IN THE SEYCHELLES COURT OF APPEAL

Civil Appeal No. 9 of 2005

In the matter between

CHERUBIN MORIN Appellant

and

MINISTER OF LAND USE AND

HABITAT First Respondent

THE ATTORNEY GENERAL Second

Respondent

==============================================

Before: Ramodibedi P., Bwana JA., and Hodoul JA.

Heard: On 14 November 2005

Judgment delivered: On 25 November 2005

Mr. B. Georges for the Appellant

Mr. R. J. Govinden for the Respondents

JUDGMENT

Ramodibedi P.

[1] This appeal concerns the constitutional validity of compulsory acquisition of the Appellant’s property, namely parcel V3703 (“the property”), by the First Respondent acting in terms of sections 4(1) and 6(1) of the Acquisition of Land in the Public Interest Act 1996 (“the Act”).

These sections in turn deal with notice of “intended acquisition” and “compulsory acquisition of land” respectively. They provide as follows:

“4. (1) Where it is necessary to acquire any land under this Act, the Minister shall –

(a) publish in the Gazette a notice of intended acquisition of the land;

(b) cause to be published in a local newspaper on three consecutive days a copy of such notice; and

            (c) cause to be served on any person who, on information available to the Minister, has an interest in                the land a copy of the notice of intended acquisition published under paragraph (a).

6. (1) Where the Minister fails to enter into an agreement for the acquisition of any land under section 5 not less than 10 days before the expiration of the period specified in the notice of intended acquisition in relation to that land or where the Minister has granted a certificate under section 5 (8) in relation to that land, the Minister may, before the expiration of that period, by notice in the Gazette declare that the land is acquired for the purpose specified in the notice of intended acquisition in relation to that land.”

[2] In a nutshell, the admitted chronology of relevant events in the matter is as follows:

(a) By a document dated 6 February 2004, the First Respondent gave notice to the Appellant and his wife under section 4 of the Act that he intended to acquire the property in the public interest for the purpose of

extension of the Victoria Market.

(b) By a further document dated 24 March 2004, the First Respondent gave notice to the Appellant and his wife under section 6 of the Act that he had acquired the property in the public interest for the purpose of

extension of the Victoria Market.

(c) On the same date, namely 24 March 2004, the First Respondent issued a certificate under section 5(1) of the Act certifying that the need to acquire the property was urgent and that it was not expedient to comply with the terms of the section. For convenience the section in question reads as follows:

“5. (1) Subject to subsection (8), the Minister shall, after the publication of a notice of intended acquisition under section 4 –

(a) cause to be served on every person served with the notice of intended acquisition under section 4 a notice inviting the person to treat with the Minister for the sale of the land to the Republic hereafter in this Act referred to as the “notice to treat”

2.  publish in the Gazette the notice to treat; and

(c) cause to be published in a local newspaper on three consecutive days a copy of the notice to treat.”

(d) On 22 June 2004, the Appellant and his wife filed a petition against the Respondents in the Constitutional Court for an order couched in these terms:-

“a. Declare that the notice of intent to acquire the acquisition by the first Respondent of parcel V3703 as per notices under sections 4 and 6 of the Acquisition of Land In the Public Interest Act 1996, dated 6^th February and 24^th March 2004 respectively are bad and in contravention of article 26 of the Constitution and of  the Petitioners’ right to property thereunder;

b. Order a writ of certiorari to issue quashing the notices under section 4 and 6 of the Acquisition of Land in the Public Interest Act 1996, dated 6^th February and 24^th March 2004 respectively under the hand of the first Respondent.”

5. Not only did the Respondents oppose the petition on the merits but they also filed a plea in limine the gravemen of which they raised therein the following objections:

“1. The Petition has not been filed in the Registry of the Supreme Court within 30 days of the occurrence of the event that requires enforcement contrary to Rule 4 (2) of the Constitution (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994 and therefore the Respondent prays that the Petition be dismissed.

