Da Cambra v Angelo & Anor (MA 123/2021 (arising out of CS 3/2021)) [2022] SCSC 43 (25 January 2022);

search_summary: 

Ruling– interlocutory prohibitive injunction pendent lite – Sections 111, 112, 121, 122, 123 and 304 of the Seychelles Code of Civil Procedure (Cap 213) as read with sections 5 and 6 of the Courts Act (Cap 52)

ANDRE J

Introduction

  1. This Ruling arises out of an ex parte application that the matter be heard as one of extreme urgency filed by Patricia Da Cambra (Applicant) on 2 June 2021 seeking orders against the Respondents as follows: order the Registrar of Lands to put a restriction against titles S9425, S9426, S9427 and S9540 and; order that an interim prohibitive injunction be issued against the Respondents pendente lite preventing stopping and prohibiting them, their agents, servants or employees from selling, dealing or interacting with Titles S9425, S9426, S9427 and S9540 until the final outcome of the case CS No.3 of 2021.
  2. The application is supported by the Applicant's affidavit dated 24 March 2021 in which it is averred that the Applicant believes that there are exceptional circumstances in this case which justify granting an interim interlocutory prohibitive injunction against the Respondents and that unless an interim injunction order is granted against the Respondents pendente lite, the Applicant cannot adequately protect her interests.
  3. The Applicant has sought orders for an interlocutory injunction under sections 111, 112,121,122,123 and 304 of the Seychelles Code of Civil Procedure (Cap 213) as read with the provisions of Sections 5 and 6 of the Courts Act (Cap 52). Section 304 of the Seychelles Code of Civil Procedure empowers the court to issue injunctions pendente lite.
  4. The 1st Respondent by way of affidavit vehemently objects to the application and further claims that "this type of application causes suffering to me and I am subject to unnecessary harassment" and thus moves for its dismissal and award of suitable costs in the 1st Respondent's favour.
  5. Counsel Julie who appears for the 2nd Respondent is not objecting to the application (records of proceedings of the 7 July2021 refers).

Background of the pleadings

  1. The parties were given time to file submissions on the issue, and counsel Elizabeth did so on behalf of the Applicant on the 5 August 2021 and counsel Rajasundaram on behalf of the 1st Respondent on the 27 September 2021 respectively.
  2. Counsel Rajasundaram's submissions in summary state that the Applicant does not have any right or title to the six titles namely: S9425; S9426; S9427; S9428; S942 and S9540 in respect of which the injunction is sought for. In the absence of such rights and or title in her favour, she is not at all entitled to any injunction. In his submissions this is therefore a clear abuse of the judicial process of the court.
  3. It was further submitted that the Applicant's claims for moral damages and a portion of judgment debt allegedly payable to her for the total sum of SR 166,612.50 and also the claim of a plot (sic) from the sub-divided title S1965 in CS No. 3/21 as per plaint dated 17th November 2020, would not suffice for the Applicant to claim for an injunction against the 1st Respondent who is the lawful and registered owner of the titles in question.
  4. Counsel Rajasundaram additionally submitted that the Applicant is entitled to execute the judgment against the 1st Respondent if at all she believes that she is entitled to a portion of the judgment debt without needing to ask for an injunction. That this injunction is not the right remedy to seek recovery of the judgment debt from the 1st Respondent, if at all the 1st Respondent is liable to pay her.
  5. Counsel further submits that there is a lack of genuineness on the part of the Applicant in that none of the other siblings referred to in paragraph 4 of her affidavit has filed a claim on all those titles in respect of which the injunction is sought.
  6. Finally, it is submitted on behalf of the 1st Respondent that this Honourable court is invited to assess the merits from which the injunction sought stems. That the plaint is challenged not only on merits but also on the plea in limine litis in which the 1st  Respondent claims lack of cause of action and that the court is invited to strike a balance between the facts as to who would be at greater risk in terms of granting the injunction and or refusing the injunction.
  7. For his part, Counsel Elizabeth appearing for the Applicant submitted that the application for the order of injunction satisfies all the requirements of the American Cyanamid case and should be granted before the judgment in the main suit is finalized.
  8. Counsel Elizabeth further submits that if the injunction is granted, the 1st Respondent would not suffer any damages as the matter relates to immovable property and the rights of the applicant therein, if any.
  9. It is further submitted that the balance of convenience, being the balance of risk of doing an injustice lies in favour of the Applicant in granting the order of injunction until the determination of the main suit.
  10. Counsel Elizabeth relies on the case of American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 (05 February 1975) as well as Chapter 3, pages 20-30 of David Bean's book 'Injunctions' in support of her position.

Legal analysis and findings

  1. I will now move on to address the legal standards applicable in this case in light of the highlighted background to the pleadings (supra).
  2. Of relevance to this application are the following provisions of the Seychelles Code of Civil Procedure ("SCCP).
  3. Section 111 of SCCP entitled Numerous persons having same interest in one cause' provides that:

111. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court to defend in such cause or matter, on behalf of or for the benefit of all persons so interested, subject to such notice to the persons interested as the court may direct.

  1. Section 112 entitled Misjoinder, adding of parties, etc. provides that:

112. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any persons improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.

  1. Section 121 entitled Application to be by motion provides that:

121. Either party to a suit may, in the course of such suit, apply to the court by way of motion to make an incidental demand.

