Ernesta v R ([2024] (15 December 2025) SCA CR 08/2025 (Arising in CR 52/2021)) [2025] SCCA 26 (15 December 2025)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search [] IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2024] (15 December 2025) SCA CR 08/2025 (Arising in CR 52/2021) In the Matter Between Patrick Ernesta Appellant (Self-represented) And The Republic Respondent (rep. by Mr. Alvin Marie) Neutral Citation: Ernesta v R (SCA CR 08/2025) [2025] (Arising in CR 52/2021) (15 December 2025) Before: Gunesh-Balaghee, Sharpe-Phiri, Sichinga, JJA Summary: The Appellant’s non-compliance with mandatory procedural timelines under Rule 24 of the Court of Appeal of Seychelles Rules, 2023 Heard: 3 December 2025 Delivered: 15 December 2025 ORDER The appeal is deemed to be abandoned and dismissed accordingly. RULING SHARPE-PHIRI JA (Gunesh-Balaghee JA, Sichinga JA, concurring) Introduction This appeal arises from the Ruling of Justice Burhan of the Supreme Court dated 25 April 2025, dismissing the Appellant’s application seeking the recusal of Judge Vidot from presiding over case CR 52/21. Background The Appellant was charged on 27 May 2021 with trafficking in cannabis resin, a controlled drug, by way of possession with intent to traffic, contrary to section 9(1) read with section 19(1)(d)(ii) of the Misuse of Drugs Act, 2016 and punishable under section 7(1) and Second Schedule of the same Act. The amended charge statement specified the offence as possession of a controlled drug with intent to traffic as defined under the provisions of the Misuse of Drugs Act 2016. The particulars of offence alleged that on 3 September 2020, at La Rosiere, Mahe, the Appellant was found in unlawful possession of a controlled substance weighing a net of 735 grams, thereby giving rise to a rebuttable presumption of intent to traffic the said controlled drug. On 13 June 2022, the Appellant sought an order for a locus in quo inspection of his residence at parcel V21078, Mont Buxton, Mahé and its surrounding areas, to be conducted. The Appellant explained that the property was slated for reconstruction and demolition of the existing house. Given a contested allegation that the Appellant had discarded a plastic bag outside while inside the house, he argued that an on-site inspection was necessary for the Court to properly assess the evidence. The application was granted, and the locus in quo was conducted on 13 July 2022. On 7 November 2022, the Appellant’s counsel filed an application seeking leave to inspect all notes recorded during the proceedings of the locus in quo held on 13 July 2022 and further requested an amendment to the record to incorporate additional details relating to a part of the proceedings. Subsequently, on 10 October 2023, the Appellant sought a further amendment to the amended record of the locus in quo proceedings, which was opposed on 27 October 2023. Judge Vidot ruled on the application to amend, as recorded at pages 191-195 of the record. On 15 June 2023, the Appellant submitted a written request to the Registrar of the Supreme Court seeking the recusal of Judge Vidot from presiding over case CR52/2021, pursuant to Article 19(2)(d) of the Constitution. The recusal application was heard by Judge Vidot on 7 September 2023, and a ruling was delivered on 13 October 2023. The ruling shows that the Appellant appeared in person before the Judge and advanced several grounds for the recusal application. These included allegations that the Judge had failed to properly record the locus in quo proceedings; that the audio recording was incomplete and unsupported by adequate written notes; that the locus in quo was not conducted in accordance with proper procedure; that the Judge allowed the filing of an affidavit by the police containing false statements; and that the Appellant was prohibited from speaking during the proceedings. Additionally, the Appellant contended that the exhibit had been left in the custody of Officer Malvina, who allegedly tampered with his property, and that his objection to this was not reflected in the record. After careful consideration of each ground raised by the Appellant, the Judge concluded that the application lacked merit. The Appellant failed to establish any bias or prejudice on the part of the Judge that would warrant disqualification. Accordingly, the application for recusal was dismissed. On 3 November 2023, the Appellant filed a formal motion, supported by affidavit, renewing the application for recusal of Judge Vidot. The application alleged that the Judge had failed to adhere to the proper recusal procedure in the Seychelles and had unilaterally rescheduled the hearing date from 24 November 2023 to 6 November 2023 without providing him an opportunity to object. By letter dated 13 November 2023, Justice Vidot notified the Chief Justice that he had dismissed the Appellant’s initial recusal application on the basis that no evidence of bias or prejudice had been established. Noting the Appellant’s dissatisfaction of the renewed motion, Judge Vidot requested that the matter be referred to another Judge for determination. On 16 November 2023, the recusal application against Judge Vidot in case 52/2021 was heard before Judge Burhan, who informed the Appellant that he had been appointed by the Chief Justice to determine the matter. The Appellant requested additional time to file a further affidavit in support, and the hearing was adjourned to 7 December 2023. On 5 December 2023, the Appellant filed a further motion, seeking in addition to the recusal, an order compelling the Registrar to grant him access to the audio recordings of the court proceedings and provide copies of the certified record and rulings. The motion was supported by an affidavit in which the Appellant stated that despite multiple written requests, he had been denied certified typed records essential to his recusal application. He also referenced a ruling of Judge Vidot dated 13 October 2023, which had allowed an amendment to the record of the locus in quo proceedings of 13 July 2022, to include a statement