Laporte & Ors v Ministry of Land Use and in re: Hoffman and Laporte & Ors (MC 66/2012) [2016] SCSC 339 (20 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: MC 66/2012

                  MA 247/2015

[2016] SCSC  339  

 

    

First Petitioner

INA LAPORTE

Of Greenwich, Mahe

(as an heir to the estate of Jean Laporte)

 

AND

 

Second Petitioner

BARNET FANCHETTE

Of Beau Vallon, Mahe

(Joint Executor and heir in the Estate of

Celestin Monnaie) herein representing

All the other heirs  

 

AND

 

Third Petitioner

YARDLEY MONNAIE

Of Bel Ombre, Mahe

(Joint Executor and heir to the estate of Celestine Monnaie)

Herein representing all other heirs

 

Versus
 

Respondent

MINISTRY OF LAND USE

 

 

AND IN RE:

 

Applicant

BERNARD CHARLES HOFFMAN

 

AND

 

First Respondent

INA LAPORTE

 

AND

 

Second Respondent

BERNARD FANCHETTE

 

AND

 

Third Respondent

YARDLEY MONNAIE

AND

Fourth Respondent

MINISTRY OF LAND USE

 

 

Heard:                         6 April 2016     

Counsel:                      Mr Elvis Chetty  for 1st Petitioner and 1st Respondent

                                   Mrs Alexia Amesbury for 2nd and 3rd Respondents

                                   Mr Vipin Benjamin Assistant Principal State Counsel for Respondent and     4th Respondent  Mr Melchoir Vidot for the Applicant

Delivered:                   20 May 2016     

 

 RULING

 

McKee J

 

[1]               The Applicant makes an Application to intervene as Fourth Petitioner in the principal case No. MC66 of 2012 which itself is an Application by the First, Second and Third Petitioners to this court to exercise its Supervisory Jurisdiction under Article 125( c ) of The Constitution.

[2]               It is to be noted that the First Petitioner did not formally wish to contest the application to intervene. She will, of course, be bound by this decision.

[3]               The principal Application for judicial review lodged by the First, Second and Third Petitioners was in reference to Notices published in the Official Gazette referred to below:

(a)    Official Gazette No 31 dated 12th June 2012 at Entry 604 of 2012. This was a Notice under section 4[1] of the Acquisition of Land in the Public Interest Act [Cap 1A] in which the Minister of Land Use & Housing in exercise of his powers under the Act intended to acquire land as set out in an accompanying schedule for the purposes of housing and land bank development within sixty days of 12th June 2012. The land to be acquired was designated as parcels of land LD1812, LD1813, LD1814, LD1815 and LD1816 situated at La Digue as more fully described in survey diagram and part of LD1872 described by UO325, NM28, NM40[TA],TC25, UN615 and UJ598 on a layout plan which could be inspected in the office of the Director Land Acquisition.

 

(b)   Parcels of land LD1812, LD1813, LD1814, LD1815 and LD1816 are hereinafter referred to as “the 5 parcels of land”.

 

(c)    Official Gazette No 36 dated 2nd July 2012 at Entry 657 of 2012. This was a Notice under the section 5[1] of the said Act. The Minister gave Notice that he intended to treat with the owner or any other person having an interest in the said parcels of land, and that such person or persons should, within thirty days from 2nd July 2012 furnish the particulars of [a] his interest in the land, [2] the amount for which he agrees to sell his interest in the land to the Republic [c] the names and addresses of anyone else  who, to the knowledge of any person,  has any interest in the land and the nature of that interest.

 

[4]               In answer to the last-mentioned Notice there is lodged in process a photocopy of a Public Notice dated 3rd July 2012 and published in the Nation newspaper dated 5th July 2012 stating that the Petitioners had a legal interest in the said parcels of land as legal and rightful owners of the said land.

 

[5]               A photocopy of an entry No 810 of 2012 in an Official Gazette is also produced.  The entry is a Notice under section 6[1] of the said Act dated 6th August 2012. This Notice contains a Declaration by the said Minister, in exercise of his powers under section 6[1] of the said Act, that  he has acquired the said parcels of land in the public interest for the purpose of housing and land development.

 

[6]               As a consequence of that Declaration there is also produced in the bundle of documents a Notice in the Nation dated 31st August 2012 confirming the acquisition. Hence there was a period slightly in excess of three weeks between the Notice in the Gazette and the notice in the newspaper.

 

[7]               The said Declaration triggered a response from the First, Second and Third Petitioners and this was the Application for the Court to exercise its supervisory jurisdiction under the Supreme Court [Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities] Rules. In essence the First, Second and Third Petitioners were inviting the Court to institute a Judicial Review of the decision taken by the Minister and this was granted.

[8]               By the present application, Bernard Charles Hoffman [hereinafter referred to as “the Applicant”] seeks to intervene and become a party to the application for a Judicial Review of the earlier decision of the Minister to acquire the parcels of land under the said Act.

