Houareau & Ano v Karunakaran & Ors (Constitutional Appeal SCA CP03/2017) [2017] SCCA 33 (19 September 2017);

IN THE SEYCHELLES COURT OF APPEAL

[Coram:     F. MacGregor (PCA) , A. Fernando (J.A), B. Renaud (J.A)]

Constitutional Appeal SCA CP 03/2017

Out of MA 157/2017

(Appeal from Constitutional Court Decision CP 03 /2017)

 

 

Marie-Ange Houareau

Jane Georgette Carpin

 

 

1st Appellant

2nd Appellant

 

Versus

 

Duraikannu Karunakaran

The Constitutional Appointments Authority

Honourable Attorney General

 

1st Respondent

2nd Respondent

3rd Respondent

 

Heard:             12 September 2017

Counsel:          Ms. Alexandra Madeleine for the Appellants

                        Mrs. Alexia Amesbury for the 1st Respondent

                        Mr. Anthony Derjacaques for the 2nd Respondent

                        Mr. David Esparon appearing in person as the 3rd Respondent  

 

Delivered:       19 September 2017

 

JUDGMENT

 

B. Renaud (J.A)

 

[1]       I have in principle concurred with the decision in the judgment of the President of this Court.  My reasoning in determining this appeal is based on the approach set out hereunder.

 

[2]       Judge Durai Karunakaran entered Petition ref CP 3/17 before the Constitutional Court (hereinafter “the Court”) on 25th May, 2017 citing the Constitutional Appointments Authority (hereinafter “the CAA”) as the 1st Respondent and the Attorney General (hereinafter “the AG”) as the 2nd Respondent vide Rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules (hereinafter “the Rules). 

 

[3]       The Petitioner supported his Petition by an Affidavit and prayed for a declaration that the appointment of a Tribunal of Enquiry by the 1st Respondent is unconstitutional and null ab initio.  He alleges that in establishing that Tribunal, the CAA acted arbitrarily and unconstitutionally, without making an assessment of the complaint as required under Article 134(2) of the Constitution of the Republic of Seychelles (hereinafter “the Constitution”).

 

[4]       On 26th May, 2017 Mrs. Marie Ange Hoareau the 1st Applicant and Ms Jane Carpin the 2nd Applicant (hereinafter “the Intended Intervenors”) entered an application supported by a joint Affidavit praying the Court to make order authorizing them to intervene as third parties in the pending Petition as they contend that they are interested parties in the matter and they ought to be made parties therein so that they can maintain their rights.  The majority judgment was not given in their favour hence this present appeal.

 

[5]       The Petitioner and the 1st Respondent cited as the 1st and 2nd Respondents in the Application resist the application whilst the 2nd Respondent cited as the 3rd Respondent in the Application supports the application.

 

[6]       The Intended Intervenors in a joint Affidavit made reference to two paragraphs of the Affidavit of the Petitioner which are worded as follows:

 

“The Petition alleges that in setting up the Tribunal of Inquiry, the Constitutional Appointments Authority acted arbitrarily and unconstitutionally, without making assessment of the complaint as required under Articles 134(2) of the Constitution.

       The Petition further refers to a Press Release by the newly constituted Constitutional Appointments Authority to the effect that there is nothing in the files left by its predecessor to indicate that there was any consideration of the complaints before the appointment of the tribunal and that it has had to assume that the former Constitutional Appointments Authority did not consider the complaints in depth but automatically appointed the Tribunal.”  (Exhibit A1 a copy of the said Press Release)

  

[7]       In objecting to the Application, the 1st Respondent sets out four pleas in limine litis as follows –

  1. The 1st and 2nd Applicants do not satisfy the requirement of standing;
  2. In light of plea (1), the Court has no jurisdiction to entertain the application for third party intervention;
  3. The application for third party intervention discloses no cause of action; and
  4. The process of the court is being abused.

[8]       In essence, on the merits the Petitioner states that he has brought his Petition against the CAA as a body corporate and not against any of its members past or present in their personal capacity.

[9]       The Chairman of the 2nd Respondent (CAA) filed an Affidavit in answer to the application for intervention on behalf of all the members of the 2nd Respondent.  In essence the 2nd Respondent took the stance that the Intended Intervenors are not lawful interested persons as they are functus officio since their resignation from the CAA on 24th April, 2017.

[10]     The Constitutional Court by a majority decision refused to grant leave to the Intended Intervenors to intervene in the pending Petition thereby disposing of their application.

[11]     The Intended Intervenors have now appealed to this Court against that majority Ruling setting out 6 grounds of appeal and in essence are seeking a right to be heard in the Petition before the Constitutional Court in order to assert their right to be heard in reply to the contents to the two paragraphs of the Petitioner’s Affidavit as stated above.

[12]      The essence of their appeal is to be found in grounds 5 and 6-

  • that the learned judges in law in failing to hold that the only relevant consideration for the determination of the application was whether the Appellants were interested in the event of the Petition, in terms of section 117 of the Seychelles Code of Civil Procedure; and
  • that the learned judges in their majority Ruling erred in law in failing to hold that third party whose personal interest can be affected by the result of the legal proceedings between the other parties, has a right to intervene in such legal proceedings.

[13]     From the reading of the Application and supporting Affidavit of the Intended Intervenors it is evident to me that the right that they are claiming is a right to reply to certain depositions made by the Petitioner as contained in the Press Release of the 2nd Respondent (CAA) which they believe have abused their personal reputation.  The Petitioner had attached copy of the said Press Release and cited certain extracts of its contents as part of his Affidavit in support of his Petition.

[14]     The Intended Intervenors are seeking from this Court for a declaration that they are interested parties; they are allowed to intervene in the Petition CP03/2017 and to file a reply; and for such other or further orders as this Courts shall think fit to make.

[15]     Article 129 of the Constitution sets out the jurisdiction and powers of the Supreme Court when it constitutes itself as the Constitutional Court.

[16]      Article 130(1) provides that

“any person who alleges that any provisions of this Constitution, other than a provision of Chapter III, has been contravened and that person’s interest is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional Court for redress”.

[17]     There is no constitutional provisions relating to intervention by a third party in pending matters before the Constitutional Court.

[18]     The Rules provide for the practice and procedure of the Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution.  There is nothing specific in the Rules which makes provisions for “intervention” by third parties.

[19]     However, Rule 2(2) of the Rules provides that

“Where any matter is not provided for in these Rules, the Seychelles Code of Civil Procedure shall apply to the practice and procedure of the Constitutional Court as they apply to a civil proceedings before the Supreme Court.”

[20]     When an Intended Intervenor intends to apply for intervention in a pending suit before the Supreme Court that person must comply with the provision of Section 117 of the SCCP which provide that –

“Section 117 –

 Every person interested in the event of a pending suit shall be entitled to be made a party thereto in order to maintain his rights, provided that his application to intervene is made before all parties to the suit have closed their cases.”

[21]     The purport of the above cited provisions is that the permitting of intervention by an interested person in a suit before the Supreme Court, is simply to allow such person to vindicate or maintain his/her rights that may be affected by the final decision of the Supreme Court in the pending suit.

[22]      The question that arises therefore is that –

“Is a person interested in the event of a pending petition before the Constitutional Court likewise entitled to apply to intervene in order to be made a party so as to vindicate or maintain his/her rights?

[23]     Unlike the Supreme Court where a suit may be filed, there is no provision to file a suit before the Constitutional Court, as only petitions are entertained by the latter.  The Constitutional Court does not hear any petition from any person other than from person who alleges that a provisions of the Constitution has been contravened and that his/her right is being or is likely to be affected by such contravention, or and is seeking a redress.

[24]     It follows therefore that for an Intended Intervenor to seek intervention in any pending petition before the Constitutional Court, must firstly show what constitutional right has been or is likely to be contravened in relation to him or her; secondly must show what right that will be adversely affected by the petition if he/she is not allowed to be made a party to the petition in order to defend and/or protect.

[25]     This Court sets out the proper course of action with regard to intervention by a third party in pending petition before the Constitutional Court when it upheld the decision of the Constitutional Court in allowing Mrs. Marise Berlouis to intervene in the pending petition of Morel du Boil v Government of Seychelles.  Likewise, in the case of Poole v Government of Seychelles, this Court upheld the decision of the Constitutional Court in allowing ‘Noddyn’ and ‘Reem’ to intervene in the pending petition.  The reason why such interventions were permitted was because the Intervenors had shown that they had a constitutional right to property under Article 26 of the Constitution as at the material time they held in their respective name different part of the property which was the subject matter of the petition before the Constitutional Court; secondly, they showed that they had their interest to defend at that stage otherwise they may lose their constitutional right to property.

[26]     In the instant case, the Intended Intervenors also make reference to the part of the Affidavit of the 2nd Respondent in the Petition (CAA) where it is inter alia stated –

“… there is nothing in the files left by its predecessor to indicate that there was any consideration of the complaints before the appointment of the Tribunal of Enquiry and has had to assume that the former Constitutional Appointments Authority did not consider the complaints in depth but automatically appointed the Tribunal.” 

[27]     The word “predecessor” as used here by the deponent can only mean chairman and/or members of and not the CAA itself, since the CAA as a constitutional corporate body had no “predecessor”.  The CAA was incepted by the promulgation of the Constitution in 1992 and as such only the chairmanship and membership changed over the years but not the Institution itself.

[28]     Prior to their resignation the Intended Intervenors were indeed respectively the previous chairman and a member out of the three actual members who composed the CCA at the time.  The third person who composed the previous membership of the CAA, but who has not resigned, is Mrs. Marie-Nella Azemia.  At paragraph 5 of her Affidavit dated 26th June 2017, Mrs. Azemia deponed in her personal capacity as a member of the CAA as previously composed and inter alia states that –

“I confirm that the complaint was considered by the Constitutional Appointments Authority and can further confirm that at no time did the Constitutional Appointments Authority ever give Judge Duraikannu Karunakaran the opportunity to address the Constitutional Appointments Authority with respect to the said complaint.”

