Eastern European Engineering Limited v Vijay Construction (Proprietary) Limited (Civil Appeal SCA 13/2015) [2018] SCCA 30 (31 August 2018);

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     F. MacGregor (PCA) , M. Twomey (J.A), B. Renaud (J.A)] .

Civil Appeal SCA 13/2015

(Appeal from Supreme Court Decision MA 61 /2015 arising in CC13/2015)

 

Eastern European Engineering Limited

 

                                             Appellant

 

Versus

 

 

Vijay Construction (Proprietary) Limited

 

Respondent

 

Heard:             21 August 2018

Counsel:          Ms. Alexandra Madeleine for the Appellant

                       Mr. Bernard Georges for the Respondent 

 

Delivered:       31 August 2018

 

JUDGMENT

 

M. Twomey (J.A)

 

Background

1. The parties in this appeal are engaged in a multiplicity of legal actions against each other over alleged breaches of building contracts concluded between them. In March 2015, the Appellant filed a plaint against the Respondent seeking a declaration that the latter comply with the determination of the International Chamber of Commerce of the International Court of Arbitration in Paris, France delivered on 14 November 2014 in relation to these breaches of contracts. The Defendant in its statement of defence denied the Appellant’s claim.

2. The Appellant subsequently applied for provisional attachment and provisional seizure of the Respondent’s property pursuant to section 280 of the Seychelles Code of Civil Procedure, which application was resisted by the Respondent.

The Grounds of Appeal

3. The learned trial judge, Robinson J refused the application and it is this decision which is presently appealed on the following two summarised grounds:

  1. The learned trial judge was wrong to stipulate additional criteria not required by law for the issue of an order for provisional attachment and seizure.
  2. The learned trial judge erred in finding that motor-vehicles are not susceptible to provisional attachment and seizure.

Ground 1 – Requirements for an order of provisional seizure or attachment under Articles 280 and 281 of the Seychelles Code of Civil Procedure.

4. The prerequisites for obtaining an order of provisional seizure and/or attachment are laid down in Article 280, 281 of the Seychelles Code of Civil Procedure, which provide:

Article 280: At any time after a suit has been commenced, the plaintiff may apply to the court to seize provisionally any movable property in the possession of the defendant in the suit or to attach provisionally any money or movable property due to or belonging to the defendant in the suit, which is in the hands of any third person. The application shall be by petition supported by an affidavit of the facts and shall be signed by the plaintiff or his attorney, if any, and shall state the title and number of the suit.

Article 281: If the court is satisfied that the plaintiff has a bona fide claim, the court shall direct a warrant to be issued to one of the ushers to seize provisionally such property, or shall make an order prohibiting the third person in whose hands such money or other movable property is from paying such money or delivering such property to any other person pending the further order of the court. The order shall be served on the third party by an usher of the court. The court, before any such warrant or order is issued, may require the applicant to find such security as the court may think fit. (emphasis added)

5. Seychellois jurisprudence has interpreted Articles 280,281 of the Seychelles Code of Civil Procedure to include an additional requirement of “urgency” based on a purposive interpretation of the respective provisions, cf. Eastern European Engineering Limited v. Vijay Construction (Proprietary) Ltd (unreported) MC 275/2012 arising in CC28/2012, delivered on 28 March 2013 and Zaccari v André (16 of 2008) [2008] SCSC 37.

6. Pursuant to this interpretation, the respective provisions can only be invoked in cases in which the basis for the claim is at stake, i.e. where the provisional measure is necessary to protect the respondent’s assets from the risk of disappearance or diminution in value. Egonda-Ntende C.J in Eastern European Engineering Limited (supra) opined that such a restrictive interpretation was necessary to prevent abuse, as the defendant’s assets could otherwise be sequestered for the entirety of the legal proceedings, i.e. possibly for many years at a time, despite him having “done nothing wrong” – a result that in his opinion would be “wasteful in economic terms” not only to the defendant but also to the nation as a whole.

7. Robinson J in the court a quo, following the above jurisprudence, therefore held that in order for an application under Articles 280, 281 of the Seychelles Code of Civil Procedure to succeed, it must be shown “first, that there is a clear danger that the respondent may avoid satisfying an eventual judgement against it, and, second, that unless the provisional attachment or seizure is granted the petitioner would be unable to enjoy the fruits of the judgment” (see para 25 of the order of 22 July 2015).

8. The provisions of Articles 280, 281 of the Seychelles Code of Civil Procedure explicitly sets out only two requirements for an order of provisional seizure and/or attachment, namely (1) that a suit has been commenced and (2) that the applicant has a “bona fide claim”. Where these two requirements are met the Court “shall direct a warrant to be issued” (emphasis added), i.e. the Court is not granted any discretion to consider other factors in its assessment, but is rather bound by law to grant such an order(see in this context Union Estate v Herbert Mittermayer (1979) SLR 140). The only safeguard against abuse provided for in the provisions is the possibility of the court to require the applicant to provide security.

