Chan Sing Chung v Kim Koon & Ors (Arising in MC 04 of 2020) [2025] SCSC 17 (5 February 2025)

 

GOVINDEN CJ

Introduction and Background

1. The Petitioner/ Judgment Creditor, Manyive Chan Sing Chung, filed a Motion seeking payment of interest on award given following the hearing in Case [2022] SCSC 804 MC 04/2020, which is supported by the Affidavit on the 13^th June 2024. The Respondent, Daniel Kim Koon and Ors, filed Answer to the Motion on the 7^th August 2024.

2. The Petitioner avers and the Respondent accepts that the Petitioner is a Judgment Creditor according to decision of this Court in Manyive Chan Sing Chung (Petitioner/ Judgment Creditor) v Daniel Kim Koon and ors (Respondents/ Judgment Debtors) [2022] MC04/2020 SCSC 804 delivered on the 19^th September 2022.

3. The judgment was awarded in the following terms:

“a) The 3^rd Respondent shall cancel all reference to any alleged loan agreements in the records and books of the 3^rd Respondent in regards to school fees paid to the Petitioner / Judgement Creditor and that of other shareholders in the period of September 1981 to 1994 by the 3^rd Respondent;

b) The 3^rd Respondent shall refund to the Petitioner/ Judgment Creditor the total sum of dividends that has been withheld and set off against the school fees gift of the Petitioner and that of any other shareholders. The sum withheld for the Petitioner/ Judgement Creditor amounts to SCR905,958.20;

c) The 1^st and 2^nd Respondent shall jointly and severally pay to the Petitioner/ Judgment Creditor the sum of SCR200,000.

d) The above refunds of the dividend shall be effected with interest at commercial rates continuing until full payment of all sums claimed with effect from the date of the first deductions made from the due dividends.

e) The Petitioner/ Judgment Creditor shall be entitled to cost of these proceedings.”

4. The Petitioner avers that in accordance with the said judgment (which was maintained in the Court of Appeal), the payment of the withheld payments should have been made together with the interest at commercial rates. It is averred that the Respondents/ Judgment Debtors failed to comply and only made payment of SCR1,105,958.20 on 25 October 2023, representing the withheld payments (SCR905,958.20) and damages (SCR200,000). The interest at commercial rates was not paid.

5. The Respondent avers in the Answer to Motion, that it had appealed to the Court of Appeal. Upon objection taken by the Petitioner for not filing heads of argument on time, dismissed the Appeal. The Respondent avers that the Petitioner could have appealed or cross appealed on the issue of commercial rate of interest that it should apply on all sum and not just on unpaid dividends.

6. The Petitioner avers that on 6 December 2023, 15 December 2023 and 5 April 2024, the Petitioner/ Judgment Creditor served Letters of Demand together with detailed calculations of the interests to the Respondents/ Judgment Debtors, requesting for payment of the interests at an average commercial rate of 11.7% per year from 2006 to 2023 provided by the Seychelles Central Bank (the “SCB”) on the withheld payment amount of SCR905,958.20.

7. The total amount of interests outstanding at commercial rate due as of 25 October 2023, the date on which the Petitioner/ Judgment Creditor received the payment from the Respondents/ Judgment Debtors, is, allegedly, SCR1,518,887.96. To date, the Respondents/ Judgment Debtors have not paid the interest at commercial rates.

8. The Respondent avers that Attorneys for both parties were discussing the rate of interest without reaching agreement and the average rate of 11.7% per annum is disputed.

9. The Petitioner avers that the current dispute between the Petitioner/ Judgment Creditor and the Respondents/ Judgment Debtors is based on the following two issues:

1. Interests at “Commercial Rates” as per the court order - in accordance with the judgment, the Petitioner/ Judgment Creditor is applying the interest at an SCB average commercial rate of 11.7% per year from 2006 to 2023 while the Respondents/ Judgment Debtors are applying a deposit rate of 5% to calculate the interest. The commercial rate would be applicable to lending and owing money to a third party whilst the deposit rate would be applicable to depositing cash in a bank. In this matter, the Chief Justice rightfully ordered interest at commercial rates because it is for the money that the Respondents/ Judgment Debtors owe to the Petitioner/ Judgment Creditor.

2. Interests at commercial rate on the total amount - in accordance with the judgment, the Petitioner/ Judgment Creditor wants the Respondents/ Judgment Debtors to pay the interests at commercial rate on the withheld amount of SCR905,958.20 as per the court order whilst the Respondents/ Judgment Debtors only want to pay interests at commercial rate on the dividend amount of SCR132,311 (SCR 8,111 + SCR 20,700 + SCR 103,500).

10. The Petitioner/ Judgment Creditor by this motion would like the court to determine the following two issues, so that the matter can be settled once and for all and the Respondents/ Judgment Debtors can settle its interest debt of SCR1,518,887.96 to the Petitioner/ Judgment Creditor. The Petitioner/ Judgment Creditor prays this Honourable Court to determine:

(a) whether the interests at an SCB average commercial rate of 11.7% per year from 2006 to 2023 or a deposit rate of 5% is applicable; and

(b) Whether the interest at commercial rates is on the withheld amount of SCR905,958.20 as per the court order or only on the dividend amount of SCR132,311.

