Société United Docks v Government of Mauritius
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1985 |
| Year | 1985 |
| Date | 1985 |
| Court | Privy Council |
Mauritius - Constitution - Fundamental rights and freedoms - Deprivation of property - Dispute between marine authority and workers referred to arbitration - Arbitration award increasing salaries and allowances - Proceedings taken to enforce award - Direction by minister to authority not to implement award - Whether minister exceeding powers - Attorney-General empowered to object to enforcement of arbitration award contrary to public interest - Whether workers deprived of property without compensation -
Section 3 of the Constitution of Mauritius provides:
“It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination … but subject to respect … for the public interest, each and all of the following human rights and fundamental freedoms, namely — … (c) the right of the individual to protection … from deprivation of property without compensation, and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms …”
Section 8 provides:
“(1) 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 the following conditions are satisfied, that is to say — … (c) provision is made by a law applicable to that taking of possession or acquisition — (i) for the prompt payment of adequate compensation; …”
The Code of Civil Procedure (Amendment) Act 1981 by section 2 enacted a new code on arbitration, which was retrospective, article 1026–9 of which provides:
“Le Ministere Public peut s'opposer a l'execution de la sentence arbitrale, lorsqu'il estime que cette execution est de nature a porter atteinte a l'interet public.”F1
In the first appeal the appellant dock and stevedore companies had for many years been engaged to handle, store and load sugar by a syndicate which was the sole sugar marketing organisation in Mauritius. In 1970 the syndicate decided to establish a bulk sugar terminal, which would deprive the companies of their main business, and the syndicate agreed to pay compensation to the companies. In 1979 the Government of Mauritius decided that ownership of the terminal should not vest in the syndicate but in a statutory corporation controlled by representatives of the government. The corporation was established by the Mauritius Sugar Terminal Corporation Act 1979, and section 5 gave the corporation a monopoly in relation to storing and loading sugar. The terminal became operative in 1980 and the companies lost their main business without compensation from the government, or from the syndicate which was not liable to pay compensation since it was not operating the terminal. The companies brought actions against the government in the Supreme Court of Mauritius seeking redress under section 17 of the ConstitutionF2 claiming that the Act of 1979 had deprived them of property without compensation contrary to sections 3 and 8 of the Constitution and that they were entitled to compensation. The Supreme Court dismissed the consolidated actions of the dock and stevedore companies.
In the second appeal the appellants were workers and trade unions representing workers employed by the ports authority, the M.M.A.. In 1979 the unions and the M.M.A. agreed to submit to arbitration a dispute concerning salaries and allowances the award to be binding on them. An arbitrator and two assessors were appointed and on 2 August 1980 an award was made which provided for a substantial increase in salaries from 1 January 1980 to 30 June 1983. In December 1980 the appellants applied to the court for the award to be made executory and enforced. The government considered the increases to be undesirable and the minister responsible for ports gave a direction to the M.M.A. not to implement the award under section 9(1) of the Ports Act 1975, which empowered him to give, in the public interest, directions to the M.M.A. as to the manner in which the M.M.A. should exercise its powers. The M.M.A. accordingly opposed the appellants' application. On 3 April 1981 Glover J reserved judgment, and the Code of Civil Procedure (Amendment) Act 1981 was passed. It came into force on 8 April. On 9 April the Attorney-General, under that Act, served a notice of objection to enforcement of the award on the ground that the award was contrary to the public interest. The appellants claimed that the new article 1026–9 of the Code of Civil Procedure and section 3 of the Act of 1881 deprived them of property without compensation contrary to section 8 of the Constitution, and the judge referred the matter to the Supreme Court, which held that the award could not be made executory.
On appeals by the dock and stevedore companies in the first appeal and the appellant workers and unions in the second appeal: —
Held, dismissing the first appeal and allowing the second appeal, (1) that the right of the individual to protection from deprivation of property without compensation afforded by section 3 of the Constitution applied also to corporate bodies and the protection was not confined to property which had been compulsorily taken possession of or compulsorily acquired within section 8 (post, pp. 122H–123C, 124D–E, 130H).
(2) That the dock and stevedore companies' loss of profit and inability to sell their goodwill was not caused by coercive actions of the government since although the Mauritius Sugar Terminal Corporation Act 1979 authorised the construction of the terminal and gave it a statutory monopoly because the companies' loss was caused by being unable to provide an efficient service for the sugar industry and, therefore, they were unable to compete with the terminal; that the government's decision to construct the terminal had released the syndicate from its obligation to pay compensation to the companies as promised in 1970, but the companies had not been deprived of that compensation by any coercive act of the government; and that, accordingly, they were not entitled to redress under section 17 of the Constitution (post, pp. 126C–D, F–127C, C–F, H, 128B).
(3) That the M.M.A. was contractually bound to accept the arbitration award and, therefore, since the M.M.A. had no power to break its contracts the minister could not direct the M.M.A. under section 9 of the Ports Act 1975 to direct the M.M.A. not to implement the award; that the provisions of the Code of Civil Procedure (Amendment) Act 1981 and the Attorney-General's objection thereunder made the arbitration award unenforceable and prevented its implementation thereby depriving without compensation each worker employed by the M.M.A. during the duration of the award of the benefits of it, and of the right to bring an action for and recover damages for breach by the M.M.A. of the contract of employment, contrary to section 3 of the Constitution; and that, therefore, such worker was entitled by way of redress under section 17 of the Constitution to be paid by the M.M.A. or the government the difference between the salary and allowances paid and the increased amounts which would have been payable pursuant to the award (post, pp. 130C–G, H–131A, B, F–G).
The following cases are referred to in the judgment of their Lordships:
Attorney-General v. Antigua Times Ltd. [
Attorney-General of The Gambia v. Momodou Jobe [
Burmah Oil Co. Ltd. v. Lord Advocate [
France Fenwick & Co. Ltd. v. The King [
Government of Malaysia v. Selangor Pilot Association [
Hinds v. The Queen [
Jaundoo v. Attorney-General of Guyana [
Liyanage v. The Queen [
Maharaj v. Attorney-General of Trinidad and Tobago (No 2) [
Manitoba Fisheries Ltd. v. The Queen [
Olivier v. Buttigieg [
Thornhill v. Attorney-General of Trinidad and Tobago [
The following additional cases were cited in argument:
Attorney-General for Australia v. The Queen [
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