CONSTITUTIONAL COURT OF SEYCHELLES

Reportable [2020] sccc q.f6 CP 07/2019

In the matter between

ASSEMBLIES OFGOD Petitioner (rep. by Mr. Anthony Derjacques)

------~And ------

THE ATTORNEY GENERAL

(representing the Government of Seychelles) 1st Respondent (rep. by Mr. George Thachett)

THEATTORNEY GENERAL 2nd Respondent (rep. by Mr. George Thachett)

CHANTAL ROSE 1st Intervener (rep by Basil Hoareau)

WILLIS LESPERANCE

(rep by Basil Hoareau) 211<1 Intervener

1 Neutral Citation: Assemblies of God \I Attorney General (CP07/20 19) [2020] SCCC 0(:;-622 December 2020 Before: Govinden cr, Burhan J and Dodin J

Summary: Constitutional law: A declaration that the decision of the 15t and 2nd respondents, that the petitioners said project stands cancelled, contravenes Article 26 (1) of the Constitution with respect to the Petitioner etc: claim of infringement of right to freedom of conscience and religion, and right to property: whether or not the refusal to approve building plans constitutes an infringement of these rights: three preliminary objection raised by Attorney General: first two objections upheld, namely, that the petition was filed out of time without any application requesting leave to file the petition out of time; the court is not empowered to grant leave where

none has-been-sought: the-second-o b-jeet-iOn,-n.amoly-that-the j3etition€f.S-.-ha\le--aI~I----_ alternative remedy injudicial review upheld. The petition is dismissed.

Heard: 15th September 2020 Delivered: 22 December 2020

ORDER

In the circumstances, the following order is made:

(a) The first and second objections by the Attorney General are upheld.

(b) The petition is dismissed

(b) No order is made as to costs.

2 JUDGMENT OF COURT

BURHAN J (Govinden CJ and Dodin J concurring)

unsuccessful requests to Government to get tlie land exchangecnor one situated in a mixed use designated area.

[2]In keeping with its goal to build a church at Baie St Anne, the Assemblies submitted building plans to the Planning Authority on 25 August 20 16. This application was rejected on 20 December 2016, on the basis that the proposed development would lead to noise pollution to the disadvantage of neighbouring properties, and that the parcel in question was earmarked solely for residential use. In the rejection letter, the Assemblies was informed that it could appeal the decision with the Minister within 30 days.

[3] The Assemblies appealed this decision with the Minister of Land Use and Habitat on 18 January 2017, stipulating, inter alia, that they had operated the church in a corrugated shed for over 12 years with no formal complaint about noise pollution from the police or Environment Department. They stated that the building material they intended to use would reduce noise pollution and so noise would be controlled. They also highlighted the many other churches in Seychelles that had been granted permission to build in highly populated residential areas before, whereas the closest house to their plot was well over five meters away and the adjacent plot was separated from theirs by a wall over 1.8 meters high. Based

3 on these and other representations, they submitted that the reasons for refusal of their plans were unfair and showed that no appraisal was done of their application.

[4] On 29 May 2017, the Minister dismissed the appeal. No reasons were provided for the dismissal. The refusal letter simply stated: "your appeal was considered by the Minister under the powers vested in him by the Town and Country Planning Act. The Minister consulted on the issue with persons appointed by him to inquire in the matter. However .. ... the Minister has upheld the refusal of the application. "

[5] It appears that engagements followed between the Assemblies, Planning Authority and the Ministry regarding the possibility of the Assemblies submitting a new application with a sound proof design after the appeal was dismissed. This is reflected in a letter from the Planning Authority to the Assemblies dated 21 January 20]9. However, this application

~-.::~==------was-Ret-.fGl:tAGem.I.I+g-aJ:l .-t. e-~l;)l:~e£-Co.n.tul,u.e w..iI~cl:LSeL~In rlIeiener, the Planning Authority suggested that the church services were being operated illegally. Planning Authority also informed the Assemblies that it had received "many complaints" of unacceptable noise levels. The Planning Authorities put the Assemblies on terms, stating that it had 30 days within which to submit a fresh application to build a church on the plot. The letter further demanded that "all noise levels be reduced to an acceptable level" and warned that "failure to comply ... will result in immediate closure of all non-residential activities" on the parcel.

