In setting aside the preliminary objection on its jurisdiction, the Presiding Judge held that:
“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.”
In so doing, the Commercial Division found support in SMN Maudarbuccus v The Mauritius Commercial Bank Ltd 2017 SCJ 159 in which the Court of Civil Appeal dispelled any misunderstanding that appeared to prevail since the implementation of the Commercial Division of the Supreme Court since 12 January 2009 by way of General Notice 2369 of 2008 which was published in the Government Gazette No. 122 of 2008.
Maudarbuccus made three important determinations in this respect. First, by reason of section 76(1) of the Constitution of Mauritius, which is the supreme law of the land, any Judge of the Supreme Court was entitled to hear any civil (including commercial) and criminal matter other than disciplinary law that had been assigned by the Chief Justice regardless of the fact that the Judge had been administratively assigned to the family, criminal or other division of the Supreme Court. Secondly, sections 62(2) & (3) of the Courts Act conferred power on a judge to hear a bankruptcy petition lodged under the Insolvency Act 2009. Finally, the terms of the General Notice 2369 of 2008 made it clear that it was not setting up a new court with specialised jurisdiction that would sit to hear commercial matters. Instead, a division of the Supreme Court had been identified administratively in order to determine applications of a commercial nature. Importantly, it held that “issues about a case being heard by one Division rather by another are issues of administration, more particularly, case flow management and case allocation and not issues of jurisdiction or law.”
Osman Mmon v Timol 2018 SCJ 38
In an interlocutory judgment delivered on 12 February 2018, the Commercial Division of the Supreme Court addressed its mind to a preliminary objection in law that arose regarding its jurisdiction and its lack of status as a court of law. It was argued that it was not a Bankruptcy Court but merely a division of the Supreme Court and, in the absence of a statutory confirmation, it was not empowered to hear matters that the Bankruptcy Court could hear by reason of statute conferment bestowed upon it.
In setting aside the preliminary objection, the Commercial Division of the Supreme Court reiterated its previous decision on this issue in The Mauritius Commercial Bank Limited v Maudarboccus 2015 SCJ 448 in which it held that “any Judge of the Supreme Court has full jurisdiction to 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 with the purview of the Companies Act or even outside the ambit of a commercial nature”.
AAPCA (Mauritius) Ltd (In Receivership) and anor v Mauritius Revenue Authority
In an judgment delivered on 18 September 2018, the Bankruptcy Division of the Supreme Court confirmed that it had the necessary jurisdiction to enter an application to erase an inscription of privilege on the movable and immovable properties of the applicant company by reason of section 208 of the Insolvency Act 2009.
Two preliminary points of law were raised.
First, the jurisdiction of the Bankruptcy Division to entertain the application. It was argued that this was an application that should have been lodged before the Judge in Chambers based on the terms of Article 2197-2 of the Mauritian Civil Code. The challenge on jurisdiction was turned down as the Bankruptcy Division took the view that section 208 of the Insolvency Act 2009 expressly empowered it to entertain such applications namely, supervision of receivers by the Bankruptcy Division of the Supreme Court. It took the view that its jurisdiction had not been undermined by the terms of section 15 and section 71(1(c) & (2) of the Courts Act or those of Article 2197-2 of the Civil Code which dealt with matters of procedure as opposed to jurisdiction.
Secondly, it was argued that the procedure that had been adopted was not the correct one based on Rule 2(1) of the Supreme Court Rules which was to the effect that applications of this nature are to be lodged by way of plaint with summons as opposed to ‘motion’ which was adopted in the instant matter. The second point was also set aside on the basis of Rule 2(5)(g) of the Supreme Court Rules which confers discretion on the Supreme Court “to direct that the pleadings be redrafted for the purpose of complying with the correct procedure and of identifying the real issue between the parties” where “the wrong procedure has been adopted for initiating any process.” Accordingly, it was not fatal in the instant matter that the correct procedure had not been used to initiate the process as it could be cured by an order by the Bankruptcy Division of the Supreme Court.
