Administrative Law

Krawceniuk v Attorney General (MA 194 of 2020) [2020] SCSC 759 (15 October 2020);

Anonymous — Fri, 01 Jul 2022 09:52:27 +0000

Krawceniuk v Attorney General (MA 194 of 2020) [2020] SCSC 759 (15 October 2020);

Flynote

Administrative Law

Anonymous (not verified) Fri, 07/01/2022 - 09:52

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2020-scsc-759.pdf

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 601 (23 June 2017);

Anonymous — Fri, 01 Jul 2022 09:45:56 +0000

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 601 (23 June 2017);

Flynote

Administrative Law

Property Law

Anonymous (not verified) Fri, 07/01/2022 - 09:45

Headnote and holding

Application for leave to review the decision of the Town and Country Planning Authority granted.

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2017-scsc-601.docx

[1]        This is an Application for leave to seek Judicial Review registered on 30th day of May 2017.

[2]        Learned Counsel moved the Court in terms of the Application, for an Order granting him leave to proceed with an Application for Judicial Review.

[3]        The Application for leave is accompanied by an attached Application for Exercise of Supervisory Jurisdiction under Article 125 (c) of the Constitution of the latter date, as supported by an attached Affidavit of the Applicant of the 9th day of May 2017.

[4]        Attached I note is also a copy of the decision sought to be canvassed.

[5]        Having perused the documents, I am satisfied that the Application complies with the rules in that:

the Application is made pursuant to Rules 2 (1) of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules, 1995 (the Rules);
the Application complies with the provisions of Rule 2 (2) of the above Rules;
the Application complies with Rule 3 of the Rules;
the Application has been made within the three months’ time limit as provided in Rule 4;
it satisfies the Court that the Applicant has sufficient interest in the matter and that this Application is made in good faith as provided in Rule 6 (1).

            [6]        On the basis of the above I hereby grant leave for the matter to proceed.
            [7]        I hereby further direct that notice be served on the Respondent together with the application, affidavit and all connected documents and exhibits as filed in accordance with Rule 9 of the Rules.

            [8]        I direct that objections in writing accompanied by an affidavit in support are to be filed within six weeks of service (unless the Court orders otherwise) as provided by Rule 12.


            [9]        The Respondent is further directed to forward all relevant records to the Court as provided in Rule 10.

            Signed, dated and delivered at Ile du Port on 23rd day of June 2017.

            Laura Pillay
            Judge of the Supreme Court

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 1076 (13 November 2017);

Anonymous — Fri, 01 Jul 2022 09:45:51 +0000

Monthy v The Town and Country Planning Authority (MC 36 of 2017) [2017] SCSC 1076 (13 November 2017);

Flynote

Administrative Law

Property Law

Anonymous (not verified) Fri, 07/01/2022 - 09:45

Headnote and holding

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2017-scsc-1076.docx

2017-scsc-1076.pdf

L Pillay, J

This is an application for Judicial Review filed by the Petitioner on 30th May 2017.

The facts are as follows. By a lease dated 8th November 2016 and registered 21st December 2016, the Petitioner leased the land comprised in title V. 9215 situated at Bel Eau for a term of 60 years for the purpose of Daycare and Hairdressing Salon. By an application dated 28th March 2017 the Petitioner applied to the Respondent for a change of use of the building.

By notice dated 25th April 2017 the Petitioner was informed that her application had not been approved on the basis that the Planning Authority was in possession of a document relating to cancellation of the lease of the parcel.
The Petitioner's counsel argues that the said refusal was unjustified, illegal disproportionate, and/or unreasonable and was reached in a procedurally improper manner.
The Respondents argues that the role of the Court in judicial review cases is to review the decision-making process of a decision making body or person, to consider whether relevant considerations were taken into account, whether there was any evidence of deception or bad faith ...without the Court substituting its opinion for that of the authority.
The issues to be decided are as follows:

Was the decision by the Respondent unjustified, illegal, disproportionate, unreasonable and reached in a procedurally improper manner?

ii) What is the remedy available to the Petitioner?
iii) Is the Petitioner entitled to damages?

When exercising its supervisory jurisdiction the Court examines the decision making process that was used. Essentially it will look at whether the decision making process was illegal, irrational, unreasonable, and procedurally improper.
In the case of Council of Civil Service Unions and others v Minister for the Civil Service (1984) 3 All ER 935 -the three grounds on which a decision may be subject to judicial review were classified as - illegality; irrationality and procedural impropriety. Procedural impropriety included not only the failure of the administrative body to follow the procedural rules laid down in the legislative instruments by which jurisdiction is conferred but it also includes the failure to observe the rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.
Per Domah J in Raihl v Ministry of National Development (2010) SLR 66 "the golden rule jealously guarded in administrative law by the courts is that no executive decision adversely affecting the rights of the citizen, more particularly, his property rights, may be taken behind his or her back, without affording him or her an opportunity to be heard.”
Dornah J went on to add that "no matter how valid and warranted the executive considered the facts and circumstances were, in its eyes, which justified the order of revocation, it could not do so without affording the citizen a right to be heard".
It is trite that administrative law is about judges controlling the manner in which the executive chooses to exercise power which Parliament has vested in them. It is about exercise of executive power within the parameters of the law, which should be judicious; not arbitrary, capricious, abusive or in bad faith. The executive is under a duty to act fairly.
The Court may issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.
With regards to the present case, it is clear in the First Schedule that the lease was for the specific purpose of a Daycare and Hairdressing salon, c.f. clause 7 (10) (b), that the Lessee (Petitioner) not use the premises other than for the purpose of use as described in the First Schedule. It is also clear that the leased premises is at present a residential property hence the Petitioner's application for change of use in order to comply with her obligations.
The basis of the Respondent's refusal to grant the change of use was the letter of 25th February 2017. The letter was sent to the Petitioner only from a representative of the Lessor and not copied to anyone else, leaving open the question of how the Respondent carne to have a copy of the letter. The receipt of the said letter by the Respondent who was not a party to the lease and the Respondent's consideration of the letter in refusing the application for change of use cannot be regarded as proper.
Furthermore the Petitioner's views were not sought on the matter, seeing that she was the applicant for change of use and the other party to the purportedly cancelled lease.
In such as the Town and Country Planning Act provides that the Planning authority may refuse permission it cannot do so without valid reasons. It is required in law to have regard to material considerations. I agree with Counsel for the Petitioner that the decision was not reached in a procedurally proper manner. The purported cancellation was irrelevant for the purposes of the consideration of the application. The Respondent erred in coming to a decision based on a purported cancellation of the lease without giving the Petitioner an opportunity to be heard.
I note "en passant" that clause 8 provides for the Republic to resume possession of the property in the event of war or upon the declaration of a state of emergency, of which neither situation exists. Indeed as counsel says there is no provision in the lease for tem1ination as a result of the property being required for military purposes.
In saying that, whether or not the Petitioner's lease had been cancelled was a matter between Republic of Seychelles, as the Lessor, and the Petitioner, as the Lessee. It had nothing to do with the Respondent. The Respondent’s role was simply to consider the application for change of use that had been submitted for consideration.
On that basis it is necessary that a writ of certiorari be issued.
As regards a writ of mandamus compelling the Respondent to change the use of the building located on the Leased Property from residential use to use for the purpose of a day care centre for children I am of the view that the application was not properly considered or considered at all in the first place by the Respondent. I note on the file there are various comments and letters from Department of Health, Land Transport and PUC amongst others. It is for the Respondent now to give proper consideration to the application along with the documentation from the different agencies, taking into account the rules of natural justice and come to a decision, and not for the Court to order the change of use.
On that basis I decline to issue a writ of madamus.
As for damages I note section 18 (2) of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules which reads as follows:

The Supreme Court may, where the petitioner has claimed damages in the petition, award him damages, if the Court is satisfied that if the claim is made in an action begun by the petitioner at the time of making the petition, he could have been awarded damages.

