Court of Appeal delivers judgement in 14 cases   |18 August 2021

The Court of Appeal has delivered judgement in 14 other appeal cases from which eight have been dismissed, five allowed with or without costs while one has been quashed and remitted to the Supreme Court for fresh consideration and decision.

The Court of Appeal has delivered these judgements following hearings it has been conducting during its sessions for the month of August which it has now concluded.

Among the cases that have been dismissed is an appeal against a conviction and sentence for murder. The case concerns the murder of Franky Patrick Hertel during a fatal stabbing incident at Hangard Street in the afternoon of January 16, 2019.

The appellant, Swallen Jourdan Basset, had appealed against his sentence of life imprisonment.

The fatal stabbing followed a brawl between the deceased, his girlfriend and the appellant.

After considering all evidence in the case including CCTV video footage from the NVR Cam recorders located at the scene of the incident as well as medical evidence, Justice Mathilda Twomey noted that the appeal has no merit as life imprisonment is a mandatory jail term that shall be given to a person convicted of the offence of murder.

In an appeal against the sentence of imprisonment in a case of importation of heroin, the appellant in the case, Elizabeth Cecile, was sentenced to nine years in prison on January 31, 2020 after her conviction for conspiracy to import and the importation of heroin with a net weight of 204.1 grammes containing 126.5 grammes of pure heroin.

She had been sentenced to a term of nine years’ imprisonment on each of the two counts but the learned Sentencing Judge had ordered that the sentences are to run concurrently.

The learned Sentencing Judge had taken into consideration the age of the Appellant (43 years), that she has a child, that she was a first offender and that there are no aggravating circumstances as the quantity of the controlled drug was below 250 grammes. In making reference to the latter, the learned Sentencing Judge had erred in failing to take into consideration that there was “the presence and degree of a commercial element in the offending, particularly where controlled drugs have been imported into Seychelles” which according to section 48(1) of MODA 2016 is one of the aggravating factors that support a more serious sentence for offences under MODA. It is in relation to the offence of trafficking that less than 250 grammes of heroin is not considered as aggravated in nature. The appellant had thus stood to benefit from the mistake made by the learned Sentencing Judge.

Two cases related to Vijay Construction and Eastern European Engineering Ltd (EEEL) were also dismissed. In the first appeal Vijay was seeking constitutional redress under Article 19 (7) of the Constitution of the Republic of Seychelles. The article in part provides that any court required or empowered by law to determine the existence or extent of any civil right or obligation shall give the parties a fair hearing within a reasonable time. The appeal arises from a decision of the Seychelles Constitutional Court in which a petition brought by Vijay was dismissed with costs. The court dismissed the petition on the ground that the matter brought before the court had been adequately dealt with by a court of competent jurisdiction. And furthermore that the petition amounted to an abuse of court process.

In the other case the appellant Vijay Construction (Pty) Ltd is appealing the decision of the Supreme Court in Eastern European Engineering Ltd v Vijay Construction (Pty) Ltd which was in favour of EEEL.

The dispute in the Supreme Court was regarding the purchase and delivery of cement batching plant and block making machine. In brief, the respondent averred that the appellant had not paid for the batching plant and the block machine and the Trial Court ordered the appellant to pay the costs of the equipment. The appellant averred that it did not have the block machine in its possession and that it was not actually delivered to them. The appellant is not pursuing the issue whether payment was made or not in the Court of Appeal.

The appellant, being dissatisfied by the decision of the Supreme Court has lodged an appeal with this court. 

Meanwhile in a case of inheritance, the decision and orders of the Supreme Court have been quashed by the Court of Appeal and remitted to the Supreme Court for fresh consideration and decision. This is because the Supreme Court had granted a droit de superficie to respondents but in the course of appeal it emerged that one of the respondents had passed away before the case in court had been completed.

The case has to be sent back for appreciation of that fact by the court.

Among the five cases that were allowed included an employment case, an inheritance case, a property case, an ex parte case and a case between Airtel Seychelles and the review panel of the National Tender Board.

The next session of the Court of Appeal will be in December.

Marie-Anne Lepathy