Fanchette v The Attorney General (SCA14/2025 (Arising from CS 84/ 2022)) [2025] SCCA 28 (15 December 2025)

**IN THE COURT OF APPEAL OF SEYCHELLES** _**[Reportable**_] [2025] (18 December 2025) SCA14/2025 (Arising from CS 84/ 2022) **Nichol Fanchette Appellant** _(rep. by Basil Hoareau)_ __ and **The Attorney General Respondent** _(rep.__by the Kimberly d’Offay and Gulmette Leste_ _)_**** **Neutral Citation:** _Fanchette v The Attorney General_[2025] (SCA14/2025) (Arising from CS84/ 2022) (15 December 2025) **Before:** Twomey-Woods, Robinson, André JJA. **Summary:** delict - fault arising from unilateral and illegal reduction in remunerative income – abolition of the post of Special Constable - integration into the Police Force from the National Drug Enforcement Authority - damages **ORDER** The appeal is allowed. The case is remitted to the Supreme Court before the same trial judge for a hearing on the quantum of damages. The costs of this appeal and of the court below are awarded to M.r Fanchette. **JUDGMENT** **DR. M. TWOMEY-WOODS JA** **(****Robinson and André****JJA concurring)** **Background** 1. The core of this dispute arises from a significant reduction in Mr. Nichol Fanchette’s (hereafter Mr. Fanchette) remuneration following the dissolution of the National Drug Enforcement Agency (NDEA) and his subsequent integration into the Seychelles Police Force. Mr. Fanchette, who served as the Deputy Chief Executive Officer of the NDEA, had been earning a gross monthly salary of SR40,953 along with SR920 clothing allowance. 2. It is an undisputed fact that upon the NDEA's repeal in November 2017, Mr. Fanchette was integrated into the Police Force as a Special Constable and continued to receive his previous salary and allowance for nearly two years, until June 2019. 3. The central conflict emerged from a letter dated 1 July 2019, in which Mr. Fanchette was informed of a restructuring within the new Anti-Narcotics Bureau and was offered the new post of Principal Officer. This new position came with a substantially reduced salary of SR 22,958, which, even with additional allowances, resulted in a lower total monthly remuneration of SR 31,018. 4. Mr. Fanchette was presented with a choice: accept the new terms or face termination of his employment. Mr. Fanchette contends that this action constituted a unilateral and illegal reduction of his salary, which he argues amounts to fault, or _faute en droit_. In his plaint, he sought substantial damages totalling SR611,442.77 for the loss of salary, diminished gratuities, and moral damages, in addition to a court order reinstating his former salary. 5. In its statement of defence, the Government (herein represented by the Attorney General) denied any unlawful conduct. Its position was that Mr. Fanchette was not subjected to a unilateral variation of an existing contract but was instead lawfully offered a new post with new terms following an organisational restructuring. 6. The Government contended that Mr. Fanchette voluntarily accepted the new contract by signing the offer letter on 16 October 2019 and by continuing his employment under the new terms for over three years. The Government further contended that the initial promise to maintain salaries, made in 2017, was honoured for a significant period and could not be interpreted as a perpetual guarantee that would prevent a lawful future restructuring or the offer of a new position. **The issue in the present case** 7. The fundamental issue for the court to determine was therefore whether the Government's actions amounted to a fault in the illegal and unilateral reduction of salary or a legitimate offer of new employment which the Plaintiff accepted. **The trial court’s decision** 8. On 2 May 2025, the Supreme Court delivered its decision, finding against Mr. Fanchette and dismissing his plaint, determining that the Government of Seychelles had not unilaterally or illegally reduced his salary. The Court's decision was grounded on a fundamental characterisation of the letter of 1 July 2029, which outlined his new remuneration not as a _variation_ of an existing contract, but rather as the lawful _abolition_ of his former post and the subsequent offer of a new one. 9. The Court concluded that Mr. Fanchette’s original position as Deputy Chief Officer of the NDEA was abolished by operation of law upon the repeal of the NDEA Act. The letter dated 1 July 2019 was therefore not an instrument reducing his salary, but a legitimate offer of a new position as Principal Officer with a new and different remuneration package attached. 10. The Court further held that Mr. Fanchette had voluntarily accepted this new contract of employment. It found that he was given a clear choice between accepting the new post or having his employment terminated, and by signing the offer letter and continuing to work for over three years, had demonstrably accepted the new terms. 