Wilkins v Government of Seychelles (SCA 403 of 1992) [1997] SCCA 13 (25 April 1997)

IN THE SEYCHELLES COURT OF APPEAL YVETTE CRUISE-WILKINS • • •• •• APPELLANT -- v ; GOVERNMENT OF SEYCHELLES ATTORNEY-GENERAL •• •• •• RESPONDENTS CIVIL APPEAL NO. (BEFORE: SILUNG~vE, AYOOLA, ADAM JJ. A.) MR. P. BOULLE FOR THE APPELLANT MRS. A. G. ANTAO, STATE COUNSEL, FOR THE RESPONDE-Nt \ JUDGMENT OF THE COURT (DELIVERED BY AYOCLA, J. A.) By her petition before the Constitutional Court, Mrs Cruise-Williams, "the Appellant" prayed for the following reliefs:- 1. 2. 3. that the decision of A declaration the Government not to negotiate and its failure to negotiate with her, is rights a violation of the appellant's under section 14 Part III of Sechedule 7 to the Constitution ("Schedule 7") An order of certiorari decision; and to quash the A declaration to have the land transfered back to her or that the appellant is entitled such other remedies as she may be entitled to under section 14 of Schedule 7. By Article 130(1) of the Constitution of the Republic of Seychelles ("the Constitution")~ "A person who alleges that any provisions other than a of this Constitution provision of chapter III has been contravened is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional and that the person's interest Court for redress." Paragraph 14(1) of Sechedule 7 provides that:- "The State undertakes to continue to consider all application made during the period of twelve months from the date of coming into force of the constitution by a person whose land was compulsorily under the Lands Acquisition Act 1977 during the period starting June, 1977 and ending on the date of coming into force of this Constitution and to negotiate with the person with a view to certain stated objectHtlfs." acquired The facts on which the appellant relied for her application were that the Government of Sey~helles <ttthe Government") on 22nd February 1980 compulsorily acquired a portion of land surveyed as parcel No. J96 situated at Bel-Ombre, Mahe which was owned by her, she having acquired it by virtue of a "Promisse de Vente" with the previous owner, Mr. David Newling Ward, at an agreed price of R140,OOO payable on the day of execution of the Deed of Sale. It is common ground that at the date of compulsory acquisition she had not paid the purchase price. On 17th May 1994, the appellant lodged an application under the Constitution for the reliefs earlier mentioned. On these facts, counsel for the Government raised a "preliminary otjection" that the appellant had no "locus standi" to make the application. He argued that on the facts as pleaded by the appellant she was not "a person whose land was acquired" as the promise to sellon which she relied had not been registered and she had no "interest in land" in terms of section 6(3) of the Land Acquisition Act <Cap 105). By a majority the Constitutional Court upheld the objection Perera, J, with whom Bwana, J. concurred, held that a person who becomes "owner of immovable property by virtue of article 1589 of the Civil Code will only have a putative title until consideration is paid and the ownership is registered.tI The main thrust of Perera, J.ts ruling is that it is only if the appellant was entitled to compensation under the Land Acquisition Act, that she would be considered for relief under Part III of Schedule 7. He reasoned that ~1r. Newling Ward was the person from whom the Government had acquired the land in terms of the Land Acquisition Act. Notwithstanding the provisions of article 1583 and 1589 of the eivil Code, he held that the appellant "with possibly a putative ownership_ based on a promise to sell" was not in the category of persons intended to be compensated either under the Land Acquisition Act or Part III Schedule 7 of the Constitution. He therefore ruled that the appellant had no locus standi to make the application. Amerasinghe, J in his ruling, relying on and applying articles 1583 and 1589 of the Civil Code, held that the appellant had a standing to apply for redress. In a nutshell, the contention of counsel on behalf of the appellant on this appeal from the majority decision is that the decision was erroneous in that erroneous emphasis had been placed on the Land Ac~isition Act in interpreting the provisions of Secedule 7. The response of counsel on behalf of the Government had ranged far and wide touching on the provisions and requirements of the Mortgage and Registration Act (Cap 134) and the Land Registration Act (Cap 107). The sum of the contention put forward on behalf of the Government is that the appellant was not owner of the land in the absence of compliance with requisite provisions of these Acts. The provisions of Article 1583 and 1589 of the Civil Code are now stated, Article 1583 provides:- "A sale is complete between the parties and the ownership passes as of right from the seller to the buyer as soon as the price has been agreed upon, even if the thing has not been delivered or the price paid." Article 1589 provides:- "A promise to sell is equivalent to the acceptance of a promise to a sale if the two parties have mutually agreed upon the thing and the pri~e. However, sell or the exercise of an option to purchase property subject to registration shall only have effect as between or in respect of third parties as