Ernesta v Petrousse (CC 35/2014) [2016] SCSC 303 (29 April 2016);

 

IN THE SUPREME COURT OF SEYCHELLES

Civil Side:  35/2014

 

       [2016] SCSC 303     

 

 

 

DOLOR ERNESTA

versus

FRANKIE PETROUSSE

 

 

Heard:                         18 January 2016

Counsel:                      Guy Ferley for plaintiff                                        

 

Delivered:                   29 April 2016

JUDGMENT

 

Robinson J

 

 

[1]               Introduction

[2]               This suit is founded on Articles 1134, 1326 and 1153 of the Civil Code of Seychelles Act [CAP 33]. The Civil Code of Seychelles Act [CAP 33] is hereinafter referred to as the Civil Code.

[3]               Plaintiff is suing on two acknowledgments of debt.

[4]               The issues for the determination of this court are whether or not ?

(A)             Defendant is bound by the two acknowledgments of debt, each under private signature, pleaded against him?

(B)              a notice of ″mise en demeure″ is necessary before suit under Article 1153 of the Civil Code?

[5]        Case for Plaintiff

[6]        This suit proceeded ex parte.

[7]        Plaintiff, Mr. Dolor Ernesta, is and was at all material times a businessman.

 

[8]        Defendant, Mr. Frankie Petrousse, was at all material times engaged in construction.

 

[9]        On 15 June, 2014, Defendant signed two acknowledgments of debt. In one of the said acknowledgements of debt, Defendant acknowledged owing Plaintiff a sum of Euro (€) 44, 394.00/- (exhibit P2). In the other acknowledgement of debt, Defendant acknowledged owing Plaintiff a sum of Seychelles rupees (SCR) 147, 455.00/- (exhibit P3). In both acknowledgments of debt, Defendant bound himself to the payment of interest in case of delayed performance.

 

 [10]     Exhibits P2 and P3 were drawn up by Defendant and witnessed by one Ms. Bernadette Contoret. Exhibits P2 and P3 were registered and stamped.

 

[11]      Defendant did not pay Plaintiff the sums of €44, 394.00/- and SCR147, 455.00/- lent to him in terms of the acknowledgements of debt, and is, therefore, in breach of the unilateral undertakings.

 

[12]      Plaintiff demanded the immediate payment of the sums of €44, 394.00//- and SCR147, 455.00/- and 10 % interest thereon in terms of the acknowledgements of debt.

 

[13]      Defendant refused, failed and neglected to pay Plaintiff the sums of €44, 394.00/- and SCR147, 455.00/- and interests thereon in terms of the two acknowledgements of debt. Plaintiff did not plead any written notice of ″mise en demeure″.

 

[14]      Plaintiff is asking this court to enter judgment in his favour and order Defendant to pay him ?

 

            "(i)       EUROS 44,394.00/-;

 

(ii)        EUROS 4439.40/- being interest due for the month of September 2014 and a similar amount for each month that the loan remains not paid;

 

            (iii)       SR 147, 455.00/-;

 

(iv)       SR14, 745.50 being interest due for the month of September 2014 and a similar amount for each month that the loan remains not paid; and

 

            (v)        Costs of this suit.".

 

[15]      Discussion

 

[16]      Firstly, this court determines whether or not Defendant is bound by the two acknowledgments of debt?

 

[17]      Article 1326 of the Civil Code provides ?

 

?1326 ? 1. A note or promise under private signature whereby one party undertakes an obligation towards another to pay him a sum of money or something of value shall be written in full, in the hand of a person who signs it; or at least it shall be necessary that apart from his signature he adds in his own hand the formula ″valid for″ or ″approved for″ followed by the amount in letters or the quantity of the thing. This requirement shall not apply to tradesmen and employees acting within the scope of their trade or employment.

 

1.                  The requirement of the formula as in paragraph 1 of this article shall not apply to promissory notes which are regulated by the Bills of Exchange Act, Cap 15, or any law amending or replacing that Act.?.

 

[18]      Two conditions are necessary for the application of Article 1326 of the Civil Code ?

 

            (a)        that the undertaking must be unilateral; and

 

(b)        that the undertaking should contain an obligation towards another to pay a sum of money or something of value (de choses appreciables).

 

[19]      I reproduce the content of exhibit P2 ?

 

            ?I, Frankie Petrousse of Grand Anse, Mahe, Seychelles, acknowledged owing to Mr. Dolor Ernesta of Sans Souci, Mahe, Seychelles, the sum of Euro Forty four thousand, three hundred and ninety four (Euro 44,394.00) which became due on 31st July 2013.

