The Mauritius Union Assurance Limited of Victoria v Star Boat Charters (Seychelles) (Pty) Limited (CA 14 of 2024) [2024] SCSC 193 (17 October 2024)

SUPREME COURT OF SEYCHELLES In the matter between: THE MAURITIUS UNION ASSURANCE LIMITED OF VICTORIA, MAHE (Represented by Mr. Bernard Georges) and STAR BOAT CHARTERS (SEYCHELLES) (PTY) LIMITED (Represented by Ms. Alexandra Benoiton) Reportable CA ]4/2023 Appellant Respondent Neutral Citation: Before: Summary: Heard: Delivered: [2024] (17 October 2024) The Mauritius Union Assurance Limited vs Star Boat Charters (Pty) Limited (CA 1412023) Adeline J Appeal against the decision of the leamed Senior Magistrate not to set as side ex parte Judgment. By submissions. 17 October 2024 FINAL ORDER The Ruling of the leamed Senior Magistrate is upheld and the appeal is dismissed with cost awarded to the Respondent. RULING Adeline J Background Facts [1] the Mauritius Union Assurance Limited, ("the Appellant") was On the 5th October 2023, granted leave of the Supreme Court to file an appeal out of time against the decision of the [2] [3] [4] [5] leamed Senior Magistrate Vipin Benjamin delivered in the Magistrates' Court on the 28th March 2022 in MA 39 of 2021 arising in CS 39 of 2020. Proceedings before the Magistrates' Court commenced by way of a plaint as amended filed in COUJias CS 39/2020 by the Respondent who was then the Plaintiff, a limited liability company registered and incorporated in Seychelles carrying on the business of charter and trading as MUA leisure services, against Seychelles, carrying on the business of an insurance provider. the Appellant who was then the Defendant then), ex parte following which The case was heard against an ex parte Judgment was entered in favour of the Respondent! Plaintiffin the total sum of SCR 268,050 as claimed. (the Defendant the Appellant By way of an application by notice of motion filed in Court as MA 39/2021, the Applicantl Appellant who was then the Defendant in the suit (CS 39 of2020) sought for a Court Order setting aside the ex parte Judgment delivered by the leamed Senior Magistrate Vipin Benjamin on the 21 st May 2021. The COUltdeclined to set aside the ex parte Judgment and proceeded to dismiss the application. THE MEMORANDUM OF APPEAL In its Memorandum of Appeal, purported appeal to be the following; the Applicant/ Appellant states the grounds for the "I. The learned Magistrate erred in law by relying on Section 34 of the Seychelles Code of Civil Procedure tofind that service had beenproperly effected as Section 34 does not pertain to body corporates, but rather topersonal service on individuals. 2. 3. The learned Magistrate erred in law by relying on Section 55 (1) o.ftheInterpretation and General Provisions Act which providers for the service of documents or notices but notfor the service of summons on a body corporate. The learned Magistrate erred by not finding that the Appellant had beenprevented by sufficient cause from appearing when the suit was called .for hearing in accordance to Rule 22 of the Magistrates' Court (Civil Procedures) Rules as upon the adjournment in CS 35 of 2020, the Appellant was only issued with a notice after the exparte hearing had concluded and the Judgement date had been set. 4. are silent 011 the service 0/ summons on body corporates, As the laws ofSeychelles and for the foregoing reasons, the learned Magistrates erred in law and in/act by finding that summons has been properly served and thus ought not have dismissed the Appellant's application to vacate the ex parte order. SUBMISSIONS GROUNDS 1 & 4 OF THE MEMORANDUM OF APPEAL [6] [7] [8] for the service of summons on a body corporate as the Appellant. Submitting on grounds 1 & 4 in the Memorandum of Appeal, learned Counsel for the Appellant states, that there is no specific statutory legal provision in the laws of Seychelles It is which provides submitted by learned Counsel, in terms of Section 17 of the Courts Act, the rules of the Supreme COUli of England known as the White Book should apply. In that regard, learned Counsel submits, that order 65 rule 3 of the White Book should apply as it provides for the instance when service should be effected on a company such as the Appellant. that because of the non-existence of such a provision, It is the submission of learned Counsel, that every company having a registered office may be served with a document by leaving it at or sending it by post to the registered office of the company. that this does not specifically provide for service of summon although, one can nonetheless, imply that service of summons on a body corporate is also covered by this provision. It is also the submission of learned Counsel, that the rule provides, It is submitted by learned Counsel, the leamed Magistrate wrongfully referred to Section 34 of the Seychelles Code of Civil Procedure for the service of SUl1U110nson a body corporate. Section 34 as quoted by learned Counsel reads as follows; that "34 Mode of Service Service of summons shall be effected by delivering or tendering a copy there of to the Defendant personally, or if he cannot befound, to any member of more than sixteen years old of thefamily of the Defendant residing with him, or to any agent or manager of the Defendant at theplace where he carries on his business. " [9] It is also submitted by learned Counsel, where a Defendant who is not a body corporate can be served. These include, service on an agent, a family member of older than sixteen years old, or personally. that this Section provides for various scenarios through [10] [11] [12] that the learned I have to agree with learned Counsel for the Appellant, At this juncture, Magistrate erred in relying on Section 34 of the Seychelles Code of Civil Procedure to establish that in the suit) was served with summons. Arguably, neither the Seychelles Code of Civil