Servina v Speaker of The National Assembly (SCA 13 of 1995) [1996] SCCA 28 (1 March 1996)

IN THE SEYCHELLES COURT OF APPEAL MATHEW A. SERVINA VIS 1. THE SPEAKER, NATIONAL ASSEMBLY 2. THE ATTORNEY-GENERAL Cons. App. No.13/95 (Before: H. Goburdhun, P., A. M. Silungwe, E. O. Ayoola, JJ. A.) Mr. J. Hodoul for the Appellant Mr. J. Renaud for the 1st Respondent Mr. A. Fernando for the 2nd Respondent JUDGMENT OF GOBURDHUN. P. AND AYOOLA. J. A. This is an appeal from the decision of the Constitutional Court of Seychelles dismissing a petition by the appellant against the two respondents. The appellant sought declarations first, that the word Minister in Article 69(5) of the Constitution should be interpreted to i~clude him and any person who, like himself, served as Minister under any previous Constitution; and, secondly, that the Ministerial Emoluments Act, which deprives him of a gratuity which it provides for Ministers contravenes the Constitution in regard to him. In addition to these declarations, he sought "any other remedy which the Court consider appropriate in the circumstances." The appellant alleged that he was a Minister in the Government of Seychelles first from June 1977 till June 1979, and subsequently under the Constitution of the Republic of Seychelles, from June till November 1982. main grievance which led to the proceedings in The the Constitutional Court is that the National Assembly passed Act of 1993, the Ministerial Emoluments Act, 1993, assented to and enacted on 22nd October 1993, which provides that -2- Ministers shall receive a gratuity but which excluded the petitioner of right and entitlement to such gratuity by excluding 69(5) of him the from the definition of "Minister" in Article present Constitution. It is contended in paragraphs and of the appellant's petition respectively: "12. National petitioner's exercise accordance Constitution; Assembly said That in passing Act 3 of 1993, the the to its in with Article 85 of the present failed power legislative contravened has right and of 13. result a the That contravention interest the of persons seriously continuing and passing of time." as by of the petitioner, he prejudiced, the said National Assembly, and that been is the have prejudice with such aggravated represents is background to the presentation The petition contains the petitioner's narration of of Act No. 3 of 1993, but this appeal does not concern the merits of the petition It by their answers to joined issue on the material facts pleaded and as the since it suffices the did not at all accept that the contention contained in paragraphs 12 and 13 quoted above is valid. observe that the respondents to rehearse the background of the appellant necessary petition, facts. not to the that route taken the it As this appeal is concerned by petition, of along sometime in July 1994 or thereabout, procedural dismissal landmarks petition, applied order Constitutional documents in inconclusive on 25th October 1994, the Constitutional in the main with the Court to the Constitutional is expedient to set out the After he had filed an amended the petitioner by a motion on notice sometime in October 1994 for an the and produce certain but extensive an the propriety of the application Court said: Renaud to possession. Bernadin Commission, discussion disclose Chairman against route. Esq., After his of of ~. us you that satisfy for and authority of the Constitution "If you necessary relevant provisions appropriate in be the the If then he will not make an order." yes, they are cite or law, we will make the order that will have to light of what we have to say. other side satisfies us otherwise that you but the of When the matter came up again on 14th February 1995, it was with an opening request by the Constitutional Court to the appellant to satisfy it whab Article of the Constitution has -3- been contravened or is likely to be contravened. The Court went on to say: find that the petitioner us that there has been "We satisfy contravention discussion Commission. us been affected is properly brought before this Court." Constitutional Unless Mr. Servina satisfies has be and I do not think this matter any article of the Constitution he has failed to any breach or the in said contravened by anything the going or at that it, is to After some further remarks, the court said: have "We you what satisfied Constitution go have Constitution under to already our position any studied and we have told We are not the If we been contravened. Article 85 which says (quote) you this show is. article that has article what of us of has not been complied with." After that: yet further discussion during which Mr. Hodoul remarked "Evidence will be adduced," the Constitutional Court reiterated its earlier position that the appellant had failed to satisfy the court that any article had been contravened. Notwithstanding this apparently conclusive pronouncement made, at least for a third time, in the course of the proceedings, the Constitutional Court gave counsel for the appellant two weeks to make written submissions. Counsel for the appellant submitted a written submission to the Constitutional Court in which he showed the article of the Constitution he alleged had been contravened and in what regard in relation to him. At the end of his submission he submitted: that Court Justice requires ".... Honourable the itself contravention right, has submitted in his petition." on the merits of interpretation the