Pierre (born Timonina) v Attorney-General & Ors (CS 241/2008)  SCSC 34 (11 September 2008);
IN THE SUPREME COURT OF SEYCHELLES
Mrs. Yulia Pierre (born Timonina) 1st Plaintiff
Mr. Gaetan Patrick Pierre
(both electing legal domicile in the Chambers
of Mr. Frank Elizabeth of Suit 303,
Premier Building, Victoria, Mahé) 2nd Plaintiff
The Attorney General
(herein represented by Mr. Anthony Tissa Fernando
of National House, Mahé) 1st Defendant
(herein represented by Mrs. Marie-Ange Hoareau
Principal Secretary, Ministry of Internal Affairs
Independent House, Victoria, Mahé) 2nd Defendant
(herein represented by its CEO Mr. Rajiv Bessessur
Of Creole Spirit Building, Market Street,
Victoria, Mahé 3rd Defendant
Mr. Frank Elizabeth for the Applicant/Plaintiff
Mr. Ronny Govinden for the 1st and 2nd Respondents/Defendants
Mr. Shah for the 3rd Respondent/Defendant
D. Karunakaran, J.
This is an interlocutory application by the plaintiffs filed under Section 304 of the Seychelles Code of Civil Procedure, after the commencement of the original action - pendente lite - for an interim mandatory injunction –
ordering the 2nd defendant - hereinafter called the “Immigration” - to revoke and cancel its letter dated 19th August 2008 - hereinafter called the “Impugned letter” - addressed to the 3rd defendant - hereinafter called the “Air Seychelles” – which letter notified that since the 1st plaintiff - hereinafter called “Ms. Timonina” - being a prohibited Immigrant, she will not be granted entry into Seychelles and thereby causing “Air Seychelles” not to board “Ms. Timonina” on its Flight from Mauritius to Seychelles; and
Furthermore, ordering “Air Seychelles” to allow “Ms. Timonina” to board on its Flight from Mauritius to Seychelles to join her husband in Seychelles namely, the 2nd plaintiff, a Seychellois national, domiciled and resident in Seychelles.
In support of their application, the plaintiffs have relied on the grounds set out in the plaint and the affidavit deponed by the 2nd plaintiff and have relied on other documents produced during the hearing of the application. All those documents appear on record having been numbered and marked as exhibits as follows:
Exhibit 1 - the Impugned letter - dated 19th August 2008 from the “Immigration” to the “Air Seychelles”
Exhibit 2 – Certificate of Marriage – dated 28th August 2008 issued by the Central Civil Status Office, Mauritius.
Exhibit 3 – letter dated 14th August 2008 from the “Immigration” to “Ms. Timonina”
Exhibit 4 – letter dated 2nd September 2008 from the “Immigration” to Mr. Frank Elizabeth, Attorney for “Ms. Timonina”; and
Exhibit 5 - a copy of the Seychelles Court of Appeal judgment in SCA No: 38 of 2007
The plaintiffs aver in the plaint that on the 30th August 2008 when they were about to board the Air Seychelles Flight from Mauritius to Seychelles with their three-month old baby, the representative of the Air Seychelles in Mauritius refused to board “Ms. Timonina” in their Flight. For, the “Immigration” had, by the said “impugned letter”, informed “Air Seychelles” that “Ms. Timonina” was a “Prohibited Immigrant” (P. I) and that she would be refused entry into Seychelles. According to the plaintiffs, the said letter issued by the “Immigration” in Seychelles, was false, vindictive, malicious and its contents were erroneous since “Ms. Timonina” is not a P. I. It is the case of the plaintiffs that although the “Immigration” in its previous decision dated the 8th June 2007, had declared that “Ms. Timonina” was a P. I, the Seychelles Court of Appeal subsequently, by its judgment dated 14th August 2008 in SCA 38 of 2007, quashed the said decision of the Immigration and annulled her P I status. Since then, she has no longer been a P. I. in Seychelles. According to the plaintiffs, consequent upon the said judgment of the Court of Appeal, they were invited to a meeting with the Immigration, which advised “Ms. Timonina” that as a result of the Court of Appeal judgment she should leave Seychelles and could come back to Seychelles any time as she was no longer a P. I. Hence, she went to Mauritius, wherein on 28 August 2008, she got married to the 2nd plaintiff. In the circumstances, the plaintiffs aver that the acts of the defendants amount to a “faute” in law. As a result, both plaintiffs suffered loss and damage each in the sum of Rs 200,000/- . Hence, the plaintiffs claim that the defendants are jointly and severally liable to compensate them for the said loss and damage. The plaintiffs having thus, commenced the original action only for monetary compensation have now, applied to this court for the interim injunction first-above mentioned, pending the hearing of the claim in the main case.
