Richemond v Rose (MA 26 of 2023) [2023] SCSC 428 (2 June 2023)

ADELINE J

1. This is an application supported by an affidavit brought by way of notice of motion dated 22nd February 2023 by one Robin Richemond of Maconstance, Mahe, Seychelles (“the Applicant”), by which application, the Applicant seeks for leave of this court, in exercise of its jurisdictional discretion under Section 12 (2) (a) (i) and (b) of the Courts Act, Cap 52, to appeal to the court of appeal against the interlocutory order made by this court in MA 97/2022 (arising out of DC 227/2019) in its ruling dated 15th December 2022. For ease of reference Section 12 (2) (b) of the Courts Act is couched in the following terms;

“In any such cases as a foresaid, the supreme court may, in its discretion, grant leave to appeal if in its opinion, the question involved in the appeal is one which ought to be the subject matter of the appeal”.

2. In his affidavit in support of the motion, interalia, the Applicant spells out the grounds for the purported appeal by making the following averments;

“5. That I am informed by my lawyer the objections raised have been dismissed and as per advised I should appeal against the ruling on the following grounds;

1. That Adeline J erred in law in that leave to file an adjustment of matrimonial property out of time is not an equitable remedy.
2. That Adeline J erred in both, facts and law in his appreciation of the documents submitted and to be relied on by the Applicant in law application that there was no merits in her application and that the applicant in MA 97 of 2022 was out of time

6. That I am advised by my lawyer that serious question of the law and facts arises to be heard by the court of appeal and for that matter, I am applying for leave to appeal to the court of appeal against the ruling of Adeline J. dated 18th January 2023”

3. A synopsis of the historical background of the facts and circumstances of this case leading to this application for leave to appeal against the ruling of this court, is that, the Respondent, one Ms Genevieve, Caroline, Christel, Rose (formerly Richemond) who had obtained her decree absolute of  divorce  against the Applicant, had sought for leave of this court by virtue of Rule 34 (1) of the Matrimonial Causes Rules to file a petition for a property adjustment order against the Applicant (previously the Respondent) out of time given that the two months prescriptive period after the decree nisi was made absolute had lapsed.
4. The Respondent (formerly the Applicant) had made her application by way of notice of motion supported by an affidavit of facts and evidence sworn by her in accordance and in compliance with Rule 20 of the Matrimonial Causes Rules. The Respondent (now the Applicant) who was granted his right of reply did not file an affidavit in reply although he did file his objections to the application in his pleadings. As such, the Respondent (now the Applicant) did not tender any evidence to the court for consideration, and as a consequence, the Application was determined on account of uncontroverted affidavit evidence tendered before this court by the Applicant (now the Respondent).
5. Nonetheless, both parties did file written submissions in support of, and in opposition to the application. In her submissions in opposition to the grant of leave for the Applicant to file its petition for a property adjustment order out of time, learned counsel for the Respondent (now Applicant) made several assertions which were not taken to be admissible evidence, because in the opinion of this court, that was tantamount to giving evidence from the bar.
6. This court was also of the opinion, that part of the Respondent’s (now the Applicant) submissions addressed the law that are more relevant for the purpose of determining the petition for a property adjustment order on its merit rather than the application to file the petition out of time that was before the court.
7. In order to assist the court with the determination of this application for leave to appeal against the interlocutory order both parties did file written submission. In his written submissions, learned counsel for the Applicant (previously the Respondent) interalia, submits, that based on the grounds upon which the Applicant pursues this application for leave to appeal to the court of appeal against this court’s order in MA97/2022 made on the 15th December 2022, this court ought to exercise its discretion under Section 12 (2) (b) of the Courts Act and grant the Applicant leave.
8. Learned counsel also submits, that the court ought to grant the application by granting the Applicant leave because the question involved in the appeal is one which ought to be the subject matter of the Appeal, and that it would substantially dispose of all matters in issue in respect of the matter in MA 97 of 2022. Learned Counsel further submits, that the case is an exceptional one given that the learned judge has determined, that an application for leave to appeal out of time is not an equitable remedy.
9. In his written submission, learned counsel sought to support his contentions by case law authorities citing the case of Gangadoo v/s Cable & Wireless Seychelles Ltd SCA MA 2 of 2013 [2013] SCCA 18 (30 August 2013) and St Ange v Choppy MCA 18 of 1970. As per learned counsel’s submission, in Gangadoo (Supra) the court of appeal did spell out the principles the court has to apply when deciding whether or not to grant an application for leave to appeal against an interlocutory order which principles learned counsel submits has two limbs, namely;

