Intershore Banking Corporation Ltd v The Central Bank of Seychelles (CA 34/2013 and MA 249/2014) [2016] SCSC 329 (17 May 2016);


IN THE SUPREME COURT OF SEYCHELLES
Civil Side: CA 34/2013 and MA 249/2014
Appeal from Central Bank Board Decision dated 18 October 2013    

[2016] SCSC 329



Intershore Banking Corporation Ltd         
                        

versus


The Central Bank of Seychelles.        


Heard:        29 March 2016   
Counsel:Phillippe Boullé  for appellant
           
            Attorney General for respondent
           
Delivered:    17 May 2016

 

JUDGMENT

M. TWOMEY, CJ

[1] What stands before me are two cases that I intend to dispose of with one judgment. The first case is a remittance from the Constitutional Court to the Supreme Court to take a decision in an interlocutory application, this matter was heard under the case number MA 249/2014 and arose in the course of the second case, the Appellant’s appeal against a decision of the Board of the Central bank, which matter is the main appeal in this action, CS 34/2013. Both cases concern a common central question which relates to whether the respondent has legal grounds to refuse the disclosure of information which pertains to the Appellant and upon which it relied in the course of its decision. Due to the overlapping nature of the two central matters, I will dispose of both in the same judgment.
Background
[2] The Appellant applied to the Central Bank of Seychelles for a banking licence pursuant to section 5 of the Financial Institutions Act 2004 (the Act). The application was refused on 17 July 2013 on the following five grounds:
1. That under section 69(1) (a) of the Act, the Appellant had not fully disclosed information to meet the criteria for completeness in terms of necessary information submitted for the licence to be considered.
2. That under section 6(1) (b) of the Act, the disclosed amount of liquid capital available was not sufficient to meet unexpected losses in addition to expected losses should these arise.
3. That under section 6(1) (d) the Act, and based on confidential information received the identity and character of individuals holding a substantial interest in the Appellant company did not fulfil the requirements necessary for a banking licence.
4. That under section 6(1) (j) of the Act and based on confidential information received, the corporate activities within the Appellant group posed a risk or might affect the international standing or good repute of Seychelles.
5. That under section 6(1) (k) it was not possible to fully assess the financial soundness of the Appellant as the Appellant’s director was also the beneficial owner of Intershore Aviation Ltd.
[3] The Appellant appealed the Central Bank’s decision to the Board of the Central Bank pursuant to section 16(1) of the Act.  
[4] At the hearing of the appeal the Appellant submitted that several persons had filed “rubbish” about him and questioned whether they should be allowed to discredit him. He submitted that his business, Intershore Consult Group (The Group) operated in the most “heavily regulated jurisdictions” namely in the British Virgin Islands, Belize, Panama, Anguilla, together with London and Hong Kong and opined that the “nonsense” filed about him was because “they believed he was committing some sort of crime and they thought he would run away because they had got something about him”. He produced a schematic of The Group, and stated that he had disclosed information about sixteen international companies of The Group although such disclosure was not a requirement for the licence.  
[5] He submitted that he had a right to all information about him so that he could ensure that “the culprits and cowards who conjured up the information under the obnoxious cover of confidentiality are made to swallow their venomous vomit”.
[6] The Appellant then relied on its written appeal in which it had emphasised the fact that and the Appellant and Mr. Boullé had contributed the most in the early years of the financial services industry in Seychelles and had promoted and established the country as a financial centre. He found the conclusion of the Bank that The Group posed a risk to the international standing of good repute of Seychelles “not only farcical, but an act of dangerous naivety and insolence”. He pointed out that The Group had won many achievement awards in terms of the contributions to the offshore industry and as the provider of one of the highest number of International Business Companies incorporations. As it conducts its business openly there could be no confidential information about it and if any existed it would have been concocted by persons seeking personal favours to discredit The Group.
[7] Mr. Boullé also talked of his personal achievements and stated that he could not take the refusal from the Bank seriously as they did not indicate “the faintest knowledge of the realities of the Seychelles financial sector and banking environment in its international comparative dimension”.
[8] He also clarified the following issues:
1. He had answered questions in relation to capital structures of the company over and above what was statutorily necessary, namely that the Appellant had unencumbered assets of SR139 million. He further explained that he would be bound by liquidity ratios. He could divert assets of The Group to the Bank if the need arose.
2. He pointed out that the greatest cost to the Appellant would be an office and that The Group would provide it with a fully equipped premises including a vault.
3. He added that SR7 million would be injected into the bank as capital thus creating a solid structure.
4. His aim was to have one of the most modern offshore banks in Seychelles which would therefore not necessitate customers going to Mauritius instead.
[9] His written appeal also pointed to the letter of refusal from the Bank in answer to his application and issued on 17 July 2013 to the effect that it had not met the statutory time limit of 90 days under section 6(3) of the Act.
