Exparte Labrosse & Anor (MA 103 of 2024) [2024] SCSC 52 (17 May 2024)

E. CAROLUS, J                                                                        

1. On 15^th April 2024, the applicants Roy and Rona Labrosse, trading as Luminous Trading filed a plaint against Lise Labrosse and Celine Labrosse, directors of Mahe Joinery, in CS42/2024 (“the plaint”). In terms of the plaint they claim loss and damages in the total sum of SCR4,408,000.00 for which they claim the defendants are jointly liable to them, as a result of denying them access to their business premises since 7^th December 2023 when an explosion caused damage to the premises. They also pray for an order placing them in possession of the premises with immediate effect, as well as costs of the suit.  On the same date they filed MA88 of 2024 – an inter partes Notice of Motion against Lise Labrosse and Celine Labrosse for an order of Interlocutory Injunction ordering them to “restore the Applicants’ access and possession of premises on the Respondent’s Building … pending the final disposal of the … Plaint …”. Both CS42/2024 and MA88 of 2024 were scheduled to be called before the Court on 29^th May 2024, and the defendants/respondents therein were served summons to appear before the court on that date in those matters.
2. On 6^th May 2024 the applicants filed MA103/2024 – an Ex-Parte “URGENT NOTICE OF MOTION TO BE HEARD DURING COURT VACATION”.  The Supreme Court vacation for that period was from 10^th April to 10^th May 2024. The Notice of Motion seeks an urgent order of Interlocutory Injunction ordering Lise Labrosse and Celine Labrosse (who shall hereinafter be referred to as ‘the respondents’ for ease of reference) to “restore the Applicants’ access and possession of premises on the Respondent’s Building … pending the final disposal of the … Plaint …”, similarly to MA88 of 2024. It further seeks for a hearing of the motion as a matter of extreme urgency. It is this Notice of Motion MA103/2024 which is the subject matter of the present Ruling.
3. The motion is supported by an affidavit sworn by the applicants and dated 6^th May 2024 to which are exhibited a number of documents.  In the plaint (Exhibit 1) it is averred that the applicants are the joint owners of Luminous Trading and tenants of the ground floor and part of the first floor of Mahe Joinery Building at Providence, Mahe, which is owned by Mahe Joinery (Pty) Limited (“the company”). The first applicant Roy Labrosse as well as Lise Labrosse and Celine Labrosse are all directors and shareholders of the Company, of which Roy Labrosse and Lise Labrosse each own 47 shares and Celine Labrosse owns 6 shares. It is further averred that the first applicant is the sole signatory for Parcel V6800 on which Mahe Joinery Building is located and that Celine Labrosse is the Property Manager of the said building.
4. The applicants aver in their affidavit that as a result of the explosion of 7^th December 2023 Mahe Joinery Building sustained damages, and that since that date they have been denied and have had restricted access to their business premises by the respondents. Initially they were denied access by the respondents informing them that the premises were structurally unsafe but they sought the services of a structural engineer who deemed the structure safe as stated in Exhibit 2 – An Occupancy Certificate dated January 3^rd, 2024 addressed to the CEO of the Seychelles Planning Authority and signed by Michel. S. Ah Kong. Engineer, in regards to “MAHE JOINERY, PARCEL V6800, PROVIDENCE INDUSTRIAL ESTATE” stating the following:

“Upon examining the building we could see that the reinforced concrete structure, beams and floor slabs are structurally sound and show no signs of distortion.

The building is safe for occupancy.”

5. The applicants aver that the findings of Mr. Ah Kong are in agreement with that of the structural engineer retained by the respondents, as per his Engineering Report dated 26^th December 2023 addressed to Mahe Joinery (Pty) Limited, Attn Celine Labrosse, and signed by Mr. Frank Seth, Structural Engineer. The five-page report comprises his observations at a site visit conducted on 11^th December 2023 for the purpose of assessing “THE MAHE JOINERY (PTY) LTD BUILDING AFTER THE CCCL EXPLOSION AT PROVIDENCE ON PARCEL NO. V6800”, as well as photographs of his observations, and concludes with recommendations, as follows:

“OBSERVATIONS

The building sustained the most damages to the roof, timber doors, the windows, the internal walls made of cement board and the ceiling.

Some non-structural walls have some cracks formed due to the impact of the explosion.

The perimeter wall on the first floor, on the east side of the building …  has sustain (sic) a substantial number of cracks and some cracks are even seen on the outer face of the wall.

RECOMMENDATIONS

• The superficial cracks formed on the non-structural walls on the first floor can be patched up.
• Given that the perimeter wall on the east side of the building supports the roof structure and due to the extent of the damage to the same, it is recommended to demolish and rebuild.

Aside from the cracks formed on the hollow blockwork wall of the first floor, the building showed no visible structural defects on the Reinforced Concrete Structure. Thus, I can certify that the RC concrete structure of the building is structurally sound.”

