Blomestein v The Government of Seychelles & Ors (MA 08/2024 (Arising in CP 09/2023)) [2024] SCCC 5 (25 October 2024)

BURHAN J    (Vidot J and Adeline J concurring)

Background

1. The background facts to this application are that the Applicant (Petitioner in the main case) filed a constitutional petition pursuant to Article 46(1) of the Constitution of the Republic of Seychelles seeking the following reliefs:
   1. Declare that the petitioner’s constitutional right, as provided for by Article 25 of the Constitution, has been contravened by the order of the Supreme Court restricting his movement.
   2. Quash the orders of the Supreme Court restricting the petitioner’s movement forthwith.
   3. Make any other and further declarations or orders, issue such writs, and give such directions as the Court may consider appropriate for enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application, whether against the Respondents or not
   4. Grant any other remedy this Honourable Court deems fit in all of the circumstances of the case pursuant to Article 46 (5) (e) of the Constitution.
   5. Make an order for costs against the Respondents jointly or severally.
   6. Grant any other remedy this Honourable Court deems fit in all the circumstances of the case.
2. In the petition and affidavit filed dated 04 September 2023, it is averred that the ruling delivered by the Supreme Court on 13 July 2023 in MA 258/2023 arising out of CS160/2019, contravened the Petitioner’s constitutional right to freedom of movement as provided for in Article 25 of the Constitution.
3. It is further averred that the Petitioner’s application for permission to leave Seychelles to Amsterdam, Netherlands to undergo a training course was denied by the Supreme Court on 13 July 2023 when it made the following directions: -
   1. that the petitioner provides to the Court a bank guarantee in the sum of three million rupees, which sum shall be forfeited to the Respondent in the event that he does not return to the Republic of Seychelles.
   2. the Registrar General not to accept and register any transfers of land belonging to the company Cooling Plus Ltd or belonging to James Kenneth Van Blomestein and or accept and register any charges on any moveable or mortgages upon immovable belonging to him and/or the said company, until further order of this court.
   3. the registrar of the Supreme Court to serve a copy of this Order upon the Registrar General and the Principal Secretary for Internal Affairs.
   4. This order is valid until the 1^st of August 2023
4. In reply to the petition, the learned Counsel for the 1^st and 2^nd Respondents filed preliminary objections dated 6 October 2023. One of the objections raised was that the impugned Order states “This order is valid until the 1^st of August 2023.” Therefore, the said impugned Order is no longer valid.
5. On this being brought to the notice of learned Counsel for the Petitioner, Mr Elizabeth moved for two weeks to amend the petition and to file the original Order he was relying on as borne out in the proceedings of 21 November 2023. This was granted subject to the objections of the Respondents.
6. Further as the Court observed, one of the parties in the civil case CS160/2019 was not included in the petition filed, time was given to Mr Elizabeth to amend the petition by including Tania Borisova Hoareau as a party to the constitutional petition. On the 31 October 2023, an application MA 374/2023 was filed seeking inter alia that Ms Tania Borisova Hoareau be added as a party. The application was granted, and notice was issued on the new Respondent (3^rd Respondent) on the 21 November 2023.
7. Thereafter, Mr Elizabeth filed this application before Court, a notice of motion dated 17 January 2024, seeking inter alia an order that leave be granted to the Applicant (Petitioner) to amend his petition as per the proposed amended petition annexed. In his affidavit dated 16 January 2024, the Applicant admits that the impugned Order dated 13 July 2023, has expired and is no longer valid. He however contends that the 13 July 2023 Order emanates and continues from the original Order of the Supreme Court dated 27 June 2022 which he now seeks to contest at this stage by amended petition dated 15 January 2024.
8. The 3^rd Respondent to the application Tania Borisova Hoareau filed her objections to the amended petition through her attorney at law, Ms Lucie Pool. The main objections taken to the said application to amend the petition were that:

1. the application before the Constitutional Court is frivolous and vexatious and a waste of the Court’s time.
2. the impugned order was made because the Applicant was in contempt, in that he failed to comply with the Court Order in CS160/2019.
3. the Applicant was allowed to leave the country on condition that he provides a bank guarantee of three million rupees, in the event that he does not return to Seychelles to fulfil his obligation under the Judgment given in CS160/2019.
4. the Applicant on two occasions in November/December 2023, was allowed to travel to Holland to take part in a training for his business. The Order was made by the Court in MA No: 388/2023. Therefore, there is no contravention of the Applicant’s right of movement.

