IN THE COURT OF APPEAL

 

Reportable

[2019] SCSC

SCA 05/2018

(Arising in CP 09/2017)

 

Duraikannu Karunakaran                                               Appellant

Of Belle Vue, La Misere

Mahe, Seychelles

(rep. by P Boulle)

 

versus

 

The Tribunal                                                                      1^st Respondent

Represented by

Judge Mohan Burhan

President of the Tribunal

Supreme Court, Ile du Port

(rep. by D. Esparon)

 

And

 

The Honourable Attorney General                                         2^nd Respondent

Of Attorney General Chambers

National House, Victoria, Mahe

Seychelles

 

Neutral Citation:    D. Karunakaran v The Tribunal & another

Before:                    MacGregor PCA, Robinson JA, Dodin JA

 

Summary:               Any Court has jurisdiction to deal with contempt in the face of the Court. The Court can deal with the offence of contempt summarily or by trial with due process.  Although the Constitutional Court adopted a mixture of both procedures it was not fatal to the case. Undue or unwarranted interference with the smooth administration of justice may amount to contempt. Whether words or behaviour amount to contempt is a question of fact to be decided in the circumstances of each case.  Since the behaviour of the Appellant resulted in a disruption of court proceedings there were sufficient grounds for finding of contempt by the Constitutional Court.  The appeal is dismissed in its entirety.

 

Heard:                    13 August 2019

 

ORDER

The appeal from the decision of the Constitutional Court is dismissed in its entirety.

 

DODIN J.

1. This is an appeal from a decision of the Constitutional Court CP 09/2017 in respect of a charge and conviction of the appellant for contempt.  The brief facts of the case are that on 27^th March 2018, whilst the Constitutional Court was hearing a matter on two preliminary points of law in case CP No. 09/2027, the appellant who was seated on the left side of the courtroom, got up from his place and walked up to the right side of the Court where Mr Thachett and Mr Subramaniam, both Assistant Principal State Counsel were seated behind Mr Chinnasamy and  the appellant  said certain words which were overhead by Mr Thachett and Mr Subramaniam.  Then the appellant patted with Mr Chinnasamy on the back and said certain words in the ear of Mr Chinnasamy.

 

2. Mr Chinnasamy appeared very upset by the words that had been said and he informed the Court that the appellant had used abusive and nasty words in respect of his address.  The impugned words, according to Mr Chinnasamy, were as follows:  ‘I lost all respect for you, I never knew you would go to this extent.  You are an ass-licker.  I am sorry to say’. Mr Chinnasamy added, in order to explain what he was feeling at that time that the words belittled his dignity and cast negative aspersions on his career.  He was, therefore, unable to continue discharging his duty as Counsel at that point in time.

 

3. The Court asked the appellant to give his version of what had just happened.  He admitted having spoken to Mr Chinnasamy but he denied having uttered the impugned words.  Instead, his contention was that he simply asked Mr Chinnasamy ‘to make submissions sensibly’. The Court however appeared convinced that the appellant had actually said the impugned words as stated by Mr Chinnasamy and invited the appellant to tender this apologies to the Court and to Mr Chinnasamy.  The appellant refused to do so and maintained that he had not uttered these words.  The Court also told the appellant that he did not have the right to go to the other side of the Court and to tell opposing counsel how he should do his work.  The issue of whether a contempt of Court has been committed came up and the hearing of the petition which was being dealt with by the Court was postponed to the next term.

 

4. On the 4^th September 2018, the Constitutional Court comprising of same bench of three Judges who had witnessed the incident in Court issued an Order holding (1) that on 27^th March 2018, an incident amounting to a misdemeanour by the appellant and amount to a contempt of Court had occurred (2) that the Court invited the appellant to apologise to Mr Chinnasamy on the understanding that the Court would not have pursued the matter further had the appellant done so (3) that the appellant did not tender his apologies (4) that a summons was issued on the appellant to show cause  as to why contempt proceedings should not be continued against him (5) that the bench, being unanimously satisfied that the appellant had committed a contempt of Court, found him guilty of contempt and convicted him for contempt (6) that the appellant was being sentenced to pay a fine of Rs5,000, failing which, he would be imprisoned for seven days.

 

5. On the next day, 5^th September 2018, the appellant paid the fine of Rs5,000 which had been imposed on him.

 

6. On 27^th September 2018, the appellant lodged this appeal against the decision of the Constitutional Court raising the following grounds of appeal:

 

“(1) The finding of guilt by the Constitutional Court is without juridical foundation as it fails to rest on the Oder of the Court delivered on 15^th May 2018 and the summons to show cause and consequently address the objections raised by the appellant dated 24^th May 2018.

 

(2)  The Constitutional Court erred in its finding of guilt as it ignores and fails to draw its reasoning from material facts on record

 

(3)  The finding of contempt is erroneous as it fails to adjudicate on the issues and material facts found to be the substance of contempt in respect of which the appellant was required to show cause

 

(4) The Order is erroneous as the facts relied on for the finding of guilt does not disclose a contempt of Court by the appellant.”

