Verlaque and Another v Seychelles Government and Another (5/1999) (NULL)  SCCC 1 (29 May 2000);
IN THE CONSTITUTIONAL COURT OF SEYCHELLES
1. Mr Georges Verlaque
Acting as executor and Fidiciary
For Heirs Mederic Verlaque
2. Mrs Idea Verlaque Petitioners
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
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 petitioners 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 governments 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.
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 petitioners 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.
Dated this 30th May 2000
IN THE CONSTITUTIONAL COURT OF SEYCHELLES
Mr. Georges Verlaque
Acting as executor and fiduciary for
Heirs Mederick Verlaque of
Anse Kerlan, Praslin 1st Petitioner
Mrs. Idea Verlaque of
Anse Kerlan, Praslin 2nd Petitioner
Represented by the Attorney General 1st Respondent
National House, Victoria, Mahe 2nd Respondent
Case No 5 of 1999
[Before A. R. Perera, J (Presiding), N. Juddoo, J. & D. Karunakaran, J.]
Mr. P.Boulle for the Plaintiff
Mr. A. Fernando for the defendants
I have had the opportunity of perusing the draft of the judgment of my learned brother His Lordships A. R. Perera, J (Presiding) in this matter. I quite agree with his findings and ratio decidendi on all the issues joined in the main case as well as in the incidental motions. I concur with his conclusion. Having fully endorsed his views on all material issues, I wish to add the following in support of his conclusion on merits in respect of only one issue. I believe, this is the most substantial and crucial issue pertaining to the alleged contravention of the constitutional provision by the State. Herein I do not wish to dwell upon the monotonous repetition of facts and the laws. I will go straight to the issue for determination.
The crux of the issue in this respect involves two fundamental questions :-
Firstly, does the letter dated 8th of February 1996 issued by the Government and addressed to Mr. George Verlaque describing him as Fiduciary for Mrs. Idea Verlaque and Heirs Mederick Verlaque create any constitutional obligation on the part of the State in terms of the provision under Section 14(1) of Part III to Schedule 7 of the Constitution - to transfer the parcels of land PR2109 and PR2 111 to the petitioners?
Secondly, If so, is the State in breach of the said provision of the Constitution for having failed and refused to transfer the said parcels of land to the petitioners?
On facts it is not in dispute that a portion of land registered as Parcel No: PR595 held in co- ownership by one Mrs. Idea Verlaque and the Heirs of late Mederic Verlaque was compulsorily acquired by the Government of Seychelles in 1980 under the Land Acquisition Act of 1977. The Heirs of late Mederic Verlaque are nine in numbers. All but one namely, Mr. George Verlaque-who is none-else than the first petitioner herein- are residing abroad.
After coming into force of the Constitution in June 1993, Mr. George Verlaque, presumably claiming to be the Fiduciary for Mrs. Idea Verlaque and Heirs Mederick Verlaque made an application to the State in terms of Section 14(1) of Part III to Schedule 7 of the Constitution for "compensation" in respect of the said parcel of land PR595 acquired by the Government. Obviously, this particular provision of the Constitution confers on the applicant a constitutional right to claim "Compensation for past land acquisitions" as the title to this part reads.
In passing, I should mention that the term "compensation" used herein should be construed liberally to mean and include "land" or "money" or "both in combination" as contemplated under Section 14(1) of Part III to Schedule 7 of the Constitution. I wish to repeat here what I have stated earlier in this respect in Marzocchi and another Vs Government of Seychelles- Constitutional Court Case No: 4 of 1995. That is:
"Under this Constitutional provision the term compensation is used widely giving explicitly different meanings in different sub paragraphs. Under 14(c)(i) it means another parcel of land of corresponding value to the land acquired, Under 14(c) (ii) it means cash and Under 14(c) (iii) it means cash and land."
Therefore, it is wrong to assume that this particular provision of the Constitution gives the applicant an absolute constitutional right to claim return of the acquired land in the name of compensation. The mode of compensation is not restricted only to the return of the land. In fact, the mode of compensation varies according to the circumstances in each case and depends upon the terms agreed upon by the parties at the end of the good faith negotiation. What section 14(1) confers on the applicant in this respect is that:-
a right to apply for compensation
a right to compel the State to negotiate,
a right to have that negotiation be held in good faith and
a right to demand compensation.
Nothing more and nothing less does it confer as of right on the applicant. Therefore, no applicant can claim the return of the land as of constitutional right by virtue of the said provision. However, the negotiations should be conducted "in good faith" "with a view to" return the land to the applicant in cases wherever possible in terms of section 14(l)(a) or 14(l)(b). If this view is not achievable through negotiation, then the applicant has the constitutional right to claim monetary compensation or both in combination in terms of Section 14(l)(c). The expression "with a view to" used in this section should not be misconstrued as a phrase that creates right or obligation for the return of the acquired land to the applicant. Therefore, in my considered opinion the expression "with a view to", which appears in Section 14(1) enunciates simply a guiding principle as to the manner how the negotiation to be conducted and what should be the intended objective of that negotiation. This guiding principle only governs the process of negotiation between the parties. It does not create any constitutional obligation on the part of the State to return the acquired land to the applicant either under section 14 (l)(a) or (b). However, one should note that in a particular case a contractual obligation may arise on the part of the Government de hors this provision of the Constitution to return the acquired land or part thereof to the applicant, if that was the term agreed upon by the parties following the negotiation. Be that as it may.
