Gregoire's Company Limited v The Attorney General & Anor ((SCA MA 13/2024) [2025] (31 January 2025)) [2025] SCCA 1 (31 January 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (31 January 2025) SCA MA 13/2024 In the Matter Between Gregoire's Company Limited (rep. by Mr. Oliver Chang-Leng) And 1. The Attorney General (rep. by Mrs. Lansinglu Rongmei 2. Brigitte Payet (rep. by Mr. Basil Hoareau) Applicant 1st Respondent 2nd Respondent Neutral Citation: Gregoire's Company Limited v The Attorney General & Anor (SCA MA Before: Summary: Heard: Delivered: 13/2024) [2025] (31 January 2025) Robinson JA Court of Appeal of Seychelles — Questions of Procedure — Extension of time — Precise relief should be specified in the notice of motion — Filing of notice of appeal — Court of Appeal of Seychelles Rules 2023, rules 2, 18, 29 November 2024 31 January 2025 ORDER (a) The notice of motion supported by affidavit is dismissed. ______________________________________________________________________________ ______________________________________________________________________________ RULING ROBINSON JA The parties' respective cases The Applicant's notice of motion supported by affidavit 1. This is an application by way of notice of motion dated 20 September 2024 and filed at the Registry of the Supreme Court on the same date "for an application for leave to file an appeal from the Supreme Court outside of the prescribed time limit for the reasons set out in the attached affidavit in support". The First and Second Respondents object to the application. 2. Emmanuella Hassan, a director of the Applicant, who is authorised to swear to the affidavit in support on behalf of the Applicant, swore to the affidavit in support with four exhibits on the 12 September 2024 (paragraph [2] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT" and exhibit A2 "GREGOIRE'S COMPANY LIMITED WRITTEN RESOLUTION OF THE BOARD OF DIRECTORS" refer). 3. The affidavit in support, inter alia:— (a) explains the delay in filing the notice of appeal; (b) avers, without any elaboration, that the Applicant has "real and substantial points of law which must be canvassed by the Court of Appeal in an appeal" (paragraph [8] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT" refers); (c) avers that allowing the Applicant to "file its appeal out of time" would not cause any prejudice to the First and Second Respondents (paragraph [8] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT" refers). 4. The Applicant explains that the delay in filing the notice of appeal against the judgment delivered on the 20 June 2024 is due to receiving a copy of the judgment on the 14 August 2024. At paragraph [4] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT", the Applicant avers that the learned Judge only read the "ratio" of the judgment on the 20 June 2024. 5. Exhibit A3, the email correspondence between Counsel for the Applicant and the Assistant Registrar of the Supreme Court, shows that on the 30 July 2024, Counsel for the Applicant emailed the Assistant Registrar of the Supreme Court. I reproduce the email (so far as relevant):— "Dear Sumita, We continue to act for Gregoire's Company Limited. Has the final judgment in the above matter been put on file yet? Last week when I checked with the Civil registry it had not yet been placed on file by the Judge. […]". 6. Exhibit A3 shows that on the 30 July 2024, the Assistant Registrar replied to inform that "[...] I am still waiting to receive the judgment from the Judge." 7. The Applicant avers that the delay was not within the Applicant's control and not inordinate. Therefore, "in light of the delay of the learned Judge to provide a copy of the full Judgment, the Applicant humbly seeks leave of the Court of Appeal to have its appeal heard out of time", (at paragraph [8] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT"). Exhibit A4 is a copy of the notice of appeal. "Objection by the 1st Respondent" 8. On the 8 November 2024, Counsel for the First Respondent, filed an "Objection by the 1st Respondent", which argues that the application did not show good cause for this Court to extend time for the following reasons— (a) the Applicant's claim of being unable to file a notice of appeal due to waiting for a copy of the judgment was unfounded, as the Applicant was present in the Supreme Court when the operative part of the judgment was handed down; (b) additionally, the application did not provide any reasons to justify the delay of over a month between receiving the judgment and filing the application; and (c) the application is devoid of any merit. The Second Respondent's affidavit in reply 9. The Second Respondent gave evidence in the form of an affidavit in reply, objecting to the application on the following grounds. 10. The affidavit in reply claims that the relief claimed by the Applicant in the notice of motion is not in accordance with the law. 11. The affidavit in reply also claims that the Applicant has not advanced any justification and valid grounds for the Court to allow it to file its appeal out of time. It explains that the Applicant has not acted diligently and in a timely manner. Counsel for the Applicant received a copy of the judgment on the 14 August 2024, but the Applicant only filed the application on the 20 September 2024, which is more than a month after Counsel for the Applicant had received a copy of the judgment. 