Cheng Sheng Kuie v The Financial Services Authority (CA 1 of 2022) [2024] SCSC 185 (18 November 2024)

SUPREME COURT OF SEYCHELLES In the matter between MR. CHEN SHENG KUIE (AKA ARISTO CHEN) (rep. by Mr. Audrick Govinden) and Reportable CA 01/2022 Appellant THE FINANCIAL SERVICES AUTHORITY (rep. by Mr Basil Hoareau) Respondent Neutral Citation: Cheng Sheng Kuie v The Financial Services Authority (CA 01/2022) (18 Before: Summary: Heard: November 2024) Judge Esparon Appeal against Board. 15th May 2024 the decision of the Financial Services Authority Appeals Delivered: 18th November 2024 ORDER Appeal against the decision of the Financial Services Authority Appeals Board- Appeal is dismissed with cost for being prescribed by law since the Appeal was lodged to the Appeals Board outside the time limit prescribed by law which was fatal to the said Appeal. JUDGMENT Introduction [1] This is an Appeal against the whole of the decision of the Financial Services Authority Appeals Board dated 16th December 2021. [2J The grounds of Appeal are as follows; 1) The Board erred in determining at paragraph 11 that the Appeal was lodged with the secretary of the FSA Appeals Board on the 18th September 2021 when the appeal was indeed lodged on the 15th September. 2) The Board erred in finding that the Appeal before it was filed outside the time prescribed by law in all circumstances and in particular by failing to take into account week-ends and public holidays which should be excluded in the 90 days calculation. 3) The board erred at paragraph 14 in concluding that submission of a register of directors, or any other documents in extension of this argument, does not require the approval of the Respondent and further erred in linking this argument to the ground that the 'FSA erred in concluding that it is not empowered to intervene in the internal management of the company'. 4) Upon the Board deliberating, at paragraph 18 of the Ruling that 'we would have been minded to allow ground 2 of Appeal as it would have been the duty of the Respondent to ensure section 169(1) and (2) was complied with', the Board then erred in not granting the appeal by erroneously determining that the Appeal was not within the time prescribed by law. 5) The board erred in not appreciating that the FSA failed to address all the ground put before the FSA, as evident on the application before the FSA, and an adjudication upon all the grounds was called upon. Submissions of Counsels [3] The Appellant submitted to the Court that following the unauthorized change of registered agent, the Appellant then applied to the FSA to reverse its decision in May 2019 granting sterling the status of registered agent. After the FSA concluded that it was empowered to act upon extract of minutes of resolution received from Sterling Trust and to register it as the new registered agent the Appellant appealed against the aforesaid decision dated 8th June 2020 to the Financial Services Authority Appeals Board which dismissed the appeal as it was not filed within the prescribed time limit. [4] As to ground 1 of Appeal, namely that the board erred in determining that the Appeal was lodged with the secretary of the FSA Appeals Board on the 181h September 2020 when the Appeal was lodged on the 151h September 2020. According to counsel, the application with the applicant's original signature was filed on the l S" September as the Applicant was at all material time overseas. However according to counsel, the application itself, with a copy of the Applicant's original signature was filed by the 151h September 2020 and which the application was acknowledge by email by the FSA. Hence the lodging of Appeal was on the 151h September but not the 18th September 2020. [5] As to ground 2 of Appeal, the Appellant submitted that the determination of the FSA is dated the 81h June 2020 and the Appeal was filed on 15th September 2020. Counsel for the Appellant referred to regulation 7(1) of the Financial Services Authority (Appeals Board) Regulation 2014 whereby the Appellant has 90 days to appeal against the decision to the Appeals Board. [6] The Appellant further relied on section 57 of the Interpretation and General Provisions Act of which according to counsel the date of the incident itself should excluded in the computation of time for Appeals and hence the time for Appeal should start running hom the 9th June 2020. Counsel for the Appellant relied on the case of Rose-Marie Bruening VIS kasner Civil Appeal No CA 19/2017, where the Court held that intervening week ends and public holidays are excluded in computing the time limit as regards to filing legal documents. Counsel further submitted that there are 18 days which are considered as excluded days which included Sundays and public holidays. Hence it is submitted that the computation oftime for the Appeal should have excluded the excluded