Promedklinik (Seychelles) Ltd v Promedklinik GMBH) [2025] ([2025] (Arising in CS 135/2019) (18 August 2025)) [2025] SCCA 14 (18 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (18 August 2025) SCA 02/25 (Arising in CS 135/2019) PROMEDKLINIK (SEYCHELLES) LTD Appellant (rep. by Mr. Guy Ferley) And PROMEDKLINIKEN GMBH (rep. by Ms. Manuella Parmentier) Respondent Neutral Citation: Promedklinik (Seychelles) Ltd v Promedklinik GMBH) [2025] (Arising in Before: Summary: CS 135/2019) (18 August 2025) Twomey-Woods, Robinson, Andre JJA home-made agreement, rescission, admission of evidence of expert- commercial interest Heard: Delivered: 5 August 2025 18 August 2025 The appeal succeeds in part. ORDER a. On the appeal against the award for the equipment: the award of € 295,600 for equipment is set aside and substituted with an award of €296,604.20. b. On the appeal against commercial interest: The appeal succeeds. The award of commercial interest is set aside in its entirety and substituted with legal interest. c. All other terms: all other aspects of the judgment award of the Court a quo not expressly varied by this order shall remain in full force and effect. _____________________________________________________________________________________ JUDGMENT _____________________________________________________________________________________ TWOMEY-WOODS JA Background [2] This dispute stems from a collaboration agreement dated 19 April 19, 2018, between Promedkliniken GmbH (PMK Germany), represented by Norbert Seis, and Promedklinik Seychelles Ltd (PMK Seychelles, formerly named Eureka), represented by Basil and Vivienne Soundy. Under the agreement, PMK Germany was to acquire a 55% stake in PMK Seychelles by contributing medical equipment, supplies, and services valued at €306,860, along with a recurring monthly management fee of €5,000. In return, PMK Seychelles was obligated to change its name from Eureka to Promedklinik (Seychelles) Ltd and increase its share capital from SCR 10,000 to SCR 8,000,000. [3] PMK Seychelles later alleged that PMK Germany failed to meet its obligations, primarily citing PMK Germany’s failure to prove the equipment's value, the substandard nature of certain items, non-performance of its management duties, and regulatory non-compliance concerning foreign shareholding. On these grounds, it applied to the Supreme Court for an order for rescission of the agreement. [4] It must be emphasised at this point that, despite a court order dated 3 June 2020 granting a motion that forbade the disposal or transfer of shares of PMK Seychelles, the company was sold to Daniela Allis-Payet during the hearing of this suit and before the court's judgment was delivered. [5] Ultimately, PMK Seychelles’ claim for rescission was dismissed by the Supreme Court, which determined that PMK Germany had substantially fulfilled the contract. The court held that although there was a minor shortfall in equipment value (EUR 295,600 versus the agreed EUR 306,860), this was sufficiently supported by expert testimony from biomedical engineer Mr. Karanbash, who evaluated the equipment's market worth using recognised benchmarks. The court further noted that PMK Seychelles had utilised the equipment, ordered additional supplies, and did not contemporaneously object to its quality, thereby confirming the validity of the contract and denying claims of fundamental breach or bad faith. The appeal [6] Dissatisfied with the learned trial judges’ decision, PMK Seychelles has now appealed to this Court on the following grounds: (1) The Learned Judge erred in law and on the facts in failing to appreciate failure of the Defendant (PMK Germany) to provide proof of the value of the equipment, supplied renders the contract impossible to perform therefore a ground for the court to order rescission of the contract (2) The Learned Judge erred in law and on the facts by finding that the PMK Germany has failed to prove bad faith on the part of PMK Germany to substantiate annulment of the agreement, whereas the cause of action specifically pleaded and prayed for by the Plaintiff (PMK Seychelles) was failure by the Defendant to prove the value of his equipment and not bad faith. (3) The Learned Judge, despite having found that the Defendant (PMK Germany) is required to establish that they have indeed invested such amount and despite that the agreement did not specify the method or documentation required to demonstrate this, erred in not finding that practice and law implies into the agreement that the monetary value of the equipment must be established. (4) The Learned Judge erred in law and on the facts in failing to appreciate that the equipment was purchased and supplied to the Plaintiff (PMK Seychelles) by AKU- MedPharm which is a separate entity (person) from the Defendant (PMK Germany). (5) The Learned Judge manifestly erred in his assessment of the totality of the evidence which demonstrates that the Defendant (PMK Germany) deliberately refused to provide actual proof of the price of the equipment by issuing different invoices for the equipment. (6) The Learned Judge erred on the facts in his conclusion that if the Defendant (PMK Germany) shows the market value, not the amount they (the Defendant/PMK Germany) spent on the purchase of the equipment amounts to agreed investment sum, they would fulfil their obligation, when such was not pleaded. (7) The Learned Judge erred on the facts in his conclusion that if the Defendant (PMK Germany) shows the market value, not the amount they (the Defendant/PMK Germany) spent on the purchase of the equipment amounts to agreed investment sum, they would have performed their obligation, when same could not by practice and nature of the 3/4 transaction by implied into the obligation. (8) The Learned Judge erred in law and on the facts by accepting the evidence of Mr Amed Karanbash with respect to pricing of the equipment when his qualification is specific bio-medical engineering. (9) The Learned Judge erred in relying on the hearsay evidence of Mr Amed Karanbash who stated that he relied on information downloaded from the internet and on the information his friends in Lebanon related to him to establish the prices of the equipment. (sic) [7] The grounds are, in many respects, repetitive. They also appear to be imprecisely formulated and, in several instances, lack the clarity and specificity required under The Court