 

7. Ground 1 is in respect of the capacity of the Constitutional Court to deal with contempt as an offence and the procedures the Court followed. Grounds 2, 3 and 4 can be dealt with together since they raise issues of facts with particular emphasis on the perceived failure of the bench to appreciate, rely on and make material findings on the facts.
8. The 1^st ground raises the issue of the procedures which have to be followed in cases of alleged contempt. There is no contention that a Court before which an act of contempt has been committed has the power to deal with the matter summarily.  This is particularly so where the contempt is in the nature of a criminal contempt which has been committed fully or partially in the face of the Court where the bench has itself witnessed the act which amounts to the contempt. Generally, this case is where the act of contempt is such that it requires an immediate sanction in the sense that to delay the reprisal may lead to the reduction of the efficiency of the measure. Dealing with a matter summarily entails that only a brief statement of the main points is made which dispenses the Court from having to go unduly into matters of detail or into lengthy formalities.  It is a judicial process which is conducted without the customary legal formalities.  The outcome of the case is usually stated by using the simple formula ‘we find the case proved’ and is often based on the Latin maxim res ipsa loquitor meaning that the facts are so obvious that they speak for themselves.
9. This having been said, the fact remains that the Court may decide not to deal with an alleged contempt summarily and may choose to adopt another route to deal with the matter, which may lead to a full hearing or as in this case give the appellant time to either admit and apologise or show cause why the Court should not proceed with determining whether the offence of contempt has been committed. It is obvious that the Court adopted a combination of both procedures. Having indicated on the 27^th March 2018 that the Court is of the view that the appellant committed the act of contempt complained of, the Court did not proceed the find the appellant guilty and sentence him summarily on the same day but adjourned the matter to the 15^th May 2018, 12^th June 2018 then 4^th September, 2018.
10. In the meantime, Mr Chinnasamy stated that he would be making a complaint, in writing, to the Honourable Attorney General. The Court allowed Mr Chinnasamy time to do so.  There is evidence on record to the effect that, on 28^th March 2018, Mr Chinnasamy, Mr Thachett and Mr Subramaniam gave their respective written statements to the Attorney General describing the incident that allegedly took place in Court on 27^th March 2018. Those statements were forwarded to the Judges of the Constitutional Court.

 

11. On the 15^th May 2018, an Order was issued by the Constitutional Court putting the appellant on notice that, having considered what had happened in Court and the complaint lodged by Mr. Chinnasamy, there were sufficient grounds for the appellant to show cause as to why he should not be dealt with for contempt of Court.  The Court further affirmed that it had the inherent jurisdiction to deal with the matter. A summons dated 17^th May 2018 was issued on the appellant by the Registrar of the Supreme Court on behalf of the Constitutional Court informing him that he stands charged of having insulted Mr Chinnasamy in open Court and that his behaviour disrupted the work of the Court sitting as a Constitutional Court; and to file his answer to the above charge of contempt of Court within 7 days after service of the summons.

 

12. The appellant filed his written answer to the summons on 24^th May 2018 which contained seven points raised in law.  These were essentially, to the effect (a) that the summons issued on the appellant was beyond the powers of the Registrar of the Supreme Court, (b)  that the Constitutional Court had no jurisdiction to hear and determine a complaint made by a third party to a proceeding before the Constitutional Court, (c)  that the complaint of Mr Chinnasamy was not before the Court as same had been made to the Attorney General, (d)  that the appellant had no obligation to answer a complaint forwarded to the Court by the Attorney General, (e) that the appellant had no obligation to show cause since the Constitutional Court had no inherent jurisdiction to hold him in contempt, the more so that the evidence against him emanated from a third party and was in the nature of unsworn allegations (f)  that the Constitutional  Court had already determined the matter by holding on 27^th March itself that the appellant had indeed used the words as alleged by Mr Chinnasamy and that (g)  the Constitutional Court had admitted that it had no jurisdiction in the matter by stating on 27^th March that ‘that was the end of the matter’. The summons which was issued on 17^th May 2018 also required the appellant to appear, on 12^th June 2018.

 

13. The Order dated 4^th September 2018 is in the nature of a summary determination.  It contains a brief statement of facts and a decision. That same Order could have been delivered there and then on the 27^th March 2018. There was no determination on the points of law that the appellant had raised in his defence.

 

14. It is my considered opinion that any Court has jurisdiction to deal with contempt in the face of the Court otherwise a Court will be deprived of control over whatever act a person may want to do whilst the Court is in session. was open to the Constitutional Court to adopt a summary approach in determining the matter and to deal with it summarily and it was also open to the Constitutional Court to deal with the matter after affording the appellant a full hearing. Summary trials may be conducted before a finding of guilt is handed down and this entails that the accused party does not even have to be present, even though he may choose to attend the trial. Secondly, objections are not usually made to the information preferring the charge or to the summons which is issued on the party unless those objections are of a fundamental nature. The Court obviously did not consider the appellant’s written answer to be such. Hence the Court cannot be tasked to address the objections in law raised by the appellant.

 

15. On ground 1, I find that despite the fact that the Constitutional Court did not adopt a clear procedure in respect of whether the appellant was to be dealt with summarily or by a full trial, procedures followed by the Court in fact more favourable to the appellant than the usual summary trial. It is clear from the above that what the Constitutional Court did was to conduct a summary trial in the case of the appellant.  It cannot be taxed for having ensured that all the elements which were relevant in allowing it to make a finding were placed before it.

 

16. Learned counsel for the appellant laid much emphasis on the phrase “that was the end of the matter” maintaining that the Constitutional Court had admitted that it had no jurisdiction in the matter by stating on 27^th March that ‘that was the end of the matter’. I cannot see how learned counsel could come to such conclusion. From the record of proceedings it is clear that the Court was addressing the appellant who was answering back and who was not adhering to the Court’s direction for him to go back to his side of the Court and to sit down. That phrase was actually stated twice to the appellant and having read the complete record for the day’s proceedings, the phrase was not stated in respect of the charge of contempt but rather in managing the Court and dealing with the appellant’s behaviour at the respective times.

