Lucas v Edmond & Anor (MA 117/2020) [2020] SCSC 588 (21 August 2020)

SUPREME COURT OF SEYCHELLES Reportable [2020] SCSC .s:-q 2> M. A 117/20 (Arising out of CS 115/2019) Applicant (1st Defendant) In the matter between CHARLES LUCAS (appearing in person) and MARIE THERESE EDOUARD (rep. by R Rasundaram) Respondent (Plaintiff) Neutral Citation: Before: Summary: Heard: Delivered: Lucas vs Edmond & Anor (CS 115/2019) [2020] SCSC Sq 3 R. Govinden Provisional Seizure; bona fide application; s. 280 and 281 SCCP 11th August 2020 21st August 2020 ORDER Application for provisional seizure refused RULING R. GOVINDEN J The application and reply [1] This is an application filed by the counterclaimant under Sections 280 and 281 of the Seychelles Code of Civil Procedure. In this application, the counterclaimant seeks this court for an order to seize provisionally movables namely "furniture and other movables at her dwelling house at Port Glaud, Mahe". [2] By a plaint dated the 5th of August 2019 the Plaintiff had commenced an action in this suit claiming damages jointly and severally from the defendants in the sum of SR 150,000.00 from the defendants for an alleged fraud committed upon her by them. The 1st Defendant contest the plaint and in his Statement of Defence he has raised a defence and a counterclaim in which he claim RS 500, 000 from the plaintiff for slanderous and false accusations. The Plaintiff denies the counterclaim. [3] Having filed the counterclaim, the counterclaimant now fears that the Plaintiff would sell her movables, including her furniture found in her dwelling house and hence deprive him of the fruits of his judgments. [4] The application, which by virtue of existing practice and procedure is heard ex parte, was served by the registry of the Supreme Court upon counsel for the Plaintiff, now Respondent . Having been so served, the Respondent has filed an affidavit in reply, in which she strenuously contests the application. [5] The application is grounded on the following averments: the Petitioner verily believes that the Respondent has no serious defence to the counterclaim and has no intention to pay the damages claimed and/or judgement debt and costs, or that she will evade satisfaction of judgment, and that, should no precautionary measure such as provisional seizure of the Respondent assets be taken, she may avoid satisfaction of the judgment thus causing loss to the Petitioner. [6] In her Affidavit in Reply the Respondent avers that this application is vindictive and is but an attempt to harass her and that the sum of Rs 500,000.00 claim against her is injudicious and that there is no likelihood of her being ordered to pay this sum. She also avers that the application is insufficiently particularised in that it only contains vague averments of furniture and other movables. The law [7] The legal provisions relating to provisional seizure is found in sections 280 and 281 of the Seychelles Code of Civil Procedure. They are to the following effect; "Application to seize or attachprovisionally to seize provisionally 280. At any time after a suit has been commenced, court defendant due to or belonging to the defendant person. in the suit or to attach provisionally the plaintiff may apply to the the in the possession any money or movable property in the suit, which is in the hands of any third any movable property of The application shall be by petition supported by an affidavit of the facts and if any, and shall state the title and shall be signed by the plaintiff or his attorney, number of the suit. When application may be granted If the court is satisfied that the plaintiff has a bona fide claim, the court 281. shall direct a warrant to be issued to one of the ushers to seize provisionally such property, or shall make an order prohibiting the thirdperson in whose hands such money or other movable property is from paying such money or delivering such property to any other person pending the further order of the court. The order shall be served on the thirdparty by an usher of the court. The court, before any such warrant or order is issued, may require the applicant tofind such security as the court may thinkfit". Analysis and determination [8] At the hearing of the Application, the parties made several submissions based on the facts and the law. I have carefully listened and considered those arguments in the light of all the pleadings filed in this case and the established legal authorities on provisional seizures, following which I make the following determinations; Theprocedure. [9] It is the contention of Learned Counsel for the Applicant that this application should have proceeded ex parte in accordance with the established practice. Counsel, reading sections 280 and 281 of the Seychelles Code of Civil Procedure together, submitted that it is implied in those two provisions that the application should be done by the plaintiff as expeditiously as possible in order to prevent the Respondent defalcating assets that could be potentially seized. I gather from his submission that he is saying that the two provisions impose an element of surprise that an interpartes hearing takes away from the Applicant. In reply Learned Counsel for the Respondent submits that the Applicant's argument is erroneous in that the application is itself late as it is filed one year after the filing of the plaint, at any rate he further argues that the process should be adversarial in that the main suit is already inter partes and that no prejudice has been shown to have been caused to the Applicant by the response. Hence, he submitted that his client was rightly afforded the right to response to the application. [10] The court fully appreciates the argument of the Applicant, especially given that no reference of service of the petition and contest thereto is made in those provisions. However, to my mind there is a greater imperative at play here. It exists in the form of Article 19(7) of the Constitution. This provision reads as follows: 19 (7) " Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given afair hearing within a reasonable time". [11] The right to fair hearing includes that of audi alterem partem. This Supreme Court is here empowered by law to determine the existence of the civil rights and obligations of the Plaintiff and the defendants, which is in contest in this case. The COUlthence has to hear both sides, especially if both sides to the disputes appear in an ancillary application, such as this one, and demand to be heard. It would have been an affront to the Right to fair hearing of the Respondent, if upon been served, whether the service was procedurally correct or not, she was denied the opportunity to be