Gamatis and Another v Bank of Baroda and Another (SCA MA 04/2025 [2025] (20 August 2025)) [2025] SCCA 21 (20 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (18 August 2025) SCA MA 04/2025 In the Matter Between Julia Gamatis (rep. by Mr. Audric Govinden) Nathalie Gamatis (rep. by Mr. Audric Govinden) And Bank of Baroda (rep. by Mr. Guy Ferley) Marie-Therese Bristol (rep. by Mr. Guy Ferley) 1st Applicant 2nd Applicant 1st Respondent 2nd Respondent Neutral Citation: Gamatis and Another v Bank of Baroda and Another – SCA MA 04/2025 Before: Summary: Heard: Delivered: [2025] (20 August 2025) Robinson, JA Application for stay of execution is hereby dismissed. 1 August 2025 20 August 2025 ORDER 1. The application stands dismissed. 2. With no order as to costs. ______________________________________________________________________________ ______________________________________________________________________________ ORDER ON MOTION F. ROBINSON JA [1] This is an application to the discretion of the Court of Appeal. [2] The applicants filed an urgent application on the 7 June 2025, seeking a stay of execution of the Supreme Court's decision in Commandment case No. 41 of 2024, and requesting to file additional evidence and documents. The applicants are seeking this stay pending the final resolution of their appeal against the decision of the Supreme Court in SCA No. 16 of 2025. However, the notice of motion did not include any order regarding the applicants’ request to file additional documents and evidence. [3] The applicants swore an affidavit in support of the notice of motion. [4] The Court heard the urgent application for a stay of execution pending appeal and the request to file additional evidence and documents, despite the difficulties related to the papers filed by the applicants in this case. [5] The Court heard the applicants and respondents on the 15 July 2025, at 10:00 a.m., concerning the application. The applicants informed the Court that they were unable to engage Counsel as no Counsel would accept their case. On that day, the Applicants informed the Court that they had prepared the application with the assistance of Counsel, but would not divulge who had assisted them. The Court advised the applicants to seek the services of Counsel for the hearing and determination of the application. [6] On the 15 July 2025, the Court adjourned the proceedings on the application for stay to the 18 July 2025, allowing the applicants to engage the services of Counsel. [7] On the 18 July 2025, Mr. Audric Govinden, Counsel for the applicants, prayed the Court for time to prepare for the case. The Court adjourned the case for the 22 July 2025, with both Counsel informing the Court that they will be ready to proceed with the hearing on that date. [8] The Court states that a Court usher had been cited as the second respondent in this case. On the 22 July 2025, when the case was called, Counsel for the applicants withdrew the case against her, and the Court granted the application to withdraw. Counsel for the applicants indicated that the applicants had not been served with an affidavit in reply from the respondents, dated the 17 July 2025, but had been served with a supplementary affidavit dated 21 July 2025 from them. On that date, the Court adjourned the case to the 1 August 2025, for the hearing of the application. In the meantime, the Court directed both Counsel to file all outstanding papers related to the case, which they complied with. [9] On the 1 August 2025, the Court tentatively adjourned the case for a ruling on the 8 August 2025, as the Court of Appeal's August session was set to begin on the 4 August 2025, and end on the 18 August 2025. [10] On the 8 August 2025, Mr. Govinden, Counsel of record for the applicants, was not present in Court. The applicants informed the Court that he was no longer their Counsel of record. The Court explained to them that Mr. Govinden remained their Counsel until it has made an order allowing him to withdraw his appearance. The Court instructed them to ensure Mr. Govinden's presence in Court on the 20 August 2025. In any case, the ruling was not ready. The Court adjourned the ruling to the 20 August 2025, at 2 p.m. [11] The Court interjects to state that on the 8 August 2025, the applicants presented the Court with an application to withdraw the current application. I informed them that I would address the application on the 20 August 2025. [12] The Court reproduces in full the application filed by the applicants, which is in the following terms (verbatim) — "URGENT APPLICATION FOR STAY OF