Valabhji v Republic & Ors (MC 42 of 2022) [2023] SCSC 602 (8 August 2023)

CAROLUS J

Background, Pleadings & Evidence

1. The applicant is the petitioner in CP09/2022 in which he essentially challenges the constitutionality of the laws under which he stands charged and is being prosecuted together with other persons, with offences involving money-laundering in CR114/2021 (ACCS case).

The Application

2. He has now filed a Notice of Motion for the recusal of the Honourable Judges Burhan and Esparon in CP09/2022 pursuant to Rule 8 of the procedure for recusal set out by the Court of Appeal in Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee SCA 4 of 2014 [2014] SCCA 33 (12 December 2014) (the “Rules”). He also seeks such further or other order as may be just and necessary in the circumstances. The motion is supported by the affidavit of the applicant and relevant documents.
3. The motion is filed consequent to the refusal of the Chief Justice of the applicant’s request for recusal of the said judges in CP09/2022 which was communicated to the applicant in open court by Burhan J presiding at the sitting of the 21st March 2023, pursuant to the procedure set out in the Rules.
4. The motion is now before this Court in terms of Rule 10 of the Rules for its determination.
5. In his affidavit in support of the motion, at para 7, the applicant avers that he believes that there are reasonable grounds that the Honourable Judges should be removed from hearing CP09/22 “on account of a real likelihood/danger of bias whether consciously or subconsciously and/or the appearance and perception of the public of bias on the part of their Lordships”.

 

6. The grounds set forth for the recusal of Esparon J in the applicant’s affidavit are as follows:

9.         That Esparon J was one of the Commissioners appointed on the 11th of July 2018 to sit on the Commission of Inquiry into the disposal of the Immovable Assets of COSPROH during the process of its privatization, and some of the offences for which I have been charged in CR114 of 2021 is in respect of disposal of assets of COSPROH.

 

10.       That a copy of the Commission of Inquiry’s report is part of the disclosure in CR 114 of 2021 and will definitely be exhibited in the said case and it is very likely that Esparon J will be called as a witness in the said case.

 

11.       That furthermore there is a statement of the Leader of Government Business (LGB) in the National Assembly, lawyer Bernard George, which forms part of disclosure in case CR4 of 2022 in which he states that former Supreme Court Judge and former Acting CJ, Karunakaran who was removed as judge by the previous Government had, previously told him that regular applications were made for the interception of the LGB’s communication during the reign of the previous Government. The email that LGB is claiming was intercepted is dated October 2016. That is the time the (sic) Esparon J was Principal State Counsel in the Attorney General’s Office, so if that is correct, the application for interception may have been done by the (sic) Esparon J or with his knowledge. This matter will come up in the evidence to be led before court and Esparon J may be called as a witness in that case.

 

7. Having set out the grounds for Esparon J’s recusal, the applicant avers that:

12.       … due to the matters averred … Esparon J’s sitting as a judge on this CP 9 of 2022 will be conflicted and this will not only raise the issue of perceived bias in the eyes of the public but there will also be a real likelihood/danger of subconscious bias if not conscious bias.

 

8. It is further averred that the following grounds for recusal exist in respect of Burhan J:

13.       … Mohan Burhan J was one of the Supreme Court Judges who signed the search warrants in respect of the cases which led to searches and seizures of my properties/assets and charges being levelled against me in the two cases (that is case CR114 of 2021 and Case CR4 of 2022, that has given rise to my detention as well.

.

14.       … Burhan J has been the presiding judge involved in case CR8 of 2022 (ACCS v Fahreen Rajan’s – POCA), in which proceedings it is stated that I am still under investigation which is continuing, and which case has led to Rajan entering into an agreement to become a witness against me in CR 114 of 2021 in return for charges to be dropped against her in CR08 of 2022. Furthermore it is averred that the property seized in case CR 8 of 2022 is mine. The matter relating to the two above mentioned cases are matters referred to in applications for my further holding on remand.