With regards to the present case I note that clause 7 of the Agreement provides as follows:

"The Lessee hereby covenants with the Republic that the Lessee shall:-
(a) before the proposed development in respect of the permitted use stated in the First Schedule hereto is commenced, submit plans of the proposed development to the Town and Country Planning Authority ... and obtained their approval under the Town and Country Planning Act; and
(b) If approval for the proposed development is granted by the Authority, complete the development within a period of twenty four (24) months, ... "

On the above, the argument of Mr. Ally cannot be maintained. The Petitioner cannot claim to have had a "legitimate expectation that since the Government has leased a premises for such use then the change should be effected." It is clear in the lease that before the project was commenced the Petitioner had to submit plans of the proposed development to the Town and Country Planning Authority.
I also note the case of Elke Talma v/s The Minister of Land Use and Housing MC 65/2014, [2015] 733 delivered 12th January 2016. In that case exemplary damages was awarded, following the case of Michel v Talma [2012] SLR 95, on the basis that the actions of the servants of the government which are oppressive, arbitrary and unconstitutional justifies an award of exemplary or punitive damages. In the present case I am of the view that the actions of the Respondent were illegal, unreasonable and disproportionate, however I am not satisfied that it is oppressive as in the Talma case above. On that basis the prayer for damages has to fail.

On the basis of the above I make the following orders:

(1) I hereby issue a writ of certiorari quashing the Respondent's decision.
(2) The Respondent shall pay the costs of the suit.

Signed, dated and delivered at Ile du Port on 13th November 2017

L Pillay, J

This is an application for Judicial Review filed by the Petitioner on 30th May 2017.

Was the decision by the Respondent unjustified, illegal, disproportionate, unreasonable and reached in a procedurally improper manner?

ii) What is the remedy available to the Petitioner?
iii) Is the Petitioner entitled to damages?

With regards to the present case I note that clause 7 of the Agreement provides as follows:

On the basis of the above I make the following orders:

(1) I hereby issue a writ of certiorari quashing the Respondent's decision.
(2) The Respondent shall pay the costs of the suit.

Signed, dated and delivered at Ile du Port on 13th November 2017

Meme v The Land Registrar and Ors (SCA 53 of 2018) [2021] SCCA 10 (30 April 2021);

Anonymous — Thu, 23 Jun 2022 08:06:42 +0000

Meme v The Land Registrar and Ors (SCA 53 of 2018) [2021] SCCA 10 (30 April 2021);

Flynote

Administrative Law

Constitutional Law

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

Headnote and holding

(1) The Appeal is allowed.(2) The Supreme Court Practice Directions No. 3 of 2017 and Form CV1 attached to them, including any other ″Form″ approved by the Chief Justice for the purposes of the Supreme Court Practice Directions No. 3 of 2017, are declared illegal. (3) The Supreme Court ruling of 6 September 2018 is null and quashed in its entirety.(3) The case is remitted to the Supreme Court before the same learned Judge to be heard under the law.(2) No order as to costs.

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2021-scca-10.docx

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable
[2021] SCCA 15
SCA 53/2018
(Appeal from C.S. No. 85/2018)
In the matter between
BERNARD MEME                                                            Appellant
(rep. by Mr D. Sabino)

and

THE LAND REGISTRAR                                                First Respondent
(rep. by Mr J. Revera)

THE PLANNING AUTHORITY                                     Second Respondent
(rep. by Mr J. Revera)

Neutral Citation: Meme v The Land Registrar & Anor (SCA 53/2018) [2021] SCCA 15
                                30 April 2021
Before:                   Fernando President, Robinson, Dingake JJA
Summary:             disposal of proceedings without trial – Supreme Court of Seychelles Practice Directions No. 3 of 2017 issued by the Chief Justice under sections 7(3) and 15 of the Courts Act and Rule 325[1](sic) of the Seychelles Code of Civil Procedure – Form CV1 approved by the Chief Justice for the Practice Directions No. 3 of 2017

– case called on for the first time – plaintiff (Appellant) and defendant (Respondent) appeared by Counsel – dismissal of plaint for failure to comply with case management directions under Practice Directions No. 3 of 2017 and Form CV1 – Respondent had not filed a statement of defence – The Seychelles Code of Civil Procedure does not apply – right of appeal to the Court of Appeal

– whether or not the Practice Directions No. 3 of 2017 and Form CV1 are legal: i.e., whether or not they are enabled by law – the Constitution of the Republic of Seychelles does not delegate any power to the Chief Justice under neither the Seychelles Code of Civil Procedure nor the Courts Act to make practice directions – those Acts confer power on the Chief Justice to make rules which have the force of delegated legislation – the Practice Directions No. 3 of 2017 and Form CV1, including any other ″Form″ approved by the Chief Justice for the purposes of the Practice Directions No. 3 of 2017 are illegal

the Practice Directions No. 3 of 2017 and Form CV1, including any other ″Form″ approved by the Chief Justice for the purposes of the Practice Directions No. 3 of 2017 are declared illegal – Ruling of the learned Judge of 6 September 2018 is null and quashed in its entirety. Appeal allowed. No order as to costs.

Heard: 19 April 2021

Delivered: 30 April 2021
______________________________________________________________________________

ORDER
(1) The Appeal is allowed.
(2) The Supreme Court Practice Directions No. 3 of 2017 and Form CV1 attached to them, including any other ″Form″ approved by the Chief Justice for the purposes of the Supreme Court Practice Directions No. 3 of 2017, are declared illegal.
(3) The Supreme Court ruling of 6 September 2018 is null and quashed in its entirety.
(3) The case is remitted to the Supreme Court before the same learned Judge to be heard under the law.
(2) No order as to costs.

JUDGMENT
______________________________________________________________________________
ROBINSON JA (FERNANDO PCA concurring)

This is an appeal against a ruling of a learned Judge of the Supreme Court dismissing a plaint filed by the Appellant (the plaintiff then) on the 9 July 2018, C.S. No. 85/18. Fundamentally, the learned Judge based the dismissal of the plaint entirely on the Supreme Court Practice Directions No. 3 of 2017[2], issued by the Chief Justice on the 25 September 2017 and a document titled, ″DIRECTIONS FOR CASE MANAGEMENT (FORM CV1)″, hereinafter referred to as ″Form CV1″, attached to the Practice Directions No. 3 of 2017. The Chief Justice approved Form CV1 for the purposes of the Practice Directions No. 3 of 2017[3].

BACKGROUND TO THE APPEAL

The Appellant in his plaint sought the following reliefs: (i) payment of SCR 1000; (ii) ″a declaration in line with section 56 of the Land Registration Act that there is no requirement for a mutation form where there is a court order for the subdivision or partition of a parcel of land, as in the present case where there is an Order of the Supreme Court Order dated 21st September 2011 in the case of Bernard Meme & Or v/s Heirs Laurent Nicette [C.S. No. 58 of 2008]″; and ″(iii) an order that the 1st and 2nd Defendants do all that is necessary to give effect to the subdivision of S2022 in terms of the Order of the Supreme Court dated 21st September 2011 in the case of Bernard Meme & Or v/s Heirs Laurent Nicette [S.C. No. 58 of 2008]″.

