Constance v The Attorney-General (at the instance of the Government of Seychelles) ((SCA 18/2024) [2025] (Arising in MC 02/2024) (22 April 2025)) [2025] SCCA 7 (22 April 2025)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2025] (22 April 2025)

SCA 18/2024

(Arising in MC 02/2024)

In the Matter Between

Louisel Constance Appellant

(rep. by Mr. Frank Elizabeth)

And

The Attorney-General Respondent

(rep. by Mr. Guy Ferley)

Neutral Citation: Constance v The Attorney-General (at the instance of the Government of Seychelles) (SCA 18/2024) [2025] (Arising in MC 02/2024) (22 April 2025)

Before: Fernando President, Twomey-Woods, Robinson JJA

Summary: (1) Whether or not the Constitution of the Republic of Seychelles confers power upon the Attorney-General with respect to civil proceedings before a court established by law for the administration of justice, Constitution of the Republic of Seychelles [CAP 42], article 76 —

(2) Whether or not the Attorney-General is required to give a written "sanction" to a licensed attorney-at-law from the private bar to represent the Attorney-General in civil proceedings before a court established by law for the administration of justice, as a necessary prerequisite — "The Attorney-General is not required to give a written "sanction" to a licensed attorney-at-law from the private bar to represent the Attorney-General in civil proceedings before a court established by law for the administration of justice, as a necessary prerequisite" — "In future cases the Attorney-General should send a written notification to the court upon instructing a licensed attorney-at-law from the private bar to represent the Attorney-General in a civil case. This notification will serve to inform the court that the attorney-at-law from the private bar has been instructed to represent the Attorney-General in the civil case" —

(3) "Référé" procedure — whether or not the requirements of clear title and serious and bona fide defence have been met for the trial court to grant the writ habere facias possessionem, French Code of Civil Procedure, articles 806 to 809, Schedule B of the Seychelles Code of Civil Procedure headed: "Laws, enactments, etc., repealed"

Heard: 7 April 2025

Delivered: 22 April 2025

ORDER

The appeal is dismissed in its entirety

______________________________________________________________________________

JUDGMENT

______________________________________________________________________________

ROBINSON JA

THE BACKGROUND TO THE APPEAL

1. This appeal concerns an application by way of notice of motion supported by an affidavit sworn by Mr. Denis Barbe in his capacity as the Principal Secretary of the Ministry of Land Use and Housing.

2. The application sought relief under the "référé procedure" under article 806 of the French Code of Civil Procedure¹. The application sought an order for a writ habere facias possessionem against the Appellant ordering him to quit, leave and vacate State land, the land comprised in title number H14683, situated at Beau Vallon, Mahe, Seychelles, and to remove his "van/trailer/kiosk" on the said State land.

3. The application has been brought in the name of the Attorney-General, the Applicant, before the Supreme Court, who is the Respondent in the appeal, as it is a claim by the Government of Seychelles against the Appellant, a private person.

4. Mr. Ferley, a licensed attorney-at-law in Seychelles from the private bar, appeared for the Applicant in the Supreme Court. He appears for the Respondent (the Applicant then) in the appeal.

5. The affidavit evidence and the documents exhibited to it averred the following facts in support of the application, arguing that the application meets the requirements of the "référé" procedure and that a writ habere facias possessionem should be granted against the Appellant —

"…2. I state that the Attorney General has sanctioned that this application be brought in the name of the Attorney General. It has been shown to me, and I attach herewith an email from the Attorney General marked exhibit A1.

3. The Republic of Seychelles "the Applicant" is the registered owner of land parcel H14683, which is a sub-division of a larger parcel H21, situated at Beau Vallon, Mahe, Seychelles. It has been shown to me and I attach herewith certificate of official search marked exhibit A2. It has also been shown to me and I attach herewith a GIS plan showing the location of parcel H14683 marked exhibit 3.