Barnwell Enterprises Ltd and anor v ECP Africa FII Investments LLC 2018 SCJ 119
In a ruling delivered on 11 April 2018, the Supreme Court shed light on the question of security for costs that are to be provided by foreign litigants who lodge claims that are not commercial in nature before a Mauritian court by reason of the Civil Code and the Code of Civil Procedure. In particular, the Supreme Court addressed its mind to the question of ‘frais’ i.e. costs which is claimed as one of the items under security for costs.
The Supreme Court upheld the principle laid down earlier in Al-Rawas I.S.A. v Al Tani HH.S.K.B.H. & Ors 2013 SCJ 447 which held that the term ‘costs’ captured ‘all necessary expenses incurred by the respondent and co-respondent to resist the applicant’s action, like lawyers’ fees, registration fees if any for documents which may have to be produced, travelling and accommodation expenses of a witness who, like in the present case, has had to travel to Mauritius from abroad to swear an affidavit and instruct legal advisers in Mauritius.”
The Supreme Court went further and confirmed as correct the finding in Al Rawas (supra) that the amount that may be claimed in respect of counsel and attorney’s fees are those set out in the Schedule to the legal Fees and Costs Rules and that these do not exceed MUR 100,000 [USD 2,778].
The Supreme Court also approved its earlier finding in Vestalane Investment Ltd v federal Trust (Mauritius) Ltd 2007 SCJ 84 which laid down the principle that “security should be allowed for costs which are likely to be directly incurred for defending the action and not as a result thereof.”
Jacpot v Gambling Regulatory Authority [2018] UKPC 16 – Privy Council
The decision of the Privy Council is important as it lays down the principles underpinning applications from Mauritius before this jurisdiction. In particular this decision has a particular focus on applications by way of ‘special leave’. The instant matter concerned an appeal against the refusal of the Mauritian Supreme Court to grant a judicial review of the decision of the Gambling Regulatory Authority (GRA) which revoked the Gaming House ‘A’ licence of Jacpot Ltd (Jacpot). The Privy Council declined to grant special leave as the issue before it did not raise a point of great general public importance. In so doing, the Privy Council explained the fundamental distinction between an appeal lodged (i) as of right (ii) with leave and (iii) by way of special leave. In particular, Jacpot confirmed the grounds for a successful application for special leave.
The Privy Council is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Privy Council. Insofar as Mauritius is concerned, an appeal before the Privy Council is enshrined in the Mauritian Constitution which is the supreme law of the land. This Constitutional right was maintained when Mauritius became a Republic in 1992. Appeals before the Privy Council as an ultimate course of appeal against decisions of the Mauritian Supreme Court are laid down by the Mauritian constitution and are not therefore an automatic recourse.
The Privy Council re-affirmed the Mauritian constitutional provisions for lodging appeals. The starting point is Article 81 of the Constitution which declares that appeals shall lie from the Court of Appeal or the Supreme Court under three circumstances namely (i) as of right (ii) with leave and (iii) by way of special leave. The principles established by the Privy Council are set out below:
Appeals as of Right from the Supreme Court or the Court of Appeal (Article 81(1) Constitution)
An appeal as of right must display the following features:
final decision that involves an interpretation of the Constitution for both civil and criminal proceedings;
final decision in civil proceedings in respect of a sum being not less than MUR 10,000 (i.e. USD 278);
final decision in civil proceedings which involves, directly or indirectly, a claim in property or a right of any kind in an amount being not less than MUR 10,000 (i.e. USD 278);
final decision in proceedings brought under section 17 of the Constitution (i.e. enforcement of protective measures); and
such other cases prescribed by Parliament.
Appeals with Leave of the Supreme Court in respect of decisions of the Supreme Court or the Court of Appeal – (Article 81(2) Constitution)
final decision in civil proceedings which raises a point of great general public importance; and
such other cases prescribed by Parliament.