The record of proceedings revealed that on the 11 July 2018, the Assistant Registrar of the Supreme Court issued Form CV1 to the Appellant and the Respondent. Ex facie Form CV1, a summons was enclosed informing the Respondent inter alia of the plaint issued against him and the date on which he was to appear at the Supreme Court to answer the plaint.

For the purposes of this appeal, I have reproduced direction 1 of Form CV1, which provides instructions for the Respondent as follows ―

″1. Enclosed is a summons informing you of a plaint issued against you and the date on which you are to appear at Court to answer the plaint (″the return date″). In accordance with the Practice Directions 3 of 2017, you have 21 days from the date of receipt of this summons by which to file with the Registrar of the Supreme Court:

An admission of the suit; or

A statement of defence to the suit to which shall be annexed a list of documents which you intend to produce to make your defence; and /or

A counterclaim to the plaint.

NOTE Failure to file a defence in accordance with this direction may result in judgment being given against you.″ Emphasis supplied

Ex facie a document titled ″Triage Tick Box Form (TO BE COMPLETED BY THE REGISTRAR)″, the Respondent was required to file a defence on the 6 August 2018. Ex facie the said document, the action was set for a preliminary hearing for case management before the learned Judge on the 6 September 2018.

The disputed directions, namely directions 7, 8, 9, 10, 11 and 12 of Practice Directions No. 3 of 2017 and directions 3, 4, 5, 6, 7 and 8 of Form CV1[4] , deal with case management/ preliminary hearings. I reproduce the said directions of Practice Directions No. 3 of 2017 ―

″Preliminary Hearing

″7. On the day fixed in the summons for the defendant to appear the parties shall attend before the allocated Judge / Master who will decide:

What issues should be tried (and may strike out or refuse to determine any which are unsustainable or irrelevant);

What directions should be given to enable the issues to be tried;

How much court time should be allocated to the parties for the trial;

d. How much time should be reserved for the Judge to prepare and deliver judgment at the conclusion of the trial.

8. In addition to managing the suit for trial the allocated Judge will discuss with the parties the need to consider resolving the dispute by alternative dispute resolution, including mediation. The allocated Judge will explain to the parties the risks as to costs if a party unreasonably fails to consider or engage in any proposed attempt to resolve the dispute.

9. At the conclusion of the Preliminary Hearing the allocated Judge will give standard form Preliminary Hearing Directions (“Form CV2”) (approved by the Chief Justice from time to time).

10. The parties may not agree to vary the directions without the consent or approval of the allocated Judge. An application for variation of any direction or order must be brought at the earliest possible instance with notice to the other party.

11. A party may apply for variation of a direction if:

the direction was given in the party’s absence; or

circumstances have changed.

12. A failure to comply with the directions might result in a suit being struck out, judgment entered against a defendant or some other appropriate order being made″. Emphasis is mine

Fundamentally, Form CV1 contains a paragraph that deals with the consequences of failure to comply with the said directions as follows ―

″Warning: you must comply with the terms imposed upon you by these directions: otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make a formal application to the court before any deadline imposed upon you expires″.

On the 6 September 2018, when the case was called on for the first time, the Appellant and the Respondent appeared by Counsel. The Respondent had not filed a defence, and the Appellant had not complied with the case management directions under direction 3.1 of Form CV1. Direction 3 of Form CV1 instructs the parties that the claim has been listed for a preliminary hearing for case management before the learned Judge on the return date with a time estimate of 45 minutes, and that direction 3.1 applies. Direction 3.1 of Form CV1 directed the Appellant to file, not less than seven days before the preliminary hearing, by email to: registrar@judiciary.gov.sc, the following matters ―

″(a) a case summary of no more than 250 words;

(b) a list of issues, setting out in separated numbered lines the principal issues of fact and law which the court will be asked to determine at trial;

(c) a schedule of the sums (if any) claimed by the plaintiff (or counterclaiming defendant as the case may be) with a breakdown of each;

(d) proposed directions (agreed if possible). Where not all the directions have been agreed, the plaintiff must indicate which directions are not agreed;

e) a draft trial timetable setting out the time which it is proposed to allocate to each of the following:

Opening statement(s)

Oral evidence of lay witnesses (identifying the intended witnesses on each side and the issue in the list in (b) above which each witness will address)

Oral evidence of expert witnesses (identifying submissions on any legal issues which are to be determined by the court)

Closing submissions (including submissions on any legal issues which are to be determined by the court)″.

On hearing the plaint, the learned Judge held the view on the construction of direction 3.1 of Form CV1 that the Appellant should have complied whether or not the Respondent should have filed a defence on the 6 August 2018. The Appellant was adamant that he could not have complied with direction 3.1 of Form CV1 because he was ignorant of the Respondent’s position. The learned Judge did not grant the Appellant additional time to comply with direction 3.1 of Form CV1.

The learned Judge dismissed the plaint with costs. His ruling reads as follows ―

″[1] The Plaintiff has filed his plaint dated the 6th of July 2018, it was received by the Supreme Court on the 9th of July 2018, the case was allocated to me, and the matter is set for preliminary hearing today on the 6th of September 2018. The Plaintiff has failed to comply with the Case Management documents namely filing the Plaintiff summary of this case, Plaintiff list of issues; schedule of sum claimed, draft proposed directions, draft trial timetable. For this reason, I am going to dismiss this plaint with cost in favour of the Defendant″.

A plaintiff whose plaint has been dismissed under the Seychelles Code of Civil Procedure should have first applied to the trial court to set aside the judgment. Only then if the application was refused appeal from the refusal to the Court of Appeal. In the present case, the learned Judge did not dismiss the plaint under the Seychelles Code of Civil Procedure. He dismissed the plaint entirely under the Practice Directions No. 3 of 2017 and Form CV1. In the circumstances, the Court of Appeal will decide the appeal as the Appellant’s right of appeal as of right to the Court of Appeal under Article 120(2) of the Constitution of the Republic of Seychelles [CAP 42], from the ruling of the learned Judge, has not been taken away by the said Constitution or any other Act.

THE GROUNDS OF APPEAL AND SUBMISSIONS OF COUNSEL FROM BOTH SIDES

The Appellant filed five grounds of appeal against the ruling as follows ―

″1. The learned Judge failed to take into consideration that the Defendants have not filed a statement of Defence.

2. The learned Judge failed to appreciate that the Plaintiff via its representative, was present for the court appearance.

3. The learned Judge erred in the use of his discretion to dismiss the Plaint based on Practice Directions.

4. The learned Judge erred in failing to follow the Seychelles Code of Civil Procedure.

5. The learned Judge failed to consider referring the matter to mediation given the representation of the parties″.

The Appellant sought the following reliefs from the Court of Appeal―

″(i) Quashing the dismissal of the Plaint;

(ii) Giving judgment in favour of the Plaintiff in terms of the Plaint, alternatively, ordering that the suit be remitted to the Supreme Court to be heard;

(iii) Quashing the costs order against the Appellant;

(iv) Any other order that the court sees fit.″.

