IN THE COURT OF APPEAL OF SEYCHELLES
Reportable
[2024] (18 December 2024)
SCA 16/2024
(Arising in MC 57/2024)
In the Matter Between
Frank Elizabeth Appellant
(Attorney for Gianni Bordino and Deborah Bordino)
And
Commissioner of Police Respondent
(rep. by Ms. Nissa Thompson)
Neutral Citation: Elizabeth v Commissioner of Police (SCA 16/2024) [2024] (Arising in MC 57/2024) (18 December 2024)
Before: De Silva, Sharpe-Phiri, Sichinga, JJA
Summary: Habeas Corpus Application under Rule 4 of the Criminal Procedure (Habeas Corpus) Rules, 2015
Heard: 3 December 2024
Delivered: 18 December 2024
ORDER
The Habeas Corpus application of 10 September 2024 stands dismissed for a different reason.
The appeal is dismissed.
Each party to bear their own costs.
JUDGMENT
SHARPE-PHIRI JA
(De Silva JA, Sichinga JA, concurring)
Procedural Background
This appeal arises from a ruling of Judge Brassel Adeline, delivered in the Seychelles Supreme Court on 12 September 2024 under Frank Elizabeth v Ted Barbe, MC 75/2024.
The ruling arose from proceedings instituted on 10 September 2024 in the Supreme Court by Mr. Frank Elizabeth (the applicant), acting as attorney for Gianni Bordino and Deborah Bordino, Italian nationals residing in Seychelles, against the Commissioner of Police, Mr. Ted Barbe.
The application asserted that the Bordinos were being detained under the directive of Mr. Alan Volcere, the Principal Secretary of the Ministry of Internal Affairs and Immigration and that their detention was unlawful and infringed upon their fundamental rights. It urged the Supreme Court to urgently issue a writ of habeas corpus to compel their immediate release and prevent their deportation from Seychelles.
The application was grounded on multiple bases:
Mr. Gianni Bordino and Mrs. Deborah Bordino who were resident in Seychelles had been involved in legal disputes regarding their immigration status and other legal issues in Seychelles for some time. They both had two appeals pending before the Court of Appeal, scheduled for hearing in December 2024. That they had previously successfully challenged a Prohibited Immigrant Notice dated 16 September 2019, issued against them in Case No. SCS 665, MC75/2020 in the Supreme Court. A further Prohibited Immigrant Notice issued on 12 November 2021 was on appeal before the Minister for Internal Affairs; however, no decision had yet been made.
On 8 September 2024, the Bordino's sons had reported that they were unable to reach their parents and were concerned for their safety. Subsequently, the applicant, Mr. Elizabeth was able to reach Mr. Bordino by phone who informed him that they were meant to be deported but Mrs. Bordino's passport was misplaced. Hence, they were being taken into a detention facility at the airport.
That the applicant had made an application to the Commissioner of Police to have access to his clients to swear the affidavit or to release them but he could not wait for a response.
The applicant claimed that the respondent was holding the Bordino’s in arbitrary and unlawful detention under the directive of the Immigration Department, pending the decision of their appeal against the second Prohibited Immigrant Notice.
The detention and possible deportation were in violation of their fundamental rights under Article 18 of the Constitution of Seychelles, entitling them to make a claim under Article 18(8).
Deportation before the conclusion of their pending legal matters risked irreparable harm, depriving them of legal recourse, and violating constitutional protections and the rule of law.
Through the application, the applicant sought the following relief:
The issuance of a writ of habeas corpus ad subjiciendum under Rule 4(5) of the Criminal Procedure (Habeas Corpus) Rules, 2015 (SI 12 of 2015) compelling the production of Gianni Bordino and Deborah Bordino before the Court on a specified date.
An order releasing the Bordinos from detention and providing a full explanation for the lawfulness of their detention.
An order prohibiting the respondent from deporting Mr. Gianni Bordino and Mrs. Deborah Bordino, until the final determination of their appeals before the Minister of Internal Affairs and the Court of Appeal or further order of this Court.
At an oral hearing of the application on 11 September 2024, Mr. Elizabth relied on Rule 4 (5) and Rule 5(1) and (2) of the Criminal Procedure (Habeas Corpus) Rules, 2015 (SI 12 of 2015).
Decision of the Supreme Court
The learned Judge, considering the application brought by Mr. Elizabeth, the applicant, under Rule 4(5) and Rules 5(1) and (2) of the Rules, observed that these provisions allow a detained person or another acting on behalf of the detained person, to file an application stating the particulars of the undergoing detention, with a further requirement of explaining the inability of the detained person to swear the affidavit personally.
