Fregate Island Private Limited vs DF Projects Properties Proprietary Limited (MA 164/2015) [2016] SCSC 296 (20 April 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: MA 164/2015

(arising in 29/2014)

 

[2016] SCSC 296    

 

 

FREGATE ISLAND PRIVATE LIMITED

versus

DF PROJECTS PROPERTIES

 

Heard:                             

Counsel:                      Mr. Divino Sabino for applicant

                                   Mr. Basil Hoareau for respondent

    

Delivered:                   20 April 2016

RULING ON MOTION

 

 

Robinson J

 

[1]        Introduction:

[2]        CC29/2014 was brought to declare certain judgments of the Regional High Court, Düsseldorf enforceable and executory in the Republic of Seychelles.

[3]         This is an application, before defence is served, by way of motion, to strike out parts of the Plaint on the grounds that they consists of (i) evidence and/or (ii) averments that are irrelevant and/or embarrassing and tended to prejudice the trial of the action, with costs.

[4]         The application is supported by an affidavit sworn by Wayne Ronald Kafcsak, the Managing Director of the applicant.

[5]         The application is made under the Seychelles Code of Civil Procedure, hereinafter referred to as the ″SCCP″.

[6]         Case for applicant/defendant:

[7]         Wayne Ronald Kafcsak has stated the following in support of the application for striking out parts of the Plaint?

″5.        I have been advised that a plaint must contain a concise statement of the relevant facts necessary to sustain the Plaintiff’s claim and must not contain evidence.

6.         I am reliably advised and verily believed that the Plaint is not in conformity with the requirements of the applicable rules of procedure in that it pleads evidence in its several annexures, namely, Annexures DF1, F11, F12 and F13, CO1, CO2, CO3, RET, JET and PN1. Unless the evidence is removed from the Plaint, the Defendant would be put in the embarrassing situation of having to reply to averments of evidence in its statement of defence. I am reliably advised that the adduction and rebuttal of evidence are matters that are reserved for the hearing of the suit.

7.         The Plaintiff had undertaken to provide a certified copy and translation thereof of the award of the Arbitration Court that is mentioned in the Plaint. However the Plaintiff has not done so and at the mention of the suit on 27th May 2015 made a judicial admission that it will not rely on an award in or for the purposes of its case. That award is therefore irrelevant for the determination of the Plaintiff’s claim.

8.         The averments set out in paragraphs 7.2 to 7.5 of the Plaint has no bearing on whether the alleged foreign court orders are enforceable in this jurisdiction or on any other aspect of the case.  They are very plainly attempts to attack the reputation of the Applicant and the person alleged to be the main shareholder of the Applicant and or influence the court into thinking that a monetary award against the Applicant would not be prejudicial to it as its main shareholder is on the Forbes list, being matters which are irrelevant to a proper and fair trial of the plaint.

9.         In the circumstances, all the averments set out in paragraphs 2.2 (inclusive of all its sub-paragraphs) and the references to ″Arbitration Court″ and ″arbitration proceedings″ in paragraphs 8.2 and 8.4 of the plaint and paragraphs 7.2 to 7.5 (inclusive) of the Plaint should be removed from the Plaint for being irrelevant, embarrassing and prejudicial to the fair trial of the action.

10.       I accordingly pray this Honourable Court to grant the reliefs sought in the Applicant’s motion.″.

[8]        Case for respondent/plaintiff:

[9]        Tiffany Jane Andraos, informed by learned counsel, Mr. Hoareau, verily believes that  the application to strike out parts of the Plaint is without any merits whatsoever in that the pleadings contained in the Plaint (i) are in accordance with the law; (ii) disclose a reasonable cause of action; and (iii) are not frivolous and/or vexatious. She has also averred that the Plaint does not cause any embarrassment whatsoever to the applicant in the filing of the defence.

[10]      Submission:

[11]      Submission of applicant/defendant:

[12]      With reference to paragraphs 5 and 6 of the affidavit, Mr. Sabino submitted that parts of the Plaint do not meet the requirements of section 71 (d) of the SCCP on account of them setting out documents which pleaded evidence as follows ?

·                     DF1

·                     Fl 1, Fl 2 and Fl 3

·                     CO1, CO2, CO3

·                     RET (paragraph 7.2.1 of the plaint)

·                     JET (paragraph 7.2.1 of the plaint)

·                     PN1 (paragraph 7.2.2 of the plaint).

