hence the Ruling today.
15. I move on then to the application for an order for the seizure of goods and chattels found in Orion Mall belonging to the Applicant to be stopped, cancelled and revoked. Can the Court grant the order sought?
16. As was found in the case of Ladouceur v Varnier (MA 101/2021) [2021] SCSC 958 (21 July 2021) once the process of execution has started the Registrar of the Supreme Court cannot stall the process on the pleas of counsel. Should the judgment debtor have objections to the execution, the judgment debtor has to make an application under section 269 of the Code. It is noted that the Applicant has not made reference to the specific provision pursuant to which he seeks orders, however I find that this failure is not fatal to the application.
17. Objections to an execution, by a judgment debtor, can be made pursuant to section 269 of the Code which provides as follows:

The usher in charge of any warrant of execution or writ to place in possession shall proceed with the execution thereof notwithstanding any objection made by the party against whom such warrant or writ has been issued, but such party in case of need may apply to the court by a reference under article 806 of the French Code of Civil Procedure.

 

18. In the case of David v Mortier (MC08/2018) [2018] SCSC 8124 (25 March 2018) which concerned an application for a writ habere facias possessionem, the Learned Chief Justice Twomey as she then was considered:

[19]     … whether the process under Article 806-811 of the French Code of Civil Procedure preserved by section 327 of the Seychelles Code of Civil Procedure is available in the present circumstances.

 

19. The Learned Chief Justice found that the doctrine under Articles 806 – 811 of the French Code of Civil Procedure provides that:

“Le juge des reférés est competent pour prononcer en cas d’urgence, l’expulsion d’un locataire,…dont le bail est resilié .. ou dont la jouissance est expirée…”(Encyclopedie Dalloz Suplement au repertoire pratique 97-2).

 

20. The Learned Chief Justice relied on the case of Tamboo v Pillay and Ano. (MC 107/2016) [2016] SCSC 480 (8 July 2016), which was also an application for a writ habere facias possessionem, wherein the Court found that the:

The suit for such a remedy brought under the old French Civil Procedure Code, articles 806-811 (la procédure de référé) is the fastest way, entailing little proceedings to bring an action where a remedy is urgently required.

 

21. Granted that the above mentioned cases were in relation to applications for writ habere facias possessionem. However, they were decided by using the procedure found under Articles 806 – 811of the French Code of Civil Procedure which provides for “la procédure de référé”.  My understanding of “la procédure de référé”, under article 806 – 811 of the French Code of Civil Procedure, is that it is a process whereby a party can make urgent applications to Court in order to find at least temporary solutions. It is a procedure similar to our sections 4, 5 and 6 of the Courts Act as was found in the case of Tuiles et Briques des Seychelles Ltd v Bouisson (1978) No. 36.
22. The Court’s equitable jurisdiction is provided for in section 6 of the Courts Act as follows:

The Supreme Court shall continue to be a Court of Equity and is hereby invested with powers, authority, and jurisdiction to administer justice and to do all acts for the due execution of such equitable jurisdiction in all cases where no sufficient legal remedy is provided by the law of Seychelles. 

 

23. The concept of equity in section 6 above is synonymous with fairness and justice. Equity provides remedies and solutions that may not always be available through common law and is designed to address situations where strict application of legal rules may lead to unjust outcomes. Equity provides remedies in situations in which precedent or statutory law might not apply or be equitable. In exercising its equitable jurisdiction, the Court has to be conscious of certain principles. These principles of equity are not a rigid set of rules, but are, rather, general principles which can be derived from specific cases.
24. According to the case of Mussard v Laurencine (SCA 39 of 2009) [2010] SCCA 15 (10 December 2010);

In equity, it is a known principle that equity does not come to the rescue of the indolent but the vigilant.

 

The Court found that:

This was a case of flagrant indolence by the respondent and judicious vigilance by the appellant…there was complete inaction and laches from the part of the respondent which disentitles him to equity considerations.

 

The Court also noted that:

“Equity follows the law” and “To equity, one comes with clean hands…”

 

25. In the case of Gill & Ors v Film Ansalt (SCA 28 of 2009) [2013] SCCA 11 (3 May 2013) the Court noted that:

[19]    Equity will kick in only where the law is silent.

                                   …

[24]     Equity follows the law. Equity serves the diligent and not the indolent. Those who come to equity should do equity.

 

26. In the case of Monthy v Payet (MA 144/2019 (arising in CS 56/2017)) [2020] SCSC 471 (26 March 2020) the Court remarked that:

One who comes to equity must come with clean hands.

 

The Applicant, the Court, noted had made no effort whatsoever to pay the judgment debt and had even “incredibly” averred that he had no remote possibility of paying the judgment debt. The Court found that:

 [the] cavalier attitude and contemptuous regard to a judgment of the Court can never be tolerated and [it said] volumes about the true intention of the Applicant.

