Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (007 of 2010) ( of ) [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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