1. “The ruling disposes substantially of all matters in issue as to leave only ancillary matters for decision, and
2. It is an exceptional case which should be bought under review on appeal”

10. As regards to the case of St Ange ( Supra), learned Counsel submits, that that case spells out what approach of the court should be in exercise of its discretionary power to determine an application for leave .to appeal against an interlocutory judgement. Learned counsel submits, that the court must be satisfied;

(a)” that the interlocutory judgement disposes so substantially of all the matters in issue as to leave any subordinate or ancillary matters for decision, and

(b) that there are grounds for treating the case as an exceptional one and granting leave to bring it under review”

It is the submission of learned counsel, that in pursuing this application, the Applicant has satisfied the first of the two limbs requirements “as the appeal will substantially dispose of the issue between the two parties.”

11. As regards to the 2nd limb of the test, Learned Counsel submits, that in the Gangadoo case (supra), the court sought to explain what it would consider as an exceptional case for leave to be granted referring to the case of Bentwhich Privy Council, (3rd ed) at page 213. As per learned counsel’s submissions, the court of appeal was of the view, that “to treat a case as exceptional which would necessitate special leave of this court to bring the interlocutory judgement or order of the supreme court under review, the Applicant must be able to show that the interlocutory judgement or order is manifestly wrong and irreparable loss would be caused to him or her if the case proper was to proceed without interlocutory judgement or order being corrected. It would not be in the public advantage and interest to unnecessarily delay trials before the supreme court otherwise”.
12. Furthermore, it is the submission of learned counsel, that the application pertaining to MA 97 of 2022 brings to light serious questions of law which the court of appeal needs to address given that the Respondent (previously the Applicant) has sought for an equitable remedy without coming to court with clean hands, and the court has failed to consider the Applicant’s (previously the Respondent) arguments in law as to why the application should not be entertained.
13. It is further submitted by learned counsel for the Applicant (previously the Respondent) that the order dated 18th January 2023 is manifestly wrong, and that irreparable loss and incurable prejudice will be caused to the Applicant if that order is not corrected. However, the Applicant (previously the Respondent) did not produce evidence by way of affidavit of the irreparable loss and prejudice he was likely to suffer.
14. Learned counsel submits, that the Applicant (previously the Respondent) had no other way to bring in the exhibits referred to in the submissions. It is this court’s view, that had the Applicant filed an affidavit in reply whatever documents he wanted to rely on would have had to be exhibited or attached to his affidavit, and that in effect, by failing to do so, the documents could not be admitted from the bar.
15. It is the submission of learned counsel, that the Respondent (previously the Applicant) “ had failed to justify the reasons for seeking an equitable remedy to file her petition out of time”. It was the finding and conclusion of this court, that the Applicant ( now the Respondent) was seeking for a remedy in law not in equity given the provisions of Rule 34(1) of the Matrimonial Causes Rules, and that the Applicant’s (now the Respondent) application was determined on the basis of her affidavit evidence which evidence were not challenged or contradicted by the Respondent (now Applicant) who failed to file an affidavit in reply
16. I have read the submissions of learned counsel for the Applicant in his attempts to persuade and convince this court, that both, on the facts and the law, the application for leave does have merits and must be granted. I find no room to disagree with him on the law to be applied to determine this application. In fact, our jurisprudence in this area of law is quite riched given the plethora of case Law in this area which has over the years expounded over the interpretation of the statutory requirements of Section 12 (2) (b) and (c) of the Courts Act. In fact, it is worth mentioning, that the statutory requirements to obtain leave of this court to appeal against an interlocutory judgement or order of this court to the court of appeal, are the same as for special leave under Section 12 (2) (c) of the Courts Act which can be obtained from the court of appeal.
17. Without reciting the case law which has been well illustrated by counsel for the Applicant, I find it necessary to add to the list already cited the case of EME Management Services Ltd v Development Co LTD SCA 31\2009, and quite recently, the case of Farisco Construction and Maintenance (Pty) Ltd and Edith Alexander SCA MA 38/2022 ( Arising in CS 89/2022) both of which are quite instructive as to when an application for leave to appeal against an interlocutory judgment or order should be granted or refused.
18. The case of Ste Ange v Choppy Civ 18/1970 is one of the cases which the courts have traditionally relied on in subsequent cases as regards to how the courts should exercise their discretionary powers to determine an application of this nature, reiterating the two requirements under Section 12 (2) (b) which was subsequently followed by Sauxier J in the case of Pillay v Pillay (N02) (1970-1971 SLR.
19. As per the Applicant’s affidavit in support of this motion, he seeks leave to appeal against this court’s interlocutory order in MA 97 of 2022 on two grounds. However, he makes no averments of facts in the affidavit to show that the requirements are met, and thus fails to provide any affidavit evidence or otherwise, to prove those grounds. The court is therefore unable to ascertain, whether, “the interlocutory judgement disposes so substantially of all matters in issue as to leave only subordinate or ancillary matters for decision” It was incumbent of the Applicant to tender such evidence to the satisfaction of the court which unfortunately he did not.
20. In the case of Pillay (supra), after the court had heard the facts tendered through evidence, the court concluded, that;

