POLICE v N.

RAMGOOLAM

2019 INT 5

POLICE v N. RAMGOOLAM

CN: 977/2017

THE INTERMEDIATE COURT OF MAURITIUS

(CRIMINAL DIVISION)

In the matter of:-

Police

v/s

Navinchandra RAMGOOLAM

RULING:
The accused stands charged with the offence of:-

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Limitation of payment in cash, in breach of Sections 5, 7 & 8 of the Financial
Intelligence and Anti-Money Laundering Act 2002, under Counts 1 to 23.
The accused has pleaded Not Guilty to the 23 Counts and he is assisted by a panel of
counsel.
The trial has not yet started and after the information has been amended, on 21/09/18,
Learned Senior Counsel, Mr. G. Glover appearing for the defence, has moved that
the Court orders the present matter be put in abeyance and/or stayed pending the
final determination of two constitutional cases initiated by the accused, which, in
his view, have a direct bearing on the present amended information; more importantly,
as to the defences opened to the accused.
In relation to this motion, Mr. G. Glover SC informed the Court of the following reasons:
1. The constitutionality of the search warrants, which were the instruments used by
the police to gain entry, searched the premises of the accused and seized the
moneys, subject matter of the 23 Counts, is being questioned in a Plaint with
summons under Section 17 of the Constitution ever since 29/11/15. In that
case, the Learned DPP has been made a party to the proceedings precisely
because of the relevance of the constitutional challenge to possible cases to be
brought by his office before the Criminal Courts. He now knows that the DPP has
indeed done so in virtue of the present amended information before the Court.
The constitutional relief Plaint with summons has now been fixed to be heard
by the Supreme Court following a motion by the DPP to be put out of cause
which motion is being resisted.

2. (a) A parallel case to the present amended information being an application for
the forfeiture of, inter alia, the same moneys seized by the police, again pursuant
to the very same impugned search warrants, has been lodged on 20/03/18 by the
Integrity Reporting Services Agency before the Judge in Chambers pursuant to
Sections 14 and 16 of the Good Governance & Integrity Reporting Act 2015.
This application is being resisted by the accused as respondent and the Director
of Public Prosecutions is a co-respondent, so is the police. In the Proecipe of
that application, it will become apparent that the Integrity Reporting Services
Agency is asking for a Confiscation Order of the very moneys, subject matter of
the 23 Counts before this Court. The matter is to be heard before the Judge in
Chambers on 12/10/18.
(b) Following the said application by the Agency, the accused as a Plaintiff has
applied for redress under Section 83 (1) of the Constitution, wherein he
challenges the amendments brought to Section 8 (4) of the Constitution and
numerous provisions of the Good Governance & Integrity Reporting Act (Act
31 of 2015).

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Mr. G. Glover SC explained that if the Intermediate Court shall not wait for the decisions
of the Supreme Court, the defence will ask the Intermediate Court to refer the matter to
the Supreme Court as these are Constitutional issues, of which the Intermediate Court
does not have any jurisdiction.

Mr. R. Ahmine, the Learned Deputy D.P.P, stated that the motion is being resisted by
the Prosecution on three grounds, namely,
1. With regard to the first case, there is no Order from the Supreme Court
requesting the present bench to stay proceedings in the present matter;

2. The Prosecution does not believe that an application made by the Agency
against the defendant justifies the stay of proceedings in the present case
because these are two different matters, the case entered by the Agency and the
case before the Intermediate Court; and

3. The application is misconceived in law and constitutes an abuse of the process

of the Court.