[9]               The Petition for Judicial Review throws some light on exchanges between the First, Second and Third Petitioners and Government during the period June, July and August 2012. The Petitioners reiterated their claim of rightful ownership and refer to the deeds of succession relative to the 5 parcels of land. They aver at paragraph 14, that this information had already been communicated to Government prior to the acquisition. In any event it is further averred, at paragraph 19, that their position was that they had no intention to sell but at the same time were interested in the amount of compensation Government might offer. It would seem that, by letter dated 23rd July 2012, a copy of title deeds and a survey report was sent by the Petitioners to the Respondent.  It is then averred that despite the flow of correspondence and delivery of title deeds the matter was brought to an end by the Declaration by the Minister that the 5 parcels of land had been acquired by The Republic. The First, Second and Third Petitioners thus, being aggrieved by this decision, lodged the Petition for Judicial Review.

[10]           I took carriage of this matter around May 2014 and it would appear that there had been further discussions and attempts to resolve this matter amicably but this approach was not successful. I have no first-hand knowledge of what was discussed up to this juncture. An application to preserve the general position and individual interests was made to the Court and an Injunction was granted and on 7th August 2013 in the following terms:

1.      All transactions in relation to the land in issue are prohibited in order to facilitate the survey of the land,

2.      The survey to be conducted by Mr Michael Leong of Cooperative House, Huteau Lane, Victoria, with the assistance of Mr Terrence Pointe.

3.      The survey shall start on a date immediately after the 15th of October 2013, and

4.      The Court hereby orders that the surveyors be given uninhibited access to the land in order to conduct the survey herein ordered. [ADDED BY MY ITALICS] We know that this survey was carried out since the survey report with accompanying plans dated 4th August 2014 is in the bundle of documents submitted to the Court. It is worthy of note that this report was ordered by the Court.

[11]           I have set out the progress of this matter to clarify the state of the proceedings which the Applicant for intervention seeks to join.

[12]           The acquisition of the parcels of land in terms of the provisions of the Acquisition of Land in the Public Interest Act [hereinafter referred to as “the Act”], does not establish a procedure which is only known in Seychelles. In the United Kingdom, for example, such acquisition is by Compulsory Purchase Order. Such an Order is again made subject to a payment of compensation. The person entitled to this payment would be the owner of the land or a person having a right, title or interest in the land being acquired.

[13]           A similar right to payment of compensation for land acquired is also provided for in the Seychelles legislation at section 4[6] and PART III of the Act. Again the right to compensation is granted to a person who can establish an interest in the land acquired. Section 4[6] provides that the amount of compensation is determined by agreement between the Minister and the person who can establish his interest, failing which, by a decision of a court of competent jurisdiction.

[14]           However, in the present matter, the dispute does not centre on an amount of compensation but on a more fundamental issue as to whether the First, Second and Third Petitioners can establish an interest in the parcels of land LD1812, LD1813, LD1814, LD1815 AND LD1816 [which are hereinafter referred to as “the 5 parcels of land”].

[15]           In respect of the application for intervention it is helpful at this juncture to review the position in respect of the claim by the First, Second and Third Petitioners and the position taken by the Minister as advised by his officials in the Ministry.

[16]           This is my understanding of the current position from all the information and documents which are at present in this court file.

[17]           The First, Second and Third Petitioners base their claim on a narrative of their rights of succession going back to 1808 unsupported by any plan. The Respondent, the Minister, bases his rejection on plans prepared in the last three years and entries in the Land Register. The Applicant in this Application bases his claim also on a narrative relating to his rights of succession through title but again unsupported by any modern plan.

[18]           The Respondent, the Minister, has produced two plans prepared by members of the survey department, one prior to Mr Leong’s report and the second after Mr Leong’s report. It is Surveyor Leong, in producing an independent plan for the Court who first to attempted to relate the “concession” land of 1808 with the Current Cadastral Map. He stated in his report that the concession area, ie the 108 acres, correspondented to “Plot 8” on the cadastral Plan, which is referred to later.

[19]           Surveyor Barbe prepared “plan 1” which was attached to the affidavit dated 24th January 2013. This showed the 5 parcels of land delineated in red, located on the eastern side of a road or pathway. Also shown is plot LD1872 delineated in red which is to the east of parcel LD1812. Immediately across the road or pathway are some twenty plots with LD numbering and delineated in blue. A great number of other plots delineated in black, but not highlighted, all with LD numbering complete the plan.

