Valabhji v The Anti-Corruption Commission ((SCA CR 05/2024) [2024] (Arising in CM 122/2023) Out of Exp 01/2022 (18 December 2024)) [2024] SCCA 32 (18 December 2024)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2024] (18 December 2024) SCA CR 05/2024 (Arising in CM 122/2023) Out of Exp 01/2022 Appellant In the Matter Between Mukesh Valabhji (rep. by Mr. James Lewis KC, Mr. France Bonte and Ms. Varun Zaiwalla) And The Anti-Corruption Commission of Seychelles (rep. by Ms. Michelle Nelson KC, Mr. Michael Skelley And Mr. Anthony Juliette) Respondent Neutral Citation: Valabhji v The Anti-Corruption Commission (SCA CR 05/2024) [2024] Before: Summary: Heard: Delivered: (Arising in CM 122/2023) Out of Exp 01/2022 (18 December 2024) De Silva, Sharpe-Phiri, Sichinga, JJA Roll Call - Rule 21(5) of the Court of Appeal of Seychelles Rules 2023 - Rule 4(1) of the Legal Practitioners (Professional Conduct) Rules, 2013 4 December 2024 18 December 2024 1. Appeal is dismissed for lack of prosecution under Rule 21(5) of the Court of Appeal of ORDER Seychelles Rules 2023. 2. Respondent is entitled to costs. JUDGMENT DE SILVA JA (Sharpe-Phiri JA, Sichinga JA, concurring) 1. This is an appeal from a ruling delivered by Carolus J in part orally on 5th April 2024 and in full in writing on the 9th April 2024 wherein he held that a restraint order may be granted under section 26(1)(b) of the Anti-Money Laundering Act 2006 (as amended) in criminal proceedings which have already been instituted. 2. I need not delve into the factual matrix of the appeal in view of the order we made on 4th December 2024 dismissing the appeal for lack of prosecution under Rule 21(5) of the Court of Appeal of Seychelles Rules 2023 (Rules). Parties were notified that reasons will be given on 18th December 2024. We proceed to do so. 3. This appeal was listed to be heard during the December sessions of the Court of Appeal which was scheduled from the 2nd to the 18th of December, 2024. The Roll Call was fixed on 2nd December at 9.00 a.m. and the hearing of this appeal was fixed for 4th December at 9.00 a.m. 4. When this appeal was called on 2nd December 2024, the Appellant was absent and unrepresented. Counsel for the Respondent, Ms. Michelle Nelson KC moved that the appeal be dismissed pursuant to Rule 21(5) of the Rules. 5. The Court took note of the fact that the Appellant was absent and unrepresented and the application made on behalf of the Respondent for dismissal. We informed counsel of our intention to make an appropriate order when the appeal was called on 4th December 2024. 6. On that day, the Appellant was present and represented by Ms. Rachel Scott. At the outset Ms. Scott tendered an apology to Court for her non-attendance at the Roll Call on 2nd December 2024. We were informed that she was unaware that her attendance was required at the Roll Call. 7. We inquired of the reasons for the absence of the Appellant and his local counsel Mr. France Bonte. Ms. Scott consulted Mr. Bonte in open court with our permission and informed us that although Mr. Bonte received notification of the two weeks sitting dates he did not receive notification of the Roll Call date. 8. We requested Ms. Scott to get instructions from Mr. Bonte as to how the Bar is put on notice of the Cause List. In other words, we wanted to know the practice of the Court. Ms. Scott informed us on instructions received from Mr. Bonte that there is usually a notice that is sent by email but that he did not receive it. 9. Ms. Michelle Nelson KC, counsel for the Respondent informed Court of the receipt of an email dated 14th August 2024 and letter dated 19th August 2024 from the Court of Appeal registry. Copies of these two communications were made available to Court. 10. The email is actually dated 16th August 2024 and copied inter alia to the Commissioner ACCS and France Gonsalves Bonte. It is titled “COURT NOTICE & PROVISIONAL LIST FOR DECEMBER SESSION FROM 2ND TO 18 DECEMBER 2024”. It reads as follows: “Dear All, See attached being the Court Notice and the Provisional list dated 14th August 2024 for the December 2024 Sessions. Regards Vivienne Vadivelo (Mrs) Deputy Registrar Palais de Justice James Mancham Avanue P. O. Box 157 Ille de Port, Mahė, Seychelles” 11. Attached to this email was a Court Notice dated 14th August 2024 signed by “V. Vadivelo (Mrs.), Deputy Registrar, For: REGISTRAR”. Items 4 and 5 therein read as follows: “4. The Roll Call will be on Monday 02nd December 2024 at 9.00a.m. and all legal practitioners who have cases during the 2024 August (sic) session must attend. 