Civil Procedure Cases - Judgments 2012

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.  A court is perfectly entitled to dismiss an action without proceedings into a full-fledged hearing so long as its decision is based on material 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

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.

THE CENTRAL WATER AUTHORITY v ALPHAMIX LIMITED 2012 SCJ 8

This is an application by way of motion for an order of the Court declaring null and void, reversing and setting aside the award of the Arbitrator which was made executory by the Judge in Chambers. Paragraph (e) of terms of reference stipulates that the award of the arbitrator shall be final and conclusive upon the parties, with costs against the losing party.

The application is grounded on a number of allegations to the effect that the arbitral award is in breach of Article 1027-3 of the Code de Procédure Civile. Two alleged breaches were in fact invoked:

 (i) that the arbitrator had exceeded his “mission” [vide Article 1027-3 para.3 : and

(ii) that the arbitrator had made the award without a valid “convention d’arbitrage” or a “convention nulle ou expirée” [vide para. 10 of the affidavit and article 1027-3, para.1:

All these complaints refer to matters of evidence which are within the province of the arbitrator and do not fall within the very confined provisions of Article 1027-3(3) of the Code de Procédure Civile.

In Transinvest Engineering & Contracting Ltd v Iframac Transport Co. Ltd and Latour Adrien & Ors [1989 MR 68], the applicant had sought to obtain a “recours en annulation” in respect of an arbitral award on the ground that the arbitrator had not complied with his mission pursuant to Article 1027-3(3) of our Code de Procédure Civile. The Court held that an award could not 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.

We may also mention Article 1026-7 of the Code de Procédure Civile which permits an arbitrator to correct any error or omission contained in an award.

It was surely open to the applicant to avail itself of the provisions of Article 1026-7, the right of appeal having been specifically removed by mutual agreement, on the issue of interest. But it appears that there was no such recourse.

CESAR v MRA 2012 SCJ 11

The defendant has, in a plea in limine litis, moved that the plaint be dismissed with costs inasmuch as it does not disclose any cause of action against it.

A thorough perusal of the plaint reveals that the plaintiff has not specified what is his cause of action. In fact, nowhere in the plaint is it spelt out whether the present action is grounded in contract, tort or administrative law. Nowhere is it spelt out whether the defendant is being sued directly or vicariously.

It is well settled that a defendant is entitled to know what case he has to meet, which is obviously not the case here. The plaint does not specify what is the plaintiff’s cause of action and learned Counsel for the plaintiff has utterly failed to enlighten the Court on this issue. The defendant cannot be left to guess what is the plaintiff’s cause of action and what case it has to meet.

Moreover, I bear in mind that the defendant is a statutory body whose members and employees enjoy the protection afforded by the Public Officers’ Protection Act (vide section 22(2) of the Mauritius Revenue Authority Act). It follows that the defendant is entitled to know in which capacity it is being sued so that it may avail itself of such protection if applicable and if need be. However, the defendant has been left in the dark here.

IBL v THE MAURITIUS SUGAR AUTHORITY 2012 SCJ 12

Following an arbitral award made in its favour, the applicant has moved before me for an exequatur forcée under article 1026-8 of the Code de Procedure Civile. The Respondent has objected to the order claimed on the ground that it has already complied with the award made so that the need for such an order does not arise to which the applicant has responded that the compliance was not full but partial only.

On the facts as advanced by the respondent, it states it has complied with the award except that it has done so by exercising a right to set off a sum claimed and due to it by the applicant. I have considered the judgments of Mauritius Union Assurance Co. Ltd v GFA Insurance Co. Ltd [2011 SCJ 34]; Allied Builders Ltd v Aluminium Industries Ltd [2002 SCJ 5] Gujadhur &Ors v Gujadhur [1967 MR 19].They relate to the application of article 1026-08 but do not deal with the specific issue raised in this application i.e. in what circumstances can a party against whom an award has been made in arbitral proceedings set off against an awardee a liquidated claim ascertained after award. Order denied.

SOTRAVIC v CEB 2012 SCJ 30

The present appeal challenges the decision of the learned Judge in Chambers.

