IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     F. MacGregor (PCA) ,B. Renaud (J.A), F. Robinson (J.A)]

Civil Appeal SCA MA 07/2018, SCA MA 12/2018 & SCA MA 19/2018

(arising in SCA 29/2017)

(SCA 29/2017 arising from CS 06/2012

Emilie Adonis Antoine Adonis		Applicants
	Versus
Daniel Port-Louis		Respondent

Heard:             23 August 2018

Counsel:          Mr. Joel Camille for the Applicants

                      Mr. Frank Elizabeth for the Respondent 

Delivered:       31 August 2018

 

RULING

 

B. Renaud (J.A)

1. The Intended Appellants entered their Notice of Appeal, within time, on 4^th August, 2017, setting out six grounds of appeal against a judgment given on 31^st July, 2017 by the Learned Judge Nunkoo.

 

2. By letter dated 30^th August, 2017 the Assistant Registrar advised Learned Counsel for the Intended Appellants that security for costs for the said appeal had been fixed at SR10,000.00.

 

3. Learned Counsel, responded by letter dated 4^th August, 2017 (should be 4^th September, 2017) advising that his clients stated that they are unable to meet the security for costs as they are paupers.

 

4. On 15^th September, 2017, the Assistant Registrar further advised Learned Counsel by e-mail that in the circumstances the Intended Appellants ought to supply proofs by Affidavits that they cannot afford to pay security for costs.

 

5. On 18^th December, 2017, having not received any response, the Assistant Registrar advised the Learned Counsel for the Intended Appellants that as the security for costs had not been paid, their appeal is deemed withdrawn in terms of Rule 27(3) of the Seychelles Court of Appeal Rules 2005 (hereinafter “the Rules”).

 

6. On 27^th February, 2018 the Applicants herein entered a Notice of Motion moving this Court for an order that they are exempted from paying security for costs and that their appeal be heard.

 

7. The Motion was supported by Affidavits of the Applicants who substantially inter alia deponed that, that they are both pensioners in receipt of Retirement Benefit of SR5050.00 each per month and that they are unable to pay security for costs for their appeal to be processed.They each attached a letter dated 22^nd January, 2018, from the Agency for Social Protection confirming that both of them are indeed in receipt of Retirement Benefit.Basing on that reason, they applied to be exempted from the payment of the security for costs and pray for their appeal to be processed.

 

8. The Notice of Motion was heard by the President of this Court on 27^th March, 2018, who allowed the Motion subject to there being no objection from the opposing party.

 

9. On 21^st May, 2018, by a Notice of Motion, supported by Affidavit, Learned Counsel for the Respondent objected to the application.

 

10. On 26^th June, 2018, President of this Court heard the arguments of Learned Counsel.On 17^th July, 2018, using his discretion under Rule 25(2), the President of this Court ruled that the matter ought to be heard by a full Bench.

 

11. This Court will determine whether leave ought to be granted to the Applicants to pursue their appeal, taking into consideration the grounds of objection of the Respondent and all the circumstances of this matter.

 

12. By his Affidavit, the Respondent inter alia and in substance stating that –

• that the Applicants failed to disclose that, between the two of them, they own two properties, one at La Misere, Mahe, where they currently reside, and one at Mont Buxton, Mahe, which they currently rent to Mr. Simon Gill to house his Indian construction workers

 

• that contrary to what was stated in their Affidavits, the Applicants had the means all along to pay the security for costs but were merely trying to hoodwink and mislead the Court in order to deliberately avoid paying the said security for costs

 

• that on the 27^th March 2018 at 11 am, the President of this Court had a sitting to hear the motion of the Applicants

 

• that at the said sitting, the Attorney for the Applicants, submitted that the Applicants, now have the means to pay the security for costs out of time and for their Notice of Appeal to be reinstated

 

• that the Court granted the Application in principle subject to the Respondent being accorded a right to be heard on the Application

 

• that the Respondent moves that the Application be dismissed as the Applicants were somewhat dishonest and tried to mislead the Court in their original Motion for exemption to pay the security for costs, as they did not divulge to the Court that they are owners of properties worth millions of rupees and are thus not eligible for such an exemption