Written submissions

9. In her written submissions learned Counsel for the 3^rd Respondent Ms Pool further raised the following objections:

1.  The Applicant now seeks to amend his petition to plead that it is the Order of the Chief Justice in MA 127/22 dated 27 June 2022 and not 13 July 2023 that violates his right of freedom of movement. It is submitted by the 3^rd Respondent that this is not permissible under the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (Constitutional Court Rules), Rule 5 (3) which states “the Court shall not permit an amendment of a petition which seeks to include any new matter not pleaded in the petition”.
2. The Applicant has not complied with the conditions imposed by the Chief Justice in his Order dated 13 July 2023 as of 1 August 2023 and beyond and had he complied he would have been free to leave the country. Therefore, there was no violation of his right of freedom of movement. The Applicant now wishes to amend his petition to allege a new contravention of his right of freedom of movement in respect of the Order of the Chief Justice dated 27 June 2022. It is submitted that Rule 5 (3) mentioned above does not permit the Applicant to do so.
3. Further, the 3^rd Respondent refers the Court to Rule 4 (1) with regard to the time limit for filing a petition. It provides that the petition must be filed within 3 months of the alleged contravention. Therefore, if the Applicant is relying on the Order dated 27 June 2022, the Applicant is out of time.

10. Learned Counsel Ms Pool therefore moved that the application to amend the petition be dismissed with costs.
11. Thereafter, the Applicant filed written submissions dated 16 October 2024. We will consider the facts set out in the Applicant’s submissions when dealing with the objections of the 3^rd Respondent.

Analysis

12. The main objection of the 3^rd Respondent is that the Applicant initially relied on the order dated 13 July 2023 but now wishes to amend his petition to allege a new contravention of his right of freedom of movement in respect of the Order of the Chief Justice dated 27 June 2022. It is submitted that Rule 5 (3) mentioned above does not permit the Petitioner to do so.
13. It is clear to this Court that the Applicant initially based his cause of action on the Order of the Supreme Court dated 13 July 2023, alleging that it had contravened his right to freedom of movement under Article 25 of the Constitution. On it being brought to his notice that this Order was of temporary nature and only valid until 1 August 2023, he decided to amend the petition by stating that he was not relying on the Order dated 13 July 2023 but now challenging the Order dated 27 June 2022. It is clear by doing so the Applicant is now attempting to bring in a new matter not pleaded, which is not permitted by way of an amendment under Rule 5 (3) of the Constitutional Rules. We are inclined to disagree with the Applicant’s submissions dated 16 October 2024, at page 3 where it is stated that the Respondents have failed to make any reference to the Rules on which they are relying. This is incorrect as the 3^rd Respondent has specifically referred to Rule 4(1) and 5(3) of the Constitutional Court Rules in their submissions.
14. We further observe that the said Order dated 13 July 2023 is a conditional order. It is apparent that the Applicant has made an application in MA 258/2023 to leave the country for training. The Supreme Court had not denied his right to leave the country but imposed conditions as the Applicant was a Judgment Debtor in a case before Court, CS 169/2019. It would be pertinent to mention at this stage that the right of freedom of movement is not an absolute right. Article 25 (3) sets out limitations attached to the said right which read as follows:

“25. (3) The right under clause (1) may be subject to such restrictions as are prescribed by a law necessary in a democratic society –

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for protecting the rights and freedoms of other persons;

(c) for the prevention of a crime or compliance with an order of a court;

(d) for extradition of persons from Seychelles; or

(e) for lawful removal of persons who are not citizens of Seychelles from Seychelles.”

15. Therefore, in terms of Article 25 (3) (c) a Court has every right to set down conditions in respect of persons who are subject to Court Orders to ensure enforcement and implementation of such orders. Further, section 304 of the Seychelles Code of Civil Procedure (SCCP) provides as follows:

“It shall be lawful for any plaintiff, after the commencement of his action and before or after judgment, to apply to court for a writ of injunction to issue to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and such writ may be granted or denied by the said court upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as shall seem reasonable and just.”

