Serge Esparon & Anor v andre Esparon (Civil Appeal No. 15 of 1992) [1993] SCCA 4 (30 March 1993)

4' 1, IN THE SEYCHELLES COURT OF APPEAL Civil Appeal No.15 of 1991 Serge Esparon and Lyra Gabrielle APPELLANTS versus Andre Esparon RESPONDENT A. Julliet for appellant Shah for respondent Judgment of Mustafa P. Andre Esparon the respondent herein had sued the appellants in the Supreme Court for Rs.27,000 which he alleged the 2nd appellant Lyra took from his house when he was ill in hospital, for safe keeping and which, despite demands, the appellants have refused to return to him. Andre Esparon is the maternal uncle of 1st appellant Serge Esparon, and the second appellant is the common law wife of 1st appellant Serge. Andre Esparon testified that he lived in his own house and that Lyra used to clean house for him. Some years ago he fell ill and was admitted to hospital. He is 72 years old. He said Lyra took the keys from him and took his money from his chest to Lyra's house for safe keeping. To find out the exact sum taken he had sent his two grown up children Desire and Alain to Lyra's house to count the money. Desire testified and said she, on instruction from her father Andre Esparon went to Lyra's house and met 1st appellant Serge. She was accompanied by Alain and an elderly woman, a neighbour of Andre, one Roseta. In Desire's presence 1st appellant Serge took out the money from a battery box and counted it. It amounted to Rs.27,000. Both Alain and Roseta corrobrated Desire's evidence in all material particulars. When Andre Esparon was discharged from hospital he stayed for some time with the two appellants. Andre Esparon said he paid for his stay. Eventually he left. He asked repeatedly for the return of the money but was put off again and again. Both the appellants denied the account given by Andre Esparon and his witnesses. First appellant Serge denied that he ever counted the money in his house and second appellant Lyra denied that she ever took Rs.27,000 or any money from Andre Esparon's house for safe keeping. Both appellants rejected the claim as false. The trial judge (Allear J) after a prolonged and careful examination of the evidence believed the account given by Andre Esparon and his witnesses. He appreciated that Andre Esparon was somewhat mixed up about who had accompanied him to the hospital and who went in the ambulance with him. But he was satisfied that in substance Andre Esparon was a truthful witness and so were his witnesses. He found the appellants to be both liars and rejected their evidence. The trial judge referred to Articles 1341 and 1348 of the Civil Code and held that in this case although the sum claimed exceeds Rs.5,000, oral evidence was admissible, because it was impossible to obtain written proof due to the family relationship between the opposing parties. He gave judgment accordingly for Andre Esparon. From that decision the appellants have appealed. There are basically two grounds of appeal (1) the judge erred in his findings of facts and (2) the judge erred in finding there was a cause of action. Without any disrespect to Mr. Juliet, I think both grounds are utterly baseless. There clearly was a cause of action and the judge was fully justified, on the evidence before him, in reaching the conclusion he did. Indeed he could hardly have reached any other conclusion. I would dismiss the appeal with costs. ttiAl/a-z- A. Mustafa President Dated 3rjr, this 3 / At./ day of /95.2 3 4 - IN THE SYCHELLES COURT OF APPEAL CIVIL APPEAL NO. 15 OF 1992 Serge Esparon and Lyra Gabrielle VERSUS Andre Esparon Appellants Respondent Mr. Antony Juliette for Appellants Mr. K. B. Shah for Respondent JUDGEMENT OF SILUNGWE J. A. This is an appeal against the decision of Alleear, J., wherein judgement was given in favour of the respondent (then Plaintiff) in the sum of R27,000, with interest at the legal (i.e. Bank) rate, with effect from March 31, 1990 (when "a mise en demeure" was served on the appelants) and costs. Mr. Juliette, learned Counsel for the appellants, raised a preliminary point (previously canvassed by him, unsuccessfully, at the trial, namely, that the plaint disclosed no cause of action against the appellants in that it did not state whether the action was based on tort or contract. However, the point was not pressed when the court intimated that in its view, it was not really necessary to state in a plaint that the cause of action was tortious or contractial (or both). In any event, J2 failure to aver in a plaint, as in this case, that the cause of action is founded in tort or contract does not ipso facto amount to non-disclosure of the cause of action. On the facts of this case, the second appellant, Gabrielle, is a concumbine of the first appellanti. Serge Esparon, and the latter is a son of the respondent's brother. In 1988, the respondent Andre Sparon, was living alone in a house that was within a stone's throw from the appellants' house in Port-Gland. In August of that year, the respondent fell ill with severe abdomenal pain and was hospitalised for a month and five days. It was not in dispute that the second appellant looked after the respondent and cleaned his house both prior to and during his hospitalisation. The case for the respondent at the trial was that, while he was in hospital the second appellant came to him and took away his house key from him. Subsequently, the second appellant informed the respondent that she had taken for safe-keeping his life savings (amounting to more than R27,000) which he had kept in an unlocked chest within his house. He then advised his two sons - Desire and Alaine Agathine - when they visited him in hospital, to go to the