At the hearing of the appeal, we queried learned counsel for the appellant as to why the present proceedings have been made ex parte, especially given the express provisions of section 76A of the Courts Act which require that notice of the appeal must be served on all parties to the case. And once the learned Judge in Chambers not only refused the application for the interim order but also refused to issue a summons and set aside the application, the appellant was required to join the other parties to the application as parties to the present appeal.

In the circumstances as all the interested parties in the present appeal have not been made parties to the present appeal proceedings, we hold that the appeal is incompetent and we dismiss it.

FRANCE S. A.E v SOCIETE INTERVENANT TECHNOLOGIE LTD 2012 SCJ 114

This is a motion to declare executory in Mauritius a judgment delivered by the Tribunal de Commerce de Paris in France on 16 February 2006.

It is article 546 CPC which governs applications for exequatur in Mauritius of the judgment of a French Tribunal and we stand guided for that purpose by French decisions and jurisprudence (Lincoln v Credit Lyonnais S A [2009 SCJ 396] and Ungar v Burton [1977 MR 156]).

It was spelt out in D’Arifat v Lesueur [1949 MR 191] that the following conditions must be satisfied for the granting of exequatur of a foreign judgment under article 546 CPC -

(1)     the judgment must still be valid and capable of execution in the country where it was delivered;

(2)     it must not be contrary to any principle affecting public order;

(3)     the defendant must have been regularly summoned to attend the proceedings; and

(4)     the court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

These conditions have been consistently applied by the Supreme Court in Mauritius in the determination of such applications. Vide for instance Toorabally v Ashraf [2009 SCJ 51] and Banque Populaire de la Région Economique de Strasbourg v Tanguy [2009 SCJ 223].

ING BANK N.V. v. THE STATE OF ZIMBABWE & ORS 2012 SCJ 120

A saisie arrêt such as the present one, falls under Article 557 (and following), which describe the circumstances in which such saisies can be effected and the procedural steps to be followed:

”Tout créancier peut, en vertu de tires authentiques ou privés, saisir-arrêter entre les mains d’un tiers les sommes et effets appartenant à son débiteur, ou s’opposer à leur remise.»

The relevant provision of the law conferring upon the Judge in Chambers the jurisdiction to validate a “saisie arrêt” is to be found at Section 71 (1) of the Courts Act hereunder reproduced –

“71. Matters disposed of by Judge in Chambers

(1) Subject to subsection (2), applications for or concerned with or in respect to any matter specified in this section and any matter connected therewith may, subject to the discretion of the judge in any particular case to refer them to the court, be finally disposed of at Chambers by a judge’s order, which order shall be a sufficient authority to the Registrar to issue thereon a rule of court de plano -

[….…]

(e) applications for the validity or nullity of attachments;.

[……]”

However Section 71 (2) provides that –

“In applications under subsection (1) (c), (d), (e) or (f), no order shall be made by a judge in Chambers, where a party to the application objects.”

It is now settled law that an objection under Section 71 (2) must be a “serious objection or one which prima facie has some substance in it and is not frivolous or vexatious” (see State Bank of Mauritius v. Edelweiss Card Mauritius [2011 SCJ 215].

In the case of Edelweiss Card Mauritius, the court cited the previous case of MCB Ltd v. Hossenbaccus and the Commissioner of Police [1959 MR 269] in which the appellate court made the following observations:

“In our view the section [71] means that subject to his discretion to refer the application to Court, the judge should dispose finally of the application. If, however, there is a serious objection thereto he is then precluded from adopting such a course and must refer the application to Court.” (Emphasis added)

(See also Jokhoo v. Goolam Hossen [1995 SCJ 254] and A & J Maurel Construction Ltée v. Telephone Escot Development & Anor [1998 SCJ 15]).

The present proceedings have only reached the second stage of the attachment process directed only against the debtor and no one else, there is at this stage a “dénonciation” of the saisie and an “assignation au débiteur en validité” i.e. he is summoned to show cause why the attachment proceedings (instance en validité),”should not be held good and valid”.

The garnishee has not been shown to hold any “sommes ou effets appartenant au débiteur du créancier” (here the respondent No. 1) such that this sum can be attached in its hands under the terms of Article 557.