[10] On 18 October 2013, the Board denied the appeal and communicated the reasons for its decision namely that:
1. The reason for the Central Bank’s response being issued outside the requisite 90 day period as laid down in section 6(3) of the Act was as a result of the Appellant’s own non-compliance with the provisions. It had been requested to provide supplemental information but had not furnished the same. In the circumstances a substantive and final decision on the grant of the licence could not be made within the statutory time limit.
2. The Appellant had failed to satisfy the Respondent on the validity of documents submitted as it failed to disclose two companies (Lazare Financial Services Ltd and Lazare Properties Ltd) in which it had an interest. Although the Appellant claimed it had no relation to these companies, this was not a matter for the appreciation of the Appellant but rather one for the Respondent to consider. Further, the fact that Mr. Boullé (the director of the two companies and the Appellant) had neither disclosed the two companies nor his directorship of them raised doubts as to the credibility of the Personal Questionnaire completed by the Appellant.
3. The Respondent remained concerned that although the Appellant had available unencumbered assets it could call on, these would be insufficient to raise capital immediately should the need arise.
4. The fact that Mr. Boullé had personally held high office in Seychelles and Intershore Consult had accomplished many achievements in the offshore industry did not diminish the impact of the confidential information on establishing whether the Appellant was a fit and proper person to hold a banking licence.
5. The fact that the Appellant’s director and beneficial owner was also a director and beneficial owner of Intershore Aviation Ltd posed uncertainty in that it did not permit an assessment of the financial soundness of the Appellant as Intershore Aviation was a new venture and its impact on the Appellant was unknown.
[11] The Appellant appealed the decision of the Board of the Central Bank to the Supreme Court pursuant to section 16(2) of the Act.
Appeal to the Supreme Court
[12] When this matter first came up for hearing in the Supreme Court, the learned trial judge De Silva ruled that the procedure to be adopted for such appeals was that applicable to civil appeals from a Magistrate Court to the Supreme Court. This therefore necessarily meant that the record of proceedings in relation to the application of the Appellant and his appeal to the Board of the Central Bank would have to be served on the Appellant in order that it might prepare its Memorandum of Appeal. On the 1st of July 2014, the Learned Judge ordered that the Registrar of the Supreme Court call for all relevant documents pertaining to the decision of the Central Bank and conveyed to the appellant by its letter to serve both parties with a thus completed record by the 30th of July 2014.
[13] On 25th August 2014, the Appellant duly filed its Memorandum of Appeal relying on six distinct grounds of appeal which can be summarised as follows:
a. That the reasoning pertaining to section 6(3) of the FIA the decision lacks juridical reasoning;
b. That the finding pursuant to section 6(1) (a) of the FIA is not reasonable and justifiable and fails to take into consideration important and relevant facts;
c. That with regard to section 6(1)(b)(i) of the FIA the finding of the Respondent ‘weighs against the appellant in a draconian and unjustifiable manner’;
d. That the use of confidential information allegedly disclosed to the Respondent under conditions of confidentiality in terms of section 6(1) (d) of the FIA is devoid of any merit or legal basis;
e. That the finding under section 6(1) (j) of the FIA  based on confidential information is without juridical foundation; and
f. That, with regard to section 6(1)(d) of the FIA, the refusal of the licence is frivolous and devoid of rational reasoning, and it falls on its irrationality.
[14] The Memorandum of Appeal also contained the following statement:
The appellant reserves its right, subject to leave of the court, to file additional grounds of appeal and amend grounds set out above in the light of any additional information and documents that may be furnished in terms of the Notice of Motion filed in this matter.
      Application for disclosure or referral to Constitutional Court
[15] On the same day that the grounds of appeal were filed, the Appellant also filed an application, under case number MA 249/2014 requesting an order compelling the Respondent to complete the records filed in the Supreme Court by disclosing the confidential information relied upon by the Board in terms of section 6(1)(d) and 6(1)(j) of the Act or alternatively requesting a referral to the Constitutional Court to determine “a constitutional issue relating to the Appellant’s constitutional rights to information under article 28, to equal protection of the law under article 27 and to a fair hearing under article 19(7) of the Constitution”. At the next hearing, Mr. Boullé for the Appellant submitted that the records of proceedings served on him were incomplete since the confidential information relied on by the Board of the Central Bank in coming to its decision had not been made available to the Appellant.  
[16] He stated on behalf of the Appellant that no law existed to curtail the right of access to information under article 28 of the Constitution and if any did, it would be unconstitutional. The right of access to information pre-empted confidential information being withheld from a citizen as one would be precluded from ascertaining whether the information was confidential or not.
[17] In its written reply to the Appellant’s application, the Respondent prayed for a dismissal of the application. This was supported by the affidavit of Caroline Abel, the Governor of the Central Bank.  She deponed inter alia as follows:
1. I aver that the Board of the Central Bank in coming to its decisions based on sections 6(1) (j) and 6(1) (d) on the Financial Services Act […](sic) relied upon information disclosed to the Central Bank by the Financial Intelligence Unit, as set up under section 16 of the Anti-Money Laundering Act 2008, the latter being a public sector agency and a law enforcement agency.
2. I aver that the said information disclosed by the Financial Intelligence Unit to the Central Bank was disclosed on the grounds of confidentiality and secrecy between the Financial Services Act (sic) in that it may not be disclosed to third parties and as a result the Central Bank is under no duty to give reason for its decisions based on this information…
3. I aver that I am informed and verily believe that the Board of Central Bank received the information from the Financial Intelligence Unit on a confidential basis and its disclosure to third parties may affect the prevention and detection of crime and other law enforcement measures both current and in the future, in Seychelles and elsewhere…    
[18] In his oral submissions, the learned Attorney General for the Respondent stated that the right of access to information was curtailed generally by laws that are reasonable in a democratic society. He submitted that section 6(3) (b) (i) and (ii) of the Financial Institutions Act were provisions of such laws. In his view, a referral to the Constitutional Court was only merited if the Appellant was of the view that the provisions of such laws were oppressive and breached his constitutional right. In any case he submitted, no referral should be made if there was provision for the justifiable derogation of the constitutional right.
[19] The learned trial judge de Silva opined that where decisions are based on confidential information, it could not be said that this information was only for the internal consumption of those who had made the decision as this might lead a party seeking “cover under a confidentiality clause and arriving at an unreasonable and arbitrary decision” In his view such matters were within the purview of the Constitutional  Court and that he had expressed the stated view “to facilitate [his] line of thoughts”. However as can be seen from the latter comment Judge de Silva did not intend for the statement to be influential and his reasoning is purely obiter dicta. He referred the following questions for the determination of the Constitutional Court pursuant to article 46(7) of the Constitution namely:
1. Does the failure of the Board of the Central Bank of Seychelles to set out the reasons for its non-approval of the banking licence requested by the applicant on the ground that such approval is denied on the confidential information disclosed to it under section 6(3) (b) (ii) of the Financial Institutions Act directly or indirectly violate the applicant’s right to access to official information in terms of Article 28(1) and 28 (2) of the Constitution?
2. Does the above failure of the Central Bank to disclose confidential information to the appellant infringe any other article of the constitution?
[20] In a judgment given on 23rd February 2016, the Constitutional Court provided the following reasoning:
It is our view that the learned trial judge having been made privy to the nature of the said information, could decide whether access to the information could be denied as it falls under the limitations contained in article 28(2) or whether limited or full disclosure could be permitted as it partially falls or does not fall within the ambit of section 6(3)(b)(ii) of the FIA and Article 28(2) of the Constitution….[W]e direct the Hon. Attorney General to provide the learned trial judge the information, in order that the learned trial judge could verify the nature of the information after being made privy to it and decide whether or not the information falls within the ambit of Article 28(2) of the constitution and make a suitable ruling in respect of same.
Therefore, the Constitutional Court answered the two questions put to it as follows:
1. The Appellant’s access to the confidential information should be decided by the trial judge after assessing whether the information supplied to it  falls under the limitations contained in article 28 (2) of the Constitution.
2. The failure to disclose the confidential information would only breach the Appellant’s right if it fell outside the limitations set out in Article 28(2) of the Constitution, that is, those prescribed by law and are necessary in a democratic society.
[21] The matter having been remitted to the Supreme Court for hearing and the original trial judge having left, I became seized of the hearing of the merits of the case as directed by the Constitutional Court.
[22] In my view, by delegating the functions stated above to the Supreme Court, the Constitutional Court has divested itself of its functions. Article 129(1) provides that:
(1) The jurisdiction and powers of the Supreme Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution shall be exercised by not less than two Judges sitting together.
(2) Where two or more Judges sit together for the purposes of clause (1), the most senior of the Judges shall preside.
(3) Any reference to the Constitutional Court in this Constitution shall be a reference to the Court sitting under clause (1).
It is abundantly clear from those provisions that a Constitutional Court, and not a single judge of the Supreme Court, should carry out the functions of interpreting the Constitution even when this merely amounts to assessing whether acts (in this case the non-disclosure of information of a person or a body) breaches the Constitution or falls within the parameters of the derogation to the charter right.
[23] Be that as it may, this matter has been dragging in the courts for a number of years and its conclusion is of paramount importance for all concerned and in order to allow the appeal to progress. I called for the said confidential information and the same was duly delivered to my Chambers on 28th  March 2016. I am of the view, however, that I need not examine it in detail for the purpose of this judgment for the reasons I explicate hereunder.
