Piazzola v International Investment Trading Srl (Iit) and Others (8 of 2004) (8 of 2004) [2005] SCCA 16 (24 November 2005);






IN
THE SEYCHELLES COURT OF APPEAL








SCA
No. 8 of 2004








In
the matter between





MRS.
FRANCESCA PIAZZOLA Appellant/Intervenor





Vs





INTERNATIONAL
INVESTMENT TRADING


SRL
(IIT)


(Represented
by Alfonso Zaccari as liquidator) First Respondent





and





VITO
FRANCAVILLA


(Receiver
and Trustee in Bankruptcy of


Michel
Piazolla) Second Respondent





and





DELONIX
LTD


(Represented
by Suketu Patel and


Bernard
Pool) Third Respondent





as
well as





INTERNATIONAL
INVESTMENT TRADING


Srl
(IIT) Cross-Appellant





And





1. MICHEL
PIAZOLLA


(Represented
by Vito Francavilla as


Official
receiver) Cross-Respondent





2. DELONIX
LTD


(Represented
by Suketu Patel Cross-Respondent


And
Bernard Pool)





3. SOUTHERN
REGISTRAR PTY LTD


(Represented
by Wilfred Jackson) Cross-Respondent





4. CRESCENTE
FRANCESCA PIAZOLLA


(widow
of Michel Piazolla) Cross-Respondent





===========================================



(Before:
Ramodibedi P., Bwana J.A., Hodoul J.A.)



Heard on:
16 November 2005



Judgment
delivered on
: 25 November 2005






Counsel: Mr.
P. Boulle for the Appellant and 4th Cross-Respondent


Mr.
F. Bonte for the First Respondent and Cross-Appellant


Mr.
P. Pardiwalla for the Second Respondent








J
U D G M E N T





BWANA,
JA







1. This
case seems to have a chequered history. For the past seven or so
years, the parties hereto have been before the Courts in Seychelles
and/or other Judicial Authorities in Italy. It would seem, the main
contested issue is the holding and division of shares in the
Takamaka
Development Company Ltd. It is our considered view that before we
proceed with the determination of the issues before us,
what appears
to be a brief background to the whole matter need to be stated.







2. The
International Investment Trading (IIT) had substantial interests in
the Takamaka Development Company Ltd (TADECO). It was being
managed
by Michel Piazolla who died in Italy on 22 July 2000. The Appellant,
Crescente Francesca Piazolla, is the widow of the late
Mr. Piazolla.
She applied to be joined in this suit as an intervenor so as to
protect her interests and those of her later husband.







3. Before
his death, Mr. Piazolla was engaged in a legal wrangle with Delonix
Ltd, Southern Registrar and the IIT. It was claimed by
IIT’s
representative, Alfonso Zaccari, that Mr. Piazolla had converted 67%
of the shares of TADECO (then held by Delonix Ltd)
to himself as from
3 October 1994. The remaining 33% shares were subsequently
transferred to Mr. Zaccari on 17 July 1995.







4. Meanwhile,
following the death of Mr. Piazolla, one Vito Francavilla, (Second
Respondent herein) was appointed as Receiver and Trustee
in
Bankruptcy. Following an application by IIT, the trial court did –
on 13 February 2001 – order for the substitution
of Michel
Piazolla by Vito Francavilla as a defendant in the case before it.







5. As
the case progressed in the Supreme Court, proceedings against
Southern Registrar (third cross-respondents) were withdrawn on 25
May
1999. Likewise for Delonix (second cross-respondents). The
plaintiff decided not to proceed with the case against it on the
basis of the defence it had filed on 31 March 1999. In its defence,
Delonix had stated inter alia, the following:-







“… (it)
denies the allegations made in the plaint and is prepared to abide by
the court’s decision as to the ownership of the shares,
provided the case against (it) is withdrawn without reservation and
no costs are payable …”







As a consequence
of that statement, the trial judge (Juddoo, J) considered it to be a
judicial admission. He allowed the plaintiff
to withdraw the case
against Delonix and made no order as to costs against it. It is our
view that the trial judge was correct in
making that decision.







