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Paul Chow vs Heirs Josselin Bossy (Criminal Appeal CR SCA 8 of 2011, Criminal Appeal CR SCA 18 of 2011)  SCCA 34 (07 December 2012);
Anthony F. T. Fernando JA.
1. This is an appeal against a judgment of the Supreme Court dated the 31st of March 2011, wherein the immediate rescission of the lease agreement dated 29th August 1996, with regard to parcels H1839, H1845, H1854 entered into between M.A. Josselin Bossy and the Appellant was ordered, for non-compliance with a previous judgment of this Court dated 29th November 2006.
2. The Cross-appeal filed by the Respondent to the effect that the learned judge failed to deal with the matter of unpaid rent which continues to accumulate, was withdrawn by the Respondent at the hearing
3. As per the lease agreement referred to above M.A. Josselin Bossy, the Lessor had let the said parcels to the Appellant on a 90 year lease “for the development of the property”.
4. By the judgment of the Supreme Court dated 4th March 2005 the said lease was rescinded on the ground that no development had taken place in accordance with the lease agreement.
5. On appeal by the Appellant against the said judgment of the Supreme Court to this Court, this Court held by its judgment dated 29th November 2006 “We, accordingly, amend the judgment pronounced against the appellant and give the appellant 24 months from the date of judgment to comply with the condition of developing the leased premises, failing which the lease shall be deemed to be rescinded by virtue of this judgment. We dismiss the cross-appeal for the reason set out at paragraph 3 above.”
6. On the 11th of December 2008 the Respondent to this appeal, filed application before the Supreme Court seeking an order for the rescission of the lease agreement between M.A. Josselin Bossy and the Appellant in accordance with the judgment of this Court dated 29th November 2006 and referred to at paragraph 4 above; since there had been no development of the said properties within a period of 24 months from the 29th of November 2006. It is against the judgment of the Supreme Court, in regard to this application and as referred to at paragraph 1 above that the Appellant has lodged this appeal.
7. The application dated 11th of December 2008 came to be heard before his Lordship Justice B. Renaud and the Respondent had testified before him. After his testimony Lordship Renaud in view of an application made on behalf of the Respondent had decided to recuse himself and transfer the case before another Judge. In his Ruling to transfer the case the learned Justice Renaud had stated: “In my view if a citizen or any litigant before the court has no trust or no confidence in the presiding judge and he does not feel at ease with the court which is hearing it I don’t feel in all fairness the court ought to continue with the case. Because at the end of the day whatever the decision the court will give the person might feel that he has not received justice.” The case thereafter came up before the learned Chief Justice for continuation. The learned Chief Justice continued with the hearing and delivered the judgment which is now being appealed against.
8. When the case came up before the learned Chief Justice both Counsel for the Appellant and the Respondent had agreed that the case should proceed from where learned Justice Renaud had stopped. By way of answer to the question from the learned Chief Justice as to whether they want to continue where the case was stopped or a hearing de novo; Counsel for the Appellant had said: “My Lord my position is that I want your Lordship to continue where we stopped before Judge Renaud.” He had also stated “In fact I made a motion that evidence given by the plaintiff be adopted because otherwise he would have two bites at the cherry my lord if he is given another opportunity to testify he can correct whatever evidence he has given.”
9. The Appellant had raised the following grounds of appeal in his Notice of Appeal:
1) The learned Judge erred when he failed to deal with the Appellant’s motion raising the issue of locus standi before giving judgment.
2) The learned judge erred when he gave a narrow interpretation to the word “development” in the Court of Appeal judgment.
3) The learned judge erred when he concluded that the appellant has not started a “development” on the property.
4) The learned judge erred when he failed to accord the Appellant his right to a fair hearing and proceeded without hearing the Appellant.
5) The learned judge erred when he refused to admit the documentary evidence of the Appellant to show that the Appellant had complied with the judgment of the Court of Appeal.
6) The learned judge, Bernadin Renaud, erred when he ordered a change of venue half way through the hearing since there was no ground in law for the learned judge to so order.
7) The learned judge erred when he proceeded to hear the case from where judge Renaud had left instead of hearing all the evidence de novo.