      Submissions
[24] Following the Constitutional Court judgment, and having perused the confidential information, I allowed the parties to be heard with regard to the question posted by the Constitutional Court. At the same time, the Appellant made arguments about the confidential information insofar as it related to the subject matter of the appeal. Mr. Boullé submitted that although the Appellant had pursued its appeal on six grounds, should the ground relating to the disclosure of confidential information not be successful, there would be no point in pursing the rest of the grounds of appeal. The present appeal now therefore rests on only one ground: whether or not the Appellant is entitled to the disclosure of the confidential information on which the Central Bank partly based its decision to refuse it a bank licence.
[25] Mr. Boullé also submitted that despite abundant information being laid before it, the Respondent chose to base its decision on information received by only one institution in Seychelles. In effect he added, the institution was allowed to discredit a holding company and a group of international companies licensed by the Financial Services Authority.
[26] He pointed to the “lack of seriousness” adopted by the Respondent in considering the Appellant’s application for a licence citing the Financial Services Act (sic) as opposed to the Financial Institutions Act. He submitted that the Governor’s affidavit was also frivolous in its reference to the Appellant’s rights to access to information, a fair hearing and equal protection before the law being limited on the “grounds of preservation and detention of crime” (sic).  
[27] He submitted that information held about a citizen is not confidential to a citizen but only to a third party. In his view all information about a person should be accessible by that person. In his words- “… there is no confidential information to me about me”. Confidential information may be held by a public body about a person but the person to which it relates can give permission for it to be disclosed. He gave the example of the Commissioner of Taxes to whom one might write to disclose one’s tax affairs to a third party.
[28] In other words, he submitted, confidential information is confidential only in regard to the person to whom it relates.
[29] Further, he submitted, unless one has access to information held about oneself one cannot correct any mistakes, errors or lies contained in such information. He then referred to an excerpt from Wikipedia on “Access to Information in South Africa” emphasising that access to state held information provides government accountability in terms of protection of the rights of the citizen. He then referred to the South African Promotion of Access to Information Act No 2 of 2000 (PAIA) which was enacted to give effect to the constitutional right of access to information.
[30] The Learned Attorney General for the Respondent submitted that whatever had been opined by Judge de Silva was obiter as he could not rule on the constitutionality of any legislation. He had necessarily to refer such matters to the Constitutional Court, which he had done in any event.
[31] He submitted that the typographical mistakes in the Governor’s affidavit were regrettable but did not affect the substantive decision. He also submitted that the decision made by the Board was on several grounds and not purely on the basis of the confidential information submitted to it.
[32] He further submitted that the probity and competence of the Appellant or its beneficial owner was a matter within the competence of the Board and a matter in which its discretion was properly exercised having perused all information, confidential or otherwise before it.
[33] He added that the FIU was properly mandated under the Anti-Money Laundering Act to give and share information about persons with agencies within and outside the Republic of Seychelles. In such situations, he submitted there was no need by the FIU or any other agency to request the permission for disclosure from the person to whom the information related as such disclosure was strictly within the bounds of article 28(2) of the Constitution.
      Issues before the Court
[34] It is perhaps important at this juncture to recap on the issues before the Court as the ground of appeal could easily be obfuscated by the submissions of Counsel which may have little relevance to the core issue before this Court. In a nutshell, Mr. Boullé for the Appellant has applied for an order granting disclosure of the confidential information to complete the record of proceedings so that he could formulate further grounds of appeal or failing that, a referral to the Constitutional Court to rule whether failure to disclose such information violated the Appellant’s rights under Articles 19, 27 and 28 of the Constitution.
[35] As the second option was chosen by de Silva J, I am now asked by the Constitutional Court to firstly consider granting the Appellant access to the confidential information by assessing whether it falls within the limitations contained in article 28 (2) of the Constitution. Secondly to consider whether failure to grant such access has breached the constitutional rights of the Appellant. In this undertaking I have expressed my reservations as a single judge of the Supreme Court with regard to my constitutional mandate. However, I do believe that the Constitution is a living, aspirational document, brought into our national democratic story in order to infuse all law with the principles on which our society is founded. Supreme Court judges have the honour of sitting on the Constitutional Court panels when the duty arises to hear matters concerning the application, contravention, enforcement or interpretation of the Constitution. Similarly, when they are sitting alone on the bench they are not to take off their constitutional hat and disregard these same principles. We are to perform our duties through the prism of the Constitution, in order to fulfil our individual mandate to “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.” (Preamble to the Constitution). Every day we are called upon to give meaning and interpretation to the laws of the land, many of which originated in our law prior to the modern constitution. It would be incongruous with our constitutional mandate to prefer interpretations and applications of the law which do not seek to promote the principles of the constitution.
