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Ex parte Socrate (MA 338 of 2021)  SCSC 35 (21 January 2022);
E. CAROLUS, J
This ruling arises from an application made by Josette Socrate for an urgent ex-parte injunction pending determination of the principal suit in CS125/2021, filed by the said Josette Socrate against Daniel Socrate. It is averred both in the plaint and in the applicant’s affidavit in support of the application that a conditional order of divorce has been granted to dissolve the marriage between the parties in the principal suit.
The facts as they appear from the plaint are that the parties are joint owners of Title No. LD319 on La Digue, on which stand:
Pension Fidele – a self-catering tourism establishment licensed in the name of, and operated by, the applicant/plaintiff. Pension Fidele is made up of two parts namely Pension Fidele Main comprising 5 bedrooms and Pension Fidele Appartments comprising 2 bedrooms. Pension Fidele was a going concern until 22nd November 2021, when the matters giving rise to the principal suit, as recounted below, occurred;
the matrimonial home which the applicant/plaintiff and the parties’ children have occupied for the past two years; and
Karambol – a self-catering apartment, which the defendant has occupied for the past two years.
On 22nd November 2021, the defendant came into Pension Fidele Main and removed all the kitchen windows of the building. The applicant/plaintiff reported the matter to the police who attended the scene but informed her that they could not intervene in a civil matter. On the same day, after the police left, the defendant locked the whole building of Pension Fidele Main preventing the applicant/plaintiff from having access thereto and disrupting the operation of the tourism business. The applicant/plaintiff also has a locked storage area in that building which she is unable to access. The defendant moved into Pension Fidele Main a few days later where he is still residing to date.
In terms of the plaint the applicant/plaintiff avers that as a result of the actions of the defendant she has suffered damages in that she cannot operate her tourism business from Pension Fidele Main and had to cancel all bookings from clients during the 2021/2022 festive season which is prime time for the business. Accordingly, she seeks a judgment ordering the defendant to vacate Pension Fidele Main; allowing her to break the lock and anything else placed by the defendant on the building to prevent her from having access thereto; allowing her to have access to and to operate her business in Pension Fidele Main; and a permanent injunction preventing the defendant from accessing and interfering with Pension Fidele Main and Pension Fidele in general.
The same facts are rehearsed in the affidavit in support of the application. The remedies sought in terms of the application are as follows:
For an order of a Writ of Injunction, pendent lite,
Ordering the respondent/defendant to vacate Pension Fidele-Main, and
Restraining and prohibiting the respondent/defendant from accessing and interfering with Pension Fidele-Main and the operation of the tourism business therewith; and
Allowing the applicant, pendent lite, to:-
Break the lock, and any other preventive measures by the defendant or otherwise, placed by the respondent/defendant on the building on Pension Fidele-Main,
Allow the plaintiff access to Pension Fidele-Main and to operate the tourism business thereon; and
Any other Order which the Honourable Judge deems appropriate in the circumstances.
In addition the applicant avers in her affidavit that she will suffer more inconvenience/ hardship if the Court does not grant her application for a writ of injunction, than the defendant would if the application is granted. She also avers that the defendant continues to be in possession of Karambol where he can have all his residential amenities, and further that his acts have and continue to destabilise the business operations of Pension Fidele.
The application came before the Court on 14 January 2022, and having been made ex-parte, no notice of the proceedings had been given to Mr. Daniel Socrate. Consequently he was neither present nor represented in the proceedings.
Sections 304 and 305 of the Seychelles Code of Civil Procedure provide for the making of an application for a writ of injunction upon due notice given to the defendant. However according to established case law, such an application may be made ex-parte in urgent cases. Vide Bonte v Innovative Publication (1993) SLR 138, Colling v Labrosse (2001) SLR 236, Government v Ramrushaya (2003) SLR 94, Ex Parte: Giovanni Rose (2006) SLR 133. Being satisfied that the application was properly made ex-parte due to the urgency of the matter, I proceeded to hear the matter, and Counsel for the applicant moved as per the application, without adducing any further evidence.
Having gone through the application I observe that there is only a Notice of Motion and the supporting affidavit of the applicant on file. There are no supporting documents exhibited to the affidavit.
Given the nature of the application, this Court has to be satisfied of at least certain essential matters averred by the applicant, before granting the reliefs she seeks. These matters could have been proved to the Court’s satisfaction by producing documentary evidence of the same by exhibiting them to the applicant’s affidavit. At the very least documentary evidence that the parties are joint proprietors of LD319, that the license to operate Pension Fidele as a self-catering tourism establishment is in the name of the applicant, and records if any of her report to the police, should have been produced.
This Court has stated countless times before that it is not sufficient merely to aver certain essential matters in an affidavit, but that where they can be proved by documentary evidence these should be exhibited to the affidavit. That this was not done shows an unacceptable and marked lack of diligence on the part of counsel for the applicant.
In the circumstances the applicant not having proved to this Court’s satisfaction the aforementioned matters, which this Court considers essential in order to make an informed decision in this application, this Court declines to grant the application.
The application is therefore dismissed.
Signed, dated and delivered at Ile du Port on 21st January 2022.
E. Carolus J