Microgames Co v The Municipal Council
of Curepipe
2006 SCJ 49
IN THE SUPREME COURT OF MAURITIUS
(CHAMBERS)
In the matter of:-
MICROGAMES Co. Ltd
Applicant
v
THE
MUNICIPAL COUNCIL OF CUREPIPE & 3
ORS
Respondents
Judgment
This is an application to the Judge in Chambers under
the new law, the Local Government Act (LGA) 2003. It relates
to the issue of municipal licences. Section 106 (1) provides
that when the Police, the Fire Services, the Sanitary Authority
or any other relevant Ministry or Government Department
has raised an objection to the grant of such a licence,
the aggrieved applicant may seize the Judge in Chambers.
The Judge may grant the application on such terms and conditions
as he thinks fit: s 106(5). The decision of the Judge in
Chambers is final and conclusive: s. 106(4).
Limiting ourselves to municipal
licences only for the purpose of this case, the LGA 2003
has introduced a new
system for the issue of licenses. The Act has established
a Licences and Permits Committee (LPC) to act as a one-stop
service: s. 98(2). The function of the LPC is, principally,
to “examine, process and approve applications ….” Even
the manner of carrying out that examination, processing
and approval has been provided for by statute in that the
Committee is bound to follow certain guidelines: s. 98
(3). These guidelines are not just any. They should be
disseminated. They should be clear and transparent: s.
98(3). They should be published: s. 98(4)(c). There should
exist guidelines for the application stage, the processing
stage and the issue stage.
As regards the type of guidelines, they should be in
terms of the requirements of the law, the procedures to
be adopted and in accordance with the guidelines published
by the Council of the local authority: s. 98 (4)(c).
Once the application is
complete with all information, particulars and documents
specified in the application
form, its effective date starts. The Chief Executive submits
it along with other applications to the Council. It is
the responsibility of the Committee to examine the applications
and verify whether they have complied with those guidelines:
s. 105 (2). Once the Committee considers that the application
is guideline compliant, the law provides for the immediate
granting of the licence, unless the Committee takes the
view that the application needs to be referred to the Police,
the Fire Services, the Sanitary Authority or any other
relevant Ministry or Government Department for its views:
s. 105(4). In this case, it has two weeks from its effective
date to do so. Where the Committee finds that the application
is not guide-line compliant, it should notify the applicant
in writing of the reasons therefore. The Police, the Fire
Services, the Sanitary Authority or any other relevant
Ministry or Government Department have 4 weeks from the
date of reference within which to respond, failing which
the Chief Executive has the power to grant the licence
or the permit applied for, without any reference to the
Council: s. 105(6). However, where the specified authorities
raise objections, the Chief Executive should not later
than 5 days after receiving them, communicate same to the
applicant, by registered post. It is these objections that
the Judge in Chambers is given competence to hear and determine.
It is the responsibility of the aggrieved applicant to
seize the Judge in Chambers. He has 30 days within which
to do so from the date on which the objection is posted
to him. The order that he prays for is for the Police,
the Fire Services, the Sanitary Authority or any other
relevant Ministry or Government Department to show cause
why the application should not be granted: s. 106(1).
When I examined the present
application and the new law relating to such applications,
I wanted to be satisfied,
in the first place, that the statutory procedure had been
properly followed, more especially whether the Licences
and Permits Committee had – published the guidelines
required under section 98 (4) (c) of the Local Government
Act 2003; “disseminated” these guidelines as
they were bound to do, more particularly to Microgames;
and found as a matter of fact that the application of Microgames
complied with section 98(4) as they had to do under section
105 (3) before referral to the relevant authorities for
their views.
