Valabhji & Anor v Republic & Anor (CM 28 of 2023) [2023] SCSC 396 (1 June 2023)

BURHAN J.

1. This is a Joint Application by the 1st Applicant Mukesh Valabhji who is the 1st Accused in the cases of The Republic v Mukesh Valabhji & others CR No 4 of 2022 (the Firearms Case) and The Anti-Corruption Commission v Mukesh Valabhji & Others CR No 114 of 2021 (the Money Laundering Case) and his wife Laura Valabjhi the 2nd Applicant and 2nd Accused in the case of The Republic v Mukesh Valabhji & others CR No 4 of 2022 for the recusal of the Presiding Trial Judge (Chief Justice) hearing both cases.
2. The Applicants (Mr and Mrs Valabhji) have set down the grounds, on which they rely on, in their Joint Affidavit dated 7th March 2023. The Chief Justice has filed an Affidavit dated 27th March 2023 in reply, answering each of the grounds raised by the Applicants in their Application for his recusal. The parties referred to in the Application, Mr and Mrs Valabhji, the Republic and the Anti-Corruption Commission, filed written submissions and made oral submissions in respect of the Application thereafter.
3. Prior to analysing the grounds set out by the Applicants in regard to recusal, it would be appropriate to set out the basic law in relation to the factors that should be considered in deciding the issue of recusal. Applications for recusal are mainly based on the maxim that judges are independent and charged with the duty of impartiality in administering justice. In the Seychelles this was discussed in the landmark case of Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee (SCA CP 4/2014) [2014] SCCA 33 (12 December 2014).
4. The test to apply as set down by various authorities including the above authority is whether a fair-minded and informed observer having considered the facts, would conclude that there was a real possibility that the Tribunal was biased (emphasis added).
5. Learned Counsel Mr. Lewis KC for the Applicants has set out the grounds for recusal of the Chief Justice in his Skeleton Submissions dated 6th April 2023 under two heads: Presumed Bias and Apparent Bias. He also relied on the following case law and principles emerging from them to establish that a judge is also disqualified if he does not “appear in the objective sense” to be “truly independent and free from actual bias”: Porter v Magill [2002] 2 AC 357 (HL) at (88) (per Lord Hope) and “A judge must be seen to be impartial.” R v Bow Street Metropolitan stipendiary Magistrate Exp. Pinochet Ugarte (No. 2) [2002] 1 AC 119 at 142G per Lord Hope.
6. The test referred to in paragraph [4] herein was referred to by Learned Counsel Mr. Lewis who further submitted that it is derived from a number of English and Commonwealth authorities: R v Bow Street Metropolitan Stipendiary Magistrate Exp. Pinochet Ugarte (No. 2) [2000] 1 AC 119; Porter v Magill [2002] 2 AC357 (HL); Re Medicaments (No. 2) [2001] 1 WLR; Locabail (UK) Ltd v Bayfield Properties [2000] 2 WLR 870; 700; Meerabux v A-G of Belize [2002] 2 AC 513; Lawal v Northern Spirit [2003] 1 CR 85.6 (HL). The Court of Appeal in Government of Seychelles v Seychelles National Party [ibid] identified the test in the Seychelles as harmonizing it with that of the ECtHR at [25].

Presumed Bias

7. It is contention of Learned Counsel Mr. Lewis that the Chief Justice is automatically disqualified from hearing the cases based on following grounds, each one of which alone is sufficient to warrant recusal (although they can also be taken cumulatively):

(1)       First, the Chief Justice knows both of the Applicants well. There can be no dispute about this.

(2)       Secondly, the Chief Justice has personal knowledge of disputed evidentiary facts in the Firearms Case. He has been taken on a tour of the wine cellar by the Applicants (defendants), which occupies a central part in the Firearms Case as mentioned in the Joint Affidavit.

(3)       Thirdly, the Chief Justice is likely to be a witness in the case he is trying:

“The defence therefore intend to take a statement from [Govinden CJ] and it is likely that he will be called as a material witness of fact at the trial of the Firearms Case.”

(4)       Fourthly, there is no material difference in his position to that of his former wife, Andre JA, who recused herself ex mero motu from an appeal arising from these proceedings before the Chief Justice

Apparent Bias

8. Learned Counsel Mr. Lewis further submitted that the circumstances the fair-minded and informed observer would have to take into account are:

(1)       The Chief Justice knows the Applicants well, for 25 years, socially and professionally; involved with selling co-owned matrimonial property belonging to the Chief Justice; and has an opinion as to their character and professionalism.

(2)       The Chief Justice knows the political opinions of the Applicants, in what is a politically charged case.

(3)       The Chief Justice, as the trial judge will have to assess the character and opinions of the Applicants in determining their credibility, particularly when they give evidence.

