Norton v Public Service Commission

Micheal Robert Eddy Norton

Appellant

v.

Public Service Commission

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Roskill

Lord Griffiths

Lord Ackner

Sir John Stephenson

Counsels

For the Appellant

Clive Nicholls Q.C.

Guy Ollivry Q.C.

Claire Montgomery

For the Respondent

Doorgesh Ramsewak Q.C. (Solicitor-General)

Solicitors

For the Appellant: Bernard Sheridan & Co.

For the Respondent: Charles Russell & Co.

Judgment delivered on the 15 December 1987

by Lord Ackner

Cur. adv. vult.

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(1) Constitutional law - Fundamental rights - Protection of property - Fine - Disciplinary powers of the Public Service Commission - Principle of legality - Rule of law - French labour law

(2) Constitution source of all powers - Historical evolution of Mauritius - Powers of the Governor before independence

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Legislations referred to in judgment

Constitution of Mauritius, sections 8, 89, 118

Labour Act 1975

Public Service Commission Regulations 1967, regulations 30, 38, 41

Truck Act 1896 (United Kingdom), section 1

Trucks Act 1464 (United Kingdom)

Wages Act 1986 (United Kingdom)

The following judgment was delivered by the Board:

On the 19th February 1980 the Secretary to the Cabinet informed the appellant, a Principal Assistant Secretary at the Ministry of Works of Mauritius, that disciplinary proceedings were being initiated against him under regulation 38 of the Public Service Commission Regulations 1967 on certain charges, to which the appellant subsequently submitted his replies. In due course the presiding magistrate of the Industrial Court was appointed to inquire into the charges and he heard evidence, including that of the appellant.

On the 10th April 1981 a letter was written by the Secretary to the Cabinet informing the appellant that the Commission had considered the report of the magistrate. The letter then stated:

"... the Commission has considered the punishment to be inflicted upon you and has decided in exercise of the power vested in it by Section 89 of the Constitution and in accordance with the provisions of sub-paragraph 1(h) of regulation 41 of the Public Service Commission Regulations, 1967, that you be fined a sum representing seven days' pay..."

On 27th May 1981, when the appellant called at the Finance Branch of the Ministry of Works to draw his salary for the month of May, he noticed that the sum shown on the pay sheet was short of about Rs1,500. He refused to sign the pay sheet. A second pay sheet was accordingly prepared reinstating the deduction and the full amount of the appellant's pay normally due to him was remitted. On 2nd June 1981 the Permanent Secretary to the Ministry of Works wrote to the appellant, informing him that the fine had been imposed and requiring him to pay the amount of 21 days of the date of the letter. On 19th June 1981 the appellant applied to the Supreme Court of Mauritius for an order of certiorari to quash the decision, namely, the infliction of the fine, as being contrary to the Constitution.

The Public Service Commission then took a preliminary procedural objection, but this was overruled by the Supreme Court of Mauritius (Moolan, C.J., Glover, S.P.J., Ahnee J. dissenting) dismissed the application.

The issue

It is common ground in Mauritius no private employer may impose a fine upon his employee. This is in no way surprising. In England, the Truck Acts dating from about 1464 were designed to ensure that workmen received the entire amount of their wages in the actual current coin of the realm, and section 1 of the Truck Act 1896 made illegal a contract which made payment to the employer by the workman of any "fine" except in very special circumstances. The imposition of the "fine" was restricted, inter alia, to some act or omission which caused or was likely to cause damage or loss to the employer. Since 1st January 1987 the Truck Acts have ceased to be in effect, having been repealed by the Wages Act 1986, which makes more detailed provision with regard to permissible deductions.

Their Lordships understand that since July 1978 French law prohibits any form of "amende". Indeed, it appears from the majority judgment that the Mauritian Labour Act 1975 banned fines on labourers employed by the Government thereby, to that limited extent, equating the position with that in the private sector.

Thus the short issue in this appeal is whether the Commission had power to inflict a fine upon the appellant, a senior official in one of its Ministries.

The Constitution

Section 89 of the Constitution, which provides for the appointment of public officers, reads as follows:

"89(1) Subject to this Constitution, power to appoint persons to hold or act in any offices in the public service (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Public Service Commission."