Undisputedly, negotiation began in good faith between Mr. George Verlaque and the Government, which was at the material time the owner of the entire extent of the acquired land. At a particular stage of the negotiation, the Government by its letter dated 8th February 1996-document No:l- made an offer to Mr. Goerge Verlaque. It agreed to return a portion from the acquired land namely parcels PR2109 and PR2111 to the Heirs of Verlaque. These two parcels were in fact, the subdivision from parent Parcel PR595. In addition, the Government offered a monetary compensation of Rs400, 000/- to the petitioners presumably for the remainder of the acquired land that was retained by the Government. This offer was made on the following conditions:-
1. The Heirs Verlaque should return to Government a strip of land shaded red in the attached plan; that is to be extracted from parcel PR2111
They should grant a right of way along the boundary of PR2111 to plot PR1632 to provide access to the occupant of the said plot; and
The surveys referred to in (1) and (2) above will be carried out subsequent to the transfer ofPR2109 and PR2121 to the heirs.
Mr. George Verlaque accepted the offer in his letter dated 8th February 1996 in document No:2. However, in the same breath he made a counter- proposal for a slight modification to the above conditions. He thus conveyed his qualified acceptance of the said offer presumably on behalf of all the heirs of Mederick Verlaque including Mrs. Idea Verlaque. It appears that the Government also accepted the counter proposal for modification of the said conditions. Having taken this acceptance as a valid one given by each of the heirs including Mrs. Idea Verlaque the Government paid the, compensation money to Mr. George Verlaque. He received the sum for and on behalf of all the heirs of Mederick Verlaque and Mrs. Idea Verlaque as evidenced in his receipts. At this stage, the negotiation between the Government and Mr. George Verlque in my judgment culminated in an agreement with terms agreed upon by parties as per the letter of offer and acceptance. As I see it, the constitutional relationship that gave rise to constitutional rights and obligations between the parties by virtue of the application under Section 14(1) of Part III to Schedule 7 was thenceforth transformed in to a simple contractual relationship giving rise to contractual rights and obligations between the parties for the transfer of the said parcels of land.
In pursuance of the above agreement and in order to execute the transfer of the said parcels of land the Government namely the intended transferor, by its letter dated 14th May 1997- document No:5 - requested Mr. George Verlaque, the negotiating agent if I may say so, to get presumably a letter of appointment/consent from all non resident principals namely the intended transferees so that Mr. George Verlaque can legally accept the transfer of the land on their behalf. By the way, Mr. George Verlaque has failed or could not produce those documents to the intended -transferor until now. Be that as it may.
When the Government was in wait to receive the said letter of appointment from Mr. George Verlaque, it received to its surprise, a letter dated 26th August 1997- document No:6- from one of the intended transferees namely Mr. Dartania Verlaque. This letter opened a Pandora's box and created entirely a new situation with an uncontemplated turn of events. This letter in fact, changed the course and fate of the agreement the parties had already reached on the subject matter. In effect, this letter defeated the fruits of the negotiation in good faith. This letter impliedly questioned the authority or the legal capacity of Mr. George Verlaque to represent the interest of the ex-co-owners in the entire transaction including the process of negotiation. It reversed the process of negotiation held by Mr. George Verlaque. To say the least, the said offer was not accepted by all Mr. George Verlaque claimed to represent in the entire transaction. A counter offer by the principal annulled the acceptance of his agent to the original offer. I say so because this letter inter alia, reads as follows:-
" I, Dartania Verlaque refuse to appoint George
Verlaque as Executor for ParceLPR595. We
have been grossly under compensated I would
like to make an offer to the Government to return the
11 acres that an unfair arrangement is reached
... I am not prepared to come to the party "
In response, the Government by its letter dated 25th November 1997-document No:7- tried to convince Mr. Dartania Verlaque obviously in good faith, to accept the previous offer it made through Mr. George Verlaque's negotiation but in vain. On the other hand Mr. George Verlaque also did not secure and produce the letter of appointment/consent from all the ex- co owners as sought by the Government for obvious reasons. The matter was in limbo for about a year. In the circumstances, the Government as any other reasonable party to a stalemated negotiation or transaction or agreement would do, wrote Mr. George Verlaque a letter dated 25th May 1998- Document No:8- which reads inter alia as follows:-
" We note from our records that you have to date not been able to obtain the agreement of all the heirs to accept our offer of compensation of 8th February 1996.
We wish to inform you that if you cannot secure and produce written agreement of all the heirs within the next four weeks we will assume that the co-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"
Mr. Goerge Verlaque did not- presumably could not -produce the written agreement from all ex- co-owners in respect of the original offer within the stipulated period of four weeks or even later. However, it is evident that the original offer by the Government and its acceptance by Mr. George Verlaque constituted a valid contract but that could not be performed as all transferees did not accept the offer as well as the proposed transfer of the said land in their favour. Moreover, one should note here that the conditions-subsequent attached to the above-offer cannot be fulfilled by Mr. George Verlaque-after the intended transfer-unless he obtains a special power of attorney in the prescribed form from all his principals as required under section 69(1) read with section 70(1) and (2) of the Land Registration Act notwithstanding his capacity as fiduciary or not in respect the then co-owned parcel PR595. Indeed, it is very interesting to note that the purported appointment of Mr. George Verlaque as Fiduciary was made by the Supreme Court in 1992. That was in respect of certain immovable property held then in co ownership by the heirs hereinbefore mentioned. Paradoxically, the said heirs were not in fact, the co-owners of parcel PR595 in 1992 as the Government had already become owner thereof ever since acquisition in 1980. Legally speaking, the capacity of fiduciary in which Mr. G. Verlaque applied for compensation was based on a mistake of fact, as he was not appointed as fiduciary in respect of PR595. Hence, it is obvious that the whole negotiation was held by Mr. George Verlaque without proper legal authority from the respective ex- owners/co owners to represent them as each of them had his or her individual locus standi to claim compensation from the State on his or her own footing. In my view, this renders the said negotiation void ab initio or at the least voidable at the instance of an unratifying party as has happened in this case, whose interest Mr. G. Verlaque claimed or assumed to represent in the
Thus, the parties to this executory contract were faced, in the course of carrying it out, with a turn of events, which they did not at all anticipate that one of the ex-co-owners might deny the authority of Mr. G. Verlaque to negotiate, reject the offer and disown the acceptance given by him. Moreover, it seems that both parties did not give any thought to the fact that the appointment of fiduciary in 1992 had nothing to do with the land acquired and owned by the State ever since 1980. Above all Mr. George Verlaque could not secure the letter of appointment/consent so as to enable the Government to effect the transfer and perform its part of the contract. This ensuing turn of events was so completely outside the contemplation of the parties. A fundamentally different situation arose for which the parties made no provision either in the letter of offer or letter of acceptance to meet the situation.