 

• that this clearly shows that the Applicants all along had the means to pay but instead decided intentionally to mislead the Court and as such the Court should not condone their behaviour and the decision made by the Court originally that the appeal is deemed withdrawn should stand

 

• that otherwise, the Court would create a dangerous and bad precedent which is likely to be abused by future litigants and the Court should not allow the Applicants to benefit from their own dishonesty

 

• that it is just and necessary for the Court to maintain its decision that the appeal is deemed withdrawn and dismiss this Motion accordingly in order to maintain order, decorum and prestige of the highest Court in the land

 

• that all statements contained in the Affidavit are true and correct to the best of his information, knowledge and belief.

 

13. In support of the position taken by the Respondent, Learned Counsel cited the Ruling of A.F.T. Fernando J.A refusing to grant leave to pursue an appeal out of time in the case of Wilfrid Richmond v Gilbert Lesperance SCA MA 9/13, and the Ruling of B. Renaud J.A refusing to grant leave to pursue the appeal in the case of Lise Church v Bernadette Boniface SCA MA 11/2017 for having failed to pay the deposit for costs within the prescribed time.

 

14. In the case of Richmond, judgment was delivered on 11^th November, 2010 and the Application for ‘Leave to Appeal out of Time’ was filed before the Supreme Court on 3^rd July, 2013, a period of 2 years 8 years after the judgment was delivered instead of 30 days as laid down in the Rules.

 

15. In the case of Church, judgment was delivered on 27^th July, 2016 and the Notice of Appeal was filed on 8^th September, 2016 but the security for costs was not deposited within a reasonable time.Had the application for leave been granted the appeal would have been heard over two years after the judgment of the Supreme Court.
16. In both of the cases cited, the length of the period delay defeated the motion to obtain this Court consideration to condone the delay and extend time in terms of Rule 26 and the proviso Rule 27.

 

17. The circumstances surrounding the instant matter are distinguishable from the two cases referred to above.In the instant the Notice of Appeal was filed within time and the necessary fees were duly paid.It was only the deposit for security for costs which was not paid.The Applicants throughout, however, were actively corresponding with the Registry of this Court in soliciting a waiver of the requirement to pay the deposit.

 

18. If indeed the Appellants occupied their own dwelling house at La Misere and rented out another house at Mont Buxton is not proof that they had SR10,000.00 cash available at the material time to make the deposit. The Appellants through Counsel informed Court that they were not earning any rent from the house at Mont Buxton and the matter is before the Rent Tribunal.The Appellants are indeed person of age as proven by their respective National Identity Card and they are both drawing Social Security Retirement Benefits as proven by a letter from the Authority concerned.The fact that the Appellants later informed Court that they have been able to eventually raise the SR10,000.00 does not prove that they had the means to do so all along and were simply refusing to pay.

 

19. In our considered judgment, the Respondent’s deposition that the Appellants, all along had the means to pay to pay the deposit, is merely a statement of opinion and are not facts supported by evidence.Likewise, the averment of the Respondent that the Appellant mislead the Court, is only an opinion statement and does not have any factual basis.

 

20. This Court being the highest Court in the land acts judiciously and considers each case on its own merit in order to uphold and maintain order, decorum and its prestige in fairly and justly adjudicating all matters in the interest of justice.

 

21. In the final analysis, we find that the objections raised by the Respondents are not cogent enough to warrant any variation of the provisional Order made by the President of this Court in terms of Rules 26 and 27 of the Rules.The said provisional Order is hereby confirmed and the Applicants, as they indicated to the Court, shall make the deposit of SR10,000.00 within 14 days hereof and upon doing so their appeal shall be proceeded with.

 

 

F. Robinson (J.A)

1. I have had the advantage of reading in draft the majority Ruling delivered by my learned brother Justice Renaud. I have regrettably come to a different conclusion.

 

2. It will be convenient first to trace the sequence of events, then to refer to the relevant procedural provisions and then to consider the question raised in this appeal.

