Karunakaran v AG (SCA CL 01/2020 (Appeal from CP 18/2019)) [2021] SCCA 8 (30 April 2021);

search_summary: 

The Appellant’s argument was that a Puisne Judge cannot sit as a Justice of Appeal of the Court of Appeal to hear and determine cases

Headnote and Holding: 

Appeal dismissed. Puisne Judge, is an ex-officio member of the Court of Appeal.

IN THE COURT OF APPEAL OF SEYCHELLES

 

Reportable

[2021] SCCA 8

SCA CL 01/2020

(Appeal from CP 18/2019)

 

Durai Karunakaran                                                          Appellant

(rep. by Mr. Philippe Boulle)

 

and

 

Attorney General                                                               Respondent

(rep. by Mr. Stefan Knights)

 

Neutral Citation: Karunakaran v Attorney General (SCA CL 01/2020) SCCA 8

                              

Before:                   Fernando President, Robinson JA, Dingake JA

Summary:             The Appellant’s argument was that a Puisne Judge cannot sit as a Justice of Appeal of the Court of Appeal to hear and determine cases

Heard:                    20 April 2021

Delivered:              30 April 2021

ORDER

Appeal dismissed. Puisne Judge, is an ex-officio member of the Court of Appeal.

 

 

JUDGMENT

 

 

 

Fernando, President, (Robinson JA, Concurring)

  1. This is an appeal against the judgment of the Constitutional Court in CP 18 of 2019 dismissing the Appellant’s petition.

 

  1. The Appellant’s complaint before the Constitutional Court was to the effect that the Court of Appeal bench that sat to hear his appeal against the judgment of the Constitutional Court in D. Karunakaran V Attorney General SCA CL 05/2018, contrary to the Seychelles Court of Appeal Rules 2005, did not consist of three Justices of Appeal, since one of them was a Judge of the Supreme Court. Thus, the complaint was in relation to the violation of the Seychelles Court of Appeal Rules, made under article 136(1) of the Constitution. It was the Appellant’s complaint before us at the hearing that as a result of the said violation, his constitutional right was breached as no valid Court of Appeal as set out in article 120(2) heard his appeal and thus the judgment of the Court of Appeal, was unconstitutional, null and void.

 

  1. At the very outset I wish to point out that Appellant, had not objected to the composition of the Court at the commencement of or during the Court of Appeal hearing, but had decided to do so only when his appeal was dismissed. Appellant’s argument; that he made an objection in an earlier case and the fact that it was not considered, deterred him from making a similar objection, in my view is a weak argument. An objection to the composition of the court in my view, should have been taken at the very commencement of the appeal hearing, especially in the circumstances of this case. Once the Appellant submitted to the jurisdiction, he cannot now challenge it.

 

 

  1.  It is also noted that the petition filed before the Constitutional Court was not in compliance with rule 5 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules which specifies that a petition “…shall refer to the provision of the Constitution that has been allegedly contravened or likely to be contravened…” (emphasis added). I am of the view that there must be sufficient identification in a petition of the specific constitutional provision violated and not left to be inferred. There must be reference to a specific article of the Constitution. There is no reference in the petition to any provision of the Constitution that has been allegedly contravened or likely to be contravened, nor has the particular rule of the Seychelles Court of Appeal Rules been identified and specified.

 

  1. The above two matters in my view would have sufficed to dismiss the petition by the Constitutional Court.

 

  1. The crux of this appeal as correctly stated by Counsel for the Respondent, the Attorney General, is whether a Puisne Judge can sit as a Justice of Appeal of the Court of Appeal to hear and determine cases.

 

  1. Article 121 of the Constitution sets out the composition of the Court of Appeal as follows:

The Court of Appeal shall consist of -

(a) a President of the Court of Appeal and two or more other Justices of Appeal; and

(b) the Judges who shall be ex-officio members of the Court

  1. According to the Principles of Interpretation at clause 1(1) of Schedule 2 of the Constitution ‘Justice of Appeal’ “means a Justice of the Court of Appeal established by article 120” and ‘Judge’ “means the Chief Justice or a Puisne Judge”.

