Judgments 2012

GENERAL CONSTRUCTION CO LTD/ GROUP FIVE INTERNATIONAL v BLANCHE BIRGER & CO LTD & ANOR 2012 SCJ 45

This is an application under art 1027-3 of the Code of Civil Procedure for an order to annul an award made by the co-respondent as sole arbitrator following arbitration proceedings involving the applicant as main contractor and the first respondent as nominated sub-contractor and the second respondent as client, in respect of the construction of a building.

Clause 5 of the Arbitration Agreement provides that “the decision of the Arbitrator shall be final and binding upon the Parties and not subject to appeal.” As held in Transinvest v Iframac [1989 MR 68] -

“an award cannot be successfully attacked on the ground of “mal jugé ou pour une erreur dont cette sentence serait affectée”, or on the ground that the arbitrators have misinterpreted the law or the agreements of the parties (vide Dalloz – Codes Annotés – Nouveau Code de Procédure Civile, Vol. IV, article 1028,notes 115 and 116). It cannot be otherwise for a number of reasons.

First, a “recours en annulation” cannot be assimilated, or is not analogous, to a judicial review where a mistake of law could, in certain circumstances, result in a failure to exercise jurisdiction in a matter.

Secondly, an appeal can be on the facts or in law. And where parties have abandoned their right of appeal, it is not proper to re-establish the exercise of this right by the circuitous route of a “recours en annulation”. If this were the case, much of the value of arbitration as a swift and effective method of settlement which both parties have agreed to resort to

would be sapped.”

Likewise, the applicant cannot now challenge the remarks made by the arbitrator in paragraph 57 of the award as cited above. The grounds on which such a challenge is being made can only be invoked as grounds of appeal and not as grounds for a “recours en annulation”. And the applicant has, as indicated above, renounced its right of appeal.

HURNAM D. v PEEROO S. AND ORS 2012 SCJ 41

As a rule, the essence of a praecipe or a plaint with summons is to provide, after reciting the parties, just the skeletal averments with skeletal facts to support the cause of action and the remedy sought. The flesh to the skeleton is supplied when the trial opens and witnesses are called and heard. A case that comes to court with a complete package of averments, material and immaterial facts, matters of evidence, inferences to be drawn from facts, assumptions that are made, personal interpretations of situations and argumentations in law and on facts runs its own risk.

17. That is the reason why the basic rule in pleadings is to be economical. This is well explained by the learned author in Odgers on Pleading and Practice, 16th ed., at p. 104,

We make no apology for stating the obvious inasmuch as the obvious is not so obvious at times:

“Use terse, short, curt, blunt sentences …. Do not beat about the bush. Go straight to the point. Avoid … all introductory averments and circumlocution. A pleading is not a place for fine writing, but simply for hard, downright, business-like assertions.”

18. The unconventional manner in which Appellant chose to present his case in his pleadings for a reason best known to him, starting with a 43-paragraph praecipe, complete with facts, inferences, assumptions, personal interpretation of situation and matters of evidence itself became his case in compact form and attracted a submission of plea in limine on the face of the pleadings. Had the action adopted the conventional line of mere averments with materials facts to be proved in evidence, the appellant may well have had his full day in court, in substantiation of his averments by evidence in court.

The respondents, then defendants, had two options: one was for them to move the Court that such parts of the pleadings which were prolix be struck out so that the matter proceeds on a standard norm; and the other, that they make use of the content of the praecipe to their advantage and nip it in the bud as it were. They chose to do the latter. The praecipe had more than adequate material. The particulars supplied in course of the pleadings were equally prolix. This obviously enabled the Court to rule on the points raised: whether or not there was a cause of action, whether or not the appellant was making an abuse of the process of the court and whether or not his action was frivolous, vexatious and scandalous. A court is perfectly entitled to dismiss an action without proceedings into a full-fledged hearing so long as its decision is based onmaterial disclosed in the pleadings and there subsists no further issue that remains to be tried by that fact.

MUNGRA J v ANACOOTEE V 2012 SCJ 38

The applicant has on 16 August 2010 applied for an interim writ of injunction restraining and prohibiting the respondent, by himself and/or his ‘préposé’ and/or his agents from interfering with – (1) the applicant’s peaceful occupation of a plot of land situate in the District of Rivière Noire, place called Beaux Songes; (2) the vegetables plantation existing on the said portion of land; and (3) applicant getting access to his land and vegetable plantation.

In the American Cyanamid Co. v Ethicon Ltd [1975 A.C 396], it was held that – (a)

the applicant must establish that he has a good arguable claim to the right he seeks to

protect; (b) the Court must not attempt to decide the claim on affidavits, it is enough if the

plaintiff shows that there is a serious question to be tried; and (c) if the plaintiff satisfies

these tests, the grant or refusal of an injunction is a matter for the exercise of the Court’s

discretion on a balance of convenience.

MACSTEEL INTERNATIONAL FAR EAST LIMITED v DESBRO INTERNATIONAL LIMITED 2012 SCJ 26

This is an application under section 4 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 for the recognition and enforcement of a foreign arbitral award delivered by the ICC International Court of Arbitration on 16 December 2010 after the applicant had on 24 January 2007 requested for arbitration in a dispute which had arisen between itself and the respondent.

