In court this week
COURT OF APPEAL REBUKES SUPREME COURT JUDGE
In an unprecedented move this session the Court of Appeal has rebuked Judge Karunakaran for a ruling which he delivered in the case of Georgie Gomme, Lorta Gayon v/s Gerard Maurel and Antonia Harrison. Mr Gomme and his wife had filed a plaint against the defendants in which they alleged that they had purchased two plots of land for the sum of R.60, 000 and Rs.90, 000 respectively from the owner, one Antoine Collie. However, they claimed, the Notary who drafted the transfer erroneously registered only one parcel in their names and mistakenly failed to register the second parcel. The Plaintiffs, two pensioners, only found out about the mistake when the second Defendant started clearing the land next door to them to build her house. This is the same land which the Plaintiffs claimed they had paid Mr. Collie Rs.90, 000 for. Upon investigation they discovered that Mr. Collie had then sold the same land on 11th June 1999 to Mrs Antonia Harrison. They therefore claim that they should be declared the rightful owner of the land as Mr. Collie has effectively sold the same land twice. They further alleged that the second transfer between Mr. Collie and Mrs Harrison is a sham transfer and a fraud.
Lawyers representing the Defendants raised three points of law (Plea in Limine Litis) before the Supreme Court namely:
1. the matter is res judicata,
2. the action is time barred and that
3. the plaint does not disclose a reasonable cause of action against her.
Judge Karunakaran went on to hear the points of law and ruled that the matter was not res judicata. However, he further ruled that the action was time barred since 5 years had elapsed after the cause of action arose. Additionally he decided that the plaint of the Plaintiffs does not disclose a reasonable cause of action against the Defendants and accordingly dismissed the Plaintiffs’ case.
The Plaintiffs then appealed to the Seychelles Court of Appeal and their case was heard recently. The Bench which comprised of a Mauritian, S.B. Domah, S.J. Bwana, a Tanzanian and B. Renaud, a Seychellois, delivered judgment on the 29th November 2006. The Court was of the view that the points of law could not be properly determined without hearing at least some evidence as the issue involved both law and facts as was submitted by the lawyer for the Appellants, Mr. Frank Elizabeth. The Court stated, “One can only sympathize with the supplication of Counsel for the Appellants who submitted: “the Court cannot give a ruling on the plea in limine now, it is premature. The Court has to hear this matter. The Court has to have cognizance of all the evidence before the Court can make a proper ruling in this case.” Mr. Elizabeth “was right” the Court of Appeal concluded.
In relation to the issue of “prescription” raised by the lawyers for the Respondents the Court of Appeal had this to say: “The plea of time-bar in the matter was a clear red herring. It is surprising how easily the Court slipped into it. Unless the plaintiffs came to state that they were not interested in the property which was due to them, the regime of prescription applicable to immovable property applied and not as the judge held article 2271 which has obviously to do with prescription as it applies to movables. Such matters could not have been decided based solely on the plaint and the pleadings. Despite the ingenious argument of Mr. Boulle, the plaint averred an action related to immovable property. The time-bar pleaded was one related to movables. Since there was dispute on that, the appellants’ evidence would have been crucial to determine what was what. However, on the face of the plaint, the plea could not, by any stretch of the imagination have succeeded.”
In respect of the issue of “reasonable cause of action” the Justices of Appeal stated: “We confess our inability to follow the reasoning of the learned Judge when he stated as follows: “After a careful examination of the pleadings in the plaint,…I too find that the plaint in this matter does not disclose a reasonable cause of action not only against the 2nd defendant for the alleged fraud but also against the first defendant for the alleged mistake.” The Justices of Appeal said that they found the decision of Judge Karunakaran “hard to digest.” The Court of Appeal thus allowed the appeal and overrule the decision of the Learned Judge on the plea in limine litis.
“We therefore remit the case to the Supreme Court with a direction that it proceeds to hear the case mindful of all the remarks we have made above as regards the procedure and the law applicable with costs.” The Respondents were represented by able and well respected attorney, Mr. Philippe Boulle and the Appellants by Mr. Frank Elizabeth.