Kot Babi Guest House v Seychelles Land Transport Agency (CA 18/2019) [2020] SCSC 469 (26 March 2020)

IN THE SUPREME COURT OF SEYCHELLES Reportable CA 18/2019 [2020] SCSC .~l ~ (Appeal from Magistrate Court Case CS 236/2018) Appellant In the matter between KOT BABI GUEST HOUSE represented (rep. by Mr Charles Lucas) by Robert Labiche and SEYCHELLES LAND TRANSPORT AGENCY Respondent (rep by Mr. George Thachett) Neutral Citation: Kot Babi Guest House v Seychelles Land Transport Agency (CA18/2019) Before: Summary: Heard: Delivered: [2019] SCSC2t~7 March 2020) Burhan J Breach of contract - Contract between parties - Civil procedure does not permit parties to raise new grounds in an appeal not pleaded - Each party is procedurally required to state the whole of its case in the pleadings and must plead the material facts on which it intends to rely - Where a person is operating under a trade name, or registered business they cannot then seek to escape their obligations or liability by claiming non-existence of that business as an entity 21 October 2019 and 6 November 2019 27 March 2020 Appeal dismissed with costs ORDER JUDGMENT BURHANJ [1] This-is an appeal from ajudgment of the Magistrates' Court, wherein the court held that there was a contract between the parties and awarded the respondent (plaintiff in the Magistrates' Court) the sum of SCR 40,0001- with interest. [2] The appellant (defendant in the Magistrates' Court), being aggrieved by the said judgment has appealed on the following grounds: a. the learned Magistrate erred in finding that there was a contract between the parties; b. the alleged defendant to the suit is a non-entity and therefore the plaint ought to have been dismissed; and c. the plaintiff offended section 71(c) of the Seychelles Code of Civil Procedure. [3] The background facts of the case are that the respondent, a statutory agency established under the Seychelles Land Transport Agency Act, booked a three bedroom chalet at the appellant's establishment at the rate of SCR 2000 per night for 20 nights to accommodate a visiting foreign delegation. The respondent had made advance payment in the total sum of SCR 40,0001= to the appellant. Despite the payment, the appellant had failed to provide the said three bedroom chalet, resulting in hardships to the respondent as alternate accommodation had to be found and incurred a loss in the said sum SCR 40,0001= paid in advance which the appellant failed to return. In defence the appellant at paragraph 5 of the defence states that "the purpose of the contract was performed by making the 3 bedroom Chalet available without occupancy by the plaintiff for the whole duration oftwenty nights. " It also makes a counterclaim of SCR 40,0001= on the basis the money was not credited to the Nouvobanq account as per instructions. [4] Having thus set down the facts pertaining to this case and the main issues, this court will next proceed to deal with the grounds of appeal urged by the appellant as set out above. [5] The first ground of appeal that the learned Magistrate erred in finding that there was a contract between the parties, does not ret1ect the pleadings and evidence in this case. At no point during the proceedings before the Magistrates' Court did the appellant contest the existence of the contract. It was not pleaded in the plea in limine nor in the statement of defence. In fact, at paragraph 2 of the defence, the appellant admits paragraph 2 of the plaint and states - "The Defendant avers that he entered into the contract by acceptance of the reservation on a date prior to 12th December 2013 when both the Plairuiff and the Defendant agreed on the services to be rendered and on the price (...)" [6] Further, the appellant filed a counterclaim on the basis of the said contract, claiming payment of the agreed price. A party cannot in appeal when judgement is rendered against them, challenge an issue which is admitted and not in dispute at the trial and even relied on to support their own claim. [7] The same applies for the second ground of appeal: the averment that the cited alleged defendant to the suit is a non-entity was not pleaded but submitted on by the appellant after the evidence in the case. This issue should have been raised as aplea in limine but was actually never raised at any point in the course of the proceedings. Parties are bound by their pleadings and are not permitted to set up a case differently from what they have pleaded (Verlaque v Government of Seychelles (2000-2001) SCAR 16S; Tirant v Banane (1977) SLR 219; Lesperance v Larue (SCAIS/201S). Each party is procedurally required to state the whole