Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (007 of 2010) ( CP 7/2010) [2011] SCCC 1 (31 January 2011);


THE REPUBLIC OF
SEYCHELLES







IN THE
CONSTITUTIONAL COURT OF SEYCHELLES







[Coram:
Egonda-Ntende, CJ; Burhan & Dodin, JJ
.)







Constitutional Case
No 007 of 2010





1.Subaris
Company Ltd }


2.Notlake
Ltd }


3.Karan
Chand Thapar and Bros Ltd }:::::::::::::::::::::::::::::::::::
Petitioners


4.Bellapur
Industries Ltd }


5.Ailee
Development Company Ltd }






Versus





1.The
Seychelles Court of Appeal }::::::::::::::::::::::::::::::::::::
Respondents


2.The
Attorney General }









Bernard
Georges for the Petitioners





Ronny
Govinden, Attorney General for the Respondents










RULING










Dodin
J






I had the benefit of
reading in draft the decision by Egonda-Ntende CJ. I concur.











C
G Dodin


Judge





Burhan
J






I have read the
decision by Egonda-Ntende CJ. I concur.








M
Burhan


Judge





Egonda-Ntende
CJ










  1. This is a ruling
    arising out of preliminary objections to this petition that the
    learned Attorney General raised against this
    petition. The petition
    against the respondents seeks a declaration from this court that the
    Petitioners did not get a fair trial,
    in contravention of Article 19
    of the Constitution, in the hearing and determination of its appeal
    resulting in a judgement delivered
    by Seychelles Court of Appeal
    Civil Appeal No. 13 of 2008 on 7 May 2010. The petition seeks an
    order of certiorari from this
    court to quash the whole of the court
    of appeal judgment with costs.









  1. The appeal in
    question was an appeal against a decision of a single judge of the
    Supreme Court made on 23 June 2008. It is common
    knowledge that
    there is constitutional petition against the single judge in this
    Court alleging that the right to a fair trial
    of Petitioner no.5 had
    been violated. That case has not been determined.









  1. In written
    objections set forth by the Attorney General it is contended that
    this petition is incompetent, frivolous and vexatious
    and amounts to
    an abuse of court process on the following grounds. Firstly that the
    proper procedure was for the Petitioner to
    make an application to
    the Court of Appeal by notice of motion, invoking the Court’s
    inherent jurisdiction, instead of
    bringing this action before the
    Constitutional Court.









  1. Secondly that the
    Court of Appeal should not have been named as a respondent. Thirdly
    that the President of the Court of Appeal
    and all the Justices of
    Appeal enjoy immunity from legal actions in performance of their
    functions and that as such no cause
    of action was disclosed against
    the respondents.









  1. Fourthly that
    Petitioners no.1 to no.4 were not parties before the Supreme Court.
    Nor did they file any claims under the winding
    up regulations. Leave
    to appeal was not granted by the Supreme Court. They were not
    parties before the Court of Appeal. Therefore
    they do not have locus
    standii
    in this matter. Petitioner no. 5, being now in
    liquidation, is not competent to bring this action, on its own
    behalf.









  1. The Respondent no.2
    prays that as this action against him is only based on rules 3(3) of
    the Constitutional Court Rules this petition
    ought to be dismissed.









  1. In his oral
    submissions to the court, Mr. Govinden, submitted that the Court of
    Appeal had in the case of Franky Simeon v Republic of Seychelles
    and Anor Criminal Appeal No 26 of 2002
    decided that in cases of
    this nature the only course of action to an aggrieved party of a
    decision of the Court of Appeal was
    to return to the Court of Appeal
    with a motion in the matter. The Court of Appeal held that no
    constitutional action is maintainable
    in the Supreme Court in
    respect of the same. The Simeon case, submitted Mr Govinden, was on
    all fours with this present case.
    The Simeon case further decided
    that neither the Justices of Appeal nor the Court of Appeal itself,
    can be made a party to such
    proceedings. That decision was
    consistent with the decision of this court in Frank Elizabeth v
    President of the Court of Appeal
    .









  1. Mr Govinden further
    submitted that the Petitioners no.1 to no.4 were not parties to the
    proceedings in the court of appeal and
    earlier on before the Supreme
    Court. They have no locus standii to bring this action as no
    provision in relation to the Constitution can be alleged to have
    been contravened in relation to themselves.
    As for the Petitioner
    no.5, as it was in liquidation, it lacked the capacity to institute
    this action in light of Section 222
    of the Companies Act. It is only
    the liquidator, with a few exceptions, with the permission of the
    court, who brings proceedings
    in the companies’ names. The
    instant case does not fall in one of the exceptions.