Thus the power of the Public Service Commission "to exercise disciplinary control" over public officers is derived from and subject to the terms of the Constitution.

Section 8 of the Constitution is entitled "Protection from deprivation of property". It appears in Chapter 2 of the Constitution, which is headed "Protection of fundamental rights and freedoms of the individual". It provides in sub-section (1) that "No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired", except as provided in the sub-section.

Section 8(4), in so far as it is material in this appeal, is in the following terms:

"(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of sub-section

(1) -

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property...

(ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law...

(iv) in the execution of judgments or orders of courts..."

Section 118 of the Constitution is entitled "Performance of functions of Commissions and tribunals". Sub-section (1) provides:

"(1) Any Commission established by this Constitution may by regulations make provisions for regulating and facilitating the performance by the Commission of its functions under this Constitution."

The Regulations

Pursuant to this power, regulations, entitled Public Service Commission Regulations, were made on 12th August 1967. Part IV of the Regulations is headed "Discipline". Regulation 30, the first of the regulations appearing under this heading, provides that the Commission shall not exercise its powers in connection with, inter alia, the disciplinary punishment of any officer in the public service except in accordance with the regulations or such regulations as may be made by the Commission. Regulation 41 needs to be set out in full:

"41(1) The following punishments may be inflicted on any public officer as a result of proceedings under this Part -

(a) dismissal;

(b) reduction in rank or seniority;

(c) stoppage of increment;

(d) deferment of increment;

(e) suspension from work without pay for a period not less than one day and not more that 14 days;

(f) severe reprimand;

(g) reprimand;

(h) fine;

(i) payment of the cost or part of the cost of any loss or breakage or damage of any kind caused by default or negligence.

(2) Nothing in this regulation shall limit the powers conferred by these regulations to require a public officer to retire from the service on the grounds of public interest.

(3) No punishment shall be inflicted on any public officer which would be contrary to any enactment."

The appellant's submissions are simple and, in their Lordships' opinion, correct. The powers of the Commission are derived, not from the regulations, but from the Constitution itself. The Public Service Commission has no more power than that conferred upon it by the Constitution. As was pointed out by Ahnee J., in his dissenting judgment, whatever in the past, when Mauritius was a British Colony, may have been the powers of the then Governor over Her Majesty's civil servants, cannot be of any assistance in defining the powers conferred upon the Public Service Commission by the Constitution. Section 8(1) and (4) of the Constitution make it clear that there is no power to fine, unless there exists a law which gives power to impose a fine for a breach of that law. Before such a fine can be enforced, the breach of that law has to be established in the courts. Accordingly, it must follow that the power given to the Public Service Commission to "exercise disciplinary control" does not include the power to inflict a fine. In the result, regulation 41(1), in so far as it provides for punishment by the infliction of a "fine", is ultra vires the Public Service Commission.

Accordingly, their Lordships will humbly advise Her Majesty that the appeal ought to be allowed and that the order of certiorari should issue. The appellant is entitled to his costs both before the Supreme Court and before their Lordships' Board.

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Harel Frères Ltd v Minister of Housing, Lands and Town and Country Planning

Harel Frère Ltd.

Appellant

v.

Minister of Housing, Lands and Town and Country Planning

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Roskill

Lord Griffiths

Lord Ackner

Sir John Stephenson

Counsels

For the Appellant

Sir André Raffray Q.C.

Sir Hamid Moollan Q.C.

Richard Plender

For the Respondent

Doorgesh Ramsewak Q.C. (Solicitor-General)

Solicitors

For the Appellant: Slaughter & May

For the Respondent: Charles Russell & Co.

Judgment delivered on the 15th December 1987

by Lord Bridge of Harwich

Cur. adv. vult.