 

  1. The Appellant in his arguments before the Constitutional Court and before this Court had tried to peg his argument by citing article 120(2) of the Constitution to state that there was no valid Court of Appeal. As stated earlier he had not referred to this article or any other article of the Constitution in his petition. Article 120(2) speaks in what instances one has a right of appeal, namely against a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court. It does not speak of the composition of the Court of Appeal. It is only article 121 that speaks of the composition of the Court of Appeal.

 

  1. Article 121 deals with the composition of the Court of Appeal. If as the Appellant argues the Court of Appeal cannot consist of Judges of the Supreme Court, I do not understand why there is a reference to them in article 121(b). Article 121 of the Constitution, cannot be circumvented by any other rule of interpretation, even if there was any.

 

  1. The words ‘ex-officio members of the Court’ means by virtue of office or as a result of one’s status or position. It is my view that by virtue of the characteristics inherent in the holding of a particular office, namely that of Judge of the Supreme Court, there is no need for a specific authorization or appointment as Justice of Appeal, when they sit as Justices of Appeal. I state this, as it was the argument of the Appellant that a Justice of the Court of Appeal is appointed by virtue of the provisions of article 123 of the Constitution and a Judge by virtue of the provisions of article 127 of the Constitution and thus a Judge of the Supreme Court cannot be a Justice of Appeal. One finds that the procedure for the appointment of both Justices of Appeal and Judges are identical, namely the appointment is by the President by an instrument under the Public Seal from candidates proposed by the Constitutional Appointments Authority. In view of section 12 of the Official Oaths Act (Cap 153) once a Judge of the Supreme Court has taken the Oath of Allegiance and the Judicial Oath, as required by the said Act, it is not required of him to take the said oaths again, even if appointed as a Justice of Appeal.

 

  1.  It was also the Appellant’s argument that the qualifications required for appointment as Justices of Appeal and Judges as set out in the Constitution, differ. Qualifications for Justices of Appeal, set out in article 122 are certainly not more stringent than those set out in article 126(1) for Judges. For that matter strangely the required qualifications for Justices of Appeal are less demanding, than for Judges. To be a Judge of the Supreme Court, the Constitution specifies, that the person should have been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution. On the contrary all that is needed to be a Justice of Appeal is that the person is suitably qualified in law and can effectively, competently and impartially discharge the functions of the office of Justice of Appeal under the Constitution. A person is entitled to practice before a court of unlimited original jurisdiction, only if ‘suitably qualified in law’. The requirement of seven years of practice before a court of unlimited original jurisdiction and the requirement that the person has shown outstanding distinction in the practice of law, have not been specified as required qualifications for appointment of Justices of Appeal. 

 

  1. The President of the Court of Appeal has been empowered under article 136(1) of the Constitution to make rules of the Court of Appeal. At rule 4 of The Seychelles Court of Appeal Rules 2005 it is stated “In respect of any appeal, the Court shall consist of those Judges, not being less than three, whom the President shall select to sit for the purposes of hearing that appeal”. (emphasis added)

 

  1. ‘Judge’ according to the Interpretation provision at rule 2 in the said Seychelles Court of Appeal Rules “means a Justice of Appeal acting as such”. The thrust of the Appellant’s argument is based on this, namely a Judge should be a Justice of Appeal. In making this submission he overlooks the words ‘acting as such’. 

 

  1. The Seychelles Court of Appeal Rules having being made under a delegated power, namely article 136(1) of the Constitution would have to be interpreted in accordance with article 121 of the Constitution referred to at paragraph 7 above. The word ‘Judge’ in rule 4 of the Rules, thus includes both Justices of Appeal and Judges of the Supreme Court. That the word ‘Judge’ includes Judges of the Supreme Court, is made clear by the use of the words “acting as such” in the Interpretation provision in rule 2 of the Rules. It would be illogical to refer to a Justice of Appeal “acting as such”, for he is a Justice of Appeal for all purposes. It would also be superfluous to state that a Justice of Appeal is acting as a Justice of Appeal, for he is not a Judge of the Supreme Court or a Magistrate.

