Seychelles Construction Company v Braun and Others (9 of 2004) (9 of 2004)  SCCA 9 (19 May 2005);
IN THE SEYCHELLES COURT OF APPEAL
Civil Appeal No. 9 of 2004
In the matter between
COMPANY - Appellant
EUGENE BRAUN -First Respondent
ONEARN (PROPRIETARY) LIMITED -Second Respondent
VACOA VILLAGE (A FIRM) -Third Respondent
Before: RAMODIBEDI, P., BWANA, J. A., HODOUL, J. A.
Heard on: 10 May 2005
Delivered on: 20 May 2005
Mr. F. Ally for the Appellant
Mr. F. Bonte for the Respondent
J U D G M E N T
 In this matter, the Appellant sued the Respondents including one Eugene Braun in the Supreme Court for a sum of R1,574,506.40 for work it allegedly carried out as per agreement. Although the name of Eugene Braun still features in the Notice of Appeal and similarly in the roll before this Court, the correct position as gleaned from the record of proceedings is that this person was never served with the original summons in the court a quo. The Appellant then elected to proceed, and did proceed, in his absence as it was its right to. More importantly, no order was sought or obtained against him.
 After seeing and hearing witnesses, the trial court dismissed the Appellant’s claim on the ground that it had failed to discharge the onus of proof in support of its claim. In this connection, the trial court relied principally on the ground that no invoices were produced to support the claim in question. The Appellant has appealed against the correctness of that decision.
 Now, the record reveals that the Appellant’s case suffered huge set backs right from the onset. As alluded to earlier, the First Respondent, who was apparently the alleged link between the Appellant’s case and the other Respondents, could not be served as he had gone back overseas to his home country. But the worst was still to come and when it did, it came in the form of the sad demise of the Appellant’s sole star witness, Hans Peter Wyss, early in February 2003. He had been Appellant’s General Manager at the material time and had apparently been involved in monitoring progress on the alleged construction works. Admittedly, this witness was the bedrock of the Appellant’s case and without him the Appellant always appreciated that its case would be limping from day one to the end. The following episodes will serve to highlight the point:-
On 5 February 2003, Mr. Georges for the Appellant informed the trial court about the witness’s death in the following words:-
“I have informed Mr. Bonte (Respondent’s counsel) already, that I will have to seek an adjournment because my only witness passed away on Sunday.” (Emphasis added).
On 21 February 2003, Mr. Georges once more lamented the death of the witness in question in the following terms when addressing the trial court:-
“But, I must state, quite candidly, that the death of my principal witness has thrown my case into some disarray, in the sense that a lot that the late Mr. Wyss would have deponed about can no longer be deponed by anybody.” (My own underlining for emphasis).
 As matters developed in the court below, however, the Appellant called two witnesses, namely, Dilip Shah and Alderick Benoiton. But as I read their evidence, they were unable to advance the Appellant’s case any further. They could not produce the necessary invoices in circumstances where there were not even any letters of demand for the alleged outstanding payments. In fact Dilip Shah admittedly came into the picture late. It is common cause that he joined the Appellant as its General Manager after the alleged works had already been completed. Clearly, therefore, he had no personal knowledge of the issues involved. Indeed Mr. Georges himself conceded this much when he said this in the court a quo:-
“Obviously, if at the end of Mr. Shah’s testimony I close my case, your Lordship will not be impressed at all by the evidence that I have led, because he has no knowledge of it, but that is a matter for weight.” (Emphasis added).
Indeed the learned trial Judge was not impressed.
 Mr. Ally who appeared for the Appellant in this Court has relied heavily on the fact that Dilip Shah was not cross-examined in his evidence, which he gleaned from the Appellant’s “file”, to the effect that the outstanding amount owed by the Respondents to the Appellant was R.1,574,506. He relies on Article 109 of the Commercial Code Act (“the Code”) for the proposition that “parole” evidence, as he puts it, is permissible in commercial transactions.
Article 12 (1) of the Code provides:-
“1. Commercial books, accounts and documents regularly kept, shall be admissible by the Judge as evidence between merchants in respect of commercial transactions. But the person who wants to rely upon such books may not leave out such part of the contents as is contrary to his claim.”
 In my judgment, the failure by the Respondent’s counsel to cross-examine Dilip Shah must not be taken out of context. On the contrary, the record is replete with extensive objections by Respondent’s counsel to Dilip Shah’s evidence based on the fact that the latter had no personal knowledge of the facts he was testifying to and that his evidence amounted to hearsay. In these circumstances, it cannot seriously be said that failure to cross-examine necessarily amounted to admission of Dilip Shah’s evidence.
