Georges v Georges (CS 101/2002) [2004] SCSC 43 (14 October 2004)

G

eorges v Georges

(2004) SLR 76

Frank ELIZABETH for the Plaintiff

Wilby LUCAS for the Defendant

Ruling delivered on 14 October 2004 by:

Karunakaran J: This is an application for a new trial brought by the Defendant under section 194(c) of the Seychelles Code of Civil Procedure, which reads thus:

A new trial may be granted on the application of either party to the suit, when it appears to the Court to be necessary for the ends of justice.

The background facts of the case are the following.

At all material times, the Plaintiff and the Defendant were h

usband and wife but were living apart. By a plaint dated 7 May 2002, the Plaintiff (the wife) instituted the instant suit claiming a sum of R45,000 from the Defendant (the husband) on the ground of unjust enrichment, alleging that she had contributed this sum towards the purchase of a motor vehicle, a car, which now remains in Defendant's control and possession having been registered in his name. The suit was filed on 8 May 2002. The original suit-summons was duly served on the Defendant to appear at a sitting of the Court appointed to be held on 24 September 2002. Before the appointed date the Plaintiff filed a motion dated 6 June 2002 seeking an order for an urgent hearing of the suit and for an interim injunction directing the Defendant to hand over the said car to the Plaintiff pending the final determination of the suit. Notice of that motion was duly served on the Defendant informing him of the hearing to be held on 29 August 2002. The Defendant retained Ms. Nicole Esparon, an attorney-at-law to appear before the Court as his counsel in the suit. Ms. Esparon accordingly, put up appearance on 29 August 2002 and sought an adjournment of the case, stating that the dispute between the parties was likely to be settled amicably, out of Court. The Court therefore, granted an adjournment and set the case to be mentioned on the 24 September 2002 for report as to settlement, if any by then. In the meantime, the Defendant's counsel Ms. Esparon left the Republic having handed over the brief to another legal practitioner Mr. W. Lucas. According to the Defendant, his counsel Ms. Esparon did not inform him of her departure or of her decision to transfer the brief to Mr. Lucas. Obviously, without any instruction from the Defendant, Mr. Lucas put up appearance in Court on the 24 September 2002 on behalf of the Defendant and proceeded to have the hearing of the suit fixed for 5 March 2003. At this juncture, I should mention that the pleadings were not even complete by then. In fact, the Defendant had not filed his statement of defence, when both counsel jointly applied to the Court for a hearing date. I should pause here to observe that counsel owes a duty not only to his client to have the hearing of the case fixed at the earliest date possible to avoid undue delay, but also owes a duty to the Court in that, the counsel ought to ensure that the pleadings are complete before he or she applies to the Court for a hearing date, so as to save its precious time against unnecessary adjournments being sought at the last minute on technical grounds. Be that as it may. On the 5 March 2003, at the eleventh hour as and when the case came up before the Court for hearing, Mr. Lucas appeared and informed the Court thus (in verbatim):

My Lord, in September last year I was still standing in for Ms. Esparon. I have never met the client until today. I am not competent to proceed with the hearing today because I have no instructions whatsoever. I need to ask leave to withdraw from this case.

Therefore, the Court granted leave for Mr. Lucas to withdraw his appearance from the case. Mr. Elizabeth, learned counsel for the Plaintiff swiftly applied for leave to proceed ex parte against the Defendant and hear the case the same day. However, the Court declined to hear the case the same day and made the following order:

We should be fair and give notice to the Defendant. Ex parte hearing will only be allowed after due notice has been served on the Defendant. Since the Defendant is absent, I grant leave for the Plaintiff to proceed ex parte on 30 March 2003 at 1.45 p.m. However, the Defendant should be notified of the date as well as of the order for an ex parte hearing.

On the day appointed for hearing, the Defendant was not present and the Plaintiff was allowed to adduce evidence. On the strength of the untested evidence the Court proceeded to give ex parte judgment for the Plaintiff in the absence of the Defendant. I should also note here that despites Court's order, no notice has been sent to the Defendant informing him of the ex parte hearing presumably, due to inadvertence on the part of the Registry.

In the circumstances, the Defendant has now come before this Court for a new trial within the statutory period of three months from the date of the judgment in terms of section 196 (b) of the Seychelles Code of Civil Procedure.

I diligently perused the entire record of proceedings and the affidavits filed by the parties in support of and opposing the motion. I gave due consideration to the submissions made by the counsel on both sides. Firstly, I note that the circumstances, which led to an ex parte hearing in this matter, were not within the knowledge and control of the Defendant nor was he responsible for the change of counsel that took place behind his back. It is unfortunate to note that the counsel, whom the Defendant had originally retained for services, failed in her ethical duty as she has left the Republic without handing over the case file to her client and more so she did not even inform him or even the Court for that matter, of her departure from the jurisdiction. This has obviously resulted in an ex parte judgment being entered against the Defendant, for no fault of his own. In considering the ethical duty of a legal practitioner nothing is more important than protecting the interest of his or her client. However, in passing, I would like to remind the members of the Bar that the threefold duties of a practitioner in a civil case is set out with admirable clarity in the speech of Lord Reid in the renowned case of Rondel v Worsley [1967] 3 All ER (HL) at 998 and 999 thus:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests (emphasis added).

Coming back to the present case, as rightly held in Naiken v Pillay (1968) the principles of natural justice require that a Defendant should have reasonable opportunity to be heard, and in the case of non-compliance by him with a rule of procedure, he should not be deprived of that opportunity, unless his behaviour, or the nature of the defence he is endeavouring to put forward, indicates that he is making an abusive use of Court procedure, or that he has no material ground of defence.

Applying the same yardstick to the facts of the instant case, I find that the principles of natural justice – audi alteram partem – dictate that the Defendant should be given a reasonable opportunity to be heard on his defence in this matter. Obviously, the Defendant's behaviour does not indicate that he is making an abusive use of the Court procedure in this matter.

In view of all the above, I hereby set aside the ex parte judgment dated 31 March 2003 entered in favour of the Plaintiff in this case and order a new trial as it appears to be necessary for the ends of justice. Hence, I allow the Defendant to file his statement of defence so that the case may proceed on the merits. However, I order the Defendant to pay to the Plaintiff the costs, which the latter has so far incurred in this matter.

The application for new trial is accordingly, granted.

Record: Civil Side No 101 of 2002