Dingwall v David Hill Enterprise (PTY) LTD (CA27/2016) [2018] SCSC 1095 (30 November 2018);

 

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CA 27 of 2016

 

[2018] SCSC 1095

 

 

TERENCE DINGWALL

Appellant

Versus

 

DAVID HILL ENTERPRISE (PTY) LTD

Respondent

 

Heard:             17th August 2018

 

Counsel:          Mr. E. Chetty for the Appellant

                        Mr. Guy Ferley for the Respondent

                       

 

Delivered:       30th day of November, 2018

 

                                                            JUDGMENT

                                                                                                                                               

 

ANDRE J

 

[1]        This Judgment arises out of an Appeal before the Supreme Court by Terence Dingwall (“Appellant”), of the 21st October 2016, against David Hill Enterprise (Pty) Ltd (“Respondent”), wherein the Appellant seeks that the decision of the Learned Senior Magistrate Mariam Ng’hwani, given on the 10th October 2016, dismissing the Appellant’s case be set aside and Judgment entered in favour of the Appellant with costs.

 

[2]        The main ground of appeal as per the pleadings is as to whether the Learned          Magistrate was incorrect in her finding that there was no contingent contract created          through the bets, and therefore, no breach of contract occurred noting that the main       matter was with reference to a dispute about a betting game.

[3]        The Respondent resists the appeal and both Learned Counsels filed written submissions illustrating their grounds of appeal and objections thereto and due cognizance has been taken of the same for the purpose of this Judgment.

 

[4]        The following are the relevant factual background as per the Records for the purpose of             determination of this Appeal.

 

[5]        On 16th September 2012, the Appellant placed bets at the Respondent’s business in           several international soccer games. The Respondent runs a betting business and the            Appellant was             a regular customer. He paid an amount of Seychelles Rupees One       Hundred and Fifty (SR 150/-). Afterwards, he claimed that he had won the bets, and that           the Respondent was due to pay him an amount of Seychelles Rupees Forty One Thousand Eight Hundred and Eight   (SR 41 808/-), plus the betting entry Seychelles        Rupees One Hundred and Fifty (SR    150/-). The Respondent refused to pay him. This       was because two of the games that the Appellant betted on were played on 15th                September 2012, a day before the Appellant   placed the bet. The Appellant said that he     was not aware of this when he placed the bets and thus lodged a Plaint in the    Magistrate’s Court, claiming a breach of contract. In his Plaint, he alleged that a valid      gaming contract existed between him and the Respondent. He claimed the amount of             Seychelles Rupees Forty One Thousand Eight Hundred and Eight (SR 41,808/-), which      he said was due to him along with interest. The Respondent in his defence to the Plaint            denied that there was any entitlement to this sum. It claimed that the Appellant had    placed the bets after the games had already been played and the results placed after kick-        off were null and void. Thus, the bets were contrary to public policy and unlawful.

[6]        At the hearing before the Magistrate’s Court, the Appellant led his own evidence and the evidence on behalf of the Respondent was given by its director, one Jeanine Grand-      Court.

[7]        The Appellant testified in a gist that on 16th September 2012 he had gone to the     Respondent’s office where he placed his bets. There was a board where he could place   his bets for the games that would be played on that day, so he picked his teams in Italian             and Spanish leagues. He was then issued with a receipt for the bets he made. He paid a    sum of Seychelles Rupees Forty One Thousand Eight Hundred and Eight (SR 41,808/-),         plus a   Seychelles Rupees One Hundred and Fifty (SR150/-) bet and the receipt shows       the times of the games, the bet number and also the time of that the receipt was issued. It       also showed that the games were between 16:00 to 21:45 on 16thSeptember 2012. The     receipt was issued to him at 11:03 on the 16th. The results of the games were all in his favour. But the Respondent refused to pay.

[8]        He further testified that on the 15th October 2012, he instructed his attorney to write to     the Respondent asking for payment for the bets won. The Respondent’s attorneys       responded on 3rd March 2013, stating that the Respondent was only prepared to pay an        amount of Seychelles Rupees Nine Hundred (SR 900/-), for the bets of that day. The         Appellant testified that the Respondent told him that it would not pay because two of the           games had already been played when the bets were placed. He testified that he was not            aware that the games had already been played and that the Respondent had taken his             money for the bets despite the fact that the two games had passed.

[9]        He admitted that since he was a regular at the Respondent he knew that when games had             already been played, customers would normally not be able to place bets. So, since his       bet was taken, the Respondent intended for this to be an ordinary bet and because he did not know that the two games had passed he was entitled to the payment.

[10]      Under cross examination, it was revealed through Appellant’s testimony that he had          been a customer of the Respondent since it opened and placed bets every week. And that            before 16th September 2012, the most he had won there was Seychelles Rupees One     Hundred and   Seven (SR 107, 000/-). He had been paid this amount. He testified that he            saw the ‘notice to customers’ which contained betting rules at the defendant. The rules        stated inter alia, that, ‘bets are valid for 90 minutes of games (plus injury times) …’.        He also stated that the rules were written on his winning tickets on 17th September 2012,             when he handed in his tickets. He was asked under cross examination whether some of     the games that he had      placed bets on were played on 15th September 2012 and he conceded that the games were played on that day but said that he did not know this at the             time since he had no access to the internet. Hence, he did not know this when he placed             the bets the following day on the 16th. He further conceded that the Respondent offered   to pay him Seychelles Rupees Nine Thousand (SR 900/-) in respect of the other bets he             had won, that had not been played the previous day. When it was put to him that this       was all that was legally due to him, he stated that the receipts showed that the games he           betted on would only be played on 16th September 2012, between 16h00 and 22h00. At       the end of the cross-examination, when he was asked how a passionate football           enthusiast like him could not have watched the games on the 15th, and whether he was aware of the games on the 15th, he responded ‘yes’.

