Valabhji v Republic & Ors (MA 134 of 2024 (Arising in CP 09 of 2022)) [2024] SCCC 6 (27 November 2024)

CONSTITUTIONAL COURT OF SEYCHELLES Tnthe matter between: MUKESH VALABHJI (rep. by Samantha Aglae/ France Bonte) and THE REPUBLIC MR. W AVEL RAMKALA WAN MR. AHMED AFIF MR. ROGER MANCIENNE THE ATTORNEY GENERAL THE ATTORNEY GENERAL (rep. by Vinsent Perera - Attorney General/Ria Alcindor) THE ANTI-CORRUPTION (rep. by Nelson/Skelley/Mosley) COMMISSION THE DEFENCE FORCES OF SEYCHELLES (rep. by Vinsent Perera - Attorney General/Ria Alcindor) Reportable MA 134/2024 (Arising in CP 09/2022) Applica nt/Petitioner 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent Neutral Citation: M Valabhji v The Republic & Ors (MA 134/2024) (27 November 2024) Before: Summary: Delivered: Burhan J (Presiding), Adeline and Esparon JJ Application for stay of proceedings 27 November 2024 Application for stay of proceedings in the hearing of the main Petition CP 09/2022 is dismissed. ORDER RULING BURHAN J - (Adeline J and Esparon J concurring) [1] The Applicant/Petitioner in this case initially filed an application MA 205 of 2023 seeking a stay of proceedings in the hearing of this petition CP 09/2022, pending the determination of the Trial Judge on the notice of motion to amend the existing charge sheet in CR 114/2021 which was the subject matter of the Constitutional challenge. It was the contention of the Applicant that should the motion to amend the charge sheet succeed in CR 114/2021 necessary amendments will be required to be made to this Constitutional Petition. [2] On the 21 November 2023, the request for stay in MA 205 of 2023 was granted by this Court on the basis that to make a constitutional decision on charges referred to in the petition which the 7th Respondent had subsequently decided to amend would be an unnecessary and fruitless exercise. Tt was decided to await the decision of the Trial Judge in respect of the subsequent application by the 7th Respondent to amend the existing charge sheet. [3] On the 22 April 2024, the learned Trial Judge made an order in respect of the amended charge sheet and the prosecution was asked to file the amended charge sheet as ordered by the Court. On receipt of the said order this Court ex mero motu issued notice on all parties to the case and asked the Petitioner whether they were inclined to proceed with this matter or not as the charge which was the subject matter of this petition had been amended. [4] In reply the Petitioner filed this application for further stay of the proceedings based on the following grounds. a) the 7th Respondent has now once again on 2 May 2024 after the order of the Chief Justice dated 22 April 2024 filed another Notice of Motion to amend the existing charges in CR 114 of 2021 for the 4th time. The Notice of Motion is attached and marked as Exhibit MV2. b) That the 7th Respondent is requesting him to take the plea in respect of the 4thamended charges. c) That the Notice of Motion containing the 4th amended charges was mentioned on 13 May 2024 and he is advised by his counsel that they will be filing objections to that Motion on 14 June 2024. d) That he was further advised by his Counsel that the 4th amended charges also contains the charges subject to constitutional determination by this Court. e) That, as submitted previously, should the 7th Respondent succeed with this Motion, necessary amendments will be required again to be made to CP 09 of 2021 as certain counts in the proposed amended charges directly affect the pleadings in CP 09 of2022 in respect of Article 19 of the Constitution, which is being contested in CP 09 of 2022, in that certain of the proposed amended charges relate to the Anti-Money Laundering Act 2006 which provides for retrospective application of the said Act which also are a subject matter in CP 9 of 2022. f) That he was advised by his Counsel that a stay of proceedings is proper in view of the 7th Respondent's motion to amend the charges against him and should the said amendment be allowed, then CP 9 of 2022 will accordingly require amendment pursuant to him seeking leave from this court to do so. g) He therefore avers that in order to meet the ends of justice, it is urgent and necessary that the Court orders a stay of the proceedings in this case (i.e CP 9 of 2022) pending the determination of the Motion for leave to amend charges as it did in respect of the 3rd amended charges. h) The Applicant further avers that without a stay of execution, Court's time would be wasted, the Applicants right to properly challenge the