Parcou & Ors v Parcou & Ors (SCA 32 of 1994) [1996] SCCA 25 (5 July 1996)

1. MR. JULIEN PARCOU 2. JULIEN (PROP) LTD 3. MR. AND MRS. OCTAVE TIRANT 1. J. KAVEN PARCOU 2. MRS. THELMA PARCOU 3. MRS. MARINA PARCOU 4. HEDRIC PARCOU CI}'_ILAPI?EAL NO. 32 OF 1994 (BEFORE: Silungwe, Ayoola, Adam JJ. A) MT. B. Georges for the appellants Mr. R. Valabhji for the respondents RULING O_F THE COURT DELJVERED BY AYOOLA! J. A. On 2nd November 1994 the Supreme Court (Amerasinghe, J.) having found that the plaintiffs before him (now "the respondents") are entitled to an undivided 1/4th share and two of the defendants (now "the appellants") to an undivided ~ I 3/4th share of the parcel of land V5553 granted the respondents' application for licitation. Dissatisfied with the decision the appellants filed a notice of appeal pursuant to -and within the time prescribed by rule 54(1) and (2) of the Seychelles Court of Appeal Rules 1978 ("the Rules"). In in terms of rule 58(1) of the Rules they duly gave security respect of the appeal on 7th December 1994. However, they filed a memorandum of appeal outside the time prescribed by rule 59(1). The appellants now seek an extension of time within which to file the memorandum of appeal. -2- The respondents filed pursuant to rule by a document dated 7th June 1996 of the Rules gave notice of intention to object to the "intended appeal" on the grounds that ( 1 ) the appellants had not filed a memorandum of appeal; ( 2) the appellants have accepted that the respondents are entitled to a quarter share of the property; (3) the proceedings in licitation have been stayed and the respondents have already commenced an action against the appellants claiming their share of rent; and (4) it would be oppressive to allow the appeal to continue. Rule 59(6) of the Rules provide that: the memorandum is not filed within the time appeal shall be to have been withdrawn and the appellant of the abortive respondent this rule pay the the to by "If prescribed deemed shall appeal." However, by a 1-0 proviso I that rule "nothing in this sub-rule shall be deemed to limit or restrict the power of the Court to extend time." The limited question, therefore, in these proceedings is whether the undoubted discretion which this court has to extend time should, on the materials placed before the Court, be exercised in the appellants' favour. The factors that may betaken into account 1n exercise of the jurisdiction to extend time pursuant to rule 11 of the Rules have been succinctly stated in the judgment of Adam, J. A. in Roger Confiance & Anor. v. Beryl Hoaureau (Civil App No. 39 of 1994: delivered on 9th November 1995) as follows: way this rule Court to cause extend the time. to reason good "According sufficient another Applicants. account for respondent is an arguable case on the appeal." have Put in shown by the The factors that may be taken into include the length of delay, the reasons degree of prejudice to the if time is extended and whether there delay, must must the the be ·.f -3- as are clear authorities that the court would "not fetter to extending time for appealing on laying strict definition on the point, but would always exercise (See The discretion of is exercised in the circumstances and on the facts v. De Bathe {l887) 3 TLR 445-446). doing justice." The its discretion any its discretion Weldon the of each case. purpose court for the of of of not but the that have only times order appeal notice carried also a they by intention albeit for have filing extending time to regularise the position. for costs within time. outside In the instant case, the appellants, have filed their appeal but they did so 28 days late and needed At all they evinced an intention to into giving And, filing a memorandum of memorandum an material appeal manifestation security appeal, the appellants gave as reason for not filing the Counsel within time, his reliance on what he claimed to be memorandum counsel which existed at "an could be prepared and the It is filed operation of the rules of court cannot be manifest (or even written) understanding suspended though where the rules permit, counsel among consent abridge or extend the time for for p~rties However, the appellants in the proceedings. a taking penalised for the pardonable error of counsel should not in relying which turns out to have no an legal significance. appeal receipt of the record of the case." understanding memorandum unwritten time understanding step be on prescribed unwritten that by even by counsel, among that only upon time and may the of by an the Rules & to the the judge ground course whether In some on being the held, been appeal that applicable trial proceedings, this at not Without raise its merits purpose to of facie arguable case on the appeal. of the present proceedings, there have argument as to the propriety of the only ground of which, as at now, the appellants intend to rely on of prescription period respondents' claim is 10 years, or as the the unable, on the argument advanced, which be limited, to hold that that ground is ground. the right of the respondents to point as to the propriety of the ground or contest at the hearing of the appeal, it suffices for the hold that there is a prima this substantial application in anyway available are must limiting is not years. stage stage that this the it of At or we a to The the placed materials respondents grant that as them. unable of prejudice if time is extended. the court does not show have altered their position in any way of an extension of time prejudicial to the facts disclosed in these proceedings we are that the respondents would suffer any degree before hold make to On a In the result, we overrule the respondents' objection appellants' is ordered that time withn to the application. which to file the memorandum of appeal in this case be Accordingly, intended and it appeal grant the -4- extended memorandum 1995 be deemed properly filed within the extended time. that the further today. appeal filed by the appellants on 18th January till of ordered is It Dat~s day of 1996. A.~WE JUSTICE OF APPEAL ~~ E. O. AYOOLA JUSTICE OF APPEAL ~,~.,~ M. A. JUSTICE OF APPEAL ADAM ..:..::----- jA