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

SUPREME COURT OF SEYCHELLES Reportable [2023] SCSC 60 Q.. MA176/2023 Arising in CP09/2022 Applicant 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent In the matter between: MUKESH VALABH. TI (rep. by S. Aglae & F. Bonte) and THE REPUBLIC represented by the Attomey General (rep. by M Saley) MR. WAVEL RANKALA WAN President of the Republic of Seychelles (rep. by M Saley) MR. AHMED AFIF Vice-President of the Republic of Seychelles (rep. by M Saley) MR. ROGER MANCIENNE The Speaker of the National Assembly (rep. by M Saley) THE ATTORNEY GENERAL Representing the Govemment of Seychelles (rep. by M Saley) THE ATTORNEY GENERAL (rep. by rep. by M Saley) THE ANTI-CORRUPTION COMMISSION represented by its Commissioner May De Silva (rep. by E. Vickers & Mr. Skelley) THE SEYCHELLES DEFENCE FORCES represented by its Commander in Chief (rep. by M Saley) Neutral Citation: Before: . Summary: Delivered: Valabhji v Republic & Drs (MC 42/2022) [2023] SCSCbOJ.c08 August 2023). Carolus J, Application for recusal of Judges Burhan and Esparon in CP099/2022- Dismissed on the ground that the application did not disclose that the judges had an interest in the outcome of the case or actual bias, and that the evidence adduced does not satisfy the test for perceived bias. 08 August 2023 ORDER The Application for recusal of Burhan J and Esparon J in CP09/2022 is dismissed, with costs awarded to the PI, 2nd, 3rd, 4th,5thand 8threspondents. JUDGMENT CAROLUSJ Background, Pleadings & Evidence [1] The applicant is the petitioner in CP09/2022 in which he essentially challenges the constitutionality of the laws under which he stands charged and is being prosecuted together with other persons, with offences involving money-laundering in CRl14/2021 (ACCS case). The Application [2] He has now filed a Notice of Motion for the recusal of the Honourable Judges Burhan and Esparon in CP09/2022 pursuant to Rule 8 of the procedure for recusal set out by the Court of Appeal in Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Drs v Dhanjee SCA 4 of2014 [2014] SCCA 33 (12 December 2014) (the "Rules"). He also seeks such further or other order as may be just and necessary in the circumstances. The motion is supported by the affidavit of the applicant and relevant documents. [3] The motion is filed consequent to the refusal of the Chief Justice of the applicant's request for recusal of the said judges in CP09/2022 which was communicated to the applicant in open court by Burhan J presiding at the sitting of the 215tMarch 2023, pursuant to the procedure set out in the Rules. [4] The motion is now before this Court in terms of Rule 10 of the Rules for its determination. [5] In his affidavit in support of the motion, at para 7, the applicant avers that he believes that there are reasonable grounds that the Honourable Judges should be removed from hearing CP09/22 "on account of a real likelihood/danger of bias whether consciously or subconsciously and/or the appearance andperception of the public of bias on the part of their Lordships". [6] The grounds set forth for the recusal ofEsparon J in the applicant's affidavit are as follows: 9. 10. 11. ThatEsparonJ was one of the Commissionersappointedon the 11th of July 2018 to sit on the Commissionof Inquiry into the disposal of the Immovable Assets ofCOSPROH during the process of its privatization, and some of the offences for wlJJchI have been charged in CR114 ofi2021 is in respect of disposal of assets ofCOSPROH That a copy of the Commissionof Inquiry's report is part of the disclosure in CR 114 of 2021 and will definitely be exhibited in the said case and it is very likely that Esparon J will be called as a witness in the said case. Thatfurthermore there is a statement of the Leader of Government Business (LGB) in the National Assembly, lawyer Bernard George, whichforms part of disclosure in case CR4 of 2022 in which he states thatformer Supreme Court Judge andformer Acting CJ, Karunakaran who was removed as judge by the previous Government had,previously told him that regular applications were madefor the interception of the LGB's communication during the reign of the previous Government. The email that LGB is claiming was intercepted is dated October 2016. That is the time the (sic)Esparon J was Principal State Counsel in the Attorney General's Office, so if that is correct, the application for interception may have been done by the (sic) Esparon J or with his knowledge. This matter will come up in the evidence to be led before court and Esparon J may be called as a witness in that case. [7] Having set out the grounds for Esparon J's recusal, the applicant avers that: 12. ... due to the matters averred ... Esparon J's sitting as ajudge on this CP 9 of 2022 will be conflicted and this will not only raise the issue of perceived bias in the eyes of the public but there will also be a real subconscious bias ifnot conscious bias. likelihood/danger of [8] It is further averred that the following grounds for recusal exist in respect of Burhan J: 13. 14. 15. 