Vijay Construction (Pty) Ltd v Eastern European Engineering Limited (SCA28/2020) [2020] SCCA 45 (2 October 2020)

Heard: 03 and 18 September 2020

Counsel: Mr. B. Georges for the Appellant, appearing with Ms. Nisha Alleear

Ms. A. Madeleine for the Respondent

Delivered: 02 October 2020

JUDGMENT

1. Fernando (President)

The manner the appeal proceeded

1. The manner this appeal proceeded is something to be commented about. I sincerely hope that this will be the first and the last time that what happened in this case on 18 September 2020, happens. The appeal was argued on the 3rd of September 2020 and fixed for judgment on the 2nd of October. This was a case that was taken up for hearing outside the session and soon after the August session because of the necessity to have an early conclusion of this appeal due to its urgency at the instance of both parties. After the hearing and while in the process of deciding the appeal, I, as the President of the Court of Appeal realized that there were some fundamental issues that have been overlooked by Counsel for both parties at the trial and appeal stages and by the Trial Court. They were also overlooked by this Court when the case came to be argued on 03 September 2020. I was firmly of the view that I will not be able to come to a decision in this case unless I have submissions of Counsel on the said matters. I tried to obtain the consensus of the other two Justices on 14 September 2020, to reconvene the Court to seek clarifications on the matters that I was concerned of, placing reliance on rule 18(9) of the Seychelles Court of Appeal Rules 2005 which states that “the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.” Since we were still at the stage of ‘deciding the appeal’ and there was nothing in the Rules of the Seychelles Court of Appeal that prevents this Court to reconvene the Court and call back the counsel appearing for the parties to seek clarification on matters that concerns the Court and as the justice of the case requires; I was of the view that my colleagues would agree to my request. Rule 18(9) does not in any way restrict the time before which Counsel can be called for clarifications. It can be done any time before delivery of judgment. For that matter the date set for delivery of judgment may be postponed if there is a need to seek clarifications in the interests of justice. The only limitation in this regard under rule 18(9) is “the Court shall not, if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.” Rule 18(9) does not speak of a need to have ‘exceptional circumstances’ to exercise the Court’s power under rule 18(9). The only criteria being in the ‘interests of justice’. Since my colleagues were in disagreement to my suggestion to reconvene, I as the President of the Court of Appeal invoking the powers given to me by rules 3(1), 6(2), 11(1)(b) of the Seychelles Court of Appeal Rules decided to reconvene the Court on 18 September 2020 by way of a Notice dated 15 September 2020.

2. Notice dated 15 September 2020 seeking clarifications that was sent out to Counsel for both parties is set out below:

“15 September 2020

As President of the Court of Appeal, I have decided under the powers given to me by rules 3(1), 6(2), 11(1)(b) and 18(9) of the Seychelles Court of Appeal Rules to have the case of Vijay Construction (Pty) Ltd vs Civil Appeal SCA 28 of 2020, which was argued on the 3^rd September 2020 and now fixed for judgment on 2^nd October 2020, mentioned on Friday the 18^th of September 2020 at 10 am, to have the following matters clarified in the interests of justice:

1. Whether leave to have the judgments of Justice Cooke and Justice Cockerill registered in the Supreme Court had been granted by the Supreme Court before the filing of the Plaint on 31 January 2019, in accordance with the Practice and Procedure Rules made under section 3(4) of the Reciprocal Enforcement of British Judgments Act? If it had not been obtained what consequences flow from it?

2. Whether the Judgment Creditor had applied to the Supreme Court to have the judgments of Justice Cooke and Justice Cockerill registered within the time specified in section 3(1) of the Reciprocal Enforcement of British Judgments Act?

3. Whether duly authenticated or certified copies of the judgments of Justice Cooke and Justice Cockerill have been filed by the Judgment Creditor before the Supreme Court in accordance with the Practice and Procedure Rules made under section 3(4) of the Reciprocal Enforcement of British Judgments Act?

4. What consequences flow if there has been non-compliance with the said provisions?

These matters appear to have been overlooked by Counsel for both parties at the trial and appeal stages and by the Trial Court. They were also overlooked by this Court when the case came to be argued on the 3^rd September 2020 due to the urgent nature of this case. I will not be able to come to a decision unless I have the submissions of Counsel on the above matters. I therefore rely on rule 18(9) of the Seychelles Court of Appeal Rules which provides:

“Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.

Provided that the Court shall not, if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

We are still at the stage of ‘deciding the appeal’ and therefore I have decided to call back the Counsel appearing for the parties to seek clarification on matters that concern the Court and as the justice of the case requires.

One of the Justices of Appeal have expressed the view that I as the President, have no right under the law to call back Counsel for clarifications after the conclusion of the arguments on 03 September 2020. According to the said Justice of Appeal, “the appeal has been heard and there is nothing left to be heard as all the points canvassed have been heard”. The said Justice of Appeal had stated: “I will not sit on a further appeal”. I would therefore wish both Counsel to address me on this issue also.

Sgd.

President

Court of Appeal” (verbatim)

3. Counsel for the Respondent by her e-mail of 15 September 2020 informed this Court that leave had been obtained to have the judgments of Justice Cooke and Justice Cockerill registered in the Supreme Court by the Order of Carolus J dated 25 January 2019 and attached a copy of the said Order.

4. Rules 3(1), 6(2), and 11(1)(b) of the Seychelles Court of Appeal referred to in the said Notice is set out below:

“Rule 3(1) The procedure and practice of the Court shall be as prescribed in these Rules, but the Court may direct a departure from these Rules at any time when this is required in the interest of justice.

Rule 6(2) The sittings of the Court and the matters to be disposed of at such sittings shall be notified in such manner as the President may direct.

Rule 11(1)(b) The President or the Court may give such directions in matters of practice, procedure and the disposal of any appeal, application or interlocutory matter as the President or the Court may consider just and expedient.” (emphasis added)

5. At the hearing on 18 September 2020, the two other Justices of Appeal, having agreed to come on the bench after a meeting in my Chambers on 17 September 2020, refused to associate themselves with the proceedings on the basis that the President of the Court of Appeal had no authority to unilaterally convene the Court without their consensus after the hearing has been concluded on 03 September 2020, to hear submissions on the clarifications I had sought. To them ‘Court’ means all three Justices of Appeal empaneled to hear an appeal and no member of the Court has more power than the others in the exercise of judicial functions. The absurdity of this is revealed if to ask any question during an appeal hearing by one Justice of Appeal the consensus of the others also have to be obtained. It was their position that so far as they are concerned, they were not prepared to consider any fresh issues after the conclusion of hearing on 03 September 2020 as all points canvassed in the appeal have been heard and thus there is nothing left to be heard. They placed reliance on rule 30(5) of the Seychelles Court of Appeal Rules which states: “After all the arguments have been concluded, the Court may give judgment immediately or may reserve judgment until a later date”. I am at a difficulty to understand how this rule can override rule 18(9) referred to at paragraph 2 above. An appeal meant to be argued by Counsel on both sides turned out to be an unfortunate debate amongst the three Justices. It was most unfortunate that one of the Justices of Appeal went to the extent of questioning the propriety and lawfulness of my decision to convene the Court to seek clarifications. The two Justices of Appeal, firmly stated that the submissions on clarifications would lead to a decision being made against a party and that party would have no recourse to a right of appeal and to them this was not to be in the ‘interests of Justice’. I am yet to come to terms with this argument as this would necessarily mean that the said Justices of Appeal were already confirmed in their minds that a party had to necessarily lose if the submissions on clarification were given. I cannot comprehend how they could have come to this conclusion even without hearing submissions and not knowing what their views and my views would be. Further in doing so the two Justices of Appeal failed to realize that they were in the majority and was able to decide the matter in the way they believe that serves the ‘interests of Justice’ once the clarifications were given. I believe the said Justices of Appeal in making this statement had not taken into consideration the injustice to the other party and embarrassment that could be caused to our entire judicial system. This also shows that the said Justices of Appeal were willing to tip the scales of Justice in favour of a party, merely because the points had not been raised in the grounds of appeal, nor argued at the hearing and even if the decision of the Trial Court was fundamentally wrong. I am yet of the view that I am entitled to convene the Court any time before judgment if a Justice of Appeal needs a clarification from Counsel in accordance with rules 3(1), 6(2), and 11(1)(b) of the Seychelles Court of Appeal Rules and that certainly is not a judicial decision for which there must be consensus from all three Justices, as stated by one of the Justices of Appeal at the convened hearing. It is against the Judicial Oath We Justices and Judges take and against all norms of collegiality to prevent another Justice or Judge from seeking clarifications he/she needs. If any Justice of Appeal feels that such clarifications are unwarranted all that he/she can do is to come on the bench and disassociate him/her from the Justice of Appeal who needs the clarifications. As stated earlier I sincerely believe that this is the last time that this would happen in this Court during my tenure of office.