The Judge however rejected the applicant's argument that counsel could swear an affidavit on behalf of a client under Rule 5(1), citing established legal principles and jurisprudence, including Muller v Benoiton (MA 59/2020) and Muller v Benoiton Construction (SCA 78/2022), which held that an attorney cannot act as a witness for their client by swearing affidavits on their behalf.
The Court found further that in any event, the applicant’s affidavit did not comply with Rule 5(2) as the affidavit failed to sufficiently explain why the detained persons had not sworn affidavits. It only stated that Mr. Elizabeth did not have access to his clients without reference to steps taken to secure that access.
The Court also found and held that instead of substantiating the evidence, the affidavit was based on assumptions and incomplete inquiries, including information about the alleged location and circumstances of the clients, which the Court found insufficient to prove unlawful detention. The Judge determined that Mr. and Mrs. Bordino were not unreachable and that appropriate measures should have been undertaken to obtain their signed affidavits.
The Judge further held that Mr. and Mrs. Bordino having had pending matters before the Court of Appeal for the December 2024 session, should have made their application to that Court, and not the Supreme Court. The Judge also held that the Commissioner of Police had denied that the appellants were in police custody, and therefore, the Court could not order the Commissioner to produce them. The application was therefore dismissed.
The Appeal
Aggrieved by this ruling of the Supreme Court, Mr. Frank Elizabeth, acting as attorney for the appellants filed a Notice of Appeal under case SCA 16/2024, entitled Gianni Bordino and Deborah Bordino, as 1st and 2nd appellants against The Commissioner of Police, advancing the following eight grounds of appeal:
The trial Judge erred in law by ruling that the affidavit supporting the application for a writ of habeas corpus was defective because it was sworn by the attorney for the appellants, despite the law permitting any person to swear an affidavit on behalf of an applicant who is being unlawfully detained in habeas corpus application.
The Judge erred when he ruled that the application for a writ of habeas corpus should have been made to the Court of Appeal, where there were two pending appeals in respect of the 1st appellant and not the Supreme Court when the law clearly provides for such applications to be made to a Judge of the Supreme Court.
The trial Judge erred when he dismissed the application based on the standing of the applicant who had filed the application on behalf of the appellants when the learned Judge was precluded from doing so by law.
The trial Judge erred in law when he ruled that he could not make the orders prayed for as the respondent was the Commissioner of Police, who was not responsible for deporting prohibited immigrants under the law. That, the law provides for habeas corpus applications to be made either against the Superintendent of Prison or the Commissioner of Police.
The trial Judge erred in fact, when he ruled that there had been no compliance with Rule 5(2) of the Criminal Procedure (Habeas Corpus) Rules, in that the affidavit in support of the application does not give any explanation as to why the affidavit had not been sworn by the persons detained when he in fact, did provide such explanation.
The trial Judge erred when he ruled that there was no evidence averred in the affidavit in support of the application by Mr. Elizabeth of his exercise of due diligence and the efforts he made to gain access to his clients to swear the affidavit in support of the applicant, when in fact there was such evidence. The learned Judge erred when he failed to appreciate that habeas corpus applications are by their very nature urgent and time-critical, and the Court should always err on the side of caution before dismissing such an application on technical legal grounds.
The learned Judge erred when he ruled that the affidavit in support of the application contained an assumption of facts rather than facts and, therefore the Court was unable to make a finding that the appellants were being illegally detained. The Judge failed to understand and appreciate the legal procedure in habeas corpus applications, namely that the burden is on the respondent and not the applicant to provide facts and evidence to the Court to show that the detention of the appellants is justified in law and that it was neither illegal nor unlawful as alleged or at all.
The learned trial Judge erred when he relied on information provided to him from the Bar that the Commissioner of Police had confirmed that the police were not detaining the appellants and to make a determinative and conclusive finding of facts when the information was not evidence before the Court and was provided to the Court as information only and not evidence to be relied on and to make a finding thereon.
Motion to Amend – Misc App 19/2024
This Motion arises from the need to amend inconsistencies in both the caption and the content of the Notice of Appeal, to ensure that it properly represents the parties involved, as the case moved from the Supreme Court to this Court.
On 29 November 2024, Mr. Frank Elizabeth, moved a Motion before this Court under Misc App No. 19/24 captioned Frank Elizabeth v The Commissioner of Police, seeking leave to amend the Notice of Appeal to replace the names of the appellants, Gianni Bordino and Deborah Bordino, with his name as the sole appellant.
The application was supported by an affidavit deposed by Mr. Elizabeth, asserting his capacity as the appellant and legal representative of Gianni and Deborah Bordino. He explained that the original Notice of Appeal named the Bordinos as appellants, but for procedural clarity and consistency with the rules, the Notice should be amended to reflect him as the sole appellant, as was the case in the Supreme Court. He argued that the amendment was necessary to resolve procedural issues and accurately represent his role in the matter, emphasizing that no prejudice would be caused to the respondent or any other party by granting the amendment.