On the day of the Argument, Mr. G. Glover SC submitted as follows:

(1).The defence is being made quite unfairly to fight two fights in respect of the forfeiture
of the same moneys; that is, the defence has to fight on two different fronts, namely, in
what is provided in the provisions of the Good Governance & Integrity Reporting Act
(hereinafter referred to as GGIRA) and those of the Financial Intelligence and Anti-
Money Laundering Act (later referred to as FIAMLA);
(2).The two constitutional cases, which are before the Supreme Court, have direct
relevance to the present matter, in that, the Director of Public Prosecutions in the
present case and the Integrity Reporting Agency in the other matter are dealing with
one and the same Exhibit, and at a certain point in time, the decision that has to be
taken is which matter has priority over the other;
(3).The accused has lodged a constitutional claim before the Supreme Court, praying
that the search warrants be declared null and void, and that the property seized
pursuant to the search warrants be returned to him. If the search warrants are declared
unlawful in that case, this will impact not only on the present matter, but also on the
application for confiscation by the Integrity Reporting Agency (hereinafter referred to as
the Agency);

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(4).If the Supreme Court decides that the provisions impugned by the defendant in his
constitutional claim against the provisions of the GGIRA and the new Section 8 (4A) of
the Constitution is allowed, then, this decision too will have a cascading effect on the
proceedings before the Judge in Chambers and the Intermediate Court;
(5).The accused’s constitutional challenge case in respect of the search warrants had
been lodged more than two and a half years prior to the lodging of the present case;
(6).The constitutional cases will have a direct bearing on the defences available to the
accused;
(7).There are two constitutional cases of importance and rather than just sending the
matter to the Supreme Court, which will be a clear duplication of what is already before
the Supreme Court;
(8).If the present criminal matter is not stayed, then, it would mean that the
constitutional claim with regard to the search warrants and the provisions of the GGIRA
would be rendered nugatory and of no consequence at all. It would also prevent the
defendant from availing himself of the rights he is given under the Constitution;
(9).If this case is to proceed, there may be contradictory judgment by the Supreme
Court that the search warrants were lawful and this would not be good for the due
administration of justice under due process of law; and
(10).We would also have a conflict with the Confiscation Order which may or may not
have been granted by the Judge in Chambers.

On the other hand, Mr. R. Ahmine contended as follows:

(1).There is no power given to the Intermediate Court in a case like this one to stay
proceedings pending the final determination of the two Supreme Court cases. Once a
case has been lodged, the Court is under a duty to hear the case until determination of
that case;
(2).There is a motion made in the constitutional relief case on behalf of the defendant
for any urgency before the Supreme Court;
(3).A temporary stay of the criminal proceedings would constitute an abuse of the
process of the Court;
(4).Although the constitutional relief case was lodged before the criminal case, there is
no obstacle in law to prevent the defendant from making an application before the
Supreme Court to stay the criminal proceedings. It is only the Supreme Court which can
decide whether to order for a stay of proceedings;

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(5).There are many cases on the issue and it makes no difference whether the
constitutional relief case has been lodged before the criminal case;
(6).The procedure is that it should be the Supreme Court and not the Intermediate Court
which must look into the merits of the Plaint with Summons and to decide whether to
stay proceedings. The proper procedure is to make an application before the Supreme
Court;
(7).Whenever an application has been made under Section 17 of the Constitution by
way of Plaint with Summons, asking the Supreme Court to intervene regarding issues
about evidence, for example, asking for a constitutional redress, the Supreme Court has
been very reluctant to intervene and the reason is simply to prevent the defendant in a
criminal case from coming straight before the Supreme Court instead of facing a
criminal trial. Furthermore, Mr. R. Ahmine sought reliance upon the case of Pravind
Kumar Jugnauth v The Secretary to the Cabinet and Head of the Civil Service
Affairs & Ors. [2013 SCJ 132], where the Supreme Court said that, “It is only where the
trial or appellate process fails to afford adequate protection to an accused party that he
can seek redress under Section 17.”;
(8).Even assuming the worst-case scenario that the Supreme Court will grant the
constitutional relief and will hold that evidence has been illegally obtained, this will not
prevent the prosecution from proceeding with its case before the Intermediate Court, as
not every item of evidence which has been improperly obtained or illegally obtained
becomes inadmissible in law;
(9).Even if an application is made under the GGIRA, this does not prevent a Court of
Law from making a Forfeiture Order;
(10).The case entered by the Agency is a civil one, which is against the defendant’s
property, whereas the present case is against the person; and
(11).Taking the worst-case scenario that the Supreme Court and the Judicial Committee
of the Privy Council rule that the provisions of the GGIRA are unconstitutional, this will
not have a bearing on the present case.
Thus, Mr. R. Ahmine submitted that the present motion made by the defence be set
aside.

