A. Appeal from a decision of a Judge sitting at Chambers
An appeal from an order of a Judge sitting at Chambers lies with the appellate jurisdiction of the Supreme Court as governed by Sections 69 and 76A CA 1945 which provide as follows:
69. Appellate jurisdiction of the Supreme Court
(1) Subject to any other enactment, the Supreme Court shall have full power and jurisdiction to hear and determine all appeals, whether civil or criminal, made to the court from –
(a) a judge in the exercise of his original jurisdiction;
(b) –
(c) the Bankruptcy Division;
(d) the Registrar;
(e) the Intermediate Court;
(f) the Industrial Court;
(fa) the Children’s Court;
(g) a Magistrate;
(h) any other court or body established under any other enactment.
(4) (a) Where, pursuant to any enactment, a person may appeal to the Supreme Court against a decision of a Court or body specified in subsection (1), the notice of appeal shall contain a warning to the party on whom it is served to the effect that he shall, if he wishes to resist the appeal, comply with paragraph (b).
76A. Time for appeal
(1) Any person who wishes to appeal to the Supreme Court against any order, decision or judgment of a judge at Chambers in any matter in which an appeal lies, shall, unless otherwise expressly provided, lodge his appeal in the Registry and serve notice of the appeal on the other party or parties to the case within 21 days from the date of the order, decision or judgment.
(2) Section 69 (4) shall apply to an appeal under subsection (1).
The scope of an appeal under section 69 CA 1945 has been considered by the Judicial Committee of the Privy Council in Cono Cono and Co. Ltd v Veerasamy & Ors 2017 UKPC 11:
The Judicial Committee first pointed out that there must be some statutory basis in order to establish a right of appeal by any party. The Judicial Committee then explained that section 82 of the Constitution, which applies only to appeals from a “subordinate court”, would not create a right of appeal against a decision of the Judge in Chambers since the latter is not for that purpose a subordinate court. The Judicial Committee went on to state that section 69(1) of the Courts Act is the only possible basis for any right of appeal against a decision of a Judge of the Supreme Court. But the only sub-paragraph of that sub-section which authorises such an appeal is (a) “which is limited to an exercise by the Judge of his original jurisdiction”.
B. APPEAL UNDER SECTION 3 OF THE CCAA 1963
Section 3 CCAA 1963 provides:
3. When appeal lies
(1) Subject to this Act and to any rules of Court made under it, any party aggrieved by any judgment or order of a judge sitting alone in the exercise in Court of his original civil jurisdiction may appeal from such judgment or order to the Court of Civil Appeal.
(2) No appeal shall lie, except by leave of the Judge –
(a) from an order as to costs only;
(b) from, an order made by consent of the parties; or
(c) from an interlocutory judgment or order.
Section 3 deals with appeals against a judgment or order of a Judge sitting alone in the exercise in Court of his original civil jurisdiction and further specifies that leave of the Judge must be obtained to appeal against the type of matters envisaged under subsections 2(a), (b) and (c).
C. EX PARTE APPLICATION- SECTION 6 OF THE CCAA 1963
The CCAA 1963 provides under section 6, a mechanism referred to as a similar purpose application, which seems to have recently found favour with applicants who are aggrieved by the decision of the Learned Judge in Chambers on ex parte applications. The question that arises is, does section 6 CCAA 1963 cater for a remedy by way of a similar purpose application for all types of ex parte applications, (which have been refused /set aside by a Judge sitting at Chambers?
Section 6 CCAA 1963 provides:
6. Ex parte application
Where an ex parte application has been refused by the judge, an application for a similar purpose may be made to the Court of Civil Appeal ex parte within 10 days from the date of the refusal or within such enlarged time as the judge or the Court of Civil Appeal may allow.
It is apposite to note that section 6 refers to “the judge”. Who is “the judge” being contemplated by that provision?