[29]     The deposition of the 2nd Respondent as earlier quoted above connotes an allegation of dereliction of duty which may have a negative effect on the reputation of the Intended Intervenors in the proper discharge of the functions of their high Office.  In my considered view that is an allegation that the Intended Intervenors ought to be permitted to clarify, for reason that I will give later in this judgment.

[30]     The Intended Intervenors, unbelievable as it may appear, made serious if not contemptuous allegation of collusion between the 2nd Respondent (CAA) and the Petitioner when they inter alia deponed that –

“ …. as a matter of fact … the CAA as presently constituted – is acting in collusion with the Petitioner to interfere with the establishment of the Tribunal of Enquiry against the Petitioner”.

[31]     Obviously such allegation negatively impacted on the reputation, integrity and status of the CAA as presently composed as well as the Petitioner, however, as this in itself may be the subject of a distinct cause of action, I am not inclined to address this issue as part of the instant Appeal.

[32]     It is my considered judgment that the Intended Intervenors are entitled to be heard in the pending Petition for the simple reason that they ought not to be denied the opportunity to be heard in the petition without being given the opportunity to explain how, what and when they “considered” the complaint against the Petitioner prior to appointing the Tribunal.  As such, in the light of the rule of audi alterem partem” or the rule of natural justice or fair hearing, they are entitled to be given a right of reply.  Their reply to that specific issue will assist the Court in its determination of the fundamental matter in issue.

[33]     In the interest and justice and fair hearing, I exercise my inherent discretion and grant the Intended Intervenors the right to be heard in reply to the two pertinent paragraphs of the Affidavit of the 2nd Respondent to the Petition and to the deposition in paragraph 5 of the Affidavit of Mrs. Marie-Nella Azemia dated 26th June, 2017.

[34]     In conclusion firstly, I find that the learned Judges, in the circumstances, erred in holding that the only relevant consideration for the determination of the application was whether the Appellants were interested in the event of the Petition, in terms of section 117 of the Seychelles Code of Civil Procedure.

[35]     Secondly, the learned Judges erred in holding that a third party whose personal interest can be affected by the result of the legal proceedings between the other parties, has no right to intervene in such legal proceedings.

[36]     It is on the basis of the matters discussed above, that I concur with the President of this Court and grant leave to the 1st and 2nd Applicants to respond to the relevant and pertinent parts of the affidavits in the pending Petition by filing their respective statement of demand to which the other parties shall be allowed to respond.

 

B. Renaud (J.A)

Signed, dated and delivered at Ile du Port on 19 September 2017

 

F. MacGregor (PCA)

 

[1]          This matter started off as petition under article 130 of the Constitution which was met by an application for intervention under section 117, of the Seychelles Code of Civil Procedure (referred to as the Procedure Code) which was denied by a majority judgment of the Constitutional Court.   

[2]          The Applicants appealed against that decision on 6 grounds, which have been resisted by the 1st Respondent, the 2nd Respondent opting to remain silent save to respond to any question of law, whereas the 3rd Respondent the Attorney General is of the view that they should be allowed to intervene.

[3]          This matter may rest on one main principle, that of audi alteram partem, in Latin meaning ‘listen to the other side’.  To listen to the other side would require intervention, by persons who are not yet parties to the case. It is trite that at common law and in terms of the tenets of natural justice, hearing the other party –audi alteram partem–is an indispensable condition of fair proceedings. As Donaldson LJ put it in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 1 QB 126at 144B:

                “[N]atural justice is not always or entirely about the fact or substance of fairness. It has also something to do with the appearance of fairness. In the hallowed phrase, ‘Justice must not only be done, it must also be seen to be done’.” (See also South African Roads Board v Johannesburg City Council [1991] ZASCA 63; 1991 (4) SA 1 (A); Chief Constable Pietermaritzburg v /shim 1908 29 NLR 338 34;   Halsbury’s Laws of England (Volume 61 (2010) 5th Edition) Para. 639)

[4]          There are no Rules as to the rights of intervention under the Constitution and Constitution 1994 Rules.  As such, where it is not provided for, the Procedure Code shall apply.

[5]          That is provided for in sections 117 and 118 of Seychelles Code of Civil Procedure which reads:-

117.     Every person interested in the event of a pending suit shall be entitled to be made a party thereto in order to maintain his rights, provided that his application to intervene is made before all parties to the suit have closed their cases.

118.     An application to intervene in a suit shall be made by way of a motion with an affidavit containing the grounds on which the applicant relies in support thereof.

[6]          In Section 117, the material words are, any person interested; in the event of a pending suit; shall be entitled to be made a party; in order to maintain his rights.

[7]       Obviously pleadings and accusations implicating the Appellants in the petition of the 1st Respondent caused the interest, showed the event and the requirement to maintain the rights of protecting their reputation, and integrity.

[8]       The material pleadings of the 1st Respondent are as follows:-

            The 1st Respondent at paragraphs 6 & 7 of his Affidavit at page C2 of the record states:     

6.     Pursuant to the abovementioned complaint by the Chief Justice, the 1st Respondent arbitrarily and unconstitutionally, without making an assessment of the complaint, in order to consider whether the question of moving a Judge ought to be investigated as required by Article 134(2) of the Constitution, appointed a Tribunal.  Vide letter from 1st Respondent dated 7th October 2016.

7.       The Petitioner avers that the appointment of the Tribunal is unconstitutional and it was made in contravention of Article 134(2) of the Constitution, without proper consideration as mentioned in para 6 above.

[9]       What are those rights? They are pleaded in the Appellants’ Affidavit to the application for intervention at page D2 of the record, paragraph 6, 7 & 11 as follows:

6.     I am clearly interested in the event of the present Petition in that I am the former Chairperson of the Constitutional Appointment Authority and I formed part of its determination to set up the Tribunal of Inquiry in respect of the Petitioner.         

7.       On the basis of the above, my personal reputation and the integrity are seriously damaged.

11.     In view of the averments made at paragraphs 6 and 7 above, the Constitutional Appointment Authority – as presently constituted – would concede to the Petitioner and thus insinuate that I did not discharge my responsibility as chairperson of the Constitutional Appointment Authority in accordance with the Constitution in establishing the Tribunal of Inquiry.

[10]     The protection of reputation and dignity are clearly, if not implicitly provided for in the Constitution as follows:-

                        The Preamble:

RECOGNISING the inherent dignity and the equal and inalienable rights of members of the human family as the foundation for freedom, justice, welfare, fraternity, peace and unity.

Uphold the rule of law based on the recognition of the fundamental human rights and freedoms enshrined in this Constitution and on respect for the equality and dignity of human beings.

                        Right to dignity:

            Article 16:

Every person has a right to be treated with dignity worthy of a human being and not to be subjected to torture, cruel, inhuman or degrading treatment or punishment. 

Fundamental duties:

   Article 40:

  It shall be the duty of every citizen of Seychelles-

  • generally, to strive towards the fulfilment of the aspirations contained in the Preamble of this Constitution.

Protection of reputation:

Article 20(2)(b):

For protecting the reputation, rights and freedoms or private lives of persons.

Equal protection before the law:

Article 27:

  1. Every person has a right to equal protection of the law including the enjoyment of the rights and freedoms set out in this Charter without discrimination on any ground except as is necessary in a democratic society.

Right to a fair hearing:

Article 19:

  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.

[11]     I therefore respectfully differ from the majority judgment of the Court below that defamation is not a right protected by the Constitution.  Protection of reputation and dignity is clearly recognised in our Constitution under article 20 (2) b and the Preamble to it.

[12]     The majority Judgment went completely off the track when it determined the matter as if it was a case of locus standi.  This was not a case of locus standi.

[13]    Locus standi is used to screen off vexatious litigants bringing a constitutional action. It applies to a first-time Applicant.  This was not a case of any first-time Applicant who wanted permission to start a constitutional action.  The constitutional action had already started.  This was a case where a party wanted to join a moving train because the destination was the same as that of the other parties: i.e the truth, the whole truth and nothing but the truth.  By denying that party from joining the train, the Court denied itself the very objective for which Courts exist.

[14]    The very purpose of an intervene application is that a case, meant for that purpose of arriving at the truth, the whole truth and nothing but the truth is not compromised by shutting people out to provide the complete picture. In the case of Baker v. Canada (Minister of Citizenship & Immigration) (1999) 2 S.C.R. 817 6 it was held that:

“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”

[15]    Locus standi, thus, does not apply where cases have already been lodged.  So, when the Court decided the application on the basis of a locus standi in a Constitutional Court action, the very premise of its determination is fundamentally flawed. The rationale of an intervention is not the same as the rationale of locus standi action.  The rationale of an intervention action is to arrive at the complete picture and the rationale of locus standi in a Constitutional Court action is to screen off vexatious litigants.

[16]     The law applicable was the law of intervention which was only adumbrated in the majority Judgment but was not addressed at all.  The majority were in a serious misapprehension of the procedural law.  In fact the jurisprudence cited were all on locus standi and not on intervention.  The minority Judgment properly dealt with jurisprudence on intervention with the text of the law and the case law applicable.

[17]   The real criteria for determination of an intervention under Section 118 of the Procedure Code is interest of the proposed interveners. (Abel Mulenga and others Vs Chikumbi and Others (2006) ZR 33) This is sufficiently borne out on the facts: the applicants were the decision makers at the relevant time. It is they who know and not the new members. It is they who took the decision, not the new members, hence the criteria for the law of application was fully satisfied in law and on the facts. By avoiding to pronounce on the premise of section 118 of the Procedure Code and deciding on locus standi of the applicants, the majority judgment decided on the wrong premise

[18]    The minority Judgment properly identified the real issue in the case and determined the issue squarely as per the applicable law.

[19]      Motion for the application:

            Was not an issue nor raised by the Respondents in the Court below, nor their Heads of Argument in the appeal.

[20]      In Blay v Pollard & Morriss (1930) 1K 625 it was held as follows:-

“In the present case the issue on which the Judge decided was raised by himself without amending the pleadings and in any opinion he was not entitled to take such course”.