infringement of his right to a fair hearing will be hindered / violated and irreparable harm would be caused to his right to fair hearing causing him to suffer great prejudice. [5] Based on the above the Applicant submits that it is not in the interests of justice that this Court should proceed to rule on the preliminary objections filed on behalf of the Respondents for the reasons set out in his affidavit. [6] In reply to the said application for stay the 7th Respondent filed the affidavit of the Deputy Commissioner of the Anti-Corruption Commission Seychelles (ACCS) Mr Denis Joubert who moved that the application for stay of proceedings be dismissed. He submitted that in regards to this petition CP 09/2022 filed on the 18 November 2022, preliminary objections were filed on behalf of the Respondents. The Court agreed to rule on these objections and was due to give its ruling on 16 May 2023. However, on 2 May 2023, the Petitioner filed his first application for a stay of proceedings in this matter (MA 205/2023), pending the determination of an application to amend the charges in CR 114/2021. [7] On 21 November 2023, the application by the Petitioner to stay CP 09/2022 was granted by this Court in its ruling in MA 205/2023, principally on the basis that the unresolved application to amend the charges in CR 114/2021 could render one of the Petitioner's prayers a nullity, the prayer referring to specific numbered charges on the indictment which might subsequently be changed. [8] Mr Joubert in his affidavit referred to the ruling of the learned Chief Justice (Trial Judge) delivered in CR 114/2021 on 22 April 2024 in respect of the amended charges and stated that the learned Chief Justice ordered inter alia at paragraph [186] that: (i) The trial of CR 114/2021 is stayed pending the determination of the Constitutional Court in CP 0912022. (ii) Leave to proceed with counts for offences of money laundering against 1st and 2nd Respondents (Counts 10 to 23) is subject to the determination of the Constitutional Court in CP 09/2022. (iii) Leave was not given to the ACCS (due to defects in the statement of offence) to file the amended charges and to add the additional charges relating to official corruption (Counts 2-3, 5-9). For like reason, leave was not given to file proposed amended Count 4, namely conspiracy to launder money under the Anti-Money Laundering Act 1996. The ACCS was at liberty to correct the detects in the said charges and file them anew. (iv) The existing charges not struck off remain on the Court's record until the determination of the Constitutional Court in CP 09/2022; and the ''filing of the charges for which leave has been granted together with the corrected amended and additional charges". [9] He further admitted that on 2 May 2024, the 7th Respondent filed its further application to amend the charges, in accordance with the learned Chief Justice's ruling on 22 April 2024, to correct the defects identified by him. Further referring to the proceedings of 22 April 2024 in CR 114/2021 and based on [8] of the Petitioner's affidavit dated 3 June 2024 and [23], [24] and [2S] of the ruling given by this Court on the 21 November 2023 in MA 20S12022, Mr Joubert on behalf of the 7th Respondent moved that the prayer in B(vii) could without any prejudice to the case for the Petitioner be simply amended to the following: "A Declaration that the charges against the Petitioner under the Anti-Money Laundering Act 1996 and the Anti-Money Laundering Act 2006 (before and after its amendment in 2008) are inconsistent with Articles 19 and 27 of the Charter and therefore void." [10] He further submits that the 7th Respondent would not oppose an application to amend the Petition in this way. [11] Mr Joubert states that this approach would be consistent with the observation of this Court in its ruling MA 20S12023 when the Court identified a hypothetical resolution. At [2S]: "The Court is of the view that if this part of the prayer would have referred to charges under specific sections of/he Acts instead of the charge numbers, it could have potentially encompassed all the charges (current or proposed amended ones) falling under the impugned legislation and since it is the legislation that is being challenged, a stay of the proceedings would not necessarily have been needed. " (emphasis added). [12] He further moves that Court rejects the Petitioner's application to stay and proceed to rule on the preliminary objections. Preliminary objections to the petition were lodged by the Respondent in January 2023. The Petitioner