Intelvision Ltd v Multichoice Africa Holdings BV and Anor ((SCA 22/2024) [2025] (Arising in CS 46/2020) (22 April 2025)) [2025] SCCA 11 (22 April 2025)

IN THE COURT OF APPEAL OF SEYCHELLES In the Matter Between Intelvision Ltd And 1. Multichoice Africa Holdings BV 2. Supersport International (Pty) Limited (rep. by Mr. Bernard Georges) Reportable [2025] (22 April 2025) SCA 22/2024 (Arising in CS 46/2020) Appellant 1st Respondent 2nd Respondent Neutral Citation: Intelvision Ltd v Multichoice Africa Holdings BV and Anor (SCA 22/2024) Before: Summary: Heard: Delivered: [2025] (Arising in CS 46/2020) (22 April 2025) Twomey-Woods, Robinson JA, Vidot, J Court of Appeal — Procedure — Breaches of The Court of Appeal of Seychelles Rules 2023 — Notice of Appeal — Right of audience — Rules 14 (4) and 18 (3), (4) and (10) 9 April 2025 22 April 2025 (i) The appeal is deemed not to have been filed within the prescribed time. ORDER (ii) The Court strikes out the notice of appeal. (iii) The appeal is dismissed. (iv) With costs in favour of the Respondents ______________________________________________________________________________ JUDGMENT ______________________________________________________________________________ ROBINSON JA (TWOMEY-WOODS JA, VIDOT J CONCURRING) 1. The Appellant (the Defendant then) is appealing against the Supreme Court's judgments delivered on the 17 October 2024 and 7 April 2021. In the judgment delivered on the 17 October 2024, the learned Judge determined — "13. …that the plaintiffs are entitled to damages for lost licensing fee, namely USD60,000, for the prejudice suffered as a consequence of the act of infringement under section 30(2)(a)…that the plaintiffs are entitled to profits from the infringement under section 30(4), the amount of which was identified in the Commissioner's report." 2. The learned Judge was of the view that the Respondents did not substantiate their claim for damages in the amount of one million Seychelles rupees for breach of copyright, as stated in the Commissioner's report. 3. Consequently, the learned Judge made the following orders — "14. …that the defendant pays the 1st and 2nd plaintiffs in a total sum of: i. ii. USD60,000 (sixty thousand USD) or the SCR equivalent at the time of making payment as ordered by this Court, together with interest at the legal rate to be calculated from the date of filing the plaint; SCR6,629.25 (six thousand six hundred and twenty-nine and cents twenty-five); iii. Costs." 4. In the judgment delivered on the 7 April 2021, the learned Judge determined that the Respondents have established their case on a balance of probabilities and gave judgment in their favour. The learned Judge made the following orders — ʺi ii That a Commissioner be appointed to examine the accounts of the defendant and to assess the benefit made by the defendant in transmitting the 2019 edition of the Final Tournament of the Final Total Africa Cup of Nations, organised in Egypt between 21 June and 19 July 2019; That the defendant pays the plaintiffs the sum decided on by court after receipt of the report by the Commissioner for breach of copyrights; and iii. Such further damages under section 30 of the CA as may be ordered by the court after the Commissioner appointed pursuant to prayer (a) has reported and costs.ʺ Breaches of The Court of Appeal of Seychelles Rules 2023 5. The appeal raises serious challenges with respect to the notice of appeal, which was filed on behalf of the Appellant on the 21 November 2024. It also raises challenges regarding the right of audience for Mr. Mukesh Valabhji and Mrs. Laura Valabhji. 6. One of the challenges relates to the contents of the notice of appeal under rule 18 (3) and (4) of The Court of Appeal of Seychelles Rules 2023, hereinafter referred to as "The Rules 2023" read with Form C in the First Schedule to The Rules 2023. The same Form C prescribes the contents of the notice of appeal with respect to civil appeals. The same Form C is enabled by rule 18 (10) of The Rules 2023. 7. The notice of appeal is reproduced verbatim hereunder — "NOTICE OF APPEAL 1. TAKE NOTICE that the Appellant, being dissatisfied with the Judgment in CS 46/2020, delivered in part by Burhan J on the 17th October 2024, of which a copy of the full Judgment was made available to the Appellant on the 12th November 2024, read with Burhan J's Judgement in the same case delivered on the 7th April 2021, hereby appeal to the Seychelles Court of Appeal against the whole of the said two Judgments. 