Elizabeth vs Barbe (MC 57/2024) [2024] SCSC 167 (11 September 2024)

SUPREME COURT OF SEYCHELLES

Reportable

MC 57/2024

In the ex parte matter of:

FRANK ELIZABETH Applicant

(Attorney for Mr Gianni Bordino and Mrs

Deborah Bordino born Malcuori)

Of

Eden House, 1^st Floor,

Eden Island

Mahe

Seychelles

(making the application on their behalf)

and

MR TED BARBE Respondent

THE COMMISSIONER OF POLICE

Of

Victoria

Mahe

Seychelles

Neutral Citation: Elizabeth vs Barbe (MC 57/2024) (12 September 2024).

Before: Adeline J

Summary: Application for a writ of HABEAS CORPUS/rule 4 (1) and rule 4 (5) of the Criminal Procedure Rules, 2015.

Heard: 11 September 2024

Delivered: 12 September 2024

RULING

Adeline J,

1. This court is seised of an application made pursuant to rule 4 (5) of the Criminal Procedure (Habeas Corpus) Rules, 2015 (SI 12 of 2015) (“the Rules”) by Frank Elizabeth, Attorney for one Mr Gianni Bordino and Mrs Deborah Bordino born Malcuori and making the application on their behalf, (“the Applicant”).

2. The application is supported by an affidavit sworn by the said Frank Elizabeth who avers, inter alia, that he is the legal representative of the two persons on whose behalf he has made the application.

3. By the application, the Applicant claims that the detention of Mr and Mrs Bordino is unlawful and thus seeks for the following reliefs;

“1. That a writ of habeas corpus is issued compelling the Respondent to immediately produce Mr Gianni Bordino and Mrs Deborah Bordino before the court on a date to be appointed by the court and thereafter to order their release from detention to provide a full explanation for the lawfulness of their detention.

2. That the Respondent be prohibited from deporting Mr Gianni Bordino and his wife Deborah Bordino, until the final determination of their appeals before the Minister for Internal Affairs and the Court of Appeal or further order of this Honourable Court.

3. Any further relief this Honourable court deems just and appropriate.”

4. In his affidavit in support of the application, inter alia, Mr Elizabeth, makes the following averments as per the paragraphs indicated below;

“1.2 This affidavit is made in support of an urgent application for a writ of habeas corpus for the release of Mr Gianni Bordino and his wife, Deborah Bordino, from unlawful detention by the Respondent on the directive of the Immigration Department of Seychelles under the Ministry of Internal Affairs. I make this application for my clients Gianni Bordino and Deborah Bordino. I do not have access to them at all so that they can swear their affidavits despite a request made to the Commissioner of Police for access to my client (copy of request attached herewith and marked as A1)

1.3. I aver that the matter is extremely urgent, and I cannot wait for the Commissioner of Police to make a decision on my application to have access to my clients so that they can swear their affidavits. I have reluctantly decided that it would be best for me to make this application in their behalves and to swear the affidavit since the law permit such an application to be made by a person or persons other than the detainees.

2.1 Mr Gianni Bordino and his wife, Deborah Bordino, are Italian nationals who reside in Seychelles. They have been involved in legal disputes regarding their immigration status and other legal issues in Seychelles for some time.

2.2 On the 16^th December 2019, Mr Gianni Bordino and his wife Deborah Bordino, were served with a Prohibited Immigrant Notice by the Immigration Department of Seychelles (“the First Prohibited Immigrant Notice”). They promptly challenged the legality of this notice before the Supreme Court of Seychelles which ruled in their favour and declared the notice to be unlawful. A copy of this judgment is attached hereto and marked as exhibit A2.

2.3 Despite the successful challenge, on the 12^th November 2021, the Immigration Department issued a Second Prohibited Immigrant Notice (“the Second Prohibited Immigrant Notice”) to Mr Gianni Bordino and his wife, Deborah Bordino. Mr Gianni Bordino and his wife Deborah Bordino, through their legal representative, filed an appeal against this second notice to the Minister for Internal Affairs. A copy of the appeal is attached hereto and marked as exhibit A3.

2.4 As of the date of this affidavit, the Minister for Internal Affairs has not rendered a decision on the appeal of Mr Gianni Bordino and his wife, Deborah Bordino. The appeal remains pending before the Minister.

3.1 Mr Gianni Bordino and his wife Deborah Bordino, also have two separate appeals pending before the Seychelles Court of Appeal, scheduled to be heard during the December session. Copies of the Court of Appeal letters confirming the December session hearings and the provisional Court of Appeal cause list are attached hereto and marked as exhibits A4, A5, A6”.