6. I am very much conscious of the fact that the non-ultra petita rule enjoins the court to review a case within the limits of the questions of law and fact which have been raised by the parties to a dispute. I am aware of judgments of this Court, mainly in civil cases that have applied this principle and I myself have done so in the case of Lesperance v Larue (SCA 15/2015). The European Commission for Democracy Through Law (The Venice Commission) in an Amicus Curiae Brief for Georgia on this issue reported in Strasbourg on 29 June 2015 in its conclusions emphasizing on the need to adhere to the non-ultra petita rule but stated that “courts may intervene suo sponte, but such an intervention must be exercised sparingly and in very specific circumstances, namely, errors of fact or law allegedly made by a lower court should not be addressed unless these infringe fundamental principles.” The American Supreme Court has power to intervene for what it termed “plain error” if the errors are “obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings” (United States v. Atkinson, 297 U.S. 157, 160 (1936). The Supreme Court of Canada recognized in R V Mian SCC 54, [2014] 2 S.C.R. 689 (following R v Phillips [2003] ABCA 4) that the court may intervene in cases where (1) the issue is a new issue (2) failing to raise the new issue would risk an injustice; and (3) the procedure followed by the court in raising the issue must be fair. The Court stated: “…Courts also have the role of ensuring that justice is done. As Lord Denning explained in the context of trial judges in the United Kingdom: “. . . a judge is not a mere umpire to answer the question ‘How’s that?’ His object above all is to find out the truth, and to do justice according to law . . .” (Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), at p. 159 (emphasis added)). This proposition is no less true of appellate judges. Meaningful appellate review assesses the correctness of a lower court decision, both on errors of law and palpable overriding errors of fact (see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25 and 28; and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 1 and 4). I accept the submission of the intervener the Attorney General of Alberta that “for ‘justice in fact to be done,’ judges must sometimes ‘intervene in the adversarial debate’” (I.F., at para. 16, citing Brouillard, at p. 44).” In Mian the Court went on to state “However, attempting to precisely define the situations which “would risk an injustice” would unduly limit the ability of appellate courts to intervene to ensure that justice is in fact done. Where there is good reason to believe that the result would realistically have differed had the error not been made, this risk of injustice warrants the court of appeal’s intervention.” The case of Tex Charlie v Marguerite Francoise Civ Appeal No 12 of 1994 cited by the Respondent’s Counsel in her Response to Further Clarifications sought by the President of the Court of Appeal has no application to this case. This is not a case of formulating a case for any party after listening to the evidence and granting relief not sought by that party. It is not a case about the failure of the Defence in drawing up its pleadings. It is a more fundamental question as to whether the Respondent who had brought the case under REBJA, had complied with section 3 of REBJA and the Practice and Procedure Rules made under section 3(4) of REBJA in filing suit, as it was its obligation to do so and in accordance with the principle that he who asserts must prove. Surely a Court cannot close its eyes to fundamental errors made by the Trial Court in entertaining a suit and granting relief, simply because they have not been pleaded or raised in the grounds of appeal. I am firmly of the view that be it the Trial Court or the Court of Appeal, the first question to be determined by the Trial Court and now by this Court is whether there has been compliance with the REBJA and the Practice and Procedure Rules made thereunder. That is not taking any one party’s side.

7. I must stress that this is a unique case in view of the documentation that has been filed and certainly not the normal rung of civil cases that come up often before our courts. This is a case which is rare, extraordinary, and uncommon to this jurisdiction This is a case where Orders and a Judgment of courts in the United Kingdom, which we are not familiar with as to the format, are sought to be registered and enforced in the Seychelles under the Reciprocal Enforcement of British Judgments Act (REBJA). According to section 3(1) of REBJA once the Orders are registered shall “as from the date of registration be of the same force and effect, and proceedings may be taken, as if it had been a judgment originally obtained or entered up on the date of registration in the court.”. According to the said section of REBJA judgments and orders of UK courts shall be registered in Seychelles “if in all the circumstances of the case it considers it just and convenient that the judgment should be enforced in Seychelles”. Once the judgment or order is registered the successful party can seek to have it enforced. Thus, the fundamental duty of the Supreme Court should have been and this Court on appeal is to consider whether we are satisfied that the documents produced are in fact a judgment or Orders of a UK Court that is sought to be registered in the Seychelles in terms of REBJA and whether the Practice and Procedure Rules made under section 3(4) of REBJA have been complied with. I do not believe that every document that is claimed to be a judgment or order of the UK courts that is not an original or bears no valid certification or authentication on the face of it as required by law that is brought before our courts has to be registered without any form of scrutiny. Our Courts are not there to rubber stamp as authentic any documents claiming to be emanating from a British Court, even though the two parties accept them in the Agreed Facts Statement and without raising any objection to them. That would be an insult to our Judicial system. The duty is always on the Court to ensure compliance. The Supreme Court and this Court have to be extremely careful in dealing with applications for registration of British judgments as we are no more a British colony and it is our bounden duty under the Constitution to safeguard our sovereignty and the territorial integrity of Seychelles in complying with the provisions of REBJA, remembering always that according to article 1 of the Constitution that: “Seychelles is a sovereign democratic Republic”.

8. Since it was embarrassing to continue with the sitting, I decided in view of the impasse the Court had unfortunately reached, to inform Counsel on both sides that I would then forward the questions and request Counsel to submit to me, their responses within 3 days of the dispatch of the Questions. Counsel for the Appellant and the Respondent agreed to comply with the request of the President of the Court of Appeal and agreed that the responses to the said questions would be submitted within 3 days of the receipt of the questions, for the consideration of the President of the Court of Appeal. I set out below the Questionnaire:

9. “Notice of 21 September 2020 pertaining to the Questions to Counsel for the Appellant and Respondent for their responses:

QUESTIONS TO COUNSEL FOR THE APPELLANT AND RESPONDENT ON THE BASIS OF CLARIFICATIONS SOUGHT BY WAY OF NOTICE DATED 15 SEPTEMBER 2020:

At the sitting of the convened hearing of the Court of Appeal on the afternoon of 18 September 2020, by way of Notice dated 15 September 2020, by the President of the Court of Appeal and at the sole instance of the President of the Court of Appeal; the other two Justices of the panel refused to associate themselves with the proceedings on the basis that the President of the Court of Appeal had no authority to unilaterally convene the Court without their consensus, after the hearing has been concluded on 03 September 2020. It was their position that so far as they are concerned, they were not prepared to consider any fresh issues after the conclusion of hearing on 03 September 2020 as all the points canvassed in the appeal have been heard and thus there is nothing left to be heard.

The President of the Court of Appeal clearly stated that he was unable to come to a determination of the case without seeking clarifications on the issues that he considers relevant and material and which had been forwarded to Counsel representing the Appellant and the Respondent by way of Notice dated 15 September 2020. In view of the stalemate, the President of the Court of Appeal informed Counsel on both sides that he would then forward the questions based on the issues referred to in the Notice dated 15 September, and ask Counsel to submit to the President of the Court of Appeal, their responses within 3 days of the dispatch of the Questions. It was the position of the President of the Court of Appeal, that had these clarifications been sought during the hearing, despite the fact that they related to matters not raised in the grounds of appeal, Counsel could not refuse to answer questions from Court although emanating from a single Judge and despite the other two Justices of Appeal, refusing to associate themselves with the questions pertaining to clarifications on the ground that they were not raised by the Appellant. Counsel for the Appellant and the Respondent agreed to comply with the request of the President of the Court of Appeal. It was agreed by both Counsel that the responses to the said questions would be submitted within 3 days of the receipt of the questions, for the consideration of the President of the Court of Appeal. The President orders the parties to submit the responses before 25 September 2020, so that he could consider them in making a determination in the case and in view of the fact that the judgment in the case is scheduled to be delivered on 02 October 2020. Please take note that on the failure of any Counsel to submit to any of the questions it would be taken as they have no submissions to make; and the President will come to a determination of the case on the basis of the proceedings and documents on record in the Supreme Court briefs in relation to the ex-parte application and the trial of the case and the applicable law.

The said questions are being asked after the President of the Court of Appeal has personally perused the Supreme Court records pertaining to the ex-parte application by way of Petition and the suit filed in this case by way of Plaint and the President of the Court of Appeal having obtained photo-copies of the relevant petitions, the affidavits, the Order of 14 August 2015 of the High Court of Justice, QBD, Commercial Court and the Judgment and Order of Mrs. Justice Cockerill of 11 October 2018 from Mrs. V. Vadivelo, Assistant Registrar of the Court of Appeal.

Questions in relation to Clarification 2 sought by way of Notice dated 15/09/ 2020:

1. Was the application to have the Order of 18 August 2015 registered under section 3 of Reciprocal Enforcement of British Judgments Act (hereinafter referred to as, REBJA), made “within 12 months after the date of the judgment i.e. before 18 August 2016 or such longer period as may be allowed by the Court”.

2. Did the Ex-Parte Petition filed on 16 November 2018, seek orders according to the prayer under section 4(5) of Foreign Judgments (Reciprocal Enforcement) Act?

3. Did or did not the Amended Petition that was filed on 04 December 2018, convert the 16 November 2018 petition, to one under section 3(1) of REBJA? Is it the prayer seeking relief or the caption that is decisive of the nature of an action? Did or did not the Amended Petition of 04 December 2018, convert the pleadings to one of another character? Did this offend section 146 of the Seychelles Code of Civil Procedure?

4. Could the Supreme Court have allowed the amendment to the Petition?

5. Was the Respondent conscious of the fact that the registration of the Order of 18 August 2015 before the Supreme Court was out of time in view of the averments in paragraph 2 of the Affidavit of Daniel Terrence Burbeary dated 15 November 2018?

6. Can it be said that the Judgment and Order of Justice Cockerill dated 11 October 2018, kept alive the Order of 14 18 August 2015 from running out its time limit for registration as required by section 3 of REBJA, in view of the orders made therein?

