Attorney General v Pou (1 of 2005) (1 of 2005) [2005] SCCA 21 (24 November 2005);


IN THE SEYCHELLES COURT OF APPEAL


Case No. SCA 1 of 2005


In the mater between


ATTORNEY GENERAL Applicant


and


TAN BOON POU Respondent

========================================

Before: Ramodibedi, P., Bwana, JA., and Hodoul, JA.


Heard on: 15 November 2005

Judgment delivered on: 25 November 2005


Mr. B. Hoareau for the Applicant

Mr. F. Chang-Sam for the Respondent


JUDGMENT


Ramodibedi P.



[1] This case raises an important question relating, as it does, to a determination whether this Court has original jurisdiction or power of review (as opposed to an appeal) over decisions of the Supreme Court. The matter comes before us in the following circumstances. The Respondent stood trial before the Supreme Court (Renaud J) for an alleged contravention of foreign currency legislation. The charge preferred against the Respondent described the alleged offence as “unauthorised possession of Foreign Currency contrary to section 1 (3A) of the Exchange Control Act (Cap 76) as amended by Acts No. 5 of 1999, No. 4 of 2001 and No. 5 of 2001 read with paragraph 1 (1) of Part II of the Second Schedule of the said Act and punishable under paragraph 1 (3) read with 1 (4) of Part II of the Second Schedule of the said Act.”


[2] The particulars of the offence alleged that on 14 October 2003 and at the Seychelles International Airport, the Respondent “had in his possession Foreign Currency, namely three thousand one hundred and seventy (3170) US Dollars in currency notes and two thousand seven hundred and thirty five (2735) Euro in currency notes which had not been obtained from an authorised dealer and without having obtained the permission of the Exchange Controller to possess such Foreign Currency.”


[3] The Respondent pleaded not guilty to the charge and at the close of the prosecution case, he was acquitted in terms of section 183 of the Criminal Procedure Code (Cap 54) hereinafter referred to as “the Code” following a submission of no case to answer. That section reads as follows:-


183.If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.”


The Court a quo ordered the return to the Respondent of the foreign currency notes forming the subject matter of the charge.


[4] Aggrieved by the Respondent’s acquittal, the Applicant has now approached this Court, not on appeal but by way of review. As I understand it, the Applicant’s main ground for review is that the Supreme Court’s acquittal of the Respondent is contrary to law and illegal in as much as that court failed to consider the evidence led by the prosecution and that the admitted defect in the charge was not such as to lead inexorably to an acquittal.


[5] It was specifically submitted by Mr. Chang-Sam, counsel for the Respondent, in his heads of argument that this Court is not vested with power to review or entertain an appeal against a decision of the Supreme Court to acquit in a criminal case.


[6] In fairness to the Applicant, it requires to be stated at the outset that when this matter was called at the Roll Call on 14 November 2005, it was submitted from the Bar by Mr. Hoareau on his behalf that the application was being withdrawn. Mr. Chang-Sam consented to the withdrawal which was by consent granted with no order as to costs. It is important to record, however, that the order allowing the withdrawal of the appeal at that stage was made subject to the Applicant filing a formal notice of withdrawal in accordance with Rule 22 of the Seychelles Court of Appeal Rules 2005.


[7] On the day set down for the hearing of the application, namely on 15 November 2005, the parties’ legal representatives duly appeared in this Court but no notice of withdrawal had been filed by the Applicant. The parties’ legal representatives were still in agreement, however, that the matter should be withdrawn.


[8] Asked by the Court to motivate the reason for the withdrawal, Mr. Hoareau for the Applicant unreservedly submitted that this Court has no power of review in the matter. Mr. Chang-Sam for the Respondent then submitted that the Applicant should pay costs. When this Court reminded him that on the previous day he had consented to an order of no costs, he conceded that this was indeed so. He, however, submitted that his apparent change of heart was caused by something that the Applicant had subsequently allegedly done to the Respondent despite the withdrawal in question. I should say that this Court would obviously not want to get involved in, nor is it advisable for us to hear about the alleged incidence at this stage in case we are called upon to decide on it in future. It shall suffice merely to add that the order of costs as reflected hereunder was influenced by the Respondent’s initial consent thereto.


