Bordino v Government of Seychelles ((SCA CL 01/2024) [2024] (Arising in CP 03/2024) (18 December 2024)) [2024] SCCA 36 (18 December 2024)

IN THE COURT OF APPEAL OF SEYCHELLES In the Matter Between Gianni Bordino (rep. by Mr. Frank Elizabeth) And Government of Seychelles (rep. by Mr. Brandon Francois) Reportable [2024] (18 December 2024) SCA CL 01/2024 (Arising in CP 03/2023) Appellant Respondent Neutral Citation: Bordino v Government of Seychelles (SCA CL 01/2024) [2024] (Arising in Before: Summary: Heard: Delivered: CP 03/2024) (18 December 2024) De Silva, Sharpe-Phiri, Sichinga, JJA The appellant's non-compliance with mandatory procedural timelines under Rule 24 of the Seychelles Court of Appeal Rules, 2023. 3 December 2024 18 December 2024 This appeal is dismissed with costs to the Respondent ORDER RULING SHARPE-PHIRI JA (De Silva JA, Sichinga JA, concurring) Introduction [1] This is a ruling on an appeal brought by the appellant on 3 June 2024 against the ruling of the Constitutional Court in CON-00-CV-CP-0003-2023 delivered on 28 May 2024. [2] In its ruling, the Constitutional Court dismissed the application for leave to file a petition out of time, holding that allowing non-compliance with the procedural Rules would amount to an abuse of process and cause undue unfair prejudicial to the respondents. The Court further emphasized that granting such an application would not align with the interests of justice and that procedural Rules must be strictly observed. Background of the case [3] The background of the case is as follows: the appellant and his wife, Deborah Malcuori, commenced proceedings against the Government of Seychelles before the Constitutional Court. The matter was scheduled for hearing on 4 April 2023. However, due to the non- attendance of both the applicants and their counsel at the hearing, the Court dismissed the action. [4] Following the dismissal, the appellant and his wife filed a new Petition and supporting affidavit in the Constitutional Court on 5 April 2023 under case SCC 3/2023. In their filing, they contended that they were denied a fair hearing before the Court of Appeal, arguing that the Court dismissed their application for leave to file additional submissions. [5] On 18 April 2023, the applicants filed an urgent motion under MA 196/2023, seeking leave to file their Petition out of time, pursuant to Rule 4(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules. [6] The respondent raised a preliminary objection, asserting that the Petition constituted an abuse of process. It was contended that the Petition improperly challenged the decision of the Court of Appeal in MA 33/2022 by raising constitutional arguments regarding an alleged infringement of the right to a fair hearing, which had not been raised before the Court of Appeal. Additionally, the respondent argued that the Petition disclosed no reasonable cause of action or arguable grounds in law and should therefore be dismissed. [7] Upon consideration of the motion, the Constitutional Court determined that the applicants had failed to establish good and sufficient cause warranting the exercise of its discretion to grant leave to file the Petition out of time. In dismissing the motion, the Court concluded that permitting non-observance with and wilful disregard for the Rules would result in unfairness and prejudice to the respondent. Appeal before this Court [8] Being dissatisfied with the ruling of the Constitutional Court, the appellant lodged an appeal to this Court advancing two grounds of appeal. [9] The first ground of appeal asserted that the learned trial Judges erred in law by improperly exercising their discretion in dismissing the appellant's application for leave to file his petition out of time under Rule 4(3) of the Constitutional Court (Application, Contravention, Enforcement, or Interpretation of the Constitution) Rules. [10] The second ground of appeal contended that the trial Judges erred in law when they ruled that the fact that the appellant had filed his Petition before filing his application for leave to file his Petition out of time constitutes a procedural irregularity in law. [11] On appeal, the principal issue intended for our determination was whether the Constitutional Court properly exercised its discretion in refusing to grant the appellant leave to file his Petition out of time. [12] Pursuant to a cause list issued by the Seychelles Court of Appeal dated 14 August 2024, this appeal was scheduled for hearing in the December 2024 session, specifically for Roll Call on 2 December 2024 and hearing on 3 December 2024. The cause list was published and delivered to the representative attorneys via electronic mail on 16 August 2024. [13] At the hearing of this matter on 3 December 2024, we confirmed the foregoing positions with counsel for the parties. We also confirmed that counsel for the appellant had filed his heads of argument on 31 October 2024, which were out of the prescribed timeframe for doing so, and that the appellant had not filed any application for extension or condonation. [14] Considering the procedural irregularities and the absence of any application before this Court, we proceeded to invoke Rule 24(1)(i) of the Seychelles Court of Appeal Rules, deeming the appeal to have been abandoned and dismissed it accordingly. We indicated that the reasons for our decision would be given later. We now provide our reasoning. The issues on the case before this Court [15] Indeed, the record shows that the brief in the matter was served on Mr. Elizabeth for the appellant and Ms. Nissa Thompson for the respondent on 20 September 2024. The appellant’s attorney filed heads of argument on 31 October 2024, whereas the respondent’s filed their arguments, prior to receipt of the appellant’s, on 29 October 2024. [16] Rule 24(1) of the Seychelles Court of Appeal Rules imposes an obligation on appellants to file heads of argument within one month from the date of service of the record. The Rule further provides that if an appellant fails to comply within this timeframe, the appeal is deemed abandoned unless good cause is shown, and the Court directs otherwise. [17] The mandatory nature of Rule 24(1) has been reinforced in recent jurisprudence. In Aglae v Attorney General (2011) SLR 44, this Court ruled that an appeal was abandoned due to a breach of procedural time limits. In that case, the Court relied on the seminal case of Ratnam v Cumarasamy and Another [1964] 3 All ER 933, a judgment of the Privy Council from an appeal from the Court of Appeal of the Supreme Court of Malaysia, which held: “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 is to provide a timetable