In essence, it is the submission of Mr. Elizabeth, learned counsel for the plaintiffs that the issuance of the impugned letter - Exhibit 1 - by the Immigration to “Air Seychelles” stating that “Ms. Timonina” was a P. I, is at first place, illegal since no notice of P. I was ever served on her by the “Immigration” after the Seychelles Court of Appeal had quashed the one which had previously, been served on her without giving a valid reason. According to Mr. Elizabeth, a person who is not present in the Republic cannot in law, be declared as a P. I. However, in the present case, when “Ms. Timonina” was out of the Republic, the Immigration has illegally and/or erroneously and/or maliciously and vindictively issued the impugned letter falsely stating therein that she was a P. I. According to Mr. Elizabeth, “Ms. Timonina” is not a PI and she cannot be treated as such by the “Immigration” unless and until, she is served with a notice to the effect in accordance with law and more so, by giving valid reasons in accordance with the said Judgment of the Court of Appeal. Moreover, the decision of the Immigration in this respect has been made arbitrarily without an opportunity being given to Ms. Timonina of making representation, whilst she was out of the country.
Besides, Mr. Elizabeth argued that although his client has a right to seek another remedy by way of a Judicial Review in this matter, that right cannot stop her from pursuing the other cause of action based on “fault” under Article 1382 of our Civil code, since the erroneous or unlawful act of the Immigration in the present action amounts to a “faute” in law, which has caused damage to the plaintiffs. According to Mr. Elizabeth, it is a continuous fault and will continue to cause damage until the impugned letter is revoked or cancelled by an order of the Court. That is why he is seeking an interim injunction to halt that fault pending the final determination of the main suit. Mr. Elizabeth further contended that it is Universal Human Right of any person to enter into Seychelles unless he or she is declared a prohibited immigrant. In the present case, Ms. Timonina is no longer a PI in view of the said Judgment of the Court of Appeal. According to Mr. Elizabeth, she has every right to obtain a visitor’s permit and enter the country. The impugned letter has been issued in violation of her Universal Human Right to freedom of movement. In view of all the above, Mr. Elizabeth urged the Court to grant the interim injunction in favour of the plaintiffs and render justice in this matter.
On the other side, defendants however, deny the entire claim of the plaintiffs and seek a dismissal of this application raising objections grounded on several points of law as well as on facts. According to the affidavit filed by the Immigration Officer, Mr. Bacco, on 14 August 2008, Ms. Timonina, after the delivery of the Court of Appeal Judgment, came to the Immigration Office along with her counsel Mr. Elizabeth. Whilst, she was there Mr. Bacco personally served on her a letter - Exhibit 3 - asking her to leave Seychelles as she did not hold any valid permit to remain in Seychelles. She was also given an airline ticket to return to her country of origin namely, Russian Federation. However, she decided on her own to go to Mauritius instead of the Russian Federation. Mr. Govindan - learned counsel for the “Immigration” submitted that after the expiry of her Gainful Occupation Permit (GOP) “Ms. Timonina” was allowed to remain in the Republic until the final determination of the case that she had preferred before the Seychelles Court of Appeal. She was thus allowed to remain by virtue of an order made by the Court of Appeal in view of the then pending court case and that was meant for a limited period i. e until the final judgment was delivered. Following the delivery of the said judgment by the apex court on 14 August 2008, neither she applied for nor was she granted any other type of residential permit by the Immigration in order for her to continue her stay in the country. Since her original GOP had already expired on 25 July 2007, she had no other residential status, apart from the exceptional/limited period, which the Court had granted in view of the then pending litigation. Hence, the Immigration issued and served on her the impugned letter asking her to leave the country and hence she left. In the circumstances, Mr. Govindan contended that there was no illegality or fault or malice on the part of the Immigration in the issuance of the impugned letter to Air Seychelles. According to Mr. Govindan, for any non-Seychellois visitor the right to enter and remain in Seychelles is not an absolute, natural or automatic right or part of Universal Human Rights of any nature as claimed by Mr. Elizabeth. Seychelles is a sovereign state. Grant or refusal of such right to an alien falls within the sovereign power, function and discretion of the state. Besides, Mr. Govindan submitted that under Section 16(1) of the Immigration Act, the Immigration officer is empowered with discretion to either grant or refuse visitor’s permit to any person for valid reason/s. This particular section reads that on an application being made in writing, the immigration officer may, subject to such conditions as he may deem necessary, issue a visitor's permit to any person who
(a) is not a prohibited immigrant; and
(b) is not the holder of a dependant's permit or a gainful occupation permit.