2. The Appellant hereby seeking permission for filing its Grounds of Appeal at a later date for the following reasons: a. b. the Appellant only received the full judgment dated 17th October 2024, on the 12th November 2024; the Appellant has requested the proceedings and copies of certain exhibits such as P10 from the Supreme Court Registry which is awaited as those are referenced in the October 2024 judgment and the Appellant does not have copies thereof since its case file is currently with ACCS. Dated 20th November, 2024. (Signed) .................................................................... Laura Valabhji and Mukesh Valabhji Representatives of the Appellant." [Emphasis is the Court's] 8. Another serious challenge relates to the document entitled "GROUNDS OF APPEAL", which is very lengthy and elaborate, filed by Mr. Mukesh Valabhji and Mrs. Laura Valabhji on the 27 December 2024, "For and on behalf of the Appellant". 9. The Court finds it useful to reproduce the document entitled "GROUNDS OF APPEAL" in its entirety — Introduction "GROUNDS OF APPEAL a. The Respondents brought a Plaint CS 46/2020 against the Appellant alleging that the Appellant, in breach of the exclusive television rights vested in the 2nd Defendant aired the AFCON 2019, without the authorisation of the Respondents and therefore sought 3 reliefs as follows: i. ii. iii. That a commissioner be appointed to examine the accounts of the Defendant and to assess the benefit made by the Defendant in transmitting the 2019 edition of the Final Tournament of the Total Africa Cup of Nations, organised in Egypt between 21 June and 19 July 2019; To order the Defendant to pay the Plaintiffs the sum of SCR 1 million for each breach of copyright; and To grant the Plaintiffs such other civil remedies under section 30 of the Copyright Act as may be just and necessary including such damages as may be appropriate after the commissioner appointed pursuant to prayer a. has reported. Chronology of Proceedings b. On the 7th April 2021, Burhan gave a judgment in CS 46/2021 ("the 1st Judgment") in favour of the Respondents and held that: i. The Respondents have established on a balance of probabilities the Exhibit P10 can be accepted as proof of an exclusive licence being given to the Respondents to broadcast the CAF Tournament in English through the DSTV platform in the Seychelles and therefore the Appellant (Defendant) had no right to broadcast such tournament; The Appellant was prohibited from unauthorised transmission under section 26(3) of the Copyrights Act 2014 (CA) which protects the rights of the Broadcasting Organisations; Such action is an infringement of rights protected under the CA for the purposes of section 29 of the CA; The limitations on the protection of rights under section 26 of the CA as set out in section 27 of the CA did not apply to the Respondents; and That provisions of the CA applies to works that are eligible for protection in Seychelles by virtue of any international convention, treaty or agreement to which Seychelles is a party, including TRIPS by virtue of section 35(2) of the CA; That the Appellant pay the Respondents the sum decided on by court after receipt of the report by the Commissioner for breach of copyrights. ii. iii. iv. v. vi. In the 1st Judgment, Burhan J also granted the Respondents' prayer to appoint a Commissioner to examine the accounts of the Appellant and to assess the benefit made by the Appellant in transmitting the 2019 edition of the Final Tournament of the Total Africa Cup of Nations, organised in Egypt between 21 June and 19 July 2019; That the Appellant pay the Respondents the sum decided on by court after receipt of the report by the Commissioner for breach of copyrights; Mr. Jean Marie Moutia of ACM was appointed as the Commissioner and on the 11th May 2022, the Respondents' lawyer informed Court that the Report was ready; The Commissioner took about a year to complete his report as observed by Burhan J on the 22nd June 2022 when he stated : "Court: Up to when now, the commissioner's report has come. So in fairness, it took sometime. Maybe a year I think. So now, the report is with us. So I will issue a copy on you today itself so that you can have it with you. We will have the case mentioned in two weeks' time, 06th July. You may be present on that date if you wish to represent Intelvision." c. d. e. f. That report was dated 8th March 2022 (the "Initial Report") in which the Commissioner stated the following: i. ii. "Money Benefit is defined as income received in exchange for the provision of goods and