Mr. G. Glover SC replied that the Court has a power to stay permanently the
proceedings and if there is a power to stay permanently, logic concludes that there is a
power to stay temporarily.
Mr. R. Ahmine responded by stating that the Court has the power to stay proceedings
on the ground of abuse of process and we are not in that situation. He added that when
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it comes to the power of the Court under the FIAMLA, the Agency under the GGIRA
has no concurrent jurisdiction or priority, and if the case before the Supreme Court has
been decided and the Supreme Court orders for forfeiture, the question will not arise; it
will just be a question of conviction.
Finally, Mr. G. Glover SC concluded by replying that since the Director of Public
Prosecutions has decided to initiate the proceedings before the Intermediate Court, the
defence has chosen to come before this Court to apply for a stay of proceedings in view
of the inherent power of the Court to order such stay.
Both, Mr. G. Glover SC and Mr. R. Ahmine referred to numerous interesting authorities
to buttress their submissions.

ANALYSIS:
After taking due consideration of the submissions of Mr. G. Glover SC and Mr. R.
Ahmine, the Court has noted the following:
There are two cases lodged by the defendant before the Supreme Court: The first one
is his application for Constitutional relief pursuant to Section 17 of the Constitution
wherein the legality of the search warrants is being challenged. In this application, he is
also making an attempt to claw back “the properties seized as a result of” the alleged
illegal search warrants. The second matter is his application for Redress under
Section 83 (1) of the Constitution in which he is bringing into question Section 8 (4
aa) of the Constitution and several provisions of the GGIRA. The Court shall now
consider the scope and nature of the two applications in order to ascertain whether
there will be any implication on the present matter. The Court shall also deal with other
matters, which have surfaced in the course of the Argument, in turn.

(1).The application for Constitutional relief pursuant to Section 17 of the

Constitution:
(a).Section 7 of the Criminal Procedure Act:
As a starting point, Section 17 (1) of the Constitution provides that,
‘Where any person alleges that any of sections 3 to 16 has been, is being or is likely to
be contravened in relation to him, then, without prejudice to any other action with
respect to the same matter that is lawfully available, that person may apply to the
Supreme Court for redress.’
The first striking feature of this provision of the law is that an application for
constitutional relief is a civil matter, unlike the present criminal case. At this juncture, the
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Court finds it apposite to refer to Section 7 of the Criminal Procedure Act, which
provides that,
‘(1) No prosecution at the suit of the State shall be joined with a civil action, but a
private party in whose behalf a prosecution has been instituted may bring an
action for damages in a civil Court against the offender.
(2) The verdict or judgment in the one case shall not be admitted as evidence in
the other.’
Section 7 of the Criminal Procedure Act is in line with the well-known French ‘adage’
that ‘le pénal ne tient pas le civil en état’, a principle which has been well established in
our law. In Gorpatur v kooshur [1951 MR 31], the Supreme Court has, indeed, held
that, “… a judgment of a criminal court cannot be admitted in a civil action as evidence
of the truth of the matter decided by the criminal court and which is at issue between the
parties to the suit.”. Therefore, common sense dictates that the converse is equally true.
(b).Section 17 (2) of the Constitution:
Section 17 (2) of the Constitution stipulates that,
‘… Provided that the Supreme Court shall not exercise its powers under this subsection
if it is satisfied that adequate means of redress for the contravention alleged are or have
been available to the person concerned under any other law.’
Of relevance is the case of B. Jekarahjee v The State of Mauritius [2010 SCJ 60],
where the Supreme Court observed that,
“This principle has been constantly applied by the Supreme Court and the Court has
declined to entertain any application for Constitutional redress where it is satisfied that
alternative adequate means of redress under another law were available to the plaintiff.”
The rationale behind the proviso in Section 17 (2) of the Constitution has been
explained in Vert v District Magistrate of Plaines Wilhems [1993 MR 28], where the
Supreme Court said that,
“… given the nature and extent of the substantive fundamental rights and freedoms
guaranteed under Chapter II both as to person and property, including the procedural
measures designed to enforce those rights, the restrictions that govern the grant of
a section 17 remedy as enacted in the proviso have for their object the prevention
of such abuses as may short-circuit the jurisdiction of subordinate courts, stultify
other forms of action available in the Supreme Court itself or else gain an unfair priority
over cases entered by other litigants who, themselves, might have made use of other
forms of action provided by the law to vindicate a Chapter II right.” [Emphasis added]

