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Mancienne v Government of Seychelles (SCA 10 of 2004)  SCCA 1 (17 February 2005);
IN THE SEYCHELLES COURT OF APPEAL
In the matter between
ROGER MANCIENNE Applicant
THE GOVERNMENT OF SEYCHELLES
(Represented by the Attorney General) Respondent
Case No: 10 of 2004
Hearing on 16 February 2005
Ruling on 17 February 2005
Mr. A. Derjacques counsel for the Applicant
Mr. A. Fernando (Attorney General) for the Respondent
R U L I N G
 This is an application made to a single Judge of this Court in terms of Rule 5 of the Seychelles Court of Appeal Rules 1978 (“The Rules”) for an order staying execution of a sentence which the Supreme Court (Alleear CJ) made on 9 September 2004 whereby the Applicant was ordered to pay, for an alleged contempt of court, a fine of R. 40,000 on or before the 28 February 2005 failing which to undergo imprisonment for thirty (30) days. The application is premised on the fact that the Applicant has lodged an appeal to this Court against the decision of the court below. It is thus the Applicant’s case that execution of the sentence in question pending appeal might work injustice in the event of this Court coming to a different conclusion from the court a quo.
 It is no doubt necessary to record that although he personally appeared at the hearing of the matter, the Honourable Attorney General did not oppose this application. He, however, fairly and professionally assisted the Court whenever called upon to do so during the court of argument.
 The jurisdiction of a single Judge of the Court in interlocutory matters such as this one is derived from Rule 5 of the Rules in the following terms:-
“A single Judge of the Court may exercise any power vested in the Court not involving the decision of the appeal; but if any Judge refuses an application for the exercise of any such power, the person making the application shall be entitled to have his application determined by the Court”.
 Before dealing with the merits of the application, it is necessary also to have regard to the provisions of Rules 28 (1) of the Seychelles Court of Appeal Rules 1978 on stay of execution. It reads as follows:-
“28. – (1) Except in the cases mentioned in sub-rule (3) of this rule, no appeal shall operate as a stay of execution, but the Supreme Court or the Court may stay execution on any judgment, order, conviction, or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in such judgment, order, conviction, or sentence as to such Court may seem reasonable”.
 It will indeed be observed that Rule 28(1) echoes s. 230 of the Seychelles Code of Civil Procedure (Cap. 213) which in turn reads as follows:-
“230. – An appeal shall not operate as a stay of execution or of a proceeding under the decision appealed from unless the court or the appellate Court so orders and subject to such terms as it may impose. No intermediate act or proceeding shall be invalidated except so far as the appellate court may direct”.
 Under normal circumstances, an application for stay of execution should first be made to the Supreme Court. That this is so is clear from the provisions of Rule 28(1) itself. Rule 20 of the Rules is also instructive in this regard. It provides as follows:-
“20. – Whenever application may be made to the Court or to the Supreme Court it should normally be made in the first instance to the Supreme Court”.
 It requires to be stated that the main reason why this Court acceded to hearing the application at first instance had largely to do with what the trial court said in its gratuitous advice to the Applicant (if one may say so with the greatest of respect to the learned trial Judge). This is what the Court a quo said on page 10 paragraph (d):-
“What follows may sound paternalistic but has to be stated. The first thing the respondent (now Applicant) should have been told by his legal adviser upon being made aware of the order on the 27 October 2004 was:-
(d) pray to the Court of Appeal for an order of stay of the Judge’s order”.
In my judgment, I consider that these remarks might reasonably have been construed as indicating that the learned Judge a quo would not be prepared to hear the application for stay of execution himself. That is sufficient for this Court’s intervention.
 A proper reading of Rule 28(1) of the Rules will show that the Court is vested with a discretion whether to grant a stay of execution. That, however, is a judicial discretion which may not be used arbitrarily, capriciously or for a wrong purpose. In exercising this discretion the Court should, as a general rule, determine what is just and equitable depending on the circumstances of each case. Without attempting to fetter the Court’s discretion, the following guidelines (by no means an exhaustive list) would normally play an important role:-
(1) the potentiality of irreparable harm or prejudice being suffered by a successful appellant on appeal in the event of execution being carried out. In this regard it is salutary to have regard to the warning sounded by Brett CJ 126 years ago on a correct approach to a stay of execution under English common law in Wilson v Church (No. 2)  12 ChD 454. He said this:-
“…I think that Mr. Benjamin has laid down the proper rule of conduct for the exercise of the judicial discretion, that where the right of appeal exists, and the question is whether the funds shall be paid out of court, the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory”;
(2) the potentiality of irreparable harm or prejudice being suffered by the respondent in the event of execution being stayed;
the need to balance the risk of doing injustice inherent in the event of execution being stayed as for example where the appellant absconds and does not prosecute his appeal. See Cayne and Another v Global Natual Resources plc , ALL E. R. 225 (CA);
the prospect of success on appeal. A relevant consideration here would be whether the appeal is frivolous or vexatious or has been filed not with the bona fide intention of seeking to reverse the judgment or order appealed from but for some alterior motive such as to buy time or harass the other party.
 Where, however, a litigant invokes the provisions of the Constitution on appeal, as here, this Court as a general rule ought to lean in favour of allowing such litigant to ventilate its complaint and thus grant leave to appeal on this ground alone unless the court is satisfied that the constitutional point taken is frivolous or vexatious.
 Now, the constitutional points raised by the Applicant in this matter appear in grounds 2 (a), (d), (e) and (g) of his grounds of appeal in the following terms:-
“(a) – the Honourable Court erred in law in failing to refer the case for contempt of Court to the Constitutional Court of Seychelles as per Article 46 (7) of the (Cap 42).
(d) – the Honourable Judge erred in law in failing to hold that the immediate Court hearing the Contempt of Court proceedings did not have jurisdiction to consider the said Contempt of Court charge in that the Appellant was protected by Article 22 of Cap 42 and no laws derogating from or establishing restrictions to his rights had been legislated.
(e) – the Honourable Judge erred in law in failing to hold that the Honourable Court sitting on the 27 day of October 2001 breach (sic) the Constitutional Rights of the Appellant namely Article 19 (7) and Article 22 of (Cap 42).
(g) – the Honourable Judge erred in law in failing to allow the Appellant to show cause on the merits and facts of the case why he should not be convicted for Contempt of Court. The Honourable Judge breach (sic) Article 19 (7) of Cap 42”.
 There can be no doubt, in my judgment, that the grounds of appeal advanced by the Applicant raise important constitutional questions the validity of which require determination by this Court.
 Weighing all of the aforefoing considerations, it follows that the application must succeed. It is, however, necessary to impose such conditions as will ensure that justice is done in the matter.
 Accordingly, the following order is made:-
“The sentence of the Supreme Court (Alleear CJ) made on 9 December 2004 whereby the Applicant was ordered to pay a fine of R40,000 on or before the 28th February 2005 failing which to undergo imprisonment for thirty (30) days is hereby stayed pending the finalization of the appeal in the matter and further on the following condition:-
that the Applicant provides two independent sureties who shall in turn file security bonds with the Registrar in the sum of Rs.20,000 each (not cash) on or before the 25 February 2005.
M. M. RAMODIBEDI
Delivered at Victoria, Mahe this 17th day of February 2005