RULING
BURHAN J (Adeline J and Esparon J concurring)
[1] This is an application by the Applicant (the Petitioner in CP 12 of 2022) for leave to make an incidental demand pursuant to sections 121 and 122 of the Seychelles Code of Civil Procedure (Civil Procedure Code) read with Rule 2 (2) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (Constitutional Rules).
[2] Prior to this, the Applicant filed a petition dated 9 December 2022, alleging that during his arrest and subsequent detention by officers acting on behalf of the 1st, 2nd and 3rd Respondents, his constitutional rights under Articles 2,7,10, 16 and 27 of the Charter and Articles 161 and 163 of the Constitution of the Republic of Seychelles (the Constitution) were violated.
Submissions by the Petitioner
[3] The Applicant submits that he is the 1st Accused in the case of The Anti-Corruption Commission v Mukesh Valabhji & others, CR 114 of 2021 and The Republic v Mukesh Valabhji & others, CR.4 of 2022 and that following the Defence filed by the 1st, 2nd and 3rd Respondents on 19th September 2023, it has become necessary in order to assist the court in determination of the petition CP 12 of 2022 that:
“a) the identity of the “Special Constable” referred to in the Defence to be revealed to the Court, in light of certain contraventions raised in the petition;
b) for further evidence that has come to light during the trial of CR 4 of 2022 to be adduced in support of the facts in the petition and to prove that the statements and evidence laid out before the Court in the Defence of the Respondents are contradictory, misleading and incorrect.”
[4] The Applicant in his affidavit avers that the 1st and 2nd Respondents have refused and/or failed to reveal the identity of the “Special Constable” despite the several informal requests and an application for further and better particulars that were made. Further, it is averred that the Defence filed by the 1st and 2nd Respondents comprised of an affidavit of Brigadier Michael Rosette, a member and the Head of the 2nd Respondent dated 19th September 2023 and one from the Police Commissioner Ted Barbe, a member and the Head of the 3rd Respondent.
[5] It is the Applicants position that averments made under oath by Brigadier Rosette in his affidavit, has subsequently during the trial of CR4 of 2022 been proven to be either false, misleading or incorrect. These said averments have been contradicted by the evidence of Brigadier Rosette, himself and Captain Luke Fonseka whilst testifying in CR 4 of 2022 and by the statements of several other witnesses, including those of foreigners mentioned in the petition and of Major Ferdinand Payet, which were read and entered as evidence in CR 4 of 2022.
[6] Further, the Applicant states that Captain Luke Fonseka’s and Major Ferdinand Payet’s testimony in CR 4 of 2022 have confirmed the recruitment and arming of the said foreigners by members of the 2nd Respondent and have detailed the involvement of the Respondents in the recruitment, arming and participation of the said foreigners in the Applicant’s arrest and detention and searches and seizures of his properties.
[7] Further, the Applicant avers in his affidavit that on the 20th February 2024, whilst giving evidence at the trial in CR4 of 2022, Brigadier Rosette, admitted that the foreigners referred to in the petition, were provided with weapons without his knowledge. Brigadier Rosette further confirmed that by the time he was made aware of the fact that the foreigners were provided with weapons by the Security Unit of President Ramkalawan, he had already sworn the affidavit of the 19th September 2023 and gave an undertaking that he will file an amended affidavit to that effect in respect of CP 12 of 2022.
[8] The Applicant states that Brigadier Rosette has to date not filed any further affidavit as per his undertaking and produced and exhibited the transcripts of 24th February 2024 in CR 4 of 2022. Further, the Applicant states that the oral evidence led in the trial of CR 4 of 2022 and video and written evidence disclosed during the said trial, revealed the identity of the Special Constable whose name was being withheld by the Respondents and had provided proof of the members of the 2nd Respondent entering the Central Police Station and the Applicants cell.
[9] Further, the Applicant avers that the evidence led in the trial of CR 4 of 2022 and disclosure recently made to him during the said trial has also revealed the identity, contracts, roles and participation of the armed foreign civilians who were involved in his arrest, detention and search and seizure of his properties.
[10] The Applicant submits that the evidence that has been led or disclosed in case CR 4 of 2022 and the affidavit of the ex-member of the 1st Respondent further substantiate the petition and supplement and support the averments of facts that have been made in the petition. The new evidence and the affidavit that has come to the Applicant’s knowledge subsequent to filing the petition do not bring in any new facts to the petition but rather further supplement and support the averments of facts that are in the petition.
[11] The Applicant further states that the new evidence and affidavit which was not available nor known at the time of filing the petition are relevant and will greatly assist this Court in properly determining the petition.
[12] The Applicant further submits that it would be just, fair and necessary that he be allowed to lay before the court, the new evidence and the affidavit of that previous member of the 3rd Respondent which were at all times within the knowledge or custody of the Respondents but which have been withheld either unintentionally or deliberately and which have now been provided after the filing of the petition.
[13] The Applicant further states that when CP12/22 was mentioned on 28 May 2024, the Respondents indicated to court that they would want to have sight of the draft affidavit that the Applicant was seeking leave to file. A copy of the draft affidavit was provided to the Respondents the very next day, the 29 May 2024, as per the dispatch delivery records kept on behalf of the Applicant and the copy of the draft affidavit addressed to Ria Alcindor, one of the Respondents' Counsel was received by Tania Pothin who signed on behalf of the Attorney General's office. A copy of the dispatch book is attached to the submissions as “Annexure 1.” The Applicant therefore argues that the written submissions of the Respondents dated 25 June 2024 are misconceived as they already have in their possession the draft affidavit since the 29 May 2024. A copy of the said draft affidavit was also filed with the court and is in the case file.