days. [7] Ground 3 of Appeal is that the FSA erred in concluding that it is not empowered to intervene in the internal management of the company and therefore such matters as to the legality of the purported meeting of shareholders. According to counsel, the Appellant was indeed contesting that the purported' register of directors originating from the purported 'company' is not genuine and hence what the Appellant was calling upon the FSA to adjudicate upon was on the due diligence of the purported 'register of directors' of which FSA was receiving from a purported person purportedly acting on behalf of the company and that the Appeals Board further erred that the Registrar, as an Authority is not empowered to intervene in the internal management of the company since the authority is obliged to conduct a level of compliance under the AML and mc Act. [8] As to ground 4 of Appeal, Counsel for the Appellant submitted to the Court that the board determined if this matter was filed within the prescribed time limits, we would have been minded to allow ground 2 of the Appeal as it was the duty of the Respondent to ensure section 169(1) and (2) was complied with, the more so that the l " registered agent never gave its consent to change the registered agent. Hence in such circumstances, that the Appeal of the Appeals Board should have been allowed further to ground 1 of Appeal. [9] As for ground 5 of Appeal, the Appellant submitted that the Appeals Board erred in not appreciating that FSA failed to address all the grounds put before the FSA since they ruled that the grounds put there on before the Appeals Board is vague. According to counsel for the Appellant, the Board should have reverted back to the FSA for adjudication. [10] On the other hand, counsel for the Respondent submitted as regards to ground 1 of Appeal that on the Appellant submissions that the Appeal was lodged on the 15th September rather than the 18th September, counsel relied on section 374 of the International Business companies Act and to Regulation 7 of the Financial Services Authority (Appeals Board) Regulation and makes a distinction between section 374 of the !BC Act which deals with Appeals against the decision ofthe Registrar ofInternational Business companies whereas the said regulation 7(1) deals with Appeals against the decision of the Financial Services Authority and that the Financial Services Authority is not the Registrar of the International Business Companies Act, that under the lBC Act, the Registrar is the Chief Executive officer of the Financial Services Authority. [11] He further submitted that since regulation 7(1) is applicable, there is a form in the prescribed form and according to regulation 7 (3), the secretary of the Appeals Board shall cause the notice of Appeal received to be entered into the Register and as such an appeal is taken to have been lodged to the Appeals Board only on the receipt of the Notice of Appeal by the secretary and that is why counsel for the Respondent is saying thar the Appeal was lodged on the 18th September. [12] Counsel for the Respondent submitted that if indeed the Respondent wanted to bring fresh evidence on this, he should have asked for leave of the COUlt in terms of rule 22 and 27 of the Appeal rules under the Courts Act to lead fresh evidence since the Appeals rules is applicable to such an Appeal as in the present matter to the Supreme Court under rule 3(1) and rule 27. Counsel relied on black law dictionary which defines Tribunals as a Court of Justice or other adjudicatory body and hence the Appeals Board is a Tribunal being an adjudicatory body. [13] As for the 2nd ground of Appeal of which the Appellant is taking issue on the findings of the Appeals Board that the Appeal was lodged out of time, he submitted that section 374 of the IEC Act provides that the Appeal should be lodged within 90 days of service of notice of a decision of the Registrar. According to Counsel for the Respondent the decision that they were contesting before the Appeals Tribunal was taken on the 8th June 2020 but even that we would have taken it on the 151h of September 2020, they would still be out of time since they should have lodged their Appeal by the 91h September 2020 which makes the Appellant out of time by 9 days. [14] Counsel further submitted that since the IBC Act does not define days, then we have to go to the Interpretation and General Provisions Act namely section 57 of the said Act of which we cannot count the day that the decision was taken that is the 181h of May 2018 or the 81h June 2020. Furthermore counsel submitted that according to the said provision of the law, it only includes an excluded day when the last day of the period is an excluded day, the period includes the following day not being an excluded day and hence except if the last day of the period is an excluded day you still have to count