Gabriel v The Registrar of the Supreme Court (MA 184/2023 (Arising in CA 19/2022)) [2023] SCSC 820 (20 November 2023)

ESPARON J

Introduction

 

1. The Appellant filed a Notice of Appeal containing a memorandum of Appeal with 3 grounds of Appeal dated the 17^th August  2022.

 

2. The Respondent has filed  a preliminary Objection to this Appeal namely that the Appellant has filed his notice of Appeal outside of the prescribed time  limit provided for under section 6A ( 8) of the Legal Practitioners  Act as amended by section 4 of the Civil Code of Seychelles (consequence of enactment) Act, 2021. Accordingly, the Appeal is defective and the Respondent prays for its dismissal with cost
3. As a consequence of the preliminary objection filed by the Respondent, the Appellant has filed an Application for leave to Appeal out of time. Hence this Court would hear both the preliminary objection and the Application for leave to Appeal out of time since both can be conveniently disposed of together and consolidated.

 

The Pleadings

 

4. The Appellant has filed an Affidavit in support of the Application for leave to Appeal out of time  whereby the Appellant avers the following inter-alia;

‘2) That I was served with a letter from the Registrar of the Supreme Court dated the 21^st July 2022 informing me that my legal practitioners’ license has been revoked for a period of 3 years’.

3) That I aver that reading the content of the said letter, I notified my counsel Mr. Bernard Georges who advised me on the next step to follow, namely that was either seek a negotiated settlement within the Court or we lodge an Appeal to the Supreme Court.

4) That we eventually opted to file an Appeal and I drafted the Notice and Memorandum of Appeal which were handed over to my counsel for vetting purposes and signatures.

5) That I filed my appeal and paid filing fees on the 24^th August 2022.

6) That when I proceeded to file the notice of Appeal at the Court registry on the 24^th August 2022, I assumed that I was within the time limit of 30 days as weekends and public  holidays would not be counted for the computation of time.

7) That I verily believe that a delay of a few days cannot be said to be inordinate.’

 

5. The Respondent has filed their objections to the Application for leave to Appeal out of time namely that the Applicant cannot bring a retrospective motion for leave to Appeal out of time after he has already filed his Appeal. The Applicant must seek leave first and thereafter file his Appeal only if leave is granted.
6. The Respondent has filed an Affidavit in support of his objections sworn by the Registrar of the Supreme Court namely Juliana Gina Esticot.
7. The deponent avers the following inter-alia in her Affidavit of which she has denied all averments in the Affidavit of the Applicant save for paragraphs 1 and 2 of the said Affidavit and has averred the following inter-alia;

‘1) The Applicant cannot rely on his ignorance of the law as justification for filing an Appeal out of the prescribed statutory time limit and to that end, whether the delay is inordinate is irrelevant, so to is my position as an officer of the Court.

2)   I have been informed by my legal counsel, and verily believe the same to be true, that the Applicant ought to have filed a motion for leave to Appeal out of time before he filed his actual notice of appeal and not after. To do so is akin to putting the cart before the horse. The motion is therefore misconceived and bad in law.

 

Submissions of Counsels

 

8. In respect of its preliminary objection, the Respondent has submitted to the Court that the     Respondent had informed the Appellant of the revocation of his legal practitioner’s license on the 21^st July 2022 and that the Appellant was informed that he had 30 days from the date of the letter to lodge an appeal to the Supreme Court.  According to Counsel for the Respondent, a notice of Appeal dated the 17^th August 2022 was filed in the Registry of the Supreme Court on the 24th August 2022.
9. Counsel for the Respondent relied on section 6A (8) of the Legal Practitioners Act. Counsel for the Respondent submitted that as the Legal Practitioners Act does not define what is meant by ‘days,’ that one must look to the rules for computing time under the Interpretation and General Provisions Act in order to interpret the word ‘days’ in the LPA and how the time period for an Appeal is determined.
10. Counsel for the Respondent relied on section 57 of the IGPA and section 4 of the Civil Code of Seychelles Act (consequence of enachment) which amended the IGPA. Hence as a result the following shall apply;

a) one does not count the day on which the Act or things happens.

b) Where the last day of a period is excluded day, the period includes the next following day (not being the excluded day).

c) Saturdays and public holidays are to be counted when calculating the time limit.

