Nora v Minister of Land Use and Habitat and Another (10/2001) ( of ) [2002] SCCC 1 (27 May 2002);

IN THE CONSTITUTIONAL COURT OF SEYCHELLES



ROY NORA ….................................................................................... PETITIONER

V/S

1. THE MINISTER OF LAND USE AND HABITAT

2. THE ATTORNEY GENERAL ….....................................................RESPONDENTS



Constitutional Case No. 10 of 2001

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

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Mr. B. Georges for the Petitioner

Mrs L.Valabhji for the Respondents





RULING OF THE COURT



Perera J



The petitioner has filed a motion for leave to file a petition out of time.. The intended petition is based on Article 46(1) of the Constitution alleging a contravention of the right to property recognized in Article 26(1) thereof. The grievance averred is against a notice of intended acquisition of a parcel of land belonging to the petitioner by the Minister of Land Use and Habitat under the provisions of the Acquisition of land in the Public Interest Act, 1996.



Rule 4(1) of the Constitutional Court Rules 1994, provides that in the case of an alleged contravention or a likely contravention, a petition shall be filed within 30 days of such contravention, or the Act or omission which it is alleged would cause a likely contravention. Sub Rule (4) of the Constitutional provides that the Constitutional Court may, for “sufficient reason” extend the time for filing the petition.



The petitioner, in an affidavit filed with the motion depones that the notice of intended acquisition dated 20th September 2001 was received by him only on 11th October 2001. The intended petition was filed in Court on 6th November 2001. 20th September 2001 was a Thursday. Section 55(1) of the Interpretation and General Provision Act (Cap 103), provides that



“55(1) A document or notice required to be served on, or given to, a person under or for purposes of an Act, may be served or given-

  1. In the case of an individual ….. by serving it personally upon the individual or by sending it by post to him at his usual or last place of abode or business:”

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  1. Where a document or notice is sent by post pursuant to Sub-Section (1), service or notice shall be deemed to have been effected or given, unless the contrary is proved, at the time at which the document or notice would be delivered in the ordinary course of post.”



In the present case the date of receipt should be considered as 21st of September or the 22nd of September, the latest. However, Mrs Valabhji, Learned Senior State Counsel submitted that “according to the Ministry, it went out a couple of days after it was dated, that is a couple of days after the 20th September”. She therefore left the matter to be decided by Court.



If the notice is deemed to have been received on 22nd September, the petition has been filed 13 days out of time. However if it was 11th October 2001it is well within time.



In the case of Hydra III Maritime Co. v. The Republic of Seychelles (Cons: Case No 8 of 1994) this court held that the time limit in Rule 4(1) is mandatory. In that case the petitioner did not furnish any reasons for the delay. The court stated –


“This court has on several occasions held that the stipulation of the time limit of “30 days of the occurrence of the event” was mandatory. In exercising the discretion under Rule 4(4), the court has to be conscious that Rule 4(2) is not merely a rule of procedure but more basically a statutory bar designed to prevent frivolous and vexatious applications of persons so that the legislative process of the government is not unnecessarily hampered”.



However in exceptional cases, on the application of the principle “lex non cogit ad imposibilia”, this court has jurisdiction to entertain a petition filed out of time if “sufficient reasons” have been adduced by the petitioner to purge the default. Rule 4(1) provides a mandatory time limit, but where the petitioner became aware of the alleged Act or Omission which constitutes the contravention of the Constitution only on a later date, the 30 day period would commence from that date. Hence if a preliminary objection based on a filing of petition out of time is to be successfully maintained, the court should initially be furnished with some form of proof such as a registered postal receipt or a certificate of proof of posting by reference to a postal dispatch register or such other document. Thereupon the burden of proving the contrary on a balance of probabilities would fall on the person noticed. It is then that the court can decide whether the petitioner’s reasons for leave are sufficient or not, as a person’s right to a Constitutional remedy cannot be deprived to him on mere speculative or inconclusive grounds,



In the present case, as the respondents have admitted a delay in posting the notice dated 20th September 2001 and has not been able to state with certainty as to what that delay was, the deeming provision in Section 55(1) of the Interpretation and General Provisions Act cannot be applied. Accordingly, we rule that the petitioner has adduced sufficient reasons for the delay, and in the circumstances retrospectively extend the time of filing of the petition to 6th November 2001, thereby accepting the petition already filed.



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A.R.PERERA

JUDGE (PRESIDING)

Dated this 28th day of May 2002



N.JUDDOO J

I agree



N.JUDDOO

JUDGE





D.KARUNAKARAN J

I agree





D.KARUNAKARAN

JUDGE