Vandagne Plant Hire Ltd v Camille (SCA 03/2013) [2015] SCCA 17 (17 April 2015);

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     S. Domah (J.A) , A. Fernando (J.A) , J. Msoffe (J.A) ]

Civil Appeal SCA 03/2013

(Appeal from Supreme Court Decision 29/2012)

 

Vandagne Plant Hire Co. (Pty) Ltd

 

Appellant

 

 

Versus

 

Anne Camille

 

 

Respondent

 

 

 

Heard:             08 April 2015

Counsel:          Mr. Pesi Pardiwalla for the Appellant 

 

 

                        Mr. Frank Elizabeth for the Respondent 

 

Delivered:       17 April 2015

 

JUDGMENT

 

S. Domah (J.A)

 

 

  • The respondent had contracted the appellant builder to construct a driveway for her. She had employed an Engineer who prepared a plan and, thereafter, obtained the approval from the planning authority to proceed with the construction. Her Engineer supervised the construction. On completion, the driveway was accessible by some vehicles but not all. 
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  • She brought an action against the appellant builder for defective construction and for breach of an agreement by it that it would undertake the remedial works, and claimed SRs90,000 damages in a case before the Supreme Court. The latter denied that the construction was defective and averred that  it has been according to plan and that it  had abided by the directives given by her Engineer as to direction, gradients and elevation as well as such specific instructions as had been given by him who had all along supervised the works. It also denied that it had at all undertaken to make good any defect at his own cost.
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  • The learned Judge, having heard the employer, the planning authority and the defendant decided that the appellant was 80% at fault, and the Engineer – who was not a party to the case and purported to be a witness who had never been called - 20% liable. He awarded damages to the respondent in the sum of SR72,000.
  • The appellant builder has put up 4 grounds of appeal, as follows:
  • The learned Judge erred in finding that the driveway was not useable, in that this finding is not supported by the evidence adduced in the case.
  • The learned Judge erred in rejecting the evidence of the Appellant on the matter of whether the driveway could be used or not and dismissing it as being “self serving.”
  • The learned Judge erred in law in that he used the wrong principle in awarding damages.
  • The learned Judge erred in awarding damages the totality of the damages claimed by the Respondent in her plaint and failed to carry out a proper assessment of the damages as required by law.
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  • The respondent has cross-appealed on the single ground that the learned judge erred when he considered contributory cause/fault/negligence and consequently reduced the award of damages by 20% since the same was not pleaded by the Appellant.
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  • GROUNDS 1 AND 2
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  • Grounds 1 and 2 have to do with the learned Judge’s appreciation of the evidence. The rule needs hardly any citation that the Appellate Court will not interfere with the trial judge’s appreciation of evidence: see Charles Ventigadoo v Government of Seychelles, Leading Cases of Seychelles 1988 – 2010, p. 293; SCA 20(a) 2006.  In this case, however, the submission of learned counsel for the Appellant, Mr Padiwala, is that the judgment is flawed because the very first question which the learned judge asked himself for the purposes of determining this case was incorrect so that the conclusion he reached could not be correct.
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  • As it is, the learned judge proceeded to ask himself three questions as follows:
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  • “1. Was the driveway constructed by the defendant defective in that it was not a viable motorable access?
  • 2. If so, was the defect caused solely due to the breach of contract by the defendant in that he failed to adhere to the breach of the approved plan …?”
  • 3. What is the extent or degree of such contributory cause or fault or negligence, if any?
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  • Mr  Padiwala referred us to several parts of the evidence and the judgment which tended to show that what the respondent had been complaining about is that the road was too steep; that some vehicles were able to climb the gradient but some were unable to do so; that even the vehicle of the planning authority officer, Mr Joel Philoe, “was unable to climb up the steep driveway, while he went on site.”
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  • In fairness, we would grant the learned Judge the logic of the fact that if there was no defect in the first place, there would have been no case. He wanted to ensure first that there was a defect before he could ascribe responsibility for the defect to anyone at all. We are unable, therefore, to go along the submission of Mr Padiwalla on this score.
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  • Even the second question the learned Judge asked, in our view, has been rightly asked:  whether the defect caused was solely due to the breach of contract by the defendant in that he failed to adhere to the breach of the approved plan.
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  • However, the crux of the matter in the case lies in whether the learned Judge correctly answered the correct questions he put to himself. It relates to the issue of the cause of action. While he recited same, we are unable to see that he properly addressed his mind to same. There were two causes of action. One was found at paragraph 5 of the plaint with summons which read:
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  •                         “The plaintiff avers that despite several attempts and entreaties by the engineer to the Defendant’s Director while on site to contain the works as per the pegged demarcation site and to stick to the gradient as per drawings, the latter persistently refused to do so.”
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  • The engineer mentioned above is the respondent’s engineer. He was a key witness in the case. It is on record that learned counsel for the respondent was aware of the value of his evidence and did state that he would come to depose to that effect. Unless evidence was led by the respondent as regards the engineer’s attempts and entreaties which were purportedly dismissed by the appellant’s Director on site, the case on this score would not stand. And the best evidence was that of the Engineer himself who should have come to give such evidence.