Obviously, Mr. George Verlaque before the performance is due, by his omission or failure to obtain the said letter of consent rendered the fulfilment of the contract impossible. In the circumstances, it is implied from subsequent conduct that the Government treated this contract as discharged or frustrated as it started to renegotiate directly and individually with the heirs by a letter dated 22nd December 1998-document No: 11- In my view the Government is entitled to do so in terms of Article 1184 paragraph 3 of the Civil Code of Seychelles which is couched in the following terms:-
" If, before the performance is due, a party to a contract by an act or omission absolutely refuses to perform such contract or renders the fulfilment thereof impossible, the other party shall be entitled to treat the contract as discharged"
In this case, it is so evident that Mr. George Verlaque despite notice of demand, omitted to produce the necessary documents and so rendered the fulfilment of the contract impossible. Hence, I find that the said contract was discharged or ended by operation of law and was accordingly treated as such by the Government.
On the other hand, on facts I find that the presumed intent of the parties was. to end the contract because of frustration. This is based on the classic formulation of the doctrine of presumed intent in "frustration" cases. For instance in the Eugenia 1964 2 QB 226 the Suez Canal was blocked and a contract could not be performed. The question arose whether the charterparty was frustrated. Lord Denning applied therein the ruling of Lord Simon in the British Movietonesnews case -1951 1KB 190-saying
"This means that once again we have had to consider the authorities on this vexed topic of frustration. But I think the position is now reasonably clear. It is simply this: if it should happen, in the course of carrying out a contract, that a fundamentally different situation arises for which the parties made no provision- so much so that it would not be Just in the new situation to hold them bound to its terms-then the contract is at an end."
In view of all the above, I find the contract in question between Mr. G. Verlaque and Government based on the letter of offer dated 8th February 1996- Document Nol- is frustrated as and when the uncontemplated turn of event occurred resulting an unexpected obstacle to the execution of the contract. In the circumstances, it goes without saying that the offer and the acceptance, which constituted the contract, are consequently void and of no effect in the eye of law. Hence, in the light of all the above I find the answer to the fundamental questions as follows:-
As regards the first question, the letter dated 8th of February 1996 issued by the Government and addressed to Mr, George Verlaque describing him as Fiduciary for Mrs. Idea Verlaque and Heirs Mederick Verlaque being void does not create any constitutional obligation on the part of the State - Particularly under Section 14(1) of Part III to Schedule 7 of the Constitution - to transfer the parcel of land PR2111 to the petitioners.
As regards the second question, since the said letter does not create any constitutional obligation the State is not in breach of the said provision of the Constitution for having failed and refused to transfer the said parcel of land to the petitioners.
WHEREFORE I conclude that the Respondent has not violated or contravened the constitutional right of the petitioners enshrined under Section 14(1) of Part III to schedule 7 of the Constitution or under any other provision of the Constitution for that matter. The petition is therefore, liable to be dismissed. I do so accordingly.
D. Karunakaran Judge
Dated this 30th day of May 2000
IN THE CONSTITUTIONAL COURT OF SEYCHELLES
MR. GEORGES VERLAQUE
MRS IDEA VERLAQUE PETITIONER
GOVERNMENT OF SEYCHELLES 1st RESPONDENT
THE ATTORNEY GENERAL 2nd RESPONDENT
Constitutional Case No: CS5 of 1999 [Before: A.R. Perera J (Presiding), N. Juddoo, J & Karunakaran J]
Mr. P. Boulle for the Petitioners
Mr. A. Fernando, the Honourable Attorney General
Mr. S. Gooneratne for the Respondents
The petitioners have filed he instant claim under Article 130(1) of the Constitution alleging that their rights under Section 14, Part III of Schedule 7 to the Constitution have been contravened. The respondents have duly filed a defense resisting the petitioners' claim.
The underlying and undisputed facts of the case are that a portion of land registered as parcel PR595, held in co-ownership by Mrs. Idea Verlaque and the heirs of late Mederic Verlaque, was compulsorily acquired by the Seychelles Government under the Lands Acquisition Act 1977 (Act no 10 of 1977). After the coming into force of the present Constitution, 218t June 1993, an application was made for compensation whereby the 1st petitioner and the 1st respondent embarked on negotiations with a view to the 1st respondent fulfilling its obligations under sl4 of Part III to Schedule 7 of the Constitution and the petitioners obtaining remedy, thereunder.
In a nutshell, the petitioners claim that following negotiations between Georges Verlaque, as representative of the petitioners, and the 1st respondent the parties reached an agreement as per the terms of a the letter of offer (from the l8t respondent dated 8th February 1996) which was accepted by the lat respondent. By virtue of the said agreement, the 1st respondent had returned parcels 2109& 2111 (parts of former parcel PR 595) to the petitioners and undertook to pay SR 400,000-as monetary compensation for the part of PR595 retained. The petitioners allege that the agreement reached between the parties was final and highlighted the payment of compensation money as part performance of the agreement reached. Accordingly, the petitioners claim that the resulting failure by the lal respondent to transfer land parcels PR 2109 and PR 2111 to them is in violation of their right to become the registered owner under Part III to Schedule 7 of the Constitution.