11. The Court rejected the Mr. Fanchette’s claim of duress, reasoning that the difficult choice between accepting a lower salary or facing unemployment, while financially pressuring, did not constitute unlawful duress in the legal sense, but was a circumstance common to any employee in a restructuring. 12. On the issue of promissory estoppel, the Court found the doctrine inapplicable, stating that the initial promise of a maintained salary in the 2017 letter was honoured for nearly two years and could not be construed as a perpetual guarantee that prevented the government from later restructuring and offering a new post with a different salary. 13. Finally, the Court found no evidence of illegality in the restructuring process conducted by the Department of Public Administration, and consequently, no vicarious liability could be attached to the Government for the actions of the former Commissioner of Police. In essence, the Court ruled that no _faute_ arose because there was no reduction of an existing salary, but rather a new offer of employment which the Plaintiff accepted. 14. Mr Fanchette, being dissatisfied with this decision, has appealed to this Court on five grounds. The appeal now fails for determination by this Court. **Grounds of appeal** 15. The grounds of appeal read as follows: 1. _The learned trial judge erred in law and on the evidence by failing to hold the post occupied by the appellant in the Police Force of Seychelles was, at all times, that of a Special Constable._ 2. _The learned trial judge erred both in law and in the evaluation of the evidence in holding that the post of the appellant had been abolished, given that the appellant’s post as Special Constable was never abolished, nor was the Appellant’s service or Special Constable terminated or determined in accordance with the law._ 3. _The learned trial judge erred in law and on the evidence in failing to hold that the monthly salary of SR40,953 and clothing allowance of SR920 received by the appellant in respect of his post as a Special Constable. _ 4. _The learned trial judge erred in law and on the evidence in failing to attach sufficient weight to the uncontroverted evidence of the appellant that his salary and allowance were reduced from the month of July 2019, prior to the appellant signing of the letter of October 2019, in view that the appellant was not cross-examined nor challenged in relation to such evidence._ 5. _The learned trial judge erred both in law and on the evidence by holding the appellant’s post had been abolished, given that the respondent failed to plead material facts and adduce evidence establishing that the the appellant’s office was abolished in accordance with the law._ 6. _The learned trial judge erred in law by holding that the respondent had abolished the appellant’s post, despite the respondent’s failure to plead material facts supporting such abolition._ 7. _The learned trial judge erred in law in failing to hold the Government was estopped from reducing the appellant’s monthly remuneration_ **Appointment as Special Constable and abolition of the post and consequences - Grounds 1, 2, 3, 4, 5 and 6.** 16. These grounds of appeal crystallise into the main issue and constitute the core of this appeal. 17. It is not contested that until its abolition, Mr. Fanchette was the Deputy Chief Officer of the National Drugs Enforcement Agency (NDEA), with a monthly remuneration of SR 41,873 Seychelles Rupees. It is also undisputed that, in a letter dated 6 October 2017, the Commissioner of Police, then the Chief Officer of the NDEA, informed all officers that the Agency would be abolished. They were told they would be integrated into the police force, assigned appropriate ranks, and that their salaries would not be less favourable. Following the NDEA's abolition on 1 November 2017, it is further not contentious that Mr. Fanchette was appointed to the post of Special Constable by the Commissioner of Police under section 48(1)(2) of the Police Force Act. His monthly salary continued as promised at that time. 18. Subsequently, following a restructuring, Mr Fanchette was offered the position of Principal Officer within the newly formed Anti-Narcotics Bureau of the police force through a letter dated 1 July 2019 signed by Ms Guyto Boniface, on behalf of the Commissioner of Police. This letter also informed him that his new basic salary would be SR 22,598. Including various allowances, his total monthly remuneration would amount to SR31,018. This was a reduction of SR10,855 per month compared to his previous salary. **Counsel’s submissions** 19. In this regard, Mr. Hoareau, counsel for Mr. Fanchette, has submitted that the latter’s appointment as a Special Constable under sections 48 and 49 of the Police Force Act 1959 continued even after the restructuring. The changes brought about by the restructuring changes affected