12. The affidavit in reply avers that the application should be dismissed. The questions at issue 13. The issues for determination are— (a) whether or not the relief sought by the Applicant in the notice of motion is in accordance with the law; (b) whether or not the Applicant has shown good cause for this Court to exercise its discretion to extend the time to file the notice of appeal. Compliance with rule 26 of the Court of Appeal of Seychelles Rules 2023: submissions and analysis of the contentions of the parties 14. The parties agreed to present oral arguments concerning the questions at issue, as outlined below. Submissions on behalf of the Applicant 15. With respect to the point raised by Counsel for the Second Respondent, which argues that the relief sought by the Applicant is not in accordance with the law, Counsel for the Applicant presents the following response. He accepts that the application had not been framed in conformity with rule 26 of The Court of Appeal of Seychelles Rules 2023 (hereinafter referred to as "rule 26"). However, he argues that the First and Second Respondents would not suffer any prejudice, as it is evident from the application that the Applicant was invoking rule 26. 16. Counsel for the Applicant repeats the evidence of the Applicant in his submissions to make the point that the application shows good cause. He argues that the delay in filing the application on the 20 September 2024 was justified due to the late receipt of the judgment and that the delay is not inordinate. 17. Counsel for the Applicant made several points in his oral submissions, which are not found in the Applicant's affidavit in support to explain the entire delay. He submitted that it was only after reviewing the judgment that the Applicant understood the reasons behind the learned Judge's decision. After receiving the judgment on the 14 August 2024, Counsel for the Applicant prepared the notice of appeal, the notice of motion and the affidavit in support. He claims that it took time to prepare the documents in question. 18. The Court pauses here to state that during oral submissions, Counsel for the Applicant states that the learned Judge only delivered a "summary" of the judgment. However, the evidence from the Applicant avers that the learned Judge delivered the "ratio" of the judgment. I will return to this point later. 19. Counsel for the Applicant argues that the Applicant has an arguable case. It is noted that the affidavit in support does not aver that the Applicant has an arguable case. Therefore, the Court will not consider this submission. 20. Counsel for the Applicant argues that granting the Applicant leave to file its notice of appeal would not cause any prejudice to the First and Second Respondents. He claims that if the Court were to grant this application, the Respondents would have the opportunity to defend themselves during the hearing of the appeal. Additionally, if the Court were to allow the appeal, it would not impact the case currently pending before the Employment Tribunal. I note that there is no information in the affidavit in support regarding the case, which Counsel for the Applicant claims is pending before the Employment Tribunal. Submissions on behalf of the First Respondent 21. I will not repeat the submissions of Counsel for the First Respondent, as she reiterates the objections stated in the "Objection by the 1st Respondent." Submissions on behalf of the Second Respondent 22. Counsel for the Second Respondent argues that the relief specified in the notice of motion is not in accordance with the law. He argues that The Court of Appeal of Seychelles Rules 2023 do not make provision for the Applicant to seek leave of the Court to "file an application for leave to file an appeal from the Supreme Court outside of the prescribed time limit". [Emphasis is mine]. Counsel for the Second Respondent takes issue with the words ʺoutside of the prescribed time limitʺ. He explains that rule 26 makes provision for an order to extend the time by way of notice of motion supported by affidavit. Therefore, he claims that the Court cannot grant the relief specified in the notice of motion. 23. Counsel for the Second Respondent also argues that the application fails to show good cause under rule 26. He argues that the length of the delay, which is reckoned from the date the notice of appeal should have been filed to the date of filing of the application, which, according to him, is 26 "Court days" or more than 30 calendar days, is inordinate. 24. Counsel for the Second Respondent argues that the Applicant attempted to explain the first period of the delay, from the date the judgment was handed down on the 20 June 2024 until the 14 August 2024, when the Applicant received a copy of the judgment. He submits that the reason for the first period of the delay is reasonable, as Counsel for the Applicant received the judgment on the 14 August 2024. 25. However, he argues that the evidence given by the Applicant fails to explain the second period of the delay, which spans from the date the Applicant received the judgment on the 14 August 2024 to the date of filing of the present application on the 20 September 2024. He also argues that the evidence in the affidavit does not clarify why the delay during the second period was outside the Applicant's control. 