JUGNAUTH P.K. v DAYAL S.

& ORS

2021 SCJ 417

Record No. 122350

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Pravind Kumar Jugnauth

Applicant
v

1. Surendra Dayal
2. The District Magistrate of Port Louis

Respondents
In the presence of:-

The Electoral Commissioner

Third Party

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RULING

In this application made under section 82(1) of the Constitution praying the
Supreme Court in the exercise of its supervisory jurisdiction to make orders and give
directions as the Court may consider appropriate for the purpose of ensuring that
justice is duly administered by the District Court of Port Louis where a private
prosecution has been lodged by respondent no. 1, (Cause No. 7941/2021)
Mr Domingue, SC, appearing for respondent no. 1, is formally objecting to the
continued appearance of Mr Basset SC, for the applicant. Learned Senior Counsel
is seeking an order from this Court to prohibit Mr Basset SC from representing the
applicant so as to prevent abuse of its procedure on account of a real risk of his
continued participation leading to a situation where the order made in this cause
would have to be set aside on appeal inter alia on account of the duty of the
applicant’s senior advocate to the court and the integrity of the proceedings before it
and on the ground that he is disqualified from acting,

a) Given that at all materials times he was a former member of

the Electoral Supervisory Commission (‘the Commission’)
which was constitutionally charged with the overall supervision
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of the electoral process, inter alia, for the general elections of

2019, which included the general elections in constituency no
8, from which Commission Senior Counsel Basset has only
recently resigned on 15 October 2021, for personal reasons,

b) as such, he was privy to the deliberations of the Commission

and its communiqué issued after its meeting of 15 January
2021 following the written complaint dated 9 January 2021
addressed by prosecution witness no. 2 Mr Ashok Subron of
the registered political party Rezistans ek Alternativ to the
Electoral Commissioner (the third party), and calling upon the
Electoral Commissioner and the Commission to investigate its
complaint and determine whether any illegal practice had been
committed by any candidates in the last general elections,
which might warrant a prosecution for an offence under the
Representation of the People Act, 1958, and

c) by its aforesaid communiqué the Commission expressly

endorsed paragraphs 5 and 6 of the Commissioner’s letter
dated 15 January 2021 that, firstly, the complainant may wish
to report the matter to the appropriate law enforcement and
investigatory authorities together with any evidence the
complainant may be aware of, secondly, the Electoral
Commissioner would forward a copy of the aforesaid complaint
to the Commissioner of Police, and thirdly, the Commissioner
would provide any assistance it may be called upon to give to
the Police or any authority conducting any such investigation.”

The background to the motion of Mr Domingue SC as revealed in the

affidavits of the applicant and respondent no. 1 and annexed documents is as
follows. On 9 January 2021, Messrs Ashok Subron and Stefan Gua, acting on behalf
of the political party Rezistans ek Alternativ, wrote to the Electoral Commissioner (the
Third Party) to the effect that “some candidates in the said election might have
knowledgeably omitted substantial electoral expenses and other information required
by law, while submitting their Election Return.” and invited the Electoral
Commissioner and the Electoral Supervisory Commission of which Mr Basset SC
was then a member to carry an investigation and to determine whether any ‘illegal
practice’ has been committed by any candidates in the last general elections…’.

On 15 January 2021, the Electoral Commissioner (‘the EC”) in reply to the

letter of Messrs Ashok Subron and Stefan Gua referred, amongst others, to the
functions and powers of the Electoral Commissioner and the Electoral Supervisory
Commission (‘the ESC’) specified in the Constitution and invited them to report their
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complaints to the appropriate law enforcement and investigatory authorities if, in their
opinion, they had reasonable suspicion that any criminal offence had been
committed. The EC also informed Messrs A. Subron and S. Gua that a copy of their
letter was going to be sent to the Commissioner of Police, being the authority
empowered to investigate into any suspected criminal offence. The EC also gave
the assurance that his office would provide any assistance it may be called upon to
give to the Police or any authority conducting any such investigation.

On the same day, the ESC issued a communiqué to the effect that after it had
taken cognisance of the letter of Messrs A. Subron and S. Gua it took the view that
the latter may wish to report the matter to the appropriate law enforcement and
investigatory authorities, if they considered, in the light of evidence which may be in
their possession, that a breach of any of the provisions of the Representation of the
People Act may have been committed. The ESC also stated that it had been
informed of the reply and decision of the EC to Messrs A. Subron and S. Gua and
agreed with the EC’s decision. Mr Basset SC resigned as member of the ESC on 15
October 2021.

