Hedgeintro International Ltd v Hedge Funds Investment Management Ltd (SCA MA 31/2018) [2020] SCCA 3 (09 July 2020);

A.Fernando (President)

 
  1. Counsel for the Applicant-Appellant on the 7 July 2020 supported his application set out in his Notice of Motion filed on 01/10/2018, to “reconsider/recall the order dated 3 July 2018 passed by Honourable Mr Justice B. Renaud (JA) whilst sitting in a bench of Single Justice in MA 28/2017 (arising in SCA 14/2017) (“The Order”) by constituting a full bench consisting of a quorate of three Honourable Justices or appropriate benches of the Court of Appeal…” He did not pursue the other grounds raised in his Notice of Motion. This case came to be heard on 7 July 2020 as Counsel for the Applicant-Appellant moved for time on 9 June 2020 to consider his position and familiarize himself with the instant application as there had been several applications to this Court in respect of this same case according to him.

 

  1. The Ruling on Motion of Justice Renaud dated 3 July 2018 is as follows:

 

1.    The parties before the Supreme Court were Hedge Funds Investment Management Ltd (hereinafter “HFIM”) as the Plaintiff; Hedgeintro International Ltd (hereinafter “HIL”), as the Defendant, and Raminder Panesar and Ashley French as the Intervenors.

 

2.      On 6th February, 2017, the Learned Chief Justice, in case CC 04/2012, delivered a judgment ordering HIL to pay all due fees including costs and interest amounting to a total of over US$613,000.00.

 

  1. On 13th March, 2017, HIL filed a Notice of Appeal against the said judgment, in case referenced SCA 14 of 2017.

 

  1. On 28th November, 2017 Counsel for HFIM filed a Notice of Motion moving for sufficient and adequate security for costs under Rule 27 of the Seychelles Court of Appeal Rules for the appeal in case SCA 14 of 2017.  The said motion is supported by Affidavit.

 

  1. There were exchanges of further affidavits between the parties setting out their respective position.  I have given careful consideration to all the facts and information contained in those affidavits.

 

 

  1. The issue before this Court is a simple procedural one whereby the Respondent to the Appeal filed by the Appellant is asking this Court to order the Appellant to provide adequate security for costs.

 

  1. Sections 219 – 222 of the Seychelles Code of Civil Procedure laid down the circumstances when security for costs may be required, the time within which such security is to be furnished etc. 

 

  1. In the instant matter it is the Seychelles Court of Appeal Rules 2005 (hereinafter “the Rules”) which is applicable.  Rule 27 of the Rules provides that an Appellant shall, within 14 days after filing the Notice of Appeal, 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 the Appellant.  If the security approved by the Registrar is not furnished or given within the time limit, the Notice of Appeal shall be deemed to have been withdrawn and the Appellant shall pay the Respondent the costs of the abortive appeal. 

 

  1. Article 16 of the Civil Code of Seychelles states that when one of the parties to a civil action is a non-resident, the Court may, at the request of the other party, and for good reason, make an order requiring such a non-resident to give security for costs and for any damages which may be awarded against him.

 

  1. I take note that the bill of costs in the case, was taxed on 26th July, 2017, in the sum of US$613,871.31 plus interests.

 

  1. It is evident from the record that the Appellant is a non-resident and there is no indication that the Appellant has assets in Seychelles.

 

  1. Order.

 

  1. That the security for costs in accordance with the Rules, set by the Registrar in the sum of SR50,000.00 is maintained.

 

  1. I hereby order that the Appellant shall additionally provide security for costs and damages in terms of Article 6 of the Civil Code of Seychelles, in the sum of one million Seychelles Rupees, (SR1,000,000.00) or its equivalent in any hard currency, either in cash or by irrevocable bankers’ guarantee or other form of securities to be approved by this Court.

 

  1. That the said securities be furnished by 1st October, 2018, failing which the appeal shall be deemed to have been withdrawn.

 

  1. I order accordingly.

 

B. Renaud (J.A)

 

  Signed, dated and delivered at Palais de Justice, Ile du Port on  03 July 2018.

3.   The Security ordered in accordance with 2 and 3 of the Order referred to at paragraph 12 of the Ruling above was not furnished by 3 July 2018 and instead the Notice of Motion referred to at paragraph 1 above was filed.

 

4.   Rules 5 and 25(2) of the Seychelles Court of Appeal Rules provide:

 

Rule 5: Save for an application for special leave to appeal to the Court, the President or a single Judge designated by the President may alone exercise any power vested in the Court not involving the merits of the appeal.(emphasis added)

 

Rule 25(2): An interlocutory matter, other than an application for special leave to appeal, may be brought before the President or a single Judge designated by the President:

 

Provided that the President or the Judge before whom the matter is brought may in his discretion hear or refuse to hear or transfer the application to the full Court.

5.   It is clear from the above provisions that a single Judge may alone exercise any power vested in the Court. As per the Interpretation section in rule 2 of the Seychelles Court of Appeal Rules, “Court” means the Seychelles Court of Appeal. It is entirely in the discretion of the President or the Judge before whom the matter is brought to transfer the application to the full Court. In the instant case the single Judge had not exercised his discretion to transfer the application to the full Court and I also find that no such application had been made before or at the hearing by Counsel for the Applicant-Appellant. This being the case the decision of the Single Judge is final and conclusive and he nor the full Court can ““reconsider or recall” the said decision and the Court itself is ‘functus’, just as much as a final decision of the full Court.

