Leon v Volare (Prop) Ltd (2 of 2004) [2005] SCCA 3 (19 May 2005);

IN THE SEYCHELLES COURT OF APPEAL

 

ANTOINE LEON Appellant

 

v.s

 

VOLARE (PROP) LTD Respondent

 

 

SCA No. 2 of 2004

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

(Before: RAMODIBEDI, P; BWANA & HODOUL, JJA)

 

 

Counsel: Mr. D. Lucas for the Appellant

Mr. F. Chang-Sam for the Respondent

 

 

Heard on: 13 May 2005

Date of Judgment: 20 May 2005

 

 

JUDGMENT OF THE COURT

(Delivered by Bwana, JA)

 

 

1. The Appellant sued the Respondent “for breach of agreements” and prayed for orders in the sum of Sr. 108,882.50 with interest and costs. Dissatisfied with the findings of the Supreme Court (per Perera, J) he has now appealed to this Court. Twenty four (24 grounds of appeal were filed. However upon analysis of the same, we are of the view that they may conveniently be grouped into five namely:

 

    1. The court erred in relying on matters raised during the visit locus in quo.

 

    1. The court erred in relying on the evidence of Cecile Bastille as an expert in construction industry while she is not. She is a Quantity Surveyor.

 

    1. The court erred in basing its findings on issues that were ultra petita.

 

    1. The judgment and orders of the court do not reflect the facts of the case.

 

    1. The calculations by the trial court of the award of “Sr. 134,592 (inclusive Sr. 62,418 retained) together with interest at the commercial rate of 10% per annum from 31 March 2001 …” was erroneous.

 

Observation

2. Before we consider the appeal on its merits, we would like, at this early stage, to make some observations with regard to two issues namely ultra petita and locus in quo. We find ourselves obliged to do so in the absence (to the best of our knowledge) of express practice directions as to what should be considered or done when it comes to similar arguments before the Courts in this jurisdiction.

 

3. We do note that ultra petita – as challenged in the proceedings and or judgment of a trial court – is repeatedly being raised. This is so ostensibly, it is our view, because the pleadings are not properly drafted and/or presented to court. We do further note that both plaints and statements of defence are drafted in such “a skeleton” form that they leave out key information as required under the relevant provisions of the Seychelles Code of Civil Procedure (the Code). The mandatory requirements under S. 71 of the Code (when it comes to the drafting of the plaint) are not wholly complied with. That section requires a plaint to contain the following details:-

 

1. The name of the court in which the suit is brought;

 

2. The name, description and place of resident of the plaintiff;

 

3. The name, description and place of resident of the defendant, so far as they can be ascertained;

 

4. A plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain an action;

 

5. A demand of the relief which the plaintiff claims;

 

6. If the plaintiff has allowed a set off or has relinquished a portion of his claim, the amount so allowed or relinquished.

 

Subsequent provisions give further requirements with regard to suits where recovery of money is sought; the need to state the capacity of the parties and the need to attach copies of all relevant documents to be relied upon (ss 72 to 74 respectively).

 

Likewise section 75 of the Code gives distinct requirements of what should a statement of defence contain. It states:

 

The statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim. A mere general denial of the plaintiff’s claim is not sufficient. Material facts alleged in the plaint must be distinctly denied or will be taken to be admitted.” (emphasis added).

 

We reiterate the well settled principle of law that parties are bound by their pleadings. Therefore if the pleadings are not properly drafted, they are an invitation to submissions of ultra petitia and the consequences thereof. Trial courts should, therefore, take appropriate legal steps when it is apparent to them that the pleadings filed before them do not conform to the above stated provisions of the Code.

 

4. The other area of concern is what transpires during a visit locus in quo – what should be recorded (by the Court Reporter); what should form part of the court record; what weight should be given to comments made by the judge, counsel, parties and any other third party present thereat.

 

We note, again, that the relevant provisions of the Code, as well as the Evidence Act are not fully complied with. In turn when such information (sometimes vital information) is used by a judge in arriving at his/her final decision, it is challenged – as in the present appeal.

 

The Court is empowered – under section 88 of the Code – to make an order for plans and further particulars to be furnished by the parties. This may be done even before the visit itself. Section 137 of the Code is more elaborate. It states (in regard to hearing of a suit in situ).