7. Was the affidavit of D. T. Burbeary dated 15 November 2018, attached to the application under REBJA? If not, could the Supreme Court have made use of the Affidavit of D. T. Burbeary dated 15 November 2018 in relation to the application under REBJA?

Assuming it was attached and could be made use of:

1. Is it sufficient for D. T. Burbeary, to simply aver that “as a matter of English law EEEL was unable to take any steps to enforce the Cooke Order pending the final determination of the Set-Aside Application”?

2. What is the reference to the English law? Where is it to be found? Is it necessary to plead and prove foreign law?

8. If there was a failure to prove foreign law, should not S. 230 of the Seychelles Code of Civil Procedure apply?

9. If the limitation imposed by S.3 of REBJA had not been complied with, could the Supreme Court have entertained the suit?

Questions in relation to Clarification 3 sought by way of Notice dated 15/09/ 2020:

1. Do the copies of the Order of 18 August 2015, Cockerill Judgment and Order, filed and produced at the trial under rule 3 of the Practice and Procedure Rules bear any certification?

2. Have the requirements in section 3 of REBJA and rules 2 and 3 of the Practice and Procedure Rules been complied with?

3. Is there a requirement to file the original orders and judgment along with the plaint in accordance with rule 3 of the Practice and Procedure Rules?

4. Is there a difference in filing Orders and Judgment at the Leave stage (rule 2 of the Practice and Procedure Rules), which is a threshold stage; and the Trial stage (rule 3 of the Practice and Procedure Rules)? Was the original of the Orders and Judgment produced at the Trial stage? Is there a necessity to prove the Orders and Judgment at the trial according to section 3 of REBJA and rules 2 and 3 of the Practice and Procedure Rules?

5. Does the Order of 18 August 2015 satisfy the requirements of rule 3 of REBJA Rules?

1. Was the original order of 18 August 2015 produced?

2. Does the Order of 18 August 2015 bear the name of Justice Cooke? What do the initials which is to be found at the end of page 2 of the Order stand for?

3. Is there a verified or certified or otherwise duly authenticated copy of the 18 August 2015 Order from a Competent Authority of UK?

4. Could Ms. Lucie A. Pool, Notary Public of Seychelles, have certified the Order of 18 August 2015?

6. Is the certification by Solicitor Elizabeth Edmonds, of Mrs. Justice Cockerill’s Judgment and Order, in compliance with section 28(2) of the Evidence Act? Is Solicitor E. Edmonds, a Competent Authority designated by UK to issue a certificate in accordance with The Hague Convention on Abolishing the Requirements for Foreign Public documents 1961?

Questions in relation Clarification 1 sought by way Notice dated 15/09/ 2020:

1. If the answers to the above show that there have been deficiencies, was the granting of leave by the Supreme Court under rule 2 of the Practice and Procedure Rules to have the Orders and judgments registered, valid? In the circumstances of this case are the proceedings before the Supreme Court from its inception, namely from the filing of the ex-parte Petition valid? In the event that there are deficiencies can they be overlooked? Are these matters that go to the very root of the regularity of the proceedings and also a matter which questions the jurisdiction of the Court and the sovereignty of Seychelles?

Sgd.

President

Court of Appeal” (verbatim)

Copies of the Questionnaire were forwarded to the other two Justices on the panel on 22 September 2020 by the Assistant Registrar of the Court of Appeal by e-mail. Both the Appellant’s and Respondent’s Counsel submitted their responses to questions by the President of the Court of Appeal on the 25^th of September as ordered to the Court. I have been informed that the other two Justices have also been served with the responses. The Respondent’s counsel had however stated that although she was submitting as a friend of the Court, the clarifications sought are “new grounds of appeal, that were never raised, never argued and they were not raised by the Court at the hearing on 03 September 2020”. It is the Respondent’s position “raising new grounds after the close of arguments in this appeal are unfair, unjust and onerous for the Respondent.” I have dealt with this matter at paragraph 6 above. However, I find from the Respondent’s response to the questions; the authenticity and admissibility of the documents that had been filed had been a concern of the Trial Court. In fact, Counsel for the Respondent quotes a question from the Trial Judge at the hearing of the ex-parte petition, namely: “So I take it all the documents which have been filed up to now there are no questions about authenticity or admissibility?” and the Appellant’s Counsel’s response had been: “There are none we agree that the documents are those which are sought to be registered.” The question and answer shows that both Counsel and the Court took everything for granted without a proper scrutiny of the documents which have been filed, as could been seen from the paragraphs below.

Nature of the Appeal:

10. The Appellant (Defendant, before the Supreme Court) has appealed against the Orders made by the Supreme Court in its judgment dated 30 June 2020, namely “that the Order of Mr. Justice Cooke dated 18 August 2015 and the Order of Mrs. Justice Cockerill dated 11 October 2018, be registered in terms of section 3(1) of the Reciprocal Enforcement of British Judgments Act; that the Appellant pays the Respondent (Plaintiff, before the Supreme Court) a total sum of Euros 16,730,671.43, in terms of the Order of Mr. Justice Cooke dated 18 August 2015 which is the arbitral award in favour of the Respondent against the Appellant; pays the Respondent Respondent’s legal and other costs of arbitration, and Respondent’s costs to the ICC. The Court had also ordered that the costs in relation to the application for leave to enforce the arbitral award and to enter judgment in terms of the award, including the costs of entering judgment, to be summarily assessed if not agreed. It had also ordered as post award interest in respect of damages and breach of confidentiality provisions under contracts 1-6, a total sum of Euros 3,569, 960.14 and accrued interests of Euros 131.61, 2,818.01 and 32.88 in respect of the said contracts. It had also ordered that the Appellant pay the Respondent costs of the Appellant’s application to set aside the Order of Mr. Justice Cooke dated 18 August 2015 and its application to cross-examine witnesses and an interim payment on account of the said costs in the sum of GBP 245,315.90. The Supreme Court had also ordered in accordance with section 3(3) (c) of REBJA that the reasonable costs of and incidental to the registration of the Orders and of the application for registration before the Supreme Court shall be borne by the Appellant”.

18 August 2015 Order:

11. The 18 August 2015 Order stated: “Upon reading the Claimant’s (Respondent herein) application dated 14 August 2015 and the witness statement of Sohail Ali dated 14 August 2015 it is ordered that:

1. Pursuant to section 101(2) of the Arbitration Act 1996, the Claimant do have leave to enforce the arbitration award dated 14 November 2014 made pursuant to an arbitration agreement contained in the contracts of sale” 1 – 6 and such leave to include leave to enforce post-award interest in the amounts of Euros 145,498.25 in respect of damages under Contracts 1-5 and accruing hereafter at the daily rate of Euros 131.61, Euros 3,385,261.64 in respect of damages under contract 6 and accruing hereafter at the daily rate of Euros 2,818.01, and Euros 39,200.25 in respect of the breach of confidentiality provision under Contract 6 and accruing hereafter at the daily rate of Euros 32.88.

2. “Pursuant to section 101(3) of the Arbitration Act 1996, judgment be entered against the Defendant (Appellant herein) in the terms of the said award, namely” the Defendant shall pay the Claimant a total sum of Euros 16730670.43, inclusive of the Claimant’s legal costs of the arbitration and Claimant’s costs to the ICC.

3. “The costs of the application dated 14 August 2015 including the costs of entering judgment, be paid by the Defendant, such costs to be summarily assessed if not agreed.”

4. “Within 14 days after service of the order, the Defendant may apply to set aside the order. The award must not be enforced until after the end of that period, or until any application made by the Defendant within that period has been finally disposed of.”

Judgment and Order of Mrs. Justice Cockerill dated 11 October 2018

Mrs. Justice Cockerill had by her Order of 11 October 2018 dismissed the application of the Appellant to set aside the Order of 18 August 2015 by dismissing the grounds raised by the Appellant, namely, that the Tribunal lacked jurisdiction; that the Arbitrator had denied the Appellant an opportunity to present its case, and that the enforcement of the award would be contrary to public policy. She had dismissed the Appellant’s application to cross-examine Mr. Zaslonov and Mr. Andriuskin. Mrs. Justice Cockerill had ordered that the Appellant to pay the Respondent’s costs of the application for setting aside the Order of 18 August 2015, the cross-examination application on the indemnity basis, which is to be assessed if not agreed and to make an interim payment before 25 October 2018 of a sum of GBP 245,315.90 on account of the costs in relation to the application to set aside the Order of 18 August 2015 and the cross-examination application.

12. I set out below the Appellant’s grounds of appeal which I consider as relevant in determining this appeal:

1. “The Learned Trial judge erred [at paragraphs 90 and 154] in finding that a back-door entry to enforce an unenforceable award was just and convenient in a situation where the attempt was a clear flouting of a judgment of the Court of Appeal.

2. The Learned Trial Judge erred in her finding [at paragraphs 55-56] that the Cooke and Cockerill Orders were judgments within the definition of the word in the Recognition and Enforcement of British Judgments Act.

3. The Learned Trial Judge erred, having accepted that the British Orders were in the form of executory orders, in dismissing the submission exequatur sur exequatur ne vaut or similar arguments regarding double exequatur.

By way of relief, the Appellant had sought an order allowing the appeal and reversing the orders made by the Trial Judge effectively dismissing the plaint of the Respondent seeking the enforcement of the Cooke and Cockerill Orders in Seychelles.” (verbatim)

Background to the appeal:

13. (a) The Appellant and the Respondent are companies incorporated in the Seychelles. In 2011, the Respondent hired the Appellant to carry out construction work for a hotel called ‘Savoy Resort and Spa’ (hereinafter referred to as ‘Savoy’) through six contracts.

