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Court name
Constitutional Court
Case number
Constitutional Court Case 5 of 1999
Counsel for plantiff
Mr P. Boulle

Verlaque and Another v Seychelles Government and Another (Constitutional Court Case 5 of 1999) [2000] SCCC 1 (30 May 2000);

Media neutral citation
[2000] SCCC 1
Counsel for defendant
Mr A.Fernando Attorney General with Mr Shiran Gooneratne Senior State Counsel
Coram
Perera, J
Juddoo, J
Karunakaran, J

IN THE CONSTITUTIONAL COURT OF SEYCHELLES

1. Mr Georges Verlaque

Acting as executor and Fidiciary

For Heirs Mederic Verlaque

2. Mrs Idea Verlaque Petitioners

Versus

1. Seychelles Government

Rep by the Attorney General

2. The Attorney General Respondents

Constitutional Court Case No 5 of 1999

( Before A.R. Perera J (Presiding), N.Juddoo J, D.Karunakaran J)

……………………………………………………………………………………………..

Mr P. Boulle Attorney at Law for the Petitioners

Mr A.Fernando Attorney General with Mr Shiran Gooneratne Senior State Counsel for
the Respondents

JUDGMENT

Perera J

This is an application under Article 130(1) of the Constitution. The 1st petitioner has invoked the jurisdiction of this court “acting as executor and fiduciary for heirs Mederic Verlaque”, while the 2nd
petitioner prosecutes the petition in her own capacity. It is common ground that Parcel PR 595 at Anse Kerlan, Praslin was acquired by the Government in 1980. That land was later subdivided into parcels PR.
2109 and PR. 2111.

Prior to the acquisition, the land belonged to one Mederic Verlaque and his wife Idea Verlaque (the 2nd
petitioner), in equal half shares. The said Mederic Verlaque died on 8th January 1967 and according to the law prevailing at that time prior to the promulgation of the Civil Code of Seychelles in 1976, there was direct succession to the heirs. Hence at the time of acquisition in 1980, ¾ share of Parcel PR 595 was owned by the 2nd petitioner Idea Verlaque, while the balance ¼ share by nine children of the late Mederic Verlaque, which included the 1st petitioner Georges Verlaque.

Upon the acquisition, the land became vested in the Republic, free of all encumbrances, and the interest of every person in the land was converted into a right to compensation under the Land Acquisition Act, 1977. It is conceded that no compensation was paid.

By virtue of Section 14 of Part III to Schedule 7 of the present Constitution, which came into force on 21st
June 1993, the State undertook to continue to consider all applications made by a person or persons
whose land had been acquired during the prescribed period, and to negotiate in good faith with a view to transferring back the land in the circumstances mentioned in sub-paragraphs (a) or (b), or transferring alternative land of corresponding value, or paying full monetary compensation under paragraphs (c) and (d). Admittedly the land was acquired from all the co-owners. Hence any compensation payable was to the co-owners and not to the estate of the late Mederick Verlaque. In paragraph 2 of the petition, the petitioners aver that the application envisaged in Section 14(1) was made by them on behalf of “all the co-ownership of Parcel PR. 595.” That averment was admitted by the respondents.

But did the petitioners have legal authority to represent the individual co-owners to that “co-ownership.” The respondents also admit paragraph 3 of the petition which avers that “the petitioner” embarked on negotiations with the government for purposes envisaged in the said Section 14. As the correspondence produced in the case show, only Georges Verlaque in the capacity of fiduciary for Mrs Idea Verlaque and heirs Mederic Verlaque” which he claimed to be, negotiated with the government.

In his affidavit supporting the petition, the 1st petitioner avers that he was appointed as “executor and fiduciary of the heirs Mederic Verlaque” by an order of this court on 24th November 1992. I shall deal with the validity of that averment later in this judgment. Until then, I will proceed on the basis that Georges Verlaque, the 1st petitioner negotiated with the government as the fiduciary of the heirs, in respect of the co-owners of Parcel PR.595.

The earliest letter produced in the case regarding the negotiations in this matter is the letter dated 8th
February 1996 from the Ministry of Community Development addressed to “Mr Georges Verlaque, Fiduciary for Mrs Idea Verlaque and heirs Mederic Verlaque”. Obviously the Ministry was acting upon a representation made by the 1st respondent as “fiduciary” (although not as “executor”).
In this letter of 8th February 1996 the government confirmed an offer of compensation which was agreed by Georges Verlaque in his capacity as fiduciary. The offer made by the government was –

“(1) The return of Parcel PR. 2109 and PR. 2111 to heirs Verlaque….