of Appeal Rules of Seychelles 2023. This hinders the effective presentation of PMK Seychelles’ case. Plea in limine litis [8] In this context, PMK Germany’s plea in limine litis is apt. In summary, learned counsel for PMK Germany, Ms. Parmentier, has submitted that all nine grounds of appeal are procedurally defective under Rule 18(3) and 18(7) of The Court of Appeal of Seychelles Rules 2023. She contends that they fail to meet the required specificity, as they either: i. Use vague, conclusory language (e.g., "failed to appreciate," "manifestly erred") without pinpointing the trial judge’s specific errors or their material impact on the outcome; ii. Lack legal foundation, such as omitting references to the Civil Code or contractual principles (e.g., Ground 3’s unsupported claim of an implied term); or iii. Repeat arguments without substantive elaboration (e.g., Grounds 6–7 on market value). iv. Additionally, several grounds (e.g., Grounds 4, 8–9) mischaracterise evidence (e.g., AKU-MedPharm’s role, Mr. Karanbash’s testimony) without explaining how these alleged errors prejudiced the case. [9] PMK Germany, therefore, contends that the appeal rests on procedural non-compliance and unsubstantiated assertions, warranting dismissal. In essence, PMK Seychelles’ grounds do not present clear, legally coherent challenges to the trial judgment. They either rehash arguments without precision or introduce new issues improperly. PMK Germany urges the Court to disregard them entirely. [10] At this juncture, it is essential to bring Rules 18(3) and 18(7) of TheCourt of Appeal of Seychelles Rules 2023 to light. They provide as follows: 18(3) Every notice of appeal shall set in separate numbered paragraphs, the findings of fact and conclusions of law to which the PMK Seychelles is objecting and shall also state the particular respect in which the variation of the judgment or order is sought. the grounds of appeal forth 18(7) No ground of appeal which entertained, such as, unreasonable or cannot be supported by the evidence. (Emphasis added). is vague or general is unsafe or the verdict that that in terms shall be is the decision [11] Case law is established on this issue: Mountain View Investment Pty Ltd v Pomeroy,1 Elmasry and Anor v Hua Sun,2 Chetty v Esther.3 They illustrate the consistent judicial approach that a valid ground of appeal must not only identify the findings being challenged but must also clearly and precisely articulate the reasons for that challenge. [12] Further, the Court has reiterated that, under Rule 18(7), a ground of appeal must be formulated in a concise, clear, and accurate manner.4 A ground that merely restates findings without specifying the legal or factual errors alleged is considered vague and therefore defective. This requirement serves the purpose of giving fair notice to both the respondent 1 Mountain View Investment Pty Ltd v Pomeroy (SCA 4 of 2022) [2023] SCCA 50 (25 August 2023). 2 Elmasry and anor v Hua Sun (SCA 28 of 2019) [2021] SCCA 66 (17 December 2021). 3 Chetty v Esther (SCCA 44 of 2020) [2021] SCCA 12 (13 May 2021). 4 Monthy v Seychelles Licensing Authority & Anor (SCA 37 of 2016) [2018] SCCA 44 (13 December 2018). and the Court as to the issues that will be argued on appeal. It cannot be underscored that this Court has consistently struck out or dismissed notices of appeal containing vague grounds, in line with the precedents cited. [13] However, in the present appeal, although we have found that most of the grounds are vague or general in wording, we have decided not to strike them out entirely. In the interest of justice, and as permitted by Rule 31, we will only address the valid points raised in the appeal. Issues raised in the appeal [14] We have undertaken a refinement and reorganisation of the issues raised in order to present them in a structured, coherent, and cogent manner conducive to our judicial consideration. There are four specific matters to be considered: (1) Whether the learned trial judge erred in law and on the facts by failing to appreciate that PMK Germany's refusal or failure to provide adequate proof of the value of the equipment supplied rendered the contract impossible to perform, thereby justifying rescission of the contract. (2) Whether the learned trial judge erred in law and on the facts by treating the issue of bad faith as the central matter requiring proof to annul the agreement, whereas PMK Seychelles’ action as pleaded was the PMK Germany’s failure to substantiate the value of the equipment and whether this mischaracterisation resulted in a misapplication of the law and failure to properly consider the PMK Germany’s case. (3) Whether the Learned Judge erred in law and on the facts in: i. Accepting the valuation evidence of Mr. Amed Karanbash, whose qualification as a biomedical engineer did not render him competent to testify on pricing. ii. Relying on evidence from Mr. Karanbash, who based his valuation on unverified internet sources and information from friends, and was an admission of hearsay or unreliable and inadmissible evidence. (4) Whether the Learned Judge erred in law in granting commercial interest on the award. Issue 1: Rescission of the contract [15] Relying on Article 1184 of the Civil Code, Mr. Guy Ferley, learned counsel for PMK Seychelles, has submitted that Mr. Seis made the execution of the contract impossible to perform. Hence, this constitutes a ground for rescission. [16] He contends that Mr. Seis testified that he purchased equipment from his own company, AKUD-MedPharm, in Germany, but refused to provide proof of the purchase price of the equipment, citing restrictions on removing original invoices from his files according to rules imposed by German financial authorities. [17] When questioned about PMK Germany issuing invoices and the legitimacy of the Soundys' request for receipts to verify the real price of equipment, Mr. Seis testified that he sent both invoices used for export purposes for German customs and commercial invoices reflecting the actual cost of the equipment. He added that he never asked for proof of the Soundys' contributions either. Mr. Seis further claimed that in any case the contract did not require him to provide such evidence. [18] Mr. Ferley contends that in the circumstances, it would appear that Mr. Seis intentionally failed to provide proof of the equipment's purchase price, thereby preventing the