11. The Respondent denies paragraph 4 above of the Motion and avers that interest rate fluctuates and evidence will be needed to determine the applicable rates from time to time. The Respondent further avers that interests at the commercial rate is payable only on the dividends withheld.

12. The Respondent also avers that the Court is functus officio to order that interest is payable on all the sums withheld and the Petitioner could have appealed against that part of the judgment and not having done so she is precluded from raising it now.

Plea in limine and Response

13. On 13^th November 2024, the Respondent filed objection to the Motion, plea in limine and on merits. The Respondent states that the Court is functus officio to determine the rate of commercial interest and to award interest on the sum of SCR905,958.20. On merits, Respondent adopts its Answer to the Motion filed on 7^th August 2017.

14. The Petitioner filed a Response to Plea in limine on 20^th November 2024. The Petitioner submits the following.

15. The root of the judgment in MC4 of 2020 is that funds belonging to the Petitioner were unfairly withheld for several years. The court found a total of SCR905,958.20/- had been unfairly withheld.

16. The Response to Plea in Limine states that the submission of the Respondent is that the final court judgment only declared interest on the dividends withheld and not the total amount withheld. Therefore, the only interest payable to the Petitioner is interest on withheld dividends and the rest at best at the legal rate. The Judgment is silent about the rest. The Respondent submits that since the Commercial rate was not argued before this court before going to appeal or been made a subject of a court of appeal the judgment should be taken at face value as it reads. The Respondent submits that this court is functus since it has decided certain matters and these new issues cannot now be looked at and corrected or clarified

17. The Petitioner submits that it should not be forgotten what was the basis for bringing this case to court in the first-place. The Petitioner refers to section 201 of the Companies Act 1972 (the “Act”):

“Any shareholder of a company who complains that the affairs of the company are being conducted in a manner which is oppressive or unfairly prejudicial to some part of the shareholders (including himself) or, in a case falling within section 190(3), the Registrar, may make an application by way of petition to the court for an order under this section”

18. It is submitted that this court found in favour of the Petitioner under that section and ordered the release of the funds withheld which included the dividends. The Petitioner argues that, although, it is not spelt out in black and white in the judgment in terms of interest accrued, there appears to be no logical reason for differentiating the different rates of interest since the totality of withheld funds form the same block of deprivation by the Respondents.

19. The Petitioner seeks the court to put some rationality and common sense to its judgment and for this court to use its inherent powers to perfect its judgment since it is a court of unlimited jurisdiction. The Petitioner relies on two main leading cases which the Counsel quotes from in extenso for setting out the rationale behind the Petitioner’s request as well as setting out the justification for this court to be able to make such order as requested on the issue of this courts powers to perfect its judgment using its inherent powers.

20. The Petitioner refers to B Adeline J decision in Nowacki v. Dabrowska CS21/2022 /2022] SCSC 739¹ and cites paragraphs [9]-[35], [51] of the judgment submitting that the following observations on the issue of the inherent jurisdiction of the Supreme Court were made:

[9] In his submission, learned Counsel began, by providing the Court with a definition of jurisdiction taken from the Halsbury’s laws of England that reads;

“jurisdiction is the authority which of course has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision to stop the limits of this authorities are imposed by statute, charter or commission under which the Court is constituted. If no restriction or limit is imposed the jurisdiction is said to be unlimited”.

[10] Learned Counsel also found it necessary, to quote a passage from a ruling of the Court of Appeal in Vijay Construction Pty Limited vs. Eastern European Engineering Limited, MA 24/2020 arising in SCA 28/2020, that reads;

“The primary source of jurisdiction of a Court is found in the Constitution or Statute constituting that Court and investing it with authority to decide matters. That authority may be unlimited or limited. Numerous texts and authorities have suggested that any Courts of unlimited original jurisdiction possess inherent jurisdiction.” Underlined emphasis is mine.

[11] This considered view, is one that emanates from different case law authorities, including the case of R vs. Forbes, exparte Bevan 1972 HCA 34, quoted by learned Counsel. In that case, the Court had stated the following:

“Courts of unlimited jurisdiction have inherent jurisdiction”.

[12] Relying on these case law authorities, learned Counsel submitted, that this Court is a Court of unlimited jurisdiction, which as such, it has an inherent jurisdiction to grant the relief being sought in this instant case. Learned Counsel argued, that such inherent jurisdiction has evolved from the English common law, and that the High Court inherent jurisdiction has developed over the years. The case of Privatbaken vs. Aktieselskab Privatbanken [1978] SLR 226 was quoted, in which case, Sauzier J traced back the history of the creation of the Supreme Court in 1903, and confirmed, that in 1903, the Supreme Court of Seychelles became a Court of unlimited jurisdiction and given all the powers, privileges authority and jurisdiction of the High Court of justice in England.

