Esparon v Electoral Commission Seychelles & Anor (MA 29/2022 (Arising in CP 3/2021)) [2022] SCCC 1 (24 May 2022)

GOVINDEN CJ (PRESIDING), ADELINE J, ESPARON J.

INTRODUCTION

1. On a claim that his right to vote in the Presidential and National Assembly elections on the 24th October 2020 was violated, by way of a Constitutional petition dated 22nd September 2021, filed in Court on the 27th September 2021, one Mikael, Dydray, Georges, Esparon (“the Petitioner”), represented by one Brigitte, Tessia, Payet by virtue of a Power of Attorney, petitions this Court for an Order granting him the following reliefs.

            1. declare that his Constitutional right to vote pursuant to Article 113 of the Constitution has been contravened by the 1st Respondent.

            2. Order the 1st Respondent to pay damages in the sum of SR500, 000.00 to him plus interest and cost, and

            3.to make other and further order the Court deems fit in all the circumstances of the case.

 

2. In its answer to the petition, the Electoral Commission, (“the Respondent”) raised a preliminary objection on the 29th October 2021, opposing the petition on the ground that it contravenes Rules 4 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (“the Rules”).  The 1st Respondent alleges that, the petition was filed out of time and that leave of the Court to file the petition out of time as required in the Rules, was not sought for, nor did the Petitioner provides sufficient reasons to justify the delay, contending, that the petition should be struck out.

 

3. In its answer to the petition, the Attorney General as Amicus Curiae, pleads, that the Constitutional Court should strike out the petition in its entirety for the following reason stated therein;

            “(a) Article 130 of the Constitution, unlike Article 46 of the Constitution, does not permit Ms. Brigitte Payet to make such an application on behalf of Mikael Esparon alleging the breach of the Constitution, even with Mr. Esparon’s Authority.

 

 

4. On the 2nd November 2021, the Petitioner requested for time to reply to both Respondents’ objections which the Court allowed.  On the date appointed for reply on the 23rd November 2021, the Petitioner had not filed its reply.  Instead, learned Counsel asked the Court, viva voce, for time to file an application for leave to file the petition out of time.

 

5. A notice of motion seeking leave of this Court for the Applicant (the Petitioner) to file its petition out of time was filed in Court on the 11th February 2022, on the grounds contained in the supporting affidavit to the motion, particularly, at paragraph 19 of the affidavit.

 

BACKGROUND

6. At the outset, before we proceed to consider the main issues we are being called upon to determine, it is pertinent to remind ourselves, that although Learned Counsel for the Petitioner did not cause the petition to be withdrawn amid the 1st Respondent’s objection, and its plea for the petition to be struck out, learned Counsel did acknowledged, that until the Court disposes of the Petitioner’s notice of motion to hear and determine the petition out of the Constitutional prescriptive period, in practice, the petition perse, was not before the Court for consideration.

 

7. In concurrence with this proposition, therefore, the Court shall limit itself within the parameters of the application for leave to file the petition out of time in the sphere of the preliminary objection raised by the 1st Respondent.  Counsel’s submission that are on record as regards to the petition proper, are therefore not wholly relevant for the determination of this application for leave.  Having said that, the Court will give particular consideration to certain aspects of the petition so far as they are relevant and necessary to determine the application for leave.

 

THE ISSUES

 

8. The issues for consideration in determining this application are;

                                      (i)      whether, as a matter of fact, and law, the petition has been filed out of time? and, if so,

                                     (ii)      is there a “defect” and can it be cured?, and

                                     (iii)     should the application be allowed or struck out?

THE LAW

 

9. Rule 4 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules –

 

1. Where the petition under rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court –

1. in a case of an alleged contravention, within three months of the contravention;
2. in a case where the likely contravention is the result of an act or omission, within three months of the act or omission;
3. (…)

(2) Where a petition under rule 3 relates to the application, enforcement or interpretation of any provisions of the Constitution, the petition shall be filed in the Registry of the Supreme Court within 3 months of the occurrence of the event that requires such application, enforcement or interpretation.

(3) Notwithstanding subrules (1) and (2), a petition under rule 3 may, with the leave of the Constitutional Court, be filed out of time

(4) The Constitutional Court may, for sufficient reason, extend the time for filing a petition under rule 3

ANALYSIS

 

10. The first issue, namely, whether the petition is out of time, is straightforward.  Rule 4(1)(a) provides a three-month time limit for the filing of a petition from the date of the alleged contravention.   In this case, the elections took place on the 24 October 2020, which is when the alleged contravention occurred.  The Petition was filed on 27 September 2021, being eleven months from the date of the alleged contravention.  There is no doubt that the Petitioner was aware of the alleged contravention the moment it happened.