[20]           The next plan in chronological order is the plan of Surveyor Leong with ancillary report as ordered by the Court. This plan, to be called “plan 2”, is dated 4th August 2014. It shows the numerous plots of ground in the general and large area of ground, is of a much smaller scale, shows an area delineated within a red broken line and coloured pink which is given the title “Plot No 8”. While the 5 parcels of land, which are the subject of judicial review are not given plot numbers in this plan, by looking at the curves on the roadway and comparing plan1 and plan2 I can see the general area where they may be located.  I would have to hear further argument as to whether the 5 parcels of land are within or outwith Plot No 8, but this may be more suitable to be conducted in the principal suit.

[21]           The third plan “plan3”, again drawn by Surveyor Barbe and dated 20th November 2014 shows a large area outlined in red enclosing many “small” plots of ground . While they are not specially highlighted it would seem that the 5 parcels of land are situated almost in the centre of the area outlined in red. His accompanying report, as I understand it, comments on the report of Surveyor Leong, and tends to suggest that the location of Plot No 8 as drawn by Surveyor Leong may be in error. In this plan 3 within the red outlines is one area coloured pink immediately adjacent to similar size of area coloured blue each containing a number of individual plots are shown and given LD numbers. There is also an area marked Vol 35 No 358.

[22]           The First, Second and Third Petitioners base their claim on a line of succession from Jean Laporte who was the owner of 108 acres of land in La Digue. Jean Laporte in turn sub- divided this area and transferred to each of his three heirs a plot of ground extending to thirty six acres. The heirs who acquired individual plots were named as Jean Baptiste Laporte, Venan Florentin Laporte and Joseph Celestin Laporte.

[23]           As I understand the position, the First, Second and Third Petitioners base their right to challenge the decision of the Minister to compulsorily acquire the 5 parcels of land by a right of succession leading from Joseph Celestin Laporte [also referred to by the name of “Celestin Laporte”]. It would seem to follow that the First, Second and Third Petitioners would have to take the position that the five parcels of land fall within the thirty six acres acquired originally by Joseph Celestin Laporte. 

[24]           I now look to the application for intervention by the Applicant, Brian Charles Hoffman. The documents to consider are [1] the affidavit dated 18th September 2015 in support of the Motion for Leave to Intervene, [2] the Amended Affidavit dated 19th September 2015, which supercedes the first affidavit and [3] the Applicant’s Submission to Grant Leave to Intervene dated 8th February 2016.

[25]           The Applicant bases his right to intervene on his right of succession from Venan Florentin Laporte. I understand that he concedes that the 5 parcels of land fall within the original area of 108 acres [referred to as the Concession of 1808] which superior area itself was subdivided into the plots of ground each extending to 36 acres referred to above.  He is prepared to agree that the Concession of 1808 corresponds with Plot No 8 on the Cadastral Plan. He submits that he is entitled to succeed to an area of ground which he describes as Lot 1, which is contained within Plot 8.He further submits, at paragraph 4 of his amended affidavit, that the 5 parcels of land all fall within an area which he describes as Lot 2 which also falls within Plot No 8. He further submits that, in his opinion, that it is Lot 2which the Petitioners are claiming”[my italics].Looking at paragraph 10 of the Amended Affidavit of the Applicant, he states that he” wishes to intervene in the above mentioned suit so that I may protect my interest in respect of Lot 1 since it is burdened by the injunction [my italics].

[26]           The third document submitted by the Applicant is the formal Submission to grant leave to intervene. Under the heading Applicant – Necessary Party, I read at paragraph17[c] at the second sentence “The proof of evidence demonstrates the historical wrongful dealings with the land under the guise of compulsory acquisition”.  Further on at the first two sentences of paragraph 18 I read “The applicant’s affidavits and  evidence provide compelling and strong case supporting his true entitlement and claim of ownership of Lot 1 which forms part of Plot 8. Conversely the 2nd and 3rd petitioners have no such claim of right to that parcel of land”I have asked myself what the Applicant means when he refers to the last 4 words “that parcel of land”. I find the answer in the succeeding paragraph 19 at the 3rd sentence “Having regard to the conflicting claims made by the Petitioners and the Applicant vis a vis themselves and other parties – there is justiciable doubt as [to] the party entitled to relief in relation to Lot1”.

[27]           I now look to the Affidavit dated 20th January 2016 in support of the Objections by the Second and Third Petitioners to the grant of leave to intervene. The deponents raise a number of issues which I can summarise as follows:

[28]           1. The Applicant has not been appointed as an executor in the estate of one Eugene Laporte, a descendant of Venan Florentin Laporte nor is an heir to the estate and hence has no locus standi in the present judicial review matter,

[29]           2. Pursuant to Rule 4 of the said Rules the Applicant had only 3 months to make his application to contest the acquisition order made under the Act and hence is out of time,

[30]           3.  An application for intervention under the said Rules in respect of judicial review is unknown in the jurisprudence of Seychelles,

[31]           4.  A sworn affidavit cannot be amended as has been done in this case,

[32]           5. That, as he is alleging, he is prejudiced by the imposition of an injunction in respect of the whole of plot 8, he still has to wait until the present judicial review procedure  in respect of Lot 2 is completed.