4. The Respondent purported that he had authority from one Roland Lefevre, on behalf of one "Mrs Lefevre" pursuant to two letters dated 06.05.2017 and 01.10.208 (sic) to put his van/trailer/kiosk on parcel H14683. They have been shown to me and I attach the said letters marked exhibits 4 & 5. I state that parcel H14683, or its parent parcel H21, was not owned by Mr. Roland Lefevre nor by "Mrs Lefevre" at the time the said letters were signed…They have been shown to me and I attach herewith transcription volume 52 No. 70 Registration No.2924 Repertory 34 No.1001 dated 15^th January 1970 whereby the company Hotel des Seychelles Limited purchased parcel H20 and H21 from Gerard Ernest Anthony Legrand and Transfer deed dated 28^th June 2019 whereby the Company Hotel Des Seychelles Limited Transferred parcel H21, H5335, H5339 and V9344 to Societé Seychelloise D'Investissement Limited marked as exhibits 6 and 7.

5. I have been advised by the attorney to this application and I verily believe same to be true that the letters issued by Roland Lefevre have no legal effect because Roland Lefevre was ostensibly acting on behalf of "Mrs Lefevre" but without a proper power of attorney from her.

6. I state that I verily believe that the Respondent has always been aware that he has no lawful authority to keep his van/trailer/kiosk on parcel H14683. In a letter dated 21.3.22 he wrote at paragraph 3 – "Request for me to install the orange mobile van at the ex Bazar Labrin site until you are ready for any project on the said site". This signifies his acknowledgment and/or acquiescence of his legal status. It has been shown to me and I attach herewith the said letter marked as exhibit 8.

7. The Respondent is a trespasser and he is unlawfully occupying parcel H14683 where he has installed and stationed a trailer/van/kiosk which he is using to sell cooked food to the general public. The Respondent does not have a lease from the Applicant on parcel H14683 nor does he have any other interests, lawful, legal or otherwise therein…

9. The Applicant urgently requires the said parcel for a development namely the construction of forty-four (44) kiosks to be allocated to 44 small businesses. The project is being financed by a donor the Laxmanbhai Construction Company which will soon be executing the project. Laxmanbhai Construction Company is ready to start the project but is unable to do so because of the refusal of the respondent to vacate the site. The project is of national importance and significance and is in the national interest.

10. That it is urgent and necessary and in the interest of justice that the Court makes an order ordering the Respondent to quit, leave, vacate and to remove his van/trailer/kiosk from parcel H14683 and if he fails to do so to issue a writ habere facias possessionem against the Respondent.

11. That all the information given herein are true and correct to the best of my knowledge and belief…" [Emphasis is not the Court's]

6. The Appellant, in his affidavit in reply to the application and the documents exhibited to it, disputed not only the merits of the application, but also raised three interrelated points of law, which are as follows —

1. Mr. Ferley lacks any valid legal authority, standing or mandate to represent the Attorney-General in these civil proceedings;

2. the alleged legal authority, mandate or standing granted to Mr. Ferley by the Attorney-General to represent the Attorney General in these civil proceedings is defective and, hence, legally invalid; and

3. the power conferred upon the Attorney-General by the Constitution of the Republic of Seychelles [CAP 42] (hereinafter referred to as the "Constitution") "to be the legal representative of the Government of Seychelles is subject to the legal maxim delegatus non potest delegare and is not delegatable or transferable in law except in limited circumstances prescribed by statutes and can only be done in a prescribed form".

7. Upon a careful reading of the three points of law, it is noted that the essential argument made by these points of law is that the Constitution confers power on the Attorney-General "to be the legal representative of the Government of Seychelles", and that this power cannot be delegated, except in the circumstances prescribed by law. Based on these points of law, one of the issues determined by the learned Judge was whether or not the Constitution confers "civil litigation powers" upon the Attorney-General, at paragraph [8] of the ruling on the points of law.

8. In the ruling on the points of law, the learned Judge upheld the second point of law and dismissed the remaining points set out at paragraph [6] hereof.

9. With respect to the first and third points of law, suffice it to state that the learned Judge concluded that "…the constitutional provisions…[do] not provide for civil litigation powers of the Attorney-General", at paragraph [8] of the ruling on the points of law. The learned Judge also concluded that "…the Attorney-General can decide whether he appears personally…or appears through one of his subordinate officers or through an attorney-at-law in private practice who has been…specifically instructed to appear on his behalf", at paragraph [12] of the ruling on the points of law. The learned Judge also found that the legal maxim delegatus non potest delegare, a rule of construction, did not apply to this case. The learned Judge reached these conclusions after concluding that the argument made by Counsel for the Appellant - which contended that article 76 of the Constitution and section 29 (1) of the Seychelles Code of Civil Procedure are applicable to the contentions raised by the said points of law - to be misconceived.