[13] This, as per learned Counsel’s submission, with the enactment of the Court’s Act, statutory provisions have been introduced, notably, by virtue of Section 4, Section 5, Section 6, Section 7, Section 8, Section 9 and Section 10 of the Court’s Act vesting into the Supreme Court different jurisdiction. Learned Counsel made specific mention of Section 4 of the Court's Act, which expressly provides, interalia, that the Supreme Court “shall have and may exercise the powers, authorities and jurisdiction possessed and exercised by the High Court of justice in England, and Section 5 of the Court’s Act, which interalia, provides, that the Supreme Court shall have, and is hereby invested with, all the powers, privileges, authority and jurisdiction which is vested in, or capable of being exercised by the High Court of Justice in England”.

[14] In essence, therefore, the crux of learned Counsel’s submission on the issue of jurisdiction, is that, as a matter of procedural law, the Supreme Court does possess the necessary jurisdiction to grant the declaratory Order being sought for by the Plaintiff.

[15] It is appropriate, at this juncture, for a consensus as to what the term jurisdiction means in the sphere of procedural law. In an article in the Canterbury Law Review 10, (2005) II Canterbury Law Review 220, the author, one Joseph Rosara, gives a simple definition of jurisdiction by defining jurisdiction as follows;

“the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision”.

[16] Rosara went on as to state, that jurisdiction is a substantive power to hear and determine a matter, and that it may be conferred by the statute under which the Court is constituted. He calls this “statutory jurisdiction”. According to him, such jurisdiction may be inherent in a particular Court, which is called inherent jurisdiction. Rosara also argues, that one must distinguish between jurisdiction and power as he stated the following;

“All Courts possesses inherent powers which are incidental or ancillary to their substantive jurisdiction. These ancillary powers are procedural rather than substantive in nature. They enable the Court to give effect to its jurisdiction by enabling the Court to regulate its procedure and protect its proceedings”.

[17] The question that becomes relevant in the instant discussion, is, therefore, where does the Court’s jurisdiction derives? In Vijay Construction (Pty) Ltd vs. Eastern European Engineering Ltd MA No 24/2020 (arising in SCA 28/2020) [2022] SCCA 5 (21 March 2022) Robinson J A had this to say;

“34. The primary source of the jurisdiction of the Court is found in the Constitution or Statute constituting that Court and investing it with authority to decide matters. That authority maybe be unlimited or limited. Numerous texts and authorities have suggested, that only Courts of unlimited original jurisdiction possess inherent jurisdiction”.

[18] As Judges, we often use the term “inherent jurisdiction”, when we feel that its use is necessary as a useful adjunct of one Court’s jurisdiction. Inherent jurisdiction is a creature of the English common law. Sir Jack Jacob has come up with a definition of inherent jurisdiction, which over the years, has been adopted in many common law jurisdiction, notably New Zealand, Canada and United Kingdom. He defines inherent jurisdiction as follows;

“residual source of powers, which the Court may draw upon as necessary, whenever it is just or equitable to do so, in particular, to ensure the observance of due process of the law to prevent vexation or oppression, to do justice between parties and to secure a fair trial between them”.

[19] The vexed questions that are for consideration at this juncture, are;

(i) is inherent jurisdiction different from common law jurisdiction, and if so, what are the differences?, And

(ii) is it necessary to retain inherent jurisdiction or common law jurisdiction, or indeed both, in order to ensure the proper and effective functioning of the Courts?

In exparte Millsite Investments Co (Pty) Ltd 1965 (2) SA 582 (T) at 585 – G-H, the Court had this to say about the inherent jurisdiction of the Supreme Court;

“apart from the powers specifically conferred by statutory enactment and subject to any deprivations of power by the same source, a Supreme Court can entertain a claim or give an Order which, at common law, it would be entitled to entertain or give. It is to that reservoir of power that references is made where in various judgments, Courts have spoken of the inherent power of the Supreme Court. The inherent power is not merely one derived from the need to make the Court’s Order effective, and to control its own procedure, but to hold the scales of justice where no specific law provides directly for a given situation. Underlined emphasis is mine.

[20] Pollak on jurisdiction (1993) makes the following comment, amongst others;

“In short, therefore, the position is that unlike, say the Magistrate’s Court or the industrial Court, the power of the Supreme Court is not spelled out in a legislative framework and limited by its creating statute, it inherently has all such power as entitles it to entertain, to hear all causes arising within the area over which it exercises jurisdiction”.

[21] Pollak then proceeded to give examples of the exercise by the Supreme Court of its inherent jurisdiction;

(i) to regulate their own proceedings.

(ii) to control their own officers.

(iii) to prevent abuse of their process.

(iv) to maintain their dignity.

(v) to ensure that substantial justice is not denied by a strict adherence to procedural rules.

As a point of caution, Pollak did emphasise, that inherent jurisdiction cannot be used to create substantive law.