Respondent contended that the present arbitral award was not receivable by the Supreme Court.

It is appropriate that we state that the law governing the recognition and enforcement of foreign arbitral awards is to be found both in our Code de Procédure Civile, Deuxième Partie, Livre Troisième entitled “De l’Arbitrage” and more especially articles 1028 et seq. which deal with “Des sentences arbitrales prononcées à l’étranger” and in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (“the Act”) which came into force on 15 March 2004. Both enactments vest jurisdiction to hear an application for the recognition and enforcement of a foreign arbitral award in the Supreme Court. Thus article 1028-2 provides as follows –

1028-2. Une sentence arbitrale prononcée à l’étranger ne peut être rendue exécutoire à l’Ile Maurice que par une décision de la Cour Suprême.

As for the Act, the Supreme Court derives its jurisdiction from the combined effect of sections 2 and 4 of the Act which initially provided as follows -

2. Interpretation

(1) In this Act -

… … …

“Court” means the Supreme Court.

4. Jurisdiction

(1) The Court shall have jurisdiction to entertain any application made under any provision of the Convention.

(2) For the purposes of an application under subsection (1), the expression “the competent authority”, wherever it occurs in the Convention, shall be construed as referring to the Court unless the context otherwise requires.

That definition of “Court” in section 2 of the Act was amended by the International Arbitration Act 2008 on its coming into operation on 01 January 2009 so as to read -

“Court” means the Supreme Court constituted as specified in section 42 of the International Arbitration Act 2008

Section 42 of the International Arbitration Act 2008 in fact provides that the Supreme Court “shall be constituted by a panel of 3 Judges”.

The result of that amendment was that an application for the recognition and enforcement of a foreign arbitral award, which was previously heard by the Supreme Court constituted by one Judge or more as may be designated by the Chief Justice depending probably on the complexity of the application and the magnitude of the interests at stake, would as from 01 January 2009 be heard by the Supreme Court constituted by a panel of 3 Judges.

The present application was made on 21 February 2011 and heard by us on 03 November 2011, that is, after the amendment brought to section 2 of the Act. In the circumstances, we take the view that this Court is properly constituted to entertain the present application. True it is that the arbitration was initiated following a request made on 24 January 2007, that is, before the Act was amended on 01 January 2009. But this is a totally irrelevant consideration. What is important is the date of the hearing of the application which, it must be stressed, is one under the Act and not under the International Arbitration Act 2008. The latter enactment provides in its section 3 that its provisions apply only to arbitrations initiated after its commencement. But that provision has no bearing on the Act, the reference in its section 2 to section 42 of the International Arbitration Act 2008 being merely a drafting device.

At any rate, as indicated by learned counsel for the applicant, it is a settled principle that, in the absence of any provision to the contrary, any new law as to procedure has immediate effect and applies to all cases pending before the court irrespective of the date of lodging. We may usefully refer to the following notes from Encyclopédie Dalloz, Répertoire de Procédure Civile et Commerciale, Tome 2, under the heading “Lois et Décrets” -

33. La loi nouvelle qui modifie les règles relatives à la procédure de l’instance s’applique aux actes qui doivent être faits à partir du moment où elle est obligatoire.

34. La citation en justice, valablement faite suivant les formes et dans les délais prévus par la loi ancienne continue à produire les effets prévus par cette loi.

36. Les actes de procédure isolés sont régis par la loi sous l’empire de laquelle ils sont faits. Lorsqu’il s’agit d’une série d’actes formant une même procédure, suivant l’opinion qui prévaut en doctrine et en jurisprudence, tout ce qui tient à la forme, à l’instruction ou à la

procédure est réglé par la loi nouvelle, du jour où elle devient exécutoire qu’il s’agisse d’instances non encore engagées ou même déjà engagées .

39. Le jugement est dans sa forme et dans ses effets soumis à la loi en vigueur au jour où il a été rendu. La règle s’applique à l’autorité de la chose jugée et à la force exécutoire de la sentence.

40. Toutefois il peut être nécessaire de modifier la formule exécutoire ou de soumettre la décision à exequatur dans ce cas la procédure d’exécution est indépendant du jugement.

AIRWORLD LIMITED v MALAYSIAN AIRLINE SYSTEM BERHAD 2012 SCJ 29

The fact that the agreement was deemed to have been made in Malaysia or that it was to be governed by Malaysian laws could not have for effect to oust the jurisdiction of our court, given, first, the provisions of article 20 of our Civil Code and, secondly, the fact that, in accordance with the law and the established practice, the foreign law will have to be established by the parties’ experts.

As for the second preliminary objection, we are of the view that the issue raised has been sufficiently explained in the case of Seament International SAL v The State Trading Corporation [1998 MR 21] and Compagnie Desmem Limitée v United Docks Ltd [2008 SCJ 354]. By failing to invoke the arbitration clause at the first available opportunity and by filing their plea and, in the case of the appellant in the second case, a counterclaim, the appellants are deemed to have renounced the “clause compromissoire”, especially in the light of the authorities quoted by the learned Judge.