EXECUTION, PENDING APPEAL, AND REQUEST TO FILE ADDITIONAL EVIDENCE AND DOCUMENTS To: The Honourable President and Justices of the Court of Appeal of Seychelles The Appellants respectfully submit this urgent application seeking:  Immediate Stay of Execution, including suspension of all transfer, registration, and enforcement actions concerning Parcel H12880, Beau Vallon, pending the final determination of this Appeal; Leave to file additional evidence, documents, and submissions in  support of this Appeal; Protection of the Appellants' constitutional right to a fair hearing,  due process, and access to justice. GROUNDS FOR THIS URGENT APPLICATION 1. The Appellants respectfully submit: The Honourable Judge presiding over the judicial sale proceedings on 10th June 2025 failed to uphold judicial impartiality, transparency, and due process by:  Suppressing critical defence documents, including the Appellants' taxed affidavit, supporting documents, receipt, and a formal refinancing update the Development Bank of Seychelles, which demonstrated the Appellants' genuine efforts to settle their outstanding debt and avoid forced sale; letter from  Proceeding with adjudication despite the existence of these taxed documents, making no mention of the refinancing update letter during proceedings;  Allowing the Court transcript to omit acknowledgement of the receipt and evidence, despite later confirmation from Mrs. Bristol that the Judge saw the receipt;  Silencing the Appellant, Mrs. Julia Gamatis, when she returned to Court with a copy of the suppressed documents, instructing her to "sit down, we are going to make a ruling," and immediately adjudicating the property to the Bank; Dismissing the Appellant's further attempts to submit documents  with the words: "I have made my ruling, go to the Bank." These events are absent from the official Court transcript, proving  suppression of material evidence and serious procedural irregularities. 2. Following these events, the Appellants acted swiftly and in good faith to challenge the flawed proceedings, but faced further judicial oppression, including: Filing a Notice of Appeal, Memorandum of Appeal, Motion to Stay  Execution, and supporting affidavit on 23rd June 2025; During the 24th June sitting, the Honourable Judge failed to address  the Stay Motion, instead ordering the Appellants to return with legal representation by 26th June, under threat of consequences; Filing a second Motion on 25th June, requesting to provide evidence  of fraud, collusion, and procedural abuse; On 26th June, despite Mr. Ferley for the Respondent Bank  requesting time to respond due to absence of GM Bank officials, the Judge granted him time but denied the Appellants reasonable time to secure counsel;  Imposing an ultimatum that if the Appellants failed to appear with legal representation on 27th June, the matter would proceed without them;  The Appellants' child became gravely ill under this pressure, requiring emergency care twice on the night of 26th June and hospitalized for two days, with hospital documentation provided to the Court;  Despite informing the Court of the medical emergency, the Honourable Judge proceeded on 27th June in their absence, dismissed all pending Motions, and issued a ruling that prejudiced the Appellants' rights. The suppression of the taxed updated refinancing letter, disregard for pending evidence, refusal to grant reasonable time, and procedural oppression constitute a breach of constitutional protections, procedural fairness, and impartiality. IRREPARABLE HARM AND NEED FOR URGENT STAY  The Appellants submit that unless an immediate Stay of Execution is granted, the transfer and registration of Parcel H12880 will proceed, causing: Irreversible loss of their family home, leaving the Appellants and  their young child homeless; Destruction of the Appellants' appeal rights, rendering the  proceedings academic;  Permanent deprivation of property without fair adjudication; Irreparable harm  constitutional protections under Article 19; to the Appellants' health, stability, and  Erosion of public confidence in judicial fairness and due process. The Appellants respectfully invoke the principles in Essack v Morel (1978) SLR 137, confirming that Stay of Execution is appropriate where irreversible harm, denial of justice, or rendering an appeal futile is at stake. ADDITIIONAL REQUEST – ACCEPTANCE OF SUPPRESSED DOCUMENTS AND EVIDENCE The Appellants respectfully bring to the attention of this Honourable Court that throughout the proceedings before the lower Court, every effort was made to suppress, delay, or