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 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 4^th 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.  




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

17. 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 -

8.  
   

   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.




 

9.  
10.  
    
    
    

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




 

11.  
12. 3.  

    
    

    4.  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.




 

13.  

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