Valabhji & Anor v Republic & Anor (CM 28 of 2023) [2023] SCSC 347 (18 May 2023)

BURHAN J

1. The background facts of this application are that the Applicants who are facing criminal charges in cases CO 144/2021 and CO 04/2022 filed a recusal application CM 28/2023 arising from (CO 144/2021 and CO 04/2022) against the Presiding Trial Judge (Chief Justice) in the said cases.
2. During the hearing of the said recusal application an order was made by this Court on the 28th April 2023. The said order sets out the procedure to be adopted in respect of the hearing of the said application and arose due to the objections between the parties in respect of the said procedure. The Applicants now by this application seek leave to appeal to the Seychelles Court of Appeal from this interlocutory order and move for a stay of the recusal proceedings.
3. In reply to the leave to appeal application learned Counsel for the 1st Respondent Mr Powles in the written submissions submitted that in criminal matters Section 342 (6) of the Criminal Procedure Code (CPC) prohibits appeal in any circumstances other than those provided by section 342 (1) of the CPC. He relied on the findings made in the case of Republic v Faiz Mubarak [2023] SCSC 47.  
4. Mr. Vickers, learned Counsel for the 2nd Respondent, having set out the law and the case law submitted that there is no authority for the proposition that the issue of recusal in criminal proceedings is a civil matter. He too relied on the case of Republic v Faiz Mubarak (supra). He has further submitted that though the applicants have averred that they “have evidence on the key issues” and “can produce affidavits” and “can produce evidence”, the material alluded to has never been disclosed or exhibited in the applicants’ affidavit. Therefore, it is position of the 2nd Respondent that no right of appeal in interlocutory applications exist. In his oral submissions he stated that to allow appeal at this stage in recusal applications would result in delay; which is why section 342 (6) of the CPC precludes interlocutory appeals in criminal matters.
5. It is pertinent at this stage to refer to the very recent Constitutional Court decision Seychelles Human Rights Commission & Ors v Speaker of the National Assembly of Seychelles & Ors (MA 28/2023 (Arising in CP 7/2023)) [2023] SCCC 4 (9th May 2023) where the Constitutional Court held that essentially a recusal application is a civil matter and should be considered as a separate independent application. The mere fact that in the registration of the case and numbering it is mentioned “arising from” the main case, should not mislead one to believe a recusal application is an interlocutory application pertaining to the main case as is usually the case in most miscellaneous applications. The Constitutional Court further held that therefore there is a right to appeal from the final decision and there was no necessity to seek leave to appeal.
6. In this application for leave to appeal from the interlocutory order of this Court, it is the contention of learned Counsel Mr Lewis that the aforementioned case sets out the correct position and mirrors the finding of the Seychelles Court of Appeal as held in the case of R vs Esparon and others (SCA No: 01 of 2014) [2014] SCCA 19 (14 August 2014). This Court observes that at paragraph 22 of the Esparon case it was held that “a bail hearing is not part of a criminal case even if it has to be conceded that it walks in the shadows of a criminal trial it has an independent life free from the criminal process yet walking hand in hand with it.” At paragraph 27 it states “[T]he application, determination, refusal or granting of bail is not a criminal action. It is the exercise by a citizen of his constitutional right to bail under Article 18 (8) of the Constitution”. It is the contention of Mr Lewis that a recusal application in a criminal case is a collateral application which has no connection to the charges or the offences in the case. He further submitted it is akin to a bail application as mentioned in the Esparon case, in that it is the exercise of the right of a citizen to a fair hearing under Article 19 (1) of the Constitution. He also referred to the recent case of Laura Valabhji v The Republic SCA CR 08 of 2022 (10 February 2023) where the Seychelles Court of Appeal held that an application for release on bail of an accused pending trial, although a matter arising in a criminal case, is not a matter arising in the issue between the Republic and an accused formulated by a formal charge.
7. I am inclined to agree with learned Counsel Mr Lewis that a recusal application is an application in the exercise of the right of a citizen under Article 19 (1) of the Constitution that is the right to a fair hearing within a reasonable time by an independent and impartial court. Therefore, it is my considered view on consideration of the aforementioned case law that a final decision in a recusal application is similar to a final decision in a bail application, where a person is exercising his constitutional right to bail under Article 18 (8) of the Constitution and is appealable, be it arising from a civil or criminal case.
8. It would be uncanny to hold that the law permits appeals directly from final decisions in recusal applications in civil matters but not in criminal matters. Further, as to delay caused in the hearing of a criminal matter by granting such appeal, if an appeal is preferred in a recusal matter after the hearing of a criminal matter is concluded and in appeal, the recusal finding is overturned and a retrial ordered, the delay in the view of this Court would be far greater.
9. Further, a recusal application cannot be considered to be a criminal action as it does not involve the consideration of a charge of crime or the imposing of punishment by the Court hearing the application (Clifford and O’Sullivan [HL] [1921] 2 A.C.570). It follows that any action, which is not considered a criminal action is civil in nature. The aforementioned findings are further supported by the findings of the Constitutional Court of Seychelles in its recent judgment Seychelles Human Rights Commission (supra) which held that a recusal application is a separate independent action of civil nature to which there is a right of appeal from the final decision.
10. Giving due consideration to the aforementioned case law this Court, on revisiting the issue of the applicability of Section 12 (2) of the Courts Act, departs from its finding in Faiz Mubarak and holds there is as of right, a right to appeal from the final decision in the recusal application. Accordingly, the recusal application being civil in nature, Section 12 (2) (a) (i) read with 12 (2) (b) of the Courts Act would apply to any interlocutory order made prior to the final decision been given in the recusal application.
11. Section 12 (2) of the Courts Act, reads as follows:

S12 (2) (a) In civil matters no appeal shall lie as of right –

1. from any interlocutory judgment or order of the Supreme Court; or
2. from any final judgment or order of the Supreme Court where the only subject matter of the appeal has a monetary value and that value does not exceed ten thousand rupees.

(b)   In any such cases as aforesaid the Supreme Court may, in its discretion, grant leave to appeal if, in its opinion, the question involved in the appeal is one which ought to be the subject matter of an appeal.

(c) Should the Supreme Court refuse to grant leave to appeal under the preceding paragraph, the Court of Appeal may grant special leave to appeal.

12. Therefore, learned Counsel for the Applicants submission that the leave to appeal from the interlocutory order of 28th April 2023 is based on Section 12 (2) of the Courts Act is correct.
13. I will next consider the case law that deals with the leave to appeal applications of such nature in respect of interlocutory judgment or orders.
14. In St Ange v Choppy MCA 18/1970 the Mauritius Court of Civil Appeal considered how its discretionary powers should be exercised in the case of an application for leave to appeal from an interlocutory judgment or order. It was of the view that before leave to appeal is granted the court must be satisfied:

(i)        That the interlocutory judgment disposes so substantially of all the matters in issue as to leave only subordinate or ancillary matters for decision; and

(ii)       That there are grounds for treating the case as an exceptional one and granting leave to bring it under review.

15. However, when one considers the impugned interlocutory order given by this Court dated 28th April 2023, this Court is of the considered view that the said order does not put an end to the litigation between the parties nor does it finally dispose of the application for recusal.
16. In the Seychelles decision in Pillay v Pillay SLR 1970 page 79  it was stated:

“The interlocutory judgment in this case does not put an end to the litigation between the parties, at all events does not dispose so substantially of all the matters in issue as to leave only subordinate or ancillary matters for decision. Moreover the applicant will be entitled as of right to question the decision in the interlocutory judgment if and when he exercises his right to appeal from the final judgment. An appeal at this stage would entail unnecessary delay and expense and would be most prejudicial to the interest of the plaintiff.