outright block the Appellants' critical evidence and defence materials from being officially acknowledged, considered, or placed on record. Despite complying with all filing procedures, paying taxation fees, and producing valid supporting documents–including but not limited to:   The taxed affidavit outlining material facts and hardship; The receipt confirming proper filing of the defence documents;  The formal refinancing update letter from the Development Bank of Seychelles demonstrating a genuine attempt to resolve the loan amicably; Supplementary evidence regarding fraud, collusion, and procedural  irregularities; The Honourable Judge:    Ignored these documents in open Court; Suppressed mention of them from the official Court transcript; Silenced the Appellant when she attempted to produce copies; Proceeded with adjudication without addressing any of this critical  evidence;  Forced the Appellants into impossible deadlines, disregarded medical emergencies, and dismissed all pending Motions in their absence. The Appellants respectfully state that these actions constitute clear obstruction, judicial misconduct, and procedural abuse, designed to prevent the true facts from being reflected on the official record. Accordingly, the Appellants formally request this Honourable Court to: Accept and admit all defence documents, evidence, and supporting  materials that the lower Court refused to recognise;  Allow the full submission of additional evidence and documentation listed, including but not limited to the Full Comprehensive Submission, Supplementary Memorandum of Appeal, Court response records, Annexes 1 to 4, the Transmission of Appeal, Supporting Hardship Documentation, and updated Affidavits;  Ensure that all evidence previously suppressed, ignored, or obstructed by the Honourable Judge is now officially included in the record of this Appeal;  Safeguard the integrity of the proceedings and the Appellants' constitutional rights to due process, fair hearing, and property protection. RELIEF SOUGHT The Appellants respectfully request that this Honourable Court: 1. Issue an urgent Stay of Execution, halting all transfer, registration, and enforcement actions concerning Parcel H12880 pending final appeal determination; Grant leave to file the additional documents, submissions, and 2. evidence; Order disclosure of CCTV footage and admit audio recordings 3. relevant to the suppressed court proceedings; 4. Investigate judicial misconduct, bias, and procedural abuses; Preserve 5. irreversible harm. the Appellants' constitutional rights and prevent CONCLUSION The Appellants submit that grave irregularities, suppressed evidence, judicial misconduct, and imminent irreparable harm demand immediate intervention. Without a Stay, the appeal is rendered futile, the Appellants face permanent deprivation of property, and their right to a fair hearing collapses. The Honourable Court is urged to halt the transfer, protect the Appellants' rights, and ensure justice is served. Dated: 7 July 2025 (Signed) __________________ Julia Gamatis, Appellant (Signed) ____________________ Nathalie Gamatis, Appellant AFFIDAVIT IN SUPPORT OF URGENT APPLICATION FOR STAY OF EXECUTION, PENDING APPEAL, AND REQUEST TO FILE ADDITIONAL EVIDENCE AND DOCUMENTS I, Julia Gamatis, of Mare Anglaise, Beau Vallon, Mahe, Seychelles, make oath and state as follows: I am the 1st Appellant in this matter and make this affidavit in 1. support of our Appeal, our urgent Stay of Execution Application, and to place the full sequence of relevant facts before this Honourable Court. Prior to the judicial sale proceedings on 10th June 2025, I properly 2. filed and taxed: A sworn affidavit outlining our, refinancing efforts, and opposition  to the judicial sale;  A receipt confirming payment of the taxation fee;  A formal refinancing update letter issued by the Development Bank of Seychelles demonstration our genuine efforts to resolve the debt and prevent loss of our home. Despite these documents being duly filed and taxed, the Honourable 3. Judge presiding over the judicial proceedings:  Failed to acknowledge or consider these materials; Suppressed any mention of the documents from the official Court  transcript; Proceeded with the judicial sale and though we had made no  attempt to resolve the matter. 4. During the hearing, upon realising the suppression of our documents, I immediately ran to my car to retrieve a second copy of the taxed affidavit, receipt, and refinancing update letter. When I returned to the Courtroom, the Honourable Judge instructed 5. me to "sit down, we are going to make a ruling." 