 

17.  Since the Court did not make a final finding as alleged in the 1^st ground of appeal I find that the Court’s decision to adjourn the matter to a later date was not fatal to the procedures and definitely did not deprive the Court of its juridical base to reach the decision it did on the 4^th September 2018. Secondly, the action taken by the Court against the appellant was not based on the complaint that Mr Chinnasamy made to the Attorney General.  This was a procedure which Mr Chinnasamy chose to follow and the Attorney General forwarded the written complaint to the Court.  The appellant for his part, was duty bound to answer the charge of contempt that was based on the incident which occurred in Court.  This is clearly borne out in the Order of 15^th May 2018 where the Judges held:

“We witnessed the behaviour of Mr Karunakaran, which conduct constitutes an interference with the work of this Court and therefore amounts to contempt”.

 

The finding of guilt did, therefore, have a juridical foundation contrary to what is contended in the first ground of appeal. The 1^st ground of appeal therefore fails.

 

18. In respect of the 2^nd, 3^rd and 4^th grounds of appeal it is not disputed that the words which the appellant is supposed to have said to Mr Chinnasamy in his ear was the event that triggered the whole incident.  The contention of the appellant is that there were two versions concerning the words that were said.  Whereas Mr Chinnasamy contended that the appellant called him ‘an ass-licker’, the appellant maintains that he only told Counsel to do his work properly.  Grounds 3 and 4 essentially purport to challenge the fact that the Court did not pronounce itself on which of these two versions it accepted and did not give any reasons for having reached that decision.

 

19. The following can be read the following in the Order dated 15^th May 2018:

 

“He (the appellant) spoke to Mr Subramaniam, and we also saw him speaking to Mr Chinnasamy.  We witnessed a very spontaneous reaction from Mr Chinnasamy, who looked very disturbed and reported to the bench that Mr Karunakaran had verbally abused him”.

Additionally, there is, in the Court record of 27^th March 2018, the following observation made by the Court:

“Okay in the light of the statement made by Chinnasamy alleging that certain abusive words were used against him, we do not dis believe him.  We are convinced that these words were used”.

 

20. Thus, it appears that the Judges, who witnessed the incident personally and who saw how distraught Mr Chinnasamy was, chose to believe his version.  This was based on personal observations by the Judges and their experience in assessing the demeanour and reactions of persons who appear before them.  Once again, there is nothing wrong in a summary finding of guilt having been made based on the above facts.
21. With specific reference to ground 4 the Court found that the appellant did actually say the impugned words as contended by Mr Chinnasamy. Hence there is little doubt that the acts of the appellant amounted to a contempt of Court.  Indeed, there is ample case-law in other jurisdictions which establish that an insult addressed to Counsel or to a solicitor in Court may amount to a contempt. Halsbury’s Laws of England, 2012, 5^th edition, Vol 22, at page 7, para 8: states:

“It is a contempt to any court of justice to disturb or obstruct the court by insulting behaviour in its presence and at a time when it is sitting.  Although the most common example of such a contempt is insulting behaviour directed to a judge or judicial office, insults directed to the jury or to counsel or a solicitor may also constitute a contempt in the face of the court.  Contempt may be shown either by language or manner.  Whether the words or behaviour in issue amount to a contempt is a question of fact to be decided in the circumstances of the particular case”.

 

22. It is further stated at pages 34 – 44, paras 46 and 47:

 

“The court will protect its officers while discharging their duties.  Thus, a solicitor who assaulted and intimidated an opposing solicitor while passing from the judge’s chambers to the outer door of the courts was punished by committal for contempt ………..  The protection afforded to officers of the court while discharging their duties extends also to counsel”.

 

Similarly, in the case of French v French (1824), 1 Hog. 138, it was held that “an insult to counsel may be punished as a contempt”.

 

23. Calling someone an ‘ass-licker’ is an obvious show of disrespect and scorn stated in an insolent manner intended to offend the integrity of a person.  It carries the imputation that the person who is willing to stoop below accepted standards in order to please other men or his superiors.  The reaction of Mr Chinnasamy, as is borne out in the Court record, speaks for itself.

 

24. Even if I were to accept, that the appellant did not say those words, but simply asked Mr Chinnasamy to ‘do his work sensibly’, that would still amount to contempt when seen in its context.  The appellant left the place where he was sitting in Court and came behind Mr Chinnasamy.  He first made some comments about the latter before speaking into his ear. Mr Chinnasamy reacted spontaneously which caused Court proceeding to be disrupted and the case which was being heard had to be postponed. The word ‘sensibly’ here means ‘reasonably’.  The comment of the appellant entailed that Mr Chinnasamy was not doing his work reasonably which was a direct imputation on the standard of latter’s submissions addressed to the Court. As a result of the words said to Mr Chinnasamy, the work of the Court, which was well on the way of hearing arguments, was disrupted.

 

24. In Blackstone’s Criminal Practice, 2014, at para B 14.80 it is stated thus:

“At common law, it (contempt) has been defined as behaviour involving an interference with the due administration of justice, either in a particular case or more generally as a continuing process ……. As Donaldson, MR said in AG v Newspaper Publishing plc [1988] Ch 333 at page 368:

The law of contempt is based on the broadest or principles, namely that the courts cannot and will not permit interference with the due administration of justice.  Its application is universal.  The fact that it is applied in novel circumstance ……. is merely a new example of its application”.

Hence an undue or unwarranted interference with the smooth administration of justice is objectionable and may amount to contempt.

