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WRIT HABERE FACIAS POSSESSIONEM

TOORABALLY V DABY
The applicant is seeking two remedies, namely:
(i)

a Writ Habere Facias Possessionem against the respondents for their eviction from
commercial premises situate at Goodlands of which she is the lessee by virtue of an
agreement on the ground they are in illegal occupation of part of such premises and

(ii)

an order directing the co-respondent, her lessor, to restore her into the quiet and peaceful
occupation of the premises.

The application is resisted.

Principle: With regard to the Writ Habere Facias Possessionem, two conditions have to be satisfied for
such an order to be made, which are
(i)
(ii)

the fact that the applicant has a clear title to the property subject matter of the application and
the respondents have no serious and bona fide defence.

Application: In relation to the issue of clear title, it is to be recalled that it is undisputed that the applicant
is the lessee of 650 ft2 of space located on the ground floor of a building by virtue of an agreement. Now,
the applicant is, therefore, the rightful tenant of that space and therefore has a clear title to be in
occupation of it.
Another factor to consider: the question which arises is whether or not, she is physically in
occupation of that extent of space.

Case Law: the judgment in the case of Rangloll v Nobin [1979 MR 94] is authority to say that the
applicant is entitled to claim that she has a clear title to the property claimed in her capacity as lessee and
that she is in the circumstances entitled to bring in an appropriate case an application to the Judge in
Chambers to enforce her rights.
As regards the second prayer of the application, the question is whether the respondents can obtain an
order compelling the co-respondent to restore her in occupation and quiet enjoyment of the

premises leased in an application for a Writ Habere Facias Possessionem. Indeed as the lessor the corespondent is under the obligation to put the applicant in occupation and quiet enjoyment of the premises
leased by virtue of Article 1719 3o of the Civil Code. However, it is arguable that the execution of this
obligation can be properly sought in an application for a Writ Habere Facias Possessionem.
Procedural requirement/ observations: Seemingly, the applicant is seeking an order in the nature of an
injunction to compel the co-respondent to fulfill its obligation, but has failed to specifically pray for this
remedy both in her proecipe and affidavit.
Held: Application granted.
WRIT HABERE FACIAS POSSESSIONEM

SUN RESORTS LTD. & ANOR v. ANDYS RIDING SCHOOL COMPANY LTD.
(2013 SCJ 118)
Respondents averment:
The respondent has averred in the alternative that the three months notice which it was given to vacate
the premises, was unreasonable having regard to the nature of its business, the length of time over which
it has provided the service, the difficult economic situation in the hotel industry and the difficulty in
relocating its business.
Once the applicant has established his right to the property he should be granted the writ unless the
respondent has raised a bona fide and serious defence - A. Ramjahn v. A. M. S. Bodhe [2009 SCJ 110].
There is no dispute regarding the long established principle that a writ habere facias possessionem can
only be applied for, in cases of urgency and that the approach in a long line of authorities has been to
equate the extent of the delay in making the application to an absence of urgency Ramjahn (supra)
Held: Writ ordered.

Amalgamation
SONIAWEAR LTD v CENTRAL ELECTRICITY BOARD

Issue: The facts of the present case are not in issue. It is only the effect of an amalgamation
which is the bone of contention.
Law:
it is important to take into consideration section 244 of the Companies Act which provides that:
Two or more companies may amalgamate, and continue as one company, which may be one of the
amalgamating companies, or may be a new company.
Observations:
1. The key words under that section are continue as one company which bring to mind that there
is continuity without any indication of assignment or sale or transfer for value.
2. It is a union of two or more companies and the continuation of the amalgamating companies as a
single entity.
In other words, one or more companies blend together to form a new company known as the
amalgamated company which may take the name of one of the amalgamating companies or a new
name.
The consequences following an amalgamation process are to be found under section 250 which provides
that:
(1) An amalgamation shall be effective on the date shown in the certificate of amalgamation.
(2) Where the name is the same as one of the amalgamating companies, the amalgamated company
shall have the name specified in the amalgamation proposal.
(3) Subject to subsections (4) and (5), the Registrar shall remove from the register all the
amalgamating companies, other than the amalgamated company retained under subsection (2).
(4) The property, rights, powers and privileges of each of the amalgamating companies which
have been removed from the register under subsection (3) shall continue to be the property,
rights, powers and privileges of the amalgamated company.

(5) The amalgamated company shall continue to be liable for all liabilities and obligations of
each of the amalgamating companies and all pending proceedings by, or against, an
amalgamating company shall be continued by, or against, the amalgamated company.
(6) A conviction, ruling, order or judgment in favour of, or against, an amalgamating company may
be enforced by, or against, the amalgamated company.
(7) Any provisions of the amalgamation proposal that provide for the conversion of shares or rights
of shareholders in the amalgamating companies shall have effect according to their tenor.

