Seychelles Development Co. Ltd v Government of Seychelles and Another (30 of 2007) ( of ) [2007] SCCA 8 (13 December 2007);


IN THE SEYCHELLES COURT OF APPEAL



SEYCHELLES DEVELOPMENT CO. LTD Applicant


v.s


1. THE GOVERNMENT OF SEYCHELLES 1st Respondent

2. THE ATTORNEY GENERAL 2nd Respondent



SCA No: 30 of 2007

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Before: MacGregor, (P), Bwana, Domah, JJA


Counsel: Mr. F. Ally for Applicant

Ms. F. Laporte for Respondents



R U L I N G


Bwana, JA.,


1. An urgent Notice of Motion was filed before this Court on 2 November 2007 for the following orders:-


    1. A declaration that the appeal in SCA 8/2003 in still pendente lite;


    1. An order restoring SCA No. 8/2003 on the cause list of this Court for hearing;


    1. Alternatively to prayer (1.2) above, ordering a new hearing of the appeal in SCA No.8/2003; and


    1. Inhibit or prohibit the first Respondent from disposing of any or all of the land comprised in titles … and the Land Registrar from registering any disposition or entry in the land register pending the determination of this motion or the final disposal of the appeal in SCA No. 8/2003.


2. The Applicant is a company registered in Seychelles. In 1999 it filed a petition before the Constitutional Court of Seychelles (Constitutional Court case No: 7 of 1999) praying for, inter alia, the return to the Applicant of the land comprised in title C1686. The said land was compulsorily acquired by the Government of Seychelles (1st Respondent) from the Applicant. The Applicant petitioned pursuant to the provisions of the Constitution of the Republic of Seychelles (Part III of Schedule 7).


The Constitutional Court dismissed the petition. Aggrieved by that decision, the Applicant appealed to this Court. This Court (per Ayoola, P; Silungwe and de Silva, JJA) struck out the appeal on 1 December 2003, despite the fact that no hearing of the appeal took place.


3. Now the Applicant avers before this Court that the striking out was erroneous as no hearing of the appeal had taken place. It is further averred that the Court had advised the parties “to go and negotiate” and should negotiations fail then the parties should come back, hear and dispose of the appeal. Now that negotiations have failed, the Applicant requests this Court to rule as prayed for in paragraph 1 above. Alternatively and in the best interest of justice, this court exercise its inherent powers and order a new hearing of the appeal.


4. The application is vehemently resisted by the Respondents. By affidavits of Raymond Chang-Tave (special adviser to the Minister of National Development) and Ronny Govinden (Deputy Attorney General and Counsel who represented the Respondents in the constitutional case No: 7 of (1999), it is averred that following the decision of the Constitutional Court, the Applicant appealed to this Court. It is correct that this Court did not hear the appeal but it did strike out the said appeal. This Court, however, did not adjourn the case. It did not, as well, direct the parties to go for negotiations and return only if no settlement was concluded. There is nothing to indicate that the decision of the full Bench in SCA No: 8 of 2003 was taken per incurium.


5. Given the long time it has taken between the date the appeal was struck out (1 December 2003) and the date of filing this application (2 November 2007), it is hopelessly and inordinately out of time. Further, it is averred by the Respondents that having struck out the appeal, this Court is funtus officio. The Respondents, aver, also, that the orders sought by the Applicant cannot be granted unless there is a principal case in existence. Such a case does not exist so this application cannot succeed, so it is averred by the Respondents.


6. It should be noted that both counsel who appeared before us never appeared either in the Constitutional Court or during the earlier part of the matter when it came before this Court. We also do note that none of the three of us constituted the full bench then. Therefore, following the chronological order of events, it is safe to rely on the court record as opposed to what Mr. Ally attempted to impress upon us. We are precluded from relying upon such address. We have to respect and rely on the sanctity of the earlier record of this Court as ordered and signed by the then three justices of this Court.


7. This application – we note with concern – is made four years after the appeal was struck out. Since there is no record to the effect that the parties were ordered “to go and negotiate” and if fails, to come back and continue with the appeal, we are reluctant to agree with the Applicant’s averment to that effect. The official documents pertaining to the disposal of this case do show the following:


7.1 When the Court struck out the case, both parties’ counsel were present. Mr. B. Georges and Mr. R. Govinden were counsel for the parties then. The order of the court handed down then was “Appeal is struck out”. It became a public document.


    1. On 17 August 2005, the then Counsel for the Applicant – Mr. B. Georges – applied to the Registrar of the Supreme Court for the refund of the security for appeal ref. SCA vs GOS – SCA 8 of 2003. He was refunded the said security. In his letter, Mr. Georges gives the reason for the application as being – “the case now completed”. These words cannot be interpreted, other than to conform to the Court Order of 1 December 2003, striking out the appeal.


    1. It means therefore that the purported appeal before this Court has no security. Conversely, it is our view that if a party withdraws security, the appeal is deemed to have been withdrawn.


8. On the issue of this Court being functus officio, we are mindful of the views of this Court (in the case of Attorney General vs Joseph Marzorchi & Or – SCA 8 of 1996) when paragraph 556 of Halsburry’s Law of England, Vol. 26, 4th Ed. was quoted with approval thus:

“556. Amendment after entry of judgment or order.

As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action, or matter or in a fresh action brought to review the judgment or order. The objection of the rule is to bring litigation to finality …”


The number of exceptions to the foregoing are not applicable in the instant issue. In other words, this court having struck out the appeal, it is functus officio.


9. All the foregoing considered, therefore, this motion is dismissed with costs.



I concur I concur



……………………………… ……………………………. ………..………………………

S. J. BWANA F. MacGREGOR S. B. DOMAH

JUSTICE OF APPEAL PRESIDENT JUSTICE OF APPEAL



Delivered on 14 December 2007, Victoria, Seychelles.