In essence, the 1st respondent avers there was no finality to the negotiations in view of the fact that the 1st Petitioner was not empowered to negotiate on behalf of all those entitled to compensation in that he had failed to obtain the consent of all the heirs of the late Mederic Verlaque to accept the offer made by the letter of 8th February 1996. Additionally, the appointment of the 1st petitioner, Georges Verlaques as Executor' and fiduciary was in respect land owned by the heirs of late Mederic Verlaque on 24th November 1992, which appointment did not include parcel PR 595.
The 1st respondent agreed that land parcels PR2111 and PR2109 were not transferred to the petitioners under the Land Registration Act and further averred that since it became necessary to retain parcel 2111 it "continued to negotiate in good faith with the 1st petitioner in respect of retention of such parcel of land" and
"thereafter communicated to the petitioner and all the. heirs of Mr. Victor M. Verlaque by its letter of 22nd December 1998, that it will be retaining parcel PR2111 and continued to negotiate as the monetary compensation payable in respect of such parcel of land."
The petitioners' request before this Court is for a judgment:-
respondent to execute a deed of
land PR21Q9 and PR2111 in favour of the petitioners; and
that in default of
a deed of
abovementioned within 1 month from the date of the Judgement, that
the said Judgment be registered in the Land Registry to effect the
transfer in lieu of a deed of transfer.
Before hearing, leave was sought to amend the petition by adding an order to the prayer:-
"declaring that the lsl Respondent is in breach of s 14 of part HI to Schedule 7 to the Constitution for having failed and refused to transfer Parcels PR 2109 and PR 2111 to the petitioners"
and to add three letters of correspondence to the pleadings.
The guiding rule permitting an amendment to a petition before the Constitutional Court is made under Rule 5(3) of the Constitutional Court
"The Court shall not permit an amendment of a petition which seeks to include any new matter not pleaded in the petition."
In the case of The Seychelles Government & Anor v Angor Chang-Lai-Seng CA 39.1999 Judgment delivered on 4th December 1998 - the Court of Appeal confirmed, that:-
"... what should concern the Court on the application for leave to amend the petition was whether the amendment introduced any new matter not pleaded in the petition...."
The amendment sought is for an order to declare that the alleged act of contravention pleaded is made the subject matter of a declaration by the Court It does not introduce any new matter nor raises new issues which need to be examined by the Court. The three letters of correspondence are communications made by the petitioners to the Ministry and which are relevant to the alleged act of contravention which has been pleaded. Accordingly, the first amendment to the petition is allowed.
After hearing and before delivering judgment, this Court sought clarification on the status of the 1st petitioner as "executor and fiduciary for Heirs Mederic Verlaque" and namely; whether the appointment order made by the Supreme Court on 24th November 1992 (referred by Georges Verlaque in his affidavit) to appoint the 1st petitioner as "Fiduciary and executor" was relied upon in the petition before the Court. As a result of the query raised, Learned Counsel for the petitioners filed a motion for:-
"leave be granted to amend the petition by amending the pleadings to add the new petitioners abovementioned and effect consequential amendments as per the amended petition attached ..."
Under Rule 5(3) of the Constitution Court Rules, as referred to earlier, the Court shall not permit an amendment which seeks to include any new matter not pleaded in the petition. In Government of Seychelles v Angor Chang Lai Seng, Civil Appeal No. 3 of 1999 the Court of Appeal stated that:-
"... Rule 5(3) is to be construed on its own terms and in the context of the nature of the proceedings for which the Constitutional Court Rules were made... "
Accordingly, I do not find it fit to call in assistance Sections 112 and 113 of the Civil Procedure Code and the authorities referred to by virtue of the operation of Rule 2(2) of the Constitutional Court Rules.
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 raise a dispute as to rights and interests otherwise vested in third parties, such new facts would raise 'a new matter' not pleaded in the petition.
In the affidavit in support of the motion, it is stated that:-
"where the issue of any 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 interest 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 there in their personal capacities."
The pleadings before
this Court indicates that Georges Verlaque was acting in an
alleged fiduciary capacity on behalf of all the former co-owners of land parcel PR595.
This is supported under paragraph 1 of his affidavit. The proposed amendment to
add new petitioners will require this Court to determine negotiations carried
between the parties and the alleged contravention pertaining to each of the new
petitioners on their own which constitute a new matter not pleaded in the petition.
To take one example under paragraph 2 of the petition it is averred that "the petitioners made an application for remedy under the Constitution. This means the petitioners as represented by Georges Verlaque and Mrs. Idea Verlaque. Under
paragraph 2 of the proposed amended petition the new petitioners will be averred to
have made an application on their own. Moreover, to grant the amendment and add
new petitioners will bring alive the ascertainment whether their petition is filed
within 30 days, on behalf of each new petitioner, a matter which is outside the
pleadings in the present hearing. Accordingly, I decline to grant the 2nd amendment
under Rule 5(3) of the Constitutional Court Rules.
The petitioner's application is made under Article 130(1) of the Constitution wherein it is alleged that the State has contravened it's Constitutional obligations under Part III to Schedule 7 of the Constitution. Article 130(1) reads as follows:
"A person who alleges that any provision of this Constitution, other than a provision of Chapter III, has been contravened and that the persons interest is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional Court for redress."
Before proceeding to the merits of the application, it is necessary to consider the preliminary objection raised by the respondents under paragraph 7(f) of their reply namely that the "petitioner's action for the return of land parcel PR2111 is prescribed under Rule 4(1) (a) of the Constitutional Court Rules 1994 (S.I.33 of 1994)". Rule (4)(1) (a) of the Constitutional Court Rules provides that:
"4.(1) 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 -
(a) in a case of an alleged contravention, within 30 days of the contravention."
The requirement is that a petition must be filed within 30 days of the alleged contravention. Where such an objection is raised, it requires this Court to determine what is the alleged act of contravention, when did such alleged contravention occur and whether the petition was filed within 30 days thereof.