Cash compensation of R.400,000 payable in two equal half yearly installments with interest at 8% per annum on the balance outstanding.

The offer was however subject to two conditions-

“(a) The return to government of the strip of land shaded in red on the attached plan (b) The distraction of a right of way along the boundary of Parcel PR.2111 to Parcel PR. 1632.”

The 1st petitioner was asked whether that offer was acceptable to him. The government offer of compensation that was said to have been agreed by the 1st petitioner was – The return of Parcels PR. 2109 and PR. 2111 Compensation in a sum of R.400,000 for the balance portion of Parcel PR. 595.

However, the fact that he was asked once again whether that offer was acceptable to him shows that any earlier agreement by him was not considered as final and conclusive and that there was the need for further negotiations. He replied on the same day disagreeing with condition (a) and suggesting an alternative. There is no correspondence to show that this disagreement was resolved. The petitioners aver that the letter of 8th February 1996 and a letter dated 18th September 1996 forwarding a cheque for R.208,000 “being the final installment of compensation” constituted the agreement reached under the Constitution, and hence the failure to transfer the two Parcels of land was a contravention of Section 14(1) of Part III Schedule 7 of the Constitution. As the land was subdivided, monetary compensation was paid for the balance portion of Parcel PR. 595 under sub para (c) (ii). That had no bearing on the offer to transfer back Parcels PR. 2109 and PR. 2111, which alone was to be subject to agreement on two conditions which related to land. However subsequent correspondence produced in the case do not refer to the disagreement about condition (a).

The petitioners aver that despite repeated requests the 1st respondent has failed to transfer the land (ie. Parcel PR. 2109 and PR. 2111) to him (in his capacity as “executor and fiduciary”) under the Land Registration Act, to give effect to the “agreement” of 8th February 1996, and that is a violation of his right to become the registered owner under Part III to Schedule 7 of the Constitution.

The duty of the government as proprietor to transfer a land, with or without consideration under Section 46 of the Land Registration Act (Cap 107) for purposes of Part III Schedule 7 of the Constitution arises only upon an agreement being reached after negotiations in good faith had been concluded in the circumstances set out in paragraphs (a) or (b) of Section 14 (1). It is only then that he would be entitled to be the registered owner. Although the petitioners aver that negotiations were concluded when the parties reached an agreement which was “confirmed” by the letter dated 8th February 1996, the respondents aver that there was no finality to the negotiations as it was later discovered that the 1st petitioner had been appointed as executor in respect of a different land and hence had failed to obtain the consent of “all heirs” to accept the offer made in the said letter and to negotiate on their behalf. Hence the alleged “failure” of the government to transfer both Parcels of land, which is averred as the contravention depends on the determination as to whether the negotiations could be considered as concluded, and also whether the 1st petitioner Georges Verlaque had legal capacity to negotiate on behalf of all the co-owners.

On 14th May 1997 the Ministry informed the 1st petitioner that –

“The Attorney General has not been able to finalise the transfer of the property as your appointment as executor is only in respect of land owned by the heirs of late Mederic Verlaque at the time of the appointment.

As the property is being transferred to Mrs Idea Verlaque and all the named heirs of Mr Mederic Verlaque, the heirs, if they are not in Seychelles, should appoint you to accept the transfer of the property on their behalf.”

The reference to “heirs” was obviously due to a misapprehension of the legal position. That letter indicated an intention of the government to transfer both Parcels PR. 2109 and PR. 2111 provided all the co-owners appointed the 1st petitioner to accept the transfer of the property on their behalf.
The delay in transferring the property was therefore due to the lack of capacity of the 1st petitioner to accept the transfer.

That letter was replied by Dartania Verlaque, one of the co-owners who by letter dated 26th
August 1997 refused to appoint Georges Verlaque as “executor” in respect of Parcel PR. 595.

That letter was replied by the Ministry by letter of 25th November 1997 wherein the intention to transfer both Parcels PR. 2109 and PR. 2111 was re-iterated provided he agreed to appoint Georges Verlaque to accept the property on his behalf. By letter dated 25th May 1998 the government continued to make the “offer of compensation of 8th February 1996” still open for a further period of four weeks pending the agreement of all the co-owners and informed Georges Verlaque that

“…. If you cannot secure and produce written agreement of all the heirs to the above mentioned offer
within four weeks, we will assume that the ex- owners are not interested in the return of the land and government will proceed on the basis of monetary compensation in respect of the said property”.