26. Counsel for the Second Respondent argues that the affidavit does not aver that the appeal has any real prospect of success. Instead, the affidavit states that the Applicant has "real and substantial points of law which must be canvassed by the Court of Appeal in an appeal", as mentioned at paragraph [8] of the "AFFIDAVIT IN SUPPORT BY THE APPLICANT". Suffice it to state that the affidavit evidence does not substantiate this claim. Hence, the Court will not take it into consideration. 27. With regard to the argument presented by Counsel for the Applicant that the First and Second Respondents will not suffer any prejudice, Counsel for the Second Respondent emphasises that the requirements provided in rule 26 and the relevant case law must be respected for an application for an extension of time to succeed. In this respect, he argues that although the judgment was received on the 14 August 2024, the Applicant has not acted diligently and in a timely manner. Counsel for the Second Respondent contends that there must be finality to litigation. Submission in reply on behalf of the Applicant 28. Following the oral submissions of both Counsel for the Respondents, Counsel for the Applicant explains the reason for the delay which occurred following the receipt of the judgment on the 14 August 2024. He submits that it took time to prepare the documents in question. I note that the affidavit in support does not aver such facts. Analysis of the contentions of the parties 29. Rules 2, 18 and 26 of the Court of Appeal of Seychelles Rules 2023 are relevant to determining the questions at issue. 30. Rule 18 (1) stipulates: — "[e]very appeal shall be brought by notice in writing […] by the appellant which shall be lodged with the Registrar of the Supreme Court within thirty days of the decision appealed against." 31. Rule 26 deals with applications for extensions of time and stipulates:— "[t]he times fixed within these Rules may, on good cause shown by notice of motion supported by affidavit, be extended by the President or the Court." [Emphasis is mine] 32. First, I deal with the issue of whether or not the relief sought by the Applicant is in accordance with the law. While Counsel for the Applicant accepts this submission, he argues that this Court should address the application as if it were made under rule 26 as no prejudice has been caused to the First and Second Respondents. Counsel for the Applicant should not be heard to make such a submission. 33. In my view, Counsel for the Second Respondent is correct to argue that the notice of motion should specify the relief sought in precise terms. In that regard, he is correct to argue that the notice of motion, in the present case, should seek leave of the Court to extend the time to file the notice of appeal. I conclude that the relief specified in the notice of motion is not in accordance with rule 26 and The Court of Appeal of Seychelles Rules 2023, and, as such, is irregular. 34. Upon reviewing the case law of the Courts of Seychelles, I observed that the Court is also consistently making the same error. I urge both the Court and Counsel to pay careful attention to the precise relief specified in rule 26. It is important to understand that an application for an extension of time under rule 26 is not merely a formality. The Court is not simply exercising case management discretion in relation to an existing appeal. The exercise of the discretion to extend the time to file the notice of appeal is a matter of material import as it grants the Court a jurisdiction it would not otherwise have. 35. Secondly, I deal with the issue of whether or not the Applicant has shown "good cause" under rule 26 for the Court to exercise its discretion to extend the time to file the notice of appeal. Given that I cannot grant any relief under rule 26, I have considered this issue in passing. Based on the averments contained in the affidavit in support, I conclude that the Applicant has not demonstrated a serious intention to seek any relief from the Court. 36. The Court of Appeal of Seychelles Rules 2023 does not define "good cause". The Court has the discretion to judiciously assess whether good cause has been demonstrated. The case law of the Courts of Seychelles provides specific criteria which the Court considers when exercising its discretion under rule 26 with respect to an application to extend the time to file the notice of appeal. 37. The criteria for granting an extension of time to file the notice of appeal under rule 26 are the following:— (a) the applicant must offer a reasonable explanation for the delay, addressing both the length of the delay and the adequacy of the reasons provided; (b) the applicant must demonstrate the prospects of success on the merits of the appeal; and (c) the Court must consider the degree of prejudice to the Respondent. 38. First, I have to decide whether or not the Applicant has given a reasonable explanation for the delay. Under rule 2(4)(a) and (b) of The Court of Appeal of Seychelles Rules 2023, the 30 days within which an appeal must be lodged under rule 18(1) of the same Rules exclude the date of the decision of the Supreme Court, which an appellant wishes to appeal against, and include the last day where the period is expressed to end on. Under rule 2(3) of the same Rules, ""days" means Court days;" and "Court day" within the meaning of rule 2(1) of the same Rules "means any day other than a Saturday, Sunday or public holiday;". 