Barbe v Hoareau (114 of 2000) [2007] SCSC 46 (31 December 2006);

 

KEVIN BARBE …...............................................................................................Plaintiff

 

VS.

 

JULES HOAREAU …......................................................................................Defendant

 

Civil Side No. 114 of 2000

 

 

Mr. Bonte for the Plaintiff

Mr. W. Lucas for the Defendant

 

JUDGMENT

 

Gaswaga, J

 

Kevin Barbe, the plaintiff filed this suit against Jules Hoareau of Sweet Escote, Anse Royale, Mahe for prayers that the defendant pays him the sum of SR127, 000/- (covering loss of revenue of SR77, 000/- and moral damages of SR50, 000/- with interest and costs of the case. He also sought an order for the defendant to return the plaintiff’s pickup with immediate effect. In his amended defence the defendant denies each and every allegation in the plaint and avers that the plaintiff will accordingly be put to strict proof thereof. The defendant then goes ahead to file a counter claim dated 30th September, 2005 wherein he prays this Court to be pleased to enter judgment and make the following orders;

 

  1. That the Defendant refunds to the Plaintiff the sum of SR40, 000/- with interest from the date the vehicle was registered and the Defendant retain the vehicle.

  2. To order the plaintiff to transfer the pickup S8973 to the Defendant including rectification on Insurance Policy.

 

  1. To dismiss the claim raised in the plaint.

 

  1. That each party bears its own costs.

 

Mr. Bonte appearing for the Plaintiff filed a reply to the counter claim dated 9th May, 2006. In the said reply to counter claim he repeated paragraphs 1 to 5 of the plaint and concluded with a prayer to the Court to dismiss the counter claim with costs.

 

On the 21st June, 2006 Ms. Domingue who stood in for Mr. W. Lucas representing the defendant informed the Court that the defendant was seeking to settle this case. When the matter came up for mention on the 28th July, 2006 Mr. W. Lucas intimated to Court that his client was nowhere to be found and sought another mention date, which was granted and fixed for 5th October, 2006. Again the defendant did not attend Court at the next mention date of 29th November, 2006 hence leaving his case unattended since his lawyer stated that he had no instructions from his client. In fact his counsel addressed Court as follows:

 

Mr. Lucas: My Lord I used to appear for the defendant in this matter and if I am not mistaken, I had informed the court on the previous occasion that I have not had any contact with my client for some time. Despite letter, mails and phone calls he is still out of reach and I find myself without instructions continuing to represent him. So, that was my indication at the last sitting as well, and until today, I am not aware of his whereabouts. So, my application is for leave to withdraw and if leave is granted, the court should serve notice on the defendant.”

 

Indeed the leave sought was obtained and Mr. W. Lucas withdrew from the case. Leave to proceed exparte too was granted for 1st February, 2007 and the defendant notified of this date and time so that if he still wished to defend the case he could show up and or move the court to set aside the exparte order. See section 65 and 66 of the Seychelles Code of Civil Procedure, Cap 213. Although the defendant (or his counsel) did not attend the hearing on the appointed day this Court did not but considered the pleadings that were filed on the record.

 

Mr. Kevin Barbe (PW1) testified that he initially bought the pickup bearing registration No, S 8973 using loan money obtained from the Development Bank of Seychelles (DBS). The pickup and the defendant’s house were charged and pledged to DBS (Exhibit P1). That it was agreed between the plaintiff and the defendant that the defendant would drive the pickup for commercial purposes while the plaintiff was to handle the cash proceeds and thereafter share the profits equally. That after about five to six months the defendant never returned with the vehicle nor remitted any money. He however continued to service the loan though not occasionally until the pickup got involved in an accident and was written-off. It was also the plaintiff’s testimony that he paid SR80, 000/-which was outstanding on the said loan and for the insurance of the car for the first two years. (See Exhibit P2 and P3).