The government throughout its correspondence maintained that the letter dated 8th February 1996 contained an offer of compensation. That offer was to transfer back both Parcels PR. 2109 and PR. 2111,and the payment of monetary compensation for the balance portion of Parcel PR. 595. But that offer was agreed upon by Georges Verlaque who misrepresented himself as the executor of the estate of Mederick Verlaque and fiduciary to the co-ownership.

There was no reply to the letter of 25th May 1998, and hence the government was entitled to proceed on the basis of monetary compensation as stated therein, and consider that the ex-owners were not interested in the return of the land as offered by letter dated 8th February 1996.

Accordingly on 13th August 1998, consequent to the 1st petitioner’s discussions with the technical advisor of the Ministry regarding land requirements of the proposed Lemuria Hotel and Golf Course Project, which involved Parcel PR. 2111, the Ministry confirmed an offer of R.900.000 plus the transfer of Parcel PR 2109
and the adjoining portion of land as full compensation for the acquisition of Parcel PR. 595. This was a novation of the previous offer, as the government indicated that Parcel PR. 2111 would be retained.

George Verlaque, who now claims in the petition that the offer conveyed by letter dated 8th February 1996 concluded the negotiations, had taken part in discussions where the decision of the government to retain Parcel PR 2111 was conveyed to him. He has not denied his participation in those discussions in any of the affidavits filed by him in the case.

The letter of 13th August 1998 has been exhibited with the affidavit supporting the petition. In the petition before court he however avers that the letter of 8th February 1996 confirmed a conclusion of negotiations and that both Parcels PR. 2109 and PR. 2111 were “returned” to the petitioners. The word “returned”, it was submitted is used in the notional sense and not in a factual sense as both lands are still owned by the government.

By subsequent letter dated 10th September 1998, the government invited the attention of Georges Verlaque to the letter of 13th August 1998 and the discussions with him on 4th September 1998 and confirmed three options put to him. They were –

(1) To increase the compensation offered in respect of Parcel PR. 2111 which it had decided to retain, to R.1.3 million. The offer to be valid till 30th September 1998.

(2) To transfer the part of land required to for Golf Course (Parcel PR.2111) to Le Refuge du Pecheur Ltd in return for equity participation in the Hotel and Golf Course Project

(3) To lease Parcel PR. 2111 to Le Refuge du Pecheur Ltd for a period of 60 years.

Obviously, a transfer or a lease, as envisaged in options (2) and (3) could be done only after Parcel PR.2111 had been first transferred back to the co-owners. That could however have been done by two simultaneous notarial executions the same day. The letter of 10th September 1998 reminded Georges Verlaque that he had considered that the option to lease was appealing to him and that he would seek the decision of the “heirs” to his approval. He was therefore asked to confirm which of the three options was acceptable to him so that the formalities could be proceeded with.

Receiving no reply to that letter, the government sent a letter dated 22nd December 1998, addressed to all the co-owners of Parcel PR. 595. The reason for doing so was stated as follows –

“It has since become evident that Mr Georges Verlaque is not fully empowered to deal with the rights of all the co-owners in the above mentioned property. It is therefore necessary that government communicates directly with you in this connection”.

That letter went on to explain that the retention of Parcel PR. 2111 was of national importance to Seychelles”, and increased the offer of compensation for that Parcel to R. 2.1. million. It was also stated that Parcel PR. 2109 would be transferred to the “heirs.”
The validity of that offer was left open till 22nd January 1999. The respondents in paragraph 7(h) of the defence aver that “the government is ready and willing to abide by its offer dated 22nd December 1998.

That letter was replied by Dartania Verlaque, who, in his letter of 7th January 1999 stated that he “fully
understood that this project is of national importance”.
Before he decided on the offer contained in the letter of 22nd December 1998, he sought certain clarifications.