10. With respect to the second point of law, the learned Judge concluded at paragraph [15] of the ruling on the points of law —

"[15]…I am inclined to agree with Counsel for the Respondent that Mr Ferley's mandate to represent the Attorney-General in this suit is defective. However, the defect does not nullify the suit as it…can be cured. I therefore order counsel for the petitioner to file his written mandate within 14 days of this Ruling, failure of which the case would be stayed for abuse of process." [Emphasis is the Court's]

11. Counsel for the Respondent filed his "written mandate", after which the matter was heard on the merits.

12. Grounds 1, 2 and 3 of the appeal challenged the learned Judge's decision regarding the three points of law.

13. Regarding the merits of the application, the affidavit in reply and the documents exhibited to it averred the following facts to support the Appellant's argument that the learned Judge should not grant the writ habere facias possessionem, which are as follows —

"5. Except that the Applicant's title to H14683 is being contested by the Estate of the late Philippe Lefevre in Civil Side No. 53/2023, paragraph 3 of the affidavit is admitted. (See plaintiff's note and plaint attached and marked as R1 and R2)…

6. In answer to paragraph 4, I repeat paragraph 5 here above.

7. Paragraph 5 of the affidavit is denied and the Applicant is put to the strictest proof of all the averments contained therein…

9. Paragraph 7 is denied and the Applicant is put to the strictest proof of all the averments contained therein. By further explanation, I state that I am neither in possession nor in occupation of title number H14683…I say that I have been authorised by Mrs Marguerite Marie Lefevre, the executrix of the estate of her late husband, Philippe Lefevre, through her son Roland Lefevre, to occupy the property where my business is stationed and therefore contrary to what is stated in paragraph 7 of Mr Barbe's affidavit, I have lawful permission, consent, and authority to place my business on the property as demonstrated by exhibits 4 and 5 attached to Mr. Barbe's affidavit…

11. Paragraph 9 is not within my personal knowledge and is accordingly denied. I say that Mr. Barbe has not attached any documentary proof to support the averments in paragraph 9 of the affidavit and therefore I am doubtful whether the facts as stated therein are actually true or not.

12. Paragraph 10 is denied and the Applicant is put to the strictest proof of all the averments contained therein.

13. That all the statements contained herein are true and correct to the best of my knowledge and belief except where the information is provided by third parties, I believe the same to be true to the best of my information only."

14. The learned Judge, in the ruling on the merits of the application, concluded that the requirements of the "référé" procedure have been fulfilled and ordered that a writ habere facias possessionem be issued against the Appellant, ordering him to vacate the land comprised in title number H14683 and to remove his "van/trailer/kiosk" on the same State land. The learned Judge concluded that the Appellant had failed to demonstrate that he had a serious defence to the application.

15. Grounds 4 and 5 of the appeal challenged the learned Judge's decision on the merits of the application.

THE APPEAL

16. The five grounds of appeal filed by the Appellant are as follows —

"GROUND 1

The learned Chief Justice erred when he failed to dismiss the Respondent's application for writ habere facias possessionem after making a finding that the authority given to the Respondent's attorney, Mr. Guy Ferley, by the Attorney General, to represent the Respondent in court, was defective in law.

GROUND 2

The Learned Chief Justice erred in law when he ruled that the Constitutional mandate of the Attorney-General as conferred under article 76 of the Constitution, in respect of civil matters, is not provided for under the Constitution and is rather a creature of section 29 (1) of the Seychelles Code of Civil Procedure and consequently erred when he refused to refer the matter to the Constitutional Court by way of a Constitutional reference as requested by the Appellant.

GROUND 3

The learned Chief Justice erred in law when he ruled that since section 29 (1) of the Seychelles Code of Civil Procedure provides that any suit brought against the Government of Seychelles has to be in the name of the Attorney General, the Attorney General can either appear personally or appear through one of his subordinate officers, or through an attorney at law in private practice who has been specifically instructed to appear on his behalf.

GROUND 4

The learned Chief Justice erred in law when he proceeded to give judgment on the pleadings only instead of ordering a hearing of the merits of the case since the parties had raised several contentious factual and legal issues which could only have been decided after a proper oral hearing and by tendering of exhibits in court. By doing so, the learned Chief Justice deprived the Appellant of his Constitutional right to a fair hearing in law.

