PILLAY J

[1]       This Ruling follows a motion by the Plaintiffs’ counsel for the Court to allow them to file their defence to a counterclaim. This motion is brought in terms of section 146 of the Seychelles Code of Civil Procedure.

[2]       By way of background the Plaint in the main matter was filed on the 22nd October 2018 and the defence was filed on the 26th January 2019 with the counterclaim included. Motion to amend the defence was made and allowed on the 1st October 2019. The counterclaim remained unchanged. At no point was a defence to the counterclaim filed. The Plaintiffs "realise(d) that the defence of the counterclaim has been for one reason or another not filed" and sought by way of verbal motion for the "leave of the Court to give some time to file defence in counterclaim" on the 25th February 2020.

[3]       Counsel for the Plaintiffs submitted that the counterclaim forms part of the pleadings being an extension of the Plaintiffs’ Plaint. Counsel submitted further that the “the matters arising out of this defence to counterclaim is of the same nature as of the one that arises out of the plaint” counsel argued that the matter should be considered to be “an extension and an amendment of pleadings”. It was Counsel’s submission, therefore, that the filing of defence to counterclaim would fall under section 146 of the Seychelles Code of Civil Procedure.

[4]       Counsel for the Plaintiffs relied on the cases of Casamar v Aristotle SSC341/1996, Martin Aglae v Gervais Henry & Anor (MA 335/2017 arising in CS 98/2017) [2018] SCSC 245, Petit Car Hire v Mandelson (1977) No.20 and Morin v Pool (2002) SLR 144 to support this argument.

[5]       Counsel for the Defendant objected to the motion on the basis that the Plaintiffs’ Counsel is seeking to apply the wrong section of the Seychelles Code of Civil Procedure. He argued that section 146 of the Seychelles Code of Civil Procedure applies to the amendment of pleadings which presupposes that pleadings have already been filed. Counsel argued that if pleadings had not been filed, they could not be amended. In making this argument Counsel referred to section 76 of the Seychelles Code of Civil Procedure, which specifically provides that pleadings have to be filed in the Registry.

[6]       Counsel for the Defendant further submitted that, though, the Seychelles Code of Civil Procedure makes no specific reference to filing a defence to counterclaim, it should be treated like a defence to a plaint under section 128 of the Seychelles Code of Civil Procedure.

[7]       Counsel for the Defendant therefore submits that section 146 as relied on by the Plaintiffs’ counsel does not apply to the current matter and moved this Court to dismiss the application.

[8]       It is noted that in answer to the Defendant’s submissions Ms. Parmantier for the Plaintiffs maintained her application under section 146 and also referred to the Courts Act section 6 “which gives the Court the power to administer equity and justice”.

[9]       Section 146 of the Seychelles Code of Civil Procedure provides for the amendment of pleadings. It reads:

“The court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that a plaint shall not be amended so as to convert a suit of one character into a suit of another and substantially different character.”

[10]     It is clear that the argument of the Plaintiffs’ Counsel as to the applicability of section 146 of the Seychelles Code of Civil Procedure is flawed. This application itself is specifically a “motion to seek leave to allow the plaintiffs to file their defence in counter claim”. It is not a motion to amend pleadings which would have been the case under section 146 of the Seychelles Code of Civil Procedure.

[11]     Section 146 is a very specific procedure available to parties to amend their plaints in very specific circumstances. It is not a catch all provision to correct procedural defects or irregularities. As the Court of Appeal noted in Multichoice Africa Limited v Intelvision Network & Ano SCA 45/2017:

“The two most instructive cases in the domestic jurisprudence relating to amendments to pleadings are the following:

1. Petit Car Hire v Mandelson [1977] SLR 68, 72-73, in which Sauzier J stated that an amendment to a plaint before the close of one’s case should not be refused (1) if sought in good faith, (2) would not cause prejudice to the other party, (3) would not be compensated by costs and (4) did not alter the nature of the suit. He added that apart from the specific prohibition in the proviso to section 146, the provision was couched in very wide terms and must be given a liberal meaning.

2. Fisherman’s Cove Limited v Petit and Dumbleton Limited (1978) SLR 15, 18 in which Sauzier J stated that an amendment sought would be permitted where it was necessary for the real questions in controversy between the parties to be determined once and for all. He permitted an additional cause of action in the alternative.”

[12]     Although, a liberal meaning is endorsed, this procedural avenue cannot result in the alteration of a suit. This Court agrees that under section 146 of the Code of Civil Procedure, a pleading can be amended at "any stage of the proceedings" as long as such amendment does not convert a suit of one character into another. However, as explained below, where a defendant raises a counterclaim in their Statement of Defence, the nature of the suit inevitably changes, and the Seychelles Code of Civil procedure provides for this.

[13]     Section 80 of the Seychelles Code of Civil Procedure provides:

 “Subject to subsection(2), where a defendant in any action wishes to make any claim or seek any remedy or relief against a plaintiff in respect of any thing arising out of the subject matter of the action, he may, instead of raising a separate action make the claim or seek the remedy or relief by way of a counter claim in the action; and where he does so the counterclaim shall be added to his defence to the action.”