heard. This is so given the supremacy of Article 19(7), read with Article 5 of the Constitution. Hence, I find no merits on this legal objection of the Learned Counsel of the Applicant as to the procedure that has taken place in this matter. [12] Though the sections refer to only the Plaintiff as the Applicant, both sides have conceded that the provisions would apply to a counterclaimant who, for the purposes of a suit, is placed in the same place as a plaintiff in terms of rights. The court will accede to this position. This, however, does not take away the need to protect the fair hearing right of the responding party. The decision of the Court would have been the same had the Respondent been the defendant. Insufficiency of Applicant's affidavit [13] The Respondent objects to the affidavit in support of the application and says that it does not contain sufficient evidence to support the application of this nature. In his submissions the said affidavit is vague and not convincing enough. According to him, the process servers of this Court will find great hardship of seizing movables that are insufficiently described. The Court will not subscribe to this submission. In the words of section 280, what the applicant needs to show to the court here is that there are any movable property in the possession of the defendant or the plaintiff in the suit that can be provisionally seized. She does need to particularise to a nicety what are each moveable that may be found in the Respondent's house that can be the subject matter of the seizure. This is the duty of the process server, moveable is defined in law. What he or she would do if the application is granted is to proceed to the Respondent's house and seize movables found therein, of which he needs to make a written inventory in her presence. The averments in the affidavit suffices for this to take place. Bonafide claim [14] According to Learned Counsel for the Respondent an action in damages, as compare to one in which specific performance is being sought, cannot give rise to a bonafide claim. Again, the court cannot support this argument in view of the opening phrase of section 280 of the Seychelles Code of Civil Procedure, which provides for "(At) any time after a suit has been commenced". In section 2 of the Code, "suit" is defined as ""suit" or "action" means a civil proceeding commenced by plaint". The suit before the court is a civil proceeding commenced by a plaint. Section 280 does not specifically constrain or limit the cause in such suit. I accordingly reject this argument. [15] What constitutes a bona fide claim in this context has been settled by case law. Until recently, the established principle had been that the Applicant needed to establish that there is clear danger that the Respondents may avoid satisfaction of judgment if given in favour of the Applicant, and that, unless such an order is made, the Applicant would not be able to realise the fruits of his judgment if given in his favour in the original suit. In fact, paragraph 3 of the affidavit in support of the Application shows that this is the ground upon which it is founded. [16] However, there has been a shift in the law. There appears presently to be a greater burden of proof upon the Applicant. In the case of Eastern European Engineering v Vijay Construction ( MA 27512012) [2013J SCSC 2413 13J, the then learned Chief Justice held as follows; 13. The time has come for a review of this approach and to restrict such orders to defendants acting in such a way as to defeat the possibility of a successful plaintiff to from recovering the fruits of his or her judgment. A plaintiff or a party ought show that a defendant has acted in a manner that is putting at risk the possibility of recovering the fruits of his judgment should he or she succeed in the head suit. 14. The raison d'etre for provisional attachment of a defendant's moveable properties is to ensure that should the Plaintiff succeed in the main suit the Plaintiff would be able to enjoy the fruits of its judgment. However at this stage no trial has taken place. No 'judgment' as such has been ordered against a defendant. Judgment may well be two or more years away. In this Court it is not uncommon to have cases last in economic It appears for five years without completion. terms, both to the owner and the nation that an order of the Court can sequester assets of the defendant locking such assets out of economic or commercial activity to the benefit of the owner when the owner has done nothing wrong at that stage. All there is, is a suit filed against him. In my view there must be more. to me quite wasteful for such a period, 15. The order for provisional attachment ought to be invoked only in cases where its raison d'etre is at stake and not otherwise. The defendant should be acting in such a manner that puts at risk the plaintiffs ability to recover the fruits of his judgment. For instance if he is disposing of his assets with a view to avoiding satisfying any judgment to relocate himself or his assets outside this jurisdiction again with the object of not satisfying a possible judgment being passed against him. that may be passed against him or he plans This reasoning was subsequently upheld by the Seychelles Court of Appeal in Eastern European Engineering v Vijay Construction SCA 13/2015. [17] Upon thoroughly considering all the facts of the case, I am not satisfied that it has been shown to my satisfaction that the Respondent is acting in such a manner that puts at risk the Applicant's ability to recover the fruits of his judgment. There is no such act or omission that has been averred which shows that she is actively dispossessing herself in order to avoid satisfying any impending judgments against her. Provisional seizure is not a matter of standard procedure used by one party against the other, exercised at the will and discretion of one another. It is applied for and granted if and only if the Applicant manages to come to proof, through adducing of evidence, that it is most likely than not that the Respondent has taken steps or is actively taking steps to defeat the fruits of a future judgment. In this case, the Applicant's evidence is simply that the Respondent has movables and furniture in her house and that he believes that if judgment is given against her she will evade satisfaction. There is no evidence as to how and why the Applicant has come to this conclusion. This would not pass the test laid down in the Eastern European case. Final determination [18] In my final determination, I accordingly dismiss this application for provisional seizure. Signed, dated and delivered at Ile du Port on this 2. r-:,I- day of August 2020. 7