Benoiton Construction Company (Pty) Ltd v Consolidated Power Projects Group Africa Limited (CS 64 of 2021) [2022] SCSC 831 (23 September 2022)

Key Facts

Issues

• The court concluded that the Plaintiff's delay in filing the plaint (over a year and six months after initial deadlines) rendered the issues of estoppel and waiver moot. The Defendant's timely response to the delay was deemed sufficient to preserve its arbitration rights under the agreement.
• The court determined whether the Defendant demonstrated readiness and willingness to submit to dispute resolution at the commencement of proceedings, considering the one-year and six-month delay by the Plaintiff in filing the plaint. The Defendant's 23 July 2021 letter expressing willingness to appoint an adjudicator was found to be timely under case law, despite the Plaintiff's prior inaction.
• The court assessed the validity of the Defendant's affidavit, which lacked an apostille as required by the Onezime case. While acknowledging the defect, the court ruled it curable and granted the Defendant three weeks to rectify it before proceeding with the stay of proceedings.

Holdings

• The court ruled that the Defendant's affidavit supporting their readiness to arbitrate is defective due to lack of apostille but granted three weeks for the Defendant to cure the defect.
• The court concluded that the arbitration agreement between the parties is valid and has not been terminated, as both parties acknowledged its existence and validity during proceedings.
• The court determined that the Defendant expressed readiness and willingness to submit to arbitration on 23 July 2021, following the Plaintiff's one-year-and-six-month delay in filing the plaint. The court found the Defendant's actions were not barred by laches due to the Plaintiff's own delay, and the arbitration clause remains valid and unexpired.
• The court dismissed the Plaintiff's claims of waiver and estoppel, as these objections were deemed moot given the Plaintiff's prior delay in initiating proceedings.

Remedies

• The defendant was granted three weeks from the date of the ruling (23rd September 2022) to cure the defect in their affidavit, which lacked an apostille. The court acknowledged the affidavit was defective but deemed the defect curable within this timeframe.
• The court granted a stay of proceedings in the case until the defendant cures the defect in the affidavit by providing an apostille within three weeks. This stay was ordered to allow time for the defendant to correct the procedural issue before the matter can proceed.

Legal Principles

• The Plaintiff argued the Defendant was estopped by conduct from requesting the court to decline jurisdiction, as the Defendant allegedly failed to act promptly in the dispute resolution process. The court noted this submission but found it unnecessary to address due to the Plaintiff's own delay in filing proceedings.
• The court applied the principle of Pacta Sunt Servanda (agreements must be kept) to determine the enforceability of the arbitration clause in the Subcontract Agreement between the parties. The agreement's validity and the obligation to abide by its terms were central to the jurisdictional challenge.
• The court emphasized that the Defendant must satisfy the burden of proof to demonstrate they were ready and willing to submit to arbitration at the commencement of proceedings, as established in Beitsma v Dingjam. The Defendant's letter dated 23 July 2021 was deemed sufficient to meet this burden despite the Plaintiff's claims of tardiness.
• The standard of proof required for the Defendant's readiness to arbitrate was addressed, with the court noting that the Defendant's prompt post-filing action (23 July 2021) satisfied the procedural threshold, even though the initial deadline (15 January 2020) was missed. The Plaintiff's delay in filing the plaint was deemed dispositive.

Precedent Name

• Beitsma v Dingjam
• Onezime v AG & Government of Seychelles
• Wartsila NSD Finland OY v United Concrete Products
• Emerald Cove Ltd v Intour SRL

Cited Statute

• Commercial Code of Seychelles
• Civil Code of Seychelles

Judge Name

Passage Text

• [25] In this instant case the court is not dealing with a new application... The affidavit has been filed to support the letter dated 23 July 2021 sent by the Defendant to the Plaintiff expressing his willingness to submit to dispute resolution. I observe the affidavit does not contain an apostille. Yes, I agree with learned Counsel it is defective but the defect is curable. I grant the defendant three weeks to cure the said defect.
• [21] From the above it is apparent that the Plaintiff too delayed the filing of proceedings and despite notice of deadlines being given to the Defendant on the 20th September 2019 and 13th of December 2019 which deadline ended on the 15th of January 2020, the Plaintiff filed the plaint only on the 12th of July 2021. It is my considered view that the Defendant cannot be faulted for taking advantage of the delay and expressing his readiness and willingness to submit to dispute resolution soon thereafter on the 23rd of July 2021.
• [17] As it appears from the Plaintiff's submissions, the Plaintiff does not dispute the validity of arbitration clause and therefore the main issue for determination, is whether the Defendant has shown to the Court that they were ready and willing to submit to dispute resolution and whether they have proven to the Court that they have acted in accordance with procedure laid out in Beitsma v Dingjam No. 1 (1974) SLR 292 and confirmed in Emerald Cove Ltd v Intour SRL (2000-2001) SCAR 83 and Wartsila NSD Finland OY v United Concrete Products (2004-2005) SCAR.