In the recent case of Chady S. B. v Habib Bank Ltd 2015 SCJ 431, it was decided that a person could not challenge the validity of an appellate court decision by way of constitutional action under section 17 of Constitution if that person has failed to have recourse to an adequate alternative means of redress (Appeal to Privy Council) available to him.
In the present case, Mrs Chady entered an action in the Supreme Court to declare that a judgment obtained in the Appeal Court of the Supreme Court is null and void. The basis of her constitutional redress case was set pursuant to section 17 of the Constitution.
Section 17(2) of the Constitution is of interest to us and same provides that “the Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of sections 3 to 16 to the protection of which the person concerned is entitled provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”
The background of her case is as follows.
On 16 December 2008, her immoveable property was the subject of a seizure action initiated by Habib Bank pursuant to the charges secured on her property. The said security had arisen as a result of a guarantee given by Mrs Chady for banking facilities in favour of Blockbuster Video Network Ltd.
On 9 March 2009, however, Mrs Chady lodged an application to challenge the validity of the seizure proceedings which was set aside by the Court and ordered the sale to proceed by levy proceedings. She appealed against the said judgment and the Supreme Court dismissed the appeal thus maintaining the decision to proceed with the sale.
In the present case, Mrs Chady is challenging the judgment of the Appellate Court by invoking breach of her constitutional rights, these being that the Appellate Court has denied her of (i) a fair hearing and the protection of the law as guaranteed by sections 3(a) and 10(8) of the Constitution; and (ii) her right to the protection of her property and from deprivation of property without compensation, as guaranteed by sections 3(c) and 8 of the Constitution.
For our readers’ reference, the above sections of the Constitution inter alia provide that:
Section 3 (Fundamental rights and freedoms of the individual)
“It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms –
(a) the right of the individual to life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression, of assembly and association and freedom to establish schools, and
(c) the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation..”
Section 8 (Protection from deprivation of property)
(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where –
(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius; and
(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and
(c) provision is made by a law applicable to that taking of possession or acquisition –
(i) for the payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation.
Section 10 (Provisions to secure protection of law)
“Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.”
The Bank addressed the case of Mrs Chady by raising a ‘plea in limine litis’ in its defence. As explained in a previous article, a plea in limine litis is an objection in any point of law which needs to be addressed at the outset of a trial. Examples of such objections are that the court has no jurisdiction in a particular matter or that the prescribed delay to bring a case was not observed.
The bone of the contention of the Bank is that the action is in breach of the proviso to section 17(2) of the Constitution to the extent that Mrs Chady has failed to exhaust adequate means of redress which were available.
The Bank further argued that the action of Mrs Chady cannot be used as a disguised way of appealing against the judgment of the Appellate Court and amounts to a gross abuse of the process of the Court.
Their Lordships Justices A. Caunhye and J. Benjamin Marie Joseph stated that Mrs Chady has indeed a Constitutional right of appeal under section 81 of the Constitution to challenge the decision of the Supreme Court. When Mauritius became a British colony in 1810, it was proclaimed that any litigant in a court case could appeal to His Majesty’s Council provided the subject matter involved exceeded 4000 piastres. After independence in 1968 and on its becoming a Republic in 1992, Mauritius deemed it fit to maintain the Judicial Committee of the Privy Council as its highest court of appeal.
Section 81 of the Constitution therefore preserved a means of redress by way of an appeal to the Judicial Committee of Privy Council.
Their Lordships ruled that: “there is no doubt that in the present situation a parallel remedy was available to the plaintiff to challenge the validity of the judgment of the appellate Court. For the plaintiff to proceed with her case in these circumstances by way of a constitutional action would clearly constitute an abuse of process. The plaintiff is expressly precluded from proceeding with the present action by virtue of the proviso to section 17(2) of the Constitution for having failed to make use of adequate means of redress which were available to her in respect of her complaints as they appear ex facie the plaint.”
The case for Mrs Chady was accordingly dismissed to the extent that her action should have been by way of an appeal to the Privy Council instead of seeking a constitutional redress pursuant to section 17. One must always bear in mind the fine points of laid-down law when seeking redress. Any omission to stick to existing procedures can turn a case against oneself.
* Published in print edition on 18 December 2015
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