Mr Boulle, acting on instructions of Georges Verlaque sent a letter dated 8th January 1999 acknowledging the letters of 10th September 1998 and 22nd December 1998. The letter of 10th September 1998 contained the three options, while that of 22nd December 1998 a new offer of increased compensation for Parcel PR 2111. The validity period of the options contained in the letter of 10th September 1998 was still open till 22nd January 1999. In the letter of 8th January 1999, Mr Boulle maintained that Georges Verlaque had been duly appointed fiduciary in respect of Parcel PR. 595 and was therefore fully empowered to deal with the property to the exclusion of all other parties.
He then stated as follows –

“At this juncture my client in his capacity as fiduciary has instructed me to confirm that he considered the exchange of correspondence dated 8th February 1996 and 18th September 1996 to have concluded all negotiation and embodies the agreement reached between the parties”.

That was a unilateral consideration. Georges Verlaque conveniently ignored the discussions he has had with the government, leading to the offer of three options by the letter of 10th September 1998, and the new offer contained in the letter of 22nd December 1998. However to maintain the position as regards the
claim for both lands contained in the letter of 8th January 1999, Mr Boulle, by letter dated 3rd February 1999 complied with the request made by the government and produced powers of attorney granted by all “heirs” except Dartania Verlaque, appointing Georges Verlaque to negotiate with the government. He also reiterated that “heirs” desired to settle the matter in accordance with “the agreement reached with their agent as set out in the letter of 8th February 1996” and sought the return of both Parcels PR. 2109 and PR. 2111.

The powers of Attorney produced had been executed between July 1997 and January 1999. It was therefore an admission that Georges Verlaques was not their agent at the time of negotiating with the government. Hence it was after 3rd February 1999 that the co-owners except Dartania Verlaque could be
considered as having participated in the negotiations. But by that time the negotiations were based on the offer made by the letter of 22nd December 1998. There was no ratification of the earlier negotiations
by Georges Verlaque.

Over seven months after sending the letter of 3rd February 1999, Mr Boulle instructed by “Georges Verlaque” acting on behalf of heirs Medric Verlaque and Idea Verlaque” (no longer as fiduciary) but as agent, informed the Ministry by a letter dated 23rd September 1999 that “unless a deed of transfer is executed to register title no PR. 2109 and title no PR. 2111 in the name of the owners within one week”,
his client will have no option but to take legal action.

In a final letter, the government informed Mr Boulle by letter dated 7th October 1999 that –

 “Government had communicated its decision to retain the above-mentioned parcel of land (Parcel PR. 2111 presently subdivided as PR. 2771 (access reserve) PR. 3344 and PR. 3345), in the public interest by its letter to Mrs Idea Verlaque and all the heirs of the late V.M. Verlaque dated 22nd December 1998. This letter also explained the government’s position in regard to Parcel PR. 2109 and the compensation to be
paid in respect of the compulsory acquisition of Parcel PR. 595.”

The foregoing correspondence disclose a state of affairs where both parties, when negotiating, had been mistaken about the legal capacity of Georges Verlaque. He was neither an executor, fiduciary or even an agent of the other co-owners. The letter dated 20th January 1999 from the Ministry to Mr Boulle stating that Georges Verlaque has not been appointed as fiduciary but as “executor to act as fiduciary” for the co-owners and as such his appointment did not authorise him to act as fiduciary for heirs Mederic, was in law, inconsistent with the clear provisions contained in Article 724 (4) of the Civil Code.
Both parties do not appear to have appreciated that there was no need for the appointment of an executor in respect of both immovable and movable property of a person who had died prior to the coming into force of the Civil Code of Seychelles. The averment contained in paragraph 4 of the defence of the respondents was based only on a logical inference that an appointment made on 24th November 1992 could not be in respect of a property which was legally owned by the government at that time.

Locus standi of the petitioners Hence the locus standi of Georges Verlaque to file the present petition as executor and fiduciary of heirs Mederic Verlaque under Article 130(1) became a glaring defect. Although the respondents had not raised an objection to such a basic matter, this Court after reserving the case for

judgment thought it fit to invite Counsel for the petitioner to clarify the locus standi of Georges Verlaque, especially as Article 130 (1) required that the person who applies for relief must allege not only that a
provision of the Constitution has been contravened but also that his interest is being or is likely to be affected by such contravention. Hence, “as executor and fiduciary” Georges Verlaque would have been alleging a contravention in relation to all the co-owners except Idea Verlaque who was the 2nd petitioner by vertue of being a ¾ share co-owner of Parcel PR. 595. Georges Verlaque, sans the trappings of an executor and fiduciary” had locus standi on his own behalf as a co-owner to 1/9 of ¼ share of the property.
But he has filed the petition in a representative capacity and not in an individual capacity.