 

The sequence of events

 

3. Daniel Port Louis, the present respondent (plaintiff in the suit), who is the nephew of Emilie Adonis, the present first applicant (first plaintiff in the suit), brought an action in damages against the first applicant and Antoine Adonis, the present second applicant (second defendant in the suit) for breach of contract. He sought damages in the sum of 1,006,800.00/- rupees. The applicants in their counterclaim sought damages from the respondent in the sum of 1,250,000.00/- rupees. On 31 July, 2017, the learned Judge found for the respondent and ordered the applicants to pay the respondent the sum of 906,800.00/- rupees as damages for ″the market value of the property″ and 25,000.00/- rupees as moral damages with costs and set aside the counterclaim.

 

4. The applicants filed their Notice of Appeal on 4 August, 2018, challenging the decision of the learned Judge. Following written communication, between the Assistant Registrar of the Court of Appeal of Seychelles and Counsel on behalf of the applicants, regarding the issue of payment of security for costs of the appeal, three applications were filed with the Assistant Registrar, in 2018, as follows.

 

5. First, an application MA7/2018 was filed on 27 February, 2018, for the applicants to be exempted from paying security for costs of the appeal (hereinafter referred to as the ″First Application″).

 

6. Secondly, an application MA12/2018 was filed on 26 March, 2018, seeking an order for ″the Applicants/Intended Appellants Notice of Appeal to be reinstated and [for] the Applicants to be granted leave to proceed with their appeal before the Seychelles Court of Appeal″ (hereinafter referred to as the ″Second Application″).

 

7. And thirdly, an application MA19/2018, was filed on 21 May, 2018, by Mr. Port Louis, strenuously opposing MA7/2018 (hereinafter referred to as the ″Third Application″). I interject to state that it is not clear to me as to why Mr. Port Louis had to file a fresh application. Be that as it may, for the avoidance of doubt, I have throughout this Ruling referred to Mr. Port Louis as the "respondent″.

 

8. The First Application, the Second Application and the Third Application are collectively referred to as ″The Applications″.

 

9. I now find it convenient to refer to the written communication leading to The Applications. On 30 August, 2017, the Assistant Registrar wrote to Counsel on behalf of the applicants informing him that ″security for costs in the … appeal case has been fixed at Seychelles rupees ten thousand … payable in cash, within fourteen days of Service of Notice.″.

 

Emphasis is mine.

 

10. Counsel, by an email, dated 5 September, 2017, informed the Assistant Registrar, that he has ″been instructed to inform [her] that the sum of Rs10,000 as security for costs cannot be met by client in view of the fact that they are both pensioners and accordingly seek to prosecute this appeal as paupers […]″. In that regard Counsel informed the Assistant Registrar that he was instructed, by the applicants, to swiftly file Notice of Appeal, in view of the tight delay for appeal, following which they will make application for legal aid. It is not clear to me whether the applicants are under legal aid. On 15 September, 2017, the Assistant Registrar wrote to Counsel asking for an affidavit in support of the allegations contained in that email.

 

11. On 18 December, 2017, the Assistant Registrar wrote to Counsel informing him that, because the applicants have not complied with the directions of the Court of Appeal in relation to payment of security for costs, the appeal is deemed to be withdrawn under Rule 27 (3) of the Seychelles Court of Appeal Rules, 2005.

 

The First Application

 

12. Both sworn affidavits in support of the First Application contained the same facts. One of the affidavits is repeated, so far as it is relevant ―

"[..]

 

4.   I aver that since I am a pensioner and I am in receipt of a Retirement benefit of Rs 5050 per month, I am unable to pay security for costs for the appeal, of which I have been advised I need to pay so that my appeal can be processed. I attached herewith a copy of the letter from the Agency for Social protection to confirm my receipt of same benefit and marked as Exhibit A1.

 

5. I state that based on the above, I apply that I be exempted from the payment of the security for costs and pray that my appeal be proceeded accordingly.