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In case the answer to (a)
was positive, a copy of the guidelines was to be put
in. The candid co-operation of
the lawyers in the matter is appreciated. The answers I
obtained were revealing. First, the “Guidelines” were
not published in the Government Gazette even if they were
approved by the Council. Second, the “Guide-lines” were
annexed to the Application Form. Third, PLC did not consider
whether the applicant complied with the “Guidelines” being
given that the applicant had already obtained all relevant
clearances from the competent authorities. I have used
the term “Guidelines” between inverted commas
advisedly on account of the fact that when the content
of the document stated to be “Guidelines” is
examined, one easily sees that it contains anything but
guide-lines. They are general information passed on to
applicants. Though given under the rubric, the document
is anything but a set of “Guidelines.”
The Oxford English Dictionary
defines “Guidelines” as
a general rule, principle or piece of advice. To list in
a sheet of paper attached to an Application Form (a) “the
original documents commonly required plus 2 photocopies”;
and (b) “authorities from which recommendations are
usually sought depending upon the nature of the licence
does not make that paper a guideline under the law.” As
may be seen the paper could have been called a maze rather
than a guide-line. If any model is needed for the purpose
of knowing what guide-lines are the Respondent No. 1 is
referred to the Ninth Schedule of the very same Act.
It is worth noting that the applicant sent in his demand
in September 2001 to the Respondent No. 1, the Municipality
of Curepipe. The application was for the issue of a development
permit to operate a place of amusement at 20 Bour Street,
Curepipe. The local authority granted the permit on condition
that the company obtained clearance from the Tourism Authority.
He made a payment of Rs 200 for the purpose. However, there
ensued a general silence up until October 2004 when the
company was informed that a fresh application should be
made to the local authority, which the company did. This
was obviously due to a confusion arising between the local
authority and the Tourism Board following the passing of
the Tourism Authority Act as to the nature of their competence
in such cases as the present one. This confusion was soon
resolved and the local authority was considered to be the
competent body for the purpose. On this matter, the letter
from the Permanent Secretary of the Local Government and
Solid Waste Management dated 25 October refers.
The Permits and Licences
Committee sat on 15 February 2005 and rejected the application.
The Guidelines were
no guidelines at all. They had not been published. The
PLC did not check whether the application was guideline
compliant. The new law on the matter was altogether ignored
for a reason best known to the PLC. However it be, the
applicant was informed of the refusal on 3 March 2005.
The Committee took into consideration the location of the
business activity, which was in a highly residential area.
The applicant initiated his process before the Judge in
Chambers on 24 March 2005. The detailed reasons for which
the local authority did not grant the licence may be gleaned
from the affidavits, the counter-affidavits and the documents
attached thereto. There have been sustained objections
from the neighbours of the locality who, jealously wanting
to preserve the peace and quiet in their environment, strongly
oppose that a gaming house be opened at the place. They
dread that its presence will have an adverse effect and
influence on students, especially the youth of the area.
The opposition of the neighbours are found in (i) Annex
2 dated 18 December 2003 directed to the Tourism Authority;
(ii) Annex 3 dated 30 June 2004, again sent to the Tourism
Authority; (iii) Annex 4, dated 22 November repeated to
the Tourism Authority; (iv) Annex 5, comprising comment
sent by the Commissioner of Police in response to the letter
of January 2004 with the remark that the building has been
found suitable for the purpose; (v) Annex 6, containing
the remark of the Ministry of Local Government to the municipal
council dated 12 May 2004; (vi) Annex 7, containing the
views of the Ministry of Local Government recalling the
statutory duties of the local authorities generally, more
especially, its responsibility of promoting “the
social as well as the environmental well-being of the local
community, noise pollution emanating from a gaming house …”
Indeed, section 40 of the
LGA 2003 provides that –
“The purpose of the local authority shall be to
-promote the social, economic, environmental and cultural
well-being of the local community; improve the overall
quality of life of people of the local community;….….ensure
transparency and accountability in decision-making …”
The stated object of the Bill at the time of its presentation
in Parliament was to amend, consolidate and modernize the
law relating to local government. This it sought to do
by, inter alia, -grant of a new status to local authorities
through a modern legal framework which would provide for
greater decentralisation and transparency in the management
of the affairs of local authorities; streamlining of the
administrative procedures with a view to providing increasing
responsibility and accountability to and ensuring effective
delivery of services by local authorities;
empowering of local authorities to act as one-stop service
in the issue of development permits, building permits and
Municipal licences;etc. etc.
