Pillay v The Republic and Arumagam ((Criminal Appeal SCA CR 17/2024) [2025] (22 April 2025) (Arising in CO 59 of 2024)) [2025] SCCA 10 (22 April 2025)
Pillay v The Republic and Arumagam ((Criminal Appeal SCA CR 17/2024) [2025] (22 April 2025) (Arising in CO 59 of 2024)) [2025] SCCA 10 (22 April 2025)
IN THE COURT OF APPEAL OF SEYCHELLES
Reportable
[2025] Criminal Appeal SCA CR
17/2024 (22 April 2025)
(Arising in CO 59 of 2024)
In the matter Between
Ramakrishna Pillay Appellant
(rep. by Mr. Basil Hoareau)
And
The Republic 1st Respondent
(rep. by Ms. Luthina Monthy)
Venkadesh Arumagam 2nd Respondent
(rep. by Mr. Joshua Revera)
Neutral Citation: Pillay v The Republic and Arumagam (Criminal Appeal SCA CR 17/2024) [2025] (22 April 2025) (Arising in CO 59 of 2024)
Before: Fernando (PCA), Twomey-Woods, Andre JJA
Summary: Appeal against a decision of the Supreme Court – Appeal against the trial court’s judgment imposing bail conditions requiring payment of a basic salary and food allowance until conclusion of a trial on the merits – Breach of principles of natural justice – Breach of the right to a fair trial – Trial Court’s right, power and authority to impose bail conditions on a third party.
Heard: 7 April 2025
Delivered: 22 April 2025
ORDERS
The Court makes the following Orders:
The appeal is allowed and impugned bail conditions are set aside accordingly.
The matter is remitted to the trial Court for further consideration of the bail conditions in the pending criminal trial as against the second Respondent.
No order is made as to costs.
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
ANDRE, JA
INTRODUCTION
[1] This is an appeal arising from the Notice of Appeal dated 17th December, 2024, filed by Ramakrishna Pillay (Appellant) against the Republic (1st Respondent) and Venkadesh Arumagam (2nd Respondent).
[2] The appeal challenges part of the Supreme Court’s decision delivered on 24th September, 2024 by Judge Dodin, in which the Judge granted conditional bail to the 2nd Respondent and imposed a condition requiring the Appellant, as the employer of the 2nd Respondent, to continue providing him with a basic net salary of SR 8,000 per month and a food allowance of SR 1,000 per month until the conclusion of the trial.
[3] The Appellant as per cited Notice of Appeal appeals against this aspect of the said decision upon the grounds of appeal set out in paragraph 2 of the Notice of Appeal and to be considered in detail below.
[4] The Appellant further seeks the relief set out in paragraph 3 of its Notice of Appeal namely, that this Honourable Court be pleased to quash part of the order of the Supreme Court ordering that the Appellant as the employer of the 2nd Respondent shall continue to provide the 2nd Respondent with a basic net salary of SR 8000 per month and food allowance of SCR 1000 per month until conclusion of the trial of the 2nd Respondent.
GROUNDS OF APPEAL
The Appellant raises three grounds of appeal which state verbatim as follows:
“1. The learned judge erred in law and on the evidence in coming to the finding that the Appellant was the employer of 2nd Respondent, in view that there was no evidence adduced before the court to establish that the Appellant, at the time the order was made, was the employer of the 2nd Respondent.
2. The learned judge erred in law and acted contrary to the principle of natural justice, and in breach of the Appellant's right to a fair hearing, in ordering the Appellant to provide the 2nd Respondent with a basic net salary of SR8000 per month and food allowance in the sum of SR1000 per month until the conclusion of the trial of the 2nd Respondent, in view that the Appellant was not party to the criminal case before the Supreme Court, and the Appellant was not granted the opportunity of being heard prior to the order being made.