[6] After this letter, the Assemblies lodged the current petition against the Ministry of Habitat, Infrastructure and Land Transport together with the Town and Country Planning Authority, the respondent, represented in these proceedings by the Attorney General, seeking to enforce their religious and property rights.The petition was filed on 19 April 2019.

The Petition

[7] 1n the petition, the Assemblies alleged that their right to property under Article 26(1) and its right to freedom of conscience under Article 21(l) had been contravened by the respondent. In particular, that the respondent's refusal to approve the building plans it had

4 submitted on August 2016 and dismissal of their appeal on 27 May 2017 prevent them from:

(i) peacefully enjoying its property in an appropriate, dedicated and official church and church premises;

(ii) developing its property and pursuing the build project;

(W) providing its congregation with a properly built area for peaceful worship, contravening their right to manifest, propagate, worship, teach, practice and observe their religion.

[8] The Assemblies also complained that the respondent's acts and decision were discriminatory because other denominations had been granted permission to construct their lm1·ch~S"illhi-glrlY1Yuputate·d-aTea:s:-T-trey:cited.,amongst-others;-a-mut)e-sgae-Beeu-Fend~---• Lane at Mont Fleuri, Mahe; the Baha'I Community Centre at Anse Boileau; the Roman Catholic Church at lie Perseverance, Mahe.In the Assemblies' view, the respondent's decision was discriminatory because they conducted activities and services in the same manner as some of these denominations.

[9] In addition, the Assemblies alleged that the respondent's decision was arbitrary, irrational, harmful and had no legal basis.This is no doubt a complaint properly made in judicial review proceedings, and not in petitions of this kind. The Assemblies prayed for the following orders:

"(a) A declaration that the decision of thefirst and second Respondentsthat the petitioner's said project stands cancelled, contravenes Article 26(1) of the Constitution with respect to the Petitioner;

(b) A declaration that the decision of thefirst and second respondents, as stated on 20 December 2016, with respect to cancelling the said project and withholding permission, contravenes Article 26(1) and 21(1) of the Constitution, with respect to the said Petitioner;

(c) An Order compelling thefirst and second Respondentsto consider and consent and consent and allow the Petitionerto develop the said project;

5 (d) Any Order that may meet thejustice of this case;

(e) An Order of special damages in the sum of SRSOO000 and costs to the Petitioner."

[10] On behalf of the respondent, the Attorney General filed a defence to the petition raising three objections and responding to the merits.

The Preliminary Objections

[11] In the first objection, the Attorney General submitted that the petition was barred by prescription as set out in Rule 4 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules and the Petitioner had not sought leave of the court for filing the petition out of time. fl2J---In the second-preliminary object-tcn-,tfie-AttorneyGeneral-submits that-the-Assemblies bavec------not availed adequate means of redress available under law. In this regard, it stated that the refusals of both the planning application and the appeal were lawful and justified, and became final, and that the Petitioner has not challenged these in any forums within statutory time limits. In essence, the Attorney General's view is that the Assemblies was supposed to file judicial review proceedings to unsettle the refusal of its appeal.

[13] In the third objection, the Attorney General averred that there is no violation or likely contravention of any of the Petitioner's constitutional rights and that no prima facie case of breach has been established.

Regarding the merits

[14] The Attorney General agreed with the Petitioner's version regarding the background resulting in the petition. However, in respect of the refusal of the application and appeal, the Attorney General submits that the refusal was justified. The Attorney General also alleges that the Petitioner is guilty of noise pollution and has continuously contravened an enforcement notice issued by the Planning Authority.

[15] The Attorney General denies the claim of breach of the Petitioner's right to property and freedom of conscience. According to the Attorney General, the Petitioner's right to develop

6 or enjoy its property and to exercise its freedom of conscience in accordance with the law, in a suitable place is well established, but it has to do so in a manner that does not infringe the rights of others.Further, the Attorney General has denied that the refusal was discriminatory, irrational or arbitrary. The refusal of the planning application was taken after wide consultations in the area, and with various authorities. Accordingly, the Attorney General has requested that the petition be dismissed.