 

26. The Constitutional Court did take all those aspects into consideration although it did not set out its reasoning as it considered the matter summary in nature. In its Order dated 4^th September 2018, the Court explained, at paragraph 2, how the behaviour of the appellant generally resulted in a disruption of Court proceedings.  Thus, I find that there were ample grounds on the basis of which a finding of contempt could have been made by the Constitutional Court. Grounds 2, 3 and 4 therefore fail.

 

27. As a consequence of the above analysis and findings, I find that this appeal is without merits.  It is dismissed accordingly in its entirety.

 

 

____________

Dodin JA

 

 

 

I agree                                                                                     F. MacGregor

                                                                                                President of the Court of Appeal

 

Signed, dated and delivered at Ile du Port on 10^th day of September, 2019.

 

 

The Background

 

1. On the 27 March 2018, a three bench Judge of the Constitutional Court sat to hear a case involving the appellant (then the petitioner), on the one hand, and the Tribunal of Enquiry and the Attorney General on the other hand (then the respondents).

 

2. According to the record of proceedings, Counsel for the appellant was addressing the Court in submissions from the bar when Mr. Chinnasamy interrupted the proceedings.

 

3. I find it appropriate to record the interaction below:

″Mr. Chinnasamy: This is our submission my Lord.

 

Court : Yes. Okay.

 

Mr. Boulle: I will stick to the points of my client my Lord. I will stick to the points which are before the Court today which your Lordship had asked us to address today and that is whether the Tribunal carries on with its existence for the purpose of judicial review and can the Judges –

 

Mr. Chinnasamy: I think Mr. Karunakaran is coming and giving me absolutely nasty abuses. Absolutely nasty abuses when my blood boils and then as with due respect to this Court I stand with my rules. Now I have to leave this Court. He provoked me to the extent where I cannot stand as a human being here.

 

Court (JN): Yes, let us have it on record what was said to you and the Court will take a stance.

 

Mr. Chinnasamy: He called me an ass licker.

 

Court (JN): What did he say?

 

Mr. Chinnasamy: He called me an ass licker.

 

Court (JN): How can he use that word?

 

Mr. Chinnasamy: No he just told me just now.

 

Mr. Karunakaran: No, I did not say this.

 

Mr. Chinnasamy: No, no he said. He said.

 

Court (JN): Yes.

 

Mr. Chinnasamy: He said this word.

 

Mr. Karunakaran: I did not say this.

 

...

 

Mr. Chinnasamy: No my Lord I am not his adversary and he is treating me as – and he treated me, what words he has told me? Do I go home and sleep tonight that I am imagining myself as an ass licker? ... He has to be taken to task and whatever is the end I will face it now.

Court : Alright.

....

 

Court (JN): Well, let us raise for a few minutes.

 

...

 

CASE STOOD DOWN

CASE RECALLED

 

Appearances as before

 

Court (JN): Okay in the light of the statement made by Mr. Chinnasamy alleging that certain abusive words were used against him we do not disbelieve him. We are convinced that these words were used. We are therefore inviting Mr. Karunakran to present his apology to the Court and to Mr. Chinnasamy. This is the view of the bench.

 

Mr. Karunakaran: With due respect my Lord, I didn’t utter these words.

 

Court (JN): Well-

 

Mr. Karunakaran: I never uttered these words. I asked him to make submissions sensibly.

 

Mr. Chinnasamy: My Lord he is telling a lie, he called me an ass licker.

 

...

 

Court : You will sit down. I said you are not entitled to give any instruction whatsoever to anybody on the other side.

 

Mr. Karunakran: I am not giving instructions, he is a friend of mine, I was talking to –

 

Court (JN): He is not your friend here. That is the end of the matter.

Mr. Chinnasamy you will make a formal complaint?

 

Mr. Chinnasamy: I will make.

 

Court (JN): And if you have any witnesses he will swear an affidavit. We are adjourning this matter to the next term okay?

...

 

Court : It is an insult to the Court.

 

Mr. Chinnasamy: Yes my Lord.

 

...

 

Mr. Chinnasamy: I am killed my Lord by this.

 

Court (JN): Yes it is for mention on 15^th OF MAY 2018 AT 9 O’CLOCK.

 

...

 

Court (JN): Okay we will first resolve this first issue. The complaint that has been made and what will be the stand of the Court okay.″

 

Emphasis supplied

 

4. As per the record of proceedings of the 27 March 2018, the Court was convinced that the appellant had said those disputed words as related by Mr. Chinnasamy and invited the appellant to tender his apologies to the Court. The appellant refused to apologise and was adamant that he had not said those words. The appellant stated that he had simply asked Mr. Chinnasamy to ″make submissions sensibly″. The question of whether a contempt of court had been committed by the appellant was raised. The Court adjourned the case to the 15 May 2018.

 

5. In the course of proceedings of 15 May 2018, the Court delivered an order:

 

"Order of the Court

 

1. In matters of the contempt of Court, this Court is empowered to deal with it, ie contempt in the face of it in virtue of its inherent powers;

 

2. We witnessed the behaviour of Mr. Karunakaran, which conduct constitutes an interference with the work of this Court and therefore amounts to contempt. We observed Mr. Karunakaran, moving from his seat and going right behind Mr. Chinnasamy, he spoke to Mr. Subramanian, and we also saw him speaking to Mr. Chinnasamy. We witnessed a very spontaneous reaction from Mr. Chinnasamy, who looked very disturbed and reported to the bench that Mr. Karunakaran had verbally abused him;

 

3. Additionally, we have received a letter from the Attorney General requesting that action be taken against Mr. Karunakaran, the letter is dated 29^th of March. And we have received statements from Mr. Thachett and Mr. Subramanian;

 

4. Accordingly, based on our observations and the documents that we have in our possession we are of the view that sufficient grounds exist for Mr. Karunakaran to show cause as to why he should not be dealt with for contempt of the Court.″

 

(Emphasis supplied)

 

6. In the course of proceedings of 15 May 2018, the Court gave Counsel for the appellant a letter from the Attorney General and the statements of Messrs Chinnasamy, Thachett and Subramanian who had made statements regarding this matter to the Attorney General.