9. Counsel for the Appellant has in the main submitted that to allow the court to expand on the clear provisions of the Code would violate the rule of casus omissus. We note however that is a well-established exception to casus omissus that courts ought to purposefully interpret a statutory provision where there is a clear necessity and when there is reason given the telos of the statute. This is to avoid a literal construction of a particular provision which would otherwise lead to a manifestly absurd or anomalous result which could not have been intended by the legislature (per Danackwerts, L.J. in Artemiou v. Procopiou (1966) 1 QB 878).

10. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 Lord Denning stated:

“The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were… He (the judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language         of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature… A judge should ask     himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

11. The problem of how a statute is to be interpreted when a discrepancy between its literal interpretation and the apparent legislative intent arises was also addressed by the Supreme Court in Pool v Controller of Taxes (1977) SLR 124, in which the following passage from the English case of Luke v. IRC (1963) A.C. 557 per Lord Reid was cited with approval:

“How, then are we to resolve the difficulty? To apply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result. To achieve the obvious intention and produce a reasonable result we must do some violence to the words. This is not a new problem, though our standard of drafting is such that it rarely emerges. The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail.”

12. It is our conclusion that the above threshold of absolute incapability is not fulfilled in the case of Article 280, 281 of the Seychelles Code of Civil Procedure, and that Robinson J’s restrictive interpretation of the statutory provisions based on their telos was thus not erroneous in law, particularly considering the protection of the right to property as afforded in Article 26 of the Constitution.

Ground 2 - Whether vehicles capable of being provisionally seized or attached pursuant to Article 280, 281 of the Seychelles Code of Civil Procedure

13. The Appellant also submits that Robinson J erred in her finding that cars and vehicles are not subject to provisional seizure and/or attachment under Articles 280, 281 of the Seychelles Code of Civil Procedure. Her finding was based on an endorsement of the reasoning of the Supreme Court in Benoiton Construction Pty Ltd MA: XP 51/2014 (arising in CC 29/2013), where the Court held that the term “movable property” in the respective provisions does not refer to vehicles based on the definition of “movable property” contained in Article 533 of the Civil Code. The same reasoning was notably applied in Joseph v Payet (2003) SLR 102 and Boulsamy v Bonne CS 448/1999.

14. Article 533 of the Civil Code provides that:

“[t]he word movable used on its own in statutory provisions, or in a private document, without any other additions or designation, shall not include cash, precious stones, debts due, books, medals, scientific instruments, professional or trade tools, clothes, horses, vehicles, arms, grains, wines, hay and other produce; neither shall it include anything which forms part of the stock in trade” (emphasis added).

15. We are of the view that the reasoning applied by the Courts in the respective cases does not uphold scrutiny. While it is true that the Seychelles Code of Civil Procedure does not contain any definition of the term movable property itself, caution must be exercised when “importing” a definition from one Code to another. As Article 236 of the Seychelles Code of Civil Procedure clearly indicates, the drafters of said Code did not intend for the restrictive definition provided for in Article 533 of the Civil Code to apply within the Code of Civil Procedure.

16. Article 236 of the Seychelles Code of Civil Procedure provides that:

“[t]he following movable property may not be seized in execution: (a) things which are declared by law to be immovable property by destination (immeubles par destination); (b) the necessary bedding and wearing apparel of the judgment debtor and of his wife and children living with him; (c) the books relating to the profession of the judgment debtor, who shall have the right to select those he requires, provided they do not exceed two thousand rupees in value; (d) appliances and instruments used by persons teaching or practising science and art, up to the value of two thousand rupees, such appliances and instruments to be selected by the judgment debtor; (e) the outfit of soldiers according to rank; (f) tools of artisans such as are necessary to enable them to carry on their trade;(g) one month's supply of necessary provisions for the judgment debtor and his family living with him (emphasis added).

17. The wording of Article 236 clearly indicates that books, instruments, clothes, tools etc. are regarded as movable property despite the fact that Article 533 of the Civil Code excludes them from the definition. If the definition contained in Article 533 of the Civil Code were decisive most of the exceptions contained in Article 236 would be obsolete as the respective items would per definitionem not constitute “movable property”.

18. The restrictive definition contained in Article 533 of the Civil Code is thus not decisive for the interpretation of the term “movable property” within the Code of Civil Procedure. The term is to be interpreted in accordance with its natural or ordinary meaning (see in this respect Georges v Electoral Commission (2012) SLR 199).

19. The Oxford Living Dictionaries define “movable” as “capable of being moved” and with reference to the use of the term in the law of property as “of the nature of a chattel, as distinct from land or buildings”. Likewise the Cambridge English Dictionary defines “movable” as “able to be moved”. Vehicles are by their very nature not only capable of being moved but specifically designed for such purposes. As such they clearly fall within the scope of the ordinary meaning of the term “movable property” and can therefore be the subject of an order of provisional seizure or attachment under Articles 280, 281 of the Code of Civil Procedure.

20. The only qualification in respect of the provisional seizure of vehicles would be where vehicles are used as tools of trade, for example where the defendant’s trade or business would necessarily involve the use of his vehicle i.e. a delivery business (see article 236 (g) of the Seychelles Code of Civil Procedure.

21. The Appeal therefore partly succeeds. With costs.

M. Twomey (J.A)

I concur:.                                ………………….                                           F. MacGregor (PCA)

I concur:.                                …………………..                                          B. Renaud (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 31 August 2018