IN THE SEYCHELLES COURT OF APPEAL

 

Coram: S. Domah (J.A) , M. Twomey (J.A) , J. Msoffe (J.A)

Constitutional Appeal SCA CP 02/2014

(Appeal from Constitutional Court Decision CS CP 03/2004)

Cherubin Morin Rosina Morin		1st Appellant 2nd Appellant
	Versus
Ministry of Land Use and Housing Attorney General		1st Respondent 2nd Respondent

Heard:             04 December 2014

Counsel:          Mr. Joel Camille for Appellants

 

                        Mr. Benjamin Vipin for Respondents

 

 

JUDGMENT

 

M. Twomey (JA)

[2] On 28^th January 2004 the 1st Appellant’s lawyer, Mr. Bernard Georges, wrote to the Principal Secretary of  the  Ministry of Land Use and  Habitat  to  state  that  the appellantwas not minded to sell his land. In what was clearly an equivocal reply, the letter went on to state:

 “It will take more in terms of the development value of the site to generate any interest in our client in selling the plot which, as we say, is not his intention at this point. Should you wish our client to consider your desire to acquire the plot, we are instructed that your offer must be raised substantially to compensate him for lost anticipated net revenue which a completed building on the site would generate in perpetuity.

Failing that, our client would prefer to retain his land.”

[3]  On 12^th February 2004, the Ministry wrote to the 1^st Appellant informing him that it was essential to acquire his land in the public interest and that the letter was to inform him of the forthcoming publication of the notice of the intended acquisition in the Official Gazette and national paper. By a further letter dated 24^th March 2004 the Ministry gave notice to the Appellants that their land had been acquired under section 6 of the Acquisition of Land in the Public Interest Act 1996 and a certificate dated the same day certified that the need to acquire the said land was urgent and that it was not expedient to comply with section 5(1) of the Act which required an invitation to tender.

[4] The Appellants petitioned the Constitutional Court on 21^st June 2004 for a declaration that the notice of intent to acquire and the acquisition by the Minister of Land Use and Habitat of their property, parcel V3703 at Market Street, Victoria, was bad and in contravention of article 26 of the Constitution. They also submitted that there was no urgent need as certified by the Minster to acquire the said land and that the acquisition was malicious, an abuse of power, made in bad faith, unreasonable, arbitrary and made without consideration of all proper factors.

[5]  The Attorney General, the second respondent in this case raised a plea in limine litis at first instance submitting that the petition was time barred since the petition had not been filed within the 30 day period of the occurrence of the event contrary to the provisions of Rule 4(2) the Constitution (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules. He also submitted that a challenge under section 8 of the Acquisition of Land in the Public Interest Act 1996 could only be heard by the Supreme Court and not the Constitutional Court. The Constitutional Court found in favour of the plea and dismissed the petition. On appeal, the Court of Appeal found that the distinction in the Act between intended acquisitions (section 7 of the Act) and completed acquisitions (section 8 of the Act) in terms of time scales for challenges and fora were poorly drafted and ambiguous. The Court stated that any person who alleges that any article of the Constitution has been contravened by way of an actual acquisition of land is entitled to apply to the Constitutional Court for redress under article 46(1) of the Constitution. It reiterated that the right of access to the Constitutional Court by an aggrieved party challenging a contravention of the Constitution was clearly conferred by article 46 and any law found to be inconsistent with this provision would to the extent of the inconsistency be void.

[6]  The Court of Appeal remitted the matter to the Constitutional Court for the hearing of the case on the merits. That was in November 2005. The Constitutional Court did not so proceed, at least not till the matter was raised by the Appellants in October 2010, nearly five years later. We have been given no satisfactory reason why the hearing was not held promptly. The matter was in fact not heard until November 2011. The case then languished in the realm of part hearings until 20^th February 2013 and lay in abeyance yet further until judgment was finally delivered on 18^th March 2014. We will not mince our words. This is truly appalling. The Appellants waited fourteen years for a judgment on a constitutional challenge after his land had been compulsory acquired. No respect was accorded to Rule 12 of Constitution (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules which we repeat in extenso if only as a reminder but most certainly in an effort to focus the mind of all those concerned in the administration of the Courts:

 “Proceedings of the Constitutional Court shall take precedence over all other         matters of the Supreme Court.”

[7]  Lest anyone be in doubt, the word “proceedings” is understood to include the hearing of a matter as well as the delivery of the judgement. This matter should have been expedited by the Constitutional Court.