 

  1. The words “In respect of any appeal” and “select to sit for the purposes of hearing that appeal” in rule 4 of The Seychelles Court of Appeal Rules 2005, referred to at paragraph 13 above makes this further clear. It is not for all purposes that a Judge of the Supreme Court is treated as a Justice of Appeal, but only when selected by the President, in respect of any appeal, to sit for the purposes of hearing that appeal.

 

  1. That the word ‘Judge’ includes Judges of the Supreme Court is made further clear by section 2(2) of The Judiciary Act of Seychelles (Cap104) which states:  

(2) The President of the Court of Appeal may appoint any Puisne Judge to sit as a Justice of Appeal of the Court of Appeal:

 

Provided that the Puisne Judge appointed shall not have heard the case at the first instance before the Supreme Court or on appeal from the Magistrates’ Court.”

  1.  In other jurisdictions too, provisions have made for ex-officio members of the superior courts.

 

  1. Article 85 of the Constitution of the Solomon Islands which speaks of the establishment of the Court of Appeal there, is almost identical to article 121 of the Constitution of Seychelles. It states: “The judges of the Court of Appeal shall be— a. a President and such number of other Justices of Appeal, if any, as may be prescribed by Parliament; and b. the Chief Justice, Deputy Chief Justice and the puisne judges of the High Court, who shall be judges of the Court ex officio”.

 

  1. Article 99(2) of the Constitution of Botswana, which speaks of the composition of the Court of Appeal of Botswana, the apex court therein, states: “The judges of the Court of Appeal shall be- (a) the President of the Court of Appeal; (b) such number, if any, of Justices of Appeal as may be prescribed by Parliament; and (c) the Chief Justice and the other judges of the High Court: Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.”

 

  1.  The Supreme Court of Ireland is composed of the Chief Justice of Ireland, who is President of the Court, and nine ordinary Judges. In addition, the President of the Court of Appeal is ex officio a member of the Supreme Court. The President of the High Court is also an ex officio member of the Supreme Court. Where an insufficient number of Judges of the Supreme Court are available the Chief Justice may request any ordinary Judge of the High Court to sit as a member of the Supreme Court for the hearing of a particular appeal.

 

  1.  In Fiji, Judges of the Court of Appeal sit as ex-officio members of the Supreme Court and Judges of the High Court as ex-officio members of the Court of Appeal.

 

  1. For the reasons set out above, I have no hesitation in dismissing the appeal.

 

 

Signed, dated and delivered at Ile du Port on 30 April 2021.

 

 

____________________

Fernando, President

 

 

I concur                                                                       ____________________

Robinson JA

 

 

 

DINGAKE JA (Concurring)

 

INTRODUCTION & BACKGROUND

  1. This Appeal, at its core concerns the constitutionality of Supreme Court Judges acting as Justices of Appeal at the Court of Appeal hearing, following an appointment by the President of the Court of Appeal to act as such.  There are also other Grounds of Appeal which we shall address in this Appeal.
  2. The Appellant contends that the Seychelles Constitution prescribes strict separation of judicial office that makes it impermissible for Judges of the Supreme Court to sit in the Court of Appeal as acting Justices of Appeal.
  3. In this Appeal the Appellant is appealing the decision of the Constitutional Court in Karunakaran v Attorney General (CP18/2019) [2020] SCCC 5 (12 May 2020) (the “Judgment”).
  4. The Appellant, Durai Karunakaran (the Petitioner in the Constitutional Court) was seeking constitutional redress under Article 130(1) of the Constitution of the Republic of Seychelles (the “Constitution”). The Constitutional Petition averred that the composition of the Court of Appeal bench that heard the Petitioner's unsuccessful appeal in Karunakaran v The Tribunal & Anor (Constitutional Appeal SCA CL 05/2018) [2019] SCCA 34 (the “2019 Appeal”), contravened the Seychelles Court of Appeal Rules as only two Justices of Appeal heard the appeal, instead of three, as allegedly required by the Court of Appeal Rules. The third person on the panel was his Lordship Gustave Dodin, Judge of the Supreme Court, sitting as a Justice of Appeal.
  5. The Petitioner alleged that his constitutional right of appeal under Article 120(2) of the Constitution was breached as no validly constituted Court of Appeal heard his appeal as Judge of the Supreme Court cannot sit as a Justice of Appeal. The Appellant asked the Constitutional Court to declare that his right of Appeal has been violated; declaring that the judgment in Constitutional Appeal SCA CC05/2018 Karunakaran v/s The Attorney General dated the 10th day of September 2019 was unconstitutional null and void, ordering that the Appeal “be heard de novo by a properly Constitutional Court of Appeal”.
  6. The Respondent raised a number of preliminary objections to the Petition in accordance with the provisions of Rule 9 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994. The Constitutional Court was of opinion that the objections were very much interconnected with the first objection, being that there was no cause of action for the Petitioner with respect to the Constitutional Petition.
  7. The Petition was dismissed with costs in favour of the Respondent. It was held that the Ruling on the first preliminary objection would substantially dispose of the case before the Court. The Court also considered several other issues during the course of proceedings such as among others, procedure for bringing the constitutional challenge when the alleged breach occurred during the Court of Appeal proceedings and whether the Judges of Supreme Court may sit at the Court of Appeal hearings acting as Justices of Appeal when selected to do so by the President of the Court of Appeal. These issues will be addressed during the analysis of the Grounds of Appeal.
  8. The Appellant is now appealing the Constitutional Court Judgment, which dismissed his Petition.
  9. We turn now to the Grounds Appeal. Purely out of convenience we would follow the grouping of grounds (in so far as they may be related or overlap) or the structure followed by the Appellant in his skeletal submissions.