[22] The effect of the exercise by the Supreme Court of its inherent jurisdiction, has been pronounced upon by Twomey, Justice of Appeal, who stated in Bristol v. Rosenbauer (SCA MA28/2021 [Arising in SCA 71/2018] (out of CS118/2012) [2022] SCCA 23 (29 April 2022), that;

“ When a Court is called to exercise its inherent jurisdiction, so that it can properly regulate its own proceedings, it is essentially called to exercise a function that it already has or has already been clothed with, or to exercise a power in order to allow its orders to be effective.”

[23] In Pollak’s view, the term common law jurisdiction is used in the context of the common law which is a source of jurisdiction, which in effect, means that the Courts define their own jurisdiction given that they are the final Judges of what the common law is. Clearly, therefore, the answers to the above questions, should all be in the affirmative.

[24] Inherent jurisdiction is non-Constitutional or non-statutory jurisdiction which the Courts employ in a range of circumstances. The Courts can use its inherent jurisdiction wherever and whenever it is just and necessary. One of the fundamental features of inherent jurisdiction, is that it is exercised as part of the administration of justice and in relation to the process of litigation. It is, therefore, procedural not substantive. As correctly stated by Robinson JA in Vijay Construction (Pty) Ltd (Supra) in this country, our Courts owe their existence not only by statutes but also the Constitution. History shows, that the entirety of the English Superior Court’s jurisdiction was inherent, in that, it had no statutory or Constitutional basis, and that the enactment of statutes slowly started to codify the majority of that jurisdiction. In essence, the powers and jurisdiction of the Court that remains uncodified or unregulated, overruled by statute, is the residual powers that has become known as inherent jurisdiction.

[25] In Liang’s view, inherent jurisdiction indicates some sort of substantive authority based on the original and unlimited jurisdiction superior Courts received from the sovereign. This he says, is different from inherent powers which were instead a type of procedural authority incidental to a Court’s statutory authority. In Adrian de Lange vs. Catherine Cillers (MA22/202) (Arising in DC137/2020), when addressing the nature and scope of inherent jurisdiction, I expressed my firm belief, that inherent jurisdiction “facilitate the Courts in exercising full judicial power in all matters concerning the general administration of justice, and is part of procedural law. I stated, that it is a “default power” that operates where there is no express power, and that you invoke it to ensure convenience and fairness”.

[26] The case of Auton Piller KG vs Manufacturing Processes Ltd [1976] (55 (CA) is an example where the concept of inherent jurisdiction has been used (in the English Court). This case established the jurisdiction to grant an exparte order to a party to enter, search and remove property from the premises for its opponent in civil litigation when it is likely that the opponent was going to destroy legal evidence. The Court of Appeal admitted, that there was little precedent, statutory or common law, to warrant such an Order, but that it was necessary so as to do justice between the parties, and therefore, justified through the invocation of the Court’s inherent jurisdiction.

[27] In other jurisdiction, notably Singapore, the inherent jurisdiction of the Court is recognised by rules of Courts, and is termed as follows;

“For the avoidance of doubt, it is hereby declared that nothing in these rules shall be decreased to limit or affect the inherent jurisdiction of the Court to make any Order as may be necessary to prevent injustice or to prevent abuse of the process of the Court”.

[28] In UMCI Ltd v Tokio Marine & Fire Insurance Co (Singapore) Pty Ltd and Others, the Court had to consider whether the Court’s inherent jurisdiction extended “to the making of Orders against persons who are not parties to this action, requiring them to furnish hand writing samples”. The Court held, that it had jurisdiction to make an Order for discovery under the rules of Court. In the alternative, however, the Court went on to consider whether it could invoke its inherent jurisdiction to grant the Order. It noted, “that rules of Court acknowledging the existence of inherent powers did not give the Court unlimited powers, and instead, the touch stone for the exercise of inherent jurisdiction was a necessity, whatever needed to be done to secure justice between the parties and avoid abuses of Court’s processes”.

[29] In Wee Soon Kim Anthony vs Law Society of Singapore [2011] 4, SLR 25 (SGCA) [26] the Court elaborated some principles which included the following;

“The Court may exercise its inherent jurisdiction not only to avoid “injustice”, but also, to avoid “serious hardship or difficulty or danger ………” (as in the instant case). Under current in this principle is the acceptance of the theoretically unlimited inherent jurisdiction.

[30] The inherent jurisdiction of the high Court in New Zealand was examined by the Supreme Court in New Zealand in Mafart v Television New Zealand Ltd, when Elias, CJ stated the following;

“except to the extent modified by statute and rules, the Court continue to have inherent jurisdiction and powers to determine its own procedure. The inherent jurisdiction is not ousted by the adoption of rules, but is regulated by the rules so far as they are extended. To the extent that the rules do not cover a situation, the inherent jurisdiction supplies the deficiency”.

[31] In the context of the discussion so far in the preceding paragraphs, can it be said, convincingly, that learned Counsel’s proposition, coupled with his arguments in support thereof, that this Court does have an inherent jurisdiction to decide certain matters, and that it can make use of such jurisdiction to grant the declaratory Judgment being sought. In other words, am I persuaded by his arguments, or I am not persuaded because his arguments do not hold water.

