In the Supreme Court |29 July 2020

Judge Govinden calls on LDS to file its defence

● Nelson Flore gets 14-year sentence

Judge Rony Govinden has ruled against the pleas regarding the dismissal of the case brought by Linyon Sanzman against Linyon Demokratik Seselwa and has called on the latter to file its defence.

Justice Govinden made the ruling in the Supreme Court on Monday July 27, 2020.

On the other hand, Justice Govinden said in his final determination that he upheld the pleas in limine litis to the extent that the action against the Electoral Commission (second defendant), Durai Karunakaran (third defendant) and Registrar of the Supreme Court (fourth defendant) are not maintainable.

He added that “this is a case worthy of being tried on the merits between the plaintiff (Linyon Sanzman) and Linyon Demokratik Seselwa (LDS, the first defendant). The facts of the case will determine whether the acts of the first defendant were motivated by malice and abuse or were founded on reasonable and probable cause. The pleas in limine of the first defendant, to the extent that it seeks to prevent this claim, is dismissed.”

The case is an action in delict in which Linyon Sanzman averred that certain events and conduct of the defendants (collectively and individually) resulted in the inability of the plaintiff (Linyon Sanzman) to use the name Linyon Sanzman in the 2016 National Assembly elections.

As a result, Linyon Sanzman said it could not take part in the said election and suffered enormous financial losses as well as anxiety, humiliation and stress.

Linyon Sanzman is claiming a sum of R3,429,097 million from the defendants jointly and/or severally as their actions constitute a faute in law for which they are liable.

Linyon Sanzman claimed that Linyon Demokratik Seselwa, out of malice and spite for the plaintiff and its leader, prevented it from using the name Linyon Sanzman in the 2016 election. It said Linyon Demokratik Seselwa did so by maliciously bringing a judicial review suit before the Supreme Court, under case number MC 86/2016, challenging the allocation of this name to the plaintiff (Linyon Sanzman) by the Electoral Commission (the second defendant) and filed an application for a provisional injunction, under case MA 257/16, preventing the name Linyon Sanzman from being allocated to the plaintiff. The plaintiff averred further that Durai Karunakaran (the third defendant), being a judge of the Supreme Court at the time these matters were filed, self-allocated the two cases to himself and granted an interim injunction prohibiting the second defendant (Electoral Commission) from accepting, applying or registering any candidates nominated by the plaintiff in the National Assembly election and quashed the decision of the Electoral Commission to allocate the name Linyon Sanzman to the plaintiff. The third defendant (Durai Karunakaran) thereafter self-allocated, determined and refused two ancillary applications connected to these suits.

Still according to the plaintiff, the Court of Appeal subsequently reversed and quashed the decision of Judge Karunakaran and in so doing had held that he (Judge Karunakaran) had abused the process of the court.

Justice Govinden wrote in his ruling that although Justices of Appeal, Judges and Masters of the Supreme Court are, as per Article 119(3) of the Constitution, are immune from all suits and liabilities for anything done or said during the course of their judicial performance, constitutional proceedings against them shall stand in good.

“The proceedings that the Constitution had prescribed are found in Article 134(1) of the Constitution which makes judicial tenure subject to good judicial conduct. The ultimate sanction being the removal of the judge from office. This is established case law and this court sees no reason to depart from the principle that the jurisprudence has firmly established. The former judge in this case being the third defendant was the subject matter of removal procedures under Article 134(1)(a) of the Constitution. These proceedings focused partly on his actions in the two cases as raised in this plaint,” wrote Judge Govinden.

As per the Constitutional procedure a tribunal was appointed under article 134(2)(a). The tribunal after inquiring into the matter recommended to the President to remove Judge Karunakaran from the office of a judge of the Supreme Court as per the provision of Article 134(3) of the Constitution. The President acting on the recommendation, removed him from Office.

Meanwhile, in another judgment delivered by Judge Mohan Burham on Monday, Nelson Flore was sentenced on four counts and to four terms of eight years, 14 years, three years and one year, but alltermsofimprisonment willrun concurrently, meaning he will spend 14 years behind bars.

Represented by lawyer Joel Camille, Flore, 29 of St Louis, has been sentenced for the following offences:

Count 2: Unlawfully wounding with intent to do grievous harm contrary to Section 219 (a) of the Penal Code and punishable under Section 219 of the Penal Code;

Count 4: Assaulting a person with intent to steal money and at or immediately before or immediately after the time of the assault, wounds any person whilst armed with an offensive weapon contrary to Section 282 of the Penal Code and punishable under the same.

Count 5: Assaulting occasioning actual bodily harm contrary to Section 236 of the Penal Code and punishable under Section 236 of the Penal Code.

Count 6: Possession of ammunition without holding a firearm licence contrary to Section 4 (2) (a) of the Firearm and Ammunition Act and punishable under Section 4 (1) of the Firearms and Ammunitions Act.

Counts 2 and 4 attract a maximum   term of life imprisonment,   while count 5 attracts a maximum   term of seven years imprisonment   and count 6 a maximum   term of one year imprisonment.

It was on June 25, 2109 at around 7.30pm that Flore entered a shop at Bel Air armed with a gun with the intention of stealing. He had demanded money after showing a hand gun. Two persons who were in the shop attempted to disarm the convict. One person got shot by the convict in the stomach and sustained injuries in the stomach. Another received laceration injuries on his head on being hit by the convict with the back of the hand gun. However, the convict was over-powered and handed over to the police and subsequently several charges were brought against him. Flore pleaded guilty to the offences and was convicted on his own plea of guilt.

The time Flore has spent in remand will count towards the sentence.

Judge Burham did not make any order in respect for compensation since Flore will be in prison and the victim who suffered grievous injury is no more in the Seychelles.

Compiled by Gerard Govinden