house of the appellants in order to count the money that the second appellant had taken there. He was corroborated by the two sons of his, already referred to; his Daughter, Marie Andre Agathine;and his neighbour, Roselia Fanchette. All these witnesses testified that when they visited the house of the appellants I they found the first J3 appellant there (as the second one was away at the time) and told him that they had come to count the respondent's money which the second appellant had removed from the respondent's house. According to their evidence, the first appellant produced the money which the witnesses counted in his presence and found to amount to R27,000. The money was then handed back to the first appellant for safe-keeping. When the respondent was discharged from hospital, he entered into an arrangement to live with the appellants as he was not fit enough to live alone in his house. The arrangement lasted for one year during which the respondent paid his monthly social security allowance to the appellants for his upkeep. The respondent asked for his money" while the arrangement lasted but the second appellant told him that she was keeping it for him. When the second appellant drove away the respondent from the house, following an argument between them, the respondent again asked her for his money but he was told to go to hell. In March 1990, the respondent, acting through his lawyer, wrote to the appellants and asked for the return of his money but the letter was not responded to. The appellants' Defence was that the second appellant had neither taken the respondent's house key while the respondent was in hospital nor the R27,000 from his unlocked chest in his house. According to the testimony of the second appellant, she had not even been aware that the respondent had any money J4 in his house. As for the first appellant, he denied that the respondent's witnesses had ever called at his house or counted the respondent's money in his presence. In his judgement, the learned trial judge found that the respondent had got Muddied up and given contradictory evidence during cross-examination in regard to the following points; the exact day on which the respondent handed over the house key to the second appellant; whether the second appellant was present at home when the respondent callapsed; and (c) whether the second appellant accompanied the respondent to the hospital in an ambulance. Despite these findings, however, the learned trial judge was satisfied that the respondent had handed over the house key to the second appellant; that the second appellant had then taken away the respondent's money; and that the money had subsequently been counted in the house of the appellants in the presence, inter aliO3, of the respondent's children and a stranger In the final analysis, the learned trial judge accepted the case for the respondent and rejected that of the appellants whom he found to be "dishonest" and "outright liars." The learned trial judge found that, although the respondent's claim rested entirely on oral evidence, contrary to the provisions of Article 1341 of the Civil Code of Sychelles which requires evidence of documentary proof, the claim was nevertheless legally sustainable and was in fact sustained on the authority of Article 1348 of the Civil Code which provides an exception to Article 1341 whenever it is not possible. Pq J5 in this case, for acreditor to obtain written proof of an obligation undertaken towards him. He cited, in aid,the Mauf'itian case of Nunkoo and other v Nunkoo (1973), Mauritius .aw Report, page 269. ,r4 At the hearing of this appeal, Mr. Juliette informed the Court, on behalf of the appellants, that the appeal was based purely on facts. He drew attention to the respondent's contradictory testimony under cross-examination to which reference has already been made and, after contending that the respondent's witnesses had rehassed their evidence, particularly with regard to the aspect relating to the counting of the money at the house of the appellants, he submitted that the respondent and his witnesses were not credible witnesses. He then urged the Court to allow the appeal as the trial judge had failed to appreciate the facts of the case. With regard to the question of credibility, the learned trial judge had the opportunity to see and hear all the witnesses in this case. He was alive to the respondent's contradictory evidence in crosss-examination but nevertheless came to the conclusion that the respondent was credible when he gave what may be termed as the core of his evidence which tied in well with the evidence of his witnesses, namely, that he had handed over his house key to the second appellant and that the latter had subsequently told him that she had taken his money away for safe-keeping. It was that money that was later counted at the house of the appelants, in the presence, not only of the respondent's witnesses, but also that of the first J6 that the trial judge in any way failed to appreciate the facts that emerged in this case or that hemisidirected himself on the issue of credibility. He was, in point of fact, satisfied with, and believed, the respondent's case as opposed to that of the appellants whom he disbelieved and found to be dishonest and outright liars. In my considered opinion, the learned trial judge did not at all misdirect himself in this matter and his findings on the facts of the case and on the credibility of the witnesses cannot be impugned. It follows that I would dismiss the appeal with costs in this Court and in the court below. Annel M. Silungwe Justice of Appeal date at this A- - .71flo C, cr.