services"; The Commissioner has met with both parties to the court case, Multi Choice Africa Holdings BV & Anor on the 28th Oct and 11th Nov, and Intelvision on 13th Dec; iii. … … the overall revenue stream and the basis of definition of monetary benefit was identified as the definitive reliable means to ascertain the monetary benefits made by Intelvision …. Alternate calculations based on profit or losses, gross profit margins, etc … were disregarded; iv. Monetary benefits would therefore be the money paid by clients to access channels airing AFCON2019. g. The mathematical method of calculation used by the Commissioner to compute the monetary benefit in the Initial Report was : h. i. j. The money paid by the clients in the Extravagance Bouquet to access the channel which aired the AFCON by multiply by the Number of the clients of the Extravagance irrespective of whether they watched the AFCON or not In the Initial Report The Commissioner set down the total monetary benefits as SCA 204,017.48. The Respondent accepted the Initial Report in its totality including the computed amount of total Monetary Benefits of SCR 204,017.48 whereas whilst accepting the mathematical method, however disputed the computed figures arrived at and on the 6th July 2022, the Appellant's Representative in the presence of the Respondents' Counsel informed court that it will be contesting the report because there were mistakes in the calculations. Almost a year later on 27th June 2023, the Respondent in examination in chief of the Commissioner, produced as Exhibit X1, the Initial Report of the Commissioner and never raised any challenges nor contested anything in that Initial Report. During cross examination of the Commissioner, the Appellant accepted the method of calculation of the Commissioner but challenged the figure of SCR204,017.48 arrived by the Commissioner using his method and put it to him that he had made an error in computation and that the final figure should in fact be SCR6,629.25. The Commissioner accepted that and k. l. m. requested leave of Court to cross check his computation and make amendments to the Initial Report and leave was so granted. The Commissioner produced a 2 page addendum dated 3rd July 2023 (the 1st Addendum) replacing section 9 (Monetary Benefit) and 10 (Conclusion) of his Initial Report with section 9 and 11 in the 1st Addendum and introducing a new section 10 calling it "comparative monetary benefit or costing" In the 1st Addendum the Commissioner correctly computed the Total Hours Aired per Month as 64800 instead of 2160 and the Revenue per Hour as SCR0.01219 instead of SCR0.3657 and thus concluded that the total Monetary Benefit made by the Appellant in airing the AFCON2019 was SCR6629.25 instead of SCR204,017.48. This Addendum was produced in Court as an Exhibit X2 by the Commissioner on the 27th June 2024 as Exhibit X2. This Addendum was not contested by the Parties. However the Commissioner without any leave of Court, during the leave of absence of Burhan J, created another addendum (1 page) dated 25th October 2023 (the "2nd Addendum) ignoring his 1st Addendum and stated that the 2nd Addendum amended the Initial Report in section 9 and 10. Attached to the 2nd Addendum was a letter from the Respondents wherein they informed the Commissioner of their concerns at the relatively low amount of award as per his revised Submission (referring to the 1st Addendum) thus requesting the Commissioner to include a higher award and stated that they value their rights at USD60,000.00. The Commissioner in compliance with the Respondent's request stated in the 2nd Addendum that he has therefore reassessed the monetary benefits and concluded that it should include the amount of USD60,000.00 which if paid by the Appellant would have resulted in an expense/loss of USD 60,000.00 to the Appellant. This 2nd Addendum was produced as Exhibit X3 on the 27th October 2024. Errors of Burhan J. 1st Judgement Ground 1 Burhan J erred in fact and law by admitting and relying on an unsigned and incomplete Licensing Agreement (Exhibit P10) as a valid Exclusive Licensing Agreement between the Respondents and CAF (the rights owner), vesting exclusive rights of broadcast to the 2nd Respondent to broadcast the AFCON 2019 matches in Seychelles which is the basis on which he then concluded that there has been a breach of Copyrights Act 2014 (CA) by the Appellant and therefore appointed a Commissioner to assess the benefit made by the Appellant in airing the AFCON 2019 matches. Ground 2 Burhan J further erred