this and pronouncing and as of hears the petitioner petitioner parties before other which that When the matter came before the Constitutional Court again on 14th March 1995, it was noted that Mr. Hodoul, counsel for the petitioner" had filed his submission. Mr. Renaud, -4- counsel for the 1st respondent at the Constitutional Court was initially of the view, but later resiled from that view that there was "a case for the Court to hear oral address." The Constitutional Court however reserved its ruling on the question whether there was a proper case made out by the petitioner to invoke the jurisdiction of the court. On 9th May 1995, the Constitutional Court gave a ruling dismissing the petition on two main grounds: first, that "the petitioner's failure to plead that any particular provision of the Constitution has been contravened, is fatal to his application made in pursuant to Article 130 of the Constitution"; and, secondly, that Article of the Constitution refers only to present and future holders of office of a Minister. Three grounds have been argued against the decision of the Constitutional Court on his appeal as follows: The the "1. that any contravened has failed to disclose a prima facie case. learned Judges were wrong to hold appellant had failed to plead that particular provision of the Constitution pleadings been the and 2. adopted proper case. The Learned Judges were wrong to have a hearing and fair determination of the conducive procedure not to a were a prima 3. Having found that the pleadings did not the learned case, wrong to have proceeded to make of fact, assertions Court" for the the the disclose Judges "a careful and purpose matters in issue." examination before submissions of finality "seeking facie to a There being, obviously, merit in each of these grounds and having regard to the clarity of their contents, it is not necessary to rehearse the submissions made thereon by counsel on behalf of the appellant in any detail. The argument of counsel on behalf of the respondents has been largely to show that on a proper interpretation of the relevant provisions of the Constitution, the appellant's petition -55- lacked merit. It was argued by counsel for the Attorney-General that the Constitutional Court had to satisfy itself that the allegations made by the petitioner are substantial and that that was what the Constitutional Court did. It is evident from the grounds of appeal that this Court is not now called upon to pronounce on what the proper interpretation of the word "Minister" in Article 69(5-) of the Constitution is or whether on a proper interpretation of that article, the petition could be sustained. What this appeal is concerned with are whether the Constitutional Court did not misconceive the contents of the petition and whether it should have dealt with the issue 0f substance ut that stage of the proceedings when interlocutory application the for matter before it was certain documents to an be produced and without hearing the parties on the substantive issues. A careful reading of the petition shows that there is much substance in the criticism of the view held by the Constitutional Court that the appellant had failed to plead that any particular provisions of the Constitution have been contravened. The case of the appellant, put in nutshell, is that Article 69(5) of the Constitution requires the legislature to prescribe by an Act such salary, allowances and gratuity which a Minister shall receive; that he is a "Minister" whose gratuity should be so prescribed; and, that the Ministerial Emoluments Act, 1993 which deprives him of right and entitlement to such a gratuity by excluding him from the definition of "Minister" is a contravention of his rights. The appellant's case as contained in the petition rested on the interpretation of the word "Minister" in Article 69(5) of the Constitution. With greatest respect to their Lordships of the Constitutional Court, it is difficult to agree with them that there was a failure to plead that any particular provision of the Constitution has been contravened. It is evident that if the petitioner is a "Minister" whose right to receive gratuity is declared by -6- , - Article 69(5) of the Constitution an Act which deprives him of that right will be in contravention of the Constitution. The fact that there may be a credible dispute as to the meaning of "Minister" in Article 69(5) should not lead to the conclusion that the petitioner had not pleaded a contravention of the Constitution. The third ground taken by counsel for the appellant which merely reinforces the first ground, exposed an apparent contradiction in the reasoning of the Constitutional Court. If that Court was right in the view it held that the appellant had failed to plead that any particular provisions ~, of the Constitution have been contravened, then there would have have been no issue to pronounce upon and the petition should been struck out. But the Constitutional Court went further "to determine the contravention alleged by the petitioner." Their Lordships of the Constitutional Court clearly and rightly appreciated the contravention alleged by the appellant when they said: is of no "There No.3 petitioner article 3(2) of Act No.3 of 1993?" doubt that section 3(2) of Act interests of the affects the provisions of (were) by section contravened the do 69(5) being but They went on to determine that question by holding the view that "the Constitution nowhere provides