Gomme and Another v Maurel and Another (19 of 2004) (19 of 2004)  SCCA 15 (28 November 2006);
IN THE COURT OF APPEAL OF SEYCHELLES
COURT OF CIVIL APPEAL
SCA No: 19 of 2004
(represented by Gaetan Vidot) Appellants
ANTONIA HARRISON Respondents
Before: Bwana, Domah, Renaud, JJA
Date of Hearing: 21 November 2006
Date of Judgment: 29 November 2006
JUDGMENT OF THE COURT
 This is an appeal from the decision of the Supreme Court which upheld the plea in limine raised by the respondents in a plaint where the appellants had averred that the first respondent, a Notary, (defendant no. 1 in the court below) had erroneously registered only one title in Vol. V6431 in the name of the appellant but failed to register the title V 6331 when they had purchased the two plots for the sum of Rs 60, 000 and Rs 90, 000 respectively from the then owner, Antoine Collie. Later, on 11 June 1999, the latter had allegedly effected a sham transfer of the property in the name of Antonia Harisson. But this transfer was in fraud of the rights of the appellants. They prayed for an order declaring (a) that the transfer to Antonia Harisson is null and void and (b) that there has been a sale to the plaintiffs instead. They prayed for an order that the land registry rectifies its register for the purpose of giving effect to the sale to them.
 The first defendant raised a plea in limine litis in that:
the matter is res judicata;
the action is time-barred.
 The second defendant added third objection to the preliminary objection. In her plea, she averred that the plaint disclosed no cause of action against her.
 The learned Judge upheld the pleas in a fairly elaborate judgment and dismissed the plaint with costs.
 The appellant put forward a single ground of appeal: namely, that the learned Judge erred in law when he concluded that the prescription period in cases where the subject matter in dispute is immovable property is 5 years. However, the stand of learned Counsel for the respondent is to be commended for finally not objecting to further grounds being added even if his own submission prompted the motion for amendment. We shall accordingly consider all the three questions which were in issue before the trial court.
 The proceedings in the court below also raise the important issue regarding the manner in which pleas in limine should be raised and determined. To that, we shall come in due course.
 Admittedly, the Ruling of the learned Judge is well structured to answer the three basic questions raised for preliminary determination: namely, (a) res judicata; (b) prescription; and (c) reasonable cause of action. As regards (a), he found that it did not hold. As for (b), his conclusion was based on his interpretation that the facts attracted the application of article 2271 of the civil code in that “all rights of action shall be subject to prescription after a period of five years.” As regards (c), he concluded after an examination of the pleadings that the plaint did not disclose a reasonable cause of action.
 All the issues raised were seriously disputed and it was obvious that issue (a) and (b) could not have been determined without properly admissible evidence. The plea as regards res judicata was based on the fact that a judgment of the Supreme Court in case CS 215/1999 (March 2001) Gomme & Lorita Gayon vs Antoine Collie had been delivered in March 2001 which to the appellant resolved the issues between the same parties, on the same subject matter and for the same cause of action. This was not the view taken by the learned Counsel for the appellants. Also, whether the matter raised in the plaint was prescribed or not was once again a question involving facts and law: they could not have been determined on the face of the plaint and pleadings. The only issue which could have been so decided at that initial stage – without adducing evidence in support - on the face of the plaint and the meagre pleadings, is whether or not the plaint disclosed a cause of action.
 It is to us surprising that even if there is a clear statement made to the court on 4th June 2002 that the case is fixed for hearing on 7th November 2003, there is actually no hearing as such but a series of exchanges between counsel and court at the end of which there was a ruling on all the three issues. Admittedly, the ruling is quite elaborate. However, the dismissal of the plaint for the reasons given was not warranted.
 The exchanges span over some 39 pages of typescript in course of which the submissions of counsel include references to contents of documents of title and foreign papers. How they came to be admitted without the proper procedure having been followed boggles the mind when both courts and counsel were fully alive as to what was the proper procedure in the matter.
 E.E. Seaton CJ in the case of Figaro and Another v Nanon 1986 SLR 117 had this to say as regards the court’s powers to decide preliminary points of law.
“Unless it is prima facie clear that the plaintiffs have no cause of action, a court should be cautious in exercising its discretion to dismiss a plaint in limine litis.”
 We endorse that view. And we go a step further. The procedure for determination of such preliminary issues should be accorded all the serious attention it deserves. A slip at this stage may result either in a denial of justice to a justice-seeking citizen or an abuse of process against an innocent one. From the various cases which have come before this court on the manner in which such preliminary issues have been thrashed out, it seems to us that parties as well as courts are not uniform on their practice. On hearing day, parties proceed to address the court straightaway through a free-for- all type of exchanges. And the court determines in on the basis of those exchange-cum-submissions. That may not be incorrect if the point raised is a matter of pure law so that the issue may be determined with finality ex facie the plaint and the pleadings.
 However, in a good many cases, such pleas may involve matters both of law and facts. Where this is so and the facts are in dispute, there arises a need for the parties to adduce such evidence in court and the court to rely on properly admissible evidence to determine the preliminary points before allowing or denying the parties to proceed to trial on the merits.