6. The applicants aver that there have been repeated thefts and break-ins due to lack of supervision and proper oversight. In support they have exhibited as Exhibit 4 six statements recorded on Seychelles Police Statement Forms and made by the applicants and Rosy Didon. They also aver they have sustained a high loss of earnings as they cannot operate their business from their showroom as it has been boarded up. Furthermore, they are not allowed to enter the premises because the respondents have changed the padlocks and refuse to allow them to enter therein. In addition, as a result of the aforementioned acts and unlawful eviction by the respondents, they have been unable to carry out the necessary repair works to get their business back on track which also caused them to sustain significant loss of earnings as well as great personal anxiety, stress and mental anguish over the fate of their business.
7. The applicants go on to aver that there is further urgency for them to regain possession and access to their premises as the respondents are now seeking to commence works on the building, and have threatened to discard their stock if the same is not removed by 6pm on 2^nd May 2024. In support they have exhibited as Exhibit 5 comprising three letters: (1) a letter dated 10^th January 2024 addressed to “Mr Roy and Mrs Rona Labrosse Trading as Luminous Trading” from Mahe Joinery (Pty) Ltd signed by Celine Labrosse (Property Manager/ Director) and Lise Annette Labrosse Director, informing them inter alia that the Board of Directors of the Company had decided to terminate the lease of all tenants of Mahe Joinery Building from 11^th January 2024 and to vacate the rented premises no later than 1pm on 13^th January 2024, so that the company could comply with planning requirements and proceed with repairs and renovation in order to obtain a valid occupancy certificate from the Planning Authority; (2) a letter dated 25^th April 2024 sent to the applicants on Mahe Joinery (Pty) Ltd letterhead signed by Celine Labrosse (Property Manager/ Director) informing the applicants that construction was to commence on 6^th May 2024 and giving them notice to remove any items of Luminous Trading by Thursday 2^nd May 2024 failing which such items would be discarded; (3) in reply to the letter of 25^th April 2024, email dated 29^th April written by Roy Labrosse in his capacity as Director of Mahe Joinery (Pty) Ltd and shareholder of 47 shares in the company, to Celine Labrosse, expressing his disapproval of the contents of letter, and further advising against any works on spaces occupied by Luminous Trading until a decision is made in the present cases. They claim that that this gives further urgency for them to regain possession and access to the premises.
8.  The applicants state that the limited access they have had to their premises since 7^th December 2023 have not afforded them the opportunity to assess what remains of their stock after the thefts, destruction by the explosion and adverse weather conditions, and hence the amount of time imposed on them by the respondents to remove their stock failing which the same will be discarded is inadequate and verges on malice.
9. The applicants conclude by averring that there are substantial questions of law to be adjudicated upon at the hearing of the plain and that they have high chances of success in the principal suit; that unless the obstructions are removed and they are allowed to enter their premises they will suffer substantial loss and prejudice; that consequently it is just and fair that an interlocutory injunction is granted ordering the respondents, their servants, agents and contractors to allow them to enter their premises, and to remove any obstructions to the said premises pending final disposal of the principal case; and that in view of the extreme urgency of the case, it is just and fair that the application be heard as a matter of extreme urgency. They therefore pray to be allowed to enter their premises, and for the respondents to remove any obstructions thereto pending final disposal of the principal case.
10. At paragraph 7. of their affidavit the applicants aver that “[w]e repeat the averments set out in our Plaint regarding the right to access, right to use, and occupy the part of title V6800 specifically paragraphs 6-18 thereof.”   In that regard, let me just say that an affidavit contains evidence in writing of the deponent(s) who are in this case the applicants, to support their application, whereas what is contained in a plaint is not evidence but pleadings which have to be proved by evidence at the hearing of the principal suit. It is up to the applicants to aver the relevant facts in their affidavit to support their claim, and not for the court to sift through their pleadings which as stated is not evidence, to find the same. I note that at the hearing of the motion, Ms Faure stated that one of the reasons that the applicants were seeking access to the premises was because they needed to make an inventory of stock for the purpose of lodging an insurance claim. At paragraph 11 of the plaint it is averred that:
    1. 1. 11. The plaintiffs aver that they have since been unable to salvage their stock to carry out repairs to the showroom’s interior and have been unable to carry out an inventory on their stock for Insurance purposes.

11. However nowhere in the Notice of motion or supporting affidavit is the carrying out of an inventory for insurance purposes mentioned, and for the reasons given above is disregarded by the Court.
12. The ex-parte motion came before this Court on 13^th May 2024, on which date the Court heard Ms Faure Counsel for the applicants. Mr Serge Rouillon, attorney-at-law who was also present informed the Court that he was holding brief for the respondents.
13. Sections 304 and 305 of the Seychelles Code of Civil Procedure (“SCCP”) provide for the making of application for a writ of injunction upon due notice given to the defendant. These provisions read as follows:
    1. 1. 304. It shall be lawful for any plaintiff, after the commencement of his action and before or after judgment, to apply to court for a writ of injunction to issue to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and such writ may be granted or denied by the said court upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as shall seem reasonable and just.

1. 1. 1. 305. Application under section 304 shall be made by way of motion in court upon due notice given to the defendant.