This was after the Appellant’s Counsel took the view that it is not the function of the courts to raise and decide on issues that are not presented by the parties.  Counsel was essentially saying that the Learned High Court Judge should not have invited the parties to address him on the competence of the Motion laid before him, but rather should have proceeded to hear the Motion.

[21]     Further to that it is trite that in the Notice of Motion dated 26th May 2017, at page D2 of the record the words “move” in the 1st line after the words “Take Notice” together with the words “for an order that the 1st and 2nd Applicants be allowed to intervene”, is the Motion.

[22]     All Notices of Motion, inevitably are worded with the word “move” followed by the Motion sought, e.g, leave to appeal out of time, stay of execution; early hearing; amendment of grounds of appeal.

[23]   Nonetheless, the preconditions of being an aggrieved person and other similar technical objections such as the one raised concerning the motion, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. The court has vast powers under the Constitution, to do justice without technical restrictions and restraints; and procedures and reliefs have to be moulded according to the facts and circumstances of each case and each situation. It is the fitness of things and in the interest of justice and the public good that litigation on constitutionality, entrenched fundamental rights, and broad public interest protection, has to be viewed. Narrow pure legalism for the sake of legalism will not do. We cannot uphold technicality only to allow a clandestine activity through the net of judicial vigilance in the garb of legality. Our legal system is intended to give effective remedies and reliefs. (See Kanyua v/s Attorney General & Interim Independent Election Commission Nairobi Hccp No.1/2010.)

[24]     The argument that the Respondents/Petitioners were based on article 130 of the Constitution, i.e., touching rights other than those in the Charter in Chapter III, whereas Appellants’ application is based on protection of reputation and dignity, hence seeks the right to intervene.

[25]     My candid response to this is that the Constitutional Court should have brought both counsel for Respondent to order, to clearly indicate that we were not here in a case of application for constitutional relief under Article 130 or Article 46. Locus standi was not the issue, Article 130 was not in issue and Article 46 was not in issue.

[26]     The interveners were seeking not a constitutional right but a procedural right to intervene. This matter should not have been decided on a threshold issue of a constitutional locus standi but a procedural issue of a continuing constitutional case.

[27]     Michael Fordham in Judicial Review Handbook; 4th Edition at page 1007 writes as follows:

“Procedural fairness is a flexi-principle. Natural justice has always been an entirely contextual principle. There are no rigid or universal rules as to what is needed in order to be procedurally fair. The content of the duty depends on the particular function and circumstances of the individual case

[28]                 Behind all the rights referred to and even before their creation by modern time Constitutions, after World War II lay the following hallowed principles of audi alteram partem (to listen to the other side); which is implicitly and intrinsically linked with, the right to be heard within the right to intervene; and natural justice; they are all interlinked and are the bedrock of justice, as expounded in so many Constitutions of other democratic States consistent with the constitutional obligations of Seychelles, article 48 of the Constitution which reads:-

48.    This Chapter will be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provision of this Chapter, take judicial notice of –

  • The Constitutions of other democratic States or nations and decisions of the courts of the States or nations in respect of their Constitutions.

[29]     Those decisions, Constitutions and authorities are hereby listed, including local precedence as follows:-

1.    D’Emerez v/s Biggerstaff & Anor 1916 MR 105 at 932.

2.    Mauritius Digest 1950 Vol 1.

3.    Administrator Transvaal v/s Zenzile 1991 (1) SA 21 (AD) (Zenzile).

4.     Fullard v Fullard 1979 (1) SA 368 (T

5.    Chow v/s Attorney General (2007) SCA 2.

6.      Shapiro v South African Recording Rights Association Lmited (Galeta Intervening)    2008 (4) SA 145 W

7.    Les Code Annotes de Sircy et Gilbert – Code de Procedure Civile § II – De l’intervention: § 1 – Quelles personnes peuvent  ou doivent intervener .n. 1, 2, 29, 30, 34-35 pp. 476-478.

8.    DALLOZ P. 136

9.    Dalloz Répertoire De Procédure Civile Et Commerciale Tome II  Faillite – Voie de recours – Intervention p. 136, (hereinafter “DALLOZ”) at P. 137.

10.  DALLOZ Repertoire De Procedure Civile Et Commerciale Tome II Faillite – Voie de recours – Intervention referred at pp. 31-32 Brief).

11.  Dalloz Repertoire De Procedure Civile Et Commerciale Tome: II Faillite – Voies de recours – Intervention referred at pp. 31-32 Brief) and Les Codes Annotes de Sirey et Gilbert – Code de Procedure Civil § II – De l’intervention: § 1 – Quelles personnes peuvent ou doivent intervener .n. 1, 2, 29, 30, 34-35 pp. 476-478.

12.  Dalloz Repertoire De Procedure Civile Et Commerciale Tome II Faillite – Voies de recours – Intervention referred at pp. 31-32 Brief).

13.  Hedge Funds v/s Raminder Panesar & Ors MA 235/13.

14.  Dubois & Or v/s J. Michel & Or (at p.12 majority re) (2016) SCSC23; CP 04/2014.

[30]     Intervener

[31]     Intervention may be “as of right” or “permissive”.  In order to show that intervention should be “as of right,” the intervener must show that:

  • the intervener has an interest related to the property or transaction involved in the case,
  • the intervener cannot adequately protect her own interests unless she is included in the case, and
  • none of the parties already in the case can adequately represent the intervener’s interests.

[32]     The intervener’s “interest” in the outcome of the case does not have to be a financial interest, though many petitions to intervene in a case are based on money issues.  A person may intervene in a case to protect a constitutional right or other interest as well.

[33]    Often, a person seeking to intervene will argue that none of the parties can represent her interests because of fraud, collusion, or other wrongdoing that puts the intervener against one or both of the parties in the case.  Another common reason for intervening is that the legal arguments that will best serve the parties in the case are not the same as the legal arguments that will best protect the intervener.

[34]     In the case of Simbeye Enterprise Ltd and Others Vs Ibrahim Yousuf SCZ Judgment No. 36 of 2000, it was said that,

It has been a practice of the Supreme Court to join any person to the appeal if the decision of the Court would affect that person or his interest. The purpose of the rule is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes may be determined without the delay, inconvenience and expense of separate actions and trials.”

[35]      To refuse the Applicant to intervene without being afforded an opportunity to be heard, amounts to:-

  1. a flagrant disregard of the audi alteram partem rule;
  2. a denial of the intervening party’s constitutional rights whereof the intervening party has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.

[36] In Webster v Reproductive Health Service 492 US 490 at 522 O’Connor J gave an elegant statement of the reasons why the United States Supreme Court is willing to listen to interveners:

The willingness of Courts to listen to interveners is a reflection of the value that judges attach to people…” see also Big Country Ranch Corporation v. Court of Appeals [227 SCRA 161[1993]

[37]     Courts should resist accepting that the right to a hearing disappears when it is unlikely to affect the outcome. This  was  elucidated in  Administrator Transvaal v Zenzile 1991 (1) SA 21

“It is trite . . . that the fact that an errant employee may have little or nothing to urge in his own defence is a factor alien to the inquiry whether he is entitled to a prior hearing. Wade Administrative Law6th edition puts the matter thus at 533-534:

Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly.”

[38]     Having read and listened to all the grounds of appeal, Heads of Arguments written and verbally argued in Court globally I summarize the ratio decidendi as follows:-

  • The majority judgment erred in equating and confusing locus standi to petition the Constitutional Court as opposed to the status to intervene under section 117 of the Seychelles Code of Civil Procedure. I find the right to intervene the determining factor.

b)    The corporate body argument of the Constitutional Appointments Authority does not hold as the 2nd Respondent itself attempts to disassociate one of the members of the formally constituted Constitutional Appointments Authority in pleading and providing her affidavit.  In corresponding language the 2nd Respondent itself pierced the corporate veil.

[39]     Further and in any event it is clear innuendo that reference to the former Constitutional Appointments Authority refers to the Appellants.

[40]     In conclusion the arguments of the Respondents are not convincing and some misconceived.

            The arguments of the Appellants are convincing and accordingly the appeal is allowed.

 

F. MacGregor (PCA)

I concur:.                                ………………….                                           B. Renaud (J.A)

 

Signed, dated and delivered at Ile du Port on 19 September 201

 

A. Fernando (J.A)

 

  1. This is an appeal by the 1st and 2nd Appellants above-named (hereinafter referred to as Appellants but where necessary for purposes of clarity as M.H. & J.C.) against the majority Ruling of the Constitutional Court delivered on the 28th of July 2017 in MA 157/2017 arising out of CP03/2017 by Vidot and Pillay JJ. dismissing the Appellants’ application to intervene in the Petition numbered CP03/2017. There is no appeal against the Ruling of Robinson J where the Appellants were granted leave to intervene in Petition numbered CP03/2017 only in relation to the issue directly linked to the Petition, namely whether the Second Respondent (Constitutional Appointments Authority - CAA) as formerly constituted, considered the complaint as required under Article 134(2) of the Constitution. The First and Second Applicants (M.H. & J.C.) shall within two weeks, file a statement of their demand and other material facts on which it is based and shall at the same time supply a copy of such statement to the Petitioner (Judge Karunakaran), the First Respondent (CAA) and the Second Respondent (AG) to the application/Petition. (verbatim – emphasis and additions in italics by me)

 

  1. The 1st Respondent to this appeal (hereinafter referred to as, Judge Karunakaran), a Judge of the Supreme Court of Seychelles had, as Petitioner, filed Constitutional Petition CP03/2017 with an Affidavit in Support of the Petition, on the 25th of May 2017, pursuant to article 130(1) of the Constitution against the 2nd Respondent to this appeal (hereinafter referred to as CAA, and who isthe 1st Respondent in the said constitutional petition) and the 3rd Respondent (hereinafter named as AG and who is the 2nd Respondent in the said constitutional petition).

 

  1. The 2nd Respondent to this appeal is the Constitutional Appointments Authority (CAA) established under article 139(1) of the Constitution to perform the functions conferred upon it by this Constitution and any other law. Among its functions, the CAA is tasked to propose candidates to the President for appointment as Justices of Appeal and Judges of the Supreme Court and under article 134 of the Constitution to initiate proceedings for their removal.