fact in concluding that the Respondents were broadcasting organisations under the CA and therefore are protected under section 26(3) of the CA without any proof whatsoever of such fact. Ground 3 Burhan J erred in law and fact in concluding that the Respondents were rights owners of the AFCON 2019 tournament in the absence of any evidence of such and contrary to evidence laid before Court which clearly shows that the works that enjoyed protection under CA were the live broadcasts of the matches which were not works created or belonging to the Respondents and that the Respondents, if at all, were mere distributers (not rights owners or broadcasters) of such works and therefore not protected under the CA. Ground 3 Burhan J erred in fact and law in concluding that Exhibit P10 was an exclusive agreement instead of at the most being a non exclusive agreement. 2nd Judgment Ground 4 Burhan J erred in admitting and accepting the 2nd Addendum dated 25th October 2023 of the Commissioner which was produced and filed two and a half years after his appointment without leave of Court and which clearly was influenced and coloured by the Respondents' opinion contrary to the mandate of the Commissioner who should have been acting independently instead of being biased towards the Respondents. Ground 5 Burhan J erred in fact in awarding damages under both the 1st and 2nd Addendums when the 2nd Addendum clearly cancels out the 1st Addendum as it replaces sections 9 and 10 of the Initial Report with sections 9 and 10 in the 2nd Addendum. Ground 6 Burhan J erred in fact in taking into account the re-assessed method of computation of Monetary Benefit in the 2nd Addendum, which firstly effectively completely discards the entire Initial Report as it renders sections 1 to 8 of that Report redundant since the new section 9 and 10 in the 2nd Addendum are concerned solely with potential licence fee as valued by the Respondents and secondly that assessment sits at odds with the definition of Monetary Benefit as laid out by the Commissioner himself in his Initial Report since that definition did not include any consideration of expenses or losses incurred or suffered by the Appellant. Ground 7 Burhan J erred law and fact in accepting the arbitrary figure of USD60,000 as there is no basis or evidence of how such figure was computed or arrived at by the Commissioner and the Appellant never got the opportunity of cross examining the Respondents as that was never in evidence and that given that Exhibit P10 was redacted where the licence fees was stipulated. Ground 8 Burhan J erred in fact and law in not taking into account the fact that the Commissioner had stated under oath that prior to finalising his addendum, he had provided Counsel for the Respondents with a draft which further shows that the Commissioner was not acting in an independent capacity in but was instead under the influence of the Respondents. This is especially so given that he went on to change his established and accepted method of computation which he had previously stood by in order to accommodate the request of the Respondent for him to show a higher award when his stated method proved to yield a sum considered too low by the Respondent. Relief Sought 1. The Appellant seek a dismissal of the 1st and 2nd judgments of Burhan J dated 7th April 2021 and 17th October 2024 in their totality; or alternatively 2. If the Court is so minded as to uphold the 1st Judgment dated 7th April 2021, then to allow the Appeal in respect of the 2nd Judgment dated 17th October 2024 to the extent that it quashes the parts of the 2nd Judgment that refers to the 2nd Addendum and the 1st sentence of the 2nd Judgment at paragraph [13] and order (i) at paragraph [14] of the said Judgment. 3. With Costs Dated this 24th December 2024. Laura and Mukesh Valabhji For and behalf of the Appellant" [Verbatim] 10. A further challenge raised in the appeal concerns Mr. Mukesh Valabhji and Mrs. Laura Valabhji, who act as "the Representatives of the Appellant", and filed the notice of appeal against the judgments on the 21 November 2024. The Court inquired about the right of audience for Mr. Mukesh Valabhji and Mrs. Laura Valabhji during the Roll Call on the 7 April 2025. At the hearing of the appeal, Mr. Mukesh Valabhji and Mrs. Laura Valabhji tendered to the Court a document entitled "A SPECIFIC POWER OF ATTORNEY" dated 10 February 2022, inter alia. 11. It is undisputed by the Respondents (the Plaintiffs then) and the Appellant (the Defendant then) in their respective pleadings filed on the 10 March 2020 and the 20 July 2020 that "[t]he Respondent [the Appellant] is a company incorporated in Seychelles. It operates in Seychelles out of premises situate at Providence, Mahe, where it engaged, inter alia, in the business of providing downloaded pay television channels to customers in Seychelles via a cable network.", paragraph [9] of the plaint and paragraph [2] of the defence, refer. 