Vijay Construction (Proprietary) Limited v. Eastern European Engineering Limited and Attorney General

At a glance

Parties

Vijay Construction (Proprietary) Limited v. Eastern European Engineering Limited (EEEL) and the Attorney General of Seychelles

Case no.

Constitutional Court CP 10/2020, [2020] SCSC 881; Court of Appeal SCA CL 07/2020, [2021] SCCA 30

Court

Constitutional Court of Seychelles; Seychelles Court of Appeal

Underlying award(s)

ICC final award of 14 November 2014 (seat Paris), entered as a judgment by the High Court of England and Wales (Cooke Order of 18 August 2015)

Forum and rules

Constitutional petition under Articles 19(7) and 46 of the Constitution of Seychelles

Treaty

None (New York Convention 1958 discussed; in force for Seychelles from 3 May 2020)

Court

Constitutional Court: Dodin J (presiding), Andre J, Pillay J. Court of Appeal: Twomey JA, Tibatemwa-Ekirikubinza JA, Dingake JA

Sector

Construction (hotel)

Outcome

The petition was dismissed as already decided and an abuse of process (24 November 2020). The appeal against that ruling was dismissed with costs (13 August 2021).

Amount

No amounts stated. Costs were awarded against Vijay at both levels.

The dispute

In 2011 EEEL and Vijay Construction, both Seychelles companies, signed six contracts for construction work on the Savoy Resort and Spa in Seychelles. The contracts provided for ICC arbitration seated in Paris. The arbitral tribunal ruled largely in EEEL's favour in an award of 14 November 2014. The Seychelles Court of Appeal refused direct enforcement of the award because Seychelles was not then a party to the New York Convention. EEEL then obtained English court orders entering judgment in terms of the award, and the Seychelles Supreme Court declared those orders enforceable under the Reciprocal Enforcement of British Judgments Act (REBJA) in a judgment of 30 June 2020. Vijay then brought a constitutional petition. It argued that the trial judge had breached its right to a fair hearing under Article 19(7) by relying on Seychelles' accession to the New York Convention, which happened after argument closed, without hearing the parties on that point. The respondents raised preliminary objections: Article 46(3), res judicata and abuse of process.

Key holdings

1. The fair-hearing question had already been dealt with by a competent court. On Vijay's appeal (SCA 28/2020), the Court of Appeal found that the trial judge's remarks on the New York Convention were obiter and did not affect Vijay's rights. The petition was therefore barred, and the preliminary objections were upheld. Constitutional Court ¶¶ 12–15, 19–20
2. The petition was an abuse of the court process. Granting the orders sought would in effect reverse the Court of Appeal, ignore the hierarchy of the courts and give Vijay "a second bite at the cherry". Constitutional Court ¶¶ 16–19
3. On appeal, the Court of Appeal held that its earlier judgment had addressed Vijay's right to a fair hearing. That judgment found that the ratio of the Supreme Court decision was that the UK Orders met the conditions of section 3(2)(a) to (f) of REBJA; the remarks on the New York Convention were obiter. Court of Appeal ¶¶ 23–27
4. Because the trial decision did not rest on the New York Convention, Vijay's lack of a chance to address Seychelles' accession did not breach its right to a fair hearing. A litigant is entitled to be heard only on issues that have a bearing on its rights. Court of Appeal ¶ 28
5. All three grounds of appeal came down to one question: whether the relief sought had been adequately dealt with by a competent court, given Article 46(3). The appeal was dismissed with costs. Court of Appeal ¶ 29; Order

Procedural history

1. 12 September 2012EEEL refers the disputes under the six contracts to ICC arbitration in Paris.
2. 14 November 2014Final arbitral award, largely in EEEL's favour. Vijay's application to set it aside fails before the French Cour d'Appel; Vijay lets its application to the Cour de Cassation lapse.
3. 18 August 2015Cooke J of the High Court of England and Wales grants EEEL leave to enforce the award and enters judgment in its terms. Vijay applies on 23 October 2015 to set the order aside; Cockerill J dismisses the application.
4. 13 December 2017The Seychelles Court of Appeal reverses Robinson J's decision of 18 April 2017. It holds the award unenforceable in Seychelles because Seychelles was not a party to the New York Convention.
5. 3 May 2020The New York Convention comes into force for Seychelles.
6. 30 June 2020The Supreme Court (Carolus J, CS 23/2019) declares the two English orders enforceable in Seychelles under REBJA.
7. 16 August 2020Vijay files its constitutional petition alleging a breach of Article 19(7).
8. 2 October 2020The Court of Appeal dismisses Vijay's appeal against the Supreme Court judgment (SCA 28/2020).
9. 24 November 2020The Constitutional Court upholds the preliminary objections and dismisses the petition with costs.
10. 13 August 2021The Court of Appeal dismisses Vijay's appeal from the Constitutional Court with costs.

Tribunal, counsel and experts

Decided by

• C G Dodin Judge, Constitutional Court of Seychelles (presiding)
• S Andre Judge, Constitutional Court of Seychelles
• L Pillay Judge, Constitutional Court of Seychelles
• Lillian Tibatemwa-Ekirikubinza Judge, Seychelles Court of Appeal (wrote the judgment)

For the claimant

Bernard Georges

For the respondent

Attorney General · Alexandra Madeleine

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Keywords

• Seychelles
• New York Convention
• constitutional petition
• right to a fair hearing
• Article 19(7)
• Article 46(3)
• res judicata
• abuse of process
• obiter dictum
• ratio decidendi
• Reciprocal Enforcement of British Judgments Act
• REBJA
• enforcement of foreign arbitral award
• ICC arbitration
• Savoy Resort and Spa
• construction
• Cooke Order

Summary generated with AI from the published documents — refer to the award for the authoritative text.