Supreme Court of Mauritius, 25 février 2020, 2020 INT 26 – Syndicat des Coproprietaires de L’Immeuble Ebene Junction v S. Essoof

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Syndicat des Coproprietaires de L'Immeuble Ebene Junction v S. Essoof

2020 INT 26

CN634/2017 THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL) In the matter of: –

Syndicat des Copropriétaires de L’Immeuble Ebene Junction Plaintiff V/s

Sadaf Essoof

Defendant JUDGMENT

1) The plaintiff avers that the defendant is the co-owner of immovable property known as Ebene Junction and in virtue of the Règlement de Copropriété is under the obligation to contribute to the common charges. The defendant was and is still indebted to it in the sum of Rs104,171.03 representing outstanding common charges as at 14 April 2017 (Rs93,426.94; 10 per cent attorney’s commission Rs9342.69; 15 cent VAT Rs1401.40) which he has failed and neglected to pay in spite of amicable requests to do so. The plaintiff therefore prays for a judgment condemning and ordering the defendant to pay to it the sum of Rs104,171.03 together with all sums that may become due at the time of judgment, 10 per cent attorney’s commission and 15 per cent VAT and interest as from 14 April 2017 until final payment, with costs.

2) The defendant denies being indebted “to the sum claimed or in any sum whatsoever” (sic) and moves that the plaintiff’s action be dismissed, with costs.

The case for the plaintiff

3) Mr C. de Senneville, represents Iliad, but does not have any document to the effect that he is authorised to represent the plaintiff. Iliad was appointed as syndic of the plaintiff for three years as per the resolutions of 18 June 2015 and 1 June 2018 (Documents B and C). The syndic sends the budget to the co-owners 15 days before the assemblée générale and it is voted at each end of year after discussion with the owners (Document D). He has not received any queries about expenses from the defendant. Appel de fonds are the common charges incurred by the syndicat des copropriétaires, e.g., maintenance, landscaping, etc and frais syndicaux are the management charges for the syndic. This is not specified, but all the owners have voted the budget.

4) The defendant, owner of lot 001 of Ebene Junction building, has to pay the charges of the syndic in virtue of the Règlement de Copropriété (extract produced and marked as Document A). The number of the lot is 138 and 208 and the documents mention those numbers, but the reference at the office is 001. The quarterly claims/appel de fonds corresponding to the current expenditures were sent to the defendant: the amount he owes as at 24 January 2020 is Rs344,335.96 together with attorney’s commission and VAT as provided in the Cahier des Charges, which the plaintiff requested him to pay through an exchange of correspondence (Documents E, E1 to E11, F, G, G1 and G2). The defendant’s quote-part is calculated on the amount voted in the budget. He therefore claims from the defendant the sum of Rs344,335,96 together with attorney’s commission, VAT and costs. He does not have documents in support of the claim for attorney’s commission and VAT. He denies that he does not have sufficient proof in support of the appel de fonds/the claim, but admits he does not have receipts to justify the amount. He arrives at an amount of Rs91,258.57, but does not have any document to substantiate the sum of Rs91,000 and cannot say how many years it dates back to. The company answered the defendant in relation to his stating that he owed only frais syndicaux and not appel de fonds.

The case for the defendant

5) The gist of the evidence of Mr F. Meerun, accountant, who represents the defendant, although he does not have any document to that effect, is that the defendant’s quote-part in respect of the lots he owns is 31.69/100,000 and 694.95/100,000 and the Appel de Fonds Budget shows the defendant’s electricity consumption. The defendant agrees to pay the

syndic fees only, but not the appel de fonds because whilst they received some documents from the plaintiff’s attorney, they did not get any answer or details following their request for explanations about the appel de fonds and for a breakdown. They may have paid part of the amount, although he does not have proof that the defendant made any payment. The defendant has challenged the figures at the syndic office and not at the assemblée générale, when expenses are discussed. Document E, wherein it is specified that the defendant owes 31.69/100,000 and 694.95/100,000 of Rs1,061,883.75 as charges and the electricity consumption is also indicated for the month, is only part proof of electricity consumption, because he does not know if the defendant has an electricity counter or has access to it. The defendant is not using the absence of receipts to refuse to pay. He denies that the amount due as at 24 January 2020 is Rs344,335.96 together with commission.