______________________________________________________________

(1) Constitutional and administrative law - Protection of property - Expropriation - Powers of the Supreme Court to control the legality and merits of a proposed compulsory acquisition - Full scale appeal to the Supreme Court - Duty of the Judge to balance the advantages and disadvantages of the project

(2) Constitutional litigation - Positive construction of an Act of Parliament in conformity with the Constitution - Act of judicial legislation

(3) Procedure - Fair trial - Disclosure of documents

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Legislations referred to in judgment

Constitution of Mauritius, section 8

Land Acquisition (Appeal) Rules 1974

Land Acquisition Act 1973, sections 6, 8, 10

The following judgment was delivered by the Board:

This is an appeal from a judgment of the Supreme Court of Mauritius (Sir Cassam Moolan, C.J., and Lallah, J.) delivered on 7th May 1986 dismissing an appeal against a decision of the respondent Minister to acquire compulsorily certain land belonging to the appellant pursuant to notice given in accordance with section 8 of the Land Acquisition Act 1973 ("the Act").

The appellant owns a large sugar-growing estate known as Solitude at Pointe-aux-Piments. The estate is separated from the coast by a strip of undeveloped Crown land known as the Pas Géométriques, which extends inland to a depth of some 80 to 90 metres from high water mark. On 5th June 1985 the Ministry wrote to the appellant offering to purchase part of the Solitude estate, approximately 11 hectares in area, comprising a strip of land approximately 600 metres by 200 metres immediately adjacent to the Pas Géométriques ("the subject land"). The appellant refused the offer. In June and July 1985 notices were published and served on the appellant as required by section 6 of the Act, indicating that the subject land was likely to be acquired compulsorily.

The purpose of the acquisition was stated in the notices to be "for the public purpose of tourism development". On 15th July 1985 the appellant wrote to the Ministry asking for full and detailed particulars of the proposed development. No reply to this letter was ever received. On 11th September 1985 the Minister gave notice under section 8 of the Act of his decision to acquire the land compulsorily.

The appellant duly gave notice of appeal against the decision pursuant to section 10 of the Act and in accordance with the Land Acquisition (Appeal) Rules 1974. The hearing of the appeal by the Supreme Court was fixed for 18th March 1986. On 17th March 1986 an affidavit was filed sworn by a principal surveyor in the Ministry which, omitting formal parts, deposed as follows:

"4. It is the policy of the Government to promote tourism development in Mauritius in furtherance of its overall economic and social development of the country and in so doing the Government acquires property which it is considered can help towards that objective.

5. The subject property purchased at Point-aux-Piments will be used for building -

(i) a hotel complex; and

(ii) a hotel complex together with clinic."

This last-minute disclosure, if it can be called, represented the sum total of the information available to the appellant and to the court as to the Minister's intentions for the development of the subject land.

It is unnecessary for the purposes of this judgment to rehearse in detail the various grounds of appeal which were canvassed before the Supreme Court and in due course rejected them. It suffices to say that the argument proceeded on the footing that the appeal against the Minister's decision was in nature of a judicial review. On this basis the Court drew distinction between the "merits" and the "legality" of the decision, held that they could not consider the former and found no ground on which to impugn the latter.

The law relating to compulsory acquisition of land in Mauritius is strikingly different from that with which their Lordships are familiar in England. In England different statutes empower different authorities to acquire land compulsorily for different specific purposes. But the normal statutory procedure which must be followed before a particular compulsory acquisition can be authorised ensures that a public inquiry will be held at which it will fall to the acquiring authority to make good its case in support of the acquisition by fully detailed evidence which can be tested, challenged, and, it may be, controverted. It is at this stage that the merits of the proposed acquisition are examined and assessed and it is normally on the basis of facts found and recorded in a report of such an authority for compulsorily acquisition must rest. Such a decision is then open to challenge in the courts on limited grounds, analogous to those of judicial review, that the compulsory acquisition authorised was ultra vires the enabling statute or that the landowner objecting to the acquisition was prejudiced by a failure to follow the prescribed procedures.

By contrast the Mauritius Act gives the Minister a power of compulsory acquisition which is quite general in its ambit and which he can exercise by notice under section 8 of the Act if he is satisfied that the conditions of section 8(1)(a) of the Constitution are fulfilled. There is no provision in the Act for any inquiry into the merits of the proposed acquisition to be held or otherwise giving the landowner objecting to the acquisition any opportunity to be heard before the Minister makes his decision to acquire and issues his notice to give effect to it under section 8 of the Act. It is in section 8 of the Constitution alone that a safeguard for the interests of the landowner is provided. The section is entitled "Protection from deprivation of property" and provides by sub-section (1) as follows:

"No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where -

(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius.