[9] At this juncture, I should like to stress that, while this Court has no difficulty in confirming the withdrawal in question, it is necessary to state the reasons for acceding thereto and also to give guidance in future. This is so because of the huge importance of the issue raised in this matter to the criminal justice system in this country. I may add that counsel on both sides fully supported this course.


[10] Now, Rule 22(1) of the Seychelles Court of Appeal Rules 2005 provides as follows:-


An appellant may at any time after filing the notice of appeal and before the appeal is called for hearing serve on the parties to the appeal and file a notice with the Registrar to the effect that he does not intend further to prosecute the said appeal.”


In future, therefore, this Court will strictly expect litigants to file proper notices of withdrawal as stipulated in this Rule rather than apply from the Bar to have matters withdrawn.

[11] It is now opportune to determine whether the Attorney General’s withdrawal was well taken. This in turn leads to the question: does this Court have original power to review decisions of the Supreme Court? A useful starting point in a matter such as this is always the Constitution itself as the supreme law in terms of Article 5 thereof.


Article 120 (1) and (2) of the Constitution provides as follows:-


120. (1) There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgment, 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 the Act.” (Emphasis added.)


I have deliberately underlined the word “appeals” to highlight, at the outset, the fact that the Constitution has clearly conferred jurisdiction on this Court specifically to hear appeals and not review from decisions of the Supreme Court. I shall deal with this point more fully later but, first, it is necessary to have regard to the provisions of section 342 (6) of the Code (as amended by section 2 (a) of the Criminal Procedure Code (Amendment) Act No. 14 of 1998). That section reads as follows:-


(6) Except as it is otherwise provided in this section an appeal shall not lie against an acquittal, conviction, decision, declaration, decree, direction, order, writ or sentence passed by the Supreme Court.” (My own underlining for emphasis.)


[12] It will be noted at the outset that this section was undoubtedly motivated by the obiter dictum (obiter in the sense that the decision in question ultimately rested on the fact that there was a prima facie case for the accused to answer and not whether or not he had the right to appeal) of this Court in Treffle Finesse v The Republic Cr. Appeal No. 1 of 1995 (unreported) which in turn followed the case of Durdunis v The Republic Cr. Appeal No. 12 of 1993 (unreported). Therein this Court was grappling with Article 120 (2) of the Constitution which reads as follows:-


Except as this Constitution or an Act otherwise provides, there shall be a right to appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.”


It proves useful to quote what this Court then said on page 3 of its judgment:


The words “Except as this Constitution or an Act otherwise provides” envisage provisions which are expressly exclusionary and which exclude a right of appeal. Where the Constitution confers a right such right can only be taken away, where the Constitution so permits, by statutory provisions which are expressly and manifestly exclusionary. Section 342 (2) of the Code which provides for a right of appeal cannot be interpreted as provision which excludes a right of appeal where the Constitution has conferred such right. It would have been a different matter if the Criminal Procedure Code had provided that no appeal shall lie to the Court of Appeal from a decision of the Supreme Court in any criminal cause or matter except as provided by the Code. To achieve the result which the Republic urges on this appeal we are of the view that there will be need to amend the Criminal Procedure Code in the line suggested above. We feel no hesitation in holding as we did in the case of Durdunis v. The Republic (Cr. Appeal No. 12 of 1993) (unreported judgment of 24th March 1994) that that result will not be achieved by a strained construction of Art. 124 (2) of the Constitution or reading into section 342 (2) of the Code what it does not contain. We seize this opportunity to re-iterate the view we held in Durdunis Case that:


“… the wider right of liberty to appeal granted by Article 120(2) cannot by implication be circumscribed by the provisions of the Criminal Procedure Code, and of section 329 (now section 342) thereof in particular. Exclusion of the right of appeal is permitted by the Constitution but such exclusion must be by express statutory provision.”


