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




1. THE

2. THE

30 of 2007


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

Counsel: Mr.
F. Ally for Applicant

Ms. F. Laporte
for Respondents


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
      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
case No: 7 of 1999) praying for, inter alia, the return to the
Applicant of the land comprised in title C1686. The said land
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
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
      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
after it has been entered either in an application made in the
original action, or matter or in a fresh action brought to review
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
appeal, it is functus officio.

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

I concur I concur

……………………………… …………………………….



Delivered on 14 December
2007, Victoria, Seychelles.