of its case in the pleadings and must plead the material facts on which it intends to rely, as the court may not formulate a case for a party after listening to the evidence or grant relief not sought in the pleadings (Hunt v R (1987) SCAR 160; see also Nanon v Thyroomooldy (2011) SLR 92). Further in Barclays Bank v Moustache (1993-1994) SCAR 134, it was held that it is only in exceptional circumstances where there is no prejudice to the other party that a final appellate court can allow a party to raise an issue that was not pleaded at trial. [8] Nonetheless, the argument raised in this ground of appeal cannot be allowed to stand since for all intents and purposes the respondent was dealing with "Kot Babi" or "Kot Babi Guest House" as an entity and not the appellant in his personal capacity or as a sole trader. Mr. Robert Labiche in his sworn evidence on 28 May 2019 during the hearing, admits under oath "Kot Babi "is my business. J trade as Kot Babi Guest house". This clearly establishes the connection between Kot Babi and Kot Babi Guest House which is admitted by its representative himself Mr. Robert Labiche in his sworn evidence. The bank account was in the name of"Kot Babi" (documents P5 and P6), the government payment voucher made out to "Kot Babi" (P2) evidencing payment went through, and the invoice issued to the respondent by the appellant for the payment dated 12 December 2013 was headed "Kot Babi Guest House, La Digue" and stamped as "KotBabi GuestHouse" (P 1). Therefore the documentation produced by the respondent at th7 trial further establishes and supports the admission of Mr. Robert Labiche of the connection. The fact that Mr. Robert Labiche does represent the appellant has not been challenged. [9] It is to be noted that even in cases involving a registered company with separate legal personality, the court would not allow the corporate veil to be misused as a masquerade by unscrupulous individuals to swindle and defraud others, and escape from the clutches of law (Cultreri v Eible and Another [2007] sese 17). If we import this principle to commercial dealings such as this one, where the person is operating under a trade name, or registered business name, where they have for all intents and purposes acted as a business by that business or trade name or names, they cannot then seek to escape their obligations or liability by claiming non-existence of that business as an entity. In this case, the appellant issued documents, accepted payments, and even appeared in and argued this matter as "Kot Babi Guest House" represented by him without challenge. That in itself should be considered a waiver of the non - entity claim raised in the second ground of appeal, especially at this stage of the matter. [10] Therefore the first two grounds of appeal are without merit, and should fail. [11] The .third ground of appeal seems to be based on the assertion made in the second ground, being that the respondent offended section 71(c) of the Seychelles Code of Civil Procedure by failing to ascertain the defendant in the plaint by virtue of naming a defendant that was allegedly a non-entity, and therefore did not exist. This argument, therefore, being reliant on the above ground of appeal, also fails. [12] Further having thus come to the aforementioned findings, it is apparent when one considers the evidence of Mr. Danny Pierre, Head of Recovery at Barclay's Bank that the said money had been deposited in the account of the appellant on the 7thof January 2014 and on the 14thof January 2014, a withdrawal in a sum of SCR 11,400/= and the balance sum had been credited for the repayment of a loan taken by the appellant. It is therefore clear from this evidence that the account to which the money had been credited was in the name of the appellant and the said sum deposited had been utilised while being in the account of the appellant to even settle a loan taken by the appellant. Further, the evidence of the respondent indicates that the account in the Barclay's Bank was the account the appellant had registered with the Government Treasury which was the entity making payment on behalf of the respondent. Therefore this court is of the view that the I learned Magistrate had correctly dismissed the counterclaim of the appellant which claim was based on the appellant's representative contention that as the money had not been deposited into the account in Nouvobanq as instructed, the said sum of SCR 40,000/= had not been paid. [13] I therefore proceed to dismiss the appeal in its entirety with costs. Signed, dated and delivered at lIe du Port on this 27thday of March 2020. A7' Burhan J 5