Discussion

6) On the issue of jurisdiction, I find that the submissions of Mr D. Appa Jala, counsel for the defendant, are rather cryptic and in any event untenable. The case file was indeed transferred to the District Court following the amendment to the Courts (Determination of Prescribed Amount) Regulations 1955 in relation to the jurisdiction of the Intermediate Court. However, following the statement of Mr A. Ramdass, counsel for the plaintiff, that the sum that would be due at the time of judgment would exceed the jurisdiction of the District Court there was a motion for the case file to be reverted back to the Intermediate Court. In the circumstances, the issue of the Intermediate Court not having jurisdiction is a ‘non-issue’.

7) The issue that the representative of the plaintiff and defendant did not have any documentary evidence to the effect that they are authorised to represent respectively the plaintiff and defendant was raised during the trial. The plaintiff company is styled as represented by its syndic, Iliad Syndic Ltd and in court Mr de Senneville said he was the manager of Iliad Syndic Ltd. There is no mention of Iliad Syndic Ltd in the extract of the Règlement de Copropriété produced, but in the procès-verbaux of 18 June 2015 it was agreed that Iliad Syndic Ltd be appointed as syndic for three years. However, Mr de Senneville has not produced any document to the effect that the board of Iliad Syndic Ltd authorised him to represent the plaintiff in court.

8) Mr Meerun either did not produce any document to the effect that he was authorised to represent the defendant in court.

9) However, neither counsel raised any preliminary point in law to the effect that the two witnesses could not represent the parties because they did not have any authorisation to do so or objected to their giving evidence for the same reason and they proceeded to cross- examine the witnesses. In the circumstances, I find that they cannot now challenge the fact that Mr de Senneville and Mr Meerun represented respectively the plaintiff and the defendant. The issue for the court is whether the witnesses were aware of the cases of the plaintiff and defendant and whether they were able to provide answers in examination-in- chief and cross-examination.

10) There was an issue about the number of the immovable property the defendant owned and in respect of which the plaintiff is claiming outstanding common charges. It is not specified in the plaint what lot(s) the defendant owns in Ebene Junction and in the Appel de Fonds Budget document addressed to the defendant there is mention of lots 138 and 208. In the extract of the Règlement de Copropriété produced, at page 176, there is a list of the lots with a description thereof, but there is no mention of the names of the owners of the lots. This might be indicated in the rest of the Règlement de Copropriété, but as the whole document was not produced in court, the court is not aware what it contains. I wish to point out that it is the court that caused pages 1 to 7 of the Règlement de Copropriété to be photocopied so as to have an idea what document was being referred to.

11) Be that as it may, in the statement of account from Iliad addressed to the defendant there is mention of lot 001 and in the e-mails exchanged between the plaintiff and defendant/Mrs Natheesa/Natisha (Natheesa/Natisha being the person who the defendant said to contact), which documents were never challenged, the plaintiff systematically refers to office 001 and in the email dated 28 April 2016 Natisha asked for the amount due as syndicate fees and electricity for office 001. It is to be noted that the statement of account was made available for inspection at the office of the attorney for the plaintiff and that the defendant never averred that the sum claimed from him was not in respect of the lot(s) he owned.

12) I find plausible the evidence of Mr de Senneville that 001 is the reference number that the plaintiff uses and that it refers to lots 138 and 208 owned by the defendant. I find that the

defendant’s contention that there is no link between lots 001 and 138 and 208 untenable.