(b) It is to be observed that each contract included similar arbitration clauses, which provided that:

1. any dispute, disagreement or claim arising under or from the contracts, including disputes on breach, termination and validity of the contracts shall be finally settled by arbitration under the rules of Arbitration of the International Chamber of Commerce (ICC);

2. the arbitral tribunal would consist of a sole arbitrator; and

3. the place of arbitration would be in Paris.

(c) Disputes arose between the parties resulting in the termination by the Respondent of all six contracts and the Respondent filed a Request for Arbitration on 10 September 2012 before the International Chamber of Commerce (‘ICC’) in Paris, France. The sole Arbitrator was Andrew Lotbiniere McDougall, who delivered an award dated 14 November 2014 generally in favour of the Respondent (hereinafter referred to as ‘Award’).

(d) In summary, the Award declared that the Respondent had validly terminated the Six Contracts and ordered the Appellant to pay the Respondent a total sum of €14,374,431.89 at an interest rate of 8% per annum, for damages, over payments to complete the Savoy, and provision of reinforcement steel, for breaching the confidentiality provisions in respect of Contract 6 and for damages for delays and provision of reinforcement steel in respect of Contracts 1-5 and the Respondent’s costs for the arbitration and costs to the ICC.

(e) Additionally, the Award ordered the Respondent to pay the Appellant a total sum of €1,155,849.00 at an interest rate of 8% per annum for the value of work performed by the Appellant and the acceleration fee for the timely completion of work under Contract 4 and damages resulting from the Respondent’s occupation of the Appellant’s temporary building.

(f) Subsequently, the Respondent initiated proceedings in the Supreme Court of the Seychelles in case number CC 33 of 2015 on 09 June 2015 to have the Award recognized and enforced. The Appellant in response challenged the enforcement of the Award on the ground that the Supreme Court had no power to enforce the Award under statute or common law.

(g) The Supreme Court by its judgment of 18 April 2017 held that the Arbitration Award of 14 November 2014 in favour of the Respondent was enforceable in the Seychelles under section 4 of the Courts Act and Articles 146 to 150 of the Commercial Code of Seychelles.

(h) The Appellant appealed against the judgment of the Supreme Court to the Court of Appeal of Seychelles and the Court of Appeal by its judgment of 13 December 2017 allowed the appeal of the Appellant and held that the Arbitration Award of 14 November 2014 was not enforceable in the Seychelles. The Court of Appeal held that “the New York Convention is not applicable to the Seychelles and accordingly Articles 146 to 150 of the Commercial Code have no legal effect.” The Court also held that “the Learned Trial Judge erred in finding that provisions of section 4 of the Courts Act applied in Seychelles to enable the powers, authorities and jurisdiction of the High Court in England to be exercised by the Supreme Court of Seychelles in addition to (but not in the absence of) the jurisdiction of the Supreme Court.”

(i) The Respondent had also in the meantime had made application on 14 August 2015 to the High Court of Justice, Queens Bench Division, Commercial Court seeking leave to enforce the arbitration award dated 14 November 2014. The High Court by its Order of 18 August 2015 had ordered that the Respondent do have leave to enforce the arbitration award dated 14 November 2014 pursuant to section 101(2) of the Arbitration Act 1996 and that such leave to include leave to enforce post-award interest and had further in terms of the Award entered judgment in a total sum of Euros 16,730,671.43 against the Appellant pursuant to section 101(3) of the Arbitration Act 1996.

(j) The Appellant had made application under section 103 of the Arbitration Act 1996 to the High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD) on 23 October 2015, to set aside the Cooke Order of 18 August 2015. The said application had been stayed since the Appellant had brought proceedings in France and was defending a civil suit in Seychelles to set aside the Award on grounds similar to those raised in in the application of 23 October 2015. The Cour d’ Appel at Paris had dismissed the Appellant’s appeal and the Appellant had not pursued the further appeal to the Court of Cassation and had therefore been terminated. As stated at paragraph 3(h) above the Court of Appeal of Seychelles had allowed the Appellant’s appeal. It was therefore only in October 2018, after a gap of nearly three years, that the Appellant’s application to set aside the Order of 18 August 2015 came to be considered by Mrs. Justice Cockerill. Mrs. Justice Cockerill had by her Order of 11 October 2018 dismissed the application of the Appellant to set aside the Order of 18 August 2015 by dismissing the grounds raised by the Appellant, namely, that the Tribunal lacked jurisdiction; that the Arbitrator had denied the Appellant an opportunity to present its case, and that the enforcement of the award would be contrary to public policy. Mrs. Justice Cockerill had also ordered that the Appellant to pay the Respondent’s costs of the application for setting aside the Order of 18 August 2015 and to make an interim payment before 25 October 2018 of a sum of GBP 245,315.90.

(k) The Respondent had filed an ex-parte Petition dated 16 November 2018 and thereafter an Amended Petition dated 04 December 2018 seeking leave of the Supreme Court to have the two British Orders and judgment registered and leave had been granted by the Supreme Court by its Order of 25 January 2019. On 31 January 2019 the Respondent had filed Plaint before the Supreme Court of Seychelles and had prayed for by way of relief “to register and render executory the Order of Mr. Justice Cooke made on 18 August 2015 and the Order of Mrs. Justice Cockerill made on 11 October 2018 executory in Seychelles under section 3(1) Reciprocal Enforcement of British Judgments Act.”

(l) The Supreme Court by its judgment of 30 June 2020 had given judgment in favour of the Respondent and granted the relief as prayed for in the Plaint as referred to at paragraph 10 above. It is against the said judgment that the Appellant has appealed and now before us.

Basis on which the Plaint was filed:

14. “Paragraph 10: The Plaintiff filed an application before the High Court in England and Wales pursuant to section 101 of the (UK) Arbitration Act 1996 for permission to enforce the Award and judgment in the terms of the Award, which was granted by an Order made on 18 August 2015 by Mr. Justice Cooke. The Defendant has failed to comply with the Order of Mr. Justice Cooke.

Paragraph 11: That the Defendant then filed an application pursuant to section 103 of the (UK) Arbitration Act on 23 October 2015 seeking to the Order of Mr. Justice Cooke of 18 August 2015 be set aside, which application was dismissed by an Order of Mrs. Justice Cockerill made on 11 October 2018. The Order of Mrs. Justice Cockerill also ordered the Defendant to pay the Plaintiff’s costs of defending the Defendant’s set-aside application, such costs to be assessed if not agreed, and to make an interim payment on account of those costs of £245,315.90 by 4 pm (London time) on 25 October 2018. That the Defendant has failed to make the interim costs payment (or any part of it) as ordered.

Paragraph 12: That the High Court of England and Wales had jurisdiction to entertain the applications of the Plaintiff and that of the Defendant.

Paragraph 16: That the Order of Mr. Justice Cooke made on 18 August 2015 and the interim costs payment ordered by the Order of Mrs. Justice Cockerill made on 11 October 2018 are capable of being enforced in England and Wales.

Paragraph 17: The Plaintiff is desirous of rendering the Order of Mr. Justice Cooke made on 18 August 2015 and the Order of Mrs. Justice Cockerill made on 11 October 2018 executory in Seychelles.” (emphasis added)

There is no averment in the Plaint that the Orders referred to in paragraph 17 of the Plaint are ‘capable of being enforced’ in the Seychelles as they are capable of enforcement in England and Wales. The Plaintiff is only desirous that they be rendered executory in Seychelles.

15. The Law - Reciprocal Enforcement of British Judgments Act (Cap 199) and the Subsidiary Legislation made under section 3(4) of the said Act in relation to Practice and Procedure:

“CHAPTER 199

RECIPROCAL ENFORCEMENT OF BRITISH JUDGMENTS ACT

Short title

1. This Act may be cited as the Reciprocal Enforcement of British Judgments Act.

Definitions

2. In this Act unless otherwise specified

"the court" shall mean the Supreme Court;

The expression "judgment" means any judgment or order given or made by a court in any civil proceedings, whether before or after the passing of this Act, whereby any sum of money is made payable, and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place;

the expression "original court" in relation to any judgment means the court by which the judgment was given;

the expression "judgment creditor" means the person by whom the judgment was obtained, and includes the successors and assigns of that person;

the expression "judgment debtor" means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable in the place where it was given.

Registration of judgment obtained in the United Kingdom

3. (1) Where a judgment has been obtained in the High Court of England or of Northern Ireland or in the Court of Session in Scotland, the judgment creditor may apply to the court at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it considers it just and convenient that the judgment should be enforced in Seychelles, and subject to the provisions of this section, order the judgment to be registered accordingly.

2) No judgment shall be ordered to be registered under this section if

(a) original court acted without jurisdiction; or

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of the original court; or

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court; or

(d) the judgment was obtained by fraud; or

(e) the judgment debtor satisfies the court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the court.

Registered judgment to be of same effect as though obtained in Seychelles*

(3) Where a judgment is registered under this section

(a) the judgment shall, as from the date of registration be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered up on the date of registration in the court;

(b) the court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this section;

(c) the reasonable costs of and incidental to the registration of the judgment (including the costs of obtaining a certified copy thereof from the original court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.