 

6. The averments contained above are true to the best of my knowledge.″.

 

The Second Application

 

13. With regard to the Second Application, both sworn affidavits in support also contained the same facts. One of the affidavits is repeated, so far as it is relevant ―

 

″ […]

 

4. I aver that I have been advised that because I could not pay for the said security for costs for the appeal same appeal has been deemed withdrawn.

 

5.         I state that I am now able and willing to pay for the said security for costs and now apply for leave of the court to reinstate my appeal and allow my appeal to be heard.

 

6.         The averments contained above are true to the best of my knowledge.″.

 

The proceedings before the Court of Appeal concerning the First Application and the Second Application

 

14. On 27 March, 2017, the President of the Court of Appeal heard the First Application and the Second Application and made order granting them, subject to ″no objection″.

 

The Third Application

 

15. The respondent, in an Affidavit, dated 16 May, 2018, strenuously resisted the First Application. He alleged in his Affidavit that, even if the applicants are pensioners in receipt of ″Retirement benefit″, the applicants have the means to pay security for costs. In this respect he averred that the applicants owned immovable properties (exhibits in support) and are letting a property. He urged the Court of Appeal, at paragraph 19 of his Affidavit, to dismiss the First Application.

 

The proceedings before the Court of Appeal concerning The Applications

 

16. On 26 June, 2018, The Applications came for hearing before the President of the Court of Appeal, who informed Counsel that the respondent has made ″some serious responses to [the question of not having means], which [he] think[s] deserves a response before [he] make[s] an order. The Respondent has made allegation of misdisclosure, concealment, misleading and dishonesty″ [sic]. In that regard he ordered Counsel to ″formally″ reply to the respondent’s Affidavit. He adjourned the proceedings to the 10 July, 2018.

 

17. During the course of proceedings, on 10 July, 2018, Counsel on behalf of the applicants tried his utmost to convince the President of the Court of Appeal that the applicants’ predicament was due to their misapprehension of what security for costs entailed. It is to be noted that the allegation of Counsel on behalf of the applicants was not supported by evidence emanating from the applicants. I remark with dismay that the applicants did not file a response to the Third Application as earlier ordered. It appears that in lieu of a formal response Counsel had endeavoured to explain their predicament as follows ―

 

"i. At no time had it been my intention to mislead the Court as regards to the means of the intended appellants, Mr. and Mrs. Adonis. The requirement for them to pay the security for costs as per the advice of the court was communicated to both of them at which they instructed me that they do not have the means as both of them are pensioners. I personally had no reasons at that time to investigate them further on their means. I acted according to their instructions and made the necessary applications before the Court.

 

ii. I am unable to account to the Court as to where the intended applicants secured money ready for payment of the security for costs. All I can say is that it is on strong advice and after much persuading with the threat that I will withdraw from their matter, that they secured that payment for security.

 

iii. There was certainly no connivance of any sort on any person’s part, to mislead the Court.″.

 

18. After hearing Counsel on both sides, the President of the Court of Appeal was satisfied that ″for this case, [he] would prefer a full court″.

 

The Rules

 

19. I set out the provisions of the Rules, which apply to The Applications.

 

20. Rule 11 (1) and 11 (2) of the Rules provide ―

 

″11 (1)The President or the Court may ―

 

• mero motu or on an application, extend or reduce any time period prescribed in these Rules and may condone non-compliance with these Rules;

 

• give such directions in matters of practice, procedure and the disposal of any application or interlocutory matter as the President or the Court may consider just and expedient.

 

(2)        Any power or authority vesting in the President in terms of these Rules, save the power to make Rules of court, may be exercised by a Judge or Judges designated by the President for that purpose.″.

 

21. Rule 26 of the Rules provides ″[t]he times fixed within these Rules may, on good cause shown, be extended by the President or a Judge designated by the President or may be extended by the Court″.

 

22. Rule 27 of the Rules provides ―

 

″27 (1)       Within fourteen days after filing the notice of appeal, or, in a case where leave to appeal is necessary within fourteen days after being granted leave or special leave to appeal, the appellant shall provide good and sufficient security to the satisfaction and within the discretion of the Registrar for the payment of all such costs of the appeal as may become payable by him.

