Gemuenden v Seychelles Investment Board (d (SCA 14/2024) [2024] (Arising in MC 14/2024) (18 December 2024)) [2024] SCCA 34 (18 December 2024)

IN THE COURT OF APPEAL OF SEYCHELLES In the Matter Between Petya Belcheva-Gemuenden (rep. by Mr. Frank Elizabeth) And Seychelles Investment Board (rep. by Ms. Shireen Denys) Reportable [2024] (18 December 2024) SCA 14/2024 (Arising in MC 14/2024) Appellant Respondent Neutral Citation: Gemuenden v Seychelles Investment Board (SCA 14/2024) [2024] (Arising in Before: Summary: Heard: Delivered: MC 14/2024) (18 December 2024) De Silva, Sharpe-Phiri, Sichinga, JJA Appeal against the Order of Judge Melchoir Vidot, delivered on the 25 July 2024, dismissing the Appellant’s application seeking leave to judicially review a decision of the Respondent. 3 December 2024 18 December 2024 The appeal is partially successful. Each party to bear own costs. ORDER JUDGMENT SICHINGA JA (De Silva JA, Sharpe-Phiri JA, concurring) Introduction 1. This is an appeal by the Appellant (previously Petitioner in the Supreme Court), against the Ruling of the learned Judge Melchoir Vidot, delivered on 25 July 2024, in which the Judge refused to grant leave to the Appellant to proceed on a petition for judicial review. The Respondent, a board established under the Seychelles Investment Act, 2010 refused to approve a project proposal presented to it by the Appellant. 2. The Supreme Court’s refusal to grant leave to the Appellant to proceed to apply for judicial review was premised on the learned Judge’s belief that a petitioner is obligated to simultaneously file their petition for judicial review with their application for leave to apply for judicial review. Background 3. On 6 March 2024, the Appellant filed an application before the Supreme Court, by way of notice for leave to apply for judicial review, incorporating the Appellant’s petition or facts to be relied on. The notice was accompanied by two affidavits, the first sworn by the Appellant and the second sworn by the Appellant’s husband, Mr. Steffen Gemuenden. 4. The notice of application for leave was addressed to the Registrar of the Supreme Court, for listing, ex parte pursuant to Rule 5 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules (hereinafter referred to as the “Court Supervisory Rules”). Hearing of application for leave before and decision of the Supreme Court 5. Before Mr. Elizabeth, Counsel for the Appellant (then Petitioner), could be heard on the application for leave, the learned Judge Melchoir Vidot guided him that he was supposed to file the petition for judicial review along with the application for leave, but Mr. Elizabeth responded that he was only going to be heard on the application for leave and would then file the petition for judicial review after the Court granted him leave. 6. Counsel for the Appellant submitted, before the Supreme Court, on the application for leave against the backdrop of the facts in the affidavit accompanying the said application. Counsel submitted that the law governing the application was Rule 5(1) and Rule 6(1) of the Court Supervisory Rules, which provides for a two-stage process: the first stage being an application for leave under Rule 5(1); and the second stage being under Rule 6(1) which provides for what the petitioner has to show to the court in order to satisfy it of the reason to grant leave to file a petition for judicial review. 7. Mr. Elizabeth submitted further, that a petitioner would, firstly, have to prove to the court that they have sufficient interest in the subject matter of the petition; and, secondly, that they are pursuing the matter in good faith. Counsel contended, as stipulated in the affidavit, that this was demonstrated in that the Appellant made an application on 13 July 2022, to the Respondent, for approval to start a business in Seychelles, under the style and name ‘Be Happy’. That, the board denied the application, prompting the Appellant to appeal, but the said appeal was also turned down on 24 January 2024. 8. That, the issue that the Appellant has is that when she was invited to present her project in respect of the ‘Be Happy’ business, the Respondent did not accord her a proper hearing, owing to an ill-performing zoom meeting. That, despite this glitch, the Respondent proceeded to consider her application and decided that it was not successful. The Appellant then requested the Respondent to furnish her with the notes of the meeting, which the Respondent failed to do and, that, after waiting for seven months for her appeal before the Respondent to be heard, which was still unsuccessful, was aggrieved by the decisions of the Respondent, and wished the Supreme Court to re-visit the decisions to see if they were reasonable. 9. Mr. Elizabeth argued that since the Appellant had followed all the guidelines laid down by the Respondent during her application before it, and provided all documentation in respect of her proposed business, she had reasonable expectation that her application would be granted. That, since it was not granted and the hearing having not been conducted properly, the Appellant was of the opinion that the Respondent’s decision to reject her application was unreasonable, and no reasonable tribunal having heard and considered her application would have refused the application. It was, thus, submitted on behalf of the Appellant that she should be allowed to proceed to the next stage of judicial review for the Court to supervise the Respondent’s decision in accordance with Rule 6(1) of the Court Supervisory Rules, to ascertain its reasonability in the circumstances, and accord the Respondent an opportunity to also present its case. That, in the interest of justice, the Court should grant the Appellant’s application for leave as it was neither frivolous nor vexatious, and was not being made in bad faith. 10. The learned Judge Melchoir Vidot considered the Appellant’s application and delivered his Ruling on the same on 25 July 2024. 11. In the Ruling, the learned trial Judge pointed out that applications for judicial review are made in terms of Article 125(1)(c) of the Seychelles Constitution, which gives the Supreme Court, in addition to the jurisdiction and powers conferred under the Constitution, supervisory jurisdiction over subordinate courts, tribunals and adjudicating authority and, in this connection, power to issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as may be appropriate. That, such application is requested in agreement with the Court Supervisory Rules. 12. The Judge espoused that Rules 5 and 6 deal with the issue of leave. That, Rule 5 provides that: “Every petition made under Rule 2 shall be registered by the Registry and shall be listed ex- parte for the granting of leave to proceed.” 13. The learned Judge explained that the Appellant’s application was listed ex-parte, and thus, the reason the Respondent was not served with a copy. The Judge added, that together with this ex-parte application, the Appellant also prayed for leave, in terms of Rule 6(1) of the Court Supervisory Rules and Article 125(1)(c) of the Constitution, to proceed with a petition for judicial review. That, the granting of leave is a pre-requisite to hearing the application for judicial review. 14. The learned Judge was of the view that, from a reading of Rules 2, 5 and 6 of the Court Supervisory Rules, it was clear that the application for leave to proceed must be filed with the petition for judicial review. That, in the case before him, this appeared not to have been done and was highly irregular. 15. The Judge explained, further, that in the caption of the application filed, the application clearly identified as a “Notice of Application for Leave to Apply for Judicial Review”, and the first prayer of the said application was for an order granting leave to the application to file the Appellant’s petition for judicial review. That, this meant that if the application for leave were granted, then the petition for judicial review would be filed, but that, the filing of the application for leave to proceed ought to be filed together with the petition for judicial review. That, one reason for this could be that the petitioner only has six (6) months within which to file the petition. 16. The learned trial Judge also drew the Appellant’s attention to Rule 2(2) of the Court Supervisory Rules which he said requires that documents filed with such petition should be originals or certified copies. 