Madeleine & Ors v H. Savy Insurance (CS19/2015)  SCSC 428 (21 June 2016);
IN THE SUPREME COURT OF SEYCHELLES
Civil Side: 19/2015
 SCSC 428
JEAN JOSEPH MADELEINE OF CASCADE, MAHE
MARIE RODNA MADELEINE
H. SAVY INSURANCE
Heard: 10th day of May 2016.
Counsel:Mr. G. Ferley for plaintiffs
Mr. F. Chang-Sam for the defendant
Delivered: 21st day of June 2016
 The Defendant in this case has raised a two-fold “plea in limine litis” dated the 4th day of May 2015 and the 30th day of October 2015 to the following effect:
1. Firstly, that the matter is res judicata as the same parties have appeared before the Supreme Court in Civil Side No. 349/2005 in respect of the same matter and the Court has delivered a Judgment on the 6th March 2013 absolving the Defendant against any liability in the matter; and
2. In the alternative, that, section 10 (1) of the Motor Vehicles Insurance (Third Party Risks) Act (Cap 135) (hereinafter referred to as “the Act”), do not apply to this case.
 Both Learned Counsels as above-referred filed written submissions on behalf of their respective clients as to their legal stance vis-a-vis the points of law as raised on the 30th day of October and 3rd day of November 2015 respectively of which contents have been duly considered for the purpose of this Ruling.
 A brief summary of the facts giving rise to the Plaint as filed on the 24th day of February 2015 as against the Defendant as transpired on pleadings filed thus far, reveals in essence, that the 1st and 2nd Plaintiffs are the parents of late Donalise Madeleine (hereinafter referred to as “the deceased”) and the 3rd and 4th Plaintiffs are the siblings of the deceased who died as a result of a road accident on the 30th day of October 2000. That at the material time, the deceased was a passenger in a motor vehicle S5193 (hereinafter referred to as “the vehicle”), which was being driven by one Wilson Donald Laurence of Anse Boileau (hereinafter referred to as the driver”). The driver pleaded guilty to a charge of negligent driving, in connection with the said accident and was sentenced to a fine of S.R. 4000 in default thereof to three months imprisonment. That at the time of the said accident, the vehicle was owned by one Patrick Walter (hereinafter referred to as “owner of the vehicle”) and was insured under the third party insurance policy with the Defendant. That all Plaintiffs filed a claim under Article 1382 (2) and 1384 of the Civil Code of Seychelles (Emphasis is mine), against the driver of the vehicle Mr. Wilson Laurence, owner Mr. Patrick Walter and the Defendant which claim was registered under suit No. CS No. 349/2005. The Supreme Court dismissed the claim as against the owner of the vehicle and the Defendant on the basis of non-liability of the owner of the vehicle either under Article 1382 and or Article 1384-4 of the Code. The Supreme Court found however that the driver was liable for causing the death of the deceased and entered Judgement against him and the award was in the total sum of S.R. 400,000/- with interests and costs.
 The basis of the Plaint as per averments at its paragraph 7 thereof, is that the driver was a person insured under the third party insurance policy which existed at the material time on the vehicle pursuant to section 5 (b) of the Act. Consequently, the Defendant is obliged pursuant to section 10 (1) of the Act to satisfy the Judgment entered as against the driver.
 It is further revealed from the pleadings, that the Defendant has not made good, demands to satisfy the Judgment hence a breach of the statutory rights afforded to the Plaintiffs pursuant to section 10 (1) of the Act.
 The Plaintiffs as a result are moving this Court by virtue of the Plaint for an Order compelling the Defendant to satisfy the Judgment in Suit CS No. 349/2005; an Order for the Defendant to pay costs of the suit and the costs of this suit; an Order for the Defendant to pay interests at 10% per annum from the date Judgment was delivered in suit CS No. 349/2005; and any other Order that the Court deems fit or necessary in all the circumstances of the case.