3.The learned judge erred in law in making the order- that the Appellant shall continue to provide the 2nd Respondent with a basic net salary of SR8000 per month and food allowance in the sum of SR1000 per month until the conclusion of the trial of the 2nd Respondent, in that the learned judge did not have the right, power and authority to impose such conditions on the Appellant who was not a party to the proceeding as part of the conditions on which the 2nd Respondent was released on bail.”
SUBMISSIONS OF PARTIES
APPELLANT’S WRITTEN SUBMISSIONS
The Appellant, through his Counsel Mr. Hoareau, filed his Heads of Argument on 25th February, 2025. He submitted that the Supreme Court erred in imposing mandatory bail conditions requiring the Appellant to provide financial support to the 2nd Respondent, despite not being a party to the criminal proceedings. He contended that the trial judge wrongly concluded, without any evidential basis, that he was the 2nd Respondent’s employer at the time the order was made. The court relied on statements made from the Bar by the prosecutor and unsworn statements by the 2nd Respondent, both of which were inadmissible and contradicted the particulars of the offense in the charge sheet.
The Appellant further submitted that the trial judge acted contrary to the principles of natural justice by imposing conditions on him without affording him an opportunity to be heard. He emphasized that he was neither charged with an offence nor was he a party in the proceedings, and the court’s decision to place financial obligations on him amounted to a breach of his constitutional right to a fair hearing. He submitted that the principle of audi alteram partem, was disregarded.
The Appellant further submitted that the conditions imposed requiring him to continue paying the 2nd Respondent’s salary and food allowance were unreasonable and beyond the court’s authority under Article 18(7) of the Constitution. He argued that bail conditions should be imposed only on an accused person and must serve the purpose of ensuring their appearance at trial, not commit an offence while on bail, not interfere with witnesses or otherwise obstruct the course of justice, for the person's own protection and the person’s own welfare in case of a minor.
RESPONDENT’S WRITTEN SUBMISSIONS
1ST RESPONDENT’S SUBMISSIONS
[9] The first Respondent being the Republic duly represented by Counsel Ms. Luthina Monthy is not contesting the appeal.
2ND RESPONDENT’S WRITTEN SUBMISSION ON THE MOTION FOR LEAVE TO FILE SKELETON HEADS OUT OF TIME
[10] Firstly, the 2nd Respondent has filed a notice of motion dated 31st March 2025 seeking extension of time for the late filing of his skeleton heads of arguments.
[11] The 2nd Respondent avers in his supporting affidavit sworn on 31st March 2025 attached to the Motion of the same date that his Attorney instructed him that both he and the Attorney for the Appellant were in discussion to reach an agreement with regards to the order of the Supreme Court in CR17 of 2024.
[12] Further, that the 2nd Respondent’s Attorney had proposed to the Appellant’s Attorney that other than the allowance for sustenance, he does not intend to ask of the Appellant for the payment of salaries as ordered by the trial Court.
[13] The 2nd Respondent further avers that he was under the impression that an agreement would be reached outside of court and that the Appeal would be withdrawn.
[14] The 2nd Respondent argues that he was informed by his Attorney and verily believe that he was not served with the skeleton heads of argument of the Appellant and that only during the week of the 10th March 2025, the Registrar of the Court of Appeal, served him with a copy of the Appellant’s heads of argument. As a result, the 2nd Respondent was therefore out of time when to file his skeleton head of arguments.
[15] He therefore avers that he has shown good cause for this Court to exercise its discretion in allowing his filing of his skeleton heads of arguments out of time and that on the principles of natural justice it is necessary for the full and final adjudication of the Appeal.
[16] Further the Respondent avers that he shall be seriously prejudiced should leave for extension of time to file his heads of arguments not be granted.
2ND RESPONDENT’S WRITTEN SUBMISSIONS ON THE MERITS OF THE APPEAL
[17] The 2nd Respondent opposes the appeal filed by the Appellant seeking to quash the bail conditions requiring the Appellant to provide accommodation and financial support. He submits that the conditions were lawfully imposed to ensure the 2nd Respondent's compliance with bail and to uphold the integrity of the trial.
