IN
THE CONSTITUTIONAL COURT OF SEYCHELLES

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

V/S

1.
THE MINISTER OF LAND USE AND HABITAT

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

Constitutional Case No. 10 of 2001

……………………………………………………………………………………………………

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

……………………………………………………………………………………………………

Mr.
B. Georges for the Petitioner

Mrs
L.Valabhji for the Respondents

RULING OF THE COURT

Perera
J

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

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

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

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

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

   
   

…………………………………………………………………..

4. 
   Where a document or notice is sent by
   post pursuant to Sub-Section (1), service or notice shall
   be deemed to have been effected or given, unless the contrary is
   proved, at the time at which the
   document or notice would be delivered in the ordinary course of
   post.”

   
   

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

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

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

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

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

In the present case, as the respondents
have admitted a delay in posting the notice dated 20^th
September 2001 and has not been able to state with
certainty as to what that delay was, the deeming provision in Section
55(1) of the
Interpretation and General Provisions Act cannot be applied.
Accordingly, we rule that the petitioner has adduced sufficient

reasons for the delay, and in the circumstances retrospectively
extend the time of filing of the petition to 6^th
November 2001, thereby accepting the petition already
filed.

………………..

A.R.PERERA

JUDGE (PRESIDING)

Dated
this 28^th
day
of May 2002

N.JUDDOO J

I agree

N.JUDDOO

JUDGE

D.KARUNAKARAN J

I agree

D.KARUNAKARAN

JUDGE