17. The learned Judge espoused that, Rules 2, 6 and 5 of the Court Supervisory Rules, when read together, stipulate that the petition for judicial review should be filed together with the application for leave. That, one could not file an application for leave and ask that if leave is granted, then only will they file the petition. The learned trial Judge, thus, refused to grant the leave and dismissed the application on the ground that counsel for the Appellant had failed to file a petition for judicial review together with the application for leave to proceed. The Appeal 18. Dissatisfied with Judge Melchoir Vidot’s Ruling of 25 July 2024, the Appellant has now appealed against the same. At the hearing of the appeal, we granted the Appellant leave to amend the ground of appeal to reflect the following amended sole ground: a. The learned trial Judge erred in law and fact when he ruled that the Appellant’s application for leave to file her petition for judicial review was defective because she had failed to file her petition for judicial review together with the application for leave to proceed. The decision of the learned trial Judge is based on an erroneous and misconceived interpretation of the Rules and ought to be overturned and set aside by this Court. 19. By way of relief the Appellant has prayed that the appeal be allowed and the Supreme Court Ruling of 25 July 2024 be set aside with costs to the Appellant. 20. Counsel for the Appellant did not file heads of argument in compliance with the time frame of one month from the date of service of the record as provided by Rule 24 (1) (a) of the Court of Appeal Rules. On 3 December 2024, counsel belatedly filed a notice of motion to condone the non-compliance pursuant to Rule 26 of the Court of Appeal Rules. The motion was supported by an affidavit, sworn by one Frank J. Elizabeth, counsel with conduct on behalf of the Appellant. Condoning late filing of the Heads of Argument 21. The gist of Mr. Elizabeth’s affidavit is that he was required to enter COVID-19 isolation due to exposure to his secretary, who’s spouse had tested positive for COVID-19. That the isolation period lasted from 7 to 14 October 2024, during which period he was unable to access his chambers to prepare the skeleton arguments. 22. In response to the application, Ms. Denys, learned counsel for the Respondent, submitted that the application had been filed too late in the day, on 3 December 2024. That the Appellant had an earlier opportunity to file the application on 28 October 2024 when the skeleton arguments were filed. Ms. Denys conceded in her submissions that the period in which the Appellant filed the arguments was not inordinate. She further advanced that the issue before the Court was of import from a jurisdictional point of view and would assist the Supreme Court and the bar. 23. I have carefully considered the application and submissions by counsel. As earlier alluded to, the motion for condonation is made pursuant to Rule 26 of the Court of Rules. The said rule provides that: “The times fixed within these Rules may, on good cause shown by notice of motion supported by an affidavit, be extended by the President or the Court.” 24. The cardinal issue which this application raises is whether the reasons advanced by the Appellant are sufficient to amount to good cause to warrant an order for condonation of the late filing of the Appellant’s heads of argument time under Rule 26. It is clear that under that rule, the grant or refusal to extend time is discretionary. As a matter of course this discretion must be exercised judiciously. Thus, in order for this Court to condone the late filing of the heads of argument, the Appellant must demonstrate that there is some material or good cause to compel it to exercise its discretion in her favour. In the case of Cornelis L. Hoevers v Rachel F. Hoevers (nee Alphonse) SCA MA 07/2024 the Court held as follows: “To determine good cause this Court must be guided by five factors, namely: (i) degree of 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.” 25. In this case, the Appellant’s reason for failing to comply with Rule 24 (1) (a) is that the he was required to enter COVID-19 isolation due to coming into contact with someone who had been exposed to the pandemic such that the heads of argument could not be filed within the prescribed period. I am of the considered view that the reason advanced amounts to good cause or sufficient reason. I have also taken note of the facts deposed in the affidavit in support that counsel filed the Applicant’s skeleton arguments on 28 October 2024, 8 days after the prescribed deadline of 20 October 2024. I agree with Mr. Elizabeth that no prejudiced was occasioned to the Respondent, which subsequently filed its skeleton heads of argument on 13 November 2024, before the date set for the Court’s roll call. 26. I have further perused the sole ground of appeal. The issues to be considered in the grounds of appeal are important from a jurisprudential point of view and the outcome of the merits will give guidance to the Supreme Court and the bar on the procedural steps in moving the court for judicial review. 27. In view of the foregoing, the late filing of the Appellant’s heads of argument is permitted on the basis that it is bound to give clarity and guidance in the procedural steps for judicial review in this jurisdiction. Further, the Respondent does not object to condoning the late filing. In the net result, the appeal is not deemed withdrawn and shall be determined on its merits. 28. I now proceed to consider the appeal on its merits. Submissions on behalf of the Appellant 29. It was contended by Mr. Elizabeth that the learned Supreme Court Judge based his decision on an erroneous interpretation that under Rules 2, 5, and 6 of the Court Supervisory Rules, an application for leave to apply for judicial review must be filed simultaneously with the main petition for judicial review. Counsel argued that the said interpretation does not align with a plain reading of the Court Supervisory Rules. 30. With respect to the alleged misinterpretation of Rule 2(1) and procedural requirements, counsel for the Appellant argued that Rule 2(1) provides that an applicant must file “a petition accompanied by an affidavit in support of the arguments set out in the petition.” That, the language of the provision is indicative of the requirements for the petition for leave to be filed separately from the main petition for judicial review, which can only be filed upon the granting of leave to proceed under Rule 5 and not before. 31. Mr. Elizabeth, further, argued that nowhere does Rule 2(1) stipulate that the petition for leave to apply for judicial review must be filed simultaneously with the main petition for judicial review before leave to proceed is granted by the Court. That, rather, it simply outlines the format the application should take if and when leave is granted. 32. It was submitted on behalf of the Appellant that, by concluding that a simultaneous filing of both documents is required, the trial Judge placed an additional procedural requirement on the appellant that was unsupported by the Court Supervisory Rules. Counsel contended that the Court Supervisory Rules separate the processes of applying for leave and filing a petition as a two-step procedure: first applying for leave to file a petition for judicial review and then if leave is granted, applying for judicial review. That, this distinction aligns with established principles of judicial review in other jurisdictions, where leave is granted first to determine whether the grounds warrant full judicial review proceedings. 33. With regard to the alleged misinterpretation of Rule 5, Mr. Elizabeth argued that Rule 5 refers explicitly to the “granting of leave to proceed,” and that, this phrasing presupposes that leave is a prerequisite for filing a substantive petition for judicial review. Counsel, argued further, that the trial Judge’s interpretation contradicted the natural reading of Rule 5, where the term “proceed” implies that the process can only advance to the filing of a petition once leave has been obtained. 