Constitutional Law

Auguste v Singh Construction (Commercial Case 71 of 2022) [2022] SCCA 69 (16 December 2022);

Mithila Mudalige — Wed, 28 Dec 2022 06:04:57 +0000

Auguste v Singh Construction (Commercial Case 71 of 2022) [2022] SCCA 69 (16 December 2022);

Flynote

Mithila Mudalige Wed, 12/28/2022 - 06:04

Search summary

partnership, business registration, breach of Court of Appeal Rules and Practice Directions- delay in filing submissions

Headnote and holding

The appeal is dismissed with costs.

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2022-scca-69.docx

2022-scca-69.pdf

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 71

(16 December 2022)

SCA 52/2020

(Arising in CS 53/2019)

THEOLENE AUGUSTE Appellant

(rep. by Guy Ferley)

and

SINGH CONSTRUCTION Respondent

(rep. Karen Domingue)

Neutral Citation: Auguste v Singh Construction (SCA 52/2020) [2022] SCCA 71

(16 December 2022)

(Arising in CS 53/2019) [2020] SCSC 788

Before: Twomey-Woods, Robinson, Tibatemwa-Ekirikunbinza, JJA

Summary: partnership, business registration, breach of Court of Appeal Rules and ruPractice Directions- delay in filing submissions

Heard: 7 December 2022

Delivered: 16 December 2022

ORDER

The appeal is dismissed with costs.

JUDGMENT

______________________________________________________________________________

DR. M. TWOMEY-WOODS JA

(Tibatemwa-Ekirikubinza concurring)

On 23 October 2020, the Supreme Court ruled on a plea in limine litis relating to the suit filed by the appellant against the respondent in the present matter. The court ruled that in order to sue a partnership, a plaintiff had to show that there was, in fact, a partnership between the parties sued and that having failed to do so, the plaint could not be maintained. It was consequently struck out.
The appellant appealed to this court on 30 December 2020. The record of proceedings was served on the appellant’s counsel, Mr. Ferley, on 6 October 2022.
Rule 24 (1) of the Seychelles Court of Appeal Rules 2005 (SCAR) required that heads of argument be filed two months from the date of service of the record. Practice Direction 2 of 2019 superseded these rules, requiring parties to submit heads of argument at least 30 court days before roll call.
Rule 11 (1) (a) permits the President or the Court to condone delays when the parties apply to the Court.
In the present matter, the record was served on the parties on 6 October 2022. On 9 September 2022, a notice was served on the appellant, drawing his attention to the Practice Directions requiring heads of argument to be filed.
On 8 November 2022, a case management hearing was held in which Mr. Ferley was represented by Ms. Pillay, who stated: “My instructions from Mr. Ferley is that he will file the skeleton heads by next Friday” (11 November).
This undertaking was not complied with, and on 22 November, further noticec was served on the appellant, again pointing out the breach of the Practice Directions.
The skeleton heads were finally filed in court on 28 November 2022, two days before roll call and with insufficient time for the Respondent to file an Answer.
No application was brought before this court to apply for an extension of time or to condone the delay.
In Aglae v Attorney General (2011) SLR 44, this court ruled an appeal abandoned for the breach of procedural time limits. The Court relied on the case of Ratnam v Cumarasamy and Another [1964] 3 All ER 933 for the proposition that:

“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right of extension of time which would defeat the purpose of the rules which provide a timetable for the conduct of litigation.”

There is now settled jurisprudence on this point – most recently in the cases of Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 (10 May 2018) and Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 (21 October 2019).
We cannot overemphasise the importance of rules of procedure. There is an apparent necessity for courts to adopt a tough stance on time limits. Parties are entitled to certainty and clarity in court proceedings and the taxpayer to a system that is cost-effective as possible.
For all these reasons, we cannot condone the breaches of the rules and deem the present appeal abandoned.

Order

The appeal is dismissed with costs.

_____________________________

Dr. M. Twomey-Woods, JA.

I concur ________________

Dr. L. Tibatemwa-Ekirikubinza JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

Law report citations

Auguste v Singh Construction (SCA 52/2020) [2022] SCCA 71 (16 December 2022) (Arising in CS 53/2019) [2020] SCSC 788

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 71

(16 December 2022)

SCA 52/2020

(Arising in CS 53/2019)

THEOLENE AUGUSTE Appellant

(rep. by Guy Ferley)

and

SINGH CONSTRUCTION Respondent

(rep. Karen Domingue)

Neutral Citation: Auguste v Singh Construction (SCA 52/2020) [2022] SCCA 71

(16 December 2022)

(Arising in CS 53/2019) [2020] SCSC 788

Before: Twomey-Woods, Robinson, Tibatemwa-Ekirikunbinza, JJA

Summary: partnership, business registration, breach of Court of Appeal Rules and ruPractice Directions- delay in filing submissions

Heard: 7 December 2022

Delivered: 16 December 2022

ORDER

The appeal is dismissed with costs.

JUDGMENT

______________________________________________________________________________

DR. M. TWOMEY-WOODS JA

(Tibatemwa-Ekirikubinza concurring)

On 23 October 2020, the Supreme Court ruled on a plea in limine litis relating to the suit filed by the appellant against the respondent in the present matter. The court ruled that in order to sue a partnership, a plaintiff had to show that there was, in fact, a partnership between the parties sued and that having failed to do so, the plaint could not be maintained. It was consequently struck out.
The appellant appealed to this court on 30 December 2020. The record of proceedings was served on the appellant’s counsel, Mr. Ferley, on 6 October 2022.
Rule 24 (1) of the Seychelles Court of Appeal Rules 2005 (SCAR) required that heads of argument be filed two months from the date of service of the record. Practice Direction 2 of 2019 superseded these rules, requiring parties to submit heads of argument at least 30 court days before roll call.
Rule 11 (1) (a) permits the President or the Court to condone delays when the parties apply to the Court.
In the present matter, the record was served on the parties on 6 October 2022. On 9 September 2022, a notice was served on the appellant, drawing his attention to the Practice Directions requiring heads of argument to be filed.
On 8 November 2022, a case management hearing was held in which Mr. Ferley was represented by Ms. Pillay, who stated: “My instructions from Mr. Ferley is that he will file the skeleton heads by next Friday” (11 November).
This undertaking was not complied with, and on 22 November, further noticec was served on the appellant, again pointing out the breach of the Practice Directions.
The skeleton heads were finally filed in court on 28 November 2022, two days before roll call and with insufficient time for the Respondent to file an Answer.
No application was brought before this court to apply for an extension of time or to condone the delay.
In Aglae v Attorney General (2011) SLR 44, this court ruled an appeal abandoned for the breach of procedural time limits. The Court relied on the case of Ratnam v Cumarasamy and Another [1964] 3 All ER 933 for the proposition that:

There is now settled jurisprudence on this point – most recently in the cases of Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 (10 May 2018) and Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 (21 October 2019).
We cannot overemphasise the importance of rules of procedure. There is an apparent necessity for courts to adopt a tough stance on time limits. Parties are entitled to certainty and clarity in court proceedings and the taxpayer to a system that is cost-effective as possible.
For all these reasons, we cannot condone the breaches of the rules and deem the present appeal abandoned.

Order

The appeal is dismissed with costs.

_____________________________

Dr. M. Twomey-Woods, JA.

I concur ________________

Dr. L. Tibatemwa-Ekirikubinza JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

Lesperance v Bastienne & Anor (MA 324 of 2021) [2022] SCCC 4 (18 October 2022);

Olya Hetsman — Wed, 02 Nov 2022 09:18:05 +0000

Lesperance v Bastienne & Anor (MA 324 of 2021) [2022] SCCC 4 (18 October 2022);

Flynote

Constitutional Law

Olya Hetsman Wed, 11/02/2022 - 09:18

Search summary

Application for leave to file petition out of time; Rule 4 (3) Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules.

Headnote and holding

Application seeking leave to file the Constitutional Petition out of time is declined, accordingly the Constitutional Petition is dismissed.

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2022-sccc-4.docx

2022-sccc-4.pdf

RULING BY THE COURT

The Applicant Peter Lesperance, the Petitioner in Constitutional Court case CP 06/2021 seeks the leave of the Constitutional Court to file his petition out of time. The application is made under Rule 4 (3) Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (hereinafter Constitutional Court Rules). Rule 4 (4) states that the Constitutional Court may, for sufficient reason, extend the time for filing a petition under Rule 3.

Background Facts

The background facts of the case are that the Applicant in his Constitutional Court petition claims that his constitutional rights to a fair hearing have been breached by the judgment of the Court of Appeal in SCA 21/2017 dated 24 January 2020 that upholds the judgment of the learned Trial Judge in Supreme Court case [2017] SCSC 456 of 05 June 2017 where he was the defendant. He states at paragraph 8 of his petition that both judgments were based on “erroneous factual conclusions on matters that were uncontroverted.” The Applicant avers bias and that his right to fair hearing had been infringed and avers that in the Supreme Court he was not afforded an impartial and independent tribunal to hear his case, not given an opportunity to adduce his evidence, and that material facts had been ignored in the judgment of the Supreme Court. He further avers at paragraph 12 that the decision of the Court of Appeal affirming the judgment of the Supreme Court “is a perversion resulting from a failing to recognise or ignoring uncontroverted facts”. He seeks the following reliefs in his petition as set down below:
1. a declaration that constitutional right of the Petitioner has been breached under articles 16 and 26 of the Constitution.
2. quashing the order of the Court of Appeal ordering the Petitioner to pay SR50,000 to the 1^st Respondent;
3. quashing the order of the Court of Appeal finding that there is no droit de superficie in favor of Rosie Lesperance on the house located at Anse Reunion, La Digue in terms of the sale of the land dated 4 December 1985;
4. Moral damages amounting to SR500,000 against the Respondents; and
5. Any other order that their Lordships deem fit.
The 1^st Respondent in this application is also the 1^st Respondent in the Constitutional Court case and the Plaintiff in the case before the Supreme Court.
The 2^nd Respondent is the Attorney General, who is a necessary party to the case under rule 3 (3) of the Constitutional Court Rules.
The judgment in question was delivered on the 24.01.2020 by the Seychelles Court of Appeal and the Applicant accepts the fact he received it two weeks later.
The Applicant filed his petition in the Constitutional Court under article 46 of the Constitution of the Republic of Seychelles on the 06.12.2021 a period of over one year ten months later.

