Bordino v Government of Seychelles ((SCA 12/2024) [2024] (Arising in MC 18/2019) (18 December 2024)) [2024] SCCA 33 (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 Ms. Shireen Denys) Reportable [2024] (18 December 2024) SCA 12/2024 (Arising in MC 18/2019) Appellant Respondent Neutral Citation: Bordino v Government of Seychelles (SCA 12/2024) [2024] (Arising in MC Before: Summary: Heard: Delivered: 18/2019) (18 December 2024) De Silva, Sharpe-Phiri, Sichinga, JJA Rule 24, Seychelles Court of Appeal Rules- main heads of argument filed out of time in breach of the rule - no application to extend the time or to condone the delay- good cause not shown to condone delay. 3 December 2024 18 December 2024 ORDER The appeal is dismissed. Costs to the Respondent. SICHINGA JA (De Silva JA, Sharpe-Phiri JA, concurring) RULING The Background 1. The Appellant has appealed against the Order of Judge Mohan Burhan, delivered on 19 of July 2024, by which the Judge appointed Sergeant Dave Jeanne as the new Receiver, replacing Superintendent Hein Prinsloo as Receiver over the property described as Parcel V17532 comprising condominium unit A4 in Zanmalak, Eden Island, Mahe Seychelles (hereinafter referred to as the “Confiscated Property”). The Confiscated Property is currently in the possession of the Financial Crime Investigation Unit (FCIU), following an Interlocutory order and Receivership order made on 27 March 2020, by the Supreme Court pursuant to Sections 4 and 8, respectively, of the Proceeds of Crime (Civil Confiscation) Act 2008 (hereinafter referred to as POCA). 2. The Order appointing the new receiver over the Confiscated Property was made after the Supreme Court established that the previous receiver, whose employment contract with the FCIU ended, had left the jurisdiction and was unlikely to return to Seychelles. Further, that since the new receiver was familiar with the matter and the operation pertaining to the Confiscated Property, he was the fit and proper person to replace the previous receiver in respect of the Confiscated Property. The Appeal Before This Court 3. The appeal grounds as submitted are as follows: (a) The learned trial Judge erred in law when he wrongly appointed Sergeant Dave Jeanne as the new Receiver over the Confiscated Property , to the value of SCR11,160,000.00, when the current Receiver, Hein Prinsloo’s appointment was still current and valid; (b) The learned trial Judge erred in law and committed a procedural irregularity when he ruled that the order of Receivership in the person of Sergeant Dave Jeanne is fit and proper in all the circumstances of this case when the Respondent has failed, refused or neglected to make an application setting aside the order of 27 March 2020, which appointed Superintendent Hein Prinsloo as Receiver. The law provides for not more than one Receiver to be appointed at a time, and in the circumstances, the learned Judge erred in law when he failed to cancel or otherwise set aside the order of 27 March 2020 first, before making a second order appointing Sergeant Dave Jeanne as Receiver; and (c) In all the circumstances of the case, Sergeant Dave Jeanne’s appointment as Receiver is procedurally flawed, invalid, null and void in law. The Issue On The Merits Of The Case Before This Court 4. The issue for consideration in this appeal is the procedure by which the Supreme Court should appoint a Receiver of the Confiscated Property, in the place of one, who is no longer employed under the FCIU and has since left the jurisdiction. 5. Although we recognize the importance of addressing this issue on its merits, we are constrained from doing so due to the Appellant's failure to adhere to the procedural rules of this Court, particularly the undue delay. Allow us to elaborate: Breach of Seychelles Court of Appeal Rules 6. Rule 24 of the Seychelles Court of Appeal Rules 2023, provides the following in pertinent part: “(1)(a) Unless the President otherwise directs─(a) The appellant shall lodge with the Registrar five copies of the appellant’s main heads of argument within one month from the date of service of the record… … (i) Where at the date fixed for hearing of the appeal the appellant has not lodged heads of argument in terms of this Rule, the appeal shall be deemed to be abandoned and shall accordingly be struck out unless the Court otherwise directs on good cause shown.” 7. The mandatory nature of this rule has been reinforced in recent jurisprudence. 8. In the case of Aglae v Attorney General (2011) SLR 44, this Court ruled that an appeal was abandoned due to a breach of procedural time limits. The Court relied on the seminal case of Ratnam v Cumarasamy and Another [1964] 3 All ER 933, 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 provide a timetable for the conduct of litigation." 9. 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). 10. The Court further emphasized: “[12] We cannot overemphasise 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.” 11. 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 […] 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.” 12. In a similar case, Avani Seychelles Barbarons Resort & Spa v Simeon (SCA 04/2023) [2023] (18 December 2023 ((SCA 04/2023) [2023], the heads of argument were filed nearly two months beyond the prescribed deadline. As in the present case, there was no application supported by an affidavit seeking condonation of the delay. Consequently, the Court found it necessary to deem the appeal abandoned. 13. The Registrar of the Court of Appeal served the record of appeal to both parties on 20 September 2024. However, the Appellant failed to comply with Rule 24(1)(a) of the Seychelles Court of Appeal Rules, 2023, which requires the filing of written heads of argument within one month of receiving the record. Instead, the Appellant submitted their written heads of argument on 28 October 2024, eight days beyond the prescribed deadline. In contrast, the Respondent, who is required under Rule 24(1)(b) to file their heads of argument within two weeks of receiving the Appellant’s submissions, filed their submissions on 31 October 2024, three days after the Appellant’s submission. This highlights the Respondent’s diligence in adhering to procedural timelines, despite the Appellant’s delay. 14. The Appellant’s failure to comply with the strict timelines set by the rules not only constitutes a breach of procedural requirements but also hinders the efficient administration of justice. Such non-compliance shifts the burden onto the Court and the opposing party, resulting in unnecessary procedural complications and delaying the resolution of the case. 15. Furthermore, as at the time of hearing the appeal, the Appellant had not yet filed any application seeking condonation for the late submission of his arguments This reflects a disregard for the Court’s rules and procedures, which are essential to the fair and efficient functioning of the judicial process. In Cornelis L. Hoevers v Rachel F. Hoevers (nee Alphonse) SCA MA 07/2024 the Court held as follows: 5