Rules of court to provide for procedure*

(4) The Chief Justice shall have power to make rules of court to provide

(a) for service on the judgment debtor of notice of the intention to register a judgment under this section; and

(b) for enabling the court on an application by the judgment debtor to set aside the registration of a judgment under this section on such terms as the court thinks fit; and

(c) for suspending the execution of a judgment registered under this section until the expiration of the period during which the judgment debtor may apply to have the registration set aside; and

(d) for regulating practice and procedure (including scales of fees and evidence) where the Chief Justice shall consider the same as necessary in respect of proceedings under this Act.

Plaintiff’s costs when recoverable*

(5) In any action brought before the court on any judgment which might be ordered to be registered under this section the plaintiff shall not be entitled to recover any costs of the action unless an application to register the judgment under this section has previously been refused, or unless the court otherwise orders.

Note: The Act as gazetted contains headings for subsections (3), (4) and (5) of section 3, which have been reproduced here for ease of reference.

Certified copy of judgment to be granted

4. Where a judgment has been obtained in Seychelles against any person, the court shall, on an application made by the judgment creditor and on proof that the judgment debtor is resident in the United Kingdom, issue to the judgment creditor a certified copy of the judgment.

Extension of Act

5. (1)Where the President is satisfied that reciprocal provisions have been made by the legislature of any part of Her Majesty's dominions outside the United Kingdom for the enforcement within that part of Her Majesty's dominions of judgments obtained in the Supreme Court, the President may by proclamation declare that this Act shall extend to judgments obtained in a superior court in that part of Her Majesty's dominions in the like manner as it extends to judgments obtained in a superior court in the United Kingdom, and on the issue of any such proclamation this Act shall extend accordingly.

(2) For the purposes of this section the expression "part of Her Majesty's dominions outside the United Kingdom" shall be deemed to include any territory which is under Her Majesty's protection or in respect of which a trusteeship agreement on behalf of the United Nations has been accepted by Her Majesty.

(3) A proclamation issued under this section may be varied or revoked by a subsequent proclamation.”

CHAPTER 199

RECIPROCAL ENFORCEMENT OF BRITISH JUDGMENTS ACT

SUBSIDIARY LEGISLATION: SECTION 3(4): PRACTICE AND PROCEDURE RULES

GN 27/1923

Application for registration of judgment

1. Any application under section 3(1) of the Act, for leave to have a judgment obtained in the High Court of England or of Ireland, or in the Court of Sessions in Scotland or in a Superior Court in any part of Her Majesty's Dominions outside the United Kingdom to which the said Act applies, registered in the Supreme Court shall be made ex parte by way of a petition to a Judge in chambers.

Petition with affidavit

2. The petition shall be supported by an affidavit of the facts exhibiting the judgment or a verified or certified or otherwise duly authenticated copy thereof and stating to the best of the information and belief of the deponent the amount remaining due under the judgment and that the judgment creditor is entitled to enforce the judgment, and that the judgment does not fall within any of the cases in which under section 3(2) of the Act a judgment cannot properly be ordered to be registered. The affidavit must also, so far as the deponent can, give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor respectively.

Judge may authorise plaint

3. On receipt of the petition and affidavit the Registrar of the Supreme Court shall submit the same to a Judge who upon being satisfied that the petition is bona fide shall authorise the filing of a plaint in the Supreme Court in terms of the petition and of the judgment sought to be registered; and the Judge shall order the Registrar to enter the said plaint when filed in the register of civil and commercial suits and to issue a summons to the judgment debtor calling upon him to appear in the Supreme Court at a date and time therein stated to answer to the said plaint. Thereafter the procedure and practice to be followed by the parties shall be such as is provided by the Seychelles Code of Civil Procedure.

Judge’s order

4. If after the hearing the court is satisfied that the case comes within one of the cases in which under section 3(2) of the said Act no judgment can be ordered to be registered or that is not just or convenient that the judgment should be enforced in Seychelles or for other sufficient reasons the court shall make an order accordingly in favour of the judgment debtor. Otherwise the court shall make an order in favour of the judgment creditor in terms of the original judgment or subject to such modifications as the court shall consider just and expedient having regard to the facts disclosed from the pleadings and at the hearing of the matter.

Final order

5. The final order of the court shall have the same force and effect as a judgment of the Supreme Court and shall be entered by the Registrar in the register of civil and commercial suits, against the original entry of the plaint.

Execution

6. Execution shall not issue until after the final order of the court in favour of the judgment creditor has been made and registered as provided by rules 4 and 5 above. But provisional seizure and attachment may be issued at any time after the plaint has been entered in accordance with the provisions of sections 280 and 287 of the Seychelles Code of Civil Procedure.

Application for certified copy of judgment

7. Any application under section 4 of the Act for a certified copy of a judgment obtained in the Supreme Court shall be made ex parte to the Registrar of the Supreme Court on an affidavit made by the judgment creditor, or his agent or attorney and showing that the judgment debtor is resident in England or Ireland or Scotland or in some (stating what) part of Her Majesty's Dominions to which the Act extends and stating to the best of his information and belief the title, trade, business or occupation of the judgment creditor and judgment debtor respectively, and their respective usual or last known places of abode or residence.

Form of certified copy

8. The certified copy of the judgment shall be an office copy, and shall be sealed with the seal of the Supreme Court and shall be certified by the Registrar as follows-

"I certify that the above copy judgment is a true copy of a judgment obtained in the Supreme Court of Seychelles and this copy is issued in accordance with section 4 of the Reciprocal Enforcement of British Judgments Act."

Fees

9. The fees on any proceedings or matter under the Act and under these rules shall be the same as those payable under the several tariffs of fees of the Supreme Court in force for the time being or by analogy to such tariffs.

SECTION 5(1)

The provisions of the Act have been extended to the following territories

Territory	Authority
Tanganyika Territory	Proc. 3 of 1924
Nyasaland Protectorate	Proc. 5 of 1924
British India	Proc. 6 of 1924
Mauritius	Proc. 7 of 1924
Uganda Protectorate	Proc. 8 of 1924
New South Wales	Proc. 6 of 1925
Commonwealth of Australia	Proc. 16 of 1929

16. The REBJA necessarily applies, as its title states for the enforcement of British, judgments, in the Supreme Court of Seychelles (section 3 of REBJA) and judgments of the Seychelles Supreme Court in the United Kingdom (section 4 of REBJA). The Act also applies to judgments obtained in a superior court in those territories to which the provisions of the Act have been extended under section 5(1) of the Act. That is where the President is satisfied that reciprocal provisions had been made for the enforcement of judgments obtained in the Supreme Court of Seychelles in the said territories. The basis for enforcement as seen from the provisions of the Act is one of reciprocity. There is no reference to French Judgments or orders or French Arbitral Awards; or Judgments, orders or awards from any other country in the Act. There is nothing in the law to indicate that judgments of the Supreme Court of Seychelles can be enforced in France or any other country or that French judgments or judgments of any other country can be enforced in the Seychelles. REBJA speaks of only two courts, namely the original court that renders the judgment and the court in which the judgment is sought to be registered and enforced, that could be in the UK, Seychelles or Her Majesty’s dominions. This becomes clear from the reference to ‘original court’ in section 3(2)(a)(b) and (c). According to REBJA the expression “original court” in relation to any judgment means the court by which the judgment was given. There is no reference to a second or subsequent court.

16. Maxi Scherer, in his article on ‘Effects of Foreign Judgments Relating to International Arbitral Awards’ Journal of International Dispute Settlement, Vol 4, No.3 (2013) pp 287-628 states at p 608 states:

As regards ‘judgments upon judgments’, it is commonly accepted that it is only the original judgment, and not the ancillary ‘judgment upon judgment’, that can be recognized or enforced elsewhere under foreign judgment principles. This idea has sometimes been described in civil-law jurisdictions with the French adage ‘exequatur sur exequatur ne vaut’. There is no doubt that the same principle applies in common-law jurisdictions. The learned Trial Judge appears to have been troubled by this when she states at paragraph 95 of the judgment: “This Court agrees that the Cooke and Cockerill Orders were made without hearing the merits of the dispute between the parties. Consequently, the Orders are in the nature of an exequatur and the maxim ‘exequatur sur exequatur ne vant’ appears to present difficulties in registering them internationally.” As Lord Collins has noted, ‘it is generally understood that a foreign judgment which recognises the judgment of a third country does not become a judgment for the purposes of recognition and enforcement in England’. Similarly, concerning award judgments, some authorities state that award judgments recognizing or enforcing a foreign award have necessarily or per se only a territorial scope and that they are incapable of producing extra-territorial effects, ie effects outside the country in which they were rendered. According to this view, foreign award judgments ‘do not produce international effects because they concern a specific sovereign State on the territory of which they produce effects’.

16. There must be a judgment to be enforced if REBJA is to apply. There is a difference between a ‘judgment’ or ‘award’ rendered after a trial or proceedings held between parties to a suit and merely making of an order to ‘enforce’ an arbitration award. A judgment according to Black’s Law Dictionary is “the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and sub- mitted to its determination.” It is clear that the 18 August 2015 Order referred to at paragraph 11 above certainly does not meet the said requirement as there is nothing to indicate that it was a determination litigated upon the respective rights and claims of the parties to an action or suit. It only amounted to an enforcement of the arbitration award dated 14 November 2014 in France, pursuant to section 101 of the Arbitration Act 1996 of UK. It is clear from the 18 August 2015 Order that there has been no consideration of the merits of the arbitration proceedings, and it was merely an enforcement order. The High Court had made its Order four days from the date of the application. It is also clear from Justice Cockerill’s Order of 11 October 2018, referred to at paragraph 11 above, that there had been no examination of the merits of the Arbitral Award but only an examination as to the procedural correctness of that award. The English Court had merely enforced the French Arbitration award because England and France are parties to the New York Convention.