regarding police officers’ demonstration with the alleged controlled drugs. The Appellant further alleged that Judge Vidot continued to preside over his matter in violation of the prescribed recusal procedures under the Supreme Court Rules and contrary to the Court of Appeal’s ruling. Consequently, he sought relief for what he described as procedural irregularities and access to the requested audio recordings and transcripts as supporting evidence for his recusal application. On 14 December 2023, Judge Burhan granted the Appellant’s request to access the locus in quo audio recordings and adjourned the recusal hearing to 22 January 2024 to enable the Appellant to review them. The hearing was subsequently rescheduled to 1 March 2024 due to Judge Burhan’s absence and 13 May 2024 due to the Appellant’s absence. The case resumed on 27 May 2024, when the Appellant further requested for the court proceedings and recordings, wherein Judge Burhan directed the Registrar to provide the Appellant with access to all proceedings and recordings. Thereafter, the matter was called on several occasions namely: 10 June 2024, 24 June 2024, 25 July 2024, 9 September 2024, 7 October 2024, 4 November 2024, 18 November 2024, 27 February 2024, 17 April 2025, but was repeatedly adjourned largely at the Appellant’s behest. The Appellant submitted an affidavit in support of his recusal application on 7 October 2024, and the recusal application was heard before Judge Burhan. After consideration of the recusal application, Judge Burhan delivered a ruling on 25 April 2025 and found that the Appellant had not satisfied the test for actual or perceived bias and concluded that he could not come to the conclusion that there was a real possibility of the trial Judge being biased. Appeal before this Court Being dissatisfied with the Ruling of Judge Burhan, the Appellant filed a notice of appeal on 27 May 2025 advancing two grounds of appeal. The Appellant contends that the court record was deliberately and improperly altered to misrepresent the factual circumstances of a key demonstration involving an exhibit, violating principles of judicial honesty and integrity by editing substantive content of the proceedings rather than correcting mere clerical errors. The Appellant contends that procedural irregularities occurred, including failure to follow prescribed Supreme Court protocols during the locus in quo exercise, acceptance of false prosecution evidence, use of improper demonstrative evidence, bias manifesting in defamatory remarks, interference with legal counsel, and refusal to correct the official record despite known lapses. The relief sought by the Appellant in this appeal is twofold: firstly, that the ruling of Judge Burhan be overturned by this Court and that Justice Melchior Vidot be removed from presiding over case number CR52/21. According to the position paper prepared for this session, the Court notice regarding the hearing of the appeal was dispatched to the Appellant by post on 20 August 2025. The record of appeal was served upon the Appellant on 26 September 2025. The Respondent filed its heads of argument on 13 November 2025. On 7 October 2025, the matter was listed for case management before the President of the Court of Appeal. The Appellant appeared in person, while the Respondent was represented. The Court directed the Appellant to file written submissions should he elect to pursue the appeal. The Appellant confirmed receipt of the record in the preceding week, towards the end of September 2025, and was advised that heads of argument were required within one month thereof. Upon being offered legal aid, the Appellant declined, citing his constitutional right to self-representation, and was further directed to review and adhere to the Court of Appeal Rules in preparing and filing his heads of argument. The matter was called on the roll call on 1 December 2025. The Appellant informed the Court that he had filed his heads of argument on that date. The Court noted that the heads of argument were filed out of time and directed the Appellant to file an application explaining the reasons for the delay before the hearing date set for 3 December 2025. On 2 December 2025, the Appellant filed a notice of motion seeking condonation for the delay in submitting the notice of appeal and written submissions, attributing it to his long-term and persistent health issues. The notice was supported by an affidavit in which the Appellant averred that he faces a criminal charge before the Supreme Court under cause number 52/2021 and is appealing Judge Burhan’s dismissal of his application for the recusal of Judge Vidot from presiding over his case. The Appellant averred that his delay in filing the notice of appeal and written submissions was attributable to a long term and persistent medical condition afflicting him since 2022, for which he has attended medical clinics on multiple occasions for tests and treatment. He exhibited several medical documents in support of this contention. The Appellant further stated that, upon receiving the record from the Court on 26 September 2025, he attended at a health centre, referring to exhibit ‘A7’ annexed to his affidavit as corroborative evidence. Further, that he had attended a medical camp on 19 November 2025 and remained awaiting results, having been unwell since his last court appearance before the Court on 17 November 2025, during which time he has felt ill. On 3 December 2025, the matter was called for hearing. The Appellant presented his motion and requested the court to excuse his non-compliance with the Rules and late filing of arguments, attributing the delay to his ongoing illness. On 3 December 2025, after hearing the parties, the Court duly considered the notice of motion and supporting affidavit, together with the annexed documents, filed by the Appellant on 2 December 2025, wherein he sought condonation for the delay in filing his notice of appeal and heads of argument. The Court found that the Appellant failed to demonstrate sufficient cause warranting condonation of the delay. The application