Applicants Case and Submissions

Due to the aforementioned delay in filing, the Applicant files this Notice of Motion for leave to file his petition out of time in line with Rule 4 (3) and (4) of the Rules. The main grounds he urges in explaining his delay in filing the Constitutional Court case out of time are summarised as follows:
1. It was only in April or May 2020 when he watched a television program he heard the Chairman of the Human Rights Commission state that one could challenge the decision of the Court of Appeal through the Constitutional Court if one’s constitutional rights were breached. It was only in September 2020 that he was able to meet the Chairman and thereafter lodged a formal complaint on the 21 September 2020 against the decision of the Seychelles Court of Appeal. It was only in 2021 April that he states in paragraph 7 that he was advised that “there were possible fair hearing issues with from the decision (sic) taken by the Supreme Court of Seychelles in CS 246 of 2006 and that the Court of Appeal could have, but did not remedy that decision”. He was also advised to seek legal aid.
2. He explains his further delay by stating he was advised to get legal aid and he applied for legal aid on the 26^th of April 2021 and received legal aid only on the 28^th of May 2021. He had to furnish the necessary pleadings and documentation and it was only at the end of November 2021 that his legal aid lawyer completed the pleadings.
In his written submissions, dated 18.06.2022, the Applicant states:
1. That whether he may be granted leave to file his petition out of time is a matter of discretion resting with the Court and in exercising that discretion, the Court should consider the case Parcou v Parcou SCA32/1994, as explained in Kannus Supermarket v Vaithiyanathan/uthrapathy (MA200/20) [2021] SCSC320 (14.06.2021). Therefore, the Court should consider (1) length of delay, (2) reasons for delay, (3) degree of prejudice to the Applicant and (4) whether there is an arguable cause.
2. Considering the length of the delay, the Applicant puts his focus on the Covid situation happening in 2020 that lead to delays in law firms as well. He cites Sections 3 (1) (a) and 5 (2) of the Suspension of Prescription and Time Limitation Period (Temporary Provisions) Act 2020 (Act 17 of 2020) which, read with Official Gazette No. 351 of 2020 gives him 21 days after the 25th May to file his Application, leading him to the conclusion that it was “only” filed 17 months out of time, after the 24th June 2020.
3. Considering reasons for the delay, the Applicant repeats what he already stated in his affidavit.
4. Considering the degree of prejudice to the Applicant he states that the prejudice “arises out of the fact that the Court of Appeal’s judgment was based on erroneous factual conclusions on matters that were uncontroverted”. He also fears about the prejudice caused by the alleged bias of the Presiding Judge because he has an “honest belief of a likely breach of his right to a fair hearing”.
5. On the question of whether there is an arguable case, the Applicant submits that although Rule 4 (1) (a) of the Constitutional Court Rules has been breached, in his opinion “strict adherence to rules must not be used to defeat justice”.

First Respondent’s Objections

The Respondents filed objections to the granting of leave to file the petition out of time. Thereafter an opportunity was given to all parties to file their respective submissions.
In his affidavit dated 28.06.2022, the 1^st Respondent sets out the grounds of his objections to the grant of leave to proceed out of time which are summarised below;
1. the Application is frivolous and vexatious.
2. the factual errors the Applicant refers to found in the judgment don’t have any effect on the outcome of the case and the Applicant had already raised these factual issues in respect of the judgment of the Supreme Court before the Seychelles Court of Appeal and the Seychelles Court of Appeal had held that these errors had no bearing on the outcome of the case and is now seeking to have a second bite of the cherry.
3. the Applicant has been involved in litigation for more than 20 years and is savvy in matters of seeking legal advice and filing cases in court, and he would have known that it is possible to file a suit like that before the Constitutional Court.
4. that the Applicant has failed to set out any serious, sufficient and reasonable cause for the Constitutional Court to grant the Applicant leave to file his petition out of time.
5. that in order for the Court to grant leave to file a Petition out of time there must be exceptional reasons or at the very least an arguable point of law which is of general public importance.
6. the Applicant is seeking to abuse the process of Court as having exhausted all his legal remedies he now seeks to again rehearse matters which have been heard by both the Supreme Court and Court of Appeal. On these grounds the 1^st Respondent moves that the application to file the petition out of time be dismissed with costs.

Second Respondent’s Objections

In his affidavit dated 17.05.2022, Mr. George Thachett states on behalf of the 2^nd Respondent that the said application be refused by Court on the following grounds set down below:
1. the Applicant has not demonstrated sufficient reasons for the Court to exercise its discretion and that the Applicant’s affidavit does not give a reasonable cause of action or arguable contravention of the Constitution and therefore amounts to an abuse of process.
2. the Applicant has a heavy burden to demonstrate sufficient reasons and refers to the case of Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019) to show that the Applicant’s failure to recognize that he may bring the matter to the Constitutional Court is not enough to excuse the delay.
3. the Applicant has been represented before in the Court of Appeal and therefore there is no reason for him to have been unaware of his rights and has no proper explanation for the 6 months’ delay from the first contact with his Counsel and the filing of the Notice of Motion.
4. there is no reasonable cause of action/arguable contravention of the Constitution and, as a result, the proposed petition had to be struck out. The issues had either not been raised before the Court of Appeal or the Court has already dealt with them. Therefore the matter has been decided conclusively and any attempt to reopen it would be an abuse of process.

Findings of this Court in accordance with the relevant Law and Case law

Rule 4 (1) (a) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules states: “Where the petition under Rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court – in a case of an alleged contravention, within 3 months of the contravention”.
The factors to be taken into account when exercising the discretion are length of delay, reasons for delay, degree of prejudice to the defendant, and whether there is an arguable case on appeal (Parcou v Parcou (1996-1997) SCAR 109, Germain v R (2007) SLR 25, emphasis added).
It is clear and admitted by the Applicant that the delay in this case is not a few days or a month but a period of over one year ten months. In the case of Darrel Green v Seychelles Licensing Authority and Government of Seychelles CA 43/1997 it was held that leave to file an application out of time is not the norm, but the exception and shall be granted “not as of course but only if the applicant shows sufficient reasons to justify an extension of time” (emphasis added). Further an extension of time will be granted if the court is satisfied that there is good and sufficient cause for the delay. The longer the delay the greater the burden on the applicant. The court will consider whether the circumstances that cause delay are attributable to the applicant or not (Tarnecki v R SCA 4/1996, LC 89, emphasis added).
The main ground for his delay is that he was unaware of what he should do and became aware that he could go to the Constitutional Court only after hearing the Human Rights Commissioner say so on the television. A similar argument was taken up in the case of Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019), where the Applicant had filed an application in the Constitutional Court 20 years after the legal limit under circumstances that are very similar to this case claiming he was unaware he could seek redress in the Constitutional Court and instead as held by the Constitutional Court “embarked on an over twenty year-long odyssey, during which he approached almost every other conceivable institution except the Constitutional Court”.
In that case, the Court stressed that the Applicant was not granted the desired leave, as “the availability of the Constitutional Court at any time as a forum in which a Petitioner can seek redress for perceived injustices is not some secret, hidden-away possibility that one needs to be told of. The availability is stated in the Constitution in plain and simple terms, for everyone to see” (emphasis added). The Court also relied on the fact that the Applicant had been represented throughout his trial by Learned Counsel, who, in the eyes of the Court, could and should have advised him on this option. In this case too, the Applicant has been represented by an Attorney at Law throughout and further as pointed out by learned Counsel for the first Respondent been in litigation since 2006 against the 1^st Respondent and cannot now claim that he was unaware of the existence of a Constitutional Court or what his legal rights were, having been represented by a Counsel continuously not only in the Supreme Court since 2006 but also in the Seychelles Court of Appeal.
We are therefore of the view that the lengthy delay in filing this case is inordinate and the reasons given for such delay in filing the case are puerile and unacceptable. Further to grant such a belated application would in the view of this Court seriously create a high degree of prejudice to the first Respondent who has been awaiting justice since 2006, that is since the date of filing the Supreme Court case, a period of over 17 years and still has not benefitted from the fruits of the judgment given in his favour. Granting the Application would only procrastinate the delay causing grave prejudice to the first Respondent in the Application.
Further the delay in filing the Application in the Constitutional Court cannot be attributed to any delay in the machinery involved in the administration of justice. The Applicant received the Court of Appeal judgment promptly, he received legal aid within the period of one month, though his application for legal aid was again belated, and it was the Applicant’s mistake to first file a complaint with the Human Rights Commission, wait for their reply and only then seek legal aid. He could have sought legal aid right away, greatly reducing the delay, therefore the delay in the view of this Court was due to laches on the part of the Applicant. An extension can be granted only for reasons which do not relate to laches on the part of the petitioner or the petitioner’s representative (Bodco v Herminie (2001) SLR 254, (emphasis added). Even taking into consideration Sections 3 (1) (a) and 5 (2) of the Suspension of Prescription and Time Limitation Period (Temporary Provisions) Act 2020 (Act 17 of 2020) and Official Gazette No. 351 of 2020, as the judgment he wishes to challenge has been delivered on the 24.01.2020 and his Notice of Motion has been filed on the 06.12.2021, his argument that the time period should start running from 24^th June 2020 and the three month period should be excluded is not acceptable when one considers rule 4 (1) (a) of the Constitutional Court Rules which states that the time period to be calculated is from the date of the contravention. For the aforementioned reasons we are of the view that the applicant has failed to show sufficient reasons to justify an extension of time.
It is the contention of both the 1^st and 2^nd Respondents that the Applicant does not have an arguable case in the Constitutional case.
In Airtel (Seychelles) Ltd v Review Panel of the National Tender Board & Anor (SCA 70/2018 (Appeal from CS MC 43/2018)) [2021] SCCA 36 (13 August 2021) the Court of Appeal discussed the issue of arguable case at paragraphs [16]-[22] and [27]-[30], although in relation to granting leave to appeal out of time. The decision cites Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd:

[27] An arguable case is one that stands a realistic chance of success – certainly not one that is guaranteed to succeed. A classic statement of the law is found in the often cited case of Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd, where Lord Diplock stated the law in the following terms:

“If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”

[28] It is settled law that at the leave stage the perusal of the material need not be thorough, it is sufficient, if on a quick perusal the court takes the view that there is an arguable case.