contract from being fulfilled. He further asserts that PMK Germany was under an implied obligation to confirm the equipment’s value, a duty that was never discharged. [19] In answer, Ms Parmentier, learned Counsel for PMK Germany, has submitted that PMK Seychelles’ reliance on Article 1184(1) of the Civil Code is misplaced, as rescission applies only where a party entirely fails to perform its obligations. In the present case, PMK Germany fulfilled its primary duty by delivering and installing medical equipment worth €306,860. [20] The contract did not require specific proof of the equipment’s value, and PMK Germany was entitled to rely on contemporaneous records and subsequent market valuations to demonstrate compliance. [21] Moreover, PMK Seychelles’ conduct confirms acceptance of the contract, as evidenced by several communications: first, their September 2018 request for technical assistance with the delivered items, second their October 2018 email thanking PMK Germany for the equipment and confirming operational use, third, their trial admission (through Mr. and Mrs. Soundy’s testimony) that they used the equipment for patient care. [22] Additionally, the expert testimony of Mr. Ahmad Karanbash validated the equipment’s market value at over €295,000, which the trial judge accepted as consistent with the contractual investment. Insofar as there was disagreement between the parties regarding the equipment’s value and the methods of valuation, this does not constitute a breach; such disputes may support a claim for damages, but do not justify rescission, which requires total non-performance. [23] Ms. Parmentier has further submitted that Seychelles’ jurisprudence restricts rescission to extreme cases, as in Underwood v Michel5 where performance never began. In the present case, PMK Germany’s substantial performance, as affirmed in Adeline v Talma6 and Naidoo v Vintigadoo & Anor,7 bars rescission. [24] Further, PMK Seychelles’ failure to formally reject the equipment or demand remedies at the time of the alleged breach undermines their claim, as rescission cannot be sought retroactively after affirming the contract and acting on it.8 Deliberation by this Court regarding the law applicable to the rescission of contracts [25] Article 1184 of the Civil Code governs the rescission of contracts and provides the following principles: (1) A condition subsequent (condition résolutoire) is always implied in bilateral contracts where one of the parties does not perform his or her undertaking 5 Underwood v Michel (CS 41 of 2023) [2024] SCSC 89 (19 February 2024). 6 Adeline v Talma (SCA 19 of 2021; SCA 20 of 2021) [2023] SCCA 23 (26 April 2023). 7 Naidoo v Innocent Alpha Vintigadoo & Anor (161 of 2019) [2023] SCSC 212 (30 January 2023). 8 See Article 1338(3) of the Civil Code and the authorities: Lablache & Anor v Vital (CA 2 of 2023) [2023] SCSC 652 (14 August 2023), (2) A condition subsequent may be implied in a unilateral contract, such as a loan or a pledge, where a party does not perform his or her undertaking. (3) (a) The party towards whom the undertaking is not fulfilled can elect either to demand execution of the contract, if that is possible, or to apply for rescission and damages. (b) Rescission must be obtained by court order but the defendant may be granted time according to the circumstances. (4) The court may, in relation to an action for rescission, make such orders as it thinks fit, both in relation to the rights and duties of the contracting parties and in relation to the rights of their heirs. (5) (a) If a contract is only partially performed, the court may decide whether the contract must be rescinded or whether it may be confirmed, subject to the payment of damages to the extent of the partial failure of performance. (b) The court is entitled to take into account any fraud or negligence of a contracting party. (6) If, before the performance of a contract is due, a party to a contract by an act or omission absolutely refuses to perform the contract or renders its fulfilment impossible, the other party shall be entitled to treat the contract as discharged. [26] The provisions above confirm that rescission produces retroactive effects, rendering the contract void and restoring the parties to their pre-contractual positions. However, this drastic remedy has significant consequences. If the contract has already been performed, the parties may seek restitution of what they have given each other, though such restitution is subject to some legal limitations. [27] Moreover, mere cancellation of the contract may not always suffice to address a breach. In such cases, damages may be awarded as compensation for the harm suffered. Importantly, unless the contract includes a termination clause, its nullity requires a court order. Ultimately, rescission operates as a sanction for non-performance or defective performance of contractual obligations: " [A] contract that is cancelled ceases to have effect for the future; the cancelling of the contract results in the retroactive voiding of the effects of the contract and therefore the parties cannot demand fulfilment of obligations which have not yet been effected, but retain the right to have any performance that has been given restore. Theory and case law agree the parties must be restored to the position they were in at the time they made the contract."9 [28] It must also be highlighted that no time was fixed in the agreement for the execution of each party's obligations. In such circumstances, the avenue was to the court, which might have fixed the time for its execution.10 In Hoareau v A2B (Pty) Ltd,11 Domah JA emphasised that rescission requires judicial intervention; any unilateral attempt constitutes a breach, exposing the party to damages. Similarly, in Emerald Cove Ltd v Intour12, this Court held that even where : “… a contract is permitted to be rescinded without recourse to the court, the act of rescission by the person who asserts that he is the innocent party is a form of self-help and is effective to bring the contract to an end without an order of the court. The consequence of this, we venture to think, is that the party who rescinds acts at his own risk, for, if it turned out that the rescission had been wrongful, he would be liable to the other party should the latter seek appropriate remedies for wrongful rescission of the contract.”13 [29] By selling the business, PMK Seychelles effectively rescinded the contract extrajudicially, rendering its subsequent claim for rescission both redundant and untenable. I therefore have difficulty understanding why PMK Seychelles maintained its claim for rescission of the contract before the court. [30] In the present matter, the agreement between PMK Seychelles and PMK Germany was bilateral, obliging PMK Germany to supply medical equipment and management services in exchange for a 55% shareholding in PMK Seychelles. PMK Seychelles alleged breaches, including PMK Germany's failure to provide manufacturer invoices verifying the equipment's value, the delivery of purportedly substandard or refurbished items, and non- compliance with regulatory requirements for share transfers. 