In relation to the five grounds of appeal, Counsel for the Appellant identified the point to be argued as follows in his skeleton heads of argument. Counsel stated that sections 126, 127[5] and 128 of the Seychelles Code of Civil Procedure [CAP 213] apply in this case. Specifically, section 127 of the said Code empowers the learned Judge to order a defendant to file a statement of defence if he denies the plaintiff’s claim or any part thereof. In this respect, he pointed out that the relevant directions of the Practice Directions No. 3 of 2017 and Form CV1 are inconsistent with sections 127 and 128 of the Seychelles Code of Civil Procedure. Hence, he submitted in his skeleton heads of argument that the learned Judge erred in allowing the relevant directions of the Practice Directions No. 3 of 2017 and Form CV1 to override section 127 of the Seychelles Code of Civil Procedure, as they have no power to override the said provision.

The skeletons heads of argument offered on behalf of the Respondent do not adequately identify the relevant points to be argued.

ANALYSIS: WHETHER OR NOT THE PRACTICE DIRECTIONS NO. 3 OF 2017 and FORM CV1 ARE LEGAL

The interpretation of the background facts, the Practice Directions No. 3 of 2017 and Form CV1, and the relevant provisions of the Seychelles Code of Civil Procedure highlight a significant issue: whether or not the Practice Directions No. 3 of 2017 and Form CV1 are legal, i.e., whether or not they have been enabled under the Seychelles Code of Civil Procedure and the Courts Act. I state whether or not the Seychelles Code of Civil Procedure relies on the Practice directions No. 3 of 2017 and Form CV1 for its operation seems irrelevant to me.

The grounds of appeal do not raise the question at issue. Given the importance of the issue, I raised it proprio motu. Both Counsel were apprised of and were invited to address the Court of Appeal on the question at issue. Both Counsel agreed that the Practice Directions No. 3 of 2017 and Form CV1 have no power to override the Seychelles Code of Civil Procedure. Counsel for the Appellant added that the Practice Directions No. 3 and Form CV1 are illegal. In support of his submissions, Counsel pointed out that section 325 of the Seychelles Code of Civil Procedure and section 7(3) of the Courts Act [CAP 52] do not confer any power on the Chief Justice to issue any practice directions. He stated that the said enabling provisions confer power on the Chief Justice to make rules, which have the force of delegated legislation under the Interpretation and General Provisions Act [Cap 103].

I consider the question at issue in light of the submissions of both Counsel.

Article 85 of the Constitution of the Republic of Seychelles [CAP 42] vests the legislative power of Seychelles in the National Assembly, which is exercised subject to and in accordance with the said Constitution. The legislative power vested in the National Assembly is exercised by Bills passed by the National Assembly and assented to or deemed to have been assented to by the President of the Republic of Seychelles: see Article 86 (1) of the Constitution of the Republic of Seychelles. Article 89 of the Constitution of the Republic of Seychelles stipulates that Articles 85 and 86 of the said Constitution shall not operate to prevent an Act from conferring on a person or authority power to make subsidiary legislation (or delegated legislation).

I state at the outset, as correctly pointed out by Counsel for the Appellant, that rules are the form of delegated legislation referred to in the enabling provisions (sections 7(3) of the Courts Act and section 325 of the Seychelles Code of Civil Procedure). Under section 22 of the Interpretation and General Provisions Act: ″"regulation" includes rule, rule of court and bye law;″. Bennion on Statutory Interpretation Seventh Edition at p. 71 describes rules as having the ″same nature as regulations except that the term rule is usually reserved for procedural matters, for example, instruments dealing with the procedure of a court, tribunal or corporation or other statutory body″.

Craies On Legislation A Practitioners′ Guide to the Nature, Process, Effect and Interpretation of Legislation Tenth Edition at 3.1.4 at p. 119 states that ―

″The most common kind of subordinate legislation is the class referred to as statutory instruments. Strictly speaking, however, the expression ″statutory instrument″ does not describe a kind of legislation, but a particular method by which different kinds of secondary legislation are made″.

The Interpretation and General Provisions Act defines the term ″statutory instrument″ to mean ″any Proclamation, regulation, order, rule, notice or other instrument (not being an Act) of a legislative, as distinct from an executive, character and having the force of law;″. Emphasis is mine. Part X of the Interpretation and General Provisions Act applies to statutory instrument, whether made before or after the commencement of the Act, except in so far as a contrary intention appears in the Act or in the other Act under which the statutory instrument is or was made. The said Act applies to the Seychelles Code of Civil Procedure and the Courts Act.

The principal significance of whether or not a piece of legislation takes the form of a statutory instrument is the application of the provisions for printing and publication. Sections 63 of the Seychellois Interpretation and General Provisions Act regulates the printing and publication of statutory instruments as follows ―

″63(1) A statutory instrument made after the commencement of this Act ―

shall be published in the Gazette[[6]] and shall be judicially noticed; and

shall come into operation on the date of publication or, if it is provided that the statutory instrument is to come in operation on some other date, on that date.

(2) A statutory instrument is in operation as from the beginning of the day on which it comes into operation.″

Moreover, statutory instruments go through a democratic process. They are laid before the National Assembly in terms of section 64 of the Interpretation and General Clauses Act, which section provides ―

″64(1)     Subject to subsection (3), a statutory instrument made under an Act after the commencement of this Act shall be laid before the People's Assembly.

      (2)    If the People's Assembly passes a resolution, within three months after a statutory instrument is laid before it, to the effect that the statutory instrument is annulled, the statutory instrument shall thereupon cease to have effect, but without prejudice to the validity of anything previously done under the statutory instrument.

(3)    Subsection (1) does not apply to a statutory instrument a draft of which is laid before, and approved by resolution by, the People's Assembly before the making of the statutory instrument.″

The Chief Justice made the Practice Directions No. 3 of 2017 in the exercise of the powers conferred on her under sections 7(3) and 15 of the Courts Act and section 325 of the Seychelles Code of Civil Procedure. I observe that the term ″practice directions″ is not defined for the purposes of the Seychelles Code of Civil Procedure and the Courts Act. The Practice Directions No. 3 of 2017 took effect from the first day of October 2017 and apply to all plaints filed on or after that date. As I am considering the issue of whether or not the Practice Directions No. 3 of 2017 are legal, I need not, I think, read further.

As mentioned above, section 325 of the Seychelles Code of Civil Procedure empowers the Chief Justice to make rules, with the approval of the Minister, for more effectually carrying out the provisions of the Seychelles Code of Civil Procedure, and may amend or cancel rules made in virtue of the powers conferred by the said section. That is the very purpose for which Article 89 of the Constitution of the Republic of Seychelles has delegated the power under the Seychelles Code of Civil Procedure to the Chief Justice. This power is exercisable by statutory instrument to have the force of law. The statutory instrument is subject to annulment by the National Assembly under the Interpretation and General Provisions Act. The Practice Directions No. 3 of 2017 do not fall within the definition of delegated legislation.

I turn to section 15 of the Courts Act. The said section 15 speaks about the practice and procedure to be followed in the Supreme Court. Section 15 stipulates: ″15. The practice and procedure in all the jurisdictions of the Supreme Court shall be such as are now in force or as may thereafter be provided by law″. It suffices to state that section 15 does not confer any power at all on the Chief Justice to issue any practice directions.