At the hearing of the appeal, Mr. Elizabeth supplemented that he was seeking to amend the caption in the Notice of Appeal. That the application for a writ of habeas corpus was brought by himself, acting as legal counsel for Gianni Bordino and Deborah Bordino. The appearance of the names "Gianni Bordino and Debra Bordino" in the Court of Appeal and in the Notice of Appeal, instead of "Frank Elizabeth," was purely inadvertent.
Mr. Elizabeth urged this Court to allow the proposed amendment adding that it would not alter the grounds or substance of the Appeal and that no prejudice would be caused to the respondent.
Counsel submitted that it is in the interest of justice to allow the amendment, given the significance of the application for habeas corpus. Such applications are rare within Seychelles jurisprudence, with limited precedent, which predated the 2015 Rules. Counsel emphasized the importance of this case in establishing guiding principles for future matters of a similar nature. Allowing the amendment would enable the Court of Appeal to deliver a judgment that would serve as a binding precedent on the Supreme Court, thereby contributing to the development of Seychelles' legal framework.
The respondent opposed the application by way of a formal objection filed on 2 December 2024 on a point of law.
Preliminary Objection
In the preliminary objection, counsel for the respondent asserted that the appeal before this Court was legally flawed due to its reliance on a defective affidavit. The Court’s attention was directed to the provisions of Rule 11(5) (a) of the Legal Practitioners (Professional Conduct) Rules, 2013 [SI 59/2013].
Counsel for the respondent emphasized that Rule 11(5)(a) of the said Legal Practitioners Rules explicitly prohibits a legal practitioner from appearing before the Court in proceedings where they may be required to furnish evidence, whether orally or by affidavit. Counsel accordingly urged the Court to dismiss the application for amendment and proceed to deliver judgment on the substantive appeal.
At the hearing of the matter on 3 December 2024, counsel for the respondent further reiterated his objection to the application, emphasizing that the applicant, who is also the deponent of the affidavit, is counsel for the appellants. Counsel argued that under the Legal Practitioners’ Professional Conduct Rules of 2013, it is improper for an attorney to act as both counsel and deponent in the same matter, as this places the attorney in the dual role of witness and advocate. He further noted that Section 2 of the Evidence Act establishes an affidavit as evidence, making Mr. Elizabeth’s position inappropriate.
In support of the objection, Counsel referred to case law, including Muller and Benoiton, citing the latter at paragraph 47, where the Court of Appeal held that affidavits sworn by Counsel on behalf of a party should be rejected, as highlighted in the trial court’s decision.
Ruling on Preliminary Objection
Regarding the objection raised by Ms. Thompson concerning Mr. Elizabeth swearing the supporting affidavit for the Notice of Motion, I have closely reviewed paragraph 1 of the affidavit and observe that Mr. Elizabeth has deposed to the affidavit as an applicant in the matter on account of being the legal representative of Gianni Bordino and Deborah Bordino.
Given that Mr. Elizabeth is the applicant in this matter (as he was in the lower court), I am of the view that he is entitled to depose to an affidavit in the matter, as the applicant, but not as legal counsel representing Gianni and Deborah Bordino. This being the case, I find that the affidavit filed in support of the application for leave to amend deposed to by Mr. Elizabeth on 29 November 2024, is valid.
However, while the affidavit supporting the Notice of Motion to amend is not defective, as argued by Ms. Thompson, given Mr. Elizabeth’s entitlement to depose to it in his capacity as the applicant in the matter, his simultaneous appearance as legal counsel contravenes Rule 11(5)(a) which stipulates that:
“a legal practitioner must not appear before any court in a matter where they have reason to believe they will be required to give evidence, whether verbally or by affidavit. If such a situation arises, they are obligated to withdraw from the case.”
Under this rule, Mr. Elizabeth was precluded from serving as both the applicant and legal counsel in the same matter. He could properly appear before the Court solely in his capacity as the applicant but not concurrently as legal counsel. The objective of Rule 11(5)(a) is to avert situations where a legal practitioner serves simultaneously as both an advocate and a witness, as this could compromise the integrity of the proceedings.
The above rule is designed to maintain impartiality and eliminate any appearance of bias. By indicating that he is the legal representative of the Bordinos in the matter and signed off the application (Notice of Motion to amend) in his capacity as "Attorney-at-Law" Mr. Elizabeth breaches Rule 11(5) (a) of the Legal Practitioners (Professional Conduct) Rules, 2013 [SI 59/2013], which prohibits an attorney from representing parties in court while also serving as a witness in the same matter.
