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 13
th 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