10. The Appellant in his Skeletal Heads of Arguments filed before this Court had withdrawn grounds 1 and 7.
11. We dismiss ground 6 as being without merit in view of what is stated at paragraph 7 above.
12.The Appellant had not been present in Court on the 4th of March 2011, the date fixed for further hearing of this case by the learned Chief Justice. The reason adduced by the Appellant’s counsel for the absence of the Appellant had been “My lord unfortunately my client is not available today because he is outside the Jurisdiction…” No reason has been adduced before the Court as to why the Appellant was outside the jurisdiction on the 4th of March 2011. It is clear from the record that Court’s permission had not been sought by the Appellant for being absent nor had the Court been informed of the Appellant’s inability to attend Court on the 4th of March, in advance. The Appellant had also been absent from Court on the 10th of November 2010 when his evidence was required and that, when this case was before learned Justice Renaud. Again the excuse tendered by his Counsel had been to the effect that he had to leave the country as a matter of urgency. Again no reason had been adduced before the Court as to why the Appellant had to leave the country as a matter of urgency and was outside the jurisdiction on a day fixed for the hearing of the case nor had Court’s permission been sought by the Appellant for being absent or the Court informed of the Appellant’s inability to attend Court, in advance. We are therefore in agreement with the learned Chief Justice’s refusal to grant an adjournment; continuing with the hearing of the case and giving a judgment on the basis of the evidence before him without hearing the Appellant. The reasons for the refusal to grant an adjournment, although not spelt out by the learned Chief Justice, are obvious and the learned Chief Justice cannot be faulted in regard to this decision. We therefore dismiss ground 4 of appeal.
13.Ground 5 of appeal is absolutely without merit as a perusal of the judgment clearly shows that the learned Chief Justice had certainly taken into consideration the documentary evidence tendered by the Appellant. At paragraph 15 of the judgment it is stated: “This is captured in all the relevant documents annexed by the respondent to his affidavit. SIB approval letter indicated that the Government had considered the ‘proposal’. The Town and Country Planning stated in part that, ‘hereby grant permission for the following development ‘proposal’ in your application…’The building contract stated on page 2, ‘The commencement date of the proposed project by the contractor may start during the month of October or November 2008” Paragraph 17 of the judgment shows the length to which the building contract has been scrutinized by the learned Chief Justice.
14.Counsel for the Respondent had on the 4th of March 2011 wanted to cross-examine the Appellant and hear his evidence as borne out by the record. It had been the position of the Appellant’s Counsel, as borne out by the record of proceedings on the 4th of March 2011, that all witnesses who have given evidence by way of affidavit needs to be called as witnesses because the testimony in their affidavits had to be tested. If we are to go along with the argument of the Appellant’s own Counsel, the Appellant had not put up a case before the Supreme Court by way of a defence, for he had not testified before the Supreme Court, had not made himself available for cross examination by the Respondent’s Counsel on his affidavit on the date fixed for hearing and had not challenged the contents of the Respondent’s affidavit especially on the issue that there has been no development on parcels H1839, H1845 and H1854, as ordered by the judgment of the Court of Appeal dated 29th November 2006. This alone would have sufficed for the learned Chief Justice to allow the Respondent’s application for rescission of the lease. But the learned Chief Justice had been generous to continue hearing the case and give judgment after taking into consideration the Appellant’s affidavit and his documents when the Appellant had not made himself available for cross-examination by the Respondent’s Counsel by absenting himself from court on the date fixed for hearing and without an excuse.
15. In his affidavit dated 4th December 2008, filed in support of the application referred to at paragraph 5 above, the Respondent had said that there has been no development on land parcels H1839, H1845 and H 1854 in default of the judgment of this court dated 29th November 2006, except that in land parcel H1839 the Appellant, Mr. Chow had moved a few rocks from various parts of the property into heaps. These averments have not been denied by the Appellant in his affidavit-in reply dated 14th January 2009 nor had he been present before the Court to challenge the evidence of the Respondent who testified before the Court when the case had come up for hearing on the 4th of March 2011.