On 18 October 2021, respondent no. 1, assisted by Mr Domingue SC,

instituted a private prosecution under section 195 of the Courts Act coupled with
section 56(5) of the Representation of the People Act, against the applicant and for
that purpose appeared before respondent no. 2 sitting at the District Court of Port
Louis and solemnly affirmed to the information.

The applicant, represented by Mr Basset SC, has in turn lodged an

application before this Court (a) for an order to quash, set aside or otherwise deal
with the ‘information upon SAH’ taken and solemnly affirmed by respondent no. 1
and (b) for an order directing that proceedings before the District Court of Port Louis
(South) in CN 7941/2021 be stayed pending the determination of this application.

On 11 November 2021, Mr Domingue SC wrote to this Court to the effect that

he had urged Mr Basset SC to reconsider his professional standing in the present
application especially whether he is conflicted, whether he is professionally
embarrassed and whether he has abided by the legal and moral obligations imposed
upon him by paragraph 1.2 of the Code of Ethics for Barristers and to seek the
written opinion of the Bar Council. In a letter dated 15 November 2021, Mr Basset
SC informed us that he has requested the Chairman of the Bar Council for a written
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opinion under Rule 4.3 of the Code of Ethics which he has received and shared with
Mr Domingue SC. Mr Basset SC also apprised us that he has formed the view that
he was not professionally embarrassed to appear for the applicant because he was a
member of the ESC in January 2021 and has decided that he would continue to
appear as Counsel for the applicant. As for the written opinion of the Bar Council
which is on record before us, it is in essence to the effect that this is a matter for the
sole consideration and decision of Mr Basset SC whether there is an issue of conflict
of interest with the caveat that he bears the consequences that may arise, if there is
any.

The response of Mr Basset SC is that the motion is misconceived, frivolous

and amounts to an abuse of process.

Learned Counsel for respondent no. 2 and the third party respectively state
that they do not wish to intervene and leave the matter in the hands of the Court.

It is the submission of Mr Domingue SC that he is not asking this Court to

enforce the Code of Ethics which is eminently a matter for the Bar Council. His
qualms as can be gathered from his arguments, are as follows. Mr Basset SC was a
member of the ESC when Rezistans ek Alternativ voiced out its concern to the EC
regarding the declaration of electoral expenses by certain candidates who stood for
the 2019 general election. The private prosecution which respondent no. 1 has
lodged against the applicant before the District Court of Port Louis relates to a false
affidavit regarding electoral expenses. Mr Basset SC in his capacity as former
member of the ESC considered the complaint of Rezistans ek Alternativ, as such
Mr Basset SC would be professionally embarrassed if he continues to appear for the
applicant in the motion to quash or set aside the information. Mr Domingue SC also
questioned the independence and impartiality of Mr Basset SC and also whether by
his continued appearance Mr Basset SC is not jeopardising the right of respondent
no. 1 to a fair hearing.

Mr Domingue SC added that this Court has the inherent power to prevent an
abuse of its procedure and to restrain Mr Basset SC from continuing to appear for
the applicant in order to safeguard the integrity of the proceedings and the right of
respondent no. 1 to a fair hearing. Mr Domingue SC also submitted on the powers
and functions of the ESC as set out in the Constitution and referred, amongst others,
to the following authorities in support of his motion- Kjell Tore Skjevesland and
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Geveran Trading Co Ltd [2002] EWCA Civ 1567; and Man O’War Station Limited
& Anor V Auckland City Council & Anor (1) (New Zealand) [2002] UKPC 28.

In his reply, Mr Basset SC referred to the facts on which respondent no. 1

relied in support of his motion; the contents of the letter of Messrs A. Subron and
S. Gua on behalf of Rezistans ek Alternativ; and to the communiqué issued by the
ESC in response thereof. He also recalled the legal principles governing appearance
of Counsel before the court and submitted as follows.