his duties and responsibilities associated with the new role of Principal Officer, but did not alter his status within the police force. Specifically, although Mr. Fanchette was to take on the new position of Principal Officer, the salary and allowances he received were related to his role as a Special Constable, which office had not been abolished. This is supported by the fact that there is no statutory post known as Principal Officer in the Police Force Act. 20. Mrs. d’Offay, State Counsel has, on the other hand, submitted that Mr. Fanchettes’ appointment as Special Constable was akin to an internal appointment or rank within the police force. It was not an “office” in the sense that it would activate public service rights such as review or promotion through the Public Service Appeal Board (PSAB). Moreover, she submits that the language of regulations 6 and 7 of the Police Force (Special Constable) Regulations (SI 17/1967) shows that a Special Constable is not regarded as part of the regular police force. Relying on the Constitutional Court case of _Government of Seychelles v Public Service Appeal Board & Anor (ii_),1 she contends that appointments made by the Commissioner of Police are outside the jurisdiction of the PSAB because they do not fall under the _numerous clausus_ categories of complaints under section 146 of the Constitution, and also because the Police Force (Special Constable) Regulations are not subject to the Public Service Order (PSO). These regulations prevail over the PSO, as anticipated in clause 1.1 (g) of the PSO. Hence, in her submission, the role of Special Constable is a rank and not an office. 21. She has also submitted that the post of Principal Officer of the ANB superseded his interim post as Special Constable within the police force itself. Hence, in her view, the learned trial judge was correct to conclude that the post of Special Constable had been abolished as a result of the restructuring and therefore also the salary attached to it. The post of Deputy CEO was abolished, and when the post of Principal Officer was offered, that rank determined the salary, not the rank of a Special Constable, which had also been abolished. 22. Mr. Hoareau has also submitted that the post of Special Constable can only be abolished either by the exercise of power by the President under section 62(1) of the Constitution or by the Principal Secretary of the Ministry of Administration and Manpower, subject to obtaining prior approval from the Minister responsible for administration. In either case, the abolition of the office must be effected by a written instrument. No evidence of such an instrument was presented to establish that the office of Special Constable held by Mr. Fanchette was abolished, much less abolished in accordance with the law. Given that Mr. Fanchette continued to occupy the office of Special Constable and received the associated salary and allowances, the Commissioner of Police had no lawful right or authority to reduce his remuneration. 23. Mrs. D’Offay has submitted that the salary and allowance held by Mr. Fanchette under his temporary appointment as a Special Constable ended when the restructuring took place, and he was offered the new post of Principal Officer. In her view, both Article 62 and section 3 of the Public Offices Act have no relevance. 24. Regarding the reduction of Mr. Fanchette’s salary, Mr. Hoareau submitted that his uncontroverted evidence on this matter was not properly considered. Had it been, the learned trial judge would have recognised that the State witness, Mrs. Boniface, had admitted that even before Mr. Fanchette signed the letter implementing the salary reduction, the decision on the matter had already been taken. Therefore, the learned trial judge’s remarks regarding the lack of evidence on this issue, specifically the production of payslips, are not relevant. 25. In Mrs. d’Offay’s view, despite the assertion of the State’s witness that it was the case that the salary reduction had taken place three months before Mr Fanchette signed the letter of acceptance, the learned trial judge was entitled to look at the totality of the evidence and come to the finding he did. **Deliberation of this Court** **_Evidence of reduction in Mr. Fanchette’s salary_** 26. Before I proceed to analyse the facts of the appeal in relation to the applicable legal provisions, I wish to address an evidential issue concerning the absence of cross-examination of Mr. Fanchette regarding the reduction of his salary from July 2019. There is no need to dwell lengthily on this matter. The quotation submitted by Mrs D’Offay regarding the fact that failure to cross-examine is not determinative of an issue, as stated in 'A Practical Approach to Evidence for Judicial Officers', is taken out of context. It is sourced from a paragraph in the textbook on prima facie evidence, which is not relevant in this case. 27. The point relied upon by Mr. Hoareau is that failure to cross-examine a witness on an issue amounts to tacit acceptance of that witness’s evidence. The jurisdiction on this issue is well settled in our jurisdiction.2 In any case, I do not believe there is any dispute regarding Mr Fanchette's evidence that his salary has been reduced since July 2019, as that point was not explicitly denied in the Statement of Defence nor disputed by the sole witness for the Government. **_Was the reduction in salary illegal amounting to a faute?