 

Apart from merely denying in the defence and asserting such allegations as outlined in the counter claim, the defendant’s pleadings, which stand abandoned by him, are not supported by any evidence and therefore incapable of counteracting the plaintiff’s case. Moreover, none of these allegations in the counter claim is expressly or otherwise admitted in the reply to the counter claim or by the plaintiff. A party is not entitled to relief except in regard to that which is alleged in the plaint and proved at the trial. See Etienne Gill vs. James Gill Civil Appeal No. 4 of 2004. On the basis of the above authority this Court hereby dismisses the counter claim with costs.

 

After the Court of Appeal remitting the case to the Supreme Court for re-trial the parties were at liberty to amend their pleadings and the defendant did amend but the plaintiff maintained his plaint dated 14th April, 2000.

 

The Court of Appeal order of 16th November, 2004 states;

 

In the particular circumstances of the case, and in order to meet the ends of justice, this Court remits this case to the Court below and order a re-trial by another Judge to adjudicate on the issue of the Plaintiff’s claim of SR127, 000.00 and the return to him of the pickup, as well as other related and appropriate issues that the parties, if so advised, may raise in amended pleadings.”

 

It was held in Tirant vs. Banane (1977) SLR No. 49 p.219 that in civil litigation each party must state his whole case and must plead all facts on which he intends to rely, otherwise he cannot at the trial give evidence of facts not pleaded, and the defence of an act by a third party not having been pleaded could not be considered.

 

Further, the Court in Charlie vs. Francoise (1995) SCAR, while reversing the decision of the Court below held that the system of justice does not permit the Court to formulate a case for a party after listening to the evidence and to grant relief not sought in the pleadings.”

 

This Court now notices that during examination-in-chief of the plaintiff some evidence outside the pleadings was introduced and not objected to. A wealth of authorities including that of Equator Hotel vs. Ministry of Employment and Social Affairs, SCA No. 8 of 1997 and the above two carry the view that such unpleaded evidence cannot be acted upon by a judge while finally determining the case before him because it does not have the effect of translating itself into pleadings (or evidence). Accordingly, the plaintiff’s further prayer of “grant of SR3, 500/- from March, 2000 to date” based on the continued use of the pickup without remitting the proceeds is “ultra petita” and must fail. Admittedly the pickup, though damaged as a result of an accident, has been returned to the plaintiff who now drops his demand for the same.

 

Like I stated in Marie Lise Berghof & Ors vs. Air Seychelles Ltd & Ors CS. No. 239 of 2003, where damages are claimed one of the duties of counsel should be to put before the Court material that would enable it to arrive at a reasonable figure by way of damages. A claim of SR50, 000/- was only made in the plaint without any substantiation. Counsel did not execute this duty hence entirely leaving it to the Court. It could be gathered from the record that the plaintiff was disturbed and stressed when the defendant went away with the pickup, stopped communicating with him and was not remitting the monies collected. He also stopped servicing the loan which burden immediately fell on the plaintiff’s shoulders. More inconvenience and loss was faced when the pickup was crashed and written off before being returned to the plaintiff who had to engage and pay for the services of a lawyer to pursue the defendant and subsequently institute this suit. I find a sum of SR20, 000/- to be suitable award in the circumstances.

 

The plaintiff claims loss of revenue of SR77, 000/- for 22 months (from June, 1998 to April, 2000) calculated at SR3, 500/- per month. That for all this time till filing of the plaint the defendant was executing some commercial contracts on his own and retaining the proceeds thereof.

 

On the uncontroverted evidence before the Court judgment is entered in favour of the plaintiff as against the defendant in the sum of SR. 77, 000/- representing loss of revenue from June, 1998 to April, 2000 as pleaded. The plaintiff is also awarded moral damages of SR20, 000/- with interest thereon and costs of the suit.

 

 

 

 

 

D. GASWAGA

JUDGE

Dated this ……….day of …………, 2007.