GROUNDS OF APPEAL

  1. The Appellant submitted seven grounds of appeal:

Ground 1 – The finding of the Constitutional Court that the Petition did not disclose a cause of action is misconceived and fails to apply the relevant law and legal principles;

            Ground 2 – The Constitutional Court erroneously departed from the preliminary objection and proceeded to adjudicate on the merits, furthermore without an answer to the petition on the merits;

Ground 3 – The Constitutional Court erred in adjudicating on the basis that the petition raised a procedural irregularity in the appeal;

            Ground 4 – The finding of the Constitutional Court that the judge of the Supreme Court can be made a Justice of Appeal through the Court of Appeal Rules is a misinterpretation and misconception that violates and undermines the constitutional structure of the judicial system which enshrines strict separation of judicial office;

Ground 5 – The Constitutional Court erred in not appreciating that a failure to raise a fatally defective issue importing a nullity could not be curative of the defect;

Ground 6 – The precedents relied upon by the Constitutional Court were not apposite and the decision was thus based on misconstrued rationes decidendi;

            Ground 7 – The Constitutional Court failed to adjudicate on the core issues of the alleged breach of the Constitution which raised the existence of the Court of Appeal at the material time.

  1. The Appellant’s Skeleton Arguments addresses Ground 1 and 2 together and Grounds 4, 5, 6 in the following order: 4, 6, 5. Ground 3 and 7 will be considered together as Ground 3 submissions are short and seem to relate to the same issue discussed in Ground 7.

Ground 1 – The finding of the Constitutional Court that the Petition did not disclose a cause of action is misconceived and fails to apply the relevant law and legal principles

Ground 2 – The Constitutional Court erroneously departed from the preliminary objection and proceeded to adjudicate on the merits, furthermore without an answer to the petition on the merits

  1. The above grounds, essentially speak to the question whether the Constitutional Court was correct in holding as it did that the Petitioner failed to show that the cause of action raised a primafacie case. It must be appreciated that by virtue of Article 130 (7) of the Constitution, which is the implicated and relevant section in this matter, it is a requirement that the Petitioner should meet the strictures of the aforesaid section, which provides that:

(7) Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (6), the person alleging the contravention or risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State.

  1. It is plain from the above quoted Article that a party needs to establish a prima facie case and only then the burden of proof shifts to the State.
  2. The Constitutional Court gave its reasons throughout the Judgement for finding, in effect, that the petition failed to show that the cause of action, if any, raised a prima facie case. We cannot fault the Constitutional Court for its reasoning and conclusion on this aspect and find that the two grounds discussed above are without merit.

Ground 3 – The Constitutional Court erred in adjudicating on the basis that the petition raised a procedural irregularity in the appeal

Ground 7 – The Constitutional Court failed to adjudicate on the core issues of the alleged breach of the Constitution which raised the existence of the Court of Appeal at the material time.