I have considered the enabling power under section 16 of the Courts Act under which rules may be made by the Chief Justice to regulate the practice and procedure of the Supreme Court in its civil or its admiralty jurisdiction. By the same reasoning that I have adopted with respect to section 325 of the Seychelles Code of Civil Procedure, I conclude that section 16 of the Courts Act does not confer any power on the Chief Justice to make any practice directions.

Section 7[7](3) of the Courts Act confers power on the Chief Justice to make rules to modify and adapt the Administration of Justice Act, 1956 of the United Kingdom Parliament to such an extent as may appear to the Chief Justice to be necessary to allow the said Act to have effect in Seychelles. The Admiralty Jurisdiction Rules, S.I. 60 of 1976, are made under section 7(3) of the Courts Act and have the force of delegated legislation. By the same reasoning that I have adopted with respect to section 325 of the Seychelles Code of Civil Procedure and section 16 of the Courts Act, I conclude that section 7(3) of the Courts Act does not confer any power on the Chief Justice to make any practice directions.

I pause there to look at the source of some practice directions under the laws of England and Kenya to understand the question at issue better.

Under section 1(1) of the English Civil Procedure Act 1997, the Civil Procedure Rule Committee is empowered to make Civil Procedure Rules that govern the practice and procedure to be followed in the Civil Division of the Court of Appeal, in the High Court (except in relation to its jurisdiction under the Extradition Act 2003), and in the County Court.

Halsbury’s Laws of England, paragraph 6[8], ″Provision to be made by Civil Procedure Rules″, informs that the Civil Procedure Rules are a form of delegated or subordinate legislation. Paragraph 8[9], ″Exercise of power to make civil procedure rules″, informs that the rules must be contained in statutory instrument[10], subject to annulment in pursuance of a resolution of either House of Parliament[11]. The English Statutory Instrument Act 1946[12] applies to such a statutory instrument as if it contained rules made by a Minister of the Crown: see the Civil Procedure Act 1997 section 3(1)(b) (prospectively substituted).

The Civil Procedure Rule Committee is empowered to make rules only within the strict limits defined by statute, whether contained in the Civil Procedure Act 1997 or any other Act: see Re C (legal aid: preparation of bill of costs) [2001] I FLR 602, C.A. Halsbury’ s Laws of England, paragraph 6, goes on to state that: ″[l]ike the Rules of the Supreme Court and the County Court before them, the rules are mere rules of practice and procedure, and their function is to regulate the machinery of litigation; they cannot confer or take away or alter or diminish any existing jurisdiction or any existing rights or duties″.

Concerning practice directions, for the purposes of the Civil Procedure Act 1997, ″practice directions″ are defined as directions as to the practice and procedure of any court within the scope of Civil Procedure Rules: section 9(2). Re C ((legal aid: preparation of bill of costs) [2001] I FLR 602, C.A states that practice directions (including those that supplement the Civil Procedure Rules) do not take effect so as to amend or revoke any rules or regulations made by statutory instrument.

Practice directions for the Civil Courts may be given under Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (see the Civil Procedure Act 1997 section 5(1) as substituted)[13] or otherwise (see the Civil Procedure Act 1997 section 5(2) as substituted)[14].

In Bovale Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 171, the Court of Appeal (Civil Division) on appeal from the Queen′s Bench Division considered inter alia a point which concerned section 5 of the Civil Procedure Act 1997 as substituted by the Constitutional Reform Act 2005. The Civil Procedure Act 1997 provides under section 5(1), for a procedure for making what are called ″designated directions″ made by the Lord Chief Justice (or his nominee) with the agreement of the Lord Chancellor, and under section 5(2) for practice directions given otherwise than under section 5(1) not to be given ″without the approval of (a) the Lord Chancellor, and (b) the Lord Chief Justice″.

I am not here concerned with the argument made on appeal concerning section 5 of the 1997 Act. In Bovale Ltd, supra, Lord Justice Waller and Lord Justice Dyson gave an overview on the Act, rules and practice directions. I can do no better than to reproduce the relevant parts of their judgment, so far as relevant ―

″10 The full historical position is very helpfully set out in an article of Professor Jolowicz published in March 2000 in the Cambridge Law Journal at page 53. What he there explains is that the judges had an inherent power to control their own proceedings, and did so by the making of general rules the precise force of which before the 19th century it is unnecessary to debate. During the 19th century, Acts of Parliament were passed, giving rules statutory force. Although that was so before 1875, for present purposes one need go no further than recognise that the first rules of court following the Judicature Act 1875 were scheduled to the Act itself. But not long after the passing of that Act judges began once more to make use of their extra statutory inherent power. During the late 19th and 20th centuries thus there were rules which had statutory force and practice directions which did not.

11. By the end of the 19th century there had been set up the Rules Committee composed of judges and practitioners for making rules. The Rules Committee continued to exercise that function and indeed its successor, the Civil Procedure Rule Committee, continues to exercise that function. Prior to the CPR brought in by the 1997 Act, the relevant statutory provisions relating to the High Court and the Civil Division of the Court of Appeal were sections 84 and 85 of the Supreme Court Act 1981, granting the power to make rules to the “Rules Committee”, such rules to be made by statutory instrument (see section 84(8)). Thus, by virtue of being laid before Parliament and being subject to the negative resolution procedure, the rules had the force of delegated legislation. Until the 1997 Act the position was clear in at least one respect. Many practice directions were issued but if there was a conflict between a rule and a practice direction, since the rule was made by statutory instrument the rule would prevail.

[…]

17. The position as at December 2000 is summarised helpfully by Hale LJ (as she then was) in Re C (Legal Aid : Preparation of Bill of Costs) [2001] 1 FLR 602:-

″[…]

(16) Section 5 of the 1997 Act is headed 'Practice Directions'. Under s 5(1), 'Practice Directions may provide for any matter which, by virtue of para 3 of Sch 1, may be provided for by Civil Procedure Rules'…

(17) Section 5(2) inserts a new s 74A in the County Courts Act 1984 dealing with Practice Directions in county courts. Section 74A(1) gives power to the Lord Chancellor to make directions as to the practice and procedure of county courts…

[…]

(19) […] Section 9(2) defines 'Practice Directions' as 'directions as to the practice and procedure of any court within the scope of the Civil Procedure Rules' thus taking the present matter no further.

[…]

(21) Unlike the Lord Chancellor's orders under his 'Henry VIII' powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go through no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament.

[…]

(24) In my view, therefore, there is no need to consider whether or not the Practice Direction about Costs is inconsistent with the Remuneration Regulations 1991, because the Practice Direction has no power to override the Regulations. The question of implied amendment or repeal simply does not arise. In fact, however, it is comparatively easy to reconcile them as the judge did. The costs of preparing a bill are now to be considered allowable, because the general practice has now changed, but only up to the maximum permitted by the Regulations, which is to be taken as setting the 'reasonable cost' in the context in which the Regulations apply.″

[…]

The 2005 Act moved matters on a further stage. This followed the major constitutional changes under which the Lord Chancellor ceased to be a judge and followed the making of the concordat. As was made clear by the then Lord Chancellor in Parliament the 2005 Act was intended to reflect the concordat. That Act repealed section 74A (see the 2005 Act section 15(1) and Sch.4, part 1, para 169) and substituted section 5 of the 1997 Act so as to provide as follows:

″(1) Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

(2) Practice directions given otherwise than under subsection (1) may not be given without the approval of

the Lord Chancellor, and

(b) the Lord Chief Justice

(3) Practice directions (whether given under subsection (1) or otherwise) may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.

