Pro Diving (Seychelles) (Pty) Ltd v JJ Spirit Foundation (MA 33/2023 (Arising in CS 87 of 2022)) [2023] SCSC 726 (25 September 2023)

SUPREME COURT OF SEYCHELLES Reportable [2023] sese MA33/2023 Arising in eS87 of2022 In the matter between: PRO DIVING (SEYCHELLES) (rep. by Mr. Bernard George) (PTY) LTD Applicant and JJ SPIRIT FOUNDATION (rep by Mr Joshua Revera) Neutral Citation' Before: Summary: Heard: Delivered: pro Diving (Seychelles) [2023] sese Esparon J Application to amend the Plaint 14 June 2023 25 September 2023 726 (25 September 2023) (Ply) Ltd v II Spirj{ Foundation Respondent (MA33/2023) Application to amend the Plaint - Application is dismissed with cost since the defect in the Affidavit is fatal as the Application is improperly supported ORDER RULING ESPARON J Introduction 1. 2. In this matter, the defendant had filed his defence to the Plaint whereby the defendant had raised a Plea In Limine Litis namely that the action is prescribed by law. Subsequently the Plaintiff filed a Notice of Motion seeking for leave of this Court to amend his Plaint. The Pleadings The Plaintiff has filed an Affidavit that who avers in his Affidavit (Seychelles) (Pty) Limited. in support of the Notice of Motion sworn by Hafid Ally of Pro Diving 'I am duly authorized representative The deponent avers in paragraph 3 of his Affidavit that "I am advised by the Attorney of the Plaintiff and verily believe that it is no longer necessary to claim the interest of 2 % per annum which was due quarterly after the date of the agreement between the Plaintiff and the Defendant". The deponent has averred in paragraph 4 of his Affidavit that 'I am advised by the Attorney in of the Plaintiff and verily believe that further documents are to be listed in the Plaint order to disclose documents which wtll be relied upon. further avers in paragraph 6 of his Affidavit The deponent 'I am advised by the Attorney of the Plaintiff and verily believe that it is in the interest of justice and necessary for these sections of the Plaint to be rectified upon an order made by the Court so that the Court may try the real issues at hand. that The defendant on the other hand has filed an Affidavit the Secretary of the defendant. in reply sworn by Stacy Nair being 3. 4. 5. 6. 7. 8. The deponent avers inter-alia in her Affidavit the following; '6) I am advised and verily believe that the amendments sought are not made in good faith and made in an attempt the case. the legal prescription in relation to to try and circumvent 7) 1 am advised and verily believe that the affidavit as sworn evidence is in fact defective in that it fails to meet the requirements of the body of the Affidavit and the maimer of exhibiting documents in the Affidavit. 8) That I am verily advised by my Attorney that the amendment of the Plaint ought to be refused by the Court as it is not sought in good faith and the amendments are intended to cause serious prejudice and injustice to the Respondent who has already raised a Plea In Limine in this matter, Vide Petit Car Hire V Mendelson (1977) SLR, De Silva V United Concrete (1996) SLR 68. 9) That I verily believe and I am advised by my Attorney that the cause of action in the Plaint CS 87 of 2022 is purported to be on the breach of a loan and the amendment now sought is intended to substantially change the character of the suit. 10) That the Applicant's Affidavit is clearly frivolous and vexatious'. Submissions of Counsels 9. 10. 11. Counsel for the Plaintiff relies on Section 146 of the Seychelles Code of Civil Procedure. The said counsel also relies on the Authority of the case of Morin V Pool, 2022 SLR 144, Petit Car Hire V Mandleton and the case of Casimir VIS Aristotle SC 341/1996 Counsel for the Plaintiff submitted to the Court that with regards to good faith that the case was filed seeking recovery of a loan which included the principal sum of 5 million which became due 7 years after the date ofthe agreement and the sum of one million one hundred three hundred and twenty-nine in order to pursue the principal and ninety-three thousand, the primary aim of amending the pleadings is to sum which is not prescribed and that determine the real issues at hand. According to Counsel for the Plaintiff, if the principal sum is not prescribed whilst the interest could be, it would be just for the Court to pursue the matter which is not prescribed. It is hence submitted by counsel for the Plaintiff that there cannot be bad faith for simply seeking to pursue what is alleged to be owed to it of which a small portion namely the interest may be prescribed. According to counsel, such amendment does not change the nature of the suit or cause of action at all of which only the sum being claimed is reduced and hence there is no longer interest being claimed. It is still seeking recovery of a debt from a loan. 12. 13. 14. the balance of hardship will be more towards It is submitted that as regards to prejudice, the plaintiff than the defendant, Should the motion not be allowed of which the plaintiff would lose the principal the defendant would essentially escape paying back a substantially large amount of loan and the plaintiff would now be prescribed from refiling since by now the entire case would be prescribed. However, in the event the plaintiff loses the case, the defendant can always be compensated with cost. sum which is not prescribed and that in reply, counsel for the defendant submitted As to the point of law raised in the Affidavit is defective for in the manner of exhibiting documents in the to the Court that the Affidavit Affidavit. He further Submitted to the Court that the deponent Hafid Haiz Ally avers that 'he is duly authorized to represent' of which such authorization has not been exhibited and that the Court has no way to confirm as to whether the individual is indeed authorized to swear this Affidavit on behalf of the Applicant. Counsel for the defendant Elmasry where the Court of Appeal exhibited, relied on the cases of Savoy VIS Sharifa Salum and the case of found that where such authorization has not been the Affidavit was defective and is fatal to the Application. 