 It is worth recall that pleas in limine may be raised at any time in course of a hearing so that nothing stops the parties to adduce some evidence with a view to determining the preliminary issues first prior to moving to the merits, if at all. It goes without saying that such points in law may also be deferred to be taken along with the merits, in appropriate cases. In order words, some may be raised ex facie the plaint and pleadings. Others will require some evidence to be adduced before the court may move to the merits, if at all. Some may best be taken along with the merits. However it be, where the objections involve considerations of both law and facts, it should be based on facts properly admitted. It is for the judge who has the control of proceedings to ensure that the proceedings move intelligibly and logically from stage to stage.
 A few instances may be helpful. There is no need for adducing evidence where the objection is that the plaint as it stands does not disclose a cause of action. That can be determined ex facie the plaint and pleadings. On the other hand, a plea of res judicata may involve formal production of the previous case in evidence, an identification of the parties, the subject-matter, the cause of action and the final result: see Pouponneau and Ors v. Janisch 1979 SLR, Corporation v. Petrousse 1987 SLR, Hoareau v. Hemrick 1973 SLR, Heirs Rouillard v. Tirant 1983 SLR, Moise v Morin 1993 SLR. In fact, at one stage in course of the proceedings in this case, it was clear to everyone that these was a need for facts to be presented to court for the determination of the points raised by respondent No. 1.
 Also, where a plea in limine succeeds, its impact on the rest of the case has, thereafter, to be determined. While it may be obvious that a successful plea on a submission that the plaint discloses no cause of action results in the case aborting forthwith, it may not be so obvious in other cases. For example, in a case where the monetary competence of the court has been successfully challenged, it may be open to the plaintiff to move the court to amend his plaint to fall within jurisdiction. Whether he is able to persuade the court in his favour, should there be an objection by the defendant, is another matter.
 The court, in its judiciousness, should accordingly ascertain the impact of a successful plea in limine on the merits of the case: whether it would lead to an out-right dismissal, a non-suit or otherwise. In this case, the objection of no cause of action was raised only by Respondent No. 2 and not by Respondent No. 1. The plaint was dismissed against both.
 From the record in the present case, it appears that the manner in which the three preliminary points were canvassed was confusing to all concerned. Matters and crucial documents relating to the fraud which should have been admitted by formal rules of procedure was given as evidence from the bar as it were.
 The plea of time-bar in the matter was a clear red herring. It is surprising how easily the court slipped into it. Unless the plaintiffs came to state that they were not interested in the property which was due to them, the regime of prescription applicable to immovable property applied and not as the judge held article 2271 which has obviously to do with prescription as it applies to movables. Such matters could not have been decided based solely on the plaint and the pleadings. Despite the ingenuous argument of Mr. Boulle, the plaint averred an action related to immovable property. The time-bar pleaded was one related to movables. Since there was dispute on that the appellants’ evidence would have been crucial to determine what was what. However, on the face of the plaint, the plea could not by any stretch of imagination have succeeded. One can only sympathize with the supplication of counsel for the appellants who submitted: “the court cannot give a ruling on the plea in limine now, it is premature. The court has to hear this matter. The court has to have cognizance of all the evidence before the court can make a proper ruling in this case.” He was right.
 From the record it seems to us that when parties realized that they could not make any headway without some evidence being ushered in, they decided then to abandon the issue of res judicata and prescription and shift to deal with that of absence of cause of action.
 Did the plaint ex facie disclose a cause of action? The appellants alleged in their action that the first respondent “erroneously registered only title No. V6431 in their joint names and omitted to register the said title No. V 6331 in their names”. They also averred against him that he made a mistake when he did so. With the material dates and facts indicated, they averred that when the original owner, one Mr Antoine Collie transferred the property title No. V 6331 in the name of the 2nd respondent, the transfer was a sham and a fraud.
 We confess our inability to follow the reasoning of the learned Judge when he stated as follows:
“After a careful examination of the pleadings in the plaint, ….. I too find that the plaint in this matter does not disclose a reasonable cause of action not only against the 2nd defendant for the alleged fraud but also against the first defendant for the alleged mistake.”
 He accordingly upheld the plea in limine raised and dismissed the plaint forthwith.
 We fully subscribe to his view that plaints should be properly drafted and should contain all the material facts on which a plaintiff relies to pursue his action. The plaint in this case is certainly not a model of what a plaint should be. However, from those to decide that it does not disclose a cause of action, averring error, mistake or fraud is a decision hard to digest. It does disclose a cause of action.
 We, accordingly, allow the appeal, overrule the decision of the Learned Judge on the plea in limine.
 We, therefore, remit the case to the Supreme Court with a direction that it proceeds to hear the case mindful of all the remarks we have made above as regards the procedure and the law applicable with costs.
S. B. DOMAH
JUSTICE OF APPEAL
I concur: …………………………………….
S. J. BWANA
I concur: …………………………………….
JUSTICE OF APPEAL
Dated this 29 November 2006, Victoria, Seychelles