[18] In response to the first ground of appeal, where the Appellant stated that there was “no evidence” to establish an employer-employee relationship, the 2nd Respondent argues that this is incorrect and misleading. He submits that the charges against the 2nd Respondent explicitly state in its Statement of Offence as Stealing by Servant contrary to Section 260 read with Section 266 of the Penal Code and the same is reiterated in the Particulars of Offence that the 2nd Respondent was employed "as a Hardware Engineer at Orion Computers" (pg. 22 of the bundle). Orion Computers is owned by the Appellant, the virtual complainant herein as confirmed by the trial judge's order (para 8-9 of the Order).
[19] The 2nd Respondent further submits that the trial Court reasonably inferred the employment relationship from the particulars of the offence and the 2nd Respondent's dock statements. While the Appellant claims the Prosecutor's assertions were "unsworn," the Court may rely on uncontested factual allegations in bail proceedings, especially where urgency necessitates expedited decisions.
[20] The 2nd Respondent further submits that the Appellant's belated denial of employment contradicts the charges and the Court record. If the Appellant disputes this factual basis, the proper remedy is to adduce evidence in a separate application and not challenge the bail order retroactively.
[21] In response to the second ground of appeal, the 2nd Respondent submits that while the Appellant argues that he was denied a fair hearing, bail proceedings often involve urgent decisions where third-party obligations (e.g., sureties) are imposed without prior notice to prevent flight risks. The Court's primary duty is to balance the Accused's liberty with public interest.
[22] The 2nd Respondent argues that the Appellant, as the 2nd Respondent’s employer, had a direct nexus to the conditions ensuring the Accused's stability during trial. He submits procedural fairness does not require prior notice in exigent circumstances, provided the affected party can seek variation or revocation afterwards. According to the 2nd Respondent, the Appellant has not demonstrated any attempt to challenge the order via interlocutory relief.
[23] The 2nd Respondent further argues that under Article 18(7) of the Constitution, the Court may impose reasonable conditions based on the Accused's circumstances. Ensuring the 2nd Respondent has housing and sustenance helps reduce flight risk (Article 18(7) (c)) and aligns with the Court's constitutional mandate.
[24] In response to the third ground of appeal, the 2nd Respondent differs with the Appellant’s argument that claims the Court lacked jurisdiction to bind a non-party. The 2nd Respondent argues that this misinterprets Section 179 of the Criminal Procedure Code, which grants Courts discretion to impose conditions “for appearance at trial.” The Courts routinely mandate third parties such as sureties to assume responsibilities without prior consent, provided such conditions are reasonable.
[25] The 2nd Respondent submits further that the allowance and accommodation requirements are analogous to sureties, ensuring the 2nd Respondent's compliance with bail. That the conditions are "reasonable" under Article 18(7) because they address the Accused's ability to remain housed and provided with sustenance, thereby reducing incentives to abscond.
[26] The 2nd Respondent argues that the Appellant's reliance on Article 18(7) (d) is misplaced and remanding the 2nd Respondent for “protection” would unjustly punish him without trial. Based on the charges filed against the 2nd Respondent, there are no substantial grounds for the trial Court to remand the 2nd Respondent. That the Court rightly opted for a less restrictive measure by leveraging the Appellant’s existing employment relationship.
[27] The 2nd Respondent further submits that the Courts’ ruling, considers the employer/employee relationship despite the allegations against the 2nd Respondent. That the 2nd Respondent being a foreign national has no place of abode or means to feed himself. Therefore, the Appellant must comply with housing and feeding conditions as part of his legal and contractual obligations to the 2nd Respondent. That the bail conditions were lawful, proportionate, and necessary to secure the 2nd Respondent’s attendance at trial. That the trial Court acted within its discretion under article 18(7) and Section 179.
[28] It is therefore the 2nd Respondent’s submission that the appeal should be partially dismissed.