Saturdays and Sundays. [15] As to ground 3 of Appeal, counsel for the Respondent submitted that that there is no need for the approval of the Respondent in submitting the Register of directors or to change directors and hence the Respondent needs to be notified under section 134 of the IEC Act and section 12 of the IBC Act which provides for a change in the register of directors. Similarly there is no need for the approval of the Respondent and all that the Respondent will do is receiving a copy of the register of directors showing the change. [16] As regards to the 4th Ground of Appeal, according to counsel for the Respondent by saying that the Respondent determined that they would have found on the merits had the appeal not been prescribed, they are effectively challenging the decision of the Respondent that the Appeal is prescribed. [17] As to the 5th ground of Appeal, counsel for the Respondent submitted that this is a vague ground since it stated that the Respondent erred in not appreciating that the FSA failed to address all the grounds that are put before the FSA as evident on the Application before the FSA and an adjudication upon all the grounds was caUed upon and as such it should be thrown out in accordance with Rule 12 of the Appeal Rules under the Courts Act. [18] In his submissions, Counsel for the Respondent raised a point of law that the Appeal under section 374 of the IBC Act has been brought against the wrong party and should have been brought against the Registrar of the International Business company being the CEO and not the Authority being the FSA. The Board addressed the issue by saying they found that in the manner that there were exchange of Emails, no prejudice has been caused. Learned counsel submitted that although this is not a ground of Appeal, the Court has jurisdiction being an Appellate Court having the same powers that the Appeals Board enjoyed and relied on the case of Sinon V Sinon 1997 SLR 209, the case of Anjoraj, 17 Eastern African Courts of Appeal 136 and the case of Allied Agency V Marie, Seychelles Court of Appeal Reports 1978 to 1982. [19] As regards to the issue that no application has been filed to adduce fresh evidence before this Court, counsel for the Appellant submitted in reply to the submission of counsel for the Respondent that the issue of the email was live before the Appeals Board and it was part of the proceedings and that it is the responsibility of the Appeals Board to include it in the docket sent to the Supreme Court. Analysis and determination [20] The 1st ground of Appeal is that the Board erred in determining at paragraph 11 that the Appeal was lodged with the secretary of the FSA Appeals Board on the 18th September 2021 when the appeal was indeed lodged on the 15th September. [21] This Court hereby reproduces the relevant laws namely section 374 of the International Business Companies Act which reads as follows; 374.(1) Without prejudice to section 273 (appeal against striking ojf), a person aggrieved by a decision of the Registrar may, within 90 days of service of notice of the decision of the Registrar, appeal against the decision to the Appeals Board in accordance with the procedure specified in the Financial Services Authority (Appeals Board) Regulations 2014. [22] Section 7(1) of the Financial Services Authority (Appeals Board) Regulations, 2014 provides as follows; 'Any person aggrieved by the decision of the Authority, may within 90 days of the decision make an appeal against the decision to the Appeals Board in form of Notice of Appeal appended in the schedule to these regulations'. [23] Counsel for the Respondent submitted to the Court that on the 15th September 2020, counsel had not filed its Notice of Appeal in the form as prescribed in the schedule to section 7( I) of the Financial Services Authority (Appeals Board) Regulations. This Court takes note that the Appellant had not filed its Notice of Appeal in the form as prescribed by the said regulation. [24] In the case of Cherty v The Estate ofRegis Albert & Drs (CS 131/2018) [2020] sesc 500 (7 May 2020), albeit in relation to civil procedure requirements, it was stated; "The issue ofa procedural irregularity being a bar to a legal remedy has been considered on many occasions. Courts have recognised that a strict adherence to procedural requirements risks a perverse outcome and that a failure 10 comply with civil procedure should not be the basis for denying otherwise legally acquired rights. In Coles and Ravensher (1907) J KB I Collins MR aptly staled: "Although J agree that a court cannot conduct its business without a code of procedure, J think that the relation of rules of practice to the work of justice is intended to be that ofhandmaid rather than mistress, and the court ought not to be sofar bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case. [25] In the case of Mary Quilindo