Learned Counsel for the petitioners, Mr. Boulle, contend that in February 1996 following negotiations between the 1st respondent and Mr. Georges Verlaque, as "fiduciary for Mrs. Idea Verlaque and Heirs Mederic Verlaque", the parties had reached an agreement which formed the basis of an offer made by letter dated 8th February 1996. The material part of the letter reads:
"I wish to confirm the Government's offer of compensation
The return of Parcels PR2109 and PR2111 to Heirs Verlaque as shown on the attached plan.
Cash compensation of R400,000/- payable in 2 equal half yearly instalments with interest at 8% per annum on the balance outstanding..."
On the same date, an acceptance was communicated to the offer subject to a small alteration (which is not material to the instant determination) as follows:
"I agree with the conditions referred to in your letter under reference with the exception of (a). ...I hope that you will find my proposal acceptable and regard the matter as settled..."
Subsequently, on 4th March 1996, a first installment of the compensation money (RS 200,000) was paid by the lst respondent by way of a cheque payment made to Mr. Georges Verlaque and on 18th September 1996, the 2nd and final installment was paid with interest in the sum of RS 208,000-.
Thereafter, the lBt respondent refused to effect any transfer of land parcels PR 2109qnd PR 2111 unless the heirs of Mederic Verlaque were personally present to accept the transfer or in default that they duly appoint Georges Verlaque to accept the transfer on their behalf, as revealed by the letter addressed to "Georges Verlaque", on 14th May 1997, by the 1st respondent as follows:-
"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 the late Medric Verlaque.
As the property is being transferred to Mrs. Idea Verlaaue 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..,"
is worthy of note that the above letter is addressed to "Georges Verlaque" and abstraction is made to his representative capacity.
There is evidence to show that a copy of the said letter had reached Dartania Verlaque, one of the former co-owners of parcel PR 595, who by latter dated, 26th August 1997:-
" refuse to appoint my brother Georges Verlaque at the present moment as Executor for parcel of land referred in your letter as PR 595..." and disagreed with the monetary compensation of SR 400,000- for the part of PR 595 retained. The latter part of her letter discloses that she was unaware that monetary compensation had been paid by the lst respondent to Georges Verlaque in a representative capacity since September 1996.
One year after, on 20th May 1998, the 1st respondent further informed Mr. Georges Verlaque that:
'We note from our records that you have to date not been able to obtain the agreement of all the heirs to accept our offer of compensation of 8th February 1996.
I wish to inform
you that if
you cannot secure and
produce written agreement of all the heirs to the above-
mentioned offer within the next 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
The record shows that subsequent discussions followed with Georges Verlaque on the understanding that the other co-owners decision be sought for approval as disclosed by the content of the letter dated, 13th August 1998, the relevant part of which reads:
"I refer to my LAU/A/72 of 2th May 1998 and your subsequent discussions with the Technical Adviser in connection with the land requirements of the proposed Lemuria Hotel and Golf Course at Anse Kerlan.
I wish to confirm
that Government wishes to make you
an offer of compensation of R900,000 plus the transfer of
Parcel PR2109 and the portion of land edged green on
the attached plan as full compensation for the
compulsory acquisition of Parcel PR595, Anse Kerlan.
I would be grateful if you would confirm whether the
above offer is acceptable to you. "
And as shown by the letter dated 10th September 1998:
'I refer to our LAU/A/72 of 13th August 1998 and to discussions held with yourself on Thursday 4th September 1998 regarding the portion of PR595 proposed for the Golf Course Project.
I wish to confirm the following options put to you in the above-mentioned meeting.
An increase in the compensation offered in respect of PR2111. In this context Government is prepared to review the offer made in our LAU/A/72 of 13th August 1998 to Rl.3m. This offer is valid until 30th September 1998.
Transfer the part of the property required for the Golf Course to Le Refuge du Pecheur Ltd in return for equity participation in the Hotel & Golf Course Project;
Lease of the portion of land required for the gold Course to Le Refuge du Pecheur Ltd for a period of 60 years which is commensurate with the lease of other State-owned properties to the Company. In return Government would be prepared to reconsider its position regarding the mountain land retained
In our meeting you informed us that you would seek the Heirs decision on this proposal....
The above discussions culminated in a letter, dated 22nd December 1998, addressed by the 1st respondent to Georges Verjaque as well as to all the former co-owners of parcel PR 595. The letter reads as follows:
"COMPULSORY ACQUISITION OF PARCEL PR595. ANSE KERLAN. PRASLIN
I refer to our earlier correspondence with Mr. Georges Verlaque (copies enclosed culminating in our LAU/A/72 of 10th September 1998 which to date remained unanswered.
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.
As already explained to Mr. Georges Verlaque the Arise Kerlan Hotel and Golf Course Project is of national
importance to Seychelles and to accommodate part of
the proposed 18 hole Golf Course. It is necessary that Government retains Parcel PR2111. Construction of the Hotel is in progress and it is expected that work on the Golf Course will commence in January 1999.
Government therefore wishes to make a final offer payable to all the heirs in the sum of R2.1m plus the transfer to the heirs of Parcel PR2109 as total compensation to all the co-owners (as heirs) in respect of the compulsory acquisition of PR595, Anse Kerlan, Praslin. This offer includes a review of the compensation paid in respect of the mountain land. The above sum less the sum of R400,000 previously paid will be paid by a first instalment of R400,000 at the end of January 1999 and the balance in equal half yearly instalments over a period of two years with interest at 4% per annum on the reducing balance.
I would appreciate if you would let me know whether the above offer is acceptable to you.
Please note that
will remain valid until 22nd
January 1999 "
A first reply to the above letter is forwarded by Dartania Verlaque, dated 7th January 1999, which starts as follows:-
"I am in receipt of your letter...I am very happy that you are now acknowledging that you have to deal directly with me..."
and continues with various queries concerning the offer made 22nd December 1998 and ending with:-
"your immediate reply to the above, questions will facilitate my urgent decision."