EDOUARD v EDOUARD 2012 SCJ 121

The contention of the respondents is that the application for new trial should not be entertained on the ground of unreasonable delay in making the application.

confirmed in Butchanah v Butchanah [2007 MR 33], and there is no specific time limit provided for under that rule (rule 45) or any other relevant rule. In the absence of any such specific time bar, the principle is that the application should be made within a reasonable time having regard to the circumstances of the case (see Sanmukhiya and Ors v Sanmukhiya [1992 MR 86] at the last but one paragraph where the Court invoked this principle on the authority of Gujadhur v Reunion Ltd. [1960 MR 112].”

In deciding whether an application has actually been made within a reasonable time, our courts have used, if not as a reference pole, at least as useful guidance, the delay which is provided by law for appealing against a decision of a Judge in Chambers, which indeed provides an appropriate analogy as one could hardly conceive why a would be applicant for a new trial should be granted a longer delay to make his application than a would be appellant.

Having regard to the delay of 21 days which would have been applicable upon an appeal against the decision of a Judge in Chambers, the present delay – which is about 4 times the delay of 21 days just referred to – is clearly, to our minds, unreasonable and is sufficient to justify a refusal of the motion.

MCB v SAROO 2012 SCJ 135

I shall now turn to the first plea in limine litis namely that the action is ‘time-barred in view of the fact that the judgment referred to has been obtained by default and is time barred after 6 months.’

It has been argued that since the judgment was obtained by default on the 20th October 2009, it has no effect as no action was taken within 6 months from the date of the judgment. In support of his proposition, he has referred to A. Rugjee v K. Rugjee [1999 MR 129]; Mungar P and Sons Ltd. v Yves Jean Marc Atchiane [2010 SCJ 282] and South East Asian Bank Ltd. v Lee Chong Fo Lee Sin Cheong [2007 SCJ 221].

Learned counsel for the petitioner has submitted that a difference must be made regarding the default. In the present case, the respondent, although he failed to appear on the date of the hearing of the claim against him, he had nevertheless retained attorney and counsel who caused a plea to be put in and thereafter failed to attend court. He argues that in the light of the decision in A. Rugjee v K. Rugjee (supra), the judgment still has effect after six months.

In A. Rugjee v K. Rugjee (supra), The Court of Appeal held “that the judgment given by the Intermediate Court against the appellant ‘par défaut faute de conclure ou faute de plaider’ is put on the same level as a contradictory judgment and the judgment was not ‘perimé’ and the contempt proceedings were legally in order.”

In Mungar P and Sons Ltd. v Yves Jean Marc Atchiane (supra) which is an appeal against the decision of the trial court refusing an application for a new trial, the issue was whether “a plaintiff, who has obtained a judgment by default against a defendant but who fails to execute the said judgment, can re-enter a case based on the same facts”. The application for the new trial was on the ground that evidence of the previous judgment which had been obtained by the respondent which allegedly constituted ‘res judicata’ was not available at the time of the trial.

The Court of Appeal considered article 156 of the Code de Procédure Civile and rule 78 of the District, Industrial and Intermediate Courts Rules entitled ‘Proceedings on an old judgment’ and which reads as follows :-

“No warrant of levy or judgment summons shall issue on a judgment by default more than six months old, or a contradictory judgment more than three years old, unless some previous payment have been made under such judgment, within either of the periods above mentioned respectively.”

The Court of Appeal held that the first judgment was “périmé” and therefore “non avenu” with the consequence that res judicata did not arise.

In South East Asian Bank Ltd. v Lee Chong Fo Lee Sin Cheong (supra), the judgment debtor was summoned to appear before the court for examination and the point taken was that the application could not be entertained after six months of the date of the judgment (4th March 2004) which was obtained against him by default. Reference was made to rule 43 of the Supreme Court Rules 2000 and article 156 of the Code de Procédure Civile. In that case, the summons was issued within the delay of six months from the date of the judgment (28^th June 2004) but through no fault of the judgment creditor, the summons could not be served on the judgment debtor until November 2005. In the circumstances, the trial judge overruled the preliminary objection.

In the light of the above cases and more specially having regard to the reasoning in A. Rugjee v K. Rugjee (supra), I am of the view that the judgment obtained against the respondent on the 20th October 2009 was a judgment ‘par défaut faute de conclure ou faute de plaider’ on the part of the respondent and is consequently put on the same level as a contradictory judgment. Therefore the judgment was not ‘périmé’ and the petitioner is entitled to rely on the judgment which no doubt was a final judgment.