13) Mr D. Appa Jala, counsel for the defendant, submitted that there was no “receipt… breakdown” and there was “the issue of time-bar of three years” (sic). It is provided at paragraph 2.2.2.2 of the Règlement de Copropriété that the general charges would be shared amongst the co-owners and that the syndic could make quarterly appels de fonds. There is evidence on record that the quote-part of each owner would be calculated as a percentage of the budget voted every three months at the assemblée générale. As an owner, the defendant would have been aware of same and it is clear that any owner having issue with the budget would have to raise it during the assemblées générales: however, Mr Meerun admitted that the defendant did not make any complaints at the assemblée générale and his evidence that the defendant made complaints at the office of the syndic is unsupported. Mr Meerun’s contention that the defendant may have made payment is also not supported by any evidence.

14) However, the thinness of the evidence adduced on behalf of the defendant does not absolve the plaintiff from adducing evidence in support of each and every fact averred in its plaint. It is averred in the plaint that the claim of the plaintiff of Rs104,171.03 (Rs93,426.94 plus commission and VAT) is as at 14 April 2017 and it prays for judgment in that sum together with the sum due as at January 2020 which makes a total of Rs344,335,96. The plaintiff has not produced any statement of account in support of the claim of Rs93,426.94 and there is no evidence of the commencement date of the said outstanding amount. I note that the amount indicated in the Appel de Fonds Budget as being the defendant’s quote-part for the period 1 March 2017 to 31 May 2017 is Rs7716.07 and that different outstanding amounts are also indicated in the document (Rs83,665.43 and Rs78,086.30). The figures cannot be reconciled with the claim of Rs93,426.96.

15) It is indicated in the statement of account that the previous amount the defendant owed as at 31 May 2019 is Rs290, 717.39, but Mr de Senneville did not produce any detailed statement of account in support of such claim and there is no evidence of the commencement date of the said outstanding amount.

16) A computation of the quote-part payable by the defendant for the period 1 March 2017 to 31 May 2019 on the basis of the figures given in the Appel de Fonds Budget – Documents

E to E8 – arrives at Rs141,365.09 which is not consistent with the figure of Rs290,717.39 in the statement of account.

17) It is to be noted that when Mr de Senneville calculated the total amount payable for the period 1 March 2017 to 31 May 2017 he reached a different figure than the one in the Appel de Fonds Budget for that period and he could not reconcile the two amounts.

18) In the absence of any evidence about the commencement date of the outstanding amount of Rs93,426.94 or the amount Rs290, 717.39 the court cannot determine whether the claims are time-barred in virtue of article 2279 of the Code civil.

19) The plaintiff is also claiming ten per cent attorney’s commission and 15 per cent Vat on attorney’s commission, but there is no such provision in any of the documents produced on behalf of the plaintiff.

Conclusion

20) I find that although there is a basis for the case for the plaintiff, the evidence adduced is unsubstantiated. I find that it is apposite here to cite section 17(1)(c) of The District and Intermediate Courts (Civil Jurisdiction) Act, which reads as follows:

When the court has heard what each party has to say, it shall give such judgment as justice may require and may award costs to the successful party.

21) In S. Maudhoo v S. Chuttoo & Anor [2004 SCJ 230] the Supreme Court said the following:

“Section 17(1)(c) of the Act provides that the Court “shall give such judgment as justice may require”. As observed in Murugappa v. Jankee and in Boolaky v. Reega, the powers given to the Court under section 17(1)(c) are wide enough to encompass those of granting in its discretion a non-suit.”

22) The Supreme Court went on to refer to Halsbury’s Laws of England 4 th

Edition Vol. 10 at

paragraph 417, in relation to the grounds for a non-suit, as follows:

“Subject to his discretion to direct judgment to be entered for the defendant, the judge should non-suit the plaintiff when there is no evidence to support the plaintiff’s case, and he may hold that there is for this purpose no evidence when there is no substantial evidence …”

23) In the light of all the above I find that the evidence adduced by the plaintiff is not sufficient to support its case. I accordingly non-suit the plaintiff. I make no order as to costs.

W. V. Rangan Ag. President Intermediate Court

This 25 January 2020