GROUND 5

The learned Chief Justice erred in law when he ordered a writ habere facias possessionem to be issued against the Appellant since the Appellant had raised a reasonable and serious defence to the application both in terms of the facts and the law to justify a dismissal of the application in law".

17. By way of relief, the Appellant has asked the Court to allow the appeal.

Grounds 1, 2 and 3 of the appeal

The preliminary objections and the issues framed for determination of the Court at paragraph [24] hereof

18. The Appellant raised three preliminary objections under The Court of Appeal of Seychelles Rules 2023 S.I. 93 of 2023 (hereinafter referred to as "The Rules 2023") and one objection under the Courts Act [CAP 52]. However, due to the two interrelated issues identified for the determination of the Court, stated at paragraph [24] hereof, the Court finds it unnecessary to determine the objections raised by the Respondent. In any event, the Court's decision regarding the objections would not have impacted the outcome of the appeal.

19. The Court addresses the preliminary point it brought to the attention of Counsel for the Appellant at the hearing of the appeal. The Court informed Counsel for the Appellant that grounds 1, 2 and 3 of the appeal are vague or general in terms contrary to sub-rules 18 (3) and (7) of The Rules 2023² as they set out the findings to which the Appellant is objecting, but they do not set forth precisely the basis on which he is objecting in terms of the established case law of the Court dealing with rule 18 (3) and (7) of The Rules 2023. See, for instance, Mountain View Investment Pty Ltd v Pomeroy SCA No. 4/2022 (25 August 2023), Petrescu v lllescu SCA No. 22/2021 (26 April 2023), Elmasry and Anor v Hua Sun SCA No. 28/2019 (17 December 2021), Chetty v Esther SCA No. 44/2020 (13 May 2021), Cedric Petit v Marguita Bonte SCA No. 11/2003 (20 May 2005) and Petit v Bonte SCA No. 45/1999 (14 April 2000).

20. Based on the established case law, the Appellant is required under rule 18 (7) of The Rules 2023 to formulate grounds of appeal in a concise, clear and felicitous manner. A ground of appeal, which only sets out the findings of fact and conclusions of law to which an appellant is objecting, is a vague ground of appeal. A ground of appeal should also set forth precisely the basis on which the appellant is objecting. This is because the purpose of sub-rule 18 (7) of The Rules 2023 is to give fair notice to the respondent and the Court of the points that would be raised in the appeal.

21. In Petrescu supra, the Court quoted with approval the observation made by the Court of Appeal in England in Ferguson v Whitbread & Co plc 1996 SLT 659, where the following was said by Lord President Hope, at page 659L, concerning certain grounds of appeal ―

″[10] […] the preparation of the grounds of appeal, which require to be lodged as a step in the process, should never be regarded as a mere formality. The purpose of the rule, which is a simple example of case management, is to give notice to the parties and the court of the points to be argued. Specification of the grounds enables the parties to direct their argument and their preparation for it, to the points which are truly at issue.″ [Emphasis is the Court's]

22. The Court has consistently demonstrated its approach of striking out and dismissing notices of appeal with vague grounds of appeal (the cases cited at paragraph [19] hereof, refer).

23. Although the Court has concluded that grounds 1, 2 and 3 are vague or general in terms, it did not strike out these grounds. The Court has heard grounds 1, 2 and 3 of the appeal in the interest of justice and as permitted by The Rules 2023. In doing so, the Court has identified two interrelated issues for determination, specifically based on the points of law raised in the Appellant's affidavit in reply, the rulings delivered by the learned Judge, grounds 1, 2 and 3 of the appeal and the heads of argument presented on behalf of both parties. The Court is unaware of any Seychellois jurisprudence which has considered the issues raised at paragraph [24] hereof.

The questions at issue

24. The questions at issue for the determination of the Court are as follows —

1. whether or not the Constitution confers power upon the Attorney-General with respect to civil proceedings before a court established by law for the administration of justice;

2. whether or not the Attorney-General is required to give a written "sanction" to a licensed attorney-at-law from the private bar to represent the Attorney-General in civil proceedings before a court established by law for the administration of justice, as a necessary prerequisite.

