Court of Appeal deems Vijay Construction’s application as ‘frivolous, vexatious and abuse of court process’ |14 November 2020

The long-running legal battle between Vijay Construction and former clients Eastern European Engineering Limited (EEEL) took another turn yesterday, when the Court of Appeal set aside an application forwarded by Vijay’s lawyer Phillipe Boule, on account that the court does not have jurisdiction to hear the application.

The application, filed by the appellants on November 5, 2020 following the Supreme Court’s dismissal of Vijay’s appeal on October 2, 2020, demanded that the appellant in the matter be heard for orders, on account that the judgment delivered by court was unconstitutional, null and void, that the motion be heard as a matter of urgency and that the execution of the Supreme Court judgments and the judgments of the Court of Appeal be stayed pending the hearing of the motion, in line with Rule 5 of the Seychelles Court of Appeal rules.

During yesterday’s proceedings, Justice Fiona Robinson and Justice Oagile Dingake both concurred that the application should be dismissed, both stating in their rulings that the court has no jurisdiction to hear and decide on Constitutional matters, as circumscribed by Section 120 of the Constitution and Section 12 of the Courts Act 1964. However, Justice Dingake in his judgment outlined numerous additional reasons as to why the application has no merit before the Court of Appeal.

“Having regard to the extensive authorities I have cited, it is my considered and respectful opinion that this application is frivolous and vexatious; it is wholly without merit and has the effect of simply harassing the respondent and put it to unnecessary trouble and expense in opposing an application that should not have been brought in the first place,” said Justice Dingake.

“The application is an abuse of court process as it is in effect a disguised attempt to rehear the appeal that this court has determined, and with respect to which it is now functus officio. It relates to the same matter with respect to which the applicant has been unsuccessful on many occasions; and quite plainly, in my mind at least, the applicant’s continued litigation on matters already determined by the court has the effect of subjecting the respondent to inconvenience and amounts in effect to harassment,” Justice Dingake stated.

Contrary to what many would think, the dismissal does not mark the end of the long and hard legal battle, as Vijay once again filed two new applications arising from the appeal, through legal representative Bernard Georges.

Similarly to the first application, the appellants are seeking for the court to set aside the decision of the Supreme Court, as was upheld by the majority decision of the Court of Appeal on October 2, 2020. This time however, the appellants claim that they were denied the right to a fair trial, on two specific grounds, the first being that two of the three Justices failed to participate in the process in which the President of the Court of Appeal Anthony Fernando highlighted and sought clarifications on the procedural irregularities, and that they were denied a fair hearing by reason that in 2017, the Court of Appeal had said that foreign arbitral awards were not enforceable here in Seychelles, basing that decision on the applicability of the New York Convention. Mr Georges cited in court that the appeal was not heard in its entirety in 2017, and as a consequence, the appellants were denied a fair trial.

Lawyer representing EEEL, Alexandra Madeleine, will have a right of reply on Friday November 27, 2020 in court.

Laura Pillay