 A memorandum of agreed facts was filed by the parties for the purpose of this Ruling which stipulates in a gist that it is uncontested that the Plaintiffs are parents and siblings of the deceased latter having been a victim of a fatal accident which occurred at Anse Aux Pins on the 30th day of October 2000 whilst being a passenger in vehicle No. S5193 belonging to the owner of the vehicle and driven by the driver and the insurer was the Defendant; that Plaintiffs had sued the driver, owner of the vehicle and insurer jointly and severally in damages as legal representatives and in their personal capacity in a civil case before his Lordship Renaud-J and in a Judgment delivered on the 6th day of March 2013, the Learned Judge made the findings that there was no evidence that the owner of the vehicle caused the accident, neither was the owner vicariously liable for the act of the driver and consequently for damages. Further, that the Learned Judge found that there was no cause of action as against the Defendant until there is a Judgment against the person insured in respect of third party risks and the case was dismissed as against the Defendant. Finally, that the Judgment was entered against the driver in the sum of S.R. 150,000 for each Plaintiffs and that the parties to this suit agree to the admission in evidence of the Judgment of Learned Renaud-J as above referred in part in Civil Side No. 349/2005 and of the standard policy of insurance for the motor vehicle as the applicable policy in the case in Civil Side No. 349/2005.
 Learned Counsel Mr. F. Chang-Sam submitted in support of the pleas in limine litis as raised at paragraph  of this Ruling on behalf of the Defendantin a gist as follows:
1. Firstly, as to the first plea in limine litis in that, “the matter is res judicata as the same parties have appeared before the Supreme Court in Civil Side No. 349/2005 in respect of the same matter and the court has delivered a judgment on the 6th March 2013 absolving the defendant against any liability in the matter”, it is submitted that, the first case was heard by his Lordship Renaud J in Civil Side No. 349/2005 wherein the Plaintiffs filed a suit as against the owner of the motor vehicle and the Defendant together with the driver. That the Defendant was being sued as insurer of the owner of the vehicle. That His Lordship Renaud-J found that the owner of the vehicle did not authorise the driver to do anything which was outside the scope of the law and consequently the driver was not the préposé of the owner of the vehicle when the driver became involved in the accident hence the owner of the vehicle not being vicariously liable in terms of article 1384 of the Code for action of the driver hence dismissal of the case as against the owner of the vehicle and consequently the Defendant “unless and until a Judgment is entered against the owner of the car the liability of the insurer does not come into question.
It is further submitted in support of the first point of law as raised that in this case, that the plaintiffs are again seeking to make the Defendant liable for the damage they suffered. That in the light of the Judgment of Renaud-J in Civil Side No. 349/2005 the Defendant is not liable and that the issue cannot be raised again before this Court (being another Court) otherwise there would be no end to litigation hence the matter being resjudicata.
2. Secondly, in respect of the second plea in liminie litis as raised in that, section 10 (1) of the Motor Vehicles Insurance (Third Party Risks) Act (Cap 135) do not apply to this case’, it is submitted that section 10 of the Act reinforces instead of departing from the fundamental principles of the law of contract that apply to an insurance contract. That the principle of ‘privity of contract’ dictates that the liability and benefit under a contract will not extend to a person who is not a party to the contract unless the contract says so specifically. That under section 10 of the Act the insurer is only liable to pay the person entitled to the benefit of a Judgment when entered against the person insured and in the Defendant’s opinion, it is only the owner of the vehicle, who was absolved of any liability in Civil Side No. 349/2005 (supra), hence leading to the Defendant not being liable to pay any compensation under section 10 (1) of the Act in favour of the Plaintiffs as a result.
 Learned Counsel Mr. G. Ferley vehemently objects to the pleas in limine litis and submitted his stance as per written submissions as above-referred in essence as follows:
1. Firstly that the plea of res judicata must fail for want of one of the criteria of Article 1351 of the Code in that the cause of action in this suit differs from the one in Civil Side No. 349/ 2005. That the latter cause of action was based on faute arising out or Article 1383 (2) of the Code whereas in this matter being breach of a statutory right conferred on the plaintiffs by section 10 (1) of the Act. Reference was made to the matter of State Assurance Corporation v David Petrousse (Civil Side No. 181/ 86) in that latter regard.
2. Secondly, that section 10 (1) of the Act arising only after Judgment has been obtained, imposes a statutory obligation on insurers to afford protection to victims of road traffic accidents.
 With the above background in mind, I will firstly treat the first plea in limine litis namely in that, “the matter is res judicata as the same parties have appeared before the Supreme Court in Civil Side No. 349/2005 in respect of the same matter and the Court has delivered a Cudgment on the 6th March 2013 absolving the Defendant against any liability in the matter.”