25. The Court addresses the first issue. Counsel for the Appellant presented his argument based on article 76 of the Constitution and section 29 (1) of the Seychelles Code of Civil Procedure. Counsel for the Respondent, in his counter-argument, contended that the conclusion reached by the learned Judge that article 76 of the Constitution does not confer any power upon the Attorney-General regarding civil proceedings is correct. Neither Counsel provided any helpful elaboration in their heads of argument and at the hearing of the appeal regarding the question at issue.

26. Article 76 of the Constitution stipulates —

"76 (1) There shall be an Attorney-General who shall be appointed by the President from candidates proposed by the Constitutional Appointments Authority.

(4) The Attorney-General shall be the principal legal adviser to the Government and, subject to clause (11), shall have power, in any case in which the Attorney-General considers it desirable so to do —

(a) to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed by that person;

(b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority;

(c) to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken under subclause (a) or by any other person or authority.

(5) The powers of the Attorney-General under clause (4) may be exercised by the Attorney-General in person or by subordinate officers acting in accordance with the general or special instruction of the Attorney-General…" [Emphasis is the Court's].

27. Section 29 of the Seychelles Code of Civil Procedure stipulates —

"29. Claims by or against the Government

1. All claims by the Government of Seychelles against any private person shall be brought in the name of the Attorney General and (subject as hereinafter provided) shall be carried on in the same manner in every respect as suits between private parties.

2. All claims against the Government of Seychelles being claims of which the subject matter would have been cognisable by the Supreme Court of Judicature if the claim had been against a private individual may, be preferred in the Supreme Court in a suit instituted by the claimant as plaintiff against the Attorney General as defendant." [Emphasis is the Court's]

28. Upon careful consideration of article 76 of the Constitution and section 29 (1) of the Seychelles Code of Civil Procedure, the Court finds the argument presented by Counsel for the Appellant to be misconceived. I referred to section 13 (1)³ of the Legal Practitioners Act [CAP 111] to show that the Attorney-General and other law officers are entitled to appear on behalf of the Government or another public body or the Attorney-General among others, in legal proceedings before a court. This section provides that they are deemed, for the purposes of the Licences Act, to be licensed to provide legal services under that Act.

29. Section 29 (1) of the Seychelles Code of Civil Procedure Code is not applicable to the question at issue. In the case of the Government of Seychelles at the Instance of the Ministry of Home Affairs v. The Public Service Appeal Board & Anor SCA No. 75/2019 (19 August 2022), the Court stated: "section 29 unequivocally entreats parties who sue or are sued by the Government to do so in the name of the Attorney General". [Emphasis is the Court's]. The case of the Government of Seychelles at the Instance of the Ministry of Home Affairs supra did not give any other interpretation to this procedural provision. This procedural provision also provides that the proceedings shall be carried on in the same manner in every respect as suits between private parties. Given the clear language of this procedural provision, it remains unclear how the learned Judge arrived at such an interpretation: "[12]… it is clear that the AG is… also [cited] as the legal representative of the government in this provision", at paragraph [12] of the ruling on the points of law. The Court quashes the said finding of the learned Judge.

30. In considering the constitutional argument put forth by both Counsel, it is noted that neither article 76 nor any other provision of the Constitution grants the Attorney-General the power with respect to civil proceedings in any court established under the law for the administration of justice. Conversely, the powers of the Attorney-General regarding criminal proceedings are expressly and unequivocally provided in article 76 of the Constitution. Article 76 of the Constitution also expressly and unequivocally provides that the Attorney-General shall be the principal legal adviser to the Government, tasked with upholding the rule of law. Given the lack of any express provision in the Constitution, which confers powers upon the Attorney-General with respect to civil proceedings, the Court concludes that article 76 of the Constitution cannot be interpreted as conferring any such power upon the Attorney-General. In light of its finding, the Court concludes that the legal maxim delegatus non potest delegare is not applicable to this case.

31. Therefore, the Court upholds the conclusion of the learned Judge, at paragraph [8] of the ruling on the points of law, that "…the constitutional provisions…[do] not provide for civil litigation powers of the Attorney-General". Therefore, it follows that no constitutional barrier prevents the Attorney-General from instructing Mr. Ferley, a licensed attorney-at-law, to represent the Attorney-General in the civil proceedings before the Supreme Court and the Court of Appeal.