 

(2)         A person may provide security in any manner that the Registrar may approve in his case and such security may, with the approval of the Registrar, consist in whole or in part of a deposit of money.

 

(3)         If the security approved by the Registrar is not furnished or given within the time limit mentioned in sub-rule (1) of this Rule, the notice of appeal shall be deemed to have been withdrawn, and the appellant shall pay to the respondent the costs of the abortive appeal:

 

Provided that nothing in this sub-rule shall be deemed to limit the power of the Court to extend time.″.

 

The Analysis

 

23. I remark that both Counsel did not offer any written submissions. I am satisfied, after having considered the circumstances giving rise to The Applications and the oral submissions of both Counsel, that the principal question which I have to entertain is whether I should extend time to pay security for costs of the appeal in terms of the proviso to Rule 27 (3) of the Rules. I am also satisfied that this question involves a consideration of whether their reasons for the failure timeously to pay security for costs amount to "good cause shown" in terms of Rule 26 of the Rules.

 

24. The question of what should, or should not be "good cause shown" was argued in the appeal and authorities were quoted to the Court of Appeal ― Wilfred Richmond v Gilbert Lesperance and Lise Church v Bernadette Boniface. I have considered the submissions of both Counsel with care.

 

25. In the case of Commissioner of Police v Antonio Sullivan Justice Twomey delivering the judgment of the Court of Appeal observed that the term ″″[…] [18] good cause″ has not been defined in law but has been interpreted  by the Courts in a number of cases.″. Commissioner of Police cited the case of Norwich and Peterborough Building Society v Steed CA [1991] 2 AER 880, in which the court stated that the matters it takes into account in deciding whether to grant an extension of time are the following ― "1. the length of the delay; 2. the reasons for the delay; 3. the chances of the appeal succeeding if the application is granted; and 4. the degree of prejudice to the respondent".

 

26. Commissioner of Police also cited Ratnam v Cumarasamy and Another [1964] 3 All ER 933, which provided some useful guidelines in dealing with delay at page 935 ―

 

″The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right of extension of time which would defeat the purpose of the rules which provide a timetable for the conduct of litigation.″.

 

27. The Wilfred Richmond case, dealt with by Justice Fernando, concerned an application to file an appeal out of time against a judgment of the Supreme Court delivered on 11 November, 2010. The ″Leave to Appeal Out of Time″ application was filed before the Supreme Court on 3 July, 2013. The case before the Court of Appeal turned on the question of whether the applicant had shown good cause in the context of the application. Justice Fernando analysed the affidavit evidence as follows ―

 

″6) … A mere averment in the Affidavit that a Notice of Appeal had been filed, without even specifying when it was filed and without any evidence to support that it was filed, casts serious doubts as to the genuineness of this averment. This not only establishes the first ground of objection raised to this application by the Respondent as referred to at paragraph 5 (a) above but also shows that the Applicant has attempted to mislead the court.

 

"6) … A mere averment in the Affidavit that a Notice of Appeal had been filed, without even specifying when it was filed and without any evidence to support that it was filed, casts serious doubts as to the genuineness of this averment. This not only establishes the first ground of objection raised to this application by the Respondent as referred to at paragraph 5 (a) above but also shows that the Applicant has attempted to mislead the court.

 

7) I agree with the Respondent’s contention at paragraph 5 (b) that there is no satisfactory evidence that has been averred to establish that the Applicant has a strong case and that on appeal he has a good chance of success… The Affidavit of the Applicant dated 16^th May 2013, annexed to the application for Leave to Appeal out of time, does not make any reference to the grounds set out in the Notice of Appeal. There is thus no evidence before this Court to even consider the Applicant’s averment that he has ″a very good chance of success″ as correctly argued by the Respondent.

 

8) A delay of 2.6 years is indeed an inordinate delay to grant an extension of time to appeal out of time and especially when no cause whatsoever has been shown, leave aside ″good cause″.

