Parekh v Attorney General ((SCA CL 01/2025) [2025] (Arising in CP 07/2023)(18 August 2025)) [2025] SCCA 13 (18 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (18 August 2025) SCA CL 01/2025 (Appeal from CP 07/2023) Appellant In the matter between Sindu Cliff Parekh (rep. by Mr. Basil Hoareau) and The Attorney General Respondent (Attorney General, Mr. Vinsent Perera, with Ms. Corinne Rose) Neutral Citation: Parekh v Attorney General (SCA CL 01/2025) [2025] (Arising in CP 07/2023) (18 August 2025) Before: Fernando President, Andre, Adeline, JJA Summary: Appeal against judgment of the Constitutional Court upholding the preliminary objection of the Respondent on the basis that the Appellant had incorrectly filed the constitutional petition before the Constitutional Court, rather than invoking the jurisdiction of the Court of Appeal, which was the appropriate forum to hear the matter. Application for recusal of Justices of Appeal by the Appellant. The issue whether the matter before the Court is time- barred. Heard: 4 August 2025 Delivered: 18 August 2025 ORDER Application for recusal refused. Appeal against judgment of the Constitutional Court dismissed on the basis that it is time barred, that the application to the Constitutional Court was erroneous as it was the wrong forum to challenge a judgment of the Court of Appeal and therefore an abuse of process. ______________________________________________________________________________ JUDGMENT ______________________________________________________________________________ FERNANDO, PRESIDENT (Andre, Adeline, JJA concurring) 1. The Appellant by his Notice of Appeal filed on 9 January 2025, has appealed against the decision of the Constitutional Court dated 26 November 2024 which dismissed his petition by upholding the preliminary objection of the Attorney General, the Respondent to the petition, regarding the issue of jurisdiction and proper forum, on the basis that the Appellant had incorrectly filed the constitutional petition before the Constitutional Court, rather than invoking the jurisdiction of the Court of Appeal, which was the appropriate forum to hear the matter. 2. The Appellant has raised the following grounds of appeal: “(i) The learned judges of the Constitutional Court erred in law by relying on and applying Article 7 of the Civil Code, as this article was not relevant or applicable to the determination of the preliminary objection raised by the Respondent regarding the issue of jurisdiction and proper forum. (ii) The learned judges of the Constitutional Court erred in law by holding that the Constitutional Court did not have the jurisdiction to hear and determine the Appellant’s constitutional petition, in that the learned judges failed to recognise that the constitutional issue at hand was not one of procedural irregularities; rather it involved a substantive contravention of Article 19(2)(h) of the Constitution by the Justices of Appeal in relation to the Appellant. (iii) The learned judges of the Constitutional Court erred in law by holding that Court of Appeal was the proper forum to determine the constitutional issue raised by the Appellant in his constitutional petition, in that the learned judges failed to recognise that the constitutional issue at hand was not one of procedural irregularities; rather it involved a substantive contravention of Article 19(2)(h) of the Constitution by the Justices of Appeal in relation to the Appellant. (iv) In the alternative to grounds 1 to 3 above, the learned trial judges of the Constitutional Court concluded that the Court of Appeal was the proper forum to determine the issue raised by the Appellant in the constitutional petition. However, they erred in law by dismissing the petition instead of transferring the constitutional application to the Court of Appeal.” 3. The Appellant has sought by way of relief from the Court of Appeal to reverse the decision of the Constitutional Court and to make the following orders: “(a) dismiss the preliminary objection of the Respondent regarding the issue of jurisdiction and proper forum, and remitting the petition to be heard on the merits before the Constitutional Court; or (b) on the basis of the 4th ground of appeal, transfer the constitutional application to the Court of Appeal.” 4. The petition to the Constitutional Court was against the judgment of the Court of Appeal dated and delivered on 26 April 2023 [reported in www.seylii.org as - (Jean- Charles & Anor V The Republic (SCA CR 10 of 2022; SCA CR 13 of 2022)[2023]SCCA 26 (26 April 2023)] by a bench constituting the President of the Court of Appeal, Justice A. Fernando, Justice F. Robinson and Justice S. Andre, that dismissed the appeal of the Appellant (who was the 2nd appellant in that case), against his conviction for counselling or procuring another to commit the offence of murder and the sentence of life imprisonment imposed on him. The Appellant had been tried and convicted for the said offence by the Supreme Court with a Jury in accordance with the provisions of the Criminal Procedure Code. The Appellant had averred in his affidavit in support of his petition before the Constitutional Court that at his trial before the Supreme Court he had exercised his right to remain silent, in accordance with article 19(2)(h) of the Constitution, by electing not to give evidence on oath nor make a statement from the dock. It had been the Appellant’s position that the Justices of Appeal “in determining the appeal and in coming to the judgment, dismissing the appeal and affirming the conviction, drew an adverse inference from my exercise of my right to silence at the trial”. In setting out the particulars of the alleged contravention by the Justices of Appeal, the Appellant had stated in his petition that the Justices of Appeal “took into account and relied on the fact that I did not provide any explanation during the trial in relation to the evidence against me”. The Appellant had averred that the Justices of Appeal had held that “I had waived my right to remain silent –which right I had not waived – and that as a result I had to provide an explanation at the trial and that I had failed to do so”. The Appellant had averred that the Justices of Appeal “treated the exercise by me, of my right to remain silent at the trial, as probative evidence against me and as establishing my guilt in relation to the offence”. The Appellant had also averred in his petition: “the Justices of Appeal held that I was in the same position as an accused person who had elected to give evidence or make a dock statement – i.e. an accused person who had waived his right to remain silent during the course of the trial – due to the fact that I did not object, during the trial, to the prosecution producing two statements made by me to the police during the course of the investigation relating to the offence.” It has been the Appellant’s complaint before the Constitutional Court that the Justices of Appeal considered the fact that “I had waived my right to silence during the course of investigation as a waiver of my right to silence at the trial, which according to the Appellant is erroneous”. 5. Article 19(2)(h) of the Constitution which reads as follows: “Every person who is charged with an offence shall not have any adverse inference drawn from the exercise of the right to silence either during the course of the investigation or at the trial…;” 6. The Appellant in his petition before the Constitutional Court had prayed: (a) a declaration from the Constitutional Court that the Justices of Appeal had contravened the Appellant’s right under article 19(2)(h) of the Constitution and on that basis had sought the following declarations, that: (b) (i) the Court of Appeal judgment is contrary to the Constitution, null and /or null and void, (ii) to quash the judgment (c) declare and/or order that the appeal of the Petitioner (now Appellant) should be reheard de novo by the Court of Appeal. 7. On receipt of the Notice of Appeal against the judgment of the Constitutional Court referred to at paragraph 1, The Deputy Registrar of the Court had written to the Appellant’s Counsel by email dated 25 February 2025 the following: “… Reference is made to the Notice of Appeal filed in the Court of Appeal on the 9th of January 2025 in relation to the judgment of the Constitutional Court in Sindu Cliff Parekh v/s The Attorney General, which dealt with the petition against the judgment of the Court of Appeal dated 26th April 2023 in the case of Sindu Cliff Parekh v/s The Republic SCA CR 10 & 13 of 2022 [2023] SCCA 6. I have been advised to inform you that your appeal is out of time in view of rule 18 of the Court of Appeal of Seychelles Rules 2023 and that you may seek an extension of time under rule 26 of the Court of Appeal of Seychelles Rules 2023. This is in view of the judgments in Eastern European Engineering Limited v Vijay Construction (Proprietary) (Limited) SCA MA 35/22 [2022] SCCA 56, Laine & Ors v Supreme Court & Ors CP 08/2022 [2023] SCCC 6, Karunakaran v AG SCA CL 01/20 [2021] SCCA 8, Mellie v Government of Seychelles & Anor SCA 3/19 [2019] SCCA 40, D’Offay v Louise SCA 34/2007 and Franky Simeon v R Cr. App 26 of 2002. It is clear from the said judgments, that recourse should have been sought, against the judgment of the Court of Appeal, in the case of Sindu Cliff Parekh v R SCCA 10 of 2022, before the Court of Appeal, within 30 days of 26th April 2023...” 8. The Appellant’s Counsel had responded to the email of the Deputy Registrar as follows by his email of 24 March 2025: “… I am of the firm view that the appeal lodged by my client against the decision of the Constitutional Court is not out of time. As a matter of fact, I am perplexed by your statement that the appeal is out of time. In view that you have stated that you “been advised” to inform me that the appeal is out of time, I would have expected you to place on record the identity of the person who has so advised you. I reiterate that the appeal is not out of time and my client has exercised his constitutional rights in accordance with Article 120 (2) of the Constitution read with Article 19 of the same.” 9. At a sitting of the Court of Appeal on the 3rd of June 2025, in accordance with rule 5 of the Court of Appeal of Seychelles Rules by a single Justice, namely Justice S. Andre for purposes of case management, Appellant’s Counsel had been informed that the issue raised in the email of the Deputy Registrar of the Court referred to at paragraph 7 above, namely the issue whether the case had been filed within the timelines, as per the Rules, needs to be determined prior to the hearing on the merits of the appeal. Dates had been fixed by agreement of Appellant’s and the Respondent’s counsel for the filing of written submissions and for hearing on the issue whether the present case has been filed in accordance with the time limits set out in the Court of Appeal of Seychelles Rules and the judgments of this Court referred to in the Deputy Registrar’s email of 25 February 2025, i.e. SCA CR 10 & 13 of 2022 [2023] SCCA 6. At the conclusion of the proceedings that day Counsel for the Appellant had informed Justice Andre that he intends to seek a meeting informally with the three Justices, namely Fernando, Robinson and Andre, who are listed to hear this case after writing to the Deputy Registrar of the Court, to request for their recusal viva voce, on the instructions of the Appellant. 10. Counsel for the Appellant by his letter addressed to the Deputy Registrar dated 9th of June 2025 had requested for a meeting with Justices Fernando, Robinson and Andre in Chambers in the presence of the Attorney General, the Respondent in the appeal. The meeting was held on the 1st of July as requested with Justices Fernando, Robinson and Andre and the Attorney General in attendance where Counsel for the Appellant and the Attorney General made submissions, which were recorded. At the conclusion of the meeting Counsel for the Appellant was informed that he will have to make a formal application in writing seeking recusal. Shortly after the counsel representing the parties had left Justice Robinson informed me that she wished to recuse herself and therefore the case was recalled and counsel called back, when Justice Robinson opted to recuse herself stating “Having heard the parties through Counsel, Mr. Hoareau and the Honourable Attorney General, I recuse myself from the appeal”, as borne out from the record of proceedings of the 1st of July. No reasons were given by Justice Robinson for recusing herself. Thereafter with the agreement of Counsel for the Appellant it was decided that application for recusal, the issue whether the matter before the Court was time barred and the hearing on the merits shall all be taken up together at the August session of the Court of Appeal, namely on the 4th of August, as had happened in the case of Michel & Ors V Dhanjee & Ors [SCA 5 of 2012], where recusal was sought against all three Justices of Appeal who had been listed to hear the appeal. Therefore, the dates set on the 3rd of June as referred at paragraph 9 above for the filing of written submissions and for hearing on the issue whether the present case has been filed in accordance with the time limits was cancelled. Counsel for the Appellant agreed to file the formal application for recusal with submissions on the 15th of July and the Attorney General his response by the 21st of July. 11. In view that Justice Robinson had decided to recuse herself from hearing the case, Judge B. Adeline of the Supreme Court, who is an ex-officio member of the Court of Appeal was co-opted in accordance with article 121(b) of the Constitution, to be a member of the panel. ON THE ISSUE OF RECUSAL 12. The Appellant filed the formal application with a supporting affidavit on the 15th of July as agreed, for recusal of Justices Fernando and Andre from hearing the Appellant’s appeal on the ground of apparent or apprehended bias. The basis for the application is that the said two Justices along with Justice F. Robinson had determined and dismissed the appeal of the Appellant against his conviction for murder in SCA CR 10 & 13 of 2022 [2023] SCCA 6; and the instant appeal is against the judgment of the Constitutional Court dismissing the Appellant’s petition that challenged the Court of Appeal’s judgment in SCA CR 10 & 13 of 2022 [2023] SCCA 6 on a point of law, namely in relation to its interpretation of article 19(2)(h) of the Constitution. It is the Appellant’s position that the Justices Fernando and Andre had violated his right under article 19(2)(h) of the Constitution by improperly drawing an adverse inference from his exercise of the right to silence at his trial, in their judgment determining his appeal. It is the Appellant’s position that the point of the law canvassed in appeal is inextricably linked to the alleged violation of his right under article 19(2)(h) of the Constitution and Justices Fernando and Andre against whom the allegation of violation is made, are now been called upon to hear the appeal against the judgment of the Constitutional Court. According to the Appellant, a fair minded and informed observer would reasonably apprehend this, as bias on the part of the said two Justices. The Appellant in his affidavit in support of his recusal application had averred, that the email of the Deputy Registrar referred to at paragraph 7 above reasonably conveys that the Justices have already determined that his appeal is time-barred and that the appropriate forum for adjudicating the breach is the Court of Appeal. The Appellant in his written submissions in relation to the recusal motion has suggested that the Guide to Judicial Conduct, established by the Council of Chief Justices of Australia (which includes the Chief Justice of New Zealand) be considered by this Court. It is stated in the Guide as follows among others: “(c) that the disqualification is for the judge to decide in the light of any objection, but trivial objections are to be discouraged. (f) If the judge decides to sit, the reasons for that decision should be recorded in open court. So should the disclosure of all relevant circumstances. (i) The judge has a duty to try cases in the judge’s list, and should recognise that disqualification places a burden on the judge’s colleagues or may occasion delay to the parties if another judge is not available. There may be cases in which others judges are also disqualified or are not available, and necessity may tilt the balance in favour of sitting even though there may be arguable grounds in favour of disqualification.” I have perused the rest of the provisions in the Guide carefully, namely (a),(b),(d),(e),(g) and (h) and find that there are none that is contrary to the procedure that we have decided to adopt. This is not a case where there is uncertainty in our minds in regard to circumstances that may warrant disqualification, or where we are not aware of the possibility of the Appellant raising matters of which we are not aware, since the basis for our recusal is clearly stated in the affidavit of the Appellant, namely that the point of law canvassed in appeal is inextricably linked to the alleged violation of the Appellant’s right under article 19(2)(h) of the Constitution by myself and Justice Andre against whom the allegation of violation is made and who are now been called upon to hear the appeal against the judgment of the Constitutional Court. 