Interpretation of the law/ With caselaws:


As can be gleaned from Carter Holt Harvey Ltd. v McKernan([1998] 3 NZLR 403), it was held by the
Court of Appeal that having regards to the wording, policy and the amalgamation provisions, the
amalgamated company was
to enjoy all advantages previously conferred on any amalgamating companiesIt is not to be
treated as a different entity or as a new party to the contractual arrangementsThe amalgamated
company simply stands in the shoes of the amalgamating company.
In an earlier passage, the Court of Appeal stated that
continuance is of the corporate entities, not of the undertakings and operations of those entities.
They merge into one corporation which is to be regarded as their equivalent or, more loosely,
their successor. Section 209G speaks of the amalgamated company succeeding to all property,
rights, etc and all the liabilities and obligations of each of the amalgamating companies.The
merged entity succeeds to the assets and liabilities because that is where they are to be recognised
as being or remaining as a result of the continuance of all parties to the amalgamation.
That interpretation was also applied in Elders New Zealand Ltd. v PGG Wrightson Ltd ([2008] NZSC
104)irrespective of whether it was in respect of a short form amalgamation or the long form
amalgamation and the Court held that

the merger of Wrighton and Pyne Gould Guiness caused fusion of those companies. PGG
Wrightson is the continuing amalgamated company. It holds the property of Wrightson
accordingly by operation of law as if it were still Wrightson. No transfer or disposition of
property was involved in the amalgamation
NOTE: It is of note that the wording of section 209G of the New Zealand Companies Law is not different
from our section 250(4) of the Act which clearly says that
the amalgamated company succeeds all the property, rights, powers and privileges of the
amalgamating company.
I therefore make mine the interpretation to be given to section 250(4) of the Act as can be read from those
decisions.
Application of law in the present case:
In the case in hand, the plaintiff company informed the defendant that following an amalgamation with
Soniastyle Ltd., and being the amalgamated company, it would like the account name which was that of
Soniastyle Ltd. be changed to its name.
Irrespective of the internal policy that the original account had to be closed and a new one opened in the
name of the plaintiff, the defendant failed to grasp the effect of an amalgamation and that by operation
of law, the plaintiff company stood in the shoes of the amalgamating company enjoying all the rights,
powers and privileges of the amalgamating company.

Courts verdict:
In the light of the provision of section 205(4) of the Act and the decisions referred to above, the plaintiff
company stands in the shoes of Soniastyle and therefore proved its case.
APPOINTMENT OF MEMBERS OF COMPANY

EMERALD CASCADES LTD v MORDAUNT ESTATES LTD


(2013 SCJ 419)

This is an appeal against a ruling of a Judge of the Commercial Division of the Supreme Court overruling
the preliminary objections taken on behalf of the appellant company (then respondent) to a winding up
petition entered by the respondent company (then petitioner) against the appellant company
Preliminary Objection: Challenge of Appointments of Director and Legal Advisor of the Respondents
Company respectively.
Courts first remark: Such objections are merely technical in nature.
Reference made to: S141 of Companies Act + Companys Constitution
Courts conclusion: No merits.

LA RESPONSABILITE/ COMPANY

MEDINE SUGAR ESTATES CO LTD v SOCIETE DE MARCO & 11 ORS


2013 SCJ 378
The fundamental issue that arises is whether defendants Nos 2 to 12 were sued as grants en leur nom
propre, and that as such they were responsible for the faute committed by them in the management of
defendant No 1 as provided for in articles 1847 and 1850.
1847. Si une personne morale exerce la grance, ses dirigeants sont soumis aux
mmes conditions et obligations et encourent les mmes responsabilits, civile et
pnale, que sils taient grants en leur nom propre, sans prjudice de la responsabilit
solidaire de la personne morale quils dirigent.
1850. Chaque grant est responsable individuellement envers la socit et envers les
tiers, soit des infractions aux lois et rglements, soit de la violation des statuts, soit des
fautes commises dans sa gestion.
Si plusieurs grants ont particip aux mmes faits, leur responsabilit est solidaire lgard des
tiers et des associs. Toutefois, dans leurs rapports entre eux, la juridiction saisie dtermine la part
contributive de chacun dans la rparation du dommage.

It is clear that there has been no such averments made by the plaintiff. At any rate, faute was pleaded not
in the plaint but by way of a reply by the plaintiff. Was it an afterthought? Plaintiffs Counsel himself
submitted that the present issues have to be considered ex facie the plaint with summons.