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  • As it is, the Engineer never came to adduce that crucial evidence. Hence, the averment that he had made several attempts and entreaties to the appellant but that the latter had persistently refused to abide by the drawings remained unsubstantiated. As opposed to this, we have the evidence of the appellant’s Director, that he had followed the plan and the directions given by the Engineer. The evidential burden had shifted upon the respondent to make her case.  
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  • We have perused her evidence which is characterized by contradiction and implausibility. At one stage we read her saying that when she complained to the Engineer, the latter told him that the road was fine. At another stage, we read her  saying  that the Engineer told her that the builder had not followed his instructions in the matter. In the result, the only evidence we are sure about is that the built driveway ended up by being too steep and only some vehicles were able to make it to the top.
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  • On what real evidence did the learned Judge rely to come to the conclusion that the respondent had proved her case is little perceptible on record. It would appear that he heavily relied on the ex post facto report of the Planning Authorities which concluded that the construction was not according to plan. The risks involved in relying on that report for the truth of what it stated and the conclusion it reached are multiple. Mr Joel Philoe who came to produce it and depose on it was not the one who had prepared it. He admitted that he had no knowledge of the facts while the construction was going on. On the crucial question of whether the gradient was within the norms, he stated that it was 1 to 4.3. When questioned further on how he came to that conclusion, his answer was that it was visible. He conceded that such a measurement can only be done by an instrument but that the Authorities had not used the instrument. The monitoring had not been done by him in the case but by another officer, Mr Derrick Marie, who no longer works at the place. The latter was not called as a witness to depose and subject himself to cross examination. The authorities are expected to do the monitoring work after the commencement notice.
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  • Mr Joel Philoe also expressed some doubts on the content of the report. He, for one, blamed the contractor. The conclusion in the Report is that the fault is that of the Engineer who failed to supervise properly and that of the contractor who did not issue a reinforcement notice. Obviously, it is a case of the Planning Authorities blaming the Engineer and the respondent blaming not on the Engineer but the contractor who, for his part, is saying that he followed the instructions of the Engineer.
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  • The other flaw in the report, with respect to its probative weight, is that it is issued by the Planning Authorities in 2009 when it should have been issued soon after completion in 2007. In fact, there is no issue of a report after completion of construction despite the fact that the respondent stated that she complained to the authorities after a month. As per the correspondence Mr Nelson Bristol was expected to monitor the work from the commencement notice duly issued by the contractor till the completion. But the report shifts the blame squarely on the shoulders of the Engineer and concludes that “clearly, there was a lack of supervision” by him. He further blames him from not issuing reinforcement notice. He relies on the supposed conduct of the Engineer rather than on the facts and figures as he found them on site to conclude that there was no compliance with the approved plan: a conclusion as unscientific and subjective as belated and compromising from the part of an authority which was expected to be monitoring the project.
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  • Mr. Joel Philoe states that the reinforcement notice is issued by the Engineer. The report lays the blame of that supposed omission on the contractor. The learned Judge laid that responsibility upon the contractor before saddling it with liability. The learned Judge relies basically on the content of the report without addressing his mind to the conflict in the evidence as regards the chain of responsibility properly resting on the various players in such a project: namely, the contractor, the engineer, the monitoring officer and the planning authority.   
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  • On the cause of action as formulated in the plaint at paragraph 5, therefore, this is our conclusion. While the court may have asked the right questions, those two questions were not properly answered with regard to the facts in evidence.
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  • Mr F. Elizabeth pointed out to the second cause of action in the matter, formulated at paragraph 8 of his plaint. On this aspect, the case of the respondent was that the appellant had agreed to do remedial work on the driveway at its own cost. Evidence was led of the fact that the parties had liaised on the problem of the steepness of the driveway and a substitute plan was prepared and approved by the Authorities. There was also a quotation of how much the remedial work would cost. However, appellant’s Director denied that he had at all agreed to undertake remedial works at his own cost. Had there been such an agreement, there would have been no quotation, has been the submission of the appellant. That makes complete sense to us. Besides, procedurally, evidence should not have been allowed for such an oral agreement unsupported in writing.  On this aspect of the case, the appellant should have been called on his personal answers.  