On 2nd May 2000, when the court sat to obtain this clarification, Mr Boulle Counsel for the petitioners submitted that although Georges Verlaque may not be considered as the fiduciary for purposes of Parcel PR 595, he had locus standi in his own behalf as one of the co-owners. He also submitted that the 2nd
petitioner stood as a co-owner to ¾ share of the property. He informed court that he would still contend that the petition could be prosecuted in the present form, but given time he would consider filing a motion to amend the petition and add all the co-owners as petitioners. This has now been done with a motion dated 10th May 2000, filed in this court on 12th May 2000. The amended petition sought to be filed contains a dual position. It retains the position of “Georges Verlaque” acting as executor and fidiciary for heirs Mederic Verlaque as the 1st petitioner, and Idea Verlaque as 2nd petitioner, as in the original petition dated 24th September 1999. The amendment therefore is the addition of Georges Verlaques and eight others as petitioners in their own capacities as co-owners of the acquired property. In the supporting affidavit of facts dated 12th May 2000 Georges Verlaque admits that he understood that his appointment of executor on 24th November 1992 authorised him to take legal action in respect of all the rights of the deceased.
But with the death of his father Mederic Verlaque on 8th January 1967, and according to the law prevailing then, there was direct succession to the property he held on the heirs. Hence there was no estate of the deceased. The appointment of 24th November 1992 arose from an application for appointment of fiduciary
made by Georges Verlaque in case no. 154 of 1992 of this court.
That application was properly made as the co-owners needed a fiduciary under the provisions of Article 818 of the Civil Code to deal with another property to which they had succeeded, and was holding as co-owners.
However the court acted ultra petita and appointed Georges Verlaque as “executor to act as fiduciary”.
Idea Verlaque in her affidavit attributes the dispute of the locus standi of Geroges Verlaque to “the ambiguity on the record of the court proceedings”.
There was no ambiguity in that appointment, to the extent that it had no bearing on Parcel PR. 595. Mr Boulle submitted that it was the appointment of “executor” that misled Georges Verlaque to consider himself as having being authorised to act on behalf of all heirs. He ought to have been better advised that the land acquired in 1980 did not belong to the “estate of the deceased Mederic Verlaque” and hence he could not have made use of a mistake in case no 154 of 1992 and acted in a capacity which was legally untenable.
In paragraph 9 of the affidavit dated 12th May 2000 he avers thus-

“At this juncture, where the issue of my locus standi which will clearly affect the interest of all the heirs of the deceased who have an interest in this case, is uncertain, it is in the interests of justice and necessary in order to dispose of all the issues arising from this action, that the heirs be added as petitioners in this
suit, to act therein in their personal capacities”.

The matter before this court, is neither “an action” nor “a suit”.

The application for amendment of the petition adding the 3rd to 11th petitioners is being made under Section 112 of the Code of Civil Procedure (Cap 213) by virtue of the casus omissus provision in Rule 2(2) of the Constitutional Court Rules. The motion dated 10th May 2000 seeks inter alia” “an order that leave be granted to amend the petition by amending the pleadings to add the new petitioners”.
The “new petitioners” are Georges Verlaque in his own capacity as a co-owner, and 8 other co-owners. However Georges Verlaque is retained in the representative capacity as “executor and fiduciary of heirs Mederic Verlaque”, and Idea Verlaque as the 2nd Petitioner. It was only after the Court sought the clarification that the 1st and 2nd petitioners realised that they had no locus standi to prosecute the petition as presently constituted, and that the petition in its present form will affect the interests of the other co-owners.

Admittedly, Parcel PR 595 was acquired from all the co-owners. Hence if any contravention of the provisions of the Constitution was being alleged under Article 130(1), all the co-owners who now seek to be added ought to have petitioned this court within 30 days of such alleged contravention, Georges Verlaque had negotiated with the government and filed the petition dated 24th September 1999 in a capacity which he never was. He still continues to claim that capacity of executor and fiduciary. Section
112 of the Code of Civil Procedure gives a discretion to the court to added parties “who ought to have been joined or whose presence before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.”
I am of the view that this discretion should not be exercised in a Constitutional petition where the persons sought to be added are in default of Article 130 (1) read with Rule 4(1) as regards the filing within 30 days.