13. It is to be noted that the appeal in this case, as can be made out from the grounds of appeal at paragraph 2 above is an issue about jurisdiction and the proper forum, although if the Appellant succeeds in his grounds (i) and (ii), would lead to a hearing and determination of the matter already determined by the Court of Appeal in SCCA 10 of 2022, which involves the interpretation of article 19(2)(h) of the Constitution. That is, if the Appellant succeeds in establishing he is not time barred. The Appellant is now seeking to have the Constitutional Court interpret the same article which the apex court has already determined and which is, as correctly stated by the Appellant a substantive issue involving the correctness of an interpretation and not an issue involving a procedural irregularity, like that of a denial of the right to be heard or a breach of the principles of natural justice. The determination of the appeal in relation to the interpretation of article 19(2)(h) of the Constitution in this case rests on the factual circumstances that the Appellant had averred in his affidavit in support of his petition before the Constitutional Court as set out in paragraph 4 above, and nothing more. The Appellant in his Skeleton Heads of Argument at 4.27 had stated that he “was not challenging the factual findings of the Court of Appeal or that the Court of Appeal was wrong on the law, but rather that the Justices of Appeal had specifically breached his constitutional right protected by article 19(2)(h) of the Constitution”. I wish to state that this is rather a contradictory statement, namely the Court of Appeal was not wrong on the law but breached his constitutional right. The Appellant has averred at paragraph 1.3 of his Affidavit in support of his Recusal Application “that the issue of apparent bias arises, as Justice Fernando and Justice Andre would be adjudicating a legal matter concerning a petition that essentially contains allegations of a constitutional violation against themselves”. The falsity of the Appellant’s argument in his affidavit in support of the recusal application that Justices Fernando and Andre had already determined the matter in view of the contents of the email of the Deputy Registrar referred to at paragraph 7 above becomes clear, because the Scribe List, that was sent out to all lawyers on the 21st of May 2025 by the Registry of the Court stated that the appeal in this case and that of another appeal case are likely to be taken up for hearing before the hearing of the main appeals in order to determine whether the said appeals have been filed within the time prescribed in accordance with the Seychelles Court of Appeal Rules 2023. Further in view of the proceedings of the Court of Appeal dated 3rd June referred to at paragraph 9 above shows that the Appellant’s Counsel had been informed on that date that the issue whether the case had been filed within the timelines, as per the Rules, needs to be determined prior to the hearing on the merits of the appeal. Counsel for the Appellant was also informed at the meeting on the 1st of July that the issues pertaining to the application for recusal, time limit and the hearing of the main appeal will all be taken up together on the 4th of August. Counsel for the Appellant had filed his Skeleton Heads of Argument on the 23rd of June, his recusal application on the 15th of July and his written submissions in respect of the recusal application on the 16th of July. All this shows that the email of the Deputy Registrar was purely an administrative matter and not a determination made by Justices Fernando and Andre, and Counsel for the Appellant was very much aware of it and acted on that basis by filing the documents referred to earlier. 14. In Poter V Magill (2002) 2 AC 357 the House of Lords formulating the test to be applied in all cases of apparent bias stated: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a ‘fair minded and informed observer’ to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” In Government of Seychelles & Anor v. Seychelles National Party & Ors; Michel & Ors v Dhanjee [SCA 4/2014[2014] SCCA 33 (12 December 2014)], this Court adopted the test laid down in Porter V Magill. According to the pronouncements made in Hellow V Secretary of State for the Home Department and Another (2008) WLR 2416 the ‘fair-minded observer’ is a creature of fiction and a relative newcomer who inhabit our global village and are available to be called upon when a problem arises that needs to be solved objectively. He is the sort of person who always reserves judgment on every point until he has seen and understood both sides of the argument. Hellow, citing Johnson V Johnson (2000) 201 CLR 488, has stated that fair-minded observer is not unduly sensitive or suspicious. His approach must not be confused with that of the person who has brought the complaint. According to Hellow, the ‘real possibility’ test ensures that there is a measure of detachment. Hellow continued to state in relation that the observer needs to be ‘informed’; the observer has to take a balanced approach to any information that he is given and will take the trouble to inform himself on all matters that are relevant. He is fair minded, and will appreciate that the context forms an important part of the material, which he must consider before passing judgment. 15. Both the Appellant and his counsel had failed to consider the Judicial Oath that all Justices and Judges have to take and subscribe before assuming the duties of their office wherein they swear to do what is right in accordance with the Constitution without fear or favour affection or ill will. One should not treat this oath of office lightly as it is of paramount importance in the performance of a judge’s duties independently and impartially as a Judge. They need to realize that we Judges must adhere to judicial ethical standards, the very oxygen of the legal biosphere which are sacrosanct and violating them is an unpardonable sin. They failed to realize that we have an open justice system with the hearing and announcement of the decision in public [article 19 (8) of the Constitution], that judgments are given with written reasons and that the said judgments and their reasoning are kept for even posterity to judge the Judges. It would therefore be totally ludicrous for the Appellant and his Counsel to think that the Justices of the Court of Appeal, the apex court in the Seychelles, will be biased and deliberately and knowingly give a wrong decision in order to maintain their earlier interpretation of article 19(2)(h) of the Constitution, based on the factual circumstances set out in the Appellant’s affidavit and despite any sound arguments being put forward by the Appellant. This is because as stated earlier all judgments of the superior courts are open to the public and reported in the Judiciary website www.seylii.org that can be read even in other parts of the world, and no Justice of Appeal would wish to look imprudent in the eyes of the legal fraternity. I state that none of the grounds set down at paragraph 2.5 of the Bangalore Principles of Judicial Conduct 2002 on impartiality, adopted at the Round Table Meeting of Chief Justices at the Peace Palace in The Hague in November 2002 for disqualification of a Judge from participating in a judicial proceeding; namely for recusing himself, has application in this case. 16. It is a fundamental duty of every citizen under article 40(a) of the Constitution to uphold and defend the Constitution which guarantees that the Judiciary shall be independent. The Appellant’s Counsel, a senior and experienced member of the Bar and an officer of the Court, should have considered all this before he sought to make an application for recusal in a case of this nature and I am of the view that his conduct in perusing the recusal application shows disrespect to the Justices of Court of Appeal and amounts thereby to undermining the Court of Appeal in the eyes of the public. 17. There are no clear guidelines applicable to recusal applications before the Court of Appeal, save the pronouncements made in Michel & Ors v Dhanjee & Ors [recusal] (SCA 5 of 2012) [2012] SCCA 23 (31 August 2012). It was said in that case: “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… Judges do not take their constitutional oaths lightly; their tenure and salary are guaranteed despite their decisions. Any misbehaviour on their part is sanctioned by article 134 of the Constitution. An application for recusal based on bias against a litigant before them cannot be made lightly. Such applications cannot in any case be grounded on suspicions. The fact that the applicant was not successful in a different case before this court does not give rise to an application for recusal of the judges of the Court of Appeal in every case that he may have before the court after that. As was stated in Attorney-General of Kenya v Professor Anyang’ Nyongo (supra): ‘It is indisputable that different minds are capable of perceiving different images from the same set of facts. This results from diverse factors. A ‘suspicious” mind in the literal sense will suspect even where no cause of suspicion arises. Unfortunately, this is a common phenomenon among unsuccessful litigants”. 18. Judges have to make a decision whether or not to hear a case and will recuse themselves sua sponte 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 the case of The President of the Republic of South Africa and Ors v South African Rugby Football Union and Ors [(CCT 16/98) [1999] ZACC 9, decided on 7 May 1999, para. 31] it was held that: “Judges have jurisdiction to determine applications for their own recusal.” 19. In Government of Seychelles & Anor v. Seychelles National Party & Ors; Michel & Ors v Dhanjee [SCA 4/2014[2014] SCCA 33 (12 December 2014)], the Court of Appeal set out the recusal guidelines applicable. The said guidelines were adopted in The Seychelles Human Rights Commission and Others V The Speaker of the National Assembly of Seychelles and Others (SCA CL 04/2023) [2024] ((Arising in CP 07/2022) (3 May 2024)) [2024] SCCA 14 (3 May 2024) with the qualification, that the said Guidelines have to be used with imagination rather than dogmatically. It is to be noted that the Court of Appeal made these pronouncements in relation to recusal applications made within the Supreme Court or Constitutional Court where the Chief Justice administratively oversees the management of recusals. They are not strictly applicable to the Court of Appeal, since the Chief Justice does not administratively supervise the Court of Appeal and has no power to administer recusal assignments for the Court of Appeal. It is the President of the Court of Appeal, who according to the Court of Appeal of Seychelles Rules, manages the Court of Appeal and select the Justices to sit for the purposes of hearing an appeal. Since the substantive principles of bias do apply to the Court of Appeal, the recusal guidelines set out in the said two judgments need to be considered with imagination rather than dogmatically as stated earlier. In my view therefore what may be of relevance to the Court of Appeal in the said recusal guidelines are rules 1-4 & 11 which I quote below, as the rest of the rules, namely 5-10 make reference to the Chief Justice. Rule 1 Where a party to a case has reasonable grounds to believe that a particular Judge should be spared the embarrassment of sitting in his case on account of a bias, he should so inform his Counsel and instruct him to consider making a recusal request to the Judge in question. Rule 2 On receiving such instruction, Counsel should satisfy himself that the facts put forward by his client are not frivolous but sufficiently cogent for the purposes of making a recusal request. Rule 3 On being so satisfied, he should approach the opposing Counsel to indicate his stand and may seek his views on the matter before taking an informed decision whether or not to proceed with a recusal request. Rule 4 Where he has decided to proceed with a recusal request, learned Counsel should seek an appointment with the Judge in question, see him in presence of opposing Counsel and place before him the facts on which his client relies to seek a recusal. Rule 11 The procedure and hearing shall be summary identical with what obtains in a civil suit based on affidavit evidence. 20. Rule 1 makes it clear that the Appellant should have ‘reasonable’ grounds to believe that a Justice who is to hear the case will be biased against him and this in my view involves both a subjective and an objective element, namely not only that he personally feels that the Justice will be biased but in his mind he should honestly believe that a reasonable person in the given circumstances will also feel so, in view of the words “reasonable grounds to believe”. The said grounds need to be clearly borne out in the Appellant’s affidavit seeking recusal. I am of the view that the Appellant’s affidavit does not satisfy the test for a court to conclude that the Appellant had any reasonable grounds to believe from an objective point of view that Justices Fernando and Andre would be biased against him. 21. Rules 2 and 3 impose a structured duty on counsel before a recusal application may be brought in view of the words “Counsel should satisfy himself that the facts put forward by his client are not frivolous but sufficiently cogent for the purposes of making a recusal request” and “before taking an informed decision whether or not to proceed with a recusal request”. An ‘informed decision’ is a choice made after thoroughly gathering and understanding all relevant information, considering potential consequences, and assessing risks and benefits. It involves a deliberate process of analysis and evaluation, leading to a more well-considered and potentially more successful outcome. Counsel in such an instance is expected to make a value judgment and not merely depend on the irrational or imaginary thinking of his client. These provisions establish that the lawyer acts not merely as a conduit of client instruction, but as an independent officer of the court with a duty to interrogate the sufficiency of the facts, reflect on the legal thresholds, and take an informed decision whether in favour or against making a recusal request. That decision must be anchored in legal reasonableness, not emotional alignment with the client’s dissatisfaction. The Guidelines envisage counsel as a professional gatekeeper, not a delegated mouthpiece. This duty is even more exacting where, as in the present case, Counsel for the Appellant, is a senior member of the Bar with many years of experience, including prior service at the Attorney-General’s Chambers and regular appearances before the Court of Appeal. Such counsel is not only legally trained but also well-acquainted with the judicial temperament and ethics, and conduct of the very Justices whose recusal is sought. This longstanding professional familiarity places counsel in a unique position to assess whether there exists a real possibility of bias or whether the concern arises solely from client discontent. There is no averment in the affidavit filed by the Appellant in his application for recusal that there had been a discussion between himself and his Counsel in relation to the facts put forward by him, as regard the purposes of making a recusal request, namely that they are sufficiently cogent and not frivolous. This suggests that the application for recusal was advanced more out of deference to client pressure than as a product of independent legal judgment. The Guidelines do not sanction such deference. They require the lawyer to act as an officer of the court - someone who, when faced with legally insufficient grounds for recusal, must advise the client accordingly and decline to proceed. 