9 Some reflections on the economic consequences of the cancellation of a contract in French law. Yves-Louis Sage and Anthony H. Angelo. 2000(My): 31 Vict UWL Rev 439-459, 439. 10 Pyper v Poole (1976) SLR 224. 11 (SCA 34 of 2012) [2014] SCCA 13 (11 April 2014) 12 (2000) SCAR 83. 13 Ibid,. 89. [31] The court a quo determined that PMK Germany had substantially fulfilled its obligations by supplying equipment valued at €295,600, closely approximating the agreed €306,860. Further, it found that PMK Seychelles' continued acceptance and use of the equipment constituted affirmation of the contract. The minor discrepancy in the value of the equipment delivered, accepted, and used by PMK Seychelles was deemed partial performance rather than a material breach warranting rescission. Although the shortfall could have triggered a condition subsequent (résolutoire), rescission was deemed unjustified given PMK Seychelles' conduct and the non-fundamental nature of the breach. [32] Rescission, which I have stated requires judicial approval, operates to restore the parties to their pre-contractual positions (restitutio in integrum). However, courts may alternatively award damages for partial breaches without ordering full rescission. The reality is that the parties in the present matter are stuck in a partially fulfilled contract, and the evidence suggests that the contract can never be fully performed, as the business has been sold. [33] In the circumstances, the trial court correctly rejected rescission, as PMK Seychelles had affirmed the contract and restitution was rendered impossible by its sale of the business during litigation, an act that also violated a court order. PMK Seychelles' subsequent claim for rescission in October 2019, coupled with the disposal of the business, constituted an anticipatory breach, discharging PMK Germany from further performance. [34] Article 1184 clarifies that rescission is not a discretionary or equitable remedy but is contingent upon established legal grounds such as breach, misrepresentation, or other vitiating factors under the Civil Code. Although courts retain flexibility in determining the extent of restitution, the remedy itself is strictly governed by codified principles. Notably, PMK Seychelles sought rescission rather than damages. It did pray for ‘any order” in its pleadings, but it never specified or quantified the damages it suffered. [35] PMK Seychelles further misapprehended the consequences of rescission, which extinguishes a contract prospectively while annulling its retrospective effects. Parties cannot enforce unperformed obligations but may reclaim benefits conferred, with the objective of restoring the status quo ante. [36] The dispute over the equipment's value is ultimately immaterial, as far as rescission is concerned, it only has a bearing in terms of damages to be paid. It also bears noting that the contract's deficient drafting contributed significantly to the litigation. The agreement contained ambiguous and unenforceable terms, omitted critical provisions, such as the delineation of obligations, the consequences of breach, termination mechanisms, and failed to address regulatory prerequisites for share transfers. Ultimately, PMK Seychelles' belated insistence on manufacturer invoices, absent contractual stipulation, did not invalidate PMK Germany's performance. [37] In light of the foregoing, the appeal grounds pertaining to this issue are without merit. Issue 2: Bad faith and unfairness [38] Mr. Ferley’s submissions on bad faith are somewhat confusing. He submits that the contract was breached not because of bad faith (which he wrongfully claims was not pleaded) on the part of PMK Germany but rather because the value of the equipment was not provided. He then contradicts himself by going on to submit that the agreement required both parties to act in good faith. He adds that PMK Germany demonstrated bad faith by rushing the contract and not having it executed before a lawyer, and by concealing and refusing to share purchase receipts of the equipment shipped. He contends that since Article 1134 of the Civil Code establishes that contracts must be performed in good faith and although Article 2268 presumes good faith in every contract, PMK Seychelles has proven bad faith through the conduct of PMK Germany. [39] He adds that Article 1135 further confirms that contracts include implied obligations of fairness beyond their express terms. He relies on the case of Monthy v Government of Seychelles,14 for the principle that agreements must be executed fairly to address contractual imbalances. In his submission, PMK Germany's refusal to provide receipts constitutes clear bad faith, violating these fundamental contractual principles and justifying rescission. 