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
17
th
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 30
th
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 3
rd
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 1
st,
2
nd
and 4
th
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 7
th
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 23
rd
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 7
th
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 24
th
August 2007, Victoria, Seychelles