(4)       The Chief Justice was involved in a “feud” with the 2nd Applicant, and by implication her husband the 1st Applicant. He defended his wife against the complaint made by the 2nd Applicant.

(5)       The Chief Justice has at some time shown animosity to the 2nd Applicant.

(6)       The Chief Justice has visited the Applicants home, and been on a tour seeing the wine cellar which occupies a central part in the Firearms Case. It has been declared a ‘crime scene’.

(7)       The Chief Justice knows the Applicants are friends with his daughter.

(8)       The Chief Justice knows that the 2nd Applicant is a material witness against him in the land scandal in which he may be involved.

(9)       The Chief Justice is likely to be a material witness in the Firearms Case.

(10)     The Chief Justice was a board member of the Bank of Seychelles when the allegations in relation to the allegedly stolen USD$ 50 million would have been considered.

(11)     The Chief Justice knows material witnesses in the Money Laundering Case.

(12)     That Andre JA decided of her own volition to recuse herself because of a materially identical connection with the 2nd Applicant.

(13)     Contrary to a proper and normal approach the Chief Justice did not reveal the above matters in open court, unlike Andre JA.

(14)     The Chief Justice will give reasons for his decision and has taken a judicial oath to be impartial.

9. In his oral submissions Learned Counsel Mr. Lewis submitted that a recusal application is based on the Article 19 (1) of the Constitution of the Seychelles which reads as follows:

“19. Right to a fair and public hearing

(1) Every person charged with an offence has the right, unless the charge is withdrawn, to a fair hearing within a reasonable time by an independent and impartial court established by law”.

10. Mr. Lewis further submitted the Constitution of the Republic of Seychelles is clear that everyone charged with a criminal offence has a fundamental right to a fair hearing from an independent and impartial judge and what is equally clear is that the common law principal necessarily underpins that right. He also referred to the fact that Seychelles is a signatory to the International Covenant for Civil and Political Rights issued by United Nations which also endorses that the right to be tried by an independent and impartial Tribunal is an absolute right that suffers no exception.
11. Learned Counsel for the Republic Mr. Powles KC in his submissions for the 1st Respondent (the Republic) submitted that:

1. It is in the public interest that the case against the Applicants be heard expeditiously and it is noted that this Application (recusal) is brought by the Applicants long after the trial was originally set to commence in December 2022.
2. Most of the matters raised in respect of recusal Application are out of the knowledge of the Republic but in relation to the accepted matters they are the inevitable consequence of a trial of such magnitude and unprecedented proportions being heard in a jurisdiction the size and nature of Seychelles.
3. A Court should be slow to move to recusal on such grounds as any litigant could claim a connection with a judge where they do not want the judge to hear the case and then move for recusal. This would act as a dangerous precedent and allow litigants to forum shop and “pick their judge”. Such a development would be unhelpful in a jurisdiction the nature and size of Seychelles.

12. Learned Counsel Mr. Vickers KC in his submissions for the 2nd Respondent, the Anti-Corruption Commission Seychelles (the ACCS), submitted that:

1. Laura Valabhji is not a defendant in the ACCS case. The majority of the points raised in the Joint Affidavit do not apply to the Chief Justice trying Mukesh Valabhji in the ACCS case.
2. It is not suggested that the Chief Justice is to be called as a witness in the ACCS case.
3. In any event, the suggestion that the Chief Justice is to be a witness in the firearms/terrorism case appears to be disingenuous, as there is no evidence that the Chief Justice has been approached to give a witness statement in the 16 months since the Applicants were charged. Presumably there are numerous other witnesses who have been approached to give and have provided witness statements on the very discrete issue raised; and there is no evidence that the Chief Justice has any special knowledge relevant to the case.
4. Without any further evidence, the fact that the Chief Justice (and his ex-wife and daughter) has enjoyed hospitality from the Applicant and his wife, or has engaged in political or social discussions with them, is not evidence of any animus or bias.
5. The Applicants surely cannot be suggesting that anyone who has spent time with them socially and/or professionally are likely to be biased against them, nor are they submitting that the Chief Justice would be biased in favour of them.
6. There is no evidence of any animus on the part of the Chief Justice against either Applicant or his wife.
7. There is no evidence of any animus on the part of either the Applicant or his wife towards the Chief Justice.
8. The averment of the Applicants that a complaint has been made against the Chief Justice to the ACCS, and that he is under investigation by the ACCS, is not correct (see the Affidavit of Denis Joubert, Deputy Commissioner of the ACCS). No such complaint against the Chief Justice has been received by the ACCS. Where any complaint is made against a sitting Judge, it will be referred by the ACCS to the Constitutional Appointments Authority.
9. It is of note that this Application was not made at an earlier stage of the proceedings. All the alleged complaints would have been apparent to the Applicants at the time when the Chief Justice was first seized of the ACCS proceedings in November 2021.
10. The Chief Justice has made a number of rulings within the 16-months duration of these proceedings. None of those rulings have been impugned in the Application to recuse or are said to provide a basis for recusal.
11. The Application has now been made within one month of the trial date in the ACCS case, and several months after the original trial fixture for the firearms/terrorism case in December 2022.
12. In all the circumstances, in the absence of the evidence that the impartiality of the Chief Justice might reasonably be questioned, the learned reviewing judge should be slow to accede to the Application for the recusal in the ACCS case.
13. The Respondents relied on the following cases: Seychelles Human Rights Commission and Others v Speaker of the National Assembly of Seychelles and others [2023] SCCC 1; Government of Seychelles & Anor v Seychelles National Party & Ors; President of the Republic of South Africa and others v South African Rugby Football Union and others [1999] ZACC 9; Porter v Magill [2002] 2 AC357 (HL); Re Medicaments (No. 2) [2001] 1 WLR; Locabail (UK) Ltd v Bayfield Properties [2000] 2 WLR 870; Shaw v Kovac[2017] EWCA Civ 1028.
14. It is the duty of this Court to analyse the facts in relation to the law, on which the recusal is sought, and determine whether a fair-minded and informed observer having considered all the circumstances peculiar to this case, would come to the conclusion that there was a real possibility of the Presiding Trial Judge (Chief Justice) being biased (Re Medicaments (supra) and The Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee (supra)).
15. According to the Submissions, both written and oral, the Applicants jointly seek the recusal of the Presiding Trial Judge in both aforementioned cases based on the following grounds.