 Now, the plea of res judicata as provided for in Article 1351 of the Code was designed to stop abuses in the form of multiplicity of litigation. It reads as follows:
“The authority of a final Judgement shall only be binding in respect of the subject matter of the Judgment. It is necessary that the demand relate to the same subject matter; that it relate to the same class; that it is between the same parties and that it be brought by then or against them in the same capacities.”
 For interpretation of Article 1351 of the Code one may refer to the cases of Heirs Rouillion v Alderick Tirant (1983 SLR 169); Pouponneau and Others v Janisch (1979 SLR 130); Seychelles Housing Development Corporation v Fernandez, Supreme Court (Civil Side No. 131 of 1989); Julienne v Julienne, Supreme Court (Civil Side No. 68 of 1991) and Hoareau v Hemrick (1973 SLR 272),amongst others.
 As clearly decided in the Court of Appeal case of Georgie Gomme v Gerard Maurel and Ors (SCA 06 of 2010), “the rationale behind the rule of res judicata and its strict application is grounded on a public policy requirement that there should be finality in a Court decision and an end to litigation in a matter which has been dealt with in an earlier case and that the proper adherence to the rule of law in a democratic society enjoins one to ensure that one is debarred from rehearsing the same issue in multifarious forms. Litigation must be reserved for real and genuine issues of fact and law”.
 In the former cited case, the Court of Appeal went further to illustrate the rationale behind the legal principle of res judicata and cited the dictum of Sir James Wigram-V-C (which I find apposite to reproduce in this Ruling). In Henderson v Henderson [1843, 3 Hare 100, 115], reproduced in the case of Bradford & Bingley Building Society v Seddon Hancock &Ors (1999 1WLR 1482), namely that,
“Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward as part of the subject in contest; but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”.
 In the case of Bradford as cited (supra), Auld L.J., further stated vis-à-vis the principle of res judicata in that it is in its cause of action estoppel form, being an absolute bar to re-litigation and in its issue estoppel form also save in “special cases” or “special circumstances” (Vide the cases of Thoday v Thoday  P. 181, 197, 198, Per Diplock L.J. and Arnold v National Westminster Bank Plc.  2 A.C. 93.
 With the summarisation of the position of the law and the rationale behind the principle of res judicata, I will now turn to the current matter at hand.
 Now, in the current matter, it is undisputed as per the memorandum of agreed facts as reproduced at paragraph  of this Ruling, that in Civil Side No. 349/2005, the Plaintiffs filed as against the driver and owner of the vehicle and the Defendant (latter being an insurer), a cause of action based on ‘faute’ hence the Learned Renaud J’s adjudication on the matter on the basis of Article 1382 and 1384 of the Code as against the owner of the vehicle and Defendant and dismissal in favour of the owner of the vehicle and Defendant respectively.
 In this present action it is clearly revealed at paragraph 7 of the Plaint as cited (supra) that:
“Mr Wilson Donald Madeleine was a person insured under the third party insurance policy which existed at the material time on vehicle S5193 pursuant to section 5(b) of the Motor Insurance (Third Party Risks) Act. Consequently the Defendant is obliged pursuant to section 10 (1) of the aforementioned Act to satisfy the Judgement entered against Wilson Donald Laurence.”
 It is thus obvious, following the literal interpretation of the said paragraph of the Plaint as cited, that the cause of action albeit arising out of the same set of facts giving rise to the cause of action in Civil Side No. 349/2005 differs in character and substance in that the cause of action in Civil Side No. 349/2005 was based on tort ‘délit’ and the present action a Judgement Creditor is suing the Defendant in seeking enforcement of a statutory obligation by virtue of Section 10 (1) of the Act. As rightly decided in the case of State Assurance Corporation v David Petrousse as cited (supra), the cause of action is founded not on contract and or ‘delit’ but ‘quasi-délit’ in view of breach of a statutory obligation arising after a Judgment has been obtained hence leading to a different cause of action altogether.
It is to be noted in the same light, that in any event, the current cause of action could not have been pleaded in suit Civil Side No. 349/2005 for it had not yet arose and it arose only after delivery of the Judgment as against the driver in providing a recourse to victims of a road traffic accident.
