1

[1] The Applicant, the Island Development Company Limited (IDC) has filed a petition to this

Court for the court to exercise its jurisdiction to judicially review a decision of the Marine

Accident Investigation Board after it investigated and produced a report of investigation

into the accident involving the landing craft, the Sea Horse. On 25th August 2018 the vessel

caught fire whilst anchored off the island of Coetivy.

VIDOT J

RULING

Application For Leave To Proceed For Judicial Reviewvia written submission16January 2020

Summary:Heard:Delivered:

Neutral Citation: Island Development Company v Marine Accident Investigation Board MA 90of 20 19 delivered on 16 January 2020 [2020]SeSe 3rl

Before: Vidot J

RespondentMARINE ACCIDENT INVESTIGATION BOARD(rep. by George Thatchett)

Applicant~ANDDEVELOPMENTCO~ANY(rep by Basil Hoareau)and

Reportable[2020] sese 3.~MA 90/2019Arising in Me 19/20 19

IN THE SUPREME COURT OF SEYCHELLES

2

(vi) That the Applicant does not have locus standi in the matter and that there is no

actual/anticipated or likely contraction of rights of the Applicant giving cause of

action for the Applicant for Judicial Review.

(v) The MAIB has immunity from legal proceedings as it is not liable for any act or

omission done or made by it i.: good faith under or for the purposes of the Merchant

Shipping Act;

(iv) That the Applicant has not produced a certified copy of any order or decision sought

to be canvassed and furthermore there is no decision in this matter to be judicially

reviewed;

(iii) The Applicant has no sufficient interest in the matter of the Petition;

(ii) That the MAIB is not amenable to the supervisory jurisdiction of the court as it is

not a subordinate Court, Tribunal and adjudicating Authority ,.

(i) The Applicant is not presenting the Application in good faith and furthermore it

does not have an arguable case;

[4] The Respondent opposes the application and on the following grounds;

(iii) that the Applicant has locus standi in the matter

(ii) that the application is being brought in good faith; and

(i) pursuant to Rule 6(1) of the Rules the Applicant has sufficient interest in the subject

matter;

[3] In making the application the Applicant avers that;

[2] Together with the petition the Applicant filed an application for leave to proceed with the

petition in terms with Rules 5 and 6 of the of the Supreme Court (Supervisory Jurisdiction

Over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules ("the Rules").

3

[6] The Respondent has advanced this ground based on their interpretation of Article 125(1)(c)

of the Constitution which provides the Supreme Court shall in addition to the powers

conferred by the Constitution have "supervisory jurisdiction over subordinate courts,

tribunals and adjudicating authorities "it is further argued by the Respondent that

Article 137 of the Constitution provides for the establishment of courts or tribunals which

MAID not being amenable to supervisory jurisdiction of the court

"the requirement that leave is obtained before substantive application can be made for

reliefby way of judicial review is designed to operate as afilter to exclude cases that are

unarguable. Accordingly an application for leave is normally dealt with on the basis of

summary submissions. If an arguable point emerges, leave is granted and extended

argument ensues upon the hearing of substantive application

[5] An application for judicial review undergoes a process comprising 2 stages; the leave stage

and the merits stage. These are governed by the Supreme Court (Supervisory Jurisdiction

over Subordinate Courts, Tribunal and Adjudicating Authority) Rules 1995. The rules

applicable to the leave stage are couched in Rules 2 to 6. An application for leave is made

ex-parte to a Judge who may determine whether or not to grant leave. Therefore, it is a

requirement that court filters the application to satisfy itself that prima facie reasons exist

in order to grant leave. Normally the Judge should grant it forthwith ifit is arguable. Ifnot,

it is rejected and it falls in between, an inter partes hearing is held. In fact the leave stage

is the stage whereby the court weeds out any unarguable case. It makes no allowance for

applications for busy bodies. It assesses whether the Applicant is in good faith and has

locus standi, i.e sufficient interest in the matter. The concept ofarguability also serves as a

filter against useless and frivolous application. Leave is not granted unless the Applicant

demonstrates an arguable point. In R v Secretary of State for Home Department, ex­

parte Cheblak [1991J 1 WLR 980 Lord Donaldson stated as follows;

Application for Leave

(vii) The grounds raised in the petition are frivolous and vexatious and the same ought

not be subject of Judicial Review.

