Moulinie v Government of Seychelles & Anor (CP 11 of 2011) [2012] SCCC 2 (7 May 2012)

Key Facts

Issues

• The court addressed whether the Government of Seychelles was obligated to return land compulsorily acquired in 1980 and 1987 to the petitioner under section 14(1)(a) of the Constitution, which requires return of land not developed or with no government plan for development. The petitioner argued that the Government's failure to return the land constituted a constitutional violation, while the Government claimed the land was developed and offered monetary compensation instead. The court held that development must be actual improvement, not mere use, and ordered return of parcels V5318, V5319, and V5320.
• The court dismissed the petitioner's claims for 4% annual interest (from 1995) and loss of rent (R15,000/month for 15 years) as unsupported by evidence. Section 14(3) of the Constitution explicitly prohibits interest on compensation unless in special circumstances, and no evidence substantiated the rent claims.
• The court determined that compensation for land not returned must be calculated at the market value as of June 1993 (when the Constitution came into force) unless otherwise agreed. The petitioner's claim for current market value was rejected due to lack of evidence and constitutional wording.
• The court interpreted the term 'development' in section 14(1)(a) of the Constitution, rejecting the Government's argument that use (e.g., housing expatriates or community courts) without physical or structural improvements constitutes development. It ruled that development requires progressive changes for public or economic benefit, not just functional use of the land.

Holdings

• The court ordered the return of parcels V5318, V5319, V5320, and the remainder of PR13 to the petitioner, as these properties were not developed between the date of compulsory acquisition and the application for return. The court held that the Government's failure to return these parcels constituted a violation of the petitioner's constitutional rights under section 14 of Part 3 of Schedule 7 of the Constitution.
• The court directed that compensation for parcel V5317 be determined at its 1993 market value through a valuation process involving appointed valuers, as the parties could not agree on its value. The court emphasized that compensation should be calculated based on the market value at the time the Constitution came into force unless otherwise agreed.
• The petitioner's claims for interest on compensation and loss of damages were dismissed. The court ruled that interest was not mandated by the Constitution and that the petitioner failed to provide sufficient evidence to support the damages claim.

Remedies

• The court ordered the return of the remainder of Parcel PR13 to the petitioner and compensation for the portions transferred to third parties. Monetary compensation for Parcel V5317 was to be agreed upon by parties or determined by appointed valuers. Parcels V5318, V5319, and V5320 were to be returned to the petitioner. The claim for interest and loss/damages was dismissed, and costs were awarded to the petitioner.
• Monetary compensation for Parcel V5317 and part of PR13 was to be calculated at the 1993 market value unless otherwise agreed by the parties. If disagreement arose, valuers were to assess the value via a majority vote process.
• The court dismissed the petitioner's claim for interest at 4% per annum from 1995, citing constitutional provisions that do not mandate interest unless in special circumstances.
• The petitioner was awarded costs of the litigation, as both judges (Egonda-Ntende CJ and Dodin J) agreed with the judgment in favor of the petitioner.
• The claim for loss and damages, including alleged rental losses, was dismissed due to insufficient evidence provided by the petitioner to substantiate the claims.

Legal Principles

• The Purposive Approach was used to determine the intent of the constituent assembly in section 14, focusing on addressing past injustices by returning land that remained undeveloped post-acquisition.
• The court applied the Literal Rule in interpreting section 14 of Part 3 of Schedule 7 of the Constitution, emphasizing the plain language of the provision and rejecting judicial reinterpretation of 'undertakes' as discretionary.
• The court held that the Government must negotiate in good faith under section 14(1)(a) for the return of undeveloped land or compensation, rejecting the Government's failure to explore return options before proposing monetary compensation.
• The petitioner failed to meet the burden of proof for monetary compensation claims, as no reliable evidence (e.g., valuation reports) was adduced to support the amounts claimed for sold parcels or loss of rent.

Precedent Name

• Lise du Boil v Government of Seychelles and others
• John Atkinson v Government of Seychelles and Attorney-General

Cited Statute

• Land Acquisition Act 1977
• Constitution of Seychelles
• Land Registration Act

Judge Name

• Burhan J
• Dodin J
• Egonda-Ntende CJ

Passage Text

• The value of the land acquired shall be the market value of the land at the time of coming into force of this Constitution or such other value as may be agreed to between the Government and the person whose land has been acquired.
• I am satisfied that the petitioner has made out his case and I would order the return of properties V5318, V5319 and V5320 to the petitioner.
• Holding onto a property without doing anything extra to improve or change it in terms of the exceptions allowed by article 26 does not amount to development in the true sense of the meaning of the provisions of the Constitution.