[14] The Applicant therefore prays for an order to be allowed to file a further affidavit in support of his petition together with exhibits of the new evidence that has come to light in support of the facts already averred in the petition.
Submissions by the 1st, 2nd, 3rd and 4th Respondents
[15] The Respondents state that the court should refuse the instant application for the reason that the Applicant has failed to provide the court with the draft of the affidavit sought to be filed.
[16] The Respondents state that they are not in a position to effectively respond to the instant application without being provided with the draft of the affidavit sought to be filed. Moreover, the Respondent argues that the court is also not in a position to make a proper determination in relation to this application without the said draft.
[17] The Respondents submit its objection are on the basis of a lack of particulars and moves for the application to be dismissed.
Analysis and Findings
[18] Rule 2 of the Constitutional Rules provides that
“(1) These Rules provide for the practice and procedure of the Constitutional Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution.
(2) Where any matter is not provided for in these Rules, the Seychelles Code of Civil Procedure shall apply to the practice and procedure of the Constitutional Court as they apply to civil proceedings before the Supreme Court.”
[19] As the Constitutional Rules do not provide for the procedure of an incidental application to be made for new evidence to be filed before the Constitutional Court, the Applicant referred to sections 121 and 122 of the Civil Procedure Code read with Rule 2 (2) of the Rules.
Section 121 and 122 read as follows:
“Incidental demands
121. Application to be by motion
Either party to a suit may, in the course of such suit, apply to the court by way of motion to make an incidental demand.
122. With affidavit
The motion shall be accompanied by an affidavit of the facts in support thereof and shall be served upon the adverse party.”
[20] This Court observes the Applicant filed an application seeking leave to file a further affidavit in support of his existing petition in order to place before this Court, additional evidence in support of the facts in his existing petition (own emphasis added), which evidence will assist the court in the proper determination of the violations arising in the petition. This evidence though within the knowledge of the Respondents was not revealed or admitted to the Applicant by the Respondents in their reply to the petition. The Petitioner came to know of this additional evidence during the course of the trial of CR4 of 2022 wherein the Applicant is the 1st Accused, only after the filing of his petition CP12/2022.
[21] The Respondents' objections are summarised as follows:
a) A draft of the further affidavit the Applicant intend to file should be provided and should have been attached to the Application.
b) While the Respondents note that the Petitioner has stated that the further affidavit shall not bring in new facts, it is imperative for the Respondents and the Court to properly note this by way of provision of a draft of the further affidavit and the annexures he relies on.
[22] This Court observes that the Respondents’ indicated to court that they would want to have sight of the draft affidavit that the Applicant was seeking leave to file. A copy of the draft affidavit was provided to the Respondents on 29 May 2024, as per the dispatch delivery records kept on behalf of the Applicant. The Respondents have not sought to deny this fact.
[23] In order to determine whether leave should be granted, the court has to determine if the law allows for granting leave for the Application as presented before this Court to bring in further evidence in support of the existing facts in the petition as averred by the Applicant, and whether the court is satisfied that it is just and necessary for the Applicant to be allowed to file the draft affidavit.
[24] In the case of Blomenstein v The Government of Seychelles & Ors (MA 08 of 2024 (Arising in CP 09 of 2023)) [2024] SCCC 7 the issue of an amended petition was discussed and the Court held that “It is clear to this Court that even if the amendment be allowed, the amended petition would have been filed well after the period of three months of the alleged contravention (27 June 2022) and is thus out of time under Rule 4 (1) of the Constitutional Court Rules.”
[25] In this case, the Applicant is not seeking to amend his petition but rather to file a draft affidavit to provide further evidence that was not available to the Applicant at the time of filing the petition.
[26] The Applicant has stated in his affidavit in support of the application and in the draft affidavit, the nature of the evidence he seeks to bring before this Court, if leave is granted. The draft affidavit sets out the details of the exhibits they intend to place before court, should leave be granted. The contents of the application and affidavit are clear and nothing prevents or precludes the Respondents from addressing any objections that they may have to the contents of the affidavit. Further, this Court observes that the Respondents already have in their possession most of the exhibits that the Applicant is seeking to bring to this Court. A full set of the Exhibits MVl to MV6 which is referred to in the draft affidavit, was attached by the Applicant as “Annexure 2” to his submission.
[27] Having considered the facts before us at present, the objections and submissions of the Respondents based on the fact that they did not receive the draft affidavit is misleading. It is premature at this time for them to submit or to raise objections in respect of the contents of the exhibits of the draft affidavit. This Court is of the view that no prejudice will be caused to the Respondents if the draft affidavit is admitted as further evidence in the petition, as the Respondents will be given an opportunity to file a reply to the new affidavit and annexures contained therein.
[28] It is our considered view that the Applicant is not seeking to bring in any new facts or grounds into his existing petition, but merely seeking to further substantiate the existing grounds with the additional evidence that has come into his possession, after the filing of his petition. Therefore, in the interest of justice, the Applicant is granted leave to file further evidence in the petition, as set out in his draft affidavit and the annexures referred to therein.
Signed, dated and delivered at Ile du Port on 10 April 2025.
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M Burhan J B Adeline J D Esparon J
(Presiding)