The Court of Civil Appeal quashed the determination of the trial judge who did not provide any explanations for her finding that the DOPA did not apply to a resolution produced by the Respondent and that accordingly, the Respondent’s representative could proceed to give evidence before the trial court.
The Court of Civil Appeal seized the opportunity to address its mind on the purport of sections 2 and 3 of the DOPA as well as on the issue of form over substance as regards the determination of whether a document not labelled as a power-of-attorney could nevertheless be considered as one as a matter of law.
On the first issue, having reviewed the language of the resolution and the minutes of proceedings for the sittings before the trial court, the Court of Civil Appeal held that the resolution was tantamount to a power-of-attorney or an agency under private signature. First, it was made in accordance with the constitution of the Respondent. Secondly, it was in the nature of granting an authorisation to a designated person mentioned in the resolution to act on behalf of the Respondent.
On the second issue, the Court of Civil Appeal determined that the resolution had to comply with the DOPA. In reaching this view, the Court of Civil Appeal drew a distinction between section 2 and section 3 of the DOPA.
The court held that section 3 of the DOPA applied to a foreign deed of appointment (e.g. a power-of-attorney drawn up outside Mauritius) regardless of whether the person who granted the power-of-attorney was a foreigner or was given to an attorney or agent in Mauritius or an agent appointed abroad to come and represent him. It was mandatory therefore to deposit such a power-of-attorney within a period of 15 days with a notary in Mauritius before any use could be made of it. As to section 2 of the DOPA it applied to a power-of-attorney in which a person appointed another person to represent him in court proceedings during his absence from Mauritius.
Accordingly, inasmuch as the line of authorities was to the effect that a failure to comply with the DOPA was fatal, the Court of Civil Appeal found that the trial court should not have allowed the designated person under the resolution to depose before the trial court. This was so because the representative of the Respondent had “no authority to represent the [Respondent] in court as a result of [the Respondent’s] failure to comply with the provisions of the DOPA”.
IMPACT OF A MISE-EN-DEMEURE ON LIMITATION PERIODS
Keep Clean Ltd v The University of Mauritius 2018 SCJ 174
On 16 May 2018, the Commercial Division upheld a preliminary objection in law that was raised by the Defendant (i.e. University of Mauritius) to the effect that a contractual claim could not be entertained by the court as it was time-barred under Article 2279 of the Mauritian Civil Code.
On 1 November 2007 the parties entered into a two year contract during which the Plaintiff would provide cleaning services to the Defendant. The contract was terminated towards the end of October 2009. The Plaintiff served a notice Mise-en-Demeure dated 11 October 2012 on the defendant for breach of contract on the basis of unlawful deductions that it made when paying the Plaintiff for its services. The Defendant challenged the claim on the premise that the deductions were allowable by operation of clause 8.14 of the contract and that the claim was time-barred as it was brought after a period of three years that the contract was terminated.
On this question of time-bar, the Commercial Division took the view that this called for the determination of whether:
the contractual payments were to be effected periodically (i.e. à des termes périodiques);
the contractual payments were in the nature of revenues (i.e. “le caractère des revenus”) as opposed to being rights over debts or fractions of capital (i.e. “un droit de créance d’un capital ou ayant le caractère de fractions de capital”);
the contractual payments related to debts that were specific by reason of their amount (i.e. “des créances déterminées quant à leur montant”).
The Commercial Division sought reliance on Article 2277 of the French Civil Code from which Article 2279 of the Mauritian Civil Code has been heavily inspired but which differs from the former that prescribes a limitation period of five years.
After a review of the terms of the contract, the Commercial Division took the view that the Plaintiff’s claim was based exclusively on amounts due by reason of periodical services that were in the nature of debts that were specific by reason of their amount (i.e. “des créances portant sur des prestations périodiques ayant le caractère de revenus and déterminées quant à leur montant”).
In the light of the above finding, the Commercial Division took the view that the service of the notice Mise-en-Demeure did not interrupt the limitation period under Article 2244 of the Mauritian Civil Code which sets out the exhaustive circumstances wherein an interruption will occur as a matter of law namely, (i) a summons to appear before a court (ii) a court order or seizure against the person whom one wishes to prevent invoking the limitation period (i.e. “une citation en justice, un commandement ou une saisie, signifiés à celui qu’on veut empêcher de prescrire).
Accordingly, the Commercial Division held that the service of a notice Mise-en-Demeure does not constitute an act which would interrupt the limitation period and, does not therefore have any impact on the 3-year prescription period such that the Plaintiff’s claim was time barred under Article 2279 of the Mauritian Civil Code.
SUBSTANTIVE ISSUES
STATUS OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Oosman v Timol 2018 SCJ 38
On 12 February 2018, the Commercial Division of the Supreme Court (Commercial Division) set aside a challenge that was raised as to its very foundation. The preliminary objection was to the effect that the Commercial Division was “not a Bankruptcy Court. It is a division of the Supreme Court. There has not been any statute, any law conferring upon this Court the power of the Bankruptcy Division of the Supreme Court”.
In setting aside the jurisdictional challenge, the Commercial Division remarked that this was not the first time that this point had been raised.
The Commercial Division reiterated its earlier determinations that having regard to the enabling legislation namely, the Courts Act 1945 (sections 7 & 17), “any judge of the Supreme Court has full jurisdiction to hear and determine all cases assigned to them in whatever division of the Supreme Court he or she is called upon by the Chief Justice to sit” and that “the Commercial Division is therefore vested with unlimited jurisdiction to hear and determine any civil matter be it bankruptcy proceedings or others within the purview of the Companies Act [2001] or even outside the ambit of a commercial nature”.