  1. Mr Bernard Georges,
    learned counsel for the Petitioners, opposed the preliminary
    objections. He submitted that the factual basis
    of this petition was
    that the Petitioner no.5 was wronged by the Supreme Court. It
    appealed to the Court of Appeal on lengthy
    grounds of appeal. He
    summarised the facts thus,








The
Court of Appeal proceeded to hear the appeal on the basis of very
short submissions. The Court of Appeal made it very clear
that the
heads of argument that have been filed was substantive and wished
only to hear matters which had not be rehearsed in there.
The Court
of Appeal then delivered a Judgment in which it was clear and it made
it clear that it was not going to consider one
important ground of
appeal. It did that without seeking from either side in the appeal
any guidance as to whether it ought or ought
not to hear that ground.
On that basis the appellant felt that its right to a fair hearing
under Article 19 had been transgressed
and is now seeking relief.’








  1. Mr Georges
    submitted that he had actually followed Franky Simeon V Republic
    of Seychelles
    and made a motion to the Court of Appeal but sadly
    his motion was rejected by the President of the Court of Appeal,
    without hearing
    him. The only solution left to the Petitioners was
    to come to the Constitutional Court which has been mandated to hear
    all such
    complaints of constitutional breaches. And that is why this
    present petition is before the Constitutional Court today.









  1. Mr Georges
    submitted that the case of Frank Elizabeth v President Court of
    Appeal
    was not applicable to the case as hand. Frank Elizabeth
    case was decided on the basis that the petition was frivolous and
    vexatious.
    It did not show any right that had been violated. Mr
    Georges submitted that this court should be guided by the Court of
    Appeal
    decision in the case of Bar Association of Seychelles and
    Anor v The Attorney General
    in which it was decided that the
    joinder of individual judges was both proper and essential.









  1. With regard to the
    issue of immunity of the judges, Mr Georges submitted that if the
    President of the Republic or the Speaker
    of National Assembly could
    be sued directly in their names why not the judges? Article 119 that
    granted them immunity was subject
    to the rest of the constitution
    and it was proper to sue judges, if in the performance of their
    duties they violated the Constitution.









  1. With regard to the
    capacity of the Petitioner no.5 to bring proceedings Mr Georges
    submitted that where it was in liquidation
    it was possible and
    permissible for the shareholders to bring an action and that is why
    the Petitioners no.1 to no.4 are before
    this court. Secondly since
    the Petitioner no.5 had a right to appeal to the Court of Appeal,
    and it was not challenged, it could
    not be similarly challenged
    here. He therefore submitted that the preliminary objections should
    be rejected.









  1. The facts of Franky
    Simeon v The Republic of Seychelles and Anor
    are that the Court
    of Appeal had heard an appeal by the appellant from a decision of
    the Supreme Court. The Court of Appeal dismissed
    that appeal. The
    Appellant then proceeded to the Constitutional Court and challenged
    the decision of the Court of Appeal on the
    ground that his right to
    a fair trial had been breached. He lost in the Constitutional Court
    and then appealed to the Court of
    Appeal. In a unanimous decision,
    the Court of Appeal, stated in part,








We
listened carefully to the arguments of Learned Counsel for the
appellant and we are of the opinion that in addressing us on the

issue of fair hearing she was trying through the backdoor as it were,
to reopen issues that had already been canvassed and decided
upon by
the Seychelles Court of Appeal (Criminal Appeal No. 7 of 2001),
namely,.................................................................................................

This, we are afraid, she cannot do i.e. have another bite at the
cherry and review on its merits a decision of the Seychelles Court
of
Appeal on account of public policy considerations. If the appellant
were allowed to have a review on its merits a decision of
the
Seychelles Court of Appeal— (a)he would in effect be
criticising a decision of the Seychelles Court of Appeal to its
face
and, what is worse, allowing the Constitutional Court, a subordinate
Court to the Court of Appeal, to review on its merits
a decision of
the Court of Appeal which, it must be stressed, is the final Court of
Appeal of Seychelles. (b) he would be opening
the flood gates to
other unsuccessful appellants and, in so doing, seriously
compromising the fundamental principle of the finality
of judgments
of the Seychelles Court of Appeal.’







  1. The
    Court of Appeal then went on to state later on,








We
wish to point out for future guidance that if the Seychelles Court of
Appeal is alleged by any litigant to have denied him his
right to a
fair hearing, as in the present case, the proper procedure to follow
is to make an application by way of notice of motion
to this Court
and invoke the latter’s inherent jurisdiction in the matter,
instead of going to the Constitutional Court,
as was done in the
Marzorchi case, cited above. Moreover, it is open to the
Constitutional Court to transfer any such application
made before it
to the Seychelles Court of Appeal, pursuant to Article 46 (4) of the
Constitution of Seychelles.’