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  • A number of dissatisfactions may be noted in the version of the respondent on this aspect of the case as well. We have it on record that the respondent paid the builder a month later. Asked whether she would have paid him at all, and a month later at that, if there was a complaint of defective work, her answer was that, on the day of payment – which was one month later - it was raining. The husband tried to drive up that road and the contractor stated that the road was slippery and later it will be OK. That is little credible. It cannot be that only one month later, one would realize that the driveway constructed is very steep.
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  • The existence of the substitute plan throws another doubt on the narrative of the respondent. If the work was not done according to the first plan, all that had to be done was to show where the work was not done according to plan and stick to the plan and not to draw up another.  There was no need for a substitute plan. It is more logical to assume that the substitute plan was for a re-construction rather than a re-adjustment.
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  • The evidence is clear that it was the engineer’s responsibility to ensure that the work was done according to plan.
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  • It is eloquent that in the Quotation submitted by the respondent (P5), the title is reconstruction and the works to be done are suggestive of a reconstruction not as per the previous drawing as such but as per new drawing attached.
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  • In the light of the above, we agree with the submission of learned counsel for the appellant that there is very little evidence on which the court could have come to the conclusion that, if fault there was, the responsibility lay on the shoulders of the appellant when there were other persons involved in the supervision and the monitoring and all that the builder had to do was to follow expert advice of the Engineer under the monitoring responsibility of the Planning Authorities. 
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  • In the light of the above, we take the view that there is merit in Grounds 1 and 2. They succeed. The learned Judge, on the evidence could not have come to the conclusion that, supervised as the appellant was by the respondent’s Engineer and monitored as he should have been by the Planning Authorities, he was in any way to blame in the construction of the road which, on his evidence, he carried out according to plan submitted, if with the slight deviations indicated by his Engineer who was no other than the agent of the Appellant in charge of the project.
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  • The learned judge should have addressed his mind properly to the chain of responsibilities that rested on the various persons based on the facts in evidence before coming to the conclusion he did. He did not do that.
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  • GROUNDS 3 AND 4 AND THE GROUND IN THE CROSS APPEAL
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  • In the light of our decision on Grounds 1 and 2 which excludes a finding of liability of the appellant on the facts as adduced in evidence, a need to consider Ground 3 and 4 which have to do with quantum does not arise.
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  • With regard to the single ground in the cross appeal, our determination has been that, on the evidence no blame could be attached to the contractor who was only the doer of the works under the professional supervision of the respondent’s Engineer and under the official monitoring of the planning authorities which seemly never took place. For that reason, the issue of quantum raised in the cross appeal falls by the wayside.
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  • RELIEF OUTSIDE PLEADINGS
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  • None the less, as a matter of law, learned counsel is correct in raising this ground, if for purposes of future guidance. In terms of procedure and pleadings, the rule bears no repetition that parties are bound by their pleadings and that they may not ask nor can the Court grant any relief which goes beyond the four corners of the plaint and the pleadings. Nor may it consider any issue any more than grant a remedy flowing from that issue when that issue was not joined by the parties in the first place. Contributory negligence in this case was never part of the plaint nor the pleadings. As such, it was incorrect for the Court to proceed to a judicial excursion for the purposes of considering,  deciding the issue of contributory negligence which had not been pleaded and granting a relief thereon: see Tirant v Banane 1977 SCA 219; Therese Sophola v Antoine Desaubin SCA 13 of 1987; Andy Confait v Sonny Mathurin SCA 39 of 1994; Equator Hotel v Minister of Employment and Social Affairs SCA 8 of 1997; Georges Verlacque v Government of Seychelles SCA 8 of 2000; Kevin Barbe v Jules Hoareau SCA 5 of 2001; Etienne Gill v James Gill SCA 4 of 2004. 
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  • Learned counsel for the appellant, indeed, rightly conceded that the Court went ultra petita on this issue. What is more surprising is that liability, even if partial, is ascribed to a party who was not a party to the case. He was not even a witness who came to depose. We have never had his version of facts. The action was directed by the respondent against the contractor and not against the respondent’s engineer. In the case of Boulle v Mohun [1933 MR 242], the Court held that contributory negligence should be first raised as an issue in the pleadings before the Court may pronounce itself thereon. This principle was endorsed in the jurisprudence of Seychelles, as early as 1977 in the case of Tirant and Anor v Banane 177 SLR 1977.    
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  • We allow the appeal for the reasons given above. With costs. A determination on the issue raised in the cross appeal does not arise in the light of our decision on liability, subject to the comments we have made as regards procedure and pleadings on matters of contributory negligence. The cross appeal is dismissed. With costs.
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  • S. Domah (J.A)
  • I concur:.                                ………………….                                           A. Fernando (J.A)
  • I concur:.                                ………………….                                           J. Msoffe (J.A)
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  • Signed, dated and delivered at Palais de Justice, Ile du Port on 17 April 2015