34. Mr. Elizabeth submitted that the learned Judge’s interpretation negates the purpose of Rule 5 by requiring a petition prematurely. That, if applicants were to file a petition without the benefit of the Court’s assessment of whether their grounds are arguable, this would undermine the efficiency and procedural integrity that the leave stage is meant to ensure. Counsel submitted, further, that Rule 5 ensures judicial economy by screening out unmeritorious applications before they reach the substantive petition stage. 35. Counsel, furthermore, contended that in other common law jurisdictions, judicial review procedures similarly prioritise a two-step approach: first, obtaining leave, followed by filing the petition for judicial review. That, this approach is intended to ensure that only meritorious cases proceed to full hearing, thereby conserving judicial resources and protecting public bodies from unwarranted litigation. 36. It was counsel’s submission that the Seychelles Court Supervisory Rules are consistent with this approach, as evidenced by the two-structure of Rules 2, 5, and 6, which does not demand the filing of a petition before leave is granted. That, the learned trial Judge’s decision to dismiss the application on procedural grounds, specifically, by requiring the simultaneous filing of both application for leave and petition for judicial review, therefore, represents a departure from both the intended application of the Court Supervisory Rules and the practice in comparable legal frameworks. 37. Mr. Elizabeth contended that the consequence of the learned trial Judge’s approach is the barring of applicants from a fair opportunity to seek judicial review unless they comply with an unsupported procedural requirement. That, the learned trial Judge’s misinterpretation of the Court Supervisory Rules denies applicants the procedural safeguards inherent in the leave stage and unfairly prejudices their access to justice, and the dismissal of the application for leave on this erroneous ground, thus, contravenes the principles of fairness and access to judicial review inherent in the Rules. 38. With this, counsel prayed that this appeal be allowed; the impugned Judgment be set aside; the Appellant’s application for leave to apply for judicial review be granted; and that the Respondent bears the costs of the appeal. Submissions on behalf of the Respondent 39. Ms. Denys, learned counsel for the Respondent contended, in response, that the Appellant’s argument that the learned trial Judge had misinterpreted Rules 2(1) the Court Supervisory Rules, was unfounded. 40. Counsel submitted that the said Rule 2(1) of the Court Supervisory Rules, refers to Rule 1(2) of the same Rules, and that, when read together, the two Rules make reference to application for the exercise of supervisory jurisdiction of the Court over subordinate courts, tribunals and adjudicating authorities. Further, that Rule 3 sets out a list of information that the said application should contain. 41. Ms. Denys advanced that the learned trial Judge, in his Order, outlined at paragraph 4, on page 2, that Rule 2(2) of the Court Supervisory Rules requires that the petition filed should be supported by an affidavit and supporting documents that are the originals or certified copies. That, this goes to show that the petition filed by the Appellant did not meet this requirement of the Court Supervisory Rules. 42. Further, that Rule 5 provides that, “Every petition made under Rule 2 shall be registered by the Registry and shall be listed ex-parte for the granting of leave to proceed,” which, counsel contended, confirms that it is the petition for judicial review itself that should be listed ex-parte for purpose of the granting of leave to proceed. 43. Ms Denys contended that, additionally, Rule 6 of the Court Supervisory Rules shows that leave to proceed shall not be granted unless the Court is satisfied that the petitioner has sufficient interest in the subject matter of the petition and the petition is made in good faith. 44. It was Ms. Denys’ argument that the question that needed addressing before this Court was, “if the petition for judicial review was not to be filed at the very first instance, then how could the Judge peruse the petition to ascertain that the petitioner has sufficient interest and the petition is being made in good faith?” To this end, counsel for the Respondent called in aid, the case of Duraikannu Karunakaran v The Constitutional Appointment Authority Civil Appeal SCA 33/2016, to demonstrate that the issue of good faith was extensively addressed by the Court therein. 45. Counsel, further, contended that an analysis of Rules, 7, 9 and 12, reveals that the intention of the said Rules was that the petition for judicial review should be filed at the outset and any contrary intention would have been explicitly stated. 46. With the foregoing, Ms. Denys submitted that the appeal should not stand. That, the learned trial Judge was right in dismissing the Notice of Application for Leave to apply for judicial review, which was not filed along with the actual petition supported by an affidavit. 47. With respect to the Appellant’s submission that the consequence of the learned trial Judge’s approach in the impugned Ruling was to bar applicants from a fair opportunity to seek judicial review unless they comply with an unsupported procedural requirement, the Respondent’s response was that it has been demonstrated that the learned trial Judge was right in his interpretation of the Rules. Further, that in the proceedings of 22 May 2024, at page 1, the learned trial Judge had indicated to the Appellant that the petition should be filed at the outset, but the Appellant stated that if leave was granted, then only would he proceed to file the judicial review. 48. Ms. Denys contended that the learned trial Judge was fair in that he gave the Appellant the chance to rectify the procedural mistake and that it cannot now be said that the Judge acted unfairly. To this end, counsel referred the Court to the case of Ex-parte Tornado Trading & Enterprises Est. Civil Side: XP 150/2018 wherein the Court reportedly referenced the case of Viral Dhanjee v James Alix Michel SCCC CP03/2014, holding that: “Applicants may be hurt when petitions or applications are dismissed due to legal technicality, but in the long run, rule of law will be hurt if we allow some procedural irregularity to continue.” 49. Ms. Denys, thus, finally submitted that it is very important for the Court to ensure adherence to the rules laid down by law, and that, the learned trial Judge was not wrong in principle. With this, counsel for the Respondent prayed that the appeal be dismissed and the impugned Order be maintained. Decision of this Court 50. I have carefully considered the appeal herein and the parties’ arguments for and against the same. 51. It is common cause that the Appellant herein, had applied to the Respondent, for approval of a business she was proposing to set up in Seychelles. The Respondent, after hearing the application, determined that the Appellant’s application was unsuccessful. The Appellant, then, appealed using the Respondent’s appellate structure, but the failure of the Appellant’s application was only confirmed on appeal. 52. Aggrieved by the decision of the Respondent, the Appellant decided to invoke the jurisdiction of the Supreme Court under the Court Supervisory Rules, to judicially review the decision of the Respondent. The Appellant, through her counsel, Mr. Elizabeth, thus, filed an application for leave to apply for judicial review, styled, “NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW”. 53. When the application for leave to apply for judicial review was heard by the Supreme Court, the learned Judge guided the Appellant that, in accordance with the Court Supervisory Rules, the Appellant was not just supposed to file the application for leave, alone, but that, it were to be accompanied by the actual petition for judicial review. Counsel for the Appellant rejected this guidance and insisted that at the stage of a petitioner applying for leave to apply for judicial review, the actual petition for judicial review need not be filed. The learned Judge, notwithstanding, proceeded to hear Mr. Elizabeth on the application. 54. When the learned trial Judge delivered his Ruling on the Appellant’s application for leave to apply for judicial review, he dismissed the application for being irregular for want of the actual petition for judicial review being filed alongside the application for leave. This decision is what prompted the appeal before this Court. 