_** 28. The decision of this court with regard to the main plank of this appeal is made in consideration of the relevant legal provisions applicable to the circumstances of this case. 29. First, section 7 of the Police Forces Act in relevant part, provides: _5\. Ranks and seniority_ “ _(1)The Force shall consist of the undermentioned ranks in the following order of seniority—_ _Commissioner of Police_ … _Constable”_ 30. Second, section 8 of the Police Forces Act in relevant part provides: _8\. General powers of Commissioner of Police_ _(1)The Commissioner of Police shall, subject to the orders and directions of the President, have the command, superintendence, direction and control of the Force, and may,_subject to the provisions of this Act make such appointments_ , promotions, _and reductions_ in ranks and grades of subordinate officers as he may deem fit._ … 31. Third, section 12 further provides in relevant part: _12\. Discharge of subordinate officers_ _(1) Any subordinate officer may be discharged by the Commissioner of Police at any time—_ … _(d)_on the abolition of his office;__ …” 32. Fourth, sections 48 and 49 of the Police Force Act provide: _4 8\. Power to appoint special constables_ _(1) It shall be lawful for the President at any time, if he thinks fit, to cause special constables to be appointed by the Commissioner of Police for the whole of Seychelles._ _(2) Every appointment under subsection (1) shall be made by the Commissioner of Police _in the form set out in the schedule to the Act and shall be signed by him.__ _49\. Powers and duties of special constables_ _Every special constable appointed under this Act shall when on duty have the same powers, privileges and protection and shall be liable to perform the same duties, and shall be amenable to the same penalties, and be subordinate to the same authorities as police officers. They shall be deemed to be on duty on such occasions as may be prescribed._ 33. The Schedule to the Act provides the form for the appointment of Special Constables as follows: _Schedule_ _Appointment of special constable_ _Seychelles_ _To ____________________ of ___________________ _I, the undersigned, _____________________________ _Commissioner of Police do under the powers vested in me by the Police Force Act hereby appoint you to be a special constable for the Seychelles._ _Dated this ________ day of ______________ 20 _________ _Commissioner of Police_ 34. With regard to the establishment and abolition of offices, the provisions above must not be read in isolation but should be read and interpreted together with Article 62 (1) of the Constitution, which provides that: “ _Subject to this Constitution and to any other law, the powers of establishing and abolishing offices for the Republic shall vest in the President.”_ 35. Additionally, section 3 of the Public Offices Act provides that: “ _The power, vested in the President by Article 62(1) of the Constitution, of establishing or abolishing public offices is hereby delegated to the Principal Secretary of the Ministry of Administration and Manpower and shall be exercised by the Principal Secretary after obtaining the approval of the Minister responsible for Administration and Manpower.”_ 36. I must, in light of the provisions above, first clarify that I do not agree with Mrs. d’Offay’s interpretation that a Special Constable is a post, a rank, or even a title, but not an office. As evidenced by the wording in section 12 (1) (d) above, the word ‘office” is used. In the circumstances where a legislative text has a clear meaning, we are prohibited from interpreting it differently and are bound by the words of the law; in other words, we give the words their plain and ordinary meaning. Office, therefore, means office. 37. A holistic interpretation of the statutory provisions reveals that the creation and abolition of the office of a Special Constable follow separate and hierarchical procedures. The office is established through a dual-authority process initiated by the President of Seychelles, who, under section 48, may authorise the appointment of special constables when considered appropriate. The Commissioner of Police then formally executes this appointment using the specific form prescribed in the Act's Schedule, which serves as the official instrument formalising the appointment for the appointee. 