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition -

(i) for the payment of adequate compensation; and

(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation."

Compliance with the relevant part of section 8(1)(c)(ii) is secured by section 10 of the Act, which provides:

"An interested person who wishes to challenge the legality of the compulsory acquisition of any land may appeal to the Supreme Court within such time and in such manner as may be provided by rules made by the Supreme Court for the purpose."

The rules made for the purpose of section 10 of the Act are the Land Acquisition (Appeal) Rules 1974. The Rules require the appellant to give notice of appeal indicating the ground of appeal within a stipulated time. Other grounds may only be raised at the hearing with the leave of the court. The Minister is required to forward to the Registry of the Supreme Court "a certified copy of all documents relating to the compulsory acquisition of the land, subject matter of the appeal". Apart from these provisions the Rules are silent as to how the court is to conduct the proceedings on the hearing of an appeal. But the Rules are merely procedural. They cannot in any way circumscribe the challenge of legality of the compulsory acquisition for which section 10 of the Act makes provision and, if section 10 is construed, as it should be, as effective to satisfy the requirements of section 8(1)(c)(ii) of the Constitution, then it is clear that any issue raised as to whether the requirements of section 8(1)(a) and (b) of the Constitution are fulfilled must be for the court to determine and for that purpose the court must receive all relevant evidence, whether upon affidavit or orally, and in either case subject to cross-examination. Once the Minister's decision is challenged on appeal on grounds which raise issues as to whether the conditions of section 8(1)(a) and (b) of the Constitution are fulfilled, it must be for the court, not the Minister, to be satisfied that the proposed compulsory acquisition is indeed necessary or expedient to enable the intended development to be carried out and that there is reasonable justification for causing any hardship to the landowner which will result. If it were not so, the owner's right of access to the Supreme Court "for the determination of the legality of the... acquisition of the property" would be valueless and compulsory expropriation, as the present case shows, would depend upon the unexaminable ipse dixit of the Minister. Hence, as the Solicitor-General very properly conceded before their Lordships, the Supreme Court fell into error in confining attention to such issues as could properly be raised upon an application for judicial review and in not treating the appeal as a full scale appeal against the Minister's decision which required to be considered on its merits.

The appellant's notice of appeal challenges the legality of the proposed compulsory acquisition, inter alia, upon the ground in quite general terms that the conditions of section 8(1)(a) and (b) of the Constitution are not fulfilled. The two paragraphs of the sub-section are to a large extent overlapping. Every compulsory expropriation of an unwilling landowner is prima facie a hardship and the question whether there is reasonable justification for imposing such a hardship under paragraph (b) is intimately bound up with the question whether it is necessary or expedient that the land should be taken into public ownership in order to achieve one of the public purposes envisaged by paragraph (a). There was no evidence led on behalf of the Minister at the hearing before the Supreme Court which was capable of discharging the onus resting upon him with respect to either of those interlocking issues.

It must follow that the order of the Supreme Court cannot stand. However, since there appears to have been some misapprehension on both sides before the Supreme Court as to the true nature of the appeal process under section 10 of the Act and section 8(1) of the Constitution, their Lordships do not think it necessary that the Minister's decision should be quashed, but accede to the proposal of the Solicitor-General that the matter should be remitted to the Supreme Court to give the Minister the opportunity at a re-hearing of the appeal to lead evidence indicating with all necessary particularity the nature and extent of the proposed hotel development, showing how, when and by whom it is proposed to be carried out and why it is necessary or expedient that it be achieved through the medium of public ownership of the land. The appellant will in its turn have the opportunity to controvert the Minister's case by demonstrating, if it can, its own willingness and ability, which it has asserted, to secure that the appropriate development is carried out so as to achieve the social and economic benefits of tourism envisaged by the Government without the need for public acquisition of the land. Their Lordships would only add that in the interests of securing a fair trial of the issues, it will be essential that, in advance of the re-hearing, the Minister makes full disclosure of all documentary material relating to the planned development of the subject land pursuant to rule 4(a) of the Land Acquisition (Appeal) Rules 1974.