16. ... Mohan Burhan J was one of the Supreme Court Judges who signed the search warrants in respect of the cases which led to searches and seizures of my properties/assets and charges being levelled against me in the two cases (that is case CRl14 of 2021 and Case CR4 of 2022, that has given rise to my detention as well. ... Burhan J has been thepresidingjudge involved in case CR8 of2022 (ACCS v Fahreen Rajan's - POCA), in which proceedings it is stated.that I am still under investigation which is continuing, and which case has led to Rajan entering into an agreement to become a witness against me in CR 114 of 2021 in returnfor charges to be dropped against her.in CR08 of2022. Furthermore it is averred that theproperty seized in case CR 8 of 2022 is mine. The matter relating to the two above mentioned cases are matters referred to in applicationsfor myfurther holding on remand Burhan J is also the presiding judge in case CM97 of 2022 regarding the detention of B39, aproperty belonging to me, which was previously under the joint custody of the Anti-Corruption Commission (ACeS) with respect to case CRl140f2021, and now underpolice custodywith respect to case CR4of2022, pursuant to a s26 of the PTA [Prevention of Terrorism Act 2004J order by Burhan J which orders made in CM97 of 2022 are now subject to a leave to appeal and I have, together with my wife and daughter,filed a Constitutional Petition against BurhanJ's order in CM97 of2022 which is the subject matter of a violation of my right to property as guaranteed under article 26 of the Constitution. Burhan J is also the presiding judge over case SPV 008/22, a writ habere in respect of another one of my properties, B218, which was taken over by the Government/Policewhen the ACCS and police effected their searches on B39 above mentioned and which the Police is currently using as their base to operate therefrom to guard B39 further to the s26 order of Burhan J above mentioned in case CM97 of 2022. 17. ... thefact that Burhan J has been involved in the various cases which links back to my detention by theACCS and the Police, and to me being charged and my assets and properties being seized and detained, under the offending law that I am challenging under this CP 9 of 2022, this creates an "incestuous relationship" between the various cases and this CP 9 of2022 so much so that any reasonable person can easily perceive him as not being impartial or capable of being impartial. [9] After having set out the grounds for Burhan J's recusal, the applicant goes on to state that: 18. Due to the matters averred in paragraphs 13 to 17 of this affidavit Burhan J sitting as a judge on this CP 9 of 2022 will be conflicted. There will also be a real danger/likelihood of actual subconscious bias if not conscious bias. The perceived absence of an appearance of impartiality is also essential for public confidence in the administration of justice. [10] In support of his averments (at para 15 of his application) the applicant has produced Exhibit MV5 - Constitut-ional Petition filed by the applicant, hi~ wife and daughter challenging the constitutionality of section 26 of the Prevention of Terrorism Act 2004 and the Detention Order of Bur han J in respect of property B39 owned by the applicant and on which the family home stands, and subsequent orders for its extension. [11] The applicant avers that for the reasons stated in the affidavit that both Judges Burhan and Esparon whether consciously or subconsciously, will not bring an impartial mind to bear on their adjudication of CP09/2022. He refers to the statement from R v Sussex Justices Exp McCarthy [1924] 1 KB 256, [1923] All ER Rep 233, that "it is not merely of some importance but is offundamental importance thatjustice should not only be done, but should manifestly and undoubtedly be seen to be done" to say that in CP0912022 the absence of an appearance of impartiality which is essential for public confidence in the administration of justice will bear heavily if Judges Burhan and Esparon are to sit on that case. He also avers that where the impartiality of a judge is in question, appearances are just as important as reality. Affidavit [12] in Reply of Attorney General The Attorney General, the Honourable Frank Ally, has filed an affidavit in response to the recusal application on behalf of the PI, 2nd, 3rd, 4th, 5th and 8th respondents, in which he points out that he does not make the affidavit in his capacity as amicus curiae. [13] He avers that it is common ground between the parties that a court or tribunal hearing a case must be impartial and that justice "should not only be done, but should manifestly and undoubtedly be seen to be done" as stated in R v Sussex Justices Exp McCarthy (supra) also quoted by the applicant. [14] He goes on to aver that there are three grounds upon which the recusal of a judge may be sought, as follows: "first, where the judge has a direct financial interest in the outcome of the case and therefore would not be impartial; secondly, where it can be positively demonstrated that the judge is biased infavour of a particular party (t'octual bias"); and thirdly, where the judge's conduct or behaviour gives rise to a suspicion that he or she is not impartial ("apparent bias ') ", with the test for the latter being, as was Held in Porter v Magill [2002] 2 AC 357, "whether the fair-minded and informed observer, having considered all the fqcts, would conclude that there was a neal possibility that the court or tribunal is biased". [15] In relation to any allegation of apparent bias, the Attorney General further averred that- a. a real possibility of bias will only be demonstrated where it can be shown, on the evidence before the court, that thejudge would approach a case with a closed mind or with anything other than an objective view, i.e, where the judge might, in some way, have 'prejudged' the case. b. the fair-minded observer is not to be confused with that of the litigant making the