38. Conversely, the abolition of the office operates under a separate constitutional framework. While the __discharge__ of a Special Constable falls within the purview of the Commissioner of Police, this action can only occur once the office itself has been formally __abolished__. That prior act of abolition is not within the Commissioner's power but is, under section 62(1) of the Constitution, the responsibility of either the President or the Principal Secretary, following the necessary approval of the relevant Minister. 39. With regard to communication, a clear distinction exists between appointment and abolition. The appointment process is explicitly defined and requires the use of a prescribed written form. In contrast, the statutory provisions are silent on the method for communicating a discharge resulting from the abolition of the office. While the principles of natural justice necessitate that such a decision be communicated, the Act does not prescribe whether this must be in writing or through another procedure. 40. However, after considering Mr. Hoareau's argument, I agree with his main point. While the Police Force Act does not specify the exact method for communicating a discharge under section 12(1)(d), the authority to perform the act of abolishing the office itself is strictly limited. The power to abolish the office of a Special Constable, which is necessary for a lawful discharge on that ground, is not held by the Commissioner of Police. Instead, this crucial action could only have been lawfully carried out by the President or the Principal Secretary of the Ministry of Administration and Manpower, and only after obtaining the required prior approval of the Minister. 41. These grounds of appeal, therefore, succeed. 42. Article 1382 of the Civil Code applies. The act of the Government discharging Mr Fanchette from his office as Special Constable and decreasing his remuneration and allowances before his position was abolished was illegal and constitutes a _faute_ in law recoverable in damages. **Acquiescence to the abolition of the post of Special Constable by signature of the contract and by not immediately filing a civil claim for the ‘faute.”** 43. The learned trial judge also determined that Mr. Fanchette’s signing of the contract and remaining in the new office until 1 January 2023, when he was made redundant, was an acquiescence of the new terms of his employment. 44. Mr. Hoareau submitted that he signed the letter under duress and reserved his rights to initiate legal proceedings and to challenge the abolition of the post as per his letter of 16 October 2019, in which he indicated that he would sign the contract. 45. I disagree with Mr. Hoareau that this Court can infer and consider duress in the Plaint. There is no specific averment to that effect, and I cannot, therefore, consider an action under duress in the present case. 46. However, based on the established legal interpretation that the abolition of the office of Special Constable required action by the President or Principal Secretary under Article 62(1) of the Constitution, the doctrine of acquiescence does not operate to validate the Commissioner of Police’s actions in this case. The fundamental principle is that acquiescence cannot cure an act that was unlawful from its inception. 47. If the prerequisite abolition of Mr. Fanchette's office was not carried out by the constitutionally mandated authority, it was legally null and void. His signature on the new contract and his continued service for two years must be understood in this context. The choice offered to him: accept reduced remuneration or face termination, was based on an unlawful administrative foundation. In such circumstances, signing the contract and continuing to work was more a response to immediate financial pressure than an expression of free and informed consent ratifying the previous ultra vires act. This is supported by his testimony in court. 48. His conduct during this period, therefore, can be seen as a practical necessity for livelihood, undertaken while reserving his right to seek legal redress. An employee's subsequent conduct cannot rectify the State's failure to comply with mandatory constitutional procedures. 