Their Lordships will humbly advise Her Majesty that the appeal be allowed, the judgment of the Supreme Court be set aside and the matter be remitted to the Supreme Court for determination in accordance with this judgment. There will be no order for costs before the Board. All costs of the proceedings on the appeal to the Supreme Court under section 10 of the Act will be reserved to the Supreme Court.

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Moraby v The Queen

M. M. Moraby

Appellant

v.

The Queen

Respondent

And

M. Bahorun

Appellant

v.

The Queen

Respondent

Appeals from the Supreme Court (Appellate Division) of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Roskill

Lord Griffiths

Lord Ackner

Sir John Stephenson

Oral Judgment delivered on the 2nd December 1987

by Lord Bridge of Harwich

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Constitutional law - Fundamental principle of justice - Right to fair trial- Replacement of magistrates during hearing - Magistrate convicting defendants without hearing evidence and submissions- Whether infringement of defendants' right to fair hearing - Procedure - Composition of a court of law

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Case referred to in judgment

Pierre Simon André Heng Wong Ng alias Wong v. The Queen (1977-1987) I MPCR 110, [1987] 1 W.L.R. 1356,

Legislations referred to in judgment

Courts Act 1945, section 85

Criminal Code, section 107, 121

The following judgment was delivered by the Board:

There are before their Lordships two appeals from judgments of the Supreme Court of Mauritius (Appellate Division) delivered on 23rd September 1985 dismissing appeals from convictions before the Intermediate Court of the appellants on 30th January 1985. The appellant, Moraby, had been convicted of two offences of forgery contrary to section 107 and 121 of the Criminal Code. The appellant, Bahorun had been convicted of an offence of receiving.

The common feature of the procedure which was followed in the Intermediate Court in both cases was that the hearing began and continued through a number of effective sittings before two magistrates, Mr. V. Narayan and Mr. A. Prasad, but before the judgment came to be delivered in the Intermediate Court on 3Oth January 1985 in both cases the magistrate Mr. V. Narayan had been replaced by another magistrate Mr. P. Lam Shang Leen who sat with Mr. Prasad to deliver judgment but who had not heard any of the evidence or submissions which had been made in court. In those circumstances the present appeals raise precisely the same point as was raised in an appeal before their Lordships' Board in the case of Pierre Simon André Heng Wong Ng alias Wong and Louis Charles Mario Ng Ping Man v. The Queen [1987] 1 W.L.R. 1356 in which their Lordships humbly advised Her Majesty on 18th June 1987 that the appeals should be allowed and the convictions quashed and in which reasons for taking that course were set out in a judgment of the Board delivered by Lord Griffiths on 20th July 1987. The crucial passage in the judgment is at page 3 where it is stated:-

"Their Lordships consider the defendants' (appellants') complaint to be unanswerable. It should be said at once that the Solicitor-General very properly did not seek to uphold their convictions. The Courts Act 1945, as amended, provides that proceedings before the Intermediate Court shall be heard and determined by not less that two nor more than three magistrates and that where the court is composed of two magistrates the decision must be unanimous: see section 85. In a criminal trial, whether before a jury or before magistrates, it is a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence. The evaluation of oral evidence depends not only upon what is said but how it is said. Evidence that may ultimately read well in a transcript may have carried no conviction at all when it was being given. Those charged with returning a verdict in a criminal case have the duty cast upon them to assess and determine the reliability and veracity of the witnesses who give oral evidence, and it is upon this assessment that their verdict will ultimately depend. If they have not had the opportunity to carry out this vital part of their function as judges of the facts, they are disqualified from returning a verdict, and any verdict they purport to return must be quashed."

The principles set out in that judgment are equally applicable to the appeals presently before their Lordships' Board and are equally fatal to the convictions.

Accordingly their Lordships will humbly advise Her Majesty that the appeals ought to be allowed and the convictions quashed. The respondent must pay the appellants' costs.

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