 

Elaborating, further, on the submission, he submitted that this court should have a single comprehensive document from which the plaintiff’s case can be readily understood. He contended that the Plaint is not a single comprehensive document from which the case of the plaintiff can be readily understood.

 

[13]      With reference to paragraphs 7 and 9 of the affidavit, Mr. Sabino submitted that the whole of paragraph 2.2 through 2.2.4 of the Plaint, and the words Arbitration Court″ and ″arbitration proceedings″ wherever they appear, in paragraph 8.2 and 8.4 of the Plaint, be struck out, on the grounds that they are unnecessary and raise wholly immaterial issues on account of the judicial admission that the plaintiff will not be relying on the arbitral award of the Arbitration Court. The allegations in paragraph 2.2 through 2.2.4 of the Plaint are to the following effect ?

 

                        ″2.2      the said Arbitration Court passed an award in the Arbitration matter between the PLAINTIFF and the DEFENDANT on 9 July 2009 as will more fully appear from Page 1 Paragraph 1 of the Court Order dated 18 MAY 2010 annexed hereto marked ″CO 1″ by the Regional High Court Düsseldorf the ″FIRST COURT ORDER″ in terms whereof it was ordered that:

 

            2.2.1    The DEFENDANT pay the PLAINTIFF the amount of USD $ 1 941 669,13 (one million nine hundred and forty one thousand six hundred and sixty nine US dollars thirteen cents) plus interest of 1 % (ONE PERCENTUM) above the interest rate of the prime refinancing facility of the European Central Bank from 17 August 2003;

                       

                        ″THE MAIN CLAIM″

 

            2.2.2    The DEFENDANT pay two thirds of the costs incurred in the Arbitration proceedings: as will more fully appear from Page 2 Paragraph 1, clauses 1 and 4 of the ″FIRST COURT ORDER″ dated 18 May 2010 marked ″CO 1″

 

            2.2.3    On 26 October 2009 the DEFENDANT appealed to the Regional High Court Düsseldorf to revoke the Arbitration Award of the Arbitration Court of the Wirtschaftsvereinigung Bauindustrie e.V. North- Rhine Westphalia (today: Baulndustrieverband NRW E.V.) as will more fully appear from page 3 of ″CO 1″, composed of the arbitrators retired Presiding Judge at the Regional High Court, Dr Friedhelm Weyer, Dr lng Klaus Dietrich Dipl.- lng., Dipl. kfm., Joachim Martin, lawyer Dr Hans-Michael Dimanski and Axel Genner.

 

            2.2.4    The application by the DEFENDANT to the said High Court to revoke the Arbitration Award was subsequently withdrawn on 9 April 2010 as will more fully appear from paragraph 2 page 4 of the Court Order ″CO 1″″.

 

           

[14]      With reference to paragraph 8 of the affidavit, Mr. Sabino submitted that paragraph 7.2 through 7.5 of the Plaint contained facts that in his opinion are calculated to embarrass the applicant/defendant given that they are immaterial. He invited this court to strike any immaterial facts that may embarrass, prejudice or delay the trial of the action. The allegations in paragraph 7.2 through 7.5 are to the following effect ?

 

                                    ″7.2      A Writ Habare Facias was issued against the DEFENDANT by the above Honourable Court under Case Number 326 of 1998 between Juliaan Karel Evenwel and 21 other applicants of whom nine applicants were deaf-and-dumb labourers.  All applicants were employed by the PLAINTIFF for the building of a 5-star resort on the Fregate island.  The total value of the asset claimed to be returned to them and retained by the DEFENDANT was in excess of US$ 300 000 (THREE HUNDRED THOUSAND DOLLARS) excluding that of the PLAINTIFF and of the PLAINTIFF’S subsidiary  companies’ plant, equipment, tools, vehicles, materials and boats left on Fregate island during the Christmas holidays.

 

                                    7.2.1    On 18 APRIL 1999 the Process Server Mr. Medard Atala rendered a return ″of all items found″ at Fregate island annexed hereto marked ″Annexure RET″ consisting of approximately 10 small items of the hundreds of tools and personal items claimed by the applicants. The items found did not even warrant the freight costs to South Africa.

                                   

                                    Undisputed evidence was presented to the Arbitration Court, by the said Juliaan Evenwel who accompanied the process server, that for purposes of the said search, the DEFENDANT restricted access to the process server and representatives only to certain parts of Fregate island as will more fully appear from affidavit by Juliaan karel Evenwel dated 21 April 1999 annexed hereto marked Annexure ″JET″.