\ IN THE SEYCHELLES COURT OF APPEAL CIVIL APPEAL NO. 15/91 BETWEEN: SERGE ESPARON ... ... • • • LYRA GABRIELLE AND ANDRE ESPARON (Defendants) Appellants (Plaintiff) Respondent JUDGMENT OF AYOCLA, J. A. The action which gave rise to this appeal came before. the Supreme Court by plaint issued by the plaintiff wherein he claimed against the defendants jointly and severally the sum of R27,M0 with interest. After hearing evidence in the case Alleear J. gave judgment for the plaintiff. This appeal by the defendants is from that judgment. The plaintiff is the paternal uncle of the first defendant who is in cohabitation with the 2nd defendant. In 1.998 the plaintiff who was aged 72 at the time of the trial in 1991 and was living alone in a house owned by the Seychelles Housing Development Corporation, fell ill and was in hospital for a period of one month and five days. According to the evidence which the learned Judge preferred, when the plaintiff was in the hospital the second defendant, who had been looking after him and cleaning his house, took his house key from him and later informed the plaintiff that she had removed an amount of R27,300 which he plaintiff had kept in a chest in his house. The second defendant had . .2/ unlocked the chest and taken the money to her house for safe keeping. Upon his discharge from hospital, the plaintiff went to live with the defendants who looked after him in return for his handing over to them his social security allowance every month. During the one year period that the plaintiff so lived with the defendants, he asked the second defendant for his money but the latter fobbed him off by saying that she was keeping it for him. Following an argument between the plainti f f and the second defendant, the plaintiff was driven out of the house by the defendants. He demanded for his money to no avail. He then commenced the action earlier mentioned. At the trial the plaintiff called witnesses who corro- borated these facts. One of them was the plaintiff's daughter who said, among other things, that in her presence she and her two brothers and another witness (PW5) met the defendants in their house for the purpose of counting the plaintiff's money. Together the money was counted by them and found to be S/R27,000. It was given back to the first defendants. The defendants denied the material facts but the learned Judge described them as outright liars. He made a positive finding of fact that the defendants took the plaintiff's money. On this appeal, mainly on facts, counsel for the defendants strove strenuously to persuade this court to set aside the cruciai finding of fact on which the decision of the court below was based. Valliant efforts were made to magnify minute and rather inconsequential d e tails in the evidence, particularly of the plaintiff, and portray them as - material inconsistencies. At the end of the day, however, it is plain that before Alleear J. the issue was one of fact, and the question was: who was to be believed? The learned Judge believed the plaintiff and his witnesses. The principles on which an appellate court should act in reviewing the decision of a Judge of first instance on a question of fact is well known and have been stated very often. A concise statement of the principles is con- tained in Watt or Thomas v. Thomas (1947) AC 484 where Lord Thankerton said at p. 487: .4 "i. Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge's conclusion. The appellate court may take the view that, without having seen or heard the witness, it is nct in a position to come to any satisfactory conclusion on the printed evidence; The appellate court, either because the reasons given by 1,. 1-12 trial judg e are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court." In the present case, the trial judge saw and heard the witnesses and made remarks on their credibility. Having done so, he made the crucial finding of fact that ONO the defendants took the money claimed by the plaintiff. Nothing has been usefully urged on this appeal to persuade me that the issue of fact became at large for this court there being ample evidence from which the learned Judge could reach the decision he arrived at. The grounds of appeal criticizing the judgment on the findings of fact made by the learned judge lacks substance. The second ground urged by counsel for the defendants was that the learned Judge erred in his finding that the plaintiff's case revealed a cause of action and that he erred by failing to give reasons for his finding. Early in the proceedings in the court below, the defendants' counsel raised a plea that the plaint disclosed no cause of action against the defendant. The learned Judge held that this was a cause of action. I feel no hesitation in agreeing with the learned Judge. Section 71 of the Code of Seychelles Civil Procedure lists the particulars a plaint must contain in items (a) to (f) of which items (d) and (e) are relevant to this appeal. To comply with the require- ment of item (d) all a plaintiff needs state are:- " a plain and concise statement of the circum- stances constituting the cause of action and where and when it arose and of the material facts wnich and necessary to sustain the action." (underlining mine) To comply with item (e) all a plaintiff needs state is the demand of the relief which the plain t iff claims. The plaint in this case has quite clearly complied with Section 71. A plaintiff need not state specifically whether he is suin g in tort or in contract in order to comply with :1.71. There is really no substance in this appeal and I would th costs to the respondent for th q? roasons LA5X164(47t--- (E. C. AYOOLA) JUSTICE CF APPEAL dismiss it T have seted. , 3/13/9;