Mr. Elizabeth's simultaneous roles as the applicant and legal representative contravenes the Legal Practitioner Rules. Although his affidavit is valid in his capacity as the applicant, his ongoing representation as counsel breaches the standards of professional conduct. It is essential to address such breaches to preserve procedural fairness.
Considering the foregoing, I order that the respondent’s preliminary objection be dismissed. I will now proceed to address the application to amend the Notice of Appeal.
Consideration of Motion to amend
As stated earlier, the Motion moved by Mr. Frank Elizabeth before this Court in Misc App No. 19/24 captioned Frank Elizabeth v The Commissioner of Police, seeks leave to amend the Notice of Appeal to substitute the names of the appellants, Gianni Bordino and Deborah Bordino, with his own name as the sole appellant. In the same application, Mr. Elizabeth also requests that the title of the Notice of Appeal be amended to read ‘In the matter of Gianni Bordino and Deborah Bordino and in the matter of an application for Habeas Corpus.’
This Motion for leave to amend the Notice of Appeal is evidently muddled up. The Notice of Motion itself is captioned Frank Elizabeth v Ted Barbe Misc App No. 19/24, instead of reflecting the names on the original Notice of Appeal, which are Gianni Bordino and Deborah Bordino v Government of Seychelles.
Upon highlighting this discrepancy, Mr. Elizabeth sought leave to correct the typographical error on the Notice of Motion. He referred to Rule 25(1) of the Seychelles Court of Appeal Rules, 2023, which addresses interlocutory matters but does not explicitly provide for amendments. However, he argued that the Court of Appeal possesses inherent jurisdiction to address procedural deficiencies and to issue orders necessary to grant reliefs sought.
An examination of the Notice of Motion reveals that paragraph 1 correctly identifies the relief sought by Mr. Elizabeth, specifically the amendment of the Notice of Appeal to substitute the appellants, Gianni Bordino and Deborah Bordino, with himself as the sole appellant. Consequently, clause 2, which contradicts this request is irrelevant and is hereby struck out accordingly. This will enable us to consider the Motion.
I now turn to consider the Motion for leave to amend the Notice of Appeal, the supporting affidavit, and the arguments advanced by the parties. While the applicant did not expressly cite the specific legal provision underpinning the Motion, Rule 13(1) of the Court of Appeal of Seychelles Rules, empowers the Court to allow amendments to any proceedings before it, including those preparatory or incidental to proceedings. Additionally, Rule 10(1) of the said Rules, extends the meaning of ‘proceedings in the Court’ to include the documents and pleadings before the Court.
Therefore, the Court possesses the power to authorize amendments as outlined in Rule 13(1) of the Court of Appeal Rules. Granting the amendment in this case not only promotes an accurate resolution of the issue and aligns the Notice of Appeal with the proceedings as they occurred in the lower court but also protects against technical errors obstructing substantive justice. This perspective highlights the Court's duty to achieve justice rather than adhering strictly to procedural formalities.
Allowing the amendment to change the caption of the parties aligns the Notice of Appeal with the proceedings as they appeared in the lower Court. The grounds of the appeal remain unaltered, the respondent will not be prejudiced especially as the respondent has captioned the parties’ names in the Preliminary Objection of 2 December 2024 as sought by the applicant. Consequently, the Motion to amend as prayed is allowed. The names of Gianni Bordino and Deborah Bordino are substituted for Frank Elizabeth as the only appellant. This case shall be referred to as Elizabeth v Government of Seychelles SCA 16/2024.
Our decision on the substantive appeal
Ground 1
The learned trial Judge was of the view that the affidavit supporting the application for a writ of habeas corpus was defective because it was sworn by the attorney for the appellants. The Judge stated that ‘it is settled law, that an attorney cannot swear an affidavit on behalf of this client. The Court placed reliance on Muller v Benoiton (MA 59/2020) [2020] SCSC647 (10 September 2020), wherein it was stated that, ‘the fact that he is counsel representing the applicant and swears an affidavit for him makes the affidavit defective. This is because counsel cannot place himself in the position of the witness to the case and for that matter swears an affidavit.’
Mr. Elizabeth conceded that the Legal Practitioners Rules prohibit an attorney from swearing an affidavit on behalf of a client, as it creates an ethical conflict by making the attorney both a witness and an advocate in the same case. He however argued that exceptions to this Rule are explicitly provided under the Criminal Procedure (Habeas Corpus) Rules of 2015.
He submitted that Rule 5(1) of those Rules permits an application to be supported by an affidavit made "by or on behalf of the person detained," allowing an attorney to swear an affidavit if they cannot access their client. The rule assumes that the attorney, believing their client is unlawfully detained, can petition the Court for a writ of habeas corpus to verify the legality of the detention or the client’s well-being.