5. If the Appellant or Applicant fails to appear on the hearing or mention date, the appeal or application as the case may be shall be dismissed, unless the Court directs otherwise.” 12. The letter dated 19th August is titled “Re; Mukesh Valabjhi vs The Republic – SCA CR 05/2024”. It states that the above-mentioned case is listed for the December Session (2nd to 18th December 2024). 13. In view of this information received from the counsel for the Respondent, Court adjourned for a short time to obtain full details from the Court of Appeal Registry. 14. The Registry of the Court of Appeal provided us with the following additional material: (a) Email dated 3rd September, 2024 sent by Anne Richard, Law Clerk, Court of Appeal to MR Fance Bontė. It read as follows: “Good afternoon Mr. Bonte, As per your request, please see below email for your information.” The email forwarded was the email dated 16th August 2024 alluded to above. (b) Letter dated 19th August 2024 addressed to Mr. France Bonte from A. Richard (Ms), LAW CLERK, For: REGISTRAR” titled “Re; Mukesh Valabjhi vs The Republic – SCA CR 05/2024”. It states that the above-mentioned case is listed for the December Session (2nd to 18th December 2024). (c) An entry dated 20.08.2024 in the Dispatch book maintained by the Court of Appeal Registry. The entry shows that letter dated 19.08.2024 alluded to in (b) above addressed to France Bonte was accepted by Ms. Roma, the Secretary to Mr. Bonte. 15. After we considered all these items of evidence, Court reconvened. At that point, we considered that it was in the best interests of justice to directly seek the views of Mr. Bonte on the evidence presented and in the possession of Court. 16. Each of the above items of evidence was put to Mr. Bonte. For completeness, I am reproducing below the full transcript of the proceedings of Court once we reconvened: [Court reconvenes at 8:41:22, per FTR Recording Time] (Appearances as before) Court (D-S JA) to Counsel Mr. France Bonte, present in Court: Mr. Bonte. Mr. Bonte: Your Lordship. Court (D-S JA): You are a Counsel on record and we would like to address you and get some answers from you directly. Mr. Bonte: Yes. Court (D-S JA): Did you receive notice of the Cause List dated 14th August 2024? Mr. Bonte: I believe it is, how do they call it, provisional Cause List, I did receive and, we receive a provisional, then we get it confirmed Cause List, and this never came. Court (D-S JA): Did you get a copy of the Court Notice dated 14th August 2024? Mr. Bonte: I do not believe that I got this. Court (D-S JA): Did you contact Ms. Vivienne Vadivelo, Deputy Registrar, somewhere in September 2024 and asked for a copy of the provision List dated 14th August 2024? Mr. Bonte: I did ask, but I did not get. That is why, because I did not get, that is why I had to approach her and asked for it. Because the practice is, like, in, for December, like in October, November, we get a confirmed Cause List, and this I never got. Court (D-S JA): I am going to show you a copy of an email dated 3rd September 2024, sent by Anne Richard, Law Clerk, Court of Appeal. Mr. Bonte: I cannot recall receiving this. Court (D-S JA): Mr. Bonte, I am showing you a copy of an email dated 16th August 2024, sent by Vivienne Vadivelo to several Counsel, which includes your name. Did you receive the email dated 16th August 2024? Mr. Bonte: This is what we received as a provisional, and after that there comes a Panel and confirmed Cause List. Court (D-S JA): So, you did receive that email that I showed you just now? Mr. Bonte: Yes, I received, because it attached a provisional List and I was waiting for a confirmed final List. Court (D-S JA): Mr. Bonte, did you receive a letter dated 19th August 2024, signed by Ms. Richard, Law Clerk of the Court of Appeal? Mr. Bonte: No, this one I did not receive. Court (D-S JA): Mr. Bonte, I am showing you the dispatch book of the Court of Appeal for December 2023 and I am drawing your attention to an entry dated 20th August 2024, which is addressed to you, about the delivery of that letter which I showed to you, 19th August 2024. It is signed by your Clerk Roma, on 21st August 2024. Please confirm as to whether that is the signature of your Clerk – Secretary. I am sorry. Mr. Bonte: I cannot confirm that this is her signature. Court (D-S JA): How long have you retained the services of that Secretary, Roma? Mr. Bonte: She has been my Secretary since I started practicing, to-date, and this – Court (D-S JA): And, how long has that been, Mr. Bonte? Mr. Bonte: 1993. Court (D-S JA): So, in the normal course of events you are competent to identify the signature of Roma? Mr. Bonte: Yes, but I do not identify this as her signature. Court (D-S JA): Okay. Before we adjourn, do you inform Court through your Senior Counsel, Ms. Scott, that you did, at one point of time, see the Cause List in the Court premises? Mr. Bonte: In the? Court (D-S JA): Court premises. Ms. Scott: My Lord, I saw the Cause List this morning, when I attended here, for the hearing today. I have never seen the Cause List until this morning. Court (D-S JA): Not you, I am sorry, I am asking whether Mr. Bonte has seen. Ms. Scott: I am so sorry, my Lord. Court (D-S JA) to Counsel Mr. Bonte: You conveyed that to Court, as you said? Mr. Bonte: It is not the custom, for me, to look at the Board. I received – Court (D-S JA): Mr. Bonte. Mr. Bonte: I received – Court (D-S JA): Mr. Bonte, I am asking – Mr. Bonte: I receive, they come and deliver to me, and this time they did not deliver to me, or my Secretary. Court (D-S JA): Before we adjourned, you informed, through the Senior Counsel, that at some point of time you saw the Cause List in the Court premises. Mr. Bonte: I do not think so, I did not look for the Cause List in the Court premises. Court (D-S JA): Thank you, Mr. Bonte.” (emphasis added) 17. There is no divergence that the Appellant was informed that the appeal was to be heard on 4th December 2024. This is confirmed by letter dated 9th October 2024, where Zaiwalla & Co., acting on behalf of the Appellant, moved that the appeal be fixed for a date between 11th to 13th of December 2024 and not taken up on 4th December 2024, the date on which the appeal was tentatively fixed for hearing. The application was made on the grounds that Mr. James Lewis KC who is a barrister based in England and retained to appear on behalf of the Appellant, was unfortunately no longer available on 4 December 2024. 18. The Deputy Registrar of the Court of Appeal responded to this application and whilst rejecting the motion to change the date of the hearing intimated that the appeal will be heard on the 4th of December 2024 as fixed, and that save in unforeseen circumstances the hearing may be shifted to the 5th or 6th of December. It was also intimated that there is no question of adjourning this appeal to next year as the registry wanted to ensure the disposal of appeals filed as early as possible taking into consideration the interests of the parties to an appeal and the public interest. 19. More importantly, Zaiwalla & Co. was informed to take note that in accordance with the Court of Appeal of Seychelles Rules, if the Appellant fails to appear on the date fixed for the hearing of the appeal or on a date fixed for mention prior to the hearing for purposes of case management, the appeal would be dismissed for lack of prosecution unless the Court otherwise directs. 20. In fact, Ms. Scott confirmed knowledge of the intimation that the appeal was to be taken up on 4th December 2024 and that the application to re-fix the hearing was rejected. 21. The only question left to be determined is whether the Appellant or his local counsel Mr. Bonte was put on notice that the Roll Call was fixed on 2nd December 2024. 22. Based on the answers given to Court by Mr. Bonte, admittedly he received email dated 16th August 2024 alluded to in paragraph 10 above. Attached to it was the Court Notice dated 14th August 2024 by which all legal practitioners were informed that the Roll Call will be on Monday 02nd December 2024 at 9.00 a.m. and that all legal practitioners who have cases during the 2024 August (sic) session must attend. They were further put on notice that if the Appellant or Applicant fails to appear on the hearing or mention date, the appeal or application as the case may be shall be dismissed, unless the Court directs otherwise. 23. Accordingly, we do not believe that Mr. Bonte did not receive all the correspondence from the Court of Appeal Registry. The foreign lawyers would not have known the dates in this appeal had Mr. Bonte not received such communication. Moreover, Mr. Bonte would have requested for information from the Registry, as he did on or about 3rd September 2024, had he not received them. 24. The wording in Court Notice dated 14th August 2024 is a repetition of Rule 21(5) of the Rules which reads as follows: “(5) If the applicant or appellant fails to appear on any one of the dates thus notified, the appeal shall be dismissed for lack of prosecution, unless the Court otherwise directs.” 