  1. We have considered the above grounds. They are without merit. It is plain from reading the judgment of the Constitutional Court that it was alive to the fact that at the heart of the Petition was the assertion that the Court of Appeal that presided over the appeal sought to be impugned was not validly constituted.
  2. The Appellant averred in the Constitutional Court that his Constitutional right of Appeal has been violated as his appeal was not heard by a valid Court of Appeal for the reason that the Court of Appeal that heard the above-mentioned appeal violated the Rules of the Court of Appeal made under the Constitution as there were only two Justices of Appeal on the bench and one Judge of the Supreme Court, sitting as a Justice of Appeal.
  3. It is plain to us that the essence of the Constitutional Petition was in relation to particular composition of the Court of Appeal bench, which is selected by the President of the Court of Appeal, not the existence of the Court of Appeal. It is plain to us on reading the judgment of the Constitutional Court, in totality, not piecemeal, that any references to irregularity in procedural matters before the Court of Appeal should not distract from the essence of the judgement which was that the Court of Appeal that heard the matter was validly constituted.
  4. In Ground 7 of Appeal the Appellant submits that, firstly, the Constitutional Court was influenced by the judgments cited, “which rest on an irregularity in procedural matters before a properly composed Court of Appeal which imports completely different considerations in terms of procedure and law, remained entirely focus on procedural irregularities”; secondly, that the Court’s statements regarding Appellant’s failure to follow procedures (para [72] of Judgment) is contradictory as the Court absolved the Appellant of the purported default in the interest of justice (at para [64]); thirdly, that, “the prelude at page 17 para 62 of the judgment to the consideration of the case of AG vs Mazorchi and anor SCA 6 of 96 (J1 of records) unreasonably ignores the oral submissions cited by the Court at page 5 para 14 . . .  to the effect that counsel had objected in an appeal during the same session and was ignored without the courtesy of a Ruling on the matter”.
  5. In our respectful view it is settled law in this jurisdiction and the Constitutional Court was correct to so find, that if there be any procedural irregularity arising in the Court of Appeal, the Court of Appeal is the appropriate court to deal with that irregularity not any lower court. This was made clear in such cases as Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (007 of 2010) (CP 7/2010) [2011] SCCC 1 (31 January 2011) and Franky Simeon v Republic (SCA 26/2002) [2003] SCCA 20 (09 April 2003).
  6. It should be recalled that the purpose of the Constitutional Petition in the present case was to allow the Appeal of Karunakaran v The Tribunal & Anor (Constitutional Appeal SCA CL 05/2018) [2019] SCCA 34 (10 September 2019) to be heard de novo by a properly constituted Court of Appeal. On the one hand, the Appellant did not ask to review the merits of the Court of Appeal decision in the Constitutional Court, but raised the issue of the Court of Appeal’ composition.

Ground 4 – The finding of the Constitutional Court that the judge of the Supreme Court can be made a Justice of Appeal through the Court of Appeal Rules is a misinterpretation and misconception that violates and undermines the constitutional structure of the judicial system which enshrines strict separation of judicial office;

  1. We have carefully considered the above submission. The argument by the Appellant that the Constitution of Seychelles enshrines strict separation of judicial office is not textually supported by the constitution, its spirit and broader scheme of the Constitution as we shall demonstrate in due course.
  2. The Appellant submits that under Article 121 the Court of Appeal is made up of 2 categories of members which are Justices of Appeal appointed under Articles 122-123 and Judges of Supreme Court appointed under Articles 126-127 who are ex-officio members of the Court of Appeal. The Appellant also submits that the notion of an institution of state having different categories of members is a known formula and makes example of National Assembly members who are subject to different rights, for example, in the enjoyment of tenure. The Appellant argues that that Judges of Supreme Court cannot become Justice of Appeal without a Constitutional appointment to the office.
  3. Article 121 provides:

Composition of Court of Appeal

 121. The Court of Appeal shall consist of -

(a) a President of the Court of Appeal and two or more other Justices of Appeal; and

(b) the Judges who shall be ex-officio members of the Court.”

