SUPREME COURT OF SEYCHELLES
Reportable
[2022] SCSC 970
CO60/2021
In the matter between
CM120/22
FAIZ ALI MUBARAK Applicant
(rep. by S Mohamed)
and
THE REPUBLIC Respondent
(rep. by G Tachett)
Neutral Citation: Faiz Ali Mubarak v Republic [CM 120/22] [2020] SCSC 970 ( 2022)
Before: Govinden CJ
Summary: Application dismissed. The Court finds that the application is insufficiently supported. There is no appeal pending which this case should be stayed.
Heard: 11 October 2022
Delivered: 8 November 2022
ORDER
Application dismissed.
ON
GOVINDEN CJ
This is a Ruling on a Motion filed by the Applicant dated the 14th day of September 2022, seeking for an order of stay of proceedings in the main criminal case CR60/2021, until conclusion and determination of an interlocutory appeal before the Seychelles Court of Appeal made against the Ruling of this court dated the 23rd day of August 2022 in relation to a request for recusal.
The Applicant stands charged on several counts in the criminal matter before this court, for the offences of importation and trafficking in a controlled drug. As per the affidavit of the Applicant in support of the application he wants to appeal on several grounds mainly having to do with the fact that this court failed to consider the principles of law applicable to recusal request.
The Respondent in the present application argues that this application is not sustainable and should be dismissed on the grounds that the points raised in the application are frivolous and vexatious and have been raised in order to delay the process and that the motion amounts to an abuse of process as the applicant has filed another motion with the very same grounds before another bench of the Supreme Court.
The court found in Mein v Chetty (No 1) (1975) SLR 184 that it has an inherent power to stay proceedings to stop any abuse of the processes of the court. In Seychelles National Party v Aglae SCC 7/2006, 27 March 2007, the court held that there must be a legal basis for the court to grant a stay of proceedings, and further, that a stay may be granted as a temporary suspension of execution of proceedings pending the hearing of an appeal, or as a suspension of a case pending a court order.
The trial of this case has had twice to be aborted. This has inordinately delayed the matter. However, the court is aware that the cause for the delays lies not with the court or the prosecution. I say this because I am conscious of the passage of time and its effect that it has on the rights of the parties. Now at a time when we should have been seeking to agree on the next trial dates , Learned counsel for the 1st accused has chosen to instead request the bench to recused itself and with the failure of this request to lodge this motion.
As it was held in the case of Government of Seychelles and Ors v The Seychelles National Party & Ors (Application No. MA 34 & 35 of 2014 arising in SCA CP No. 04 of 2014) an interlocutory order contemplated by section 12(2) of the Courts Act, is generally intended to last for a limited period, until the judgment concerning the issues before the court and the rights of the parties are determined by a higher court. Such interlocutory stay orders are necessary to prevent irreparable harm from occurring to a party to the proceedings or property, during the pendency of a law suit. Which means that it is essential for there to be an appeal properly filed before the Seychelles Court of Appeal for there to be a valid stay of proceedings especially in criminal cases where an accused has a right to the most earliest of trials.
In this case, however, the applicant has failed to satisfy this court that he has an appeal pending before the Seychelles Court of Appeal at the time of making this application. This leaves the application unsupported and amounts to an abuse of the process of this court.
I accordingly, dismiss this Application on the ground of it being unsubstantiated and an abuse of process.
Signed, dated and delivered at Ile du Port on day of 2022.
____________
Govinden CJ
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