[33]           That is the thrust of the objection from the Second and Third Petitioners.

[34]           I turn now to the REPLY lodged by the Respondent, the Minister of Land Use and Housing. It is brief. He submits that the Applicant has failed to demonstrate his right title or interest in the 5 parcels of land which are the subject matter of the Judicial Review. He states that the Applicant places his interest in Plot No8 but, declares no interest, through title, in sub-lot 2 of plot 8, which sub-lot 2 contains the 5 parcels of land.

FINDINGS.

[35]           This is an application by Bernard Charles Hoffman, the Applicant, to intervene and become a party to the judicial review proceedings more correctly stated as the Application by the First, Second and Third Petitioners under Article 125[c] of the Constitution for this Court to exercise its supervisory jurisdiction in relation to an Order made by the Minister of Land Use and Housing under the Acquisition of Land in the Public Interest Act.

[36]           The Order was a Declaration by the Minister that he had acquired the 5 parcels of land in the public interest, said Order being dated 6th August 2012. In exercise of the powers under the Rules the Court granted leave for the application to proceed and for it to exercise its supervisory jurisdiction, the Court being satisfied, at that stage, that the First, Second and Third Petitioners had sufficient interest to pursue the Application. As at this date the Respondent has not taken the opportunity to reply to the grounds for review. It would be normal then for a hearing to be fixed to consider the application for a review. It was considered that the First, Second and Third Petitioners had sufficient interest in the 5 parcels of land, namely, LD1812, LD1813, LD1814, LD1815 and LD1816 to challenge the propriety of the Order and Declaration of the Minister and the matter proceeded. An alternative approach may have been taken by the First, Second and Third Petitioners in that they could have accepted the Decision of the Minister and apply for compensation. The First, Second and Third Petitioners did not elect to take that route.

[37]           This case is about the 5 parcels of land only. I am unsure as to its total acreage, but no doubt, I will be advised of this in future proceedings.

[38]           Hence the position is as follows. The Minister has made his Order and Declaration. The First, Second and Third Petitioners have lodged in writing their grounds of challenge in respect of the Order and Declaration. The Applicant for Intervention seeks approval to enter as a party to the Application for Judicial review and sets out his grounds. The Application is resisted by the Second and Third Petitioners and the Respondent, the Minister.

[39]           Thus I look to the two affidavits and Submission by the Applicant and the Replies and Objections from the Second and Third Petitioners and the Respondent and affidavits attached thereto and plans and reports referred to.

[40]           I have come to the following conclusion in respect of the application for intervention. It is for the Applicant to make his case. I take into account that, apart from his narrative of title, he has submitted no Deduction of Title by way of an Interim Report from the Register of Lands. The Applicant has referred to a Lot 1 and a Lot 2 but he has not submitted any survey report or plan to indicate the location of these two lots of ground. As I understand the position, it is his opinion that these two lots fall within a plot shown as Plot No 8. This is also the position taken by Mr Barbe, the Government Surveyor, in his affidavit dated 20th January 2016. These two lots are separate and distinct. I have considered the three sets of plans already lodged and while Plot 8 is delineated none of the plans delineate Lot 1 and Lot 2.

[41]           However the position of the Applicant is clear. I find that his right to intervene is based on an interest in Lot 1 within Plot 8. However he concedes that the five parcels of land to which the First, Second and Third Petitioners lay claim, and to which the judicial review proceedings relate, are situated in Lot 2. Lot1 and Lot2 are separate and distinct. He confirms that he has no property interest in Lot 2. This very point is stressed in the Objections and Reply by the Second and Third Petitioners and the Respondent.

[42]           I find that his application to intervene is based only on the restrictive conditions in the Injunction dated 7th August 2013 as it affects his property interests in Lot 1. I find that this is irrelevant and is an insufficient ground to warrant his intervention in the judicial review proceedings relating to the 5 parcels of land within Lot 2. I find that, even on the averments in his own application, the Applicant has no right title or interest in Lot 2, and, by extension, the 5 parcels of land which are the subject of the judicial review proceedings.

[43]           The present application to intervene is refused. The Application is DISMISSED with costs.

 

[44]           The Judicial review proceedings will now continue with the original parties. The original Applications lie with the Court. It is now for the Respondent to lodge his Answers to the originating Petition. Thereafter a date will be set for a hearing of the substantive matter. It may be that parties will also wish to submit orally at this Hearing. If the Petitioners have not yet been served with copies of the Affidavit of Mr Barbe dated 20th January 2016 copies of this Affidavit to be served forthwith on Counsel for the First, Second and Third Petitioners.

 

 

Signed, dated and delivered at Ile du Port on 20 May 2016

 

 C McKee
Judge of the Supreme Court