 

7. It appears from the record of proceedings, that Counsel for the appellant had accepted the documents ″under protest″ on the ground that ″if it is a matter of contempt in the face of the Court … no 3^rd party can interfere with the case.″ Thereafter, Counsel for the appellant asked the bench whether ″[w]e will have a summons to show cause″. The Court informed Counsel that: ″[i]f there is a motion for a summons from your side we certainly now serve the summons …″. The Court adjourned the case to the 4 September 2018.

 

8. I now turn to the summons issued on the appellant, dated the 17 May 2018, to appear before the Court on the 12 June 2018, to show cause why he should not be dealt with for contempt of court, the relevant parts of which are reproduced verbatim:

 

• ″IN THE CONSTITUTIONAL COURT OF SEYCHELLES

 

In the matter concerning contempt of court proceedings against Mr. Duraikannu Karunakaran

 

MA 19/18 arising in CP09/17

 

CONTEMPT SUMMONS

 

WHEREAS at a court holden at the Court House, Ile Du Port, Mahe, Seychelles on the 27^th day of March in the Year two thousand  and eighteen

 

It is alleged that you, Mr. Duraikannu Karunakaran insulted Mr. Chinnasamy Jayaraj in open court and that behaviour disrupted the work of the Court sitting as a Constitutional Court.

 

YOU ARE THEREFORE HEREBY summoned to appear at a sitting of the Supreme Court to be held at 2 O’clock in the afternoon on the 12^th day of June in the Year Two thousand and Eighteen to show cause why you should not be held in contempt, the penalty for which may be a fine or a jail time sentence, or any other sentence which the Court deems fit in accordance with the prevailing law.

 

Your answer, if any, to the complaint which is herewith served upon you, must be filed within 7 days after service of this summons upon you, exclusive of the day of service. You are also required to file your answer, if any, to the complaint in the Registry of the Supreme Court.

 

Given under the seal of the Court, this 17^th day of May in the Year Two thousand and Eighteen.

 

REGISTRAR OF THE SUPREME COURT

 

To be served on:

 

Mr. Duraikannu Karunakaran C/O Mr. Philip Boulle Attorney at Law, Victoria House.″

 

9. The specific allegation giving rise to the alleged contempt, is set out in the second paragraph which stated: ″[i]t is alleged that you, Durai Karunakaran insulted Chinnasamy Jarayaj in open court and that your behaviour disrupted the court sitting as a Constitutional Court.″

 

10. Arising out of the penultimate paragraph of the summons to show cause, the appellant had to show cause by answering the complaint served with the summons which was in the form of a letter from the Attorney General, dated the 29 March 2018, (at B2 of the records), to which was attached three statements:

 

• at page B3 of the records, a ″[c]omplaint regarding the incident which took place in the Constitutional Court on the 27^th March 2018″, from Mr. Chinnasamy Jayaraj, dated the 28 March 2018;

 

• at page B4 of the records, a ″Statement″ from Mr. George Thomas Thachett, dated the 28 March 2018; and

 

• at page B5 of the records, a ″Statement″ from Mr. Ananth Subramanian, dated the 28 March 2018.

 

11. I reproduce the relevant parts of the said letter of the Attorney General:

 

″29^th March, 2018

The Registrar

…

 

Dear Madam

 

Re: Durai Karunakaran v/s Tribunal & Attorney General – CC9/2017 – Complaint against Mr. Durai Karunakaran J

 

I write to inform you that Mr. Jarayaj CHINNASAMY. Principal State Counsel. in the Attorney General’s Chambers lodged a complaint to me regarding the conduct and behaviour of Mr. Durai Karunakaran. suspended Judge of the Supreme Court. towards him during the court proceedings of the case Durai Karunakaran v/s Tribunal & Attorney General – CC9/2017. A copy of the complaint of Mr. Jayaraj CHINNASAMY and the statements of Messrs. Ananth and Thachett. Assistant Principal State Counsel. are attached herewith for your information.

 

In view of the seriousness of the said behaviour and conduct of Mr. Karunakaran J. in open Court as a party to the proceedings towards an officer of the Court. I would be grateful if you can inform the Chief Justice and/or the Judges that had constituted the panel of the Constitutional Court for the said proceedings of the said complaint in order that appropriate action may be taken against Mr. Durai Karunakaran J.

 

If you require any clarification or further information. Please contact the undersigned or Mr. Jarayaj CHINNASAMY.

Yours faithfully

 

 

Frank D.R. Ally

Attorney General."

 

12. The appellant’s answer to the summons to show cause, at page C1 of the records, stated:

 

• IN THE CONSTITUTIONAL COURT OF SEYCHELLES

 

In the matter concerning contempt of court proceedings against Mr. Durai Karunakaran

 

MA19/18 arising in CP09/17

 

ANSWER TO SUMMONS DATED 17^TH MAY 2018

 

Mr. Duraikannu Karunakaran will on the 12^th day of June object to the Summons dated 17^th May 2018 issued by the Registrar of the Supreme Court on the following grounds:

 

1. The summons based on an allegation, is misconceived and beyond the powers of the Registrar.

 

2. The Constitutional Court has no jurisdiction to undertake, hear or determine complaints by a third party to a proceeding before the Constitutional Court.