We feel that there is urgent need to amend the Criminal Procedure Code to specify expressly and beyond per-adventure circumstances in which rights of appeal in criminal cases and matters are excluded. Be that as it may, for the reasons which we have stated we were of the view that the preliminary objection to the hearing of the appeal should not be upheld. We overruled the objection accordingly.”


[13] Thus, we are now at a point where the Legislature duly stepped in as advised by this Court and decisively decreed in its own wisdom and in plain and unambiguous language that in terms of section 342 (6) of the Code, an appeal shall not lie, inter alia, against an acquittal. It is against this background that the Applicant now seeks to invoke what he perceives to be the inherent “review power” of this Court. I find no difficulty, however, in concluding, in these circumstances, that the Applicant is simply seeking an appeal disguised as a review. He obviously does so on the realisation that the door for an appeal has now been shut firmly in his face by section 342 (6) of the Code.


[14] Indeed, I respectfully find myself in agreement with the remarks of Cooke P, in the Court of Appeal of New Zealand in CBI NZ Ltd v Badger Chiyoda [1982]2 NZLR 669 at 673-674. The learned President said this:


The judgment to set aside an award for error of law on its face is ultimately an inherent common law one and is technically classified in New Zealand or English law as review rather than appeal. In substance, however, it gives a limited right of appeal on questions of law. There is no difficulty in concluding that within the meaning of article 24 of the ICC rules (which, as here, waived any right of appeal) this is a form of appeal. It is precisely the kind of derogation from the finality of an award which the framers of the ICC rules would have intended to prevent so far as that could validly be done under the local law governing the particular arbitration.”


[15] Mr. Chang-Sam has boldly submitted that the extended meaning given to the word “appeal” in the Rules of the Court of Appeal is, to quote his words, warts and all, “inconsistent with and ultra vires of the article 120” of the Constitution as fully reproduced in paragraph [11] above. For reasons that follow hereunder this submission is, with respect, misconceived. The Rule in question is Rule 2(1) on interpretation and it reads as follows:-


2(1) In these Rules, unless inconsistent with the context –


appeal” includes revision, review, reference, case stated and point of law reserved.”


[16] It is perhaps not inappropriate to stress that there is indeed a fine line between an appeal and a review. In South Africa, Trollip J in the case of Ticky and Others v Johannes NO and Others 1963 (2) SA 588 (T) 590F – 591A correctly held, in my respectful view, that an appeal usually falls into one of the following categories:


(i) an appeal in the wide sense, that is, a complete re-hearing of, and fresh determination of the merits of the matter with or without additional evidence or information;


(ii) an appeal in the ordinary sense, that is, a re-hearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether that decision was right or wrong and more importantly as far as the instant case is concerned;


  1. a review, that is, a limited re-hearing with or without additional evidence or information to determine, not whether the decision under appeal was correct or not, but whether the arbiters had exercised their powers and discretion honestly and properly.


[17] Indeed it is undoubtedly right to say that, as was correctly stated by De Villiers CJ some eighty four years ago in the South African case of Klipriver Licensing Board v Ebrahim 1911 AD 458 at 462, “[e]very appeal is in the nature of review.”


[18] In fact it is further salutary to note that the ordinary meaning of the word “appeal” as defined in Collins Dictionary and Thesaurus is, “the judicial review by a superior court of the decision of a lower tribunal.”


[19] Thus, it is in the context set out above that Rule 2 (1) of the Seychelles Court of Appeal 2005 defines the word “appeal” to include review. Let it be stated in the clearest possible terms, however, that, as subordinate legislation, this Rule does not confer jurisdiction on this Court to exercise original review power. Its true import lies in the fact that, in exercising its appellate jurisdiction in an appeal properly brought before it, this Court is fully entitled to “review” the decisions of the Supreme Court in the limited sense set out above. The Court’s power of “review” in this context stems from an appeal in each particular case and is as such not original power of judicial review.


[20] As I have previously alluded to in paragraphs [1] and [11] above, the short question which arises for determination in this matter is, therefore, whether this Court is vested with original review power outside of its appellate jurisdiction.