(4) The power to give practice directions under subsection (1) includes power –

to vary or revoke directions given by any person;

to give directions containing different provision for different cases (including different areas);

to give directions containing provision for a specific court for specific proceedings or for a specific jurisdiction.

[…]

28. How far is a practice direction binding? In our view a judge is bound to recognise and has no power to vary or alter any practice directions, whether brought in under the section 5(1) procedure or under the Section 5(2) procedure or indeed any existing practice directions issued pre-2005 Act. There are powers under the rules, as we have already indicated, to apply case management powers in particular cases but otherwise, practice directions must, as it seems to us, be binding on the court to which they are directed″.

I have briefly considered the position obtained in Kenya concerning practice directions made under the Supreme Court Rules 2020 and the Civil Procedure Act.

Article 163 (8) of the Constitution of Kenya and section 31 of the Supreme Court Act 2011 confer power on the Supreme Court of Kenya to make Supreme Court Rules. The Rules apply to proceedings under the Supreme Court’s jurisdiction and includes petitions, references and applications. The overriding objective of the Rules is to ensure that the Court is accessible, fair and efficient.

Rule 64 of the Rules confers power on the President of the Supreme Court to make practice directions for the better carrying out of the provisions of the Rules. Under rule 65 (1), where any provision in the Supreme Court Rules 2020 or any relevant practice direction is not complied with, the Supreme Court may issue such directions as may be appropriate, having regard to the gravity of the non-compliance, and generally to the circumstances of the case. Rule 65 (2) provides for the effect of non-compliance with the Rules. It states that any direction given under rule 65 may include the dismissal of the petition, reference or application.

I observe that the Supreme Court General Practice Directions 2020 made, by the Chief Justice and the President of the Supreme Court, under the Supreme Court Act No. 7 of 2011 and rule 64 of the Supreme Court Rules 2020 (L. N. 6 of 2020), were gazetted (Kenya Gazette Notice No. 9586). The Practice Directions are to be observed by and are binding upon parties to the proceedings.

I also note that Part X of the Kenya Civil Procedure Act, which provides for ″rules″, provides for a Rules Committee (see section 81 (1) of the Civil Procedure Act), the function of which is to ―

″(a) propose rules not inconsistent with this Act or any other written law to provide for any matters relating to the procedure before courts and tribunals; and

(b) advise the Chief Justice on such rules as may be necessary under this section″.

Section 81(3) confers the power on the Chief Justice, in consultation with the Rules Committee, to issue practice notes or directions to resolve procedural difficulties arising under the Kenya Civil Procedure Act to facilitate the overriding objective of the Act in section 1(A)[15].

The above laws show that practice directions may only be made if the law enables them.

Halsbury’s Laws of England[16] explains the objectives of procedural law ―

″ […] The civil process not only exists for the resolution of individual disputes but also for the protection of rights, for the enforcement of rights, and for remedying breaches […]. Civil procedural law has been categorised according to the character which it assumes as the indispensable instrument for the attainment of justice, namely: (1) its complementary character; (2) its protective character; and (3) its remedial or practical character. […]. In its protective character, civil procedural law represents the orderly, regular and public functioning of the legal machinery and the operation of the due process of the law. In this sense, the protective character of procedural law has the effect of sustaining and safeguarding every person in his life, liberty, reputation, livelihood and property and ensuring that he does not suffer any deprivation of his rights except in accordance with the accepted rules of procedure. In its remedial or practical character […] it deals with the actual litigation process. What the practitioners seek for their clients when they resort to the courts is to use the machinery of justice to obtain a just result, and what the clients seek, in addition to vindicating their rights, is to avoid unnecessary expense, delay, and excessive technicality in the process of attaining that result […]″.

The Supreme Court has not dealt with this case under the Seychelles Code of Civil Procedure. It has dealt with it entirely under the Practice Directions No. 3 of 2017. The overriding objective of Practice Directions No. 3 of 2017 is that civil cases be dealt with justly and expeditiously. Nonetheless, a just result was not obtained in this case.

The above analysis has led me to conclude that the Chief Justice has not acted within the law. Consequently, the Practice Directions No. 3 of 2017 and Form CV1 attached to them, including any other ″Form″ approved by the Chief Justice for the purposes of the Practice Directions No. 3 of 2017, are illegal. For this reason, I accept the submission of Counsel for the Appellant. It follows that whether or not the Practice Directions No. 3 of 2017 and Form CV1 attached to them are inconsistent with the Seychelles Code of Civil Procedure does not arise for consideration. In light of my conclusions, the five grounds of appeal do not arise for consideration.

Hence, I declare the Practice Directions No. 3 of 2017 and Form CV1 attached to them, including any other ″Form″ approved by the Chief Justice for the purposes of the Practice Directions No. 3 of 2017, to be illegal. I allow the appeal for that reason. Consequently, I hold that the learned Judge’s ruling of 6 September 2018 dismissing the plaint is null. I quash all the orders of the learned Judge and remit the case to the Supreme Court to be heard by the same learned Judge under the law.

I make no order as to costs.

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

Robinson JA                                                                           _____________

I concur                                                                                   ____________

                                                                                    Fernando President
DINGAKE JA (DISSENTING)

INTRODUCTION

I have had the benefit of reading the majority judgment written by my sister Robinson JA. I do not agree with the approach, reasoning and conclusion of the majority for the reasons that the ground upon which the Practice Directive No 3 of 2017 was declared illegal (the question of legality) was raised by the court proprio motu, as it is not part of the Grounds of Appeal by the Appellant and no relief to declare Practice Directions No 3 of 2017 and Form CV1 was explicitly sought. In my respectful view even if it was appropriate to proceed in the manner the majority has done, justice requires that the parties ought to have been afforded adequate time than they were given to deal with the new ground introduced by the court and that finally determined the fate of the appeal.
As a matter of general approach I am of the deep conviction that in an adversarial system where parties are represented by lawyers it is better, and in keeping with the neutrality and impartiality of the court, to leave the framing of the issues to the parties themselves.
This is because in an adversarial system we rely on the parties to frame the issues for the decision and leave it to the courts as neutral arbiters of the matters the parties present, and the court should only depart from this approach in exceptional circumstances which do not exist in this case.
My dissenting opinion is therefore based solely on the Grounds of Appeal advanced by the Appellant.
In this Appeal the Appellant seeks to set aside the decision of the court a quo dismissing the Plaint; alternatively, that the suit be remitted to the Supreme Court to be heard afresh. The dismissal of the Plaint took place during the pre-trial stage and done in the context of judicial case management rules. Part of the grounds of appeal as shall be clear in due course seek to impugn the exercise of discretion by the trial judge, raising the question under what circumstances an Appeal Court can set aside a decision of the trial judge in exercise of his discretion in the course of enforcing the rules as part of the judicial management scheme given effect by the Practice Directives.

BACKGROUND

The Appellant’s case was dismissed by the court below on the 6th September 2018 at the preliminary hearing stage. The reason given by the court for dismissing the Plaint was that the Plaintiff failed to comply with Practice Directions.