As early as 1977, the Court of Civil Appeal was called upon to rule on the construction of section 6 in New Goodwill Co. Ltd vs Tan Yan 1977 MR 186. Although the Court of Civil Appeal did not rule upon the construction of section 6, it was argued on behalf of the respondent in that case that:
“all that provision meant was that in any case where an applicant was allowed to move the judge ex parte he could apply in the same way to the Court in the event of a refusal by the judge.”
Subsequently, in Bissessur v Irrigation Authority 1993 SCJ 170, the Court of Civil Appeal observed that:
“under section 6 of the Court of Civil Appeal Act, the Court of Civil Appeal may only entertain an ex parte application where such an application has been refused by the Supreme Court consisting of a Judge sitting alone.”
The Court went on to further state that:
“There may be, of course, instances where a Judge sitting alone to hear an ex parte application rejects it on the ground that it does not, either in law or on the facts alleged, justify the grant of leave to proceed further. As already noted, the aggrieved applicant may, under these circumstances, either appeal against the judgment under section 3 of the Court of Civil Appeal Act or else make a fresh application ex parte under section 6 of the Act to the Court of Civil Appeal.”
A string of authorities subsequently confirmed that the Court of Civil Appeal entertained similar purpose applications under section 6 where a Judge in Chambers has set aside an ex parte application.
D. IS SECTION 6 LIMITED IN SCOPE?
The question of what is the scope of a section 6 application was raised in Joseph MBOKOTWANA v The Commissioner of Prisons 2010 SCJ 310 where the Court of Civil Appeal rejected the argument of Learned Counsel for the applicant that since the Learned Judge at Chambers had refused the ex parte application made for the issue of a Writ Habeas Corpus, the applicant was, pursuant to section 6 CCAA 1963, entitled to make an application for a similar purpose to the Court of Civil Appeal. The Court favoured the submission of Learned Counsel for the Respondent that the application referred to in section 6 CCAA 1963 should be limited to situations where leave had been refused by the Judge sitting alone in the exercise in Court of his original civil jurisdiction under section 3(2) CCAA 1963 in relation to (a) an order as to costs only; (b) an order made by consent of the parties; or (c) an interlocutory judgment or order.
The Court nevertheless (likely because of the exceptional circumstances of that case) determined the application, setting it aside with costs.
In Carclub Ltd & Anor v Salim Auto Co Ltd & Anor 2019 SCJ 95 which was a section 6 application following the decision of the Judge in Chambers not to grant an injunctive relief made on an ex parte basis, the Court of Civil Appeal considered the application on its merits and set it aside.
The same approach adopted in Carclub (supra) was followed in S. Hawoldar V D.D. Chabaud & Anor 2020 SCJ 163 where an application under section 6 was made after the Applicant was aggrieved by the decision of the Learned Judge in Chambers declining to grant leave for attachment proceedings. The Court of Civil Appeal held:
“The applicant having failed to establish that there is a creance certaine et exigible, the ex parte application is set aside.”
More recently, in Neon Liberty Emerging Markets Fund LP v African Tower Investment Limited 2022 SCJ 177, the Court of Civil Appeal stated as follows:
“Moreover, we agree that the present application and the original application, both made ex parte, were procedurally flawed. In the light of the nature of the prayer sought against the respondent, we are of the view that the original application should have been an inter partes one before the Court (defined in the Companies Act as the Bankruptcy Division of the Supreme Court). It goes without saying that had the applicant followed the proper procedure, it would not have been open to it to enter the present application ex parte for a similar purpose under section 6 of the Court of Civil Appeal Act. For the above reasons, we find no merit in the present application. We accordingly dismiss the application with costs.”
This is all the more interesting inasmuch as the Court of Civil Appeal, despite having ultimately concluded that “had the applicant followed the proper procedure, it would not have been open to it to enter the present application ex parte for a similar purpose under section 6 of the Court of Civil Appeal Act”, went on to consider the underlying merits of the application and set it aside.
In all of the above cited cases, the Court of Civil Appeal seems to have adopted an approach that favours
(a) entertaining such applications and
(b) determining these applications on the merits.