 Further, it is also paramount to note, that the parties to the proceedings differ in terms of number of Defendants and capacities in which they were being sued. Similarly, in terms of the capacity of the Plaintiffs in that in this suit they are suing in their capacity as Judgment creditors, in trying to enforce a Judgment already delivered in their favour under section 10 (1) of the Act.
 Based on the above analysis as to the first plea in limine litis in the light of the material facts as transpired ex-facie the pleadings, the plea of res judicata is hereby dismissed accordingly for reasons given.
 As for the second plea in limine litis as raised, that, “in the alternative, that, section 10 (1) of the Motor Vehicles Insurance (Third Party Risks) Act (Cap 135), do not apply to this case”, this Court notes that this plea in limine is not reflected in the statement of defence as filed by the Defendant but appears and or raised only at the stage of written submissions hence the Plaintiff not having had the possibility to canvass the point in their written submissions though at the same time not contesting the Court’s consideration of same either.
In the same light, the Court further finds that albeit not raised in the second Defendant’s Statement of defence, ‘A Court or Tribunal should not ignore a point of law even if not raised by the parties, if to ignore it would mean a failure to act fairly or to err in law” (Vide the case of Banane v Lefevre (1986) SLR 110 and Bogley v Seychelles Hotels (1991) Ayoola 231/15). In view of the intricacies of this matter, it is considered that the Court should not ignore the second point of law as raised in the alternative by the second Defendant for the sake of enlightenment as to the position of the law in that regards especially bearing in mind the Memorandum of agreed facts by the parties in this matter.
 Section 10 (1) of the Act is the basis of the second plea in limine litis. It provides thus:
“If, after a policy of insurance has been effected, Judgement in respect of any such liability as is required to be covered by the policy under paragraph (b) of section 5 (being liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the Judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgements.”
 Sub-section (2) of section 10 of the Act inter alia, provides that no sum shall be payable by an insurer in respect of a Judgment unless before or within 14 days after the commencement of the proceedings in which the Judgment was given. In this case, it is not in dispute that the Defendant had notice of the bringing of the proceedings in Civil Side No. 349/2005.
 Section 5 (b) as referred to in section 10 (1) of the Act provides in its turn that:
“5. In order to comply with the requirements of section 4, the policy of Insurance must be a Policy which-
(b) Insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to any person caused by or arising out of the use of the vehicle on the road.”
 In line with section 5 (b) the policy of insurance as admitted by the parties at its section 2 clause 2 (a) to (e) provides that the insurer (Defendant) will also indemnify in terms of sub-section 1(a), “any authorised driver described in the Certificate if Insurance driving on the Insured’s order or with his permission or any passenger.” (Emphasis is mine).
 On the basis of the above section of the Policy as read in line with section 10 (1) of the Act and careful scrutiny of the evidence in Civil Side No. 349/2005 as per Memorandum of agreed facts, it s evident and clear that the owner of the motor vehicle “insured” did authorise the driver to drive the motor vehicle and or did drive the motor vehicle with the owner of the motor vehicle’s permission.
 Hence since as required by section 10 (1) of the Act, bodily injury to third party is covered by the Policy of Insurance of the insured in this case, notwithstanding that the insurer may be entitled to avoid or cancel the policy, the sum payable under the Judgment as against the driver, the interest thereon, and costs become payable.
 It is in the humble opinion of this Court wrong to argue and or try to mislead this Court as to the basis of Learned Renaud-J conclusion in his Judgment in Civil Side No 349/2005 inter alia, in that he decided obiter dictum that, “only the owner is covered under the policy of insurance as “insured””. The Learned Judge’s Judgment had not analysed and or has any bearing on the liability of the Defendant a l’égard the driver but only as against liability of the owner of the vehicle on the basis of personal liability based on “faute” and or “commettant-préposé” relationship, which in my opinion the Court rightly decided as it did.
 The third party sues the insurer not under the Policy, to which he is not privy, but under the Act. Hence, any discharge from liability must be sought under the Act, which creates the right of the third party, and not under the Policy that bind the insured and the insurer (vide: the case of Daniel Adeline versus State Assurance Corporation of Seychelles (Civil Side No. 265 of 1998).
 It follows, in the light of the above analysis that I hereby dismiss both pleas in limine litis as raised by the Defendant with costs.
Signed, dated and delivered at Ile du Port on 21st day of June, 2016.
Judge of the Supreme Court