allegation ofbias, given that the litigant lacks objectivity which is characteristic of the fair-minded and informed observer. [16] He noted that the applicant is not alleging that the Honourable Judges have a direct financial interest in the outcome of the case, but rather "seems to be arguing that the case gives rise to actual or apparent bias on the part of the Honourable Judges" and observes that the affidavit of the applicant "seemingly conjlates and misrepresents the legal tests for both actual and apparent bias. " [17] On that basis, and based on the evidence contained in the recusal application, the Attorney General averred that the applicant had failed to demonstrate that either of the Learned Judges is, or can be said to be, biased in favour of the respondents, and that therefore, no actual bias can be said to arise. He further avers that the evidence before the court does not show any issues of apparent bias on the part of either Esparon J or Burhan J, in light of the test to be applied which is whether there is a real possibility of bias on the part of the Learned Judges. [18] The Attorney General therefore avers that the application discloses no proper basis as to why the Honourable Judges should be "stood down" from hearing the petition in CP09 of 2023. He further avers that "as their Lordships have taken oaths to act impartially and independently,the burden of demonstrating bias, actual or apparent, is a heavy one, and one that can only be discharged by an applicant on the basis of positive and properly grounded evidence", and concludes that this burden has not been discharged by the applicant. Consequently he prays for dismissal of the recusal application with costs. Affidavit in Reply of Arut-Corruption CommissionSeychelles [19] The 7th respondent, the Anti-Corruption Commission of Seychelles ("ACCS") has filed an affidavit in reply sworn by its Deputy Commissioner Mr. Denis Joubert. In his affidavit. Mr. Joubert summarises the grounds for recusal of each of the judges and sets out the legal framework and case law applicable to recusal applications. On the merits he avers that while the issue of recusal is entirely a matter for the Court to determine on evidence, the averments of the applicant are either misconceived or are without foundation. [20] In regards to the grounds raised by the applicant for the recusal for Esparon J, he avers that: i. ii. The COSPROH Inquiry, commissioned by President Faure in 2018, has never published afinallfull report; an interim report has been published, of which Mr. David Esparon (as he then was) was contributing Commissioner (i.e. before he became a Justice of the Supreme and Constitutional Courts); The interimfindings of the COSPROHInquiry (whether or not they are admissible as evidence in the trialofCR 114 0/2021) have nothing to do with the issues raised in the Applicant's Petition to the Constitutional Court CP9 of 2022; iii. Esparon J has not provided a witness statement, nor is he due to be a witness, in CR 114 of2021; iv. v. The suggestion that Esparon J might be called in CR 40f2022, is without evidential foundation; and in any event, the matters averred have no bearing upon the issues to be resolved in this case before the Constitutional Court; There is no evidence produced by the Applicant of perceived) on the part of Esparon J against the Applicant. interest or bias (actual or [21] As to the grounds raised by the applicant for the recusal of Burhan J, Mr. Joubert averred as follows: i. ii. iii. iv. v. that Burhan J had involvement The fact involvement cannot of itself found an application for recusal; in the signing of search warrants or in other applications or cases involving the interests of the Applicant •. The applications under the Prevention of Terrorism Act 2004 {'the PTA 'ldo not involve the ACCS and have not been made by the 71hrespondent; .. Those ancillary applications do not have any bearing upon the matters to be considered by the Constitutional Court in this case; Burhan J has not made any ruling which is the subject of the Petition in CP9 of 2022; There is no evidence produced by the Applicant of interest or bias (actual or perceived) on the part of Burhan J against the Applicant. [22] Finally Mr Joubert avers that that whilst the issue of recusal is entirely a matter for the reviewing Judge, in the absence of evidence that the impartiality of Justices Burhan and Esparon might reasonably be questioned, the reviewing judge should be slow to accede to the application for recusal. [23] Only the applicant has filed submissions in regards to the application. Counsels for the other parties declined to do so indicating that the affidavits of the respondents provide a complete answer to the recusal application. Applicable Law and Analysis [24] The impartiality of the Honourable Judges Burhan and Esparon is being questioned in CP09/2022 in which the constitutionality of the laws under which the applicant has been charged and is being prosecuted in CR114/2023 is being challenged. [25] It is evident from the averments in the applicant's affidavit at paragraphs 7, 12, 17 and 18 which are reproduced at paragraphs [5], [7], [8] and [9] of this judgment where reference is made in different variations to "real likelihood/danger of bias ", ''perceived bias in the eyes of the public" and ''perceived absence of an appearance of impartiality" that the applicant is alleging apparent bias on the part of the judges in question. He is not alleging actual bias or that the judges' have an interest