Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (Constitutional Court Case 7 of 2010) [2011] SCCC 1 (1 February 2011)

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

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.

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.

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.

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.

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.

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.

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.

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.

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.’

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.

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.

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.

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.

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.’

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.’

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.

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.

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.

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.

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).’

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.

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.

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.

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.

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.’

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.

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.

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.

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.

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.

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.’

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.

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.

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