6. Immediately upon my sitting down, the Honourable Judge declared the property adjudicated to Bank of Baroda and concluded the judicial sale. 7. I raised my hand to submit the documents, stating that I had the copy with me, but the Honourable Judge dismissed me, stating, "I have made my ruling, go to the Bank." These exchanges were completely omitted from the official 8. transcript of proceedings. 9. I subsequently obtained audio evidence confirming Mrs. Marie- Therese Bristol admitted the Honourable Judge had seen the taxed receipt, but this fact was concealed from the record. 10. On 23rd June 2025, I filed:     A Notice of Appeal; A Memorandum of Appeal; A Motion for Stay of Execution pending Appeal; A supporting affidavit. During the sitting on 24th June, the Honourable Judge imposed an 11. unreasonable requirement for us to obtain legal counsel by 26th June 2025, under threat of severe consequences, while failing to properly address our pending Motion to Stay. On 25th June 2025, we filed a second Motion requesting to provide 12. evidence of fraud, collusion, and procedural irregularities. On 26th June, despite Mr. Ferley (for the Bank) requesting 13. additional time to respond to the Motions, the Honourable Judge granted him more time but refused our request for sufficient time to obtain legal representation. Under the immense legal pressure, my child fell severely ill on 26th 14. June, requiring two emergency hospital visits and hospitalised overnight. 15. We duly informed the Court of the medical emergency and later provided medical documentation. Despite this, the Honourable Judge proceeded on 27th June in our 16. absence, dismissed all pending Motions, including our Stay Application, and made determinations severely prejudicing our rights. 17. The Judge's suppression of our defence materials, refusal to properly consider our refinancing update letter, imposition of impossible deadlines, disregard for medical emergencies, and subsequent dismissal of all applications has denied us access to justice and violated our constitutional rights under Article 19. The 2nd Appellant, Nathalie Gamatis, is fully aware of and supports 18. the facts stated herein and confirms them as true to the best of her knowledge and belief. 19. I respectfully submit this affidavit to support our request for an urgent Stay of Execution, the admission of suppressed evidence, and full protection of our rights pending the determination of this Appeal. Sworn at: Date: 07 July 2025 (Signed) ________________________ Julia Gamatis, Appellant I, Nathalie Gamatis, the 2nd Appellant, confirm that I have read the above affidavit, support its contents, and adopt it as true to the best of my knowledge and belief. (Signed) ________________________ Nathalie Gamatis, Appellant Before me: (Signed) ________________________ (Stamped NOTARY JEAN-MARC LABLACHE)". [13] The Court notes that the application is suggestive of procedural irregularities in the learned Judge's approach. [14] The first respondent filed affidavits in reply, which I will not reproduce. There is no need in this case for the Court to consider the evidence of the first respondent in view of the serious irregularities in the papers filed by the applicants. [15] The Court interjects to state that the application contained matters dealing with fresh evidence, which Counsel for the applicants told the Court concerned the appeal in SCA No. 16 of 2025; hence, it will not be going into the matters concerned with that part of the application dealing with fresh evidence and, in any case, there is no order sought in the notice of motion with respect to the request for fresh evidence. [16] The applicants submitted a separate application, MA No. 05 of 2025, on the 30 July 2025, to present new evidence in support of their appeal. The Court did not address this application, as it related to appeal SCA No. 16 of 2025. [17] Regardless of how the application has been framed, the Court has made every effort to consider and determine it. However, the Court cannot ignore the irregularities presented in the application. On the 1 August 2025, the Court heard the parties at length on the application. [18] The Court has considered with care the application and the lengthy oral submissions made by both Counsel at the hearing of the application on the 1 August 2025. [19] The application rests on section 229 of the Seychelles Code of Civil Procedure and Rule 20 (1) of The Court of Appeal of Seychelles Rules, 2023, which stipulates ― ″20.