11.  As a result of the above, Counsel for the Respondent submitted to the Court that since one does not count the date of the decision, but starts to do so the next following day, being the 22^nd July 2022 ( a Friday) and then if we include all Saturdays and public holidays, there is a period of 34 days between the date  and the filing of the notice of Appeal on the 24^th August 2022 and that this is evidently beyond 30 days  and hence the Respondent submits to the Court that the Appellant has filed his notice of Appeal outside the prescribed time and failing to do so or seeking leave  to have it heard outside the time limit period, his appeal is now defective.
12. Counsel for the Appellant submitted to the Court that the Appellant recognizes that the Appeal was filed out of time but however the Appellant has filed an application for retrospective leave to file the Appeal out of time.
13. Counsel for the Appellant relied on the case of Denton and others V TH White limited   (2014) 1 WLR 30926 and the case of Commissioner of Police V/s Antonio Sulivan case number SCA 26 of 2015 as well as the case of Eden Holistic Spa (propriety) Limited V Woodlands Holdings Limited (CA 15 /2020) 2021 CCSC 693 (20 October 2021) where it was held that the Court should take into account the following considerations in determining whether to grant leave to Appeal out of time:

a) the length of the delay;

b) the reasons for the delay;

c) the chances of success of the appeal succeeding if the Application is granted;

d) the degree of prejudice to the Respondent.

 

14.   Hence Counsel for the Appellant submitted to the Court that the delay is short only of three days and that the delay was occasion by a misconception by the Appellant that he had 30 working days and not thirty consecutive days in which to file the  Appeal.
15.  It is submitted to the Court that the chances of success of the appeal are good since the     Respondent did not take into account the Appellant had been denied a license for almost 2 years pending his conviction and that in all the revocation would extend to 5 years and according to counsel this is harsh and excessive.
16. Counsel for the Appellant further submitted that the degree of prejudice to the Respondent is negligible since the Respondent is a judicial officer and that the offences of which the Appellant was convicted show that the Appellant was negligent rather than being a wilful offender.  Hence the Appellant prays to the Court to grant its motion to Appeal outside time limit.      

The Law

Section 6A (8) of the Legal Practitioner Act states as follow;

‘An attorney-at-law whose license has been suspended or revoked or whose application for renewal of license has been refused may appeal to the Supreme Court within 30 days of notification of the decision of the Registrar’.

Analysis and determination

17. 17. It is not in dispute that the applicant is out of time by at least 3 days when he filed his notice of Appeal outside the time limit.
18. This Court is guided by the decision in the case of Farm-Ag International Trading (Pty) Ltd V/S Barclays Bank and Bodco Ltd, civil side No. 36 of 2000 where Karunakaran J. stated the Following; ‘I wish to point out that the Court always exercises an unfettered discretion in matters of condoning the delays and extending time for Appeals. However, it would exercise such a discretion judicially for the purpose of doing justice to the aggrieved, having regards to the facts peculiar to each case under consideration. In fact, there is no hard and fast principle that have universal application. Each case has to be determined primarily taking into account the nature of the mistake that caused the delay and the circumstances under which it arose. As rightly stated by Lord Justice Bowen in Weldon v De Bathe (1887) 3 TLR 445 (CA) at 446 that;

‘ ……. The court ought not to fetter its discretion as to extending the time for Appealing by laying any strict definition on the point, but would always exercise its discretion for the purpose of doing justice. On Application for an extension of time …… the affidavit in support ought to be so detailed as to let the Court see the nature of the mistake and the circumstances under which it arose’.

 

19. In the case of Jean V/S Inter- Island boat limited, Civil Appeal 44 of 2012, Egonde-Ntende CJ relied on the decision in the case of Aglae v Attorney General SCA 35 of 2010 which cited in approval the words of the Privy Council in the case of Ratnam V/S Curmarasamy (1964) All E.R 933 of which the Court held the following;

 

‘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 requires otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation’.