2. The First Respondent, being the person who has allegedly contravened the Petitioner’s right, has been wrongly suited and further as there is no specific averments made against the Second Respondent who has been brought in the case in the pursuance to S3 (2) of the Constitution (Application, Contravention, Enforcement or

Interpretation of the Constitution) Rules 1994, it is prayed that the action be dismissed for lack of proper Respondent in the suit.”

 

5. At the hearing of the matter in the court a quo, the Respondents, however, abandoned the second ground of objection referred to in the preceding paragraph. They persisted in their objection that the petition was
   
   time barred.




6. On 20 March 2005, the court a quo gave a ruling upholding the Respondent’s objection in these terms, inter alia:

“It is now settled that Rules of Court are mandatory and not directory. Hence the petition being time barred and accordingly it is dismissed with costs.”

[3] The Appellant has appealed to this Court on the following grounds:

 

“a. The Court erred in failing to realize that the provisions of section 7 and 8 of the Acquisition of Land in the Public Interest Act 1996 create rights which are additional and complementary to, and not exclusionary of, the rights contained in article 46 of the Constitution and that the rights created by the law neither bind the Appellants to apply them nor exclude the Appellants from exercising their Constitutional rights.

b. The Court erred in not accepting that, notwithstanding the rights to challenge the compulsory acquisition under the Acquisition of Land in the Public Interest Act 1996, article 46 of the Constitution gave the Appellants the right to challenge the actual contravention of their right to property under article 26 of the Constitution as opposed to the intended contravention thereof.

c. The Court erred in finding the Appellants to be out of time in respect of their challenge of the actual contravention of their right to property occasioned by the notice of compulsory acquisition dated 24 March 2004.”

The Appellant accordingly seeks relief in these terms:

“An order allowing the appeal, reversing the ruling of the Constitutional Court and ordering the hearing by that Court of the Appellants’ petition on the merits, with costs in the Constitutional Court and the appeal.”

[4] On the view I take of this case, it is strictly unnecessary to determine the first two grounds of appeal. I need only give two reasons for this approach:

1. The Appellant’s real complaint is directed at showing that the court a quo erred in holding that the matter was time barred. It is thus submitted on his behalf that that court erred in failing to go into the merits of
   
   the matter.

(2) It would be imprudent for this Court to pre-empt the decision of the Constitutional Court on the merits at this stage. Similarly, it would be imprudent for members of this Court to literally disqualify themselves by arriving at a concluded view of the matter on the merits at this stage. Wisdom dictates, therefore, that a determination of the merits should best be left for the future.

[5] With the prelude set out above, I proceed then to a determination of the third ground of appeal, namely whether or not the court a quo was correct in holding that the Appellant’s petition was time barred. A good starting point, in my view, is legislation relating to notice and time frames concerning acquisition of land as well as petitions to the Court. In this regard sections 7(1) and 8(1) of the Act provide as follows:

“7. (1) Any person who has an interest in the land specified in a notice of intended acquisition may, where the person claims that article 26 of the Constitution has been or is likely to be contravened by the notice of intended acquisition, apply to the Constitutional Court for redress under article 46 of the Constitution.

8. (1) Any person who had an interest in a land acquired under section 6 immediately prior to the notice of acquisition published under that section may, within 30 days after the publication

in the Gazette of that notice, apply to the Court for the determination of the legality of the acquisition.” (Emphasis added.)

[6] It may well be that the intention of the Legislature was to draw a distinction between “intended” acquisition (section 7(1)) and “actual” acquisition (section 8(1)). That intention, however, is in my respectful view clouded by poor draftmanship in section 7(1) to the extent that two conflicting concepts are evidently contained in one and the same sentence, namely the “intended” acquisition on one hand and “actual acquisition” where a contravention of Article 26 of the Constitution has already “been” completed on the other hand. The unpalatable consequence of such inelegant draftmanship is bound to create ambiguity as has happened here.

[7] At this juncture, it is appropriate to have regard to the provisions of Article 26 of the Constitution. It reads as follows:

“26. (1) Every person has a right to property and for the purpose of this article this right includes the right to acquire, own, peacefully enjoy and dispose of property either individually or in association with others.”