55. The Appellant contends that the learned trial Judge misinterpreted the Rules applicable to the application in question, while the Respondent contends, in rebuttal, that the learned trial Judge was on terra firma in terms of his application and interpretation of the Rules. 56. The three Rules in contention, in this case, are Rules 2, 5 and 6 of the Court Supervisory Rules and each is couched as follows: Rule 2 “(1) An application to the Supreme Court for the purposes of Rule 1(2), shall be made by petition accompanied by an affidavit in support of the averments set out in the petition. (2) The petitioner shall annex to the petition a certified copy of the order or decision sought to be canvassed and originals of documents material to the petition or certified copies thereof in the form of exhibits.” Rule 5 “Every petition made under Rule 2 shall be registered by the Registry and shall be listed ex- parte for the granting of leave to proceed.” Rule 6 “(1) The Supreme Court shall not grant the petitioner leave to proceed unless the Court is satisfied that the petitioner has a sufficient interest in the subject matter of the petition and that the petition is being made in good faith. (2) Where the interest of the petitioner in the subject matter of the petition is not direct or personal but is a general or public interest, the Supreme Court in determining whether the petitioner has a sufficient interest in the subject matter may consider whether the petitioner has the requisite standing to make the petition.” 57. It is these three Rules, the combined reading of which, the learned trial Judge construed to mean that the substantive petition for judicial review should be filed together with the application for leave and that, one could not file an application for leave and ask that if leave is granted, then only would they file the substantive petition. 58. In view of the above and in my opinion, the substance of determining the appeal herein lies in this Court settling two questions, as follows: 1. Is it a requirement, under the Court Supervisory Rules, that when a petitioner is applying for leave to proceed to apply for judicial review, they should simultaneously file the actual petition for judicial review, in order that the application for leave be deemed regular? 2. If the answer to the question above is in the affirmative, what would be the effect of a petitioner failing to file the petition alongside the application for leave to proceed to apply for judicial review? 59. In a bid to answer the questions above, I shall ultimately be analysing the Rules highlighted under paragraph 56, above, which are part of the Court Supervisory Rules that govern the procedure employed in judicial review proceedings. In other words, I have essentially been invited to embark on a journey of statutory interpretation, which I am fortified to do, as was pronounced by this Court, in the case of Financial Intelligence Unit v Cyber Space Ltd (SCA 27(a) of 2012) [2013] SCCA 2, at paragraph 23 that: “The Court can properly interpret laws - in fact that is its duty - and the interpretation of legislation consists of both the elucidation of its substantive provisions as well as its procedural provisions.” 60. It is trite that when a court is called upon to interpret the provisions of a statute, the court should aim to give effect to the purpose of the legislation by interpreting its language, so far as possible, in a way which best gives effect to that purpose. There is, thus, a presumption that the grammatical meaning of an enactment is the meaning intended by the legislator. Where the statutory provision is capable of only one meaning and other interpretive principles or factors do not raise any real doubt as to the meaning, the provision is to be given its plain meaning. This is why the golden rule of statutory interpretation, as can be gleaned from authorities such as Cinan & Another v R (SCA 26 & 27 of 2009) [2013] SCCA 12, is that words should be given their ordinary or plain meaning. 61. When applying the plain meaning fails to establish the purpose of statutory provision, the court may have to turn to other interpretation aids to bring out the intended meaning of the statutory provision. To this end, this Court had stated the following, in the case of Sagwe v R (SCA cr. 02/2015) [2016] SCCA 15, at paragraphs 12 to 14: “[12] G. P. Singh in his book Principles of Statutory Interpretation, Tenth Edition, 2006, has this to say on the interpretation of a statute: - When the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read the provision in its context. The context here means, the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. [13] In interpreting the words in a statute it is always important to look at the intention of the legislature in enacting the statute. The traditional wisdom is that the search for legislative intent is normally ascertained from the words it has used. The words used may be found in the title, preamble, chapter headings, marginal notes, punctuations, definitions, etc. of a statute. In such a situation it is easy to discern the intention of the legislature because when a statute is clear and unambiguous the inquiry into legislative intent ends at that point. [14] However, when a statute could be interpreted in more than one fashion the legislature’s intention must be inferred from sources other than the statute. In this sense, there are other “aids” which are not contained in the statute but may be found elsewhere. According to in his persuasive Article Justice A. K. Srivastava of titled Interpretation of Statutes [J. 1. R. 1. Journal – First Year, Issue 3-July−September, [1995] the other “aids” may be as follows: - the Delhi High Court (1) Historical background; (2) Statement of objects and reasons; (3) The original bill as drafted and introduced; (4) Debates in the legislature; (5) State of things at a time a particular legislation was enacted; (6) Judicial construction; (7) Legal dictionaries; and (8) Common sense.” 62. In this appeal before me, there are arguably two conflicting interpretations of Rules 2, 5 and 6 of the Court Supervisory Rules, by the Supreme Court and counsel for the Appellant, which have apparently demonstrated some difficulty in the literal interpretation of said Rules. The result of this is that I have to turn to one or more of the statutory interpretation aids listed in the authority above, to establish the intention of Rules 2, 5 and 6 of the Court Supervisory Rules. I should state from the onset that I do not believe the wording in the highlighted Rules is ambiguous or unclear, and although I will be utilising some statutory interpretation aids, the same will only be for the purpose of reinforcing just how clear the wording in the Rules is. 63. It is common cause that the issues in this appeal are arising against the backdrop of judicial review proceedings, particularly the commencement of the same. From the very beginning, it is worth pointing out that this Court had commented on what is involved in the commencement of judicial review proceedings, in the case of Registrar of the Supreme Court v Public Service Appeals Board and Ors (SCA CL 6 of 2020) [2021] SCCA 11. The Court guided and clarified as follows, at paragraphs 8 to 10: “Under Article 125 (1) of the Constitution, the Supreme Court has supervisory jurisdiction over subordinate courts, tribunals and adjudicating authority. Judicial Review is governed by the Rules of the Supreme Court (Supervisory Jurisdiction Courts, Tribunals, Adjudicating Bodies) Rules 1995 (the “Rules”). Application for Judicial Review undergoes two stages: the leave stage and the merits stage. The Rules applicable to leave stage are Rules 2-6. Rule 5 provides that the petition made under Rule 2 shall be listed ex-parte for the granting of leave to proceed. Rule 6 provides two matters to be considered when deciding whether to allow or reject the application for judicial review: whether the petitioner has sufficient interest in the subject matter and whether the petition is being made in good faith. At the leave stage therefore, the petition is listed ex-parte and the Court considers matters referred to by Rule 6. The Respondent under Rule 7 may take notice of application being registered under Rule 5 at any time and object orally or in writing to the grant of leave to proceed, or if leave to proceed had been granted object to the application at any time before the time fixed by Rule 12 for filing objection. It was correctly stated in the case of Derrick Chitala v Attorney General (1995) ZR that the purpose of the leave stage is to eliminate claims that are frivolous, vexatious or hopeless. In R v Secretary of State for Home Department, ex-parte Cheblak [1991] 1 WLR 980 Lord Donalds explained that the process operates as a filter to eliminate unarguable cases and if an arguable issue emerges, the Courts grant the leave (Island Development Company v Marine Accident Investigation Board (MA90/2019, arising in MC19/2019) [2020] SCSC 37) .” (Emphasis is mine) 64. Notable from the authority above is that an application for judicial review comprises of two stages, namely, the leave stage and the merits stage. Further, that at the leave stage the petition is listed ex-parte and at that point, the court is concerned with whether the applicant has sufficient interest in the matter and has made the application in good faith. The primary purpose being to eliminate claims that are frivolous, vexatious or hopeless. 