16. There should be, for REBJA to apply, a judgment or order given or made by a court in civil proceedings in the High Court of England or of Northern Ireland or in the Court of session in Scotland or an award made in proceedings on an arbitration in England or Northern Ireland or Scotland which is enforceable in the High Court of England or of Northern Ireland or in the Court of session in Scotland. This becomes clear from the wording in the definition of judgment in section 2 of REBJA read with the first line of section 3(1) of REBJA referred to at paragraph 15 above. Section 2 states namely “…and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place.” The ‘place’ in my view necessarily means a place in UK. The first line of section 3 states: “Where a judgment has been obtained in the High Court of England or of Northern Ireland or in the Court of Session in Scotland…” It is my view that whether it is a judgment, order or arbitration award that is sought to be enforced under REBJA, it should be one solely given or made in England or Northern Ireland or in Scotland or as stated below in any part of Her Majesty's dominions outside the United Kingdom. In other words, it should be a UK judgment, UK order or a UK arbitration award; or a judgment, order or an arbitration award in any part of Her Majesty's dominions outside the United Kingdom, where the President has by proclamation declared that REBJA shall extend; and not of any other country. This becomes clear when you read section 5 of REBJA referred to at paragraph 15 above, which makes provision for the extension of the application of REBJA outside the UK and that too where there is reciprocity. For ease of convenience section 5 (1)(2) is repeated herein:

“Extension of Act

5. (1)Where the President is satisfied that reciprocal provisions have been made by the legislature of any part of Her Majesty's dominions outside the United Kingdom for the enforcement within that part of Her Majesty's dominions of judgments obtained in the Supreme Court, the President may by proclamation declare that this Act shall extend to judgments obtained in a superior court in that part of Her Majesty's dominions in the like manner as it extends to judgments obtained in a superior court in the United Kingdom, and on the issue of any such proclamation this Act shall extend accordingly.

(2) For the purposes of this section the expression "part of Her Majesty's dominions outside the United Kingdom" shall be deemed to include any territory which is under Her Majesty's protection or in respect of which a trusteeship agreement on behalf of the United Nations has been accepted by Her Majesty.

16. This is essentially a question pertaining to the jurisdiction of the court. It is my view that the Supreme Court of Seychelles had no jurisdiction to entertain the Petition or the Plaint since it was not a wholly British judgment that was sought to be enforced under REBJA. The Appellant had not been a party in relation to the proceedings pertaining to the 18 August 2015 Order according to the said Order, nor does the Plaint state that. The fact that the Appellant had sought to set-aside the August 2015 Order which was capable of enforcement in UK cannot be said to be the Appellant’s acceptance of the August 2015 Order or Justice Cockerill’s Order of 11 October 2018 as being capable of enforcement in the Seychelles. Whether the said Orders are capable of being enforced in the Seychelles can only be determined in accordance with the Seychelles law, namely the provisions of REBJA. Parties to litigation cannot give jurisdiction to a Court which it does not have. The Appellant would have participated in the said proceedings to protect its interests in the UK.

16. Rule 1 of the Practice and Procedure Rules referred to at paragraph 15 above which deals with application for registration of judgments makes this further clear by making reference only to “a judgment obtained in the High Court of England or of Ireland, or in the Court of Sessions in Scotland or in a Superior Court in any part of Her Majesty's Dominions outside the United Kingdom to which the said Act applies…” as that could be registered in the Supreme Court of Seychelles. The Act does not speak of enforcement of an award in proceedings on an arbitration in France or any other country that has been garbed in a judgment given by the High Court of England or of Northern Ireland or in the Court of Session in Scotland and sought to be enforced as a British judgment in the Seychelles. If it is to be interpreted otherwise an arbitration award made in any part of the world that could be enforced in the UK, will also be sought to be enforced in Seychelles being garbed with a UK judgment and this would be contrary to REBJA. UK laws for enforcement of foreign judgments and Seychelles REBJA for enforcement of British judgments are different. Laws of the UK in relation to enforcement of foreign judgments cannot and should not have application in the Seychelles as we are a Sovereign State. The REBJA does not provide for this and I do not think that the Legislature ever intended this. This would lead to uncertainty and Legislatures do not legislate in that way. Also, as a matter of sovereignty, it is for the Seychelles Government to determine whether a French arbitration award should be enforced here and not for a British Court to determine the effect it should give to a French judgment or a French Arbitration Award that is sought to be enforced in the Seychelles. If not, it would mean that ‘one is not the master in one’s own home anymore and rather is ‘at the mercy’ of another country’s determination. It was held by the Supreme Court of Germany in BGH, [2009] Schields VZ 285 that “the question whether enforcement in Germany is possible is under principles of public international law, to be decided only by German courts.” At paragraph 16 of the Plaint referred to at paragraph 14 above there is an averment that the orders of 18 August 2015 and 11 October are capable of being enforced in England and Wales but there is no specific averment in the Plaint that such orders are capable of being enforced in the Seychelles.

16. As seen from paragraphs 13 (g) and (h) above the Respondent having failed in its attempt to have the ‘Paris Arbitration award’ enforced under section 4 of the Courts Act of Seychelles and Articles 146 to 150 of the Commercial Code of Seychelles in view of the Seychelles Court of Appeal judgment of 13 December 2017 is now seeking to have the same arbitration award clothed under two orders and a judgment from the UK courts to be enforced under REBJA. This in my view leads to a duplication of the causes of action. This parallel entitlement approach which allows the Respondent to seek enforcement of both the Paris Arbitration Award and the British Award Judgments in subsequent actions can be viewed as a judicial harassment of the Appellant. Supported by the large majority of commentators, the Bundesgerichtshof, Supreme Court of Germany, in 2009, departing from its previous line of case law that had allowed a parallel entitlement approach, explained that a parallel entitlement approach was not compatible with the legitimate interests of the award debtor, noting that the protection of the debtor commands that he/she is not confronted with more than one enforcement proceeding in one and the same forum. According to Maxi Scherer, in his article on ‘Effects of Foreign Judgments Relating to International Arbitral Awards’ Journal of International Dispute Settlement, Vol 4, No.3 (2013) pp 287-628 states at p 612 “There is no reason why the award creditor should be allowed to get two bites at the apple in the same forum.” This is similar to article 1370 (2) of the Civil Code of Seychelles Act which states: “When a person has a cause of action which may be founded either in contract or in delict, he may elect which cause of action to pursue… A plaintiff shall not be allowed to pursue both causes of action consecutively.”

16. The Appellant in answer to the question 1 relating to clarification 2 referred to at paragraph 9 above submits that ex-parte application was out of time and the Supreme Court should not have granted leave since there was no application for an extension of time by the Respondent. The Respondent disagrees with this view. REBJA sets out a specific time limit for the Judgment Creditor to apply to the Supreme Court of Seychelles to have the judgment registered in the Supreme Court of Seychelles before it can be sought to be enforced, namely ‘12 months after the date of the judgment, or such longer period as may be allowed by the court’. It is only if the Judgment Creditor comes for registration within the said time limit or only if the Court gives an extension of time, that the Supreme Court is vested with the jurisdiction to entertain the application for registration. This provision of REBJA cannot be ignored or overridden by anyone or authority and is a sine qua non before a registration could be ordered by the Supreme Court. Certainly the arbitration award dated 14 November 2014; made enforceable by the Order of 18 August 2015 of the High Court of Justice, Queens Bench Division, Commercial Court; which was sought to be registered in the Supreme Court; along with the Order of Mrs. Justice Cockerill dated 11 October 2018, refusing to set-aside the Order of Justice Cooke; by making an ex-parte Petition on 16 November 2018 and the filing of a Plaint on 31 January 2019 by the Respondent falls completely outside the period specified in section 3(1) of REBJA for registration. The Respondent had not moved the Supreme Court seeking an extension of time. Unfortunately, this matter had been overlooked by the Respondent, the Appellant and the Trial Court itself and cannot be ignored by this Court in view of section 3(2)(f) of REBJA. I am of the view that Mrs. Justice Cockerill’s Order of 11 October 2018 could not be said to have kept alive the Order of 18 August 2015 which had for purposes of registration under REBJA run its time. Further Mrs. Justice Cockerill’s Orders were that (1) the set aside application of the Appellant is dismissed, (2) that the Appellant’s Cross-examination application is dismissed (3) the Appellant shall pay the Respondent’s costs of the set aside application and the cross-examination application and that (4) the Appellant shall make an interim payment on account of the costs awarded. It is my view that the refusal to set aside the Order of 18 August 2015 does not automatically equals confirmation of the award dated 14 November 2014. It was incumbent in my view for the Respondent to have moved the Supreme Court of Seychelles for the registration of the Order of 18 August 2015 within the time specified in REBJA, namely on or before 18 August 2016, rather than wait for the outcome of the challenges the Appellant had made to the award in France and in in respect of the application of the Respondent for the enforcement of the award in case number CC 33 of 2015 in Seychelles. If application for registration had been made by the Respondent on time, it was then left to the Supreme Court of Seychelles to defer if necessary, the registration of the 18 August 2015 Order, provided it considered it valid, until such time the other challenges to it were over. This is like moving for execution of a judgment pending appeal and the Supreme Court at its discretion granting a Stay of execution of the judgment if necessary, to the party that has appealed the judgment pending appeal. According to section 3(2)(e) of REBJA the judgment debtor may “satisfy the Court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment” and move for a deferral of registration of a judgment. This makes it clear that it is only the Judgment Debtor who is entitled under the law to move for a deferral of registration of a judgment and not the Judgment Creditor.