[11]      The Respondent’s witness, Jeanine Grand-court testified that she was the Chief     Executive Officer (CEO) of the Respondent at the time of the incident. She confirmed           that the Respondent had put up a notice of rules to customers. She also testified about             the games schedule for 15th and 16th September 2012 and confirmed that the Appellant          had placed some bets on games that had been played on 15th September 2012. She further             testified that those bets were void. The live score sheet, which was accepted into   evidence as an exhibit, dated 17th September             2012 showed scores for games between             14th and 17th September. She testified that this sheet showed those games that were           played on 15th      September and confirmed that it was             in respect of these games that the       Defendant refused payment.

[12]      The Learned Magistrate delivered Judgment on 10th October 2016 and found that the       contingent contract that had been established between the parties was void ab initio. The        Court made reference to the provisions of Article 1964 of the Civil Code of Seychelles   (“the Code”), and reasoned that the bets for the two games were not dependant on an            uncertain event because the event namely, the outcome of the matches that had already        been played and were certain. Having made this determination, it was ordered that the            Defendant repays the initial bet in the amount of Seychelles Rupees One Hundred and      Fifty (S.R. 150/-) to the Plaintiff.

[13]      With the above layout of the background of the case, I now move to consider the legal     standard to be applied in this case and its analysis thereto.

 

[14]      As mentioned above, the Learned Magistrate determined that the betting contract was      void ab initio because the event upon which the bets were conditioned was certain in       that the outcome of the games had already been made certain. In effect, the Court said that this agreement lacked the element of uncertainty. The Appellant’s evidence was that            he did not know of the outcome of the two games when he placed the bet. The           Respondent attempted to show that he did know. The Magistrate’s Court did not make a             credibility finding on which of these two versions was preferred. Instead, the Court’s       finding in favour of the Respondent, hinged solely on the element of uncertainty.

[15]      It is to be noted that bets and wagers are a class of contingent contracts, which are            defined under Article 1964 of the Code as, ‘a mutual agreement the effects of which,          with regard to the profits and losses, whether for all the parties or one or more of them,     depend upon an uncertain event.’

[16]      It follows from a purposeful meaning of Article 1964 of the Code that they this is a          narrow concept falling under the broad concept of contingent contracts. Other types of     contracts which fall under this class are insurance contracts and life annuities.

[17]      Ordinarily, a betting contract is between two (or more) parties. The first party pays a         sum of money to the second party, and the second party promises to pay a certain sum of money to the first party on the happening of a particular event in the future. If the         uncertain event occurs as the first party had predicted the second party would be liable    to pay. If it does not happen, the second party would not be liable. The basic premise of   the agreement is the presence of parties who are of sound mind to get profit or loss on             the happening of an uncertain event in the future. The happening of this uncertain event    is the sole condition of the contract. It is at the core of the establishment and subsistence       of the contract. If the event is certain, for any reason, then it cannot satisfy this   requirement. This is a factor that is objectively viewed. Thus, the subjective    considerations of the contracting parties are irrelevant. An event either is or is not             uncertain. This is a question of fact, which can only be determined objectively. Once the uncertain event has become certain, it is no longer a contingent contract.

[18]      In the present case, the Appellant’s evidence was that he did not know that the games      had already taken place, and the respondent accepted his bet. The Respondent accepted           the placement of the bets, and took the Appellant’s money. It seems that the Respondent        itself did not know that the two games had already been played. In his view, therefore,   the event (the outcome of the games) was uncertain where they were concerned. 

[19]      While this seems a reasonable view to take, it cannot be accepted by this Court. The          existence of an uncertain event is central to the definition of contingent contracts. And the uncertain event has to be determined objectively. If the subjective beliefs of the         contracting parties are considered to determine this element, the meaning of uncertain      future event would get a new meaning namely, one that is not borne out by the Code. An         event either is uncertain or it is certain. What the parties believed, bona fide or             otherwise, is irrelevant.  Once this element is missing, it ceases to be a bet, because the      event is no longer uncertain. The Learned Magistrate was thus correct in its Judgment.

[20]      In the circumstances, the appellant and Respondent only had a betting agreement for        those bets where the matches had not yet been played. In respect of the two others that         had been played no contract came into effect, because an essential element for the           existence of the contract was missing, namely, the uncertain future event. The Appellant            is entitled to the Seychelles Rupees Nine Hundred (S.R. 900/-) for the bets he had won    for the matches that had not yet been played and a refund in respect of the two matches             that had been played.

[21]      In conclusion, I thus make the following orders:

(a)        The Appeal is dismissed, only in so far as it relates to the two matches that had      already been played on 16th September 2012 and the remainder of the Appeal is upheld. Thus, the Respondent shall pay the Appellant an amount of Seychelles    Rupees Nine Hundred (SR 900) plus a refund for the bets placed on the two       matches referred to above.

(b)        Both parties shall bear their own costs given the circumstances of this Appeal.

 

Signed, dated and delivered at Ile du Port on the 30th day of November 2018.

 

 

 

S. ANDRE

Judge of the Supreme Court