Jean & Ano v MacGaw (Civil Appeal No. 6 of 1990) [1991] SCCA 12 (11 April 1991)

I Franky Jean Anna Bolle In the Court of Appeal of Seychelles Civil Appeal No.6 of 1990 APPELLANTS versus Paul Macgaw RESPONDENT B. Georges for Appellant Mrs. Twomey for Respondent SEYC't Judgment of Mustafa P Paul Macgaw the respondent in this appeal, was the successful plaintiff in an action in the Supreme Court he had filed against Franky Jean the appellant herein. The respondent had claimed a refund of Rs.40,000 being an advance he had made to the appellant for repairs to a house which were not carried out. The respondent had purchased a house from the appellant in the latter's capacity as personal representative and agent of the owner,one Anna Bolle. Anna Bolle was joined in the action as a second defendant. The respondent and the appellant had viewed the house and the respondent alleged that the purchase price agreed for it was Rs.150,000. The house needed certain repairs. The appellant was a reputable builder. The respondent alleged that the appellant agreed to carry out the necessary repairs for the sum of Rs.50,000, being as to Rs.40,000 cost of material and being as to Rs.10,000 labour charcies. The appellant and the respondent met at the office of -2- a notary Public where the respondent paid the appellant a cheque for Rs.190,000. The respondent stated that the sum of Rs.150,000 was for the purchase price of the house, and the Rs.40,000 an advance towards the house repairs. He combine d the payments in one sum presumably because the appellant was both the seller of the house and the builder who was to carry out the necessary repairs. An instrument of transfer was executed and the purchase price was stated to be Rs.150,000. The respondent alleged that shortly after he had occupied the house an electrician and a plumber were sent by the appellant to the house. The electrician checked a few wires and the plumber negligently turned on or off a wrong water pipe, causing flooding to one of his cupboards damaging a number of sheets and linen. The respondent,in his action,also claimed a sum from the appellant for damage to his goods, and also claimed a sum for moral damages. The respondent alleged that the appellant did not carry out any repairs to the nouse as contracted for. The appellant's version was that the agreed purchase price for the house was Rs.200,000, that he had at no stage agreed to carry out any repairs and that in fact the balance of the purchase price i.e. Rs.10,000 was secured by a charge made by the respondent in favour of the owner Anna Bolle. The appellant counter-claimed for the Rs.10,000 secured on the charge. Both the instrument of transfer and the charge documents were exhibited at the trial. The issue in dispute briefly was whether the purchase price of the house was Rs.150,000 or Rs.200,000, and whether the sum of Rs.40,000 was part payment of the purchase price or an advance for repairs to be carried out to the house. The two factors would appear to be inextricably linked. The trial judge held that the purchase price was Rs.150,000 as stated in the instrument of transfer. He also held that the plumber sent by the appellant was negligent. He awarded the respondent Rs.55,000, being as to Rs.40,000 for the refund, Rs.5,000 for damages to the linen and Rs.10,000 for moral damages. He granted costs to the respondent. He also gave judgment in favour of Anna Bolle for Rs.10,000 on the counter-claim with costs and dismissed the suit against her. From that judgment the appellant has appealed; there is no cross appeal from the decision in favour of Anna Bolle. The respondent relied on the instrument of transfer for his contention that the purchase price was Rs.150,000 - see article 1319 of the Civil Code of Seychelles. That was cogent evidence. The onus was on the appellant to impeach or rebut that instrument. He successfully persuaded the trial judge that he had the beginning of proof in writing to rebut the instrument, and the respondent was accordingly examined by appellant's counsel. The respondent's evidence briefly was that he returned to Seychelles after many years overseas and was looking for a home-. He met up with the appellant. He inspected the house with appellant and agreed to purchase it for Rs.150,000. He said he had about Rs.50,000 or so in ready cash, but was expecting more funds from his overseas assets. He arranged a loan from a local bank for Rs.150,000 for the house purchase. Tne loan application was granted and it was stated therein that the sum of Rs.150,000 was for the purpose of the purchase of a house by the respondent. As security there was a first mortgage on the house for Rs.150,000 in favour of the bank plus a houseowner's policy for Rs.200,000. The respondent stated that he discussed the necessary repairs to the house with the appellant who suggested that he himself could do that work. It was agreed between them that the total repair cost would be Rs.50,000. It was an oral, a sort of gentlemen's agreement. The respondent was of the view that it was a good house and that he was prepared to spend a total sum of Rs.200,000 on it. The respondent stated that the details of the repairs were orally agreed upon in or about October 1987, and that he later made out a written list for such repairs, but that the appellant did not sign it, and was apparently never asked to do so. The respondent's wife also testified as to the repairs agreed tobe carried out by the appellant. There were some discrepancies between the respondent and his wife as to when or where the written list for repairs was made and so on. And the respondent was unable to explain why he had executed a charge on his house in favour of Anna Bolle for Rs.10,000. The respondent's counsel had suggested it was a security for payment of the sum of Rs.10,000 for labour charges. That seems a rather lame explanation to me. It also transpired that the respondent never wrote to the appellant demanding why no repairs were carried out as contracted for and towards which he had paid Rs.40,000. In fact inthe meantime the respondent had carried out certain repairs to the house including repairs to a leaking roof at his own expense. The respondent testified that he had spoken to the appellant about the repairs and the appellant had said that he was then extremely busy and would deal with the house repairs in due course. The respondent did not unduly press theappellant since he was then on good terms with him, but he did tell the appellant that he had to refund the respondent for the amount of money the respondent had spent on the repairs in the meantime. Another feature was that it was the appellant who first demanded payment of the sum of Rs.10,000 secured on the charge over the house in May 1988. It seemed that demand prompted the respondent to file a suit for the recovery of the sum of Rs.40,000 he alleged he had paid