Gomme and Another v Maurel and Another (19 of 2004) (19 of 2004) [2006] SCCA 15 (28 November 2006);



No: 19 of 2004



by Gaetan Vidot)





Bwana, Domah, Renaud, JJA


of Hearing
: 21 November 2006

of Judgment
: 29 November 2006


Domah, JA

[1] 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
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
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
limine litis
in that:

  1. the matter is res judicata;

  2. the action is time-barred.

[3] 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.

[6] The
proceedings in the court below also raise the important issue
regarding the manner in which pleas
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
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
was based on the
fact that a judgment of the Supreme Court in case
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.

[9] It
is to us surprising that even if there is a clear statement made to
the court on 4
June 2002 that the case is fixed for hearing on 7
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
was not warranted.

[10] The
exchanges span over some 39 pages of typescript in course of which
the submissions of counsel include references to contents
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
and Another v Nanon 1986 SLR 117
this to say as regards the court’s powers to decide preliminary
points of law.

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
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.

[13] 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
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
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
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
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
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

The court, in its judiciousness, should accordingly ascertain the
impact of a successful
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
all concerned. Matters and crucial documents relating to the fraud
which should have been admitted by formal rules of procedure
given as evidence from the bar as it were.

[19] 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
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
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
they decided then to abandon the issue of res judicata and
prescription and shift to deal with that of absence of cause of

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
averred against him that he made a mistake when he did so. With the
material dates and facts indicated, they averred that when
original owner, one Mr Antoine Collie transferred the property title
No. V 6331 in the name of the 2
respondent, the transfer was a sham and a fraud.

[22] We
confess our inability to follow the reasoning of the learned Judge
when he stated as follows:

a careful examination of the pleadings in the plaint, ….. I
too find that the plaint in this matter does not disclose
reasonable cause of action not only against the 2
defendant for the alleged fraud but also against the first defendant
for the alleged mistake.”

[23] He
accordingly upheld the plea in limine raised and dismissed the plaint

[24] We
fully subscribe to his view that plaints should be properly drafted
and should contain all the material facts on which a plaintiff
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

[25] 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.




concur: …………………………………….



concur: …………………………………….



this 29 November 2006, Victoria, Seychelles