[36]  Nevertheless, my decision hereunder is founded purely on rules relating to disclosure even when references are made to the Constitution.
[37] I must from the outset dispose of the point raised by Mr. Boullé in respect of what constitutes confidential information. I am not persuaded by his argument that confidential information is never confidential as regards the person it concerns. In my view, confidential information necessarily relates to a communication in writing, visually, electronically or orally made in confidence between the discloser and the recipient(s). The submission of Counsel in this regard is rejected.
[38] In respect of the submission relating to article 19 of the Constitution (right to a fair trial in criminal trials) I fail to see its application to the present case as the Appellant has not been charged with any offence. However, I would be prepared to consider that natural justice as a jurisprudential concept applies equally to civil cases, to ensure equality of arms and fairness in any matter before a court. The general principle is that one should hear both sides of a case. I recognise that the Appellant is hampered in prosecuting its appeal when it is unaware of the material disclosed to the decision maker which informed the decision making process in this case. This, it must be admitted, runs counter to principles of fairness. The dissatisfaction of the Appellant with the decision and appeal process, although forcefully expressed, is perhaps understandable.
[39] There are however, certain considerations that the Court must take into account in relation to Counsel’s submission on behalf of the Appellant. Firstly, the equality of arms in this case is tempered by the fact that both the identity of the informant(s) in this case and the contents of the confidential information or at the very least part of the contents seemed to have been in the knowledge of the Appellant. This is evident from the record of proceedings before the Board and also before the Court as Mr. Boullé named officers of the FIU and referred to them and their actions albeit in the most infelicitous choice of words. A possible inference is that there was access to the confidential information by the Appellant. The disparity in equality of arms in this context would therefore be greatly diminished and in this respect the application for disclosure would be a sham.  
[40] Secondly, even in the absence of the disclosure of the confidential information it must be acknowledged that the equality of arms principle is limited by public interest concerns. The discussion on public interest is discussed below together with the considerations in respect of the submissions made in respect of Articles 27 and 28 of the Constitution.
[41] Article 27 provides for the right to the equal protection of the law, that is, that all laws are applied equally to all people without discrimination. I am unsure what issues the Appellant had in relation to these provisions as these were not developed at the hearing of the appeal. I assume that the Appellant is inferring that the Central Bank has in some way discriminated against it in the consideration of its application for a banking licence. As I have stated, no submissions were made in respect of breaches under this provision of the Constitution and I do not propose therefore to consider this point especially given the impossibility of my position to do so as single judge of the Supreme Court.  
[42] Mr. Boullé on behalf of the Appellant has however made several submissions in respect of Article 28 which provides for the right of access to information as follows:
(1) The State recognises the right of access of every person to information relating to that person and held by a public authority which is performing a governmental function and the right to have the information rectified or otherwise amended, if inaccurate.
(2) The right of access to information contained in clause (1) shall be subject to such limitations and procedures as may be prescribed by law and are necessary in a democratic society including-
(a) for the protection of national security;
(b) for the prevention and detection of crime and the enforcement of law;
(c) for the compliance with an order of a court or in accordance with a legal privilege;
(d) for the protection of the privacy or rights or freedoms of others;
(3) The State undertakes to take appropriate measures to ensure that information collected in respect of any person for a particular purpose is used only for that purpose except where a law necessary in a democratic society or an order of a court authorizes otherwise.
(4) The State recognises the right of access by the public to information held by a public authority performing a government function subject to limitations contained in clause (2) and any law necessary in a democratic society.
[43] The right of access to information is a fundamental right contained in the Constitution. In addition, Seychelles has signed and ratified a number of international conventions in which these rights are enshrined, namely the International Covenant on Civil and Political Rights, the Universal Declaration on Human Rights and the African Charter on Human and People’s Rights. However, regrettably, Seychelles has yet to enact access to information legislation to give further meaning to this right. Mr. Boullé for the Appellant referred to South Africa’s Promotion of Access to Information Act as a shining example in this field. It certainly is hoped that legislation of this kind will be introduced in Seychelles to inculcate a culture of transparency and accountability in all government departments. However, the failure to enact legislation does not undermine the content of the right contained in article 28 in its present form.