Appeals by way of Special Leave (Article 81(5) Constitution)
This article of the Constitution is enabling and confirms that the Privy Council has the power to grant special leave from the decision of any court in respect of any civil or criminal matter.
The Constitution has defined the term “court” at Article 19 as follows:
“’court’ means any court of law having jurisdiction in Mauritius, including the Judicial Committee, but excepting, save in sections 4 and 6 and this section, a court established by a disciplinary law.”
In Jacpot, the Privy Council determined the meaning of the phrases “civil and criminal proceedings” and “final decisions” which are the basis for appeals brought before its jurisdiction. It also determined the issue of the value threshold under Article 81(1) of the Constitution.
The Meaning of ‘Civil’ Proceedings in the ‘Civil’/’Criminal’ Divide
The Privy Council held that Mauritius law followed the English law divide that distinguishes civil from criminal matters despite its continental law heritage. The same applies for the categorisation of Judicial Review which is not considered to belong to a sui generis category of litigation and can at times be a civil and at other times a criminal matter. This determination was based on a review of the Mauritian Constitution which uses the phrase “civil or criminal matters” throughout.
Accordingly, a civil matter is one which is not criminal (per Lord Goff in In re State of Norway’s Application (No. 2) [1990] 1 AC 795). Insofar as Judicial Review is concerned, since it is neither civil nor criminal in nature, the general proposition is that it is criminal in nature only where “the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine” (Anand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 Lord Wright & Belhaj v Director of Public Prosecutions [2018] UKSC 33).
In Jacpot, the GRA revoked the Gaming House A licence of Jacpot Ltd. Since the decision did not arise from criminal proceedings, it followed that the appeal against the refusal of the Supreme Court to grant a judicial review of the decision of the GRA was a civil matter for the purposes of the Mauritian Constitution.
The Meaning of ‘Final Decisions’
The Privy Council confirmed that this determination turned on the distinction between an interlocutory and a final order. It further added that English law did not have a settled view on the issue and that it was the same situation for appeals lodged before the Privy Council from the various overseas jurisdictions that had retained its jurisdiction as final court of appeal. The Privy Council declared that it would not settle the issue in the instant appeal.
In the absence of a settled view, English law had adopted two approaches known as the (1) applications and (2) order approaches. Of these two categories, the ‘applications’ approach was preferred by the English courts. Under the ‘applications’ approach, a decision becomes final when it determines the outcome of litigation either way. For instance, a judgment in default or a striking out order disposes of litigation finally but nevertheless remains interlocutory because it would have been interlocutory if it did not finally dispose of the litigation. As to the ‘order’ approach, it is based on the outcome of the decision and, a decision becomes final when it disposes of the litigation.
In Jacpot, the Privy Council determined that both the ‘applications’ and the ‘order’ approaches were applicable in the appeal and that the decision of the Supreme Court was final under both approaches.
The ‘Value’ Threshold
The Privy Council held that this was problematical across foreign jurisdictions that had retained its appellate jurisdiction where the question of property or rights that exceed the threshold value is concerned. In Meghji Lakhamshi & Brothers v Furtniture Workshop [1954] AC 80, the Privy Council took the view that the determining factor on this issue was “the value of the property, not the value of the claim”.
In Jacpot, the Privy Council held that (i) there was no need to have a money claim in order to succeed with the threshold value (ii) an appeal lies as of right when the property’s value exceeds the threshold and the issue before the Privy Council turns on the existence of a proprietary right of disposal over the property.
Right
An appeal as of right requires the following to be established:
civil or criminal proceedings;
final decision; and
there is no need to have a money claim. It suffices that the value of property is not less than MUR 10,000 and the issue before the Privy Council turns on existence of a proprietary right to dispose of the property.
On the related issue of Judicial Review, the same principles apply as some such cases may have a monetary value (e.g. a civil financial penalty) or other cases may indirectly involve property rights within the ambit of the threshold value.