20. The court in the case of Jean (supra) held that ‘the Applicant has not explained the 3 months delay in failing to take any step with regard to a possible Appeal against the decision of the Employment Tribunal. This is fatal to his Application. Parties and their legal advisors must understand that this Court will enforce the time standards established by the rules’.          
21. The factors to be taken into account when exercising the discretion are the 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.
22. 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, it shall be granted ‘not as of course but only if the applicant shows sufficient reasons to justify an extension of time’.
23. The longer the delay the greater the burden on the Applicant. The court will consider whether the circumstances that caused delay are attributable to the applicant or not.  (Tarnecki v R)SCA 4/1996, LC 89).
24. Furthermore, an extension of time 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.
25. Before we consider the above, it is not in dispute that the Appellant had not filed his Application for leave to Appeal out of time before he had filed his notice of Appeal.  The Appellant had only done so after that the Respondent had raised a preliminary objection to the Appeal in that the Appellant has filed his notice of Appeal outside of the prescribed time limit provided for under section 6A (8) of the Legal Practitioners Act as amended by section 4 of the Civil Code of Seychelles (consequence of enachment) Act, 2021. Accordingly, the Appeal is defective and the Respondent prays for its dismissal with cost.
26. So the issue that is before the Court is that can such a defect be cured in the event the application for leave to Appeal out of time has  been filed after that such preliminary objection has been raised rather than filing it before fling the notice of Appeal.
27. In the case of Mickael Dydray George Esparon V/S Electoral Commission Seychelles and the Attorney General (MA 29/2022) (arising in CP 3/2021) the Constitutional Court held at paragraph 13 the following;

‘On the issue of whether there is a defect and whether it can be cured, the law makes it clear that leave is to be sought before one files the petition. The law sets down clear time frames for initiating the process by filing a petition. In case one were to argue that these time limits are too short, the law allows for these limits to be extended, or non- respect of them to be excused, provided the Court allows it. This means the Court must specifically be asked to do so for it to extend the period or excuse a delay’.

28. The Court further held in the case Mickael Esparon (Supra) that ‘where a point of law is raised in a suit, be it preliminary objections or plea in limine litis, however it may be termed, for the Court to allow a party to simply rectify the issue, thereby negating the objection raised by the other side, would be contrary to the principles of fairness and justice.

The Petitioner argues, that the nature of the objection is such that it can be cured by an Application for leave. As much as we should loathe to hinder an individual’s redress for alleged infringement of its rights, clear rules of procedure are in place for a reason.  In Poole V Government of Seychelles SCC 3/1996, The Court held, that procedural technicalities should not stand in the way of enforcement of fundamental rights or the redressing of contraventions of the Constitution, but nonetheless, those rights must be enforced in accordance with the rules of procedure prescribed by law, subject to the exercise of discretion by the Court in appropriate cases to either grant extension of time or to rectify pleadings in the interest of justice’.

The Constitutional Court in the above matter decided not to grant the Application.

29. This Court has considered the submissions of counsel for the Appellant as well as the submissions of counsel for the Respondent in the matter as well as the above case laws cited, this Court shall follow the decision in Michael Esparon (Supra) in respect to this Appeal and holds that where a point of law is raised in such an Appeal namely by way of preliminary objections or plea in limine litis, however it may be termed, for the Court to allow a party to  simply  rectify the issue, thereby negating the objection raised by the other side, would be contrary to the principles of fairness and justice. This Court is of  the view that to do so will be like putting the cart before the ox in reference to  an Appeal and would be highly improper and prejudicial to the Respondent.
30. This Court further holds that even if this Court was to allow and grant the Appellant leave to file his Appeal out of time despite the procedural irregularities, on the merits the Application should not succeed since the Appellant has not given good and sufficient reason for the delay since the reason given for the delay by the Appellant who is a legal practitioner is one of ignorance of the law rather than a good and sufficient reason for this Court to condone the delay.
31. As a result of the above, I accordingly dismiss the Application for leave to Appeal out of time and the preliminary objection is upheld. As a result, I accordingly dismiss Appeal.  I make no further Order as to cost.

 

Signed, dated and delivered at Ile du Port on 20^th November 2023.

 

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D. Esparon Judge