 

                                    7.2.2    On 18 June 1999 the PLAINTIFF received written notification from the DEFENDANT that ″we kept all plant, originally belonging to your company and being on Fregate, when you left early 1998″ a copy of the fax dated 18 JUNE 1999 is annexed hereto marked ″Annexure PN 1″.

                                    The said fax was an Exhibit in the German Court and was not disputed and is proof of the DEFENDANT’S total disregard of the law.

                                    7.3       On 18 SEPTEMBER 2001 the DEFENDANT’S legal counsel told the PLAINTIFF’S attorney that even if the arbitral award was in favour of the PLAINTIFF there would be no possibility for the PLAINTIFF to execute the award as:

                                    7.3.1    The PLAINTIFF was not in a financial position to do so;

                                    7.3.2    The PLAINTFF would have difficulties in executing an award in the Seychelles because the DEFENDANT would have ″Heimvorteil″ (Home advantage);

                                    7.3.4    During MAY 2010 the PLAINTIFF’S attorney of Germany went to Switzerland to discuss a possible settlement with the DEFENDANT. No settlement was proposed, but the Defendant’s representative frankly declared that the then Director Dr Hapel thought that the award was not correct and that he would not fulfil it.

                                    7.5       Dr Happel the then Director of the DEFENDANT is ranked by Forbes Worlds Billionaires as one of the five hundred richest persons in the world since the inception during 1998 of the claims now before this Honourable Court – the DEFENDANT has for more than 15 years at an enormous cost to the PLAINTIFF delayed justice.″.

 

                       

[15]      Submission of respondent/plaintiff:

 

[16]      Mr. Hoareau submitted that section 92 of the SCCP does not find application in this matter because it does not empower this court to strike out parts of a plaint on the ground that they may prejudice, embarrass or delay the hearing of the action. He was of the opinion that O. 18 r, 19 of the Supreme Court Rules of England applies to this matter

 

[17]      Further, he sought to convince this court that a plaint can contain additional particulars as long as the minimum requirements under section 71 of the SCCP are met. On this issue, he submitted without more that section 71 of the SCCP does not expressly state that a plaint must not contain the evidence by which the material facts are to be proved, and therefore, a plaint is not defective only in containing evidence. With regards to the various Annexures and other matters pleaded, he contended that they are not exhibits or evidence for pleading purposes. 

[18]      Further, he contended that a decision by the respondent/plaintiff not to tender the arbitral award as an exhibit in the suit does not render the material facts in that respect irrelevant or embarrassing.

 

[19]      Discussion:

 

[20]      This court has considered the application of the applicant, the evidence of the respondent and the submissions of counsel.

[21]      Section 71 of the SCCP requires every plaint to contain the following particulars ?

(a)                the name of the court in which the suit is brought;

(b)               the name, description and place of residence of the plaintiff;

(c)                the name, description and place of residence of the defendant, so far as they can be ascertained;

(d)               the cause of action and where and when it arose and of the material facts which are necessary to sustain the action;

(e)                a demand of the relief which the plaintiff claims;

(f)                if the plaintiff has allowed a set off or has relinquished a portion of his claim, the amount so allowed or relinquished.

 

[22]      The applicant seeking to strike out parts of the Plaint alleged to offend section 71 (d) of the SCCP, has indicated precisely what it wants to be struck out. However, the application does not state the written law on which it is grounded. Section 92 of the SCCP enforces the rules of pleading, but does it apply to the present matter? Section 92 of the SCCP provides ?

″92.       The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in such case, or in case of the action or defence being shown by the pleading to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or may give judgment, on such terms as may be just″.

Section 92 of the SCCP concerns the discretion of this court to strike out any pleading where on the face of the pleading it discloses no reasonable cause of action or answer. Where this is the only ground on which the application is made, evidence is not admitted: see A. –G. of Duchy of Lancaster v. L. & N. W. Ry., [1892] 3 Ch. 278; Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch. D. 489, 498). Under section 92 of the SCCP, the court may also exercise the discretion to strike out any pleading where in case of the action or defence being shown by the pleading to be frivolous or vexatious. In applications on this ground affidavit evidence may be and is used. On both grounds the court retains the discretion to stay or dismiss the proceedings or may give judgment on terms as may be just.

[23]      The position of the applicant on point is not clear to this court. Mr. Sabino has referred this court to the case of Anil Khanna vs Geeta Khanna & Ors on 2 September, 2013 in the Delhi High Court concerning an application by Defendant Nos. 1 and 3 seeking to strike out the defamatory and irrelevant pleadings from the plaint grounded on Order V1 Rule 16 of the CPC. Order V1 Rule 16 of the CPC provides ?