  1. This Franky
    Simeon v Republic of Seychelles and Anor
    decision by the Court
    of Appeal is binding on this Court, given that it was given in
    respect of an appeal from a decision of
    this Court. I agree with Mr.
    Govinden the present action before us is incompetent as it ought not
    to have been filed here.













  1. Given the recurring
    nature of similar challenges both before the Constitutional Court
    and the Court of Appeal, regardless of established
    precedent, I
    shall demonstrate below why I maintain that the decision in Franky
    Simeon v Republic of Seychelles and Anor
    represents the current
    and correct position in law on the question at hand.









  1. The constitutional
    architecture of Seychelles as ordained by the Constitution is made
    of 3 arms of state. These are the Executive,
    Legislature and the
    Judiciary. To each arm of government the constitution assigns
    responsibility and provides for its organic
    composition and
    structure. With the Judiciary, two superior courts are created by
    the Constitution, namely, the Court of Appeal
    and Supreme Court.









  1. The Constitutional
    Court is created as a division of the Supreme Court, and not as a
    separate court. This is evident from Articles
    125 and 129 of the
    Constitution. Article 125 states in part,








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

(a)
original jurisdiction in matters relating to the application,
contravention, enforcement or interpretation of this Constitution
;
(b) original jurisdiction in civil and criminal matters; (c) (d) (2)
Proceedings in respect of matters relating to the application,

contravention, enforcement or interpretation of this Constitution
shall take precedence over other matters before the Supreme Court.







  1. Article
    129 states in part,








(1)
The jurisdiction and powers of the Supreme Court in respect of
matters relating to the application, contravention, enforcement
or
interpretation of the Constitution shall be exercised by not less
than two judges sitting together
.
(2) Where two or more Judges sit together for the purposes of clause
(1), the most senior of the Judges shall preside.
(3)
Any reference to the Constitutional Court in this Constitution shall
be a reference to the Court sitting under clause (1).








  1. The term
    Constitutional Court is nomenclature adopted by the Constitution to
    refer to the Supreme Court in exercise of its jurisdiction
    relating
    to the ‘application, contravention, enforcement or
    interpretation of the Constitution.’ No new court was

    established as such but it was a convenient reference to the Supreme
    Court sitting to exercise special jurisdiction.













  1. The constitutional
    architecture for the judiciary is an hierarchy of 2 superior courts,
    the Court of Appeal and the Supreme Court,
    with decisions of the
    Supreme Court appealable to the Court of Appeal. The Court of Appeal
    is the court of last resort in the
    land. The Constitutional Court is
    not separate from the hierarchy of courts, or may be, a constituent
    power, outside of the judiciary
    as is the case in some models in
    Europe, West Africa or the post apartheid Constitution of South
    Africa of 1995. Where that is
    the case it is then possible to
    challenge the constitutionality of decisions of the courts including
    the last appellate court
    in such a constitutional court.









  1. The constitutional
    architecture does not permit challenge of the decisions of the Court
    of Appeal, in the Constitutional Court,
    in another bout of
    litigation alleging that the Court of Appeal erred constitutionally
    in its conduct of a hearing or in its
    decision. To allow it to
    happen is to fatally damage the foundations of the hierarchy of
    courts created by the Constitution with
    the court of final resort
    not at all being a court of final resort, opening an endless and
    indeterminate stream of litigation,
    and consigning litigants to the
    Dickensian times.









  1. What the
    Petitioners are seeking to do in this petition is outside of our
    constitutional model as presently laid down. Had the
    framers of the
    Constitution intended a court with the kind of jurisdiction that is
    pressed upon us now, not only would they have
    provided for it
    expressly, but most probably they would have had to set the
    Constitutional Court apart from the established hierarchy
    of courts,
    as was done with the 1995 Constitution of South Africa.









  1. This position is
    underscored by the provisions of Article 46(7) of the Constitution
    which states,








Where
in the course of any proceedings in any court, other than the
Constitutional Court or the Court of Appeal, a question arises
with
regard to whether there has been or is likely to be a contravention
of the Charter, the court shall, if it is satisfied that
the question
is not frivolous or vexatious or has already be the subject of a
decision of the Constitutional Court or the Court
of Appeal,
immediately adjourn the proceedings and refer the question for
determination by the Constitutional Court.’








  1. This article
    contemplates that if any questions of contravention of the
    fundamental rights and freedoms under the Charter were
    to arise in
    proceedings before the Court of Appeal these questions were not to
    be referred to the Constitutional Court. The Court
    of Appeal itself
    was competent to deal with them and answer those questions. By
    analogy it would follow in case the constitutional
    question arose
    with the conduct of the Court of Appeal itself in the hearing and
    determination of a matter that question had
    to be put to the Court
    of Appeal directly. Franky Simeon V Republic of Seychelles and
    Anor
    (Supra) provided a procedure as to how those questions
    should be raised and answered before the Court of Appeal.