22. In a small jurisdiction like Seychelles, where the pool of appellate judges is necessarily limited, the risk of judicial gridlock arising from unwarranted or serial recusal applications is significant. That risk is magnified when senior counsel abandons their gatekeeping function and allow themselves to become conduits for forum and Judge shopping or tactical withdrawal efforts. The doctrine of institutional continuity and the integrity of the administration of justice demand more. It is incumbent on senior members of the Bar, especially those who appear before this Court regularly and understand its constitutional responsibilities, to approach recusal applications with the legal seriousness the matter deserves. Failure to do so in this case, do not augur well for the conduct of the Appellant’s Counsel. 23. In Pinochet II (R v Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272, Lord Browne-Wilkinson in summing up English and Commonwealth cases on recusal stated that it is an objective test that must be applied to determine if – “there exists a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial”. In Council of Review, South African Defence Force, and Others v Mönnig and Others (610/89) [1992] ZASCA 64; [1992] 4 All SA 691 Corbett CJ said:” “The test for apprehended bias is objective and the onus of establishing it rests upon the applicant. An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application.” 24. The Constitutional Court of South Africa reiterated the reasonable apprehension test in President of the Republic of South Africa and Others v South African Rugby Football Union and Others - Judgment on recusal application (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) thus: “The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.” 25. The objective standard for bias was explained in Porter v Magill [2002] 2 AC 357: "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." This is consistent with international common law standards, including the Canadian test (Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369) and Australian jurisprudence (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). In the Canadian case, it was held that “the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... That test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.” This approach underscores that the test for bias is objective and context- specific, focusing not on the subjective intentions of the decision-maker, but rather on whether an informed and reasonable observer would apprehend a real likelihood of unfairness. 26. The facts of the instant case is almost identical to the case of Franky Simeon V The Republic [SCA 26 of 2002 (2003) SCCA 20(8 April 2023)]. This was an appeal to the Court of Appeal against the decision of the Constitutional Court of Seychelles which held that the appellant’s right to a fair hearing under article 19 of the Constitution had not been breached by the Court of Appeal when hearing his appeal against his conviction for manslaughter in the case of Franky W. Simeon V The Republic [SCA 7 of 2001(2002) SCCA 29(18 April 2002)]. The appeal against the decision of the Constitutional Court was heard by Justices Silungwe, Pillay and Matadeen, while the appeal against his conviction was heard by Justices Ayoola, Silungwe and Pillay. There was no challenge in (CA 26 of 2002) to Justices Silungwe and Pillay, based on apparent bias that ‘a reasonable, right minded and informed person’ would think that the said two Justices who heard the appeal of Franky Simeon against his conviction (SCA 7 of 2001) were now hearing his appeal against the decision of the Constitutional Court. 27. The fact that a judge has previously dealt with the same parties or even the same case does not automatically trigger recusal. In Locabail v Bayfield [(2000) QB 451 at 480], (and reaffirmed by the Seychelles Court of Appeal in The Seychelles Human Rights Commission and Others v The Speaker of the National Assembly of Seychelles and Others) it was held that the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. Moreover, In Shaw v Kovac [(2017) EWCA Civ 1028, paragraph 25] the Court of Appeal held that the fact that the appellant did not wish to have two judges sitting on her appeal who had previously been involved in decisions that were adverse to her could not, without more, result in recusal. In that case, the appellant, Mrs. Gabriele Shaw, appealed a judgment in a clinical negligence case concerning the death of her father following a TAVI procedure. During the appeal, she applied for the recusal of two judges sitting on the Court of Appeal panel. Her application was grounded on the fact that: (a) One of the judges had previously heard and dismissed her judicial review challenge to the inquest outcome into her father’s death and had made comments about a schedule she had prepared, describing it as “misleading.” (b) The second judge had refused permission to appeal in that prior case and had described her arguments as “speculation and assertion.” The appellant argued that their previous involvement and negative comments showed apparent bias and warranted their recusal. The Court of Appeal firmly rejected the application for recusal. It held that: “The fact that the claimant did not wish to have two judges sitting on her appeal who had previously been involved in decisions adverse to her could not, of itself, procure a recusal.” The court reiterated the established legal test that the perception of bias must be assessed from the standpoint of a “fair-minded and informed observer.” It emphasized that prior adverse rulings or judicial criticisms in earlier proceedings do not automatically amount to apparent bias. Quoting from Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 41: “The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.” The court further clarified that: “Even if the first judge’s comment about the claimant’s schedule was seen as a reproof, it could not begin to show a predilection against her when viewed from the perspective of a fair-minded and informed observer.” Additionally, both judges were under a judicial obligation to continue hearing the case in the absence of any proper basis for recusal: “There was no proper basis for recusal and apparent bias did not arise. The judges had a judicial obligation to hear the appeal.” The authorities referred to herein are in all fours with the instant application for recusal of Justices Fernando and Andre. 28. Seychelles being a small jurisdiction, the exception of necessity in judicial disqualification becomes applicable in certain circumstances in order to prevent paralysis of judicial functions when 3 of the 4 resident Justices are challenged. The rule of necessity was recognized as early as the 15th century in English common law and has been followed in all common law countries. It is expressed as the rule “that a judge is not disqualified to try a case because of his personal interest in the matter at issue if there is no other judge available to hear and decide the case” (Atkins v United States 214 Ct Cl 186 (1977), and reaffirmed in Ignacio v Judges of US Court of appeals for Ninth circuit 453F.3d 1160 (9th cir. 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” As set out at paragraph 12 above the Guide to Judicial Conduct, established by the Council of Chief Justices of Australia has also recognised the rule of necessity. However, I do appreciate that the rule of necessity should be applied sparingly. 29. In Triodos Bank NV v Dobbs (2001) EWCA Civ 468 which was cited in the Seychelles Human Rights Commission case, referred to at paragraph 18 above, the Court rightly warned against the abuse of recusal applications as a form of "judge shopping". “It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If the judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised – whether that criticism was justified or not.” 30. In the case of Livesey v New South Wales Bar Association (1985) L. R. C (Const) – 1107 it was held: “-----, it would be an abdication of judicial function and an encouragement of procedural abuse for a Judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of possible appearance of prejudgment or bias, (emphasis mine) regardless of whether the other party desired that the matter be dealt with by him as the Judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular Court.” 31. I have carefully considered the averments made by the applicant in his affidavit in support of the formal application for recusal. A fair-minded and informed observer would not conclude, on the basis of the Appellant’s averments in the affidavit, that Justices Andre and myself would be biased against the Appellant. Our judicial oaths and conscience would not so permit us. I therefore have no hesitation in dismissing the recusal application. 32. I have thought it necessary to place on record Recusal Guidelines for the Court of Appeal that may be considered by other Justices of Appeal since presently there are none directly applicable to the Court of Appeal, as stated at paragraph 17 above. (i) Justices have jurisdiction to determine applications for their own recusal and make a decision whether or not to hear a case and should recuse themselves sua sponte 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 or apparent bias because there could be reasonable grounds on the part of a litigant for apprehending that the Justice of Appeal, was not or will not be impartial. It is my view that it is improper for the President of the Court of Appeal or another Justice of Appeal to decide on the propriety of a particular Justice of Appeal hearing a case when there is recusal application in relation to that Justice of Appeal. This amounts to putting on trial a colleague of theirs. It also amounts to showing disregard to the Judicial Oath such Justice has taken and article 119(2) of the Constitution, which states: “the Judiciary shall be independent”. A Justice is not obliged to recuse himself or herself simply because he or she is asked to. (ii) Where a party to a case has reasonable grounds to believe in good faith, which involves both a subjective and an objective test, that a particular Justice of Appeal should be spared the embarrassment of sitting in the case on account of a bias, he should inform his Counsel and instruct him to consider making a recusal request to the Justice of Appeal in question. (iii) On receiving such instruction, the Counsel should satisfy himself that the facts put forward by his client are not frivolous but sufficiently cogent before taking an informed decision whether or not to proceed with a recusal request. This imposes a structured duty on counsel before a recusal application may be brought. An ‘informed decision’ is a choice made after thoroughly gathering and understanding all relevant information, considering potential consequences, assessing risks and benefits and shall not be grounded on suspicions. The Counsel in such instances should act not merely as a conduit of client instruction, but as an independent officer of the court with a duty to interrogate the sufficiency of the facts, reflect on the legal thresholds, prior to taking an informed decision whether in favour or against making a recusal request. When faced with legally insufficient grounds for recusal, Counsel must advise the client accordingly and decline to proceed. (iv) It is an objective test that must be applied to determine if there exists a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Justice will not be impartial and the onus of establishing it rests upon the applicant. On being so satisfied, he should approach the opposing Counsel to indicate his stand and may seek his views on the matter. (v) Where the Counsel has decided to proceed with a recusal request he should seek an appointment with the Justice of Appeal in question, see him in presence of opposing Counsel and place before him the facts on which his client relies to seek a recusal. On being apprised of the facts the Justice of Appeal should decide whether to recuse himself or not, as this a matter for the Justice of Appeal to decide. (vi) If the Justice of Appeal decides not to recuse himself and if the Counsel is not satisfied with that decision, he should make a formal recusal motion with a supporting affidavit in open court, with notice to the other party. The Justice of Appeal will then make a determination based on the formal recusal motion. The test for bias should be objective and context-specific. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It should be clear to the Justice of Appeal that it is not a case of ‘Judge shopping’. The mere fact that a Justice of Appeal has previously dealt with the parties or even the same case or 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 and does not automatically trigger recusal. It is important for a Justice of Appeal to resist the temptation to recuse himself simply because it would be more comfortable to do so. (vii) The Rule of Necessity is also a matter to be considered in certain circumstances when the issue of recusal arises for judicial disqualification in order to prevent paralysis of judicial functions in a small jurisdiction like Seychelles. A Justice of Appeal has a duty to hear cases the Justice has been selected by the President of the Court of Appeal for the purposes of hearing an appeal and should recognise that recusal places a burden on the Justice’s colleagues. There may be cases in which others Justices are also disqualified or are not available, and necessity may tilt the balance in favour of sitting. (viii) The procedure and hearing shall be summary, identical with what obtains in a civil suit based on affidavit evidence. The affidavit in support of a recusal application should clearly state the grounds for recusal and that there had been a discussion between the client and his Counsel in relation to the facts put forward by the client. If the Justice of Appeal decides to sit or recuse himself after the informal meeting or formal motion; the reasons for that decision should be stated. So should the disclosure of all relevant circumstances. GROUNDS (i), (ii) AND (iii) OF APPEAL – IMPROPER FORUM 33. Before we consider the appeal filed it is important to consider whether the Appellant shot himself in the foot by seeking to challenge a decision of the Court of Appeal, before the Constitutional Court which he could not do, in view that in Seychelles the Court of Appeal is the apex court and because of the many judgments of this Court in this regard. This is the issue raised in grounds (i), (ii) and (iii) of the Notice of Appeal. It is to be noted that under chapter VIII of the Constitution, which deals with the Judiciary, the Court of Appeal is placed first in the hierarchy of the Courts referred to in article 119(1), with the Supreme Court next and other subordinate courts or tribunals thereafter. The Constitutional Court is a division of the Supreme Court and this is made clear by article 129(3), which states that any reference to the Constitutional Court is a reference to the Supreme Court. Article 120(1) states that that the Court of Appeal shall have jurisdiction to hear and determine appeals from the Supreme Court and article 120(2) specifies the right of appeal from a judgment of the Supreme Court to the Court of Appeal. According to article 120(3), the Court of Appeal when exercising its appellate jurisdiction have all the authority, jurisdiction and power of the Supreme Court. Article 120(3) therefore gives the Court of Appeal when exercising its appellate jurisdiction, original jurisdiction in matters relating to the application, contravention, enforcement or interpretation of the Constitution which the Supreme Court has under article 125(1)(c). According to articles 46(7) and 130(6) of the Constitution, where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of chapter III which contains the Seychellois Charter of Fundamental Human Rights and Freedoms, or of the Constitution the court shall, if it is satisfied that the question is not frivolous or vexatious or has 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. The reference to ‘any court’ herein, is to the Supreme Court, Magistrates Court or a tribunal. These two articles thus make it clear that the Court of Appeal is not mandated to refer a constitutional issue to the Constitutional Court for its determination, under the Constitution. The corollary being the Court of Appeal can determine the constitutional question by itself in view of the provisions of article 120(3) of the Constitution as stated earlier. I may add however if the Court of Appeal so choses, there is nothing to prevent it from referring a constitutional question to the Constitutional Court. Articles 46(9) and 130(8) state the court in which the question referred to in clause 46(7) or 130(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 to the Court of Appeal, in accordance with the decision of the Court of Appeal. This shows the decision of the Court of Appeal is final and cannot be questioned before the Constitutional Court. However, the decisions of the Constitutional Court are subject to an appeal to the Court of Appeal in view of the provisions of article 120(2) as stated earlier. According to article 120(6) of the Constitution where in respect of any matter before it, the Court of Appeal finds that any provision of law contravenes the Constitution it is obliged to send a copy of its finding to the President and the Speaker. All these constitutional provisions make it clear that since the Court of Appeal is the apex Court, the Constitutional Court which is lower in hierarchy to the Court of Appeal, cannot overrule a decision of the Court of Appeal especially on substantive issues pertaining to merits. 34. Article 7(1) of the Civil Code of Seychelles Act 1 of 2021 states: “A judicial decision is binding on all courts lower in the judicial hierarchy than the court which delivered the precedent decision.” This is based on the principle of ‘stare decisis’ which emphasises the importance of consistency and predictability in the application of law by adhering to established rulings. Therefore, the Constitutional Court did not err in placing reliance on article 7(1) of the Civil Code, which is the complaint in ground (i) of appeal. In the Petition filed before the Constitutional Court, the Appellant had by way of relief sought the Constitutional Court to overrule the findings of the Court of Appeal in respect of its interpretation of article 19(2)(h) of the Constitution. This is made further clear from grounds (ii) and (iii) of the Notice of Appeal where the Appellant has averred that “the constitutional issue at hand was not one of procedural irregularities; rather it involved a substantive contravention of article 19(2)(h) of the Constitution by the Justices of Appeal”. There is a right of appeal against a decision of the Constitutional Court to the Court of Appeal under article 120(2) of the Constitution. Thus, it would be a never-ending saga if it were otherwise, namely if a decision of the Court of Appeal can be challenged before the Constitutional Court. To put it simply, in the instant case the Appellant who was convicted by the Supreme Court, appealed to the Court of Appeal against his conviction and on the dismissal of his appeal made application to the Constitutional Court against the interpretation of the Court of Appeal of article 19(2)(h), which involved a substantive issue pertaining to merits. Not being satisfied with the decision of the Constitutional Court he has now appealed to the Court of Appeal. If the Appellant was to go on this way, he will once again challenge the decision of the Court of Appeal in the Constitutional Court and if dissatisfied with that decision come back to the Court of Appeal. If that were to be the norm it will be a never-ending saga and there will be no finality to litigation. An overarching objective of the legal system is, there needs to be finality to litigation in the interest of justice. 35. In the case of Maharaj V Attorney General of Trinidad and Tobago 1978 UKPC 3 the Privy Council stated: “In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. When there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by s. i(a), and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event.” 36. In the South African case of Boesak v The State / g) 2001 (1) South African Law Reports (Official Gazette) 912 (CC) / h) 2001 (1) Butterworths Constitutional Law Reports 36, the South African Constitutional Court had to consider an application for leave to appeal against a decision of the Supreme Court of Appeal in which the Applicant had lost his appeal against convictions for fraud and theft. The Court stated: “There is a need for finality in criminal matters. The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial” …. 37. In the Eastern European Engineering Limited v Vijay Construction (Proprietary) Limited) (MA 35 of 2022 (Arising in SCA MA 24 of 2020) Out of SCA 28 of 2020 / CC 23 of 2019)) [2022] SCCA 56 (21 October 2022), it was held: “The Constitutional Court, as a division of the Supreme Court of Seychelles, cannot overrule the Court of Appeal, as the apex Court of the Republic of Seychelles, as to whether the Court of Appeal can or ought to hear an appeal de novo…Indeed, the Court of Appeal has held repeatedly that it is not open to a litigant in the Constitutional Court to seek to have set aside as unconstitutional a decision of the Court of Appeal: Simeon v R Cr App 26/2002, D’Offay v Louise SCA 34/2007, Mellie v Government of Seychelles & Anor (SCA 3 of 2019) [2019] SCCA 40 (16 December 2019). This reflects decisions of the Privy Council in Chokolingo v Attorney-General [1981] 1 WLR 106 and Hinds v Attorney General & Ors (Barbados) [2002] 1 AC 854. Similarly, we also do not consider it appropriate or proper to have the Constitutional Court determine the constitutionality of the action of the apex Court of Appeal especially in circumstances where the decision of the Constitutional Court could then be appealed to the Court of Appeal…It follows ineluctably, by clear and inescapable implication from the words emphasized in Article 46 (7) and 130 (6) of the Constitution, that where a question arises in proceedings before this Court of Appeal with regard to whether there has been or is likely to be a contravention of the Charter (in this case, Article 19 (7), and 27 (1)), or of the Constitution (in this case, Article 120)), then this Court is, by virtue of Article 46 (7) and 130 (6) of the Constitution, respectively, not obliged or required to refer the question for determination to the Constitutional Court but may consider and make the determination itself. Furthermore, by necessary implication, where the Court of Appeal decides to take up and determine a constitutional question that arises in proceedings before it, such a question cannot properly be simultaneously or thereafter be prosecuted in the Constitutional Court. The Constitutional Court has no jurisdiction to consider a constitutional question that has arisen in the Court of Appeal and which the Court of Appeal has decided to consider and determine. To the extent that the majority in Rosenbauer held to the contrary of this proposition, we would respectfully disagree and hold that that view ought not to be followed…Firstly, collateral attacks on a judgment of the Court of Appeal cannot be made in the Constitutional Court, so as to have a second bite at the cherry and review the merits of a decision. Secondly, to allow such collateral attacks would in essence allow the subordinate court to review the merits of a decision of the Court of Appeal. Thirdly, the proper procedure to follow where a party alleges that the Court of Appeal has denied a fair hearing, is to file a notice of motion to invoke the inherent jurisdiction to hear the alleged contraventions rather than petition the Constitutional Court…” See also Karunakaran v A-G (SCA CL 1 of 2020) [2021] SCCA 8 (30 April 2021). 38. The case of Franky Simeon V The Republic [SCA 26 of 2002 (2003) SCCA 20(8 April 2023)] is on all fours with the instant case. This was an appeal to the Court of Appeal as stated at paragraph 26 above, against the decision of the Constitutional Court of Seychelles which held that the appellant’s right to a fair hearing under article 19 of the Constitution had not been breached by the Court of Appeal when hearing his appeal against his conviction for manslaughter in the case of Franky W. Simeon V The Republic [SCA 7 of 2001(2002) SCCA 29(18 April 2002)]. It was stated in the case of Franky Simeon (CA 26 of 2002) that: “It is not open to the appellant to reopen issues that has already been canvassed and decided upon by the Seychelles Court of Appeal in Franky W. Simeon V The Republic (SCA 7 of 2001). That is to have another bite at the cherry and review on its merits a decision of the Court of Appeal.” The Court said that “this cannot be done because of public policy considerations. This is an attempt through the backdoor as it were to reopen issues that had already been canvassed and decided upon by the Seychelles Court of Appeal”. “If the appellant were allowed to have a review on its merits a decision of the Court of Appeal he would in effect be criticising a decision of the Seychelles Court of Appeal to its face and what is worse, allowing the Constitutional Court, a subordinate court to the Court of Appeal, to review on its merits a decision of the Court of Appeal, which it must be stressed, is the final court of appeal of Seychelles. He would be opening the flood gates to other unsuccessful appellants, and in so doing, seriously compromising the fundamental principle of the finality of judgments of the Court of Appeal…It is clear from the record that the appellant’s Counsel had all the latitude in the course of the various sittings of the Court to put forward all the arguments that could be advanced on behalf of the client. What she cannot do now is the rehearse the same arguments on review of the merits of the decision of the Seychelles Court of Appeal which is, it should be underlined again, the highest court, and the final court of the land”. 39. In the case of Mellie v Government of Seychelles & Anor (SCA 3 of 2019) [2019] SCCA 40 (16 December 2019), Mellie brought a petition before the Constitutional Court (CC), in which he claimed that he had suffered a miscarriage of justice as his right to a fair hearing amongst other rights had been violated by his conviction and the dismissal of his appeal by the Court of Appeal. After the dismissal of his petition by the Constitutional Court, he appealed to the Court of Appeal against such dismissal. His appeal was dismissed by the Court of Appeal. At Paragraph 15 of the judgment in Mellie, this Court citing D’Offay v Louise SCA 34/2007 stated that there can be no collateral challenge to a conviction based on constitutional grounds where the conviction has been upheld by a final judgment of the Court of Appeal. 40. In the case of Subaris Company Ltd and Others v Seychelles Court of Appeal and Another (007 of 2010) (CP 7/2010) [2011] SCCC 1 (31 January 2011) the Constitutional Court found that: “The Constitutional Court is created as a division of the Supreme Court, and not as a separate court. The constitutional architecture for the judiciary is a hierarchy of 2 superior courts, the Court of Appeal and the Supreme Court, with decisions of the Supreme Court appealable to the Court of Appeal. The Court of Appeal is the court of last resort in the land. The Constitutional Court is not separate from the hierarchy of courts, or may be, a constituent power, outside of the judiciary as is the case in some models in Europe, West Africa or the post-apartheid Constitution of South Africa of 1995. Where that is the case it is then possible to challenge the constitutionality of decisions of the courts including the last appellate court in such a constitutional court. The constitutional architecture does not permit challenge of the decisions of the Court of Appeal, in the Constitutional court, in another bout of litigation alleging that the Court of Appeal erred constitutionally in its conduct of a hearing or in its decision. To allow it to happen is to fatally damage the foundations of the hierarchy of courts created by the Constitution with the court of final resort not at all being a court of final resort, opening an endless and indeterminate stream of litigation, and consigning litigants to the Dickensian times. What the Petitioners are seeking to do in this petition is outside of our constitutional model as presently laid down. Had the framers of the Constitution intended a court with the kind of jurisdiction that is pressed upon us now, not only would they have provided for it expressly, but most probably they would have had to set the Constitutional Court apart from the established hierarchy of courts, as was done with the 1995 Constitution of South Africa.” 