[44] What is equally noteworthy is the fact that Freedom of Information Acts worldwide, including that of South Africa do not provide for an unconstrained right of access to information. Limitations to the right are contained in legislative frameworks so that access to information is qualified by exceptions such as public security and the protection of personal privacy.
[45] There is broad consensus however, that the right to information includes, at its core, the principle of maximum disclosure. Where the limitations operate as blanket bans on public access to information these provisions may be challenged. In such circumstances the Constitutional Court would be called not to balance the right of access to information by the requester against the right of the public authority to withhold the information but rather to consider whether the withholding of the information outweighs the public interest in disclosure.
[46] It is relevant that Mr. Boullé did not challenge the provisions of the Act or the Act itself. In particular, there was no challenge to the constitutionality of section 6(3) (b) (i) - (iii) of the Act which provides that where one applies for a banking licence, the Central Bank shall:
       (a)  grant a licence; or
       (b)  inform the applicant that it has refused to grant a licence giving the reasons for the refusal:
       Provided that the Central Bank shall be under no duty to give reasons where —
       (i)  it is precluded by law;
(ii)  information has been disclosed to the Central Bank under conditions of confidentiality between the Central Bank and any public sector agency or law enforcement agency; or
(iii)  information has been disclosed to the Central Bank under conditions of confidentiality between the Central Bank and any other foreign regulatory agency pursuant to a memorandum of understanding, an agreement or a treaty entered into by the Central Bank or the Republic of Seychelles.
[47] It would certainly have been an avenue available to the Appellant to bring a constitutional case to argue that the restraint as contained in the proviso to section 6 (3) (b) was an impermissible limitation to the right of access to information. It is by such cases that the limitations placed on constitutional rights are challenged and ultimately removed or endorsed.
[48] In the present case, since legislation appropriately grants discretion to the Central Bank to not disclose information provided under conditions of confidentiality and there is no constitutional challenge to section 6(3) of the Act, the Court cannot ex mero motu consider the constitutionality of the provisions. The role of the court, as granted to me by the Constitutional Court is to consider whether the contents of the confidential information upon which the Board of the Central Bank relied fall within the stated exceptions allowed under Article 28(2). The derogation to the right certainly exists in law, and from my reviewing of the confidential information, I can see that it is capable of being the sort of information that may be deemed confidential for the purposes of section 6 of the Act. Therefore, if section 6 of the Act provides a lawful derogation of article 28, and I find that the information falls within that provision, then that is the end of the question at the core of the application for disclosure as remitted from the Constitutional Court. I can certainly see the reasons for which this information may be sought to be kept confidential, particularly to the extent that it involves an ongoing investigation by the disclosing agency, here the Financial Intelligence Unit.
[49] However, besides the application for disclosure, the Appellant’s submissions with regard to the disclosure of the information for the purposes of the appeal still stand, and require me to go further with my reasoning. The Appellant did not come by way of judicial review to challenge to the exercise of the discretion of the Central Bank.  I therefore have no reason in law to interfere with the decision of Bank in its exercise of its discretion. And as it is not directly in front of me by way of judicial review, it is certainly not the place of an appeal court to second guess the decision of the Central Bank on this issue as it would be sitting in administrative review of such a decision.
[50] The consideration of whether the confidential information should be disclosed was the first limb of Mr. Boullé’s submission and is still a live issue under civil procedure rules which apply to civil appeals. Counsel has further submitted that without this information he cannot pursue his appeal. It must be noted that this is not a case where merely “standard disclosure” is required. All documents, namely letters and proceedings before the Bank and its Board were disclosed and were contained in the record or proceedings sent to the Appellant for the preparation of his Memorandum of Appeal.
[51] In the present case disclosure of documents containing confidential information was sought at appeal stage when the record of proceedings was deemed incomplete by the Appellant. In this respect sections 7 and 8 of  the Courts Act provide that:
The clerk of the court shall prepare the record as soon as is practicable.    
The record shall contain a list of the exhibits.
The provisions are silent as to what constitutes a “record”.
[52] Disclosure is generally provided for under section 84 of the Seychelles Code of Civil Procedure. That provision is also silent on circumstances in which documents may be withheld from disclosure. In those circumstances section 17 of the Courts Act has application. It provides:
In civil matters whenever the laws and rules of procedure applicable to the Supreme    
Court are silent, the procedure, rules, and practice of the High Court of Justice in  
England shall be followed as far as practicable.
 