[32] Learned Counsel’s arguments, stem from the premise, that the Supreme Court of Seychelles has an unlimited jurisdiction which emanates from Article 125 of the Constitution as well as Section 5 of the Courts Act. For ease of reference, Article 125 of the Constitution reads;

“125 (1) There shall be a Supreme Court which shall, in addition to the jurisdiction and powers conferred by this Constitution, have;

1. Original jurisdiction in matters relating to the application, contravention, enforcement or interpretation of this Constitution.

2. Original jurisdiction in civil and criminal matters.

3. Supervisory jurisdiction over subordinate Courts, tribunals and adjudicating authority and, in this connection, shall have power to issue injunctions, directions, orders or writs including writs or orders in the nature of habeas Corpus, certiorari, mandamus, prohibition and quo warrant to as may be appropriate for the purpose of enforcing or securing the enforcement of its supervisory jurisdiction, and

4. Such other original, appellate and other jurisdiction as maybe conferred on it by or under an Act”.

[33] Section 5 of the Courts Act, reads;

“5. The Supreme Court shall continue to have, and is hereby invested with full original jurisdiction to hear and determine all suits, actions, causes and matters under all laws for the time being in force in Seychelles relating to wills and execution of Wills, interdiction or appointment of a curator, guardianship of minors, adoption, insolvency, bankruptcy matrimonial causes and generally to hear and determine all civil suits, actions, causes matters that may be brought or may be pending before it, whatever may be the nature of such suits, actions, causes or matters, and in exercising such jurisdiction, the Supreme Court shall have, and is hereby invested with, all the powers, privileged, authority, and jurisdiction which is vested in, or capable of being exercised by the High Court of justice in England. Underlined emphasis is mine.

[34] For the purposes of this ruling, it is also worth noting Section 6 of the Court’s Act, that reads;

“6. The Supreme Court shall continue to be a Court of equity and is a hereby invested with powers, authority and jurisdiction to administer justice and to do all acts for the due execution of such equitable jurisdiction in all cases where no sufficient legal remedy is provided by the laws of Seychelles”.

[35] By reference to Article 125 of the Constitution, and Section 5 of the Court’s Act, learned Counsel argued, correctly and convincingly, that the Supreme Court has an unlimited jurisdiction conferred upon it by the Constitution and statutes. His argument is supported by, and is accorded by Sauzier J’s passage in the case of Privatbanken v Aktieselskab when he stated, interalia, that;

21. It is submitted that the learned judge considered matters relating to the order he was being asked to make and continued regarding a nullity of a marriage in a case where both parties were not resident and domiciled in Seychelles, contrary to the rules of court;

“[51] Within the background of the elaboration and discussion of the law in the preceding paragraphs herein, I hold the view, that this Court does have an inherent jurisdiction to determine this application, and that it can exercise its inherent jurisdiction emanating from its unlimited jurisdiction to ensure convenience and fairness on both parties, particularly so, given that they both do not meet the statutory requirement as to domicile under the Civil Code of Seychelles Act, to annul their marriage. However, I say so with caution considering the opinion of Dingake JA in Vijay Construction (Pty) Ltd vs. Eastern European Engineering Limited SCA MA21/2020 [2020] SCCA (13 November 2020) that inherent jurisdiction cannot “circumvent legislation that confers jurisdiction on a Court”

22. The Petitioner further refers to Court of Appeal decision of her ladyship Dr. M Twomey-Woods, JA in Bristol v Rosenbauer referred to supra. stated;

“In Vijay Construction (Pty) Ltd v Eastern European Engineering Limited SCA MA 21/2020) /2020/ SCCA - 13 November 2020, Dingake JA cited the Kenyan Court of Appeal in the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Lid SCA MA 21/2020 /2020/ SCCA - 13 November 2020; as follows:

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

[7] Mr. Lucas for the Applicant conceded that the application he now makes was not made in the appeal. He submitted however that section 6 of the Courts Act (which grants equitable powers of the court) permits the Court to vary its earlier decisions. addressed by the court on the fact that the Court of Appeal has only appellate powers under the Constitution, he submitted that the case of Vijay Construction (Pty) Ltd v Eastern European Engineering Limited and Vijay Construction (Pty) Ltd v Eastern European Engineering (MA 24/2020 (Arising in SCA28/2020)) [2022] SCCA 5 (21 March 2022) (hereafter Vijay 2022) established circumstances in which the Court can exercise its inherent jurisdiction. He submitted that the type of “injustice” suffered by his client in the present case permits the court to reopen a matter in which it has already given a decision and to consider varying its previous orders.

………………………………………….

The jurisdiction or power of the court to rehear a case in which it has already delivered a decision

[10] In Vijay 2020, Dingake JA cited Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR to provide a useful definition of jurisdiction:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law ... whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. .../wlhere the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” (Emphasis added.)