[21] Since the Constitution does not confer original review power on this Court to “review” decisions of the Supreme Court as such, it is necessary to determine whether such power exists either statutorily or at common law. In this regard, I observe at once that neither the Code nor the Courts Act (Cap 52) (“the Act”) confers such jurisdiction on this Court.


[22] On the contrary, and for the purposes of this case, review power is conferred on the Supreme Court in terms of sections 4, 9 and 10 (1) of the Act. These sections merit quotation:


4. The Supreme Court shall be a Superior Court of Record and, in addition to any other jurisdiction conferred by this Act or any other law, shall have and may exercise the powers, authorities and jurisdiction possessed and exercised by the High Court of Justice in England.

.

.

.


  1. The Supreme Court shall continue to have, and is hereby invested with full original jurisdiction, to hear, try, determine, pass sentence and make orders in all prosecutions for offences of whatever nature and in exercising such criminal jurisdiction the Supreme Court shall have and exercise all the powers and shall enjoy all the privileges vested in the High Court of Justice in England.


10. (1) The Supreme Court shall have power to hear and decide appeals from all other courts and shall exercise general powers of supervision over such courts and may at any time call for and inspect their records.”


[23] The reason why neither the Constitution nor any statute has conferred the original power of review on this Court over decisions of the Supreme Court is not hard to find. It is because judicial review is a remedy available for mistakes of law made by inferior courts and tribunals only. That also is the position at common law and it explains why there has never been any case for review per se in this Court in so far as my own researches are concerned. The point needs to be stressed that the Supreme Court is not an inferior court. Nor is it a court of limited jurisdiction. Putting aside the provisions of section 342 (6) of the Code, the mistakes of law occurring in that court can only be set right on appeal to this Court and not by review.


[24] Perhaps the clearest statement that the Court of Appeal has no original jurisdiction for judicial review is to be found in the case of In re Racal Communications Ltd [1981] AC 374 (HL). In his leading speech, Lord Diplock said the following at page 381:


The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review.”


At page 384 the learned Law Lord makes the following remarks with which I am in respectful agreement:


Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.”


Lord Salmon added his voice at page 386 in the following terms:


The jurisdiction of the Court of Appeal is defined by statute. It has no jurisdiction to make a judicial review of a decision of the High Court. Its power is to hear and determine an appeal from any decision or order made by the High Court, and this power which is conferred solely by section 27 (1) of the Supreme Court of Judicature (Consolidation) Act 1925 is restricted by section 31 (1) of the Act of 1925 which provides that:


No appeal shall lie … (d) from the decision of the High Court or of any judge thereof where it is provided by any Act that the decision of any court or judge, the jurisdiction of which or of whom is now vested in the High Court, is to be final …”


In my view, it is obvious that this restriction applies equally to all decisions whether they are decisions relating to issues of fact or of law. Section 441 (3) of the Companies Act 1948 which provides that the decision of the High Court judge on an application under section 441 (1) shall not be appealable is a typical example of “any Act” referred to in section 31 (1) of the Act of 1925 which provides that the decision of the High Court Judge is to be final.”


The same view was expressed by Lord Edmund – Davies at page 388 in the following terms:


Before turning to some of the case law in relation to ouster clauses, it is essential to have in mind the limits of jurisdiction of the High Court and of the Court of Appeal. The former is governed by sections 18 to 25 of the Supreme Court of Judicature (Consolidation) Act 1925, the latter by sections 26 to 28 thereof. What is beyond doubt is that the Court of Appeal has no original jurisdiction and that in relation to High Court decisions it has no jurisdiction beyond those prescribed in section 27. And even that is restricted by section 31 (1), which provides that:


No appeal shall lie … (d) from the decision of the High Court or of any judge thereof where it is provided by any Act that the decision of any court or Judge, the jurisdiction of which or of whom is now vested in the High Court is to be final.”