in the outcome of CP09/2022. The grounds on which recusal is sought support this view. [26] In that regard, all'parties are agreed that R v Sussex Justices Exp McCarthy (supra) correctly states that ''justice should not only be done, but should manifestly and undoubtedly be seen to be done" [27] In the case of Government of Seychelles & Anor v Seychelles National Party & Drs; Michel & Drs v Dhanjee (supra) the Court of Appeal approved the test to be applied in cases of apparent bias as stated in Magill v Porter (supra). It stated: ... Considering the source of the legal system we have borrowed, the democratic [22J structure of our political system and our Constitution, it would make sense to adopt the English testformulated in Magill v Porter [2002J 2 AC 357. In this case, the House of the old to ring in the new. The old one was the Gough test: that is Lords rang out whether, having regard to all the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard, or have regarded, with favour or disfavour, the case of a party to the issue under consideration by him: see [1993J AC 646]. [23J The new test was formulated by the House of Lords after adding a couple of more elements into the test arrived at by the Court of Appeal (No. 2) [2001J 1 WLR 700 which was: observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". in Re Medicaments the fair-minded "whether [24J The new test, therefore, is - "having ascertained all the circumstances bearing on the suggestion that the Judge was (or could be) biased, the court must itself decide 'whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. " [28] In order to apply this test it is necessary to examine the grounds on which the applicant seeks the Honorable Judges' recusal. [29] In regards to Esparon J, it is averred that he was one of the Commissioners in the Commission of Inquiry appointed to investigate the disposal of the immovable assets of COSPROH (a former state owned enterprise) during the process of its privatisation. This is not disputed. The applicant further avers that some of the offences with which he has been charged in CR11412021 concerns the disposal of COSPROH assets. Although the applicant does not say so, the inference is that Esparon J would have obtained certain 1 knowledge due to his position as a Commissioner, which would affect his impartiality in determining a case which concerned those assets, in that such knowledge could influence or prejudice his judgment. Firstly I note that Exhibit MVI - a copy of a charge sheet - which presumably was intended to show that some ofthe offences with which the applicant stands charged in CR114/2021 are COSPROH assets appears to be the wrong charge sheet as it concerns offences of possession of firearms and ammunition. [30] Secondly the applicant has produced two pages of an interim report of the Commission of Inquiry dated 15th June 2020 (Exhibit MV3). The second page produced contains a "Message of the Commissioners" signed by the Chairperson and by Esparon J in his capacity as Commissioner, explaining that the report is only an interim one because "more work needs to be done to clear certain doubts and draw certain conclusions in view that the work of the Commissionwas severely constrainedby thepassage of time, unavailability of original records and reliable information", The report further states that only after Government has implemented its recommendations and if further evidence is gathered through various processes will the Commission be in a position to examine the same and produce a final report. It is pertinent that a final report was not produced to this Court. In fact, in his affidavit on behalf of the ACCS, Mr. Joubert states that the Commission of Inquiry never published a final/full report. It would therefore appear that no conclusive findings were made by the Commission of Inquiry. [31]' Thirdly and most importantly I note that even if CRl14/2022 contains charges relating to the disposal of COSPROH assets, CP09/2022 in which the recusal of Judges Burhan and Esparon is sought, concerns the Constitutionality of the laws under which the applicant stands charged in CR114/2022. The determination of CP09/2022 which is purely a legal matter does not require a consideration of factual matters which would be necessary for the determination of CR114/2022. Therefore any knowledge acquired by Esparon J in his participation in the Commission ofInquiry is irrelevant to the issues arising in CP09/2022. [32] The applicant also avers that the Commission of Inquiry's report is part of the disclosure in CR114/2021 and that it "will definitely be exhibited in the said case and it is very likely that Esparon J wtll be called as a witness". Presumably here the applicant is referring to the Interim Report as no Final Report was exhibited and in light ofMr. Joubert's affidavit evidence that a final report was ever published. Mr. Joubert, on behalf of the ACCS categorically states that not only has Esparon J not provided a statement but is also not due to be a witness in CR114/2021. It bears repeating that in any event the Commission of Inquiry's report is not relevant to the issues raised in CP09/2022. [33] Esparon J's recusal is also sought on the grounds that he may be called as a witness in CR4/2022 on the basis that he was the Principal State Counsel in the Attorney General's office in October 2016, when the applicant claims that emails of Bernard Georges were being intercepted and therefore Esparon J may have made the application for interception of