Counsel for the respondent contended that the action was flawed given the reliance on a defective affidavit, as pronounced by the Muller case. In that case, the Court held that an affidavit sworn on behalf of a client is defective, as the attorney cannot swear an affidavit on behalf of a client.
Additionally, counsel cited Rule 5(2) which specifies that if the affidavit is made by someone other than the detainee, the affidavit must explain why the detainee could not make it themselves. This framework recognizes that attorneys, who are well-informed about the detention circumstances, are often best positioned to provide such explanations. The provision operates independently of general legal practitioner conduct rules or common law principles, creating a distinct legal exception for habeas corpus proceedings, given their critical and urgent nature.
The Court notes the recurring issue of defective affidavits, particularly those sworn by legal counsel on behalf of their clients.
Courts have consistently emphasized that attorneys should avoid assuming the dual role of advocate and witness. The case of Muller v Benoiton (MA 59/2020) [2020] SCSC 647 (10 September 2020) as reaffirmed in Muller v Benoit Construction (SCA 78 of 2022) [2022] SCCA 79 reinforces that, by swearing affidavits on contested factual matters, lawyers risk creating conflicts of interest and undermining the credibility of the judicial process.
The Evidence Act under section 2 defines ‘evidence’ as including testimony upon oath or solemn affirmation viva voce or by affidavit in writing and the unsworn personal answers of parties to trials. The prohibition against lawyers acting as witnesses and giving evidence (even through affidavits) evolved from general principles addressed in Sir Edward Coke's Institutes of the Lawes of England (1628–1644) that many have argued and widely acknowledged as a foundational document of the common law.
Specifically, in the First Institute (commonly referred to as Coke upon Littleton), Coke's discussions about legal representation and advocacy have strong undertones of maintaining the integrity of the judicial process, emphasizing the impartiality and duties of legal professionals. Therefore, the strict separation of roles between advocates and witnesses has since time immemorial been part of the development of the adversarial system during the English Common Law period.
The roles of lawyer and witness are kept distinct to prevent conflicts of interest and maintain fairness in the trial process. Over the centuries, worldwide, the professional codes of conduct governing lawyers emphasized their role as advocates rather than participants in the factual presentation of the case. For instance, in the United States of America, the Bar's Code of Ethics and American Bar Association's Model Rules of Professional Conduct reinforced this separation of roles in more modern times.
Rule 3.7 of those Rules provides that: “Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client”.
Likewise, in Seychelles, Rule 11(5)(a) of the Legal Practitioners (Professional Conduct) Rules, 2013 [SI 59/2013] provides as follows: “a legal practitioner must not appear before any court in a matter where they have reason to believe they will be required to give evidence, whether verbally or by affidavit. If such a situation arises, they are obligated to withdraw from the case”
The respondent has valid grounds for objection when the dual roles of advocate and witness are blurred and might compromise their rights in the litigation. While a witness is tasked with providing testimony based on personal knowledge, an advocate’s role is mostly to analyze and interpret evidence presented by others. However, this principle of keeping the roles of lawyer and witness distinct is not without exceptions, particularly where procedural rules accommodate practical realities.
The Criminal Procedure (Habeas Corpus) Rules, 2015 rules provide under Rule 5
(1) An application shall be supported by an affidavit by or on behalf of the person detained, describing the circumstances of the detention and specifying why it is asserted that the detention is illegal or improper.
(2) If the affidavit is made by a person other than the person detained, the fact as to why the affidavit cannot be made by the person detained shall be explained in the affidavit.
Given that the proceedings in the Supreme Court relate to a habeas corpus application, I am inclined to agree with Mr. Elizabeth that the Criminal Procedure (Habeas Corpus) Rules of 2015, constitute a unique and independent legal framework and allows a third party to bring an action on behalf of a detained person, but requires justification.
The reliance of previously cited authorities of Muller v Benoiton should not conflate the general prohibition against lawyers swearing affidavits with the specific procedural allowances under Rule 5(2). The habeas corpus context permits exceptions that the Judge appears to have misinterpreted.
In conclusion, the Court emphasizes that while the principle of maintaining distinct roles between lawyers and witnesses is a cornerstone of procedural integrity, exceptions like those under Rule 5(2) of the Criminal Procedure (Habeas Corpus) Rules, 2015, must be applied with practical understanding. I accordingly agree with Mr. Elizabeth that the affidavit filed in support of the habeas corpus deposed to by him was not defective in view of the clear provisions of Rule 5(2) of the Criminal Procedure (Habeas Corpus) Rules, 2015. I agree that the trial Judge erred in interpreting otherwise.