(1) An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from — Provided that the Supreme Court or the Court may on application supported by affidavit, and served on the respondent, stay execution on any judgment, order, conviction, or sentence pending appeal on such terms, including such security for the payment of any money or the due performance or non- performance of any act or the suffering of any punishment ordered by or in such judgment, order, conviction or sentence, as the Supreme Court or the Court may deem reasonable. (2) No intermediate act or proceeding shall be invalidated except in so far as the Supreme Court or the Court may direct.″. [20] Rule 16 of The Court of Appeal of Seychelles Rules, 2023, is also applicable. The same rule stipulates: "16. [w]henever an application may be made to the Court or to the Supreme Court, it should normally be made in the first instance to the Supreme Court." [21] The guiding principles for determining whether or not to stay execution are ― (1) where special circumstances of the case so requires; (2) there is proof of substantial loss that may otherwise result; (3) there is a substantial question of law to be adjudicated upon by the appellate court; (4) where if the stay is not granted, the appeal if successful, would be rendered nugatory. - see, for example, MacDonald Pool v Despilly William CS No. 244 of 1993, dated 11 October 1996 , Falcon Enterprise v Essack & Ors (2001) SLR 137 and Casino des Iles v Compagnie Seychellois (Pty) Ltd SCA No. 2 of 1994. [22] Considering how the application has been framed, the Court refers to rule 25 of The Court of Appeal of Seychelles Rules, 2023, which stipulates — "25(1) In this Rule, an interlocutory matter means any matter relevant to a pending appeal the decision of which will not involve the decision of the appeal. An interlocutory matter, other than an application for special leave (2) to appeal, may be brought before the President or a single Justice of Appeal designated by the President — Provided that the President or the Justice of Appeal before whom the matter is brought may in his discretion hear or refuse to hear or transfer the application to the full Court. Interlocutory matters shall be brought within fourteen days upon (3) leave being refused at first instance by the Supreme Court, by way of notice of motion which shall be substantially in the Form A in the First Schedule hereto and shall be supported by affidavits. The opposing party may deliver answering affidavits within fourteen (4) days of the service of the notice of motion. The applicant may file replying affidavit within seven days of the (5) service of the answering affidavit." [Emphasis is mine] [23] The Court also refers to rule 25 of the Seychelles Court of Appeal Rules, 2005, which has since been repealed, which stipulates — "25(1) In this Rule, an interlocutory matter means any matter relevant to a pending appeal the decision of which will not involve the decision of the appeal. An interlocutory matter, other than an application for special leave (2) to appeal, may be brought before the President or a single Judge designated by the President:Provided that the President or the Judge before whom the matter is brought may in his discretion hear or refuse to hear or transfer the application to the full Court. (3) Interlocutory matters shall be brought by way of notice of motion which shall be substantially in the Form A in the First Schedule hereto and shall be supported by affidavits. (4) The opposing party may deliver answering affidavits within fourteen days of the service of the notice of motion.(5)The applicant may file replying affidavits within seven days of the service of the answering affidavits." [Emphasis is mine] [24] The Court has highlighted sub-rule (3) in rule 25 from both The Court of Appeal of Seychelles Rules, 2023, and the Seychelles Court of Appeal Rules, 2005. Rule 25 of The Court of Appeal of Seychelles Rules, 2023, introduces a clear change. Rule 25 (3) of The Court of Appeal of Seychelles Rules, 2023, requires that an interlocutory matter shall be brought within fourteen days upon leave being refused at first instance by the Supreme Court, by way of notice of motion, which shall be substantially in the Form A in the First Schedule hereto and shall be supported by affidavit. [25] The Court has made every effort to understand the changes made by sub-rule (3) of The Court of Appeal of Seychelles Rules, 2023, particularly with the introduction of the leave procedure. However, it did not discuss this sub-rule with either Counsel during the hearing of the application. The application has proceeded as