Case details

The State of Mauritius and another (Appellants) v The (Mauritius) CT Power Limited and others (Respondents) (Mauritius)

Case ID: JCPC 2017/0023

Jurisdiction: The Supreme Court of Mauritius

Case summary

Issues
  1. Whether the appellants have impermissibly changed their grounds of appeal from those in the application for leave to appeal and, if so, whether they should be permitted to advance any new grounds of appeal.
  2. Whether various government decisions were properly the subject of applications for judicial review made against the appellants in each appeal.
  3. Whether the appellants in each appeal were incorrectly made parties to the application for judicial review.
  4. Whether the decisions under review in each case were misconceived, unreasonable, irrational and in breach of the first respondent’s legitimate expectation.
  5. Whether various findings were supported by the evidence.
  6. Whether the Supreme Court of Mauritius was wrong to permit the first respondent to amend its original applications in order to seek declaratory relief.
  7. In 2017/0023, whether the Supreme Court should have found that the Ministry of Energy could not have signed the Implementation Agreement without the approval of the Ministry of Finance.
Facts

CT Power Limited is a private company which at the relevant times sought to construct a coal power plant in Mauritius.

The Board of Investment ("BOI") may, under s.7(b) of the Investment Promotion Act, "act as the Government's representative in coordinating, facilitating and implementing public-private partnership projects." It falls under the supervision of the Minister of Finance. In April 2006 the BOI informed CT Power that it would receive an investment certificate for the planned power plant upon meeting various criteria. These included: (1) the agreement of a "Power Purchase Agreement" between CT Power and the Central Electricity Board ("CEB") and (2) that CT Power secure an Environmental Impact Assessment ("EIA") Licence in respect of the project from the Ministry of Environment, Sustainable Development, Disaster and Beach Management ("Ministry of Environment").

In December 2008 the CEB and CT Power signed a "Power Purchase Agreement. In order for the project to progress further, CT Power and the State of Mauritius needed to sign an "Implementation Agreement."

The Ministry of Environment issued an EIA licence for the planned project to CT Power which included various conditions. Under Condition 15 of the EIA licence, CT Power undertook to provide "proof of its financial capabilities for the duration of the project to the satisfaction of the Ministry of Finance and Economic Development."

CT Power obtained various letters from prospective lenders which expressed an interest in financing the project in future. Those letters were forwarded to the government. In March 2015, the government decided not to proceed with the project, on the basis that CT Power had failed to "submit evidence of their financial capacity and sources of funding." The Minister of Energy also stated in the National Assembly that CT Power had not complied with Condition 15, having failed to state its source of funding. CT Power states that it is unaware of any government decision requiring it to state its source of funding.

CT Power applied for leave to apply for the judicial review of: (1) the Minister of Energy’s statements to the effect that Condition 15 of the EIA licence had not been satisfied and (2) the refusal of Ministry of Energy to sign the Implementation Agreement for the stated reason that Condition 15 was unsatisfied.

Parties

Appellants
  1. State of Mauritius
  2. The Ministry of Energy and Public Utilities
Respondents
  1. The (Mauritius) CT Power Limited 20
  2. Ministry of Finance and Economic Development
  3. Honourable Minister of Finance and Economic Development
  4. Honourable Minister of Energy and Public Utilities
  5. Ministry of Environment, Sustainable Development, Disaster and Beach Management
  6. The Central Electricity Board

Appeal

Justices

Lord Mance, Lord Carnwath, Lord Briggs

Hearing start date

15 Jan 2018

Hearing finish date

15 Jan 2018

Watch hearing
15 Jan 2018 Morning session