6. In
the other Written Statement of Defence (WSD) filed by Vito
Francavilla on 27 May 2002, the following was stated:







para
3. … 67% of the shares of Takamaka Development Company Ltd
(TADECO) belong to the plaintiff and are registered in the
name of
Delonix Ltd. The first defendant avers that the balance of the 33%
of the shares of … (TADECO) belong to Mr. Alfonso
Zaccari.







Para 4. The
first defendant avers that all acts done by Piazolla or any one on
the latter’s behalf since February 13
th
1996, have been done without the first defendant’s consent and
authority. Wherefore the first defendant prays …
To
grant the orders sought by the plaintiff and to declare the plaintiff
to be the owner of 67% of the shares of Takamaka Development
Company
registered in the name of Delonix Ltd
…”
(emphasis added.)







Again, the
contents of the two paragraphs were taken by the trial judge to be an
admission that the 67% shares held by Delonix belonged
to IIT and not
Mr. Piazolla as an individual. We do concur with that finding by the
trial judge.







7. Indeed,
when the matter came up for trial, the whole case centred on the
issue of the 67% of the shares. Under cross-examination
by Mr.
Boulle, Counsel, Mr. Zaccari did admit the following:-







Q. From
your testimony you have said that you have come to court today for an
order declaring that 67% of the shares of TADECO Ltd
is owned by IIT?
Is this correct?








  1. It is true.
    Yes, this is what I want.









  1. And this is
    the reason why you have come to court today?








A. Yes, I am
here in court to declare that 67% of the shares of the company belong
to IIT.”







What followed next
forms one of the principal points in this appeal. It is on record
that thereafter, the plaintiff’s case
came to an end. Counsel
for the Appellant opted to enter a “no case to answer”
submission. That submission of “no
case to answer” in
civil litigation has the result that should it fail then the trial
court proceeds to examine the plaintiff’s
case and if satisfied
that it raises reasonable inferences in favour of the plaintiff, the
trial court may proceed to enter judgment
in favour of the said
plaintiff. Indeed this seems to be what transpired in this matter.







8. In
submitting a no case to answer, it was averred by Mr. Boulle during
trial and during this appeal that the orders granted by the
trial
court were not sought by the plaintiff. Therefore such orders are
ultra petita. In his grounds of appeal to this Court the
Appellant
claims that -









    1. The judgment is
      ultra petita as the learned trial judge awarded a remedy to the
      plaintiff which was not prayed for in the pleadings.











    1. The remedy
      granted in favour of the plaintiff was not available in law on the
      pleadings.











    1. The Appellant
      now requests this Court for an order setting aside the judgment of
      the Supreme Court and substituting therefor with
      a judgment
      dismissing the plaintiff’s claim, with costs.









9. On
its part, IIT, the cross-appellant, prays for costs of this suit and
damages solely from the appellant/intervenor. It restates
its
intention not to proceed with the cross-appeal against the first
cross-respondent (Vito Francavilla) as well as the second
cross-respondent,
Delonix Ltd. The suit having been withdrawn in the
Supreme Court against the third cross-appellant (Southern Registrar),
we find
it improper to have him enjoined in this appeal as a
cross-respondent. The cross appeal against Southern Registrar is
therefore
struck out.







10. The
basis of the cross-appellant’s claims against the fourth
cross-respondent (Mrs. Piazolla) are well set out in the grounds
of
cross-appeal. The cross-appellant therefore prays for an order
confirming that Delonix Ltd held TADECO shares which belonged
to IIT.
Costs of this appeal and those of the Supreme Court are sought,
given as Sr.50,000/-. Damages given at Sr.500,000/- are
also
claimed.