filed his response in a document dated 6th March 2023. The written pleadings are therefore closed. [13] Giving due consideration to the aforementioned submissions by both parties, this Court is of the view that it would be treading on dangerous grounds if it were to amend the petition as suggested by the 7th Respondent on the basis of the limited facts before this Court in respect of the case CR 114/2022. It is the Petitioner who has full knowledge of both cases CP 0912022 and CR 114/2022. It is the Petitioner who should therefore decide whether to amend, withdraw or continue with the petition in CP 0912022 or file a new petition or seek a referral in respect of his alleged constitutional infringements in CR 114/2022 in accordance with the prevailing laws and Rules applicable. It is not for this Court to give advice to him as to what choice he should make. [14] It is the view of this Court that the ruling of the Chief Justice of22 April 2024 is clear. The affidavit ofMr Joubert indicates that the 7th Respondent has accordingly, based on the said ruling, filed the amended charge sheet. The said amended charge sheet has been marked by the Applicant himself as MV2. It is now for the Petitioner to decide what course of action he is to take. [15] We are of the view that continued challenges to the charge sheet and continued applications for stay are attempts to delay and derail proceedings and could amount to abuse of process. We observe that the Applicant continues to challenge the charge sheet despite the Ruling of the Chief Justice dated 22 April 2024 and the fact that the 7th Respondent has filed the charge sheet in accordance with the Ruling. This issue no doubt comes within the ambit of the Trial Judge and not this Court. [16] As far as this Court is concerned the Petition in this case is based on a charge sheet which the 7th Respondent admits has been amended in accordance with the Ruling given by the Trail Judge. Therefore, the Applicant must now decide on what he intends doing next. The Petition before this Court dated 18 November 2022 cannot now stand on the charge sheet referred to therein as it has been amended and exists no more. Further, the necessity to rule on the preliminary objections raised in respect of a petition based on a charge sheet that has now been amended is a futi Ie exercise. [17] Further in regard to the stay of proceeding we see no reasons to give a stay in the light of the ruling given by the Chief Justice dated 19th July 2024, of which we take judicial notice in which the finality of the amended charge has been decided.[35] of the said Ruling reads as follows: [35] Following the above determinations and those of Ruling of 22nd April, makes the following orders: this Court 1. The trial in CR 114 of 2021 is stayed pending the determination oj the Constitutional Court in CP 9 oj 2022,. 2. Leave to proceed with counts for offences of money laundering against 1st Respondent {Counts 10,. 11,. 14,. 16,' 18,.and 22 in the form set out in Annex C) is subject to the determination of the Constitutional Court in CP 9 of 2022,. 3. Leave to proceed with counts for offences of money laundering against 2nd Respondent (Counts 12,' 13,' 15,. 17,' 19,' 20,.21,. and 23 in theform set out in Annex C), being under the same legislation as challenged by the 1st Respondent in CP 9 of2022 is subject to the determination of the Constitutional Court,' 4. Leave to proceed is given to the ACCS to file amended counts 1-9 in the form set out in Annex C 'Proposed Consolidated Form of Charges' (May 2024),' 5. Counts from the existing charge sheet (Annex A) for official corruption, Counts 2 and 5,' and conspiracy to launder money contrary to section 3(I)(a) and 3(2)(a), Count 4, are stuck outjor being defective,' 6. The existing charges shall remain on the Court's record until the determination of CP9 of 2022,' and the filing of the chargesfor which leave has been granted. [18] Accordingly, since the Chief Justice has already ruled on the Notice of Motion to amend charges dated 2 May 2024 therefore, the reasons upon which this Application for stay is based are no longer applicable. [19] As far as the petition is concerned the Applicant/Petitioner must decide what course of action he intends taking by the next date. No further time will be granted. [20] Application for stay of proceedings in the hearing of the main petition CP09/2022 is therefore dismissed. Signed, dated and delivered at lie Ou Port on 27 November 2024 . .. ------_ (' ......._ .~ I;: ¥_Ylf 'rut----:;:? / j? I Esparon-r ._ M Burhan J Presiding 8