41. The Appellant in his Heads of Argument at paragraph 4.8 has stated: “However, the circumstance and situation are different when there is ‘no procedural irregularity’ but the Court of Appeal in reaching its decision, contravenes the constitutional right of a person- ‘other than a right which constitute a procedural irregularity’. In such a case the sole and proper forum is the Constitutional Court, as the Court of Appeal will be functus officio.” At paragraph 4.11 of his Heads of Argument, the Appellant had reiterated “There was no procedural irregularity in the sense of a denial of the right to be heard or a breach of the principle of natural justice”. This is the same position he had raised in grounds (ii) and (iii) of his appeal, namely: “that the learned judges failed to recognise that the constitutional issue at hand was not one of procedural irregularities; rather it involved a substantive contravention of Article 19(2)(h)”. At 4.10 the Appellant had cited in support of his argument, from the majority judgment in Bristol V Rasenbauer SCA 71/2018, which is totally contradictory to the position the Appellant had taken and goes against his argument and which can be distinguished from the instant case. In Rosenbauer the Court had stated: “…Indeed all ‘procedural irregularities’ if severe would in any case amount to breaches of one’s fair trial rights. The proper forum for the determination for breaches of human rights is the Constitutional Court. This is so even if the issue of fair hearing arises in the Court of Appeal. The distinction is that in those circumstances, the application for redress constitutes a fresh case. It is not the same case that has already been heard and determined. That was the approach adopted in Mellie V Government of Seychelles & Anor and D’Offay V Louise. But even then, as was pointed out in D’Offay, the right to a fair hearing must be balanced with the need for finality of judgment.” In Rosenbauer reference was made to ‘procedural irregularities’ which results in breaches of one’s fair trial rights while hearing a case and which can be distinguished from the case that is been heard or already heard and determined. In Rosenbauer the application for redress constituted a fresh case and not the case that has already been heard and determined. At the meeting of the 1st of July referred to at paragraph 10 above, Court did give Counsel B. Hoareau, an example of such a situation, namely if on a date listed for the hearing of an appeal before the Court of Appeal, the appellant comes before the Court and states that his lawyer had suddenly taken ill and had been rushed to the hospital and pleads for an adjournment of the hearing, but the Justices of Appeal refuse to grant an adjournment and insists that the appellant should argue his case, goes ahead with the hearing and delivers judgment against the appellant. Mr. Hoareau was told that this was a procedural irregularity which may amount to a breach of the right to a fair hearing because in those circumstances, the application for redress constitutes a fresh case. In the instant appeal the Appellant is virtually complaining about the same case, namely SCA CR 10 & 13 of 2022 [2023] SCCA 6 that has already been heard and determined by the Court of Appeal on 26th April 2023 as regards its interpretation of article 19(2)(h), and which is a ‘substantive issue’ and not a ‘procedural irregularity’. Further in Eastern European Engineering Limited v Vijay Construction (Proprietary) Limited) as referred to at paragraph 37 above it was held that the majority view in Rosenbaur ought not to be followed. I am therefore surprised at the confusion in the mind of the Appellant’s Counsel in this regard and his inability to appreciate that Rosenbaur in fact dealt with a case of procedural irregularity and not one when there is ‘no procedural irregularity. This goes to show that the petition to the Constitutional Court on behalf of the Appellant and the instant appeal to this Court, appears to have been filed simply on the insistence of the Appellant and without a proper appreciation of the legal position. 42. Also in the Eastern European Engineering Limited v Vijay Construction (Proprietary) Limited) referred to earlier it was held: “The power to re-open an appeal is an extraordinary one which can only be properly exercised in the most extreme, rare, and exceptional circumstances where the interest of justice clearly demands that this be done. Secondly, the mere fact of the possession of the power is obviously not sufficient to justify a re-opening, otherwise there would be a realistic concern of the “flood-gates” argument, or to use the metaphor in the pleadings and submissions in this case, of “Pandora’s Box” being opened. There must be finality to litigation and in the interest of this, there must be principles which discipline the circumstances in which an appeal can properly be reopened…” 43. After erroneously seeking to challenge the decision of the Court of Appeal dated 26 April 2023, referred to at paragraph 4 above, before the Constitutional Court, in relation to its interpretation of article 19(2)(h) of the Constitution, the Appellant is now on the pretext of appealing against the judgment of the Constitutional Court, seeking in fact to challenge the decision of the Court of Appeal on a substantive issue. This in my view is a clear abuse of process and an attempt to have a second bite at the cherry and review the merits of a Court of Appeal decision before the Constitutional Court. 44. The Counsel for Appellant in his written submissions filed before this Court on the issue of time limit on behalf of the Appellant has stated that he is “invoking the appellate jurisdiction of the Court of Appeal to review the decision of the Constitutional Court and this appeal is not an invitation for this court to set aside its own judgment on the basis of procedural irregularity”. The falsity of this submission is made out when one examines the prayers in the Appellant’s petition before the Constitutional Court, referred to at paragraph 6 above, where he has sought for “the quashing of the Court of Appeal judgment on the basis that the judgment is contrary to the Constitution, invalid and/or null and void” and prayed for an “order that the appeal of the Petitioner (now Appellant) should be reheard de novo by the Court of Appeal.” I need to state firmly that it is unprofessional and unethical for Appellant’s Counsel, to mislead the Court in this circuitous manner and this type of conduct will not be tolerated in the future as we are beginning to notice a gradual deterioration of ethical values by counsel who are accountable to court. ON THE ISSUE OF TIME LIMIT 45. Further, it is my view that the Appellant is now time barred in view of the provisions of rule 18(1) of the Court of Appeal of Seychelles Rules which specifies that every appeal shall be brought by a notice of appeal by the appellant within 30 days of the decision appealed against, and which rule has application to the instant matter, namely where a review of the judgment of the Court of Appeal is sought. In Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd (EEEL) (SCA MA 23 of 2020; SCA MA 44 of 2022; SCA MA 9 of 2023) [2023] SCCA 17 (26 April 2023) it was stated: “The law does not specify the time period within which a party dissatisfied with a decision of the Court of Appeal must file their application for a re-opening of the matter. The Rules of the Court are silent. This is perhaps because a re-hearing or review of a judgment of a court of last resort is and should be a rare occurrence. It was the submission of Counsel for the Applicant that the determinant should be whether the application was filed within reasonable time from the delivery of the impugned judgment. That although a notice of appeal from a decision of the Supreme Court to the Court of Appeal must be filed within 30 days from the judgment of the lower court, 30 days should not be defined as the maximum limit of reasonable time for an application such as the one before court. That “reasonable time” is open and it is the court, which should, after considering all the circumstances pertaining to the case before it, decide whether it can be said that there has been inexcusable delay. It is my considered view that a motion filed beyond the 30 days’ period set for an appeal is not filed within reasonable time. And in the circumstances of this case, the application was not only filed almost four months after the judgment of the Court was delivered, but more than three months after the Respondent had taken steps to execute the judgments.” In the circumstances of the instant appeal, the notice of appeal to this Court against the Judgment of the Constitutional Court, was filed almost 1 year and 9 months after the judgment of the Court of Appeal dated 26th April 2023 and the sentence imposed on the Appellant had begun to be executed. 46. Counsel for the Appellant cannot be excused for having erred in relation to his action by going before the wrong forum, namely the Constitutional Court and more so because of his insistence that he was right as noted from his stance at paragraph 8 above, despite the many previous judgments of this Court referred to at paragraph 7 above that was brought to his notice. He had further refused to heed to the advice given to him by the Court as referred to at paragraph 7 above that he may seek an extension of time under rule 26 of the Court of Appeal of Seychelles Rules 2023. In my view Counsel for the Appellant having erred to go before the wrong forum, namely the Constitutional Court has now made a veiled attempt to overcome the time limit of not coming to the Court of Appeal for a review of its judgment within 30 days of the judgment of the Court of Appeal dated 26th April 2023, in accordance with rule 18 of the Court of Appeal of Seychelles Rules. I state this because the Appellant having failed to come to the Court of Appeal within 30 days; went before the Constitutional Court invoking its jurisdiction alleging a violation of his fundamental rights, since he had 3 months to do so in accordance with the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules. Having failed to succeed in the Constitutional Court he has now come to the Court of Appeal by way of an appeal against the judgment of the Constitutional Court within the 30 days stipulated for an appeal against such a judgment. This is possibly a way of fooling this Court, which I shall not tolerate. It cannot be said that the Appellant’s Counsel was unaware of the procedure and the time limit to be followed when a review of a judgment of the Court of Appeal needs to be sought, as he was the very same Counsel who appeared for the Respondent in the case of Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd (EEEL) (SCA MA 23 of 2020; SCA MA 44 of 2022; SCA MA 9 of 2023) [2023] SCCA 17 (26 April 2023), referred to at paragraph 37 above. Both judgments in the above mentioned Vijay Construction (Pty) Ltd v EEEL referred to above and Jean-Charles & Anor V The Republic, which is the subject matter of the application to the Constitutional case which has given rise to this appeal and referred to at paragraph 4 above were delivered on the same date, namely 26th April 2023 and as stated earlier it was the Appellant’s Counsel who also appeared for the Appellant in Jean-Charles & Anor V The Republic in which the Appellant was the second appellant. He therefore knew very well that he should have, if necessary and sincerely believed in the correctness of the Appellant’s position made application to the Court of Appeal for a review of its judgment within 30 days of 26th April 2023. 47. In the case of Ratnam V Cumarasamy 1964 3 AER 933 PC, a judgment of the Privy Council in an appeal from the Court of Appeal of Malaysia it was stated: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for litigation.” This was followed by this Court in J. J. Leveille V P Pascal SCA 05 of 2010, C Florentine & R. Florentine V M. E. Khan SCA 12 of 2010, R. H. Jean-Louis V M. J. Rosette SCA 15 of 2010. In Aglae V Attorney General (2011) SLR 44 this Court ruled: “We cannot overemphasise the importance of rules of procedure. There is an apparent necessity for courts to adopt a tough stance on time limits. Parties are entitled to certainty and clarity in court proceedings… and the taxpayer to a system that is as cost-effective as possible… For all these reasons, we cannot condone the breaches of the rules and deem the present appeal abandoned.” In Auguste v Singh Construction (SCA 52/2020) (16 December 2022), the Court of Appeal reiterated that breaches of the Rules 2005 pertaining to time limits should not be condoned unless there are "some materials on which the Court can exercise its discretion". See also Aglae v Attorney General (2011) SLR 44, Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 (10 May 2018), Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 (21 October 2019) and Mountain View Investment Pty Ltd v Pomeroy (SCA 4 of 2022) (25 August 2023). In Chang Sing Chung v Kim Koon and Ors SCA MA 38 of 2023 (25 August 2023), further reiterated that: "rules of court are made to be complied with by parties and that judicial discretion must consider not only what is fair but must also be guided by the rules and principles of law." The High Court of Singapore in Newspaper Seng Logictics Pte Ltd and Chiap Seng Productions Pte Ltd (2023) SGHC (A) 5 stated: “Timelines in procedural rules must be complied with. Finality is an important value in our legal system.” 48. In Lagesse and CIE Ltd V Commissioner of Income tax 1969 MR 46 citing Dependants Persun V Vacos Transport Co Ltd 1969 MR 148 and Espitalier-Noel Ltd V Serret 1980 MR 279, the Court applied the well settled principle that non- compliance with the required formalities within the prescribed time limits is fatal to the hearing of an appeal unless such non-compliance was not due to the appellant’s fault or that of his legal advisers. This was followed by this Court in Peter Moncherry V Sidonia (Pty) Ltd SCA 43 of 2011 and W. Richmond V G. Lesperance SCA MA 9 of 2013. 49. I wish to state that the Appellant is bound by the acts of his counsel. In the case of Soalmalay V The King in 1910 it was held that the appellant was bound by his attorney’s acts. That judgment was confirmed in the case of Seecharan V R 1934 Mauritius Reports and the case of Ransley V Soobratty, 1952 Mauritius Reports 206. This was followed by this Court in Peter Moncherry V Sidonia (Pty) Ltd SCA 43 of 2011, Michel & Ors v Dhanjee & Ors (SCA 5 of 2012) and W. Richmond V G. Lesperance SCA MA 9 of 2013. In Berber Alibhai Mawji vs. Sultan Hasham Lalji & 2 Others [1990-1994] EA 337, it was held where inaction on the part of an advocate as opposed to error of judgement or a slip is not excusable. Therefore, pure and simple inaction by counsel or a refusal to act cannot amount to a mistake, which ought not to be visited on the client. The Supreme Court of Sri Lanka in Packiyanathan v. Singarajah [1991] 2 Sri LR 205, held: “where the default has resulted from the negligence of the Attorney-at-Law in which event the principle is that the negligence of the Attorney-at-Law is the negligence of the client and the client must suffer for it.” The High Court of Kenya in Rupa Savings & Credit Cooperative Society V Violet Shidogo [2022] eKLR held: “I wish to restate that enlargement of time is a matter of judicial discretion which is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice.” The Supreme Court of the Philippines in Pedro G. Resurreccion, Joseph Cometa and Criseforo Litera To, JR., V People of the Philippines G. R. No. 192866 July 9, 2014 stated: “Negligence of the Counsel de Parte Binds the Petitioners. Nothing is more settled than the rule that the negligence and mistakes of the counsel are binding on the client. The rationale behind this rule is that a counsel, once retained, is said to have the authority, albeit impliedly, to do all acts necessary or, at least, incidental to the prosecution of the case in behalf of his client, such that any act or omission by counsel within the scope of his authority is treated by law as the act or omission of the client himself. It is only in cases involving gross or palpable negligence of the counsel, or when the application of the general rule amounts to an outright deprivation of one's property or liberty through technicality, or where the interests of justice so require, when relief is accorded to a client who has suffered thereby.” See also Florencio G. Bernardo V The Hon. Special Sixth Division of the Court of Appeals and Jimmy Tomas, G. R. No. 106153 July 14, 1997, People V Salido et al, G. R. No. 116208, July 5, 1996 and Tesoro vs. Court of Appeals, 54 SCRA 296, 304 [1993]. 