[16] This court by its order dated 26th November 2019, permitted two persons residents of Praslin Chantal Rose and Willis Lesperance to intervene in this application. They too filed a statement of demand containing objections and made submissions through their learned Counsel Mr. Hoareau.The main contention of the interveners are that their rights under articles 26(1) right to peaceful enjoyment of their property, article 29 (1) right to protection ______o_f_h_e_altandh article 38 right to live in a clear and healthy environment of the Constitution ------are being infrirrged due to the noise pollution and nuisance caused-by-the Petitioner when-• conducting its services. The interveners in their statement of demand move that the petition is frivolous and vexatious and should be struck out as it is an abuse of process and should be transferred for judicial review.

Analysis

[17] Two charter rights are implicated in the petition. The right to freedom of conscience, which is contained in Article 21 of the Constitution. This provision reads:

"Freedom of conscience."

(1) Every person has a right to freedom of conscience and for the purpose of this article this right includes freedom of thought and religion, freedom to change religion or belief andfreedom either alone or in community 'withothers and both in public and in private, to manifest and propagate the religion or belief in worship, teaching, practice and observance. (2) Thefreedom to manifest and propagate a religion or beliefmay be subject to such limitations as may be prescribed by a law and necessary in a democratic society

(a) in the interests of defence, public safety, public order, public morality or public health; or (b)for the purpose of protecting the rights orfreedoms of other persons. "

7 [18] Second, the right to property which is in Article 26. It reads, in relevant parts:

"Right to property

Every person has a right to property andfor the purpose of this article this right includes the right to acquire, own, peaceful!y enjoy and dispose of property either individually or in association with others.

(2) The exercise of the right under clause (1) may be subject to such limitations as may be prescribed by law and necessary in a democratic society-

(a) in the public interest;

(b)... "

[T~Slnce-tI1eAUomey Generalancl-rl1etff~JteTS""""lrave-mts·e·ct-p:reiiminaTr(Jbjectiuns~t-i~---• incumbent on this court to address these objections.As mentioned above, in the first objection, the Attorney General claimed that the petition challenging the refusal of the planning application is barred on account of Rule 4 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution)Rules and the Petitioner, in that the Petitioners had not sought leave of the court for filing the petition out of time. Rule 4 reads:

"Time for making application

4. (1) Where the petition under rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry o(the Supreme Court -

(a) in a case o{an alleged contravention, within three months o[the contravention;

(b) in a case where the likely contravention is the result of an act or omission, within three months of the act or omission;

(c) in a case where the likely contravention arises in consequence of any law, within three months ofthe enactment of such law

8 (2) Where a petition under rule 3 relates to the application enforcement or interpretation of any provisions of the Constitution, the petition shall be filed in the Registry of the Supreme Court within 3 months of the occurrence of the event that requires such application, enforcement or interpretation.

(3) Notwithstanding subrules (1) and (2), a petition under rule 3 may, with the leave o{the Constitutional Court, be filed out of time.

(4) The Constitutional Court may, [or sufficient reason, extend the time [or filing a petition under rule 3."

(own emphasis.)

[20] In Darrel Green v Seychelles Licensing Authority and Government of Seychelles CA ------

"Rule 4(3) permits a petition under rule 3, with leave of the Constitutional Court to be filed out of time; and, rule 4(3) empowers the Constitutional Court, for sufficient reason, to extend the time for filing a petition under rule 3. These provisions are straight forward and unambiguous in their terms. A person who alleges a contravention ofa provision of the Constitution is as of right entitled to file his petition within 30 days of the contravention. He is permitted to do so outside the prescribed period only if he obtains leave of the Constitutional Court.

The Constitutional Court may grant such leave not as of course but onl)/if the applicant shows sufficient reasons to ;ustifv an extension of time. Nothing in these provisions empowers the Constitutional Court to act suo motu and grant leave where none has been sought and where facts have not been deponed to before it showing "sufficient reasons" to extend time .... Throughout the proceedings the jurisdiction of the Constitutional Court to grant leave had not been invoked by any application duly made." (own emphasis)

[21]The relevant date for the commencement of the three month time period for filing an application under Rule 4 (1) of the Constitutional Court Rules is the date on which the Petitioneracquired knowledge of the alleged contravention and not the date of the alleged

9 contravention itself. See Mellie v Government of Seychelles & Ano. (CP 4/2018) [2019] SCCC 05 (25 June 2019) para 35 citing Hoareau v Government of Seychelles SCC 3/1998.