(emphasis added)

17. In this case too, firstly, it must be considered that the Applicants as of right will be entitled to question the decision in the interlocutory order dated 28th April 2023 when they exercise their right to appeal from the final decision in the recusal application. Secondly, as stated earlier, considering the facts in this instant application, it cannot be said that the interlocutory order of this Court dated 28th April 2023 has disposed of all matters in issue. Finally, I am also of the view that granting of leave to appeal at this stage, even before the final decision is made in the recusal application, would entail unnecessary delay and expense, and would be most prejudicial to the interest of the Respondents who have already brought it to the notice of Court that the belated recusal application is creating a delay in the hearing of the main case.
18. In EME Management Services Ltd v Island Development Co Ltd (2008-2009) SCAR 183, it was held that special leave should be granted only where there are exceptional reasons for doing so, or in view of reasons which may not have been in the knowledge of the applicant at the time, or for reasons that supervened after the refusal to grant leave by the Supreme Court. Therefore, special leave to appeal is more a decision to be taken by the Seychelles Court of Appeal and not the Supreme Court.  It was also held in this case that it is not in the public interest to unnecessarily delay trials before the Supreme Court.
19. This Court is of the view that more substantial issues remain to be urgently determined in this recusal application and the granting of leave to appeal would only procrastinate and delay the hearing of this case.
20. In Clive Lawry Allisop v The FIU and the Attorney General [Civil Appeal SCA 39/2013], the Court of Appeal (Domah JA, Twomey JA and Msoffe JA), warned counsel against practices “bent upon dislocating the course of trial and prolonging the proceedings by every means” (citing Prakash Boolell v The State of Mauritius [2006] UKPC 46 at para. 16).
21. Giving due consideration to all the aforementioned facts, this Court is of the view that allowing leave to appeal at this stage would unnecessarily prolong the outcome of this matter, resulting in further “delay and expense” that the Court of Appeal has warned against.
22. I will next deal with whether the questions involved in the leave to appeal application ‘ought to be the subject matter of an appeal’.
23. The main grounds on which leave to appeal is sought by the Applicants are;

1. The Applicants were not given an opportunity to file an affidavit in reply to the affidavit filed by the Respondents in reply to the recusal application.
2.  The affidavit filed by the Chief Justice amounts to a pleading as he has put the Applicants to strict proof.

24. Learned Counsel Mr Powles submitted that while in the initial application for leave to appeal the complaint was that Applicants had not been given an opportunity to file reply affidavits, the Application now is to file other affidavits of other individuals as well in reply.
25. I do not wish to get involved in the merits of the appeal itself but only wish to emphasise the following:

1. In their response the Respondents did not as stated by the Applicants in their grounds of appeal, file their response by way of affidavits, their response was by way of written submissions to which the 2nd Respondent affixed only an affidavit of one Mr Joubert to support a contention set out in their submissions.
2. The Applicants contention that the affidavit of the Chief Justice is a pleading is grossly incorrect as the Chief Justice is not a party to the Application. His affidavit is a reply to the allegations made against him and raises no new matters other than putting them to strict proof on what they allege. The Rules are not carved in stone but are to be applied pragmatically and not dogmatically (Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee (SCA CP 4/2014) [2014] SCCA 33 (12 December 2014)) therefore changes in administrative procedure by the Chief Justice is not precluded nor fatal.
3. In filing a defence in civil actions, learned Counsel often put the Plaintiff to ‘strict proof’ in their averments in the defence filed. This does not give the Plaintiff a right to file further pleadings by way of reply in the absence of a counterclaim.
4. It clearly appears on perusal of the annexure to the ‘Speaking Note for the Appellants’ that the Applicants are now attempting to file new affidavits and new material to their initial application all of which should have been done at the very first instance.
5. The impugned interlocutory order dated 28th April 2023, clearly grants the necessary opportunity for the Applicants to submit certain documents as requested by them on the very first day of hearing (as indicated in paragraphs [14]-[15] of the order).

26. For all the aforementioned reasons, I decline the application to grant leave to appeal from the interlocutory order dated 28th April 2023. It follows therefore that the application for stay of proceedings is also declined.

Signed, dated and delivered at Ile du Port 18 May 2023.

____________

M Burhan J