filed, given its already considerable challenge. [26] It is noted that rule 20 (1) of The Court of Appeal of Seychelles Rules, 2023 provides that an application must be made by way of notice of motion and accompanied by an affidavit. Therefore, based on the same rule, the Court cannot consider the portion of the application which addressed the grounds for the urgent application contained in the "URGENT APPLICATION FOR STAY OF EXECUTION, PENDING APPEAL, AND REQUEST TO FILE ADDITIONAL EVIDENCE AND DOCUMENTS," as repeated in the application at paragraph [12] of this ruling. [27] Therefore, the Court is left to consider the affidavit in support, which both applicants have signed. [28] First, the Court turns to the form of the affidavit. [29] The Court determines that the application is bad in law. The Court explains. Counsel for the first respondent relied on the defect in the jurat with respect to the affidavit in support. He stated that the jurat must follow immediately on from the text and not be put on a separate page. He relied on the case of Lablache De Charmoy v Lablache De Charmoy SCA No. 8 of 2019, dated 16 September 2019, in support of his submission. Counsel for the applicants did not offer any acceptable submission in reply. [30] The Court of Appeal in Morin v Pool (2012) SLR 109 referred with approval to the White Book (Supreme Court Practice 1991 Order 41 rule 8) in relation to an objection raised at the appeal concerning the affidavit. In Lablache De Charmoy, supra, the Court of Appeal relied on Order 41 (R. S. C. 1965), which deals with the form of affidavits. [31] The Court reproduces Order 41, rule 1, so far as relevant ― ″Form of affidavit (O. 41, r. 1). 1.―(1) Subject to paragraphs (2) and (3), every affidavit sworn in a cause or matter must be entitled in that cause or matter. […]. (1) […]. (5) […]. (7) Every affidavit must be expressed in the first person and must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. Every affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn.″ [Emphasis si mine] [32] In Lablache De Charmoy, supra, the Court of Appeal held that the parties cannot waive irregularities in the form of the jurat. In Pilkington v. Himsworth, 1 Y. & C. Ex. 612), the court held: ″[j]urats and affidavits are considered as open to objection, when contrary to practice, at any stage of the cause. That is an universal principle in all Courts; depending not upon any objection which the parties in a particular cause may waive, but upon the general rule that the document itself shall not be brought forward at all, if in any respect objectionable with reference to the rule of the Court″. [33] This should suffice to dispose of the application, but the Court addresses the additional issues regarding the application. The Court turns to the merits of the applicant's application, though it has determined that the application is fundamentally defective. The Court has considered the merits of the application in the alternative for the sake of completeness. [34] It is observed that the affidavit in support did not invoke any of the grounds which the Court has regard to when it considers and determines an application for stay, set out at paragraph [21] of this ruling. The affidavit in support, reproduced at paragraph [12] of this ruling, provided a timeline of events with respect to the applicants complaints that the learned Judge suppressed their defence materials, failed to consider their refinancing update letter adequately, imposed unreasonable deadlines, disregarded medical emergencies, and dismissed all applications. They claimed that these actions have denied them access to justice and violated their constitutional rights under Article 19. The affidavit does not provide any evidence to support these allegations. [35] It is important to note that the notice of appeal has not been exhibited to the supporting affidavit. There are fourteen annexes on file, but none of them have been exhibited with the affidavit. [36] Based on the reasons set out above, the Court agrees with Counsel for the first respondent that the affidavit is fundamentally defective. Alternatively, the Court agrees with Counsel for the first respondent that the application lacks merit. [37] As a result, the Court refuses to accept the defective affidavit as evidence. ORDERS [38] The Court makes the following orders — 1. It dismisses the application filed by the applicants. 2. It makes no order as to costs. ________________________ F. Robinson (Justice of Appeal) Signed, dated and delivered at Palais de Justice, Ile du Port on 20 August 2025. 16