communication or had knowledge of it. The applicant has exhibited a Police Statement Form dated yd December 2022 and purportedly signed by B. Georges (Exhibit MV4), to which is attached an email dated 22nd October 2016 which Mr Georges says in the statement was from him to Mr. Roger Mancienne. In the statement he confirms that the email was written by him, complains about the interception of his communications and expressed concerns as to why it was found at the home of the applicant during a search in November 2021. Suffice it to say that this ground is largely based on speculation, and as stated by Mr. Joubert in his affidavit on behalf of ACCS U[tJhesuggestion that Esparon [J] might be called in CR0412022 is without evidential foundation; and in any event, the matters averred have no bearing upon the issues to be resolved in [CP0912022]". [34] On the basis of the above I find that the applicant has failed to establish any bias, actual or apparent, on the part of Esparon J. [35] In regards to Burhan J, the applicant claims that the signing of warrants by him at investigation stage which led to the applicant being charged in CRl1412022 and CR0412022, as well as Burhan J's involvement in other applications or cases in which the applicant or his property is directly or indirectly involved (CROS/2022 - Application under POCA against Fahreen Raj an; CM97/2022 - Detention of B39; and SPY,OOS/22- Writ Habere Facias Possessionem for B21S), creates an "incestuous relationship" between these cases and CP09/2022, which in turn creates a perception of bias. j [36] The fact that Burhan J signed the warrants or was involved in the abovementioned cases has no relevance to the matters arising for consideration in CR09/2022. Furthermore a judge's previous involvement in cases involving a person is not of itself grounds for a recusal application in a later case involving that same person. I find the following cases relevant in that regard. [37] In Locabail (UK) Ltd v Bayfield Properties [2000] Q. B. 451, the Court stated at page 4S0 that: to arise if there were personal ... a real danger of bias might well be thought friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public if the credibility of individual could be involved in the case, particularly in the decision of the case; or if, in a case where the credibility of any significant individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him thejudge had in such extreme and expressed views, particularly unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if,for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous in the course of the hearing, that to considerations, prejudices and predilections and bring an objective judgment that ajudge, earlier in the same case bear on the issues before him. The mere fact or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. Emphasis added. [38] In Shaw v Kovac [2017] EWCA Civ 1028 the claimant - the daughter of the deceased claimed that her father would not have consented to a medical procedure following which he died, ifhe had been informed of the risks. The defendants agreed not to defend the claim and judgment was entered against them. The claimant appealed and made an application for two of the appeal judges to recuse themselves on the ground that one of the judges (Burnett LJ) had been involved in earlier judicial review proceedings against the outcome of an inquest into her father's death, and the other judge (Davis LJ) had been involved in an application for leave to appeal against the findings ill that case, and both judges had '... made decisions adverse to the claimant. On the issue of apparent bias, Davis LJ after referring to the test in Magill v Porter (supra) reproduced at paragraph [27] of this judgment, asked himself the question "[wjhat then, in the present case, gives rise to apparent bias? ", and stated: 16. Mr. Berkley [counsel for appellant/claimant} acknowledged that he could not arguefor apparent bias simply by reason of the fact that Burnett LJ and I had (separately) been involved as judges in decisions adverse to Mrs Shaw in the previous judicial reviewproceedings relating to the inquest. But he said that there was more. 17. Sofar as [Burnett Ll] was concerned,Mr. Berkley said that an appearanceofbias would arisefrom a statement made by him atparagraph 68 of hisjudgement in the Administrative Court. In dealing with a certain scheduleputforward by Mrs. Shaw ... Burnett J .., had said "1regret to say that the schedule was misleading" going on to explain why. Mr. Berkley sawfit to assert that that such afinding impugned Mrs. Shaw's integrity: hence there was, he said, apparent biasfor thepurpose of thepresent appeal. 18. That is an untenable argument. Burnett J was expressing himself, as he was entitled to, by reference to the schedule put before him. That this might be seen to be in some way by way of a reproof of Mrs Shaw isfor present purposes nothing to the point. To the extent that this statement was a criticism of Mrs. Shaw itplainly comes within paragraph 28 of the judgment of the court (delivered by an exceptionally in the case of Locabail (UK) Ltd v Bayfield Properties strong Court of Appeal) [2000} Q. B. 451, where it was said: "The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness a sustainable objection. " to be unreliable, would not without more found 19. Such a remark as made by Burnett J could not begin (from the perspective of afair minded and informed observer) to show a predilection against Mrs. Shaw in any