14 Monthy v Government of Seychelles (SCA 37 of 2019) [2021] SCCA 73 (17 December 2021). [40] In reply, Ms. Parmentier submitted that PMK Seychelles's reliance on Mr. Seis's testimony and a WhatsApp message about not needing lawyers for the preparation of the agreement is misplaced and that these peripheral issues do not demonstrate bad faith or justify rescission. She submitted that in any case, Mrs. Soundy’s testimony is to the effect that the contract was prepared by both of them sitting together and that it was subsequently checked and stamped by her lawyer. When properly considered in context, Mr. Seis explained that, firstly, the equipment was legitimately purchased through his company; secondly, the invoices were properly maintained for German auditing requirements; and thirdly, the contract contained no clause requiring invoice disclosure to PMK Seychelles. [41] She has further submitted that while the PMK Seychelles may have been dissatisfied with these explanations, they do not constitute fraud or intentional obstruction. The WhatsApp message (Exhibit P39) about legal representation is irrelevant to the contract’s performance, especially since PMK Seychelles voluntarily entered the agreement without demanding legal oversight but later had it validated by their lawyer. PMK Germany fulfilled their core obligations by delivering the equipment, and PMK Seychelles' complaints about documentation do not prove dishonest intent. The court’s deliberation on bad faith and unfairness [42] Article 1134(3) provides that contracts must be performed in good faith. In explaining the concept of good faith, this court in Monthy stated: “25. The Code … does not provide for a definition of either good or bad faith. The concept is certainly moral or ethical and its meaning after transposition into law generally implies honesty and integrity in one’s legal obligations. The dictionary meaning of good faith is that “good faith may require an honest belief or purpose, faithful performance of duties, observance of fair dealing standards, or an absence of fraudulent intent.”15 26. French jurisprudence interpreting the concept of good faith in contractual law has inferred duties of loyalty and cooperation between the parties in the execution of contracts. As summarised by Terré: 15 Cornell Legal Information Institute (LII) https://www.law.cornell.edu/wex/good_faith “La jurisprudence ne déduit d’ailleurs de cette reference à la bonne foi que des consequences limitées, y découvrant un devoir de loyauté qui pèse sur chacun des contractants et qui permet, de manière en quelque sorte negative, de sanctionner la mauvaise foi, la mauvaise volonté de ceux-ci dans l’exécution des contrats, ainsi q’un devoir de coopération entre les contractants…”16 27. In other words, case law deduces from this reference to good faith only limited consequences, discovering in it a duty of loyalty which weighs on each of the contracting parties and which allows, in a somewhat negative manner, the sanction of bad faith, the unwillingness of parties in the execution of contracts, as well as a duty of cooperation between the parties to a contract.” (translation mine)” [43] In applying the above principles to the facts, I adopt the learned trial judge’s findings that the evidence concerns a dispute over the price of goods shipped. Invoices for the equipment were provided at trial. There was, however, a difference in the price of the items on the invoice submitted to German customs for shipping and export and the commercial invoice issued for Seychelles customs, the former being of a lesser value than the latter. [44] Mr. Seis testified that the customs invoice was prepared solely to facilitate the export of goods from Germany, as PMK Germany lacked the necessary permits to ship medical equipment directly. AKUD-MedPharm, an affiliated company with export authorisation, generated these invoices, which often declared significantly lower values (e.g., €400 for equipment listed at €5,890 in the commercial invoice). This practice was purely procedural, ensuring the goods could clear German customs. [45] In contrast, the commercial invoice, issued by PMK Germany, represented the actual transaction value between the parties and was used to calculate the sums payable by PMK Seychelles. Mrs. Soundy confirmed in her testimony that the commercial invoice governed the financial obligations between the parties.17 Despite initial confusion, it was understood that the commercial invoice reflected the genuine cost, whereas the German customs invoice was merely an export formality. 16 Terré F, Simler P & Lequette Y Droit civil: Les obligations 10th ed (Dalloz 2009) 455. 17 See Pages 482- 485 of the record of proceedings. [46] Mr. Seis further explained that the discrepancy arose because PMK Germany could not legally export the goods itself, necessitating AKUD-MedPharm’s involvement. He maintained that the directors of PMK Seychelles were aware of this arrangement and that the commercial invoice accurately recorded the market value of the equipment, fulfilling the investment agreement. The lower figures on the customs invoices for the German authorities were arbitrary and irrelevant to the actual valuation of the assets. [47] The dispute emerged when PMK Seychelles began questioning the authenticity of the declared values, seeking manufacturer receipts to verify the prices. However, the evidence suggests that the commercial invoice, not the customs invoice, was always intended to determine the financial and investment obligations. [48] While I accept the evidence of Mr. Seis that the original invoices for the equipment were with his auditor as required by German law, I cannot accept that they could not be retrieved or copied. These invoices would have settled any dispute over the value of the equipment. However, Mr. Seis is correct that the agreement did not include a clause requiring him to provide receipts for the equipment bought. The implied condition of the agreement was that he provide the value of the equipment, which he claims he did in the commercial invoices produced. The difficulty for the sustainability of PMK Seychelles’ claim is that they used the commercial invoices as a basis for marking up their prices to customers. This fact alone affirms their agreement to the value. Further, if ithad concerns about the market value of the goods, it could have verified them independently rather than relying solely on the disputed invoices. [49] Relevantly, Article 1315 of the Civil Code provides: "1. A person who demands the performance of an obligation must prove it. (1) Conversely, a person who claims to have been released from an obligation must prove the payment or the performance that has extinguished the obligation.” [50] The above provisions emanate from the Roman maxim affirmanti non neganti incumbit probatio (the burden of proof rests on the one who affirms, not the one who denies) and is a fundamental concept applied in civil matters in our jurisdiction.18 This means that the party making a claim or assertion is responsible for providing evidence to support it. The opposing party, who denies or contests the claim, is not obligated to disprove it unless sufficient evidence is presented by the claimant. [51] Hence, in the present case, it was