1. Close friends and associates for 25 years
2. Personal animosity of the Chief Justice
3. The Chief Justice as a material witness and/or personal knowledge of the case

Close friends and associates for 25 years

16. Mr Lewis in his oral submissions submitted that the administration of justice should be free from any bias either conscious or unconscious and this is based on the underlying thread that justice must not only be done but it must be seen to be done. That means it is equally important that the public perception of impartiality of a judge must be absolute. He referred to the cases of Davidson v Scottish Ministers [2004] UKHL 34, R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233), R v Abdroikov [2007] 1 WLR 2679. He further submitted that the bias could be presumed bias if he (1) has “personal knowledge of disputed evidentiary facts concerning to proceeding” or (2) is “likely to be a material witness in the proceeding” (3) “where the trial judge having a personal interest in the outcome of the case” or (4) “being related to a party or attorney in the case”. It is submitted that in such instances the judge is automatically disqualified. Even if he is completely faithful to his Judicial Oath, the law presumes a bias and he is automatically disqualified. In the instance of a judge having shares in a company it is the public perception that he might be biased by his proprietary interest in a company which leads to automatic disqualification.
17. He also referred to the principle under the Seychelles Code of Judicial Conduct for Judges (2.4 (b)), which precludes a judge from hearing a case where a member of the Judges family, employee or friend is a party or has interest in the outcome of the matter under controversy in the proceedings. He referred to the Davidson v Scottish Ministers (supra) case where it is stated that being a friend is an automatic disqualification.
18. It is the contention of the Applicants as borne out in their Joint Affidavit that they are well known to the Chief Justice and his former wife; and had a social relationship with the Applicants for over 10 years, which included the Chief Justice and his former wife being guests in the Applicants’ home on at least one occasion for dinner and also having attended their wedding in the year 1999. It also has been brought to the notice of Court that the former wife of the Chief Justice and their daughter were guests at a dinner held at Zil Pasyon Resort, which is part-owned by the 1st Applicant just prior to their arrests. It is further averred that the 2nd Applicant knows the Chief Justice and his wife socially and professionally for over 25 years. Therefore, the Chief Justice has his own opinion of the character and professionalism of the 2nd Applicant. They further contend that the Chief Justice is well aware of their political views.
19. The Chief Justice in his Affidavit dated 27th March 2023, denies knowledge of the dinner his former wife and daughter had with the Applicants at Zil Pasyon Resort and further states that his daughter, as an adult, and his former wife are free to decide where they want to go and what to do in their social and private lives. The Chief Justice in his reply denies that he had a “social relationship” but states he is well known to them to the extent that 2nd Accused and himself were colleagues in the Attorney General’s Department. He admits only to once visiting the house for dinner as the 2nd Applicant was his work colleague. He denies discussing politics with the Applicants and states he is unaware of their political views. The Chief Justice admits going to the wedding of the Applicants and states he was invited to the wedding as a colleague of Mrs. Laura Valabhji, amongst her other colleagues. He further refers to the fact that the Affidavit of the Applicants appear to show that his former wife and he are still a married couple but he specifically indicates in his Affidavit that they are divorced by the order of the Supreme Court as far back as the 12th of February 2018 which divorce was made absolute on the 26th of March 2018.
20. This Court takes notice of the fact that the 2nd Applicant is a Senior Attorney at law and Notary Public and held office in the Bar Association of Seychelles. Quite obviously, holding such high office and being in the legal field for very many years in a small jurisdiction like Seychelles, she would have been in contact and well known as a lawyer by many Chief Justices and Judges and other Judicial Officers.  A large majority of the nine Judges of the Supreme Court and five Judges of the Seychelles Court of Appeal including the Chief Justice have at some point worked at the Attorney General’s Department and are known to the 2nd Applicant and have been colleagues.  In this instant case even though it is alleged that they were friends for 25 years and knew each other socially, there appears to have been two social occasions they specify the Chief Justice has attended: dinner at the residence of the Applicants and their wedding as far back as in 1999.
21. Learned Counsel for the Applicants Mr. Lewis referred in his oral submissions to the case of AWG Group Ltd (formerly Anglican Water Pic) v Morrison [2006] ECWA Civ 6, [2006] 1 WLR 1163, where the Court of Appeal in England held that a judge’s decision not to recuse himself was wrong where a party intended to call a witness who was “well known” to the judge in circumstances where the evidence of the witness may have been challenged. In the said case as borne out by the extracts in the submission filed, the judge in England himself took up the position that he would have the greatest difficulty if he had to deal with a challenge to his friend’s evidence. The judge himself accepted the closeness of the friendship. In this instance case, the Chief Justice has challenged the closeness of the friendship, which the Applicants seek to claim in order to obtain a recusal.