 

  1. The 3rd Respondent herein is the Attorney General (AG) who had been made a respondent to the petition filed by the 1st Respondent before the Constitutional Court in compliance with rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994 which states: Except where the petition under sub rule (1) is presented by the Attorney-General, The Attorney-General shall be made a respondent thereto.

 

  1. It is important to understand the background to the petition filed before the Constitutional Court before dealing with this appeal. As stated at paragraph 2 above the CAA has been established under article 139(1) of the Constitution. Prior to the 19thof April 2017, i.e. before the eighth amendment to the Constitution by Act 5 of 2017 came into effect, the CAA consisted of three members one of whom was the Chairman. The Chairman of the CAA at the time of the eighth amendment was the 1st Appellant and the other two members were the 2nd Appellant and Mrs. Marie-Nella Azemia (hereinafter referred to as M.A.) With the eighth amendment the composition of members was increased from three to 5, with one of them as Chairman. The newly constituted CAA has, as its members; Dr.Shelton M. Jolicoeur as chairman, who took office on the 2nd of May 2017, and Mrs. Annette Georges, Mr. Willy Confait, Mrs. Simone Decomarmond, who took office on the 24th of April 2017 and Mrs. Marie-Nella Azemia, who continued to hold the office to which she was appointed on 27th May 2016, i.e. prior to the eighth amendment. According to the affidavit filed by Dr. Shelton M. Jolicoeur the 1st and 2nd Appellants had resigned on the 24th of April 2017. Thus the CAA had existed since the promulgation of the Constitution in 1993. Its composition however changed as stated earlier in April 2017 from three members to five. Its chairmanship and membership have also changed over the years but not the institution itself, since its functions and powers have always remained the same.

 

  1. I set down below the averments in the said Petition filed by Judge Karunakaran, the Petitioner before the Constitutional Court and the relief prayed for by the Petitioner in the said petition:

 

     CONSTITUTIONAL PETITION PURSUANT TO ARTICLE 130(1) OF THE CONSTITUTION

 

  1. The Petitioner is a Judge of the Supreme Court of Seychelles since 8th March 1999.

 

  1. The 1st Respondent (CAA) is an authority established under article 139(1) of the Constitution, to perform the functions conferred upon it by the Constitution and any other law, inter alia they appoint and remove Judges of the Supreme Court through due process of appointing Tribunals provided in the Constitution.

 

  1. The 2nd Respondent is pleaded as a party in compliance to Rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994.

 

  1. The Petitioner is currently the subject of a Tribunal of Inquiry (“the Tribunal”) set up under Article 134(2) (a) of the Constitution as originally notified to the Petitioner by letter dated 7th October 2016, as a result of a complaint received by the 1st Respondent from the Chief Justice, Mathilda Twomey on 30th September 2016.

 

  1. As a result of the enquiry mentioned in para 4 above the President of the Republic suspended the Petitioner from performing the function of Judge with immediate effect and notified the Petitioner accordingly by letter dated 10th October 2016.

 

  1. Pursuant to the abovementioned complaint by the Chief Justice, the 1st Respondent (CAA) arbitrarily and unconstitutionally, without making an assessment of the complaint, in order to consider whether the question of removing a Judge ought to be investigated as required by Article 134(2) of the Constitution, appointed a Tribunal.Vide letter from 1st Respondent dated 7th October 2016.

 

  1. The Petitioner avers that the appointment of the Tribunal is unconstitutional and it was made in contravention of Article 134(2) of the Constitution, without proper consideration as mentioned in para 5 above.

 

  1. The Petitioner avers that his interest is being affected and continues to be affected by the said contravention mentioned in para 6 above.

 

  1. The contravention in para 6 above came to the knowledge of the Petitioner only on the 21st May 2017 at about 6pm, when the 1st Respondent (CAA) released a press release to the public, and the Petitioner filed this Petition at the earliest time possible after becoming aware of the abovementioned contravention.

 

  1. As a result of the matters set out in para 8 above, it is fair just and reasonable that the Petitioner be granted leave to file this Petition out of time.

 

WHEREFORE this Petitioner prays this Honourable Court for a Judgment as follows;

 

  1. granting leave to file this Petition out of time.

 

  1. declaring that the appointment of the Tribunal by the 1st Respondent (CAA) is unconstitutional, null and void ab initio.

 

  1. Granting such other remedy under the Constitution as this Honourable Court deems fit.

 

With costs.(verbatim– emphasis and additions in italics by me). It is to be noted that there is no mention by name of the Appellants, in the said Petition. What is being challenged is the appointment of the Tribunal by the constitutional entity, CAA, without naming any of the members who constituted the CAA, in particular.

 

  1. The Affidavit of facts in Support of the Petition are identical to the averments in the Petition, save that; it has been made in the first person, namely by Judge Karunakaran.

 

  1. I set down below the contents of the letter dated 7th October 2016 addressed to Judge Karunakaran referred to at paragraph 6, of the Petition:

 

CONSTITUTIONAL APPOINTMENTS AUTHORITY

OFFICE OF THE CHAIRMAN

La Ciotat, Ground Floor

P.O. Box 1087

  • Victoria
  • Mahe

Tel: 322504Fax: 323112

 

Your Ref:

Our Refs

MAH/1p

7th October 2016

 

The Honourable Judge Karunakaran

Palais de Justice

Ile du Port:

 

Dear Judge Karunakaran,

RE: COMPLAINTS OF MISBEHAVIOUR

 

Certain complaints of misbehavior and contrary to article 134(1) of the Constitution have been made against you by the Chief Justice.

We are of the view that it is necessary to inquire into your ability to perform the function of the office of Judge.

Pursuant to article 134(2) of the Constitution we have therefore appointed a tribunal of Inquiry consisting of three members to inquire into the matter.

The Tribunal will formally notify you of the substance of the complaints.

 

Yours Sincerely,

 

Mrs Marie-Ange Houareau (1st Appellant)

chairman

Constitutional Appointments Authority(verbatim – emphasis and additions in italics by me)

It is to be noted that the above letter is on a letter head of the CAA and has been signed by the 1st appellant as Chairman of the CAA, in her constitutional capacity. There is no identification or specification of what are or the nature of the complaints. It is the Tribunal that was to notify Judge Karunakaran of the substance of the complaints. As to how the CAA considered that the complaints ought to be investigated by a Tribunal, is not disclosed.

 

  1. I set down below the contents of the letter dated 10th October 2016 referred to at paragraph 5, of the Petition:

 

                The President

STATE HOUSE, VICTORIA, MAHE

REPUBLIC OF SEYCHELLES

10th October 2016

 

Judge DuraiKarunakaran

Palais de Justice

Ile du Port

 

Sir,

RE: SUSPENSION FROM THE OFFICE OF JUDGE

 

I have been informed by the Constitutional Appointments Authority (CAA) that an Inquiry into your ability to perform the functions of the Office of Judge of the Supreme Court has been referred to a Tribunal by virtue of Article 134(2)(a) of the Constitution.

Accordingly and pursuant to the provisions of Article 134(4) of the Constitution, I hereby suspend you from performing the functions of Judge, with immediate effect, until the full and final determination of the Inquiry by the Tribunal.

Yours faithfully,

James A. Michel

President

Republic of Seychelles

 

cc: The Chief Justice

The Chair of the CAA

The Chair of the Tribunal of Inquiry

The Attorney General(verbatim)

 

  1. I set down below the contents of the press release referred to in paragraph 9,of the Petition:

 

                                                                                                            PRESS RELEASE

 

REASONS WHY THE CONSTITUTIONAL APPOINTMENTS AUTHORITY (CAA) IS CONCERNED ABOUT THE HEARING BY THE TRIBUNAL OF THE COMPLAINTS AGAINST JUDGE KARUNAKARAN, AND WHY IT HAS ASKED FOR THE HEARING TO BE SUSPENDED

The CAA accepts that the case of Judge Karunakaran was reviewed by a differently constituted CAA and the Tribunal appointed by that CAA.Technically, the matter is out of the hands of the present CAA.

However, this CAA, in the course of taking possession of its duties, has realized that there were no rules or procedures set out for determining the appointments and considering complaints against Judges, inter alia.  Since its appointment, the current CAA had been actively researching procedures in other jurisdictions and drafting rules for its work to ensure that the Authority henceforth becomes rules-based in its operation.

During this exercise, the CAA has considered the Commonwealth Latimer House Principles on the Appointment, Tenure and Removal of Judges (Principles endorsed by Heads of Government including Seychelles, in 2003 in Abuja, Nigeria) amongst other laws, rules and procedures relating to the consideration of complaints against judges, in depth.This has led it to assess the procedures which its predecessor used in considering the complaints against Judge Karunakaran.

The CAA has noted that there is nothing in the files left by its predecessor to indicate that there was any consideration of the complaints before the appointment of the Tribunal.  It has had to assume that the former CAA did not consider the complaints in depth, but automatically appointed the Tribunal, and that the then President, James Michel, again automatically suspended Judge Karunakaran.

In doing so, the CAA feels that Judge Karunakaran, who was not given an opportunity to address the CAA, missed out on the opportunity to convince the CAA that the complaints were not fit ones to be referred to the Tribunal, in accordance with established rules in other commonwealth jurisdictions.

Further, the CAA is concerned that the presence of two members of the Judiciary on the Tribunal may give rise to unfairness, given that these two members are sitting judges under the administrative authority of the Chief Justice, who lodged the complaints against Judge Karunakaran.

Given the rules being prepared by the current CAA in the matter, it is clear that any future complaints will be considered to a higher standard than has been afforded Judge Karunakaran.That is cause for concern, as Judge Karunakaran will have been tried on a lower standard.

The CAA may be required to consider a complaint against another Judge in the near future, who will benefit from the new rules being drafted by the CAA, as opposed to Judge Karunakaran whose case is already in progress. The CAA is legitimately concerned that there will necessarily not be a level playing field in the consideration of complaints.