 

15.       Burhan J is also the presiding judge in case CM97 of 2022 regarding the detention of B39, a property belonging to me, which was previously under the joint custody of the Anti-Corruption Commission (ACCS) with respect to case CR114 of 2021, and now under police custody with respect to case CR4 of 2022, pursuant to a s26 of the PTA [Prevention of Terrorism Act 2004] order by Burhan J which orders made in CM97 of 2022 are now subject to a leave to appeal and I have, together with my wife and daughter, filed a Constitutional Petition against Burhan J’s order in CM 97 of 2022 which is the subject matter of a violation of my right to property as guaranteed under article 26 of the Constitution.

 

16.       Burhan J is also the presiding judge over case SPV 008/22, a writ habere in respect of another one of my properties, B218, which was taken over by the Government/Police when the ACCS and police effected their searches on B39 above mentioned and which the Police is currently using as their base to operate therefrom to guard B39 further to the s26 order of Burhan J above mentioned in case CM97 of 2022.

 

17.       … the fact that Burhan J has been involved in the various cases which links back to my detention by the ACCS and the Police, and to me being charged and my assets and properties being seized and detained, under the offending law that I am challenging under this CP 9 of 2022, this creates an “incestuous relationship” between the various cases and this CP 9 of 2022 so much so that any reasonable person can easily perceive him as not being impartial or capable of being impartial.

 

9. After having set out the grounds for Burhan J’s recusal, the applicant goes on to state that:

18.       Due to the matters averred in paragraphs 13 to 17 of this affidavit Burhan J sitting as a judge on this CP 9 of 2022 will be conflicted. There will also be a real danger/likelihood of actual subconscious bias if not conscious bias. The perceived absence of an appearance of impartiality is also essential for public confidence in the administration of justice.

 

10. In support of his averments (at para 15 of his application) the applicant has produced Exhibit MV5 – Constitutional Petition filed by the applicant, his wife and daughter challenging the constitutionality of section 26 of the Prevention of Terrorism Act 2004 and the Detention Order of Burhan J in respect of property B39 owned by the applicant and on which the family home stands, and subsequent orders for its extension.  
11. The applicant avers that for the reasons stated in the affidavit that both Judges Burhan and Esparon whether consciously or subconsciously, will not bring an impartial mind to bear on their adjudication of CP09/2022. He refers to the statement from R v Sussex Justices Exp McCarthy [1924] 1 KB 256, [1923] All ER Rep 233, that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” to say that in CP09/2022 the absence of an appearance of impartiality which is essential for public confidence in the administration of justice will bear heavily if Judges Burhan and Esparon are to sit on that case. He also avers that where the impartiality of a judge is in question, appearances are just as important as reality.

Affidavit in Reply of Attorney General

 

12. The Attorney General, the Honourable Frank Ally, has filed an affidavit in response to the recusal application on behalf of the 1st, 2nd, 3rd, 4th, 5th and 8th respondents, in which he points out that he does not make the affidavit in his capacity as amicus curiae.
13. He avers that it is common ground between the parties that a court or tribunal hearing a case must be impartial and that justice “should not only be done, but should manifestly and undoubtedly be seen to be done” as stated in R v Sussex Justices Exp McCarthy (supra) also quoted by the applicant.
14. He goes on to aver that there are three grounds upon which the recusal of a judge may be sought, as follows: “first, where the judge has a direct financial interest in the outcome of the case and therefore would not be impartial; secondly, where it can be positively demonstrated that the judge is biased in favour of a particular party (“actual bias”); and thirdly, where the judge’s conduct or behaviour gives rise to a suspicion that he or she is not impartial (“apparent bias”)”, with the test for the latter being, as was held in Porter v Magill [2002] 2 AC 357, “whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the court or tribunal is biased”.
15. In relation to any allegation of apparent bias, the Attorney General further averred that -

a. a real possibility of bias will only be demonstrated where it can be shown, on the evidence before the court, that the judge would approach a case with a closed mind or with anything other than an objective view, i.e, where the judge might, in some way, have ‘pre-judged’ the case.

 

b. the fair-minded observer is not to be confused with that of the litigant making the allegation of bias, given that the litigant lacks objectivity which is characteristic of the fair-minded and informed observer.