for the conduct of litigation.” [18] Specifically addressing Rule 24, the Court in Auguste v Singh Construction (Commercial Case 71 of 2022) [2022] SCCA 69 (16 December 2022) stated: “[10]. There is now settled jurisprudence on this point – most recently in the cases of Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 (10 May 2018) and Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 (21 October 2019).” [19] The Court further emphasized in Auguste v Singh Construction that: “[12] We cannot overemphasize the importance of Rules of procedure. There is an apparent necessity for Courts to adopt a tough stance on time limits. Parties are entitled to certainty and clarity in Court proceedings and the taxpayer to a system that is cost-effective as possible. [13] For all these reasons, we cannot condone the breaches of the Rules and deem the present appeal abandoned.” [20] Further, in Chang Sing Chung v Kim Koon and Ors (SCA MA 38 of 2023) [2023] SCCA 48 (25 August 2023), the Court held: “[22]Rule 24 (a) […] obliges an appellant to file heads of argument within a specified time period - one month - from the date of service of the record… There are certainly cases such as the one we are dealing with, where what has been flouted is 24(a) … and appeals have been dismissed. So, flouting 24(a) has consequences.” [21] The foregoing decisions illustrate this Court’s emphasis on strict adherence to procedural Rules, particularly those governing prescribed time limits, as being crucial to the fair and efficient administration of justice. Furthermore, any application to undertake a procedural step must be supported by sufficient material placed before the Court to enable it properly exercise its discretion, with delays being justified by special circumstances. [22] Similarly in Avani Seychelles Barbarons Resort & Spa v Simeon (SCA 04/2023) [2023] (18 December 2023 ((SCA 04/2023) [2023] this Court found that the heads of argument had been filed nearly two months out of time and there was no application supported by an affidavit before the Court to condone the delay. In the circumstances, the Court found “no alternative but to deem the appeal abandoned.” [23] While this Court recognizes the value in resolving cases based on their merits, that cannot happen at the expense of procedural integrity. Procedural Rules ensure that justice prevails, balancing the need for fairness and efficiency in judicial proceedings. [24] In the present case, the record indicates that the Registrar of the Court of Appeal served the record of appeal on both parties on 20 September 2024. Pursuant to Rule 24(1)(a) of the Seychelles Court of Appeal Rules, 2023, the appellant was required to file heads of argument by 20 October 2024. However, the appellant’s heads of argument were only filed into Court on 31 October 2024, indicating non-compliance with the mandatory deadline prescribed for filing under the Rule. [25] This failure constitutes a breach of the Rules, which further provide under Rule 24(1)(i) that if an appellant does not file heads of argument within the stipulated timeframe, the appeal shall be deemed abandoned and struck out, unless good cause is shown, and the Court directs otherwise. [26] In the recent case of Cornelius Leonardus Hoevers v Rachel Florette Hoevers (nee Alphonse) SCA MA 07/24 and SCA 14/2023 [2024] (3 May 2024), this Court seized with a formal application, and supporting affidavit, for an extension of time brought under Rules 26 and 24(1) (a) and (i), had the opportunity, to consider whether circumstances exist which might justify the appellant’s delay in filing its heads of argument. The Court identified five factors to consider if there was good cause shown for condoning the late filing. The factors included: (i) degree of the delay, (ii) the explanation advanced for such lateness. (iii) the prospects of success, (iv) the importance of the case from a jurisprudential point of view, and (v) prejudice suffered by the Respondent. Upon considering the application, the Court found that the significant jurisprudential value in the matter, entitled the condoning of late filing. [27] Accordingly, where a formal application for condonation is made under the Court Rules, the Court can assess whether good cause exists to justify condoning delays. Without an application with supporting evidence, a Court is inhibited from exercising its discretion to condone procedural breaches. [28] In the present case, the appellant’s counsel has neither moved an application seeking condonation of the delay in the submission of its arguments nor has he offered any explanation for not complying with the procedural Rules. Instead, the appellant’s heads of argument were filed eleven days beyond the deadline stipulated by the Rules. The appellant’s non-compliance with the timelines set by the Rules undermines the procedural structures that are designed to facilitate expedient justice. These delays put a needless burden on both the Court and the respondent, cause procedural inefficiencies, and prevent the timely resolution of the matter. [29] Not only does, the appellant, failing to move an application for condonation demonstrate a disregard for the procedural requirements, which are fundamental to the fair and efficient administration of justice, but it deprives the Court from considering whether there are exceptional circumstances which justify the appellant's delay. It prevented the Court from determining whether there were grounds to excuse the appellant’s delay in filing. In the absence of such an application, the Court was unable to exercise this discretion to excuse procedural non-compliance. [30] The failure by the appellant to observe the time frames prescribed by the Constitutional Court and this Court, undermines the integrity of the administration of justice, constitutes a wastage of judicial resources, and diminishes public confidence in the judicial system, which cannot be tolerated. [31] In contrast, in this case, the respondent complied with Rule 24(1)(b), which requires a respondent to file its heads of argument within a fortnight from receipt of the appellant’s submissions. Regardless of the appellant’s delay, the respondent diligently lodged their arguments on 29 October 2024, two days ahead of the appellant’s. This shows that the respondent was diligent in making sure that procedural timelines were adhered to and highlights the appellant’s failure to comply. [32] In the circumstances of this case, there was no other option for this Court than to treat the appeal as having been abandoned and as such, dismiss it. This appeal accordingly stands dismissed with costs in favour of the respondent. 7