Marie Jean Nelson Mirbel and others v The State of Mauritius and others (Mauritius)

Section 17(1) of the Constitution of Mauritius provides a personal remedy for personal prejudice. It does not permit a general public-interest challenge to legislation or administrative action. A claimant attacking an entire tax as unlawful has standing if, on the pleaded facts, he is liable to pay it; he need not show a burden different from that borne by other taxpayers. A challenge to a discriminatory provision may require proof that the claimant belongs to the class said to be unfairly prejudiced. At the interlocutory stage, pleadings should be read in the light of the parties’ treatment of an amended tax regime where the real issues are clear, rather than struck out on a technicality.

The appellants, four Mauritian citizens who owned land, challenged the national residential property tax introduced by section 18 of the Finance Act 2006 as contrary to sections 3 and 8 of the Constitution of Mauritius. The tax was amended by section 17 of the Finance Act 2007, but the Plaint was not amended.

The Supreme Court of Mauritius dismissed the Plaint on the respondents’ plea in limine litis, holding that the appellants had not pleaded facts establishing personal standing and could not bring a public-interest challenge. The central issue before the Board was whether the Plaint alleged facts capable of giving the appellants locus standi under section 17(1) of the Constitution.

Appeal allowed, subject to conditions. The Board held that the attack on locus standi had not been made out, while leaving the constitutional merits of the tax challenge undecided.

1. Nature of the constitutional remedy. Section 17(1) of the Constitution of Mauritius provides an additional or alternative personal remedy for alleged infringement of a fundamental right. The phrase requiring infringement to be in relation to the claimant excludes a general challenge to legislation or administrative action brought in the public interest. The distinction between a personal constitutional claim and judicial review, exemplified by Tengur v Ministry of Education and Scientific Research and Another [2002] SCJ 48, [2002] MR 166, made reliance on relaxed judicial-review standing principles misconceived.
2. Construction of the pleading. The issue was to be determined on the assumption that the pleaded facts were accurate. Although the Plaint had originally addressed the NRPT in its earlier form, the parties had treated it as addressing the amended tax. The general averment that the appellants fell within the tax conditions was therefore properly read as asserting ownership of land carrying residential buildings and annual incomes exceeding 385,000 rupees. Striking out the proceedings on the Supreme Court’s technical reading of the pleading was unsound where the real issues were sufficiently clear.
3. Personal prejudice. Where a claimant attacks a particular tax provision as discriminatory, it may be necessary to show that he belongs to the class unfairly prejudiced by that provision. That was not this case. The appellants made a frontal attack on the whole NRPT as unconstitutional and void. If that attack were sound, they would be personally prejudiced by liability to pay an unlawful tax, even if other taxpayers were affected in the same way.
4. Directions and costs. Within 28 days the appellants were required to amend the Plaint to plead the NRPT in its current form and provide particulars of the income and residential buildings said to give rise to liability. Subject to compliance, the appeal was allowed. The provisional costs order awarded the appellants their costs in the cause unless written submissions were made within 28 days.

The Board also observed that pleadings should identify the issues for determination and that particulars should be sought only where genuinely needed to elucidate the opposing case.

• Privy Council: The Board allowed the appeal on the issue of locus standi, subject to amendment of the pleadings and provision of particulars.
• Supreme Court of Mauritius: K P Matadeen ACJ and A F Chui Yew Cheong J dismissed the Plaint with costs on the ground that the appellants lacked locus standi. The Court did not determine the other grounds of the plea in limine litis.