Procedure, nor the Companies Act for that matter, specifically provides for service on companies or body corporate. (the Defendant the Appellant, It is submitted by learned Counsel for the Appellant, in coming to its decision also relied on Section 55 of the Interpretation and General Provisions Act. Given that I am of the view, that Section 55 of the Interpretation and General Provisions I find no Act provides necessity to seek recourse to the laws of England. to the problem which this Court seeks to resolve, that the learned Magistrate, the answer GROUND 2 OF THE MEMORANDUM OF APPEAL (the Defendant 011 ground 2 of the Memorandum of Appeal, learned Counsel for the In its submissions that Section 55 (1) of the Interpretation and General Provisions Act Appellant submits, which the leamed Senior Magistrate relied on to determined that service of sununons on the Appellant in the suit) has been properly effected, does not provide specifically for service of summons, but instead, provides for services of notices and other that documents. Section 55 does not cover service of summons on a body corporate, and as such, the learned Senior Magistrate was wrong to rely on Section 55 to conclude that summons was properly served on the Applicant, it is the submission of leamed Counsel for the Appellant, (the Defendant In that regard, then). [13] For ease of reference, Section 55 (1) of the Interpretation and General Provisions Act is couched in the following terms; "Service of Documents and Notices 55 (1). A document or notice required or permitted to be served on, or given to, aperson under orfor the purpose of an Act, may be served or given ... (d) In the case of a body corporate, by leaving it at or sending it by post to the registered or principal office of the body corporate, or ... " [14] It is submitted by learned Counsel for the Appellant, that a summons differs from notices and from other documents. Learned Counsel proceeded to state, that a Court's summons is a legal process commanding a Defendant to appear before the Court on a specific day and to answer specific complaints made by the Plaintiff. It relies on the case of Government of Seychelles & AG vis Poole 2016 as the legal authority for such proposition. GROUND 3 OF THE MEMORANDUM OF APPEAL [15] that there was sufficient cause that prevented the Defendant Submitting on ground 3 of the Memorandum of Appeal, learned Counsel for the Appellant (now the Appellant) states, from appearing before the COUliwhen the suit was called for hearing. It is the contention of learned Counsel, that because the Appellant was only issued with a notice after the ex parte hearing had concluded and a hearing date has been set, the summons was not duly served for the day of the hearing. [16] Learned Counsel for the Appellant sees it appropriate to make reference to Rule 22 of the Magistrate Court (Civil procedure) Rules that reads as follows; "Rule 22 Setting aside Judgement given ex parte If in any case where one party does not appear on the day fixed in the summons Judgement has been given by the Court, the party against whom. Judgement has been given may apply to the Court to set it aside by motion made within one month after if the case has been dismissed, or within one month after the date of the Judgement execution has been effected ?fJudgement has been given against the Defendant, and ?fhe satisfies the Court that the summons was not duly served or that it was prevented bv anv sufficient cause 6-om appearing when the suit was called on (or hearing, the Court shall set aside the Judgement upon such terms as to costs, payment into court or otherwise as it thinks fit and shall order the suit to be restored to the list of cases for hearing. Notice of such motion shall be given to the other side. (Emphasis is mine). [17] [18] it is the submission of learned Counsel for the Based on the provisions of Rule 22, that there was sufficient cause that prevented the Appellant, (previously the Appellant, from appealing before the COUliwhen the suit was called for hearing. Learned Defendant) Counsel submits, that the Appellant was only issued with the notice after the ex parte hearing had concluded and the hearing date had been set, and as such, summons was not duly served for the day of the hearing. In its submissions in reply to the grounds of appeal, learned Counsel for the Respondent refutes the Appellant proposition that learned Senior Magistrate Vipin Benjamin erred by relying on Section 34 of the SCCP to come to his conclusion. Learned Counsel submits, that Section 34 of the SCCP provides for service on companies or corporate entities, and as such, it CalU10tsubscribes to the view that the law is silent on service on body corporate. [19] With that view, it is the submission of learned Counsel for the Respondent, that "service of the plaint and any subsequent notices on the Appellant's address was proper and in line with Section 34 of the SCCP, given that Section 34 provides for service on a party at the place it carries out its business. Learned Counsel cites the case of H Savy Insurance vs Goldy Poris (SeSC 661/2018) to support its proposition. Leamed Counsel goes further as to add, that service can even be effected on the administrative staff in a building rather than directly on employees of companies, provided that it is the registered address. [20] [21] [22] [23] It is also the submission of learned Counsel, that although learned Senior Magistrate Vipin Benjamin did consider Section 55 (1) (d) of the Interpretation and General Provisions Act, his emphasis was more on Section 34 of the Seychelles Code of Civil Procedure, and that is because in learned Counsel's view the provision of the Interpretation and General Provisions Act do not ovenide the specific provision of the SCCP". Learned Counsel relies on the case of Barclays Bank PLC vs