 

The outstanding amounts should be paid into the following Bank accounts:

                        Bank Name: Mauritius Commercial Bank – […]

 

The total amount is to be paid on or before 31/08/2014. Failure to pay on or before the 31/08/2014. Shall bear interest at the rate of 10 % monthly.

 

Dated this 15th day of June 2014.

 

Name Frankie Petrousse                                  Witness Ms Bernadette Contoret

 

(SD)     Frankie Petrousse                     (SD) Bernadette Contoret

 

Good for the sum of Euros 44, 394.00 fourty four Thousand Three Hundred and Ninety Four only

 

(SD)     Frankie Petrousse″

 

[20]      I reproduce the content of exhibit P3 ?

 

            ?I, Frankie Petrousse of Grand Anse, Mahe, Seychelles, acknowledged owing to Mr. Dolor Ernesta of Sans Souci, Mahe, Seychelles, the sum of One hundred and forty seven thousand, four hundred and fifty five (SCR 147, 455.00). which became due on 31st July 2013.

 

The outstanding amount should be paid into the following Bank accounts:

                        Bank Name: Nouvobanque – A/C Number: […]

 

The total amount is to be paid on or before 31/08/2014. Failure to pay on or before the 31/08/2014. Shall bear interest at the rate of 10 % monthly.

 

Dated this 15th day of June 2014.

 

Name Frankie Petrousse                      Witness Ms Bernadette Contoret

 

SD Frankie Petrousse                           SD Bernadette Contoret

 

Good for the sum of SR 147, 455. 00, one hundred and forty seven Thousand four Hundred and fifty five only.

 

(SD)     Frankie Petrousse″

 

 

 [21]     Exhibits P2 and P3 contained unilateral undertakings by Defendant, namely, the obligation towards Plaintiff to pay him the principal sums of €44, 394.00/- and SCR147, 455.00/-. Exhibits P2 and P3 were signed by Defendant. In terms of Article 1326 of the Civil Code, the unilateral undertaking ″shall be written in full, in the hand of a person who signs it; or at least it shall be necessary that apart from his signature he adds in his own hand the formula, ″valid for″ or ″approved for″ followed by the amount in letters or the quantity of the thing″.

 

[22]      I have examined the two acknowledgements of debt. The undertakings were not written in full in the hand of Defendant. The undertakings were typed out. In terms of Article 1326 of the Civil Code, Defendant had at least apart from his signature added in his own hand the formula ?Good for the sum of? followed by the amount in letters and figures. With respect to the formula the words ″″valid for" or "approved for"″ have been replaced by the words ?Good for the sum of?.  In light of those defects, is the Defendant bound by the two acknowledgments of debt?

 

[23]      Article 5 of the Civil Code provides ?

 

″5?(1) The text of the Civil Code of Seychelles as in this Act contained shall be deemed for all purposes to be an original text, and shall not be construed or interpreted as a translated text.

 

(2) Nothing in this Act shall invalidate any principle of jurisprudence of civil law or inhibit the application thereof in Seychelles except to the extent that it is inconsistent with the Civil Code of Seychelles.″.

 

[24]      This court refers to Dalloz Codes Annotés Nouveau Code Civil III Art. 1168 à 1581 [C. Civ.   ? Art. 1326.] which reads ?

 

                        ?Le billet ou la promesse sous seing privé par lequel une seule partie s’engage envers l’autre à lui payer une somme d’argent ou une chose appreciable, doit être écrit en entier de la main de celui qui le souscrit; ou du moins il faut qu’outre sa signature, il ait écrit de sa main un bon ou un approuvé, portant en toutes lettres la somme ou la quantité de la chose;

 

                        Excepté dans le cas o? l’acte émane de marchands, artisans, laboureurs, vignerons, gens de journeé et de service.?.

 

 

[25]      On this question, notes 227 and 241 of Dalloz Codes Annotés Nouveau Code Civil III Art. 1168 à 1581 [C. Civ.  ? Art. 1326.]. § 2. ? Forme de l’approbation are relevant ?

 

                        "227. ? 1. ? Lorsque l’acte n’est pas écrit de la main de celui qui le souscrit, la simple approbation ne suffit pas ; il faut qu’elle soit accompagnée de l’indication, en toutes lettres, de la somme ou de la chose ; l’approbation de l’écriture ne peut pas remplacer l’approbation de la somme.  ? J. G. Obligat., 4157. ? J. G. S. eod. vo 1726. ? En ce sens : AUBRY ET RAU, 4e édit., t. 8, § 756, p. 241, texte et note 72 ; Demolombe, t. 29, n450 ; Laurent, t. 19, n 250.