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Without stepping into the shoes of the Supreme Court and going to the extent of
pronouncing that the civil action of the accused under Section 17 of the Constitution
is unjustified, it is proper for the Court to say that in the criminal matter before the
Intermediate Court, the complaint of the accused with regard to the validity of the search
warrants can be taken care of in both proceedings, before the Intermediate Court and
eventually on appeal in the event the defendant is not satisfied with the pronouncement
of the Court.
Therefore, it is apparent that the legal principle which can be distilled from the string of
cases above-mentioned is that an action under Section 17 of the Constitution cannot
have precedence over an existing criminal proceedings against the defendant and
Section 17 (2) of the Constitution proviso does protect such proceedings from being
stultified or blocked by improper recourse to the former provision of law. In relation to
the present case, the action under Section 17 of the Constitution, entered by the
defendant, cannot be a bar to the criminal proceedings before the Intermediate Court.
Mr. G. Glover SC submitted that if the search warrants are declared unlawful by the
Supreme Court, this will have a bearing on the present matter. The Court is of the
considered opinion that even if the Supreme Court decides that the search warrants are
unlawful, that may not bring the present matter to a halt, because, as rightly submitted
by Mr. R. Ahmine, not every piece of evidence which has been illegally obtained is
inadmissible in law. Depending upon factors and circumstances, an improperly obtained
evidence may or may not be admissible. It is, hence, premature to rule on this issue.
Now, whether a pronouncement by the Supreme Court that the search warrants in
question are illegal will impact on the application for confiscation by the Agency is of no
concern to the Intermediate Court.

(2).The application for Redress under Section 83 (1) of the Constitution:

A distinction must be drawn between the nature of such application and that of the
present case. In that respect, the Court finds pertinent to cite the relevant provisions of
the GGIRA which read as follows:
Section 14 (1) of the GGIRA stipulates that,
‘Where the Board has reasonable grounds to believe that a person has unexplained
wealth, it shall direct the Agency to apply to a Judge in Chambers for an Unexplained
Wealth Order for the confiscation of that unexplained wealth.’
In addition, Section 16 (1) of the GGIRA provides that,

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‘Where the Agency makes an application for an Unexplained Wealth Order and the
Judge in Chambers is satisfied that the respondent has unexplained wealth, he shall
make an Unexplained Wealth Order or an order for the payment of its monetary
equivalent.’
According to Section 2 of the GGIRA, the words “unexplained wealth” includes ‘any
property –
(a) under the ownership of a person to an extent which is disproportionate to his
emoluments and other income;
(b) the ownership, possession, custody or control of which cannot be satisfactorily
accounted for by the person who owns, possesses, has custody or control of the
property; or
(c) held by a person for another person to an extent which is disproportionate to the
emoluments or other income of that other person.’
In virtue of the interpretation Section, “Unexplained Wealth Order” means an order
issued under Section 16 of the GGIRA for confiscation of property.
Moreover, Section 17 (1) of the GGIRA stipulates that,
‘Where an Unexplained Wealth Order is made and the order is not subject to an appeal,
nor discharged, the property recovered and confiscated shall vest in the Agency.’
And, Section 19 (1) (a) of the GGIRA provides that,
‘(1) The Agency shall set up a National Recovery Fund –
(a) into which shall be paid all sums that may lawfully accrue to it, other than as set out
in section 18, including any sums derived from the realisation of property under section
17.’
The following can be gathered from those provisions of the GGIRA:
(a) To grasp the nature of an application for Confiscation Order, illumination can be
sought from the case of Walsh v. UK (2006) ECHR 1154, which was quoted with
approval in Director of Public Prosecutions v M.I. Parouty [2011 SCJ 174]. The
case of Director of Public Prosecutions v M.I. Parouty (supra) concerned a
motion which was made by the Director of Public Prosecutions for an order of
forfeiture of an immoveable property belonging to the respondent in that matter
following a conviction of Drug trafficking. The Supreme Court referred to the
Walsh case, where the European Court of Human Rights mentioned three
guiding criteria that Courts of member states must have regard to and one of
those is that “recovery proceedings are civil and not criminal.”