GROUNDS OF APPEAL

The Appellant submitted five grounds of appeal in the Notice of Appeal:

Ground 1 – The Learned Judge failed to take into consideration that the Defendants have not filed a Statement of Defence;
            Ground 2 – The Learned Judge failed to appreciate that the Plaintiff via its representative was present for the court appearance;
            Ground 3 – The Learned Judge erred in the use of his discretion to dismiss the Plaint based on Practice Direction;
            Ground 4 – The Learned Judge erred in failing to follow the Seychelles Code of Civil Procedure Act;
            Ground 5 – The Learned Judge failed to consider referring the matter to mediation given the representation of the parties.
Ground 1 – The Learned Judge failed to take into consideration that the Defendants have not filed a Statement of Defence

The Appellant argues that the Learned Judge should have considered that the order in which the case should have proceeded is that the Defendant should have filed a Statement of Defence and thereafter the Appellant could have filed the documents specified in paragraph 3.1 of the Practice Direction.
I have read Form CV1, the Directions for Case Management. Paragraph 1 of the said Directions provides instructions for the defendant(s), and states that, “you have 21 days from the date of receipt of this summons by which to file with the Registrar of the Supreme Court: An admission of the suit; or A statement of defence to the suit to which shall be annexed a list of documents which you intend to produce to make your defence; and/or A counterclaim to the plaint”. Paragraph 1 also notes that, “failure to file a defence in accordance with this direction may result in judgment being given against you”.
The following paragraphs of the Form CV1 provides instructions for all parties:

“INSTRUCTIONS FOR ALL PARTIES
. . .
3. The claim has been listed for a preliminary hearing for case management before a pre-trial judge on the return date with a time estimate of 45 minutes and the following directions shall apply:

Not less than seven days before the preliminary hearing the plaintiff(s) must file by email to registrar@judiciary.gov.sc and send to all parties (agreed in advance if possible by all parties):

a case summary of no more than 250 words;
a list of issues, setting out in separated numbered lines the principal issues of fact and law which the court will be asked to determine at trial;
a schedule of the sums (if any) claimed by the plaintiff (or counterclaiming defendant as the case may be) with a breakdown of each;
proposed directions (agreed if possible). Where not all of the directions have been agreed, the plaintiff must indicate which directions are not agreed;
a draft trial timetable setting out the time which it is proposed to allocate to each of the following:

opening statement(s)
oral evidence of lay witnesses (identifying the intended witnesses on each side and the issue in the list in (b) above which each witness will address)
oral evidence of expert witnesses (identifying the proposed expert witnesses)
closing submissions (including submissions on any legal issues which are to be determined by the court).

4. The parties and their Counsel shall attend the preliminary hearing. However, the hearing will not be adjourned on the grounds that any one or more of them fails to attend but will proceed in the absence of that person.”

Form CV1 contains a warning to the parties at the very top that states:

“Warning: you must comply with the terms imposed upon you by these directions: otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make a formal application to the court before any deadline imposed upon you expires.”

Paragraphs 6 and 21 of the Practice Direction No. 3 of 2017 warns the parties that non-compliance with the Directions may result in court dismissing the plaint or entering judgment against a defendant or court making such other order as may be appropriate in the circumstances:

“6. If any of the parties fails to comply with the directions letter the allocated Judge may strike out the suit, enter judgment against a defendant or make such other order as may be appropriate in the circumstances.
21. Failure by Counsel to attend at any required hearing or comply with any direction without valid excuse may result in sanction by the court, including disciplinary action in accordance with the law. The Court shall refuse to grant any unjustified adjournments.”

Both parties in the present case did not comply with the Practice Directions. By the time of the preliminary hearing Statement of Defence was not filed and the Appellant (then Plaintiff) also failed to file the specified documents. The Practice Directions clearly provide several warning that not following the Directions may result in case being dismissed at the preliminary stage. The warning on the Form CV1 also states that if compliance is not possible, a party should make a formal application to court. Therefore, the Appellant could have and should have expressed the inability to file the required documents before the preliminary hearing, indicating that the Defendant also did not file a Statement of Defence.
On proper reading of the rules, the obligations that the Plaintiff was obliged to effect before the preliminary hearing are not dependent or conditional on the Defendant having filed a Statement of Defence. They are stand -alone obligations intended to ensure expeditious delivery of justice and to ensure unnecessary adjournments are avoided. Compliance with case management rules are critical for judicial case management and an Appellate Court must be careful not to unduly frustrate judicial case management rules. If judicial case management rules have no consequences or cannot be enforced, then there is no point in having them.
In our considered opinion the Appellate Court is only entitled to intervene if the exercise of discretion by the trial judge was unreasonable and or was not within the contemplation of the rules. The fact that a trial judge chose to enforce the rules strictly cannot be a sound basis to impugn his decision. The possibility that another judge could have been generous in the interpretation of the rules or more accommodative of the Plaintiff is not the test.
It must be appreciated that the Plaintiff, whether or not the Defendant has filed a Statement of Defence, is still obliged to prove the case brought before the Court and all or some of the matters listed in 3.1 above would assist in determining whether the claim brought to court is valid or not.

Ground 2 – The Learned Judge failed to appreciate that the Plaintiff via its representative was present for the court appearance

The Appellant relies on sections 64 and 67 of the Seychelles Code of Civil Procedure (the “SCCP”) stating that the sections provide one of the few circumstances where a court may dismiss a Plaint and since both parties were present at the preliminary hearing, the Learned Judge should not have dismissed the suit.

Sections 64 and 67 provide:
“Procedure if neither party appears
64. If on the day fixed for the defendant to appear and answer the claim, or on any other subsequent day to which the hearing of the suit is adjourned, when the case is called on, neither party appears, the suit shall then be dismissed unless the court, for reasons to be recorded, otherwise directs.
When a suit is dismissed under this section, the plaintiff may bring a fresh suit, subject to the law as to prescription.”
“Procedure if plaintiff does not appear
67. If on the day so fixed in the summons, when the case is called on, the defendant appears and the plaintiff does not appear or sufficiently excuse his absence, the plaintiff's suit shall be dismissed.
If the defendant admits the plaintiff's claim or part thereof, the court shall give judgment for the plaintiff for so much of the claim as is admitted. If the defendant has claimed a set off(compensation), the court may proceed to the hearing of the set off and may give judgment thereon.”

Sections 64 and 67 plainly relates or prescribes the procedure applicable on the day fixed for the defendant to appear and answer the claim or in a situation where the Defendant appears and the Plaintiff does not appear. This is not the situation here. The situation here relates to a Plaintiff who did not comply with the pre-trial procedures and also failed to apply for condonation as required by the rules. On the other hand, the Practice Direction, which applies to preliminary stage of the suit clearly states that the suit may be dismissed for reasons of non-compliance with the Direction.

Ground 3 – The Learned Judge erred in the use of his discretion to dismiss the Plaint based on Practice Direction

The Appellant relies on the arguments submitted in Ground 1 of the Appeal, stating that the Learned Judge should have entered the judgment against defendant for not following the procedure and not dismissing the Plaint. It must be noted that the Plaintiff is dominus litis. The Plaintiff is the one who initiated the proceedings in court and engaged both the court and the defendant. Therefore, it is not unreasonable that the Plaintiff is expected to be ready to proceed with their case rather than delay proceedings with no reasonable excuse.

