Famulari v Fagitien Estate (Pty) Ltd (8 of 2007) (8 of 2007) [2008] SCCA 1 ([node:field-jdate]);

2


IN THE SEYCHELLES COURT OF APPEAL



ENRICO FAMULARI -Appellant


v.s


FAGITIEN ESTATE (PTY) LTD -RESPONDENT


SCA No: 8 of 2007

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


Counsel: Mr. Lablache for Appellant

Mr. Bonte for Respondent



J U D G M E N T


McGREGOR, P.,


In the matter before the hearing started Respondent’s counsel raised a preliminary objection in that he had not received the Heads of Arguments from the Appellant’s Counsel.


Appellant’s Counsel responded by saying this was not necessary in his case as it was not an appeal he was dealing with but leave to appeal out of time. This was to him like an interlocutory application towards an appeal. Hence no requirement for the Heads of Argument per Rule 24.


The court reserved its ruling on the objection and arguments to pronounce itself later.


As this matter concerns leave of the court and has been pleaded and presented as such, we need to distinguish between special leave and leave out of time, although in the present matter, applicant has drafted his motion as special leave to appeal out of time. Despite the wordings, I believe this matter is essentially to do with leave out of time as opposed to a leave case not concerning being out of time.


Rules as to Heads of Arguments, Rule 24(1)(a) refers to the “Appellant”, and appeal in the Interpretation Section Rule 2 refers to appeal as “includes revision, review, reference, case stated and point of law reserved.”


What we may have treated as the appellant in this matter in fact cited succinctly itself as “in the Matter of an Intended Appeal” and cited himself as the “applicant”.


In those circumstances and in view of his reason for application to appeal are stated in his attached affidavit, and in view of Rule 24 as to Heads of Arguments does not apply to him, accordingly this application may proceed as pleaded and will be taken up in the next session of the Court of Appeal.



……………………………. ……………………………. …………………………..

F. MACGREGOR S. J. BWANA J. M. HODOUL

President Justice of Appeal Justice of Appeal



Dated this 24th August 2007, Victoria, Seychelles.