16.The Appellant in his affidavit dated 14th January 2009 had stated that since the judgment of the Court of Appeal dated the 29th of November 2006 he had submitted a project for development to SIBfor approval on the 17th February 2007 and the said project was approved on the 16th October 2007”; on 14th November 2007 he submitted an application for planning permission to the Planning Authority for approval of the said project; on or around June 2008 he sought and on the 25th June 2008 obtained a quotation from MK Builders on the cost to build the said project which was R. 9,012,476.00; that since the approval of the said development he has entered into an agreement with the said contractor, namely MK Builders on the 1st July 2008 to build the said project; that the Contractor had commenced preparing the land for the said development prior to the 29th November 2009; that he had written to all the tenants on the properties to vacate the same as the project would necessarily cover lands which they presently occupy and that he had instructed his attorney to file applications for eviction against all the tenants on the property for without them vacating the said properties, he will not be able to implement his development in full. He had also averred that all his efforts to proceed with his development are being frustrated by the Respondent “who then runs to Court to complain that I am yet to comply with the Court of Appeal judgment and therefore the lease agreement ought to be rescinded”. It is clear from the documents annexed to the Appellant’s affidavit, namely SIB approval, Planning Authority permission and documents from MK Builders, they only relate specifically to parcel H1839. The Respondent had filed his application for rescission on the 11th of December 2008 and that is two years after the judgment of the Court of Appeal dated 29th November 2006 and thus there is no truth in the Appellant’s complaint that all his efforts to proceed with his development are being frustrated by the Respondent as stated earlier. The agreement with the MK Builders, referred to earlier has not been signed by either party.
17. A determination of grounds 2 and 3 requires an examination of the relevant paragraphs of the judgment of the Court of Appeal dated 29th November 2006. At paragraph 25 of the said judgment it is stated: “We, accordingly, amend the judgment pronounced against the appellant and give the appellant 24 months from the date of judgment to comply with the condition of developing the leased premises, failing which the lease shall be rescinded by virtue of this judgment.” Earlier at paragraph 23 it is stated: “….Be that as it may, the facts show that appellant’s interest in the property waned in course of time. No concrete step (pun intended) has taken on the evidence since 1996. He did not even maintain the house in which he lived in good repair.”(underlining by us)
18. We are in agreement with the learned Chief Justice when he states: “It is abundantly clear that the only efforts at development that have been shown by the respondent related to only parcel H 1839 while there has been no attempt at all to initiate development on the other 2 parcels of land mentioned in the lease, Parcels H1845 and H1854………At the time this application was made and up to the 10th of November 2010 when the applicant (present Respondent) testified in this proceeding there had been no physical development on parcel H1839. All that had taken place was the grant of approval of the project by SIB, grant of building permission by the Town and Country Planning Authority, subject to structural drawings being submitted and approved, a quotation from a building contractor and an unsigned building agreement between the contractor and the respondent.”
19.The Appellant had not annexed to his affidavit his application to the SIB for the approval of his development project. We only see the approval letter from SIB dated 16th October 2007. Therefore we are in a difficulty to place reliance on his averment in his affidavit that such application was made on the 17th of February 2007. Even if we are to believe him on this issue, it is inconceivable that that the Appellant had quietly waited for almost one year from the date of the judgment, without making inquiries from SIB as to the outcome of his application knowing very well that he had a Court of Appeal judgment to comply with. Again we find it difficult to believe that had the Appellant been interested in complying with the judgment of the Court of Appeal, he would have waited for almost 6 months from obtaining planning permission from the Town & Country Planning Authority to obtain a quotation from a building contractor. We cannot place any reliance on the Building agreement as it is not signed by any party. We agree with the learned Chief Justice’s pronouncement in relation to the building agreement that “it is a template type with hand written inscriptions made into the missing gaps. The terms of payment are incomplete with no money indicated in the gaps meant for sums of money to be paid for each stage of the project. The absence of this information makes the whole agreement suspect. …I can therefore conclude that there was no agreement to implement this project proposal, contrary to the respondent’s (present Appellant) claims.”
20. We take the view that at its best all that the Appellant had done during the entire 2 year period he was given to ‘developing the property’ was to make proposals for development and that too, at a late stage, without taking any concrete steps to developing the leased premises and thus ignoring the ‘intended pun’ on ‘concrete steps’ in the judgment of this Court referred to at paragraph 16 above. We have no hesitation in holding that the Appellant has failed to comply with the judgment of this Court dated 29th November 2006 in developing the leased premises. We therefore dismiss the appeal with costs to the Respondent.
A. F. T. Fernando
Justice of Appeal
S. B. Domah
Justice of Appeal
Justice of Appeal
Dated this 7th day of December 2012, Victoria, Seychelles.