PMK Seychelles' responsibility to have the equipment appraised, since they questioned its true value, in order to contest the declared commercial value. The main issue was whether the commercial invoice accurately reflected the market value of the equipment at the time of purchase, as disputed. They did not produce such evidence and cannot now challenge this fact. Under these circumstances, the court can only consider the commercial value of the equipment as officially declared in Seychelles. [52] In conclusion, we agree with the learned trial court that the German customs invoice served only as an export document, with no bearing on the actual cost of the goods. In contrast, the commercial invoice issued to Seychelles’ customs governed the financial transactions and investment valuation. The discrepancy between the two does not, in itself, indicate wrongdoing, provided the commercial invoice reflected the fair market value of the equipment supplied. The obligation under the investment agreement was tied to the market value of the assets, not the arbitrary figures declared for export purposes. [53] Viewed in light of the above principles, PMK Germany’s conduct, while it may have been regarded as imperfect by PMK Seychelles, does not constitute bad faith or a breach of the agreement under Articles 1134–1135. Similarly, we must consider PMK Seychelles’ disposal of the business before the pronouncement of this court in the same light. [54] In the circumstances, this ground of appeal must also fail. Issue 3 The unreliability and/or inadmissibility of Mr. Karanbash’s evidence. [55] In respect of this issue, Mr. Ferley for the PMK Seychelles has submitted that the learned trial judge committed material errors in accepting Mr. Karanbash's evidence regarding the 18 Gopal and Another v Barclays Bank (Seychelles) (SCA No.51 of 2011) [2013] SCCA 23 (06 December 2013), Felix Amelie v Marc Margueritte (2017) SCSC, Zatte v Joubert (1993) SLR 132, Elfrida Vel v Selwyin Knowles Civil Appeal No 41 and 44 of 1988. price of the equipment. First, he submits, the witness lacked proper qualifications. While he held biomedical engineering credentials, he possessed no demonstrated expertise in equipment valuation. Second, his testimony relied entirely on inadmissible hearsay evidence, including unverified internet downloads from 2023 and anecdotal reports from Lebanese contacts, rather than direct knowledge or professional appraisal methods. [56] Mr. Ferley also contends that the court further erred by considering this evidence when Mr. Karanbash's professional certification failed to meet the admissibility requirements under section 29 of the Evidence Act (sic). Though the certificate had been certified by the Lebanese consulate and submitted to the Seychelles Qualifications Authority, it was never properly tendered as evidence before the court. [57] Most critically, the witness's methodology was fundamentally flawed and unreliable. During cross-examination Mr. Karanbash admitted he could not determine: (1) the manufacturing dates of the equipment; (2) the manufacturers of certain items; or (3) provide any documented basis for his valuations beyond uncorroborated internet research and third-hand reports. His inability to answer these basic questions about the equipment's provenance and specifications demonstrates the complete absence of any credible, fact- based foundation for his testimony. [58] These cumulative deficiencies render Mr. Karanbash's evidence incompetent to establish the equipment’s value. PMK Seychelles, therefore, contends that the court's reliance on this flawed testimony constitutes a reversible error, warranting the setting aside of these findings as they are inadmissible and unreliable. [59] In reply, Ms. Parmentier for PMK Germany has submitted Mr. Karanbash was an expert in this field and accepted as such without objection. His assessment methodology followed professional biomedical engineering standards and complied fully with Seychelles’ evidentiary requirements. Section 17(1) of the Evidence Act expressly permits such expert reports when the witness is qualified to testify orally, which Mr. Karanbash demonstrated through his credentials and cross-examination. No procedural objections were raised regarding the report's form or timing at trial. [60] PMK Germany also rejected the contention that referencing internet sources or professional consultations constitutes hearsay, as section 17 specifically allows experts to base opinions on such standard research methods. Given the unavailability of original invoices, Mr. Karanbash properly employed a recognised valuation approach examining: manufacturer data and market benchmarks; equipment specifications and condition; comparable models; and professional peer input. This methodology represents standard practice in biomedical equipment assessment. Our deliberation and decision on the expert evidence [61] I first deal with the academic qualification of Mr. Karanbash. One of the objections to his expertise in this appeal was based on his failure to produce original certificates of his qualifications to the court. The finding of the court a quo on this point was as follows: “[53] This Court accepts evidence of his expertise and qualifications. He further produced his certificate in proof of his qualifications as a Biomedical Engineering Degree. Learned Counsel for the Defendant also called a witness from the Seychelles Qualifications Authority who stated his qualification is recognised by the Seychelles Qualifications Authority.” [62] A copy of Mr. Karanbash’s academic certificates was indeed itemised. It is also a fact that his passport confirming his identity, was produced. However, the record of proceedings shows that Mr. Karanbash’s qualifications were never produced but only verified by the Seychelles Qualifications Authority, which, through their witness Mr. Jone Ahmad, testified that the original certificates had been submitted to the Authority on 13 October 2024, and that they copied the same for their file. The court accepted Mr. Ahmad’s testimony and the copy of the Seychelles Qualifications Authority’s (SQA) certificate which states: “The Degree of Bachelor in Engineering Major in biomedical engineering… awarded by the Islamic University of Lebanon to Ahmad Mohamad Karanbash… is recognised by this Authority. [63] The SQA certificate officially confirms that the