 

3. The alleged complaint by Mr. Jayaraj Chinnasamy is not before the Court as it was made to the Attorney General.

 

4. Mr. Duraikannu Karunakaran has no obligation in law to answer a complaint made by the Attorney General and forwarded to the Constitutional Court or any Court.

 

5. Mr. Karunakaran has got no legal obligation to show cause as the Constitutional Court has no inherent jurisdiction to hold him in contempt on a complaint to the Attorney General by third parties, over and above which all the evidence that underpins the allegations are unsworn.

 

6. The Constitutional Court is not competent to consider any answer to the complaint which is served upon Mr. Karunakaran as the Constitutional Court has already determined the matter conclusively by its finding made on 27^th March 2018 that the Court ″is convinced that the words were used″ after hearing the denial of Mr. Karunakaran.

 

7. The Constitutional Court has admitted that it has no jurisdiction in the matter in its clear statement made in Court on the 27^th March 2018, that ″that is the end of the matter″ as far as the Court is concerned…

 

8. Dated this 24 day of May 2018.

 

Philippe Boullé

Attorney for Duraikannu Karunakaran

307 Victoria House

Victoria

Mahe

Seychelles"

 

13. The Court comprising of the same bench of three Judges resumed proceedings on the 4 September 2018. Neither the appellant, nor Mr. Boulle was present on this date. The appellant was represented by Mr. Frank Elizabeth Attorney-at-Law, who had not been sufficiently instructed. The Court delivered its order finding the appellant guilty of contempt.

 

14. I reproduce the relevant parts of the order of 4 September 2018:

 

″1. In this matter, in the course of proceedings before the Court of 27^th March, in the course of the hearing of the main case 09/2017, this Bench witnessed an incident. In fact what we witnessed amounted to misbehaviour by Mr. Karunakaran and it amounted to a contempt of Court.

 

2. Now the Bench witnessed Mr. Karunakaran moving from this side where he was supposed to be and went on the right side and we saw him speaking in the ears of Mr. Chinnasamy and at a particular point in time Mr. Chinnasamy got up very spontaneously and informed the Court about a language that was used by Mr. Karunakaran against him and later on when asked as to what Mr. Karunakaran had to say to Mr. Chinnasamy, Mr. Karunakaran said ″while he is my best friend and I was advising him to do his case properly″. Now there are two parts to it, we raised the Court and we came back and the Bench invited Mr. Karunakaran to apologise to Mr. Chinnasamy. This in fact did not mean that after his apology the bench could not have pursued any other action open to it.

 

3. So there was no apology though there was an order from the Court and later on a summons was served upon Mr. Karunakaran to show cause as to why contempt proceedings should not be continued against him.

 

4. We are satisfied that Mr. Karunakaran is guilty of contempt of Court; that contempt occurred on the 27^th March.

 

5. We therefore convict him of contempt of Court and we are sentencing him to pay a fine of Five Thousand Rupees (R5,000), failing which we order that he will serve a sentence of seven days imprisonment. We give him one month to pay the fine…″.

 

Emphasis supplied

 

15. In summary, the order of 4 September 2018, found as follows:

 

• that ″what we witnessed amounted to misbehaviour by Mr. Karunakaran and it amounted to a contempt of Court:

 

• that ″the Bench invited Mr Karunakaran to apologise to Mr. Chinnasamy″;

 

• that the appellant did not tender his apologies;

 

• that a summons was issued on the appellant to show cause as to why contempt proceedings should not be continued against him;

 

• that the Court was satisfied that the appellant was guilty of contempt;

 

• that the appellant was sentenced to pay a fine of 5,000/- rupees, failing which, he would serve a sentence of seven days imprisonment.

 

16. On the 5 September 2018, the appellant paid the fine of 5,000/- rupees which had been imposed on him.
17. The appellant has appealed against his conviction by the Constitutional Court for contempt of court.

 

The Appeal

 

18. The appellant is seeking by way of relief to quash the conviction of the appellant for contempt of Court.

 

19. The grounds of appeal are:

 

″1. The finding of guilt by the Constitutional Court is without juridical foundation as it fails to rest on the Order of the Court delivered on the 15 May 2018 and summons to show cause and consequently address the objections raised by the Appellant dated the 24 May 2018.

 

2. The Constitutional Court erred in its finding of guilt as it ignores and fails to draw its reasoning from the material facts on record.

 

3. The finding of the contempt is erroneous as it fails to adjudicate on the issues and material facts found to be the substance of contempt in respect of which the Appellant was required to show cause.

 

4. The Order is erroneous as the facts relied on for the finding of guilt does not disclose a contempt of court by the Appellant.″

 

The Analysis

 

20. I have considered the records, the grounds of appeal and the written submissions offered on behalf of the appellant and the respondent.

 

21. A determination of grounds 1, 3 and 4 will suffice to dispose of this appeal. I now deal with the grounds of appeal in the order which appears more appropriate.

 

Grounds 1 and 4 of the grounds of appeal

 

22. Counsel for the appellant contended that the Court had no jurisdiction to hear the matter as it had inter alia prematurely expressed guilt. At page 8 of the record of proceedings of 27 March 2018, the Court said: ″[w]e are convinced that the words were used″ and in the order, dated the 15 May 2018, at page 14: ″[w]e witnessed the behaviour of Mr. Karunakaran, which conduct constitute an interference with the work of this Court and therefore amounts to contempt.″ Counsel referred to Marjorie M.F. Serret nee Joubert v The Attorney General CR SCA NO: 9/2011 (31 August 2012).