for interpretation that a Minister includes an ex-Minister," the and proceeded to reason why "Minister" should be interpreted as meaning present and future holders of office of a Minister. It in is not for this court to say now whether they were right their interpretation or not. That the Constitutional Court went on to determine the substantive question raised by the petition shows that they were in error in the view they held that there was no contravention alleged on the pleadings. The second ground of appeal raised the question of -7- the procedure adopted by the Constitutional Court. It was argued that it was prejudicial to "a proper hearing and fair determination of the case." Having regard to the course which the proceedings took, already narrated at some length earlier in the judgment, it is difficult not to uphold the contention of the appellant on this ground. Some of the defects in the procedure which appear not conducive to a proper and fair hearing of the petition can be briefly enumerated. First, even though the matter immediately before the Constitutional Court was an interlocutory application for production of certain documents, that court instead of confining ~tself to dealing with that applicatio~ proceeded to dismiss the substantive petition. Secondly, several remarks made in the course of the interlocutory proceedings showed that that court had already predetermined the substantive appellant) was matter heard. even before the petitioner (now Thirdly, reading the entire proceedings, it was not clear what the petitioner was called upon to satisfy the Constitutional Court on at that stage. The proceedings of 14th February 1995, showed that initially that Court wanted the appellant to show what article of the Constitution has been contravened but later he was required to satisfy that court that any article of the Constitution has been contravened. In the course of the proceedings on the same date that court had already ruled, without hearing the parties on the question, that: "there 1. S no contravention of any former Minister's rights under the Constitution." Later when Mr. Hodoul said: "May I be allowed to submit that this is a question of interpretation which this court will be asked to study and pronounce itself on. " The Constitutional Court stated: "We had already studied and we have told you what our position is. We are not satisfied that any article of the Constitution has been contravened." After the Constitutional Court had repeatedly stated that the appellant had failed to satisfy it that any article of the -8- Constitution has been contravened, the permission given to the appellant to make a written submission if he wanted to must appear to an objective observer as a mere effort to satisfy the importunity of the appellant's counsel. The petitioner in his submission at the Constitutional Court explained that the issue before the Constitutional Court in the substantive petition was to pronounce on the correct interpretation of the word Minister in Article 69(5) of the Constitution and concluded with a submission which hears repeating, that: "... .... Honourable other the interpretation on the contravention petitioner, right, has submitted in his petition." the justice Court petitioner and parties before pronouncing itself and as of requires the matters which hears that the of One of the requirements of fair hearing is that the parties should have an opportunity of presenting argument on the matter at issue before the court or tribunal decides. Argument presented after the court had already decided the issue would not satisfy that requirement, nor would such requirement be satisfied when the court on its own formulates the issue on which it calls for argument in an uncertain manner. To determine a case finally when the stage in the proceedings has not been reached for such determination and prematurely, in the course of interlocutory proceedings without notice to the aggrieved party that the court was in the process of determining the substantive issues in question would not only be procedurally irregular but also would be contrary to the principles of fair and proper hearing. The right regardless substance. to of be heard is a right which inheres in a party whether what he would say is with or without The duty of the court is to hear the parties, particularly the party likely to be aggrieved by its decision before it decides, barring proceedings which are permitted to be ex parte. It is unnecessary to speculate what materials and arguments the appellant, were he given the opportunity, -9- might have been able to place before the Constitutional Court to convince their Lordships of that Court that the word "Minister" should Ministers. What be is construed as including former important is that the Constitutional Court should not have deprived the appellant of that opportunity. Need more be said! The conclusion seems to follow inexorably Court was that open the procedure adopted by the Constitutional to criticism. In the result, this appeal succeeds on all the grounds urged on behalf of the appellant. We would allo~ the appeal and set asi~e the order of the Constitutional Court dismissing the petition and order that the petition be remitted to the Constitutional Court to be properly heard. There would be no order as to costs. Dated this / ur l)j)!vC~ day of~Y, 1996. ....................... (H. GOBURDHUN) PRESIDENT ...................... (E. O. AYOOLA) JUSTICE OF APPEAL