was refused, the appeal deemed abandoned and dismissed accordingly. The ruling was reserved for delivery on 15 December 2025, which we now provide. Issue before the Court At the hearing of the appeal on 3 December 2025, the issue before this Court was: whether the Appellant had sufficiently demonstrated good and sufficient cause for his delay in filing his heads of argument to warrant entertaining the appeal? The Appellant filed his heads of argument on 1 December 2025, instead of by 27 October 2025 as required. Rule 24 of the Court of Appeal of Seychelles Rules 2023 (which governs this appeal) imposes a strict obligation on parties to an appeal to lodge their heads of argument within the prescribed period following service of the record. Rule 24(1)(a) in particular provides that: ‘(1) Unless the President otherwise directs - The appellant shall lodge with the Registrar five copies of the appellant’s main heads of argument within one month from the date of service of the record .... Rule 24(1) mandates that an appellant files heads of argument within one month of service of the record. Non-compliance with this prescribed one-month period under Rule 24(1) constitutes a jurisdictional defect before the Court of Appeal. Pursuant to Rule 26 of the Court of Appeal Rules, a party may apply for an extension of time by demonstrating good and sufficient cause through a reasonable explanation for the lateness; absent such condonation, the party remains precluded from prosecuting the appeal. In the instant case, the Appellant’s documents were filed out of time. The failure by the Appellant to file his heads of argument by the stipulated time frame constitutes a breach of the Rules, which further provide under Rule 24(1)(i) of the Rules that where an appellant has not complied with this requirement, the appeal shall be deemed abandoned and struck out unless good cause is shown. This obligatory requirement for complying with Court Rules, particularly the filing of heads of argument on time has been repeatedly upheld in case law in this jurisdiction. In Auguste v Singh Construction (SCA 52/2020, 16 December 2022), the Court of Appeal reaffirmed that non-compliance with the 2005 Rules relating to time limits should not be condoned in the absence of material upon which the Court may properly exercise its discretion. Also, in Chang Sing Chung v Kim Koon and Ors SCA MA 38 of 2023 (25 August 2023), the Court reaffirmed that rules of court are to be observed by the parties, and judicial discretion, while directed to fairness, must be informed by applicable rules and legal principles. In this case, the Appellant was plainly aware of the deadline for filing his arguments, having been reminded thereof by the President of this Court during the case management hearing on 7 October 2025. At that hearing, the President directed the Appellant to file his heads of argument within 30 days of receiving the record, namely, by 27 October 2025, and invited him to engage legal aid, an offer the Appellant declined in exercise of his constitutional right to self-representation. Notwithstanding the clear directive, the Appellant disregarded this guidance and appeared at the roll call on 1 December 2025 having filed his heads of argument only that day, with no prior application for extension. The condonation application which the Appellant filed on 2 December 2025, was not initiated by him, but only lodged following the Court of Appeal’s direction at the roll call to regularize the position. Despite his insistence on self-representation, a right necessarily subject to compliance with the Rules, he has offered no reasonable explanation for the non-compliance. In support of the condonation application, the Appellant filed an affidavit with various exhibits. A close examination of the affidavit's exhibits reveals no evidence substantiating the Appellant's claim of incapacity during that critical filing period. The documents include only four medical certificates dated 11 May 2024, 26 February 2025, 6 October 2025 and 16 November 2025, each granting at most three days’ sick leave, none of which covers the entire relevant period from 26 September 2025 to 27 October 2025. The medical certificate dated 6 October 2025 authorized three days’ sick leave from 6 to 8 October 2025. While this might suggest unwellness during that brief period, the Appellant appeared before this Court on 7 October 2025, squarely within those dates, without raising any health concerns or incapacity; on the contrary when offered legal aid to assist with his appeal, he firmly declined. This conduct fatally undermines his later claims of illness preventing timely filing of heads of argument, rendering the explanation an evident afterthought. The Court remains wholly unpersuaded. This Court has deliberately outlined the chronology of the numerous applications and proceedings initiated by the Appellant between 2022 and 2025 to demonstrate the extensive hearings occasioned at his instance. The proliferation of applications constitutes an excessive and unjustified consumption of judicial resources, having materially contributed to the protracted delay in adjudicating the substantive criminal matter, instituted in 2021 yet unheard as of December 2025. The public interest demands efficient judicial administration; while every litigant enjoys access to the Court, judicial time is a limited resource that must be allocated equitably, and courts must guard against abuse from repetitive and meritless applications that waste resources and delay litigation. For the reasons stated, the Court is not satisfied that the Appellant has demonstrated sufficient cause to warrant condonation of the delay. The application was refused; appeal deemed abandoned and dismissed accordingly. In Conclusion The appeal filed on 27 May 2025 is deemed abandoned and dismissed accordingly with costs to the Respondent. _____________________ Sharpe-Phiri JA I concur: ____________________ K. Gunesh-Balaghee, JA I concur: ____________________ Sichinga, JA Signed, dated and delivered at Ile du Port on 15 December 2025. 8