 

16. He noted that the applicant is not alleging that the Honourable Judges have a direct financial interest in the outcome of the case, but rather “seems to be arguing that the case gives rise to actual or apparent bias on the part of the Honourable Judges” and observes that the affidavit of the applicant “seemingly conflates and misrepresents the legal tests for both actual and apparent bias.”
17. On that basis, and based on the evidence contained in the recusal application, the Attorney General averred that the applicant had failed to demonstrate that either of the Learned Judges is, or can be said to be, biased in favour of the respondents, and that therefore, no actual bias can be said to arise. He further avers that the evidence before the court does not show any issues of apparent bias on the part of either Esparon J or Burhan J, in light of the test to be applied which is whether there is a real possibility of bias on the part of the Learned Judges.
18. The Attorney General therefore avers that the application discloses no proper basis as to why the Honourable Judges should be “stood down” from hearing the petition in CP09 of 2023. He further avers that “as their Lordships have taken oaths to act impartially and independently, the burden of demonstrating bias, actual or apparent, is a heavy one, and one that can only be discharged by an applicant on the basis of positive and properly grounded evidence”, and concludes that this burden has not been discharged by the applicant. Consequently he prays for dismissal of the recusal application with costs.

Affidavit in Reply of Anti-Corruption Commission Seychelles

19. The 7th respondent, the Anti-Corruption Commission of Seychelles (“ACCS”) has filed an affidavit in reply sworn by its Deputy Commissioner Mr. Denis Joubert. In his affidavit. Mr. Joubert summarises the grounds for recusal of each of the judges and sets out the legal framework and case law applicable to recusal applications. On the merits he avers that while the issue of recusal is entirely a matter for the Court to determine on evidence, the averments of the applicant are either misconceived or are without foundation.
20. In regards to the grounds raised by the applicant for the recusal for Esparon J, he avers that:

i.    The COSPROH Inquiry, commissioned by President Faure in 2018, has never published a final/full report; an interim report has been published, of which Mr. David Esparon (as he then was) was contributing Commissioner (i.e. before he became a Justice of the Supreme and Constitutional Courts);

 

ii.   The interim findings of the COSPROH Inquiry (whether or not they are admissible as evidence in the trial of CR 114 of 2021) have nothing to do with the issues raised in the Applicant’s Petition to the Constitutional Court CP9 of 2022;

 

iii. Esparon J has not provided a witness statement, nor is he due to be a witness, in CR 114 of 2021;

 

iv. The suggestion that Esparon J might be called in CR 4 of 2022, is without evidential foundation; and in any event, the matters averred have no bearing upon the issues to be resolved in this case before the Constitutional Court;

 

v.   There is no evidence produced by the Applicant of interest or bias (actual or perceived) on the part of Esparon J against the Applicant.

 

21. As to the grounds raised by the applicant for the recusal of Burhan J, Mr. Joubert averred as follows:

i.    The fact that Burhan J had involvement in the signing of search warrants or involvement in other applications or cases involving the interests of the Applicant cannot of itself found an application for recusal;

 

ii.   The applications under the Prevention of Terrorism Act 2004 (‘the PTA’)do not involve the ACCS and have not been made by the 7th respondent;

 

iii. Those ancillary applications do not have any bearing upon the matters to be considered by the Constitutional Court in this case;

 

iv. Burhan J has not made any ruling which is the subject of the Petition in CP9 of 2022;

 

v.   There is no evidence produced by the Applicant of interest or bias (actual or perceived) on the part of Burhan J against the Applicant.

 

22. Finally Mr Joubert avers that that whilst the issue of recusal is entirely a matter for the reviewing Judge, in the absence of evidence that the impartiality of Justices Burhan and Esparon might reasonably be questioned, the reviewing judge should be slow to accede to the application for recusal.
23. Only the applicant has filed submissions in regards to the application. Counsels for the other parties declined to do so indicating that the affidavits of the respondents provide a complete answer to the recusal application. 