Section 112 cannot be applied to cure such defaults especially due to the nature of a petition filed under Article 130(1) of the Constitution. Accordingly the motion dated 10th May 2000 seeking leave to amend the position by adding the 3rd to 11th petitioners is dismissed

However, as the respondents have admitted in their statement of defence that the petitioners negotiated with the government and as persons invoking the jurisdiction of this court under Article 130(1), are required only to establish that an alleged contravention has or is likely to affect their interests, the 1st and 2nd petitioners who are co-owners of Parcel PR 595 can prosecute the petition in their own capacities to protect their own interests.

Preliminary Objections 

In paragraph 7(c) of the defence, the respondents have raised the following preliminary objection.

“The petition does not disclose a contravention of any specific provision of the Constitution, but only a breach of an alleged agreement and thus failed to comply with Rule 5(1) of the Constitutional Court
Rules 1994 (S.I. 33 of 1994)”

Rule 5(1) aforesaid, is as follows-

“A petition under Rule 3 shall contain a concise statement of the material facts and refer to the provision
of the Constitution that has been allegedly contravened or is likely to be contravened or in respect of which the application, enforcement or interpretation is sought.”

The provision of the Constitution that has been allegedly contravened, is averred in paragraph 7 of the petition as follows-

“7.Despite repeated request the 1st respondent has failed to transfer the land to the petitioner under the land Registration Act to give effect to the agreement above-mentioned in violation of the petitioners right to become the registered owner under part III of Schedule 7 of the Constitution”.

The redress sought for this alleged violation is explicitly stated in the prayer as followed-

“(i) Ordering the 1st respondent to execute a deed of transfer of Parcels of land PR 2109 and PR 2111 in favour of the petitioners.

And, ordering that in default of execution of a deed of transfer above-mentioned within one month from the date of the judgment, that the said judgment be registered in the Land Registry to effect the transfer in lieu of a deed of transfer”.

These prayers per se have the character of an action based on a breach of an agreement, rather than a petition in conformity of Rules 3 and 5(1) of the Rules of the Constitutional Court.

In this respect the Attorney for the petitioners has filed a motion dated 4th February 2000 seeking to add the following prayer to the petition- 

“Wherefore the petitioner prays this Honourable Court for a judgment Declaring that the 1st respondent is in breach of Section 14 of Part III to Schedule 7 of the Constitution for having failed and refused to transfer Parcels PR 2109 and PR 2111 to the petitioners”.

If the amendment is allowed, there would be complete compliance with Rule 5(1) of the said Rules. But can the court permit such amendment of the original petition in view of Rule 5(3) which provides that no amendment which seeks to include “any new matter” be permitted. The Seychelles Court of Appeal, in the
case of the Seychelles Government v. Angor Chang Lai Seng (S.C.A. No 39 of 1998)drew a distinction between “new matters” and “new facts”, and stated thus –

“New matter in Rule 5(3) does not mean “new facts.” “New facts” may be introduced by amendment of the petition where it does not alter the “matter” already before the Court. When “material facts” are pleaded pursuant to rule 5(1), those facts, in contested case, raise issues for determination in the case in order for
the Court to decide, in the case of allegation of contravention, whether in terms of article 130(4)(a) of the Constitution the act or omission which is the subject of the application amounts to a contravention of the Constitution. Where new facts are pleaded which go beyond merely establishing that the act or omission
stated in the original petition amounts to the contravention alleged but is tantamount to an alteration of the nature of the contravention alleged or the act or omission which the court is asked to hold constitutes an alleged contravention or would occasion a dispute as to rights and interests otherwise vested in a third party, such new facts would raise ‘a new matter’ not pleaded in the petition.”

On the basis of this finding, it cannot be said that the prayer sought to be added would alter the “matter”
already before the court. The addition brings the petition within the provisions of Rule 5(1) and does not cause any prejudice of the respondents. Further, the documents annexed to the motion form part of the correspondence in the course of negotiations.
They too would not cause any prejudice to the respondents. Hence the motion dated 4th February 2000 is allowed.

There is however a further preliminary objection which is of a fundamental nature raised by the respondents at paragraph 7(f) of the defence.

“Without prejudice to what has been stated above, the petitioner’s action for the return of land Parcel PR 2111 is prescribed under Rule 4(1) (a) of the Constitutional Court Rules 1994 (S.I. 33 of 1994).”