16. The Respondent has failed to plead and prove that “As a consequence of Vijay issuing the Set-Aside Application, as a matter of English law EEEL was unable to take any steps to enforce the Cooke Order pending the final determination of the Set-Aside Application” as averred at paragraph 2 of the Affidavit of Daniel Terrence Burbeary dated 15 November 2018. There is no reference to what the English law on the matter is and where it can be found. At paragraph 18/84 of the Supreme Court Practice 1979 it is stated that: “Where foreign law is pleaded in support of, or as a defence to, an action, certain particulars should be given. Foreign law must be adequately pleaded…” It was held by this Court in the case of La Serenissima V Boldrini [2000-2001] p 225 at p 234-235 that “The judge should have applied the established principle of the law of Seychelles that foreign law must be pleaded and proved by evidence and that unless there is proof to the contrary, foreign law is presumed to be the same as the law of the country concerned (see Green v Green (1973) SLR 295 at p 300 and Privatabaken Aktieselshab v Bantlee (1978) SLR 226 at p 239. The principles which guide courts in this jurisdiction, in this regard, are the same as in England, a clear statement of which is contained in Halsbury’s laws of England (4^th ed, vol 8 (1) para 1093, thus – Subject to certain exceptions, foreign law is a question of fact which must be especially pleaded by the party relying upon it, and must be proved to the court. The English court cannot generally take judicial notice of foreign law, and it presumes that this is the same as English law unless the contrary is proved. Thus, the onus of proof of foreign law lies on the party relying on it…The English court will not, in general, make its own researches into foreign law. Foreign law must be proved by properly qualified witnesses.” In the case of Intelvision Network Limited v Multichoice Africa Limited Civil Appeal SCA 31/2014 this Court citing Pillay v Pillay (1973) SLR 307, Betisma v Dingjan (No 1) (1974) SLR 292 and La Serenissima V Boldrini confirmed that foreign law must be proved. It was stated in La Serenissima V Boldrini that in the absence of proof of foreign law the law of Seychelles applies. I agree with the submission of the Appellant on this point, which was in relation to question 5 under clarification 2 where he answers the question as “Yes, indubitably” and goes on to submit “The statement of Mr. Burbeary could only underline that enforcement in the UK was not possible until the set aside application filed by the Appellant was determined. It could not have extended that opinion to Seychelles, since Mr. Burbeary did not purport to be an expert on Seychelles law. As to whether the set aside application in the UK delayed the prescriptive period for the bringing of the application in Seychelles, is a matter for Seychelles, and not English law. The application first instituted under FJREA was within time as the period for such action is 6 years, but as soon as it was amended to bring it under REBJA, it fell outside the 12-month period, and was stillborn”. Mr. Burbeary does not claim in his affidavit to be an expert in UK law but merely states that he is a solicitor qualified and admitted to practice in England and Wales and a member of the Law Society of England and Wales and a partner and member of a law firm CYK.

16. In answer to question 6, both the Appellant and Respondent had submitted that the 18 August 2015 Order was kept alive by the set aside proceedings. However, the Appellant has submitted that “the set aside proceedings were limited to matters raised by the Appellant and did not revisit the 2015 Order. In particular, the 2018 Order did not give judgment in terms of the 2015 Order, but merely dismissed the set aside application and the application to cross examine witnesses, and made costs orders. It did not include the 2015 Order, which was separate and independent.” I would have agreed with both the Appellant’s and Respondent’s submission that had the original copy of the 18 August 2015 Order was produced at the trial, it could be said that the October 2018 Order kept the 18 August 2015 Order alive; in view of the provisions of section 230 of the Seychelles Code of Civil Procedure and in view of what is stated at paragraph 4 of the 18 August 2015 Order. The Respondent should however have sought an extension of time from the Supreme Court under section 3(1) of REBJA on the basis of what had been stated at paragraph 4 of the 18 August 2015 Order. A British Court cannot give an extension of time to the Judgment Creditor under section 3(1) of REBJA. I agree with the Appellant’s submissions on the effect of the 2018 Order as referred to above.

16. Both the Appellant’s Counsel and the Respondent’s Counsel have argued in their Responses to Further Clarifications sought by the President of the Court of Appeal, that there is no requirement per se in Rule 3 of the Practice and Procedure Rules for the original orders and judgment to be filed. At 2.5.13, of the Respondent’s, Response to Further Clarifications sought by the President of the Court of Appeal, the Respondent’s Counsel has admitted: “It is clear that the original order was not produced”. In making this statement Counsel does not give any reasons for the non-production of the original Orders and Judgment. It is my view that the original Judgment should be produced by the Judgment Creditor when making an application under section 3(1) of REBJA in accordance with rule 3 of the Practice and Procedure Rules made under section 3(4) of REBJA. The said Rules make a distinction between what needs to be produced when making an ex-parte Petition to seek leave to file a Plaint and what needs to be produced when filing the Plaint. Rule 2 of the Practice and Procedure Rules which applies to the leave stage, states that “The petition shall be supported by an affidavit of the facts exhibiting the judgment or a verified or certified or otherwise duly authenticated copy thereof”. Rule 3 of the Practice and Procedure Rules states: “On receipt of the petition and affidavit the Registrar of the Supreme Court shall submit the same to a Judge who upon being satisfied that the petition is bona fide shall authorize the filing of a plaint in the Supreme Court in terms of the petition and of the judgment sought to be registered…” Rule 3 makes no mention of a verified or certified or otherwise duly authenticated copy. After all it is to be noted that once the judgment is registered it has the same force and effect as a judgment of the Supreme Court and execution can issue and in my view, for that reason, it is a must to produce the original judgment. This is an instance where the maxim ‘Expressio Unius Est Exclusio Alterius’ applies, namely the express mention of one thig implies the exclusion of another. I am confirmed in my view that the original Judgment should be produced by the Judgment Creditor when making an application under section 3(1) of REBJA in view of the wording in rule 4 of the Practice and Procedure Rules which states: “the court shall make an order in favour of the judgment creditor in terms of the original judgment…” It is my view that rule 4 of the Practice and Procedure Rules made under section 3(4) of REBJA overrides section 28(2) of the Evidence Act in this instance on the basis of the maxim ‘Generalia Specialibus Non Derogant’ since there is no express terms to the REBJA in section 28(2) nor is there an inconsistency between rules 3 and 4 of the Practice and Procedure Rules of REBJA and the Evidence Act. REBJA in my view is a specific and particular law pertaining to reciprocal enforcement of British judgments. Undoubtedly at the leave stage, which is the threshold stage the original judgment itself can be produced if available but even a verified or certified or otherwise duly authenticated copy thereof suffices. But with the Plaint the original judgment has necessarily got to be produced. It is discretionary on the part of the Supreme Court to order the judgment to be registered “if in all the circumstances of the case it considers it just and convenient that the judgment should be enforced in Seychelles”. Such discretion must be exercised judiciously and cannot ignore the specific provisions of the REBJA law. One of the important requirements the Court needs to be satisfied at the trial stage, in view of the above provision is to ensure that the original judgment is produced. This is because the Supreme Court cannot be expected to order execution on the basis of a document which is claimed to be that of a copy of a British judgment which has not been even properly and validly authenticated.

16. The Order of 18 August 2015 of the High Court filed by the Respondent is not the original Order and only a photo copy with an indistinct seal of the Court and does not bear the name of the judge who made the Order, save for the indistinct initials which appears to look like ‘OC or JC’. The name of Cooke J does not appear anywhere in the Order of 18 August 2015. It is only in Mrs. Justice Cockerill’s Order of 11 October 2018 that the name of Mr. Justice Cooke J appears in relation to the Order of 18 August 2015. There is nothing in the certificate issued under section 10(1)(b) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, found in the Court of Appeal brief at E1-E2, F1-F2, H19-H20 and H23-24 which are one and the same document; or the Supreme Court records, to state that it certifies to the authenticity of the copies of the judgments of Justice Cooke and Justice Cockerill produced before the Supreme Court. It only certifies to the to the various steps the Respondent had taken since the making of the Award, the actions of the Appellant in response to them and to the amounts the Appellant has been ordered to pay to the Respondent under the Orders of Justice Cooke and Justice Cockerill “as appears from the office copy of the judgment sealed of the Senior Courts to which this certificate is annexed”. This clearly shows that there is a judgment of the Senior Court, which the Respondent has not filed in the Supreme Court.

16. I am surprised that the Supreme Court had thought it fit to register the said Order without looking into its authenticity. A judgment according to Black’s Law Dictionary is “the official and authentic decision of a court of justice…” Having examined the Order of 18 August 2015 that had been submitted to Court by the Respondent and filed of record and as exhibited in the Supreme Court Record, I am not inclined to place any reliance on that. I am of the view that the fact that the Appellant had not objected to the document containing the Order of 18 August 2015 does not amount to the Appellant having acquiesced to its validity. A party to litigation cannot be said to be estopped by acquiescence when it is the Court that has made the mistake and when the obligation was on the part of the Respondent and the Court to ensure compliance with REBJA.