Ground 4 – The Learned Judge erred in failing to follow the Seychelles Code of Civil Procedure Act

The Appellant argues that the Practice Directions are inconsistent with sections 126 and 127 of the SCCP.
Sections 126 and 127 provide:

“If defendant admits claim
126. If on the day fixed in the summons for the defendant to appear, the defendant appears and admits the plaintiff's claim, judgment shall be given for the plaintiff.
If claim denied, statement of defence to be filed
127. If the defendant denies the plaintiff's claim or any part thereof, the court shall adjourn the case to a date to be fixed by the court and shall order the defendant to file a statement of defence on or before such date.
If there are more than one defendant, with different defences, separate statements of defence shall be filed by such defendants. The court may, if it think fit, give judgment for the plaintiff for such part of the claim as is admitted by the defendant to be due:
Provided however that, if the defendant appears in person and the plaintiff's claim is for less than five hundred rupees, the court, if it think fit, may allow the defendant to make his statement of defence verbally, which statement shall be recorded by the Registrar, and may either hear the suit forthwith or fix another date for the hearing:
Provided also that the court may, at any time after the parties have appeared, proceed to hear the suit, if the parties are ready and consent thereto.”

Sections 126 and 127 only relates to the procedure where the admits the claim and or denies it. This is not the situation here, as the Defendant has neither admitted or denied the claim. Before us learned Counsel for the Appellant sought to argue that there is a contradiction between the Practice and the Civil Code. We don’t agree. The case before us is not about when the Defendant must file a Statement of Defence. It relates to pre-trial procedure. Practice Direction relates mostly to pre-trial procedure and are not inconsistent with sections 126 and 127 as Form CV1 also directs the defendant to file a Statement of Defence.

Ground 5 – The Learned Judge failed to consider referring the matter to mediation given the representation of the parties

The Appellant argues that under paragraph 5.2 of the Form CV1 the court could have recommended that the suit go before a mediator. Paragraph 5 of the Form CV1 provides:

“5. At the preliminary hearing the court will decide:

What issues should be tried (and may strike out or refuse to determine any which are unsustainable or irrelevant);
Whether any (or all issues) should be recommended for mediation or other forms of alternative dispute resolution;
What directions should be given to enable the issues to be tried, including which of the witnesses nominated above may be called to give evidence;
How much court time should be allocated to the parties for the trial;
How much time should be reserved for the judge to prepare and deliver judgment at the conclusion of the trial.”

It is plain from the above that at the preliminary hearing it was open to the court to recommend mediation. However, the parties, more importantly the Plaintiff who was the dominus litis, did not comply with the Directions prior to the preliminary hearing, triggering a dismissal of the Plaint which was within the contemplation of the rules and a proper exercise of discretion, in order to give effect to case management rules. Without appropriate sanctions the rules established to ensure that matters are resolved speedily and cheaply would flounder and fail to meet their objectives.
Viewed from the above objective, and although at first blush the Ruling of the Learned Judge dismissing the Appellant’s case at the preliminary stage may seem harsh, it appears to be within the contemplation of the rules and justifiable. The Practice Directions are quite clear on the obligations of the parties. It is the Plaintiff who engages the Court and if the Plaintiff is not ready to argue his/her case then perhaps he/she should engage the Court when he/she is ready rather than cause unjustified delays and create unnecessary backlogs of cases.
We fortified in the view I hold by the remarks made by this court in the case of Commissioner of Police & Ano v Antonio Sullivan & Ors (Civil Appeal SCA 26/2015) [2018] SCCA 2 (11 May 2018) and cited in Emilie Adonis & Ano v Daniel Port-Louis (Civil Appeal SCA MA 07/2018) [2018] SCCA 22 (31 August 2018) to the effect that:

“Litigants and their counsel are not at liberty to ignore legal provisions at their discretion. The deadlines imposed by the Rules and Practice Directions of this Court are designed for orderly case management, and counsel who ignore those deadlines do so at their and, more importantly, their clients’ peril”.

We agree entirely with the above quoted views. This Court is duty bound to aid the judicial case management initiated to resolve matters speedily and cheaply and not to obstruct by unduly interfering with a proper exercise of discretion by a trail judge.
In the result, we find no merit in the Appeal.
We will make the following formal orders:

The Appeal is dismissed. There is no order as to costs.

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

____________
Dingake JA

[1] ″Rule 325″ should read ″section 325″

[2] (Hereinafter referred to as ″the Practice Directions No. 3 of 2017″) Practice Directions/Rules - The Judiciary of Seychelles has the link to the Practice Directions No. 3 of 2017 and Form CV1.

[3] Direction 23 of the Practice Directions No. 3 of 2017 provides that: ″Forms CV1 and CV2 (attached) are approved by the Chief Justice for the purpose of this Practice Direction″.

[4] See Practice Directions/Rules - The Judiciary of Seychelles for the said directions.

[5]″127. If the defendant denies the plaintiff's claim or any part thereof, the court shall adjourn the case to a date to be fixed by the court and shall order the defendant to file a statement of defence on or before such date. If there are more than one defendant, with different defences, separate statements of defence shall be filed by such defendants. The court may, if it think fit, give judgment for the plaintiff for such part of the claim as is admitted by the defendant to be due:
Provided however that, if the defendant appears in person and the plaintiff's claim is for less than five hundred rupees, the court, if it think fit, may allow the defendant to make his statement of defence verbally, which statement shall be recorded by the Registrar, and may either hear the suit forthwith or fix another date for the hearing:
Provided also that the court may, at any time after the parties have appeared, proceed to hear the suit, if the parties are ready and consent thereto″.

[6]Under section 22 of the Interpretation and General Provisions Act: "Gazette" means the official Gazette of the Government and includes any Government Gazette Extraordinary, any supplement to the Gazette and any matter referred to in the Gazette as being published with the Gazette;″

[7] ″7(1) The Supreme Court shall have the Admiralty jurisdiction of the High Court of Justice in England as stated in section 1 of the Administration of Justice Act, 1956 of the United Kingdom Parliament (hereinafter in this section called “the Act”).
(2) Subject to subsection (3), the Act shall have force and effect in Seychelles.
(3) The Chief Justice may make rules modifying and adapting the Act to such an extent as may appear to him to be necessary to allow the Act to have effect in Seychelles″.

[8] CIVIL PROCEDURE (VOLUME 11 (2015), PARAS 1-503; Volume 12 (2015), Paras 504-1218; Volume 12A (2015) PARAS 1219-1775. Consultant Editor Adrian Zuckerman Emeritus Professor of Civil Procedure, University of Oxford, University College, Oxford.

[9] Op. cit. 8.

[10] See the Civil Procedure Act 1997 section 3(1)(a) (prospectively substituted).

[11] See the Civil Procedure Act 1997 section 3(2) (prospectively substituted).

[12] Section 2(1): ″Definition of ″Statutory Instrument″
″(1)Where by this Act or any Act passed after the commencement of this Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then, if the power is expressed—
(a)in the case of a power conferred on His Majesty, to be exercisable by Order in Council;
(b)in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instrument, any document by which that power is exercised shall be known as a ″statutory instrument″ and the provisions of this Act shall apply thereto accordingly″. Emphasis supplied

[13] Section 5 substituted by the Constitutional Reform Act 2005 section 13(2), Schedule 2 Part 2 paragraph 6.

[14] Op. cit. 13.

[15] Section 1(A) stipulates: ″The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act″.

[16] Op cit 8. ″[Paragraph] [2] NATURE AND OBJECTIVE OF CIVIL PROCEDURAL LAW 3. Objectives of civil procedural law. [I have reproduced the objectives so far as relevant].