[8] It is equally necessary to have regard to the provisions of Article 46(1) and (10) of the Constitution which provides as follows:

“46. (1) A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress.

(10) The Chief Justice may make rules for the purpose of this article with respect to the practice and procedure of the Constitutional Court in relation to the jurisdiction and power conferred upon it by or under this article, including rules with respect to the time within which an application or a reference may be made or brought.”

The words “has been … contravened” in Article 46(1) in my view, are a reference to a completed contravention of the Constitution as opposed to a “likely” contravention. It follows in my judgment, therefore, that a person who alleges that any Article of the Constitution has already been contravened, for example by way of actual acquisition of land, as in the instant case, is entitled to apply to the Constitutional Court for redress under Article 46(1). So construed, the word “Court” used in section 8(1) of the Act includes the Constitutional Court itself. This view is no doubt confirmed by the fact that, while the word “Court” is defined in the Act to mean the Supreme Court, the term “Constitutional Court” is itself not defined yet it appears in section 7 of the Act. It is important to bear in mind, however, that Article 129 of the Constitution defines the Supreme Court as the Constitutional Court when it is sitting as such to determine a contravention, enforcement or interpretation of the Constitution.

[9] The upshot of all of this lies in the fact that any suggestion, as counsel for the Respondent was heard to argue, that a contravention based on section 8(1) of the Act is only determinable by the Supreme Court and not the Constitutional Court cannot be sustained. It would make a mockery of Article 46(1) of the Constitution to the extent that a contravention based on section 8(1) of the Act is, in my view, inherently a violation of Article 26 of the Constitution which in turn guarantees the right to property. Hence the provision in Article 46(1) that a person who claims that a provision of the Constitution has been or is likely to be contravened in relation to him or her may apply to the Constitutional Court for redress.

[10] It is perhaps not inappropriate that I should emphasize at this stage that Article 46, in my view, confers the right of access to the Constitutional Court by an aggrieved party challenging a contravention of the Constitution in the clearest possible terms. That right is unqualified and, being a constitutional right, it cannot be limited or denied save in accordance with the Constitution itself and more particularly Articles 46(3) and 46(7). In this regard, it is always salutary to bear in mind the provisions of Article 5 of the Constitution which proclaims in no uncertain terms that the Constitution is the supreme law of Seychelles and that any other law found to be inconsistent with it is, to the extent of the inconsistency, void.

Articles 46(3) in turn read as follows:-

“(3). The Constitutional Court may decline to entertain an application under clause (1) where the Court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any application for redress for such matter except on appeal from a decision of such court.”

 

Article46(7) as interpreted by this Court in re Attorney General: number 18 of 2003 provides as follows;-

“(7). Where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of the Charter, the court shall, if it is satisfied that the question is not frivolous or vexatious or has [not] already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court.”

[11] Similarly, Article 19(7) of the Constitution provides for the right of access to “any court” in the determination of civil rights or obligations in the following terms:

“(7) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time.”

[12] Furthermore, it is, in my judgment, undoubtedly right to say that such is the importance which the Constitution attaches to the right of access to the Constitutional Court on constitutional matters that an aggrieved party has merely to allege a contravention of the Constitution to establish a prima facie case. The State bears the burden of proving that there has not been a contravention of the Constitution. That this is so is clear from Article 46(8) which provides in these terms:

“(8) Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (7), the person alleging the contravention or risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State.”

[13] It is useful to note that Article 46(10) of the Constitution as set out in paragraph [8] above empowers the Chief Justice to make rules for the purpose of laying down the practice and procedure of the Constitutional Court including time frames with respect to the filing of applications for constitutional redress under the Article. Thus, in exercise of his power under the Article, the Chief Justice duly made the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules, 1994.

Rule 4 as amended by the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) (Amendment) Rules, 2004 (“the Rules”) reads in relevant parts as follows:

“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 3 months of the contravention;

        (b) in a case where the likely contravention is the result of an act or omission, within 3 months of the act          or omission;

       (c) in a case where the likely contravention arises in consequence of any law, within 3 months of the                 enactment of such law.”