The word “may” used in this particular section, according to Mr. Govindan, clearly indicates that the said discretion has been given to the Immigration Officer to be exercised reasonably. In any event, he argued, it is evident from the wording of the section that such permit shall be granted subject to conditions as the immigration officer may deem necessary.
Moreover, Mr. Govindan contended that since, Ms. Timonina’s GOP expired on 25 July 2007 and she had no other residential status at the relevant period, her further stay in Seychelles would have been a breach of the conditions of the GOP as stated in paragraph 6 of the Court of Appeal judgment. But, due to the Ruling of a single Judge of that Court dated 22 June 2007, she was spared from the agony. In that Ruling, Hodoul JA, had directed thus:
“As regards her application for a temporary suspension of the order of removal, I am of the opinion that under Article 25(5) of our Constitution, she has a right not to be removed from Seychelles until the order of removal reviewed by the Competent Authority”.
This has already been reviewed by the judicial authority. As Ms. Timonina’s GOP has expired on 25 June 2007, it is contended that she is now a prohibited immigrant by operation of law in terms of Section 19 (1) (d) of the Immigration Decree. In the circumstances, Mr. Govinden submitted that the issuance of the impugned letter by the Immigration to the Air Seychelles is neither illegal nor did the Immigration commit any fault in law. The letter was therefore, not vindictive, false or malicious. Having so argued Mr. Govinden also submitted that since the plaintiffs in this mater challenge the legality of an administrative decision of a quasi-judicial authority, they should have petitioned the Court for a Judicial review. It is incompetent and not proper to institute a civil suit alleging fault, which is not the case. For these reasons, Mr. Govinden urged the Court to dismiss the instant application and not to grant any interim relief as this application is not maintainable either in law or on facts.
Mr. Shaw, Learned Counsel for the 3rd defendant - Air Seychelles - having filed his statement of defence to the plaint submitted in substance, that Air Seychelles did not commit any fault in this matter. Any airline for that nmatter, is required by international rules and regulations not to transport a person to a country, where that person will not be admitted. Having been served with the impugned letter stating inter alia, that Ms. Timonina would not be granted entry into Seychelles, Air Seychelles inevitably, had to take the decision to deny her boarding on its flight from Mauritius to Seychelles. In any event, Mr. Shah contended that no cause of action arose against Air Seychelles to ascribe any fault on its part, as it has to act on the position taken by the Immigration on a matter pertaining to the entry of any passenger it transports into the country. Therefore, Mr. Shah submitted that the Air Seychelles is not liable to pay any damages or at all to the plaintiff. Hence, he also sought an order dismissing the application and the entire claim of the plaintiffs in this action.
I meticulously analyzed the arguments advanced by counsel for and against this application, which obviously, have given rise to many an issue based on facts as well as on points of law. If this Court attempts to determine all those issues raised by the parties at this stage of the proceeding, in this interlocutory application, certainly, such an attempt would in effect, dispose of the main case itself. That would be tantamount to putting the cart before the horse. This, I should not do in the thin disguise of determining the interim injunction sought by the plaintiffs pendente lite. Forgive me, for being selective in that, I should identify and determine only those issues, which are relevant to and necessary for the adjudication of the instant application for interim injunction.
Indeed, this case has a long history of multiplicity of litigation in the Courts here and above. To appreciate the issues in a proper perspective, it is important that I should first, rehearse the entire background facts of the case, as briefly as possible as marshaled in the Court of Appeal Judgment cited supra; which may be read mutatis mutandis, as part of the ruling hereof.
