Automated Summary
Key Facts
The Supreme Court of Seychelles ruled on a case involving Brijesh Jivan (Petitioner) and the Financial Services Authority (Respondent). The Petitioner, a compliance officer and non-executive director of Aronex Corporation Limited, had his 'fit and proper' status and directorship revoked by the Respondent in January 2021. The revocation was based on alleged failures to demonstrate probity, competence, and sound judgment regarding the company's compliance with financial regulations. The Petitioner argued that the decision was made without proper investigation or opportunity to defend himself, as the issues arose from third-party activities outside Seychelles (G4 Shift Services Ltd) which were beyond his control. The court found the Respondent's decision illegal, unfair, and in breach of natural justice, ordering the revocation to be quashed and the Petitioner's status and directorship restored.
Issues
- The court considered whether the Financial Services Authority's decision to revoke the Petitioner's fit and proper status and directorship was disproportionate, excessive, and unfair. The Petitioner argued that his role was limited to Seychelles and that the complaints were about third parties outside the jurisdiction. The court found the decision lacked proper investigation and was based on unproven allegations.
- The court examined if the Petitioner was denied a fair opportunity to present his case before the revocation decision was made. It was determined that no proper hearing or investigation occurred, violating principles of natural justice by relying on uninvestigated complaints.
- The court assessed the legal basis for revoking the Petitioner's status, noting that he was not a licensee but a director and compliance officer. The decision was found illegal as it was ultra vires the Securities Act and lacked applicable criteria at the time.
Holdings
- The court determined the revocation was disproportionate, excessive, and unfair. The Petitioner's role was limited to Seychelles operations, and he could not reasonably be held responsible for actions of third-party sub-agents outside his jurisdiction.
- The court ruled the Respondent's decision was irrational and unreasonable under Wednesbury and Ridge v Baldwin tests, as it lacked logical basis and failed to conduct proper quasi-judicial hearings despite legal obligations to ensure fairness.
- The court found the Respondent's decision to revoke the Petitioner's fit and proper status and non-executive directorship was illegal, unfair, and breached fundamental principles of natural justice. The decision was based on uninvestigated complaints and failed to provide the Petitioner with an opportunity to present his case.
- The court issued a writ of Certiorari to quash the revocation and a writ of Mandamus to restore the Petitioner's status and directorship. Costs were awarded to the Petitioner.
Remedies
- I award cost to the Petitioner.
- I grant a writ of Mandamus ordering the Respondent to restore the Petitioner's fit and proper status and ability to serve as director and non-executive director of Aronex Corporation Limited.
- I grant a writ of Certiorari quashing the decision of the Respondent to revoke the fit and proper status and the directorship of the Petitioner;
Legal Principles
- The court applied the Wednesbury reasonableness test and proportionality principle to assess the Respondent's decision. It found the revocation of the Petitioner's status was disproportionate and irrational, as the Respondent failed to provide a proper hearing and acted without sufficient legal basis (ultra vires the Securities Act).
- The decision was deemed a breach of natural justice because the Petitioner was not given adequate opportunity to present his case before the revocation of his status. The court emphasized the necessity of fair procedures in quasi-judicial decisions.
Precedent Name
- Vidot v Minister of Employment and Social Affairs
- Ridge v Baldwin
- Lotus Holding Company Ltd v Seychelles International Business Authority
- Seychelles International Business Authority v Jouanneau & Anor
- Seychelles International Business Authority v Agnes Jouanneau & Stella Port-Louis
- Associated Provincial Picture Houses v Wednesbury Corporation
- Georges v Electoral Commission
- Lotus Holdings Company Limited v Seychelles International Business Authority
Cited Statute
- Financial Services Authority Act 2013
- Securities Act 2007
- Companies Act 1972
- International Corporate Services Providers Act 2003
Judge Name
G Dodin
Passage Text
- However, that does not absolve it from the duty to act fairly and to come to decisions that would be logical and based on proven facts rather than on uninvestigated complaints.
- I find the decision to revoke the fit and proper status and the non-executive directorship of the Petitioner to be illegal and unfair and in breach of the fundamental principles of natural justice.
- I find that the Petitioner was issued with several letters and directives but never allowed to present his case or challenge the decisions being taken in respect of himself or his directorship.