Public Utilities Corporation v Herminie (CC 45/2015) [2018] SCSC 8282 (9 October 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CC45/2015 [2018] SCSC qq 1- PUBLIC UTILITIES CORPORATION Plaintiff Versus WILLIAM HER.\1INIE Heard: Counsel: Mr Rajasundaram for plaintiff Mr Derjacques for defendant Delivered: 10 October 2018 RULING Robinson J [1] Paragraphs 3, 7 and lOaf the plaint state the essence of the case for the plaintiff as against the defendant - "3. The defendant at all material Plaintiff and was rendering all legal services to the Plaintiff." times, was a lawyer on retainer for the and "7. The Defendant whilst collected various slims of money for and on behalf of the Plaintiff. rendering above services to the Plaintiff had issued receipts but deliberately failed to refund, return and account of money he had collected." for the sums and "10. The Defendant debts having returned, he collected continued to fail and continued in disclosing those to retain the details of funds without refunded to the Plaintiff." [2] The plaintiff is asking this court for reliefs in the form of a declaration and an injunction "directing [the plaintiff] - a. b. c. d. e. to disclose the fair andtrue statement offunds he collected for and on behalf of the Plaintiff to refund, return those collected fund to the Plaintiff forthwith to pay the Plaintiff a moral damage in the slim of SRSOO,OOO. OO to pay the costs of this suit and pass such other reliefs in favour of the Plaintiff that this l lonble C01ll1 deems fit and necessary." l3] For the present this court is not concerned with the merits of this.suit. It is concerned with objections raised by Counsel for the defendant during the course of proceedings. Mr. Wingate, in thc course of his testimony, sought to adduce oral evidence to establish a retainer agreement between the plaintiff and the defendant. With respect to the retainer agreement, Mr. Mendon testified that the defendant was paid on a monthly basis. but that he is unaware or how much he was paid monthly. Then he suggested that the plaintiff paid the defendant an amount which was more than 5000.00/- rupees monthly. [4J Objection was taken to such evidence going on record unless there is a writing embodying that agreement under article 1341 of the Civil Code of Seychelles Act (hereinafter referred to as the "Civil Code '') or in default beginning of proof in writing under article 1347 of the Civil Code. The defendant's Counsel also referred this court to section 17 of the COUl1Fees (Supreme Court) and Costs Act in support of his submission that there "shall" be an agreement in writing between an attorney and his client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, and so forth. [5] Written submissions were submitted on behalf of the plaintiff. Counsel for the plaintiff contended that lithesubject matter of this plaint is all about a declaration that the defendant has to disclose the funds (debt collection) that he had collected on behalf of his client the Plaintiff at all material times. ". In this respect, Counsel submitted that article 1341 of the Civil Code does not apply. [6] This court has considered the objections raised by Counsel for the defendant and the oral and written submissions submitted on behalf of the plaintiff. [7] The plaintiff is a trader and the defendant is a non-trader (see Teemooljee v Thomas (1965) SLR 169). Therefore, any alleged agreement into whieh they may have entered is a "mixed contract", i.e one in which parole evidence may in the discretion of the court be admitted against the trader but must not be admitted against the non-trader. [81 Paragraph 3 of the plaint pleaded a retainer agreement entered into between the plaintiff and the defendant. Paragraph 7 of the plaint alleged that the defendant performed services under the retainer agreement. In this respect. Counsel for the plaintiff cannot be heard to say that the plaint is not concerned with the retainer agreement. but that it is "01/ about a declaration that the Defendant has 10 disclose funds (debt collection) that he had collected 011 behalf of his client the plointiffat all material times." It is clear to this court that the plaint is about violations of the retainer agreement. In the light of the testimony of Mr . Mendon that the plaintiff paid more than 5000.00/- rupees monthly for the services of the defendant, this court is satisfied that the objection taken by Counsel. under article 1341 of the Civil Code, is well taken. [91 With respect to the argument grounded on section 17 of the Court Fees (Supreme Court) and Costs Act, this court is of the view that the said provision does not make it mandatory for an attorney to conclude an agreement in writing with his client inter alia respecting the amount and manner of payment. Section 17 deals with the taxation of agreements between attorneys and clients in terms of that provision. [10] In the light of the above, this court permits the plaintiff to produce certain documents in terms of article 1347 of the Civil Code. Signedf dated and delivered at Ile du Port on 10 October 2018 t.~i~. ~) ~ "- l" C 1 F Robinson Sitting as a Judge of the Supreme Court 4