[29] Lord Diplock puts it more succinctly, in the Inland Revenue Commission, when he stated that:

“So this is a threshold question in the sense that the court must direct its mind to it and form a primafacie view about it upon the material that is available at the first consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself”.

This Court finds that the issues raised by the Applicant relating to “erroneous factual conclusions” has already been dealt with by the Court of Appeal (see Court of Appeal Judgment paragraphs [26]-[37]) and by filing the constitutional petition, the Applicant now further wants the Constitutional Court to rehear the issues again.
Furthermore, unlike in Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019) where the Petitioner relied on a report filed by the Ombudsman to support the application, the Applicant in the present case has not enclosed any documentation supporting his averments that the complaint was lodged with the Human Rights Commission and that he was in fact advised that “there were possible fair hearing issues with from the decision taken by the Supreme Court of Seychelles in CS 246 of 2006 and that the Court of Appeal could have, but did not remedy that decision”.
Therefore, this Court finds that there is no arguable case which amounts to a constitutional contravention. On the basis of the above reasoning, we decline the Application seeking leave to file the constitutional petition out of time, accordingly the constitutional petition stands dismissed.

Signed, dated and delivered at Ile du Port on 18 October 2022

____________

Burhan J

____________ ____________

Dodin J Esparon J

RULING BY THE COURT

The Applicant Peter Lesperance, the Petitioner in Constitutional Court case CP 06/2021 seeks the leave of the Constitutional Court to file his petition out of time. The application is made under Rule 4 (3) Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (hereinafter Constitutional Court Rules). Rule 4 (4) states that the Constitutional Court may, for sufficient reason, extend the time for filing a petition under Rule 3.

Background Facts

The background facts of the case are that the Applicant in his Constitutional Court petition claims that his constitutional rights to a fair hearing have been breached by the judgment of the Court of Appeal in SCA 21/2017 dated 24 January 2020 that upholds the judgment of the learned Trial Judge in Supreme Court case [2017] SCSC 456 of 05 June 2017 where he was the defendant. He states at paragraph 8 of his petition that both judgments were based on “erroneous factual conclusions on matters that were uncontroverted.” The Applicant avers bias and that his right to fair hearing had been infringed and avers that in the Supreme Court he was not afforded an impartial and independent tribunal to hear his case, not given an opportunity to adduce his evidence, and that material facts had been ignored in the judgment of the Supreme Court. He further avers at paragraph 12 that the decision of the Court of Appeal affirming the judgment of the Supreme Court “is a perversion resulting from a failing to recognise or ignoring uncontroverted facts”. He seeks the following reliefs in his petition as set down below:
1. a declaration that constitutional right of the Petitioner has been breached under articles 16 and 26 of the Constitution.
2. quashing the order of the Court of Appeal ordering the Petitioner to pay SR50,000 to the 1^st Respondent;
3. quashing the order of the Court of Appeal finding that there is no droit de superficie in favor of Rosie Lesperance on the house located at Anse Reunion, La Digue in terms of the sale of the land dated 4 December 1985;
4. Moral damages amounting to SR500,000 against the Respondents; and
5. Any other order that their Lordships deem fit.
The 1^st Respondent in this application is also the 1^st Respondent in the Constitutional Court case and the Plaintiff in the case before the Supreme Court.
The 2^nd Respondent is the Attorney General, who is a necessary party to the case under rule 3 (3) of the Constitutional Court Rules.
The judgment in question was delivered on the 24.01.2020 by the Seychelles Court of Appeal and the Applicant accepts the fact he received it two weeks later.
The Applicant filed his petition in the Constitutional Court under article 46 of the Constitution of the Republic of Seychelles on the 06.12.2021 a period of over one year ten months later.

Applicants Case and Submissions

Due to the aforementioned delay in filing, the Applicant files this Notice of Motion for leave to file his petition out of time in line with Rule 4 (3) and (4) of the Rules. The main grounds he urges in explaining his delay in filing the Constitutional Court case out of time are summarised as follows:
1. It was only in April or May 2020 when he watched a television program he heard the Chairman of the Human Rights Commission state that one could challenge the decision of the Court of Appeal through the Constitutional Court if one’s constitutional rights were breached. It was only in September 2020 that he was able to meet the Chairman and thereafter lodged a formal complaint on the 21 September 2020 against the decision of the Seychelles Court of Appeal. It was only in 2021 April that he states in paragraph 7 that he was advised that “there were possible fair hearing issues with from the decision (sic) taken by the Supreme Court of Seychelles in CS 246 of 2006 and that the Court of Appeal could have, but did not remedy that decision”. He was also advised to seek legal aid.
2. He explains his further delay by stating he was advised to get legal aid and he applied for legal aid on the 26^th of April 2021 and received legal aid only on the 28^th of May 2021. He had to furnish the necessary pleadings and documentation and it was only at the end of November 2021 that his legal aid lawyer completed the pleadings.
In his written submissions, dated 18.06.2022, the Applicant states:
1. That whether he may be granted leave to file his petition out of time is a matter of discretion resting with the Court and in exercising that discretion, the Court should consider the case Parcou v Parcou SCA32/1994, as explained in Kannus Supermarket v Vaithiyanathan/uthrapathy (MA200/20) [2021] SCSC320 (14.06.2021). Therefore, the Court should consider (1) length of delay, (2) reasons for delay, (3) degree of prejudice to the Applicant and (4) whether there is an arguable cause.
2. Considering the length of the delay, the Applicant puts his focus on the Covid situation happening in 2020 that lead to delays in law firms as well. He cites Sections 3 (1) (a) and 5 (2) of the Suspension of Prescription and Time Limitation Period (Temporary Provisions) Act 2020 (Act 17 of 2020) which, read with Official Gazette No. 351 of 2020 gives him 21 days after the 25th May to file his Application, leading him to the conclusion that it was “only” filed 17 months out of time, after the 24th June 2020.
3. Considering reasons for the delay, the Applicant repeats what he already stated in his affidavit.
4. Considering the degree of prejudice to the Applicant he states that the prejudice “arises out of the fact that the Court of Appeal’s judgment was based on erroneous factual conclusions on matters that were uncontroverted”. He also fears about the prejudice caused by the alleged bias of the Presiding Judge because he has an “honest belief of a likely breach of his right to a fair hearing”.
5. On the question of whether there is an arguable case, the Applicant submits that although Rule 4 (1) (a) of the Constitutional Court Rules has been breached, in his opinion “strict adherence to rules must not be used to defeat justice”.

First Respondent’s Objections

The Respondents filed objections to the granting of leave to file the petition out of time. Thereafter an opportunity was given to all parties to file their respective submissions.
In his affidavit dated 28.06.2022, the 1^st Respondent sets out the grounds of his objections to the grant of leave to proceed out of time which are summarised below;
1. the Application is frivolous and vexatious.
2. the factual errors the Applicant refers to found in the judgment don’t have any effect on the outcome of the case and the Applicant had already raised these factual issues in respect of the judgment of the Supreme Court before the Seychelles Court of Appeal and the Seychelles Court of Appeal had held that these errors had no bearing on the outcome of the case and is now seeking to have a second bite of the cherry.
3. the Applicant has been involved in litigation for more than 20 years and is savvy in matters of seeking legal advice and filing cases in court, and he would have known that it is possible to file a suit like that before the Constitutional Court.
4. that the Applicant has failed to set out any serious, sufficient and reasonable cause for the Constitutional Court to grant the Applicant leave to file his petition out of time.
5. that in order for the Court to grant leave to file a Petition out of time there must be exceptional reasons or at the very least an arguable point of law which is of general public importance.
6. the Applicant is seeking to abuse the process of Court as having exhausted all his legal remedies he now seeks to again rehearse matters which have been heard by both the Supreme Court and Court of Appeal. On these grounds the 1^st Respondent moves that the application to file the petition out of time be dismissed with costs.

Second Respondent’s Objections

In his affidavit dated 17.05.2022, Mr. George Thachett states on behalf of the 2^nd Respondent that the said application be refused by Court on the following grounds set down below:
1. the Applicant has not demonstrated sufficient reasons for the Court to exercise its discretion and that the Applicant’s affidavit does not give a reasonable cause of action or arguable contravention of the Constitution and therefore amounts to an abuse of process.
2. the Applicant has a heavy burden to demonstrate sufficient reasons and refers to the case of Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019) to show that the Applicant’s failure to recognize that he may bring the matter to the Constitutional Court is not enough to excuse the delay.
3. the Applicant has been represented before in the Court of Appeal and therefore there is no reason for him to have been unaware of his rights and has no proper explanation for the 6 months’ delay from the first contact with his Counsel and the filing of the Notice of Motion.
4. there is no reasonable cause of action/arguable contravention of the Constitution and, as a result, the proposed petition had to be struck out. The issues had either not been raised before the Court of Appeal or the Court has already dealt with them. Therefore the matter has been decided conclusively and any attempt to reopen it would be an abuse of process.