Ms. Timonina, the Applicant herein, is a Russian citizen. She was employed by “Creole Holidays’ as a Group and Incentive Executive. She had a Gainful Occupation Permit (the GOP) valid for one year. Undisputedly, the said GOP has expired since 25 July 2007. A few weeks before the expiry of the said GOP, that is, on the 8th June 2007, she was served with a notice in Form IMM/9 declaring her as a “Prohibited Immigrant” (P. I.). The said declaration was made pursuant to the provisions of section 19(1) (i) of the Immigration Decree, Capt 93. The reason given therein for such declaration of a P. I. was that the Applicant’s presence in Seychelles was “inimica1 to the public interest”. The P. I. notice also required her to leave Seychelles before the 14th June 2007 by air and en route to Moscow.
The Applicant’s lawyer, Mr. F. Elizabeth, wrote to the Minister responsible for Immigration on 14 June 2007 requesting him to reconsider his decision. That request was unsuccessful. Given the circumstances, the Applicant resorted to the Court process by petitioning for Judicial Review on 11 June 2007. She also applied to the Constitutional Court for a remedy challenging the constitutionality of the P. I. declaration against her. In the case of judicial review, she sought for an order of certiorari, quashing the decision of the Immigration for declaring her a prohibited immigrant. She sought, as well, for an order of prohibition to stop and prevent the Immigration from deporting her or otherwise requesting her to leave Seychelles until a further order of the Court.
As regards the constitutionality of the P. I. is concerned, Ms. Timonina contended that since she had not violated any laws of Seychelles and since she was gainfully working here, she enjoyed full protection of the Constitution and as such, the P. I. notice constituted a violation of her constitutional rights and freedoms guaranteed by the Constitution of Seychelles. She, therefore, requested the Constitutional Court inter alia, to declare that the said decision of the Immigration dated 8 June 2007, amounts to a contravention of the applicant’s constitutional rights as provided for by Article 25 of the Constitution. Consequently, she sought a writ of prohibition staying the decision of the Immigration contained in the Notice dated 8 June 2007 requesting her to leave the Republic before 14 June 2007.
As observed by the Court of Appeal in paragraph 6 of its Judgment, since the applicant’s GOP expired on 25 July 2007 and had no other residential status, her further stay in Seychelles would have been a breach of the conditions of the GOP. But, due to the Ruling of a single Judge of the Court of Appeal dated 22 June 2007, she was spared from the agony. In that Ruling, Hodoul JA, stated thus:
“As regards her application for a temporary suspension of the order of removal, I am of the opinion that under Article 25(5) of our Constitution, she has a right not to be removed from Seychelles until the order of removal reviewed by the Competent Authority. But that right must be exercised in conformity with the public interest. Accordingly, I suspend the execution of the order of removal until the determination of her application by the Supreme Court, upon which the matter will be submitted to this Court for further consideration”
Further, paragraph 7 of the said Judgment is also relevant to the present application. This paragraph reads thus:
“In our considered view, it is this order by Hodoul, JA, which makes the Applicant’s continued stay in Seychelles valid and legal. Therefore, her application for a writ of prohibition has been granted. Its validity ends with the delivery of this judgment, thus making her residential status now to be as described in paragraph 6 above”
Subsequent to the said Ruling, two matters proceeded in the Courts of law - one in the Supreme Court for Judicial Review and the other in the Constitutional Court for the constitutional remedy. Ms. Timonina continued her stay in Seychelles due to judicial intervention made for the purpose of her pending adjudications in Courts. Judgment in the latter Court was delivered on 31 July 2007 while in the former Court it was delivered on 12 December 2007. Ms. Timonina lost in both matters and hence she appealed to the Court of Appeal against the Judgment in both cases. The Court of Appeal consolidated both appeals for hearing and delivered its Judgment on 14 August 2008 giving finality to all the litigations that were instituted by Ms. Timonina in the Courts of Seychelles. With these background facts, the present application has been made by the plaintiffs seeking for an interim injunction in this matter.
I will now proceed to examine the merits of the present application. Before the Court can consider whether or not to grant an injunction in this matter, there are certain principles of law which must be looked at.