ANALYSIS
PROCEDURAL IRREGULARITIES IN THE NOTICE OF MOTION (SUPRA)
[29] The Court takes note of a procedural irregularity concerning the late filing of the 2nd Respondent’s heads of argument.
[30] The Appellant’s heads of argument were duly filed on 25th February 2025. In terms of Rule 24(2)(b) of the Seychelles Court of Appeal Rules 2023, the Respondent was required to file five copies of their heads of argument with the Registrar within two weeks of receipt of the Appellant’s heads of argument, and to serve two copies upon the Appellant. However, counsel for the 2nd Respondent admitted during proceedings that he had taken no steps to comply with the rule until contacted by the Court Registrar. As a result, the Respondent’s heads of argument were only filed on 31st March 2025 well outside the stipulated time limit.
[31] This constitutes a clear breach of Rule 24(2)(b). While Rules 11(b) and 24 (2) (j) and 26 of the same Rules grants the President or the Court discretion to condone such delays, the exercise of that discretion must be premised on cogent material justifying the non-compliance hence on good cause shown . As reiterated in Auguste v Singh Construction (SCA 52/2020) (16 December 2022), and following the authority in Aglae v Attorney General (2011) SLR 44 and Ratnam v Cumarasamy and Another [1964] 3 All ER 933, the Court has emphasized that procedural rules are to be obeyed. In Ratnam case, it was held that:
"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some materials on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right of extension of time which would defeat the purpose of the rules which provide a timetable for the conduct of litigation."
[32] This Court has, in a consistent line of authority including Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 and Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 reaffirmed the principle that courts must adopt a strict stance on procedural compliance. Time limits serve not merely to regulate parties but to ensure efficiency, fairness, and cost-effectiveness in the judicial process. Laxity in procedural compliance undermines legal certainty and the effective administration of justice.
[33] In the present case, the Respondent neither applied for an extension of time under Rule 26 nor offered any substantive justification for the default. The failure to proactively comply with the Rules and the reliance on the Registrar to prompt compliance cannot constitute a valid reason for condonation.
[34] Accordingly, in line with established jurisprudence and given the absence of evidence on which to exercise discretion, the Court finds the late filing to be unjustified. While the present appeal is not rendered abandoned as it was filed by the Appellant, the 2nd Respondent's heads of argument are deemed irregularly filed but noting the prejudicial effect of the possible outcome of this appeal on the 2nd Respondent’s status in Seychelles, this Court decided to not hear counsel but take into account the submissions filed for the said purpose.
[35] I wish to reiterate that it is wholly unacceptable for counsel to wait for the Registrar to reach out before fulfilling their procedural obligations. Such conduct reflects a disregard for the clear requirements of the Court of Appeal Rules and undermines the standards of diligence and competence expected of legal practitioners. Counsel’s inaction falls short of the duty to provide effective legal representation and fails to advance the Respondent’s case in any meaningful way. This Court, therefore, finds that Mr. Revera has not properly discharged his professional responsibilities and, in the circumstances, directs that he shall not be entitled to any legal aid fees in respect of this appeal.
ANALYSIS OF THE GROUNDS OF APPEAL
[36] The Court has duly noted the grounds of appeal raised by the Appellant, which the Court will consider/determine under two concise headings as follows:
Breach of Principles of Natural Justice
[37] The principles of natural justice are fundamental to fair decision-making and ensure that every party affected by a judicial or quasi-judicial decision is afforded an opportunity to be heard. The two main pillars of natural justice are the right to be heard (audi alteram partem) and the rule against bias (nemo judex in causa sua). While the latter is not relevant in this matter, the former plays a critical role in this case, where the Appellant contends that he was not afforded an opportunity to present his case before the financial obligations were imposed on him.