[8]  Following this short digression we return to the matter at hand.  The Constitutional Court in its judgement of 18^th March 2014 dismissed the Appellants’ petition on the merits, finding that the acquisition for the purposes stated was in the public interest, that the land acquired was at an appropriate location which would allow the 1^st Respondent to achieve its objectives in terms of the existing market. The Court also found that although the speed at which the acquisition took place after the negotiations for purchase failed, could raise an inference of bad faith, this had not been made out as there was no illegality in the process and there was a valid reason for proceeding with the acquisition. It also found that although the intended development did not materialise in the manner it had been conceived for almost 12 years, it could not be concluded that at the time of the acquisition the intention to start immediate development was not present.  The Constitutional Court concluded that in the circumstances, there had been no contravention of article 26 (4) of the Constitution.

[9]  The Appellants have now appealed this judgment on twelve grounds running to over four pages. Essentially the appeal is about both the notice of intended acquisition and the acquisition of the property itself. As the grounds are rather long winded and repetitive we asked Counsel at the hearing of the appeal to condense them. The grounds of appeal submitted were the following:

 1.  The learned judges erred in law in not finding that the notice of intended acquisition did not sufficiently set out the purpose for which it was necessary to acquire the property.

 2.  The learned judges erred in law in not holding that the certificate issued by the Minister failed to comply with section 5(8) of the Acquisition of Land in the Public Interest Act 1996 in that it did not set out the reason and grounds of “urgent need” for the acquisition.

3.  The learned judges erred in law in not holding that the Respondents statement of defence failed to meet the provisions of section 75 of the Civil Procedure Code and Rule 2 (2) of Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules in that it did not set material particulars in response to the Appellants petition.

4.  The learned judges erred in law and in fact in finding that there was sufficient evidence for the need by the State to acquire the Appellants’ property, bearing in mind that there had been an offer by the State to purchase the Appellants’ property.

5. The learned judges erred in law and in fact in failing to find that the property had been used for the purpose for which it was acquired.

[10]  Ground 1- the notice of intended acquisition

The Appellants impugn the notice of acquisition issued by the Minister. They submit that the notice did not fully set out the purpose of the acquisition as was necessary under the Constitution and the Act. We pause here to give a little background to the Act as it has every bearing on this case. Before the promulgation of the 1993 Constitution, acquisitions in Seychelles were done under the Lands Acquisition Act of 1978. Under that Act, the Minister was empowered to acquire land in the national interest. No challenge to the Minister’s decision was possible.  Section 7(1) arbitrarily provided that

“No person shall challenge the validity or legality of any acquisition of land under this Act on any ground whatsoever and no court shall, in any proceedings and on any ground whatsoever, have jurisdiction to pronounce upon the validity or legality of such acquisition.”

[11]  The draconian provisions led to some of the worst excesses by the State in the history of property law in Seychelles, so much so that in the Constitution of 1993, transitional provisions were enacted under Part III of Schedule 7 to deal with the injustices caused by the Act. The State undertook to reconsider acquisitions made under the Act on the application of an aggrieved person and to negotiate in good faith with the person so as to return land that had not been developed since acquisition, return land if the development planned by the State could be achieved by the person whose land was acquired or to pay adequate and fair compensation if there had been development on the land or where the land could not be transferred back for other reasons.

[12]  Against this backdrop the Constitution also provided the enabling provision for new and more democratic legislation. Article 26(3) of the Constitution provided:

“A law shall not provide for the compulsory acquisition or taking of possession of any property by the State unless-

 

(a)   reasonable notice of the intention to compulsorily acquire or take possession of            the property and of the purpose of the intended acquisition or taking of possession are given to persons having an interest or right over the property;”

[13]  The law when it was enacted in 1996 provided:

“Notice of intended acquisition

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).

(2) A notice under subsection (1) shall state –

(a) the description of the land intended to be acquired;

(b) the purpose for which it is necessary to acquire the land; and

(c) that it is intended to acquire the land within such period not exceeding 180 days          as may be specified in the notice.”

[14]  The impugned notice must therefore be measured against these provisions. It was published in the government Gazette on 6^th February 2004 and states:

 Acquisition of Land in the Public Interest Act, 1996

Notice Under Section 4(1)

“I, Joël Morgan, Minister for Land Use and Habitat, in exercise of the powers conferred on me by Section 4(1) of the above mentioned Act, do hereby give notice that I intend to acquire the land described in the Schedule (hereinafter referred to as “the land”) in the public interest, namely for the purpose of the extension of the Victoria market, within 60 days from the date of publication of the notice in the Official Gazette.