49. I am fortified in this conclusion by the principle enshrined in Article 2045 of the Civil Code**,** which states that matters of public policy may not be the subject of compromise. The procedures governing the abolition of a public office, as mandated by Article 62(1) of the Constitution, constitute a fundamental matter of public policy designed to ensure lawful executive action. The principle underlying this article is that an individual cannot, through private agreement or conduct, validate an act that contravenes public law. 50. Therefore, Mr. Fanchette could not, through his signature or continued service, legally 'acquiesce' to or compromise on the Commissioner’s failure to adhere to these mandatory constitutional and statutory procedures. The unlawful nature of the initial act, that is, the improper abolition of his office, renders it a nullity that no subsequent private conduct can cure. Consequently, acquiescence must fail as a matter of law. 51. In this regard, the same principle can be applied to the fact that Mr Fanchette took about three years to file a claim. He was, in any case, well within the legal prescriptive period, and no inference can be drawn from his delay in filing. § 52. There is another disturbing aspect to the repeal of the National Drug Enforcement Agency (NDEA) and the restructuring of police officers within a new body - the Anti-Narcotics Bureau. Whereas the NDEA was established by an Act, there is no legislation, statutory instrument, or official publication establishing the Anti-Narcotics Bureau. Even if it involved an internal restructuring within the police force, the Attorney General adduced no evidence regarding this body or division. Their only witness, Mrs Boniface, stated that only a communiqué regarding the restructuring was issued and that she contacted the Department of Public Administration to inquire what would happen to the NDEA officers. 53. In this regard, it is difficult to understand the restructuring process and the legal consequences flowing therefrom. **Promissory Estoppel - Ground 7** 54. Mr. Hoareau has also raised the issue of promissory estoppel. It was his submission that as the then Commissioner of Police, Mr Labonte, had given a written undertaking on 6 October 2017 to NDEA officers that their terms and conditions of service would remain the same. He has submitted that the Government was therefore estopped from reneging on the promise he made. Mrs D’Offay has submitted that the doctrine of promissory estoppel is an equitable remedy and as such has no application when legal remedies are available. 55. While I agree that there are legal remedies available - in this case an action for delict, contract, or even administrative or constitutional review, I am reluctant at this stage to explore the potential of this remedy being available in Seychelles, given the differing views expressed in Seychellois jurisprudence regarding the issue3 and the fact that in general it only operates as a shield and not a sword.4 56. I would therefore rest on my findings in respect of Grounds 1, 2, 3, 4, 5 and 6, which are determinative of this appeal. 57. Mr. Hoareau had also prayed for this court to pay damages representing the loss of SR10,855 per month for the period of July 2022 until the date of judgemnt of this court with interest. I am not satisfied that the issue of damages was properly aired and considered by the trial court to enable us to quantify the damages owed at this review. It would be proper for the trial court to assess damages and interest. 58. Finally, I wish to point out that it is incumbent on Counsel to make closing submissions in the cases they bring. Failure to do so does not aid the court in narrowing the issues of fact and the law applicable.1 **Order** 59. In the circumstances, therefore, the following orders are made: 1. The appeal is upheld. 2. The case is remitted to the Supreme Court, before the same trial judge, for a hearing to assess the quantum of damages payable to Mr Fanchette. 3. Mr. Fanchette is awarded his costs in the court below and in this appeal. Signed, dated and delivered at Ile du Port, Mahé, Seychelles on 15 December 2025. **_____________________________** Dr. M. Twomey-Woods, JA. I concur ________________ F. Robinson, JA **ANDRE JA** **CONCURRING ADDITION** I have had the benefit of reading in draft the judgment of my learned sister and I am in full agreement with the reasoning and the orders made. I concur ________________ S. André, JA Signed, dated and delivered at Ile du Port, Mahé, Seychelles on 15 December 2025. 1 (CP 16 of 2019) [[2020] SCCC 556](/akn/sc/judgment/sccc/2020/556) (25 March 2020). 2 See _Shree Hari Construction (Pty) Ltd v Boniface & Or _(SCA 26 of 2013) [[2016] SCCA 24](/akn/sc/judgment/scca/2016/24) (16 August 2016) relying on _Bircham_(1972) Crim LR 430. See also _T. Finesse v Rep. SCA_ (SCA 1 of 1988) [[1988] SCCA 10](/akn/sc/judgment/scca/1988/10) (21 October 1988), _Alfonse v Monthy_ (SCA 28 of 2013) [[2015] SCCA 52](/akn/sc/judgment/scca/2015/52) (16 December 2015), _Small Enterprise Promotion Agency & Anor v Kankan Limited_ (SCA 13 of 2020) [[2022] SCCA 45](/akn/sc/judgment/scca/2022/45) (19 August 2022). 3 _The National Bank of South Africa Ltd. v Merven and Co_. (1924) MR 53, _Jean-louis v Francois_ (1957) MR 340, _Teemooljee and Co. Ltd v Pardiwalla (_ 1975) SLR 39, _Anscombe v Indian Ocean Tuna Ltd_(2010) SLR 9,_Ah-Time v Mancienne_ (2013) SLR 165. 4 See _Combe v Combe_[1951] 2 KB 215 _, Amalgamated Investment Co v Texas Bank_[1982] 1 QB 122. 9