22. It is the view of this Court that a fair-minded observer being well informed of all the aforementioned facts would certainly say: Yes, the Chief Justice knew the 2nd Applicant, being a colleague and a senior attorney like probably every single judge of the small judiciary in Seychelles knows; but certainly the social interactions were minimal and insignificant, namely, only two social meetings in 25 years. Therefore, I am of the view that in a small state like Seychelles the notion friend, close associate should be analysed carefully before coming to a finding that a judge when dealing with a case in respect of another colleague or lawyer in the same profession should recuse. This Court is therefore of the view that for the Applicants to say that the Chief Justice was socially well known to the 2nd Applicant, on the facts before this Court, is incorrect, though, professionally they may have known each other as colleagues for some time. It is normal that as colleagues in the legal field in a small jurisdiction, where there are few judges and lawyers, they meet each other at their work place and on a daily basis in Courts, which are situated in close proximity to each other; and are well known to each other, though not necessarily on a social basis.
23. It would be pertinent to refer to the case of Michel & Ors v Dhanjee (supra) where Twomey JA made observations in respect of Seychelles as a small jurisdiction: “In such a community as ours judges invariably are related to parties, friendly with one or both parties, know the parties or a perceived to have certain political and other affiliations whether those perceptions are accurate or not.”
24. The Applicants have the perception of friendship or friendliness between the Chief Justice and them, which is their subjective view. However, the evidence and facts before this Court established only two social interactions in 25 years with the Chief Justice personally, indicating that such perception is incorrect and or grossly exaggerated and is not an objective view of the fair-minded and informed observer.
25. It is the contention of Learned Counsel Mr. Lewis that all these matters were within the knowledge of the Chief Justice who had a duty to raise them. He also referred to the duty of judges before the onset of the hearing to disclose a previous activity or association, which would or might provide the basis from reasonable apprehension of the lack of impartiality (R v Bow Street Metropolitan Stipendary Magistrate and Others Ex Parte Pinochet Ugarte (No 2) 2000 1 AC 119). He submitted that it was important that proper disclosure should be made in such cases and proper disclosure at the very outset is itself a badge of impartiality.
26. If one is to look at the Affidavit filed by the Chief Justice, he refers to several averments in the Application which he was unaware of and which he denies. Therefore, it is incorrect to say that the matters set out in the Application were all within the knowledge of the Chief Justice who had a duty to raise them. Further, one does not have to raise the obvious i.e. the fact that the 2nd Applicant was known to him as a colleague and the fact that she is a senior lawyer and a senior member of the Bar Association and an active practitioner in the Courts of Seychelles. It should also be borne in mind that the wedding the Chief Justice attended was as far back as 1999 and a single dinner would have paled into insignificance with the passage of time. The Applicants who have relied on these facts raised by themselves chose to remain silent for a period of 16 months and remained silent even though hearing dates were set on earlier occasions.
27. Further, while the Applicants state that they have recent close ties with the former wife of the Chief Justice and the daughter (dinner at Zil Pasyon Resort), there is no allegation of continuous or recent social relationship with the Chief Justice personally.
28. It is further averred in the submissions and Affidavit of the Applicants, that the Chief Justice was a co-owner of matrimonial property with his wife. The 2nd Applicant states in the Joint Affidavit that she was directly involved in both her professional and personal capacity to find a purchaser and had direct personal physical exchange encounters in relation to the matter. It is further stated in the Joint Affidavit that the 2nd Applicant was, a few months prior to their arrests, involved in sourcing a buyer for the matrimonial properties of the Chief Justice and his former wife as well as advising/mediating on settlement of the said matrimonial properties. The matters concern communications over valuation of the properties and possibility of sale to foreigners despite moratorium.
29. In reply to the aforementioned averments, the Chief Justice denies averments contained in the Affidavit to the extent that it seeks to give the impression that he was involved with the 2nd Applicant in sourcing a buyer for the matrimonial properties and/or advising/mediating on settlement of the properties. He further states, however, that he was aware that his former wife had sought the services of the 2nd Applicant in respect of a potential sale of the said properties. He further denies the content of paragraph and states that that there are no matters that he had revealed to the 2nd Applicant in respect to sourcing of buyers that are contained on devices of the 2nd Applicant as or relating to valuation of properties and possibility of sale to foreigners despite moratorium.
30. The Applicants, though, stating they have evidence to prove same, I observe have failed to adduce any documentary evidence or communications, which support their claim that the Chief Justice was personally involved with the 2nd Applicant in such dealings.. This is despite the fact that the Order of this Court dated 28 April 2023 specially provided and gave an opportunity for the Applicants to produce such material (see paragraphs [14] and [15]). A fair-minded and informed observer on a reading of the proceedings of the 14th of April 2023 will also observe that on the very first day of the hearing of the recusal, this Court ordered that the Respondents hand over all items requested by the Applicants, which included copy of the resignation letter, wedding album and mirror images of the laptops and the iPhone as requested by the Applicants.
31. Further, I wish to state, the fact that the Chief Justice’s former wife after divorce (emphasis added) had sought the 2nd Applicants assistance has no bearing on him. It is also relevant to note that the former wife of the Chief Justice in her recusal judgment specifically mentions it was she who had requested 2nd Applicant to assist her and in the view of this Court correctly sought to recuse herself from hearing any Application of the Applicants in open court.