For the foregoing reasons, the CAA is of the view that, for there to be full transparency in the case of Judge Karunakaran, the process embarked upon should be stopped, and the review of the complaints against him heard afresh under the rules and guidelines adopted by the CAA.

These were the reasons which prompted the CAA to respectfully request the Tribunal not to proceed to a hearing of the matter.Given that the hearing has not started, there will be little to no harm done.Rather, the process will be greatly improved if it is restarted.

It is regretted that the Tribunal has opted to proceed to hear the complaint.(verbatim – emphasis by me)

It is to be noted that there is no mention by name of the Appellants, in the Press Release indicative of “causing serious damage to the personal reputation and the integrity” of the Appellants.

 

  1. On the 29th of May the Appellants had filed a Notice of Motion with an Affidavit in Support by each of the Appellants, to be allowed to intervene in the Petition numbered CP03/2017. The Notice of Motion is dated 26th of May 2017 and had stated that the Supreme Court will be moved on the 30th of May 2017 for the Counsel for the Appellants to be heard in respect of their application for intervention. The said Notice of Motion had therefore been prepared the day after the filing of the Petition numbered CP03/2017 and even before the said Petition was mentioned before the Constitutional Court on the 30th of May 2017. As stated at paragraph 2 above Petition numbered CP03/2017 had been filed only against the 2nd and 3rd Respondents to this appeal and not against the Appellants. As to how the Appellants came to know about the filing of the petition and prepared the Notice of Motion to intervene within a day of the filing of the petition is not known. Dr. Shelton Jolicoeur, the Chairman of the CAA in his affidavit filed in this case rehearsing the facts above had said: “The CAA has reasonable suspicion concerning the involvement of the Applicants in the Petition before the Court in that the Petition was filed at the Registry of the Supreme Court on the 25th of May 2017, Yet the Applicants clearly had access and sight of the Petition and Affidavit on the 26th of May 2017, as their Application to intervene is dated the 26th of May 2017…”This is an observation I wish to make without comment. After the case was mentioned on the 30th of May 2017 and after the filing of the Appellants’ Notice of Motion and Affidavit seeking intervention; the Chairperson of the CAA, Dr. S. M. Jolicoeur and Mrs. M. N. Azemia, a member of the CAA had filed their Affidavits on the 26th of June 2017. The relevant parts of their affidavits will be referred to in this judgment.

 

  1. The contents of both the Supporting Affidavits filed along with the Notice of Motion by the Appellants are identical, save for the fact that at paragraph 6 of the said Affidavits the 1st Appellant has described herself as the former “Chairperson” of the CAA and the 2nd Appellant, as the former “member” of the CAA. I therefore set down below the contents of one such Affidavit filed with the Notice of Motion:

 

                                                    AFFIVADIT IN SUPPORT

 

I, Marie-Ange Houareau of Roche Caiman, Mahe, Seychelles, being a Christian hereby make oath and state as follows:

 

  1. I am the deponent above-named and the 1st Applicant in the attached Application.

 

  1. There is presently before the Constitutional Court of Seychelles, a Petition instituted by Judge Duraikannu Karunakaran (hereafter “the Petitioner”) against the Constitutional Appointment Authority and the Attorney General, namely Constitutional Case Number 3/2017 (hereinafter referred to as “the Petition”).

 

  1. In the said Petition, the Petitioner is praying for a declaration that the appointment of the Tribunal of Inquiry by the Constitutional Appointment Authority is unconstitutional, null and void ab initio.

 

  1. The Petition alleges that in setting up the Tribunal of Inquiry, the Constitutional Appointment Authority acted arbitrary and unconstitutionally, without making an assessment of the complaint as require under Article 134(2) of the Constitution.

 

  1. The Petition further refers to a Press Release by the newly constituted Constitutional Appointment Authority to the effect that there is nothing in the files left by its predecessor to indicate that there was any consideration of the complaints before appointment of the Tribunal and that it has had to assume that the former Constitutional Appointment Authority did not consider the complaints in depth but automatically appointed the Tribunal. It is now shown to me, produced and exhibited herewith as ‘A1’a copy of the said Press Release.

 

  1. I am clearly interested in the event of the present Petition in that I am the former Chairperson of the Constitutional Appointment Authority and I formed part of its determination to set up the Tribunal of Inquiry in respect of the Petitioner.

 

  1. On the basis of the above, my personal reputation and the integrity are seriously damaged.

 

  1. On the basis of A1 it is apparent that the Constitutional Appointment Authority – as presently constituted –would concede to the Petition.

 

  1. As a matter of fact, I will go as far as to say that the Constitutional Appointment Authority – as presently constituted – is acting in collusion with the Petitioner to interfere with the establishment of the Tribunal of Inquiry against the Petitioner.

 

  1. I aver that I would be able to lay before this Honourable Court all the pertinent facts to allow this Court to make a fair and just decision.

 

  1. In view of the averments made at paragraphs 8 and 9 above, the Constitutional Appointment Authority – as presently constituted – would concede to the Petitioner and thus insinuate that I did not discharge my responsibility as chairperson of the Constitutional Appointment Authority in accordance with the Constitution in establishing the Tribunal of Inquiry.

 

  1. Further, having regarding to the content and timing of the Press Release of the Constitutional Appointment Authority – as presently constituted – it is unlikely that the said Constitutional Appointment Authority will defend the integrity of the former members of the Authority in the present Petition.

 

  1. I therefore humbly pray that this Honourable Court allows me to intervene and be made a party to the Petition.

 

  1. The averments contained in the above paragraph 1 to 13 above are true to the best of my knowledge, information and belief.

 

SWORN before me at Palais de Justice, Ile du Port, Mahe, Seychelles this 29th day of May 2017.

 

                                                                                                           DEPONENT

REGISTRAR” (verbatim – emphasis by me)

 

  1. In the majority Ruling Judges Vidot and Pillay had stated: “We therefore find that the mere fact that the Applicants were members of the CAA at the time the decision was taken to appoint the Tribunal, does not confer on them constitutional interest in this matter or direct interest that may affect the final judgment. We do not find special circumstances that would warrant this Court to allow them to intervene in the Petition. They have no locus standi. They have failed to establish that article 46(1) or article 130(1) have relevancy to their cause. Therefore the application is denied.”

 

  1. As stated at paragraph 3 above one of the functions of the CAA under article 134 of the Constitution is to initiate proceedings for the removal of Justices of Appeal and Judges from office. Article 134 of the Constitution reads as follows:

Removal of Justice of Appeal or Judge from office

134. (1) A Justice of Appeal or Judge may be removed from office only -

(a) for inability to perform the functions of the office, whether arising from infirmity of body or mind or from any other cause, or for misbehaviour; and

(b) in accordance with clauses (2) and (3).

(2) Where the Constitutional Appointments Authority considers that the question of removing a Justice of Appeal or Judge from office under clause (1) ought to be investigated-

(a) the Authority shall appoint a tribunal consisting of a President and at least two other members, all selected from among persons who hold or have held office as a Judge of a court having unlimited original jurisdiction or a court having jurisdiction in appeals from such a court or from among persons who are eminent jurists of proven integrity; and

(b) the tribunal shall inquire into the matter, report on the facts thereof to the Authority and recommend to the President whether or not the Justice of Appeal or Judge ought to be removed from office.

(3) Where, under clause (2), the tribunal recommends that a Justice of Appeal or Judge ought to be removed from office, the President shall remove the Justice of Appeal or Judge from office.

(4) Where under this article the question of removing a Justice of Appeal or Judges has been referred to a tribunal, the President may suspend the Justice of Appeal or Judge from performing the functions of a Justice of Appeal or Judge, but the suspension-

(a) may, on the advice of the Constitutional Appointments Authority, be revoked at any time by the President;

(b) shall cease to have effect if the tribunal recommends to the President that the Justice of Appeal or Judge ought not to be removed from office.”

 

  1. It is to be noted that the procedure for the removal of the 1st Respondent had been initiated prior to the eighth amendment to the Constitution as evinced by the letter referred to at paragraph 8 above and by the CAA consisting of the 1standthe 2nd Appellants and Mrs. Marie-Nella Azemia.

 

  1. The Appellants have filed the following grounds of appeal and sought the following relief:

 

“1)    The Learned Judges in their majority Ruling erred in law in equating “interest to intervene” with locus standi to institute a Constitutional petition.

 

2)      The Learned Judges in their majority Ruling erred in law in holding that the Appellants had to satisfy the Constitutional Court that:

 

  • Their fundamental right under Chapter III of the Constitution had been or was likely to be contravened by the final Ruling if they were not allowed to intervene: or

 

  • There had been a contravention of the provisions of the Constitution other than Chapter III and that they have an interest in that matter,

 

in that they confined interest for purposes of third party intervention to contraventions and likely contraventions of Chapter III or other provisions of the Constitution and failed to consider that intervention was sought in the capacity of a third party and not as Petitioner.

 

3)      The Learned Judges in their majority Ruling erred in law in holding that the Appellants had to establish “special circumstances” for the Constitutional Court to allow them to intervene.

 

4)        The learned Judges in thier majority ruling erred in law and on the evidence in falling to hold that the press release issued by the 2nd Respondent

 

  • Had criticised and adversely commented of the decision of the 2nd Respondent as previously constituted – and which included the Appellants – to set up the Tribunal of Inquiry to investigate the 1st Respondent; and

 

  • The legal stance of the 2nd Respondent is similar to that of the 1st Respondent, in respect of the decision of the 2nd Respondent as previously constituted – and which included the Appellants – in that both Respondents are against the setting up of the Tribunal of Inquiry.

5)      The learned Judges in their majority Ruling erred in law in failing to hold that the only relevant consideration for the determination of the application was whether the Appellants were interested in the event of the Petition, in terms of section 117 of Seychelles Code of Civil Procedure.

 

6)      The learned Judges in their majority Ruling erred in law in failing to hold that a third party whose personal interest can be affected by the result of legal proceedings between other parties, has a right to intervene in such legal proceedings.