 

23. Counsel submitted that these two accusations contained two distinct elements, namely:

 

1. insulting Mr. Chinnasamy in open court; and

 

2. a behaviour that disrupted the Court.

 

24. He invited us to consider these two accusations on the basis of the law and the facts. In Mullery v R (No.2) SLR [1956] at p. 10, the Court of Appeal of Seychelles stated:

 

″It is well settled that to come within the definition of contempt of the court there must be involved some act done or writing published calculated to bring a Court or a judge of the Court into contempt or to lower his authority or something calculated to obstruct or interfere with the due course of justice or the process of the Court.″

 

 

In relation to the facts, he submitted that the order, dated the 4 September 2018, stated that: ″Mr. Karunakaran moved to the right side and spoke in the ear of Mr Chinnasamy″.

 

25. Counsel contended that the above act of the appellant cannot in any way lend support to the finding of contempt of court for the following reasons:

 

1. based on the facts: in terms of the summons to show cause, the facts alleged in the two accusations are not supported by the evidence on record as follows:

 

• the appellant did not insult Mr. Chinnasamy in open Court and he was not heard by the Bench, nor by the public; and

 

• his action did not disrupt the Court.

 

(2) based on the applicable law: Mullery supra:

 

• the act of the appellant was not an ″[a]ct done calculated to bring a Court or Judge of the Court into contempt or to lower its authority";

 

• nor was it an act ″calculated to obstruct or interfere with the due course of justice or the lawful process of the court″.

 

3. on the issue of jurisdiction: the attempt by the Court, in its order of 15 May 2018, to bring the contempt as one ex-facie curiae is further flawed as the Court ruled on a disputed fact i.e., the words spoken by the appellant, which was not in the face of the Court, should have compelled the Court to hear evidence on oath before making a finding. Counsel for the appellant referred to The State v Walsh & another (1981) IR 412 at 432, and to Balogh v St Albans Crown Court [1975] 1 Q.B 73.

 

26. The respondent did not accept the contentions offered on behalf of the appellant. Counsel for the respondent submitted that the finding of guilt by the Court had juridical foundation. He rested on paras [2] and [3] of the order dated the 15 May 2018. A court of record has the inherent jurisdiction to punish for contempt. He referred to Roger Mancienne v Government of Seychelles (10 of 2004) [2005] SCCA 1 (16 February 2005), and to In the Matter of Contempt Proceedings Against Kathleen Pillay Criminal Side No. 16 of 1994 (5 July 1994).

  

27. According to the contention of Counsel for the respondent, the forms of conduct which constituted contempt in the face of the Court were insult to the Court and interruption of Court proceedings. In the view of Counsel, the act of the appellant, getting up from his place and walking to the other side where Mr. Chinnasamy was seated and saying ″something in the ear of Counsel [Mr. Chinnasamy]″ and Mr. Chinnasamy subsequently appearing visibly shocked and immediately complaining to the Court that the appellant had called him an ″ass licker″, amounted to conduct constituting contempt in the face of the Court.

 

28. He submitted that when the Court resumed on the 4 September 2018, the date which the appellant himself sought on the ground that he has to engage Counsel from overseas, neither the appellant, nor any Counsel representing the appellant was there. Thus, the Court correctly convicted him of contempt of court and sentenced him to pay a fine of 5000 rupees.

 

29. Counsel also made the point that the appellant should be considered as having waived his right to appeal by paying the fine.

 

30. I read from Halsbury’s Laws of England Contempt of Court (Volume 24 (2019)) - 2. Kinds of contempt, that criminal contempt, with which we are concerned here, consist ″of words or acts which impede or interfere with the administration of justice, or which create a substantial risk that the course of justice will be seriously impeded or prejudiced″.

 

31. It is undisputed by these parties that the appellant had said ″something in the ear of Counsel [Mr. Chinnasamy]″, and that Mr. Chinnasamy had immediately made a complaint to the Court in relation to the words said to him. The appellant stated that he had simply asked Mr. Chinnasamy to ″make submissions sensibly″. It is also undisputed by these parties that the appellant did not insult Mr. Chinnasamy in open Court, and that he was not heard by the Bench, nor by the public. It is also undisputed by these parties that the words which the appellant have said to Mr. Chinnasamy in his ear was the event that started the whole occurrence.

 

32. I note that the specific allegation giving rise to the alleged contempt is set out in the second paragraph of the summons to show cause which stated: ″[i]t is alleged that you, Durai Karunakaran insulted Chinnasamy Jarayaj in open court and that your behaviour disrupted the court sitting as a Constitutional Court.″ According to the record of proceedings of 27 March 2018, the Court was ″convinced that the words were used″. Further, in its order of 15 May 2018, the Court found that: ″we witnessed the behaviour of Mr. Karunakaran, which conduct constitutes an interference with the work of this Court and therefore amounts to contempt″. The order of 4 September 2018, stated that: ″Mr. Karunakaran moved to the right side and spoke in the ear of Mr. Chinnasamy.″

 

33. Having considered the record of proceedings of 27 March 2018, I accept the submission offered on behalf of the appellant that the action of the appellant: ″Mr. Karunakaran moved to the right side and spoke in the ear of Mr. Chinnasamy″, as per the order made in the proceedings of 4 September 2018, cannot in any way lend support to the finding of contempt of court. It is clear that the facts alleged in para [32] hereof are not supported by the evidence on record. According to the record of proceedings of 27 March 2018:

 

• the appellant did not insult Mr. Chinnasamy in open Court;

 

• the appellant was not heard by the Bench, nor by the public; and

 

• the appellant’s action did not disrupt the Court: see Mullery supra.