Ground 2
The trial Judge was of the view that the application for habeas corpus should have been filed in the Court of Appeal, given the pendency of two appeals related to the 1st appellant, rather than in the Supreme Court.
The trial Judge’s statement, as recorded in paragraph 13 on page 82 of the proceedings, asserts that the application should have been made to the Court of Appeal due to the pending appeal cases scheduled for the December 2024 session. As submitted by Mr. Elizabeth and rightly conceded by Ms. Thompson, the Judge’s ruling on this aspect directly contradicts the clear legal provisions of Rule 4(1) of the Criminal Procedure (Habeas Corpus) Rules of 2015 which explicitly mandates that such applications be made before a Judge of the Supreme Court.
I find that the writ of habeas corpus was rightly filed before the Supreme Court, in accordance with the provisions of Rule 4(1) of the Criminal Procedure (Habeas Corpus) Rules of 2015. The Supreme Court retains the constitutional authority to adjudicate issues arising out of alleged infringement of fundamental rights. It was therefore the correct forum to consider the application for habeas corpus, notwithstanding that other separate appeals were before the Court of Appeal on other matters. The learned trial Judge therefore misinterpreted the jurisdictional rules and denied the Bordinos access to justice by concluding that the application was not properly before the Supreme Court. Ground 2 therefore succeeds.
Ground 3
The contention under this third ground is that the learned trial Judge erroneously focussed on the standing of the applicant and dismissed the application. The issue for consideration is whether the trial Judge did err dismissing the application based on the applicant's standing.
Mr. Elizabeth submitted that the Judge dwelled on the standing of the applicant contrary to Rule 4(5) of the Habeas Corpus Rules which permits applications to be made by third parties on behalf of the detainees. Rule 4(5) provides that, ‘an application may be made by the person detained or by any other person on his or her behalf and no application shall be rejected on the grounds of standing.
It is well-established in the rule that a writ of habeas corpus can be obtained not just by the person in detention, but also by a person on his behalf. The rule provides explicitly that such applications must not be rejected based on the applicant not having the correct standing (meaning the legal capacity or relationship to the person detained that the law requires to bring the application).
This provision serves to protect the basic liberty right and access to judicial remedies of those who are potentially wrongfully imprisoned. It underscores that detained people may have no opportunity to advocate for their own interests, under certain constraints. The rule makes it so that procedural technicalities will not get in the way of enforcing your constitutional rights by allowing other people to act on your behalf.
Because applications for habeas corpus are time sensitive, such flexibility to standing may be especially warranted in circumstances where detainees lack the capacity to act for themselves. A review of the ruling of the trial Judge, I am not inclined to agree with Mr. Elizabeth that the Judge had applied too strict a standard with regard to standing contrary to the purpose of habeas corpus. This ground therefore fails.
Ground 4
The learned trial Judge was of the view that he could not make the order against the respondent (Commissioner of Police) requiring or compelling him to immediately produce Mr. and Mrs. Bordino before the Court as they were not in the custody of the police. The Judge was also of the view that he could not make an order prohibiting the respondent from deporting the Bordinos’s knowing that the Commissioner of Police is not vested with lawful authority to deport anyone from the jurisdiction of Seychelles.
The appellant argued that the trial Judge erred when he found that the Commissioner of Police was not a proper respondent, since the authority to effect deportation fell outside his jurisdiction.
Counsel insisted that, regardless of the deportation considerations, the detention of the parties was within the remit of the Commissioner of Police, particularly in cases involving police custody.
The respondent’s counsel submitted that the trial Judge correctly determined that the orders sought could not be granted, as the Commissioner of Police does not bear legal responsibility for the deportation of prohibited immigrants. Counsel further contended that the applicant’s assertion that the Bordino’s were in police custody was unsubstantiated given the Commissioner’s confirmation they were not detained by the police. Consequently, the application lacked the factual basis to hold the Commissioner accountable for either their detention or deportation.
The issue to consider under this ground is whether the learned trial Judge misunderstood the law regarding who is responsible for producing detainees in habeas corpus cases.
Rule 4(6) of the Criminal Procedure (Habeas Corpus) Rules, 2015 stipulates that:
‘The respondent to the application may be identified by reference only to his or her office in the following circumstances;
the Commissioner of Police, where the person is alleged to be detained in police custody;
the Superintendent of Prisons where the person is alleged to be detained in a correctional facility; or
the Commissioner of Police, where the person is alleged to be detained in any other circumstances.
Rule 4(6) clarifies the circumstances under which an applicant in a habeas corpus application may identify the respondent by their official designation rather than by name. It specifies the appropriate office or authority to be named depending on the location of the alleged detention: the Superintendent of Prisons, where a person is detained in a correctional facility, and the Commissioner of Police where the detention occurs in police custody or in any other circumstance. This provision ensures that applications can proceed even where the identities of the people involved in the detention are unknown, as long as institutional responsibility is apparent.