50. This is a clear case of fault on the part of the Appellant or his Counsel, even if they genuinely believed that they had a grievance against the judgment of the Court of Appeal in Jean-Charles & Anor V The Republic (SCA CR 10 of 2022. If the fault was on the part of the Appellant’s Counsel, then the Appellant is bound by his fault as stated at paragraph 48 above. ON THE ISSUE OF THE ALLEGED CONTRAVENTION OF ARTICLE 19(2)(h) OF THE CONSTITUTION 51. Although what has been stated above suffices to dispose of this appeal in accordance with the specified time limit in rule 18 of the Court of Appeal of Seychelles Rules as explained in Vijay Construction (Pty) Ltd v Eastern European Engineering Ltd (EEEL) referred to at paragraph 44 above, namely the failure of the Appellant to seek a review of the Court of Appeal judgment in the case of Sindu Cliff Parekh v R SCCA 10 of 2022, if he thought it necessary, within 30 days of 26th April 2023; I have decided to briefly show the absurdity or the frivolousness of the Appellant’s argument, that article 19(2)(h) of the Constitution has been contravened in relation to him by the Justices of Appeal who heard his appeal. This will also show that the Appellant’s conduct and that of his Counsel clearly amounts to an abuse of process. 52. The Appellant had correctly averred in his affidavit filed in support of his petition before the Constitutional Court that: “the Justices of Appeal held that the Petitioner (now Appellant) was in the same position as an accused person who had elected to give evidence or make a dock statement – i.e. an accused person who had waived his right to remain silent during the course of the trial – due to the Petitioner (now Appellant) not objecting, during the trial, to the prosecution producing two statements made by the Petitioner (now Appellant) to the police during the course of the investigation relating to the offence.” The Appellant had admitted in his affidavit at paragraph 11.6, the fact that he had waived his right to silence during the course of the investigation, by providing two witness statements to the police. Thus the only matter that was contested in the Constitutional Petition was that the Court of Appeal erred when it determined that the Appellant had also waived his right to silence at the trial by not objecting to the said two statements being produced by the Prosecution at the trial and drawing an adverse inference pertaining to his guilt based on his failure to provide an explanation in relation to the evidence against him. There was no challenge to the evidence as the Appellant in his Skeleton Heads of Argument at 4.27 had stated that he “was not challenging the factual findings of the Court of Appeal”. 53. In order to understand whether there is any merit in the Appellant’s argument that article 19(2)(h) of the Constitution has been contravened in relation to him, it is necessary to quote from the judgment of the Court of Appeal in SCCA 10 of 2022, [reported in www.seylii.org as - (Jean-Charles & Anor V The Republic (SCA CR 10 of 2022; SCA CR 13 of 2022)[2023]SCCA 26 (26 April 2023)]. The reference to 2A in the said judgment is to the Appellant in this case. 50. “I state below the two statements made by 2A to the Police, which had been produced by the Prosecution as P164 and P165, without objection from the defence. There had been no complaint that the Constitutional rights of 2A enshrined in article 18(3) of the Constitution had been violated. Article 18(3) of the Constitution reads as follows: “A person who is arrested or detained has a right to be informed at the time of the arrest or detention or as soon as is reasonably practicable thereafter in, as far as is practicable, a language that the person understands of the reason for the arrest or detention, a right to remain silent, a right to be defended by a legal practitioner of the person’s choice and, in the case of a minor, a right to communicate with the parent or guardian.” This shows that 2A had waived or opted not to exercise his right to remain silent, both at the investigation stage and at the trial stage. At the investigation stage 2A had not said that he wants to remain silent or that he does not want to talk to the Police. The line of questioning by the police in both P 164 and P 165 shows that there had been no intimidation, coercion or deception. The questions have been very simple and a general inquiry on certain matters and it is clear from P 165 that 2A had freely and voluntarily spoken and explained in detail what was asked from him. 2A had not been challenged by the Police on any of the answers he had given both in P 164 and P 165. There is nothing on record to show nor there is any contention that 2A had not understood his Constitutional right to remain silent, both at the time of making a statement and at the trial. Thus it can be inferred that 2A had knowingly and voluntarily waived his right to remain silent and this is further confirmed by 2A not having objected to the production of P 164 and P 165. 62. I am conscious of the fact that according to the Constitution of the Republic of Seychelles, 2A was not be compelled to testify at the trial nor could any adverse inference drawn from the exercise of the right to silence, but where there was incriminating evidence against him, which he alone could have explained, and his failure to come up with an explanation at the trial, in my view, will undoubtedly have a bearing in determining his guilt. It is to be noted that 2A by agreeing to place his two statements, namely P 164 and P 165 as part of the prosecution case, without objection has opted, not to exercise his right to silence at the trial. He has thus jumped into the prosecution arena where the duty was solely on the prosecution to prove its case and thus had to remove himself, by explaining his lies in P 164 and P 165 and his other conduct… 63. I am of the view that there is a difference between the right ‘not to be compelled to testify at the trial or confess guilt’ guaranteed in article 18(2)(g) of the Constitution and the right ‘not to have any adverse inference drawn from the exercise of the right to silence either during the course of the investigation or at the trial’ guaranteed in article 18(2)(h) of the Constitution. To compel an accused to testify at the trial or confess guilt would certainly and directly breach the right of an accused to remain silent and the right to be treated as innocent until the person is proved or has pleaded guilty, whereas drawing any adverse inference from the exercise of the right to silence in a case where there has been compelling and incriminating evidence against an accused, which he only could explain but fails to do so, would only indirectly affect the right as it will be entirely at the discretion of the accused to act as he chooses. Here the accused is not required to confess guilt but to rebut a presumption of guilt that human reason and common sense demands. It is an opportunity to exculpate himself and not to inculpate himself and hence is not a violation of the right to be treated as innocent. In R. v. Noble, [1997] 1 S. C. R. 874 Lamer CJ of the Supreme Court of Canada stated: “When the Crown presents a case that implicates the accused in a strong and cogent network of inculpatory facts, the trier of fact is entitled to consider the accused’s failure to testify in deciding whether it is in fact satisfied of his or her guilt beyond a reasonable doubt. Under the right circumstances, silence can be probative and form the basis for natural, reasonable and fair inferences. There are certain situations where the web of inculpation fashioned by the Crown requires the accused to account for unexplained circumstances or face the probative consequences of silence.” In Noble McLachlin J. said: “To say that an inference has been drawn from the accused’s failure to testify is only to say that the Crown’s evidence stands unchallenged. This does not violate the accused’s right to silence or presumption of innocence.” 65. The necessity to give a satisfactory account to avoid conviction is thus seen as a practical impetus created by the circumstances of the particular case and not one called for by the law. What would be the position where an accused person elects to give evidence and refuses, fails or is unable to answer a question put to him by a skilful prosecutor which would clearly show his guilt? What would be the position where a dock statement made by an accused person, tends to incriminate him, or is so unbelievable that no reasonable court will be prepared to act on it? Can it be said that even in such situations no adverse inference can be drawn? Would we also not then be discriminating against a person who elects to give evidence or make a dock statement and one who chooses to exercise his right to silence by not testifying at the trial or by not making a dock statement? Can there be three different standards to the drawing of inferences in the said situations. It will also amount to mental gymnastics for a jury not to draw adverse inference in such circumstances. It is also to be noted as stated earlier, that 2A by agreeing to place his two statements, namely P 164 and P 165 as part of the prosecution case, without objection and has thus opted not to exercise his right to silence at the trial. He is thus in the same position of an accused person who elects to give evidence or make a dock statement as referred to above. In the case of John Murray V United Kingdom (1996) 22 EHRR 29, No 18731/91, the European Court of Human Rights stated that a conviction based exclusively or primarily on the suspects refusal to respond to police queries would be incompatible with the right to remain silent. It acknowledged, however, that inferences can be made “in instances which obviously demand for an explanation” and that they may be applied to evaluate the weight or persuasiveness of the prosecution’s case…” However, this would apply only where a prima facie case has already been established by the prosecution. In this case 2A alone could have explained his denial of knowing the deceased at P 164 and P 165, until he was questioned about Helena. It is 2A alone that could have explained why he was on a witch hunt for the deceased on a rather innocuous matter and the frequency of the series of phone calls between him and 1A, as set out in detail at paragraph 32 above, (namely 6 calls on the 8 September, 4 calls on 9 September, 1 call on 10 September, 3 calls on 11 September) and especially the ones by 1A to 2A at 11.51 and 11.52am, after the killing of the deceased. This is similar to an accused deciding to exercise his right to silence and failing to explain his finger prints or DNA found at the scene of a crime or his presence at the scene of crime shortly before or after a murder. I am of the view that in view of our constitutional safeguard, an accused is not required to explain anything until the case has been proved against him by the prosecution, but where such proof has been given and the nature of the case is such as to warrant an explanation which only the accused can give, can human reason and common sense do otherwise, than adopt the conclusion to which proof tends, when an explanation is not forthcoming. This is based on Jeremy Bentham’s ‘common sense’ defence of the right to voice one’s mind: “Innocence claims the right to speak, and guilt invokes the privilege to silence.” An accused’s right not to have an adverse inference drawn from his exercise of the right to silence, needs to be balanced as against what human reason and common sense demands. 66. … In this case it is only 2A who could have explained why he had lied to the police at first that he did not know anything about the deceased, when in fact he is the one who was desperate to find the deceased and also what were those calls he received from 1A, after the killing of the deceased. They certainly were additional facts which were peculiarly within the knowledge of 2A, and no one else, could have explained or contradicted the inference that it was him who counselled 1A to kill the deceased. 68. In Osman and Another v Attorney-General, Transvaal, (CCT37/97) [1998] ZACC 14; 1998 (4) SA 1224; 1998 (11) BCLR 1362 (23 September 1998) Madala J of the Constitutional Court of South Africa said: “Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice…” 69. Similarly, in S v Sidziya and Others, 1995 (12) BCLR 1626, the court effectively held that the constitutional right to silence does not preclude the presiding officer from considering as part of the overall assessment of the case, the accused’s silence in the face of a prima facie case established by the prosecution. As was so aptly put by Naidu AJ in Sidziya: “The right entrenched in section 25(3)(c) means no more than that an accused person has a right of election whether or not to say anything during the plea proceedings or during the stage when he may testify in his defence. The exercise of this right like the exercise of any other must involve the appreciation of the risks, which may confront any person who has to make an election. Inasmuch as skilful cross- examination could present obvious dangers to an accused should he elect to testify, there is no sound basis for reasoning that, if he elects to remain silent, no inferences can be drawn against him.” 70. This issue was also dealt with by the Botswana Court of Appeal in Attorney General v Moagi. 1981 Botswana LR 1. The court there had to interpret the meaning of section 10(7) of the Botswana Constitution which provides that “[n]o person who is tried for a criminal offence shall be compelled to give evidence at the trial.” Maisels JP, delivering the majority judgment, held that where the prosecution had established a prima facie case: “[u]nless the accused’s silence is reasonably explicable on other grounds, it may point to his guilt.” 71. In the case of The Attorney General V Potta Nauffer and Others, (2007) 2 SLR 144, a five bench judgment of the Supreme Court of Sri Lanka stated: “The Ellenborough dictum contained in Lord Cochraine’s case and as adopted and developed by courts today provides that “No person accused of a crime is bound to offer any explanation of his conduct or circumstances of suspicion which attach to him; but nevertheless if he refuses to do so where a strong prima facie case has been made out, and when it is in his power to offer evidence, if such exist in explanation of suspicious appearance which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or adduced would operate adversely to his interest.” 