 

27. It is noted that in that case the Applicant was seeking a stay of execution. However, the principles of equity and the considerations to come to a decision grounded in equity is just as valid in the current matter in my humble opinion.
28. With the above in mind it is not in dispute that the Applicant has paid the sum of SCR 184, 000.00 in June 2023 to the Judgment Creditor. As per the records the Applicant has made payments of rent from July 2023 to date. However, those payments were in the sum of SCR 34, 000.00 each. From October 2023 however, payment should have been SCR 44, 000.00 per month meaning that the Applicant is in arrears of rent of SCR 40, 000.00 from October 2023. This is in addition to the balance of the judgment debt plus interest
29. The deponent avers that a cheque was made out for SCR 200, 000.00 being the first instalment to be paid to settle the judgment debt in accordance with the judgment by consent. She avers that the cheque was mistakenly drawn on the wrong company. She attributed that mistake to stress and pressure she was facing as a result of the incidents on 7^th December 2023, resulting in a business she had at Providence being affected, as well as concerns for the health of her husband’s parents. The Court takes judicial notice that on the 7^th December 2023 there was an explosion at Providence whereby a number of businesses were affected.
30. The deponent avers that the cheque for the payment of the SCR 200, 000.00 may be re-submitted to the bank for payment. She avers that the Applicant is ready and willing to settle its debts and is in the process of applying for a loan to do same. She seeks time to come to an agreement with the Judgment Creditor for payment of the debt.
31. Having considered the above, I accept that the Applicant has made some effort to pay its debts accruing under the judgment by consent. I accept the reasons as to why there was a shortfall in the rental payments as regards the manner in which she issued cheques in multiples and mistakenly kept issuing them for the lower sum of SCR 34, 000.00 from October 2023. I further accept her excuses as to the mistake made for the payment of SR 200, 000.00 that was due in October 2023, though I note that the payment was due on October 2023 and the issues that arose in Providence only occurred in December 2023. However, I cannot accept her plea for time to negotiate with the judgment creditor as regards payment of the debt. The debt is due and owing. There was no, and there is no, appeal against the judgment by consent. It is a valid judgment for which the Judgment Creditor is entitled to seek execution in the absence of payment.
32. I am conscious of the severe implications of the process of execution for, and to, the parties. It is a measure of last resort. It could result in one side being made destitute or could be sought because one side will be destitute if a debt is not settled. In consideration of the above and balancing the parties’ interests I exercise my discretion under section 269 of the Seychelles Code of Civil Procedure, read with section 6 of the Courts Act, in favour of the Applicants and hereby stop, cancel and revoke the seizure of the goods and chattels found in Orion Mall belonging to the Applicant subject to conditions in the Order below.
33. Now to the third order sought; that the goods and chattels found in Orion Mall belonging to the Applicant cannot be sold pursuant to section 236 of the Seychelles Code of Civil Procedure.
34. Section 236 of the Seychelles Code of Civil Procedure provides as follows:

The following movable property may not be seized in execution: —

 

(a)things which are declared by law to be immovable property by destination (immeubles par destination);

 

(b)the necessary bedding and wearing apparel of the judgment debtor and of his wife and children living with him;

 

(c)the books relating to the profession of the judgment debtor, who shall have the right to select those he requires, provided they do not exceed two thousand rupees in value;

 

(d)appliances and instruments used by persons teaching or practising science and art, up to the value of two thousand rupees, such appliances and instruments to be selected by the judgment debtor;

 

(e)the outfit of soldiers according to rank;

 

(f)tools of artisans such as are necessary to enable them to carry on their trade;

 

(g)one month's supply of necessary provisions for the judgment debtor and his family living with him.

(emphasis my own)

 

35. Section 237 of the Code provides that:

The things mentioned in section 236, except those mentioned in paragraph (b) thereof, shall however not be exempt from seizure and sale when the suit is to recover an amount due—

 

(a)for board supplied to the judgment debtor;

 

(b)to the vendor or maker or manufacturer of the said articles;

 

(c)to a person who has lent money to enable the judgment debtor to buy, make or repair such articles;

 

(d)for the rent and the harvesting of lands in the tilling of which the said articles shall have been used;

 

(e)for the rent of the factories, mills and other works of which they form part;

 

(f)for the rent of the premises in which the judgment debtor resides. (emphasis my own)

 

36. So is the Applicant an “artisan” pursuant to section 236 (f) of the Code? Learned counsel for the Applicant submits that the deponent and her husband are artisans and use the property seized as a means to earn their living. He submits that the said property are their tools of trade.
37. In the case of Confait & Anor v Port-Louis & Anor (MA 06/2020 (arising out of CS 06/2016)) [2020] SCSC 501 (14 May 2020) which Learned counsel for the Applicant relied on in support of his argument, Govinden J, as he then was, was:

“concerned about a potential injustice that may be created as a result of the seizure of the taxi of the Applicant. She [was] a widow and a pensioner. Her trade as a taxi driver appear[ed] to have been her sole means of income, besides her social security benefit. …”

 

 His Lordship proceeded, with certain conditions imposed, to

“release the taxi vehicle bearing registration number S2349 into the personal custody of Mrs. Flossy Confait who can thereafter use it as a licensed taxi driver.”

