AG v Constance (MC 2 of 2024) [2024] SCSC 186 (6 June 2024)

SUPREME COURT OF SEYCHELLES Reportable: MC 02/2024 [2024] SCSC Petitioner Respondent (16 May 2024) In the matter between: The Attorney General (Represented by Mr Guy Ferely) and LOUISEL COnM (Represented by TANCE r Frank Elizabeth) Neutral Citation: AG v Constance MC 02/2024 [2024] SCSC Before: Summary: R. Govinden, Chief Justice Powers of the AG to appoint an Attorney at Law to represent the Government in civil suits By Written Submissions 6 June 2024 ORDER Plea in limine litis upheld partly. RULING Heard: Delivered: R. GOVINDEN, CHIEF JUSTICE [ The Petitioner is the Attorney General representing the Ministry of Land Use and Housing. The Petitioner is petitioning this Court for an order that the Respondent quit. leave and vacate the Petitioner’s property. parcel H14683 by removing the van/trailer/kiosk thereon. I'he Petitioner also seeks a writ habere possessionem should the Respondent fail to vacate parcel H14683. The petition is supported by an affidavit sworn by the Principal Secretary of the Ministry of Land Use and Housing, Denis Barbe. In it, it is averred that the Petitioner is the owner of parcel H14683 which is a subdivision of a larger parcel H21 situated in Beau Vallon Mahe. [t is further averred that the Respondent purported that he received authority to put his van/trailer/kiosk on parcel H14683 on parcel H21 through letters from Mr Roland Lefevre who was acting on behalf of one Mrs Lefevre. However, the property was not owned by Mr Roland Lefevre or Mrs Lefevre as evidenced by transcription volume 52 No. n No. 2924 Repertory 34 No. 1001 dated 15 January 1970 which showed that the comg v Hotel Des Seychelles Limited owned parcel H21. It is averred that the letters eiving authority to the Respondent to occupy H14683 have no legal effect because they came from a nerson who had no proper power of attorney from Mrs Lefevre. It is also averred the Respondent always knew that he had no lawful authority to keep his k on 1114683. This is evidenced by a letter which the Respondent sent to the Chief Executive Officer of Enterprise Seychelles Agency where he requested to install an orange mobile van at the ex Bazae Labrin site. It is averred that the letter signified the Respondent’s acknowledgement and/or acquiescence of his legal status on parcel H14683. B3] It is further averred that the Respondent is a trespasser and he in unlawfully occupying | F 14685 given that he has no lease or any other lawful interest therein. It is averred spite several verbal and written warnings and notices to the Respondent to vacate, *cl. refused and/or neglected to do so. Mr Barbe averred that the said parcel is req = development, namely the construction of 44 kiosks to be allocated to 44 small busin It is averred that the development cannot commence unless the Respondent vacates parcel H14683. It is averred that it is in the interest of justice that this Court orcers the Respondent to quit, l2ave, vacate and remove his van/trailer/kiosk from parcel 3 and if he fails to do so. the Court ought to issue a writ habare facias possessionar inst the Respondent. The Respondent for his P part, has resisted the Petition by filing a reply to it. In it, the Respondent first raises three points of law which are: (i) the attorney representing the Attorney General, namely Mr Guy Ferley, has no valid legal authority. standing or mandate to represent the Attorney General in this suit; (ii) the legal authority, mandate or standing granted by the Attorney General to Mr Guy Ferley is defective and not valid in law; and, (1) the power granted to the Attorney General by the Constitution to be the legal representative of the government is subject to the legal maxim delegatus non polest delegare and is not delegable or transferrable in law except in Uimited circumstances prescribed by statue and in a prescribed form. [5] In his affidavit in reply, the Respondent avers that he is neither in possession nor in oceupation of title number H14683 and in the absence of a land surveyor’s report to show exactly ation of his van/trailer/kiosk, the petition is unsupported by the necessary evidence. 1t is also averred that the Respondent was authorised by Mr Roland Lefevre, alf of Mrs Marguerite Marie Lefevre. to occupy the property where his business is stationed and therefore has lawful permission, consent and authority to place his business on the property. It is also averred that notices given by Enterprise Seychelles Agency had no legal validity since it did not have a proper legal mandate to administer the property on behalf of the Petitioner and there is no proof that shows that there was ever such a legal mandate. [6] Writt missions were filed by both parties on both the plea in limine and merits of the case. Having considered the Plea in limine this court is of the view that a determination on plea s necessary before it makes any pronouncement on the merits of the case. Hence this decision will be limited to the pre!iminary objections only. [7] The mandate of the Attorney General emanates from Article 76 of the Constitution which states that the office is the principal legal advisor to the government and also entrusted with torial powers. Emphasis in the Constitution is placed on the office’s prosecutorial powers, akin to National Prosecuting Authority or Department of Public Prosecutor, popular in other jurisdictions comparable in part to Seychelles. 8] Having closely scrutinise the constitutional provisions | would agree with the position taken oy counsel for the Petitioner that the Constitution does not provide for civil litigation powers ol (he Attorney-general. On the other hand his legal advisory and criminal < \ ar early set out. Instead, the Attorney-general function in civil matters are 1 osection (1) of the SCCP as counsel for the Petitioner submitted. he powers of the Attorney General to appear and represent the Government ory rather that constitutional, though he is a creature of the Constitution. As a before the court does ot require the interpretation of the Constitution. In the circumstances, the referral to the Constitutional Court is not necessary and the submission by counsel for the Respondent that this is a question of interpretation of the Constiturion is frivolous and vexatious. 