Appeals With Leave
An appeal which does not fall squarely within the grounds to justify an appeal ‘as of right’ still entitles a party to appeal to the Privy Council by invoking the discretionary powers of the Supreme Court. In the event that the Supreme Court declines to use its discretion, the party may then turn to the ‘special leave’ option.
Appeal by way of Special Leave
The real issue with special leave is whether it should be granted as a matter of discretion. This turns on an interpretation of Practice Direction 3.3.3(a) of the Rules and Practice Directions of the Privy Council (Practice Direction) under which the matter must be one that raises a point of great general public importance. The relevant part of the Practice Direction is reproduced below:
“Permission to appeal is granted”
(a) in civil cases for applications that, in the opinion of the Appeal Panel, raise an arguable point of law of general public importance which ought to be considered by the [Privy Council] at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal; an application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground.”
This was not the case in Jacpot hence the refusal of special leave. In order to reach this decision, the Privy Council interpreted section 99(1)(k) of the GRA Act which provides that the GRA ‘may’ suspend or revoke any licence where the premises “cease, in the opinion of the Commissioner of Police, to be suitable.”
The Privy Council took the view that the word “may” confers two types of possibilities. On the one hand, it confers a general discretion. On the other hand, it confers a power which is exercised in accordance with the legislation to which it relates. Having reviewed the section 99(1)(k) of the GRA Act, the Privy Council took the view that the discretion that it conferred on the GRA was of the second type as its decision could only be reached once it was in the presence of the report of the Commissioner of Police regarding the suitability of the premises of Jacpot Ltd for a Gaming House ‘A’ licence which was a factual issue and not captured by the ambit of the ’great general public importance.’
Pirk v HandG Engineering & Crafts Ltd 2018 SCJ 261
On 20 July 2018, the Supreme Court delivered judgment in a claim for damages for breach of contract. The case was heard in the absence of the defendant who did not resist the application. The Supreme Court non-suited the plaintiff and the operative part is as follows:
“At this juncture it is apt to remind legal advisers that the fact that a case is undefended, does not mean that the plaintiff is dispensed from establishing his case on a balance of probabilities in accordance with the law and the facts required to prove the plaintiff’s case.
A flimsy outline of the plaintiff’s case will not be sufficient to establish the claim and the court would not give judgment in favour of the plaintiff unless it is satisfied that all the legal elements which it is incumbent upon the plaintiff to prove, have been established.”
The dicta in Hurnam v Bholah and anor 2008 SCJ 265 was cited with approval as follows:
“As fundamental is the principle of constitutionality to the formulation of law, so fundamental is the principle of legality to the pronouncement of a judgment. A court of law is under a positive obligation to ensure that any judgment given is soundly grounded both in law and on the facts of the case before it. This obligation is not in any manner reduced by the fact that the judgment is a judgment by default. On the contrary, that obligation assumes all its importance by that fact inasmuch as the absence of pleadings and enlightenment in law puts a burden on the court to ensure that as a court of law, any judgment may only be firmly grounded in law.”
Mediacom Ltd v VITRO Ltd – 2018 SCJ 130
The Supreme Court dealt with the principle of ‘non cumul de responsabilite contractuelle et delictuelle’ by which a litigant must choose between a claim in contract and tort where the facts both justify a claim in both courses of action against the same party. The interest of the case is that one defendant was sued in contract and the other one in tort in the same action on the basis of Rule 18(1) of the Supreme Court Rules 2000. The Supreme Court took the view that since the application for contract on the one hand and tort on the other hand were not directed against the same party, it did not breach the aforesaid rules and could therefore proceed. However, it confirmed its earlier determinations that where an action is based on a contract, the Supreme Court would not entertain a tortious claim based on that contract.