11. The
two grounds of appeal raised by the Appellant (para 8.1 and 8.2
supra) form the basis of our decision in this appeal. First,
can it
be argued successfully that by invoking prayer 7 of the plaint and
proceding to grant the 67% of the shares to TADECO the
trial court
order was ultra petita? That no such order had been sought in the
pleadings? Prayer No. 7 is couched in the following
words:







Any
other order that the court deems fit in the circumstances …”







The trial judge
invoked that prayer to order for the return of the 67% shares to IIT
currently held by Delonix. It was submitted
by Mr. Boulle that since
that prayer was not expressly pleaded and sought, the court could not
grant it. Several authorities were
quoted to advance and support
that argument. We are thankful for that.







12. However,
it is our considered view that the trial judge was justified and had
the power to invoke his inherent powers and make that
order. There
are several reasons for that. First, it is noted that this issue of
the 67% shares had been canvassed during the evidence
of Mr. Zaccari.
Likewise it was admitted by Delonix as well as Vito Francavilla in
their pleadings. The Appellant decided to enter
a no case to answer,
with all the consequences of such submission being made well aware to
her.







Those admissions
by Delonix Ltd and Vito Francavilla do bind both the Court and the
makers. Article 1356 of the Civil Code states:







A
judicial admission is the declaration which a party … makes in
the course of legal proceedings. It shall be accepted against
the
persons who make it. It may not be admitted only in part to the
detriment of the person making it. It may not be revoked unless
it
be proved that it resulted from a mistake of fact. It shall not be
revoked on the ground of a mistake of law.”







13. Second,
from the record it is evident that all the parties had submitted to
that one issue of the 67% shares. The trial court could
not leave
that issue particularly when it became evident that the defendant’s
submission of no case to answer required the
trial court to make a
finding. That it did. Is that decision wrong? We are of the view
that the procedure followed and the views
of the trial judge on the
issue are correct. He properly invoked prayer 7 to grant that award
which, given the pleadings and evidence
available, it was intra
petita, not ultra petita.







14. The
Appellant had raised two points in her grounds of appeal. We do
observe that the second ground, namely that “the remedy
granted in favour of the plaintiff was not available in law
”,
had not been raised during the trial stage. The Appellant cannot
successfully raise that issue in this Court. If the issue,
for
example, is recognition of beneficial interests in property, that was
not raised during the trial stage. Counsel for the Appellant
requested this Court to make an order remitting the issue to the
trial court for its consideration. It is our considered view that
since the matter was not canvassed before that court, it would be
improper to order it to do so after the case had reached this stage.







15. On
this basis of the admissions by Vito Francavilla and Delonix Ltd and
the evidence of Alfonso Zaccari, we are satisfied that the
trial
judge reached a proper conclusion that the 67% of the shares of
TADECO currently held by Delonix, should be restituted to its
lawful
owner, IIT.







16. The
trial judge’s findings on the issue of costs against Delonix
Ltd are also proper. Likewise the order in favour of Vito
Francavilla (in respect of no costs) should not be disturbed by this
Court.







17. We
do concur with the findings of the trial judge with regard to the
liability of Crescente Francesca Piazolla. She should pay costs
of
this suit in the Supreme Court and in this Court. Such costs to be
taxed by the Master of the Supreme Court.







18. As
regards damages, even though we note that the prayer for
Rs.1000,000/- was not specifically traversed by either Mr. Piazolla
or
the Intervenor, we are of the strong view that since the
cross-appellant never adduced evidence in support of his claims for
that
sum in the trial court, this Court cannot award the same or even
a lesser sum now being claimed. Accordingly, the prayer for damages
fails.







19. All
in all this appeal fails and is dismissed with costs. This Court’s
findings as stated from para 15 to 18, are ordered accordingly.










……………………………………….


S.
J. BWANA


JUSTICE
OF APPEAL











I
concur: ……………………………………….


M.
M. RAMODIBEDI


PRESIDENT











……………………………………….


J.
M. HODOUL


JUSTICE
OF APPEAL











Delivered
at Victoria, Mahe, Seychelles, this 25
th
November 2005