39. According to the said provisions, the time limit to file the notice of appeal in the present case expired on 1 August 2024. Hence, this application is being made with a delay of 35 Court days, or 50 calendar days. I will return to the issue of the length of the delay. I assess whether or not the reasons given for the delay are adequate. 40. I find merit in the submission of Counsel for the Second Respondent that there are two periods of delay. However, with respect to the first period of the delay, I find the argument presented by Counsel for the Applicant and Counsel for the Second Respondent that the Applicant was justified in waiting for a copy of the judgment before starting to prepare the documents in question to be unconvincing. In the present case, Counsel for the Applicant chose to wait for the judgment, which he received on the 14 August 2024. 41. I have gone through the judgment, which consists of 31 pages. Of these, 26 pages focus on the documents filed by the parties. The written submissions filed by the parties are reproduced in full, covering 21 pages of the judgment. All these documents must be in the Court file. The reasoning of the learned Judge constitutes 5 pages of the judgment. The Applicant states in the affidavit in support that the learned Judge handed down the "ratio" of the judgment. The First Respondent submits that the learned Judge read the "operative part" of the judgment, a point the Applicant did not dispute. When the Court inquired whether or not Counsel for the Applicant had obtained the transcript of the "ratio", he replied that he had not made such a request. It remains unclear why Counsel for the Applicant claims in his oral submissions that the learned Judge provided a summary of the judgment, while the affidavit in support claims that the learned Judge handed down the "ratio" of the judgment. 42. I see no reason why Counsel for the Applicant could not have started preparing the notice of appeal based on the documents available. The supporting affidavit did not explain why Counsel for the Applicant did not take this step. I find that Counsel for the Applicant did not take all steps necessary to obtain the transcript of the ʺratioʺ and other relevant documents from the Court. 43. I also note that there is no explanation in the affidavit in support as to why Counsel for the Applicant did not start preparing the notice of motion and the affidavit in support based on the documents available or immediately after being informed by the Assistant Registrar of the Supreme Court that she [the Assistant Registrar] had not received the judgment from the learned Judge. 44. Regarding the second period of the delay, I agree with Counsel for the First and Second Respondents that the affidavit in support must demonstrate all the steps the Applicant took to expedite the preparation and filing of the documents in question after receiving the judgment. It is insufficient for the affidavit evidence to merely provide the reason explaining why obtaining the judgment was impossible and to aver that Counsel for the Applicant received a copy of the judgment on the 14 August 2024. It is also insufficient to aver in the affidavit in support that the delay was not within the control of the Applicant without any elaboration. As a result, it remains unclear how the Court will determine whether or not the Applicant has acted diligently and in a timely manner concerning the preparation and filing of the notice of appeal, the notice of motion and the affidavit in support, in the absence of evidence in the affidavit in support. This situation demonstrates a lack of seriousness on the part of the Applicant in pursuing this application. 45. In Aglae v The Attorney General (2011) SLR 44, the applicant delayed by 5 days in filing his notice of appeal and sought an extension of time to file it. However, the Court dismissed the application, noting that the applicant failed to demonstrate good cause for the Court to consider exercising its discretion to grant an extension of time to file the notice of appeal. In Aglae, the Court quoted with approval the case of Ratnam v. Cumarasamy [1964] 3 All ER 933 (P. C.), a decision from the Privy Council concerning an appeal from the Court of Appeal of the Supreme Court of the ʺFederation of Malaya of Kuala Lumpurʺ. This case involved the dismissal of an application to extend the time for filing the memorandum of appeal and certain other documents. Ratnam stated:— "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 the 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 to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." 46. In Ratnam, the applicant seeking an extension of time filed the notice of appeal and provided security for the costs of the appeal on time. However, there was a delay of 4 days in filing the record of appeal, which included the Memorandum of Appeal and several other documents. 47. With respect to the submission that no prejudice will be caused to the First and Second Respondents, I accept the submission of Counsel for the Second Respondent that there should be finality to litigation. In Lagesse v C. I. T. [1991] MR 46, it is stated that:— 11