Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd & Anor (CP 10 of 2020) [2020] SCCC 881 (24 November 2020)




[2020] SCSC 881



In the matter between:


(rep. by Bernard Georges)





(rep. by Alexandra Madeleine)

ATTORNEY GENERAL                                                                 2nd Respondent

(rep. by Chinasamy Jayaraj)


Neutral Citation: Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd & Anor (CP 10/2020) [2020] SCSC 881 - 24 November 2020

Before:                   Dodin J, Andre Pillay JJ n

Summary:             Constitutional Petition; Preliminary objections; Article 46(3) of the Constitution; Res judicata; abuse of the process of the court; Right to a fair hearing.

Heard:                    3 November 2020

Delivered:              24 November 2020


The matter brought by the Petitioner was adequately dealt with by a competent court. The Petition amounts to an abuse of the court process. The objections are upheld and the Petition is dismissed with costs.






DODIN J. (Presiding)    ANDRE J.     PILLAY J.


[1]        This petition arises from the judgment of Carolus J, handed down on the 30th June 2020 which declared that the two Orders of the High Court in London were executable in Seychelles. The Petitioner appealed the judgment of the Supreme Court in Vijay Construction (Pty) Ltd v Eastern European Engineering Limited SCA28/2020 which was heard on the 3rd of September 2020 and to which judgment was delivered on the 2nd of October 2020. The Court of Appeal dismissed the appeal with an order of costs.


[2]        This petition was filed on the 16th of August 2020 asking this Honourable Court for the following orders:

  1. Declaring that the provisions of Article 19(7) of the Constitution were contravened in the CS 23/2019;
  2. Setting aside the judgment of the Supreme Court dated 30 June 2020 in CS 23/2019;
  3. Granting a stay of execution of the judgment of the Supreme Court dated 30th June 2020 in CS23/2019 pending the determination of this Petition; and
  4. Awarding the costs of this Petition against the First Respondent.


[3]        The basis of the Petition is grounded on the violation of the Petitioner’s right to a fair hearing. Briefly the Petitioner avers that the judge departed from the Statement of Agreed Facts and from the submissions made by the parties in which the accession by the Seychelles to the New York Convention was not an issue. To support this, the Petitioner referred the court to five paragraphs where the Supreme Court dealt with Seychelles becoming a party to the New York Convention. The Petitioner avers that the parties were not called upon to address the court on the issue, despite the court being ‘greatly influenced in arriving at its decision by the subsequent accessions to the New York Convention’.


Respondent’s Submissions: Preliminary Objections


[4]        The Respondents raised preliminary objections to the Petition, relying on Rule 9 of the Constitutional Court Rules. The Respondents argue that the Petition is not maintainable under Article 46(3) of the Constitution since the Petitioner has already sought and obtained redress in its appeal to the Seychelles Court of Appeal.


[5]        The Respondents argue that since the Court of Appeal has already adjudicated on the matter, this Petition no longer exists and the matter is now res judicata. They submit that this application constitutes an abuse of the court process. They further submit that this Petition does not disclose any reasonable cause of action for contravention of Article 19(7) of the Constitution. Lastly, they submit that the Petition contravenes rules 3(2) and 5(2) of the Constitutional Court Rules.


The Applicable Law

[6]        The Respondents raised some preliminary objections and this part deals with these questions raised. The preliminary issues largely raise the question of whether the petition has been dealt with by a court of competent jurisdiction, rendering this Petition res judicata and an abuse of the court process.


[7]        Article 46 of the Constitution deals with remedies for infringement of the Charter of Fundamental Rights through allowing the aggrieved party to seek redress before the Constitutional Court. It is broad in its approach, affording redress even to potential violations of the Constitution. As rightly pointed out by the Court of Appeal in Morin v Minister of Land Use and Habitat and Another (9 of 2005) SCCA 18 (24 November 2005), “the right is unqualified and being a Constitutional right, it cannot be limited or denied save in accordance with the Constitution itself and more particularly Articles 46(3) and 46(7).” It can be seen that the Constitution places great emphasis and significance on the right of access to the Constitutional Court. A party must merely allege a violation of the Constitution to make a prima facie case.


[8]        However, the right is not an absolute right. Article 46(3) of the Constitution provides as follows:

The Constitutional Court may decline to entertain an application under clause (1) where the Court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any application for redress for such matter except on appeal from a decision of such court.


As noted above, the Petitioner appealed the decision of the Supreme Court and the Court of Appeal delivered its judgment to the said appeal on the 2nd of October 2020. With this in mind, can the matter be said to be res judicata?


Res judicata

[9]        The doctrine of res judicata is based on the rationale that there is public interest in the finality of decisions and that an individual should not be troubled twice on the same subject matter. The doctrine is founded on public policy and is aimed at achieving two objectives namely that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation. It is meant to lock out from the court system a party who has had his day in a court of competent jurisdiction from re-litigating the same issues, emanating from the same cause of action against the opponent. In Hoareau v Hemrick [1973] SLR 272, the court gave guidelines on what must be proven to succeed in a claim of res judicata as follows:

For the plea of res judicata to succeed to be applicable, there must be between the first case and the second case the threefold identity of object”, causeand personnes”. Similarly, in Nourrice v Assary [1991] SLR 80 and Attorney General v Marzorcchi SCA 8/1996, LC 312 (both cases cited with approval by this court in Hercule Barbe v Ginette Esparon CS 159 of 2019 [2020] SCSC) it was held that for a party to succeed in a plea of res judicata, the following pre-requisites must be proven:

  1. The subject matter should be the same;
  2. The cause of action should be the same;
  3. The parties should be the same;
  4. The previous judgment should be a final judgment of court of competent jurisdiction.


[10]      Other jurisdictions also place emphasis on the need to bring finality to court proceedings. In the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR), the Kenyan Court of Appeal ruled as follows:


The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”


[11]     The doctrine is based on the idea that parties must respect court decisions. In Hadkinson v Hadkinson [1952] ALL ER 567 the court while discussing the significance of obedience of court orders expressed itself as follows:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”[1]

Analysis and determination


[12]      The above section provided the law on res judicata and the need to bring finality to court proceedings. It must be answered whether the question brought before the Constitutional Court by the Petitioner has been dealt with by a court of competent jurisdiction. The notice of appeal to the Court of Appeal by Vijay Ltd raised the following grounds on paragraphs 6 and 7:


6. The learned Trial Judge erred in finding [at paragraph 90] that the roundabout route taken by the Respondent in seeking to enforce an unenforceable award through the process of a British judgment could not be faulted because of the ‘change of the Seychelles position’ through its accession to the New York Convention. In doing so, and in surmising [in paragraph 91] that the Respondent could now possibly seek to enforce the award directly, the Learned Trial Judge showed that her whole judgment was predicated, not on the law as it stood at the time of the hearing in 2019 but on the law as she interpreted it while preparing her judgment, without having given the parties an opportunity of disabusing her of her view.


7. The learned Judge erred in failing to provide the Defendant with an opportunity to address the issue of ‘back-door-entry’ due to Seychelles’ ratification of the New York Convention and in

▲ To the top