 

RELIEF SOUGHT FROM THE SEYCHELLES COURT OF APPEAL

 

  • To declare that the Appellants are interested third parties in the event of the pending Petition in CP03/2017;
  • To allow the Appellants, as interested third parties interested in the event of the Petition in CP03/2017, to be joined to the said Petition and to file their reply to the said Petition;
  • To make such other or further orders as the Court of Appeal shall think fit.(underlining by me)

 

  1. I shall first deal with ground 5 of appeal above in which the Appellants urge, that the only relevant consideration for the determination of the application for intervention was, whether the Appellants were interested ‘in the event of the Petition’, in terms of section 117 of the Seychelles Code of Civil Procedure. Section 117 – 120of the Seychelles Code of Civil Procedure becomes applicable in accordance with rule 2(2) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994 which states: Where any matter is not provided for in these Rules, the Seychelles Code of Civil Procedure shall apply to the practice and procedure of the Constitutional Court as they apply to civil proceedings before the Supreme Court.. There is nothing in the Constitutional Court Rules which provide for intervention of a third party in a pending matter before the Constitutional Court.

 

  1. Provisions pertaining to intervention are to be found in sections 117 – 120 of the Seychelles Code of Civil Procedure:

Intervention

Who may intervene and at what time

117. Every person interested in the event of a pending suit shall be entitled to be made a party thereto in order to maintain his rights, provided that his application to intervene is made before all parties to the suit have closed their cases.

Application to be by motion

118. An application to intervene in a suit ‘shall be made’by way of motion with an affidavit containing the grounds on which the applicant relies in support thereof.

Notice to be given

119. Notice of such motion ‘shall be’ served upon all the parties to the suit.

Intervener must file statement of demand

120.  If leave to intervene is granted by the court, the intervener shall, within the period fixed by the court, file a statement of his demand and of the material facts on which it is based and shall at the same time supply a copy of such statement to the other parties to the suit. (emphasis added by me)

  1. Thus every person who seeks to intervene in a pending suit shall file three documents, namely the ‘Motion to Intervene’, an ‘Affidavit’ containing the grounds on which the applicant relies in support thereof in accordance with section 118, and the ‘Notice of Motion’ that is to be served upon all parties to the suit in accordance with section 119.I have examined the original court record and do not find a ‘Motion’ and therefore there is no application by way of ‘Motion’ as required by section 118. I can also see only one ‘Notice of Motion’ although there are two persons seeking to intervene. This makes the application to intervene defective, although entertained by the Constitutional Court. In the cases of Essack VS Auto Clinic [2000 SLR 125] and Teemooljeee& Co. Ltd VS Whit-wright [1965 SLR 165], submitted by Counsel for the Appellants alongwith their skeleton Arguments, application for intervention had been sought in the said cases by way of Motion and Affidavit. A motion is a request for action by the Court, citing the legal authority that allows the court to take action while an affidavit is a sworn statement that sets forth the facts that support the motion. It is trite law that civil procedure rules are enacted to govern the methods and practices used in civil litigation. In view of the mandatory provisions of section 118, I am of the view that an affidavit cannot complement the motion. In the case of Choppy &Ors VS Choppy & Anor [SLR 1959, 161) the Appellants’ argued that a suit of nullity of marriage could only be entered by way of petition as provided by the Matrimonial Causes Ordinance and the Rules made there under and not by plaint or statement of Claim.The Court held: We think that the wording of Rule 2 of the Matrimonial Causes Rules, 1949, which lays down that a matrimonial cause shall be commenced by petition is mandatory. Hence granting that the Court of Seychelles had jurisdiction to try the subject matter of the action yet it could only do it subject to the rules of procedure laid down, namely that the suit should commence by petition. Failure to follow that procedure meant that the Judge could no longer have jurisdiction (Maxwell, Interpretation of Statutes, 10th Edn, P.380)(emphasis added)A similar view was expressed by way of obiter in Stevenson VS Attorney General [SLR 1963, 15]. This alone suffices to dismiss the appeal.

 

  1. In a recent Ruling of this Court (28th August 2017) by a single Judge, in the case of Hedgeintro International Ltd VS Hedge Funds Investment Management SCA MA 05/2017 an application for Stay of Execution of a judgment was dismissed as the affidavit filed in support of the application was not in compliance with rule 20(1) of the Seychelles Court of Appeal Rules and section 171 of the Seychelles Code of Civil Procedure as it had not been sworn before any person. Dismissing the petition the Court in the case of Louis VS Constitutional Appointments Authority SCA 26/2007 held that the petition had not been supported by a properly attested affidavit as it lacked a name and signature.

 

  1. In the Zambian case of J.G. Chikuta VS Chipata Rural Council [1974] Z.R.241 it was held There is no case where there is a choice between commencing an action by a writ of summons or by originating summons. The procedure by way of originating summons only applies to those matters which may be disposed of in chambers. Where any matter is brought to the High Court by means of an Originating Summons when it should have been by writ, the Court has no jurisdiction to make a declaration. In the case of Apollo Refrigeration Services VS Farmers House Limited [1985] Z.R. 182 it was held that an originating notice of motion was not the proper process for a landlord’s claim for possession of business premises and should therefore be commenced by writ. In New Plast Industries Vs Commissioner of Lands and another [2001] Z.R. 51 it was held that the mode of commencement of any action is generally provided by the relevant statute.

 

  1. The Tanzanian courts have struck out proceedings brought under wrong provisions of the law or for non-citation of the relevant provisions in the notice of motion as incompetent. In the case of Hussein Mgonja VS T.E.C. AR Civil Revision No.2 of 2002, while striking out the application on the ground of incompetence for “failure to move the Court properly”, the court said: If a party cites the wrong provision of the law the matter becomes incompetent as the Court will not have been properly moved.” Reliance is placed, also on the cases of Robert Leskar VS Shibesh Abebe AR Civil Appl No. 4 of 2006; Fabian Akonaay VS Matias Dawite, Civil appl. No. 11 of 2003; Antony Tesha VS Anita Tesha, Civil appeal No. 10 of 2003; and China Henan International Co-operation Group VS Salv and K.A. Rwegasira, Civil Reference No. 22 of 2005.

 

  1. The person seeking to intervene, according to section 117 should satisfy court that he/she/it, is interested in the event of the pending suit in order to maintain his/her/its rights. Both these conditions have to be necessarily met, namely, ‘interested in the event of the pending suit’ and such ‘interest shall be in order to maintain his/her/its rights’. The right should be an existing, personal right, of the intervener which is likely to be affected if intervention is not granted. This is to keep away busybodies and meddlesome interlopers. The normal meaning attributed to the word ‘event’ is something that happens or is regarded as happening; an occurrence, the outcome, issue, or result of anything. The event of the pending suit is the declaration of the appointment of the Tribunal by the CAA, (the 2nd Respondent herein and the 1st Respondent to the Petition numbered CP03/2017 filed before the Constitutional Court),as unconstitutional, null and void ab initio. The reference to ‘maintenance of rights’ by an intervener in section 117 undoubtedly has to be, in view of the provisions of article 134 of the Constitution, directly in relation to the ‘outcome’ of the pending suit and not any collateral rights of the intervener. I am of the view that we have to be guided by section 117 of the Seychelles Code of Civil Procedure in considering whether an intervention should be permitted or not; for intervention is not a matter of right but may be permitted by the courts only when the statutory conditions set out in section 117, for the right to intervene are shown. In Big Country Ranch Corporation VS Court of Appeals [227 SCRA 161 (1993)] it was held that in allowing or disallowing a motion to intervene it is the function to also consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intevenors’ rights may be fully protected in a separate proceeding. It is possible to for the intevenors’ to sue the persons responsible for the press release if they are of the view that the press release has seriously damaged their “personal reputation and the integrity”. Judge Karunakaran is the person who is likely to be prejudicially affected by the outcome of the pending suit, it is he who is likely to be condemned, it is his interests relating to status, preservation of livelihood and reputation that is likely to be affected.

 

  1. The Appellants’ in their Skeleton Arguments in stating that “Any person whose interest can be affected by the result of law proceedings between other parties can intervene in those proceedings” has missed out on a fundamental principle enshrined in section 117, namely, he/she must also show that he/she is interested in the outcome of the pending suit. Merely stating that the Appellants “interest can be affected by the result of law proceedings between other parties” does not suffice. If that be the case the family members and those supportive of Judge Karunakaran and those who are not well disposed towards Judge Karunakaran, may also claim a right to intervene.

 

  1. In Shapiro VS South African Recording Rights Association Limited (Galeta Intervening) 2008 (4) SA 145 it was held that an intervener in an insolvency application must show legal interest (i.e. direct and substantial interest) and not just a financial interest in the outcome of the proceedings. In Aguilar Quila VS Secretary of State for the Home Department [2010 EWCA Civ 1482] the court said of the Asian Community Action Group, which had asked for permission to intervene that …it needs to be remembered that litigation, even on issues of general importance, is not an open battle ground… Alarm bells should ring if the litigation or the intervention is a vehicle for an ideology or for the pursuit of an ulterior agenda. In R (on the application of Burke) VS General Medical Council [(2005) EWCA Civ 1003; (2006) QB 273; (2005) 3 WLR 1132 Lord Phillips MR said: We mean no discourtesy to the other interveners when we observe that a great deal of their thoughtful and well-presented contributions falls victim to our general view that this litigation expanded inappropriately to deal with issues which, whilst important, were not appropriately justiciable on the facts of the case.