and ors VIS Monchery and Ors, (2012) SCCA 292009, where the Court relied on the Privy Council decision in the case of Toomany and Anor v Veerasamy (2012) UKPC 13, where the Court held the Following; "That such technicalities raised to shut out litigants from the Court system constitute a blot of the administration of Justice". [26] In the case of Mary Kilindo (supra), Twomey JA held that "where no prejudice was suffered by the proceedings being initiated by petition and not by plaint as such technical objections should not affect the fair administration of Justice". [27] This Court shall follow the above case law cited, and is of the view that while procedure must be followed it must also not defeat the course of justice or should not affect the fair administration of Justice. As such this Court takes it that the Appeal has been filed or lodged to the Appeals Board on the 15th September 2020. [28] The above being said, this Court shall now turn to the 2nd ground of Appeal namely that the Board erred in finding that the Appeal before it was filed outside the time prescribed by law in all circumstances and in particular by failing to take into account week-ends and public holidays which should be excluded in the 90 days calculation. First and foremost it is clear that the Appellant has 90 days in order to lodge his Appeal before the Appeals Board in view of the above provisions of the law. [29] The issue that this Court has to determine 1st as regards to the said ground of Appeal is as regards to the computation of time for lodging an Appeal before the Appeals Board. This court takes note that the word days is not defined either in the International Business Companies Act nor in the Financial Services Authority (Appeals Board) Regulations, 2014. Since days is not defined in the said law and regulation, Section 57 of the Interpretation and General Provisions Act is applicable to the present case and reads as follows; (a) a period reckoned by days from the happening of an event or the doing of any act or thing is exclusive of the day on which the event happens or the thing; (b) where a period is expressed to begin or end at, on or with a specified day or to continue to or until a specified day, the period shall include that day; (c) where a period is expressed to begin after or to be from a specified day the period shall not include that day; (d) where the last day of a period is an excluded day, the period includes the next foIIowing day ( not being an excluded day; and (e) where an act or proceeding may be or is required to be done or taken on a certain day and that day is an excluded day, the act may be done or the proceeding taken on the next foIIowing day (not being an excluded day) [30] This Court takes notice that there was an amendment made to the Interpretation and General Provisions Act by (Act 24 of 2021) in the Civil Code of Seychelles (Consequence of Enactment) Act, 2021. Section 4 of the said Act now defines excluded day as a Saturday, a public holiday, or a bank holiday declared under section 64 of the Financial Institution Act. [31] As a result of the above provisions of the law, it is clear that the day of the decision itself is not counted for the purpose of the computation time and it is only when the day of filing an Appeal falls on an excluded day that is on a Saturday, Sunday or a public holiday, it shall not be counted for the purpose of computation of time in lodging an Appeal. 1 therefore disagree with the submissions of counsel for the AppeIIant that since Saturdays, Sundays and public holidays are excluded day, they should not be counted for the purpose of computation oftime in lodging an Appeal subject to what I have said above at paragraph 31 of this Judgment. [32J In the present matter, the decision of which the Appellant was appealing from which emanates from a letter by the Chief Executive officer of the Financial Authority dated the 8th June 2020 and the Appeal was lodged to the Appeals Board on the 15th September 2020. Since the Appellant had 90 days from the said decision to lodge his Appeal to the Appeals Board, this Court finds that the Appellant is out of time by 8 days in lodging his Appeal before the Appeals Board since the 90th day falls on an excluded day which is a Sunday which should not be counted and the 8th of June being the date of the decision should not be counted for the purpose of computation of time for lodging the Appeal. [33J In the case of Jean VIS Inter- Island boat limited, Civil Appeal 44 of2012, Egonde-Ntende CJ relied on the decision in the case of Aglae v Attorney General SCA 35 of 2010 which cited in approval the words of the Privy Counci I in the case of Ratnam VIS Curmarasamy (1964) All E. R 933 of which the Court held the following; 'The rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law requires otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation'. [34J