from the date of registration." the parties Section 28 of the Land Registration Act (Cap 107) provides: "Notwithstanding any provision contained in any other written law, no land, lease or charge registered under this Act shall be capable of being dealt with except in accordance with the provisions of this Act and every attempt to deal with such land, lease or charge otherwise than in accordance with the provisions of this Act shall be ineffectual to create, extinguish transfer, vary or effect any right or interest in the land, lease or charge." Section 46 of the Land Registration Act (Cap 108) provides: (1) A proprietor may transfer his land, lease or charge with or without consideration, by an instrument prescribed form; in the (2) The transfer shall be completed by registration of the land, lease or charge and filing the instrument." Section 5(2) and (3) of the Lands Acquisition Act (Cap 105) provides as follows:- "6(2) Where, in accordance with section 4(3) an interest in, over or in connection with land is acquired, interest of every person in that land, is on the date of the acquisition, the extent to which that interest is and to ~he affected by the acquisition, into a right to compensation Act. converted under this (3) of the Where any person has, in good faith, made any payment in anticipation purchase of an interest in any land which is acquired under this Act and the interest was not transfered to that person before the date of acquisition, for the purpose of this Act, be treated as if he had an interest in the land being an interest which i~, at the date of acquisition of the land, coverted into a right to compensation that person shall, under this Act." Different consequences result from the application of these statutes. If the Civil Code is applied unaffected by the Land Registration Act, in terms of articles 1583 and 1589 ownership of the land passed when the parties to the transaction agreed to the thing and the price. If the Land Registration Act is applied, one view is that the transfer to be complete must be in conformity with the requisite provisions of the Act. By· the ~rovisions of section 6(3) of the Land Acquisition Act, a person who has not yet become "owner" in terms of the Land Registration Act may nevertheless be entitled to compensation if he has made payment in anticipation of purchase of land acquired under the Act. However, the real question on this appeal is whether the words "a person whose land was compulsorily acquired under the Lands Acquisition Act, 1977" should be construed in terms of the Civil Code or on its own1 terms within the context and intendment of paragraph 14 of Schedule 7 using the Lands Acquisition Act, 1977 as an aid. within that limited context it is not necessary to resolve the apparent conflict in the provisions of the Civil Code and the Land Registration Act, argument over which had dominated the attention of counsel on this appeal. The majority in the Constitutional Court had interpreted the words "a person whose land was compulsorily acquired under the Lands Acquisition Act, 1977" as meaning a person from whom the land had been compulsorily acquired. Counsel for the appellant had strenously questioned that view. At first blush, such interpretation may appear to have placed an undue restriction on those words. However, viewed in the context of the purpose and intendment of paragraph 14 of Schedule 7 that is a correct view. Paragraph 14 of Schedule 7 does not envisage situations in which an applicant in terms of paragraph 14 of Schedule 7 has to go through the process of establishing his ownership of land which has been acquired; or, in which the Government is to be concerned in settling possible rival claims to negotiation in terms of paragraph 14 of Schedule 7. "A person whose land was compulsorily acquired" must essentially, at the time of an application under paragraph 14 of Schedule 7 be an already ascertained person whose ownership of the land acquired or at least, whose right to compensation in respect thereof, had already been settled or is deemed to have been settled within the provisions of and by the mechanism provided by the Land Acquisition Act, 1977. The words cannot be co~rued as if they had been "a person who lays claim to land", or "may be found to be entitled to 'land!! compulsorily acquired. ~vhen the decision of the majority of their Lordships of the Constitutional Court is und~rstood in the light of what is not pronounced to be the correct interpretation of the matenal words, the conclusion that they ar:ived at (per Perera, J): that it was only if the appellant was entitled to compensation in terms either of section 6(1)or '6(2) of the Land Acquisition Act or that the land had been acquired from her t~2t sh~ could be considered for relief under Part III of Schedule 7 is beyond reasonable critism. In the result, the Constitutional Court came to a correct decision when it held that the appellant who had not paid the purchase price had no locus standi to make the application. .••..•. <. For these reasons the appeal is dismissed. Parties shall bear their own costs of the appeal. ~l~ E:. O. AYOOLA JUSTICE OF APPEAL ..•..~-- A. M. SILUNG\tVE JUSTICE OF APPEAL M. A. ADAM JUSTICE OF APPEAL J.v-~- .;....r ~ ~ ~~- ~ ~r ~~-...-L ___.r sc:J-- A·,A.· /~ ~~J. -7-.1I ,f / 51 :;-