32. The second interrelated issue for determination is whether or not the Attorney-General is required to give a written "sanction" to a licensed attorney-at-law from the private bar to represent the Attorney-General in civil proceedings before a court established by law for the administration of justice, as a necessary prerequisite.

33. Counsel for the Appellant argued in his heads of argument that, as the written "sanction" of the Attorney-General had not been obtained before the institution of the civil proceedings in the name of the Attorney-General, the whole proceedings had been a complete nullity. Counsel for the Respondent stated in his heads of argument, without further elaboration, that the written "sanction" from the Attorney-General had been obtained. Counsel for the Appellant and the Respondent presented some arguments at the hearing of the appeal on the issue at hand, which the Court has considered with care.

34. What is in question here is Mr. Ferley's standing to appear on behalf of the Attorney-General. The Court is uncertain concerning the grounds on which the Appellant argued that the written "sanction" is required. Counsel for the Appellant has repeated the same arguments presented with respect to the first issue.

35. Given the Court's reasoning and findings with respect to the first issue, the Court concludes that the Attorney-General is not required to give a written "sanction" to a licensed attorney-at-law from the private bar to represent the Attorney-General in civil proceedings before a court established by law for the administration of justice, as a necessary prerequisite.

36. For the reasons stated above, the Court quashes the finding of the learned Judge that "[15]…I am inclined to agree with counsel for the Respondent that Mr. Ferley's mandate to represent the Attorney-General in this suit is defective. However, the defect does not nullify the suit as it is one of form only and can be cured", at paragraph [15] of the ruling on the points of law.

37. Additionally, the Court quashes the order made by the learned Judge ordering "counsel for the petitioner to file his written mandate within 14 days of [the] Ruling, failure of which the case would be stayed for abuse of process", at paragraph [15] of the ruling on the points of law.

38. For the reasons stated above, grounds 1, 2 and 3 stand dismissed.

39. Having reached the conclusion stated at paragraph [35] hereof, the Court is of the view that in future cases, the Attorney-General should send a written notification to the court upon instructing a licensed attorney-at-law from the private bar to represent the Attorney-General in a civil case. This notification will serve to inform the court that the attorney-at-law from the private bar has been instructed to represent the Attorney-General in the civil case.

Ground 5 of the appeal

Analysis of the contentions of the parties

40. The contention raised by ground 5 is that the learned Judge erred in concluding that the requirements of the "référé" procedure have been established and ordering a writ habere facias possessionem against the Appellant as the Appellant has raised a serious defence to the application. The Court has carefully considered the record of appeal with respect to this ground, the heads of argument presented on behalf of the Appellant and the Respondent and their oral submissions made during the hearing of the appeal.

41. In Searles v Pothin SCA No. 32/2021 (23 August 2023), the Court observed that, for historical reasons, the jurisdiction of a Judge to grant a writ habere facias possessionem is rooted in his or her jurisdiction as juge des référés under articles 806 - 811 of the French Code of Civil Procedure, dealing with matters of urgency: see, also, Hetimier v Constance & Anor SCA No. 64/2018 (13 August 2021) and Delphinius Turistica Maritima S.A. v Villbrod [1978] SLR 121.

42. Article 806 and 809 of the French Code of Civil Procedure stipulate —

"806. Dans tous le cas d'urgence...il sera procédé ainsi qu'il va être règlé ci-après.

809. Les ordonnances sur référés ne feront aucun préjudice au principal; elles seront exécutoires par provision, sans caution, si le juge n'a pas ordonné qu'il en serait fourni une."

43. In Gujadhur & Ors v. Gujadhur & Anor (Mauritius) [2007] UKPC 54 (26 July 2007), a judgment of the Lords of the Committee of the Privy Council on an appeal from the Court of Appeal of Mauritius, the Lords of the Committee of the Privy Council stated the following with respect to the summary procedure of "référé" —

"11. Article 806 is part of the French heritage of Mauritian law, forming part of a group of articles headed "Des référés". It is based on provisions of the Code Napoléon and can be traced back to the 17^th century, if not to an earlier Roman origin:

806. Dans tous le cas d'urgence...il sera procédé ainsi qu'il va être règlé ci-après.

809. Les ordonnances sur référés ne feront aucun préjudice au principal; elles seront exécutoires par provision, sans caution, si le juge n'a pas ordonné qu'il en serait fourni une.