Bachelor of Engineering (Biomedical Engineering) degree from the Islamic University of Lebanon awarded to Ahmad Mohamad Karanbash meets the standards required for academic or professional purposes within this jurisdiction. However, the SQA certificate does not indicate that Mr. Karanbash’s degree certificate is an authentic document. [64] As we have stated, a copy of his degree certificate was itemised but never produced. Whether that was an oversight by the court or whether they accepted the SQA’s evidence that Mr. Karanbash was properly qualified is not clear from the record. Mr. Ferley has referred to the inadmissibility of the certificate for “non-compliance with section 29 of the Evidence Act”. This is an error, as section 29 refers to the admissibility of previous convictions as evidence. [65] I understand him to be referring to section 28 of the Evidence Act. That section states that any document executed by a foreign country (which is not a signatory of the Hague Apostille Convention) that bears a seal or signature from a British diplomatic or consular officer authorised under UK law will be accepted by Seychelles courts without the need for further proof of the seal, signature, or the officer’s authority. [66] In Onezime v AG & Government of Seychelles,19 Fernando PCA stated in relation to the production of an affidavit which had been sworn before a notary in Kenya (also not a Hague Apostille Convention signatory country) that: “14. Section 28 of the Evidence Act … is a mandatory provision to be complied with, in relation to recognition and admissibility of all documents, executed abroad both in Convention states and those that are not Convention states, before our courts, in view of its wording “when any document executed in any foreign country or place is produced before any court in Seychelles” and the wording “shall be admitted in evidence”. The corollary shall not be admitted if there has been non-compliance with the provisions of section 28 of the Evidence Act… 19 (SCA CL 3 of 2021) [2022] SCCA 20 (29 April 2022). 15. An Apostille certifies the origin of the public document to which it relates, it certifies the authenticity of the signature or seal of the person or authority that signed or sealed the public document and the capacity in which this was done. It therefore helps the foreign country to assess the authenticity of an official signature on a document; the capacity in which the person signing the document acted; and the identity of any stamp or seal affixed to the document. … It does not however authenticate or confirm the contents of a document. [67] All that is well and good and indeed accurately reflects the law in our jurisdiction. The issue before us, however, is not about the authenticity of the signature and seal on the certificate with which section 28 of the Evidence Act is concerned, but rather the impossibility of obtaining an original of Mr. Karanbash’s certificate. In that regard, it is the principles of the best evidence rule that apply. [68] In this regard, Articles 1334 and 1335 of the Civil Code provide: 1334. Copies of a document, when the original exists, are not evidence of the contents of the original, the production of which may, in all cases, be demanded. 1335(1)When the original document no longer exists or cannot be found or practicably produced, copies shall be accepted as proof, subject to the following paragraphs. (2)(a)Authentic and immediately enforceable or first authentic documents shall be accepted as proof as much as the originals. (b)The same shall apply to copies made by judicial authority in the presence of the parties and by their mutual consent (3)A copy which, without judicial authority or without the consent of the parties, and since the delivery of authentic and immediately enforceable or first authentic documents, were made from the original document by a notary who issued it or by one of his or her successors or by public officials who in their capacity act as depositories of such original documents, may, in the case of loss of the original, be accepted as proof if they are old. (a)They shall be deemed to be old if they were made at least thirty years previously. (b)If they are less than thirty years old they shall serve only as writing providing initial proof. (4)Copies of an original document which are not made by the notary who issued it or by one of his or her successors or by public officials who, in that capacity, are depositories of originals, shall only serve, whatever their age, as writing providing initial proof (commencement de preuve). (emphasis added) (5)The copies of copies may, according to the circumstances, be considered of purely informational value. [69] Sauzier J, in considering articles 1344 and 133520 states that “Article 1334 is equivalent to the best evidence rule of the English law of evidence. In certain cases when the original is kept in the custody of a government department or a public officer such as a notary or a land surveyor the original is not admissible. The document can only be proved by the production of a certified copy under the hand of the head of department or public officer having the custody of the document. Sections 7 and 8 of the Evidence Act (Cap 74) refer to this.” [70] In a thorough exposé of the best evidence principle, the Chief Justice in the recent criminal case of R v Valabhji & Ors 21 referred to the authorities cited by Burhan J in R v Ernesta & Ors22 in relation to this issue and explains that: “4. …The best evidence rule is a legal principle that holds an original of a document as superior evidence. The rule specifies that secondary evidence, such as a copy or facsimile, will not be admissible if an original document exists and can be obtained. 5. The rule has its roots in 18th century case Omychund v Barker (1780) 1 Atk, 21, 49; 26 ER 15, 33 wherein Lord Harwicke stated that no evidence was admissible unless it was “the best that the nature of the case will allow”. Although a number of older authorities refer to a ‘best evidence principle’, as Jonathan Parker LJ observed in Springsteen v Masquerade Music Ltd [2001] EMLR 654 at [64], “even in its heyday, the best evidence rule was not an absolute rule”. 20 Sauzier, A. 2011. Introduction to the Law of Evidence, 2nd ed. Wellington: City Print, p. 26. 21 (CO 4 of 2022) [2024] SCSC 19 (19 March 2024). 22 CO 22 of 2016) [2017] SCSC 838 (20 September 2017). 