 

 

 

 

JUDGMENT

J. Msoffe (J.A)

 

[1]        I have read the lead Judgment of my brother Domah, J.A.  I entirely agree with him and I have signed the said Judgment.  I have decided to write this Judgment purely out of interest.

[2]        On 2/12/2012 the Supreme Court delivered a Judgment in favour of the Respondent awarding her a sum of Rs.72,000 being 80% of the total claim of Rs.90,000 prayed in the plaint being loss of use, enjoyment of the access drive; inconveniences and moral damage; extra expenses for engineer and professional services and remedial works as per substituted plan; arising from breach of a construction contract of a drive way by the Appellant.

[3]        Aggrieved the Appellant is appealing and has listed four grounds which read:-

1.         The learned judge erred in finding that the driveway was not useable, in that this finding is not supported by the evidence adduced in the case.

2.         The learned judge erred in rejecting the evidence of the Appellant on the matter of whether the driveway could be used or not and dismissing it as being “self serving”.

3.         The learned judge erred in law in that he used the wrong principle in awarding damages.

4.         The learned judge erred in awarding the totality of the damages claimed by the Respondent in her plaint and failed to carry out a proper assessment of damages as required by law.

[4]        At the same time the Respondent is cross-appealing.  It is contended in the cross-appeal that the Judge erred when he considered contributory cause/fault/negligence and consequently reduced the award of damages by 20% since the same was not pleaded by the Appellant.

[5]        At the trial it was alleged that the Respondent is the owner of Title No. H6654 situated at Pointe Conan, Mahe, which lies on the mountain side away from the public highway.  The Appellant is a licensed building contractor engaged in the business of concrete road building.

[6]        In March 2007 the parties entered into a contract to build a concrete driveway pursuant to an approved plan and a drawing drawn by Patrick Amade, a licensed engineer, for a consideration of Rs55,000.

[7]        The agreed work was executed between 29/3/2007 and 31/4/2007.  The Respondent’s case was that in executing the work the engineer usually visited the site for supervision.  And that despite several attempts and entreaties by the engineer to the Appellant while on site to execute the works as per the pegged demarcation site and to stick to the gradient as per the drawings, the latter persistently refused to do so.

[8]        As a result thereof, according to the Respondent, at the completion of the works it became apparent that the driveway was defective, it had not been properly routed as it had been deviated from the plan and the gradient profile was too steep.  The motorable access onto the road up to the car park space was too steep and the parking area was too high up.  As a result, the Respondent was unable to use her access by vehicle.  This state of affairs is best captured in the Respondent’s evidence appearing at page 44 of the record in explaining why she decided to sue, thus:-

“Q:       Madam, can you tell the Court what is wrong with your driveway, why have you filed this case before this Court?