32. The time period that such a necessity to sell the property arose was clearly after the divorce was made absolute in 2018. In the absence of any evidence to establish that the Chief Justice was personally involved in seeking the assistance of the 2nd Applicant, it is the view of this Court that a fair-minded and informed and reasonable observer would decide that the Chief Justice cannot be held responsible for any steps taken by his former wife after the divorce in respect of the sale of the co-owned property or her attending dinner with the Applicants.. It is the view of this Court that any fair minded and informed person would understand that once a marriage is dissolved each party acts independently of the other.
33. Further, the annexure to the ‘Speaking Note’ of the Applicants’ leave to appeal Application mentions a list of documents they intend producing, one of which is correspondence and documents from the devices of the 2nd Applicant confirming that the Chief Justice was communicating with the 2nd Applicant in regard to the sale of properties and proof of over evaluation. As already stated, no such documents were produced. Therefore, the 2nd Applicants contention that she has proof that the Chief Justice was personally involved in such transactions is unsubstantiated and cannot be accepted. Learned Counsel Mr. Powles in his submissions for the Republic has set down in clear terms what many judges face on a regular basis and submitted that “any litigant could claim a connection with a judge where they do not want the judge to hear the case and then move for recusal. This would act as a dangerous precedent and allow litigants to forum shop and “pick their judge”. Such a development would be unhelpful in a jurisdiction the nature and size of Seychelles”.
34. It would be pertinent at this stage, to refer to the main issue raised by the Respondents i.e. the delay in filing the recusal Application which is common ground for both Respondents. Learned Counsel Mr. Powles and Mr. Vickers have brought it to the notice of Court that the case was before the Chief Justice for a period of 16 months before the recusal Application came up. It is their contention that during this period the Chief Justice made several rulings. None of these rulings have been impugned in the Application to recuse or have been said to provide a basis for recusal. Therefore, the conduct of the Chief Justice or any of the rulings made up to date by him in both cases for the period of 16 months that they were before him, do not indicate any bias or animus on his part. The Applicants have not even averred so in their Affidavits.
35. They have, however, based their recusal Application on matters that arose as far back as 1999 onwards, all of which they were well aware of at the time the cases first came up before the Chief Justice. However, no Application for recusal was made for a period of 16 months. It appears that even trial dates had come and passed by but there was no Application for recusal. It is only now that the Applicants complain that the ACCS has not given them the necessary documents. Had they brought their Application at the very first instance and not waited 16 months to do so, there would have been ample time for the said documents, if in existence, to have been traced. It is clear from the proceedings that they waited till the next trial date, 14th May 2023, was almost upon them to file the recusal Application on the 7th of March 2023. It is the view of this Court that a fair minded and a well-informed observer would clearly observe a last minute Application for recusal has been filed to derail and delay the hearing of the case, which in fact did occur.
36. Learned Counsel Mr. Lewis submitted that subsequent to the ruling made by this Court what was supplied to was a mirror image of a laptop but it was inaccessible as it was encrypted and acknowledged by the ACCS to be inaccessible because they themselves could not access it. They had thereafter requested for a PDF of the document format but as of yet the relevant PDF documents have not been forthcoming. The end result is that the contemporaneous documentary piece of evidence, the resignation letter, is not available.
37. Learned Counsel Mr. Lewis provided the chronology of events that took place thereafter. It is clear that although attempts were made by all parties, they have not been able to access the resignation letter. Learned Counsel Mr. Vickers countered that the 2nd Applicant could have filed an Affidavit setting out its details but the reply was that the 2nd Applicant could not do so as she herself was not certain as to its contents, which is possible as it was a document prepared in 2006. It is also to be borne in mind that the documents they require such as letter of resignation are dated as far back as 2006, it is very unlikely that the Applicants would be using their laptops and phones which they used in 2006 and therefore unless properly saved on the devices mentioned it would be next to impossible to be traced.
38. The need for the wedding photographs to show the Chief Justice was at the wedding function is not necessary as he admits he was there as a colleague. It appears that the Applicants aver that not all colleagues were invited, therefore again alleging the close social friendship between the Applicants and the Chief Justice. The need to show all the photographs to establish that other colleagues were not invited would be a painstaking and fruitless exercise as there could have been colleagues who would have been invited but did not attend.
39. The next ground urged for the recusal of the Chief Justice is that the Application of the Chief Justice to become the Chief Justice was vetted by the 2nd Applicant in her capacity as a member of the Bar Association of the Seychelles. The Chief Justice states he is unaware of this and no documentation has been produced to indicate he was aware, even though the 2nd Applicant states that she has documents to establish same. In this regard, it is to be noted that the 2nd Applicant was not acting in her individual capacity but as a member of the Bar Association who vetted the said Application. Whatever the decision taken it was not an individual decision by her but a collective decision made by the entire Bar Association. This is a part of the procedure adopted when Judges and Justices are appointed. This does not mean that due to the vetting of all the candidates by the Bar Association, the Chief Justice appointed would have to recuse himself from hearing any matter, including disciplinary matters concerning lawyers whose conduct is under his supervision. The Chief Justice states he was unaware of the decision of the Bar Association and the Applicants have not forwarded any documentation to prove that the Chief Justice was aware of the decision taken several years prior to the filing of this case.

