Marie v Thomas and Others (21 of 2006) (21 of 2006) [2007] SCCA 6 (23 August 2007);

3


IN THE SEYCHELLES COURT OF APPEAL



YANDRO MARIE -Appellant


v.s


METHILDE THOMAS & Ors ­-Respondent


SCA No: 21 of 2006

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

Before: MacGregor,P., Hodoul, Domah, JJA


Counsel: Mr. F. Elizabeth for Appellant

Mr. Charles Lucas for Respondents



J U D G M E N T



MacGREGOR, P.,


This appeal is against a judgment of Renaud J., of Supreme Court dated 17th November 2004 wherein he ordered a new trial.


The matter below concerned seeking a new trial of an application declaring that the then Petitioner, now Appellant, made, claiming that he was entitled in the inheritance of one Joseph Michelin Marie (deceased)). The Supreme Court made an order on 30th October 2002 (Cs165/00) page 15 of the record here declaring the then Petitioner now Appellant is entitled to a half share of the property of the deceased along with the 3rd Respondent in the original petition. That Court remarked in the exact words of the Learned Judge cited as “however it has been submitted that the 1st, 2nd and 4th Respondents have not been acknowledged by the said deceased.” There was, however, no adjudication or other pronouncement as such excluding them as heirs.


There is only one ground in this appeal and that is that the Learned Judge erred in law in his findings that “… I find and hold that the uncontroverted affidavit of the Petitioners satisfies the requirement of sufficient written proof of the day that new evidence was discovered and I set this date as 7th May 2003 …”


The Appellant counsel argues that there was no written proof of the discovery of new evidence yet in his heads of argument at P2, he says “section 197 clearly requires” “…written proof of the day on which … new evidence shall have been discovered.” “It is submitted that in the absence of such written proof either by way of pleadings through an affidavit or otherwise, an application based on the ground of new evidence having been discovered to justify an application for a new trial cannot succeed in law” he argues “either by way of pleading through an affidavit or otherwise.”


In the present case before us, this is precisely what the Respondent did and I find there was an affidavit which, in the present case, is also evidence on oath. I find it was logical and made sense to date that evidence as of the date of affidavit.


Again in the appellant’s Head of Argument, the fact that the mother of Respondents knew cannot be necessarily attributed to the Respondents nor does her knowledge of the deceased having declared that the Respondents are his children mean in the circumstances of a new trial that she understood those court proceedings as evidence that could be used in an application for new trial.


I also take note of the proceedings below where nowhere is it contested that the Respondents are heirs of the deceased in question. In fact the Appellant then Petitioner in his petition of 23rd June 2000, on the record at B1 and B2 specifically cites the Respondents in this appeal as the Respondents in that petition. It goes on in paragraph 2 of that petition to specifically plead that the Respondents are the daughters and sons of the said Joseph Michelin Marie (the deceased – my insertion) and the remaining heirs to the Estate.


I also note that the material petition and supporting affidavit of Respondents dated 7th May 2003 at page E1 and E2 of the record was never questioned, denied or objected to. Instead it is only met with a plea in limine that only raises the issue that the matter is time barred. I am of view that as the material affidavit was not itself controverted, the Learned Judge below was right in relying on it to take the decision he took.


I would dismiss this appeal with costs to the Respondents.



…………………………………….

F. MacGREGOR

President



I concur: …………………………………….

J. M. HODOUL

Justice of Appeal



I concur: …………………………………….

S. B. DOMAH

Justice of Appeal



Dated this 24th August 2007, Victoria, Seychelles