Findings of this Court in accordance with the relevant Law and Case law

Rule 4 (1) (a) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules states: “Where the petition under Rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court – in a case of an alleged contravention, within 3 months of the contravention”.
The factors to be taken into account when exercising the discretion are length of delay, reasons for delay, degree of prejudice to the defendant, and whether there is an arguable case on appeal (Parcou v Parcou (1996-1997) SCAR 109, Germain v R (2007) SLR 25, emphasis added).
It is clear and admitted by the Applicant that the delay in this case is not a few days or a month but a period of over one year ten months. In the case of Darrel Green v Seychelles Licensing Authority and Government of Seychelles CA 43/1997 it was held that leave to file an application out of time is not the norm, but the exception and shall be granted “not as of course but only if the applicant shows sufficient reasons to justify an extension of time” (emphasis added). Further an extension of time will be granted if the court is satisfied that there is good and sufficient cause for the delay. The longer the delay the greater the burden on the applicant. The court will consider whether the circumstances that cause delay are attributable to the applicant or not (Tarnecki v R SCA 4/1996, LC 89, emphasis added).
The main ground for his delay is that he was unaware of what he should do and became aware that he could go to the Constitutional Court only after hearing the Human Rights Commissioner say so on the television. A similar argument was taken up in the case of Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019), where the Applicant had filed an application in the Constitutional Court 20 years after the legal limit under circumstances that are very similar to this case claiming he was unaware he could seek redress in the Constitutional Court and instead as held by the Constitutional Court “embarked on an over twenty year-long odyssey, during which he approached almost every other conceivable institution except the Constitutional Court”.
In that case, the Court stressed that the Applicant was not granted the desired leave, as “the availability of the Constitutional Court at any time as a forum in which a Petitioner can seek redress for perceived injustices is not some secret, hidden-away possibility that one needs to be told of. The availability is stated in the Constitution in plain and simple terms, for everyone to see” (emphasis added). The Court also relied on the fact that the Applicant had been represented throughout his trial by Learned Counsel, who, in the eyes of the Court, could and should have advised him on this option. In this case too, the Applicant has been represented by an Attorney at Law throughout and further as pointed out by learned Counsel for the first Respondent been in litigation since 2006 against the 1^st Respondent and cannot now claim that he was unaware of the existence of a Constitutional Court or what his legal rights were, having been represented by a Counsel continuously not only in the Supreme Court since 2006 but also in the Seychelles Court of Appeal.
We are therefore of the view that the lengthy delay in filing this case is inordinate and the reasons given for such delay in filing the case are puerile and unacceptable. Further to grant such a belated application would in the view of this Court seriously create a high degree of prejudice to the first Respondent who has been awaiting justice since 2006, that is since the date of filing the Supreme Court case, a period of over 17 years and still has not benefitted from the fruits of the judgment given in his favour. Granting the Application would only procrastinate the delay causing grave prejudice to the first Respondent in the Application.
Further the delay in filing the Application in the Constitutional Court cannot be attributed to any delay in the machinery involved in the administration of justice. The Applicant received the Court of Appeal judgment promptly, he received legal aid within the period of one month, though his application for legal aid was again belated, and it was the Applicant’s mistake to first file a complaint with the Human Rights Commission, wait for their reply and only then seek legal aid. He could have sought legal aid right away, greatly reducing the delay, therefore the delay in the view of this Court was due to laches on the part of the Applicant. An extension can be granted only for reasons which do not relate to laches on the part of the petitioner or the petitioner’s representative (Bodco v Herminie (2001) SLR 254, (emphasis added). Even taking into consideration Sections 3 (1) (a) and 5 (2) of the Suspension of Prescription and Time Limitation Period (Temporary Provisions) Act 2020 (Act 17 of 2020) and Official Gazette No. 351 of 2020, as the judgment he wishes to challenge has been delivered on the 24.01.2020 and his Notice of Motion has been filed on the 06.12.2021, his argument that the time period should start running from 24^th June 2020 and the three month period should be excluded is not acceptable when one considers rule 4 (1) (a) of the Constitutional Court Rules which states that the time period to be calculated is from the date of the contravention. For the aforementioned reasons we are of the view that the applicant has failed to show sufficient reasons to justify an extension of time.
It is the contention of both the 1^st and 2^nd Respondents that the Applicant does not have an arguable case in the Constitutional case.
In Airtel (Seychelles) Ltd v Review Panel of the National Tender Board & Anor (SCA 70/2018 (Appeal from CS MC 43/2018)) [2021] SCCA 36 (13 August 2021) the Court of Appeal discussed the issue of arguable case at paragraphs [16]-[22] and [27]-[30], although in relation to granting leave to appeal out of time. The decision cites Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd:

[28] It is settled law that at the leave stage the perusal of the material need not be thorough, it is sufficient, if on a quick perusal the court takes the view that there is an arguable case.

[29] Lord Diplock puts it more succinctly, in the Inland Revenue Commission, when he stated that:

This Court finds that the issues raised by the Applicant relating to “erroneous factual conclusions” has already been dealt with by the Court of Appeal (see Court of Appeal Judgment paragraphs [26]-[37]) and by filing the constitutional petition, the Applicant now further wants the Constitutional Court to rehear the issues again.
Furthermore, unlike in Mellie v Government of Seychelles & Anor (CP 04/2018) [2019] SCCC 05 (24 June 2019) where the Petitioner relied on a report filed by the Ombudsman to support the application, the Applicant in the present case has not enclosed any documentation supporting his averments that the complaint was lodged with the Human Rights Commission and that he was in fact advised that “there were possible fair hearing issues with from the decision taken by the Supreme Court of Seychelles in CS 246 of 2006 and that the Court of Appeal could have, but did not remedy that decision”.
Therefore, this Court finds that there is no arguable case which amounts to a constitutional contravention. On the basis of the above reasoning, we decline the Application seeking leave to file the constitutional petition out of time, accordingly the constitutional petition stands dismissed.

Signed, dated and delivered at Ile du Port on 18 October 2022

____________

Burhan J

____________ ____________

Dodin J Esparon J

Talma v Camille (CS 122 of 2020) [2021] SCSC 367 (31 May 2021);

Anonymous — Fri, 01 Jul 2022 09:38:50 +0000

Talma v Camille (CS 122 of 2020) [2021] SCSC 367 (31 May 2021);

Flynote

Constitutional Law

Anonymous (not verified) Fri, 07/01/2022 - 09:38

Download

2021-scsc-367.pdf

Valentin v Planning Authority & Ors (SCA CL 3 of 2020) [2021] SCCA 5 (30 April 2021);

Anonymous — Thu, 23 Jun 2022 08:07:44 +0000

Valentin v Planning Authority & Ors (SCA CL 3 of 2020) [2021] SCCA 5 (30 April 2021);

Flynote

Constitutional Law

Anonymous (not verified) Thu, 06/23/2022 - 08:07

Search summary

The Appellant complains that his rights under article 16 and 26 of the Constitution have been breached by the 1st and 2nd Respondents.

Headnote and holding

The Appellant’s appeal against the judgment of the Constitutional Court is dismissed

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2021-scca-5.pdf

2021-scca-5.docx

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable
[2021] SCCA 9
SCA CL 03/2020
(Appeal from CP 12/2019)

James Valentin                                                                  Appellant
(rep. by Mr. Divino Sabino)

and

Planning Authority                                                 1st Respondent
(rep. by Mr. Stefan Knights)

Public Utilities Corporation                                    2nd Respondent
(rep. by Mr. S. Rajasundaram
Attorney General                                                              3rd Respondent
(rep. by Ms. Aaishah Molle)

Neutral Citation: Valentin v Planning Authority & Others (SCA CL 03/2020) SCCA 9

Before:                   Fernando P, Twomey JA, Robinson JA
Summary:             The Appellant complains that his rights under article 16 and 26 of the Constitution have been breached by the 1st and 2nd Respondents.
Heard:                    06th April 2021

Delivered: 30th April 2021

ORDER
The Appellant’s appeal against the judgment of the Constitutional Court is dismissed.

JUDGMENT

FERNANDO P (ROBINSON JA CONCURRING)

The Appellant has appealed against a judgment of the Constitutional Court dismissing his petition for:

“a declaration that the acts of the Respondents breach the Petitioner’s rights under articles 16 and 26 of the Constitution;
ordering the 2nd Respondent to relocate, divert or otherwise reposition the electricity lines and poles in order that the Petitioner may complete his construction works;
ordering the 1st Respondent to lift, vacate or otherwise remove the Stop Notice;
moral damages amounting to SR 500,000 against the Respondents; and
any other order that their Lordships deem fit.”

The Constitutional Court had dismissed the Petition on a preliminary objection raised on behalf of the 1st and 3rd Respondents, that the petition had been filed out of time in contravention of rule 4 of the Constitutional Court (Application, Contravention, Enforcement of interpretation of the Constitution) Rules 1994 and was in contravention of the parallel remedies principle set out in article 46(4) of the Constitution.

The Appellant has raised the following grounds of appeal:

“(1)        The Learned Judges erred in redefining the basis of the Petition as one that should have challenged the 1st Respondent’s Stop Notice issued on the 31st July 2017 or the 2nd Respondent’s numerous refusals to relocate the electricity lines. The case is based on the 1st and 2nd Respondents’ directives for the Petitioner to demolish part of his house that was made on the 11th April 2019. The alternative remedies as suggested by the courts would not have fully addressed the Appellant’s issues.

(2)         The Learned Judges erred to state that the Petition was filed out of time, they had based their decision on the correspondence from the PUC dating from 11th August 2016. The Petition is based on events of the 11th April 2019 in which the Planning Authority and PUC directed the Petitioner to demolish part of his house.

(3)         The Learned Judges erred in concluding that the Petitioner has no prima facie constitutional case for a breach of his constitutional rights when the case on the merits was not heard in proceedings.

(4)         The Learned Judges erred in stating that there must be a breach of a constitutional right before a Petition may be filed. The Constitution allows for Petitions to be filed if a breach is likely to occur.”

Facts in Brief:

The Appellant (Petitioner, before the Constitutional Court), to this appeal, is the owner of land parcel V 1564. “The 1st Respondent is the body in charge of deciding upon planning permission applications and related matters, such as issuing of Stop Notices. The 2nd Respondent is a statutory body in charge of the provision of electricity and water supply to the public and related matters such as setting up of electricity infrastructure.” (As averred by the Appellant in his Petition) The 3rd Respondent had been made a respondent to the petition before the Constitutional Court in compliance of rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement of interpretation of the Constitution) Rules 1994. The 1st, 2nd and 3rd Respondents to this appeal, had been made Respondents to the Petition filed before the Constitutional Court. The Appellant who was seeking to build an extension by way of a second storey to his dwelling house on parcel V 1564 had applied to the 2nd Respondent to divert the electricity lines over his property, since according to the Appellant, the extension to his dwelling house would intrude against the electricity wires. The Appellant had wanted the extension works to proceed without hindrance. The 2nd Respondent had carried out diversion works towards the end of 2015. Since the relocated electricity pole and wires continued to obstruct the extension to the dwelling house, the 2nd Respondent had advised the Appellant to apply and pay for a second diversion, which the Appellant had done. It had been the complaint of the Appellant that despite numerous correspondences and site visits, the 2nd Respondent had failed to divert the electricity line.

