CONSTITUTIONAL COURT OF SEYCHELLES

Reportable

[2020] SCSC 881

CP10/2020

 

In the matter between:

VIJAY CONSTRUCTION (PROPRIETARY) LIMITED           Petitioner

(rep. by Bernard Georges)

 

and

 

EASTERNS EUROPEAN ENGINEERING LIMITED               1^st Respondent

(rep. by Alexandra Madeleine)

ATTORNEY GENERAL                                                                 2^nd Respondent

Neutral Citation: Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd & Anor (CP 10/2020) [2020] SCSC 881 - 24 November 2020

Before:                   Dodin J, Andre Pillay JJ n

Summary:             Constitutional Petition; Preliminary objections; Article 46(3) of the Constitution; Res judicata; abuse of the process of the court; Right to a fair hearing.

Heard:                    3 November 2020

ORDER

The matter brought by the Petitioner was adequately dealt with by a competent court. The Petition amounts to an abuse of the court process. The objections are upheld and the Petition is dismissed with costs.

 

 

DODIN J. (Presiding)    ANDRE J.     PILLAY J.

Introduction

[1]        This petition arises from the judgment of Carolus J, handed down on the 30^th June 2020 which declared that the two Orders of the High Court in London were executable in Seychelles. The Petitioner appealed the judgment of the Supreme Court in Vijay Construction (Pty) Ltd v Eastern European Engineering Limited SCA28/2020 which was heard on the 3^rd of September 2020 and to which judgment was delivered on the 2^nd of October 2020. The Court of Appeal dismissed the appeal with an order of costs.

 

[2]        This petition was filed on the 16^th of August 2020 asking this Honourable Court for the following orders:

1. Declaring that the provisions of Article 19(7) of the Constitution were contravened in the CS 23/2019;
2. Setting aside the judgment of the Supreme Court dated 30 June 2020 in CS 23/2019;
3. Granting a stay of execution of the judgment of the Supreme Court dated 30^th June 2020 in CS23/2019 pending the determination of this Petition; and
4. Awarding the costs of this Petition against the First Respondent.

 

[3]        The basis of the Petition is grounded on the violation of the Petitioner’s right to a fair hearing. Briefly the Petitioner avers that the judge departed from the Statement of Agreed Facts and from the submissions made by the parties in which the accession by the Seychelles to the New York Convention was not an issue. To support this, the Petitioner referred the court to five paragraphs where the Supreme Court dealt with Seychelles becoming a party to the New York Convention. The Petitioner avers that the parties were not called upon to address the court on the issue, despite the court being ‘greatly influenced in arriving at its decision by the subsequent accessions to the New York Convention’.

 

Respondent’s Submissions: Preliminary Objections

 

[4]        The Respondents raised preliminary objections to the Petition, relying on Rule 9 of the Constitutional Court Rules. The Respondents argue that the Petition is not maintainable under Article 46(3) of the Constitution since the Petitioner has already sought and obtained redress in its appeal to the Seychelles Court of Appeal.

 

[5]        The Respondents argue that since the Court of Appeal has already adjudicated on the matter, this Petition no longer exists and the matter is now res judicata. They submit that this application constitutes an abuse of the court process. They further submit that this Petition does not disclose any reasonable cause of action for contravention of Article 19(7) of the Constitution. Lastly, they submit that the Petition contravenes rules 3(2) and 5(2) of the Constitutional Court Rules.

 

The Applicable Law

[6]        The Respondents raised some preliminary objections and this part deals with these questions raised. The preliminary issues largely raise the question of whether the petition has been dealt with by a court of competent jurisdiction, rendering this Petition res judicata and an abuse of the court process.

 

[7]        Article 46 of the Constitution deals with remedies for infringement of the Charter of Fundamental Rights through allowing the aggrieved party to seek redress before the Constitutional Court. It is broad in its approach, affording redress even to potential violations of the Constitution. As rightly pointed out by the Court of Appeal in Morin v Minister of Land Use and Habitat and Another (9 of 2005) SCCA 18 (24 November 2005), “the right is unqualified and being a Constitutional right, it cannot be limited or denied save in accordance with the Constitution itself and more particularly Articles 46(3) and 46(7).” It can be seen that the Constitution places great emphasis and significance on the right of access to the Constitutional Court. A party must merely allege a violation of the Constitution to make a prima facie case.