[11] The Lillian ‘S case emphasised that jurisdiction flows from the law and the recipient-court is to apply the same, with any statutory limitations embodied therein. Hence, a court may not assume jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of the Legislature, where the wording of the legislation is clear and there is no ambiguity”

[12] In Seychelles, the jurisdiction of the courts is established in the Constitution and the Courts Act. Section 120 of the Constitution, plainly provides;

120. (1) There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgement, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.” (Emphasis added.)

[13] Similarly, section 12(1) of the Courts Act, provides as follows:

12. (1) Subject as otherwise provided in this Act or in any other law, the Court of Appeal shall, in civil matters, have jurisdiction to hear and determine appeals from any judgement or order of the Supreme Court given or made in its original or appellate jurisdiction. (emphasis added).

[14]. The jurisdiction of the Court of Appeal is expressly provided in those provisions - it is a court that hears appeals.

[15] Unlike the express provisions relating to the Supreme Court, neither the Constitution nor the Courts Act confers upon the Court of Appeal a primary “inherent jurisdiction” as it has been submitted it has. In any case, it appears that the phrase “inherent jurisdiction” is loosely used by Counsel or the Court when there is no provision of the law to fall back on to provide a remedy not catered for. In most cases, the use of the term is inappropriate as it seems not to refer to jurisdiction but to residual powers of common law courts, notably that of England. Counsel frequently urge the court to utilise its inherent jurisdiction in response to failures of procedural justice. In the absence of a specific statutory jurisdiction, the concept is also often invoked by judges to give efficacy to judicial proceedings. But when a court is called to exercise its inherent jurisdiction, so that it can properly regulate its own proceedings, it is essentially called to exercise a function that it already has or has already been clothed with, or to exercise a power in order to allow its orders to be effective. As has been pointed out, few concepts in the common law are so invoked and yet remain so nebulous. Sir Jack Jacob defines the concept as

“[....] residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

[17] As has been pointed out, inherent jurisdiction implies some residual powers that the courts may have to regulate their own process in certain circumstances. Jacob points out that superior courts possess inherent jurisdiction “to render assistance to inferior courts to enable them to administer justice fully and effectively” In this regard, superior courts have such jurisdiction or incidental powers to correct errors and ensure the efficacy of judgments. But as was pointed out by Dingake JA in the majority decision of Vijay 2022 the concept of inherent jurisdiction:

“cannot be an elastic band that may be stretched in whatever direction the court wishes to stretch it because the court cannot stand the instruction by the constitution that it has no power to do certain things. In every situation where the court is inclined to invoke its inherent jurisdiction it must do it in a manner that accords with the requirements of the constitution and as far as possible with the procedure ordinarily followed by this Court in similar cases. Under no circumstances should the power be used to ignore or circumvent legislation that confers jurisdiction on the court.”

More importantly, it is vitally important to distinguish between the powers jurisdictions of superior courts from appellate courts in terms of limits to their jurisdiction. As Goh Yihan explains in relation to the courts of Singapore:

“[S]uperior courts - strictly defined as those without a statutory foundation - possess an inherent jurisdiction, giving them a particular authority to hear and decide matters. Some courts are deemed by statute as superior courts, but this is only an indicator of their place on the judicial hierarchy: it does not grant them an inherent jurisdiction, which depends on a non-statutory origin.”

[18] After a comparison of courts’ approaches to inherent powers and jurisdictions in several common law countries, Goh concludes:

“Once the exercise of the inherent jurisdiction by various common law systems is examined, however, common denominators arise that provide it with definable substance. That substance takes the form of a set of three principles, namely that the inherent jurisdiction: (a) is exercised where necessary; (b) has the aim of avoiding injustice; and (c) exists in the absence of explicit statutory regulation, but is not easily wrested away from the courts by legislative action. The principles are an acknowledgement, among other things, that the inherent jurisdiction is far from the “joker in a pack”: there are constraints on its exercise…”

23. Her ladyship considered the possibility of the Court of Appeal having inherent jurisdiction in certain cases and went on; citing twice the article by Rosara Joseph, “Inherent jurisdiction and inherent powers in New Zealand” [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220 which clearly concluded as follows:

“Inherent jurisdiction denotes the substantive, non-statutory authority to take matters and determine them. Only the High Court, as a court of general jurisdiction, exercises the inherent jurisdiction that was inherited from the superior courts in England. Statutory courts, including superior appellate courts, do not possess inherent jurisdiction because their jurisdiction is conferred and limited by statute.” (emphasis added).

