Rath vs Monthy (SCA No: 33 of 2012) [2014] SCCA 22 (22 August 2014);

 

JUDGMENT

 

F. MacGregor, President

1.               This case arose ten years ago as a result of the collapse of a retaining wall between the Respondent’s property and the adjoining property of the Appellant, at La Misere, ostensibly because of exceptionally heavy rainfall in mountainous terrain.                           

2.               The Appellant claimed damages arising from the collapse of the wall.  An agreement was reached in court between the parties and the court ordered the Respondent to repair the damages caused by the collapse of the wall. The repair

3.               of the wall did not however materialize as the Appellant claimed the conditions for undertaking the repair to the wall were not complied with whilst the Respondent claimed his workers were refused access to the Appellant’s property on several occasions and thus was not able to comply with the agreement.

4.         As a result of the wall not being repaired the Appellant filed a second suit, this      time claiming breach of contract, encroachment, trespass to property, loss of             enjoyment of retaining wall, space and privacy and moral damage. The             Respondent resisted the claim stating that the matter was res judicataas it had       been previously heard and that in any case the collapse of the wall was an act of        God, force majeure and a result of the heavy rain. He also claimed that in the        alternative the collapse of the wall was also due to the fault and negligence of the             Appellant as           the wall had been built without proper plans and expertise or             permissions from the Department of Planning.

5.         Having perused the transcript we agree that the Respondent had a point as far as   res judicata is concerned. The matter had been resolved by learned Judge       Perera.  It is unclear how the present case was entertained anew but it is certain             that it has contributed to the delay of ten years from the time of filing of the             original suit to the final determination of            this matter.

6.               In his judgment dated 31st October 2012, the learned Chief Justice held that the Appellant had neither established the cause of action nor the injury, loss and damage arising there from.

7.               The Appellant has appealed this decision on two grounds, namely:

                 (1)       The whole of the decision above-referred is wrong in law.

(2)       The learned Judge above referred wrongly appreciated the evidence on record and reached a decision which is contrary to the principles of natural justice and grossly unreasonable in all the circumstances of the case.

Ground 1

8.         We are unable to consider this ground of appeal as it is too vague and general. No    submission to enlighten this court on the legal principles challenged was advanced          at the hearing of the appeal either.  Rule 18(7) of the Seychelles Court of Appeal    Rules provides:

“No ground of appeal which is vague or general in terms shall be entertained, save the general ground that the verdict is unsafe or that the decision is unreasonable or cannot be supported by the evidence.”

         In the circumstances we dismiss this ground of appeal.

Ground 2

8.      Although couched in one ground, this ground of appeal raised three issues,            namely that:

         (1)       the evidence on record was wrongly appreciated by the trial Judge.

         (2)       the trial judge reached a decision contrary to the principle of natural                                justice.

(3)       the decision of the trial judge is grossly unreasonable in all the         circumstances of the case.

   We consider them in turn.

Evidence

9.         The only evidence adduced was the testimony of the Appellant, reproduced           verbatim by the learned Chief Justice in his judgment and clearly analysed before     he came to the conclusion that there was no imputation of fault or cause of the           incident on the Respondent. In fact it was never established who had ownership or            control of the wall. We are of the view that the trial judge is the best     judge of facts            and we can find no reason to interfere with his finding.  That part of             the ground of       appeal has no merit and is dismissed.

Natural Justice

10.    Counsel for the Appellant did not make any convincing submission on this issue.             We understand natural justice to mean procedural fairness both in the sense of the   parties being given a fair chance to argue and defend their case and also in terms            of an unbiased decision maker. We are unable to find evidence of either principle            having been breached and dismiss this part of the ground of appeal.

Unreasonable decision

11.    Counsel for the Appellant submitted that the Respondent failed to adduce any       evidence in support of his case and simply relied on “a submission of no case to         answer” which he states is a concept unknown to our civil law.  It is true that the Seychelles Civil Procedure Code makes no clear provision in civil proceedings for          the procedure used in criminal cases when the defendant elects not to call any        evidence and relies on the fact that the prosecution has not discharged its burden          of proof. However, section 134 of the Code provides:

                     “If any part to a suit to whom time has been granted  fails to produce his evidence or to cause the attendance of his witness or to perform any other   act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the          suit forthwith.”

We are therefore of the view that on this basis it can reasonably be inferred that defendants in civil suits after electing not to call any evidence are entitled to as the trial judge to rule that the plaintiff has not established a prima facie case (see Victor v Azemia (1977) SLR 195, Marzorchi v Toulon (unreported) SC (Civ           App) 37/2012). The term “no case to answer” might be infelicitous and more appropriate in criminal cases but the purpose of the procedure is the same.

12.    In the event we are of the view that it was the correct procedure adopted as, as has           been pointed out by Respondent’s Counsel no cause of action was established by       the Appellant against the Respondent. We are therefore unable to agree with         Counsel for the Appellant that the decision reached by the learned Chief Justice     was “grossly unreasonable” in the circumstances.

13.    Accordingly this appeal is dismissed with costs. 

 

 

F. MacGregor                                 S.B.  Domah                                         M. Twomey Msoffe President                                                         Justice of Appeal                                Justice of Appeal

 

 

 

Dated this 14th day of August 2014, at Palais de Justice, Ile Du Port