The Commercial Division also referred to determinations of the Judicial Committee of the Privy Council to the effect that the Courts Act (section 62(2)) “makes provision for the jurisdiction of the Bankruptcy Division to be exercised by the Master and Registrar concurrently with the Judges of the Supreme Court”.
This was affirmed in SME Equity Fund Ltd v RFA Ltd 2018 SCJ 208 (see below).
SME Equity Fund Ltd v RFA Ltd 2018 SCJ 208
On 15 June 2018, the Commercial Division delivered its determination on a point of law that challenged its legal foundation set against the background of a winding up petition applied for under the Insolvency Act 2009 (Insolvency Act).
The Commercial Division once again remarked that the point was being raised despite its earlier determinations on the subject.
It confirmed the principles laid down in Osman v Timol (supra) and the authorities considered therein and stated the following:
“I once again repeat myself that the Commercial Division remains a division of the Supreme Court and consequently, as a trial Judge, I am perfectly entitled to hear this present bankruptcy petition”.
STATUTORY DEMAND
Weston International Asset Recovery Company Limited v Chilton and anor 2018 SCJ 37
On 09 February 2018, the Commercial Division granted an application to set aside a statutory demand which had been applied for by Weston International Asset Recovery Company Limited (Weston) under section 181 of the Insolvency Act.
Weston challenged a statutory demand that had been served on it by the Respondents who were the liquidators of Arlington Assets Investment Limited, a BVI company (Arlington). The basis of the claim by the Respondents was a judgment delivered on 14 June 2010 (BVI Judgment) in their favour by the Eastern Caribbean Supreme Court in the High Court of Justice (Commercial Division), British Virgin Islands (BVI Court).
The Commercial Division held that since the basis for the Respondents’ claim under the statutory demand was the BVI Judgment, it was mandatory that the Respondents should have a valid executory title in order to pursue any rights that they claimed under the statutory demand.
The Commercial Division took the view that what the Respondents were in effect attempting to achieve when relying on the BVI Judgment for their claim under the statutory demand was a double legal effect. First the recognition and enforcement of the BVI Judgment. Secondly, the payment of what was claimed as a liquidated sum pursuant to the BVI Judgment by way of the statutory demand.
The Commercial Division held that since the Respondents did not secure the ‘exequatur’ of the BVI Judgment as it is required under the Mauritian Code of Civil Procedure, they accordingly lacked the legal status to pursue their application before the Commercial Division in respect of their statutory demand.
The Commercial Division reiterated the principle that save for cases where foreign judgments concerned the legal status and capacity of individuals, there were no exceptions to the principle under Article 546 of the Mauritian Code of Civil Procedure that in order to have legal effect in Mauritius, the exequatur of a foreign judgment must have successfully been applied for before the Mauritian courts.
SECURITY FOR COSTS
Barnwell Enterprises Ltd and anor v ECP Africa FII Investments LLC and ors 2018 SCJ 119
On 11 April 2018, the Commercial Division delivered its determination on the question of “frais” which was captured as an item falling under a claim for security for costs.
In Al Rawas I.S.A.A. v Pegasus Energy Limited & ors 2006 SCJ 274, the Supreme Court had determined that the term “frais” captured all necessary expenses which were fair and reasonable and that would be directly incurred by a defendant in order to resist an action such as legal fees, cost of swearing affidavits, travelling and accommodation expenses of witnesses in Mauritius. Insofar as counsel and attorney’s fees, these are laid down in the Schedule to the Legal Fees and Costs Rules of the Supreme Court and stand to a statutory maximum of USD 3,300.
Accordingly, there was no exhaustive list of items that could be identified as being fair and reasonable and being directly incurred to defend a matter as this would be particular to every case. Thus, in the instant matter, while it was not justified that 2 representatives of the defendant should have to travel to Mauritius solely to swear an affidavit, the costs disbursed to secure the attendance of 2 expert witnesses were reasonable as they were costs directly incurred needed to defend the instant matter.
SUING IN CONTRACT AND TORT IN THE SAME ACTION
Mediacom Ltd v Vitiro Ltd and ors 2018 SCJ 130
On 18 April 2018, the Commercial Division held that there was no prohibition under Rule 18(1) of the Supreme Court Rules 2000 for a plaintiff to sue 2 different defendants under two different regimes (i.e. one in contract and another in tort) in the same action where the facts were the same.
Rule 18(1) of the Supreme Court Rules 2000 deals with the issue of joinder of actions and recites that “different causes of action of whatever nature by and against the same parties and in the same rights may be joined in the same suit”.
A corollary to the above principle was the determination of the Judicial Committee of the Privy Council that Rule 18(1) precluded 2 different defendants to be sued in tort where there was a clear contractual relationship between them and the plaintiff (Mediterranean Shipping Company v Sotramon Limited [2017] UKPC 23.
DEFAMATION
Cinemax Ltd & ors v Le Mayricien Ltd & ors 2018 SCJ 139
On 25 April 2018, the Supreme Court expressed its views on the defence of fair comment in relation to actions based for defamation. In particular, it reiterated the conditions to be satisfied in order to succeed with the defence of fair comment.
It is a 4-pronged test as follows:
first, the subject-matter in respect of which the comment is made must deal with the public interest;
secondly, where the subject-matter consists of facts alleged to have occurred, the facts must be true;
thirdly, the comment must be ‘fair’; and
finally, the statement must not have been made maliciously.
The Supreme Court went further and held that fair comment constitutes a full defence to a claim in defamation and that the onus is on a Defendant to prove, on a balance of probabilities, that the publication of the alleged defamatory statements was made in good faith.
In the present matter, the defence of fair comment was not successfully raised as the Defendant failed to adduce any evidence towards this end.