[38] The right to fair hearing is a fundamental constitutional guarantee enshrined in Article 19 of the Constitution of Seychelles, which ensures that every person is entitled to a fair and public hearing before an independent and impartial tribunal. Any judicial order that imposes obligations on an individual must be preceded by due process, including an opportunity to present one’s case, respond to allegations and challenge any evidence.
[39] It is undisputed that the Appellant herein was not a party to the criminal case before the Supreme Court and was never granted an opportunity to be heard before the order was made against him. This is evident from the fact that he was not even aware that such an order had been issued until he was informed by a third party, Mahaboob that an order had been made requiring him to pay the 2nd Respondent a basic net salary of SCR 8000 per month and a food allowance of SCR 1000 per month. In an effort to confirm the existence of the order, the Appellant’s attorney had to write to the Supreme Court seeking clarification. It was only upon receiving a reply from the Registrar of the Supreme Court on 3rd December 2024, enclosing a copy of the order, that the Appellant became aware that an order had indeed been entered against him.
[40] The failure to notify the Appellant or afford him an opportunity to be heard before imposing such financial obligations upon him constitutes a blatant violation of the audi alteram partem principle, which is a fundamental tenet of natural justice.
[41] Moreover, the Supreme Court imposed a financial obligation on the Appellant based on an unverified presumption that he was the employer of the 2nd Respondent. The trial judge relied on the assertions made by State Counsel, Ms. Denys, who stated in court that the 2nd Respondent was on a Gainful Occupation Permit (GOP) and that his employer was responsible for his accommodation. The judge then proceeded to impose financial obligations on the Appellant without any supporting evidence.
[42] The relevant exchange was as follows:
Ms. Denys: My Lord, if I may he is here on a work permit on a GOP therefore, his residence is in accordance with his employment contract and his employers have the responsibility to ensure that he has residence.”
…
“Yes what I was saying was given that he is on GOP and his GOP is still ongoing, his employers has a responsibility to give him accommodation. My Lord because if he does not have a fix place of abode then prosecution will need to have another application for him to be kept in custody otherwise we cannot be sure of his attendance to Court and that he may not abscond.
Accused: Okay he choose company accommodation. So he choose company accommodation now.
Court: Okay and your employer is Orion Computers?
Accused: yes
…
Court: Who is the owner of the business?
Ms. Denys: The owner of the business is – Ramakrishna Kanna Samy Pillai
Court:..Are you earning food allowance from the company?
Accused: Company is providing food.
Court: What else do they provide?
Accused: …accommodation too.
Court:...and a salary?
Accused: No salary
…
…
Court: So were you earning anything in your employment?
Accused: From March onwards no payment from company.
[43] It is clear beyond peradventure that the Appellant was not given the chance to verify or challenge the claims regarding his employment relationship with the 2nd Respondent. The court’s decision was based on unverified assertions rather than established facts, and no effort was made to obtain documentary proof of the alleged employment relationship between the Appellant and the 2nd Respondent at the time of the order. This presumption, compounded by the 2nd Respondent’s own statement that he had not been paid since March, should have prompted the court to seek further clarification before imposing such financial obligations on the Appellant.
[44] The 2nd Respondent’s reliance on the charges of "stealing by servant" to conclusively prove an employer-employee relationship is misconceived. A charge or allegation does not by itself constitute evidence. The Court cannot equate the framing of a charge with proof of an underlying fact, especially where that fact is disputed. It was incumbent upon the trial Court to demand more than prosecutorial assertion or dock statements before attributing financial obligations to the Appellant. In the absence of verified documentary evidence or an opportunity for the Appellant to rebut the employment claims, the trial judge’s inference was premature and procedurally unsound.
[45] As articulated in Cable & Wireless Seychelles Limited v Ministry of Broadcasting & Telecommunication & Anor (SCA 24 of 2018) [2020] SCCA 38 (18 December 2020), natural justice ensures that the decision-maker conducts the process with fairness and impartiality. The Court stated as follows:
“…since the Appellant has come to this court complaining of breach of natural justice, more particularly, the audi alteram partem rule, it may be necessary to define the concept of natural justice although in real life cases definitions tend to have limited utility. Essentially the rules of natural justice have two main categories: the first is the rule against bias (memo judex in causa sua) and second is, hear the other side (audi alteram partem) or fair hearing.