First, the Court must be satisfied prima facie that the claim is bona fide, not frivolous or vexatious; in other words, that there is a serious question to be tried vide: American Cyanamid Co v Ethicon Ltd  UKHL 1;  1 All ER 504 at p. 510. Unless the materials available to the court at the hearing of the application for an interlocutory injunction disclose that the plaintiffs have any real prospect of succeeding in their claim at the trial, the court should not go on to consider whether the balance of convenience lies in favour of granting or refusing the interim relief that is sought. In considering the balance of convenience, the governing principle is whether the plaintiffs would be adequately compensated by an award of damages, which the defendants would be in a financial position to pay, and if so, the interim injunction should not be granted. Where there is doubt as to the adequacy of remedies in damages available to a party, the court would lean to such measures as are calculated to preserve the status quo.
Having said that, the injunction is fundamentally an equitable remedy, and so the one, who seeks such remedy should come before the court with clean hand. The possibility of irreparable loss, hardship and injury if any, the plaintiff may suffer during the inevitable interval between the commencement of the action and the judgment in the main case, should also be taken into consideration as an important factor in the determination of injunctions.
Bearing the above principles in mind, I look at the instant case as a whole, on the documents presently on record, before the court. I carefully perused them in the light of the submissions made by counsel. Indeed, the remedy, which the plaintiffs seek in the plaint, is simply a monetary compensation for the “faute” the defendants allegedly committed in terms of Article 1382 of the Civil Code; whereas the remedy sought in the interlocutory application is completely different from such monetary compensation. Indeed, the so called interim relief sought herein is perpetual in nature, and in effect, a writ of “Certiorari” is being sought for by the plaintiffs, in the guise of an interim injunction to annul an administrative decision once and for all. Even though there is no pleading either in the plaint or in the application challenging the “legality” of the impugned letter, Mr. Elizabeth in his submission raised that issue, while he canvassed in support of his application for the injunction. As I see it, “faute” is an “error of conduct” which emanates from the breach of a duty of care, whereas “illegality” is an “error of law”, which emanates from the breach of a statutory duty. In the circumstances, I find that what the plaintiff seeks in the interlocutory application is a distinct, specific, complete and substantive relief by itself, which squarely falls within the ambit of administrative law. This relief though termed by the plaintiffs as “interim”, to my mind, it is not interim but perpetual in nature. This has no legal nexus to the original action that is based on “fault” and seeks a remedy of only monetary compensation. Therefore, I find that the present interlocutory application is incompetent, improper and not maintainable in law. Hence, it is liable to be dismissed in limine.
In any event, having diligently perused all the documents on record, I am not satisfied prima facie that the plaintiff’s claim is bona fide, not frivolous or vexatious; in other words, that there is a serious question to be tried. In this instant, the term “frivolous or vexatious” should be understood in the light of the obiter dictum of Lord Diplock in the American Cyanamid case (supra) as meaning that there is a serious question to be tried and that the plaintiff has a real prospect of succeeding. The submission by counsel for the plaintiffs with regard to the non- compliance with the rules of natural justice involves a question of law and fact which would be more appropriately argued in a petition for “Judicial Review” of the decision of the immigration officer not at the hearing of an action in tort. Suffice it is for me to say at this stage that I am of the opinion, based on pleadings and affidavit and other documents so far filed, that there is no serious question to be tried. On this score as well, I am loath to grant the interim relief sought by the plaintiff in this action.
The next question to be considered is whether the plaintiffs would be adequately compensated by an award of damages for the loss they would have sustained as a result of the defendants’ continuing to do what was sought to be enjoined between the time of the present application and the time of the trial and whether the defendants would be in a financial position to pay such damages. Looking at the prayers in the plaint, I find that paragraph 9 (a) and (b) inclusive seeks simply payment of specific amounts from the defendants in respect of the loss and moral damage, which the plaintiffs allegedly suffered by the fault committed by the defendants. However, there is no other prayer therein in respect of what is sought in this interlocutory application. Hence, I have come to the conclusion that the plaintiffs would be adequately compensated by an award of damages for the loss and damage they have claimed in the original action. Also I note that the first and the second defendants are the Government of Seychelles and its department respectively; whereas the third defendant is the National Airline. Undoubtedly, all three defendants would be in a better financial position to pay for these damages, should the plaintiffs succeed in their action.