6. The rule was not without criticism and over the years the principle waned perceptibly. In Garton v Hunter [1969] 2 QB 37, 44, Lord Denning MR dismissed the principle out of hand with the words, “That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility”. In R v Pentonville Prison, ex p Osman [1990] 1 WLR 277, the Divisional Court declared itself “more than happy to say goodbye to the . . . rule”, noting that “the little loved best evidence rule has been dying for some time”. It should be noted though that in Kajala v Noble (1982) 75 Cr App R 149, 152 Ackner LJ had claimed that one vestige of the rule survived: “The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if the original document is available in one’s hands, one must produce it”. 7. In Springsteen v Masquerade Music Ltd [2001] EMLR 654, at [76] and [79], however, the Court of Appeal extinguished even this final flicker of the rule: “The authorities … establish that by the mid-nineteenth century, if not earlier, the so-called ‘best evidence rule’ was recognized by the courts as no more than a rule of practice to the effect that the court would attach no weight to secondary evidence of the contents of a document unless the party seeking to adduce such evidence had first accounted to the satisfaction of the court for the non-production of the document itself”. 8. This judgment seems to have finally dispelled any lingering notion under the current common law of England that it is a condition of admissibility that evidence proffered must be the best that the nature of the case will admit. According to Blackstone's Criminal Practice, the best evidence rule in England and Wales, as used in earlier centuries, “is now all but defunct” (Hooper; Ormerod; Murphy; et al. (eds.). Blackstone's Criminal Practice (2008 ed.). Oxford. p. 2285. ISBN 978-0-19-922814-0). 9. Nevertheless, judges continue to employ the expression ‘best evidence’ from time to time, if only to signify that there may have existed more immediate or compelling means of establishing a particular fact than the evidence actually adduced (see, for example, JF [2002] EWCA Crim 2936 per Bell J at [32]). Generally speaking, therefore, the position is well expressed in Haddow v Glasgow City Council, 2005 SLT 1219 by Lord Macphail at [14], who declared that “the ‘best evidence rule’ is not a general exclusionary rule of evidence but a counsel of prudence.”” [71] The above is useful and explains the genesis of the rule, but in civil cases, as we have pointed out, the rule is codified in Articles 1334 et seq. The applicable provision to the present matter is found in Article 1335 (4): copies of original documents that are not certified by an authorised official only qualify as preliminary evidence (commencement de preuve), in other words, uncertified copies of documents merely initiate evidentiary proceedings rather than conclusively establish facts. In the present case, we neither have the original nor a copy of Mr. Karanbash's certificate in evidence. We therefore have no evidence of Mr. Karanbash’s qualification as a biochemical engineer and we cannot accept his expert evidence. [72] For these reasons, I find merit in Mr. Ferley's ground of appeal and disregard the evidence of Mr. Karabash as to the value of the equipment, which, using his valuations, the court found to be €295,600. It is therefore not necessary to consider the ground of appeal relating to the methodology used by Mr. Karanbash in this evaluation. [73] However, excluding Mr. Karanbash's evidence results in a pyrrhic victory for PMK Seychelles, as this Court can only consider the official value of the equipment listed in the invoices submitted to and accepted by the Seychelles authorities upon their arrival. Invoices for all the items were produced by Promedklink Seychelles (Exhibits 41- 60 inclusive). In her evidence, Mrs. Soundy provided her own account of equipment received from PMK Germany, amounting to € 324,247 (Exhibit 40). In their counterclaim, PMK Germany only claimed €304,603,20. That is the amount the Court will have to consider. A breakdown of this sum, with the invoices for each item of equipment, is set out in Exhibit D11. No invoice was provided for one item claimed by PMK Germany, namely a GE portable Ultrasound Device. The value of that item, claimed by PMK Germany at €8000, will need to be deducted from the total claimed, which is €304,604.20. Consequently, after deducting €8000, the total amount owed is €296,604.20 for the equipment supplied to PMK Seychelles by PMK Germany. [74] There has been no appeal against the court's award for unpaid consumables amounting to €65,575.70 and unpaid management fees totalling €87,000. We are therefore leaving those awards undisturbed, as in any case nothing has been usefully urged by Counsel for the PMK Seychelles to lead to a conclusion that the learned judge erred in his analysis and finding in granting these two awards. Commercial interest. [75] PMK Seychelles did not appeal against the order of commercial interest on the judgment award. Mr. Ferley, in his appeal submissions, raised the issue for the first time. Ms. Parmentier objected to this, as the ground was not previously canvassed. Although the ground was not included in the memorandum of appeal, the Court recognises that legal issues of a fundamental nature, particularly those relating to jurisdiction or ultra petita adjudication, may, in limited circumstances, be considered on appeal of the Court’s own motion. Such intervention must be exercised with restraint, ensuring both parties have an opportunity to address the matter and that it falls within the Court’s powers under the Rules. In this case, the error is obvious from the record, as the award exceeds what was pleaded or argued. Both parties were invited to and did make submissions on the issue, fulfilling the requirements of procedural fairness. [76] Nevertheless, the learned trial judge’s decision to award commercial interest, when neither party requested1 it, constitutes a clear instance of ultra petita adjudication. Such an error is not merely procedural but substantive, as it imposes an obligation beyond what was pleaded and argued. In the interests of fairness and maintaining the integrity of the decision, this Court should intervene to correct the award. [77] Rule 31(5) of the Seychelles Court of Appeal Rules provides this Court with the discretion to: 24