subsequent litigation in which she was involved. [39] Davis L1 went on to state that likewise in the case of Otkritie International Investment Management Limited and others v Uromov [2014] EWCA Civ 1315, it was stated that: 1 19. ... thefact that ajudge has made adverse findings against aparty does not preclude him or her sitting injudgment in subsequent proceedings, and observed that it was striking that in that case, the trial judge was held by the Court of Appeal to have been positively wrong to recuse himself on the application of the defendant in circumstances where, in the same complex proceedings, the judge previously had made findings of actual fraud on the part of the defendant. Davis L1 concluded that "[t}he present • case is afortiori to the position arising in that case" and on that basis and for other reasons, went on to find that "there was and is ... no proper basis for Burnet LJ to recuse himself. Apparent bias does not arise in this case". [40] As to the grounds for Davis LJ's recusal, these are stated as follows: 24.... Mr. Berkley referred to paragraph 24 of the judgment of Hallet LJ (with which judgment J had agreed) where she referred to Mrs. Shaw "trying to run a totally different argument from that pursued before the coroner and unfortunately it is based solely on her speculation and assertion". He also referred to paragraph 27 of her judgment, where Hallet LJ referred to findings of fact which the jury had been entitled to make. However Davis LJ found that "these remarks cannot, for the like reasons as given above, ground a case of apparent bias JJ. [41]" He went on to add: 25.... It is not difficult to infer that Mrs. Shaw has had and perhaps still has, I do not know a burning sense of grievance at the circumstances of her father's death and at the failure of what she sees to be the truth to have emerged ... She clearly, and again very understandably, remains very close to this whole case. But that she personally would not wish to have sitting on this appeal two judges who have previously been involved in decisions adverse to her cannot of itself procure a recusal. The law is clear. The test is objective. The outcome cannot be determined by the subjective views or wishes of the objecting party ... But dny inclination to let defer to the individual sensibilities of individual parties cannot of itself justify, alone require, ajudge in recusing himself or herself. As stated by Chadwick LJ in [2005] EWCA ct; 486 (and cited in Otkritie at Triodos Bank NV v Dobbs paragraph 27): to hear further proceedings "7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not in which the critic is involved. It is tempting to take that course because thejudge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge if he loses, he has in some way been who hears his case will feel discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant whether it be a represented litigant or a litigant in person criticised them (which sometimes infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all to hear their cases. Emphasis added. they did not want happens not the judges that, that [42] The court in that case, after hearing the arguments in the recusal application, announced its conclusion that neither Davis LJ nor Burnet LJ would or should recuse themselves, and that the two judges considered that it was their judicial obligation to carryon hearing the appeal. [43] For the reasons given and on the authority of the above cases, I find that the reasons given for Burhan J"s recusal is not sufficient to ground a case of actual or apparent bias. [44] The significance of the safeguards to ensure the independence and impartiality of judges also cannot be downplayed, where the impartiality of judges are challenged. Our Constitution guarantees the independence and impartiality of the judiciary. Article 19 (7) of the Constitution provides as follows: "Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by anyperson before such a court or authority the case shall be given afair hearing within a reasonable time" [45] Article 119(2) and-E3) further provides: (2) TheJudiciary shall be independent and be subject only to this Constitutionand the other laws of Seychelles. (3) Subject to this Constitution,Justices of Appeal Judges and Masters of the Supreme Court shall not be liableto anyproceedings or suitfor anything done or omitted to be done by them in theperformance of theirfunctions. [46] . This independence of the judiciary is further reinforced by Constitutional provisions which provide for the appointment of judges, their tenure of office, the circumstances in which they may be removed and for their remuneration to be provided for by law. [47] In addition judges take the Judicial Oath when assuming office, as stipulated by section 9 of the Official Oaths Act 1976 (Act 15 of 1976), which reads as follows: I do swear that I will well and truly serve the Republic of Seychelles in the and that I will do right in accordance with the Constitution of office of Seychelles as by law established, and in accordance with the laws of the Republic withoutfear orfavour, affection or ill will. SO HELP ME GOD. [48] The wording of the Judicial Oath is reflected in paragraph 2.1 of the Seychelles Code of Judicial Conduct 2010 (the "Code of Conduct") which reads as follows: 2.1 A judge shall perform judicial duties without fear.favour, ill-will, bias or prejudice. [49] Paragraph 2.4 of the Code of Conduct provides specifically for recusal of a judge. It provides: A judge shall