The contravention that is alleged in paragraph 7 and prayer 1 of the amended petition, is the alleged failure and refusal of the government to transfer Parcels PR. 2109 and PR 2111 as “agreed” in the letter of 8th February 1996. The word “refusal” is an addition in the amended petition. The government has always
been ready to transfer Parcel PR.2109 but failed to do it as the co-owners had not been able to appoint Georges Verlaque to accept on their behalf. But the government has refused to transfer Parcel PR
2111 as it is needed for a matter of national importance. Instead compensation is being offered under sub paragraph (c) (ii) of Section 14 (1),

Rule 4(1) provides that –

“Where the petition under Rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court – In a case of an alleged contravention, within 30 days of the contravention.”

This period of limitation was strictly interpreted in the cases of Hydra III Maritime Company v. The
Attorney General (Constitutional Case No. 8/97) and Lise Morel Du Boil v. The Government of Seychelles
(Constitutional Case No. 5/96 and by the Court of Appeal in Darrel Green v. The S.L.A. (S.C.A. No 43/97). Hence if the petitioners rely on the letter dated 8th February 1996 as constituting an agreement to return both Parcel PR. 2109 and PR 2111 and allege that the failure and refusal by the government to return those lands constitutes the contravention, then under Rule 4(1) (a), the petition which was filed on 7th October 1999 is clearly out of time. Mr Boulle however submitted that as the government has not transferred the two lands up to now, the respondents cannot suggest a particular date as the date of
commencement of the contravention as it would then be conceding that there has been a contravention. The ascertainment of the date of commencement of a contravention alleged, is a matter for the court to
decide upon consideration of the facts disclosed, and not a matter for the parties.

According to the correspondence, the Ministry, by letter dated 13th August 1998 confirmed the discussions the 1st petitioner had with the Technical Advisor regarding the land requirements of the proposed Lemuria Hotel and Golf Course Project and offered compensation in a sum of R.900,000 and the transfer of Parcel PR 2109. That was the first official intimation of the decision by the Government to retain Parcel PR 2111. By a further letter dated 22nd December 1998 addressed to all the co-owners, the Government reiterated that decision. Parcel PR 2109 has been on offer since 8th February 1996 and the delay in transferring it up to the date of filing this petition was due to the inability of all the co-owners to appoint the 1st petitioner to act on their behalf. Dartania Verlaque has still not given his consent. Hence, although the petitioners aver that the government has failed and refused to transfer “the land,” that is, Parcel PR. 595 consisting of both Parcels PR. 2109 and PR. 2111, in fact it is Parcel PR 2111 that is not being transferred, and hence, a contravention, if any, would have commenced from 22nd December 1998.

If however, it is to be considered that a contravention would arise only after both parties had been ad
idem on a matter, then, even if it is considered that the letter of 8th February 1996 contains a negotiated agreement, and the letter of 22nd December 1998 contained the reason for not being able to transfer the
land, consisting of both Parcels, the letter dated 3rd February 1999 from Mr Boulle on behalf of Georges Verlaque, forwarding powers of Attorney of the co-owners, should be considered as the date of commencement of the contravention, if any, as the government did not reply that letter for eight months. The letter of 23rd December 1999 to the Ministry was merely a reminder to the letter of 3rd February 1999. By letter of 7th October 1999 the government maintained the decision to retain Parcel PR. 2111 as conveyed by letter of 22nd December 1998. Those letters cannot be considered as providing the date of commencement of any contravention for purposes of Rule 4(1) moreover, the petitioners rely on the letter of 8th February 1996 as constituting the end of negotiations upon which the contravention alleged is based. Hence any contravention would relate back to 22nd December 1998 or 3rd February 1999 the latest. Accordingly the petition having been filed on 7th October 1999, is clearly out of the time prescribed in Rule 4(1) (a).

No application has been made under Rule 4(3) for leave to file the petition out of time. I also do not find sufficient reason to extend the time of filing of the petition ex mero motu  Accordingly, the petition is rejected for failure to comply with Rule 4(1) of the Constitutional Court Rules.

Consideration of the merits of the petition

Assuming that the petition, as presently constituted is maintainable, and also that it has been filed within the prescribed time, the consideration merits has to be based on the issue whether the letter of 8th February 1996 contains a finality to negotiations envisaged in Section 14(1) of Part III Schedule 7 of the Constitution, requiring only a notarial act of transferring back the land or, as is being averred by the respondents, there was no such finality.