When the Court of Civil Appeal determines the merits of a section 6 application made before it following a decision of a Judge in Chambers refusing an ex parte interim relief, an aggrieved party must resort to the Judicial Committee of the Privy Council (“JCPC”) to challenge the decision of the Court of Civil Appeal. What would in the ordinary course of things have been challenged (the first application made ex parte) by way of an appeal before the Appellate Jurisdiction of the Supreme Court has now ended up before the JCPC, with consequences which this article will not explore.
E. RECENT PRONOUNCEMENTS OF THE COURT OF CIVIL APPEAL
Recent decisions of the Court of Civil Appeal seem to have reignited the debate about the scope of a section 6 CCAA 1963 application. In Sooltan S. v The Registrar of Civil Status 2022 SCJ 153, the main issue was whether there is a right of appeal to the Supreme Court, in the exercise of its appellate jurisdiction, against an order of the Judge in Chambers upholding a decision of the Registrar of Civil Status under section 22(4) of the Civil Status Act. The Court of Civil Appeal reaffirmed the established legal principle in Cono Cono (supra) and held that section 69(1)(a) of the Courts Act provides that an appeal will lie to the Supreme Court from a Judge in Chambers only where he is exercising an original jurisdiction and that the appellant cannot avail himself of any right of appeal to the Court of Civil Appeal against the decision of the Judge in Chambers under section 69(1)(a).
In Gokool O. & Anor v The Development Bank of Mauritius 2022 SCJ 257, the Court of Civil Appeal has intervened to grant the orders prayed for in the similar purpose application made under section 6 and held:
“Upon considering the affidavit before us and the documents in support thereof, we are of the considered view that the Learned Judge was wrong in setting aside the application. The learned Judge failed to give due consideration to the following factors which may be highly relevant for the purpose of determining whether it would be just and fair to grant the application…”
The Court quashed the Learned Judge’s decision setting aside the first application and ordered that an interim order in the nature of an injunction be issued accordingly, and ordered that the matter be remitted to the Learned Judge in Chambers to determine whether the above orders should be made interlocutory and/or for any other order to be made. The application was otherwise set aside.
A similar approach was adopted by the Court of Civil Appeal in Stanford Asset Holding Limited v Keystone Properties Ltd (unreported), where the applicants applied for a freezing order against the respondents before the Honourable Judge in Chambers but was refused same, whereby an appeal under section 6 was thereafter made. The Court of Civil Appeal similarly ordered that an interim order be issued, and for the Respondents to show cause before the Judge at Chambers why the said orders should not be made interlocutory. The ex parte application was otherwise set aside with no order as to costs.
These two recent pronouncements of the Court of Civil Appeal suggest that where the Learned Judges of the Court of Civil Appeal delve into the merits of an application under section 6, and find that on the facts, there is meritto grant the orders prayed for in the initial ex parte application before the Learned Judge sitting at Chambers, the Learned Judges of the Court of Civil Appeal will intervene to grant the interim orders prayed and remit the matter back to the Judge in Chambers for a final determination on the merits.
F. A “REVIEW” OF THE DECISION OF THE JUDGE SITTING AT CHAMBERS
The approach adopted by the Court of Civil Appeal suggests that a section 6 application is akin to a review of the decision of the Learned Judge in Chambers taken on an ex parte application. That review would yield one of two outcomes:
- a confirmation of the decision of the Learned Judge in Chambers setting aside the first ex parte application by the setting aside of the section 6 application; or
- the issue of the urgent remedies prayed for in the first application and repeated in the section 6 similar purpose application with an order directing the Judge in Chambers to make a final determination of the matter, which in effect means to either discharge the interim order or make an interlocutory order after having heard the parties on the merits of the application.
G. TWO SCHOOL OF THOUGHTS
Are aggrieved parties trying to circumvent appealing against a decision of a Judge in Chambers on an ex parte application by the ordinary way of appeal (as provided under sections 69 and 76A CA 1945) to the Supreme Court by resorting to a section 6 application before the Court of Civil Appeal?