  1. Section 122 entitled With affidavit provides that:

122. The motion shall be accompanied by an affidavit of the facts in support thereof and shall be served upon the adverse party.

Section 123 entitled, All incidental demands to be made at same time provides that:

123. All incidental demands shall be made at the same time. The costs of any subsequent incidental demand made on grounds which already existed at the time when a prior demand was made shall be borne by the party making such demand.

  1. Finally, section 304 entitled Court to have power to issue injunctions pendente lite or after judgment provides that:

304. It shall be lawful for any plaintiff, after the commencement of his action and before or after judgment, to apply to court for a writ of injunction to issue to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and such writ may be granted or denied by the said court upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as shall seem reasonable and just.

  1. It is trite that an interim injunction is granted at the discretion of the Court. In the case of American Cyanamid case, it was held that in dealing with interlocutory injunctions, the court shall be guided by 3 considerations namely;

 

  1. Is there a serious question to be tried? If yes
  2. Would damages be an adequate remedy for a party injured to address the harm caused by the Court's grant of, or its failure to grant an injunction?
  3. And on a balance of convenience, would it be best to grant rather than deny the injunction?
  1. In its consideration of the application, the Court's approach is based on the presumption that there will be trial on merits at a later stage. The court shall be satisfied that prima facie there is a serious question to be tried. It has to consider the actions and conduct of both parties before exercising its discretion. The Court shall also evaluate whether the parties can be adequately compensated for any damages suffered should the application be refused. The court shall ensure that any further loss or damage, especially if such will be irreparable, is contained.
  2. Indeed the American Cyanamid case is the guiding light for courts in considering applications for injunctions. As rightly stated by Counsel Elizabeth, the consideration is whether there is a serious question to be tried.
  3. This principle was followed in the case of Pest Control v Gill (1992) SLR 177 wherein the court found that:

 "in order for a Court to exercise its discretionary powers under section 5 of the Courts Act, the Applicant must show that there is a serious question to be tried and that damages are not an adequate remedy."

  1. Further in Dhanjee v Electoral Commission (2011) SLR 141, the Court interpreted the balance of convenience test to include the consideration of the following factors:
  1. Whether more harm would be done by granting or refusing the injunction.
  2. Whether the risk of injustice is greater if the injunction is granted than if is it refused; and
  3. Whether the breach of the party's rights would outweigh the rights of others in society.
  1. Considering the pleadings of the pending suit in this matter, it can be deduced that there are two main principles that the court has to consider when dealing with this application. Firstly, whether or not there is a prima facie case, in the sense that the case is not frivolous and vexatious and secondly, where the balance of convenience lies.
  2. In the case of Exeter Trust Com v/s Indian Ocean Tuna Limited (unreported CS253 of 2009), D. Karunakaran J held that -

"In matters of interlocutory injunctions, the Court must be satisfied prima facie that the claim is bona fide, not frivolous or vexatious; in other words, that there is a serious question to be tried vide: American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at p.10. Unless the materials available to the court at the hearing of the application for an interlocutory injunction, disclose that the petitioner has a real prospect of succeeding in his claim at the trial, the court should not go on to consider whether the balance of convenience lies in favour of granting or refusing the interim relief that is sought.

  1. Now, based on the face of the pleadings and affidavits considered in the light of the authorities cited above, the Applicant appears to have a bona fide claim against the Respondents. The Applicant seeks judicial recognition that she is an heir entitled to inherit from her late mother's estate. The Applicant seeks to prove that she is entitled to a share in immovable property, which allegedly the 1st Respondent is allegedly trying to dispose of to the detriment of the Applicant. Further the Applicant seeks to argue a serious question of law in that the 1st Respondent is a foreigner and as such the property cannot and should not have been vested in his name without obtaining sanction first.
  2. Considering the above averments hence, it can be only reasonable to conclude that the Applicant will be the one suffering from irreparable loss and damage if the injunction is not granted, as the 1st Respondent would be at liberty to dispose of the property in issue permanently depriving the Applicant of her proprietary rights and her inheritance. This would cause permanent harm, loss and damage to the Applicant.
  3. The Applicant submits that should the interlocutory injunction be granted, it would not cause prejudice or irreparable harm and damages to the 1st Respondent. The status quo would be maintained until the claim is tried and a judgment given. As the subject matter is one of immovable property, there will be no uncompensated disadvantage to the 1st Respondent.
  4. The Applicant has further submitted that should the interlocutory injunction be granted, the risk of injustice will be lower considering the facts and circumstances of this case. The court gives consideration to the fact that should the parcels be transferred to innocent third parties or a bona fide purchaser before the main claim is disposed of, the Applicant will suffer a greater injustice if ever of its proprietary interests are recognized.

Conclusion

  1. In line with the above analysis, noting the peculiar circumstances of this case, the court finds that the Applicant has established that the inconvenience she will suffer by a refusal of this application will be greater than that which the 1st Respondent will suffer by the grant of the injunction.
  2. 30. This court this, grants this application and hereby firstly, issues a writ of injunction against the Respondents, prohibiting them from disposing the property subject matter in the main suit namely: Titles S9425; S9426; S9427; and S9540, until the final outcome of the case CS No.3 of 2021 and secondly, I further order the Registrar of Lands to put a restriction against titles S9425, S9426, S9427 and S9540 until this matter is finally decided in this Court.

Signed, dated, and delivered at Ile du Port Victoria on 25 January 2022.

 

____________           

ANDRE J