EME Management Services Ltd v Island Development Company Ltd (90 of 2009) [2010] SCSC 122 (14 March 2010);

IN THE SUPREME COURT OF SEYCHELES

 

E.M.E MANAGEMENT SERVICES LTD

VS

ISLAND DEVELOPMENT COMPANY LTD

 

Civil side no: 90 of 09

Civil side no: 129 of 2009

 

Mr. Hoareau for the Plaintiff

Mr. Changsam for the Defendant

 

RULING

 

Burhan, J

 

Learned counsel for the plaintiff moved to produce the certificate of incorporation of the plaintiff’s company EME Management Services Ltd a document issued by the Registrar of Corporate Affairs British Virgin Islands as the said company was registered in the territory of the British Virgin Islands. Learned counsel for the defendant objected to the production of the document as it was a document originating from another country and did not contain an apostille as required by section 28 (2) of the Evidence Act Cap 74 as amended by Act No 16 of 1996.

 

Section 28 (2) of the Evidence Act reads as follows;

 

“ When any public document executed in the territory of a Convention State is produced before any court in Seychelles purporting to bear on it or on an allonge a certificate issued by the Competent Authority of the Convention State in which the document is executed, such document shall be admitted in evidence without proof of the seal or signature of the person executing it and the court shall presume that such seal or signature is genuine and the person signing it held at the time it was signed the official character which the person claims and the document shall be admissible for the same purpose for which it would be admissible in accordance with the law of evidence for the time being.”

In the case of La Serenissima Ltd v Mr Francesco Boldrini and otrs SCA 26 0f 2000 a “Convention State” was held to be a State signatory to or which has acceded to the Convention namely the “Convention Abolishing the Requirements of Legislation for Public Documents” signed at the Hague on 5th October 1961. It is pertinent to mention at this stage that both British Virgin Islands and Seychelles are Convention States and therefore section 28 (2) and not section 14 of the Evidence Act applies to any public document, emanating from British Virgin Islands and being produced in any court in the Seychelles.

There is no dispute between the parties that the incorporation certificate intended to be produced by the plaintiff is a public document. A reading of section 28 (2) of the Evidence Act clearly shows that a public document emanating from British Virgin Islands when being produced in a court in Seychelles, must contain either on it or on an allonge (attachement) to it, a certificate (emphasis added) issued by the Competent Authority (emphasis added) of the Convention State which for the purposes of this case is British Virgin Islands.

Learned counsel for the defendant brought to the notice of court that the certificate referred to in section 28 (2) is an apostille. This is a certificate that authenticates the signature of the public official who has signed the document in the home state. The apostille certificate confirms that the person who signed the document has the authority to do so and that the document should therefore be recognised as legal, without further evidence being led in another member state in this instant case Seychelles.

Further it should be the Competent Authority referred to in section 28 (2 ) of the Evidence Act in British Virgin Islands that should issue such a certificate or apostille which would then for all purposes legalise the said document.

As section 28 (2) of the Evidence Act is applicable to this document, this court rules that prior to the said document of the plaintiff being produced and accepted in court as an exhibit, it should contain the aforementioned certificate or apostille from the prevailing Competent Authority of the State concerned British Virgin Islands.


 


 


 

M. BURHAN

JUDGE

Dated this 15th day of March 2010