(i) MBOKOTWANA
On the one hand, the first school of thought favours the approach adopted in Joseph MBOKOTWANA (Supra) where the Court agreed that the application referred to in section 6 of the Act “should be limited to situations where leave had been refused by the Judge sitting alone in the exercise in Court of his original civil jurisdiction under Section 3(2) of the Act in relation to (a) an order as to costs only; (b) an order made by consent of the parties; or (c) an interlocutory judgment or order.” The argument to restrict the scope of section 6 CCA Act is that the Court of Civil Appeal would otherwise find itself inundated with similar purpose applications for anything, including for example, the refusal of Judge in Chambers to grant an ex parte application for a provisional custody.
(ii) GOKOOL
On the other hand, the second school of thought favours the approach adopted in Gokool (Supra) and argues that this is the way forward in the wider interest of justice. The benefit of this approach is that there must be a mechanism available to aggrieved parties where the situation calls for the urgent intervention of the Court to protect their rights after a Judge in Chambers has ‘wrongly’ set aside an ex parte application which ought to have been granted/successful. That argument is buttressed by the fact that the Court of Civil Appeal is not sitting on appeal of the decision of the Learned Judge in Chambers but merely ‘reviews’ that decision ‘in the interest of justice’.
The issue with the second school of thought lies in the fact that the Court of Civil Appeal did not sit ‘on appeal’ of the decision of the Judge sitting at Chambers. Therefore, referring the matter back to the Judge in Chambers may yield to undesired effects. Additionally, a decision to remit the case back to the Judge at Chambers ought to have been taken by the Appellate jurisdiction of the Supreme Court after a respondent would have been given an opportunity to resist an appeal within the statutory delay.
H. DAMNED IF YOU DO; DAMNED IF YOU DON’T
What then can the aggrieved party do to obtain a rapid remedy against the decision of the Judge in Chambers on an ex parte application which has been declined?
The aggrieved party must necessarily appeal the decision of the Judge in Chambers on an ex parte application under sections 69 and 76A CA 1945 but at the same time, could explore making a motion to the Chief Justice for that appeal to be scheduled for an extremely urgent hearing. This works often times in theory only; however, the reality is likely to be that the respondent would object, hence leading to further litigation, more legal costs and a ding-dong battle with no immediate resolution, and defeating the purpose of an urgent hearing of the appeal. Rushing to a section 6 CCAA 1963 similar purpose application may result in a challenge that the scope of section 6 does not cater for the Court of Civil Appeal to revisit (or review) the decision of the Judge in Chambers on an ex parte application.
I. THE JUDGE AS A LEGISLATOR
In our rapidly changing world, the task of judicial renovation has necessarily increased. In other words, the courts are engaged in the process of adjusting the law to new conditions. In so doing they are creating a new system which will presumably be more in keeping with the principles of social welfare than the one it displaces².
The recent judicial activism in matters dealing with section 6 CCAA 1963 seems to suggest that the Court of Civil Appeal has created sufficiently robust precedents to ensure that justice prevails for those aggrieved parties whose applications for an urgent interim order have been wrongly set aside with no immediate remedy and severe prejudice being caused to them.
With more and more ex parte applications being set aside rather than summons being issued, there was an urgent need for an urgent recourse to be obtained by those whose applications had merits. The Court of Civil Appeal has created a body of precedents for applications made under section 6 to cater for this injustice and provide rapid remedies to deserving applicants. The law must adjust itself to the changing environment and in the end, is it not the duty of the courts to keep the law up to date by a continual restatement³.
For further information, please contact:
Yahia Nazroo, Partner, Appleby
ynazroo@applebyglobal.com
1. The term “Judge sitting at Chambers” is also commonly referred to as “Judge in Chambers”
2.Judicial Law Making and stare decisis F.R.Aumann The Ohio State University, Article 3 Kentucky Law Journal
3.Judicial Law Making and stare decisis F.R.Aumann The Ohio State University, Article 3 Kentucky Law Journal
