Dubel and Another v Juliette and Another (1 of 2005) [2005] SCCA 14 (06 July 2005);

 IN THE SEYCHELLES COURT OF APPEAL

 

Yvon Dubel

Viona Dubel Applicants

 

versus

 

Yvette Juliette

Gerard Juliette Respondents

 

Case No. 1 of 2005

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Mr. W. Lucas for the Applicants

Ms. Domingue for the Respondents

 

 

R U L I N G

 

On the 20th January 2005 Perera J., delivered judgment against the defendants, now Applicants, awarding a total sum of Rs20,500 to the plaintiffs, now Respondents.

 

An application for leave to appeal out of time against the judgment has been lodged before this Court. It is dated 27th April 2005 whereas under the Rules of this Court, it should have been lodged within thirty (30) days of the date of the judgment.

 

Counsel for the Respondents has filed strong objections on an affidavit dated 6th July 2005 and prays for dismissal of the application. She has attached thereto a letter dated 26th April 2005 claiming payment of the sum awarded to her clients.

 

Both Counsel have made oral submissions and Counsel for the Respondents has also moved for costs.

 

This Court has an unfettered discretionary power to grant the application for good cause. However, it will not be in a position to exercise this discretion unless the Applicants submit material on which it can do so. For that reason, the Applicants must comply with two requirements, namely:

 

  1. give a clear and sufficiently detailed account of the reasons for the delay, stating the precise length of the delay and the facts and circumstances under which it arose. Failure to do so would normally, justify the dismissal of the application on this ground alone; and

 

  1. show that, on the appeal, they have an arguable case and the prospects of success are good, on a balance of probabilities.

 

The account of the delay given by the Applicants, is set out in paragraph 4 of their Affidavit in Support; it reads:

 

4. That since the judgment was delivered (on the 20th January 2005) we have been waited (sic) for over (sic) weeks to obtain copy of the judgment due to the non-function of the court library photo copier.”

 

This account is defective and inadequate: it does not state the precise length of the delay, expressed in a number of days or weeks and this Court will not speculate about facts which are within the knowledge of the Applicants; it does not disclose any good reason(s) for the delay.

 

A defective photocopier in the Supreme Court library is a very lame excuse for failure to file the notice timeously.

 

Photocopying is an office support service which is generally available in the Chambers of legal practitioners and elsewhere in town. Consequently, Counsel for the Applicants would have shown a remarkable lack of diligence which this Court may not condone. He had heard the judgment with his own ears and at least one copy was ready and available.

 

I find it more probable than not that, as averred by Counsel for the Respondents, it was the letter demanding payment of the judgment debt that motivated the application.

 

The Applicants have not complied with the first requirement set out above, namely, to give a satisfactory account of the delay and I need not consider whether they have an arguable case on appeal. In any event, they have not submitted their intended grounds of appeal.

 

In the result, the Applicants have not submitted any facts or material which would constitute good cause justifying the exercise of this Court’s discretion in their favour.

 

The application is therefore dismissed with costs.

 

 

 

…………………………

J. M. HODOUL

JUSTICE OF APPEAL

 

Dated this 7th day of July 2005