54. Article 19(2)(h), referred to at paragraph 5 above is undoubtedly a qualified right. The protection under that right is only available to an accused who has exercised his right to silence either during the course of the investigation or at the trial, but not to an accused who has waived his right to silence by voluntarily making a statement/s to the police during the course of the investigation and who had not objected to the said two statements been produced by the Prosecution as evidence against the him/her at the trial; whether you interpret the two stages set out in 19(2)(h) as conjunctive and or disjunctive. By not objecting to a statement, by successfully retracting or repudiating it when sought to be produced by the Prosecution, the accused keeps the statement alive even at the trial. It is as if he puts forward a written statement in court, to be relied upon. In the judgment of the Court of Appeal in SCCA 10 of 2022 it was stated: of rights advised “51. In the US case of Berghuis v. Thompkins, 560 U. S. 370 (2010), the defendant Thompkins was compliance his with Miranda v. Arizona, 384 U. S. 436, which sets out conditions similar to article 18(3) of the Constitution. Thompkins was convicted of first degree murder, partly on the basis of the statement he made. In that case, unlike this case, Thompkins had moved at his trial before the Trial Court, to suppress the statements made during the interrogation. He argued that he had invoked his Fifth Amendment right to remain silent. According to the Trial Court the evidence in the case showed that at no point did Thompkins say that he wanted full in to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ His appeal to the Michigan Court of Appeals was rejected on the same basis. The United States Court of Appeal for the Eastern District of Michigan, also denied his subsequent habeas corpus request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and the Michigan Court of Appeals was not therefore unreasonable. However, the United States Court of Appeals for the Sixth Circuit while acknowledging that a waiver of the right to remain silent is possible and need not be expressed, as it can be “inferred from the actions and words of the person interrogated, reversed, the ruling of the Court of Appeal for the Eastern District of Michigan, purely on the basis that the established facts in that case did not disclose an implied waiver. the decision of 52. In the case of North Carolina v. Butler, 441 U. S. 369, 373 (1979), the Court of Appeals acknowledged that a waiver of the right to remain silent need not be expressed, as it can be “inferred from the actions and words of the person interrogated.” The prosecution therefore does not need to show that a waiver of Miranda rights was expressed. An “implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into evidence. It was held as a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acting in a manner inconsistent with their exercise, has made a deliberate choice to relinquish the protection those rights afforded.” 55. The Prosecution had also produced evidence to prove that the said two statements were lies and it amounted to corroboration of the prosecution case on the principle enunciated in the case of R V Lucas (1981) QB 720 Lord Lane CJ and followed in the Supreme Court of New South Wales case of R V Heydie NSWLR 1990 (20) and the Singaporean case of in PP v Yeo Choon Poh [1994] 2 SLR 867. At paragraph 55 of the judgment it is set out how the two statements were proved to be lies. The reference to 2A therein is a reference to the Appellant in this case: “55… It is clear that 2A had clearly tried to deny any knowledge of the deceased in his first statement, which obviously has to be taken as false when one considers his second statement. In it 2A had admitted that his girlfriend Helena had spoken about the deceased to him in early September as she was concerned about him. 2A had said that he had even searched for the deceased on Google. He had thereafter told 1A to look for the deceased and even texted 1A the name of Berney Appasamy and continued to make inquiries about the deceased. It is clear that 2A had been compelled to admit his knowledge of the deceased, which he earlier tried to deny, in view of the questioning of him by the Police about Helena Simms. What Helena testified in Court about the deceased is confirmed by 2A, but there is a big difference between the two versions. According to Helena the deceased had asked her for SR 500.00 only once and she had given that to him without any qualms. Whereas according to 2A the deceased had gone to the office of Helena several times asking for money. According 2A his relationship with 1A was that they will meet occasionally and chat mostly about fishing and life. 2A had also said that he and 1A also communicated on the phone. There has been no mention about the regularity of phone calls, between 2A and 1A from the 8th of September to the 15th of September 2021 and especially the two calls 2A received from 1A on the 11th of September at 11.51 and 11.52 AM which was about 1-2 hours after the killing of the deceased by 1A, according to the evidence of TM.” 56. What worsens the Appellant’s position is that the issue pertaining article 19(2)(h) “was a live issue before the Court of Appeal and arguments were raised before the said court”, according to the Appellant’s Skeleton Heads of Argument at paragraph 4.11. Appellant further states at paragraph 4.11: “After hearing the arguments, the Justices of Appeal made the determination to draw, and drew, adverse inferences from the Appellant’s exercise of his right to remain silent at the trial, and thereby contravened article 19(2)(h) in relation to the Appellant”. That being the case, all that the Appellant is now doing is, as correctly stated by the Respondent trying to have a second bite at the cherry or reargue the same matter before a differently constituted bench. 57. It was indeed a futile attempt by the Appellant’s Counsel at paragraph 4.13 of his Skeleton Heads of Argument, to draw a similarity between articles 15(2) and 16 of the Constitution and article 19(2)(h) in support of his argument that it is the Constitutional Court that has the jurisdiction to hear and determine a contravention of 15(2) and 16, if the Court of Appeal was to contravene the said articles in passing sentence. Article 15(2) states: “a law shall not provide for a sentence of death to be imposed by any court” and article 16 states “every person has a right not to be subjected to torture”. Articles 15(2) and 16 are undoubtedly unqualified, unlike article 19(2)(h) which is a qualified right as stated at paragraph 54 earlier. There is no doubt that a judgment of Court of Appeal given in contravention of articles 15(2) and 16 will be per incuriam, which the Court of Appeal itself can correct. In the often cited case of Young v Bristol Aeroplane Company Limited, [1944] 1 KB 718, Court of Appeal; 1944 2 AER 293 it was stated: “the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.” The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379 stated: “that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.” GROUND (iv) OF APPEAL – TRANSFER OF THE APPLICATION TO THE COURT OF APPEAL BY THE CONSTITUIONAL COURT 58. Ground (iv) of appeal has no merit as there is no provision for the constitutional Court to transfer a case to the Court of Appeal. Further, this ground is somewhat contradictory to grounds (1) to (iii), despite having stated that it is “in the alternative”. It appears in my view to be an acceptance that the Court of Appeal was the proper forum to determine the issue raised by the Appellant in the constitutional petition, in view of the words “they erred in law by dismissing the petition instead of transferring the constitutional application to the Court of Appeal.” The Appellant in support of ground 4 of his appeal has relied on article 46(4) of the Constitution, which reads as follows: “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.” Article 46(1) referred to in 46(4) reads as follows: “A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress.” It is my view that article 46(4) has application when adequate means of redress is available in the Supreme Court for instance by way of an award of damages for a delictual claim in a civil suit such as unlawful arrest or wounding or for any other wrongful conduct by way of the issuance of a writ under article 125(c), despite the fact that the alleged act also amounts to a contravention of the Constitution. This is clear from the words “any other court” and “under any other law”. The words “any other court” is a reference to the Supreme Court or in limited instances to the Magistrates court, which has original jurisdiction in such matters. It certainly cannot be a reference to the Court of Appeal, because the Constitutional Court cannot make orders transferring cases to the Court of Appeal, which is hierarchically higher to it as stated at paragraph 33 above. Also, because the Court of Appeal has only an appellate jurisdiction, except in situations when exercising its appellate jurisdiction, where it also has original jurisdiction and that is only when there is an appeal from the Supreme Court or the Constitutional Court as set out in article 120(3) of the Constitution. Surely, a reference to ‘any other law’ in 46(4) cannot mean the Constitution. This is because hearing the appeal in Parekh v The Republic (CP 5 of 2021), on the ground of apparent or apprehended bias. 3. The appeal presently before this Court arises from a judgment of the Constitutional Court which dismissed the Appellant’s petition on a point of law. 4. The basis of the recusal application is that Justice Fernando and I previously sat on the Appellant’s criminal appeal in Jean-Charles & Anor v The Republic (SCA CR 10 & 13 of 2022), where we upheld his conviction for aiding and abetting murder. The Appellant contends that his constitutional petition alleged a violation of Article 19 (2) (h) of the Constitution, claiming that Justice Fernando, Justice Robinson, and I drew an adverse inference from his decision to remain silent during the criminal trial. 5. The Appellant is of the opinion that although the current appeal arises from a point of law decided by the Supreme Court, it remains linked to the alleged violation of his constitutional right, which formed the basis of his petition. Submissions of the parties Appellant’s submissions 6. The Appellant’s Counsel, Basil Hoareau, has filed the Appellant’s written submissions dated 16 July 2025. He submits that Justice Fernando and I should recuse ourselves from hearing the present constitutional appeal on the ground of apparent or apprehended bias. 7. The Appellant contends that the constitutional petition underlying this appeal was based on the alleged violation of his constitutional right under Article 19 (2) (h) not to have an adverse inference drawn from his silence during his criminal trial. He argues that this alleged violation was committed by the same Justices now assigned to hear the appeal, along with Justice Robinson, in the prior criminal appeal (SCA 10 & 13 of 2022), in which his conviction was upheld. 8. The Appellant emphasizes that although the present appeal arises from the dismissal of his constitutional petition on a point of law, the factual basis of that petition is inseparable from the conduct of the very judges now presiding over this matter. He submits that this gives rise to a reasonable apprehension of bias, as the Justices would effectively be adjudicating upon a matter that implicates their own prior conduct. 9. In support of his application, the Appellant relies on the objective test for apparent bias as formulated in Porter v Magill and adopted by the Seychelles courts, namely whether a fair- minded and informed observer, having considered all the facts, would conclude that there is a real possibility that the tribunal is biased. He further relies on the cases of AWG Group Ltd v Morrison [2006] 1 WLR 1163, Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 and R v S (RD) [1997] 3 SCR 484. 10. The Appellant submits that the issue of bias is compounded by an email sent by the Assistant Registrar of the Court of Appeal, which in his view prematurely concluded that his appeal is time-barred and that the Court of Appeal is the proper forum to determine the constitutional issues raised. He argues that this communication conveys a prior determination of critical issues before the matter has been heard. 11. The Appellant further submits that the procedure for handling recusal applications against Justices of Appeal should follow the same approach adopted by the Court for judges of the Supreme Court. He notes that other jurisdictions have developed judicial conduct protocols, such as the Guide to Judicial Conduct by the Council of Chief Justices of Australia, to assist with such matters. He further submits that the Recusal Guidelines already established by this Court should guide the determination of the present application. Respondent’s submissions 12. The Respondent has filed its submissions dated 24 July 2025 vide its State Counsel, Ms. Corrine Rose. The Respondent opposes the application for recusal, arguing that it fails to meet the legal threshold for establishing apparent or apprehended bias. It is submitted that the Appellant has not demonstrated any real possibility of bias that would lead a fair- minded and informed observer to conclude that Justice Fernando and I are incapable of adjudicating the appeal impartially. 13. The Respondent relies on the test for apparent bias as affirmed in Government of Seychelles & Anor v Seychelles National Party & Ors SCA 04 & 03/2014 and further submits that the test is objective and does not depend on the subjective perception of a party. 14. The Respondent submits that there is a strong presumption of judicial impartiality, which can only be rebutted by cogent evidence, something the Appellant has failed to produce. Judges are bound by their constitutional oath to act impartially and with integrity, and mere prior judicial involvement in a matter concerning the same party does not amount to bias unless it can be shown that the judge has prejudged the current case or has a personal interest, even where an adverse determination is made. 15. It is further submitted that the appeal now before the Court arises from a constitutional petition that was dismissed on a point of law, and that the Justices of Appeal are not being asked to determine the merits of the original criminal appeal nor are they being called upon to revisit their findings. They are adjudicating on whether the Constitutional Court erred in dismissing the petition. 16. The Respondent submits that the Constitutional Court’s ruling was made solely on a point of law concerning whether the Appellant was entitled to bring the petition before that court. No findings were made on whether the Appellate Judges violated the Appellant’s constitutional rights. The Respondent argues that the Justices of Appeal are therefore competent to determine whether the Constitutional Court erred in its legal reasoning, as the appeal concerns jurisdiction only not the merits of the alleged rights violation. Moreover, the Appellant’s grounds of appeal challenge only points of law and do not address the merits of the constitutional petition. 17. The Respondent refutes the Appellant’s reliance on an email from the Assistant Registrar, asserting that it was an administrative communication referring to relevant rules and case law, and does not amount to a judicial determination or evidence of prejudgment. 