5. In an oral hearing of the application on the 11^th September 2024, the Applicant stated, that he has relied on Rule 4(5) of the Rules to make this application on behalf of his client. Rule 4(5) of the Rules reads;

“(5) An application may be made by the person detained or by any other person on his behalf or her behalf and no application shall be rejected on the grounds of standing”.

6. The Applicant also stated, that Rule 5(1) and (2) of the Rules allows him to swear the affidavit in support of the application on behalf of his clients. Rules 5(1) and (2) of the Rules reads;

“(1) An application shall be supported by an affidavit by or on behalf of the person detained, describing the circumstances of the detention and specifying which it is asserted that the detention is illegal or improper.

(2) If the affidavit is made by a person other than the person detained, the facts as to why the affidavit cannot be made by the person detained shall be explained in the affidavit”.

7. It was the contention of Mr Elizabeth, that although the general rule is that counsel cannot swear an affidavit on behalf of its client under Rule 5 (1) of the Rules, he is permitted to do so. I disagree because rule 5 (1) has to be interpreted on account of the whole facts and circumstances of the case. It is settled law, that an attorney cannot swear an affidavit on behalf of his client. I refer to the judgment of this court in Muller v Benoiton (MA 59/2020) [2020] SCSC 647 (10 September 2020). The court stated;

“… the fact that he is counsel representing the Applicant and swears an affidavit for him makes the affidavit defective. This is because counsel cannot place himself in the position of the witness to the case and for that matter swears an affidavit”.

The Court of Appeal in Muller v Benoit Construction (SCA 78 of 2022) [2022] SCCA 79 (16 December 2022), affirmed this in paragraph [47] of that judgment.

8. Furthermore, there is no compliance with Rule 5(2) in that, the affidavit in support of the application does not give any explanation as to why the affidavit has not been sworn by the persons detained. It is only averred by Mr Elizabeth that, he doesn’t have access to his client and that the request for access has been made to the Commissioner of Police who unfortunately has now informed him that Mr and Mrs Bordino is not in the custody of the police. Yet, it is averred by the Applicant at paragraph 4.4 of its affidavit that Mr Bordino informed him that they were at the Airport but not leaving immediately because the Immigration Department had misplaced Mrs Deborah Bordino’s passport and that he had to return the phone to the authorities and they were being taken to a detention facility at the end of the runway”.

9. There is no evidence averred in the affidavit in support of the application by Mr Elizabeth of the exercise of due diligence by him and the efforts made by him to have access to his clients to get them to swear the affidavit in support of the application. Yet, he avers that Mr and Mrs Bordino are being unlawfully detain in a detention faultily.

10. Clearly therefore, Mr and Mrs Bordino were not and are not out of reach and given that Mr Elizabeth was informed of where they are being detained and apparently is still being detained there since Sunday the 8^th September 2024, efforts should have been made by exercising due diligence to meet them to get them to swear their affidavit.

11. Furthermore, I take notice of Rule 3(1) of the Rules that reads;

“Subject to sub rule (2) these rules shall apply to any person who is illegally or improperly detained in public or private custody within the limits of Seychelles”. (Underlined emphasise is mine)

12. It is my considered opinion, that the affidavit in support of the application contains assumption of facts rather than facts, and therefore, I am unable to make the finding that Mr and Mrs Bordino are being illegally detained. Mr Elizabeth who has not enquired with the appropriate authority about the detention of Mr and Mrs Bordino assumes that, they are being unlawfully detained and that is because of the ongoing issues with the Department of Immigration of the Ministry of Internal Affairs.

13. It is also my considered opinion, that the fact that it is averred in the affidavit in support of the application that, Mr and Mrs Bordino have pending Court of Appeal cases scheduled to be heard during the December 2024 session, this application should have been made to the Court of Appeal rather than the Supreme Court.

14. Finally, the court was informed in the course of the hearing of the application by Mr Elizabeth that, he has just received a written reply from the Commissioner of Police that, Mr and Mrs Bordino are not in the custody of the police because they are not being detained by the police, and that it is unaware of their detention. As such, this court cannot make an order to require or compel the Respondent (the Commissioner of Police) to immediately produce Mr and Mrs Bordino before this court when they are not in the custody of the police.

15. Equally, this court cannot make an order prohibiting the Respondent from deporting Mr and Mrs Bordino knowingly that the Commissioner of Police is not vested with any lawful authority to deport anyone from the jurisdiction of the Seychelles.

16. For the reasons stated in the preceding paragraphs of this ruling, this court declines to grant the reliefs being sought for, and accordingly, dismisses the application.

Signed, dated and delivered at Ile du Port on 12 September 2024.

____________

Adeline J