 

“The Court may in any suit, either of its own motion or at the request of any party to a suit, if the court be of the opinion that the hearing of the suit will be facilitated thereby –

 

a) direct that such suit or any witnesses in the suit be heard on the land or premises in dispute between the parties to the suit or at any place where any matter in dispute in such suit has occurred.

 

b) may proceed to such land at premises or place for the purpose of inspection only without hearing witnesses, but the parties shall have the right to be present at such inspection.” (emphasis added).

 

Where a locus in quo takes place, it is our view, the court may adopt either of the following procedures. First, it may direct that a record of the visit, together with observations and comments, be prepared. Then once back in court, the said document should be read in the presence of both parties and agreed upon (subject to corrections being made). The parties would then endorse the said document hence making it part of the court record. Where the foregoing is not desirable and it is thought to be in the interest of justice that parties be examined at the site, then such parties (or other relevant people) should be examined (after having been sworn) and be subjected to cross-examination by the adverse party. Their evidence then becomes part of the court record.

 

It is undesirable that any observations and/or comments made by either party or a judge during the locus in quo and which do not form part of the record of proceedings should be used by the trial judge in arriving at his final decision.

 

The Appeal

5. The foregoing observations notwithstanding, we have considered this appeal on its merits and came to the conclusions as contained herein. On the issue of the trial judge relying on issues observed during the locus in quo and which are said not to have formed part of the evidence in court, we fail to see the correctness of such an argument. In his judgment, the trial judge may have made comments as to what he saw at the locus but this was, it is our view, made while considering the evidence on record, of the parties. He did not rely on his own views per se as this Court is being invited to agree with. We see from the record that the parties were at issue on several areas and we believe that the trial judge was justified in making the necessary inferences in the form they appear in his judgment.

 

6. Much has equally been said on the defects as observed during the locus in quo and as stated in Cecile Bastille’s report. While it is argued by the appellant that no such defects were reported within six months as per contract terms, there is evidence on record that this was indeed done. There is an attempt to rely on the provisions of Art. 1146 of the Civil Code namely -

 

“Damages are only due when the debtor is under notice to fulfil his obligation; provided, nevertheless, that the thing which the debtor had bound himself to give or to do could only be given or done within a fixed time which he has allowed to elapse.”

 

There was evidence on record of the notification having been made and that such notification led to some unpleasant confrontation, culminating in a case before the Magistrate’s Court, for breach of the peace.

 

7. Further, we are of the view that the entire agreement governing the parties was of a commercial nature, hence governed by the provisions of the Commercial Code. Article 109 – 2 and 109 –3 are relevant to the instant appeal.

Art. 109 – 2:

 

“In commercial transactions damages shall be due by operation of law from the moment that the breach occurs without the necessity of a previous notification as provided for ordinary contracts under Article 1146 of the Civil Code.” (emphasis added).

 

Art. 109 – 3 goes on to state:

 

“When a breach of a commercial contract occurs, the party innocent of the breach shall be entitled to treat the contract as discharged by operation of law.

 

The rules of Article 1184 of the Civil Code … shall not apply to commercial transactions.”

 

In the circumstances, it is our judgment that whether there was notification or not , the findings of the trial judge on this issue, were proper, based on the relevant provisions of the Commercial Code.

 

  1. Grounds of appeal no. 1.4 and 1.5 (supra) may be considered together. It is apparent from the judgment of the Supreme Court that the trial judge did go into lengthy details over each and every point disputed between the parties – something he should be commended for. He did not only categorically state where he differed with the key witness, Cecile Bastille, but also where he concurred with her, he did state so and gave reasons for so differing or concurring. A trial court is in a better position (than an appellate one) to consider and examine all the evidence (and witnesses’ demeanour, etc) before it comes to conclusions. We should therefore have material reasons to differ with the trial judge in this respect. None of such reasons are apparent herein. We have considered the appellant’s arguments as well and came to a considered judgment that they do not lead this court to differ with the trial judge. We do concur with his findings. We therefore uphold the same and proceed to dismiss this appeal with costs.

 

……………………………………

S. J. BWANA

JUSTICE OF APPEAL

 

 

 

I concur: ……………………………………

M. RAMODIBEDI

PRESIDENT

 

I concur: ……………………………………

J. HODOUL

JUSTICE OF APPEAL

Delivered at Victoria, this 20th May 2005