Therefore, the question for consideration is whether there was any evidence before the Court to show that the detainees were in police custody or under some other authority. The evidence in paragraph 3 of the affidavit of 10 September 2024 supporting the habeas corpus application reveals that on 8 September 2024, the children of Gianni and Deborah Bordino informed Mr. Elizabeth of their inability to reach their parents. Mr. Elizabeth was able to reach Mr. Bordino on the phone who notified him that they were being deported but being held in a detention facility at the airport. This evidence clearly showed that the Bordinos were in the custody of some authority, but the circumstances of the authority under whom they were being held were uncertain.
In accordance thereof, I find that the Commissioner of Police was the appropriate respondent to be named given the uncertainty exactly in whose custody the Bordinos remained. Rule 4(6)(c) permits the Commissioner of Police to be cited as respondent in ‘any other circumstances.’ I therefore agree with the appellant that the trial Judge erred by deciding otherwise.
Ground 5 and 6
The essence of both these grounds is whether the trial Judge erred in finding insufficient evidence of due diligence by Mr. Elizabeth. I address these grounds collectively due to their shared focus.
Counsel for the appellants contended that the Judge failed to appreciate the evidence in the affidavit which indicated all the efforts he had made to secure access to the detained persons. Mr. Elizabeth contended that the Judge erroneously placed the responsibility of proving the detention's illegality on the appellant, which contradicts the principles of habeas corpus that stipulate the respondent must establish the legality of the detention.
The trial Judge was of the view that the affidavit in support of the habeas corpus application insufficiently explained why the detained persons could not personally swear affidavits. The trial Judge stated that “There is no evidence averred in the affidavit in support of the application by Mr Elizabeth of the exercise of due diligence by him and the efforts made by him to have access to his clients to get them to swear the affidavit in support of the application.”
Rule 5 of the Criminal Procedure (Habeas Corpus) Rules, 2015 allows a person other than the detainee, including a lawyer, to swear an affidavit in support of a habeas corpus application, provided the affidavit justifies why the detainee is unable to do so personally. Rule 5(2) requires an explanation when a third party swears an affidavit.
In his affidavit, Mr. Elizabeth stated that he had been denied access to his clients and that he had applied to the Commissioner of Police to gain access to his clients. That he had formally requested access, and his request was denied.
The contents of the affidavit clearly indicated that the applicant could not access the Bordinos due to the lack of response from the Commissioner of Police and also the whereabouts of their detention was unknown. This provided adequate justification of the inability to gain access to the detainees to swear the affidavits. We find that the Judge’s insistence on the lawyer providing further specifics of the efforts counsel had made to access the detainees beyond what he has done introduced a stricter requirement than Rule 5(2) prescribes. The rule requires an explanation of why they could not sign but not a detailed account of efforts or proof of exhaustive attempts to locate the detainee. Counsel’s explanation satisfied the requirement under Rule 5(2).
The Judge’s additional requirement for ‘due diligence’ went beyond the rule’s intent. Habeas corpus is a tool to challenge unlawful detention, often under urgent circumstances. Requiring detailed evidence of due diligence made to locate and access the detainees for purposes of deposing to an affidavit undermines the flexibility needed in such cases and could frustrate access to justice.
The requirement for a lawyer to swear an affidavit and provide an explanation as to why detainees themselves were unable to swear their affidavits was sufficient and should not be conflated with an obligation to meet overly burdensome standards of proof or exhaustive attempts to track the said detainees.
Therefore, I find that the affidavit in support of the habeas corpus application had met the requirements of Rule 5(2) of the Rules in so far as justifying why the detainees were unable to sign the affidavits. I agree that the trial Judge’s finding that there was insufficient explanation provided by the applicant, was misconceived. Grounds 5 and 6 succeed.
Ground 7
The trial Judge was of the view that the affidavit in support of the habeas corpus application contained assumption of facts, rather than facts and that the Court, therefore, was unable to decide that the appellants were illegally detained.
Mr. Elizabeth further argued that the Judge incorrectly placed the burden of proof on the appellant to prove the illegality of the detention, contrary to the habeas corpus principles where the onus rested on the respondent to demonstrate the lawful detention.
Counsel cited Rule 6(1) and (2) of the Habeas Corpus Rules which stipulates that: ‘A writ of habeas corpus may be issued where the Judge is satisfied that (a) the person is detained illegally, improperly or without the authority of law; and (b) the application is not frivolous or vexatious. He also asserted that this improper shift in the burden of proof infringed upon the procedural protections inherent in habeas corpus proceedings, thereby denying the appellants a fair evaluation of the lawfulness of their detention.
