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Fontaine v Amesbury (CA 16 of 2019)  SCSC 231 (02 April 2020);
Appeal against an order by the Magistrates Court for the Appellant to pay SCR 5, 000.00 in costs to the Respondent before the next hearing date.
PILLAY J  The Appellant appeals against the order of the Learned Magistrate ordering him to pay SCR 5, 000.00 in costs to the Respondent before the next hearing date. The Appellant’s grounds of appeal are that:(1) Despite being informed in advance of the predicament of the Appellant’s Counsel the Learned Magistrate failed and refused to stand the matter down for 2 hours.(2) The Learned Magistrate erred in law when he gave no lawful reasons for postponing the case to July 2020 in view of the fat that the matter was set for 2 consecutive days.(3) The Magistrate was wrong not to adjourn he matter for the afternoon when the Appellant’s counsel would have been present.(4) The Honourable Magistrate was wrong to deny the Appellant his constitutional right to a fair hearing.(5) The Magistrate was wrong not to give the Appellant the opportunity to exercise his constitutional right to be represented by his Counsel.(6) The Learned Magistrate was wrong to ask the Appellant to conduct his own case when he was aware that:(i) The Appellant was in no position to do so;(ii) The Appellant’s file was with his counsel; and(iii) The Appellant informed the Court he was not able to conduct his defence.(7) The Learned Magistrate was wrong not to proceed with the hearing in the absence of the Appellant’s Counsel who would have arrived in time for cross-examination of the first witness.(8) The Learned Magistrate was wrong to award costs to the Plaintiff in view of the fact that the matter was set for hearing of the Plea in Limine on the morning of the first day.  Mrs. Amesbury representing herself submitted that the appeal should be dismissed for three reasons:(1) Failure to comply with section 43 (1) as the appeal is not a final judgment. (2) Section 43 (2) there shall be no appeal from an interlocutory judgment and the present appeal is against an interlocutory judgment of the court. The only permissible appeal against an interlocutory judgment is with leave of the court and this the appellant has not sought nor been granted. Further the interlocutory judgment does not have the effect of disposing if the claim. (3) Failure to comply with Rule II in regards to the time limit for filing of the memorandum of Appeal, as set out in the Subsidiary Legislation “Rules of Appeal”.  Counsel further submitted that the records of the proceedings show that the stated ground of appeal have no merit. The grounds of appeal above are noted and I do not propose to go through grounds (a) through to (g) as it is my firm belief that counsel for the Respondent did not provide a valid excuse for his lateness or for that matter nonappearance at the agreed hour and indeed as stated by Mrs. Amesbury the record of proceedings speaks for itself. The matter in issue is ground (h) – was the Learned Magistrate wrong to award costs to the Plaintiff? The order dated 27th May 2019 reads as follows:The Plaintiff has moved for cost for which Defendant sought for adjournment, and Plaintiff moved as per Section 129 of the Civil Procedure Code. Brian Julie the Counsel for the Defendant is not present for trial, in reference to make he would be present only by 11:45pm. Plaintiff had agreed for adjournment for today and tomorrow, further the Plaintiff vacuous the Plaintiff witness is present in Court from Mahe, she came by boat but gradually he knew the date since 27th July 2018 is not present for trial. Defendant says he does not wish to make the trial without his Counsel, Plaintiff is not inclined to wait and Defendant is not agreeable to cost but only for an adjournment. Given the about situation as per Section 129 of the hearing of the suit is adjourned subject to cost of SCR 5, 000/- to be paid to the Plaintiff before the next trial date at big interest, hence trial is adjourned for today and tomorrow.  Section 6 of the Courts Act provides as follows:The Supreme Court shall continue to be a Court of Equity and is hereby invested with powers, authority, and jurisdiction to administer justice and to do all acts for the due execution of such equitable jurisdiction in all cases where no sufficient legal remedy is provided by the law of Seychelles.  Section 41 of the Courts Act provides as follows:(1) The Court may make such order as to the whole or any part of the costs in any proceedings before it as may be just and may assess the same or direct taxation thereof.