15. He further submitted that when the Plaintiff avers in his Affidavit that he is exhibiting a document, there is a format pursuant to the Civil Procedure rules in the UK namely that the deponent must state that 'there is now shown to me, marked, produced as exhibit'. 16. 17. As regards to the merits of the case, Counsel for the defendant invited the Court to draw its attention to paragraph 3 of the Affidavit and submitted that what the plaintiff seeks to is do now after the defendant has filed a Plea In Limine Litis as regards to prescription, that the plaintiff seeks to circumvent the prescription by way of removing the claim for interest in his Plaint and submitted that this is made in bad faith as it has been done purely to circumvent the interest is part and parcel of the loan agreement. the plea of prescription. According to Counsel for the defendant, further submitted that the Court has a discretion under Section Counsel for the defendant 146 of the Seychelles Code of Civil Procedure of which the Court should exercise its discretion by not allowing this amendment of the Plaint since it is not being done in good faith as the amendment sought will prejudice the defendant by way of trying to circumvent the plea of prescription. 18. Counsel for the defendant submitted to the Court that in removing interest in the plaint, the plaintiff is in effect changing the character of the suit if it is in fact a loan with interest. Analysis and determination 19. 20. First and foremost, since the defendant has raised a point of law namely that the affidavit 'he is duly authorized to is defective since the deponent Hafid Haiz Ally avers that and that the Court has no represent' of which such authorization has not been exhibited the individual way to confirm whether this Affidavit on behalf of the Applicant, this Court shall deal with this point of law first before dealing with the merits of the case in the event there is a need. is indeed authorized to swear to this point of law, guidance may be sought with the case of Savoy As regards Development Ltd VIS Salum SCA MA 16 of 2021, (2021) SCA 45, which relied on the and Anor Vis Hua Sun, SCA 28 of 2019, (2020), SCA 2 Where A. case of Elmasry Fernando (President) stated the following; "The Power of Attorney has not been attached to the Affidavit. I am of the view that the Power of Attorney had necessarily to be attached as this Court is unable to know otherwise that the Applicants in which capacity the Applicants are before the Court. A mere statement are represented by Mr. Nabil Elmasry does not suffice. Counsel for the Applicants tried to argue that the Power of Attorney had been filed before the Supreme Court. This COUl1does not know whether Mr. Nabil Elmasry has been authorized to represent the Applicants in the appeal case since the power of attorney as stated at paragraph 8 above bears a date 4 It is not stated in rule 25 which deals with years prior to the filing of the application. 'Interlocutory matter' that the Registrar shall undertake the preparation of the record after an application for stay of execution is lodged, unlike in the case of the preparation of the record of appeal after the notice of appeal is filed in accordance with rule 23. In the case ofD. L. de Charmory V P. L. de Charmory, SCA MA 08/2019 (17 September 2019) this Court stated: "In Re Hindlliff, A person of Unsound Mind, Deceased, [1895/1 Ch 117, the Court ofAppeal held that any document to be used in combination with an affidavit must be exhibited. In the same light any document to be used in combination with an affidavit in support of an application to stay execution must be exhibited to andfiled with the applicant should be mindful that the affidavit stands in lieu 0/ the it. Counsellor testimony of the applicant." Re Hinchliff had been quoted with approval in the cases of Trevor 17 October SCA MA 2017 (unreported Boniface V Maxime Marie SCA MA 0112019 (unreported 2017) and Marie-Therese 28 May 2017)". Zialor V The Republic 21. A. Fernando (President) further stated in Elmasry (Supra) the following: to dispose of this application, "The defects in the Affidavit highlighted above is sufficient but I have decided to examine the case further at the request of Counsel who have sought guidance from this Court as to the grounds upon which a Stay of Execution may be sought and granted by a Court". 22. In the case of Savoy Development Ltd vIS Saturn, SeA MA 16 of 2021, (2021) seA 45, Twomey JA stated the foIlowing; "The Court of Appeal in Lablache de Charmoy (Supra) held that irregular affidavits cannot rules for their be waived by the parties. Affidavits are sworn evidence and evidential admission cannot be waived by the Court either. The defect in the Affidavit is fatal. In the circumstances, as the Application is improperly supported and it is dismissed with cost'. In the present matter, the deponent has averred in his Affidavit in support of the Application that 'I am duly authorized representative of Pro-Diving (Seychelles) (Pty) Limited' without averring in what capacity he represents the Applicant. The deponent has also not exhibited a Power of Attorney in order for the Court to know otherwise in which capacity the Applicant is before the Court. This Court has meticulously considered the submissions of counsels on this issue as well as the case laws cited above and holds that a mere averment is a duly authorized representative of the Applicant does no suffice and hence it is this Court's view that the Power of Attorney should have been exhibited in order for the Court to know in which capacity the Applicant is before the Court. that the deponent This Court is also of the view that such irregularity or defect waived by the parties or by the Court and hence this Court holds that Affidavit is fatal as the Application is improperly supported. in the Affidavit cannot be in the the defect 23. 24. 25. 26. Since the defect Application, and on the merits of the Application. in the Affidavit highlighted to dispose of this this C0U11finds no need to make any pronouncement on the 2nd point of law above is sufficient 27. For the above reasons, I accordingly dismiss the Application with Cost. Signed, dated and delivered at lle du Port on the 25th September 2023 ~v~ Esparon J 7