1 211<1 Intervener (rep by Basil Hoareau) WILLIS LESPERANCE (rep by Basil Hoareau) 1 st Intervener CHANTAL ROSE 2nd Respondent THE ATTORNEY GENERAL (rep. by Mr. George Thachett) 1st Respondent (representing the Government of Seychelles) (rep. by Mr. George Thachett) THE ATTORNEY GENERAL And ------~ ------ ------- (rep. by Mr. Anthony Derjacques) Petitioner ASSEMBLIES OF GOD In the matter between Reportable [2020] sccc q.f6 CP 07/2019 CONSTITUTIONAL COURT OF SEYCHELLES
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211<1 Intervener(rep by Basil Hoareau)
WILLIS LESPERANCE
(rep by Basil Hoareau)
1st IntervenerCHANTAL ROSE
2nd RespondentTHE ATTORNEY GENERAL
(rep. by Mr. George Thachett)
1st Respondent(representing the Government of Seychelles)
(rep. by Mr. George Thachett)
THE ATTORNEY GENERAL
And------~ ------ -------
(rep. by Mr. Anthony Derjacques)
PetitionerASSEMBLIES OF GOD
In the matter between
Reportable
[2020] sccc q.f6CP 07/2019
CONSTITUTIONAL COURT OF SEYCHELLES
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(b) No order is made as to costs.
(b) The petition is dismissed
(a) The first and second objections by the Attorney General are upheld.
In the circumstances, the following order is made:
ORDER
Delivered:
15th September 2020
22 December 2020
Heard:
alternative remedy in judicial review upheld. The petition is dismissed.
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
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
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[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 bui lding 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 1.8meters high. Based
[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.
unsuccessful requests to Government to get tlie land exchangecnor one situated in a mixed
use designated area.
BURHAN J (Govinden CJ and Dodin J concurring)
JUDGMENT OF COURT
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[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
The Petition
[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.
[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.
[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. "
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.
(c) An Order compelling thefirst and second Respondentsto consider and consent and
consent and allow the Petitionerto develop the said project;
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(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;
"(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;
[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:
[8] The Assemblies also complained that the respondent's acts and decision were
discriminatory because other denominations had been granted permission to construct their
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:
(b)... "
(a) in the public interest;
(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-
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.
"Right to property
[18] Second, the right to property which is in Article 26. It reads, in relevant parts:
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[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
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)
"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.
[20] In Darrel Green v Seychelles Licensing Authority and Government of Seychelles CA----------------
(own emphasis.)
(4) The Constitutional Court may, [or sufficient reason, extend the time [or filing a petition
under rule 3."
(3) Notwithstanding subrules (1) and (2), a petition under rule 3 may, with the leave o{the
Constitutional Court, be filed out of time.
(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.
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[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