A:          The problem is that we cannot use the driveway at all either as a driveway or by foot, because it is too steep, many cars have tried to climb that road but they have failed along the way.  I went to Planning Authority and they said that the driveway is too steep and that it is not according to plan, they initiate on the plan where the driveway should be corrected.”

[9]        According to the Respondent, on 7/5/2007 during a joint site visit by the officials from the Planning Authority and Mr. Amade, the Appellant agreed to remedy the work subject to a substitute plan to be drawn by Mr. Amade.  The substituted plan was submitted in July 2007 and approved in August 2007.

[10]      On the other hand, the Appellant’s case was that he built the driveway in accordance with the approved plan.  Furthermore, that throughout the construction work the Respondent’s engineer, Mr. Amade, was present and supervised the work regularly and gave directions to the Appellant.  Regarding the substitute plan the Appellant testified that it related to a different contract for which he was not liable.

[11]      In disposing of the appeal and the cross-appeal I propose to do so generally in a manner that will become apparent hereunder.

[12]      The starting point will be the averment under paragraph 5 of the Plaint.  The paragraph reads:-

5.         The plaintiff avers that despite several attempts and entreaties by the engineer to the defendant’s Director while on site to contain the works as per the pegged demarcation on site and to stick to the gradient as per the drawings, the latter persistently refused to do so.

                                    [Emphasis added.]

[13]      It turns out, therefore, that the determination of the case rested on whether or not in constructing the driveway the Appellant adhered to, or rather stuck to, “the gradient as per the drawings”.  This was the crucial issue in the case; and it is no wonder, therefore, that in determining the case the trial Judge framed the following issue:-

1.         Was the driveway constructed by the defendant defective in that it was not a viable motorable access?

[14]      In my considered opinion, the determination of the above issue depended on evidence.  In other words, this was a question of fact whose determination depended solely on the evidence on record.

[15]      With the above background in mind, the main issue in this appeal is this:-

            Is there sufficient evidence on record to show that in constructing the driveway the Appellant did not “stick to the gradient as per the drawings”?

[16]      In my appreciation of the evidence on record it seems that the parties are agreed that in determining gradient it was necessary to use “instruments”, and that in this case no “instruments” were ever used.  This assertion is best captured in the evidence of Mr. Joel Philo (PW2), an independent witness in the case, where at page 68 of the record he stated as follows, under cross-examination:-

 Q:       According to the report did you take measurement of the gradient when you visited the completed works?

A:        Usually to determine the gradient you need instruments, you can see it is steep with your eyes but to get the gradient you need the instruments to know that.

Q:        Was a proper gradient taken with proper instrument after the work was completed?

A:        Not by our department.”

                        [Emphasis added.]

[17]      Mr. Philo repeated the same point at page 72 that an instrument was needed to determine the gradient of the work in question.

[18]      It follows that in the absence of evidence of measurement of the gradient taken by “instruments” any other evidence that the gradient was steep, too steep, etc. was opinion evidence and, at best based on hearsay.  Thus, the evidence of the Respondent at page 44 (supra) that the driveway was too steep, “that the Planning Authority also said that it was too steep”, etc. was opinion and hearsay evidence unsupported by evidence of measurements taken by “instruments”.

[19]      According to the Respondent’s Attorney, in his Heads of Arguments, exhibit P3 was strong evidence to the effect that the work was not executed according to plan.