12. The Court reproduces the document entitled "SPECIFIC POWER OF ATTORNEY" in part — "SPECIFIC POWER OF ATTORNEY BY THIS POWER OF ATTORNEY given and effective this 10th day of February 2022. We, INTELVISION LTD (Co No. 843857-1) of Providence, Mahe Seychelles. HEREBY APPOINT Mukesh Valabhji (NIN…), of Morne Blanc Mahe Seychelles, our director and chairman and Laura Valabhji (NIN…) of Morne Blanc, Mahe, Seychelles, our former Attorney at Law as our representatives and to act for and on behalf before any courts of competent jurisdiction in Seychelles in respect of any matters to which we are a party and more specifically in respect of the continuation of hearing of the two existing court cases before the Supreme Court namely: a. b. CS46 of 2020 (Multichoice Africa Holdings B. V & Supersport International (Pty) Ltd v Intelvision Limited); and CS17 of 2013 (Multichoice Africa Holdings B. V v Intelvision Network Limited & Intelvision Limited) and any other ancillary matters and applications arising therefrom including any appeals before the Court of Appeal and in relation to the abovementioned to do anything and everything that we, ourselves could do, and for us and in our name to execute all such instruments and do all such acts, matters and things as may be necessary or expedient for carrying out the powers hereby given. These powers of representation and authority to act on our behalf herein conferred on Mr and Mrs Valabhji shall be exercisable by them in the absence of any licensed Attorney at law representing us in such matters before the courts of Seychelles. AND IT IS HEREBY DECLARED that all powers and authority granted in this Power of Attorney will remain in force until revoked by us in writing. In witness we have on the date above written signed this Power of Attorney in Victoria Mahe Seychelles Signed by Reza M Jaro Director For and on behalf of Intelvision Limited Who was identified to me in my presence And Mukesh Valabhji For and on behalf of Intelvision Limited Who is known to me in my presence ………………………… ……………………………….. …………………………………………….. FRANCE G. Bonte Notary Public" 13. First, the Court considers the breaches of The Rules 2023 with respect to the contents of the notice of appeal. Rule 18 (1), (2), (3) (4) and (10) of The Rules 2023, which is applicable to the issue at hand, stipulates — "Notice of Appeal 18.(1) Every appeal shall be brought by notice in writing (hereinafter called "the notice of appeal") by the appellant which shall be lodged with the Registrar of the Supreme Court within thirty days of the decision appealed against. (2) Every notice of appeal shall in a criminal case state whether the appeal is against both conviction and sentence or conviction or sentence only or any decision made on the conviction, and in a civil case whether the appeal is against the whole or any part of the decision of the Supreme Court. (3) Every notice of appeal shall set forth the grounds of appeal in separate numbered paragraphs, the findings of fact and conclusions of law to which the appellant is objecting and shall also state the particular respect in which the variation of the judgment or order is sought. (4) Every notice of appeal shall contain a full and sufficient address at which notices or documents connected with the appeal may be served upon the appellant or his Attorney-At-Law, and the respondent or his Attorney-at- Law and shall be signed by the appellant or his Attorney-At-Law. (10) A notice of appeal shall be substantially in the form B in the First Schedule in criminal appeals and in the form C in civil appeals. In the event of failure to comply with sub-rules (1) (2) and (3) and the failure to state the address of the respondent in the notice of appeal or make an application under sub-rule 4 of rule 9 where it is deemed necessary, the appeal shall be deemed not to have been filed within the prescribed time — Provided that, notwithstanding that the provisions contained in sub-rules (2) or (3) or (7) of this rule have not been strictly complied with, the Court may, in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the Court below." [Emphasis is the Courtʹs] 14. Form C in the First Schedule to The Rules 2023 concerning civil appeals is framed as follows — "FORM C (RULE 18) In the Court of Appeal of Seychelles In the matter between ……………………………… Appellant and …………………………..... Respondent Civil Side No …….. of 20 ….... NOTICE OF APPEAL Take Notice that ……………....... being dissatisfied with the decision of Mr. Justice ………………. given at the Supreme Court/Constitutional Court on the …….....