Valabhji & Anor v The Commissioner of Police (CM 97 of 2022) [2023] SCSC 426 (9 June 2023)

ADELINE, J

1. This a joint application brought by way of Notice of Motion dated 25th January 2023 supported by two separate affidavits, affirmed by the Applicants individually, namely, one Mukesh Valabhji, (“the 1st Applicant”) on the 3rd January 2023, and one Laura Valabhji, (“the 2nd Applicant”) on the 3rd of March 2023. By their joint application, the Applicants seek for leave of this court to appeal to the Court of Appeal “against the interlocutory ruling of this court made on the 17th January 2023, read with his ruling on the 6th January 2023 in case number CM No 97 of 2022”.

2. Although this joint application makes no mention of the statutory provision under which this application is made, it can safely be assumed, that it is a joint application made pursuant to Section 12(2) (a) (i) and (b) of the Courts Act, Cap 52.

3. The application was strenously opposed by the Respondent through an affidavit filed in reply sworn by one Detective Sgt Davies Simeon of the Criminal Investigation Division of the Police Force.

4. To situate this application within the existing statutory framework, it is necessary, from the inception, to spell out the provisions of Section (2) (a) (i) and (b) of the courts Act, couched in the following terms;

“ 12 (2) (a) In Civil matters no appeal shall lie as of right

1. From any interlocutory judgment or order of the Supreme Court….

2. 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”.

5. The presiding Judge in this case (CM 97 of 2022), is Burhan j. On the 6th January 2023, I happened to be the duty Judge when a fresh application by the Commissioner of Police dated 27th December 2022 for renewal of the detention order last made by Burhan J on the 9th December 2022 pertaining to property B39. On the same day, I made an order and further order on the 17th January 2023. It is against the background of these orders, that the Applicants seek for leave of this court to appeal against them to the Court of Appeal.

6. I have since taken the liberty to go through all the applications, replies, orders and records of the proceedings in CM 97 of 2022. Arguably, as much as I could gather, this case is about detention of B39 nothing else, although, there has been a need for the court to deal with few interlocutory applications in the process and in between. I am not therefore pursuaded, that the ruling of this court made on the 6th January 2023, and 17th January 2023 was an interlocutory ruling or order. It is my considered opinion, that it was an order to the main application pending the making of further order by Burhan J.

7. I say so, because this case is all about further detention of property seized by the commissioner of police pursuant to Section 26(1) of the Prevention of Terrorism Act 2004 (“the PTA”) Cap 179.

8. The record of proceedings shows, that on the 13th September 2022, by virtue of Section 26(4) read with Section 26(5) of the PTA, Burhan J made a detention order in respect of the said property (B39) valid for a period of 60 days. As per Section 26(5) of the PTA, such order can be renewed for a further period of 60 days until such time as the property referred to in the order is, where applicable, produced in court in proceedings for an offence under this Act in respect of that property”.

9. A further application dated 9th November 2022, was made by the Commissioner of Police pursuant to Section 26(5) of the PTA for a renewal of the detention order. By order dated 9th November 2022, Burhan J renewed the detention order for a further 60 days.

10. Therefore, it is my considered opinion, that the order made in the ruling of the 6th January and 17th January 2023, was not an interlocutory order, but an order pertaining to the main application perse, pending the determination of the last application by the Commissioner of police dated 27th December 2022 made pursuant to Section 26(5) of the PTA for a renewal of the detention order for a further 60 days.

11. It follows, that an appeal to the Court of Appeal against the order of this court made in the ruling of the 6th and 17th January 2023 is as of right, and as such, leave of this court is not required. Therefore, proceedings having been wrongly instituted under the provisions of Section 12(2) (a)(i) read with Section 12 (2) (b) of the Courts Act lead to the inevitable consequence, that this application for leave to appeal to the Court of Appeal against the order of this court dated 6th and 17th January 2023 has to be dismissed.

Signed, dated and delivered at Ile du Port 9 June 2023.   

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B Adeline, J