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 Thus, a Confiscation Order proceedings is quite different from a criminal
proceedings; it cannot be regarded as equivalent to a criminal charge being laid
against the accused. For instance, it is expedient to note that under the GGIRA,
the respondent is at no time accused of committing any crime and the
proceedings before the Honourable Judge in Chambers do not culminate in a
verdict of ‘Guilty’ or ‘Not Guilty’. It is self-evident that the application under the
GGIRA is a civil matter, contrary to the present case.
(b) Although the application of the provisions of the GGIRA and those of the
FIAMLA concern the same moneys, the fact remains that the case mounted by
the Agency is a civil one, which deals solely with property; whereas the case-in-
hand is a criminal one and, obviously, against the accused for an offence and,
therefore, the issue of unfairness does not arise.

(c) A Confiscation Order pertains to unexplained wealth, whereas the Forfeiture

Order under the FIAMLA is specifically in relation to property involved in the
commission of an offence of Money Laundering.

(d) One of the objectives of the GGIRA is to hold people accountable, in that they
have to explain how they amassed hefty sums of money. Hence, following an
application, pursuant to Section 16 (1) of the GGIRA, the Honourable Judge in
Chambers is tasked with ascertaining whether a respondent has an unexplained
wealth. But, in the present criminal proceedings, the Intermediate Court is
concerned mainly with finding out whether the elements of the offence of
Limitation of payment in cash are proved and it is only on conviction that the
confiscation of money by way of forfeiture at sentence stage would be triggered.
Therefore, there are essential disparities between the two cases. Seemingly,
each case stands on its own and is not dependent upon each other;

(e) A conviction under the FIAMLA does not necessarily mean that all the
requirements are met for an Unexplained Wealth Order under the GGIRA. It is
noteworthy that the GGIRA is a special law providing for specific circumstances
where a Confiscation Order can be made.

(f) Moreover, the Court takes the view that there cannot be conflicting judgments, in
as much as, if an Unexplained Wealth Order by the Honourable Judge in
Chambers precedes, that Confiscation Order cannot be an impediment to a
conviction, as the Intermediate Court can properly convict for an offence under
the FIAMLA, if the Court finds all the elements proved. In any event, as regards
the money, an Unexplained Wealth Order and a Forfeiture Order have the same
final result, in that, the money is legally appropriated and deposited in the coffers
of the State.
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Mr. G. Glover SC contended that if the Supreme Court decides that the provisions of the
law challenged by the Defendant in his constitutional claim against the provisions of the
GGIRA and the new Section 84A of the Constitution is allowed, this decision will
have a cascading effect on the proceedings before the Judge in Chambers and the
Intermediate Court. Obviously, the Intermediate Court cannot pronounce on behalf of
the Honourable Judge in Chambers. The Intermediate Court, therefore, shall confine
itself to the issues before it. The accused is charged with an offence under the
FIAMLA, namely, Limitation of payment in cash. The provisions of the GGIRA, which
are being challenged under Section 83 (1) of the Constitution, are different from those
provisions. The Intermediate Court fails to see how any decision of the Supreme Court
in relation to the provisions of the GGIRA will affect the criminal proceedings. Therefore,
this submission by the defence is untenable.