            ″16. Striking out pleadings. – The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading –

(a)    which may be unnecessary, scandalous, frivolous or vexatious, or

(b)   which may tend to prejudice, embarrass, or delay the fair trial of the suit, or

(c)    which is otherwise an abuse of the process of the court.″.

It would seem that any pleading that tends to prejudice, embarrass or delay the fair trial of the suit can be struck out under Order V1 Rule 16 of the CPC : see the Anil Khanna case, supra. This court observes that such a ground is not available under section 92 of the SCCP and the application in any event is not maintainable under the same because it is not the position of the applicant that the case is obviously frivolous or vexatious or obviously unsustainable.

[24]         The position of the respondent is that O. 18, r. 19 of the Rules of the Supreme Court of England finds application. O. 18, r. 19 of the Rules of the Supreme Court of England provides ?

″19. ?(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that ?

(a)          it discloses no reasonable cause of action or defence, as the case may be; or

(b)         it is scandalous, frivolous or vexatious; or

(c)          it may prejudice, embarrass or delay the fair trial of the action; or

(d)         it is otherwise an abuse of the process of the court;

                          and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

                           (2)     No evidence shall be admissible on an application under paragraph (1) (a).

(3)     This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.″.

                           (This Rule was taken from R.S.C (Rev.), 1962, O. 18, R. 19, which had amalgamated the former O. 19, r. 27 and O. 25, r. 4).

            The grounds on which the application is grounded is contained in O. 18, r. 19 (1) (c) of the Rules of the Supreme Court of England. It is noted that Order V1 Rule 16 of the CPC contains a similar ground.

[25]      Section 17 of the Courts Act CAP 52 provides ?

″In civil matters whenever the laws and rules of procedure applicable to the Supreme Court are silent, the procedure, rules, and practice of the High Court of Justice in England shall be followed as far as practicable. (Amending Act 8/13/1975)″.

[26]      Because the SCCP is silent on this point, this court shall apply O. 18, r. 19 of the Rules of the Supreme Court of England as far as practicable. This court is, therefore, empowered under O. 18, r. 19 (1) (c) of the Rules of the Supreme Court of England to strike out any matter contained in the Plaint that is inconsistent with the principal rule that a plaint must only contain material facts that are necessary to sustain the action, and must not, therefore, contain any matter that may prejudice, embarrass or delay the fair trial of the action. This court is, ″disposed to give a liberal interpretation″ to those words (Berdan v. Greenwood, 3 Ex. D. P. 256). In Knowles v Roberts (1888) 38 Ch D 263, 58 LT 259, Bowen L.J. said : ″It seems to me that the rule that the court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But the rule is, of course, subject, to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right".

[27]      Applying the above, this court states that the irrelevant matters set out in paragraph 7.2 through 7.5 of the plaint in such a way that the defendant must plead to them, and so raise irrelevant issues that may involve delay will be struck out as they will prejudice the trial of the action. This court strikes out paragraph 7.2, 7.2.1, 7.2.2, 7.3, 7.3.1, 7.4 and 7.5 of the Plaint under O. 18, r. 19 (1) (c) of the Rules of the Supreme Court of England. This takes care of "Annexure RET″ (paragraph 7.2.1), Annexure ″JET″ (paragraph 7.2.1) and Annexure ″PN 1″ (paragraph 7.2.2.).

 

[28]      Secondly, with respect to the whole of paragraph 2.2 through 2.2.4 of the Plaint and the words ″Arbitration Court″ and ″arbitration proceedings″ wherever they appear, in paragraph 8.2 and 8.4 of the Plaint, the fact that Mr. Hoareau has stated in open court that the plaintiff will not tender the arbitral award as an exhibit is not sufficient ground for an application under this Rule. Striking out is used only in clear and obvious cases (Kemsley v. Foot and Ors., [1951] 2 K. B. 34, C. A.).  It follows that this court will not exercise its discretion to strike out the whole of paragraph 2.2 through 2.2.4 of the Plaint and the words ″Arbitration Court″ and ″arbitration proceedings″ wherever they appear in paragraph 8.2 and 8.4 of the Plaint.

[29]     Thirdly, this court has to determine whether or not other parts of the Plaint should be amended by striking out matters which the applicant contended are evidence of the facts on which the plaintiff intends to rely. The offending parts of the Plaint are the following ?