Applicable Law and Analysis

24. The impartiality of the Honourable Judges Burhan and Esparon is being questioned in CP09/2022 in which the constitutionality of the laws under which the applicant has been charged and is being prosecuted in CR114/2023 is being challenged.
25. It is evident from the averments in the applicant’s affidavit at paragraphs 7, 12, 17 and 18 which are reproduced at paragraphs [5], [7], [8] and [9] of this judgment where reference is made in different variations to “real likelihood/danger of bias”, “perceived bias in the eyes of the public” and “perceived absence of an appearance of impartiality” that the applicant is alleging apparent bias on the part of the judges in question. He is not alleging actual bias or that the judges’ have an interest in the outcome of CP09/2022.The grounds on which recusal is sought support this view.
26. In that regard, all parties are agreed that R v Sussex Justices Exp McCarthy (supra) correctly states that“justice should not only be done, but should manifestly and undoubtedly be seen to be done”
27.  In the case of Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee (supra) the Court of Appeal approved the test to be applied in cases of apparent bias as stated in Magill v Porter (supra). It stated:

[22]   …  Considering the source of the legal system we have borrowed, the democratic structure of our political system and our Constitution, it would make sense to adopt the English test formulated in Magill v Porter [2002] 2 AC 357. In this case, the House of Lords rang out the old to ring in the new. The old one was the Gough test: that is whether, having regard to all the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard, or have regarded, with favour or disfavour, the case of a party to the issue under consideration by him: see [1993] AC 646].

 

[23]   The new test was formulated by the House of Lords after adding a couple of more elements into the test arrived at by the Court of Appeal in Re Medicaments (No. 2) [2001] 1 WLR 700 which was: “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

 

[24]   The new test, therefore, is -

“having ascertained all the circumstances bearing on the suggestion that the Judge was (or could be) biased, the court must itself decide ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”

 

28. In order to apply this test it is necessary to examine the grounds on which the applicant seeks the Honorable Judges’ recusal.
29. In regards to Esparon J, it is averred that he was one of the Commissioners in the Commission of Inquiry appointed to investigate the disposal of the immovable assets of COSPROH (a former state owned enterprise) during the process of its privatisation. This is not disputed. The applicant further avers that some of the offences with which he has been charged in CR114/2021 concerns the disposal of COSPROH assets. Although the applicant does not say so, the inference is that Esparon J would have obtained certain knowledge due to his position as a Commissioner, which would affect his impartiality in determining a case which concerned those assets, in that such knowledge could influence or prejudice his judgment. Firstly I note that Exhibit MV1 - a copy of a charge sheet – which presumably was intended to show that some of the offences with which the applicant stands charged in CR114/2021 are COSPROH assets appears to be the wrong charge sheet as it concerns offences of possession of firearms and ammunition.
30. Secondly the applicant has produced two pages of an interim report of the Commission of Inquiry dated 15th June 2020 (Exhibit MV3). The second page produced contains a “Message of the Commissioners” signed by the Chairperson and by Esparon J in his capacity as Commissioner, explaining that the report is only an interim one because “more work needs to be done to clear certain doubts and draw certain conclusions in view that the work of the Commission was severely constrained by the passage of time, unavailability of original records and reliable information”. The report further states that only after Government has implemented its recommendations and if further evidence is gathered through various processes will the Commission be in a position to examine the same and produce a final report. It is pertinent that a final report was not produced to this Court. In fact, in his affidavit on behalf of the ACCS, Mr. Joubert states that the Commission of Inquiry never published a final/full report. It would therefore appear that no conclusive findings were made by the Commission of Inquiry.
31. Thirdly and most importantly I note that even if CR114/2022 contains charges relating to the disposal of COSPROH assets, CP09/2022 in which the recusal of Judges Burhan and Esparon is sought, concerns the Constitutionality of the laws under which the applicant stands charged in CR114/2022. The determination of CP09/2022 which is purely a legal matter does not require a consideration of factual matters which would be necessary for the determination of CR114/2022. Therefore any knowledge acquired by Esparon J in his participation in the Commission of Inquiry is irrelevant to the issues arising in CP09/2022.
32. The applicant also avers that the Commission of Inquiry’s report is part of the disclosure in CR114/2021 and that it “will definitely be exhibited in the said case and it is very likely that Esparon J will be called as a witness”. Presumably here the applicant is referring to the Interim Report as no Final Report was exhibited and in light of Mr. Joubert’s affidavit evidence that a final report was ever published. Mr. Joubert, on behalf of the ACCS categorically states that not only has Esparon J not provided a statement but is also not due to be a witness in CR114/2021.  It bears repeating that in any event the Commission of Inquiry’s report is not relevant to the issues raised in CP09/2022.
33. Esparon J’s recusal is also sought on the grounds that he may be called as a witness in CR4/2022 on the basis that he was the Principal State Counsel in the Attorney General’s office in October 2016, when the applicant claims that emails of Bernard Georges were being intercepted and therefore Esparon J may have made the application for interception of communication or had knowledge of it. The applicant has exhibited a Police Statement Form dated 3rd December 2022 and purportedly signed by B. Georges (Exhibit MV4), to which is attached an email dated 22nd October 2016 which Mr Georges says in the statement was from him to Mr. Roger Mancienne. In the statement he confirms that the email was written by him, complains about the interception of his communications and expressed concerns as to why it was found at the home of the applicant during a search in November 2021. Suffice it to say that this ground is largely based on speculation, and as stated by Mr. Joubert in his affidavit on behalf of ACCS “[t]he suggestion that Esparon [J] might be called in CR04/2022 is without evidential foundation; and in any event, the matters averred have no bearing upon the issues to be resolved in [CP09/2022]”.
34. On the basis of the above I find that the applicant has failed to establish any bias, actual or apparent, on the part of Esparon J.
35. In regards to Burhan J, the applicant claims that the signing of warrants by him at investigation stage which led to the applicant being charged in CR114/2022 and CR04/2022, as well as Burhan J’s  involvement in other applications or cases in which the applicant or his property is directly or indirectly involved (CR08/2022 – Application under POCA against Fahreen Rajan; CM97/2022 – Detention of B39; and SPV008/22 – Writ Habere Facias Possessionem for B218),  creates an “incestuous relationship” between these cases and CP09/2022, which in turn creates a perception of bias.
36. The fact that Burhan J signed the warrants or was involved in the abovementioned cases has no relevance to the matters arising for consideration in CR09/2022. Furthermore a judge’s previous involvement in cases involving a person is not of itself grounds for a recusal application in a later case involving that same person. I find the following cases relevant in that regard.
37. In Locabail (UK) Ltd v Bayfield Properties [2000] Q.B. 451, the Court stated at page 480 that:

... a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. Emphasis added.

 

38. In Shaw v Kovac [2017] EWCA Civ 1028 the claimant – the daughter of the deceased – claimed that her father would not have consented to a medical procedure following which he died, if he had been informed of the risks. The defendants agreed not to defend the claim and judgment was entered against them. The claimant appealed and made an application for two of the appeal judges to recuse themselves on the ground that one of the judges (Burnett LJ) had been involved in earlier judicial review proceedings against the outcome of an inquest into her father’s death, and the other judge (Davis LJ) had been involved in an application for leave to appeal against the findings in that case, and both judges had made decisions adverse to the claimant. On the issue of apparent bias, Davis LJ after referring to the test in Magill v Porter (supra) reproduced at paragraph [27] of this judgment, asked himself the question “[w]hat then, in the present case, gives rise to apparent bias?”, and stated:

16.       Mr. Berkley [counsel for appellant/claimant] acknowledged that he could not argue for apparent bias simply by reason of the fact that Burnett LJ and I had (separately) been involved as judges in decisions adverse to Mrs Shaw in the previous judicial review proceedings relating to the inquest. But he said that there was more.

 

17.       So far as [Burnett LJ] was concerned, Mr. Berkley said that an appearance of bias would arise from a statement made by him at paragraph 68 of his judgement in the Administrative Court. In dealing with a certain schedule put forward by Mrs. Shaw … Burnett J … had said “I regret to say that the schedule was misleading” going on to explain why. Mr. Berkley saw fit to assert that that such a finding impugned Mrs. Shaw’s integrity: hence there was, he said, apparent bias for the purpose of the present appeal.

 

18.       That is an untenable argument. Burnett J was expressing himself, as he was entitled to, by reference to the schedule put before him. That this might be seen to be in some way by way of a reproof of Mrs Shaw is for present purposes nothing to the point. To the extent that this statement was a criticism of Mrs. Shaw it plainly comes within paragraph 28 of the judgment of the court (delivered by an exceptionally strong Court of Appeal) in the case of  Locabail (UK) Ltd v Bayfield Properties [2000] Q.B. 451, where it was said:

 

"The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection."

