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BOOLELL S v INDEPENDENT COMMISSION AGAINST CORRUPTION & ORS

2017 SCJ 226

Record No. 112284


THE SUPREME COURT OF MAURITIUS
In the matter of:-
S. Boolell
Applicant
v

1. The Independent Commission against Corruption


2. The Ministry of Housing and Lands
3. The Senior Chief Executive of the Ministry of Housing
and Lands
Respondents
In the presence of:-
The Attorney General
Co-Respondent
--------------
JUDGMENT

The applicant, who is currently the holder of the constitutional post of Director of Public
Prosecutions, is seeking leave to apply for a judicial review of

(a) the decision of the second respondent dated 6 July 2015 to refer the matter of Sun
Tan Hotels Pty Ltd to the first respondent for investigation; and

(b) the decision of the first respondent taken on 13 July 2015 to proceed with further
investigation, to convene the applicant to its headquarters and to require him to
make a statement under warning in relation to the said matter.

The respondents are objecting to leave being granted on the following three grounds,
namely, that (a) there has been undue delay in making the application; (b) there is an alternative
remedy available to the applicant who has already lodged an action for constitutional redress;
and (c) the application does not disclose any arguable case.
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We have no difficulty in disposing outright of the first ground of objection. Although the
present application appears to have been lodged some 2 months after the application for
injunctive relief was lodged before the learned Judge in Chambers on 14 July 2015, it is not
disputed that it is still within the time limit of 3 months for the institution of judicial review
proceedings. From the sequence of events which unfolded before the learned Judge in
Chambers, as set out in the applicants affidavit, we are satisfied that the applicant cannot be
taxed for having failed to act promptly. Moreover, as rightly submitted by Mr S. Bhuckory, SC,
for the applicant, the respondents have not invoked any substantial prejudice or hardship which
resulted from the time taken to lodge the present proceedings. In the circumstances, we are not
prepared to hold that there has been any undue delay.

As regards the second ground of objection, suffice it to say that from a perusal of the
plaint with summons dated 25 June 2015, attached to the applicants affidavit, whereby the
applicant is seeking constitutional relief, it is amply clear that the said case is in relation to
another matter, namely a Cabinet decision to bring the Office of the Director of Public
Prosecutions under the umbrella of the Attorney Generals Office. That is a different matter,
based on different facts and where the prayers being sought are not quite the same. Therefore,
the argument that the applicant has an alternative remedy cannot, in our view, stand.

We are left with the last ground of objection. In a gist, the submission of learned
Counsel for all three respondents is to the effect that, ex-facie the affidavit evidence on record,
the applicant has failed to disclose an arguable case in view of the powers vested in the first
respondent under the Prevention of Corruption Act (POCA). It was also submitted that section
93 of the Constitution, which the applicant seeks to rely on, does not grant any immunity to the
applicant and does not preclude the first respondent from exercising its powers under the
POCA.

In reply, learned Senior Counsel for the applicant submitted that the present application
calls for a determination on the issue of whether, by virtue of the constitutional post held by the
applicant, the respondents ought to have triggered the mechanism set out in section 93 of the
Constitution in relation to any alleged act of misbehaviour by the applicant, instead of taking the
decisions which they did.
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From the tenor of the affidavit evidence on record and the comprehensive submissions,
both on the facts and in law, made before us, it is very clear to us that the questions of (a)
whether the impugned decisions of the first and second respondents were indeed unlawful, ultra
vires, procedurally improper, irrational, Wednesbury unreasonable and made for improper
motives; and (b) the ramifications and implications of section 93 of the Constitution, given the
rare circumstances of the present matter, are debatable ones which will need to be thrashed out
and determined on the merits. We, therefore, hold the view that the application discloses
sufficient grounds for an arguable case requiring a full hearing on the merits for its final
determination.

There remains the cause of action against the co-respondent. The latter has moved to
be put out of cause on the ground that he is not an interested party as he was not involved in
the impugned decisions giving rise to the present application. In view of (a) the undisputed
evidence on record that the co-respondent had voluntarily, through an affidavit sworn by a law
officer, sought leave to intervene in the matter before the learned Judge in Chambers; and (b)
all the averments made in the applicants affidavit in relation to the said law officer, we are not
prepared, at this juncture when a main case has been entered, to put the co-respondent out of
cause. Given the nature of the issues involved in the present application, we consider that this is
a fit case where the co-respondents presence is, in fact, desirable and necessary to enlighten
the Court on any legal or constitutional issues which may arise at the hearing of the application
for the judicial review.

For the reasons we have given above, we grant the applicant leave to apply for judicial
review.

K.P. Matadeen
Chief Justice

A.A. Caunhye
Judge
22 June 2017
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Judgment delivered by Hon. K. P. Matadeen, Chief Justice

For Applicant : Mr V. K. Dwarka, Attorney-at-Law


Mr S. Bhuckory SC, together with Sir H. Moollan QC,
Messrs R. Dunienville QC, H. Duval SC, V. Reddi and
Ms N. Ahmine, of Counsel

For First Respondent : Mr S. Mardemootoo SA


Ms N. Behary Paray, of Counsel together with
Mr M. Sauzier, SC

For Second and Third : Mrs A. Ragavoodoo, Attorney-at-Law


Respondents Mr R. Chetty SC, together with Mr M. Gobin and
Ms Z. Cassamally, of Counsel

For Co-Respondent : Ms V. Nirsimloo, Deputy Chief State Attorney


Ms S. Gareeboo, Assistant Parliamentary Counsel,
together with Ms N. Pem, State Counsel