 

I also agree with the appellant that the attempt by the Court, in its order of 15 May 2018, to bring the contempt as one ex-facie curiae was further flawed as the Court ruled on a disputed fact.

 

34. I now turn to the order of 4 September 2018. It is clear that all the steps which have been described above, were taken in preparation of a full hearing by the Court, although it is to be noted that, when such summons was issued, the Court had already decided that the act of the appellant was contemptuous. The appellant filed his ANSWER TO SUMMMONS DATED 17^TH MAY 2018 on the 24 May 2018. As per the record of proceedings of 12 June 2018, the oral hearing did not take place. A hearing did not take place on the 4 September 2018, either. The order of 4 September 2018, made in the absence of the appellant, was in the nature of a summary determination.

 

35. The order of Court finding guilt did not consider the points of law raised by the appellant in his ″ANSWER TO SUMMONS DATED 17^TH MAY 2018″. The Court did not justify its decision that it had jurisdiction to hear the case when its power to do so had been challenged.

 

36. The said order of 4 September 2018, did not explain why the Court chose to accept the version of Mr. Chinnasamy and of his witnesses and to reject the version of the appellant in relation to the words that were allegedly said by the appellant to Mr. Chinnasamy.

 

37. I turn to the submission of Counsel for the appellant that the Court should not have dealt with the matter because it had inter alia prematurely expressed guilt. It is unequivocal that the Court had already decided upon the guilt of the appellant in the present case. In Marjorie M.F. Serret nee Joubert supra, the Court of Appeal quoted with approval the holding from DPP v Channel Four Television Co Ltd (1993) 2 All E R 517 and R v Schot and Barclay (1997) 2 Cr. App. R. 383, that a judge should refer the matter to another judge or to the Attorney General if he prematurely expresses a view of guilt.

 

38. For the reasons stated above, I also find that the Court had erred in law in failing to follow appropriate procedures, the rules of natural justice and the fundamental human rights of the appellant that are enshrined and entrenched in the Constitution resulting in a serious miscarriage of justice.

 

39. In Balogh supra, the court stated that the summary procedure to deal with contempt of court ″… must never be invoked unless the ends of justice really require such drastic means: it appears to be rough justice; it is contrary to natural justice; and it can only be justified if nothing else will do″.

 

40. I allow grounds 1 and 4 of the grounds of appeal.

 

 

Ground 3 of the grounds of appeal

 

41. In relation to ground 3 of the grounds of appeal, Counsel for the appellant contended that it was incumbent upon the Court to adjudicate on the facts alleged in the summons to show cause. I find the submissions offered on behalf of the respondent, in relation to this ground, provide no adequate refutation of the points made by Counsel for the appellant.

 

42. Para 2 of the summons to show cause stated: ″[i]t is alleged that you, Durai Karunakaran insulted Chinnasamy Jarayaj in open court and that your behaviour disrupted the court sitting as a Constitutional Court.″

 

43. In the Matter of Contempt Proceedings Against Kathleen Pillay Criminal Side No. 16 of 1994 (5 July 1994), the Supreme Court referred to Black’s Law Dictionary 5^th Edition (1979) for the definition of the expression ″show cause why you should not be committed for contempt of court″. Black’s Law Dictionary 5^th Edition (1979) defined the said expression as ″a legal phraseology for calling on an alleged contemnor to give his own explanation of that which is considered contemptuous and to correct any misapprehension as to what he had in fact said or meant.″ The Supreme Court stated: ″[w]hen such summons is issued, the judge has already decided that the act of the respondent was contemptuous. No further evidence was necessary to convince him that it was so. It then falls on the respondent to either apologise or sufficiently explained why he or she should not be dealt with.″

 

44. As submitted by Counsel for the appellant, the Court in its order of 15 May 2018, made no finding whatsoever with respect to the accusations in the summons to show cause. In relation to the disputed facts, the Court stated in its order of 15 May 2018: ″[n]ow the Bench witnessed Mr. Karunakaran moving from this side where he was supposed to be and went on the right side and we saw him speaking in the ears of Mr. Chinnasamy and at a particular point in time Mr. Chinasammy got up very spontaneously and informed the Court about a language that was used by Mr. Karunakaran against him and later on when asked as to what Mr. Karunakaran had to say to Mr Chinnasamy, Mr Karunakaran said ″while he is my best friend and I was advising him to do his case properly″. Emphasis supplied

 

45. I, therefore, accept the submission of Counsel for the appellant that the finding of guilt of the 4 September 2018, harbours a fatal error.

 

46. I allow ground 3 of the grounds of appeal.

 

47. In relation to the question of whether the appellant has waived his right to appeal by paying the fine, it was held in the Mauritian case of Mactoom v R [1990 MR 155] that the payment of the fine cannot be construed as an admission of guilt followed by renunciation of the right of appeal: see also Rossensing Beego v The Independent Commission Against Corruption and Another, And in the matter of: Naushad Maudarbaccus & Another v The Independent Commission against Corruption and Another [2015 SCJ 19]. The right to appeal is a fundamental human right which cannot be lightly denied to a party.

 

The Decision

 

48. For the reasons stated above, I allow the appeal, quash the conviction of the appellant for contempt of court.

 

 

  F. Robinson (J.A)

Signed, dated and delivered at Ile du Port on 10 September 2019.