COMPANY LAW
Rookny v The Financial Services Commission of Mauritius 2018 SCJ 250
In a judgment delivered on 19 July 2018, the Supreme Court expressed its views on the meaning of ‘fit and proper person’ to hold position as officer of a global business licence. The matter concerned a person who held office as a director by reason of his employment with a management company (i.e. fiduciary business). He was disqualified by the Enforcement Committee of the Financial Services Commission of Mauritius, the regulator of global business, from holding such position for a period of two years following the outcome of a disciplinary committee instituted by the Enforcement Panel of the Financial Services Commission. The decision of the Enforcement Committee was upheld by the Financial Services Review Panel and this was challenged before the Supreme Court by way of a judicial review. Two grounds were raised. First, that the decision of the Financial Services Review Panel was ultra vires and tantamount to a abuse of power. Secondly, whether the Financial Services Review Panel had lawfully reached its decision which called for a determination whether its decision was in breach of due process and was not reasonable in accordance with the Wednesbury principle.
The application for Judicial Review was turned down. On the issue of ultra vires, the Supreme Court held that the Financial Services Review Panel did not act outside the law by upholding the decision of the Enforcement Committee because section 20 of the Financial Services Act 2007 did not apply only to a licensee but also to its officers. It followed that in determining whether a person was a ‘fit and proper’ person the latter’s ‘ability to perform the relevant functions properly, efficiently, honestly and fairly’ as well as ‘his reputation, character, financial integrity and reliability” were relevant. The Supreme Court went further and took the view that section 5 of the Financial Services Act 2007 expressly declared that one of the objects of the FSC was to ‘ensure the sound conduct of business in the financial services sector and in the global business sector.” The Supreme Court stated that the overriding principle was well captured in Financial Conduct Authority (formerly the Financial Services Authority) v Hobbs [2013 EWCA CIV 918] namely, “there is a public interest in ensuring, so far as possible, that persons who are not fit and proper persons to perform functions in relation to a regulated activity are precluded from doing so.” On the second point, the Supreme Court found that the Code on the Prevention of Money Laundering and Terrorist Financing did not require that the applicant should have first been afforded an opportunity to observe the Code before proceeding to his disqualification. In the circumstances the Supreme Court found that it was legitimate for the Enforcement Committee to have “regard to the sum total of the conduct of the applicant in arriving at the decision as to whether he was fit and proper person to hold an office or position in a licensee of the [FSC].”
Couacaud and anor v Rivalland 2018 SCJ 124
On 16 April 2018, the Supreme Court delivered a ruling delivered on the question of ‘connexite’ i.e. nexus that arose in a claim for breach of directors’ duties. The interest relates to the facts of the case and how the Supreme Court resolved the issue applying the overriding principle of the ‘interests of justice’. A preliminary objection was raised to the effect that the facts set out in an affidavit filed in the instant matter had a close nexus to the facts set out in another application before the Supreme Court which the applicants in the instant matter had lodged before the Supreme Court. Accordingly, the instant application amounted to an abuse of the process of the Supreme Court.
In setting aside the preliminary objection, the Supreme Court applied the terms of Articles 168, 169, 171 and 173 of the Code of Civil Procedure which require that a defendant in proceedings should raise the issue of nexus at the first available opportunity. The facts of the instant case established that this was not done by the defendant which did so when the procedure had reached the stage of ‘demand of particulars’. Furthermore, the Supreme Court found that another reason for which the preliminary objection could not stand was because the 2 causes of action before the Supreme Court were different even though they involved the same parties and arose from the same facts. However, the Supreme Court took the view that given the aforesaid findings, the interests of justice would be served of the instant application were stayed pending the outcome of the earlier application before the Supreme Court.
INSOLVENCY
Weston International Asset Recovery Company Limited v Chilton and anor 2018 SCJ 37
On 09 February 2018, the Commercial Division of the Supreme Court delivered judgment in which it addressed the issue of whether a foreign judgment could by itself form the basis of a statutory demand. It was held that a foreign arbitral award did not confer on the Respondent a ‘titre executoire’ i.e. executory title in order to pursue the Statutory Demand. Indeed, it took the view that first, the Respondent should obtain the exequatur of the foreign arbitral award or judgment before the Supreme Court in order that a statutory demand based on it may proceed before a Mauritian court.