[14]     In Robinson Louis v Dianna Laporte Civil Side 164/2011 [2018] SCSC 979 (17 October 2018), the Supreme Court quoted with approval the following extract from the English judgment of Ammon v Bobbett (1889) 22 Q. B. D., at p. 548: ″[a] counterclaim is substantially a cross-action; not merely a defence to the plaintiff’s claim. It must be of such a nature that the Court would have jurisdiction to entertain it as a separate action″. The Court of Appeal in Maria Adonis v William Celeste (Civil Appeal SCA28/2016) endorsed this position.

[15]     The nature of a valid counterclaim was also considered in The Estate of Charlemagne Grandcourt and others vs Christopher Gill (SCA NO CS 7 of 2011) [2012] SCCA 21 (07 December 2012):

“Section 75 of the Seychelles Code of Civil Procedure states: “The statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim. A mere general denial of the plaintiff’s claim is not sufficient. Material facts alleged in the plaint must be distinctly denied or they will be taken to be admitted.” Section 80(1) of the said Code states how a Counter–claim may be made namely “where a defendant in any action wishes to make any claim or seek any remedy or relief against a plaintiff in respect of anything arising out of the subject matter of the action, he may, instead of raising a separate action make the claim or seek the remedy or relief by way of a counter claim in the action; and where he does so the counterclaim shall be added to his defence to the action.”(underlining by me) The Code has not set out a particular format in which a Counter-claim may be made. In the White Book (2009) it is stated: “A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim (r 20.4). Practice directions state that “the defence and counterclaim should normally form one document with the counterclaim following on from the defence”. The counterclaim has been defined in the Glossary of the White Book as “A claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimants claim.” The White Book too does not contain a format of a counterclaim. The Learned Trial Judge in entering judgment for the plaintiff (Respondent) appears to have accepted that the Amended Defence of 26th November 2008 contained a Counter-claim when he said “I dismiss the Defendants’ (Appellants’) entire claim raised in defence including the one made in the nature of a counterclaim, in the statement of defence dated 26th November 2008 in this matter”. (underlining by me) I am in agreement with the Trial Judge that the Appellants’ (then Defendants’) had made application for rescission in their Amended Defence dated 26th November 2008. In my view it is sufficient for the pleader to state the material facts upon which he makes the Counterclaim. Each pleader may adopt his own style in the absence of a format and provided the other party is put to sufficient notice of a Counterclaim. In view of what was averred in the Amended Defence of 26th November 2008 as referred to at paragraph 28 above and the proceedings in this case, it is difficult to conclude that the Respondent, Plaintiff then, was unaware that the Appellants, Defendants then, were seeking a rescission of the contract by way of a counterclaim and therefore in any way prejudiced.  

[16]     From the above, Counsel for the Plaintiffs is correct that indeed the counterclaim forms part of the pleadings. But Counsel is not correct in her assertion that the defence to “the counterclaim is in fact an extension of the plaintiff’s plaint”.

[17]     According to Rule 20.3.3 (White Book) default judgment applies to a counterclaim. By virtue of rule 20.3(1) an additional claim “shall be treated as if it were a claim for the purposes of these Rules”. In that regard “a person served with a Part 20 claim must file a defence”. It is noted that “additional claims” is defined as “any claim other than the claim by the claimant against the defendant” which includes a counterclaim.

[18]     On a reading of section 80 of the Seychelles Code of Civil Procedure, in line with the jurisprudence on this issue, it follows that the Plaintiff has to file a defence to a counterclaim separately from the Plaint and not amend the Plaint. Where a counterclaim is raised the Defendant is seeking a positive remedy from the Plaintiff and had the Defendant made the claim by way of a separate action a defence would have been required to be filed in answer to the claim. On that basis the defence to the counterclaim cannot be said to be an extension of the Plaint but a separate set of pleadings.

[19]     Parties are, under section 23 and 76 of Seychelles Code of Civil Procedure, required to file pleadings in the Registry. Failure to file pleadings will result in the matter being heard ex parte or judgment being entered in default. In terms of section 146 of the Seychelles Code of Civil Procedure, the Plaintiff could have sought to amend the Plaint and the Defendant could have sought to amend the defence and the counterclaim, those being the pleadings that have been filed and as such are part of the record. However, on the Plaintiff’s failure to file a defence to the counterclaim, the Plaintiff cannot now invoke section 146 of the Seychelles Code of Civil Procedure, since the defence to the counterclaim is not part of the Plaintiff’s Plaint but separate pleadings emanating from the Defendant’s claim against the Plaintiff, which the Plaintiffs needed to file independently of the Plaint.

[20]     With that said, the cases referred to by Plaintiffs’ Counsel are not applicable to the current matter and have not been considered since they all relate to the narrow issue of amendment of pleadings as found above. Their failure to file defence to counterclaim cannot be remedied by relying section 146 of the Seychelles Code of Civil Procedure.

[21]     I now turn to the Plaintiffs’ reliance on section 6 of the Courts Act, which provides:

“The Supreme Court shall continue to be a Court of Equity and is hereby vested 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.”

[22]     It is the view of this Court that the equitable powers of the Court cannot be used to cure defects in pleadings or procedures that were not properly followed. The Plaintiff had sufficient notice of the counterclaim and should have filed a separate defence to the counterclaim.

[23]     On the basis of the above the application to allow the Plaintiffs to file their defence to the counterclaim is dismissed.

Signed, dated and delivered at Ile du Port on 24th April 2020

____________

Pillay J