As per the petition before the Constitutional Court when the extension works were almost completed and was near the electricity lines, the 1st Respondent had on the 31st of July 2017, issued a Stop Notice against the Appellant and subsequently on 11th April 2019 directed the Appellant to demolish parts of his construction works and complete it in such a manner so as not to intrude upon the electricity lines. According to the Appellant, it had been the position of the 1st Respondent that the Stop Notice will be removed only thereafter. It had been the Appellant’s position that according to a structural report obtained by him JV 16, if he were to demolish the parts as recommended it would lead to the weakening of the structural integrity of his entire house. Strangely JV 16 is dated 19th February 2019, before the so called directive from the 1st Respondent. The Appellant had averred in his petition that the above actions had violated his right to dignity under article 16 of the Constitution and his right to peacefully enjoy his property under article 26 of the Constitution.

The Appellant had also averred that the 2nd Respondent had stated in its letter dated 18th March 2016, produced by the Appellant as JV9, that the 2nd Respondent is unable to carry out the works, because the adjacent landowner was refusing to allow the 2nd Respondent to erect a pole on his land and had requested the Appellant to obtain consent from that landowner. It is stated at JV 9 that “Our construction team went on site and were unable to complete the work due to objections from the landowner of parcel V1221 regarding the installation of electricity pole.”, and had requested the Appellant to seek permission for erecting the pole and routing the electricity lines across the properties of the adjacent landowners; and that if permission is not granted the 2nd Respondent will be unable to divert the line, and the application will be rendered void and the money paid by the Appellant will be refunded.

It is clear from the Appellant’s own pleadings at paragraph 6 above, that the 2nd Respondent cannot go to the adjacent landowner’s property and divert electricity lines over the that property without his consent as this would be a violation of the constitutional rights of the adjacent landowner. I do agree with the submission of the 2nd Respondent that what the Appellant wants is for “the 2nd Respondent to breach, violate a third party’s constitutional rights on the pretext of alleged violation, breach of his constitutional rights.”

The 1st and 3rd Respondents had raised two preliminary objections namely:

The petition is filed out of time, and
The Petitioner has other causes of action available to secure the redress to which the Petitioner may be entitled.

I am of the view that it was not proper for the 3rd Respondent the Attorney General to have been a party to the preliminary objection, as he has been made a respondent to the petition in compliance with the Constitutional Court Rules 1994 as stated at paragraph 4 above.

Rule 4 of the Constitutional Court (Application, Contravention, Enforcement of interpretation of the Constitution) Rules 1994 states as follows:

“4(1) Where the petition under rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court -
(a) in a case of an alleged contravention, within 3 months of the contravention;
(b) in a case where the likely contravention is the result of an act or omission, within 3 months of the act or omission;
(c) in a case where the likely contravention arises in consequence of any law, within 3 months of the enactment of such law.
(2) Where a petition under rule 3 relates to the application enforcement or interpretation of any provisions of the Constitution, the petition shall be filed in the Registry of the Supreme Court within 3 months of the occurrence of the event that requires such application, enforcement or interpretation.
(3) Notwithstanding sub rules (1) and (2), a petition under rule 3 may, with the leave of the Constitutional Court, be filed out of time.
(4) The Constitutional Court may, for sufficient reason, extend the time for filing a petition under rule 3.”

According to the Appellant, the 1st Respondent had issued a Stop Notice against the Appellant on 31st July 2017 notifying the Appellant with immediate effect to stop works on V1569. The said Stop Notice has been produced by the Appellant as JV 14 along with his petition before the Constitutional Court. The Stop Notice had been issued pursuant to section 14 of the Town and Country Planning Act. According to JV 14 the reason for the issue of the Stop Notice was because of issues with PUC electrical cables being located too close to the house under construction. The Appellant’s document JV 15 shows that he had been in receipt of this notice. It is the position of the Respondents in the preliminary objection raised that the petition in this case had been filed on the 19th of June 2019, long after the 3 months’ prescriptive period set out in rule 4(1)(a) or (b) of the Constitutional Court Rules 1994 referred to at paragraph 9 above, namely 23 months later. The Appellant’s averments in the petition that he filed a complaint before the Anti-Victimisation Committee of the National Assembly is not supported by any documentary evidence. The averment that the 1st and 2nd Respondents directives to him to demolish parts of his construction works in order to remove the Stop Notice is not supported by any documentary evidence. The Appellant who had filed 18 documents in support of his application had failed to attach a single document to support his claim that he had been directed by the 1st or 2nd Respondents on the11th April 2019, to demolish parts of his construction works and complete it in such a manner so as not to intrude upon the electricity lines and that the 1st Respondent would remove the Stop Notice, only thereafter. The Appellant in his petition filed before the Constitutional Court had only sought an order against the 1st Respondent to lift, vacate or otherwise remove the Stop Notice. There was no order sought against the so called verbal directive of 11th April 2019, to demolish parts of his construction works.

I am of the view that this is a veiled attempt by the Appellant to avoid the prescriptive period. The Appellant without seeking leave of the Constitutional Court to file the petition out of time in accordance with rule 4(3) of the Constitutional Court Rules 1994, had tried to overcome the prescriptive period, by making references to complaints he had made before the Anti-Victimisation Committee of the National Assembly, which this Court is not prepared to accept. Complaints to the Anti-Victimisation Committee or the Ombudsman do not extend the prescriptive time period set out in the Constitutional Court Rules 1994. It is to be noted that an extension of time may be granted at the discretion of the Constitutional Court to file a petition out of time only where an extension is sought by a person or where the Court finds that there are sufficient reasons to do so. In this case no extension had been sought by the Appellant nor had the Constitutional Court found sufficient reasons to do so.

At grounds 1 and 2 of appeal the Appellant’s Counsel states that his case is based on the 1st and 2nd Respondents’ directives to the Appellant to demolish part of his house that was made on the 11th of April 2019 and not on the Stop Notice dated 31st July 2017. There isn’t a single document produced as stated earlier to show that there were any directives to the Appellant to demolish part of his house. The only directive was, as stated in JV14 dated 31st July 2017 to stop works with immediate effect. The Appellant in his petition filed before the Constitutional Court had only sought an order against the 1st Respondent to lift, vacate or otherwise remove the Stop Notice. As stated earlier there was no order sought against the so called verbal directive of 11th April 2019, to demolish parts of his construction works. I therefore dismiss grounds 1 and 2 of appeal. It is not possible to believe that the Appellant had placed reliance on a verbal directive on an important matter of this nature.

In relation to ground 3 of appeal, I am of the view that the issuance of a Stop Notice or a request to carry out construction works and complete it in such a manner so as not to intrude upon the electricity lines, by the 1st and 2nd Respondents carrying out public functions, cannot be said to violate the Appellant’s right to dignity or his right to property, in the absence of any allegation of malice or abuse of authority. The Appellant has not alleged any mala fides or abuse of authority in respect to the actions of the 1st and 2nd Respondents. I therefore agree with the pronouncement of the Constitutional Court that: “after perusing the Petition and affidavit of the Petitioner (Appellant), we find that no prima facie case of breach of the Petitioner’s Constitutional rights under articles 16 or 26 has been made out. We find the decision of the 2nd Respondent to be purely administrative. At most, the Petitioner could have sought judicial review of that decision”. I therefore dismiss ground 3 of appeal.

I dismiss ground 4 of appeal as there is no specific pronouncement by the Constitutional Court in their judgment that “there must be a breach of a constitutional right before a Petition may be filed”. It is the Appellant who in his Petition had sought “a declaration that the acts of the Respondents breach the Petitioner’s right under articles 16 and 26 of the Constitution.”

I therefore dismiss the appeal. I make no order as to costs.

Signed, dated and delivered at Ile du Port on 30 April 2021.

________________
Fernando, President



I concur                                                                       ____________
                                                                                    Robinson JA

IN THE COURT OF APPEAL OF SEYCHELLES

Delivered: 30th April 2021

ORDER
The Appellant’s appeal against the judgment of the Constitutional Court is dismissed.

JUDGMENT

FERNANDO P (ROBINSON JA CONCURRING)

The Appellant has appealed against a judgment of the Constitutional Court dismissing his petition for:

The Appellant has raised the following grounds of appeal:

The 1st and 3rd Respondents had raised two preliminary objections namely:

The petition is filed out of time, and
The Petitioner has other causes of action available to secure the redress to which the Petitioner may be entitled.

Rule 4 of the Constitutional Court (Application, Contravention, Enforcement of interpretation of the Constitution) Rules 1994 states as follows:

I therefore dismiss the appeal. I make no order as to costs.

Karunakaran v AG (SCA CL 1 of 2020) [2021] SCCA 8 (30 April 2021);

Anonymous — Thu, 23 Jun 2022 08:06:50 +0000

Karunakaran v AG (SCA CL 1 of 2020) [2021] SCCA 8 (30 April 2021);

Flynote

Constitutional Law

Anonymous (not verified) Thu, 06/23/2022 - 08:06

Search summary

The Appellant’s argument was that a Puisne Judge cannot sit as a Justice of Appeal of the Court of Appeal to hear and determine cases

Headnote and holding

Appeal dismissed. Puisne Judge, is an ex-officio member of the Court of Appeal.

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IN THE COURT OF APPEAL OF SEYCHELLES

Reportable
[2021] SCCA 8
SCA CL 01/2020
(Appeal from CP 18/2019)

Durai Karunakaran Appellant
(rep. by Mr. Philippe Boulle)

and

Attorney General Respondent

(rep. by Mr. Stefan Knights)

Neutral Citation: Karunakaran v Attorney General (SCA CL 01/2020) SCCA 8

Before:                   Fernando President, Robinson JA, Dingake JA
Summary:             The Appellant’s argument was that a Puisne Judge cannot sit as a Justice of Appeal of the Court of Appeal to hear and determine cases
Heard:                    20 April 2021

Delivered: 30 April 2021

ORDER
Appeal dismissed. Puisne Judge, is an ex-officio member of the Court of Appeal.

JUDGMENT

Fernando, President, (Robinson JA, Concurring)

This is an appeal against the judgment of the Constitutional Court in CP 18 of 2019 dismissing the Appellant’s petition.