Moustache (1992) SLR 41 for such proposition. As regards to ground 3 of the Appellant's grounds of appeal suggesting that the learned Senior Magistrate erred by not finding that the Appellant had been prevented by sufficient cause from appearing before the COUliwhen the suit was called, it is submitted by learned Counsel, that this ground is not in compliant with the Appeal Rules because it fails to state whether the error allegedly committed by the learned Senior Magistrate was one of fact or law. that is the submission of learned Counsel, It the Court did follow the procedure in accordance with Section 65 of the SCCP and proceeded to hear the plaint ex parte because the Defendant it is contended by learned Counsel, that it was not an error for the COUlito hear the plaint ex parte, and that the learned Senior Magistrate took the correct view that there was a lack of sufficient cause to warrant set aside the ex parte judgment. failed to put appearance in Court. As such, Lastly, learned Counsel for the Respondent took issue over the proposition made by learned Counsel for the Appellant as ground 4 of the grounds of appeal, that the laws of Seychelles are silent on the service of summons on body corporate. It is submitted by leamed Counsel, that the laws of Seychelles are not silent on service of summons on body corp orates given that there are provisions in the SCCP as well as in the Magistrates' Court (Civil Procedure) Rules which have a general application, and for this reason, the learned Senior Magistrate was correct in dismissing the application to set aside the ex patie Judgment given that service of summons was properly effected, and the Appellant could not give sufficient cause for failing to appear before the Court for hearing. DISCUSSIONS ABOUT THE ISSUES [24] [25] [26] [27] the first question that this Court is called upon to determine, At this juncture, is whether summons was duly served or not on the Defendant for the hearing of the plaint as amended. Section 55 (1) of the Interpretation and General Provisions Act offers this Court with the answer to this question for a correct finding. The wording "document" in Section 55 (supra) is broad and encompasses a range of legal documents that might be required or allowed to be served on a person or a corporate body. Since by definition a summons is a document issued by the Court ordering a specific person to appear at a specific time for some specific refers to summons as well as other documents use in the purpose, legal procedural process. Perhaps more relevant to the instant case, this is further confirmed in the Interpretation Section of the Companies Act 1972 given that the definition of "document" include a summons, notice, order or other legal process, and a register. the word "document" Therefore, contrary to learned Counsel for the Appellant's proposition that the finding of the learned Senior Magistrate in reliance on Section 55 (1) of the Interpretation and General (who was then the Provisions Act that summons was properly served on the Appellant Defendant) when according to learned Counsel it was not, this Court finds, for the reasons discussed in the proceeding paragraphs of this Ruling, that the Appellant (Defendant in the suit) was properly served with summons for the hearing of the amended plaint. The second question that is called to be determined is whether there was sufficient cause then) from appearing before the court when the (the Defendant preventing the Appellant suit was called for hearing. In its ruling, the learned Senior Magistrate had found, that the Appellant then) had failed to satisfy the Court that they were prevented by any sufficient cause from appearing when the suit was called for hearing. (the Defendant In its submissions, the Appellant (the defendant then) states, that it only received notice to appear in court on the day that the ex parte Judgement was read in open Court and that on the same day leamed Counsel for the Defendant who was Ms. Kelly Louise then, had to report to the Glacis Health Centre to undergo a PCR test and had to then go in isolation due to a suspected positi ve test of Covid 19. [28] Extract of paragraph [27] of the leamed Senior Magistrate Vipin Mathew Benjamin's Ruling dated 28th March 2022 in MA 39/2020 reads " On the 21s1 May 2021 no one appeared as per Court's records and the ex parte Judgment was delivered it is also contention of the Applicant insurance company that to appear on the 2P' May 2021 but could not do so they had briefed their Counsel since she was under quarantine due to Covid 19, but the document attached with the insurance company is an attendance paper dated 19th affidavit filed by the Applicant May 2021 at Glacis Health Centre and does not specify anything about being in quarantine or in isolation due to Covid 19. CONCLUSION [29] that therefore, it is my considered opinion, that Section 55 of the Interpretation In conclusion, and General Provisions Act read with the definition of "document" in the interpretation Section of the Companies Act, 1972 does provide for service of summons on a body corporate as the instant one incorporated under the Companies Act 1972. Therefore, I am satisfied, the learned Senior Magistrate rightfully and correctly relied on the said provision of the law to conclude that summons had been properly served on the Appellant that the finding of learned Senior Magistrate (the Defendant Vipin Benjamin that the Appellant (previously the Defendant) did not satisfy the Court that it was prevented by any sufficient cause fr0111appearing in COUliwhen the suit was called for hearing was a correct finding of facts for the reason given in his Ruling. then). I am equally satisfied, [30] Therefore, appeal is dismissed with cost awarded to the Respondent. the Ruling of learned Senior Magistrate Vipin Benjamin is upheld and the 8