Petrescu v Iliescu (MA 141/2020 (arising in MC 101/2019)) [2020] SCSC 602 (11 September 2020)

SUPREME COURT OF SEYCHELLES Reportable [2020] sese 64-~ MA14112020 (arising in Me 101/20 19) Applicant Respondent STEFAN RENATO PETRESCU (rep. by Serge Rouillon) and STEFAN ADRIAN ILIESCU (rep. by Frank Elizabeth) Neutral Citation: Petrescu v Iliescu (MA 14112020 arising in Me 10 112019) [2020] sese &~ly Before: Summary: Heard: Delivered: (11 September 2020). Burhan J Ruling in respect of objections for hearing of preliminary objections. Objections dismissed. 24th August 2020 11 September 2020. Objections to hearing the preliminary objections dismissed. No order as to costs. ORDER RULING BURHAN J [1] This is a ruling in respect of the objections raised by learned counsel for the respondent Mr. Elizabeth in miscellaneous application MA 141/2020 to the hearing of the plea in limine (preliminary objections) to the petition in the main case under case number Me 101/2019. [2] The background facts are that the main case MC 10112019 was specially fixed for trial on Saturday 25 January 2020, as the parties to the case were foreign nationals and at that time present in the Seychelles. Learned Counsel for the respondent in the main case (MC 10112019 Mr. Rouillon) informed court that he had filed preliminary objections to the petition dated 24th January 2020. It was decided with the consent of both parties as borne out by the proceedings that the preliminary objections to the petition would be taken and ruled on, after the evidence of the main witness, the petitioner Mr. Iliescu was concluded. The petitioner proceeded to give evidence in the main case on that date. [3] However, during the hearing of the evidence of the petitioner, learned Counsel for the respondent moved by letter dated 27th January 2020 for my recusal as the trial judge. Accordingly, the matter was referred to the Hon Chief Justice and the trial aborted due to the application for recusal. The Chief Justice by letter dated 3rd February 2020, rejected the application and the case once again came before me as the trial judge. On the 6thof February 2020 as no formal application in respect of my recusal had yet been filed in any court by learned Counsel for the respondent, it was agreed with the consent of both parties, that the preliminary objections be first decided. Both parties filed written submissions dated 17th February 2020 and 19th February 2020 however before a ruling could be given on the 12th of March 2020, learned Counsel for the respondent f led a formal appl ication for my recusal dated 28th of February 2020 (MA 42 12020) and the said application was referred to Learned Judge Govinden for formal hearing of the recusal application. Therefore the ruling in respect of the preliminary objection fixed for 12th March 2020 was aborted, pending the determination of the recusal application .. [4] It appears subsequently even after the formal recusal appl ication had been f led on the 28th of February 2020, both learned Counsel including learned Counsel for the respondent who was well aware of his recusal application filed by him dated 28th February 2020, proceeded to file further written submissions dated 8 March 2020 and 10lh March 2020. Thereafter learned counsel for the respondent on the 51hof August 2020, withdrew his application for my recusal and the entire case was referred back to me, the trial judge, by Judge Govinden. [5] Meanwhile learned Counsel for the respondent, forgetting the aforementioned steps already taken in the main case set out in paragraph [2] and [3] herein, has once again filed and moved court by way of application MA 141120 dated 18th August 2020 that a ruling be given on the preliminary objections. Learned Counsel for the petitioner (respondent in MA 14112020) now objects to the hearing of the preliminary objections, on the basis that if a ruling were to be made in this application, either party could appeal on the said ruling, resulting in further delay in the case and his client suffering heavy losses as a result. [6] It would be pertinent to at this stage to set out section 90 of the Seychelles Code of Civil Procedure (SCCP) which reads as follows: Any party shall be entitled to raise by his pleadings any point of law; provided that bv the consent ofthe parties, or by order of the court, on the application of either party, the same may be set down for hearing and disposed of at any time before trial. [7] It follows therefore that as both Counsel for the parties had clearly consented to the hearing of the preliminary objection (plea in limine) as far back as 6th February 2020 (refer proceedings) and even filed objections and further objections thereafter, this motion before me MA 14112020 dated 18 August 2020 seeking the same relief is a surplus application considering the aforementioned circumstances. [8] From the facts set out above and the law contained in section 90 of the SCCP, it is apparent that once parties consent, the court could hear the preliminary objections and dispose of it. It is the considered view of this court that as both parties have consented to the hearing of the preliminary objections as borne out by the proceedings of 6th February 2020 and filed written submissions and further written submissions, what remains to be done is a ruling to be given by me on the preliminary objection as the formal recusal application has been withdrawn. When doing so court in fairness to both parties will not only consider the written submissions filed in the main case in respect of the preliminary objection but the additional submissions filed in the surplus application MA 14112020. [9] Whatever the ruling may be, the ruling will be subject to appeal and leave to appeal procedure set down by law. Either party is entitled under the law, if dissatisfied with the ruling to prefer an appeal which is a right available to the parties. The mere fact that the appeal process would result in the petitioner suffering losses due to delay, cannot be a reason to stop the rights available to parties by way of the appeal procedure. [10] For the aforementioned this Court will proceed to rule on the preliminary objection and the I·'L$I..> '"WI "- objections of learned Counsel Mr. Elizabeth in respect of same are dismissed. No order is made in respect of cost. [II] I therefore make the following orders: a. The objection to the hearing of the preliminary objection is dismissed. The ruling in respect of the preliminary objections set out in MC 10 1/2019 and MA 141/2020 is fixed for the 9th of October 2020. Signed, dated and delivere tile dli Port on 03 September 2020. Dc.. r"Jt II' S·_" t ~o LQ I M Burhan J 4