Schedule

Description of the Land

Parcel V3703, extent of 753 square metres as more particularly shown in the plan which can be inspected in the Office of the director of Land management, 2^nd Floor, Independence House, Victoria”

[15]  Learned Counsel for the Appellants has submitted that the particulars of the intended acquisition fall short of the requirements of both the Constitution and the Act. The ordinary dictionary meeting of “purpose” is “the reason for which something is done or created or for which something exists.” (Oxford Online Dictionary). We therefore have to be satisfied that the particulars as set out by the Minister sufficiently give the reason for the acquisition.

[16]  Learned Counsel for the Appellants has relied on the case of Harel Frères Ltd v Minister of Housing, Lands and Town and Country Planning [1986] MR 74 and submits that the notice in that case was as similarly vague as the notice in the present appeal. In Harel Frères, the purpose of the acquisition of part of a sugar-growing estate by the Minister of Housing, Lands and Town and Country Planning of Mauritius was stated as “tourism development.” This was (to put it mildly) vague in the extreme. Moreover, as the development of tourism is generally a matter that can be addressed equally by the private sector, the Judicial Committee of the Privy Council directed the matter to be remitted to the Supreme Court of Mauritius for the Minister to indicate with all necessary particularity the nature and extent of the tourism development and why it was necessary or expedient that the development be achieved through the medium of public ownership of the land.

[17]  We believe that a wide distinction can be drawn between Harel Frères and the notice of acquisition in the present appeal. Victoria Market is Seychelles’ first and biggest market and traffic and pedestrian congestion in the area is at this stage legendary. It was built over 150 years ago for a much smaller population. A market place serves the population as a whole, providing both a customer and vendor base for fresh, local food, agricultural, fisheries, meat and artisanal produce and products. It sustains and supports the local economy. It is an activity that necessitates the support and intervention of the government. Its management has always been ensured by government departments and not the private sector. It is clearly an activity in the public interest. Given these factors we are of the view that the particulars of the notice in stating that a parcel of land is required for the extension of the country’s main market meet the requirements of the Act as the purpose is clearly stated and is sufficiently precise. We therefore see no merit in this ground and it is dismissed.

[18]  Ground 2- the certificate and the “urgent need” for the acquisition

Learned Counsel for the Appellant has submitted that the certificate falls short of stating the grounds for the urgency to compulsorily acquire the property and as to the reasons to dispense with compliance with section 5(1) of the Act. Section 5 provides that after publication of a notice of intended acquisition a notice is issued inviting the person to treat with the Minister for the sale of the land, the person so invited then has 30 days to furnish to the Minister particulars of inter alia the interest he claims in the land and the amount he is agreeable to sell to the Republic his interest in the land. An agreement may then be entered with the person. However section 5(8) of the Act also provides that:

“8) Where the Minister certifies that there is an urgent need for the acquisition of any land in the public interest and that it is not expedient to comply with subsection (1), the Minister may acquire the land under section 6 and, where the Minister so certifies, the failure to comply with subsection (1) in relation to that land shall not affect the legality of any acquisition of the land under section 6.” (our emphasis).

[19]  It is abundantly clear from the wording of the above provision that the only requirement under the Act is that the Minister certifies that there is an urgent need for the acquisition. Whilst we agree with the Appellants that it certainly would have been fairer to give reasons for such urgency, it is not a requirement of the Act and cannot therefore be exacted from the Minister. This ground cannot therefore be sustained and is dismissed.

[20]  Ground 3-procedural irregularity of the Respondents’ Answer to the Petition

Learned Counsel for the Appellants has submitted another ground of procedural irregularity. He claims that the answer to the petition falls short of section 75 of the Civil Procedure Code as read with Rule 2 (2) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules.

Rule 2 provides:

“(1) These Rules provide for the practice and procedure for the Constitutional Court  in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution.

(2) Where any matter is not provided for in these Rules, the Seychelles Code of Civil Procedure shall apply to the practice and procedure of the Constitutional Court as they apply to civil proceedings before the Supreme Court.

Section 75 of the Seychelles Code of Civil Procedure provides:

“The statement of defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim. A mere general denial of the plaintiff's claim is not sufficient. Material facts alleged in the plaint must be distinctly denied or they will be taken to be admitted.”

[21]  Given the abovementioned provisions, we do not quite follow Counsel’s submission on how and why the Answer falls short of the procedural provisions. He has failed to provide any examples of this fact. In any case, this matter was never raised before the Constitutional Court where it would have been better dealt with. Generally, a final appellate court will not allow a party to raise an issue not pleaded at trial. In some exceptional cases and where there is no prejudice to the other party and where the issue has merit the party will be allowed to proceed with the new issue. (see Barclays Bank v Joshi Moustache (unreported) SCA1/1993) (1993) SCAR). We were minded in the circumstances not to let the Appellants proceed with this ground but in the spirit of fairness and given that the Respondents have not raised an objection to the ground counsel for the Appellants was allowed to proceed.