[22] In the context of leave to appeal filed out of time, the Court of Appeal in Tarnecki v R SCA 4/1996 LC 89 stated that:

"Before a Court would allow an extension of time for leave to appeal it must be satisfied that there is good and sufficient cause for the delay. The longer is the delay the more onerous is the burden on an applicant. "

[23] The above is equally applicable to constitutional petitions.See Mellie v Government of Seychelles & Ano supra, paras 31-32.

["2-4jITO ttl trre-aho'1'e:-the-f-oHcw-i-lts-g-eleai l':-A--Peht:i0f1er--A-as4hFe@-A'l0A-t~}S-wj.t;H-i·Fl-wl:J~Gf.}.:tQ:al·~---• a petition in this court for any contravention of rights. The relevant date for the commencement ofthe three month time period for filing an application is the date on which the Petitioner acquired knowledge of the alleged contravention, and not the date of the alleged contravention itself. Should a Petitioner miss the three month period, and file a petition outside the three month period, they have to seek the court's permission to do so. In other words, they have to obtain leave of the Constitutional Court. The Constitutional Court may grant such leave if the applicant shows sufficient reasons to justify an extension oftime: the court must be satisfied that there is good and sufficient cause for the delay. The longer the delay the more onerous is the burden on an applicant. The court is not empowered to act on its own and grant leave where none has been sought and where facts have not been deponed to before it showing sufficient reasons to extend time.

[25] The Assemblies filed the petition on 19 April 2019. The basis of the petition was in particular, that the respondent's refusal to approve the building plans it had submitted on August 2016 and dismissal of their appeal on 27 May 2017 prevent them from: (i) peacefully enjoying its property in an appropriate, dedicated and official church and church premises; (ii) developing its property and pursuing the build project; (iii) providing its

10 congregation with a properly built area for peaceful worship, contravening their right to manifest, propagate, worship, teach, practice and observe their religion.

[26]It is clear that the basis for petition is Planning Authority's refusal to approve the building

plans, and the subsequent dismissal of the appeal by the Minister. The main thrust of the petition is that these decisions have breached their rights to property and religion. The

question is whether the Petitioner has lodged the petition within three months of the last

decision, i.e., the appeal decision, as is required by Rule 4(1) of the Constitutional Court

(Application, Contravention, Enforcement or lnterpretation of the Constitution) Rules

(Constitutional Court Rules).

[27] As mentioned in para 4 above, the appeal decision was given on 29 May 20] 7. It is clear from the pleadings that the Assemblies were notified of the decision and became aware of ~------I··t-at-that-ti.I~:j€.-T-. us,iI-the..y-l:ulcCW-lesilo-cwLenge_tJIaCde.clS10n in this court, theyjrad------three months from that date to do so. This means a petition, if appropriate, should have been delivered by 29 August 2017. The petition was filed on 19 April 2019, more than 19 months out of time. This is clearly an excessive delay. The letter from the Planning Authority to the Assemblies dated 21 January 2019 has no relevance in calculating the period for filing the petition, as the basis of the petitioner's claim is the refusal of their building plans by Planning Authority, which decision was made final when the appeal was

dismissed on 29 May 2017. lt is our considered view that the letter dated 21st January 2019 is not relevant in calculating the period for filing the petition.The relevant date is 29 May 2017.

[28] Over and above this delay, the petition was filed without seeking any leave from the court to condone the late filing as is required by Rule 4(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules. As stated in Darrel Green v Seychelles Licensing Authority and Government of Seychelles supra, there is nothing in Rule 4 which empowers the Constitutional Court to act suo motu and grant leave where none has been sought and where facts have not been deponed to before it showing "sufficient reasons" to extend time.

11 [29] The petition has clearly been filed out of the three month period provided for, and since the Assemblies did not seek leave to extend the period, this court may not of its accord grant it. Accordingly, the objection raised by the Attorney General in regards the time bar in Rule 4 is upheld.