65. While the authority distinguishes the two stages of application for judicial review and that at the leave stage, the core Rules applicable are Rules 2 to 6, it still does not address the issue whether or not the substantive petition for judicial review should be filed along with the application for leave. At least, not in these specific words. All that the authority highlights is that at the leave stage therefore, the petition is listed ex-parte and the Court considers matters referred to by Rule 6. This particular choice of words (highlighted), in my view, appears very deliberate and should not be glossed over and the reason I have pointed this out will become clear shortly. 66. Counsel for the Appellant, in his submissions, had referred to comparable legal frameworks in other common law jurisdictions that arguably prioritise a two-step structure in the process of judicial review. One most obvious to examine, would be the English legal framework, which we recognise in this jurisdiction, being the Rules of the Supreme Court of England and Wales, 1965, 1999 Edition (the “White Book”). 67. Order 53 of the White Book is one source that speaks generously on the subject of judicial review and an undoubtable aid in this Court’s endeavour to establish the intention of the Court Supervisory Rules. The Order begins as follows, in its Editorial Introduction: “The Rules in this Order were introduced in 1977 an constitute a uniform, flexible and comprehensive procedural code for the exercise by the Court of its supervisory jurisdiction by way of judicial review over proceedings and decisions of inferior courts, tribunals, or other persons or bodies which perform public duties and functions. An application for judicial review is a two-stage process. The applicant must first apply for leave to move for judicial review. Then, if such leave is granted, the applicant can proceed with a substantive application for judicial review.” (Emphasis is mine) 68. Notable, also from the editorial note above, just as in our case of Registrar of the Supreme Court v Public Service Appeals Board and Ors (SCA CL 6 of 2020) [2021] SCCA 11, is that the application for judicial review is separated into two stages. 69. With regard to the first stage, being the application for leave, Order 53, Rule 3(1) and (2) of the White Book prescribes as follows: “(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule. (2) An application for leave must be made ex-parte to a Judge by filing in the Crown Office- (a) a notice in Form No. 86A containing a statement of: (i) the name and description of the applicant; (ii) the relief sought and the grounds upon which it is sought; (iii) the name and address of the applicant’s solicitors (if any); and (iv) the applicant’s address for service; and (b) an affidavit verifying the facts relied on.” (Emphasis is mine) 70. With regard to the second stage, being the application for judicial review, Order 53, Rule 5 prescribes as follows: “(1) In any criminal cause or matter, where leave has been granted to make an application for judicial review, the application shall be made by originating motion to a Divisional Court of the Queen’s Bench Division. (2) In any other such cause or matter, the application shall be made by originating motion to a judge sitting in open Court, unless the Court directs that it shall be made- (a) by originating summons to a Judge in Chambers; or (b) by originating motion to a Divisional Court of the Queen’s Bench Division. (3) The notice of motion or summons must be served on all persons directly affected… (4) Unless the Court granting leave has otherwise directed, there must be at least 10 days between the service of the notice of motion or summons and the hearing. (5) A motion must be entered for hearing within 14 days after the grant of leave. (6) An affidavit giving the names and addresses of, and places and dates of service on, all persons who have been served with the notice of motion or summons must be filed before the motion or summons is entered for hearing… (7) …” (Emphasis is mine) 71. Both Rules 3 and 5 of the White Book are further explained in Practice Notes 53/14/2 and 53/14/5, respectively. 72. Practice Note 53/14/2, on the application for leave, thus, clarifies: “In all cases (whether civil or criminal) the applicant must first make an application for leave to move for judicial review. The application for leave must be made in the prescribed form (which includes a statement of the relief sought and the grounds), and there must be a supporting affidavit. Unless the court otherwise directs, the application is made ex-parte… All applications at first instance for and relating to judicial review are dealt with by the Crown Office… The leave application will normally be dealt with initially by a single judge without a hearing, and a copy of the order made by the single judge will be sent to the applicant by the Crown Office. If leave is granted, the applicant then institutes a substantive judicial review application by serving the prescribed form of originating process on all persons directly affected and lodging a copy of it with the Crown Office.” 73. Practice Note 53/14/5, on the institution of the substantive judicial review application, on the other hand, clarifies as follows: “Where leave for judicial review has been granted… the next stage is for the applicant to institute a substantive application for judicial review. The substantive application is made by originating motion (unless the court has directed, at leave stage, that it be commenced by originating summons to a judge in chambers). The applicant must then take the following steps in the following order within 14 days of the date of the grant of leave: (1) Service- He must serve the originating motion (summons) together with a copy of the statement he lodged with his leave application, on “all persons affected” … Although the rules do not stipulate that a copy of the affidavit in support be served with the motion (or summons) it is advisable to do so, because a copy of any affidavit must be supplied to any party on demand, … (2) Entry for hearing- This is the process whereby the substantive application is entered in the records of the Crown Office. In order to enter an application for hearing, the applicant must: (a) lodge with the Crown Office an affidavit of service (giving details of all those who have been served and, if any party “directly affected” has not been served, the affidavit of service must state this and give the reasons); and (b) lodge a copy of the originating motion (or summons) with the Crown Office, by way of entering it for hearing.” 74. Rule 3 of the White Book, from my observation has clearly distinguished two concepts, namely, ‘an application for judicial review’ and ‘an application for leave’. Thereby confirming the two-stage structure of the process of judicial review. It is no wonder the Rule is dubbed, “Grant of leave to apply for judicial review”. 75. Similarly, Rule 5 of the White Book, categorically focuses on the process after leave has been granted, deliberately dubbed, “Mode of applying for judicial review”. In addition, the two Practice Notes cited above clearly explain the two stages and what documents are to be filed and/or served at each stage. 