1. A party is not entitled to interfere with his opponent’s right to Counsel

of his choice which is guaranteed by the constitution (vide Chady N.K.
v Ujodha A.K. & Anor [2013 SCJ 306];

2. A barrister in independent practice is individually and personally

responsible for his own conduct;

3. It Is not within the remit of this Court which has been seized with an
application in civil proceedings under section 82(1) of the Constitution
to consider whether the barrister appearing before it as Counsel for a
party is or not compliant with the Code of Ethics by agreeing to appear
as Counsel for that party in pursuance with the Cab rank Rule; and

4. The debate is not one concerning the Code of Ethics but whether an
“abuse of process” exists in the present case and for the purpose of
reaching a conclusion the Court’s concern is whether there is a real
risk that an appeal based solely on Counsel’s continued participation
in the proceedings would be successful as opposed to whether the
losing party would appeal the decision taken by this court.

Mr Basset SC stated that he was a member of the ESC at the time that
Rezistans ek Alternativ expressed its concern to the EC and the ESC issued the
communiqué. However, he laid stress on the functions of the ESC as set out under
section 41(1) of the Constitution and argued that since it is not part of the ESC’s
functions to carry out any investigations into a suspected electoral or criminal offence
associated with an election, the ESC did not look into, consider or analyse any of the
papers that were sent to the EC. Mr Basset SC then argued that the applicant is
invoking the supervisory jurisdiction of this Court under section 82(1) of the
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Constitution to seek relief, the matter rests on affidavit evidence and involves issues
of law in respect of the interpretation of section 195 of the Courts Act and the powers
of the Director of Public Prosecutions. Thus, he fails to see how respondent No. 1
will be deprived of a fair trial.

Lastly, Mr Basset SC pointed out that he is neither the holder of any

confidential information which he might use against respondent no. 1 nor has he held
a brief for the latter which may lead to a situation whereby he may find himself in a
position of conflict thus giving rise to the danger or possibility of apparent bias. Mr
Basset SC emphasised that the mere fact that he was a member of the ESC at the
time Rezistans ek Alternativ made its complaint cannot by itself be a ground to debar
him from appearing for the applicant. Mr Basset SC assured this Court that he is not
in any of the situations described in the cases relied on by Mr Domingue SC such as
to warrant the intervention of this Court. Mr Basset SC also reassured this Court that
having considered the written opinion of the Bar Council he honestly holds the view
that he has no qualms to continue to appear for the applicant. He understands his
responsibilities in so doing and is ready to bear any consequences.

Mr Basset SC referred the Court to the case of Kjell Tore Skjevesland and
Geveran Trading Co Ltd (supra), hereinafter referred to as the Geveran case, and
has further referred to the decision in Chady v Anil Kumar Ujodha and the
Commissioner of Police [2013 SCJ 306] and to Police v D. Hurnam
[2007 INT 27], a decision of the Intermediate Court.

The Bar Council was invited to make submissions on the issues raised by
Mr Domingue SC and Mr Sauzier SC has made submissions on behalf of the Bar
Council on the issues of principle that arise and not to the merits. Mr Sauzier SC has
at the outset referred to the role of the Bar Council and to the Code of Ethics and
holds the view that circumstances where a barrister may be restrained by the Court
from acting as such in litigation are very exceptional. He added that the Court in
determining the motion of respondent no. 1 stands to be guided by the following:
whether Counsel would be in breach of the ‘no inhibition’ principle i.e. is there a risk
that counsel will be unable to represent his client without his conduct consciously or
unconsciously being influenced by the relationship; whether there is a risk of a
breach of the principle of equality of arms; or whether counsel is in possession of
confidential information which might inhibit him in the conduct of his client’s case thus
causing him embarrassment.
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Mr Sauzier SC reiterated the opinion of the Bar Council that it is for Mr Basset
SC to assess his position and decide whether his continued appearance in the case
might be the cause of embarrassment to his client or result in a potential risk of
conflict or bias. Mr Sauzier SC also took the view that an objection which is
premised only on an allegation of breach of ethics cannot succeed. He was further
of the view that unless there is a real risk that the continued appearance and
participation of counsel for the opponent might lead to a reasonable lay
apprehension of unfairness in the substantive proceedings of the court such as to
affect the integrity of the proceedings and may lead to a successful appeal on that
ground, the court should be loathed to entertain such a motion.

We have listened and considered with utmost care the forceful and vehement
arguments of Messrs Domingue SC and Basset SC and the authorities referred to
us.

The issue before us raises a question of professional conduct of a barrister.