4

[9] Therefore the first question to be determined in whether the MAIB fits the definition of

adjudicating authority and if that question is the affirmative whether it holds a judicial or

[8] Section 171(2) provides that for the function of the MAIB in circumstances where the

person has died or suffered serious injury and that the person who held the inquiry is under

an obligation to make a report in writing of the findings to the Minister who may make a

copy of the report available. The argument is that such function does not extend to a

judicial or quasi-judicial function. This, it is submitted is because the report of the findings

is made to the minister. Counsel for the Applicant referred to Wikipedia for a definition of

adjudicating authority. It defines adjudicating authority as "the legal process by which an

arbiter or judge reviews evidence and argumentation} including any legal reasoning set

forth by opposing parties or litigants to come to a decision which determines the rights and

obligations between the parties involved. "

[7] The Respondent referred to Article 119 of the Constitution that establishes the judicial

structure. In fact the Article provides that the Judiciary shall consist of (a) the court of

appeal, (b) the Supreme Court and (c) such other subordinate courts or tribunals established

pursuant to Article 137. That Article provides for the establishment of courts or tribunals

that are subordinate to the Courts of Appeal and the Supreme Court. Therefore, the

Respondent's argument is that the MAIB is not a body or authority established by law

which performs judicial or quasi-judicial function in order to qualify itself as an

adjudicating authority. Counsel for the Respondent further argued that the functions of the

MAIB are laid down in sections 170 and 171 and the amended section 227(1A) of the

Merchant Shipping Act. Section 170(2) and section 171(2) provide that one of the major

function of the MAIB is to undertake an inquiry into circumstances surrounding the death

or serious injury, unless the Minister otherwise instructs. Furthermore, it provides that no

such inquiry shall be held where an inquest from a coroner is to be, or so required to be,

held under the laws of Seychelles.

are subordinate to the Court of Appe.il and the Supreme Court. Therefore they submit that

the MAIB which is established under section 227 of the Merchant Shipping Act is not a

subordinate court or tribunal subordinate to the Supreme Court.

5

A reading of that Article adjudicating authority is said to include a body or authority which

performs a judicial or quasi judicial function and therefore suggests that in defining

adjudicating authority the list of such body or authority is non exhaustive.

"for the purpose of clause (l)(c) adjudicating authority includes a body or authority

established by law which performs a judicial or quasi judicial function"

[12] Considering the above, it suggests that MAIB has a quasi judicial function but is it a

adjudicating authority? In order to provide an answer to this question, it is necessary to

refer to Article 125 (7) of the Constitution which provides;

(d) After the holding of its inquiry its mandate is to make a report of its findings in writing.

(c) Require the production of any document which in its opinion is relevant to an inquiry;

and

(b) Summon any person to appear before it; and

(a) Power to go on board a ship at any time at inspect the ship and article onboard the ship;

[11] I tend to subscribe that the argument that the MAIB in discharging its function was

discharging a quasi judicial function. The MAIB has power to carry out inquiry and

investigation. That is provided under section 171 (1) of the Merchant Shipping Act which

includes

[10] The Petition holds opinion that is totally contrary to the Respondent. Counsel submits that

the MAIB is indeed an adjudicating authority and that it was carrying out a quasi judicial

function in carrying out the inquiry, making a finding and submitting a report to the

Minister.

quasi judicial function. Obviously the Respondent's position as has always been argued is

that it is not because as submitted it does not adjudicate on rights and obligations of any

party and that its mandate is merely to enquire into any marine casualty and makes a finding

to the Minister. It is submitted that there is no order or decision from the MAIB.

"the concept of "good faith' is not to be considered in contra-distinction with the concept

of "bad faith ". It involves the notior of "uberrima fides" to the extent that the Applicant

when filing the petition should have had an "arguable case ". That is an objective

6

[16] In a an application for judicial review upon screening the application, the Court at the leave

stage may allow or reject the application on consideration of 2 matters. The first is locus

standi and once the Applicant is found to have sufficient interest then the Court considers

the second test which is good faith. When addressing good faith, the Applicant must show

that the issue(s) it raises in the application is/are arguable. The Applicant must demonstrate

by his Notice of Motion and affidavit and materials attached thereto that the case he makes

on the material produced is a genuine cause as opposed to frivolous one. In Omaghomi

Belive v Government of Seychelles & Or [2003J SLR 140 good faith was described thus;

Locus Standi - Good Faith

[15] Based on the above one can safely conclude that the MAIB falls within the definition of

adjudicating authority discharging ajudicial function

In the same book at p218 the following is stated; "Where the authority has to act

exclusively upon the evidence, it is ajudicial decision, obviously, but because the authority

is not a court, the decision is to be called quasi judicial.