76. Under Rule 3 of the White Book, the application for leave is to be made ex-parte, by way of Notice containing a statement of: (i) the name and description of the applicant; (ii) the relief sought and the grounds upon which it is sought; (iii) the name and address of the applicant’s solicitors (if any); and (iv) the applicant’s address for service. Further, this Notice should be accompanied by an affidavit verifying the facts relied on. Under Rule 5, the actual application is only coming in after the leave of court has been granted and said substantive application is to be made by way of Originating Motion or Originating Summons. 77. The Procedure outlined in Rules 3 and 5 of the White, casts no doubt on what should be done at what stage and what documents should be lodged at what stage. You have leave sought through a notice and the actual application through motion or summons. 78. Our Court Supervisory Rules, on the other hand, are not couched the same way as Order 53 of the White Book, in terms of the practice and procedure, particularly, of filing a notice with which to move the court. Order 53 of the White Book, categorically refers to a notice in prescribed Form No. 86A, while all that our Rules say is that application shall be made by petition. Let us now analyse the Court Supervisory Rules. 79. To begin with, Rule 1(2) of the Court Supervisory Rules stipulates as follows: “These Rules provide for the practice and procedure of the Supreme Court in respect of an application for the exercise of the supervisory jurisdiction of the Court over subordinate courts, tribunals and adjudicating authorities.” (Emphasis is mine) 80. The above, in my view, is, first and foremost, a clear indication and acknowledgement of the inherent power of the Supreme Court to judicially review decisions of subordinate courts, tribunals and adjudicating bodies, one of the categories to which the Respondent herein belongs. Secondly, the Rule also announces that the subject Rules are the ones that prescribe the practice and procedure to be observed by the Supreme Court when a party wishes to commence judicial review proceedings. 81. Therefore, where a party wishes to invoke the jurisdiction of the Supreme Court under the Court Supervisory Rules, Rule 2 prescribes the manner in which that can be done, as follows: “(1) An application to the Supreme Court for the purposes of Rule 1(2), shall be made by petition accompanied by an affidavit in support of the averments set out in the petition. (2) The petitioner shall annex to the petition a certified copy of the order or decision sought to be canvassed and originals of documents material to the petition or certified copies thereof in the form of exhibits.” (Emphasis is mine) 82. In other words, where a party wishes to move the Supreme Court to judicially review the decision of a subordinate court, a tribunal or adjudicating authority, they should make an application by way of petition, accompanied by an affidavit supporting what is contained in the petition. Further, the said petition should have, annexed to it, a certified copy of the order or decision sought to be reviewed and the originals of the documents relevant to the petition or certified copies of the same. So, simply put, an application for judicial review should be made by petition, accompanied by affidavit, the order to be assailed and other exhibits necessary to establish the cause. 83. After Rule 2 prescribes that the manner by which an application for judicial review should be made, Rules 3 and 4 go on to prescribe what should be contained in the petition; and the time within which the petition should be lodged, after the impugned decision, respectively. They provide thus: Rule 3 “The petition under Rule 2 shall contain a statement of— (a) the name, address and description of the petitioner; (b) the relief sought and the grounds upon which it is sought; (c) the name and address of the petitioner’s attorney at law, (if any); (d) the name, address and description of the respondent or each of the respondents; (e) a claim for damages, if any, and a prayer for costs. Rule 4 A petition under rule 2 shall be made promptly and in any event within 3 months from the date of the order or decision sought to be canvassed in the petition unless the Supreme Court considers that there is good reason for extending the period within which the petition shall be made.” (Emphasis mine) 84. Further Rule 5 of the Court Supervisory Rules, goes on to clarify how the petition should be registered and listed, as follows: “Every petition made under Rule 2 shall be registered by the Registry and shall be listed ex- parte for the granting of leave to proceed.” (Emphasis is mine) 85. My understanding of Rule 5, as it cross-references Rule 2, which in turn, cross-references Rule 1(2) of the Court Supervisory Rules, is that, where a party wishes to invoke the Supreme Court’s jurisdiction in respect of judicial review, they should make an application, by way of petition, which will be registered and listed ex-parte, for the purpose of securing leave of the Court to proceed with moving the Court in judicial review. In other words, in order for a party to move the Court in judicial review, they must first seek leave ex-parte, before they can proceed to do so and this is to be done by filing the petition. 86. I have observed that in all three Rules, the subject application is a petition. It appears that the applicant/petitioner is expected from the very inception to file a petition and it is the same petition that is then registered and listed ex-parte for purposes of obtaining leave to proceed. This is significantly different from the process prescribed under Order 53 of the White Book. Under the White Book, the rules specifically state that an application for leave should be made by way of Notice accompanied by an affidavit verifying the facts to be relied on. 87. Mr. Elizabeth had argued that the Court Supervisory Rules are consistent with the approach in other common law jurisdictions, as evidenced by the two-structure of Rules 2, 5, and 6, which does not demand the filing of a petition before leave is granted. That, the learned trial Judge’s requiring the simultaneous filing of both application for leave and petition for judicial review represents a departure from both the intended application of the Court Supervisory Rules and the practice incomparable legal frameworks. In light of the explanation above, it is incorrect to argue that our Rules do not demand the filing of a petition before leave is granted. I would accept Mr. Elizabeth’s submissions to the extent that the learned Judge did err when he suggested the simultaneous filing of both the application for leave and petition for judicial review. The Rules only require a petition and affidavit to be filed, which would, in the first instance, be heard ex-parte for leave. 88. I do note that the prescribed contents of the Notice under Order 53 of the White Book and those of the Petition under the Court Supervisory Rules are almost identical, but the modes of commencement through which they are to be brought before the Court are completely different. In this jurisdiction, the mode is a petition, as stipulated in the Court Supervisory Rules. This notwithstanding, the Appellant, in casu, elected to file a Notice rather than a Petition, and purported to do so pursuant to Rule 5 of the Court Supervisory Rules. The subject notice was captioned as follows: “NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW TO: THE REGISTRAR OF THE SUPREME COURT TO BE LISTED EX PARTE IN TERMS OF RULE 5 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts. Tribunals and Adjudicating Authorities) Rules.” 89. The above caption of the Notice as having been filed in terms of Rule 5 of the Court Supervisory Rules is a grave misapprehension, on the part of counsel for the Appellant, of the said Rule 5. The Rule clearly references a ‘petition’ and not a ‘notice’. Thus, the proper mode by which the Appellant was supposed to apply for leave under the Court Supervisory Rules was by way of petition. Especially that the Appellant wished to specifically reference Rule 5 in the caption of the application. 90. The importance of a party observing the correct mode of commencing an action before the courts cannot be over-emphasised. Proper commencement, in my view, is what gives validity and justification for a matter to be entertained by a particular court, and it is also what clothes the court with the necessary jurisdiction to entertain a matter and make valid orders thereunder. In other words, there is nothing that a court can legally do in a matter that is improperly before it and any order it makes under such a matter, would be a nullity, except an order dismissing the same matter for want of jurisdiction. 