Verlaque and Another v Seychelles Government and Another (5/1999) (NULL) [2000] 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
Versus
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
JUDGMENT
Perera
J
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.
Preliminary Objections
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.
.
A.R.PERERA
JUDGE
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
VS
Seychelles
Government
Represented
by the Attorney General 1st
Respondent
And
Attorney
General
National
House, Victoria, Mahe 2nd
Respondent
Constitutional
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
D.
Karunakaran,J.
JUDGMENT
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
Versus
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
JUDGMENT
Juddoo J.
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:-
(i) ordering
the 1st
respondent to execute a deed of
transfer of
Parcels of
land
PR21Q9 and PR2111 in favour of
the petitioners; and
(ii) ordering
that in default of
execution of
a deed of
transfer
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
property "
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
this offer
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
January
1999, at latest, the petitioners were unequivocally made aware that
the 1st
respondent
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
January 1999.
The
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.
N.
JUDDOO
JUDGE
Dated
this 30th
day
of May,
2000.