[14] It is further interesting to note that, whereas section 8(1) of the Act prescribes that an interested person has 30 days within which to apply to the Court for the legality of the acquisition of his land, Rule 4 has now extended the period to 3 months. As subordinate legislation, it may well be that this Rule is inconsistent with

section 8(1) of the Act. Indeed section 67(5) of the Interpretation and General Provisions Act (Cap.103) provides that no statutory instrument shall be inconsistent with the provisions of any Act. It is, however, unnecessary and undoubtedly inadvisable to express a concluded view in the matter since the Court has not had the benefit of any submissions on the point and since the Rule itself has not been challenged. At this point I am bound to say that until this Rule has been declared null and void as being inconsistent with the Act, litigants shall continue to rely on it for redress.



[15] That this must be so finds support in the trite principle that if legislation is reasonably capable of having two meanings, the Court will prefer a meaning which preserves its ordinary jurisdiction to do justice. Similarly, it is strictly unnecessary to express a concluded view on what prima facie appears to be an inconsistency between Article 46(10) of the Constitution and section 8 of the Act to the extent that the former expressly empowers the Chief Justice to make rules with respect to the time within which an application

to the Constitutional Court may be made whereas the latter actually prescribes the time limit of 30 days. These are matters which in any event should best be left to the Legislature to correct by way of urgent amendments in the interests of certainty.

[16] It shall suffice then, for the purposes of this appeal, merely to say that Rule 4 of the Rules, as it presently stands, clearly gave the Applicants 3 months within which to file their petition after the actual acquisition of their land by the First Respondent on 24 March 2004. That period admittedly expired on 24 June 2004.

[17] In fairness to the Respondents, it was very fairly and properly conceded on their behalf both in the court below and in this Court that the Appellants were well within time when they filed their petition in terms of Article 46(1) of the Constitution on 22 June 2004.

[18] Indeed on page 3 of its “Ruling on a Preliminary Objection” the court a quo itself held that the Appellants were within time by 2 days. In its own words the court a quo put it in these terms:

“As regards the alleged contravention of Article 26 by the acquisition made on 24^th March 2004, the petition having being (sic) filed on 22^nd June 2004, was within time by 2 days.”

I would add that the conclusion by the court a quo that the Appellants were within time by 2 days came as no surprise when one has regard to the following remarks made by that court during the course of argument before it (record page 25):

“Court: More wait (sic) should be on the State and less on the citizen. That’s the way of approaching it. The citizen is oppressed now. Should not this be interpreted against the state rather than against the citizen? The citizen should be the one who should get the benefit of any of these 60 days and 3 months and 24 days rather than the State. The weight of the State will be too hard on a citizen.”

[19] In the light of these factors, I am disposed to conclude that not only did the court a quo inexplicably contradict itself as fully set out above but that it was wrong in holding that the Appellants’ petition was time barred.

[20] At this juncture it is appropriate, as it seems to me, to conclude this judgment by making reference to Article 130(5) of the Constitution.

It reads:  

“(5) Where the Constitutional Court makes a declaration under clause 4(b), the Court shall, subject to any decision in appeal therefrom, send a copy of the declaration to the President and the Speaker.”

Although there is no corresponding obligation on this Court, it is nevertheless necessary to draw the attention not only of the President and the Speaker but also of the Chief Justice and the Attorney General respectively to the comments of this Court in paragraphs [13] – [15] above in the interests of order and certainty in the laws of this country. That there is urgent need to redraft the legislation in question is, in my view, self-evident.

[21] In the result, the following order is made:

1. The appeal is upheld with costs.

2.  The order of the court a quo dismissing the Appellant’s petition with costs is set aside.

3.  The matter is remitted to the court a quo for hearing on the merits.

4.  A copy of this judgment must be served on the President, the Speaker, the Chief Justice and the Attorney General respectively.

……………………………….

M. M.

RAMODIBEDI

PRESIDENT

I

concur: ………………………………..

S. J. BWANA

JUSTICE OF APPEAL

I

concur: ………………………………...

J. M. HODOUL

JUSTICE OF APPEAL

Delivered at Victoria, Mahe 25^th November 2005