91. Recently, the Supreme Court, in the case of Seychelles Pension Fund v Marianne (MC 11/2021) [2021] SCSC 985, cited an earlier case of Choppy and Ors v Choppy and Anr [1959] SLR 161, wherein the implication of a party commencing an action using the wrong mode was discussed. In Choppy v Choppy, it was the Appellants’ argument that a suit of nullity of marriage could only be entered by way of petition as provided by the Matrimonial Causes Ordinance and the Rules thereunder, and not by plaint or statement of claim. Before I refer to what the Court had to say in the Choppy case, I wish to point out that the said case was heard and determined by the Supreme Court, which was at the time, being 1959, the Highest Court of the land as it is common knowledge that the Court of Appeal was only established in 1976. What was pronounced in the Choppy case, therefore, had the force of law. The following was the holding of the Supreme Court in that case: “We think that the wording of Rule 2 of the Matrimonial Causes Rules, 1949, which lays down that a matrimonial cause shall be commenced by petition is mandatory. Hence granting that the Court of Seychelles had jurisdiction to try the subject matter of the action yet it could only do it subject to the rules of procedure laid down, namely that the suit should commence by petition. Failure to follow that procedure meant that the Judge could no longer have jurisdiction (Maxwell, Interpretation of Statutes, 10th Edn, P.380)” 92. Further, in the case of Quilindo and Ors v Moncherry and Anr (SCA 29 of 2009) [2012] SCCA 39, the Court of Appeal reaffirmed the principle in Choppy v Choppy, although the issue before it was distinguishable from the issue in casu, in that the issue in that case had to do with a statutory provision which was unclear, while in casu the issue concerns a statutory provision that clearly prescribes a particular mode of commencement. The Court of Appeal, thus, had the following to say, at paragraphs 23 to 27, in the Quilindo case: “(23) The Choppy case did discuss the anomaly caused by the fact that the Civil Procedure Code enacted in 1920 contained procedures that were altered in subsequent legislation. The best example is the Matrimonial Causes Act which introduced the process for divorce by petition. That is not the case for affiliation proceedings. Although some English common law concepts were introduced in the Civil Code, corresponding procedural rules were not introduced by Act or amendment of the Civil Procedure Code. In the case of divorce where the procedure is clearly laid that actions are commenced by petition, failure to follow this mandatory provision would result in the Court having no jurisdiction in the case and the case being dismissed. (24) In the present case we do not find the matter as clear cut. True the Civil Procedure Code indicates that the matter should be brought by plaint but it also states that where there are other provisions made in law, section 22 does not have to be followed. As we have stated the introduction of English affiliation concepts logically implies English procedural rules. Can we as a Court of Equity (viz sections 5 and 6 of the Courts Act (Cap. 52) deny the Respondents the right to be heard because they have brought the action by petition instead of a plaint when the procedure for the same is not clear? We think not. (25) In a recent judgment of the Privy Council reacting to the Mauritian case of Toumay and Anor v Veerasamy [2012J UKPC13 Lord Brown stated [21 - 24]: "The Board has sought in the past to encourage the courts of Mauritius to be less technical and more flexible in their approach to jurisdictional issues and objections ... Let the Board now state as emphatically as it can its clear conclusion on this appeal. In cases like these, where mistakes appear in documentation as which particular jurisdiction of the Supreme Court has been involved, those mistakes should be identified and corrected without penalty unless they have genuinely created a problem) as soon as practicable and the court should proceed without delay to deal with the substantive issues raised before it on the merits” The same analogy can be brought to this case. No prejudice whatsoever was suffered by the Appellants by the proceedings being initiated by petition instead of plaint. In fact the issue was not raised until at the close of the Appellant's case. Lord Brown considered these technicalities a blot on the record of Mauritius for the fair administration of justice. We do not need to fall in the same trap. (26) We are of the view that in affiliation proceedings until and unless procedures and forms of pleadings are clearly indicated, an applicant cannot be denied the right of hearing for want of proper pleadings. For the moment it would appear that either a plaint or a petition is acceptable as proper pleadings by which such action might be commenced. (27) In the circumstances, this appeal is rejected in its entirety with costs to the Respondents.” (Emphasis is mine) 93. From the two authorities above, nothing more really needs to be added regarding the consequence of a party commencing an action through a wrong mode, especially where the law expressly provides for the mode. It is clear, the Court under those circumstances will have no jurisdiction. The Court can simply not proceed with a case that it has no authority to hear. 94. It appears, though, from paragraph 25 and 26 of the case of Quilindo v Moncherry, that where the statutory provision is not clear on the mode of commencement, a party may be given the benefit of doubt and be properly guided by the Court, without the Court having to dismiss the matter. I believe this falls somewhere in the realm of the powers of the Court in balancing procedural technicalities against the delivery of substantial justice. However, as already established, the procedural technicality involved in casu is not one that could easily be cured with just the Court’s discretion, because the Court would not even be in the position, in the first place, to exercise that very discretion, due to want of jurisdiction. 95. If the Appellant so wished to file a Notice when applying for leave, and the Supreme Court decided to accept it, it could do so, however, what was non-negotiable was the filing of the petition because the Rules prescribing the mode of commencement as a petition and such petition’s contents, are all cast in mandatory and express terms. Thus, I have to reject the Appellant’s argument that nowhere do the Rules in contention prescribe the filing of a petition at the stage of the petitioner seeking leave. This argument flies in the teeth of the Rules which, themselves prescribe that the petition should be filed and that the same petition is what will then be registered and listed ex-parte for the purpose of granting leave to proceed. 96. I had posed two questions earlier herein, to aid me in determining this appeal, as follows: a. Is it a requirement, under the Court Supervisory Rules, that when a petitioner is applying for leave to proceed to apply for judicial review, they should simultaneously file the actual petition for judicial review, in order that the application for leave be deemed regular? b. If the answer to the question above is in the affirmative, what would be the effect of a petitioner failing to file the petition alongside the application for leave to proceed to apply for judicial review? 97. The questions above were formulated on the basis of the submissions made by counsel on behalf of the Appellant and Respondent and after the analysis of the Court Supervisory Rules herein, I am of the considered view that the questions need re-casting and counsel for either party, as well as the learned Judge of the Supreme Court need to be appropriately guided. I believe question a. should now read, ‘What is the prescribed mode by which a petitioner should commence judicial review proceedings under the Court Supervisory Rules?’ and b. should, thus, read, ‘what would be the effect of a petitioner failing to commence judicial review proceedings in accordance with the mode prescribed under the Court Supervisory Rules?’ The answers to both of these questions have already been extensively discussed above. Simply that the prescribed mode of commencement is a petition and the effect of failing to follow that mode is that the proceedings should be dismissed for want of jurisdiction of the court before which they are purported to have been brought. 98. A perusal of the proceedings of the application before the Supreme Court reveals that the learned trial Judge, did in fact, try to guide counsel for the Appellant that he ought to have filed the petition for judicial review together with the application for leave. Counsel for the Appellant is recorded to have rejected this guidance and insisted that there was no need to. As I have already alluded to earlier herein, the Rule 5 of the Court Supervisory Rules, that supposedly justified the Notice filed by the Appellant, clearly stipulates what it is that should be listed ex-parte for purposes of leave. It is the petition. There is no point at the stage of applying for leave, that the Rules prescribe the filing of any notice. The only time the Court Supervisory Rules seem to refer to a notice is way after leave has been granted, but before the petition is entered for hearing. To this end, Rules 9, 12, 14 and 17 prescribe as follows: Rule 9 “(1) Where leave to proceed is granted, the Supreme Court shall direct that notice be served on the respondent or each of the respondents together with the petition, affidavit and all the connected documents and exhibits. (2) ….” Rule 12 “(1) Where notice is served on the respondent or each of the respondents, the respondent or each of the respondents shall file objections in writing, if any, to the petition accompanied by an affidavit in support thereof within six weeks of the service of such notice, unless the Supreme Court directs otherwise. (2) …” Rule 14 “It shall be the duty of the petitioner to take steps as may be necessary to ensure the prompt service of notice, and to prosecute the petition with due diligence. … Where an order or notice is required to be served on any party, such service shall be effected in the manner prescribed for service of summons in actions before the Supreme Court.” Rule 17 “After the service of notice on the respondent or each of the respondents as directed under rule 9 and the filing of objections, if any, by the respondent or each of them under Rule 12, the Supreme Court shall enter the petition for a hearing.” 99. Strictly speaking, therefore, the learned trial Judge should have not even condoned the Notice purportedly made under Rule 5 of the Court Supervisory Rules, because the Rules unambiguously direct that the application should be made by petition. I suppose that is why the Judge insisted that the petition be filed too. I see no legal basis for the notice, but there is clearly mandatory requirement for the petition and as I alluded to earlier, if the Appellant wanted to file a notice and the Judge accepted that, they could do so, but only in addition to the petition and not as a substitute for the petition. Also, if the Appellant was insistent on filing a notice before obtaining leave to proceed, they should not have captioned it as having been made pursuant to Rule 5 of the Court Supervisory Rules, because there is no such prescription under that Rule. 100. The filing of the petition from the onset is a ‘must’ and on the strength of this, I reject the Appellant’s argument that the learned trial Judge created an unsupported procedural requirement or that he negated the purpose of Rule 5 by requiring a petition prematurely. On the contrary, it was actually counsel for the Appellant who sought to introduce a mode of proceeding that is not provided for in the Court Supervisory Rules and if the Rules were silent on the mode of commencement, perhaps the Appellant’s notice filed supposedly under Rule 5 would have been adequate or regular. Unfortunately, that is not the case. The Rules have prescribed a petition as the mode and it can only be that under the Rules. 101. It was also argued on behalf of the Appellant that Rule 5 of the Court Supervisory Rules refers explicitly to the “granting of leave to proceed,” and that, this phrasing presupposes that leave is a prerequisite for filing a substantive petition for judicial review. Mr. Elizabeth, argued further, that the trial Judge’s interpretation contradicted the natural reading of Rule 5, where the term “proceed” implies that the process can only advance to the filing of a petition once leave has been obtained. This is another grave misconception of the Court Supervisory Rules by counsel for the Appellant. I believe Rules 9, 12, 14 and 17, cited above, clearly stipulate the procedure to be followed after the leave is granted, and that procedure, from the wording of the Rules, does not suggest the filing of a petition, which would have already been filed at inception. All that is being required of the petition after leave is granted is that it be served alongside the notice to the respondent or each of the respondents (See: Rule 9). 102. In summary, to apply to the Supreme Court under Rule 2, the applicant must submit a petition detailing the facts and legal grounds of the case, along with an affidavit providing sworn necessary legal documents and evidence before it to consider the petition and understand the context of the challenge or appeal. Rule 2 ties in well with Rule 18 which grants the Supreme Court specific powers to enforce its supervisory jurisdiction. These powers include the authority to issue injunctions, directions, orders or writs including writs or orders in the nature of hebeas corpus, certiorari, mandamous, prohibition and warranto as may be appropriate. In essence, Rule 18 clearly indicates that the reliefs for writs or orders in the nature of hebeas corpus, certiorari, mandamous, prohibition and warranto must be included in the petition filed in terms of Rule 2. Hence there needs to be filed only one petition which must have prayers seeking firstly, leave to proceed and secondly, specifying the injunctions, directions, orders or writs including writs or orders in the nature of hebeas corpus, certiorari, mandamous, prohibition and warranto sought by the petitioner. 103. It is clear that in his arguments and in how he had proceeded to bring the application for leave before the Supreme Court, Mr. Elizabth was exceedingly influenced by procedure akin to that observed in the United Kingdom, as espoused under Order 53 of the White Book. So much so that the Appellant adopted that concept and proceeded as though they were commencing the judicial review proceedings under Order 53 of the White Book, to the letter. However, counsel did so at the expense of disregarding, flouting and unjustifiably replacing our own prescribed rules. 104. Particularly adopting the notion under Practice Note 53/14/60 of the White Book, to the effect that no substantive application should be filed along with the application for leave, because it is expected that the documents filed alongside the notice for leave should have all the necessary information and details the Judge needs to grant leave, counsel for the Appellant gravely misconstrued what he needed to file at court for the grant of leave under the Court Supervisory Rules. The Rules specifically state that the application should be made by way of petition and not notice. 105. The information that is anticipated to be investigated upon an applicant filing a notice during the leave stage under Order 53 of the White Book is essentially the same information that is intended to be investigated at leave stage, upon the filing of the petition under our Court Supervisory Rules. It is just the mode of commencement which is different. I am, thus, inclined to agree with Ms. Denys that, “if the petition for judicial review was not to be filed at the very first instance, then how could the Judge peruse the petition to ascertain that the petitioner has sufficient interest and the petition is being made in good faith?” 106. In view of the foregoing, I find that the learned trial Judge did err in insinuating that under the Rules there were two applications to be filed for judicial review – one for leave to proceed and the other for the petition for judicial review. For avoidance of doubt, the Rules only prescribe a petition and supporting affidavit for judicial review applications. There is, thus, no merit in the Appellant’s appeal. 29