Durdunis v R (SCA 12 of 1993) [1994] SCCA 29 (24 March 1994)

IN THE SEYCHULES COURT OF APPEAk Between: Mr. Inas Durdunis electing _legal domicile in the Chambers of' Philippe Boulle, Attorney-at-haw of 212 Victoria House, Victoria, Mahe, Seychelles and 4-- s:C 1136dOc' Appellant The Republic Respondent Criminal Appeal No. 12 or 1993 Mr. P. Boutle For Mr, :De Liverra for the respondent the appellant Goburdhun 1), S i ungwe , Ay oo .. J. J . A. ) Ru Ling_ of the Court, delivered on 21 tit March 1994 This ruling relates to a preliminary objection raised by counsel on behalf: of the Attorney-Generr.1 to the appeal of the appellant, Mr. Ilias Durdunis (hereinafter referred to as Durdunis) on the ground that:- "Mr. Inas Durdunis the Appellant. abovenamed ;his no Locus standi to Appeal against the order whereby an order or forreiture was made 111 respect of the vessel "MAW." Durdunis was charged alon:t with two others with the offences of importing Into Seychelles, arias of war without. permit, contrary to the Firearms and Ammunitions Act 1973 and importjng into Seychelles munitions of war without, a permit. contrary to Lhe same Act. The Supreme Court (Ali-rear At; . C. J. as he then was) upon a trial of the accused persons, acqui. Lted and discharged Durdunis who w); the second accused r -2-- at the trial and one Vassilios Karatz ins who was the third accused. One Sebastian Murangira who was the first accused was found guilty on both counts, convicted and sentenced to one year imprisonment on 10th December 1993. On the same day , on an application which had been made by prosecuting counsel prior to sentence but subsequent, to conviction, the Supreme Court, made forfeiture order in respect of the vessel. Malo and the arms and ammunition pursuant, respectively, 1,-tlit141. to section 151 of the Criminal Procedure Code (Cap. 45) and section 34(1) of the Firearms and Ammunition Act, 1973. by the Attorney-General is from the orders of forfeiture. The appeal_ by Durdunis which is now objected to argued Mr. De Liverra, State Counsel, for the Attorney General that since Durdunis had been acquitted and there was no material whatsoever to show that he has an interest in the vessel or its cargo, he cannot exercise a right of appeal. Mr. Boulle, learned counsel for Du • dunis argued that Durdunis has appealed pursuant to a right of appeal conferred by Article Republic of 120(2) of the Constitution of the ( the Constitution). Seychelles, The exercise or a right of appeal by Du • dunis, it is argued, is founded on the interest which a person who has been in the proceedings and by its results has. is aggrieved Although it has been argued that. Durdunis' interest is affected by the order of forfe i ture; it was rightly conceded by learned counsel for Durdunis that, there was nothing in the records to show what proprietary interest he has in the vessel and, or, the arms and ammunitions ordered to be forfeited. By tile provisions of section 329 Procedure Code (Cap .'1 Court given of the Criminal liberty to appeal from the Supreme to the Court oF Appeal in criminal proceedings is to trial held by the Cou • t." However, ArLicio 120(2) or the Constitution convicted on person "any a Supreme has provided thus: "Except as this COnstitution or an Act otherwise provides, there shall be a right of appeal to the Court, of Appeal --3- from a judgment, direction, decision, declaration, decree, writ or orden of the Supreme Court." to this provision of the Giving a liberal interpretation Constitution as we must do pursuant to para. 8 of Sch.2 of the Constitution, the conc l seems inescapable that the wider right of liberty to appeal granted by Article 120(2) cannot by implication be circumscribed by the provisions of the Criminal Procedure Code, and of section 329 thereof in particular. Fxclusion of the right of appeal is permitted by the Constitution but such exclusion must, be by express statutory provision. Although we must feel driven to the conclusion that Article 120(2) of the Constitution, in general terms, gives a right of appeal to this Court, from a judgment, direction, decision, declaration, decree, writ, or order of the Supreme Court, it is manifest that, that; article does not state, and no other article of the Constitution states, who is to exercise that right. When the law gives a right, of appeal against a judicial decision without stating at whose instance such right can be invoked , dL is inconceivable that such right, would be available to anybody who cares to exercise it regardless of whether he is a person aggrieved by the judgment, order, or decision appealed. from; or, put another way, regardless of whether he has any interest that, can be affected by the decision sought We feel no hesitation in holding, therefore, that standing essential to the right, of this Court is the appellate jurisdiction to exercise its power to hear and determine appeals from a judgment, direction, decision or order of the Supreme Court. to be appealed from. to invoke In appiying the provisions of a Constitution which must to give them their fair and liberal meaning be interpreted and which shall be treated as speaking from time to time, it will be imprudent to define for all times the classes of --4- person who would be classified as "aggrieved persons" or to determine by a rigid a priori interest that would give a person standing to invoke the principle the nature of appellate What would be prudent, is to determine each case on its facts, the general principle jurisdiction of this Court. having been established that a person who seeks to invoke the appellate jurisdiction of this court must have a locus standi. In the present case i)urdunis has been tried and acquitted and stands no risk of suffering any punishment as a result of or in consequence of the judgment of conviction of the first accused. He thus has no interest in the proceedings which survived his acquittal in regard to the liability to punishment which the trial entailed. In regard to the forfeiture order, as rightly conceded by his Counsel, there is no evidence on record or before us that he has any interest that can be affected by the forfeiture order. In the circumstances we fail to see what, locus standi Durdunis has to invoke the appellate jurisdiction of this Court. A considerable body or case law has grown on the question of the nature and character of interests that give a person locus standi to in or appellate, before the courts. from discussing any of them since the question in this case is not. as to the sufficiency of the interest or the appellant to appeal, or whether upon any reasonable conception of the proceedings, whether original However, we have refrained facts, he could be regarded as a person aggrieved. However broadly we may wish to conceive the expression "person aggrieved , we fail to see, on the facts disclosed, how the appellant falls into that, category or on the record what, interest the appellant, whose already come to an end has order of forfeiture. services on the vessel had that could be affected by the For these reasons we uphold the preliminary objection. Durdunis. We strike out Lhe appeal. filed by Mr. llias H. Goburdhun A. M. Silungwe J. A. Ayoola J. i1. Ltu 7