The Appellant’s complaint before the Constitutional Court was to the effect that the Court of Appeal bench that sat to hear his appeal against the judgment of the Constitutional Court in D. Karunakaran V Attorney General SCA CL 05/2018, contrary to the Seychelles Court of Appeal Rules 2005, did not consist of three Justices of Appeal, since one of them was a Judge of the Supreme Court. Thus, the complaint was in relation to the violation of the Seychelles Court of Appeal Rules, made under article 136(1) of the Constitution. It was the Appellant’s complaint before us at the hearing that as a result of the said violation, his constitutional right was breached as no valid Court of Appeal as set out in article 120(2) heard his appeal and thus the judgment of the Court of Appeal, was unconstitutional, null and void.

At the very outset I wish to point out that Appellant, had not objected to the composition of the Court at the commencement of or during the Court of Appeal hearing, but had decided to do so only when his appeal was dismissed. Appellant’s argument; that he made an objection in an earlier case and the fact that it was not considered, deterred him from making a similar objection, in my view is a weak argument. An objection to the composition of the court in my view, should have been taken at the very commencement of the appeal hearing, especially in the circumstances of this case. Once the Appellant submitted to the jurisdiction, he cannot now challenge it.

It is also noted that the petition filed before the Constitutional Court was not in compliance with rule 5 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules which specifies that a petition “…shall refer to the provision of the Constitution that has been allegedly contravened or likely to be contravened…” (emphasis added). I am of the view that there must be sufficient identification in a petition of the specific constitutional provision violated and not left to be inferred. There must be reference to a specific article of the Constitution. There is no reference in the petition to any provision of the Constitution that has been allegedly contravened or likely to be contravened, nor has the particular rule of the Seychelles Court of Appeal Rules been identified and specified.

The above two matters in my view would have sufficed to dismiss the petition by the Constitutional Court.

The crux of this appeal as correctly stated by Counsel for the Respondent, the Attorney General, is whether a Puisne Judge can sit as a Justice of Appeal of the Court of Appeal to hear and determine cases.

Article 121 of the Constitution sets out the composition of the Court of Appeal as follows:

“The Court of Appeal shall consist of -
(a) a President of the Court of Appeal and two or more other Justices of Appeal; and
(b) the Judges who shall be ex-officio members of the Court”

According to the Principles of Interpretation at clause 1(1) of Schedule 2 of the Constitution ‘Justice of Appeal’ “means a Justice of the Court of Appeal established by article 120” and ‘Judge’ “means the Chief Justice or a Puisne Judge”.

The Appellant in his arguments before the Constitutional Court and before this Court had tried to peg his argument by citing article 120(2) of the Constitution to state that there was no valid Court of Appeal. As stated earlier he had not referred to this article or any other article of the Constitution in his petition. Article 120(2) speaks in what instances one has a right of appeal, namely against a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court. It does not speak of the composition of the Court of Appeal. It is only article 121 that speaks of the composition of the Court of Appeal.

Article 121 deals with the composition of the Court of Appeal. If as the Appellant argues the Court of Appeal cannot consist of Judges of the Supreme Court, I do not understand why there is a reference to them in article 121(b). Article 121 of the Constitution, cannot be circumvented by any other rule of interpretation, even if there was any.

The words ‘ex-officio members of the Court’ means by virtue of office or as a result of one’s status or position. It is my view that by virtue of the characteristics inherent in the holding of a particular office, namely that of Judge of the Supreme Court, there is no need for a specific authorization or appointment as Justice of Appeal, when they sit as Justices of Appeal. I state this, as it was the argument of the Appellant that a Justice of the Court of Appeal is appointed by virtue of the provisions of article 123 of the Constitution and a Judge by virtue of the provisions of article 127 of the Constitution and thus a Judge of the Supreme Court cannot be a Justice of Appeal. One finds that the procedure for the appointment of both Justices of Appeal and Judges are identical, namely the appointment is by the President by an instrument under the Public Seal from candidates proposed by the Constitutional Appointments Authority. In view of section 12 of the Official Oaths Act (Cap 153) once a Judge of the Supreme Court has taken the Oath of Allegiance and the Judicial Oath, as required by the said Act, it is not required of him to take the said oaths again, even if appointed as a Justice of Appeal.

It was also the Appellant’s argument that the qualifications required for appointment as Justices of Appeal and Judges as set out in the Constitution, differ. Qualifications for Justices of Appeal, set out in article 122 are certainly not more stringent than those set out in article 126(1) for Judges. For that matter strangely the required qualifications for Justices of Appeal are less demanding, than for Judges. To be a Judge of the Supreme Court, the Constitution specifies, that the person should have been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution. On the contrary all that is needed to be a Justice of Appeal is that the person is suitably qualified in law and can effectively, competently and impartially discharge the functions of the office of Justice of Appeal under the Constitution. A person is entitled to practice before a court of unlimited original jurisdiction, only if ‘suitably qualified in law’. The requirement of seven years of practice before a court of unlimited original jurisdiction and the requirement that the person has shown outstanding distinction in the practice of law, have not been specified as required qualifications for appointment of Justices of Appeal.

The President of the Court of Appeal has been empowered under article 136(1) of the Constitution to make rules of the Court of Appeal. At rule 4 of The Seychelles Court of Appeal Rules 2005 it is stated “In respect of any appeal, the Court shall consist of those Judges, not being less than three, whom the President shall select to sit for the purposes of hearing that appeal”. (emphasis added)

‘Judge’ according to the Interpretation provision at rule 2 in the said Seychelles Court of Appeal Rules “means a Justice of Appeal acting as such”. The thrust of the Appellant’s argument is based on this, namely a Judge should be a Justice of Appeal. In making this submission he overlooks the words ‘acting as such’.

The Seychelles Court of Appeal Rules having being made under a delegated power, namely article 136(1) of the Constitution would have to be interpreted in accordance with article 121 of the Constitution referred to at paragraph 7 above. The word ‘Judge’ in rule 4 of the Rules, thus includes both Justices of Appeal and Judges of the Supreme Court. That the word ‘Judge’ includes Judges of the Supreme Court, is made clear by the use of the words “acting as such” in the Interpretation provision in rule 2 of the Rules. It would be illogical to refer to a Justice of Appeal “acting as such”, for he is a Justice of Appeal for all purposes. It would also be superfluous to state that a Justice of Appeal is acting as a Justice of Appeal, for he is not a Judge of the Supreme Court or a Magistrate.

The words “In respect of any appeal” and “select to sit for the purposes of hearing that appeal” in rule 4 of The Seychelles Court of Appeal Rules 2005, referred to at paragraph 13 above makes this further clear. It is not for all purposes that a Judge of the Supreme Court is treated as a Justice of Appeal, but only when selected by the President, in respect of any appeal, to sit for the purposes of hearing that appeal.

That the word ‘Judge’ includes Judges of the Supreme Court is made further clear by section 2(2) of The Judiciary Act of Seychelles (Cap104) which states:

“(2) The President of the Court of Appeal may appoint any Puisne Judge to sit as a Justice of Appeal of the Court of Appeal:

Provided that the Puisne Judge appointed shall not have heard the case at the first instance before the Supreme Court or on appeal from the Magistrates’ Court.”

In other jurisdictions too, provisions have made for ex-officio members of the superior courts.

Article 85 of the Constitution of the Solomon Islands which speaks of the establishment of the Court of Appeal there, is almost identical to article 121 of the Constitution of Seychelles. It states: “The judges of the Court of Appeal shall be— a. a President and such number of other Justices of Appeal, if any, as may be prescribed by Parliament; and b. the Chief Justice, Deputy Chief Justice and the puisne judges of the High Court, who shall be judges of the Court ex officio”.

Article 99(2) of the Constitution of Botswana, which speaks of the composition of the Court of Appeal of Botswana, the apex court therein, states: “The judges of the Court of Appeal shall be- (a) the President of the Court of Appeal; (b) such number, if any, of Justices of Appeal as may be prescribed by Parliament; and (c) the Chief Justice and the other judges of the High Court: Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.”

The Supreme Court of Ireland is composed of the Chief Justice of Ireland, who is President of the Court, and nine ordinary Judges. In addition, the President of the Court of Appeal is ex officio a member of the Supreme Court. The President of the High Court is also an ex officio member of the Supreme Court. Where an insufficient number of Judges of the Supreme Court are available the Chief Justice may request any ordinary Judge of the High Court to sit as a member of the Supreme Court for the hearing of a particular appeal.

In Fiji, Judges of the Court of Appeal sit as ex-officio members of the Supreme Court and Judges of the High Court as ex-officio members of the Court of Appeal.

For the reasons set out above, I have no hesitation in dismissing the appeal.

Signed, dated and delivered at Ile du Port on 30 April 2021.