 In any event, I consider that, notwithstanding Article 12 (1) of the Code, it was open to the trial court in the interests of justice to consider Dilip Shah’s evidence, not in isolation, but in conjunction with other credible evidence in the matter. That the trial court had a judicial discretion whether or not to admit this evidence is borne out by the provisions of Article 109 of the Code. For convenience, that Article reads as follows:-
A sale may be proved:
By an authentic document,
By a document under private signature,
By the sale note or the account note of a money dealer or broker, duly signed by the parties,
By an invoice which has been accepted,
By the correspondence,
By the accounting books of the parties,
By the evidence of witnesses admissible at he discretion of the Court.
The rules of proof contained in the first paragraph of this article shall be equally applicable to all commercial matters.”
In particular, the trial court was justified in attaching importance to the evidence of Appellant’s own witness, Alderick Benoiton on Appellant’s own procedure relating to invoices as a prerequisite to payment. Conveniently, it would seem, Dilip Shah made no mention of invoices.
 It has been submitted on behalf of the Appellant that Dilip Shah’s evidence is admissible simply by virtue of section 14 (1) of the Evidence Act, Chapter 74 which provides:-
“14. (1) Subject to this section, a statement contained in a document shall be admissible in any trial as evidence of any fact stated therein of which direct oral evidence would be admissible if –
(a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person, whether acting under a duty or not, who had, or may reasonably (sic) supposed to have had, personal knowledge of the matters dealt with in that information; and
(b) the person who supplied the information –
(i) is dead or by reason of his bodily or mental condition unfit to attend as witness.”
A proper reading of this section, however, shows that there are certain requirements which must be satisfied before documentary evidence may be admissible. These are:-
(1) that the document is or forms part of a record compiled by a person acting under a duty and who had, or may reasonably be supposed to have had, personal knowledge of the matters contained in the document,
(2) that the person who supplied the information contained in the document is dead or by reason of his bodily or mental condition unfit to attend as a witness.
It is pertinent to observe that the Appellant failed to satisfy any of the above-mentioned requirements in leading the evidence of Dilip Shah.
 The record establishes that Alderick Benoiton was Appellant’s Technical Manager at the material time. He testified that he was involved with the alleged works. Mr. Georges then asked him the following question which in turn produced a crucial answer:-
“Q: And as and when SCC (the Appellant) sent the invoices for work done, were those generally paid?
A: Yes, there were transferred (sic) made, and sometimes when Braun himself comes, you know, we normally issue the payment, when he comes.”
The above response in my view highlights the importance of producing invoices in a matter such as this. In the absence of invoices, it is not easy to conclude that there were outstanding payments as suggested in the Appellant’s plaint or at all.
 Indeed the point is driven home more emphatically in the following little exchange between Mr. Georges and Alderick Benoiton in the latter’s evidence in chief on pages 95 – 96 of the record:-
“Q: When a contract of this nature is – or, works of the nature you have described are done, over a period of time, what is the usual method for the Contractor to be paid, is he paid in one lump sum, or is he paid in instalments?
A: First, it is depending. That such work as Vacoa Village, it was a lot of jobs together. As we go on, the clients keep on giving us jobs. But normally, we sent the invoice on monthly invoice (sic), which we call it, works executed to today’s date. You know, every month, we sent a periodical invoice to the client.
Q: And he will pay?
Q: For works done to date?
The logical conclusion to be drawn from the procedure set out above, therefore, is that invoices were a prerequisite for payment. It was thus incumbent on the Appellant to produce invoices in order to substantiate its claim for the alleged outstanding payment.
 Now, Article 1315 of the Civil Code provides for proof of obligations and of payment in the following terms:-
“A person who demands the performance of an obligation shall be bound to prove it.
Conversely, a person who claims to have been released shall be bound to prove the payment or the performance which has extinguished his obligation.”
 It follows in my view, therefore that the Appellant bore the onus of proof in the matter. See Robins v National Trust Co  AC 515 at 520 (HL), Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd  AC 154 (HL). The Appellant failed to discharge such onus.
 In these circumstances, the trial court was correct in dismissing the claim on the ground of the Appellant’s failure to produce the necessary invoices for the alleged outstanding payment. Indeed, it is significant to observe that no grounds of appeal are directed at the trial court’s finding in this regard. On the contrary, probabilities are overwhelming in my view that, whatever monthly invoices were sent by the Appellant to the Respondents, these were duly met with payment. In this connection, the evidence of Alderick Benoiton referred to above is, in my view, decisive of the matter in these circumstances.
 The result is that the appeal cannot succeed and is accordingly dismissed with costs.
M. M. RAMODIBEDI
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