IN THE SEYCHELLES COURT OF APPEAL

[Coram:     F. MacGregor (PCA), S. Domah (J.A), Twomey (J.A)

Civil Appeal SCA 28/2012

(Appeal from Supreme Court Decision CS107/2012)

Heard:             05 December 2014

Counsel:          Mr. Frank Elizabeth for Appellant 

                       Mr. George Robert for Respondent 

Delivered:       12 December 2014

JUDGMENT

S. Domah (J.A)

[1]   Three issues arise in this appeal: (a) whether the appellant’s “petition” which did not state the name, address and description of the respondent was properly before the Court, in due compliance with the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995, S.I. 40 of 1995; (b) whether there is any practical or other confusion in the application of the said Rules; and (c) whether  the learned Judge was correct in dismissing the “petition.” This appeal comes to us with leave of the Supreme Court where the learned Judge was somehow persuaded to believe that he may have been incorrect in his application of the Rules.

[2]   On 16 July 2012, the appellant registered a “petition” at the Registry of the Supreme Court under the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995, S.I. 40 of 1995 (“the Rules”). It was an application for leave to apply for Judicial Review. We have used the word petition between inverted commas advisedly because the document made no mention of the names and particulars of the respondent/s. When it came before the learned Judge, the latter asked: “But ….. there is no respondent.” To which Mr Frank Ally, standing in for Mr F. Elizabeth at the time, replied that the law itself is not very clear and leave is normally applied for ex parte.

[3]   The learned Judge, knowing his law, relied on Rules 2, 3 and 4 to decide as follows:

“On the face of the record, I do not find that the petition is properly before the court. In the circumstances, the Petition is dismissed.”

[4]   Mr Frank Elizabeth, unhappy with the outcome of his application without putting into cause any respondent, moved at the next sitting for leave to appeal to the Court of Appeal. He  repeated the argument that on an ex parte process, there is no need to cite the respondent/s in the application. He is reminded by the learned Judge that this matter has been resolved in a previous case/s pursued by learned counsel himself. But because neither court nor counsel have the decision/s at hand, the learned Judge adopts the easy option of favouring the granting of a  leave to appeal to this Court.

[5]   It does not bear repetition that Counsel should come with relevant authorities to back up their doubtful proposition of law which they advance. And when they have failed to do so, the Courts should ensure that it does not give them the benefit of the doubt on their doubtful propositions. Courts and Counsel operate under the Rule of law.

[6]   We shall now seek to answer the three questions which arise in this appeal.

Question 1: Was the appellant’s “petition” which did not state the name, address and description of the respondent properly before the Court, in due compliance with the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995, S.I. 40 of 1995?

[7]   The answer is clearly: “No!” The learned judge was correct in his interpretation that there was no petition before him. The Rules which provide for the practice and procedure of the Supreme Court in respect of an application for the exercise of the supervisory jurisdiction over subordinate courts, tribunals and adjudicating authorities are found in Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995.  Rule 1 (2)reads:

“1. (1) …

(2)  These Rules provide for the practice and procedure of the Supreme Court in respect of an application for the exercise of the supervisory jurisdiction over subordinate courts, tribunals and adjudicating authorities.”

[8]   Rule 2 speaks of the manner in which process may be begun in such cases. It is by way of petition. It reads:  

“2. (1)    An application to the Supreme Court for the purposes of Rule 1 (2), shall be made by petition accompanied by an affidavit in support of the averments set out in the petition.

[9]   As to what the petition should contain, Rule 3 clearly states that the petition shall contain, inter alia: the name, address and description of the respondent. It reads:

“3. The petition under Rule 2 shall contain a statement of –

1. The name, address and description of the petitioner,
2. The relief sought and the grounds upon which it is sought;
3. The name and address of the petitioner’s attorney-at-law (if any);
4. The name, address and description of the respondent or each of the respondents;
5. A claim for damages, if any, and a prayer for costs.”

[10]   As such, a petition which does not mention the respondent and his particulars after mentioning the applicant and his particulars is no petition at all. The learned Judge rightly decided that he had no petition before him in compliance with the Rules.

Question 2: Is there is any practical or other confusion in the application of the said Rules?

[11]   The next question is whether there is a confusion in the application of the Rules. Mr Frank Ally’s earlier submission was reiterated by Mr Frank Elizabeth to the effect that there is a confusion in the Rules which makes mention of an ex parte granting of the leave to proceed, in Rule 5.

[12]   As rightly remarked by the learned Judge, there is no confusion. We agree. There is no confusion because there is no such animal as an ex parte application in our court system and judicial process. Courts are seized with real disputes and the word dispute necessarily pre-supposes the existence of one party against another. The confusion arises in the assumption that such an animal exists. What there is, for that matter, is an ex parte hearing and an ex parte order, the outcome of which may be reversed in the event an inter partes hearing ensures: vide Rule 5 and Rule 7.

[13]   True it is that Rule 5 makes mention of the term “ex parte.” But it does  not link the term to the petition but to the next step in the process. Rule 5, relied on by both Counsel, is meant to regulate the administrative process obtaining at the Registry whereby every petition after it has been checked for compliance under Rule 3, on proper registration, proceeds to the Listing Section of the Registry without the Registry having to necessarily wait for return of service on, or notice to, the respondent:

“5. Every petition under Rule 2 shall be registered by the Registry and shall be listed ex parte for the granting of leave to proceed.”

Thus, the proper petition in compliance with Rule 3 is registered under Rule 5 and forthwith listed under the same Rule 5 for hearing on terms of Rule 6. At the leave stage, the applicant has to satisfy the judge that he has sufficient interest and that he is in good faith: see Rule 6 (1). This is what the learned Judge referred to as the hearing stage. It is the initial hearing that is ex parte, not the petition or the application. If there is celerity and vigilance on the part of the respondent, he may appear at this stage on mere notice or registry inquiry, under Rule 7, to raise his objection to leave. Otherwise, his right of appearance to defend the petition is ensured to him later in the day in the normal course of things, under Rule 12. 

[14]   Our answer to the second question, therefore, is that there is no confusion in the Rules.  If there is confusion at all, it lies in the submission of learned counsel.

Question 3: The third question is whether  the learned Judge was correct in dismissing the “petition.”

[15]   This question has a short answer. The answer is: “Yes!” Classically, dismissal is a term of art used after a case has been heard on the merits and adjudicated upon. It is a substantive order term. Where a case aborts at the stage of the procedure, the classical term is either “struck out,” “set aside;” “non suited” etc. Through unguarded usage over the years, the terms have become interchangeable. The Courts are directed to make the classical distinctions when using the terms on account of the consequences which flow from them. In this case, since this case had been, on analysis, a non starter in that there was no petition properly speaking, the only order which could have been made is one of the three or any such procedural order, which would have been of no consequence to the applicant. This would have enabled him to come back after he had supplied the deficiencies by filling in the blanks.  This was not an application which had been heard on the merits: it did not warrant the extreme substantive order of dismissal.

[16]   The order for dismissal is, accordingly, quashed and in its place substituted by the word “set aside.”

S. Domah (J.A)

I concur:.                                ………………….                                           F. MacGregor (PCA)

I concur:.                                ………………….                                           M. Twomey (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014