25. The reference to any one of the dates thus notified means the dates notified pursuant to Rule 21(3) and 21(4) of the Rules which reads as follows: “(3) Once the Cause List for the particular Court session has been determined by the President, the Registrar shall take necessary steps to ensure that the parties concerned and their Attorneys at Law are informed in writing of the date on which the appeal shall be heard. (4) The Registrar shall also inform the parties concerned and their Attorneys at Law if the case is to be mentioned on a date prior to the hearing for the purposes of case management.” 26. The question is whether the day of the Roll Call, namely 2nd December 2024, falls within Rule 21(4) of the Rules. I have no hesitation in holding it to be a date forming part of case management. Roll Call is inter alia to ensure that parties are ready for the hearing on the day fixed during the session to enable the Court to organise its work schedule for the session. There have been instances where parties have informed Court on the day of the Roll Call that they do not wish to proceed with their appeals and Court has made orders accordingly. 27. It is important that litigants and their counsel comply with the Rules. Their primary aim is to ensure the efficient administration of justice by ensuring that the business of the Court is done in an efficient and productive manner. Commendably there is no backlog in the work of the Court. We are hearing appeals filed during this year. Nevertheless, if the Rules are not enforced across the board, this jurisdiction may also suffer the same fate that many other jurisdictions are facing. 28. According to Rule 21(5) of the Rules, the appeal shall be dismissed for lack of prosecution if the applicant or appellant fails to appear on any one of the dates thus notified unless the Court otherwise directs. 29. The Appellant is presently in custody of the Montagne Posee Prison authorities. Ms. Lorna Forte, Court Liaison Officer has informed the Court of Appeal Registry by email dated 5th December 2024 that the Appellant was not produced on 2nd December due to lack of knowledge on her part as she is the new Court Liaison Officer. According to her, the reason for the absence of the Appellant on 2nd December 2024 is the lack of knowledge on the part of the Court Liaison Officer that he should have been produced in Court. This is in stark contrast to the intimation made by the Prison Guard to us on 2nd December 2024 that “they went to their house, at their property”. The reference to “they” was understood to be a reference to the Appellant and his wife who is also in custody with the same prison authorities. 30. We are satisfied that due notice of the Roll Call date, 2nd December 2024 was given to the prison authorities. The Court of Appeal Registry is in possession of the communication by which the date of the Roll Call was intimated to the prison authorities. The prison authorities have acknowledged the receipt. 31. Notwithstanding any justified reasons for the absence of the Appellant, his counsel should have been present. They were absent although the local counsel was notified of the date of the Roll Call. 32. Rules 21(5) of the Rules gives the Court a discretion. I see no justifiable reason to exercise discretion in favour of the Appellant given the failure of his local counsel to be truthful to Court. Accordingly, this appeal is dismissed. 33. Before parting with this judgment, I am compelled to refer to the conduct of Mr. France Bonte, the local counsel for the Appellant which has deeply troubled the Court. 34. Rule 4(1) of the Legal Practitioners (Professional Conduct) Rules, 2013 imposed on him an overriding duty as an officer of the Court, to uphold the rule of law and facilitate the administration of justice. This requires at a minimum, subject to any client confidentiality, a full and truthful disclosure to questions posed by Court. The questions posed by Court was on the receipt by Mr. Bonte of notices sent by Court to him and did not involve any issues of client confidentiality. Nevertheless, Mr. Bonte was far from truthful in his responses. The information he provided to Court through Ms. Scott and his responses later directly to Court upon documentary evidence being shown were contradictory. 10