____________________
Fernando, President

I concur ____________________
Robinson JA

DINGAKE JA (Concurring)

INTRODUCTION & BACKGROUND

This Appeal, at its core concerns the constitutionality of Supreme Court Judges acting as Justices of Appeal at the Court of Appeal hearing, following an appointment by the President of the Court of Appeal to act as such. There are also other Grounds of Appeal which we shall address in this Appeal.
The Appellant contends that the Seychelles Constitution prescribes strict separation of judicial office that makes it impermissible for Judges of the Supreme Court to sit in the Court of Appeal as acting Justices of Appeal.
In this Appeal the Appellant is appealing the decision of the Constitutional Court in Karunakaran v Attorney General (CP18/2019) [2020] SCCC 5 (12 May 2020) (the “Judgment”).
The Appellant, Durai Karunakaran (the Petitioner in the Constitutional Court) was seeking constitutional redress under Article 130(1) of the Constitution of the Republic of Seychelles (the “Constitution”). The Constitutional Petition averred that the composition of the Court of Appeal bench that heard the Petitioner's unsuccessful appeal in Karunakaran v The Tribunal & Anor (Constitutional Appeal SCA CL 05/2018) [2019] SCCA 34 (the “2019 Appeal”), contravened the Seychelles Court of Appeal Rules as only two Justices of Appeal heard the appeal, instead of three, as allegedly required by the Court of Appeal Rules. The third person on the panel was his Lordship Gustave Dodin, Judge of the Supreme Court, sitting as a Justice of Appeal.
The Petitioner alleged that his constitutional right of appeal under Article 120(2) of the Constitution was breached as no validly constituted Court of Appeal heard his appeal as Judge of the Supreme Court cannot sit as a Justice of Appeal. The Appellant asked the Constitutional Court to declare that his right of Appeal has been violated; declaring that the judgment in Constitutional Appeal SCA CC05/2018 Karunakaran v/s The Attorney General dated the 10th day of September 2019 was unconstitutional null and void, ordering that the Appeal “be heard de novo by a properly Constitutional Court of Appeal”.
The Respondent raised a number of preliminary objections to the Petition in accordance with the provisions of Rule 9 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994. The Constitutional Court was of opinion that the objections were very much interconnected with the first objection, being that there was no cause of action for the Petitioner with respect to the Constitutional Petition.
The Petition was dismissed with costs in favour of the Respondent. It was held that the Ruling on the first preliminary objection would substantially dispose of the case before the Court. The Court also considered several other issues during the course of proceedings such as among others, procedure for bringing the constitutional challenge when the alleged breach occurred during the Court of Appeal proceedings and whether the Judges of Supreme Court may sit at the Court of Appeal hearings acting as Justices of Appeal when selected to do so by the President of the Court of Appeal. These issues will be addressed during the analysis of the Grounds of Appeal.
The Appellant is now appealing the Constitutional Court Judgment, which dismissed his Petition.
We turn now to the Grounds Appeal. Purely out of convenience we would follow the grouping of grounds (in so far as they may be related or overlap) or the structure followed by the Appellant in his skeletal submissions.

GROUNDS OF APPEAL

The Appellant submitted seven grounds of appeal:

Ground 1 – The finding of the Constitutional Court that the Petition did not disclose a cause of action is misconceived and fails to apply the relevant law and legal principles;
            Ground 2 – The Constitutional Court erroneously departed from the preliminary objection and proceeded to adjudicate on the merits, furthermore without an answer to the petition on the merits;
Ground 3 – The Constitutional Court erred in adjudicating on the basis that the petition raised a procedural irregularity in the appeal;
            Ground 4 – The finding of the Constitutional Court that the judge of the Supreme Court can be made a Justice of Appeal through the Court of Appeal Rules is a misinterpretation and misconception that violates and undermines the constitutional structure of the judicial system which enshrines strict separation of judicial office;
Ground 5 – The Constitutional Court erred in not appreciating that a failure to raise a fatally defective issue importing a nullity could not be curative of the defect;
Ground 6 – The precedents relied upon by the Constitutional Court were not apposite and the decision was thus based on misconstrued rationes decidendi;
            Ground 7 – The Constitutional Court failed to adjudicate on the core issues of the alleged breach of the Constitution which raised the existence of the Court of Appeal at the material time.

The Appellant’s Skeleton Arguments addresses Ground 1 and 2 together and Grounds 4, 5, 6 in the following order: 4, 6, 5. Ground 3 and 7 will be considered together as Ground 3 submissions are short and seem to relate to the same issue discussed in Ground 7.

Ground 1 – The finding of the Constitutional Court that the Petition did not disclose a cause of action is misconceived and fails to apply the relevant law and legal principles
Ground 2 – The Constitutional Court erroneously departed from the preliminary objection and proceeded to adjudicate on the merits, furthermore without an answer to the petition on the merits

The above grounds, essentially speak to the question whether the Constitutional Court was correct in holding as it did that the Petitioner failed to show that the cause of action raised a primafacie case. It must be appreciated that by virtue of Article 130 (7) of the Constitution, which is the implicated and relevant section in this matter, it is a requirement that the Petitioner should meet the strictures of the aforesaid section, which provides that:

(7) Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (6), the person alleging the contravention or risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State.

It is plain from the above quoted Article that a party needs to establish a prima facie case and only then the burden of proof shifts to the State.
The Constitutional Court gave its reasons throughout the Judgement for finding, in effect, that the petition failed to show that the cause of action, if any, raised a prima facie case. We cannot fault the Constitutional Court for its reasoning and conclusion on this aspect and find that the two grounds discussed above are without merit.

Ground 3 – The Constitutional Court erred in adjudicating on the basis that the petition raised a procedural irregularity in the appeal
Ground 7 – The Constitutional Court failed to adjudicate on the core issues of the alleged breach of the Constitution which raised the existence of the Court of Appeal at the material time.

We have considered the above grounds. They are without merit. It is plain from reading the judgment of the Constitutional Court that it was alive to the fact that at the heart of the Petition was the assertion that the Court of Appeal that presided over the appeal sought to be impugned was not validly constituted.
The Appellant averred in the Constitutional Court that his Constitutional right of Appeal has been violated as his appeal was not heard by a valid Court of Appeal for the reason that the Court of Appeal that heard the above-mentioned appeal violated the Rules of the Court of Appeal made under the Constitution as there were only two Justices of Appeal on the bench and one Judge of the Supreme Court, sitting as a Justice of Appeal.
It is plain to us that the essence of the Constitutional Petition was in relation to particular composition of the Court of Appeal bench, which is selected by the President of the Court of Appeal, not the existence of the Court of Appeal. It is plain to us on reading the judgment of the Constitutional Court, in totality, not piecemeal, that any references to irregularity in procedural matters before the Court of Appeal should not distract from the essence of the judgement which was that the Court of Appeal that heard the matter was validly constituted.
In Ground 7 of Appeal the Appellant submits that, firstly, the Constitutional Court was influenced by the judgments cited, “which rest on an irregularity in procedural matters before a properly composed Court of Appeal which imports completely different considerations in terms of procedure and law, remained entirely focus on procedural irregularities”; secondly, that the Court’s statements regarding Appellant’s failure to follow procedures (para [72] of Judgment) is contradictory as the Court absolved the Appellant of the purported default in the interest of justice (at para [64]); thirdly, that, “the prelude at page 17 para 62 of the judgment to the consideration of the case of AG vs Mazorchi and anor SCA 6 of 96 (J1 of records) unreasonably ignores the oral submissions cited by the Court at page 5 para 14 . . . to the effect that counsel had objected in an appeal during the same session and was ignored without the courtesy of a Ruling on the matter”.
In our respectful view it is settled law in this jurisdiction and the Constitutional Court was correct to so find, that if there be any procedural irregularity arising in the Court of Appeal, the Court of Appeal is the appropriate court to deal with that irregularity not any lower court. This was made clear in such cases as Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (007 of 2010) (CP 7/2010) [2011] SCCC 1 (31 January 2011) and Franky Simeon v Republic (SCA 26/2002) [2003] SCCA 20 (09 April 2003).
It should be recalled that the purpose of the Constitutional Petition in the present case was to allow the Appeal of Karunakaran v The Tribunal & Anor (Constitutional Appeal SCA CL 05/2018) [2019] SCCA 34 (10 September 2019) to be heard de novo by a properly constituted Court of Appeal. On the one hand, the Appellant did not ask to review the merits of the Court of Appeal decision in the Constitutional Court, but raised the issue of the Court of Appeal’ composition.

Ground 4 – The finding of the Constitutional Court that the judge of the Supreme Court can be made a Justice of Appeal through the Court of Appeal Rules is a misinterpretation and misconception that violates and undermines the constitutional structure of the judicial system which enshrines strict separation of judicial office;

We have carefully considered the above submission. The argument by the Appellant that the Constitution of Seychelles enshrines strict separation of judicial office is not textually supported by the constitution, its spirit and broader scheme of the Constitution as we shall demonstrate in due course.
The Appellant submits that under Article 121 the Court of Appeal is made up of 2 categories of members which are Justices of Appeal appointed under Articles 122-123 and Judges of Supreme Court appointed under Articles 126-127 who are ex-officio members of the Court of Appeal. The Appellant also submits that the notion of an institution of state having different categories of members is a known formula and makes example of National Assembly members who are subject to different rights, for example, in the enjoyment of tenure. The Appellant argues that that Judges of Supreme Court cannot become Justice of Appeal without a Constitutional appointment to the office.
Article 121 provides:

“Composition of Court of Appeal
121. The Court of Appeal shall consist of -
(a) a President of the Court of Appeal and two or more other Justices of Appeal; and
(b) the Judges who shall be ex-officio members of the Court.”

Justices of Appeal and Supreme Court Judges are both appointed in the same manner – by the President “from candidates proposed by the Constitutional Appointments Authority”. Article 123 and 127 provide:

“Appointment of Justices of Appeal
123. The President shall, by instrument under the Public Seal, appoint the President of the Court of Appeal and other Justices of Appeal from candidates proposed by the Constitutional Appointments Authority.”
“Appointment of Judges and Masters
127. The President shall, by instrument under the Public Seal, appoint the Judges and Masters of the Supreme Court from candidates proposed by the Constitutional Appointments Authority.”

Rule 4 of the Court of Appeal Rules provides:

“Selection of Judges
4. In respect of any appeal, the Court shall consist of those Judges, not being less than three, whom the President shall select to sit for the purposes of hearing that appeal.”