It is accordingly to meet
the objective of, inter alia, greater transparency, increasing
responsibility and accountability
that section 98 was inserted. The modern legal framework
required the up-front formulation, dissemination and publication
of, and adherence to, guidelines which are clear and transparent,
in terms of the requirements of the law, the procedures
to be adopted and … in accordance with … principles
and plans …” The reasons are obvious. A public
body empowered to use criteria in its statutory discretion
may make either a proper use of the law or an improper
use of it. It may abuse it by using the correct criteria
but in an arbitrary manner at the end of an exercise by
keeping the applicant in the dark of what criterion will
be used and with what weight or impact. The proper use
of criteria under the law would be where the critical elements
for consideration are prepared well in advance, with all
the seriousness they deserve, disseminated in good time
and published in advance for the world at large to know
and to follow.
The practice of axing or
allowing applications by criteria even if correct but
at the end of an exercise carry many
a mischief not unknown in running public affairs. The objective
of the new LGA was to introduce professionalism, fair play
and a level playing field in the award of permits and licences
and to do away with a system that allowed the growth of
a sub-culture of arbitrariness. That is the reason for
which the Council was given no choice but to grant the
licence applied for where –the upfront criteria had
been met; and there were no objections from the Police,
the Fire Services, the Sanitary Authority or other relevant
Ministry or Government Department where the views of the
latter had been sought.
In this application, I find as follows. First, the local
authority has failed to follow the law on the up-front
formulation of guidelines, having them properly approved,
disseminated and duly published so that their compliance
could be ensured for the purposes of examining, processing
and approving permits and licences. This case seems to
confirm the view that old habits die hard. The new law
has had little impact on an old culture that rendered everyone
concerned vulnerable to so many mischiefs. In short, the
local authority, by not following the statutory procedure,
is foiling the intention of the legislator and defeating
the provisions of the very law which it has been delegated
by Parliament to administer.
For the reasons given above, I consider that the decision
taken in this case cannot stand and is null and void. The
Respondent No. 1 should comply with the law, more specifically
section 98 and 105 so that not only applicants and decision-makers
but also the citizen may see, with all the openness that
is required, that the system is objective and fair.
The case of Funworld v.
The Municipal Council of Quatre Bornes [2005 SCJ 203]
was referred to me. That case is
distinguishable from the present one in that the order
was given “in the absence of any valid objection.” Our
case is one where objections have been raised by the authorities
and those that have been raised are not outside the competence
of the local authority to take into account under the law.
Indeed, the purpose for which central government created
local government was, inter alia, to enable the latter
to promote the social, economic, environmental and cultural
well-being of the local community;, improve the overall
quality of life of people of the local community; ensure
transparency and accountability in decision-making …”
In the light of the above, I find that the Respondent
No. 1 not having followed the statutory procedure for application,
its decision is flawed. As regards the applicant, I take
the view that he may not invoke the illegality of the Respondent
No. 1 to obtain the licence applied for. Inasmuch as the
decision to decline the licence has been taken without
the statutory procedure having been followed, it is my
view that there has been no decision. The authorities,
therefore, should take a fresh decision in the matter after
formulating, disseminating and publishing the appropriate
guidelines as per the requirement of the law.
In the circumstances, considering that the situation is
quite novel resulting from the teething period of the new
law, I order no costs.
S. B. Domah
Judge
24 February 2006
For Applicant: Mr Y. Mohammed S.C, instructed by Mr Attorney
C. Mallam Hassam
For Respondent: No 1: Mr Balamoody of Counsel, instructed
by Mr Attorney G. Noel
For Respondent No 2:- D. Lutchmun, Attorney
For Respondent No 2 & 4:
State Counsel/State Attorney
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