 

38. Learned counsel for the Respondent disagrees with the Applicant’s position and submits that the operative word is “artisan” and that stress is on that word “artisan” in accordance with the Zanzibar case of Sea Cliff Resort & Spa v Stephen Bernard Bakari MC29 of 2019. In the said case the High Court relied on the findings in the case of Avisha Chander v Mohan Lal and another, AIR 1984 PH 391 wherein the Court found that:

Stress on the items mentioned in the proviso to section 60(1) is not on property in the abstract but is on the individual, keeping in view his need of that property. So in the expression “tools of artisans”, it appears to me that the stress is on the word “artisan”. And if the judgment-debtor claims himself to be an artisan, he has to be one as a handicraftsman. This is how the word “artisan” has been defined in Webster’s New International Dictionary to mean “one trained to manual dexterity in some mechanic art or trade; a handicraftsman; a mechanic”. Thus, the meaning of the word “artisan” used in the context of the provision seems to me plain that the emphasis is that the artisan’s hands should not be allowed to stop by depriving him of his tools, by their attachment and sale. Nowhere was it intended that tools which artisans employ are per se non-attachable and non-saleable even if they are with people other than artisans.

 

39. I am willing to accept that persons, such as the deponent and her husband, who have a passion for fitness and bodybuilding, so to speak, are performers and as such could be deemed to be artists. However, it would be a stretch to say that they are “artisans” within the meaning of section 236 of the Code as to be an artisan per the definition in Collins English Dictionary it is to be “a skilled workman; craftsman”. It is suggestive of someone who works with their hands, creating works of art which the deponent and her husband are not. In any event, the judgment debtor is not the deponent and her husband but is a company. In my humble opinion, on a reading of section 236 and 237 of the Code, their purpose is for the protection of individuals and not companies. If section 236 of the Code was to be a shield for companies, then every construction company and the like would seek to hide under its wings as “artisans”. Undoubtedly their workers would be “artisans” but not the company itself if the company was the judgment debtor. I am in agreement with the findings in Sea Cliff Resort above that what is sought to be done is ensure that the “artisans” hands are not stopped from working suggestive of a protection for individuals.
40. The case of Confait above concerned a stay of execution. It is trite that stay of execution applications are decided, as Confait was, under the provisions of section 230 of the Code as well as the equitable powers of the Court. The Judge was therefore entitled to take into account that the taxi was “a tool of trade” and the Respondent’s “sole means of income”. In comparison the provisions of section 236 of the Code are clear and decisions thereunder are made on the basis of interpretation of the provision itself.
41. With that in mind I reject the arguments of the Learned counsel for the Applicant. I find that the Applicant is not an “artisan” pursuant to section 236 (f) of the Code and cannot benefit from the protection it offers.
42. In terms of the eviction, I agree with the Learned counsel for the Respondent that questions of eviction is solely within the purview of the Rent Board. However, this is not a matter at first instance where the Applicant is seeking an eviction of a tenant. This is at the stage of execution which would be similar to the stage of appeal. The application before this Court is not one where the Applicant is invoking the jurisdiction of the Court to make a finding as to whether there are grounds supporting an application for eviction and to order such eviction, so much as an application for the order of the Rent Board to be executed which the Applicant opposes by invoking the equitable jurisdiction of the Court.
43. Per the judgment by consent the Applicant agreed to be evicted in “the event of any default, delay or incompleteness of payment”. In view of my earlier finding that the seizure should be stopped, cancelled and revoked, it is only fair that the eviction is stopped as well. Pursuant to section 269 of the Code above, the Court has powers to cancel a writ to place in possession.
44. On the basis of the above I cancel the seizure made pursuant to the warrant to levy dated 19^th January 2024 on the following conditions:

1. The Applicant shall pay the sum of SCR 440, 000.00 by bank transfer into the Respondent’s bank account by 12 noon on 29^th February 2024.

 

1. The Respondent shall provide the Applicant with its bank details latest Monday 26^th February 2024.

 

1. The Applicant shall provide the Court with a bank guarantee for the balance of the debt in the sum of SCR 709, 347.95 by 12 noon on 29^th February 2023 calculated as follows (SCR1, 285, 347.95 – SCR 176, 000.00 = SCR 1, 109, 347.95 + SCR 40, 000.00= SCR 1, 149, 347.95 – SCR 440, 000.00= SCR 709, 347.95).

 

45. I further cancel the writ to place in possession contained in the warrant to levy dated 19^th January 2024 and order that the Applicant not be evicted from its leased premises, provided the Applicant complies with the above order with regard to payment by 29^th February 2024.
46. Costs are awarded to the Respondent.
47. Copy of this Order is to be served on the Registrar of the Supreme Court as well as the Usher in charge of the Execution.

 

Signed, dated and delivered at Ile du Port on …………

 

 

____________

Pillay J