The respondent submitted that the argument advanced under this ground was defective given the procedural requirements of Rule 5(1) and (2) which mandates that an application must be supported by an affidavit describing the circumstances of the detention and specifying the basis for asserting that the detention is unlawful or improper. Counsel argued that the affidavit accompanying the application failed to provide concrete evidence of the alleged detention, thereby preventing the trial Court from granting the relief sought.
The respondent further argued that the applicant was obligated to furnish credible evidence proving the illegality of the detention, thereby establishing a prima facie case. Upon such establishment, the burden would then shift to the respondent to justify the lawfulness of the detention. Ms. Thompson submitted that the appellant had failed to satisfy this initial burden, as the evidence presented in support of the application had failed to meet the requirements set out in Rule 5(1) and lacked sufficient factual basis to transfer the burden of proof to the respondent.
Habeas corpus applications are exceptional remedies that protect fundamental rights against unlawful detention and must be considered with a focus on substance over form. Rule 6(1) of the Habeas Corpus Rules required the Judge to be satisfied that a prima facie case had been established, demonstrating both the illegality or lack of authority in the detention and the seriousness of the application before issuing a writ of habeas corpus.
Therefore, the question is whether the applicant had established a prima facie case for the issuance of a writ and shifting of the burden to the respondent. In determining the application, the trial Judge should have prioritized the substantive application over procedural technicalities, even though such applications, do not exempt applicants from adhering to the necessary procedural requirements.
The trial Judge was required to determine whether the applicant had sufficiently demonstrated, based on the evidence, that the detainees were being held illegally and without lawful authority. In accordance with Rule 6(1) and (2), the question for the Judge’s primary inquiry should have been whether the affidavit evidence established a prima facie case warranting the issuance of a writ compelling the respondent to justify the legality of the detention.
Upon examining the affidavit in support of the habeas corpus application (pages 7-10 of the record), it is evident that the applicant primarily emphasized the ongoing immigration issues the detainees had with the Immigration Department. It indicated that the Bordinos were being held at the airport in preparation for deportation. In my assessment, the evidence fell short of satisfying the requirements under Rule 6(1) for issuing a writ of habeas corpus.
While the burden of proving the lawfulness of continued detention ultimately rests with the respondent, this does not exempt the applicant from the responsibility of establishing a prima facie case for issuance of the writ.
In the present case, the appellant failed to present sufficient evidence to demonstrate that the detention of the Bordino’s was unlawful. Instead, the affidavit primary disclosed ongoing immigration issues involving the Immigration Department. The affidavit submitted the applicant lacked adequate evidence to satisfy the requirements of Rule 6(1). Consequently, this ground of appeal is without merit and fails.
Ground 8
The contention under this ground is that the trial Judge erred in relying on information from the Bar to make a determinative and conclusive finding of fact, when that evidence was not formally presented as evidence. Mr. Elizabeth contended that he had provided evidence to the Court that the Commissioner of Police had confirmed that the police were not detaining the appellants although this was not evidence before the Court.
I have observed that whilst this argument has been advanced as a ground of appeal, Mr. Elizabeth and Ms. Thompson have both not argued this ground in their heads of argument. I take this ground eight as having been abandoned and I dismiss it accordingly.
In Conclusion
In view of the foregoing, having concluded that the affidavit presented by the applicant in the habeas corpus application fell short of the legal threshold under Rule 6(1), I find the evidence was insufficient to issue a writ of habeas corpus.
Furthermore, the appellant seeks a remand of the matter to the Supreme Court for a substantive review of the legality of the detention. However, this Court finds no merit in such a course of action for the reasons above.
This Court has exercised its powers under Rule 31(1) of the Court of Appeal Rules, which confer upon it all the powers of the Supreme Court, including the authority to rehear matters and evaluate the evidence afresh. Upon a thorough review of the evidence presented, as discussed above, I find that the application for the issuance of a writ of habeas corpus failed to meet the required legal threshold. As such, there is no justification to remand the case to the Supreme Court for further consideration.
The Habeas Corpus application of 10 September 2024 stands dismissed for a different reason.
Accordingly, the appeal is dismissed.
Each party shall bear its own costs.
_____________________
Sharpe-Phiri JA
I concur: ____________________ De Silva JA
I concur: ____________________
Sichinga JA
Signed, dated and delivered at Ile du Port on 18 December 2024.
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Cited documents 2
Judgment 2
| 1. | Republic v SJ (CR 38/2018) [2020] SCSC 647 (29 October 2020) | 4 citations |
| 2. | Muller v Benoiton Constructin (SCA 78 of 2022) [2022] SCCA 79 (16 December 2022) | 3 citations |