RIBET v BEERJEERAZ & ORS 2012 SCJ 169

The main thrust of the submissions of learned counsel for the appellant before us was that the appellant’s claim was in the nature of an “action réelle” and not an “action personnelle” given the fact that the sale of the immovable property had been perfected by the “accord sur la chose et le prix”. It was further argued that in the present case there had been full payment of the purchase price. Accordingly, it was submitted that the appellant had obtained a “ius in re”.

We do not agree. As rightly pointed out by the learned trial Judge, the appellant, in requiring the respondents to sign the authentic deed which would transfer the ownership to her, was invoking a “droit personnel” as opposed to a “droit réel” which is attached to the property itself. The appellant was not claiming any “ius in re” but rather a right attached to a “créance”. There was no right in the property itself. We may equally aptly refer to Dalloz Nouveau Répertoire Vo. Action at paragraph 32:

“32. Actions personnelles – L’action personnelle est celle qui tend à faire respecter ou exécuter un droit personnel. Peu importe que l’obligation alléguée dérive d’un contrat, d’un délit ou quasi-délit, d’un quasicontrat ou de loi; peu importe qu’elle se rattache à l’établissement ou au mode d’exercice d’un droit réel, du moment que la contestation qui motive l’action ne porte pas sur le droit réel lui-même.”

Accordingly, we take the view that the learned trial Judge’s finding that the appellant’s claim was an “action personnelle” cannot be faulted. However, we do not agree with the learned trial Judge’s finding that the cause of action arose on 20 February 1992 when the balance of the purchase price was paid. In our view, the cause of action could only arise when the third respondent failed to appear before the notary and sign the authentic deed of transfer. The pleadings and other documents placed before the trial Court show that the third respondent failed to appear before the notary to sign the authentic deed on 19 July 2002 after having been enjoined to do so by a mise-en-demeure duly served upon it and that an “acte de non comparution” was duly drawn up by the notary.

We accordingly hold that the appellant’s plaint was well within the ten year prescriptive period. The appeal is allowed on that score and the case is remitted to the learned trial Judge.

OUVERTURES ET PROFILAGE PLASTIQUES LTEE v DE LAUNAY 2012 SCJ 184

The defendant pleaded in limine that:

1.        Plaintiff cannot divide its cause of action;

2.        That the claim is an abuse of the process of the court and should be struck out;

3.        That the issues raised by plaintiff are res judicata.

The first point raised in limine is not tenable in as much as the failure to counterclaim on the one hand in a case where the present plaintiff was the defendant, and the lodging of the present plaint wherein substantially the same issues are raised as those in the plea given in answer to the first plaint wherein OPP was the defendant, on the other hand, do not appear to be the splitting stricto sensu of a cause of action. It is one and the same cause of action that is in issue. The present situation must be distinguished from one wherein one or more plaints have been entered by a plaintiff against the same defendant before the same forum or before different fora in relation to a matter which could eminently have formed the subject matter of a single action in one and the same initiating process commenced before the same forum.

If a defendant has a cause of action against a plaintiff, this can be raised either by bringing separate proceedings or by way of counter claim in the existing action. This being said, the choice made by the defendant to lodge a separate plaint may lead to the latter case being struck out on the ground of abuse of process as will be expounded below. The rationale for the possibility to counterclaim (or pray for a set off in some cases) as appears from Article 171 of the Code de Procedure Civile which caters for a “demande reconventionelle” is to avoid multiplicity of proceedings and “des jugements contradictoires” (vide Ireland Blyth Limited v. Lim Wun Kee and Co & Ors[1997 MR 214]).

Regarding the second point that is, abuse of process, indeed, substantially the same issue has been raised here. Most of the averments made in the present plaint have been made in the plea given by OPP in answer to the first plaint. Indeed OPP could, and should have formulated its present cause of action by way of a counterclaim incorporated in its plea dated 22 February 2008 to the case entered by the present defendant against it in 2006.

By failing to counterclaim in the first case and in choosing to lodge its case so much later to raise substantially the same facts and circumstances and relying on the same as the substratum of the subject matter of the same contract for its claim, the plaintiff is indeed making an abuse of the process of the Court.