 

19.       Such a remark as made by Burnett J could not begin (from the perspective of a fair minded and informed observer) to show a predilection against Mrs. Shaw in any subsequent litigation in which she was involved.

 

39. Davis LJ went on to state that likewise in the case of Otkritie International Investment Management Limited and others v Uromov [2014] EWCA Civ 1315, it was stated that:

19.       … the fact that a judge has made adverse findings against a party does not preclude him or her sitting in judgment in subsequent proceedings,

 

and observed that it was striking that in that case, the trial judge was held by the Court of Appeal  to have been positively wrong to recuse himself on the application of the defendant in circumstances where, in the same complex proceedings, the judge previously had made findings of actual fraud on the part of the defendant. Davis LJ concluded that “[t]he present case is a fortiori to the position arising in that case” and on that basis and for other reasons, went on to find that “there was and is … no proper basis for Burnet LJ to recuse himself. Apparent bias does not arise in this case”.

 

40. As to the grounds for Davis LJ’s recusal, these are stated as follows:

24.       … Mr. Berkley referred to paragraph 24 of the judgment of Hallet LJ (with which judgment I had agreed) where she referred to Mrs. Shaw “trying to run a totally different argument from that pursued before the coroner and unfortunately it is based solely on her speculation and assertion”. He also referred to paragraph 27 of her judgment, where Hallet LJ referred to findings of fact which the jury had been entitled to make.

 

However Davis LJ found that “these remarks cannot, for the like reasons as given above, ground a case of apparent bias”.

 

41. He went on to add:

25.       … It is not difficult to infer that Mrs. Shaw has had and perhaps still has, I do not know a burning sense of grievance at the circumstances of her father’s death and at the failure of what she sees to be the truth to have emerged … She clearly , and again very understandably, remains very close to this whole case. But that she personally would not wish to have sitting on this appeal two judges who have previously been involved in decisions adverse to her cannot of itself procure a recusal. The law is clear. The test is objective. The outcome cannot be determined by the subjective views or wishes of the objecting party … But any inclination to defer to the individual sensibilities of individual parties cannot of itself justify, let alone require, a judge in recusing himself or herself. As stated by Chadwick LJ in Triodos Bank NV v Dobbs [2005] EWCA Civ 486 (and cited in Otkritie at paragraph 27):

 

“7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant  whether it be a represented litigant or a litigant in person criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. Emphasis added.

 

42. The court in that case, after hearing the arguments in the recusal application, announced its conclusion that neither Davis LJ nor Burnet LJ would or should recuse themselves, and that the two judges considered that it was their judicial obligation to carry on hearing the appeal.
43. For the reasons given and on the authority of the above cases, I find that the reasons given for Burhan J”s recusal is not sufficient to ground a case of actual or apparent bias.
44. The significance of the safeguards to ensure the independence and impartiality of judges also cannot be downplayed, where the impartiality of judges are challenged. Our Constitution guarantees the independence and impartiality of the judiciary. Article 19 (7) of the Constitution provides as follows:

“Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by any person before such a court or authority the case shall be given a fair hearing within a reasonable time”

 

45. Article 119(2) and (3) further provides:

(2) The Judiciary shall be independent and be subject only to this Constitution and the other laws of Seychelles.

 

(3) Subject to this Constitution, Justices of Appeal, Judges and Masters of the Supreme Court shall not be liable to any proceedings or suit for anything done or omitted to be done by them in the performance of their functions.

 

46. This independence of the judiciary is further reinforced by Constitutional provisions which provide for the appointment of judges, their tenure of office, the circumstances in which they may be removed and for their remuneration to be provided for by law.
47. In addition judges take the Judicial Oath when assuming office, as stipulated by section 9 of the Official Oaths Act 1976 (Act 15 of 1976), which reads as follows:

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.

SO HELP ME GOD.

 

48. The wording of the Judicial Oath is reflected in paragraph 2.1 of the Seychelles Code of Judicial Conduct 2010 (the “Code of Conduct”) which reads as follows:
    1. A judge shall perform judicial duties without fear, favour, ill-will, bias or prejudice.