The Appellant submits that in terms of the Rules of the Court of Appeal, Supreme Court judge may not sit on the Court of Appeal. He supports his submission by saying that the definition of the ‘Judge’ in Rule 4 should be taken from Rule 2, which defines Judge as “a Justice of Appeal acting as such” and not from Schedule 2 which defines Judge as “the Chief Justice or a Puisne Judge”. The Appellant submits that Article 6 of the Constitution provides that Schedule 2 applies in respect of Constitution, which is a general rule of interpretation; that Part V of Chapter III of the Constitution headed “Principles of Interpretation” applies specifically to Chapter III of the Constitution; that Section 2 of the Rules of the Court of Appeal made under the Constitution which by virtue of section 67(1) of the Interpretation and General Provisions Act has the same force and effect as a Constitutional provision, therefore “is a second Rule of Interpretation of specific application to the Rules of the Court of Appeal”. He concludes that, “one simply applies the specific over the general rule where specific is made applicable to part or section of the Constitution including its Rules thereunder”.
We have gone through the above cited provisions with a fine comb. In our view a careful reading of all the above sources of law ranging from the constitution to the applicable rules does not support the conclusion that Judges of the Supreme Court cannot act as Justices of Appeal at a Court of Appeal hearing once appointed by the President of the Court of Appeal.
In our view the Constitutional Court was alive to the law as reproduced above. The Court did consider that the definition of ‘Judge’ as “a Justice of Appeal acting as such” under Rule 2 applies to interpretation of Rule 4. The Court, however, disagreed that it only includes Justices of Appeal due to ‘acting as such’ phrase. The Respondent in the Constitutional Court submitted that ‘acting as such’ is meant to cover ex officio Justices of Appeal and the Appellant submitted that it only includes Justices of Appeal. The Constitutional Court did not agree with the Appellant for the reasons stated at paragraph [65] of the Judgment.
With greatest of respect we cannot find any fault in the reasoning of the Constitutional Court on its analysis of the relevant sections and the conclusions it reached.
Learned Counsel for the Respondent submitted before us that section 2 of the Judiciary Act, 2008 further gives the President of the Court of Appeal the power to appoint Puisne Judge to sit as a Justice of Appeal. Section 2 states:

“2.(1) There shall be appointed to the Court of Appeal, by the President under article 123 of the Constitution, a President of the Court of Appeal and two or more Justices of Appeal.
(2) The President of the Court of Appeal may appoint any Puisne Judge to sit as a Justice of Appeal of the Court of Appeal:
Provided that the Puisne Judge appointed shall not have heard the case at the first instance before the Supreme Court or on appeal from the Magistrates’ Court.”

It is clear to us that from the combined reading of abovementioned provisions that a Supreme Court Judge may be selected or appointed to sit as a Justice of Appeal (Rule 4 and section 2 of the Judiciary Act) by the President of the Court of Appeal. The Supreme Court Judge does not hold office of the Justice of Appeal but may sit at the Court of Appeal hearing acting as Justice of Appeal. Such interpretation, is with respect correct, as indeed the Constitutional Court found, that the phrase ‘acting as such’ is included in the definition under Rule 2 for the purpose of permitting the Puisne Judges to sit at the Court of Appeal hearing.
The Constitutional Court in the present matter also relied on the interpretation of this issue by Charles v Charles (1 of 2003) [2004] SCCA 2 (02 December 2004). The Appellant submits that Charles v Charles should not be applied in this case for the reasons stated in Ground 6, which will be addressed further below. It was stated in Charles v Charles:

“[21] It follows from the aforegoing considerations, in my judgment, that where a Supreme Court Judge is selected by the President of the Court of Appeal to sit for the purposes of hearing any appeal, that Judge is fully entitled to sit like any other Justice of Appeal and thus enjoys the same judicial independence in the discharge of his/her judicial functions as any other Justice of Appeal. It is not disputed that the learned Judges in question have been duly selected by the President of the Court of Appeal to sit on appeal in this matter. In this regard it cannot be overemphasized that when discharging their judicial functions in this Court, the Judges in question are subject to nobody but the law. This conclusion disposes of the matter.

We endorse and echo the contents of the above quote. It represents the correct law in this jurisdiction. The Appellant’s Ground 6 has no merit as the case of Charles relied upon by the Constitutional Court was relevant to the issues being canvassed before it, relating in particular to the competency of a Supreme Court Judge to sit as a Justice of Appeal as contemplated by the Rules of the Court of Appeal.
As part of the intellectual arsenal summoned and brought to our attention meant to aid in displacing the judges of the Supreme Court from ever sitting as Justices of Appeal it was argued before us that somehow the criteria for appointment of Justices of Appeal is much higher than that of the judges of the Supreme Court.
This argument is without merit. In fact, a consideration of the criteria, on the contrary, may suggest a higher criteria for judges of the Supreme Court. We will let the constitutional provisions speak for themselves: Article 122 and 126(1) provide:

“Qualification of Justices of Appeal
122. A person is qualified for appointment as, or to discharge the functions of, the President of the Court of Appeal or a Justice of Appeal if, in the opinion of the Constitutional Appointments Authority, the person is suitably qualified in law and can effectively, competently and impartially discharge the functions of the office of Justice of Appeal under this Constitution. (emphasis added)
“Qualification of Judges and Masters
126. (1) A person is qualified for appointment as a Judge if -
(a) the person has been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and
(b) in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution. . . .”

The above observation notwithstanding, it may still be said that the qualifications are similar in nature with a common requirement that a Judge or Justice of Appeal “can effectively, competently and impartially discharge the functions of the office”.
In our considered view Judges and Justices of Appeal are also appointed in the same manner. There is no distinction between tenure for Judges and Justices and their required qualifications are similar in nature. Section 2 of the Judicial Act as noted states that the Puisne Judge appointed to sit at the Court of Appeal shall not have been the same Judge at the first instance before the Supreme Court or on appeal from the Magistrates’ Court. This is in line with the independence principle. In any case, under personal independence principle even a Justice of Appeal formally appointed to the office may be not suitable to hear a particular matter in certain circumstances that might impugn his/her independence.
The issue of independence was also addressed in Charles v Charles (1 of 2003) [2005] SCCA 13. We have considered the precedents relied upon by the Constitutional Court in its judgement and we do not agree with submissions of learned Counsel for the Appellant that the said precedents were not apposite. In particular, we think that the court cannot be faulted for placing reliance on the case of Charles.
It follows from our analysis above that the Appellant’s contention relating to Ground 5 of Appeal stating that the Rules of the Court of Appeal has been enacted to permit only one category of members of the Court of Appeal, namely Justices of Appeal to sit on the Court of Appeal and that is the only possible interpretation, cannot be correct. The Appellant’s submission flows from the Appellant’s interpretation of the definition of ‘Judge’ in Rule 4 to mean ‘Justice of Appeal acting as such’ and interpretation that ‘acting as such’ may not include Supreme Court Judge. At the hearing of this matter this Court asked Counsel for the Appellant to cite authority in support of his submission, but failed to do so.
We hasten to mention that, in our respectful view, there is inherent absurdity in the argument that Judges of the Supreme Court cannot sit as Justices of the Court of Appeal as that will defeat their ex-officio status as members of the Court of Appeal, as per the instructions of the Constitution, that requires that we obey its terms.
In our respectful view a combination of Article 121, Rule 4 and Rule 2 definition of judge as ‘a Justice of Appeal acting as such’ rather than simply stating ‘Justice of Appeal’, wording chosen in Articles 122 (“A person is qualified for appointment as, or to discharge the functions of, the President of the Court of Appeal or a Justice of Appeal if . . .”) clearly suggests that the Constitution of Seychelles permits Supreme Court Judge to sit at the Court of Appeal hearing acting as Justice of Appeal when he/she is ex officio member of the Court of Appeal and is selected to sit at the hearing by the President of the Court of Appeal.

Ground 6 – The precedents relied upon by the Constitutional Court were not apposite and the decision was thus based on misconstrued rationes decidendi

The Appellant argues that Constitutional Court should not have relied on Charles v Charles (1 of 2003) [2004] SCCA 2 (02 December 2004) as it “adjudicated on an objection based on bias or perceived bias which is foreign to the matter before the Constitutional Court in this Appeal and the Court without the benefit of arguments from Counsel buttressed its reasoning on a consideration of Rule 4 . . . which was . . . superfluous and obiter”. He further submits that the matter in Charles v Charles was ‘totally different’ and most importantly decision in Charles v Charles rested on a wrong provision of law, relying on definition of the ‘Judge’ under Schedule 2 rather than Rule 2, which should be relied upon when interpreting Rule 4 of the Court of Appeal Rules.
We have already held that the precedents relied by the Constitutional Court including, the case of Charles were apposite and that there is not merit on this Ground.
At paragraphs [17]-[18] of the case of Charles Justice Ramodibedi discussed Article 121 and composition of the Court of Appeal with Judges of Supreme Court being ex officio members of the Court of Appeal and referring to Schedule 2 definition of ‘Judge’ (Puisne Judge). At this point there is no error in interpretation of Article 121 and ‘Judge’ in 121(b) does mean the Chief Justice or a Puisne Judge as Schedule 2 definition applies to Article 121, not Rule 2 of the Court of Appeal Rules (as per Appellant’s own submissions that Rule 2 applies specifically to Rules of Court of Appeal and Schedule 2 is general definitions for interpretation of the Constitution).
In the following paragraph [19] Justice Ramodibedi considered Rule 4 of the Court of Appel Rules, which the President of the Court of Appeal is empowered to make under Article 136. The Court concludes at paragraph [21] that, “…where a Supreme Court Judge is selected by the President of the Court of Appeal to sit for the purposes of hearing any appeal, that Judge is fully entitled to sit like any other Justice of Appeal . . .”. The Court did not consider definition of ‘Judge’ under Rule 2 in terms of Rule 4 “Justice of Appeal acting as such”.
While the court did not consider the Rule 2 definition in relation to the Rule 4, the Court’s conclusion is not wrong with regards to Article 121 that Supreme Court Judges can be ex officio members of the Court of Appeal. The Judicial Act, 2008, which expressly states that Puisne Judge may sit at the Court of Appeal was not yet enacted at the time of Charles.

Ground 5 – The Constitutional Court erred in not appreciating that a failure to raise a fatally defective issue importing a nullity could not be curative of the defect

We have considered the above ground. It is without merit if only for the reason that the Court of Appeal that presided over the matter was validly constituted. So whether or not the Petitioner failed to raise any alleged defect and the attendant remarks of the Constitutional Court at paragraphs 62 or 63 does not advance the case of the Appellant in any material way.
It is our firm conclusion that none of the Grounds of Appeal raised by the Appellant has any merit.
In the premises, for all the reasons stated above, this appeal is without merit and is liable to be dismissed.
Before pronouncing the final order of this Court, we need to address Counsel for the Respondent’s prayer that if we find no merit in this Appeal we must dismiss it with costs.
We are not persuaded to do as the Appeal raises constitutional issues of some significance and this court would be loath to order costs in this type of case which may have a chilling effect on potential litigants who may wish to approach the court to vindicate their constitutional rights.
In the result, this appeal is dismissed. We make no order as to costs.

Signed, dated and delivered at Ile du Port on 30th April 2021

__________________
Dingake JA