 

9) There must be finality to judicial decisions and for this purpose there must be strict compliance with the procedural requirements setting out the time period for filing of appeals unless the non-compliance is shown not to be caused by the acts and omissions of the applicant or his counsel. In Lagesse and CIE Ltd V Commissioner of Income Tax 1991 MR 46, citing Dependants Pursun v Vacoas Transport Co Ltd 1969 Mr 148 and Espitalier-Noel Ltd v Serret 1980, the Court applied the well settled principle that non-compliance with the required formalities within the prescribed time limits is fatal to the hearing of an appeal unless such compliance was not due to the appellant’s fault or that of his legal advisers [...]″.

 

28. Lise Church, dealt with by Justice Renaud, concerned an application to pay security for costs of the appeal out of time. Justice Renaud accepted the observations made by Justice Fernando in Wilfred Richmond and, in light of those observations, concluded at paragraph 21 of the Ruling on Motion ″[21] Finally, this Court reiterates that there must be strict compliance with procedural requirements setting out the time period for filling of appeals and matters connected therewith, unless the non-compliance is shown not to be caused by acts and/or omissions of the Applicant or his Counsel.″.

 

29. Having considered the above referenced authorities, I am satisfied, in the context of the present appeal, that ″good cause″ should be interpreted as meaning some cause which despite the normal, careful and diligent attention to the business of the appeal has brought about a failure timeously to pay security for costs of the appeal.

 

30. In the present proceedings the applicants were officially directed to pay security for costs on 30 August, 2017. On 5 September, 2017, Counsel informed the Assistant Registrar, by email, that the applicants, who are pensioners in receipt of "Retirement benefit", could not manage to pay security for costs; and that they were asking to be exempted from paying such security for costs. On 15 September, 2017, the Assistant Registrar directed the applicants, through their Counsel, to substantiate that allegation. On 18 December, 2017, the Assistant Registrar wrote to Counsel informing him that the appeal is deemed withdrawn. The First Application was filed on 26 February, 2018, in which the applicants averred without more that they are pensioners, who are in receipt of "Retirement benefit". The Second Application filed on 23 March, 2018, averred without more that the applicants are ″able and willing″ to pay security for costs of the appeal.

 

31. Do the circumstances amount to good cause shown such as to justify extending time in terms of the proviso to Rule 27 (3)?

 

32. I remark that the applicants did not show in their First Application that there was no way in which they would have been able to raise the security. With regard to the Second Application it is not clear to me how the applicants have managed to raise the security. Did they raise the security themselves or from their family or friends? It is also not clear to me as to why the time provided by Rule 27 was ignored. I state that making broad statements in an affidavit without substantiating them, in a case which has to be decided purely on the basis of the averments contained in the affidavit, do not support the cause of the party relying on such an affidavit: see Islands Development Company Limited v. EME Management Services Limited. There is also no evidence before the Court of Appeal to demonstrate the merits of the appeal. In this respect I am satisfied that there is no material on which I can exercise my discretion.

 

33. Moreover, the fact that the applicants chose not to reply to the Third Application has raised serious doubts as to the truth of their averment that they were unable to pay security. Why Counsel had sought to explain, in a response, that he had not ″meant to mislead″ the Court of Appeal in relation to the means of the applicants, is not clear to me? The circumstances clearly prove that the applicants had attempted to deceive the Court of Appeal.

 

34. In the final analysis I reiterate what Justice Twomey stated at paragraph 25 of the Commissioner of Police case ―

 

"25.      Litigants and their counsel are not at liberty to ignore legal provisions at their discretion. The deadlines imposed by the Rules and Practice Directions of this Court are designed for orderly case management, and counsel who ignore those deadlines do so at their and, more importantly, their clients’ peril.".

 

The Decision

 

35. I am satisfied that the circumstances in relation to this case do not amount to such as to justify my allowing time to be extended in terms of the proviso to Rule 27 (3) of the Rules. I, therefore, make order in terms of the Third Application dismissing the First Application. Having dismissed the First Application, I am satisfied that the Second Application stands dismissed. I order accordingly with costs to the respondent.

 

36. I have considered it appropriate to deliver only one Ruling with respect to The Applications and direct the Assistant Registrar to file a copy of this Ruling in each appeal.