16. In the case of Government of Seychelles v Ramrushaya (CS 225/2003) [2003] SCSC 19 (14 August 2003) it was held that “if the Defendant leaves Seychelles for good on 16 August 2003 there would be financial loss to the Government as the Defendant has no other assets in Seychelles. Hence the preservation of public funds is a valid reason to limit the fundamental right of freedom of movement within the spirit of the derogation contained in Article 25(3) (a) of the Constitution.”
17. The Applicant in his written submissions dated 16 October 2024 which cover the merits of the main petition as well, states at page 6 and 7, that such restrictions in movement require a) a court order, b) evidence that the debtor may flee to avoid payment, c) the debt should be above a threshold value and d) there should be consideration of less restrictive alternative. It is clear that both Orders 27 June 2022 and 13 July 2023, are Court Orders and are based on the fact that as the Applicant is now a Judgment Debtor and not an ordinary debtor and therefore owes an obligation to Court.
18. Further, giving due consideration to the Order dated 13 July 2023, we observe that the trial Judge has specifically referred to the Petitioner as a Judgement Debtor and that “all attempts to settle the judgment debt has so far failed.” Therefore, we are of the considered view that the said Orders of 27 June 2022 and 13 July 2023 are well within the limitations contained in Article 25. The case referred to by the Applicant Ex-parte Giovanni Rose (CS 199/2006) [2006] SCSC 93 (24 July 2006) in his submissions does not apply to this case as the application to restrain the Respondent from leaving the country was made after filing of a plaint. In this instant case before us, the Applicant is a Judgment Debtor and not a mere Defendant in a plaint.
19. This Court will next proceed to deal with Rule 4 (1) of the Constitutional Court (Application, Contravention, Enforcement, or Interpretation of the Constitution) Rules. Rule 4 (1) reads as follows:

“4. (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─

(a)in a case of an alleged contravention, within 3 months of the contravention;

(b)in a case where the likely contravention is the result of an act or omission, within 3 months of the act or omission;

(c)in a case where the likely contravention arises in consequence of any law, within 3 months of the enactment of such law.”

20. It is clear to this Court that the even if the amendment be allowed, the amended petition would have been filed well after the period of three months of the alleged contravention (27 June 2022) and is thus out of time under Rule 4 (1) of the Constitutional Court Rules. In the case of Onezime v AG & Government of Seychelles (SCA CL 3 of 2021) [2022] SCCA 20 (29 April 2022) the court held that “It is for the petitioner to enlighten the Court as to the reasons for not complying with the mandatory prescribed time period set out in rule 4(1) in filing the petition. For the Constitutional Court to grant an extension of time for filing a petition ex mero motu without an application, would amount to disregarding its own rule under rule 4(1). Further it is entirely at the discretion of the Court to extend the time for filing a petition and that only for sufficient reason.”
21. We are inclined to disagree with the Applicant’s submission that the Order of 13 July 2023 is of a continuing nature, as the Chief Justice has specifically stated in the said Order that it is valid only till the 1 August 2023. Further, even if one is to take into consideration the Order of 27 June 2022, even this Order that could not be considered to be a continuing order as the 3^rd Respondent by way of affidavit stated that since the said order, the Applicant has on two occasions thereafter in November/December 2023, been allowed to travel to Holland to take part in a training for his business. The Applicant has not sought to deny this fact and the Court could take notice of the contents of the said Order dated 24 November 2023 in MA 258/2023 arising from CS160/2019.
22. For all the aforementioned reasons, having considered the objections in respect of the filing of the amended petition, we proceed to decline the application to amend the petition. We observe that the Applicant (Petitioner) has also filed submissions which cover the merits of the main case on the 16 October 2024. Having duly considered the said submissions on the merits of the main petition by the Applicant, we are of the view for reasons set out herein that the submissions on merit are not acceptable. Therefore, the necessity to call for reply submissions from the Respondents does not arise. We proceed to dismiss the Petition. Each party to bear their own costs. 

Signed, dated and delivered at Ile du Port on 25 October 2024.

M Burhan J  (Presiding)           

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 M Vidot J 

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B Adeline J