The test is whether the facts and circumstances established do disclose an abuse of the process of the Court within the meaning and intendment of Rule 15(4) (b) of the Supeme Court Rules 2000 which relates to the striking out of pleadings, where the Court after hearing any interested party is satisfied that an action is either frivolous, scandalous or vexatious, or an abuse of the process of the Court. For the reasons given above, I find that the test for abuse of process has been passed. I therefore uphold the second plea in limine, namely that the present plaint is an abuse of process, warranting its being struck out.

It is well settled that the English doctrine of ‘Res Judicata’ forms part of our law in that it exists in Article 1351 of our Civil Code.

In order to succeed in invoking ‘Res judicata’, the defendant must be able to establish that in the first case and in the present one, the parties are the same and in the same respective capacity (that is if a party was acting in his personal capacity in one case he should not for example be acting in a representative capacity in the other one) the subject matter of the claim on which judgment has been entered is the same, the issues in both cases are the same and have already been adjudicated upon.

A claim may be an abuse of process as seen above, where it is vexatious, scurrilous or ill-founded. An example is where a person seeks to re-litigate a question which has already been adjudicated by a Court of Competent jurisdiction even though the matter is not strictly speaking res judicata (vide Hunter v Chief Constable of West Midlands Police(1982) AC 529 HL).

CLANBRASSIL CO LTD v COPEX MANAGEMENT SERVICES LTD 2012 SCJ 192

Counsel for the plaintiffs has objected to the procedure adopted by the second defendant to object to the proceedings against it. In substance his point is that a plea in limine on its own, unaccompanied by a plea on the merits is no plea, and that the second defendant cannot be allowed to argue on such plea in limine, nor can the first and third defendants who are supporting the preliminary objections raised by the second defendant.

It is well settled that objections to the jurisdiction of the Court (“l’exception d’incompétence”) must be raised “préalablement à toute autre exception et défense” failing which they will be held “irrecevable” (vide Airworld Limited v Malaysian Airline System Berhad [2012 SCJ 29], wherein reference is made to the oft quoted cases of Compagnie Desmem Ltée v United Docks Ltd [2008 SCJ 354] and Seament International SAL v The State Trading Corporation [1998 MR 21]). In those cases objections raised or attempted to be raised by defendants to the jurisdiction of the Court after they had already given their plea on the merits were rejected on the reasoning that by giving their plea they had already submitted to the jurisdiction of the Court and were precluded from subsequently challenging the same. They were deemed to have renounced to their right to refer their dispute to arbitration by thus submitting to the jurisdiction of the Court.

It would appear from the above that it is not objectionable that the plea on the merits is also given, provided the plea in limine as to jurisdiction precedes the plea on the merits.

However, the question raised here is whether it is imperative for a defendant over and above its plea in limine to also give its plea on the merits, at the risk of its plea in limine not being considered as a plea, as it is being suggested should be the case by plaintiffs’ counsel.

The authority of Rama v Vacoas Transport Co. Ltd [1958 MR 184] has been referred to by the plaintiffs. The relevant part of the judgment on which they rely reads:-

 “……………. Objections cannot properly be heard in limine unless the objector accepts - for the purposes of argument only - all the facts alleged by the plaintiff but argues that, even accepting them, his opponent cannot succeed. Where the objection is based on disputed facts the court must hear the evidence before it can rule on the point of law; the objection cannot be taken in limine.”

Given the authorities referred to further above, it is clear that we are not dealing with a plea in limine like time-bar for example, but with preliminary objections in law like the ones raised here challenging jurisdiction (“exceptions d’incompetence”) even if they have been styled preliminary objection raised “by way of plea in limine litis” – We are also not in presence of objections necessarily based on disputed facts yet; such objections would necessitate the hearing of evidence as stated in Rama (supra). Here even if they have been styled in limine, they are challenges to the jurisdiction and there is in my view no imperative need for the plea on the merits also to be given before the ‘exceptions d’incompetence’ can be heard and determined.

The submission of the defendants also make sense, with regard to the Court having at the stage of “mise en etat” fixed the matter for argument on the plea in limine and the plaintiffs not having raised any objection there and then, or thereafter before the matter came for hearing of the plea in limine.

