Barallon v Gappy (30 of 2004) (30 of 2004) [2005] SCCA 5 (19 May 2005);


IN THE COURT OF APPEAL OF SEYCHELLES



Civil Appeal No. 30 of 2004



In the matter between



RONNY BARALLON -Appellant


and


SAMUEL GAPPY ­-Respondent

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

Before: RAMODIBEDI, P., BWANA, J. A., HODOUL, J. A.


Hearing on: 9 May 2005

Judgment delivered on: 20 May 2005


Mr. A. G. Derjacques for the Appellant

Mr. F. Ally for the Respondent



J U D G M E N T


RAMODIBEDI, P.


[1] This appeal concerns a dispute between two neighbours over a certain Mitsubishi pick-up Registration No. S373. At the outset, it will be observed that this is rather an unusual dispute to the extent that neighbours should fight over a motor vehicle as opposed to the run-of-the-mill cases where neighbours usually fight over such things as boundaries or general nuisance caused by one to the other.


[2] The full facts of the case appear from the judgment of the trial court (Karunakaran J) and I shall therefore not trouble to repeat them except in so far as is strictly necessary for the determination of this matter.


[3] In the court below, the Appellant sued the Respondent in terms of a plaint couched in the following terms:-


1. Mr. Ronny Barallon, Plaintiff hereinafter, was a businessman of Petit Paris, at all materials times. Defendant is a Manager with the Ministry of Social Services, inter alia.


2. By agreement in writing, the Plaintiff and Defendant agreed that Plaintiff owned vehicle Registration No. S373, namely pick-up truck, which Plaintiff caused to be imported by utilising an import permit, in Defendants (sic) name.


3. Defendant agreed to transfer ownership of the said vehicle to Plaintiff, at the Seychelles Licensing Authority, with (sic) a reasonable time. Defendant, further agreed, the Plaintiff would retain possession of the said vehicle, until registration was effected.


4. In breach of agreement, Defendant on the 13th July 2000 took possession of the said vehicle, and further, refuses to transfer and register the said vehicle, in Plaintiff’s name which renders Defendant, liable in law to Plaintiff.


  1. By reason of the foregoing, Plaintiff has been put to loss and damages.


PARTICULARS OF LOSS AND DAMAGES


1. Value of pick-up truck Rs 250,000.00

2. Moral Damages Rs 50,000.00

    3. Economic loss (… business)

At Rs8,000/- monthly and continuing

Total Rs 300,000.00


  1. Despite requests, Defendant has refused to deliver the pick-up to Plaintiff or transfer the vehicle to Plaintiff.


WHEREFORE the Plaintiff prays this Honourable Court to:

    1. To order Defendant to deliver to Plaintiff possession of vehicle registration No. S373.


    1. To order Defendant to effect the registration of vehicle registration No. S373, on Plaintiff at the Seychelles Licensing Authority; or


    1. To order Defendant to pay Plaintiff the sum of Rs250,000/-, as the value of the said vehicle.


    1. To order Defendant to pay Plaintiff the sum of Rs50,000/- as moral damages.


    1. Any further order, on continuing loss of business or Rs8,000/- monthly.


Dated this 17th Day of July 2000.



ANTHONY DERJACQUES

PLAINTIFF’S ATTORNEY


Documents to be relied on:-

  1. Agreement

Invoices and payment in Japan

Invoices.”


[4] In his amended statement of defence, the Respondent denied all the allegations contained in the plaint save for the fact that the import permit in question was in his name. He then made the following important statement which has proved to be the central point in the matter both in the court a quo and in this Court:-


Further and alternatively to paragraphs 2 to 5 here above (namely the denials to the particulars in the plaint) the Defendant avers that he is the lawful owner of the pick-up truck in that it was transferred to him by the Government which had seized the pick-up truck upon importation on the grounds of a breach of the Trades Tax Act. As a result thereof the Plaintiff has no cause of action against the Defendant.”


[5] The trial court dismissed the Appellant’s claim essentially for two reasons, namely, that:-


  1. the alleged agreement exhibit P2 upon which the Appellant relied was not proved and

the agreement was in any event illegal and therefore unenforceable.