 

11. Rule 4(3) provides that a petition under rule 3 may, with the leave of the Constitutional Court, be filed out of time.  Rule 4(4) provides that the Constitutional Court may, for sufficient reason, extend the time for filing a petition.  It is therefore clear that the Petitioner must seek leave of the Constitutional Court to file a petition outside of the three-month time limit.  The Petition in this case was filed several months out of time without leave being sought to be allowed to file out of time.  This was clearly reiterated in Green v Seychelles Licensing Authority (1998-1999) SCAR 115, where the Court held that a person who wishes to file in the Constitutional Court a petition outside the time limit must obtain leave of the Constitutional Court to do so, and that leave may be granted if the applicant shows sufficient reasons to justify the extension of the time limit. The Court of Appeal also held in Green (supra) that no leave may be granted if none is sought in stating, that –

 

“Nothing in these provisions empowers the Constitutional Court to act suo motu and grant leave where none has been sought and where facts have not been deponed before it showing “sufficient reasons” to extend time.”

 

12. No leave was sought in this case for the filing of the Petition, which was specifically raised by the 1st Respondent in their preliminary objection. The Petitioner does not challenge the necessity for leave to be sought. This is evident, in that, the Petitioner did ask for time to file an application for leave.  In fact, in the proceedings of 25 January 2022, Counsel for the Petitioner, informs the Court, that in the light of the plea in limine, he must take instructions from his client as to whether he wishes to continue with the matter because of the point of law raised.

 

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

 

14. The above issue must be considered simultaneously with the third issue, i.e., should the application for leave be allowed? This issue must be considered from two angles: in principle versus on the merits.  One question which arises is whether allowing it would be fair to the Respondent? 

 

15. On 2 November 2021, learned Counsel for the Petitioner confirmed, that they had received pleadings from the other side, being the preliminary objections raised by the respondents.  At that point, they would have had the opportunity to look through the objection raised about the need for leave to be sought.  They asked for time to file their reply.  In the three weeks between that mention and the next mention date, the Petitioner had ample time to consider the points raised and if of the opinion that they could do away with the objection by merely filing an application for leave to file out of time, they could have filed the said application in the meantime.

 

16. Instead, on the next date, Counsel asked the Court for more time to file an application for leave to file out of time because there is an issue of prescription raised in the objection. Therefore, the Petitioner had clearly made no attempt to correct the oversight at the first opportunity. Where a point of law is raised in a suit, be it preliminary objections or plea in limine litis, however it may be termed, for the court to allow a party to simply rectify the issue, thereby negating the objection raised by the other side, would be contrary to the principles of fairness and justice.

 

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

 

18. Furthermore, allowing parties to rectify a complete lack of diligence on their part would open floodgates to parties completely disregarding rules of procedure and getting away with it.  The Court cannot not condone parties who sleep on their rights and also not making due effort to exercise their rights in the prescribed manner.  Therefore, the Application should not be entertained.

 

19. Even if we were to allow the application and grant the Petitioner leave to file the petition out of time under Rule 4 (3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules despite the procedural irregularities, on the merits the application should not succeed.  The discretion of the Court to allow an application to be filed out of time or to extend the time limit for petitioning the Court is subject to good and sufficient cause being shown to justify the delay.  The longer the delay in coming to court, the greater the burden on the applicant (Tarnecki v R SCA 4/1996 LC 89).  In the present matter, the reasons given by the Petitioner are not strong enough to excuse the 11-months gap between the alleged contravention and the initiation of Court proceedings.  To grant leave, would therefore be an abuse of process.

 

20. In view that we have ruled in favour of the 1st Respondent against the Petitioner with regards to the former preliminary objection to the motion, and in doing so we have effectively disposed of the case altogether, we find, that there is no real necessity to pronounce ourselves on the merits of the objections raised by the 2nd Respondent.

FINAL DETERMINATION

 

21. In conclusion, therefore, for the reasons discussed in the preceding paragraphs of this ruling, the preliminary objection raised by the 1st Respondent is sustained, and accordingly, we dismiss the motion for leave to file the petition out of the prescriptive Constitutional time limitation period.

 

Signed, dated and delivered at Ile du Port on 24th May 2022.

 

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Govinden CJ                        

 

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Adeline J                                           

 

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Esparon J