For the above reasons I hold that the point taken on behalf of the plaintiffs to the effect that the defendants are precluded from raising the objections which they have “in limine” unless they also give their plea on the merits is untenable and not applicable to “l’exception d’incompétence”.

SUMPUTH V. v HOLBORN COLLEGE LIMITED 2012 SCJ 193

The law relating to the recognition and enforcement of foreign judgments in Mauritius has been considered in a number of decisions: vide D’Arifat & Ors (supra); Renggli v Shaw [1998 MR 143]; Lincoln v Credit Lyonnais SA [2009 SCJ 396]; and Essar Oilfields Services Ltd v Norscot Rig Management Pvt Ltd [2011 SCJ 346]. It is essentially to be found in article 546 of the Code of Civil Procedure. That article dealt with the enforcement in Mauritius of judgments given by a foreign court. In 1923 the Reciprocal Enforcement of Judgments Act (“the 1923 Act”) was enacted. It provided, on the basis of reciprocity, for the enforcement in Mauritius of judgments delivered by “a superior court in the United Kingdom” and for the enforcement in the United Kingdom of a judgment delivered by the Supreme Court in Mauritius where the judgment debtor was resident in the United Kingdom.

The Foreign Judgments (Reciprocal Enforcement) Act was passed in 1961 (“the 1961 Act”). It provided, in its Part I, for the extension, by Proclamation, of the principle of mutual enforcement of judgments to a foreign country named in the Proclamation where “substantial reciprocity of treatment (would) be assured as respects the enforcement in that foreign country of judgments given in the Supreme Court of Mauritius” [section 3(1)].

The 1961 Act also contained provisions, in its Part II, whereby its application could be extended, by regulations, to the “Commonwealth”, as defined in the Act, with special provisions in relation to a country of the Commonwealth to which the 1923 Act had by Proclamation been made to apply. In the latter case, the 1923 Act would cease to apply only after a further Proclamation under section 3 of the 1961 Act would have been made to that effect. It appears that no Proclamation or regulations have ever been made under the 1961 Act. The result is that, although the 1961 Act is still on our statute book, resort cannot be had to it in the absence of any Proclamation or regulations made under sections 3 and 9 respectively.

In view of what we have noted above, we take the view that an application for the enforcement of a judgment of the Queen’s Bench Division of the High Court in England can only be made under the 1923 Act and not under the 1961 Act. As the application was improperly made, it should have been set aside.

Section 3(2)(b) of the 1923 Act provides -

3. Enforcement of United Kingdom judgments

(1) … …

(2) No judgment shall be ordered to be registered under this section where -

(a) … …

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original Court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that Court;

It is not disputed that the appellant was neither carrying on a business nor ordinarily resident in the United Kingdom. As from the date process of court was served on her in Mauritius, she has challenged, and refused to submit to, the jurisdiction of the Queen’s Bench Division of the High Court in the United Kingdom, maintaining all along that the contract between the two parties was signed in Mauritius and was governed by Mauritian law. A judgment by default was taken against her. Thereafter, she applied to have that default judgment set aside so that the High Court could pronounce on the issue of jurisdiction. Her application was set aside. In the circumstances, the appellant could hardly be said to have voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the High Court in England. So that the application could not have been granted even if properly made under the 1923 Act.

In view of what we have said above, we allow the appeal and quash the judgment of the learned Judge.

COMPAGNIE DES MAGASINS POPULAIRES v THE GOVT OF MTIUS 2012 SCJ 200

I have considered the arguments of both Counsel including the wide powers given to the Court under Rule 17 of the Supreme Court Rules 2000 in matters of amendment of pleadings as well as the guiding principle followed by our Courts that amendments of pleadings are to be allowed where it will resolve the real controversy between the parties and where the justice of the case so requires provided no prejudice will be caused to the other party.

As it was aptly put in Emtel Limited v The Information and Communication Technologies Authority & Ors [2009 SCJ 63], the application of the principles set out in Rule 17(1) depends on the facts of the case, the nature of the proposed amendment and the circumstances in which the proposed amendment is sought. Whilst cases may present certain similarities, each and every one should be judged on its facts and on its own merits.