12. …Under article 806…the summary remedy will be granted if an owner of property can show urgency and a clear title and the respondent cannot show a bona fide and serious defence. It is mainly used by owners of land to obtain a writ of possession but the grant of the order and the entry into possession by the applicant does not prevent the defendant from commencing a "principal case" claiming that he has a better title." [Emphasis is the Court's]

44. In Delphinius Turistica Maritima S.A. supra, Sauzier J, as he was then, stated —

″9. [t]he remedy sought is essentially one derived from the French law of ″Les Référés″, which provides a remedy to an owner of a property with a clear title. In applying that law, the Seychellois courts have repeatedly held that an applicant for a writ habere facias possessionem has first to establish a clear title to the possession of the property concerned and that, if he succeeds, his application will be granted, unless the respondent shows that he has a serious and bona fide defence."

45. The question for determination is whether or not the well established requirements of case law for an order under the référé procedure — urgency, clear title and no bona fide and serious defence — have been established. The Court notes that the Appellant did not challenge in ground 5 the finding of the learned Judge with respect to the requirement of urgency, which is a question of fact.

46. The Court considers the Appellant's argument that he has raised a serious defence to the application. Counsel for the Appellant argued in his skeleton heads of argument that the Appellant challenged the Government of Seychelles' lawful possession of the land.

47. In the Court's view, there is no merit in the argument raised with respect to ground 5 of the appeal for the following reasons —

(a) the evidence in the form of affidavits showed that the Republic is the owner of the land comprised in tile number H14683 as evidenced by exhibits A2 and A3. According to the document titled, "REPUBLIC OF SEYCHELLES THE LAND REGISTRATION ACT CERTIFICATE OF OFFICIAL SEARCH" dated 24 January 2024 (exhibit A2), the Republic of Seychelles has absolute title to the land comprised in title number H14683; hence the Republic has clear title to the possession of the same land;

(b) the evidence also showed that the Appellant is a trespasser, unlawfully occupying the land comprised in title number H14683; hence the Appellant has not raised a bona fide and serious defence. The Appellant claimed in his affidavit evidence that the Respondent's ownership of the land in question is being contested by the Estate of the late Philippe Lefevre in Civil Side No. 53/2023. However, while the Appellant claimed to have exhibited the plaint to his affidavit in reply, the plaint has not been exhibited. Irrespective of the dispute with respect to the land, which he claimed, a question arises: Why should this be of concern to the Appellant? It is noted that the Appellant has averred in his affidavit in reply that he is neither in possession nor in occupation of the land comprised in title number H14683;

3. furthermore, the Respondent has exhibited two letters written by one Mr. Roland Lefevre (dated 01.10.208 (sic)), exhibit A4; and 06/05/2017, exhibit A5), on behalf of one Mrs. Lefevre. These letters claimed that the Appellant is permitted to set up his food van on the premises of Mr. Roland Lefevre located in the Beau Vallon area. It is noted that these two letters did not refer to any title number, and there is no evidence to suggest that Mr. Roland Lefevre has ownership of land in the Beau Vallon area referred to in the letters, as he wrote the letters on behalf of one Mrs. Lefevre.

48. The learned Judge has also addressed his mind to these matters and concluded that "[12]…[t]he Respondent does not have a lease from the Applicant and despite being given several warnings the Respondent has failed to vacate parcel H14683. Clearly, the Respondent is a trespasser as he developed his business on the parcel without the consent of the rightful owners, who, unfortunately, are incapable of commencing their development projects unless the Respondent vacates parcel H14683."

49. For the reasons stated above, the Court concludes that the learned Judge was right to hold that the requirements of the référé procedure were satisfied and that a writ habere facias possessionem should be ordered against the Appellant, ordering him to quit, leave and vacate the land comprised in title number H14683, situated at Beau Vallon, Mahe, Seychelles, and to remove his "van/trailer/kiosk" on the said State land.

Ground 4 of the appeal

50. In light of the Court's finding that ground 5 of the appeal should be dismissed, ground 4 of the appeal stands dismissed.

DECISION

51. Grounds 1, 2 3, 4 and 5 of the appeal are dismissed.

_____________________

F. Robinson JA

_________________________

I concur: A. Fernando President

_________________________

I concur: M. Twomey-Woods JA

Signed, dated and delivered at Ile du Port on 22 April 2025.