(2) …  Section 43 of the Courts Act provides that:(1) Any person aggrieved by a final judgment of the Court in any civil cause or matter to which he is a party may appeal to the Supreme Court.(3) There shall be no appeal from any interlocutory judgment of the court except where, in circumstances of a particular case, the interlocutory judgment has the effect of disposing of the claim, or of one of the claims, in the suit, in which event the Supreme Court may give leave to appeal on such terms as to security, costs and otherwise as may be just…(3)..  Section 129 of the Seychelles Code of Civil Procedure, which is mirrored in section 52 of the Magistrates Court Civil Procedure Rules, provides that:On the date fixed by the court for the hearing of the suit, the parties shall appear and the court shall proceed to the hearing of the suit. The court may, at any stage of the suit, if sufficient cause be shown and subject to such order as to costs as to the court may seem fit, grant time to the plaintiff or defendant to proceed in the prosecution or defence of the suit and may adjourn the hearing of the suit.  There is no denying that the order of the Learned Magistrate is not a final judgment of the Court in which case there is no right of appeal to the Supreme Court in line with section 43 (1) above. Furthermore the said impugned order does not dispose of the case in which case there is also no issue of the Court granting leave to appeal under section 43 (2) above. It is also not in doubt that the Learned Magistrate had powers under section 52 of the Magistrates Court Civil Procedure Rules to order the Appellant to pay costs for the day. However where the Learned Magistrate faulted was in ordering the Appellant to pay SCR 5000.00 and in addition ordering the Appellant to pay the said sum to the Respondent before the next trial date without assessing it or making an order that the said costs be taxed. On a further examination of the proceedings, at page 12 the Respondent’s request to the Learned Magistrate raises some concern:Mrs Amesbury: And cost for today and tomorrow. It is as only for the legal cost, legal aid cost for a lawyer is SCR 2, 000/- per day so it is SCR 4, 000/- plus another pay for my witness SCR 2, 000/- for the ticket and for the stay for two days. So if I can get cost of SCR 6, 000/- then we can get an adjournment, and the cost needs ti be paid before the next hearing date.”  Firstly the Respondent is self-represented so there is no issue of legal aid, secondly legal aid if it was payable would have been by the Court, thirdly there is no indication from the Respondent as to where she got the figure of SCR 2, 000/-, fourthly there is no substantiation of the “pay” and ticket of the witness and lastly there is no proof of the witnesses’ stay for two days or for that matter justification for the two days’ stay when the case was being adjourned on the first day. It is also noted that the Appellant was in the courtroom ready for the hearing but it was his counsel who failed to attend to his case. The imposition of a costs order to be paid before the next hearing date was almost a punitive order against the Appellant for the failings of his counsel similar to an order for wasted costs made by the Supreme Court. The Appellant was being made to pay for the failings of counsel. In the view of this Court it was open to the Learned Magistrate to proceed with the hearing without counsel, having given the Appellant time to locate his counsel or to order costs against the Appellant if the Appellant requested an adjournment and left the Appellant to pursue disciplinary action against his counsel if he wished. But in making the order he did, it is the humble view of this Court that the Learned Magistrate went beyond his jurisdiction by ordering costs to be paid before the next hearing date without assessment or a direction for taxation. With that said this Court cannot on appeal quash the order of the Learned Magistrate in view of section 43 of the Courts Act above. However the order was clearly wrong and cannot be maintained. In the circumstances it is the view of this Court that this is an instance where its powers under section 6 of the Courts Act should be invoked. It is just and equitable that the order of the Learned Magistrate made on 27th May 2019 for the Appellant to pay SCR 5, 000.00 in costs to the Respondent before the next hearing date be quashed. So it is ordered. In the event that the Appellant has already paid the said sum of SCR 5, 000/- he is to be refunded the said amount. Each side shall bear their own costs. Signed, dated and delivered at Ile du Port on 3 April 2020 ____________Pillay J