16. I also agree with the submission of the Appellant that there has been non-compliance with section 74 of the Seychelles Code of Civil Procedure as the Respondent had failed to annex to the plaint the two orders and judgment on which the suit was based upon. As correctly stated by the Appellant the said orders and judgment had to be proved at the trial stage and not at the leave stage. Section 74 reads as follows:

“If the plaintiff sues upon a document other than a document transcribed in the Mortgage Office of Seychelles, he shall annex a copy thereof to his plaint. If he rely on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall annex a list thereof to his plaint and shall state where the same may be seen a reasonable time before the hearing.”

16. At the leave stage, namely when making an application ex-parte by way of petition to a Judge in chambers seeking authorization to filing a plaint it is possible as stated earlier, to file “a verified or certified or otherwise duly authenticated copy of the judgment” where the original judgment is not available. The verification, certification or authentication however should be in accordance with section 28 of the Evidence Act which reads as follows:

“28(2) When any public document executed in the territory of a Convention State is produced before any court in Seychelles purporting to bear on it or on an allonge a certificate issued by the Competent Authority of the Convention State in which the document is executed, such document shall be admitted in evidence without proof of the seal or signature of the person executing it and the court shall presume that such seal or signature is genuine and the person signing it held at the time it was signed the official character which the person claims and the document shall be admissible for the same purpose for which it would be admissible in accordance with the law of evidence for the time being.

(3) In this section -

“Competent Authority” means a person designated by a Convention State as a Competent Authority to issue the certificate in accordance with Article 4 of the Convention and referred to in subsection (2);

“Convention” means the Convention Abolishing the Requirements of Legalisation for Foreign Public Documents signed at the Hague on 5th October, 1961;

“public document” means -

(a) document emanating from an authority or an official connected with the courts or tribunals of a Convention State, including those emanating from a public prosecutor, a clerk of a court or a process server;

(b) administrative documents;

(c) notarial acts;

(d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificate recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures;

but does not include

(e) documents executed by diplomatic or consular agents; and

(f) administrative documents dealing directly with commercial or customs operations.” (emphasis added)

This makes clear that it is only a Competent Authority of UK who can certify a judgment or order of the UK courts. The copy of the Order 18 August 2015 has the following certification on the first page of it: “Certified True Copy of the Original. Dated this 13^th day of November 2018”. It bears on it the seal Lucie A. Pool, Notary Public, Mahe Seychelles” and a signature purporting to be of “Ms. L.A. Pool, Notary Public” There is nothing to indicate that Ms. L.A.Pool is a competent authority for the purposes of section 28(2) of the Evidence Act. The Court takes judicial notice of the fact that Ms. Pool is a practicing lawyer in the Seychelles. The copy of the judgment and Order of Mrs. Justice Cockerill has the following certification on the first page: “We certify this to to be a true copy of the original electronic document as made available by the commercial court” Both documents bear the seal ‘Stafford Young Jones, candlewick House, 120 Cannon Street, London EC4N 6AS’ and has been signed by E, Edmonds, Solicitor. According to the Apostille attached to both documents the signature of E. Edmonds has been certified to be his. The Apostilles attached to both documents state that “This Apostille…only confirms the authenticity of the signature, seal or stamp on the attached public document. It does not confirm the authenticity of the underlying document. Apostilles attached to documents that have been photocopied and certified in the UK confirm the signature of the UK official who conducted the certification only. It does not authenticate either the signature on the original document or the contents of the original document in any way.” There is nothing to indicate that E. Edmonds is a competent authority for the purposes of section 28(2) of the Evidence Act.

16. In Privatanken Aktieselskab v Bantele (1978) SLR 226 at 232 Sauzier J, repeating what he had said in Green v Green (1973) SLR 295 said “…if the document sought to be proved be a judgment, decree, order or other judicial proceedings of a foreign court or an affidavit, pleading or other legal document filed or deposited in such court, the authenticated copy to be admissible must purport to be sealed with the seal of the foreign court to which the original document belongs with proof of the seal.” It was held by this Court in the case of La Serenissima V Boldrini [2000-2001] p 225 at pages 231 & 232 that the “…law still remains that if the judgment produced and sought to be proved is a foreign judgment its copy must be authenticated by a certificate issued by a competent authority of the state concerned” despite “s 28(2) of the Evidence Act, the effect of which is to dispense with the need to prove the seal”.

16. Under section 102 of the Arbitration Act 1996 of UK a party seeking the recognition or enforcement of a New York Convention award must produce the duly authenticated original award or a duly certified copy of it. The fact that section 3(3)(c) of REBJA makes provision for the recovery of “reasonable costs of… obtaining a certified copy… from the original court… as if they were sums payable under the judgment” shows that this is also requirement under REBJA. According to section 4 of REBJA when one seeks registration of a judgment of the Supreme Court of Seychelles in the UK the Judgment Creditor has to obtain a certified copy of the judgment. The REBJA sets out the form a certified copy should be in rule 8 of the Practice and Procedure Rules, thus: “The certified copy of the judgment shall be an office copy, and shall be sealed with the seal of the Supreme Court and shall be certified by the Registrar as follows – ‘I certify that the above judgment is a true copy of a judgment obtained in the Supreme Court of Seychelles and this copy is issued in accordance with section 4 of the Reciprocal Enforcement of British Judgments Act”. I do not think that our courts should be willing to settle down to a lesser standard as regards the form a certified copy of a British judgment sought to be registered in the Supreme Court of Seychelles should take. I am therefore of the view that it was incumbent on the part of the Court to check as to the authenticity of the document prior to registering it under section 3(1) of REBJA, since prior to the Supreme Court making its Order for registration of the judgment, it should satisfy itself “that in all the circumstances of the case it considers it just and convenient that the judgment should be enforced in Seychelles.”

16. I am of the view that the proceedings in this case from its very inception, namely from the stage of filing the ex-parte petition seeking leave to file and the granting of leave to file plaint was faulty and irregular. The original petition filed by the Respondent on 16 November 2018 although in the caption stated that it was under REBJA, sought orders to register and render executory the Order of 18 August 2015 and Mrs. Justice Cockerill’s Order of 11 October 2018; under section 4(5) of Foreign Judgments (Reciprocal Enforcement) Act in its prayer. Thereafter the Responded filed an Amended Petition on 04 December 2018 seeking orders to register and render executory the Order of 18 August 2015 and Mrs. Justice Cockerill’s Order of 11 October 2018 under REBJA. Although the caption in both the original petition and the amended petition stated that they were under REBJA, the prayers in each of them were different. I do not agree with the Respondent’s submission that the caption and the prayer must be read with the rest of the pleadings and thus did not convert the 16 November 2018 to a suit of another different character. I am of the view that it is the relief sought in the prayer that determines the nature of the action and not the caption. The amended petition of 04 December 2018 converted the original petition of 16 November 2018 to a suit of another substantially different character and should not have been permitted by Court in view of the provisions of section 146 of the Seychelles Code of Civil Procedure which prohibits amendment of pleadings, so as to convert a suit of one character into a suit of another and substantially different character. Section 146 of the Seychelles Code of Civil Procedure states as follows:

“146. The court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that a plaint shall not be amended so as to convert a suit of one character into a suit of another and substantially different character.”

16. The case of Casamar v Aristotle [25 July 2002] cited by Counsel for the Respondent confirms the position that an amendment will not be granted if it alters the nature of the suit. It is my view that the proviso to section 146 of the Seychelles Code of Civil Procedure applies to both plaints and petitions since some cases are determined on the basis of a plaint and others on the basis of a petition and both types of cases whether originating by plaint or petition are based on pleadings. The proper procedure was to have filed a fresh petition seeking relief under REBJA. I agree with the Appellant’s submission in answer to my 3^rd and 4^th questions under clarification 2 at paragraph 9 above “If the original application was filed seeking relief under FJREA, then an application under REBJA required a fresh pleading and not merely the amendment of an existing one”, because “Under REBJA the burden of proving the conditions in section 3(2) rests with the Plaintiff while the procedure under FJREA is that registration is mechanistic and subject to set-aside proceedings brought by the judgment debtor.” The difficulty in this case for the Respondent arises because the affidavit of D. T. Burbeary was not attached to the amended petition of 04 December 2018 and could not be made use of in any way leaving aside the fact foreign law has not been pleaded in the plaint nor proved.

16. What is stated in the preceding paragraphs show that that the proceedings in this case from its very inception, namely from the stage of filing the ex-parte petition seeking leave to file Plaint and the granting of leave to file plaint; was faulty and irregular as a result of the non-compliance with the various provisions of REBJA and its Practice and Procedure Rules, both individually and cumulatively. The proceedings in this case in my view were void ab initio. It is true that the Appellant up to the stage of my questioner had not raised any objection to the erroneous procedure adopted by the Trial Court. But these are errors of law made by the Trial Court which infringe fundamental principles of sovereignty, public policy and which seriously affect and undermine the fairness, and the public reputation of the manner judicial proceedings are conducted in our courts. I am not willing to enforce in Seychelles, judgments or orders of UK courts or the courts of her dominions unless there has been strict compliance by the Judgment Creditor with the requirements of REBJA. It would be an insult to our Judiciary to accept without question documents that are purported to be from British courts.

16. I therefore have no hesitation in allowing the appeal, reversing the orders made by the Trial Judge and dismissing the Plaint of the Respondent seeking enforcement of the 18 August 2015 Order and the Order of Mrs. Justice Cockerill dated 18 October 2018.

16. I make no order as to costs.

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