It is therefore to the Civil Procedure Rules of England (CPR) that I must now turn.
[53] Part 5 of the CPR outlines the rules concerning documents used in court proceedings and the obligations of the court officer in relation to those documents. Rule 5.4B (White Book Service 2010, Volume 1) provides:
(1) A party to proceedings may, unless the court orders otherwise, obtain from the   records of the court a copy of any document listed in paragraph 4.2A of Practice Direction 5A.
(2) A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person.
[54] Paragraph 4.2A contained in subparagraph 1 above lists items of which copies may be furnished to parties. These include documents such as judgments, orders, lists of documents and is not relevant to the issue in this appeal.
[55] In respect of Rule 5(4) B, Paragraph 5.4B.3 notes :
An application for a document which was never in court records, or was and no longer is, would be misconceived. Where an applicant (whether a party or non-party) seeks a copy of a document used in proceedings but which formed no part of the record of the court, the jurisdiction of the court to grant such an application is not derived from rule 5.4B or rule 5.4C (supply of documents to non-parties) but from the court’s inherent jurisdiction.  
In the present case the document sought to be disclosed was never on the court record or the record of the Board (a quasi-court). The reference to confidential information was only made by the Central Bank in its letter of refusal dated 17th July 2013, in which it was stated that the Appellant did not meet the requirements of section 6(1) (j) of the Financial Services Act. This was repeated in the letter of the Board rejecting the Appeal on 18th October 2013.
[56] Hence, in terms of section 7 of the Courts Act (of Seychelles) the record of proceedings is complete. There is no merit in the Appellant’s submission that the information relied on should be part of the record submitted to him.
[57] I have finally to consider whether the Court can exercise its inherent equitable jurisdiction and order that a document relied on for the exercise of the discretion of the Central Bank should be disclosed. In my view, there are circumstances where the court can exercise its discretion equitably and in the interests of justice to order such disclosure but equity follows the law, it does not come to destroy the law but to fulfil it (Frederic William Maitland Equity, Also, The Forms of Actions at Common Law: Two Courses of Lectures Cambridge University Press (1913) 17). Where provisions of the law exist they must be given effect and no exercise of discretion by the court or otherwise can obstruct its application.
[58]  The Court is bound by the proviso to section 6 (3) (b) (ii) of the Act. In the exercise of its discretion the Central Bank need not give reasons for its decision if it is grounded on information disclosed to it under conditions of confidentiality. This Court would be ill placed to substitute its discretion for that of the Central Bank where that discretion has been exercised within the parameters of the provisions of law.

[59] In the circumstances, this appeal is dismissed.

Signed, dated and delivered at Ile du Port on 17th May 2016

 


M. TWOMEY

Chief Justice