Here, the parties are at variance. The petitioners rely on the letter of 8th February 1996 as constituting an agreement to transfer both Parcels PR. 2109 and PR. 2111. Mr Boulle however submitted that, the word
“agreement” is used not in the contractual sense, but in the Constitutional sense of “end of negotiations.”
Hence they completely ignore the subsequent developments whereby the government decided to retain Parcel PR. 2111. The contention is that once the Constitutional undertaking had been discharged by deciding to transfer back the lands, there cannot be any variations, even if, subsequent to the date of receipt of the application, matters of public interest arose. This pre-supposes that public interest must
give way to private interest. In terms of Article 26(2) (a) of the Constitution, acquisition of land in the public
interest is a recognized derogation to the right to property. That was the position even under the Land Acquisition Act, 1977, under which Parcel PR. 595 was acquired. The petitioners consider Section 14(1)
and Sub Section (a), to which the facts of this case relate, as a purely mechanical process. To them, it is an irrevocable end to the Constitutional undertaking.

The Constitutional undertaking contained in Section 14(1) of Part III to Schedule 7 of the Constitution would be satisfied only if after the negotiations had ended successfully, the State, that acquired the property, grants an appropriate remedy under Sub Paragraphs (a), (b) or (c). Any other interpretation would make the words “with a view to” in Section 14(1) meaningless. In the case of Sub paragraphs (a) and (b), the undertaking to negotiate is complete only after the land had been transferred by a notarial deed. The word “negotiation” cannot be limited to a stage prior to that. Hence before transferring back the land under the circumstances envisaged in sub paragraphs (a) or (b) and compensation is paid under
sub paragraph (c), the process of negotiation could still continue. These may be in the nature of seeking some form of additional damages to a land that is being transferred under sub paragraph (a), as for instance when there has been a deterioration of the condition of the land or buildings thereon, or in agreeing on the exact details of a similar plan to develop when the land is being transferred under sub
paragraph (b), or as to the Market value when relief under sub paragraph (c) is being considered.
The “agreement” of 8th February 1996, as Mr Boulle submitted was not contractual. It was not a sale, where Article 1583 (1) of the Civil Code would apply to finalise the transaction as soon as the thing and the price have been ascertained. Neither was it a promise to sell under Article 1589.
“With a view to” means, “with the intention of”. Hence negotiations in good faith are required to be done with the intention of transferring back in the situations set out in sub paragraphs (a) or (b) in Section 14(1). It is therefore only directory, and not mandatory. Hence national interest predominates the Constitutional
undertaking given in Part III Schedule 7 of the Constitution to compensate for past Land Acquistions.

In the present case, although there was a decision to return Parcels PR. 2109 and PR. 2111 they could not be transferred under sub paragraph (a) of Section 14(1) as the 1st petitioner did not have the legal capacity to accept the transfer. Hence the negotiations with a view to transfer back the lands had not
reached a finality. The correspondence that followed show further negotiations based the requirement of consent of co-owners and the change in circumstances that arose during that period of continued
negotiations in respect of the acquired land, under consideration.
The petitioners cannot seek to implement a decision conveyed on 8th February 1996, as that decision was validly varied due to the change in circumstances in the process of continued negotiations that arose
as a result of the legal incapacity of the 1st petitioner.

The delay in transferring back the land was purely due to the lack of legal capacity of the 1st
petitioner. When the 1st petitioner agreed to the offer conveyed by the letter of 8th February 1996, he was not, legally, acting as the Agent of the other co-owners. Neither did he have their consent to accept the
transfer  on their behalf. Dartania Verlaque, one of the co-owners has still not given his consent to the 1st
petitioner. Further the other co-owners who granted powers of Attorney to the 1st petitoner did not ratify his actions prior to that. By that time, the negotiations were based on the change in the original offer,
as contained in the letters of 13th August 1998, 10th September 1998 and 22nd December 1998. Hence the letter dated 8th February 1996 cannot be considered as containing the conclusion of all negotiations, and embodying any agreement for purposes of Section 14(1) of Part III to Schedule 7 of the Constitution, and accordingly, the prayers sought for, cannot be granted.

The petition is accordingly dismissed with costs.

……………….

A.R.PERERA

JUDGE

Dated this 30th May 2000