 

  1. It is to be noted that that in dealing with ground 5, namely ‘intervention’ under section 117 of the Seychelles Code of Civil Procedure’, we must not confuse it with the principles of ‘joinder of parties’ and ‘locus standi’. We cannot also interpret the word ‘interested’ in section 117 by juxtaposing it with the interpretation given to the word ‘interest’ in public law and constitutional law. This distinction has been drawn in the Kenyan case of Ms. Priscilla Nyokabi Kanyua VS Attorney General &Interim Independent Electoral Commission Nairobi [2010] KLR. In the Kenyan case referred to above; the ‘petitioner’, was a member of a public body who ‘filed action’on the basis of public interest litigation, for redressal of a public wrong or public injury, unlike in this case where the ‘interveners’, the Appellants, are seeking ‘to intervene’ to redress a private wrong, namely damage to their reputation and integrity. The petitioner in the Kenyan case, had brought the case claiming a right to prisoners to vote on the ground that the Constitution of Kenya does not exclude prisoners from voting in a referendum. The petitioner was challenged that she had no locus standi to bring the action as she had not alleged that any particular individual right guaranteed by the Constitution has been violated with respect to her. It was held in that case: The dominant object of public interest litigation is... to permit any person, having no personal gain or private motivation or any other oblique consideration, but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion. The Court was of the view that effective remedies should be available where the Constitution of Kenya is threatened and in constitutional questions, human rights cases, public interest litigation and class actions any person can approach the court even though legal injury has not been caused to such person. I made reference to this case as reference had been made to ‘locus standi’ in the majority judgment and to show how the circumstances and facts of this appeal are different from the Kenyan case.

 

  1. At paragraph 6 of the Affidavit referred to at paragraph 12 above, the Appellants have stated that they being ‘former’ members of the CAA and having being involved in the determination to set up the Tribunal are interested in the event of the present Petition”. They have thereafter gone on to explain their “interest in the event of the present petition”. They allege that:
  • A1, the Press release referred to at paragraph 9 above, has seriously damaged their ‘personal reputation and the integrity’,
  • it is apparent that the Constitutional Appointment Authority – as presently constituted –would concede to the Petition,
  • the CAA – as presently constituted – is acting in collusion with the Petitioner to interfere with the establishment of the Tribunal of Inquiry against the Petitioner and would concede to the Petitioner (Judge Karunakaran) and thus insinuate thatthey did not discharge their responsibility as chairperson and member respectively of the CAA in accordance with the Constitution in establishing the Tribunal of Inquiry,
  • it is unlikely that the CAA as presently constituted will defend the integrity of the Appellants, namely M.H. and J.C. in the present Petition, and
  • the Appellants would be able to lay before this Court all the pertinent facts to allow this Court to make a fair and just decision.
  1. It is clear that (a) to (d) in the above paragraph, certainly do not directly relate to the outcome of the present petition. The accuser of Judge Karunakaran is claiming to be the accused when it says that the press release has seriously damaged their personal reputation and their integrity. That is not a ground for intervention in a constitutional petition of this nature. Dr. Shelton M. Jolicoeur in his affidavit filed before the Constitutional Court had in my view correctly stated that “the failure by the Applicants to adopt a correct and lawful procedure does not impact on an official’s integrity”. To put it in another way a former Attorney General cannot seek to intervene in an action filed under article 19(13) of the Constitution for compensation against the Government for a wrongful prosecution, where malice, discrimination or nepotism, has been alleged against the Government, merely on the basis of clearing his name in performing his constitutional functions. In the same way a former Minister or a Principal Secretary in the Ministry of Lands, cannot seek to intervene in an action brought by a person against the Government for acquisition of his land where malice or nepotism has been alleged against the Minister or a Principal Secretary in performing his constitutional functions. A Trial Judge cannot intervene in an appeal against his judgment where the allegation is that he had erred in law and fact, on the basis of clearing his name in performing his judicial functions. A medical doctor cannot intervene in a case filed against the Government for gross medical negligence on the ground that his professional reputation is at stake. The same could be said of a former Director of Licensing seeking to intervene in a constitutional or judicial review action brought by a person who claims that he had been denied a license on the ground of malice by the director. If we allow intervention on the grounds set out in (a) to (d) of paragraph 27 above, we shall be opening the flood gates for interveners to come in without a proper basis, as set out in the instances set out above. Often we find in actions brought against the Government on the basis of contraventions of the Constitution, mala fides and fraud alleged against Government officials in the performance of their constitutional or official functions; but we have never had attempts of officials who performed those functions seeking to intervene, to safeguard their reputation. A recent example is to be found in the petition filed before the Constitutional Court by Lise Morel Du Boil against the acquisition of her land, in case numbered CP 10/2011, where allegations of contraventions of the Constitution, mala fides and fraud were alleged against the Government. But the Government officials involved in the acquisition never attempted to intervene claiming to protect their personal reputation and integrity. It was only Marise Berlouis to whom the Government had sold the land after its acquisition from Lise Morel Du Boil who intervened to protect her interest in the land.

 

  1. The first and second grounds of appeal are that the Learned Judges in their majority Ruling erred in law in equating “interest to intervene” with ‘locus standi’ to institute a Constitutional petition; in that they confined interest for purposes of third party intervention to contraventions and likely contraventions of Chapter III or other provisions of the Constitution and failed to consider, that intervention was sought in the capacity of a third party, and not as Petitioner. Elaborating on this the Appellants have said in their Skeleton Arguments: “There was no need for the Appellants to establish contravention of constitutional rights as they were not seeking any orders in their respect”. It has to be borne in mind that the Appellants are seeking to intervene in a “Constitutional Petition pursuant to article 130(1) of the Constitution”, filed by Judge Karunakaran as stated at paragraph 6 above.

 

  1. Article 130 states:
  • Constitutional questions before Constitutional Court

130. (1) A person who alleges that any provisions of this Constitution, other than a provision of Chapter III, has been contravened and that the person’s interest is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional Court for redress.

(2) The Constitutional Court may decline to entertain an application under clause (1) where the Court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any application for redress for such matter except on appeal from a decision of such court.

(3) Where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law.

(4) Upon hearing an application under clause (1), the Constitutional Court may –

(a) declare any act or omission which is the subject of the application to be a contravention of this Constitution;

(b) declare any law or the provision of any law which contravenes this Constitution to be void;

(c) grant any remedy available to the Supreme Court against any person or authority which is the subject of the application or which is a party to any proceedings before the Constitutional Court, as the Court considers appropriate.

(5) Where the Constitutional Court makes a declaration under clause 4(b), the Court shall, subject to any decision in appeal there from, send a copy of the declaration to the President and the Speaker.

(6) Where in the course of any proceedings in any court, other than the Court of Appeal or the Supreme Court sitting as the Constitutional Court, or tribunal, a question arises with regard to whether there has been or is likely to be a contravention of this Constitution, other than Chapter III, the court or tribunal shall, if it is satisfied that the question is not frivolous or vexatious or has not already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court.

(7) Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (6), the person alleging the contravention or risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State”.

(8) The Court in which the question referred to in clause (6) arose shall dispose of the case in accordance with the decision of the Constitutional Court, or if that decision is the subject of an appeal, in accordance with the decision of the Court of Appeal.

(9) Nothing in this article confers jurisdiction on the Constitutional Court to hear or determine a matter referred to it under article 51(3) or article 82(1) otherwise than upon an application made in accordance with article 51 or article 82.

31. I had stated at paragraph 23 above that the person seeking to intervene, according to section 117 should satisfy court that he/she/it, is interested in the event of the pending suit in order to maintain his/her/its rights. Since this is a constitutional petition filed pursuant to article 130(1) of the Constitution”, and not a normal civil action filed before the courts, the Constitutional Court cannot ignore the provisions of article 130 of the Constitution set out in paragraph 30 above in entertaining an application for intervention. A petitioner under article 130(1) has to satisfy the Constitutional Court that a provision of chapter III has been contravened and that the person’s interest is being or is likely to be affected by the contravention in order to succeed in an application under article 130 of the Constitution. Under article 130(3) where the Constitutional Court is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Constitutional Court has the discretion to transfer the application to the appropriate court for grant of redress in accordance with law. It will be meaningless to expect of the petitioner to meet the requirements of article 130(1) and be subject to what the Constitutional Court may do under article 130(3), but yet absolve the intervener from meeting the requirements to be met under article 130(1) and the provisions of article 130(3).

32. The absurdity of treating an intervener differently from that of the petitioner is highlighted if leave to intervene is granted by the Constitutional Court and the intervener files a statement of his demand in accordance with section 120 of the Seychelles Code of Civil Procedure, but the Constitutional Court dismisses the application of the Petitioner. It would be absurd for the Constitutional Court in such an event to hear the case of the intervener which is not a constitutional question. According to article 129 of the Constitution it is only constitutional questions, namely matters relating to the application, contravention, enforcement or interpretation of the Constitution that are determined by the Constitutional Court. In the cases of Lise Morel Duboil VS AG and Josephine Maryse Berlouis, the intervener in the said cases were allowed to be joined because their constitutional rights to property could have been affected by the petition, as the petitioners in those cases were suing the Government for the return of property acquired from them by the Government and subsequently sold to the interveners. Thus they were interested in the event of the pending suit in order to maintain their rights to property.

33. The declaration of the appointment of the Tribunal by the CAA as unconstitutional, null and void ab initio and the removal of a Judge, are not events that the Appellants can be said to be personally interested in order to maintain an existing right of theirs. As to be clearly seen this is a petition filed by Judge Karunakaran pursuant to article 130(1) of the Constitution as stated at paragraph 6 above and not one under article 46(1) of the Constitution claiming contravention of any of the Charter provisions. Right to ‘personal reputation integrity’ certainly has not been provided for in article 134 of the Constitution, nor set out as a specific right in chapter III of the Seychellois Charter of Fundamental Human Rights and Freedoms. The right of the CAA to express themselves as they did in the Press Release has not been restricted by article 134 of the Constitution so as to make the complaint of the Appellants’ a constitutional issue. Further the Appellants cannot intervene in a petition filed pursuant to article 130(1) of the Constitution, to protect a Charter right, even if they had any.