9] Counsel 1or ihe Respondent went at lengths to define the delegation doctrine, by the use of a s from United Sates of America (the US) and also that of the United Kingdom (the UK). ['have read these authorities with great interest, but do not find them relevant in E princ one main reason. The term delegaia potestas non potest delegari is a tutional and adminisirative law which simply means that delegated cannot be re-delegated unless there is some reason why it should be.! Having r Constitution, two things are apparent to me. Firstly, the Attorney-general is enjoined with original principal advisory and prosecution powers. Therefore when exereising these constitutional powers. the delegata polestas non potest delegari principle does not arise hecause his powers are not delegated but bestowed upon him by the Constitution. Bestowed powers, in principle, can be delegated - although I will hasten to sav u ne law expressly provides that such powers cannot be delegated or it will be L Duff P & Whi Low 14 Cornell lJelegata Potestas Non Potest Delegari A Maxim of American Constitutional Law’ (1529) 169. » delegate. This brings me to the second aspect of why the US and UK authorities submitted by counsel for the Respondent are not relevant. In terms of his strictly titutional functions, the Constitution expressly grants to the Attorney General the e his function to ‘subordinate officers” as per Article 76(5). Lo the present case is the application of this doctrine to the civil litigation 1 Atltorney General. This is so as by its very nature a Writ action is inherently civilin aature. These powers are as set out in Section 29 (1) of the SCCP, which provides 25, Claims by or against the Government ns by the Government of Seychelles against any private person shall be brought ame of the Attorney General and (subject as hereinafter provided) shall be carried suarne maiiner in every respzct as suits between private parties aims against the Governinent of Seychelles being claims of which the subject i ould have been cognisablc by the Supreme Court of Judicature if the claim had -ainst a private individual be preferred in the Supreme Court in a suit instituted by the claimant as plaintiff against the Attorney General as defendant. tters ail actions are brought in the name or against the Attorney General v, Lue provision, however, does not assist us in determining whether powers to covernment as counsel in civil litigation can be delegated to another person General has been pr suited. Evidently, Section 29 of the SCCP has no simils; poovision to Article 76(5) in the Constitution. It is only when a Court has a full anprecizticn of the civil litigation powers of the Attorney General as a representative of the "at it can ascertain the nature and scope of such powers, including especially vers can be delegated o on attorney in private practice. [12] i this execcise, the court notes that the way Section 29(1) of the SCCP is framed it only ¢ Attorney General shail be the only person who can be suited as a Defendant tters and in this vvuy there is no requirement to cite any other persons e or the government depariment as the defendant in a suit. However in the urt it is clear that the AG is not only cited as qua Defendant but also as the ative of the government i this provision. Therefore being mandatorily cited :ndant and as a legal representative he would be at liberty to either defend the or instruer somebody else to do so. Similar to the Constitution. Section 29 of the SCOP doss not delegate but empower the Attorney General. Therefore, similarly, the Atrorney Cieneral can decide whether he appears personally appear or appear through one o7 his subordinate officers or through an attorney-at-law in private practice who has been who hasg be v instructed to apoear on his behalf. [13] The argument with respect of lack of mandate or legal authority is intertwined with that of ©with respect of the one regarding unlawful delegation of powers. However, to the cxtent el rclates Lo submissions of usurpation of powers by counsel for the petitioner ofthe Aty Ceneral’s powers, it is ¢l2ar that this argument cannot be tenable as counsel roof of the fact that the AG has given to him the powers to proceed with [14] Norwithsianding the above, it is important for the Attorney General to be circumspect in quiesce to private counsel 1o appear in cases in which he is lawfully made @ delendant ana this is where I find thal the plea of the Counsel of the Petitioner carries some wegnt The process of delegation of functions or of giving instructions t an in private practice mus: be properly executed both in form and substance as svent challenges as the ore raised in this case. It is clear that when there is delegati authority, the Attorney Ceneral does not surrender his authority completely. Instead, he iving power to a subordirate to act independently, but within the limits he rescrib 1 subordinate must comply with the directions provided by the Attorney irg within clear limits set out to him or her. | would add that the authority ded or withdrawn by e Attorney-General at will. Further, the person instructed, who s 2 delegate, cannot delegate the authority which they themselves do not nossess® Al these specificities must be captured in a formal written Document of 2 NB: Thic of delegata potestas n-r potest delegar finds its application utk ‘“ppointment. The documentation submitted by counsel for the Petitioner is clearly lacking in this respect. [15] On this basis. | am inclined to agrec with counsel for the Respondent that Mr Ferley mandate o represent the Attorney General in this suit is defective. However, the defect does not nuliifies the suit as it is one of form only and can be cured. I therefore order counsel for the petitioner to file his written mandate within 14 days of this Ruling, failure of which rhe case would be stayed for abused of proceed. [16] In consid of the above, the second plea in limine litis is upheld to the extent set out Signed, “¢ ‘vered at lle du Port 6 June 2024 R. Govinden, Chief Justice