Generally speaking the rules of natural justice require that the decision- maker must conduct the decision-making process with fairness. What is fair in a particular case may differ. Lord Steyn in Lloyd v McMahon (1987) AC 625 said that “the rules of natural justice are not engraved on tablets of stone”. Their application depends on the circumstances of each case. And since I cannot express the idea better, I will let Lord Tucker to do so. In the case of Russell v Duke of Norfolk (1949) 1 ALL ER 109, at p.118, he stated the position as follows:
“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”
[46] Similarly, in Satani v Department of Education Western Cape and Others (CA10/15) [2016] ZALAC 131 (13 June 2016), the Labour Appeal Court of South Africa stated as follows:
“The rules of natural justice dictate that parties be afforded a fair and unbiased hearing, which consists of hearing both sides in an impartial manner. This rule finds expression in the audi alteram partem which is concerned with affording parties an opportunity to participate in the decision that will affect them. The participation of parties in proceedings not only improves the quality and rationality of the decision but also enhances the legitimacy of the decision. The audi alteram partem rule implies equal participation of parties during the proceedings. He/she must hear both sides; act impartially and consistently to both parties irrespective of the approach adopted.”
[47] The principles of natural justice dictate that no person should be condemned unheard. Yet, the Appellant was subjected to a legally binding order without being given an opportunity to present his case. The right to a fair hearing demands that individuals are given the opportunity to respond to allegations and challenge evidence before decisions that impact their rights are made. The Appellant was denied this essential right and as a result, the order was made in clear violation of the Appellant’s right to a fair hearing.
Right, power and authority to impose the impugned bail conditions on the Appellant
[48] The law underpinning the release of an accused person on bail is provided in Article 18(7) of the Constitution and Section 101 as read with Section 179 of the Criminal Procedure Code. These provisions establish that a person produced before a court may be released either unconditionally or upon the imposition of reasonable conditions. The fundamental purpose of bail conditions is to secure the accused person’s attendance in court while maintaining a fair balance between their rights and the interests of justice.
[49] The principle that bail conditions must be reasonable is well established in legal jurisprudence. As stated in Archbold Criminal Pleading, Evidence and Practice, 36th Edition, para 202, page 71:
"…The requirements as to bail are merely to secure the attendance of the defendant at the trial" (R v. Rose, 67 L.J. Q.B. 289).
[50] Furthermore, Article 18(7) of the Constitution enshrines that an accused person should be released on reasonable conditions unless certain circumstances justify detention. These circumstances include the seriousness of the offence, the risk of flight, interference with witnesses, obstruction of justice or the need for protective custody.
[51] What then qualifies as reasonable? According to Black’s Law Dictionary, 10th Edition, the term reasonable is defined as:
“1. Fair, proper, or moderate under the circumstances:
2. According to reason; plausible.”
[52] It then follows that any conditions imposed by the court must adhere to this standard of fairness and proportionality.
[53] The 2nd Respondent has submitted that the trial Court was entitled to impose financial obligations on the Appellant under Article 18(7) of the Constitution and Section 179 of the Criminal Procedure Code, drawing analogies to surety arrangements and emphasizing the necessity of such conditions to mitigate flight risk. However, this submission is fundamentally flawed. The jurisprudence on bail recognizes that sureties willingly undertake obligations to support an accused person’s release. In contrast, the Appellant was neither notified nor granted a choice to accept or reject any obligation prior to the order being issued. The imposition of bail conditions on a third party without affording them an opportunity to be heard undermines the audi alteram partem rule.