            ″as will more fully appear from Certificate by the Companies and Intellectual Property Commission dated 28 JANUARY 2014 in respect of PLAINTIFF marked Annexure ″DF 1″″ (paragraph 1.1);

            ″as will more fully appear from Certificate of change of name of DEFENDANT annexed hereto marked Annexures ″FI 1″, ″Fl 2″, and ″Fl 3″″ (paragraph 1.2);

Court Order marked ″CO 1″ - paragraphs 2.1.2, 2.2, 2.2.2, 2.2.3, 2.2.4, 3.1, 3.2, 3.3, 8.1.1, 8.2 and 8.3;

 

Second Court Order marked ″CO 2″ - paragraph 4.1 and 4.2;

 

Third Court Order marked ″CO 3″ - paragraph 5.1.1 and 5.2.

 

 

[30]      This court observes that Annexures ″DF 1″, ″Fl 1″, ″Fl 2″ and ″Fl 3″ are merely referred to in the Plaint. In terms of ″CO 1″, ″CO 2″ and ″CO 3″ numerous references have been made to their pages, paragraphs and/or clauses.

 

[31]      This court has considered the submissions of respondent on point and does not accept them. It is clear to this court that the documents and/or other matters mentioned in paragraph [29], of this Order, are set out, which if they are relevant to the case of the plaintiff appears to be merely evidence. Under section 71 (d) of the SCCP, a plaint must contain the material facts that are necessary to sustain the action. The general rule is stated by Cotton, L. J., in Philipps v. P., 4 Q. B. D. p. 139 ?

 

                        ″In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they have to meet when the case comes on for trial.″ ″The word ′material′ means necessary for the purpose of formulating a complete cause of action; and if any one ′material′ statement is omitted, the statement of claim is bad″ (per Scott, L.J., in Bruce v. Odhams Press Ltd. [1936] 3 All E.R. at p. 294).

With regards to whether or not a plaint may plead evidence, ″ [i]t is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegation″ (per Lord Denman, C.J., in Williams v. Wilcoz, 8 A. & E. p. 331; and see Stuart v. Gladstone (1879) 10 Ch. D. 644).  See also General Electric Co. Ltd. V. Simplex-G.E. Ltd. [1971] R.P.C. 351.

[32]     In light of the above, this court holds that the applicant is required under section 71 (d) of the SCCP to have the Plaint amended by striking out the following matters which are merely evidence of the facts on which the plaintiff intends to rely and the quantity of which are unnecessary under O. 18, r. 19 (1) (c) of the Supreme Court Rules of England ?

·                    ″as will more fully appear from Certificate by the Companies and Intellectual Property Commission dated 28 JANUARY 2014 in respect of PLAINTIFF marked Annexure ″DF 1″ - (paragraph 1.1);

 

·                    ″as will more fully appear from Certificate of change of name of DEFENDANT annexed hereto marked Annexures ″FI 1″, ″Fl 2″, and ″Fl 3″ - (paragraph 1.2);

 

·                    First Court Order marked ″CO 1″ - paragraphs 2.1.2, 2.2, 2.2.2, 2.2.3, 2.2.4, 3.1, 3.2, 3.3, 8.1.1, 8.2, 8.3;

           

·                    Second Court Order marked ″CO 2″ - paragraph 4.1 and 4.2;

 

·                    Third Court Order marked ″CO 3″ - paragraphs 5.1.1 and 5.2.

 [33]    For the avoidance of doubt the evidence sustaining the allegations in paragraphs 1.1, 1.2, 2.1.2, 2.2, 2.2.2, 2.2.3, 2.2.4, 3.1, 3.2, 3.3, 8.1.1, 8.2, 8.3, 4.1, 4.2, 5.1.1 and 5.2 of the Plaint is struck out.

[34]     Overall, plaintiff is required to comply with section 74 of the SCCP as follows ?

            "74 ? If the plaintiff sues upon a document other than a document transcribed in   the Mortgage Office of Seychelles, he shall annex a copy thereof to his plaint.  If he rely on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall annex a list thereof to his plaint and shall state where the same may be seen a reasonable time before the hearing".

 

[35]     DECISION:

[36]     This court orders accordingly with costs against the respondent/plaintiff.

[37]     Amended Plaint be filed in terms of paragraphs 27, 32 and 33, of this Order, within two weeks of the date of this Order.

 

 

Signed, dated and delivered at Ile du Port on 20 April 2016

 

F Robinson
Judge of the Supreme Court