A second reply, dated 8th January 1999, is forwarded by Mr. P. Boulle, which reads as follows:
"I am instructed by my client, Mr. Georges Verlaque, to acknowledge receipt of your letter of letter of 10th September 1998 and 22nd December 1998...
At this juncture my client in his capacity as fiduciary has instructed me to confirm that he considered the exchange of correspondences dated 8th February 1996 and 18th September 1996 to have concluded all negotiation and embodies the agreement reached between the parties.
Regarding the various parties interested in the land agreed to be returned to Heirs Verlaque, my client will deal directly with all interested parties once the land is returned.
In the light of the above and in accordance with the agreement reached as set out in your abovementioned letter of 8th February 1996, my client looks forward to the return of PR2109 and PR2111 to Heirs Verlaque.
My client trusts that the return of the land can be effected shortly as the co-owners have been waiting a very long time to get back the land."
A further letter is communicated by the Ministry of Land Use and Habitat to Mr. P.
addressed to which a reply is forwarded, by Mr P. Boulle, as follows:
" ...Be it as it may all the heirs of MR Mederic Verlaque have appointed my client, Mr. Georges Verlaque, as their agent, as per the attacked Powers of Attorney and Mr. Verlaque is as a result thereof empowered to negotiate with the Seychelles Government on behalf of all the heirs.
Now that we have resolved the issue of representation, I wish to reiterate on behalf of my client that all the heirs desire that the matter be settled in accordance with the agreement reached with their agent as set out in your letter of 8th February 1996 and they trust that the return of Parcels PR2109 and PR111 will be effected without further delay.
This is followed by a further letter from Mr P. Boulle, dated 23rd September 1999, wherein it is stated;
"Further to our letter dated 3rd February 1999.
I am instructed by my client, Mr Georges Verlaque, acting on behalf of heirs Mederic Verlaque and Mrs Idea Verlaque that unless a deed of transfer is executed to register Title PR 2109 and Title PR 2111 in the name of the owners, within one week hereof, my client will have no option but to take legal action."
A reply is forwarded by the Ministry, on 7th October 1999 to the effect that:-
"the Government had communicated its decision to retain the abovementioned parcel of land in the public interest by its letter to Mrs. Idea Verlaque and all the heirs of late V.M. Verlaque dated 22nd December 1998. This letter also explained Government's position in regard to parcel PR 2109 and the compensation in respect of the compulsory acquisition of Parcel PR 595..."
I have set out extensively the relevant correspondence between the parties. It is now relevant to determine what is the alleged act of contravention and did when such alleged contravention occur.
It is not disputed that following negotiations carried under Section 14 of Part III, Schedule 7 to the Constitution, the parties have reached a consensus which was put down in writing in the letter of offer from the 1st respondent dated 8th February 1996. The material terms of the letter of offer was agreed to by Mr. Georges Verlaque in his purported capacity as "fiduciary for Mrs Idea Verlaque and Heirs Mederic Verlaques". The consensus reached included the payment of monetary compensation SR 400'000- and the transfer of parcels PR2111 and PR2109 to the petitioners. Monetary compensation was paid to Mr. Georges Verlaque, in his representative capacity. It is not denied that at this material time Georges Verlaque purported to represent the former co-owners of land parcel PR 595 by virtue of an appointment made by the Supreme Court on 24th November 1992. This issue will be further examined at a later stage. It is submitted, on behalf of the petitioner, that the negotiation were completed by the acceptance of the offer and nothing more could be added by any party which would affect the agreement reached. If that is so then failure to transfer the land would occur as from the date the agreement was reached. Time will start to run as from that date or at latest from the date the last compensation payment was made. The petitioners should have come to Court within 30 days thereof.
However, what is being termed a 'failure to transfer' the land by the 1st respondent does, on the evidence adduced, amounts to more than a mere failure. This is admitted by the petitioners in their amended prayer which request for a declaration :-
"that the 1st Respondent is in breach of s.4 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."
Accordingly, there has not been mere failure by the 1st respondent to transfer the land but a failure and refusal to do so.
The evidence shows that the correspondence between the parties continued after the 2nd monetary compensation payment in September 1996. A subsequent letter addressed to "Georges Verlaque", on 14th May 1997, by the Ministry discloses that the 1st respondent refused to effect any transfer of property unless the heirs of Mederic Verlaque were personally present to accept the transfer, or in default that they duly appoint Georges Verlaque to accept the transfer on their behalf. The reference to "heirs" in the letter may be seen to be inaccurate. The undisputed issue was whether Georges Verlaque had the authority to act on behalf of all the former "co-owners" of parcel PR 595 as was made clear in the letter of 22nd December 1998, 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.."
In August 1997, one of the former co-owner of parcel PR 595 (Dartania Verlaque) objected that Georges Verlaque would represent her interest and disagreed with the monetary compensation in the offer of 8th February 1996. The lack of authority of Georges Verlaque and the objection from Dartania Verlaque led to the letter, of 25th May 1998, from the Ministry wherein Georges Verlaque was informed that he has not of date been able to obtain the agreement of all the heirs to accept the offer of compensation made on 8th February 1996 and that if he could not "secure and produce written agreement of all the heirs (to the offer)" the Government will proceed on the basis of monetary compensation.
Thereafter, on 13th August 1998 an offer was made by the Ministry to the petitioners for compensation which excluded the transfer of parcel PR211. This is followed by a further letter dated, 10th September 1998, whereby three 'options' were spelt out to the petitioners. It is interesting to note that whilst the 1st option clearly indicates that the land parcel PR2111 will not be transferred to the petitioners, such is not necessarily the case with the 2nd and 3rd options. However, a further letter of 22nd December 1998 is more direct and unequivocal. The letter is addressed to Georges Verlaques as well as each of the remaining former co-owners of land parcel PR 595. The material part reads as follows;
"It is necessary that Government retains Parcel PR2111. Construction of the Hotel is in progress and it is expected that work on the Golf Course will commence in January 1999...