 

[8]        However, the right is not an absolute right. Article 46(3) of the Constitution provides as follows:

The Constitutional Court may decline to entertain an application under clause (1) where the Court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any application for redress for such matter except on appeal from a decision of such court.

 

As noted above, the Petitioner appealed the decision of the Supreme Court and the Court of Appeal delivered its judgment to the said appeal on the 2^nd of October 2020. With this in mind, can the matter be said to be res judicata?

 

Res judicata

[9]        The doctrine of res judicata is based on the rationale that there is public interest in the finality of decisions and that an individual should not be troubled twice on the same subject matter. The doctrine is founded on public policy and is aimed at achieving two objectives namely that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation. It is meant to lock out from the court system a party who has had his day in a court of competent jurisdiction from re-litigating the same issues, emanating from the same cause of action against the opponent. In Hoareau v Hemrick [1973] SLR 272, the court gave guidelines on what must be proven to succeed in a claim of res judicata as follows:

“For the plea of res judicata to succeed to be applicable, there must be between the first case and the second case the threefold identity of “object”, “cause” and “personnes”. Similarly, in Nourrice v Assary [1991] SLR 80 and Attorney General v Marzorcchi SCA 8/1996, LC 312 (both cases cited with approval by this court in Hercule Barbe v Ginette Esparon CS 159 of 2019 [2020] SCSC) it was held that for a party to succeed in a plea of res judicata, the following pre-requisites must be proven:

1. The subject matter should be the same;
2. The cause of action should be the same;
3. The parties should be the same;
4. The previous judgment should be a final judgment of court of competent jurisdiction.

 

[10]      Other jurisdictions also place emphasis on the need to bring finality to court proceedings. In the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR), the Kenyan Court of Appeal ruled as follows:

 

“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

 

[11]     The doctrine is based on the idea that parties must respect court decisions. In Hadkinson v Hadkinson [1952] ALL ER 567 the court while discussing the significance of obedience of court orders expressed itself as follows:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”[1]

Analysis and determination

 

[12]      The above section provided the law on res judicata and the need to bring finality to court proceedings. It must be answered whether the question brought before the Constitutional Court by the Petitioner has been dealt with by a court of competent jurisdiction. The notice of appeal to the Court of Appeal by Vijay Ltd raised the following grounds on paragraphs 6 and 7:

 

6. The learned Trial Judge erred in finding [at paragraph 90] that the roundabout route taken by the Respondent in seeking to enforce an unenforceable award through the process of a British judgment could not be faulted because of the ‘change of the Seychelles position’ through its accession to the New York Convention. In doing so, and in surmising [in paragraph 91] that the Respondent could now possibly seek to enforce the award directly, the Learned Trial Judge showed that her whole judgment was predicated, not on the law as it stood at the time of the hearing in 2019 but on the law as she interpreted it while preparing her judgment, without having given the parties an opportunity of disabusing her of her view.

 

7. The learned Judge erred in failing to provide the Defendant with an opportunity to address the issue of ‘back-door-entry’ due to Seychelles’ ratification of the New York Convention and in concluding that ‘it can no longer be argued that the enforcement of arbitral award would be unconstitutional, unconscionable and contrary to public policy as since 2020 Seychelles is a party to the New York Convention and foreign arbitral awards are capable of being enforced’ [paragraph 89]. This failure to provide a procedural opportunity is a breach of natural justice as the Appellant would still argue that, in the unique circumstances of the case, the enforcement of the arbitral award would be unconscionable and contrary to public policy, and in breach of legitimate expectation.