“Inherent jurisdiction denotes the substantive, non-statutory authority to take matters and determine them. Only the High Court, as a court of general jurisdiction, exercises the inherent jurisdiction that was inherited from the superior courts in England. Statutory courts, including superior appellate courts, do not possess inherent jurisdiction because their jurisdiction is conferred and limited by statute. But this fundamental tenet is sometimes obscured in the intricacies of judicial reasoning. The Court of Appeal in Smith wrongly assumed inherent jurisdiction to set aside the impugned decisions on appeal, and the Supreme Court in Zaoui wrongly assumed inherent jurisdiction to grant bail on direct application. Both Courts fudged the distinction between inherent jurisdiction and inherent powers. All courts - superior and inferior - possess inherent powers. Inherent powers arise incidentally to the exercise of jurisdiction and enable courts to function and protect their character as courts of justice. Their exercise is entirely parasitic and cannot found jurisdiction where there is none. The decisions in Smith and Zaoui leave unsettling and unanswered questions. It is unsatisfactory that our superior appellate courts must usurp jurisdiction to correct injustices. Any lacuna in the jurisdiction of either court ought to be squarely confronted. Careful amendment to the Supreme Court Act 2004 and the Judicature Act 1908 should be made to authorise these courts to set aside their ‘null’ decisions and to correct injustices.”

[24] In Seychelles, the exercise of inherent powers by the Court of Appeal, similarly to the exercise of its jurisdiction, is circumscribed by statutes and rules of court. Section 147 of the Seychelles Code of Civil Procedure Code, for example, allows the Court to correct mistakes in judgments or orders, or errors arising therein from any accidental slip or omission and section 150 further allows the alter, vary or suspend its judgment or order, during the sitting of the Court at which such judgment or order has been given.

[25] With regard to powers of the Court of Appeal, Rule 31 of the Seychelles Court of Appeal Rules in relevant part provides:

Power of the Court on appeal

31. (1) Appeals to the Court shall be by way of re-hearing and the Court shall have all the powers of the Supreme Court together with full discretionary power to receive further evidence by oral examination in Court, by affidavit or by deposition taken before an examiner or commissioner.

. . .

(5) In its judgment, the Court may confirm, reverse or vary the decision of the trial court with or without an order as to costs, or may order a re-trial or may remit the matter with the opinion of the Court thereon to the trial court, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the trial court might have exercised....

[26] The intent of the Rules is clear. The powers of the Court of Appeal are incidental and attendant to the exercise of its jurisdiction to enable the Court to consider matters on appeal from the trial court.

[27] In essence, inherent powers are utilised to give effect to the inherent jurisdiction conferred to the court by law. Siyuan C Is the invocation of inherent jurisdiction the same as the exercise of inherent powers? Re Nalpon Zero Geraldo Mario’ 17 (2013). International Journal of Evidence and Proof 367-373. It is logical to assume that where there is no jurisdiction, there is no power. Inherent power, according to Joseph, is power which is incidental or ancillary to their substantive jurisdiction. As such, it is exercisable in matters of procedure. Joseph R ‘Inherent jurisdiction and inherent powers in New Zealand’ 10 (2005) Canterbury Law Review 220

[28] In Singapore, the relationship between inherent jurisdiction and inherent power is explained in the case of Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo (1996) 2 S.L.R. (R) 80 (CA). to indicate that inherent jurisdiction is a precondition of the lawful exercise of a particular power - the former refers to authority to hear a matter, while the latter refers to the power to hear a matter.

[29] The decision of Fernando, JA, as he then was, in Ernesta & Ors v R (2017) SLR Part 2 379, inasmuch as it recognises the absence of power where the court has no jurisdiction is in agreement with this proposition. Fernando JA cites Attorney General v Tan Boon Pou 1 of 2005) (1 of 2005) [20051 SCCA 21 (24 November 2005) for the postulation that the Court of Appeal as a creature of statute, has no jurisdiction beyond that which is conferred on it by statute and goes on to state:

“19. There lies a distinction between “inherent jurisdiction” and “inherent powers” of a court. The two concepts are quite distinct. Inherent jurisdiction refers to a jurisdiction granted by law to a court to hear and determine a matter. By contrast, inherent powers have arisen to consummate imperfectly constituted judicial power.”

He cites in support Axiom Rolle PRP Valuation Services Ltd v Rahul Ramesh Kapadia and others NZAC, 43/06, in which inherent power is defined as:

“Court within jurisdiction. An inherent power is exercisable by all courts. It is a power which is incidental and ancillary to the primary jurisdiction. A court invokes its inherent power in order to fulfil its constitutionally-ordained function as a court of law. Inherent powers attach where a court has already been granted jurisdiction. Inherent powers necessarily accrue to a court by virtue of the very nature of its judicial function or its constitutional role in the administration of justice. Thus, inherent powers are part of a court’s resources; they are a necessary addition to the judicial function, facilitating the proper functioning of courts within the framework of jurisdiction granted to it by statute. Thus, whilst inherent jurisdiction is substantive, inherent powers are procedural”. (Emphasis added)

[32] The present matter also raises a substantive issue - costs - a matter that was neither raised with the trial court nor the Court of Appeal. The failure to argue or raise a discussion regarding costs during the appeal is not a matter that permits the Court of Appeal to reopen the hearing to hear arguments about which costs should apply - this clearly does not fall within the powers of the Court of Appeal even if it did have jurisdiction.

24. The Petitioner submits that the prayer in the Plaint was for commercial interest on withheld dividends and all other amounts in schedule 2 - SCR905,958.20. It is submitted that the Respondent suggests that the matter now before this court should have been presented to the Appellate court on appeal and that now the Applicant has lost the opportunity for not having done so and that this court is now functus and interest which has not been classed as commercial interest should be simple legal interest.