  1. It is common cause
    from the bar that the Petitioners did attempt to do so but on a
    decision made by the President of the Court
    of Appeal that attempt
    was rejected without an oral hearing. May be the Petitioners may be
    entitled to petition the full court
    for a hearing from a decision of
    a single judge of the Court of Appeal so that the full court can
    pronounce itself, but of course
    this is subject to the rules of that
    court and I cannot say more.









  1. All in all I would
    uphold the first ground of the preliminary objection by the Attorney
    General that this petition is incompetent
    in so far as it is in the
    wrong forum. This court has no jurisdiction to review decisions of
    the Court of Appeal.









  1. With regard to
    whether an action can lie against the Court of Appeal, Mr Georges
    cited Bar Association of Seychelles and Anor v The Attorney
    General and others
    as authority for the proposition that judges
    and in fact the courts can be made a party. I would think this
    decision has interpreted
    more broadly than the case ought to be. The
    decision must read and understood in light of the particular facts
    of that case.
    In that decision what was being challenged, i.e. the
    subject matter of the case, was not a decision of the judges,
    sitting as
    judges. The subject matter was the appointment of some
    three judges and the question was whether they should be made party
    to
    the litigation. The Court of Appeal decided that they could
    rightly be cited as parties as they had an interest in the subject

    as individuals. This was therefore not a question that raised the
    matter of immunity for judges in performance of their functions.
    The
    Bar Association of Seychelles and Anor v The Attorney General and
    others
    is no authority for the proposition that judges and the
    courts on which they sit may be cited as parties in challenges to
    the
    decisions that they have made. It did not decide that question.









  1. I am unable to
    subscribe to the position that Mr. Georges pressed on us, to the
    effect that since Article 119 of the Constitution
    that provides
    immunity for judges in the performance of their functions, states
    that it is subject to the Constitution, then
    judges can be sued over
    decisions they make as judges. If that were the case the immunity
    granted by Article 119 would be hollow
    and of no consequence. I am
    not able to imagine when it could be applicable. The constitutional
    provision would essentially provide
    no protection for the judges.
    The other alternate view is that judges have immunity in the
    performance of their functions except
    where the Constitution has
    specifically allowed proceedings against the judges as in Article
    134 of the Constitution that provides
    for removal of judges. In such
    a case proceedings, including proceedings in relation to the
    performance of a judges functions
    may be taken, as provided by the
    Constitution and the judge would not be able to claim immunity under
    article 119 of the Constitution.









  1. If one were for
    instance to use a moot example, if one of the parties to a case in
    court, complains, as the Petitioners do in
    this case, but were to go
    further and claim that the panel or one of the members of the panel
    engaged in conduct that was so
    outrageous that it amounted to
    misbehaviour, leading to questions of whether a judge should be
    removed from office for misbehaviour,
    it would not be open to the
    judge or judges in question to set up immunity as a defence, simply
    because the conduct that is the
    substance of the allegations against
    them occurred in the course of the judge performing his functions.
    The proceedings that
    would be commenced against the judge in
    accordance with Article 134 would not be defeated by an immunity
    claim as the immunity
    under Article 119 is not absolute. It is only
    a proceeding that is specifically authorised against the judge by
    the Constitution
    that would be able to override the immunity
    accorded to judges under Article 119 of the Constitution in respect
    of ‘any
    proceedings or suit for anything done or omitted to be
    done by them in the performance of their duties.’









  1. However the
    question before us is not whether Article 119 applies in this
    instance as no judge has been sued. The petition is
    against the
    Court of Appeal, and not the Justices of Appeal. The Court of Appeal
    is a body established by the Constitution, not
    as a body corporate.
    It is not a juristic person by law or naturally. The authority
    granted to it does not include powers to
    sue or be sued in its name,
    which is an essential attribute before legal action can be commenced
    by or against a statutory body
    or in its name. No action in my view
    can lie against the Court of Appeal as it is not a juristic person.
    This action against
    the Court of Appeal is misconceived.









  1. I do not find it
    necessary to consider the other grounds raised by the Attorney
    General. This action is simply not maintainable
    against the Court of
    Appeal. Neither is it, in the circumstances of this case,
    maintainable against the Attorney General. I would
    dismiss this
    petition.









  1. As Burhan and Dodin
    JJ agree this petition is dismissed.









Signed,
dated and delivered at Victoria this 1st day of February
2011

















FMS
Egonda-Ntende


Chief
Justice




















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