[22]  That said, we have anxiously scrutinised the Answer to the petition which stretches to 23 paragraphs. Whilst they contain some denials and admissions of the matters raised in the Petition, there are no demurrals. There are in fact several averments in relation to the reason for the acquisition, the background to the need for the expansion of the market, the requirements of street vendors, the hygiene and sanitary conditions required for the activities of the market, the need to alleviate traffic and pedestrian congestion etc. If anything there is a superfluity of materials particular.  In the circumstances, we are of the view that the Answer as set out is well within the requirements of the Rules and provisions of the Seychelles Code of Civil Procedure. We find the ground frivolous and vexatious and we dismiss it.

[23]  Ground 4 -The need by the State to acquire the Appellants’ property

Learned Counsel for the Appellants has also submitted that the learned judges erred in law and in fact in finding that there was sufficient evidence for the need by the State to acquire the Appellants’ property. He has again relied on the Mauritian decision of Harel Frères (supra). Counsel submits that the legality of the Minister’s decision is not borne out by the material facts before him at the time he made the decision. We have perused the contents of the acquisition file as submitted before the Court. It is certainly uncontroverted that the Appellants had applied for planning permission to develop their site. They had wanted to build a building comprising of shops, flats, shops and a take away business at Benezet Street.  That process had started in April 1993. Outline planning permission had been granted in September 2000 the detailed planning process had then been stalled for different reasons including inter alia the fact that an unlicensed architect had been retained by the Appellant, that guidelines for developments in Victoria had not been observed and finally the fact that that 1^st Appellant had been absent from the project whilst he served a custodial sentence for a criminal offence. The planning process stalled and it was inferred the project had been withdrawn.

[24]  Unrelated to the Appellants’ application for planning was also the uncontroverted evidence that  in the late 1990’s the renovation of Victoria Market was undertaken to improve its drainage, hygiene, the enhancement and expansion of its amenities; and the improvement of the adjacent pedestrian and traffic zones. At some point it would seem that it dawned on those tasked with the market project that the Appellants’ site would be the answer to their problems. It was adjacent to the market and it would provide the space they needed for the work they have planned.

[25]  The Appellants have submitted that this was not mere coincidence and in fact was an exercise in bad faith by the Minister to settle a political score. The 1^st appellant claims that he was a well-known member of the opposition. He states that he caught the Minister (before he became a Minister) and his father picking mangoes from a friend’s tree without permission, that other sites such as the SMB warehouse site on Albert Street, the site of the new MCB building on 5^th June Avenue were available that would have done just as well for the market expansion. He also claims that he was never approached to incorporate the extension of the Market into his planned development.

[26]  The answer to this is found in the view taken by a different government department. The Principal Secretary of the Ministry of Environment and Natural Resources, Finley Racombo in his extensive affidavit,  explains the need for the expansion of the Market, of the plans in the late 1990’s and the task force that was subsequently set up to examine the problems of street vendors and market management. He deponed that it was the task force which recommended the acquisition of the vacant undeveloped space of 735 square metres along Benezet Street. We believe Mr. Racombo and in any case his affidavit was never challenged.

[27]  Given Mr. Racombo’s affidavit, we are not persuaded that the examples quoted by the Appellants reveal a Minister bent on revenge to settle a score with the Appellants. The evidence simply isn’t there for this court to conclude that there was bad faith on the part of the Minister. We on the whole accept the submission of Mr. Benjamin for the Respondents that the Minister relied on the findings of Mr. Racombo and the Task Force to come to his decision in regard to the acquisition. The fact that a considerable offer was made to the Appellants for the site, if anything, bolsters this finding.

[28]  The Appellants have submitted that they would have been willing to accommodate the market extension in their new development. However, apart from this averment he submitted no particulars or evidence at the hearing before the Constitutional Court on how this private public partnership would have suited the Ministry’s plans for expansion and redevelopment of the market. We are more persuaded by the submission of Mr. Benjamin for the Respondent that the Appellants’ development plans for a commercial building on the site for private benefit were not reconcilable with that of the Government for the expansion of the market in the public interest. A market is unquestionably an amenity enjoyed by the public at large and it is clearly in the government’s remit to promote its proper and efficient function and management. It is clear that a similar development by the private sector would not have had the same public benefit purpose- personal profit and gain in this context would put paid to even the most altruistic gesture. As Domah JA was to remark prophetically in Government of Seychelles v Moulinié (2012) SCAR 351 (CA):

“Even small projects are [the Government’s] concern: construction of drains, enlargement of roads, provision for a pitch for football, a market place etc. The private sector will be little interested in engaging in such developments as they do not give business returns” [358-359]

[29]  The acquisition laws of Seychelles allow the Minister to acquire land in the public interest- the extension of the country’s oldest and biggest market is without doubt in the public interest. We therefore see no merit in this ground and it is dismissed.