Moreover, I note, Ms. Timonina is still a Russian National. She has a country of origin. She can go back to her home country any time at will, regardless of the outcome of the instant application. Obviously, she would suffer no loss, hardship or prejudice of such a kind and substantial nature or such an extent, which cannot be compensated by suitable monetary award. On the question of granting visitor’s permit to an alien, as rightly submitted by Mr. Govindan, the Republic of Seychelles is a sovereign state; grant or refusal of such permit to an alien falls within the sovereign power, function and discretion of the state. In my view, no foreign alien can claim such permit as of right; it is simply a privilege, if I may say so, accorded to a person, upon fulfillment of the conditions that may be imposed by the state. At this juncture, it is pertinent to quote from the speech of Lord Denning M. R in Schmidt and another V. Secretary of State for Home Affairs  2 Ch 149, the facts of which case were strikingly similar to that of the instant one. At page 171 therein, Lord Denning indicates how this privilege accorded to an alien should be considered in matters of this nature. His speech inter alia, reads thus:
“He (the alien) has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires he ought, I think, to be given an opportunity of making representations: for, he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right and I would add, no legitimate expectation of being allowed to stay. He can be refused without reasons given and without a hearing.”
Applying the above dicta of Lord Denning to the case on hand, I would say, the applicant has no right to enter this country except by leave. Obviously, in this particular case, she cannot have any legitimate expectation of being allowed to stay for a day longer than the permitted time under her GOP. Indeed, when her GOP was previously revoked by the Immigration before its time limit expired, the Court did intervene and gave her an opportunity of making representations, since she would have had a legitimate expectation of being allowed to stay for the permitted time under her GOP. Now the time permitted under her GOP has expired. Therefore, she has no right and I would add, no legitimate expectation of being allowed to stay after the expiry of the GOP. Herein I would align with Lord Denning in that, any foreign alien after the expiry of his or her GOP period, can be refused without reasons given and without a hearing, when there is no such legitimate expectation of being allowed to stay.
I quite agree with Mr. Govindan in that, under Section 16(1) of the Immigration Act, the Immigration officer is empowered with discretion either to grant or refuse visitor’s permit to any person for valid reason/s. However, as Mr. Elizabeth correctly pointed out, the said discretion should never be exercised arbitrarily. The rules of natural justice should always be observed by public authorities, while making administrative decisions using that discretion conferred upon them by statues. Be that as it may, I am, therefore, of the opinion that the balance of convenience lies with the injunction not being granted.
Although this is sufficient to dispose of this application, in deference to counsel on both sides and to their arguments with regard to the crucial issues as to the alleged “illegality” and “falsity” of the “impugned letter” I should mention that paragraph 6 of the Judgment of the Court of Appeal quoted supra, and Section 19 (1) (d) of the Immigration Decree, when read together throw sufficient light on the denouement of this crucial issue. This section runs thus:
“The following persons, not being citizens of Seychelles, are prohibited immigrants
(a) any person who is infected etc….
(b) any prostitute or any person etc…..
(c) any person who under any law in force….
(d) any person in Seychelles in respect of whom a permit under this Decree has been revoked or has expired;
Undisputedly, Ms. Timonina is not a citizen of Seychelles. She had been granted a GOP under the Immigration Decree by virtue of her contract of employment in the Republic of Seychelles; the said GOP has expired since 25 July 2007; she had no other residential status, apart from the exceptional/limited period, which the apex court had granted to continue her stay, in view of the then pending litigation. Those litigations are now over. The final judgment has already been delivered by the Court of Appeal since 14th August 2008. In the words of their Lordships therein, “her further stay in Seychelles would have been a breach of the conditions of the GOP. But, due to the Ruling of a single Judge of the Court of Appeal Hodoul JA, dated 22 June 2007, she was spared from the agony”.
However, the crucial question still remains. “Is Ms. Timonina a Prohibited Immigrant now, by operation of law under Section 19 (1) (d) of the Immigration Decree? I would prefer not to find answer to this question at this stage of the proceeding. If I do otherwise, I would be judged for prejudging the plaintiffs’ claim in the main case. Indeed, I still keep an open mind.
Having said all, for reasons stated hereinbefore, I decline to grant the interim injunction sought by the plaintiffs in this matter. The application is therefore, dismissed with costs.
Dated this 12th Day of September 2008