If the proper view of the action taken by the Court of Appeal in the instant case is that they purported to exercise on their own behalf that jurisdiction which they concluded Vinelott J. had “renounced,” they were in effect conducting a judicial review of High Court decision. But it has to be said that they had no power to do that. The Court of Appeal is a member of the Supreme Court of Judicature, but “it is not a member of the High Court” (per Scrutton L. J. in In re Carroll [1931] 1 K. B 104, 107), and all applications for judicial review must be made to a Divisional Court of the Queen’s Bench Division and in the manner prescribed by R. S. C., Ord. 53, r. 3.”


Lord Scarman also added his own concurring voice at page 392 in the following terms:


But the High Court is not an inferior tribunal. It is one of Her Majesty’s courts of law. It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place. It has inherited the jurisdiction of the superior common law courts of first instance. The Court of Appeal has no original supervisory jurisdiction over the High Court comparable with the High Court’s long established supervisory jurisdiction over inferior tribunals. Indeed, the Court of Appeal’s jurisdiction over the High Court is itself the creature of statute.”


[25] On an acceptance of the aforegoing considerations, the conclusion is inescapable, in my judgment, that this Court has no original review jurisdiction over the Supreme Court decisions. As a creature of statute, it has no jurisdiction beyond that which is conferred on it by statute either expressly or by necessary implication. In brief, I am satisfied that this Court’s jurisdiction is wholly confined to appeals only. Indeed it requires to be stressed that as the highest court of appeal in this country, this Court is comparable to the House of Lords in the United Kingdom and not the Court of Appeal of that jurisdiction. Nobody has ever suggested that the House of Lords is vested with original review powers over the Court of Appeal’s decisions let alone those of the High Court.


[26] What remedy then does the prosecutor have in the event of an acquittal as is the case here? To put it more precisely, is this Court powerless to correct a grave or manifest injustice committed by the Supreme Court simply because section 342 (6) of the Code prohibits an appeal to this Court? The short answer to this question is that the real remedy lies with the Legislature and not this Court. The Legislature in its own wisdom has plainly decided on the finality of an acquittal as opposed to a conviction. This, in my judgment is in conformity with the age-old traditional view-point that prosecutors have never enjoyed the rights of appeal or review at common law when unsuccessful in trials on indictment as is the case here. In this regard, the leading speech of Lord Slynn of Hadley which was unanimously accepted by all the other Law Lords in the case of In re Smalley [1985] A. C. 622 at 642-643 is apposite. He expressed himself as follows:


In any such case to allow an appellate or review process might, as Shaw L. J. pointed out in Reg. V. Sheffield Crown Court, Exparte Brownlow [1980] Q. B. 530, 544, 545, seriously delay the trial. If it is the prosecutor who is aggrieved by such a decision, it is in no way surprising that he has no remedy, since prosecutors have never enjoyed rights of appeal or review when unsuccessful in trials on indictment.”


[27] It will be noted for that matter that this is not a case which adversely affects the rights of individuals where it is often salutary for courts to jealousy safeguard such rights by employing purposive and generous techniques of interpretation. On the contrary, section 6 of the Code is plainly intended to guarantee the rights of individuals against further prosecution where there has already been acquittal, as in the instant case. The Attorney General does not enjoy such rights. If the Legislature had intended him to enjoy these rights, I have no doubt that it would have expressed it in clear and unequivocal terms. See R v Wein [2001]2 Cr. App. R. 121-122 at 147-8.


[28] In these circumstances, the Applicant was well advised to withdraw the application.


[29] Accordingly, the Court makes the following order:-


(1) The application is hereby withdrawn.


(2) By consent, the order of Renaud J returning to the Respondent the foreign currency notes forming the subject matter of the charge is hereby confirmed.


(3) There shall be no order as to costs.



……………….………..

M. M. RAMODIBEDI

PRESIDENT



I concur: ……………………………….

S. J. BWANA

JUSTICE OF APPEAL



I concur: …………………………….

J. M. HODOUL

JUSTICE OF APPEAL



Delivered at Victoria, Mahe on the 25th day of November 2005