There is ample authority to the effect that a civil partnership is an entity distinct from the associs who
would commit themselves to the extent of being liable separately only in the specified circumstances.
The following excepts aptly set out the principles.
In Roug v Crdit Foncier [1874 MR 20]
This personality of the Company or partnership is derived from the Roman Law where it was expressed
in the maxim, Societas personoe vice fungitur.
On tablit que la Socit soit distincte des associs. Societas est corpus mysticum;
quelle formerait un tre moral, une personne fictive, ayant son domicile, son patrimoine, ses droits, ses
dettes, ses actions, indpendants et spars du domicile, du patrimoine, des droits,
des dettes, des actions des associs pris individuellement.
Que le fonds social formt, exclusivement, le gage des cranciers; que lassoci considr comme
vendeur de la chose quil apportait, navait sur le patrimoine commun aucun droit actuel, mais
seulement une ventualit, une esprance ralise la dissolution de la Socit;
que toute action tait interdite aux cranciers personnels de lassoci, tant que durait la Socit;
leur droit se bornait se prsenter au partage, pour semparer du lot attribute leur dbiteur. Delangle,
Socits Commerciales, Vol. I, page 17.

And in Castel v Fontaine [1879 MR 49]


Basing our opinion not only upon the commentaries of men like Troplong, Delangle, Marcad, Bravard
and others, and upon many decisions of the Court of Cassation, of the Court of Paris and Grenoble quoted

by Dalloz verbo "Socit" No. 182 in fine and of the Court of Orlans, 1870-2.113, but also upon the
general considerations which result from the constitution of a partnership, Civil or Commercial, we
have no hesitation in saying that a Civil partnership is a moral being perfectly distinct from the
persons who compose it.
If another conclusion could be arrived at, the true object of the formation of a partnership could
not be attained.
If the personal creditors of each partner could come pari passu with the creditors of the
partnership, the credit of those associations would be struck at its very root and it is probable that
there is not a money lender who would consent to run the risk of entrusting his funds to a body
the different members of which would have the right to pledge the Assets of the Association for
his personal affairs.
The very nature of a contract of partnership is repugnant to such a system; it is entered into with the view
of organizing a common enterprise having rights separate from the individual rights of its members, and
as a consequence, duties and obligations also separate; if those rights and duties were to be confounded,
third parties would carefully avoid all intercourse with such associations, and they would soon come to an
end.
It is therefore the interest of all, that partnerships, whether Civil or Commercial, should be treated as
moral beings having interests distinct and separate from the individuals who compose them.

As far as faute sparable in the management of a civil partnership see Cass Ch Com 25 janvier 2005
(non publi au bulletin).
que la responsabilit dun dirigeant lgard des tiers ne peut tre retenue que sil a commis une faute
sparable de ses fonctions et qui lui soit imputable personnellement ; quen lespce. La cour dappel a
retenu son encontre des actes de contrefaon commis par la socit Chrysos sans constater que ces
fautes seraient sparables de ses fonctions et lui seraient imputables personnellement ; quen statuant
ainsi, elle a priv son arrt de base lgale au regard des articles 1382 du Code civil et 52 de la loi du 24
juillet 1966 devenue larticle L.223-22 du Code de commerce ;

Mais attendu quayant relev que M. X avait commis des actes de contrefaon de manire dlibre et
persistante, pendant plusieurs annes, malgr les mises en garde et en dpit des procdures judiciaires
engages, la cour dappel, qui a ainsi constat quil avait intentionnellement commis des fautes dune
particulire gravit incompatibles avec lexercice normal des fonctions sociales, en a dduit bon
droit, abstraction faite des motifs surabondants que critiquent les deuxime et troisime branches, que ces
fautes taient sparables de ses fonctions de grant et engageaient sa responsabilit personnelle ;

As far as the liability for payment of the debts of a civil partnership, it is also clear that an associ would
be bound to pay only after the legal entity would have been sued and that non-payment from it is
established. The position is aptly set out in the following passages

Rp. Civ. Dalloz Vo Socit Civile note 116


116. Lobligation pour les cranciers sociaux de poursuivre dabord la socit est affirme en termes
catgoriques par larticle 1858 : Les cranciers ne peuvent poursuivre le paiement des dettes sociales
contre un associ quaprs avoir pralablement et vainement poursuivi la personne morale .
Jurisclasseur Civil Art 1845 1870-1 : Fasc 30 Socits Civiles Vo Associs notes 94 et 95
94. La ncessit dune dmarche pralable auprs de la socit interdit de poursuivre les associs en
mme temps que la socit dbitrice.
Avant de poursuivre lassoci, le crancier doit donc tenter de poursuivre la socit, ft-elle dissoute,
liquide et radie; la solution ne fait pas de doute dans la mesure o, tant quil subsiste des droits et
obligations caractre social, la socit conserve sa personnalit morale et peut donc tre efficacement
poursuivie
95. Notion de vaine et pralable poursuite. Aussi, il est gnralement admis que deux conditions
doivent tre remplies pour que les associs puissent tre mis en cause
Le crancier doit avoir dabord poursuivi la socit ; il faut entendre par l que le crancier, sil na pu
obtenir satisfaction par les moyens classiques de la mise en demeure, qui constituent un avertissement,