Government therefore wishes to make a final offer payable to all heirs in the sum of R2.1m plus the transfer to the heirs of Parcel 2109 as total compensation to all co-owners (as heirs) in respect of the compulsory acquisition of PR595
...this offer will remain valid until 22nd January 1999..."
By virtue of the above-letter, the 1st respondent made known and communicated to the petitioners it's final decision not to transfer land parcel PR2111 to all the former co-owners of land parcel PR 595 and offered monetary compensation instead. The offer of monetary compensation is clearly rejected by Mr. P. Boulle on 8th January 1999 when he replied that:-
"At this juncture my client in his capacity as fiduciary has instructed me to confirm that he considered the exchange of correspondences dated 8th February 1996 and 18th September 1996 to have concluded all negotiation and embodies the agreement reached between the parties...my client looks forward to the return of PR2109 and PR2111 to Heirs Verlaque"
Accordingly, the unequivocal act of "failing and refusing to transfer" parcel PR 2111 was communicated to the petitioners by virtue of the letter dated 22nd December
1998. The petitioners were granted until 22nd January 1999 to reach a decision.
I find from the
evidence on record, as disclosed above, that as from the 22nd
1999, at latest, the petitioners were unequivocally made aware that
would not transfer land parcel PR 2111 to them whether by virtue of
the agreement reached on 8th
February 1996 or otherwise. The purpose of the present petition
being an order that the 1st
respondent transfer the land to the petitioners, the period of 30
days specified in Rule 4(1) should commence from 22nd
instant petition which has been filed, on 7th
October 1999, is out of time.
Even if it were taken to the further limit of 3rd February 1999, when Mr. P. Boulle
replied that his client Georges Verlaque has the power of attorney of all the heirs,
and that, thereafter, the lat respondent failed and refused to transfer the land, the
instant petition is still out of time.
The next determination is as to whether the alleged act of contravention is in violation of the provision of the Constitution. The cause of action by the petitioners is grounded on the constitutional obligation of the state under Section 14 of Part III of Schedule 7. The undertaking on the State is "to continue to consider all applications made by a person whose land has been compulsorily acquired" by the government under the Lands Acquisition Act 'and to negotiate in good faith with the person with a view to" grant the remedies available Section 14. Accordingly, it is necessary first to determine who are the persons entitled to benefit from this provision as far as the compulsory acquisition of parcel PR 595 was concerned.
Much confusion, at
this stage, can be dispelled by the realization that land
parcel PR595 was jointly owned by Mrs Idea Verlaque and her husband, Mr. Victor
Mederic Verlaque, before 1967. When the latter passed away on 8th January 1967 he
left behind a widow (Mrs Idea Verlaque) and nine children. At that time (before the
coming into force of the present Civil Code of Seychelles on lgt January 1976) there
was a system of direct and immediate transfer of property upon death. Under Article
724 of the earlier code the successors had "saisine", that is, they were seized of the
property of the deceased as of right. Accordingly, the successors of late Victor
Mederic Verlaque became co-owners of his share land parcel PR 595 which had
passed over directly from the deceased to them. This devolution of title did not
require the appointment of a personal representative who had to act as liquidator of
the estate, in the manner of an "executor" as is required under the present Civil Code when a person passes away and leaves behind immovable property vide:
Artiticle 1025 and 1026 of the Civil Code of Seychelles. Mrs Idea Verlaque inherited in her capacity as the surviving spouse of late Victor Mederic Verlaque and also remained as a co-owner in her own right. The persons entitled to remedy under sl4, Part III, Schedule 7 to the Constitution were and are Mrs Idea Verlaque and each of the heirs of late Mederic Verlaque as individual co-owners.
It has not been disputed that Georges Verlaque had purported to act on the behalf of all co-owners at the start of the negotiation process with the Ministry whereby after consultations between the two parties reached a consensus which was put down in writing in the letter of offer dated 8th February 1996. It is also not disputed that the terms of the said letter of offer was agreed to by Georges verlaque in his purported capacity and that subsequently payment of the monetary compensation amount referred in the letter was paid to him in March and September 1996. Thereafter, in order to finalise the consensus reached between the parties and discharge it's constitutional undertaking under the law, the 1st respondent queried the legal status of the person (Georges Verlaque) who had throughout negotiated with the Ministry. It then became apparent to the 1st respondent that the person they had been dealing with lacked the necessary authority to negotiate and to duly accept the terms of their offer made on 8th February 1996.
This apparent lack of authority of Georges Verlaque is supported by the evidence on record. In his affidavit filed, Georges Verlaque averred that:-
"I am the executor and fiduciary of the heirs of late Mederic Verlaque by virtue of an order of the Supreme court made on 24th November 1992."
When land parcel PR595 was compulsorily acquired by the Seychelles Government, in 1978, the land was held in co-ownership by Mrs. Idea Verlaque and Heirs Mederic Verlaque. After the act of compulsory acquisition, the registered owner of the land became the Seychelles Government. The appointment of Georges Verlaque by Court order on 24th December 1992, as disclosed under exhibit Rl, "as executor to act as fiduciary for all the owners pertained to land which was left behind by late Victor Mederic Verlaque and had remained the property of the heirs at the time the appointment was made. Such is made clear in the instrument of appointment (exhibit Rl), as follows;
"I am satisfied that the late Victor Mederic Verlaque died intestate on 8th January 1967 leaving a widow and nine children. At the time of his death, the deceased owned immovable property in Seychelles_situated at Anse Kerlan, Praslin.. The said land is held in co-ownership by the heirs mentioned above. All the heirs are desirous of appointing an executor who will act as fiduciary and hold the land on behalf of the co-owners."
Land parcel PR595 was not held in co-ownership by the heirs at the time of the appointment of Georges Verlaque "as executor to act as fiduciary for all co-owners" on 24th November 1992 and the said appointment cannot relate to PR 595.