“The interlocutory judgement in this case does not put an end to the litigation between the parties, or at all event does not dispose so substantially of all matters in issue as to leave any subordinate or ancillary matters for decision”

21. The court went further as to say the following;

“moreover the applicant will be entitled as of right to question the decision in the interlocutory judgment if and when he exercises his right to appeal from the final judgement. An appeal at this stage would entail unnecessary delay and expenses”.

22. Equally, the Applicant has failed to tender any evidence to show that “there are grounds for treating the case as an exceptional one”. In EME Management Services LTD (Supra) the court of appeal did say that “special leave should be granted only when there are exceptional reason for doing so, or in view of reasons which may not have been in knowledge of the applicant at the time, or for reasons that supervenes after the refusal to grant leave by the Supreme court”.
23. The court went on as to say, that;

“to treat a case as exceptional, the Applicant must be able to show that the interlocutory judgment or order is manifestly wrong and irreparable loss would be caused to him or her if the case proper were to proceed without the interlocutory judgement or order being corrected”.

24. Although in the EME Management Services Ltd case (supra), the Applicant was seeking for special leave, the statutory requirements and those requirements elaborated by case law are equally applicable to the grant of leave by this court to appeal to the court of appeal against any interlocutory judgment or order of the supreme court.
25. The court also added, that,

“a challenge which goes to the merits of the ruling namely, that the trial judge failed to properly consider and weigh all evidence and facts placed before him and to correctly apply the law, is not a ground for treating this case as an exceptional one and grant leave to bring it under review”.

26. Equally, in the instant case, the ground that I erred in law, in stating that, leave to file for adjustment of matrimonial property out of time is not an equitable remedy” (which I don’t believe I have) is not a ground to grant leave to appeal against the interlocutory order made in MA 97/2022. It is also not a ground to grant such an application on the averment that I “erred in both facts and law in …his appreciation of the documents submitted and to be relied on by the Applicant in her application that there was no merits in her application and that the Applicant in MA N0 97 of 2022 was out of time”.
27. In essence, therefore, no evidence has been laid before this court for the purposes of determining the instant application for leave to appeal against the interlocutory order of this court made on the 15 December in MA 97 of 2022. In his affidavit in support of his Application, the Applicant makes no averment of facts to satisfy this court that;

1. The interlocutory judgement disposes so substantially of all the matters in issue as to leave only subordinate or ancillary matters for decision, and
2. There are grounds for treating the case as an exceptional one.

28. Therefore, the failure of the Applicant to tender evidence to the satisfaction of this court for the grant of the relief being sought for, means, that this application is devoid of merit and cannot therefore succeeds. As a consequence, thereof it is according dismissed.

Signed, dated and delivered at Ile du Port on 02 June 2023

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Adeline J