Mr Domingue SC is in effect asking this Court to scrutinise, pronounce and give
directions on the ethical conduct of Senior Counsel Basset whose decision is that he
has no qualms in his continued participation as Counsel for the applicant in the case
as in his opinion he is not professionally embarrassed and is ready to face/bear any
consequences which may follow as a result thereof. The Code of Ethics for
Barristers, published in General Notice 1702 of 1997, has been inspired from the
rules governing etiquette from the English Bar. Of relevance is paragraph 3.4 under
the heading Independence of the Barrister and the Cab-Rank Principle which
stipulates –

“Subject to paragraph 4, a barrister in independent practice shall, in

any field in which he professes to practise and irrespective of whether
his client is paying privately or is legally aided or otherwise publicly
funded-

a) accept any brief to appear before a Court in which

he professes to practise;

b) accept any instructions; and

c) act for any person on whose behalf he is briefed or

instructed.”
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Also of relevance is paragraph 4 under the heading Exceptions to the Cab-

Rank Principle, in particular paragraphs 4.1 and 4.3 which stipulate-

“4.1 A practising barrister shall not accept any brief or instructions if

to do so would cause him to be professionally embarrassed
and for this purpose a barrister shall be professionally
embarrassed where-

a) he lacks sufficient experience or competence to

handle the matter;
b) having regard to his other professional commitments,
he is likely to be unable to do, or will not easily have
adequate time and opportunity to prepare, that which
he is required to do;
c) the brief or instructions seek to limit his ordinary
authority or discretion in the conduct of proceedings in
Court;
d) the matter is one in which he has reason to believe
that he is likely to be a witness or in which, whether by
reason of any connection of his with the client or with
the Court or a member of it or otherwise, it will be
difficult for him to maintain professional independence
or the administration of justice might be or appear to
be prejudiced;
e) there is or appears to be some conflict or a significant
risk of some conflict either between his interests and
those of some other person or between the interests of
any of one or more of his clients;
f) the matter is one in which there may be a risk of a
breach of confidence entrusted to him in his
professional capacity by another client or any other
person or where the knowledge which he possesses of
the affairs of another client is likely to give an undue
advantage to the new client.
…
4.3 A barrister shall at all times be conscious of the likelihood of
actual or potential conflicts of interests and, where such
likelihood exists, he shall refuse or return the instructions or
brief. Where any doubt exists, he shall promptly seek the
written opinion of the Bar Council.”

At this juncture it is pertinent to refer to the following observations made at

paragraphs 42 and 43 of the Geveran case -
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“42. Where a party objects to an advocate representing his opponent,

that party has no right to prevent the advocate from acting based
on the Code of Conduct as the content and enforcement of that
Code are not a matter for the court. However, the court is
concerned with the duty of the advocate to the court and the
integrity of the proceedings before it. The court has an inherent
power to prevent abuse of its procedure and accordingly has the
power to restrain an advocate from representing a party if it is
satisfied that there is a real risk of his continued participation
leading to a situation where the order made at trial would have to
be set aside on appeal.

43. A judge should not too readily accede to an application by a

party to remove the advocate for the other party. It is obvious
that such an objection can be used for purely tactical reasons
and will inevitably cause inconvenience and delay in the
proceedings. The Court must take into account that the other
party has chosen to be represented by the counsel in question.
Moreover, an advocate is subject to the cab-rank rule. If the
court too willingly accedes to applications to remove
advocates, it would encourage advocates to withdraw from
cases voluntarily where it was not necessary for them so to do
and the cab-rank rule would be undermined. We accept that
the cab-rank rule is a salutory rule. It is an integral and long
established element in our adversarial system.…...”

The power of the Court to prevent an abuse of its procedure includes the
power to restrain an advocate from representing a party if it is satisfied that there is a
real risk of his continued participation leading to a situation where a miscarriage of
justice may occur. (see also for instance Babet v The Queen [1979 MR 222])

As stated at paragraph 42 of the Geveran case “….the judge must consider

all the circumstances carefully...The Judge should also take into account the type of
case and the length of the hearing, and any special factor affecting the role of the
advocate, …..” (Underlining is ours).