Accordingly, the Ministry was justified to find, in their letter of 14th may 1997, that the appointment of Georges Verlaque was only in respect of land owned by the Heirs of late Mederic Verlaque at the time of his appointment (November 1992) and that all the named heirs, if not in Seychelles, should appoint Georges Verlaque to accept the transfer of property on their behalf.
The lack of authority of Georges Verlaque to negotiate and act on behalf of all co-owners was in double jeopardy by the intervention from Dartania Verlaque, in August 1997, refusing to acknowledge Georges Verlaque as his representative concerning the compensation he is entitled to for the compulsory acquisition of PR 595 and disagreeing with the monetary compensation offered in the sum of SR 400,000-. The latter is presumably unaware that the said amount has already been paid by the 1st respondent to Georges Verlaque in March and September, of the previous year. There is also another important aspect of the letter received from Dartania Verlaque. He did not revoke the appointment of Georges Verlaque (which would have been the case had an earlier ostensible or actual authority been given) he "refused to appoint"his brother Georges Verlaque on his behalf.
The authority of Georges Verlaque as "agent" for the former co-owners of Parcel PR 595 is not remedied until the letter from Mr. P. Boulle on the 3rd February 1999 whereby it is claimed that:-
"all the heirs of Mr Mederic Verlaque have appointed Mr Georges Verlaque, as their agent, as per the attached Powers of Attorney and Mr Verlaque is as a result thereof empowered to negotiate with the Seychelles Government on behalf of all the heirs...".
The attached Powers of Attorney includes one from Mrs. Idea Verlaque but does not include that from Dartania Verlaque. The latter, by letter dated 27th January 1999, has appointed Mr. P. Boulle to represent him. However, it is only by that date, January 1999, that Mr. Georges Verlaque could be considered as "being empowered to negotiate" on behalf of all the former co-owners, except for Dartania Verlaque who could, if need be, act through Mr. P. Boulle.
The added request in the abovementioned letter:-
"that I wish to reiterate... that all the heirs desire that the matter be settled in accordance reached with their agent as set out in your letter of 8th February 1996..."
is a matter which could not be favourably considered by the Ministry in February 1999. By that date the offer made on 8th February 1996 was clearly non-existent between the negotiating parties. At that relevant time, all the co-owners have been offered compensation on the basis of a letter (of 28th December 1998) addressed to each of them informing them of the Government's retention of parcel PR 2111, the return of PR 2109 and monetary compensation for the remaining part of PR 595.
The late empowered acceptance in January 1999 cannot bring into existence an offer which has lapsed by virtue of the failure of Georges Verlaque to bring forth his authority to act on behalf of all the co-owners and bind them to the negotiations and consensus reached. The necessity of such authority was made known as from 14thMay 1997 and the offer maintained for a whole year thereafter until 25th May hold any longer to it's offer unless "written agreement" of all the heirs were secured and produced within another four weeks. No such written agreement having been produced, the offer made on 8th February 1996 had clearly lapsed, with or without any part performance thereof, in June 1998. The parties had, consequently, proceeded to negotiate on other terms in August and September 1998. The subsequent discussions were beyond the former offer as disclosed by the content of the letter dated, 13th August 1998, the relevant part of which reads:
"I refer to my LAU/A/72 of 25th May 1998 and your . subsequent discussions with the Technical Adviser in connection with the land requirements of the proposed Lemuria Hotel and Golf Course at Anse Kerlan..."
These discussions culminated in the final offer made in December 1998.
Learned counsel for the petitioners submitted that the obligation remained on the State under s 14(l)(a) of Part III, Schedule 7, to transfer back the land compulsorily acquired or any part thereof where on the date of the receipt of the application, the land has not been developed or there is no government plan to develop it. The undertaking on the State is to continue to consider all application by persons whose land had been compulsorily acquired under the Lands Acquisition Act and to negotiate in good faith with a view to grant the remedies available under s 14(1) (a),(b) or (c) of Part III schedule 7.
The legal undertaking of the State under Section 14(l)(a) not to transfer back the land but to negotiate in good faith with a view to transfer back the land if there is no Government plan to develop the land on the date of the application. From the facts of the present petition, as examined earlier, it cannot be disputed that the Government had embarked on negotiations in good faith under Section 14(l)(a) with Georges Verlaque in a purported 'fiduciary' capacity for all those entitled to remedy under the Constitutional provision pertaining to parcel PR595. The offer made in good faith negotiation in February 1996 had lapsed in June 1998 all the co-owners whom he had claimed to represent. Incidentally, the purported acceptance of the offer by Georges Verlaque in February 1996 was void for lack of authority.
The further negotiations held in good faith by the parties after June 1998 were carried at a time when there was a Government plan to develop the land. I pause here to observe that the requirement is a Government 'plan' which must not necessarily be a Government 'project' as well. Where there is a Government plan to develop the land, as in the instant case, the Government assisting in a major hotel project, the Lemuria Hotel and Golf Course - the undertaking on the State then falls to be determined under Section 14(l)(b) and the person from whom the land was acquired must satisfy the Government that it will implement the plan or a similar plan. The Government by its letter of August and 10th September 1998 canvassed those remedies with the petitioner when it offered three options to them. There is no averment that the said negotiations were not carried in good faith.
The petitioner have claimed for the transfer of parcels PR2111 and PR2109 to them and for no other relief. Whilst taking into account that the Government has (as disclosed under paragraph 7(h) of its reply) been ready to transfer parcel PR2109 to the petitioners following good faith negotiations between the parties, I find that the Government has not contravened its constitutional obligations under Section 14(1) of Part III, of Schedule 7 to the Constitution when it failed and refused to transfer PR2111 and PR2109 to the petitioners.
The petitioner is dismissed with costs.
Dated this 30th day of May, 2000.