…… day of ………….…..20………………..… hereby appeals to the Court of Appeal of Seychelles against the whole of the decision (or against such part of the decision as the case may be) that …………………… (setting out details) upon the grounds set out in paragraph 2 and will at the hearing of the appeal seek the relief set out in paragraph 3. And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 4. 2. Grounds of Appeal (1) (2) Etc. 3. 4. Relief sought from the Court of Appeal of Seychelles. Persons directly affected by the appeal. Name……………………………… Address …………………………… (1) (2) Etc. Dated at ………….. this ………….. day of ……………… 20 ……….. ………………………………….. Attorney-At-Law for the Appellant Address To: The Respondent Address: And to: The Registrar The Court of Appeal of Seychelles And to: The Registrar of the Supreme Court/Constitutional Court.ʺ [Emphasis is the Court's] 15. The purpose of rule 18 (3) of The Rules 2023 is to narrow the issues on the appeal and give fair notice to the respondent and the Court of the points which would be raised in the appeal by a statement in the notice of appeal of the findings of fact and conclusions of law to which the appellant is objecting and setting forth precisely the basis on which the appellant is objecting. The notice of appeal should also state the particular respect in which the variation of the judgment or order is sought. 16. Counsel for the Respondents submitted during the hearing of the appeal that the Court has made its position very clear regarding the quality of a notice of appeal, including how the grounds of appeal should be framed and the length of those grounds. He emphasised that the Court takes a strict approach to the quality of the notice of appeal filed. He submitted that the notice of appeal filed in the appeal does not meet the standards set by the Court. 17. Evidently, the notice of appeal does not meet the requirements set out in rule 18 (3) of The Rules 2023 and Form C with respect to the contents of the notice of appeal. It does not set out what the issue will be on the appeal and the precise order that the Court will be asked to make in terms of rule 18 (3), inter alia. The Appellant in the notice of appeal is seeking permission to file its grounds of appeal at a later date. Additionally, it is noted that the notice of appeal fails to state the address of the Respondents inter alia, in violation of rule 18 (4) of The Rules 2023 and Form C. 18. For the reasons stated above, the Court cannot accept the notice of appeal. 19. Furthermore, rule 18 of The Rules 2023 does not enable any form entitled "GROUNDS OF APPEAL". Rule 18 (3) of The Rules 2023 requires the grounds of appeal to be set out in the notice of appeal in terms of the same rule 18 (3) and Form C. Consequently, the Court cannot accept the document entitled "GROUNDS OF APPEAL". 20. Rule 18 (10) of The Rules 2023 is applicable and provides inter alia that in the event of failure to comply with rule 18 (3) and (4), the appeal shall be deemed not to have been filed within the prescribed time. 21. The Court considers the right of audience for Mr. Mukesh Valabhji and Mrs Laura Valabhji. Rule 14 (4) of The Rules 2023 stipulates: "(4) [a] corporation may appear by an Attorney-At-Law, a director, a secretary or other officer thereof." 22. Mrs. Valabhji and Counsel for the Respondent made submissions regarding the right of audience for Mr. Mukesh Valabhji and Mrs. Valabhji, which the Court has carefully considered. However, the submissions and supporting documentation did not sufficiently establish their authority to act on behalf of the Appellant. The documents tendered to the Court were (i) "The Companies Act, 1972 MEMORANDUM OF ASSOCIATION OF AVL OFFSHORE & CORPORATE SERVICES LIMITED", (ii) "THE COMPANIES ACT 1972 (Section 169 (4) Particulars of Directors and Secretaries" of the Appellant, and (iii) the "SPECIFIC POWER OF ATTORNEY". Upon review of the "SPECIFIC POWER OF ATTORNEY," it remains uncertain whether or not it complies with the Appellant's governing documents or the relevant provisions of the Companies Act. Hence, the Court holds that neither Mr. 14