Personal animosity of the Chief Justice

40. Whilst referring to the close association for 25 years as a ground for recusal, the Applicants next take a contrary and opposite position referring to a feud between the Chief Justice and the 2nd Applicant concerning two incidents set out in the Joint Affidavit dated 7th March 2023. Once again the facts pertain to the former wife of the Chief Justice concerning transactions whilst she was the Assistant Official Notary in the year 2000 and Registrar of Lands in the year 2004. The 2nd Applicant further states that these transactions may be connected to the land scandal involving the Chief Justice. The 2nd Applicant further states that these transactions resulted in a feud between her and the wife of the Chief Justice and the Chief Justice defended his then wife.
41. The Chief Justice in reply states he has never been in a feud with the 2nd Applicant and has no knowledge of the rest of the averments and puts the 2nd Applicant to the strict proof thereof. Once again, other than alleging such conduct, no proof was forth coming. It is clear that these incidents said to have occurred as far back as 2000 and 2004. As of today no documentary proof has been produced to indicate that any action was taken or any determination made against the Chief Justice or his former wife. Once again, it is to be mentioned that the Chief Justice has been divorced from his wife and much water has passed under the bridge since the years 1999 and 2004. This Court has no alternative but to disregard these allegations as baseless, as no proof exists before this Court of any determination being made by any authority in respect of these allegations or that the 2nd Applicant was also involved in these transactions. Once again the allegations are distanced from the Chief Justice as they are not allegations concerning him personally but in respect of his former wife. Therefore, no proof exists for this Court to take cognisance of the fact that a feud was in existence between the Chief Justice and the 2nd Applicant in the year 2004. 
42. The Joint Affidavit further states that the 2nd Applicant is privy to information, relating to the acquisition of 7 plots of land which is the subject matter of complaint lodged by the editor of the Seychelles Independent with the Anti-Corruption Commission Seychelles for investigation and the same ACCS is the prosecuting entity in the Money Laundering Case. The Chief Justice in reply states that he is not aware that the 2nd Applicant is privy to or is concerned with any scandal in respect of any of his properties and puts the Applicant to proof thereof.  He states: “With respect to the alleged case filed by editor of the Seychelles Independent with the Anti-Corruption Commission, (ACCS), I have to date not been informed of such a complaint and verily believe that no such case exist”. The submissions and Affidavit filed by the ACCS in response to the recusal Application, indicate that there is no such complaint against the Chief Justice (emphasis added) and that complaints against judges are not accepted by them but are handled by the CAA (Constitutional Appointment Authority). As it stands therefore there exists no such complaint or inquiry in respect of a land scandal as referred to by the 2nd Applicant in her Joint Affidavit against the Chief Justice. Therefore this ground alleged by the Applicant bears no merit.