34. What is also to be borne in mind is that the removal process of a Judge does not stop with the appointment of a Tribunal. The Tribunal appointed has to thereafter inquire into the matter which has been referred to them for investigation and “report on the facts thereof to the CAA” which continues to function despite the resignation of the Appellants. According to article 134(4) of the Constitution the CAA may advise the President to revoke a suspension imposed by him under article 134(4)(a) of the Constitution. The Appellants interest in the matter ceased with their resignation but the CAA continues to function. Dr. S. M. Jolicoeur has stated in his affidavit that “following their resignation the Appellants are functus officio and have no official status with respect to this matter”. Thus the Appellants who have voluntarily resigned from being members of the CAA cannot expect the CAA to follow their diktats or stay obedient to the process begun. That would amount to a violation of article 139(2) of the Constitution which states: Subject to this Constitution, the Constitutional Appointments Authority shall not, in the performance of its functions be subject to the direction or control of any person or authority.Dr. S. M. Jolicoeur has stated in his affidavit that the Constitutional Appointments Authority “takes its constitutional responsibilities seriously and is not subject to the direction or control of any person or authority. The Constitutional Appointments Authority believes in the rule of law, due process and respects the constitutional rights of any individual in its decision making process.” To insist that the Tribunal had been appointed after due consideration of the complaints against Judge Karunakaran, and that there should not be any further review of the matter, is surprising and unwarranted. A similarity could be drawn in the case of a newly appointed Attorney General, withdrawing a case filed by his predecessor, by stating to Court and the Press, that his predecessor had filed the indictment without a proper consideration of the available evidence and then his predecessor insisting that the matter had been properly considered and the case should not be withdrawn. This could never be the case.

35.   For the Appellants to aver in their application for intervention that “the CAA – as presently constituted – is acting in collusion with the Petitioner (Judge Karunakaran) and would concede to the Petition” is a statement that seriously damages the ‘reputation and the integrity’ of the CAA and certainly is not indicative of an “interest in the event of the pending suit” by the Appellants. I strongly deplore the conduct of the Appellants to make use of the Constitutional Court as a forum to settle the squabbles between the former and present members of the CAA in the guise of a claim for intervention.

36. The Appellants in ground 6 have conveniently omitted to make reference to one of the essential elements that has to be satisfied in seeking to intervene under section 117, namely they should satisfy court that they are interested in the event of the pending suit. The mere fact that their “personal interest can be affected by the result of legal proceedings between other parties”, alone will not satisfy especially in a constitutional petition filed under article 130(1) in relation article 134.

37. For the reasons enumerated above I have no hesitation in dismissing grounds 1, 2, 5 and 6 of appeal.

38. I dismiss ground 3 of appeal as it was perfectly right in my view for the Judges who gave the majority Ruling to state: “We do not find ‘special circumstances’ that would warrant this Court to allow the Appellants to intervene in the Petition”. The ‘special circumstances’ would be ones like in the cases of Lise Morel Duboil VS AG and Josephine Maryse Berlouis, referred to at paragraph 32 above.

39. In dismissing ground 4 of appeal I only wish to state that the Constitutional Court could have made such a pronouncement only if leave had been granted to the Appellants and that too if the Appellants prays for such a declaration to be made in a ‘Statement of Demand’ filed under section 120 of the Seychelles Code of Civil Procedure and provided that they can satisfy the Constitutional Court that it is a remedy that the Constitutional Court may grant under article 130(4) of the Constitution read with article 134 of the Constitution. Further I agree with the statement in the majority Ruling at paragraph 33 that “It can be said that the Applicants could have, if they felt that there had been erroneous assumptions in the Press Release issued by the CAA on 21st May 2017, sought a right of reply and issued their own Press release to refute such assumptions and set the record straight”. I am also of the view that the Appellants are free to file a civil suit before the Supreme Court if they are of the view that they can satisfy the Court that the Press Release has seriously damaged their personal reputation and integrity.

40. I shall now deal with the averment in paragraph 10, by both of the Appellants, in their respective Affidavits, that they “would be able to lay before this Court all the pertinent facts to allow this Court to make a fair and just decision”. In this regard it is pertinent to refer to section 112 of the Seychelles Code of Civil Procedure to see whether it would have any application. Section 112 of the Seychelles Code of Civil Procedure states:

Misjoinder, adding of parties, etc

           112. No cause or matter shall be defeated by reason of the misjoinder or non joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any persons improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.

          The question is, should the Constitutional Court have acted ex mero motu under the provisions of this section? For it to have acted under section 112, the Constitutional Court should have been satisfied, that in order to enable it to effectually and completely to adjudicate upon and settle all the questions involved in this case, so far as regards the rights and interests of the parties actually before it;the Appellants should be added as respondents. The parties before the Constitutional Court are the CAA, irrespective who its members are; and Judge Karunakaran. It is to be noted that the addition is done to effectually and completely adjudicate upon and settle all the questions involved in the case so far as regard the rights and interests of the parties actually before it; and certainly not of the parties been added. To do so would be to amplify a matter beyond its intended objective and purpose. As stated earlier the CAA continues to function despite the resignation of the Appellants.

41. The Appellants in making the averment in their Affidavits, that they “would be able to lay before this Court all the pertinent facts to allow this Court to make a fair and just decision”, have not denied the following statements in the Press Release.

  • However, the CAA, (2nd Respondent herein) in the course of taking possession of its duties, has realized that there were no rules or procedures set out for determining the appointments and considering complaints against Judges, inter alia.
  • The CAA has noted that there is nothing in the files left by its predecessor (M.H & J.C) to indicate that there was any consideration of the complaints before the appointment of the Tribunal.

The affidavits of the Appellants do not bear out, that they had considered the Commonwealth Latimer House Principles on Removal of Judges or established rules and procedures in other Commonwealth or other jurisdictions. These are matters that necessarily should have been placed in the affidavit so that the Court could have then determined whether the presence of the Appellants are necessary for it to effectually and completely to adjudicate upon and settle all the questions involved in this case as regard the rights and interests of the CAA and Judge Karunakaran.

 42. As stated at paragraph 5 above Mrs. Marie-Nella Azemia (M.A.), who was involved in the setting up of the Tribunal continues to be a member of the CAA. M.A. in her affidavit filed before the Constitutional Court had stated: “I am cognizant of the facts, circumstances and decision making process concerning the pertinent complaint of Chief Justice Dr Matilda Twomey against Judge Karunakaran” and that “I confirm that the complaint was considered by the Constitutional Appointments Authority and can further confirm that at no time did the Constitutional Appointments Authority ever give Judge Duraikannu Karunakaran the opportunity to address the Constitutional Appointments Authority with respect to the said complaint.” The Appellants have not cast any aspersions on Mrs. Marie-Nella Azemia. What had been stated by Lord Hoffmann in E VS The Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66; [2009] 1 AC 536 in respect of interveners is relevant here, namely, An intervention is however of no assistance if it merely repeats points which the Appellant or Respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything.

43. In view of what has been stated at paragraphs 41 and 42 above I am of the view that there was no need for the Constitutional Court to have acted under the provisions of section 112 of the Seychelles Code of Civil Procedure. The Appellants have not indicated what are the pertinent facts they would be able to lay before the Constitutional Court to allow the Court to make a fair and just decision, when there was nothing in the files left behind by them to indicate that there was any consideration of the complaints before the appointment of the Tribunal and nothing to indicate that there were rules or procedures set out by the CAA for considering complaints against Judges, at the time the Tribunal was appointed. There is also Mrs. Marie-Nella Azemia (M.A.), before the Court, who was involved in the setting up of the Tribunal, for the Constitutional Court; to effectually, and completely to adjudicate upon and settle all the questions involved in this case so far as regards the rights and interests of the CAA and Judge Karunakaran. Further the affidavit of Dr. S.M. Jolicoeur states that the “CAA is in possession of the official file concerning this matter and will humbly submit for the Courts consideration, the facts the laws and principles leading to its reasoning, observations and comments”.

44. I therefore dismiss the appeal with costs to the 1st and 2nd Respondents.

45. I would however state that if the Appellants are so desirous to “lay before the   Constitutional Court all the pertinent facts to allow this Court to make a fair and just decision” as claimed in their respective affidavits, they should attend the hearing of this petition and it is at the discretion of the Constitutional Court, if the Court so determines at the hearing of this case and depending on the progress of the case, that their evidence is necessary to a fair and just decision of the case, to require the Appellants to give evidence, under section 156 of the Seychelles Code of Civil Procedure or by affidavit, under section 168of the Seychelles Code of Civil Procedure; with the right of cross-examination or the right to file counter affidavit made available to the 2nd Respondent. The evidence however should be limited to the purpose of ascertaining whether the Appellants considered the question of removing Judge Karunakaran ought to be investigated, in accordance with article 134(2) of the Constitution; prior to appointing the tribunal, as stated in the Ruling of Robinson J. This is the only issue that has to be determined by the Constitutional Court as per the Petition in this case.

46.The Constitutional Court may also do this, in exercise of its ‘inherent powers’. It is an age-old and well-established principle that every court has power to act ex debito justitiae to ensure that it exists for real and substantial administration of justice. The Seychelles Code of Civil Procedure is not exhaustive; the reason for this being that the legislature is incapable of pre-empting all possible circumstances which may arise in future litigation, and consequentially for providing the procedure for the same. The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of possession of inherent power. Inherent powers are those which enable a court to act effectively within its ‘inherent or substantive jurisdiction’. The inherent powers are ‘ancillary’ or incidental to the court’s jurisdiction. All courts possess inherent powers. These powers enable the court to regulate its own procedures, to ensure fairness in trial. Courts are guided by pragmatism and necessity in exercising its inherent powers. At the heart of this power is the concept of fairness of proceedings, both to the parties before the court and to the functioning of the judiciary and the general administration of justice.

47. In the case of K.K. Velusamy vs N. Palaanisamy , [2011] civil appeal nos. 2795-2796 the Supreme Court of India stated in relation to exercising its discretion to recall witnesses or permit fresh evidence on the basis of inherent powers of the court, that inherent powers are complementary to the powers specifically conferred and a court is free to exercise them even when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. While exercising the inherent powers, the court has to be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. This power will have to be used with circumspection and care, and only where it is absolutely necessary, and when such exercise is to meet the ends of justice and to prevent abuse of process of court.

 

A. Fernando (J.A)

 

Signed, dated and delivered at Ile du Port on19 September 2017