A close scrutiny of the contents of the proposed plea in limine, the wordings of which are to the effect that, being dissatisfied with the first condition imposed by defendant no. 2, the plaintiff ought to have appealed to the Town and Country Planning Board, shows that defendant no. 2 is raising for the first time a defence as opposed to raising issues necessary for determining what are in real controversy between the parties.

I find it apt to quote the following dicta of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at page 220 followed in Soobhany & Ors v Soobhany & Ors [1989 MR 191]:-

“There is clear difference between allowing amendments to clarify the issues in dispute and those that permit a distinct defence to be raised for the first time.”

An additional reason for not acceding to the motion of defendant no. 2 is that the statement of claim is dated 1995. Pleadings were closed in March 1996. No explanation, let alone a valid one, was forthcoming as to why it has taken defendant no. 2 more than 16 years to raise in limine a defence which does not appear to be of a complex nature and which could not have escaped the attention of either counsel or attorney for defendant no. 2.

The Court will not readily allow at the trial an amendment the necessity for which was abundantly apparent months ago and then not asked for. – vide Joomun v Kissoondharry [1977 MR 256].

Bearing in mind the nature of the proposed amendment, I take the view that the plea in limine litis being in the nature of a defence which is being raised for the first time as opposed to raising matters to clarify the issues in dispute between the parties, as contended by learned Counsel for defendant no. 2, the objection of learned Counsel for the plaintiff is well taken. For the above reasons, the objection to the motion for amendment is upheld.

ISKCON v ASCENCIA LTD AND ORS 2012 SCJ 215a

In law, The Supreme Court Rules provide for the widest discretion to allow for an amendment to an action including joining a party to an existing cause of action.

Rule 17 which enshrines the principle that procedure is the hand maid and not the mistress of justice, for its part, reads:

(1) The Master may grant the amendment of any pleading and the Court may at the hearing of a case grant an amendment of any pleading, in such manner and on such terms as may be just and reasonable, for the purpose of determining the real question in controversy between the parties.”

It cannot be disputed that the powers which the Court retains to amend pleadings are wide. The only limitation is whether the amendment sought is frivolous and vexatious vide Rule 17(5) SCR 2000

In the light of the explanations given by the Applicant as to why the amendment is being sought to add the three parties and which amendment has been provoked by the respondents, it cannot be said that the motion sought is either frivolous or vexatious or that the three parties are not interested parties.

The Court has wide powers to allow the addition and substitution of parties: see rule 19 Supreme Court Rules and articles 339 and 331of the Code de Procédure Civile. There is no gainsaying that the general rule is for only interested parties to be joined as parties to a case: see Gopal v Beejadhur [1985 MR 112]; Panglose v TaiFookSeng [1955 MR. 226]; Cellplus Mobile Communications Ltd v G. D. N. Gellé [2001 SCJ 287]. In this case, the proposed parties have become interested parties. The non-addition of parties may result in Proceedings becoming flawed if the success or the failure of a cause of action depends on the addition of the new party or parties to the case: see Goorjhun v Sivaramen [1994 SCJ 25]; Woochit v Adhin [2009 SCJ 275].

SURAJBALI v BANK ONE LTD 2012 SCJ 234

By denying the applicant a day to rehear his case by way of a New Trial in the circumstances he has set out, we are making a doubt inherent in our system fall unfairly upon the litigant. The fault of one cannot be visited upon another. The Judicial Committee has long impressed upon the Supreme Court to be less technical and more flexible to such issues and objections: see Toumany v Veerasamy [2012] UKPC 13.

THE IRRIGATION AUTHORITY v NUNKOO 2012 SCJ 235

The applicant moved for leave to file a fourth affidavit with annexed documentary evidence. The respondent objected to the motion.

The matter is governed by rule 8 of the Supreme Court (Judge in Chambers) Rules 2002.  The rule is that no affidavit or document is to be filed after the hearing of an application to a Judge in Chambers has been fixed. However, the Judge may exceptionally allow a party to do so having regard to the grounds set out in rule 8(b).

In an application to a Judge in Chambers, each party is allowed to file 2 affidavits accompanied by other documentary evidence under the Rules.

No reason has been forthcoming as to why the applicant is seeking only now to adduce evidence it considers to be of utmost importance. In these circumstances, allowing the applicant to file a fourth affidavit accompanied by disputed documentary evidence at this late stage when the case had already been fixed for hearing would be condoning its lac