  1. Justices of Appeal and Supreme Court Judges are both appointed in the same manner – by the President “from candidates proposed by the Constitutional Appointments Authority”. Article 123 and 127 provide:

Appointment of Justices of Appeal

123.     The President shall, by instrument under the Public Seal, appoint the President of the Court of Appeal and other Justices of Appeal from candidates proposed by the Constitutional Appointments Authority.”

Appointment of Judges and Masters

127.     The President shall, by instrument under the Public Seal, appoint the Judges and Masters of the Supreme Court from candidates proposed by the Constitutional Appointments Authority.”

  1. Rule 4 of the Court of Appeal Rules provides:

Selection of Judges

4. In respect of any appeal, the Court shall consist of those Judges, not being less than three, whom the President shall select to sit for the purposes of hearing that appeal.”

  1. The Appellant submits that in terms of the Rules of the Court of Appeal, Supreme Court judge may not sit on the Court of Appeal. He supports his submission by saying that the definition of the ‘Judge’ in Rule 4 should be taken from Rule 2, which defines Judge as “a Justice of Appeal acting as such” and not from Schedule 2 which defines Judge as “the Chief Justice or a Puisne Judge”. The Appellant submits that Article 6 of the Constitution provides that Schedule 2 applies in respect of Constitution, which is a general rule of interpretation; that Part V of Chapter III of the Constitution headed “Principles of Interpretation” applies specifically to Chapter III of the Constitution; that Section 2 of the Rules of the Court of Appeal made under the Constitution which by virtue of section 67(1) of the Interpretation and General Provisions Act has the same force and effect as a Constitutional provision, therefore “is a second Rule of Interpretation of specific application to the Rules of the Court of Appeal”. He concludes that, “one simply applies the specific over the general rule where specific is made applicable to part or section of the Constitution including its Rules thereunder”.
  2. We have gone through the above cited provisions with a fine comb. In our view a careful reading of all the above sources of law ranging from the constitution to the applicable rules does not support the conclusion that Judges of the Supreme Court cannot act as Justices of Appeal at a Court of Appeal hearing once appointed by the President of the Court of Appeal.
  3. In our view the Constitutional Court was alive to the law as reproduced above. The Court did consider that the definition of ‘Judge’ as “a Justice of Appeal acting as such” under Rule 2 applies to interpretation of Rule 4. The Court, however, disagreed that it only includes Justices of Appeal due to ‘acting as such’ phrase. The Respondent in the Constitutional Court submitted that ‘acting as such’ is meant to cover ex officio Justices of Appeal and the Appellant submitted that it only includes Justices of Appeal. The Constitutional Court did not agree with the Appellant for the reasons stated at paragraph [65] of the Judgment.
  4. With greatest of respect we cannot find any fault in the reasoning of the Constitutional Court on its analysis of the relevant sections and the conclusions it reached.
  5. Learned Counsel for the Respondent submitted before us that section 2 of the Judiciary Act, 2008 further gives the President of the Court of Appeal the power to appoint Puisne Judge to sit as a Justice of Appeal. Section 2 states:

“2.(1) There shall be appointed to the Court of Appeal, by the President under article 123 of the Constitution, a President of the Court of Appeal and two or more Justices of Appeal.

(2) The President of the Court of Appeal may appoint any Puisne Judge to sit as a Justice of Appeal of the Court of Appeal:

Provided that the Puisne Judge appointed shall not have heard the case at the first instance before the Supreme Court or on appeal from the Magistrates’ Court.”

  1. It is clear to us that from the combined reading of abovementioned provisions that a Supreme Court Judge may be selected or appointed to sit as a Justice of Appeal (Rule 4 and section 2 of the Judiciary Act) by the President of the Court of Appeal. The Supreme Court Judge does not hold office of the Justice of Appeal but may sit at the Court of Appeal hearing acting as Justice of Appeal. Such interpretation, is with respect correct, as indeed the Constitutional Court found, that the phrase ‘acting as such’ is included in the definition under Rule 2 for the purpose of permitting the Puisne Judges to sit at the Court of Appeal hearing.
  2. The Constitutional Court in the present matter also relied on the interpretation of this issue by Charles v Charles (1 of 2003) [2004] SCCA 2 (02 December 2004). The Appellant submits that Charles v Charles should not be applied in this case for the reasons stated in Ground 6, which will be addressed further below. It was stated in Charles v Charles:

“[21] It follows from the aforegoing considerations, in my judgment, that where a Supreme Court Judge is selected by the President of the Court of Appeal to sit for the purposes of hearing any appeal, that Judge is fully entitled to sit like any other Justice of Appeal and thus enjoys the same judicial independence in the discharge of his/her judicial functions as any other Justice of Appeal. It is not disputed that the learned Judges in question have been duly selected by the President of the Court of Appeal to sit on appeal in this matter. In this regard it cannot be overemphasized that when discharging their judicial functions in this Court, the Judges in question are subject to nobody but the law. This conclusion disposes of the matter.

  1. We endorse and echo the contents of the above quote. It represents the correct law in this jurisdiction. The Appellant’s Ground 6 has no merit as the case of Charles relied upon by the Constitutional Court was relevant to the issues being canvassed before it, relating in particular to the competency of a Supreme Court Judge to sit as a Justice of Appeal as contemplated by the Rules of the Court of Appeal.
  2. As part of the intellectual arsenal summoned and brought to our attention meant to aid in displacing the judges of the Supreme Court from ever sitting as Justices of Appeal it was argued before us that somehow the criteria for appointment of Justices of Appeal is much higher than that of the judges of the Supreme Court.
  3. This argument is without merit. In fact, a consideration of the criteria, on the contrary, may suggest a higher criteria for judges of the Supreme Court. We will let the constitutional provisions speak for themselves: Article 122 and 126(1) provide:

Qualification of Justices of Appeal

122.     A person is qualified for appointment as, or to discharge the functions of, the President of the Court of Appeal or a Justice of Appeal if, in the opinion of the Constitutional Appointments Authority, the person is suitably qualified in law and can effectively, competently and impartially discharge the functions of the office of Justice of Appeal under this Constitution. (emphasis added)

Qualification of Judges and Masters

126.     (1) A person is qualified for appointment as a Judge if -

(a) the person has been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and

(b) in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution. . . .”

  1. The above observation notwithstanding, it may still be said that the qualifications are similar in nature with a common requirement that a Judge or Justice of Appeal “can effectively, competently and impartially discharge the functions of the office”.
  2. In our considered view Judges and Justices of Appeal are also appointed in the same manner. There is no distinction between tenure for Judges and Justices and their required qualifications are similar in nature. Section 2 of the Judicial Act as noted states that the Puisne Judge appointed to sit at the Court of Appeal shall not have been the same Judge at the first instance before the Supreme Court or on appeal from the Magistrates’ Court. This is in line with the independence principle. In any case, under personal independence principle even a Justice of Appeal formally appointed to the office may be not suitable to hear a particular matter in certain circumstances that might impugn his/her independence.
  3. The issue of independence was also addressed in Charles v Charles (1 of 2003) [2005] SCCA 13. We have considered the precedents relied upon by the Constitutional Court in its judgement and we do not agree with submissions of learned Counsel for the Appellant that the said precedents were not apposite. In particular, we think that the court cannot be faulted for placing reliance on the case of Charles.
  4. It follows from our analysis above that the Appellant’s contention relating to Ground 5 of Appeal stating that the Rules of the Court of Appeal has been enacted to permit only one category of members of the Court of Appeal, namely Justices of Appeal to sit on the Court of Appeal and that is the only possible interpretation, cannot be correct. The Appellant’s submission flows from the Appellant’s interpretation of the definition of ‘Judge’ in Rule 4 to mean ‘Justice of Appeal acting as such’ and interpretation that ‘acting as such’ may not include Supreme Court Judge. At the hearing of this matter this Court asked Counsel for the Appellant to cite authority in support of his submission, but failed to do so.
  5. We hasten to mention that, in our respectful view, there is inherent absurdity in the argument that Judges of the Supreme Court cannot sit as Justices of the Court of Appeal as that will defeat their ex-officio status as members of the Court of Appeal, as per the instructions of the Constitution, that requires that we obey its terms.
  6. In our respectful view a combination of Article 121, Rule 4 and Rule 2 definition of judge as ‘a Justice of Appeal acting as such’ rather than simply stating ‘Justice of Appeal’, wording chosen in Articles 122 (“A person is qualified for appointment as, or to discharge the functions of, the President of the Court of Appeal or a Justice of Appeal if . . .”) clearly suggests that the Constitution of Seychelles permits Supreme Court Judge to sit at the Court of Appeal hearing acting as Justice of Appeal when he/she is ex officio member of the Court of Appeal and is selected to sit at the hearing by the President of the Court of Appeal.