[14] Counsel for the Applicant referred to Durga Das Basu's book, 'Administrative Law' where

at page 214 it is stated that "if law requires that an authority before arriving at a decision

must make an inquiry, such requirement of law make the authority a quasi judicial

authority. Authority which acts quasi judicially is required to act according to rules

whereas authority which acts administratively is dedicated by policy and expediency. The

book goes on to state that "Power to summon witnesses, enforce their attendance, examine

them on oath, discovery and production of documents indicate quasi judicial function. "

[13] The Applicant cited the case of Cable & Wireless Ltd v Minister of Broadcasting and

Telecommunications and the Government of Seychelles MC [2018J SCSC42 /2014

whereby Chief Justice Dr. Twomey recognised that an administrative authority can be an

adjudicating authority.

[20] The Respondent raised objection further based on the fact that the Applicant did not attach

with the Application a certified copy of the impugned Report of the MAIB.

7

Failure to produced certified copy

[19] I find that the Applicant has interest in the matter which means that they have locus standi.

In fact in regards to locus standi the Applicant at this stage needs only show that they have

sufficient interest in the matter.

[18] In any case at this stage the Applicant needs only establish that they has locus standi,

sufficient in the matter and that the application is not merely frivolous and vexatious. I find

that the Petition indeed has arguability. I also find that the Petition is neither frivolous nor

vexatious. Good faith is established if it is found that the Applicant has an arguable case

[17] The Respondent submitted that the Applicant does not have sufficient interest in the matter.

It is argued that the Applicant is merely relying on part of inquiry that MAIB conducted,

on the ground that the vessel sunk in the area around Coetivy Island and did call at any port

in Seychelles. Counsel for the Respondent further argued that MAIB has got a mandate to

conduct an investigation in the circumstances of the case and that conducting an inquiry is

the purpose of the MAIB under the Merchant Shipping Act. He added that section 227(1 A)

of the Merchant Act Shipping Act provides that the MAIB is "to examine and investigate

all types of marine casualties, accidents, incidents on board Seychelles flag ship

worldwide. " He submits that the Applicant has not shown in what way he is aggrieved by

the report of MAIB submitted. With respect I am of the opinion that to some extent this is

a matter to be established at the hearing for judicial review. I have also perused the Petition

and find that the matter being canvassed goes beyond exploring the fact that the boat, Sea

Horse, sunk off Coetivy and did not call at any port in Seychelles. This is evidenced in

Clauses II, 12 and 13 of the Petition.

See Cable and Wireless (Seychelles) Ltd. v Minister of Finance and Communications

& Ors CS377 of 1997.

consideration which has to be assessed by court in deciding whether leave to proceed

should be granted or refused. "

8

Findings

[22] The Respondent raised objection that the Respondent has been granted immunity from

prosecution in terms with section 239(2) of the Merchant Shipping Act. However, it does

not appear that the Respondent has addressed that issue in its written submission. That

statutory provision grants protection from criminal and civil liability to the members of the

Respondent, However, that protection does extend that immunity to its decision. The

Respondent relied on Chio v Tave [2011] SLR 57 in support of this position.

Immunity From Legal Proceedings

On appeal in Tornado Trading & Enterprise EST v PUC and Procurement Review

Panel CA SCA 35/2018 (delivered on 28th November 2018) the Court of Appeal did not

hold with me and decided to admit the impugned decision which had not been certified.

Therefore jurisprudence, although just persuasive and none binding has been established.

Therefore in these circumstances I shall allow the impugned

[21] In President Danny Faure v Nicholas Prea, Speaker of the National Assembly MA 126

of 2019 I mentioned that I am one who believes in strict application of rules of procedure.

I feel that rules are there to be observed and that litigants should be sanctioned for failure

to follow them. In the case of Ex-parte Tornado Trading & Enterprise EST. XP 150 of

2018 (decided on 04th July 2018) this Court applied the rules of procedure strictly. That

was on an application for leave to proceed in a case of Judicial Review. I decided to reject

leave to proceed inter alia because of procedural irregularity similar to the present case. I

cited Viral Dhanjee v James Alix Michel SCSC CP 03/2014 wherein it was held that

"applicants might be hurt when petitions or applications are dismissed due to legal

technicality. But in the long run, rule of law will be hurt, if we allow procedural

irregularities to be continued. " I also cited Ratnam v Cumarasamy [1964] 3 ALL ER

933 where it was held that "rules of court must prima facie, be obeyed, and in order to

justify a court extending the time which some step in procedure require to be taken, there

must be some material on which the court can exercise its discretion

9

Vidot J

Signed, dated and delivered at lie du Port 16 January 2020

[23] Finally, I find that the Applicant has locus standi and good faith in bringing this action.

Therefore, I allow the Application and leave is hereby granted to proceed with this matter.