25. The Petitioner states that from the authorities above one must ask the following questions;

    1. was this a matter the Appellate court could have dealt with since it has no inherent jurisdiction to explain or a correct an ambiguity in a Supreme Court judgment which is a court of unlimited jurisdiction? What is debated now is the judgment of this court which was not amended in any way despite going through the appeal process; and

    2. is there anything in a statute which limits this court from using its inherent powers using its unlimited jurisdiction to correct or resolve any ambiguity in the interest award in this suit? The Applicant submits that this court has the power to make the necessary orders.

26. The Petitioner further submits that it is this judgment of this court that is being scrutinised and the Appellate court has no jurisdiction to look at the matter and the Petitioner is asking this court to exercise its inherent powers to either;

a. correct the ambiguity in the judgment which required the repayment of a solid block of funds whether they were dividends or otherwise as prayed for in the motion to mean commercial interest payable on the total sum held; or

b. to state whether the there is no ambiguity and this is exactly what the court meant that the interest would be at commercial rates only for the dividends; or.

c. in case b. above applies, to state what happens to the balance after deduction of dividends in terms of interest and whether it is partly commercial and partly legal interest.

27. The Petitioner’s counsel submits that if the court is minded to do so, the most reasonable option is perfect the judgment using the fact that the funds formed one block with no reason for differentiating between the descriptions of each component of the withheld amount. The Petitioner prays accordingly with cost of this application.

Analysis and Determination

28. The Petitioner, the Judgment Creditor, has filed an application for the Court to (a) determine and calculate commercial interest rate applicable to the Judgment Debt; and (b) to determine and/or clarify whether the said interest at commercial rate is on the whole of withheld amount of SCR905,958.20 or only on the dividend amount of SCR132,311. The Petitioner further states that it seeks the Court to put some rationality and common sense to its judgment and for this Court to use its inherent powers to perfect its judgment since it is a court of unlimited jurisdiction. The Petitioner argues that commercial interest rate applies to all withheld amount.

29. The Respondent, Judgment Debtor, has filed an objection to the effect that the court cannot hear the motion as doing so will be the court hearing a matter that should have been done during the hearing, specifically the quantum of the rate. Secondly, the court cannot pronounce itself on the issue of award of interest on the other parts of the judgment debts as no interest was awarded.

30. Having considered the Motion, plea in limine objections and Response to Plea in Limine, I am of the view that this Court cannot hear an application with respect of interest that was not awarded. In Chang Sing Chung v Kim Koon and Ors (MC 4 of 2020) [2022] SCSC 803 (19 September 2022) interest at a commercial rate was awarded only on unpaid dividen not the rest of the damages.

31. The Petitioner submitted extensively with regards to inherent and unlimited power of the court and specifically referred to Bristol v Rosenbauer (SCA MA 28 of 2021) [2022] SCCA 23 (29 April 2022). The case concerned an application before the Court of Appeal to reconsider costs awarded in decision already delivered by the Court of Appeal. The Court of Appeal extensively analysed the issues of inherent jurisdiction and inherent power. The Court of Appeal’s decision was that the Court was functus officio and majority decision was clear that the Court had neither jurisdiction nor power to vary its own previous order.

32. I further observe decision of the Court of Appeal in Adeline v Talma (SCA MA 36 of 2023) [2023] SCCA 54 (25 August 2023) where an applicant asked the Court of Appeal to rectify its judgment on interest. Referring to Bristol v Rosenbauer and Eastern European Engineering Limited v Vijay Construction (Proprietary) Limited) SCA MA 35/2022 [2022] SCCA 56 (Arising in SCA MA 24/2020) Out of SCA 28/2020 / CC23/2019 (21 October 2022) the Court of Appeal analysed whether it had the power to change anything in the judgment already delivered (see paragraphs [16]-[27]). However, the Court held that it had a power to correct its judgment under ‘slip rule’, specifically Rule 13 (2) of the Court of Appeal Rules. This circumstances are not applicable to present Motion. Court of Appeal in Adeline v Talma further held that “A court being functus officio, in its strictest sense, means three things: that it cannot rehear, review or vary its own judgment or order, except for when it is on appeal”.

33. Therefore, having previously found that interest at a commercial rate was awarded only on unpaid dividend amount, not the rest of the damages, this Court cannot alter its previous judgment due to it being functus officio.

34. It can, however, conduct a hearing solely to ascertain what constitutes an appropriate commercial rate based on either mutual agreement or statutory guidelines. Any determination made during this hearing should align with both statutory provisions and established case law interpretations regarding commercial interests.

35. Accordingly, the preliminary objections raised by the Respondent, Judgment Debtor, fail to the above extent; and the matter shall proceed on the determination of the applicable rates as per the Motion of the Judgment Creditor.

 

Signed, dated and delivered at Ile du Port on 5^th February 2025.

 

 

 

 

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Govinden CJ