 

6.   Counsel for the Applicant-Appellant at the hearing before me did not make any submissions as to why the Ruling on Motion dated 3 July 2018 made by Renaud JA whilst sitting in a bench of Single Justice should be reconsidered or recalled. Unfortunately, he was totally unprepared and was not even aware of the Written Submissions filed by him until it was drawn to his attention in Court. In his Written Submissions filed in support of his Notice of Motion to reconsider/recall the order dated 3 July 2018 passed by Renaud JA whilst sitting in a bench of Single Justice by constituting a full bench consisting of a quorate of three Justices, Counsel for the Applicant-Appellant had relied on articles 120 and 121 of the Constitution. Article 121 has no relevance whatsoever as it refers to the composition of the Court of Appeal.

 

Article 120 of the Constitution, which deals with the establishment and jurisdiction of Court of Appeal reads 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 judgement, 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 an Act.

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

(3) The Court of Appeal shall, when exercising its appellate jurisdiction, have all the authority, jurisdiction and power of the court from which the appeal is brought and such other authority, jurisdiction and power as may be conferred upon it by or under an Act.

(4) Subject to this Constitution and any other law, the authority, jurisdiction and power of the Court of Appeal may be exercised as provided in the Rules of the Court of Appeal.

(5) Proceedings in respect of a matter relating to the application, contravention, enforcement or interpretation of this Constitution shall take precedence over other matters before the Court of Appeal.

(6) Where in respect of any matter before it, the Court of Appeal finds that any law or provision of any law contravenes this Constitution, the Justice of Appeal presiding at the sitting of the Court shall send a copy of the finding to the President and the Speaker.

(7) The Court of Appeal shall sit, as occasion requires, to deal with matters before it as expeditiously as is practicable.(emphasis added)

The above provisions explain that it is only a decision of the Supreme Court that can be subject to review by the Court of Appeal and not that of the Court of Appeal itself and that subject to the Constitution and any other law, the authority, jurisdiction and power of the Court of Appeal may be exercised as provided in the Rules of the Court of Appeal. The Constitution nor any other law do not provide that a decision of the Court of Appeal can be reviewed by the Court of Appeal on its merits or even otherwise. The Rules of the Court of Appeal are made in view of the provisions in article 136 (1) of the Constitution which reads as follows: The President of the Court of Appeal may make Rules of the Court of Appeal”. Thus, the applicability of rules 5 and 25(2) of the Seychelles Court of Appeal Rules referred to at paragraph 4 above become relevant.

7.   As referred to at paragraph 2 above, at paragraph 5 of his Ruling Renaud J had stated that “There were exchanges of further affidavits between the parties setting out their respective positions. I have given careful consideration to all the facts and information contained in those affidavits.”  Basing himself on what he had stated at paragraph 9 of his Ruling referred to at paragraph 2 above Renaud J had stated: “It is evident from the record that the Appellant is a non-resident and there is no indication that the Appellant has assets in Seychelles.” Exhibits 2 and 3 filed in relation to the Notice of Motion referred to at paragraph 1 above substantiates the statement of Renaud J above.  Exhibit 3, the affidavit filed on behalf of the Applicant in support of the Notice of Motion referred to at paragraph 1 above shows that its Director is a non-resident. There had been no challenge in Exhibit 3, to the following averments, in Exhibit 2 filed on behalf of the Respondent to the Notice of Motion referred to at paragraph 1 above, namely that HIL is a shell company with a nominal presence in and outside Seychelles, that it is having no employees, no business activity, and no office, is dormant and now insolvent with liabilities exceeding its assets and that it generates no income. Also, that the directors and shareholders who are its management, reside outside Seychelles.

8.   There is no merit in the argument referred to in the Written Submissions that the attention of the Court was not drawn to a material statutory provision during the hearing, so as to give cause for a reconsideration of Renaud Js Ruling even on the basis of ‘per incuriam’, since Renaud J had referred to the relevant provisions in the Seychelles Code of Civil Procedure, article 16 of the Civil Code of Seychelles and the Seychelles Court of Appeal Rules 2005 as borne out by his Ruling referred to at paragraph 2 above.  Further it was not necessary for Renaud J to inquire into the merits of the appeal in determining the application of the Respondent for sufficient and adequate security.  Rule 5 of the Seychelles Court of Appeal Rules referred to at paragraph 4 above debars a single Judge from going into matters involving the merits of the appeal.

 

  1. I therefore dismiss the application to reconsider the Ruling on Motion of Renaud JA dated 03 July 2018.

 

  1. In view of this Ruling the appeal in the case of Hedgeintro International  Ltd (HIL) vs Hedge Funds Investment Management Ltd (HFIM), SCA 14/17, which was originally cause listed for hearing at the 2020 August session is deemed to have been withdrawn in view of  the provisions of Rule 27(3) of the Seychelles Court of Appeal Rules and taken off the cause list.

 

A. Fernando (President)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on09 July 2020