 

49. Paragraph 2.4 of the Code of Conduct provides specifically for recusal of a judge. It provides:

A judge shall refrain from participating in any proceedings in which the impartiality of the judge might reasonably be questioned. Without limiting the generality of the foregoing a Judge shall disqualify himself or herself from participating in any proceedings in the following instances:-

 

(a)       Where the judge has personal knowledge of the disputed facts concerning the proceedings and which knowledge is likely to influence or prejudice his judgment;

 

2. Where a member of the Judge’s family, employee or friend is representing a litigant, is a party, or has interest in the outcome of the matter in controversy in the proceedings.

 

50. The main purpose of the aforementioned Constitutional provisions and the taking of the judicial oath by judges at the time of appointment is to ensure that they act in an independent and impartial manner in the discharge of their duties in accordance with Article 19 (1) of the Constitution. In that regard, the Court of Appeal in Michel & Ors v Dhanjee & Ors (SCA 5 & 6/ 2012) [2012] SCCA 23 (31 August 2012) stated:

… A judge is not obliged to recuse himself or herself simply because he or she is asked to. Judges are appointed to hear and decide cases; indeed they have a duty to do so. They sometimes have to make a decision whether or not to hear a case. The principles of natural justice require that a decision maker not sit when he or she has a direct interest in the case or when there might be no actual bias but that there might be perceived bias. In those cases judges recuse themselves sua sponte. In the case of Charles v Charles (unreported ) SCA 1/2003, where the independence of the judiciary was challenged, Ramodibedi J felt it necessary “to rule on the point once and for all” and reminded counsel of constitutional provisions that ensure the impartiality and independence of judges. We join ourselves in this reminder to counsel. Judges do not take their constitutional oaths lightly; their tenure and salary are guaranteed despite their decisions. Any misbehaviour on their part is sanctioned by article 134 of the Constitution. An application for recusal based on bias against a litigant before them cannot be made lightly. Emphasis added.

 

51. The Court of Appeal in Michel & Ors v Dhanjee & Ors further emphasised the importance of the judicial oath in cases where a judge’s impartiality is questioned and the duty of judges to hear cases “in which they are not obliged to recuse themselves” by referring to the following passage in what it termed the land mark case on recusal, namely 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) as follows:

… The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. Emphasis added.

 

52. In the case of Michel v Michel & Anor (MA 22112018 (arising from MA 29112017and DC 15112014)) [2019J SCSC 120 (20 February 2019) the Learned Judge in refusing to recuse herself reminded 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.
53. It appears from the above cases that in the absence of sufficient grounds to justify the recusal of a judge, that judge has a duty to hear the case before him or her and not to recuse him or herself simply because he or she has been asked to. The remarks of Chadwick LJ in Triodos Bank NV v Dobbs reproduced at paragraph [41] hereof are also relevant in that regard. The burden of establishing bias, actual or apparent is on the applicant, and in cases such as the present one where perceived bias is alleged, the oath of office taken by the judge weighs heavily in the balance. In the present case not only are there insufficient grounds to justify the recusal of the judges but there is no reason to believe that they will not be faithful to their oath of office.
54. This judgment would not be complete without reference to the ‘exception of necessity’ or ‘rule of necessity’ given that the issue was raised by the applicant in his submissions. In Michel & Ors v Dhanjee & Ors (supra) the Court of Appeal explained it as follows:

The rule of necessity was recognized as early as the 15th century in English common law and has been followed in all common law countries. It is expressed as the rule “that a judge is not disqualified to try a case because of his personal interest in the matter at issue if there is no other judge available to hear and decide the case” (Atkins v United States 214 Ct Cl 186 (1977) and reaffirmed in Ignacio v Judges of US Court of appeals for Ninth circuit 453F.3d 1160 (9thcir. 2006)). The rule of necessity is crucial for the administration of justice, especially in a country like Seychelles with a small bench and a small population. As expressed by Trott J in Pilla v American Bar Association 542F.2d 56, 59 (8th Cir 1976)“The underlying maxim for the rule of necessity is that where all are disqualified, none are disqualified”.

 

55. It explained the importance of  the “rule of necessity” in the Seychelles context as a small jurisdiction as follows:

In any case, Seychelles is a small jurisdiction. The exception of necessity in judicial disqualification cases is even more meaningful in these circumstances. In such a small community as ours, judges invariably are related to parties, friendly with one or both parties, know the parties or are perceived to have certain political and other affiliations whether these perceptions are accurate or not.