refrain from participating in any proceedings in which the impartiality of the judge might reasonably be questioned. Without limiting the generality of the in any foregoing proceedings in the following instances= a Judge shall disqualify himself or herself from participating (a) Where the judge has personal knowledge of the disputed facts concerning the proceedings and which knowledge is likely to influence or prejudice his judgment; (b) Where a member of the Judge's family, employee or friend is representing a litigant, is a party, or has interest in the outcome of the matter in controversy in the proceedings. [50] The main purpose of the aforementioned Constitutional provisions and the taking of the judicial oath by judges at the time of appointment is to ensure that they act in an independent and impartial manner in the discharge of their duties in accordance with Article 19 (l) of the Constitution. In that regard, the Court of Appeal in Michel & Ors v Dhanjee & Ors (SCA 5 & 6/2012) [2012] SCCA 23 (31 August 2012) stated: ... A judge is not obliged to recuse himself or herself simply because he or she is asked to. Judges are appointed to hear and decide cases; indeed they have a duty to do so. They sometimes have to make a decision whether or not to hear a case. The principles of natural justice require that a decision maker not sit when he or she has a direct interest in the case or when there might be no actual bias but that there might be perceived bias. In those cases judges recuse themselves sua sponte. In the case of Charles v Charles (unreported) SCA 112003, where the independence of thejudiciary was challenged, Ramodibedi J felt it necessary "to rule on the point once and for all" and reminded counsel of constitutional provisions that ensure the impartiality and independence of judges. Wejoin ourselves in this reminder to counsel. Judges do not take their constitutional oaths lightly; their tenure and salary are guaranteed despite their decisions. Any misbehaviour on their part is sanctioned by article 134of the Constitution. An application/or recusal based on bias against a litigant be/ore them cannot be made lightly. Emphasis added. [51] The Court of Appeal in Michel & Ors v Dhanjee & Ors further emphasised the importance of the judicial oath in cases where a judge's impartiality is questioned and the duty of . judges to hear cases "in which they are not obliged to recuse themselves" by referring to the following passage in what it termed the land mark case on recusal, namely President of the Republic of South Africa and Others v South African Rugby Football Union and Others - Judgment on recusal application (CCTI6/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) as follows: ... The question is whether a reasonable, objective and informedperson would on the correctfacts reasonably apprehend that thejudge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice withoutfear orfavour; qnd their ability to carry out that oath by re~son of their training and experience. It must be assumed that they can disabuse their minds of any irrelevantpersonal beliefs orpredispositions. They must take into account thefact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never beforgotten that an impartialjudge is afundamental prerequisitefor afair trial and ajudicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigantfor apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. Emphasis added. [52]' In the case of Michel v Michel & Anor (MA 22112018 (arisingfrom MA 29112017andDC 15112014))[2019J sese 120 (20 February 2019) the Learned Judge in refusing to recuse that she had taken the official oath herself reminded Learned Counsel for the applicant prior to her appointment as judge to act without fear, favour, affection or ill will. [53] It appears from the above cases that in the absence of sufficient grounds to justify the recusal of a judge, that judge has a duty to hear the case before him or her and not to recuse him or herself simply because he or she has been asked to. The remarks of Chadwick LJ in Triodos Bank NV v Dobbs reproduced at paragraph [41] hereof are also relevant in that regard. The burden of establishing bias, actual or apparent is on the applicant, and in cases such as the present one where perceived bias is alleged, the oath of office taken by the judge weighs heavily in the balance. In the present case not only are there insufficient grounds to justify the recusal of the judges but there is no reason to believe that they will not be faithful to their oath of office. [54]' This judgment would not be complete without reference to the 'exception of necessity' or 'rule of necessity' given that the issue was raised by the applicant in his submissions. In Michel & Drs v Dhanjee & Drs (supra) the Court of Appeal explained it as follows: The rule of necessity was recognized as early as the 15th century in English common law and has been followed in all common law countries. It is expressed as the rule "that a judge is not disqualified to try a case because of his personal interest in the matter at issue if there is no other judge available to hear and decide the case" (Atkins v United States 214 Ct CI 186 (1977) and reaffirmed in Ignacio v Judges of us Court of appeals for Ninth circuit 453F.3d 1160 (9thcir. 