The court in the case of Jean (supra) held that 'the Applicant has not explained the 3 months delay in failing to take any step with regard to a possible Appeal against the decision of the Employment Tribunal. This is fatal to his Application. Parties and their legal advisors must understand that this Court will enforce the time standards established by the rules'. [35J This Court takes note that there are no provisions which deals with extension of time in lodging an Appeal when the Appellant is out of time neither in the International Business Companies Act nor in the Financial Services Authority (Appeals Board) Regulations, 2014. Counsel for the Respondent submitted to the Court that the Appellant cannot file an Application for leave to Appeal out of time when the law is silent on this. [36] S. J 11 of 1961 referred to the Appeal Rules made under the Courts Act namely rule 5 of the Appeal Rules made under the Courts Act provides that 'any party desiring an extension of time prescribed for taking any step may apply to the Supreme Court by motion and such extension as is reasonable in the circumstances may be granted on any ground which the Supreme Court considers sufficient'. [37] This Court notes that the above rules only deals with an Appeal to the Supreme Court and not to an Appeal to such an Appeals board as in the present case. As a result, this Court finds that the said Rules is inapplicable in the present matter and hence T agree with the submissions of learned counsel for the Respondent the when the law is silent, the Applicant cannot file an Application for leave to lodge an Appeal out of time of which if the Court would allow such an Application, the court would be indulging in making laws of which the Constitution has expressly provided that it is the legislature that makes laws. [38] The above being the case, this Court shall follow the decision in the case of Jean VIS Inter Island boat limited, Civil Appeal 44 of 2012, where Egonde-Ntende CJ relied on the decision in the case of Aglae v Attorney General SCA 35 of2010 which cited in approval the words of the Privy Council in the case of Ratnam VIS Curmarasamy (1964) All E. R 933 which held that 'the rules of Court must prima facie be obeyed and that parties and their legal advisors must understand that this Court will enforce the time standards established by the rules'. As a result, since the Appellant has lodge his Appeal before the Appeals Board 8 days out of time, this Court finds that this was fatal to the Appeal before the Appeals Board as the Appeal was prescribed by law. [39] In view of the above, this Court further finds that the Appeals Board did not erred in finding that the Appeal before it was filed outside the time prescribed by law in all circumstances and did not fail to take into account week-ends and public holidays which should be excluded days in its calculation to the extent that there was only one excluded day that should have been taken into account that is the 6th of September 2020 and also the 1st day of the decision itself of which the Appellant was still out of time by 8 days even taking both into account. [40] As to ground 5 of Appeal of which the Appellant states that 'the board erred in not appreciating that the FSA failed to address all the grounds put before the FSA, as evident on the application before the FSA, and an adjudication upon all the grounds was called upon, this Court hereby reproduces rule 12 of the Appeal Rules made under the Courts Act which states as follows; 'The memorandum shall contain a concise statement in numbered paragraphs of the points or points on which the judgment is alleged to be erroneous, without any argument or narrative, and a concise prayer for the relief claimed. [41] In view of Rule 12 of the said Rules, this court finds that ground 5 is couched in vague and general terms of which this Court should not entertain such a ground of Appeal. As a result, I accordingly dismiss ground 5 of Appeal [42] In view that the Court has already ruled that since the Appeal was lodged out of time by 8 days to the Appeals Board and that this was fatal to such an Appeal being prescribed by law, this Court finds no necessity to make any pronouncement on ground 3 and ground 4 of Appeal since this Court is of view that in both of the said grounds, the Appellant is inviting the Court to make a determination on the merits of the Appeal before the Appeals Board where such an Appeal was prescribed by law before the Appeals Board of which the Appeals Board ruled as such and this Court has determined this Appeal by confirming that the said Appeal was indeed prescribed by law and as such the said Appeals Board did not erred in this respect. [43] As a result of the above, I accordingly dismiss this Appeal with cost. Signed, dated and delivered at He du Port on the 18th November 2024. Esparon J I