Toure v Toure (MA 21/2018) [2018] SCSC 8159 (10 May 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: MA 2112018 (arising in es ) [20181 sese l-r)/-(- BERYL TOURE Applicant versus ABDOULAZIZE TOURE Respondent Heard: Counsel: 24 April 2018 Mrs. A. Amesbury for applicant Mr. J. Camille forrespondent 11 May 2018 _._ _ _._._._._ _._._.- -------_._-_. __ __ _ _ __ _._-_ _-_._----------_. __ .__ ._. RULING ON MOTION Delivered: --_._-_ -_._-_.- _ Vidot J [1] The Applicant has filed a Motion supported by affidavit dated 12th March 2018, praying for leave to appeal out of time. The Judgement that the Applicant seeks leave to appeal against was delivered on 04th September 2017 by the Family Tribunal (hereafter "the Tribunal"). By that judgment, the Tribunal granted custody of the parties minor child to the Respondent. [2] Following that judgment, the Applicant did not file an appeal against the same. Thereafter, the Respondent who is a foreigner and then working in Seychelles on a Gainful Occupation Permit (GOP) which has since expired made application to remove the minor from the Seychelles as he intended relocate to another country which would be either Nigeria or Mali. Further to a Ruling dated 13th November 2017, (the Ruling), the Tribunal acceded to the Application and the Respondent was granted permission to remove the minor from jurisdiction. [3] The Applicant filed a Notice and Memorandum of Appeal against that Ruling. On 22nd March 2018, this Court allowed the Appeal partly in that it remitted the case by to the Tribunal to reassess its determination and take steps to guarantee that the minor will be taken to an environment that is safe in the jurisdiction where the minor would be relocated. It was strongly recommended that Tribunal engages the Social Services of Seychelles to establish contact with Social Services in the jurisdiction where the minor would be taken to ensure the interest and safety of the minor. [4] In the Affidavit (sworn by the Applicant) attached to the Motion for Leave to Appeal out of time, the Applicant states the principal ground on which the Motion is based is that the Applicant did not have legal representation at the hearing for custody and that circumstances of the case are such that such leave should be granted. The Applicant did not spell out what these circumstances are. [5] The Respondent opposes the Application and in Affidavit in Reply enumerates the grounds on which such contention is based. In particular, the Respondent avers that the Applicant has not provided legal justification to condone the delay of 6 months and that throughout proceedings pertaining to the minor the Applicant has shown lack of interest and or diligence to defend the application for custody. He also noted that the Ruling of the 22nd March did not seek to deny him custody of the minor. He moves the Court to dismiss the application as it is without merit. r6] In deciding whether to allow or deny a Motion to allow an appeal out of time, the Court It exercises its discretion for the purpose of doing justice to the has unfettered discretion. aggrieved given the particular facts of the case; see Farm AG v Barclays Bank sse 36/ 2000 (unreported). This discretion has to be exercised equitably and as stated in Parcou v Parcou SCA 32/1994 LC 99, in exercising that discretion, factors to be taken into consideration include the length of the delay, degree of prejudice to the defendant, and whether there is an arguable case on appeal. In Germain v Republic [2007] SLR 25, it was held that in exercising that discretion, the Court shall in taking into consideration all the circumstances of the case, equally consider the intention of the applicant, proper explanation for delay, undue prejudice and the merits of the application for leave to appeal. [7] In her submission, Counsel for the Applicant cited as main grounds for the application is that the Applicant was not legally represented before the Tribunal. She did not fully appreciate her rights. It was further submitted that the Applicant did not anticipate that once the Respondent was granted custody that he would seek permission to relocate the minor. I have had the privilege of reviewing the Tribunal file and it's evident that the Applicant was ably assisted by the Tribunal particularly since both parties were not legally assisted. The Social Services were involved to assist the Tribunal to ensure that the interest of the child was protected. Before the Tribunal, the Applicant's focus was not about seeking custody of the child. Equally when the Respondent filed for an Order to remove the minor from jurisdiction, her focus was more to do with the Respondent's infidelity and not concern about the relocation. As pointed out by Counsel for the Respondent, by the Judgment of the 04 September 2017, the parties were advised that they could appeal if not satisfied with the custody Order. By the time the Ruling of 13th November was delivered, the Applicant had still not filed an appeal. [8] I cannot agree with the Applicant that she did not anticipate that the Respondent would remove the minor from jurisdiction. The proceedings before the Tribunal contradict that averment. The Respondent is a foreigner and was working here on a GOP which has now lapsed. That being so, the Applicant would have appreciated that that was a matter of high probability. [9] It was held in Jean-Louis v Rosette SCA 15 of 2010, citing from Ratnam v Curamasamy [1964] 3 ALL ER 933, that the "rules of court must prima facie, be obeyed, and in order to justify a court in extending time which some step in procedure require to be taken, there must be some material on which the court can exercise its discretion" in order for such application to succeed it is necessary to show good cause to allow the appeal out of time. [10] I find that the Applicant sat on her rights for 6 months and never filed an appeal. To file the appeal now is an abuse of her right which will be unjust and unfair to condone. She failed to satisfy this Court with any acceptable reason for the delay. Such further delay will cause undue prejudice to the Respondent. [111 The Applicant did not address court as to whether the Applicant has an arguable case on appeal. I have nonetheless perused the memorandum of appeal and I had the privilege at the time prior to making the Ruling to go through the proceedings before the Tribunal and I don't believe that the Applicant has an overwhelming change of success on appeal. [12] For reasons above mentioned, I find that the Applicant failed to satisfy court of any reasonable cause as to why the delay should be condoned. The delay of 6 months is excessive. To accede to the Motion will be unfair and prejudicial to the Respondent. Therefore the Motion is hereby dismissed. [13] I make no order as to cost. Signed, dated and delivered at Ile du Port on 11 May 2018 Judge of the Supreme Court 4