In Chady N. K. v Ujodha A. K (supra), in setting aside an objection by the

plaintiff to the appearance of defendant no.1’s instructing attorney, the Supreme
Court stated, inter alia, that “…the plaintiff is not entitled to interfere with his
opponents’’ constitutional right to select his legal advisers including his instructing
attorney.” The Supreme Court also found that “The plaintiff … is not entitled to
intervene in the choice or selection of an attorney at law by the opposing side, in the
 10

absence of any legal foundation entitling him to or warranting any such intervention
on his part.”

In the present case, the factual background to the application to set aside the
information, subject matter of the private prosecution, as disclosed in the affidavits of
the parties is not disputed. We agree with Mr Basset SC that the present application
involves mainly legal issues and that this Court will be called upon essentially, in the
exercise of its supervisory jurisdiction, to interpret section 195 of the Courts Act and
to pronounce on the powers of the Director of Public Prosecutions. The Court is not
being asked to determine the existence or extent of any civil right or obligation. Also,
we are of the considered view that there is no issue involving any confidential
information which Mr Basset SC might be in possession of and which might be used
against respondent no. 1. Mr Basset SC has not acted for respondent no. 1 and we
have no reasons to doubt his words that he has no relevant confidential information
against the latter which would amount to a breach of confidence. Respondent no. 1
cannot in the circumstances claim that he is prejudiced. Moreover, on an
examination of the essential facts of this case, we do not see any likelihood of
unfairness or that justice is not seen to be done. The apprehension of Mr Domingue
SC that the continued appearance of Mr Basset SC in the application might unfairly
affect the proper conduct of the case and might lead to the order made being set
aside on appeal is unfounded.

The reaction of Mr Domingue SC and his obstinacy in pursuing his motion in

spite of the written opinion of the Bar Council and the statement of Mr Basset SC,
who is the best judge of whether he should recuse himself or not, that he is not
professionally embarrassed, is incomprehensible and defy all logics. We do not see
any real risk of the fact that Mr Basset SC having been a member of the ESC at the
material time becoming an issue at the hearing of the application. As matters stand,
there is not an iota of substance in the qualms of respondent no. 1 in the fact that
Mr Basset SC was a member of the ESC at the time of the complaint made by
Rezistans ek Alternativ.

As stated in Ahmed v Iqbal [2020] EWHC 2666 (Fam), a case referred to us

by Mr Sauzier SC, “… the test for recusal of an advocate [is] a higher one than that
for a judge and that recusal of an advocate [is] exceptional and very rare.”
(Underlining is ours).
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We have not been persuaded by the arguments of Mr Domingue SC that

respondent no. 1 will be deprived of a fair hearing and that justice will not be seen to
be done by the continued participation of Mr Basset SC in the case. The answer to
the question whether the participation of Mr Basset SC risks creating a reasonable
lay apprehension of unfairness can only be in the negative.

The issues raised by Mr Domingue SC, as he is very well aware, are the
concern of the Bar Council. Unless there are absolutely compelling reasons and
very exceptional circumstances warranting the interference of the Court, it is for
counsel to decide whether by appearing for a party he/she is likely to be in breach of
the Code of Ethics and measure the consequences of any breach thereof. A party’s
right to and choice of counsel is not a matter which should be lightly interfered with.

This type of motion unsupported by any solid legal foundation should be

strongly and strenuously discouraged as it may open the floodgate to baseless
attempts at challenging the appearance of counsel and thereby disrupting the timely
and orderly despatch of cases and seriously jeopardising the effective administration
of justice.

The present motion is indeed a gross abuse of the process of the court.

For all the above reasons, we set aside the motion of Mr Domingue SC.

N. Devat
Senior Puisne Judge

M. I. Maghooa
Judge

C. Green-Jokhoo
Judge

09 December 2021
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Judgment delivered by Hon. N. Devat, Senior Puisne Judge
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For Applicant : Mr A. Robert, Senior Attorney

Mr D. Basset, Senior Counsel
Mr R. Gulbul, of Counsel
Mr J.G. Basset, of Counsel
Mr P. Seenauth, of Counsel

For Respondent No. 1: Mr P. Rangasamy, Attorney at Law

Mr A. Domingue, Senior Counsel
Mr S. Bhadain, of Counsel

For Respondent No. 2: Ms V. Nirsimloo, Chief State Attorney

Mr R. Baungally, Assistant Solicitor General

For Third Party : Mr D.K. Manikaran, Principal State Attorney

Ms A. Ombrasine, Principal State Counsel

For Bar Council : Mr P.M. Sauzier, Senior Counsel