[54] In granting bail, courts are required to exercise discretion judiciously. In R v. Esparon & Ors (SCA 1 of 2014) [2014] SCCA 19 (14 August 2014), Msoffe, J.A. stated as follows:
“A bail decision is a judicial one and it is at the discretion of the court. However, much as it is a judicial decision, in its nature and scope, it is also an administrative decision in the sense that one of its main purposes is to ensure that the accused person will not run away from, or rather escape, the jurisdiction. It is intended to ensure that he/she will always appear in court as when required to do so.”
[55] In the present appeal, the Supreme Court imposed bail conditions that required the complainant (the Appellant) to continue providing the accused (the 2nd Respondent) with a basic salary and food allowance for the duration of the trial. These conditions effectively placed financial and contractual obligations on the complainant despite the absence of any justifiable reason permitting such an imposition, no evidence confirming an ongoing employment relationship between the complainant and the accused at the time of the order and the complainant not being heard on their ability or willingness to fulfill such conditions.
[56] The Trial Court’s failure to ascertain whether an employer-employee relationship still existed was a critical oversight. Imposing financial obligations on the complainant without legal justification amounts to an undue burden, extending beyond the statutory purpose of bail.
[57] Judicial discretion, while broad, is not absolute. Courts must exercise discretion within legal parameters and ensure that bail conditions are not punitive, coercive or excessively burdensome on any party, let alone a Complainant who was not part of the criminal proceedings. As held in Morel & Anor v. Dawn Dew Farm (Pty) Ltd (SCA 8 of 2012) [2014] SCCA 23 (14 August 2014), appellate courts will not interfere with a lower court’s discretion unless there was an error of law, a failure to properly appreciate the facts, or the decision was so unreasonable that it was erroneous. This principle was similarly upheld in Verlaque v. Government of Seychelles (SCA 8/2000), where it was emphasized that discretion must be exercised judicially and not arbitrarily.
[58] In the present case, the Supreme Court exceeded its jurisdiction by directing the Complainant to provide financial support to the Accused, a condition neither legally justified nor contemplated within the statutory framework governing bail. Bail conditions must be necessary, lawful and proportionate. As already stated earlier, they ought not to be punitive, coercive, or excessively burdensome on any of the parties (even those not part of the criminal proceedings).
[59] The impugned conditions in this case imposed obligations that were both unreasonable and unsupported by law.
[60] From the foregoing, the impugned bail conditions imposed by the Supreme Court are set aside as an improper exercise of judicial discretion. Bail is intended to secure the accused’s presence at trial and not to unfairly penalize others.
[61] As obiter, I consider it prudent to address the issue raised in the course of these proceedings as to whether the parties can enter into a judgment by consent to nullify a court order in the context of a criminal appeal.
[62] The legal framework to address such an issue is as follows:
Section 131 of the Seychelles Code of Civil Procedure CAP 213 provides for judgment by consent in civil matters. This section allows the parties in a civil dispute to reach an agreement on terms of settlement and file it in court for a judgment in accordance with their agreement, unless the court finds cause not to do so.
Section 22 of the Court of Appeal of Seychelles Rules 2023 provides for withdrawal of appeals.
[63] Now, in criminal proceedings, the administration of justice transcends the interests of the parties involved, serving the broader public interest. This foundational principle distinguishes criminal law from civil law, where consent judgments are a common mechanism for dispute resolution.
[64] While Section 131 of the Seychelles Code of Civil Procedure (Cap 213) gives the parties to a civil dispute the autonomy to settle disputes through consent judgments, in criminal appeals, the criminal justice system operates under a different paradigm. Criminal cases involve the enforcement of laws designed to protect society and the prosecution represents the state's interest in upholding justice. As such, the resolution of criminal matters is not subject to private agreements between parties. The courts maintain the authority to adjudicate based on legal principles and the public interest, ensuring that justice is served beyond the preferences or agreements of the involved individuals.
[65] In Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, the Kenyan Court emphasized that the purpose of criminal proceedings is to serve the public interest, stating:
“The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest.”