[30] This leads us to the second objection raised, which is that the Assemblies have not availed adequate means of redress available under law.The Attorney General has submitted that the refusals of both the planning appl ication and the appeal were lawful and justified, and became final, and that the Petitioner has not challenged these in any forums within statutory time limits. In essence, the Attorney General's view is that the Assemblies was supposed to file judicial review proceedings to unsettle the refusal of its appeal. The question therefore is whether the Assemblies were required to file judicial review proceedings to impugn the appeal decision, rather than petitioning this court. ------

[31] In the present matter, the Petitioner has a remedy to seek leave with the Supreme Court to judicially review the dismissal of their appeal by the Minister. The Minister was performing an administrative action, which may be challenged by way of judicial review. The Assemblies seem to appreciate this, because in their petition, they have stated that the respondent'S decision was arbitrary, irrational, harmful and had no legal basis. These are complaints properly made in judicial review proceedings. Hence, the Assemblies have a legal remedy under judicial review.

[32] Furthermore, it is trite law that a decision by an administrator remains extant until it is set

aside by a COUlt in review proceedings: "until the Administrator's [decision] (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked". See Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (4112003)[20041 ZASCA 48; [2004] 3 All SA 1 (SCA) (28 May 2004) paras 26-31. Accordingly, the second objection is upheld. The Assemblies have an alternative remedy injudicial review.

[33] It would be pertinent at this stage to refer to article 46 (4) of the Constitution which reads as follows:

12 "Where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law."

[34] This court has the option to either hear the matter or transfer it to the appropriate court where an alternative remedy is available. However a court must exercise caution in referring matters to other courts due to the varying nature of proceedings within the different courts. For instance, injudicial review proceedings, a Petitioner first needs to seek leave under rule 5 of the Supreme COUl1Rules before they can proceed to have their merits heard. In addition, there are also time limitations in judicial review, which may of course ____ ~ be extended on application. See Rule 5 of the Supreme Court (Supervisory Jurisdiction ------over Subordinate Courts, Tribunals and AdjuEIicatmg-Authonttes) Rules.BuLthese are all ___ processes specific to the review court.

[35] It is to be borne in mind that all these processes have to be determined specifically by the review court not the Constitutional Court. Further as set out above the time limitations exist even injudicial review matters as well and to circumvent all these issues and for this cOUl1 to transfer the matter to the Supreme Court could result in injustice to parties specially in this instant case which has already been decided to have been f led out of time in the Constitutional Court. In this instant case unlike the case of Assemblies of God v Attorney General SCCC 06/2019, direct transfer by this court to the Supreme Court to review this case would not be possible as this court has come to the finding and upheld an objection by the first respondent that this petition is out of time.

[36] For the aforementioned reasons this court is inclined to follow the approach in Germaine Amesbury v Chief Justice Constitutional case No 6 of 2006, the Petitioner should seek to set aside the decision of the Minister in judicial review proceedings before the Supreme COUlt.We observe that the Constitutional C01ll1Rules provide guidance and guidelines in referrals to the Constitutional Court but the Constitution, the Rules and the Code are silent on transfers under Article 46(4) of the Constitution. The Petitioner if seeking judicial

13 review should have regard to the time limitations and the possibility of getting that extended in terms of Rule 5 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules.

[37] It would be pertinent to mention at this stage that there is also the option that was canvased during the oral arguments before us, which is that the Petitioner make a fresh application with amended building plans which would allay the claims of noise pollution by the interveners. During proceedings, the interveners indicated that they would take no issue with a sound proof building to block out the noise. There had been engagements between the Assemblies, Planning Authority and the Ministry regarding the possibility of the Assemblies submitting a new application with a sound proof design after the appeal was dismissed, but the new plans and application have not been forthcoming. However, during

---- -Lroceedings ~____before us, the Assemblies agreed that they would submit a new__ application __ witlra sound proof design-. -

[38] 1n light of the finding regarding the aforementioned objections to the effect that the Petitioner's application is out of time and the Petitioner has an alternative remedy under judicial review and the agreed option contained in the above paragraph 37 herein, it is unnecessary to proceed further and determine the other objections raised.

[39] Tnthe circumstances, the following order is made:

(c) The first and second objections by the Attorney General are upheld.

(d)The petition is dismissed

14 (b) No order is made as to costs.

Signed date and delivered on this at lle du Port on 22 December 2020

\ ' \ I '

Govinden C] Burhan J

15