2006)). The rule of necessity is crucial for the administration of justice, especially in a country like Seychelles with a small bench and a small population. As expressed by Trott J in Pilla v American Bar Association 542F.2d 56, 59 (8th Cir 1976) "The underlying maxim for the rule of necessity is that where all are disqualified, none are disqualified". .. [55] It explained the importance of the "rule of necessity" in the Seychelles context as a small jurisdiction as follows: In any case, Seychelles is a small jurisdiction. The exception of necessity in judicial disqualification cases is even more meaningful in these circumstances. In such a small community as ours, judges invariably are related to parties, friendly with one or both parties, know the parties or are perceived to have certain political and other affiliations whether these perceptions are accurate or not. [56] In his submissions, the applicant suggests that in the event of non-availability of other judges to hear CP0912022, an adhoc panel of non-resident judges may be appointed for that purpose as was done in the Court of Appeal case of Vijay Construction (Proprietary) Limited) v Eastern European Engineering Limited (SCA 28 of2020) [2022] SCCA 58 (21 October 2022). He further submits, on the authority of Jian Ying Ourgame High Growth Investment Fund (unreported 19 July 2022) that any concerns of this Court in regards to the delay and additional expenditure caused to the parties by the recusal of Burhan J and Esparon J would be outweighed by the right to a fair trial by an impartial and independent judge. [57] The applicability of the "rule of necessity" depends on the facts of each case. On the facts of the present case it does not even arise for consideration, given the findings of this Court . that the grounds on which the recusal of Burhan J and Esparon is sought cannot found a recusal application. [58] Finally I wish to address the issue of my own recusal in this motion for Burhan J and Esparon J's recusal, raised by applicant's counsels in their submissions. Counsels suggest that I should consider recusing myself from hearing this motion on the basis that I had dealt with EXP 0112023 arising from CRl14/2021 - an application for a restraint order against the applicant's assets, which I granted on 3 I" March 2023 - and subsequent applications by the applicant for variation of the restraint order for the release of funds including to pay for legal services in his various court cases. The same reasoning is to be followed as for the recusal of Bujhan J. The matters which were considered in EXP 0112023 and subsequent applications for variation of the restraint order, have no bearing on the issues arising for determination in the present motion for recusal, so that no issue arises as to my being influenced by matters of which I have knowledge by virtue of having dealt with EXP 01/2023. For that reason, I saw no necessity at the time I was allocated the recusal motion and still see no necessity at this point in time, to recuse myself on the basis of either actual or perceived bias as neither comes into play in the circumstances: no actual bias is disclosed and as to perceived bias, no fair-minded and informed observer having considered all the circumstances, would conclude that there was a real possibility of my being biased. [59] I further note that the applicant has not followed the procedure set out in Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee SCA 4 of 2014 [2014] SCCA 33 (12 December 2014) to obtain my recusal. The Restraint Order in EXP 0112023 was delivered on 31stMarch 2023. The record shows that my first appearance in the recusal motion was at the sitting of 4th of April 2023. By the sitting of 16thMay 2023, all affidavits of the respondents had been filed and the applicant was given until 30th May 2023 to file his submissions which he duly did, and in which he raised the issue of my recusal. In my view he had ample time from the time of service of the restraint order on him, shortly after 31st March 2023 up to the time of filing of his submissions on 30thMay 2023 to kickstart the procedure for my recusal, which he chose not to do, but instead claims that I should have disclosed my so called "connection" to the case in hand to him at the first sitting of the recusal motion. Given that no actual or perceived bias arises on my part in the hearing of this recusal application, I found no necessity to do so. Decision [60] The applicant seeks the recusal of the Honourable Judge Burhan and the Honourable Judge Esparon in the Constitutional Court Case CP09/2022. He has provided the grounds on which he is seeking their recusal with supporting documents. The onus is on him to establish that the judges have an interest in the outcome of the case or bias, actual or apparent, which can only be done on properly grounded evidence. Having considered the Notice of Motion, the supporting affidavit and supporting documents exhibited, as well as the applicant's submissions, and in light of the affidavits in reply of the respondents, it is my view that the applicant has failed to establish sufficient grounds for the recusal of Burhan J and Esparon J. The matters averred in the application do not disclose any interest .. of the judges in the outcome of CP09/2022 or actual bias, and the evidence adduced does not satisfy the perceived bias test: A fair-minded and informed observer having considered all the circumstances peculiar to this case, would not conclude that there was a real possibility of their being biased. [61] The recusal application is therefore dismissed, with costs awarded to the PI, 2nd, 3rd, 4th, 5th and 8th respondents. Signed, dated and delivered at IIe du Port on 8th August 2023. Carolus J "