[66] The above case underscores that criminal cases are not merely private disputes but are actions taken by the state to enforce public laws and maintain societal order.
[67] The Seychelles legal framework reinforces this distinction as there is no provision in the criminal laws permitting parties to alter judicial decisions through consent judgments. The Court of Appeal of Seychelles Rules, 2023, provide mechanisms for the withdrawal of appeals. However, they do not accommodate the concept of consent judgments. Specifically, Rule 22 outlines the procedure for an appellant to withdraw an appeal but does not extend to entering consent judgments to alter or nullify existing court orders.
[68] Furthermore, once a matter has been brought before an appellate court, the trial court becomes functus officio, meaning it no longer has jurisdiction over the matter. This principle is well-established in Seychelles jurisprudence. In Libyan Peoples Bureau v Fouhan Enterprises (Pty) Ltd (214 of 2010) [2010] SCSC 20 (4 August 2010) the Court stated as follows:
“A court is functus officio when it has already made a final decision in the matter and thus exhausted its decision making authority in respect of that particular matter.”
[69] In Attorney General v Marzorcchi & Anor (SCA 8/1996) [1998] SCCA 6 (9 April 1998), the Court quoted paragraph 556 of Halsbury’s Laws of England, Vol. 26, 4th Edition, which sets out the rule of functus officio as follows:
“556. Amendment after entry of judgment or order. As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality…”
[70] From the foregoing, the attempt by the parties in this appeal to enter into a consent judgment to nullify the conditional bail order issued on 24th September 2024, by Judge Dodin is legally untenable, whether in the Trial Court or in the Court of Appeal. The bail order, being a judicial determination made in the interest of justice and public safety, cannot be overridden by an agreement between the parties. Such an action would undermine the court's authority and the fundamental principles of the criminal justice system.
[71] Public policy considerations further reinforce the inappropriateness of a consent judgment in criminal matters. Allowing private parties to nullify judicial orders through consent judgments in criminal proceedings will open the door for manipulation and undermine the integrity of the justice system. It would suggest that judicial decisions can be disregarded if parties agree otherwise, eroding respect for judicial processes. The courts must maintain control over criminal matters to ensure fairness, impartiality, and adherence to due process.
[72] Even in civil litigation, where consent judgments are recognized, they cannot be used to nullify or override judicial orders. Courts retain the ultimate authority over legal determinations, ensuring that judgments are not subject to private negotiations that could undermine legal certainty and the integrity of the judicial system.
[73] It follows thus, that a judgment by consent cannot be entered in a criminal matter to nullify a court order. The appropriate legal recourse is for the parties to proceed with the appeal and allow the appellate court to review the merits of the conditional bail order. The trial court is functus officio and no longer has jurisdiction over the case.
[74] Attempting to nullify a court order through a consent judgment in a criminal case is highly inappropriate as it disregards judicial authority and sets a dangerous precedent. The only proper mechanism for challenging a bail order is through the appellate process, ensuring that judicial decisions are reviewed in a structured and lawful manner.
CONCLUSION
[75] In consideration of the above findings on the grounds of appeal, the Supreme Court erred in imposing financial obligations on the Appellant without affording him a fair hearing, violating the audi alteram partem principle.
[76] Furthermore, the court acted beyond its authority by compelling a non-party to bear financial burdens without legal justification or evidentiary basis. Bail conditions must be lawful, reasonable and aimed at securing the accused’s attendance in court and not to impose undue hardship on third parties.
ORDER
[77] It follows that the impugned bail conditions are set aside and the matter is remitted to the trial court for reconsideration of the bail conditions of the 2nd Respondent accordingly.
[78] Mr. Revera is not to be paid any legal aid fees.
[79] No order is made as to costs.
Signed, dated, and delivered at Ile du Port on 22 April 2025.
____________________
S. Andre, JA
I concur _____________________
Fernando, President
I concur _____________________
Twomey-Woods, JA
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