[20]      Exh. P3 was a letter written to the Appellant by Mr. Dereck Marie, Acting Senior Development Control Officer in the Planning Authority.  In substance, the letter reads as follows:-

                                                                                                Your Ref:  DC/60/07

                                                                                                Our Ref:  QA/L TR/09/111

                                                                                         Enquiries to:  Dereck Marie

                                                                                     Telephone Ext:  4518

  Date:  24th March 2009      

            Mr. George Vandagne                                                                                               

Green Estate

            Au Cap

            Mahe

            -------

            Thru’:  Secretary Planning Authority

            Dear Sir

            RE:  New Access Drive and Retaining Wall At Pointe Conan-DC/60/07 on Parcel H6653, H6652, H2027

            Reference is made to the above mentioned development.  It was observed that the construction of the access road has not been carried out according to approval granted.  It is also a fact that you have also failed to submit the mandatory reinforcement notice prior to casting of concrete.  Mr. Patrick Amade, the engineer responsible to monitor the project was written a letter dated 10th May 2007 which was copied to you.  He thereafter submitted a substitute plan approved on 6th August 2009 to remedy the construction.  (Refer to letter attached)

            Note that in view of non-compliance to the original approved plan dated 26th February 2007 you are now liable to rectify the construction to adhere with the approval granted on the 6th August 2007.  Planning Authority should be informed of every stages of the development 48 hours to implementation.

            Note that failure to comply with Planning Authority’s directives will result in further action being instigated against your license.

            Should you have any enquiries on the above, do not hesitate to contact the undersigned

            Yours Faithfully

           

            Mr. Dereck Marie

            Acting Senior Development Control Officer

            FOR: CHIEF EXECUTIVE OFFICER PLANNING AUTHORITY

            Cc: Anne Camille, Andre Toussaint, Jovanah Barreau, Ryna Bistoquet

                 Seychelles License Authority, Orion Mall, Victoria

 

[21]      In my considered opinion, the above letter poses a number of difficulties.  One, it was written on 24/3/2009, about two years or so after the work was done.  Two, Mr. Dereck Marie did not testify in the case.  Thus, the probative value or otherwise of exh. P3 was not tested by way of cross-examination, etc.  Three, exh. P3 did not negate the evidence of PW2 that in determining gradient it is always necessary to use ”instruments”.

[22]      The cross-appeal arises, inter alia, from those portions of the Judgment where the Judge found contributory negligence, thus:-

“…… Indeed, in any action for damages that is founded upon the fault or negligence of the defendant, if such fault or negligence is found on the part of the plaintiff or third party that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively……… At the same time, the fault of the plaintiff’s engineer lies in that he omitted to check the work, then and there while the work was in progress. This omission is significant enough to merit consideration as a contributory cause/fault/negligence.  The degree of contributory cause or fault or negligence on the part of the plaintiff’s engineer, in my considered view, is a 20% responsibility for the defective work.  Hence the consequential damages payable by the defendant should be reduced by 20% on the loss and damage sustained by the plaintiff in this matter.”

[23]      It is trite law that parties are bound by their pleadings.  In this case the issue of contributory negligence was not pleaded.  It was not therefore open to the Judge to disregard the pleadings and deal with an issue which was not pleaded in the first place to reach a conclusion that he thought was just and proper ? See, for instance, the case of Blay v Pollard And Morris [1930] 1 KB 311, at page 634, Scrutton, J.

[24]      In the case of Farrel v Secretary Of State [1980] 1 All ER 166 HL at page 173 Lord Edmund Davies made the following pertinent observation:-

It has become fashionable these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been many times when an insistence on complete compliance  with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated.  But pleadings continue to play an essential part in civil actions ……. for the primary purpose of pleadings remain, and it can still prove of vital importance.  That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable to take steps to deal with it.

                        [Emphasis added.]

[25]      The above point is reiterated in Vel v Knowles SCA 41/1998, 42/1998, LC 136 that a court may not formulate a case for a party after listening to the evidence or grant a relief not sought in the pleadings.  A Judge cannot adjudicate on issues which have not been raised in the pleadings.  Thus, a Judge who grants a relief not sought in the pleadings acts ultra petita ? Monthy v Esparon [2012] SLR 104.

[26]      It follows that the sums of money awarded for contributory negligence were uncalled for for want of pleadings to that effect.  In similar vein, it was not fair to order Mr. Amade to pay 20% of the claimed sum for “contributory negligence” when he was not party to the case! Indeed, he was not even called to testify as a witness in the case! In essence, he was condemned unheard.

[27]      When all is said and done, I allow the appeal with costs.  The issue raised in the cross-appeal does not really arise in view of the comments made above as regards procedure and pleadings.

 

 

 

 

J. Msoffe (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 17 April 2015

 

 

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