[30]  Ground 5- the subsequent use to which the acquired property was put to

The Appellants’ final ground is that the purpose to which the site was put was not that as proposed when the acquisition was executed. They claim that there is a substantial deviation from the original purpose of the acquisition to what has been delivered to date. They relied on Moulinié (supra) and reminded the Court of the averments in Mr. Racombo’s affidavit in 2004 as to the plans to separate the wet section (meat and fish) of the market from the dry section (vegetables, spice and added value product stalls) and to construct more structure to accommodate more stalls and to create more circulation space and toilet facilities.

[31]  Mr. Michael Nalletamby, the current Principal Secretary in the Ministry of Investment, Natural Resources and Industry swore a fresh affidavit in July 2011 and attached photographs of the market extension. He submitted that the extension of the market did take place, in that the whole of the acquired land was given a concrete floor and a galvanised roof structure. Three accesses have alleviated congestion for market stall holders and shoppers. The extension caters for around 50 vendors of farm products. Public toilets and waste bins have been provided. He admitted that it still only functions as a dry market and that this was due to financial constraints but that the old market was catering for the wet section. He stated that the government remained committed to the initial plans.

[32]  There is a fundamental flaw in Appellants’ Counsel’s submission. The purpose of the acquisition as stated in the notice dated 6^th February 2004 was “namely for the purpose of extension of Victoria Market.” This purpose has been achieved, albeit not in the grandiose or ambitious plans as outlined by Finlay Racombo. The situation would have been entirely different if for example the site had been used to build a commercial building with shop outlets or for that matter a new party headquarters for the Parti Lepep. That was the situation in Moulinié where land that had supposedly been acquired in the national interest was clearly not being developed for that purpose. Flats that had been built and rented out by Mr. Moulinié in 1987 were still being rented out in their original state in 2012 by the government to private parties; land acquired in 1980 was for the most part left undeveloped and vacant.

[33]  Before we conclude, we have to address one matter which was canvassed and dealt with in limine litis by the Court of Appeal in 2005 and which still has not be addressed by the Legislature. This concerns sections 7 and 8 of the Acquisition of Land in the Public Interest Act 1996 and was what was described as “poor draftsmanship” by the Court. The relevant provisions need to be cited:

“Contravention of article 26 of the Constitution

7 (1) Any person who has an interest in the land specified in a notice of 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.

(2) Where on an application under subsection 10, the Constitutional Court declares that the notice of intended acquisition, the subject matter of the application, is a contravention of article 26 of the Constitution, the notice of intended acquisition shall cease to have effect in relation to that land and any further action taken in relation to that land under this Act shall be of no force or effect and the intended acquisition of that land shall be deemed to have been abandoned.

Legality of acquisition

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.

(2) The Republic shall be made a party to an application under subsection (1).

(3) For the purpose of determining the legality of the acquisition of a land pursuant to an application under subsection (1), the Court shall have regard only to sections 5 and 6.

(4) In an application made under subsection (1) in relation to a land, a person shall not plead or raise any matter which had been pleaded or raised in an application under section 7 in respect of that land or which could have been pleaded or raised in an application under section 7 in respect of that land or which could have been pleaded or raised if an application had been made under that section...

[34]  There is therefore a clear distinction between a petition being brought to challenge the constitutionality of an intended acquisition and one being brought to challenge the legality of the acquisition. The forum which decides challenges to acquisitions are based on this distinction. As we listened and deliberated on the merits of this case it became abundantly clear to us that this was a case essentially concerned with a judicial review of the Minister’s decision and not one concerned with the breach of the Appellants’ right to property. We are of the view that if this is the fundamental issue raised, the convenient forum is the Supreme Court which has supervisory jurisdiction over subordinate courts, tribunals and adjudicating authorities.  No constitutional issues were raised in this case and the petition should therefore have not been filed in the Constitutional Court.

[35]  It is however abundantly clear that the purpose for which the Appellants’ land was acquired was met. We have not been invited to comment on compensation but remark that given the fact that this land was acquired ten years ago and the Appellants are considerably out of pocket it is incumbent on the Minister to pay to them forthwith compensation that is prompt, effective and adequate.

[36]  This appeal is dismissed in its entirety.

 

M. Twomey (J.A)