18. The Respondent concludes that the Appellant has not alleged any personal interest, improper conduct, or extraneous influence on the part of the Justices, and therefore no valid ground for recusal has been made out. The recusal application lacks merit, as no evidence has been presented to show a real possibility of bias. While the appearance of justice is important, it cannot justify recusal based on mere speculation or a judge’s past judicial role carried out properly. Analysis 19. The issue is whether my prior involvement in upholding the Appellant’s conviction in a previous appeal gives rise to a reasonable apprehension of bias in the present appeal, which concerns the Constitutional Court’s dismissal of his petition on a point of law. 20. I will first start by stating that the duty of a judge to sit and determine matters assigned to them is an essential aspect of judicial independence and impartiality. This duty stems from the judicial oath and reflects the presumption that judges are capable of setting aside personal views to decide cases fairly and objectively. Recusal should therefore not be invoked lightly or as a strategic tool to forum-shop or delay proceedings. Without clear and lawful grounds for disqualification, judges must discharge their duty to sit, lest the administration of justice be compromised by speculative or self-serving claims of bias.1 1 Petition No. 34 of 2014 - Gladys Boss Shollei vs Judicial Service Commission & another 21. In Laura Valabhji v Republic (SCA 8/2022), Andre JA acknowledged the dual duty of a judge, being the obligation to hear matters assigned, and the duty to remain impartial, stating that recusal is warranted if the objective test is met. “Faced with a recusal application, the judge must weigh up two requirements, namely the duty to hear every case assigned and the duty to apply the law impartially, without fear, favour or prejudice. These two requirements place emphasis on the integrity and impartiality of a judge in adjudication. The requirements for a recusal application have been formulated and restated by several authorities in Seychelles. These requirements are based on the principle that judges are charged with the duty of impartiality in administering justice and must discharge such duty without fear or favour. Yet in some instances, a judge may be required to recuse themselves if the test for recusal is met.” The Recusal Guidelines 22. The Seychelles Court of Appeal, in Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee [2014] SCCA 33, laid down the authoritative Recusal Guidelines. These govern how recusal applications are to be made, evaluated, and determined within Seychelles' judicial system. 23. The Court of Appeal reaffirmed and elaborated these principles most recently in The Seychelles Human Rights Commission v Speaker of the National Assembly (2024), emphasizing that: a) The test for recusal involves both actual bias and apparent bias. b) Judges must not be the ultimate arbiters of their own recusal. c) Where the judge whose recusal is sought is directly involved, the administrative function of assigning a recusal judge passes to the Chief Justice or, where necessary, to the next senior judge. 24. However, it should be noted that these Guidelines are structured primarily around recusal applications made within the Supreme Court or Constitutional Court where the Chief Justice administratively oversees the management of recusals, or the most senior Judge thereafter. 25. The Court of Appeal stands as the apex court under Article 120 of the Constitution. There is no administrative superior above its Justices. The Chief Justice (who is head of the Supreme Court under Article 125) does not administratively supervise the Court of Appeal. 26. Therefore, the Recusal Guidelines cannot operate mechanically for the Court of Appeal because the Chief Justice has no jurisdiction to administer recusal assignments for the Court of Appeal. 27. Despite the Recusal Guidelines being ill-adapted structurally for the Court of Appeal, the substantive principles on bias (actual bias, apparent bias, nemo judex in sua causa) still fully apply. In other words: a) The procedure for recusal is more limited in formal steps (no reference to Chief Justice, no administrative reassignment), but b) The substantive law of bias applies identically. 28. This Court has indeed previously held in The Seychelles Human Rights Commission and Others v The Speaker of the National Assembly of Seychelles and Others (SCA CL 04/2023) [2024] (Arising in CP 07/2022) that: “these Guidelines have to be used with imagination rather than dogmatically” Actual Bias vs Apparent Bias 29. Deane J. in his dissent in the Australian case of Webb v. The Queen. [1994] 181 CLR 41 identified four areas of conflict of interest, bias or prejudice that may lead to disqualification and recusal of a judge, namely: (a) disqualification by interest, where some direct or indirect interest in the proceedings, pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment; (b) disqualification by conduct which consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias including published statements; (c) disqualification by association consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and (d) disqualification by extraneous information which consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. 30. The first category of disqualification identified by Deane J. results in actual bias, while the rest of the disqualifications result in apparent bias. The test for recusal differs between the two types of bias. In the case of actual bias, disqualification and recusal is automatic, without there being any "question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case” as stated by Lord Goff in the English case of R. v. Gough (1993) 2 All E. R. 724. 31. In the case of apparent bias, the perception of impartiality is measured by the standard of a reasonable observer, and the English House of Lords in Magill v. Porter (2002) 2 AC 357, stated that the test for recusal is whether “a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.” 32. This test has been adopted by the Seychelles Courts. In the case of Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee , the Court of Appeal approved the test to be applied in cases of apparent bias as stated in Magill v Porter.2 It stated: “[22] … Considering the source of the legal system we have borrowed, the democratic structure of our political system and our Constitution, it would make sense to adopt the English test formulated in Magill v Porter [2002] 2 AC 357. In this case, the House of Lords rang out the old to ring in the new. The old one was the Gough test: that is whether, having regard to all the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard, or have regarded, with favour or disfavour, the case of a party to the issue under consideration by him: see [1993] AC 646]. [23] The new test was formulated by the House of Lords after adding a couple of more elements into the test arrived at by the Court of Appeal in Re Medicaments (No. 2) [2001] 1 WLR 700 which was: “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. [24] The new test, therefore, is - “having ascertained all the circumstances bearing on the suggestion that the Judge was (or could be) biased, the court must itself decide ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.” 33. This is consistent with international common law standards, including the Canadian test (Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369) and Australian jurisprudence (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). In the Canadian case, it was held that: 2 See The Seychelles Human Rights Commission and Others v The Speaker of the National Assembly of Seychelles and Others (SCA CL 04/2023) [2024] ((Arising in CP 07/2022) (3 May 2024)) [2024] SCCA 14 (3 May 2024). “[t]he apprehension of bias must be a reasonable one, held by reasonable and right- minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” 34. This approach underscores that the test for bias is objective and context-specific, focusing not on the subjective intentions of the decision-maker, but rather on whether an informed and reasonable observer would apprehend a real likelihood of unfairness. Application to the present case 35. The Court notes that the Appellant's earlier criminal appeal in Jean-Charles & Anor v The Republic (SCA CR 10 of 2022; SCA CR 13 of 2022) [2023] SCCA 6 (26 April 2023) raised entirely different issues from those now before the Court in this constitutional appeal. 36. In the 2023 criminal appeal, the issues raised were primarily directed at the trial process and verdict delivered by the jury. The Appellant, Parekh, argued that: a) the charges lacked sufficient particulars; b) the use of a jury trial instead of a bench trial violated his constitutional rights under Articles 125 and 19 of the Constitution; c) there was inadequate direction to the jury regarding the offence of counselling and procuring; and d) the verdict was unreasonable and unsupported by the evidence. 37. Thus, the prior criminal appeal was concerned with the correctness of the jury trial and the substantive criminal liability for murder counselling, involving detailed evaluation of evidentiary matters such as telephone call records, witness testimony (particularly that of Terry Marie), and forensic analysis of events leading up to the killing. 38. In contrast, the present matter before the Court concerns an appeal from the dismissal of the Appellant's constitutional petition (Parekh v The Republic (CP 5 of 2021) [2022] SCCC 2) on a point of law. That petition did not challenge the murder conviction itself, but raised distinct constitutional questions, namely: a) the alleged violation of the right to fair disclosure of evidence under Article 19 of the Constitution; b) the alleged unconstitutionality of section 179 of the Criminal Procedure Code; and c) whether the prosecution’s delay in disclosing the police docket violated due process rights. 39. Accordingly, the constitutional appeal engages different legal issues of constitutional compliance and procedural fairness that were neither directly nor substantially addressed in the earlier criminal appeal. The constitutional questions involve legal interpretation of procedural rights, the doctrine of abuse of process, and prosecutorial disclosure obligations, none of which required or involved factual reconsideration of the underlying events of the murder, or the guilt of the Appellant. 40. While the Appellant contends that the constitutional petition was premised on an alleged violation of his right to remain silent, specifically by Justices Fernando, Robinson and myself, it must be emphasized that the Constitutional Court dismissed the petition on a point of law. The matter currently before this Court is not an appeal on the merits of that alleged constitutional violation, but an appeal against the Constitutional Court’s decision to dismiss the petition on a point of law. It does not concern whether the alleged violation occurred. No adverse findings were made by the Constitutional Court on the factual allegations now raised as a basis for recusal, and this Court is not being called upon to review them at this stage. 41. In Locabail (UK) Ltd vs Bayfield (2000) QB 451, Lord Bingham of Cornhill stated as follows: "…. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case." 42. The Court in The Seychelles Human Rights Commission and Others v The Speaker of the National Assembly of Seychelles and Others (SCA CL 04/2023) [2024] ((Arising in CP 07/2022) (3 May 2024)) [2024] SCCA 14 (3 May 2024) stated as follows: “The general principle is that merely because a Judge has previously delivered a ruling or dealt with other aspects of the litigation in respect of which the application for recusal is made, or that the Judge has previously (whether in the same case or another case) found the evidence of one of the parties or a witness to be unreliable, is not by itself sufficient to give rise to apparent bias on the part of that Judge.” 43. Applying the test for apprehended bias on the facts of this case, and in light of the jurisprudence cited above, I find that the Applicant has not demonstrated that the circumstances of this case would lead a fair-minded and informed observer to conclude that there exists a real possibility of bias on my part. There is no evidence which would reasonably call into question my impartiality as a Court of Appeal Justice. 44. The Appellant has not demonstrated that I have prejudged or made adverse findings specifically bearing on the constitutional questions now before this Court. The mere fact that certain members may have presided over prior criminal or interlocutory hearings involving the Appellant does not suffice to create apparent bias. The Doctrine of Necessity 45. I find it appropriate to briefly address the doctrine of necessity in light of Seychelles Human Rights Commission & Ors v Speaker of the National Assembly & Ors (MA 230 of 2022). 46. The Court of Appeal held that where the legal test for actual or apprehended bias is satisfied, a judge must recuse themselves from the matter regardless of practical inconvenience or judicial scarcity. Referring to Morrison v AWG Group Ltd, the Court emphasized that fairness and impartiality are paramount in the administration of justice, and cannot be compromised for the sake of efficiency. 47. The doctrine of necessity was discussed as a limited exception to the rule against judging in one’s own cause. It can only apply where no alternative forum is available and its application does not lead to substantial injustice. Importantly, the Court of Appeal highlighted three limitations to the doctrine: a) It cannot justify outcomes that result in substantial injustice. b) It applies only to the extent strictly necessary. c) It cannot be invoked when a judge’s disqualification results from their own voluntary acts. 48. On this basis, the Court concluded that: “In the event that all the Judges of the Constitutional Court were involved in the preparation of the Tenth Amendment where the Constitution does not recognise any such role, such voluntary act cannot be then used to apply the doctrine of necessity. The doctrine of necessity, which is aimed at preventing a failure of justice, is in that situation converted into a self-serving construct.” 49. Moreover, it was stated that the Constitution provides a mechanism for the appointment of acting or ad hoc judges, showing that there is an alternative and no need to rely on the doctrine of necessity. Accordingly, the Court of Appeal found that the Constitutional Court erred in applying the doctrine of necessity in this instance, and its decision to proceed with the matter despite the recusal grounds was unjustified. 50. I am satisfied that the doctrine of necessity does not arise for consideration in this matter. Consequently, the determination of this recusal application must fall solely on the legal test of actual or apprehended bias, without recourse to necessity. 51. The issue of the Appellant’s reliance on the email communication from the Deputy Registrar, suggesting that it indicates prior determination of the Court is wholly misconceived. The email in question constitutes routine administrative correspondence and does not in any way purport to determine the admissibility or merits of the appeal. It neither originates from the bench nor conveys any judicial decision. 52. It should be noted that the acts of administrative staff cannot be imputed to the Justices or construed as pre-empting judicial deliberation. A fair minded and informed observer would not reasonably conclude that such an email constitutes evidence of bias or prejudgment by the Court. 53. In any event, the Appellant has been afforded the opportunity to be heard on the issue of time limitation. This not only upholds his right to a fair hearing but also underscores the Court’s impartiality and its steadfast commitment to integrity in the adjudication process. Conclusion 54. I have carefully considered the submissions of both parties and the applicable legal principles. I find that the Appellant has failed to establish any reasonable apprehension of bias that would warrant recusal. The issues presently before this Court concern pure legal questions arising from the Constitutional Court’s decision to dismiss the Appellant’s petition on a point of law and does not concern the merits of the allegations in the constitutional petition. These issues are further entirely separate and unrelated to the factual and substantive matters previously considered in the Appellant’s criminal appeal. 55. There is no evidence of personal interest, prejudgment, or improper conduct on my part as a Court of Appeal Justice. The presumption of judicial impartiality remains intact. Accordingly, the application for recusal is without merit and is hereby dismissed. 51