in advance for the house repairs which were never carried out. Mr. Georges for appellant emphasised these unusual features in the respondent's claim and submitted that adverse inferences must inevitably be drawn against the claim made by the respondent. The appellant's version was that the purchase price was Rs.200,000; Rs.190,000 was paid and the balance of Rs.10,000 was secured by a charge on the house in favour of the owner Anna Bolle. He could not explain why in that event the purchase price was stated to be Rs.150,000 on the instrument of transfer. Mr. Georges however, in his address to us, suggested that the price was probably written down deliberately to avoid the payment of the full stamp duty. That however was not the case put up by the appellant,neither in his pleadings nor in his evidence and it was not an issue at the trial. Indeed it was not even a ground of appeal before us. Mr. Georges has asked this court ad hoc to make such an inference, because he submitted the version given by the respondent that the sum of Rs.40,000 was for repairs was -6- totally incredible. I am not prepared to entertain, let alone draw such an inference involving fraud in a civil matter by innuendo as it were,when fraud is not raised or relied on by the parties in dispute themselves. The trial took place about three years after the event and it is not surprising that there were some inconsistencies between the accounts given by the respondent and his wife as regards the making of the repair list. Memories must have been blurred by the passage of time. It could well be that the respondent and his wife were testifying as best as they could. Mr. Georges pointed out the unusual and odd features in the respondent's version of the matter, but the trial judge stated that he had heard and seen the witnesses testify and had noted their demeanor and had carefully reviewed all the evidence before him. He then,ona balance of probabilities preferred the respondent's version of the matter. He was entitled to do so. Despite Mr. Georges submission that the trial judge had failed to deal specifically with the points he had raised, I am satisfied,reading the judgment as a whole, that the trial judge had directed his attention to all the relevant facts and evidence before him. He was faced with two versions of events, both unsatisfactory. He heard evidence led in an attempt to rebut the instrument of transfer but in the end he was satisfied that the appellant had failed to impugn0 the authentic document. That instrument of transfer speaks for itself. There was no evidence adduced by the appellant to rebut the transfer instrument at all. There is another inexplicable feature in this case. The trial judge, for reasons which escape me, found that the charge on the respondent's house to secure the payment of Rs.10,000 to Anna Bolle was in respect of the payment of stamp duty which the respondent had agreed to pay. That was not the contention of either the appellant or respondent and was not based on any evidence There is however no cross-appeal on the payment of this sum of Rs.10,000, and it is not necessary to deal with it as it is not germane to this appeal, despite Mr. Georges' contention that it is an indication _ how the trial judge had misappreciated and misdirected himself on the evidence. In the result I find no reason to disturb the finding and conclusion of the trial judge. I would dismiss the appeal with costs. 4/0,4,(42-1-61- A. MUSTAFA President. Dated at / ft-this dayof 199/ zYa 4 ,-,.4-ed /IL 6- /A yi-e6z e e ,17A- . In the Seychelles Court of Appeal Frankly Jean and or Appellant V Paul Macgaw Respondent Civil Appeal 6 of 1990 Judgment of Goburdhun J. A The case for the respondent is that in November 1987 he bought a house belonging to Dr Anne Bolle for R150,000. Appellant no. 1, (hereinafter called Frankly Jean) acted as the personal representative of Dr Anne Bolle. The respondent alleges that Frankly Jean also agreed with him to carry out repairs to the house, such repairs to include guttering and rewiring, for the sum of R50,000. On the 1st February 1988 the transfer of title was effected before notary Morel. The respondent paid R190,000 to Frankly Jean by way of a cheque, R150,000 being the purchase price of the house and R40,000 an advance on the costs of repairs which Frankly Jean had undertaken to carry out to the house. The remaining balance of R10,000 for repairs was to be paid on completion of the repairs. The respondent further alleges that Frankly Jean in breach of his agreement failed to carry out any repairs to the house. He accordingly claimed damages from him before the Supreme Court. Appellant Frankly Jean denieJ the allegations of respondent. He contendS that the agreed purchase price of the house was R200,000 and not R150,000, of which the respondent paid R190,000 leaving a balance of R10,000 which sum was secured by a charge over the whole property. He further denies that there was any agreement between him and respondent to carry out any repairs to the house. Evidence was heard and the learned trial Judge accepted the version of respondent and gave judgment in his favour in the sum of 855,000. Appellant Frankly Jean is challenging the findings of fact of the learned trial Judge. law that the prohibition of article 1341 of the Code to adduce oral evidence against a written document is not a question of public order and parties may waive any objection to oral evidence. Counsel objecting to such evidence must be on his guard not to allow oral evidence to go on record unless the Court makes a pronouncement overruling the objection, otherwise his silence may be interpreted to be a waiver or acquiescence on his part and whatever evidence is ushered in may be retained against his client. The learned trial Judge in his considered judgment opted for the version of respondent on both the issues as to the purchase price of the house and the agreement to carry out repairs to the house. Counsel for appellant argued forcefully before us on the facts of the case and gave a number of reasons why the learned trial Judge should have accepted the version of his client and Counsel for respondent in her turn gave reasons why the findings of the learned trial Judge should not be disturbed. I have scrutinised the record in the light of the addresses of Counsel and find that the points made before us were also put to the learned trial Judge. It is to be noted that there is not a tittle of evidence adduced by the appellant to explain why he signed the document before the Notary if its contents were not true. ;here I find'WaJ sufficientevidence before the learned trial Judge to enable him to come to the conclusion he did. I would accordingly dismiss the appeal with costs. Delivered at Victoria this day of Daymeh.orP 1-9-90". (C0-11—v 11 Goburdhun (Justice of Appeal) cifitz./4, t_e_c ey4,/,11----e-A-Q 4-e 07- /) -