14. As stated, the motion in the present case is made ex-parte and the Court is also urged in terms of the Notice of Motion “to hear this Application as a matter of extreme urgency …”. According to established case law, an application for an injunction may be made ex-parte in urgent cases where it is impracticable to serve the defendant because the action sought to be restrained is imminent and has to be prevented before it occurs, or in some cases even where the action has started and is continuing. Vide Bonte v Innovative Publication (1993) SLR 138, Colling v Labrosse (2001) SLR 236, Government v Ramrushaya (2003) SLR 94, Ex Parte: Giovanni Rose (2006) SLR 133. Such applications are made pursuant to the Court’s equitable jurisdiction under section 6 of the Courts Act which provides that:

Equitable powers

1. 1. 1. 6. 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.

15. In Adrienne v Pillay SLR (2002) 24, the Court stated:

The interlocutory injunction is a discretionary remedy and falls within the equitable jurisdiction of this Court in terms of section 6 of the Courts Act. It is a prerogative power that may be exercised by this Court though sparingly, when no other legal remedy is available to a person in order to prevent an irreparable injury, which is substantial and could not be adequately^, remedied or atoned for by damages ... Finally, I shall add that the exercise of equitable jurisdiction is subject to equity, justice and good conscience and the Court whilst exercising it, acts as a "Court of Equity”, whereas the exercise of legal jurisdiction is subject to laws and laws only and the Court acts as a Court of Law.

16. The first question which arises for the Court’s consideration therefore is whether there is urgency which justifies the motion being made ex-parte.
17. The explosion occurred on 7^th December 2023, from which date the applicants trading as Luminous Trading have been denied access to the premises on which they carry out their business activities at the Mahe Joinery Building. They filed CS42/2024 together with MA88/2024 four months later on 15^th April 2024, and the present motion MA103/2024 on 6^th May 2024 five months after the explosion. The reason that they were initially given for them not being able to access the building was that it was structurally unsafe, but they received confirmation that the building was structurally sound and safe for occupancy by way of Mr Ah Kong’s Occupancy Certificate which is dated 3^rd January 2024. Furthermore the Engineering report of Mr Frank Seth commissioned by the respondents which, according to the applicants, supports Mr Ah Kong’s assessment that the building was structurally safe, was made as far back as 26^th December 2023, although it is not known when the applicants had sight or knowledge of it.
18. Other reasons for which the applicants seek access to the building are that there have been repeated thefts and break-ins due to lack of supervision and oversight, and parts of the building being unsecured. The police statements show that these occurred from the time of the explosion, up to at least end of January 2024, at least as far as the applicants know. It would also seem that the applicants were only able to access the business premises of Luminous Trading on 12^th January 2024 in the company of the police and Celine Labrosse following an incident of theft of items from their stock at the Mahe Joinery Building, and they have since 25^th January 2024 been advised by the police to keep away from the premises to avoid clashes with the respondents.
19. The applicants also claim that they are sustaining high loss of earnings as they cannot operate their business from the showroom because it has been boarded up, and further they are not allowed to enter the premises as the respondents have changed the padlocks and refuse them entry thereto.
20. The applicants have also been asked to vacate the premises by the aforementioned letter dated 10^th January 2024 signed by Celine Labrosse and Lise Annette Labrosse and to remove any items of Luminous Trading by a given deadline by the letter dated 25^th April 2024. They claim that that this gives further urgency for them to regain possession of and access to the premises.
21. It is my view that although this application could have been made earlier, the fact that the applicants are now being forced to vacate the premises makes it urgent that the present application is dealt with expeditiously. I note that the Notice of Motion seeks for both the applicants’ access to and possession of the premises to be restored to them. I agree that the applicants must be given access to the premises to ascertain the extent of damage to their stock by the explosion and to make an inventory of what remains after the damage and thefts, given that five months have elapsed since the explosion. However although both Mr Ah Kong and Mr Seth have stated that the building is structurally sound, the letter of 10^th January 2024 from the Company to the applicants states that the Planning Authority has considered the building unsafe and that it can no longer be occupied, and has further given instructionsto ensure it is sealed off from the public and to mitigate all risks until such time as repairs and renovation are carried out and a valid occupancy certificate obtained from the Planning Authority.  This raises an issue of safety of the applicants and anybody assisting them in carrying out inspection and inventory of their stock. This Court cannot, without more, take a decision in regards to access of the applicants to the premises, given the risks to which they will be exposed if the building is indeed unsafe. In particular any communications from the Planning and any other relevant Authority as well as their views are essential for the Court to make an informed decision on the matter.
22. The issue of returning possession of the property to the applicants so that they can carry out repairs so that they continue with their business operations raises other issues, given the notice to terminate the lease between Mahe Joinery Limited and the applicants trading as Luminous Trading. Further issues arise in regards to the capacities in which the parties are suing or being sued.
23. In view of the above, and for this Court to be able to make an informed decision, it is appropriate that this matter be heard inter-partes.
24. In the interim, the respondents are ordered not to interfere in any way with anything belonging to Mr Roy and Mrs Rona Labrosse Trading as Luminous Trading which is on the premises of Mahe Joinery Building. In particular they are not to remove or discard any items of the said Luminous Trading remaining on such premises until further order of this Court.

Signed, dated and delivered at Ile du Port on 17^th May 2024.

E. Carolus J