[6] In this appeal, the Appellant challenges the correctness of the decision of the trial court as set out in the preceding paragraph. Furthermore, the Appellant appeals against the trial court’s failure to consider the Respondent’s payment into court in the sum of R28,361 as a judicial admission, or at the very least, a partial admission of liability.


[7] In a nutshell, the evidence discloses that foreign exchange (“forex”) or lack of it played a central role in this matter. It would seem that the Appellant who is admittedly a businessman dealing with spare parts and motor vehicles was well placed from his international sources to access forex at the material time when there were restrictions on this commodity locally. In the meantime, the Respondent was in possession of an import permit for a Toyota pick-up truck. It was in his own name.


[8] The Appellant’s case was that he needed a pick-up truck for his business. He had a car which the Respondent wanted to buy. Since the latter had an import permit for a Toyota pick-up truck, they both agreed that the Appellant should sell his car to the Respondent at a reduced price and that the latter should in turn give his import permit to the Appellant.


[9] The Respondent’s version is however, diametrically opposed to the Appellant’s. It is his case that the disputed Mitsubishi pick-up truck was purchased by himself using his own import permit and his own funds. He had a problem obtaining the necessary forex until the Appellant, with whom they were admittedly close friends since their early childhood, suggested to him in April 1999 that he could “manage the foreign currency and in return I pay him in Seychelles rupees.” The Respondent duly handed in Exhibit D1 as proof of his payment to the Appellant in the sum of R47,000. He conceded that he still owed the Appellant the balance of R28,361 which he has however paid into court. He duly produced a receipt, Exhibit D10 in support thereof.


[10] The evidence further discloses that the Toyota pick-up truck originally agreed upon was unavailable. Instead, the Mitsubishi pick-up truck (“the truck”) referred to in paragraph [9] above and described in Exhibit P2 was imported into the country. Upon its arrival in Seychelles, the truck was seized by the Ministry of Finance apparently for a false declaration made on the inventory thereof and for an irregularity on the import permit. The imported truck was, as pointed out above, different from the one described in the import permit. It was the evidence of one Charles Morin who was the Controller of Tax Imports in the Ministry of Finance that at a subsequent meeting held at the Central Bank the Appellant was specifically asked who paid for the pick-up and who owned it. He duly admitted that it was the Respondent who was even fined R10,000 for illegally importing the truck into the country. Only then was the motor vehicle released to the Respondent with a condition that he must not transfer it for a period of five years.


[11] It is important to note further that the Respondent was required to obtain, and did obtain, a new import permit in his own name in respect of the truck. Furthermore, it is common cause that this motor vehicle is registered in his own name. Plainly, therefore, he is prima facie the registered owner thereof. Accordingly, the onus burdened the Appellant, in my view, to negative such prima facie ownership.


[12] As alluded to in paragraph [5] above, the Appellant has relied heavily on an undated document Exhibit P2 which reads as follows:-


“TO WHOM IT MAY CONCERN


I, Mr. Samuel Gappy is (sic) currently a holder of an import permit for a 1-ton pick-up for up to 2800 cc.


This is to certify that the imported vehicle on this “Import Permit” is for Ronny Baralon (sic) of Brilliant as per arrangement.


Sgd. Samuel Gappy (Mr.) Sgd. Ronny Barallon (Mr.)


Sgd. Serge Rouillon (Mr.)

Third Party.”


The Respondent, however, vehemently contested this document and denied that he had ever signed it. The trial court correctly observed, in my view, that the Appellant failed to prove this document in his evidence and that in fact this document, or agreement as the Appellant prefers to call it, “does not refer or relate to the suit – vehicle Registration No: S373, which is a Mitsubishi 2-ton Dump Truck 4200 cc.” I should mention that I have myself strained to discover any connection between Exhibit P2 and the truck but I have found none. It seems quite clear to me that after the import of a Toyota pick-up failed to materialise, no attempt was made to reach any agreement in writing concerning the truck.


It follows, in my view, that the trial court was correct in concluding that there was no agreement between the parties as to the ownership or possession of the truck or for its transfer. The Appellant’s claim was accordingly rightly dismissed on this ground.