Ground 6 – The precedents relied upon by the Constitutional Court were not apposite and the decision was thus based on misconstrued rationes decidendi

  1. The Appellant argues that Constitutional Court should not have relied on Charles v Charles (1 of 2003) [2004] SCCA 2 (02 December 2004) as it “adjudicated on an objection based on bias or perceived bias which is foreign to the matter before the Constitutional Court in this Appeal and the Court without the benefit of arguments from Counsel buttressed its reasoning on a consideration of Rule 4 . . .  which was . . . superfluous and obiter”. He further submits that the matter in Charles v Charles was ‘totally different’ and most importantly decision in Charles v Charles rested on a wrong provision of law, relying on definition of the ‘Judge’ under Schedule 2 rather than Rule 2, which should be relied upon when interpreting Rule 4 of the Court of Appeal Rules.
  2. We have already held that the precedents relied by the Constitutional Court including, the case of Charles were apposite and that there is not merit on this Ground.
  3. At paragraphs [17]-[18] of the case of Charles Justice Ramodibedi discussed Article 121 and composition of the Court of Appeal with Judges of Supreme Court being ex officio members of the Court of Appeal and referring to Schedule 2 definition of ‘Judge’ (Puisne Judge). At this point there is no error in interpretation of Article 121 and ‘Judge’ in 121(b) does mean the Chief Justice or a Puisne Judge as Schedule 2 definition applies to Article 121, not Rule 2 of the Court of Appeal Rules (as per Appellant’s own submissions that Rule 2 applies specifically to Rules of Court of Appeal and Schedule 2 is general definitions for interpretation of the Constitution).
  4. In the following paragraph [19] Justice Ramodibedi considered Rule 4 of the Court of Appel Rules, which the President of the Court of Appeal is empowered to make under Article 136. The Court concludes at paragraph [21] that, “…where a Supreme Court Judge is selected by the President of the Court of Appeal to sit for the purposes of hearing any appeal, that Judge is fully entitled to sit like any other Justice of Appeal . . .”. The Court did not consider definition of ‘Judge’ under Rule 2 in terms of Rule 4 “Justice of Appeal acting as such”.
  5. While the court did not consider the Rule 2 definition in relation to the Rule 4, the Court’s conclusion is not wrong with regards to Article 121 that Supreme Court Judges can be ex officio members of the Court of Appeal. The Judicial Act, 2008, which expressly states that Puisne Judge may sit at the Court of Appeal was not yet enacted at the time of Charles.

Ground 5 – The Constitutional Court erred in not appreciating that a failure to raise a fatally defective issue importing a nullity could not be curative of the defect

  1. We have considered the above ground. It is without merit if only for the reason that the Court of Appeal that presided over the matter was validly constituted. So whether or not the Petitioner failed to raise any alleged defect and the attendant remarks of the Constitutional Court at paragraphs 62 or 63 does not advance the case of the Appellant in any material way.
  2. It is our firm conclusion that none of the Grounds of Appeal raised by the Appellant has any merit.
  3. In the premises, for all the reasons stated above, this appeal is without merit and is liable to be dismissed.
  4. Before pronouncing the final order of this Court, we need to address Counsel for the Respondent’s prayer that if we find no merit in this Appeal we must dismiss it with costs.
  5. We are not persuaded to do as the Appeal raises constitutional issues of some significance and this court would be loath to order costs in this type of case which may have a chilling effect on potential litigants who may wish to approach the court to vindicate their constitutional rights.
  6. In the result, this appeal is dismissed. We make no order as to costs.

 

Signed, dated and delivered at Ile du Port on 30th April 2021

 

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Dingake JA