(3).The two constitutional cases and the defences available to the accused:
Mr. G. Glover SC submitted that the two constitutional cases will have a direct bearing
on the defences available to the accused. The concern of the defence can be allayed by
the fact that pursuant to Section 10(1) of the Constitution, where any person who is
charged with a criminal offence, the case shall be afforded a fair hearing within a
reasonable time by an independent and impartial Court. In addition, should a party to a
case, that is, either the prosecution or the defence feel aggrieved by the decision of a
Court, our criminal justice system is fully equipped to deal with such scenario, in that the
disgruntled party is at liberty to appeal against that decision.
Mr. G. Glover SC also submitted that if the criminal case is not stayed, the constitutional
claims in respect of the search warrants and the provisions of the GGIRA would be
rendered nugatory and there may be contradictory judgement by the Supreme Court
that the search warrants were lawful. Suffice it to say that, at this stage, this is pure
speculation and it is a premature contention.

(4).Referral of constitutional questions to the Supreme Court:

Section 84 (1) of the Constitution provides that,
‘Where any question as to the interpretation of this Constitution arises in any court of
law established for Mauritius (other than the Court of Appeal, the Supreme Court or a
court martial) and the court is of opinion that the question involves a substantial
question of law, the court shall refer the question to the Supreme Court.’

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Mr. G. Glover SC contended that there are two constitutional issues of importance and
rather than just sending the matter to the Supreme Court which will be a clear
duplication of what is already before the Supreme Court.
(a) The Court wishes to stress that the trial has not yet started and none of those
constitutional issues has yet been raised in the present case. Therefore, this
point deployed by the defence is wholly conjectural and rather premature.

(b) Furthermore, in Accountant General v Baie du Cap Estates [1988 SCJ 3], the
Supreme Court explained the circumstances where a matter should not be
referred by a lower Court:
“…, under section 84 of the Constitution, a lower Court is not automatically bound
to refer a matter to the Supreme Court simply because there is a motion to that
effect on the ground that the matter raises a question relating to the interpretation
of the Constitution. If the same legal issue has already been pronounced upon,
the lower Court should itself deal with the matter or, at least, in appropriate
cases, examine so much of the matter as to satisfy itself that the interpretation in
question has not already been the subject of a decision. The whole range of our
criminal law or civil law affects in one way or another some provision or other of
the Constitution and it would simply be unacceptable if matters were, for this
reason alone, automatically upon application, to be referred to the Supreme
Court.”

It is plain that a referral is granted in only specific circumstances and not all
matters arising can be referred to the Supreme Court. Thus, it does not mean
that the Intermediate Court will automatically grant the motion for referral to the
Supreme Court on the mere asking.
(c) The validity of the search warrants under the Constitution is an issue of
application of the provisions of the Constitution. In any event, there is no motion
yet on record with regard to any referral to the Supreme Court and, therefore, the
Court cannot adjudicate on it, especially when the matter on the issue has not
been fully argued at this stage.

(5).Precedent-setting cases referred to by Mr. G. Glover SC:

Mr. G. Glover SC sought support from a remark made obiter dicta by Hon. Justice
Joseph Mulenga in the Supreme Court of Uganda, Constitutional Appeal No.2 of
2002, in the case of Charles Onyango Obbo & Another v The Attorney General,
cited in Hon. Jim Muhwezi v Attorney General & Anor [Miscellaneous Application
No.17 of 2007] and this dicta runs as follows:

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“Where the constitutional validity of any law or action awaits determination by the
Constitutional Court, it is important to expedite the determination in order to avoid
applying a law or taking action whose validity is questionable.”
Mr. G. Glover SC also quoted the words of Hon. Justice B.J. Odoki, C.J, who
concurred with the Honourable Justice Mulenga and those words read as follows:
The Constitutional Court “was in error to suspend the hearing of the constitutional
petition pending the conclusion of the criminal prosecution. The Court should have
heard the petition because constitutional cases take precedence over other cases.”
However, those observations are only fragments of the picture; one needs to read
further the ruling of the Constitutional Court of Uganda in order to appraise the whole
picture. In the said ruling, the following principle has been lucidly explained:
“These pronouncements seem to suggest that if an accused is facing criminal
prosecution and he/she files a constitutional petition to challenge the prosecution, then
the prosecution should he halted till the constitutional petition is finalised. However, I do
not think that their Lordships of the Supreme Court intended that result in all cases. In
the Onyago Obbo case Justice Mulenga, JSC seems to have had in mind situations
where there has been a constitutional reference to this court during the trial in the lower
courts. Secondly, the pronouncements apply to situations where the constitutionality of
law under which the prosecution is being conducted is in issue. For example in
Onyango Obbo case, the constitutionality of section 50 of the Penal Code Act, under
which they were being prosecuted was in issue in the Constitutional Court. It would
have been unjust for such a prosecution to continue when the law under which they
were being prosecuted was being challenged. This is not the case in the instant case.
The sections of the Penal Code Act under which the applicant is being
prosecuted at Buganda Road Court are not being challenged. In such a situation,
the prosecution can continue despite the challenge in the Constitutional Court of
the truth and the manner of investigations leading to the charges in the criminal
court. The trial court is capable of fairly and accurately pronouncing itself on the
matter without prejudice to the accused. Where any prejudice occurs, the appeal
system of this country is capable of providing a remedy. Was it to be otherwise,
a situation would arise whereby anyone charged with an offence could rush to
the Constitutional Court with a request to stop the prosecution pending hearing
his challenge against the prosecution. In due course, this court would find itself
engaged in petitions to stop criminal prosecutions and nothing else. This could
result into a breakdown of the administration of the criminal justice system and
affect the smooth operations of the Constitutional Court. It is for this reason that I
decline to grant this remedy.” [Emphasis added]
One can swiftly detect that common legal reasoning, expounded in that ruling, running
through the Supreme Court cases on the issue in Mauritius. In a gist, the underlying
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principle is that an accused cannot use an application for Constitutional Relief as a
promotional tool for circumventing criminal proceedings, especially where the
constitutional challenge is not in respect of the law under which the accused is being
prosecuted.
Reverting to the present case, a perusal of the prayers contained either in the
Constitutional Relief case or in the matter of Redress under Section 83(1) of the
Constitution, reveals that not a single provision of the FIAMLA is being challenged in
those cases. Moreover, there has not yet been any constitutional reference to the
Supreme Court so far in the present matter. Hence, the remark of Hon. Justice
Joseph Mulenga relied upon by Learned Senior Counsel for the defence cannot be of
support to the motion made by the defence.
Mr. G. Glover SC resorted also to an excerpt of the ruling of the Constitutional Court of
Uganda in the case of Hassan Bassajjabalaba v Attorney General, arising from
Constitutional Petition No.12 of 2013, which reads as follows:
“It is trite that once a party challenges the constitutionality of a section of an Act of
parliament under which that party is being tried or the constitutionality of his trial
by the trial court, it has to stay all its pending criminal proceedings emanating from the
impugned section until the disposal of the constitutional petition.” [Emphasis added]
Hence, the Intermediate Court is reinforced in its stance by the observations made in
that case which Learned Senior Counsel for the defence has himself quoted. Given the
above observations, the motion made by the defence cannot stand.

(6).The accused’s case with regard to the Constitutional challenge of the search
warrants had been lodged more than two and a half years prior to the lodging of
the present case.
But, seemingly, there is nothing which inhibits the defendant from making an application
before the Supreme Court for a temporary stay of the criminal proceedings.

(7).Is the Intermediate Court empowered to stay criminal proceedings

temporarily?
Lastly, the Court is alive to the fact that there has been some controversies as to
whether or not the Intermediate Court can stay the proceedings temporarily. In view of
the fact that the Court has refused the motion of the defence, the Court sees no point in
delving on the matter.

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CONCLUSION:
All in all, it is conspicuous that the motion put forward by the defence is misconceived
and the Court takes the view that a temporary stay of proceedings will have the effect of
stringing out the present proceedings to an indefinite period.
In light of the foregoing observations, the Court is of the considered opinion that the
present proceedings should continue and cannot be temporarily stayed.
The Court, accordingly, sets aside the motion made by the defence.

Mr. P. SEWPAL Ms. N. PARSURAMEN

Magistrate Magistrate
Intermediate Court Intermediate Court
Criminal Division Criminal Division
Date: 17/01/19

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