 

56. In his submissions, the applicant suggests that in the event of non-availability of other judges to hear CP09/2022, an adhoc panel of non-resident judges may be appointed for that purpose as was done in the Court of Appeal case of Vijay Construction (Proprietary) Limited) v Eastern European Engineering Limited (SCA 28 of 2020) [2022] SCCA 58 (21 October 2022). He further submits, on the authority of Jian Ying Ourgame High Growth Investment Fund (unreported 19 July 2022) that any concerns of this Court in regards to the delay and additional expenditure caused to the parties by the recusal of Burhan J and Esparon J would be outweighed by the right to a fair trial by an impartial and independent judge.
57. The applicability of the “rule of necessity” depends on the facts of each case. On the facts   of the present case it does not even arise for consideration, given the findings of this Court that the grounds on which the recusal of Burhan J and Esparon is sought cannot found a recusal application.
58. Finally I wish to address the issue of my own recusal in this motion for Burhan J and Esparon J’s recusal, raised by applicant’s counsels in their submissions. Counsels suggest that I should consider recusing myself from hearing this motion on the basis that I had dealt with EXP 01/2023 arising from CR114/2021 – an application for a restraint order against the applicant’s assets, which I granted on 31st March 2023 – and subsequent applications by the applicant for variation of the restraint order for the release of funds including to pay for legal services in his various court cases. The same reasoning is to be followed as for the recusal of Burhan J. The matters which were considered in EXP 01/2023 and subsequent applications for variation of the restraint order, have no bearing on the issues arising for determination in the present motion for recusal, so that no issue arises as to my being influenced by matters of which I have knowledge by virtue of having dealt with EXP 01/2023. For that reason, I saw no necessity at the time I was allocated the recusal motion and still see no necessity at this point in time, to recuse myself on the basis of either actual or perceived bias as neither comes into play in the circumstances: no actual bias is disclosed and as to perceived bias, no fair-minded and informed observer having considered all the circumstances, would conclude that there was a real possibility of my being biased.
59. I further note that the applicant has not followed the procedure set out in Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee SCA 4 of 2014 [2014] SCCA 33 (12 December 2014) to obtain my recusal. The Restraint Order in EXP 01/2023 was delivered on 31st March 2023. The record shows that my first appearance in the recusal motion was at the sitting of 4th of April 2023.  By the sitting of 16th May 2023, all affidavits of the respondents had been filed and the applicant was given until 30th May 2023 to file his submissions which he duly did, and in which he raised the issue of my recusal. In my view he had ample time from the time of service of the restraint order on him, shortly after 31st March 2023 up to the time of filing of his submissions on 30th May 2023 to kickstart the procedure for my recusal, which he chose not to do, but instead claims that I should have disclosed my so called “connection” to the case in hand to him at the first sitting of the recusal motion. Given that no actual or perceived bias arises on my part in the hearing of this recusal application, I found no necessity to do so.

Decision

60. The applicant seeks the recusal of the Honourable Judge Burhan and the Honourable Judge Esparon in the Constitutional Court Case CP09/2022. He has provided the grounds on which he is seeking their recusal with supporting documents. The onus is on him to establish that the judges have an interest in the outcome of the case or bias, actual or apparent, which can only be done on properly grounded evidence.  Having considered the Notice of Motion, the supporting affidavit and supporting documents exhibited, as well as the applicant’s submissions, and in light of the affidavits in reply of the respondents, it is my view that the applicant has failed to establish sufficient grounds for the recusal of Burhan J and Esparon J. The matters averred in the application do not disclose any interest of the judges in the outcome of CP09/2022 or actual bias, and the evidence adduced does not satisfy the perceived bias test: A fair-minded and informed observer having considered all the circumstances peculiar to this case, would not conclude that there was a real possibility of their being biased.
61. The recusal application is therefore dismissed, with costs awarded to the 1st, 2nd, 3rd, 4th, 5th and 8th respondents.

         

Signed, dated and delivered at Ile du Port on 8th August 2023.

 

 

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Carolus J