 

 

                        241. Les expressions bon et approuvé peuvent être remplacées par des termes équivalents. Mais elle ne peuvent pas être entièrement supprimées, lors méme que la somme est enoncée en toutes lettres au bas du billet. ? J. G. Obligat., 4158.?".

 

 

[26]      In light of the above, this court is of the opinion that the acknowledgements of debt fulfil the requirements of Article 1326 of the Civil Code. The undertakings were not written in full in the hand of Defendant, however, this court is satisfied that apart from the signature of Defendant, Defendant has added in his own hand the formula ?Good for the sum of? followed by the amount in letters and figures. With respect to the "forme" of the formula, this court holds that the words ?Good for the sum of? are words equivalent to the words "valid for" or the words "approved for".

 

[27]      This court holds that exhibits P2 and P3 serve as complete proof of the unilateral undertakings, namely the obligation of Defendant towards Plaintiff to pay Plaintiff the principal sums of €44, 394.00/- and SCR147, 455.00/-.

 

[28]      Second, this court considers the question of damages arising from failure to perform.

 

[29]      Plaintiff is claiming damages arising for delayed performance in terms of exhibits P2 and P3 as from the month of September, 2014.

 

[30]      According to exhibit P2 and P3 the rate of interest is ten percent (10 %) monthly for delayed performance as follows ?

 

″The total amount is to be paid on or before 31/08/2014. Failure to pay on or before the 31/08/2014. Shall bear interest at the rate of 10 % monthly.″.

 

 

[31]      Plaintiff has not pleaded a written notice of ″mise en demeure″. The question to be considered is whether or not a notice of ″mise en demeure″ before the suit was necessary? This court states at this juncture that the principles enunciated in Articles 1142 and 1146 of the Civil Code are not applicable because Plaintiff is not claiming damages for breach of contract, but is suing for the performance by Defendant of the obligation involving the payment of sums of money.

 

[32]      Article 1153 of the Civil Code provides ?

 

″1153 With regard to the obligations which merely involve the payment of a certain sum, the damages arising from delayed performance shall only amount to the payment of interest fixed by law or by commercial practice; however, if the parties have their own rate of interest, that agreement shall be binding.

 

These damages shall be recoverable without any proof of loss by the creditor.  They are due from the day of the demand, except in cases in which they become due by the operation of the law.

 

However, the creditor who sustains special damage caused by a debtor in bad faith and not merely by reason of delay, may obtain damages in addition to those of delayed performance.″.

 

[33]      In terms of Article 1153 of the Civil Code, this court is of the opinion that ″demand″ must mean a prayer for the principal sum. The ″demand″ is intended to play the part of a ″notice″ sufficient to set interest running in cases of non-fulfilment of obligations, by which ″notice ″ the principal sum alone can be obtained. The ″damages″ must be claimed for specifically in order to avoid the objection grounded on the prohibition of ″ultra petita″ decisions. Article 1153 of the Civil Code provides that the interest is due, that is to say, in my opinion, demandable.  In view of the construction which I have placed on the word ″demand″, being due as from the date of the claim for the principal, interest should be granted as from that date : (see Baichoo v. Fowdar 1975 MR (Mauritius Report) 80 SCJ 76 Garrioch, S.P.J.*, and de Ravel, J; Lewis Gerald v. The New India Assurance Co. Ltd 1943 MR 109; Alleaume v. Biram 1913 MR 44 and Jean Louis v. Jenkins 1907 MR 71.

 

[34]      Having concluded that a notice of ″mise en demeure″ is not necessary in terms of Article 1153 of the Civil Code, this court considers the rate of interest payable to Plaintiff. The rate of interest is ten percent (10 %) monthly.  Under Article 1153 of the Civil Code the rate of interest is binding on Defendant.  

 

 

[35]      DECISION

 

[36]      This court enters judgment for Plaintiff as against Defendant in the principal sums of €44, 394.00/- and SCR147, 455.00/- together with costs of this action and damages/interest on the principal sums of €44, 394.00/- and SCR147, 455.00/- in terms of the acknowledgments of debt due from the date of filing of the suit.

           

 

Signed, dated and delivered at Ile du Port on 29 April 2016

 

 

F Robinson
Judge of the Supreme Court