[13] Furthermore, I consider that the Appellant’s claim was rightly dismissed on the ground that the purported agreement as set out in Exhibit P2 was against the law in that it contravened the Trades Tax Act 1992 as amended (“the Act”) and was therefore in contravention of Article 1108 of the Civil Code. This Article reads:-


“Four conditions are essential for the validity of an agreement –

The consent of the party who binds himself,

His capacity to enter into a contract,

A definite object which forms the subject-matter of the undertaking,

That it should not be against the law or against public policy.” (My own emphasis).


Now, section 8 (1) (5) of the Act provides as follows:


8. (1) Notwithstanding any other written law, but subject to section 9, a person shall not –


  1. import; or


  1. export;


prescribed goods without a permit issued under the Act by the Minister.


(5) A permit granted under this section is not transferable.” (Emphasis supplied).


Section 9 in turn reads as follows:-


The Minister may, by a certificate, exempt, subject to such conditions as he thinks fit, any person or body from compliance with a provision of this Act.”


[14] Notwithstanding the clear terms of section 8 (5) of the Act, it was the Appellant’s case in the court below that he purchased Respondent’s import permit for a consideration of R8000 with the agreement that the latter should transfer the ownership of the vehicle to him within a reasonable time after being imported into the country. In this Court, it was submitted on behalf of the Appellant that he was unable to obtain a permit for political reasons. Even if that may be so, however, it does not justify flagrant contravention of the laws of the country. The evidence shows that the parties embarked on a device which, in my view, could only have been meant to beat the country’s import and tax system by making the arrangement that the Appellant now contends for, namely, by attempting to unlawfully transfer the Respondent’s permit to the Appellant’s name.


[15] In the light of all of the aforegoing factors, I have come to the inescapable conclusion, therefore, that if anything, the alleged agreement in Exhibit P2 was against the law. As we say, it was in legis fraudem and, therefore, unenforceable.


[16] There is a further hurdle in the Appellant’s way. It is that, as will be recalled from paragraph [4] above, the Respondent specifically pleaded in his amended statement of defence that the truck was transferred to him by the Government after it had been seized for contravention of the Act.


Indeed, it is not disputed that the truck was confiscated and thereafter disposed of in terms of section 206 of the Trades Tax Regulations 1997 which reads as follows:-


206. (1) All goods which have been seized being liable to forfeiture under these Regulations shall be delivered into custody of the Comptroller, and after they have been condemned by the Comptroller or by a competent court, the Comptroller shall cause them to be disposed of in the manner directed by the court condemning the goods and, in any other case, in accordance with Regulation 140.


(2) Where goods are disposed of in terms of this Regulation, a person with any rights in those goods shall not be entitled to any accounting or compensation for their value.”


[17] There remains the issue relating to the fact that the Respondent has admittedly paid a sum of R28,361 into Court. The Appellant submits that this should be considered as a “judicial admission, or and at the very least a partial admission of liability.” There is no merit in this submission. Once it is found that the Appellant’s claim is unenforceable in law, as it surely is, there can be no question of “judicial admission” in the matter. Having said that, however, Mr. Ally for the Respondent has very fairly and properly consented to judgment in favour of the Appellant in the specified amount in question. Accordingly, there shall be judgment for the Appellant by consent in that amount.


[18] This brings me to the question of costs, there can be no doubt in my mind that the Appellant has enjoyed limited success in this appeal. That, in my view, is insufficient to displace the principle that costs follow the event.


[19] In the result, therefore, the following order is made:

  1. The appeal is dismissed with costs.

By consent the Respondent is ordered to pay to the Appellant the sum of R28,361 which was paid into court and the Registrar or Deputy Registrar of the Supreme Court is ordered to effect such payment.

The judgment/order of the Court a quo is hereby altered accordingly.





……………………………..

M. M. RAMODIBEDI

President





I concur: ………………………………

S. J. BWANA

Justice of Appeal




I concur: ……………………………..

J. M. HODOUL

Justice of Appeal




Delivered at Victoria, Mahe this 20th day of May 2005