Larue v Carola (SCA 25 of 1984) [1984] SCCA 2 (20 April 1984)

IN TIffi SUI'REJ'-'IECOURT OF SEYCHELLES Niche line Larue v. Johnson Carolla Appellant Respondent Civil Appeal No. 25 of 1984 ~~. Esparon for the appellant The respondent did not appear JUDGr';'ENT i' ~ '\ , ' The appellant filed a plaint in the}1"lagistrates' Court claiming payment of the sum of R.9,000 and costs on liUgust 9, 1983. The plaint was duly served on the respondent parties appeared before the 1"iagistrates' and the Court on October 5, 1983 when the respondent ,,,as given 14 days in which to file his defence. The parties appeared again on October 19, 1983 when the respondent filed his defence and the hearing of the" case was set down for November 23, 1983 at 8.30 a.m. when it was further would appear adjourned to December 21, 1983 at 8.30 a.m. It from the record that the defendant failed to appear on November 23, 1983 when the hearing was first, due to be heard and a fresh summons ordered to be issued for··,the ~1st December. It does not appear that asummons was in fabt i~~ sued but be that as it may the respondent the 21st December either \ihen leave did not appear on:~. to proceed was grail.~ed f..-' ex parte and the hearing adjourned again to December 27~ 198{l: at 1.30 p sm , On that date judgment was given in the a~pel-t . lant's favour. On February 16, 1984 execution was is~n;~d \ ~", . ,,' ' ...••.. '. ( and moveable property of the respondent seized by a proce\;J$\ officer on April 17, 1984. On tiay 9, 1984 the respondenifi'~' la\'zyer served notice judgment dated December 27, 1983 on the ground that respondent had not been properly of a motion to set served and/or notified aside the,! ' " \ :'" oA 'ilx~, \" the ex parte\\' the hearing date of the case. After hearing argument of Counsel for both parties the learned Senior 1'lagistrate judgment of the Magistrates' (A. Amstell Esq.) the Court (V. Alleear Esq.) dated set aside December 27, 1983 expressly in terms of rule 22 of the I';agis- trates' Court (Civil Procedure) Rules Cap. 43. It is against this decision of the learned Senior l',agis- trate that .tne appellant now appeals to this Court. , The mJin limb of I'lr. Esparon' s submissions is that rule 22 of the 'flagistrates' Court (Civil Procedure) R,ule:3 Cap. 43 (hereinafter referred to as the "Rules") has no applice.tion to this case. He has cited in support of his argument the judgment of Sir Georges Souyave C. J. in the case of Biancardi -2- In the Biancardi Alarm. S A (1975) S L R 193. v. Electronic case on a similar motion before the Supreme Court to set aside its judgment given ex pal~te Sir Georges Souyave C. J. held that s. 69 of the Seychelles Code of Civil Procedure Cap. 50 can only apply to cases where the party invoking it has not appeared on the day fixed in the summons for appear- ance before the court under s. 63. duly appeared before the court on that day s. 69 had no application and the only procedure open to him, apart from appeal, was for a new trial under s. '193. an application and could not be relied upon by t~e defendant As the defendant had s. 63 is the ~aae a~. 16 of the Rules, s. 69 is the same as r. 22 of the Rules and s. 193 is the same as r. 95 of the Rules. R. 22 of the Rules reads as follows - "If in any case where one party does not appear on the day fixed in the summons, judgment has been given by the court, the party against whom judgment has been given may apply to the court to set it aside by motion made within one month after the date of the judgment if the case has been dismissed or with~n.one month after execution has been effected if judgment has been given against the defendant, and if he sa·tis- fies the court that the summons was not duly serv~d or that he was prevented by any sufficient cause fro~ appearing when the suit was called on for hearing'~ the cour-t shall set aside the judgment upon such terms,' as to costs, payment into court or otherwise as it· thinks fit and shall order the suit to be restored :to the list of cases for hearing. shall be given to the other side. II.;, In this case the defendant appeared on the day fixed i~\ Notice of such mot:ion\' the summons and again two weeks later when he filed his fence. It was not until November 23, 1983 on the date fixed for the hearing that he failed to attend. de-' At page 202 of the Biancardi report the learned Chief, Justice said - '\ ~\..~ "The final question is "lhether the defendant is en";-' Reading titled to invoke section 69 (or rule 22). section 69 (or rule 22), it is clear that to satisfy its provisions' one of the essential requirements the party inVOking the same must not have appeared on the day fixed in the summons for appearance before the court. In other words section 69 (or rule 22) applies only in the case where the party, against whom judgment has been given ex parte, has not appeared on the day fixed in the summons for appearance under section 63 (or rule 16) -------~. requirement that this section can only be invoked in the case where the ex parte judgment has been given only. under section 65 or 66 or 67 or 68 (or rules 18, 19, 20 or 21) and not where judgment has been given under section 128 (or of eection 69 (or rule 22), it is obvious This being an essential is that ..rule 51) or even under section 133 (or rule 56), read in conjunction with section 64 or 65 or 67 (o~ rules 17, -3- !;:alsh's submissiqi.l is correct, the latter the defendant of in the sur:;monsunder 5 ction 63 (or case.j;~\f'there has been befib e the court on to observe tha·. by any 8ufficiept the words, "or cause from of4! for hearing" the suit was called of the suit ex parte by any sufficient 65 (or 22) apply in th~ case where the rule 18) l1a'~adjourned the and the] d6fendant was cause fr6m appearing on date to taJ.;;e advantage of the provii,7ions of sec- of if EX'. in either 18 or 20), since no appearance the day fixed rule 16) I would like he vas prevented that appearing when in section court under hearing prevented that tion 65 (or As has been stated 69 (orrule section rule 19)." \ ~\aimed before above the respondent hearing da~e of . he had not ~en , the :,respon1~nt had not "'\ ..\ t~e case. properly that of the thinking the .learned Senior I-lat;istrate that served and/or notified There was no basis been properly for and subsequently served as he appeared in apsltler tip ·the plaint lit.tle his defence. filed Th~re \"as{ also r"l~gistrafteto of SUbstance before the learned Senior 8um;~st the defendant W2S unat .••ar-e of He was Lnr or-med of that that case. 1983 that his case wou Ld be heard onNov~mber 23, 4~} when he failed in Gourt;jon Oct'ober18:,' ,,}' hehas ;~\nevershown\ "t'hat ~ate'~~'hi~~ Furthermore the he~ing to appear. ." , he \-J8S prevented by any sufficient cause ;trom appear-rng ~.::~n i.l. .j. ',I' The ': stated learned that ' Sanaor " "the lettet , , Vf\ the suit was called I'lagistrate furthermore on for hearing." in his ruling written by the Court infor.-.int; (z-e apondenb) of the hearing "ms not H'ritten until 23.12.83 yet the dateo! the hearing was due to have been on 21.12.8, i.e. 2 days earli~ itself It in hardly m~·are of proceedings. sur-pr-Ls Lng therefore that (respondent) If This statement is erroneous hearing ex parte was in fact set down for 27.12.83 4 days later not 2 days earlier. ~'\ i.' h~. ..i,:,: t'IIlS un •.•':j\\ I,I!, • ,'1·" as the \vhich 'flaSI'; i~:-'" '"" In any.event the reasons set out above and followine the decision I would allovl this appeal with for in Biancardi set aside costs, of dated nay 23, 1984 and reiI!state below dated December 27, 198,. the ruling the learned Senior Piagistrate the judgn:ent of the Court Sep~ember 3, 1984. (F. 1;,ood) JUnGE ----