The Chief Justice as a material witness and/or personal knowledge of the case

43. It is the contention of the Applicants that the Chief Justice has personal knowledge of the wine cellar where the firearms were alleged to have been found hidden as he had viewed the wine cellar on a tour of the house after dinner. The Chief Justice whilst admitting he had only on one occasion been for dinner to the Applicants house, denies categorically that he had visited the cellar. He further states that he learnt that there was such a cellar only during the course of the proceedings in case CR 4 of 2022. Therefore, it is clear that the necessity to take a statement and necessity to make the Chief Justice a witness does not arise in the light of his sworn statement. Therefore, this ground fails as no further proof exists to substantiate this issue raised by the Applicants to prove the Chief Justice was incorrect in his denial.
44. The Applicants further contend that the Chief Justice whilst serving as the Attorney General of the Seychelles has instructed and had knowledge of the interception of the emails which form part of the evidence in the Firearms case. It is the Applicants contention that any Application for interception of emails, would have been made under the authorization, instructions or knowledge of the Chief Justice when he was then Attorney General. The Applicants further contend that there is therefore a high probability that the Chief Justice may be called as a witness as that matter will come up in the evidence before court in the trial of the Firearms Case.
45. The Chief Justice denies these averments and further specifically states that he has no knowledge of whether any communications were intercepted whilst he was the Attorney General. Therefore, it is quite obvious that he could not be called as a witness in the said case based on the facts set out in his sworn Affidavit. This appears to be another surmise by the Applicants, which also remains unsubstantiated.
46. The Applicants further contend that the Chief Justice was a director of the Central Bank of the Seychelles between 2003 and 2004, and from 2012 to 2016. He was privy to the Board’s discussion when it was inevitable the alleged USD$50 million would have been discussed. Even if he was not personally present he is familiar with the other directors, such as Mr. Francis Leng and Mr. Errol Dias, who would have been present. Even if the Chief Justice is not called as a witness in the Money Laundering case, the Applicants state he would still have to preside over the evidence of other members of the Central Bank Board who were on the board at the same time that he was there.
47. The Chief Justice in reply admits the averments to the extent that he was a board member of the Central Bank at the material time. However, he denies being privy to any discussions or decisions or otherwise being involved in any matters, having to do with the USD 50 million, whilst being a member of the said board. Even the Applicants seem unsure he was present as they state in their Affidavit “even if he was not present”. As the Chief Justice has denied by way of Affidavit being privy to any discussions or decisions or otherwise being involved with the USD 50 million and such allegation stands unsubstantiated, there is no reason why the Chief Justice should be called as a witness.
48. His former association with other members of the Central Bank Board is immaterial as they will be giving evidence not in regard to their personal or private matters but in respect of official matters involving the USD 50 million being received by the Central Bank which would be based on bank entries and other documentation.
49. The Applicants further contend that the former wife of the Chief Justice found it right and proper to recuse herself from the panel of the Court of Appeal case (SCA.8 of 2022) hearing the appeal on bail for the 2nd Applicant. One of the grounds for her ‘ex mero motu’ recusal was that she had direct involvement with the 2nd Applicant in finding a purchaser for her property owned together with the Chief Justice. It is the Applicants’ contention that there is little material distinction between the Chief Justice and his former wife in this respect. I am inclined to disagree on this issue. As they have been divorced since 2018, I am inclined to agree with the Chief Justice’s contention that his former wife’s decisions were based on her own personal considerations with regards to her relationship with the Applicant. Further, as all these division of property issues arose after the divorce was granted, it has no relevance or effect on the Chief Justice’s decisions in the cases he is hearing.
50. One cannot just allege close social friendships, feuds, land scandals, political insinuations in the case and the intention to call a judge as a witness, when no such circumstances or need exist and such circumstances are specifically denied by the judge hearing the case and are unsupported in any way. Further, all these circumstances were very well known to the Applicants at the very outset. The Applicants, however, chose to wait for 16 months and then file the recusal Application without the necessary supporting documentation.
51. It is also to be observed that the Applicants have filed several counter cases which are before several other judges almost all who have been colleagues with the 2nd Applicant at the Attorney General’s Department. To note, already a number of recusal applications have been filed against several other Judges. While this Court is not hearing the other recusal applications, as pointed out by Learned Counsel Mr Powles, such actions of the Applicants may appear as ‘forum shopping’ for a judge and the Court should be slow to allow recusal on such grounds and circumstances as in the present case. The position could have been different if there was actual evidence substantiating the Applicants’ allegations and they moved for recusal as soon as the Chief Justice became the Presiding Judge. As already noted, the circumstances of the allegations made by the Applicants were within their knowledge for a long period of time and reasons for moving forward with recusal only now are unclear to this Court from their Joint Affidavit.  
52. For all the aforementioned reasons, I am satisfied that Applicants have failed to show that the Chief Justice was socially well known to the Applicants though as a colleague like other judges he may have known the 2nd Applicant. The Chief Justice in the view of this Court was not involved in getting the services of the Applicants in selling the matrimonial property which is confirmed by his former wife who states in her recusal order that it was she who retained the services of the 2nd Applicant and this occurred after the divorce was granted. Further, this Court cannot take cognisance of a statement in the submission of Learned Counsel for the Applicants that this is a politically charged case and therefore the Chief Justice knowing their political views should recuse himself without proof of same.
53. In the light of the denials by way of Affidavit by the Chief Justice, the Applicants have failed to establish the allegations of land scandal, visit by Chief Justice to wine cellar a crime scene, or the Chief Justice being a material witness in the money laundering and firearms cases as contained in their Application. Therefore, Learned Counsel’s submission that a judge is automatically disqualified if he (1) has “personal knowledge of disputed evidentiary facts concerning to proceeding” or (2) is “likely to be a material witness in the proceeding” though correct in law has not been established when one analyses the facts of this case and, therefore, inapplicable. I also observe other factors such the trial judge having a personal interest in the outcome of the case or being related to a party or attorney in the case are also not applicable to the facts of this case.
54. Therefore, from the evidence adduced in this recusal application, the facts relied on by the Applicants for recusal of the Chief Justice bear no merit. Therefore, actual bias has not been established. With regards to the perceived bias, this Court finds that in this instance the unsupported and vague facts seeking recusal do not satisfy the test and the fair-minded and informed observer would not come to the conclusion that there was a real possibility of the Presiding Trial Judge (Chief Justice) being biased (Re Medicaments (No. 2) (supra) and The Government of Seychelles & Anor v The Seychelles National Party & Ors (supra)).
55. It would be pertinent at this stage to refer to the case Livesey v New South Wales Bar Association (1985) L.R.C (Const) – 1107 it was held:

“. . .  it would be an abdication of judicial function and an encouragement of procedural abuse for a Judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the Judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular Court.”

(emphasis mine)

56. In the case of Michel v Michel & Anor (MA 221/2018 (arising from MA 291/2017 and DC 151/2014)) [2019] SCSC 120 (20 February 2019) one of the grounds given by the Learned Judge in her refusal to recuse is reminding Learned Counsel for the applicant that she had taken the official oath prior to her appointment as judge to act without fear, favour, affection or ill will.
57. The case law referred to by Learned Counsel Mr. Lewis appears to play down the importance of a judicial oath. However, in a small jurisdiction like Seychelles where the Constitution is the Supreme Law, Article 135 of the Constitution specifically refers to the importance that a Judicial Officer takes the oath prior to taking office.
58. As was stated by the South African Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others - Judgment on recusal application (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999):

“The reasonableness of the Apprehension must be assessed in the light of the oath of office taken by the judge to administer justice without fear or favour; and their ability to carry out their oath by reason of their training and experience.”

59. The Kenyan Court in Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR in the context of doctrine of necessity and judge’s duty to sit also emphasised that “having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself”. The Court further stated that there is a presumption of impartiality of a judge by virtue of their training.
60. It would be pertinent at this stage for the benefit of all parties, to set down the Constitutional Oath in Seychelles as set out in the 1st Schedule of the Official Oaths Act:

“I                     do swear that I will well and truly serve the Republic of Seychelles in the office of                   and that I will do right in accordance with the Constitution of Seychelles as by law established, and in accordance with the laws of the Republic without fear or favour, affection or ill will (Emphasis added).

SO HELP ME GOD.”

61. The main purpose of a judge taking this oath peculiar to his office at the time of appointment is to ensure that the said judge acts in an independent and impartial manner in the conduct of his official duties as judge in accordance with Article 19 (1) of the Constitution. It is the considered view of this Court that one should not treat this Constitutional oath of office lightly and disregard it. In the absence of reasonable grounds for recusal and evidence substantiating same the judge has a duty to sit in any case.
62. I am satisfied having considered all the aforementioned circumstances set out by the Applicant, that, firstly, the Applicants have not established actual bias. Secondly, I find that the unsupported and vague facts seeking recusal of the Chief Justice do not satisfy the perceived bias test. This Court is of the view that a fair-minded and informed observer having considered all the circumstances peculiar to this case, would not come to the conclusion that there was a real possibility of the Presiding Trial Judge (Chief Justice) being biased.
63. I therefore proceed to decline and dismiss the Application for recusal.

Signed, dated and delivered at Ile du Port on 1st June 2023.

____________

Burhan J