 

[13]      The Court of Appeal considered the issue of whether the right of the Petitioner was violated when the Supreme Court dealt with the applicability of the New York Convention, outside the Agreed Statement of Facts by the parties. In its judgment, the Court of Appeal considered the provisions of the Supreme Court judgment dealing with the New York Convention and concluded as follows:

 

98. Grounds 6 and 7 canvass in essence whether the Trial Court was correct to have regard to the New York Convention in the manner it did. I have the greatest sympathy for the arguments of the Appellant with respect to the approach of the Trial Court to the New York Convention, more particularly its applicability and relevance, given that it was ratified after the matter had been argued in the Supreme Court and judgment awaited and also on the aspect of a fair hearing. However, I consider that it is not necessary to decide the grounds bearing on the New York Convention on account of the view I take that the remarks of the learned judge with respect to the New York Convention were obiter.

 

99. I have perused the record and found that the New York Convention although it came for discussion and debate in the Trial Court was not part of the pleaded case of the parties and there was no way it could have been a live issue that determined the matter. It is trite learning that pleadings drive the evidence and ultimately dictate the material issues that fall for determination.

 

 

100. In my view, reading the judgement as a whole, not just few paragraphs of the judgment that deal with the New York Convention, it seems that the remarks of the learned Trial judge were obiter, and were not the basis of the conclusions she reached. The basis or ratio of the judgement as I understand it is that the UK Orders were capable of enforcement in Seychelles as they satisfied the conditions of section 3 (2)(a) to (f) of REBJA and those stated in the case of Privatbanken Aktieselskar v Bantele (1978) SLR 226.

 

[14]      Despite expressing its regret in the manner in which the Supreme Court dealt with the issue, it nonetheless concluded that the issue was obiter and did not form the basis of the judgment. In its analysis on the issue, the Court of Appeal concluded that:

103. In my view, reading the judgement as a whole, not just few paragraphs of the judgment that deal with the New York Convention, it seems that the remarks of the learned Trial judge were obiter, and were not the basis of the conclusions she reached. The basis or ratio of the judgement as I understand it is that the UK Orders were capable of enforcement in Seychelles as they satisfied the conditions of section 3 (2)(a) to (f) of REBJA and those stated in the case of Privatbanken Aktieselskar v Bantele (1978) SLR 226.

[15]      The Court of Appeal being the apex court of the land found that the discussion of the New York Convention did not in any way affect the rights of the Petitioner. It therefore follows that the questions raised in this petition were dealt with by the Court of Appeal.

[16]      Strictly speaking, the other point in limine raised by the Respondents that the Petition constitutes an abuse of the process is partly based on the idea that the matter is res judicata. In Republic v Yuan Mei Investment (Prop) Ltd, Criminal Side No. 24 of (1998)), Perera J cited Lord Diplock with approval in the case of Hunter v Chief Constable of West Midlands (1982) A.C. 529 at 536), where it was stated that:

“… this is a case of abuse of process of the High Court. It concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way, which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the Administration of Justice into disrepute among right-thinking people.”

 

[17]     In Board in Brisbane City Council v Attorney General for Queensland [1979] A.C. 411, 425), the court cautioned on the need to balance access to courts and preventing abuse of the courts’ when it stated the following:

“when it is confined to its true basis, namely, the prohibition against re-litigation on decided issues, abuse of process ought only to be applied when the facts are such as to amount to an abuse; otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation.”

[18]     In the Kenyan Court of Appeal, in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229, the Court of Appeal held that:

“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are:

1. 1.  Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
   2. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
   3. Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice.
   4. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.

With the matter having been decided by a competent Court of Appeal, the Respondents are again correct to maintain that this Petition amounts to an abuse of the judicial process.

 

[19]      This Court concludes that the matter brought by the Petitioner was adequately dealt with by a competent court. To demonstrate further how the Petition amounts to an abuse of the court process, one can also look at the orders being sought by the Petitioner. If this court issues the orders being sought, it would effectively reverse the decision of the Court of Appeal. Such a position fails to recognize the hierarchy of the courts’ system and would undermine the effective administration of justice. This case in its entirety amounts to having a second bite at the cherry.

 [20]     Consequently, the objections of the Respondents are upheld. This Petition is dismissed with costs.

 

 

 

Signed, dated and delivered at Ile Du Port on 24 November, 2020.

 

 

 

 

____________                                      ____________                          ______________

C G DODIN J (Presiding)                      S ANDRE J                              L PILLAY J