doit avoir tent une action judiciaire contre la socit. Cette dmarche aura permis celle-ci, le cas
chant, de contester le montant de la dette et son caractre social (V. supra no. 90).
Cela signifie galement que linefficacit des poursuites contre la socit doit, peine dirrecevabilit de
laction en paiement, tre constate pralablement lengagement des poursuites contre les associs;
la chamber commerciale de la Cour de cassation a ainsi dcid, de faon bien svre, que lirrecevabilit
de laction ne saurait tre couverte lors mme quen cours dinstance la liquidation judiciaire de la socit
a t clture pour insuffisance dactif.
Le rsultat de ces poursuites doit avoir t vain, ce qui, de lavis general signifie quil faut que le
caractre infructueux des diligences du crancier rsulte non de leur inefficacit ou de leur
inutilit intrinsque, mais de linsuffisance, rvle par elles, du patrimoine social

Defendant No. 11 stands in a different position as contradistincted with that of defendants Nos 3 to 10 and
12. It is uncontested that he was an agent and representative of defendant No. 2. No faute is alleged
against him either in the plaint with summons, or in the reply of the plaintiff. Counsel was also right in
submitting that there has been no averment that the mandataire exceeded his powers or that he committed
a faute in the discharge of his mission.
For the reasons given, I uphold the pleas in limine litis raised by defendants No 3 to 12. Defendants Nos 3
to 12 are are put out of cause. With costs.
I further order that the case be scheduled for mention on 10 October 2013 before Her Honour the Master
and Registrar.

DEFINITION OF COURT UNDER COMPANIES ACT

MEDICAL CENTRE (ABC) LTD & ANOR v THE MAURITIUS COMMERCIAL BANK
LTD & ANOR
2013 SCJ 207

Court is in fact defined in the Companies Act as meaning the Bankruptcy Division of the Supreme
Court.
The distinction made by learned Counsel between the Supreme Court and the Bankruptcy Court is
artificial and incorrect. We are not dealing with 2 separate and distinct courts.
The Commercial Division is now dealing with matters formally dealt with by the Bankruptcy Division
and forms part of the Supreme Court (vide Life Garments Ltd v. Hellman Worldwide Logistics Ltd
[2012 SCJ 498]).

In deciding whether section 170 of the Companies Act applies to the present case, the correct approach is
to look at the substance of the plaint, and not the venue where it has been lodged. It is patently clear from
a perusal of the plaint that we are dealing here with company matters. As a matter of fact, this case should
normally have been lodged before the Commercial Division of the Supreme Court although I hasten to
say that this per se does not affect my jurisdiction as a Judge of the Supreme Court to hear the present
action.
Next Issue: Plaintiff No 2, being the main shareholder of the Company has entered the present action in
his own name.
Clearly plaintiff No.2 could not have done so given that the subject matter of the plaint is the assets of a
company, not his personal assets.

In this context, the following extracts from Ramaiyas Guide to The Companies Act, 14th Edition 1998,
were referred to:-

A suit to recover the property of a company, to enforce its rights, or to redress any wrong done
to it, can be filed only by the company itself.
A shareholder does not have an interest in any particular asset of the company. He is not a
necessary or a proper party in a suit concerning the particular assets.
At this juncture, the Court found that this is where section170 of the Companies Act comes into play and
finds its application.
The relevant extract of section 170 provides as follows:170. Derivative actions
(1) Subject to subsection (3), the Court may, on the application of a shareholder or director of a
company, grant leave to that shareholder or director to
(a) bring proceedings in the name and on behalf of the company or its subsidiary; or
(b) . . .

It follows that, as a shareholder of ABC Ltd, plaintiff No.2 could have brought a derivative action in the
name of the company but only after seeking leave under section 170 (vide Ramracheyya v
Gangoosirdar & Anor [2010 SCJ 293]).
It is not disputed that he never sought such leave but chose instead to lodge the present plaint
directly and in his own name. He has clearly circumvented the law in the present case.
For the above reasons, the Court found that paragraph 2 of the plea in limine litis raised against plaintiff
No.2 is well taken and hold that he had no locus standi to enter the present action in his own name.
The action of plaintiff No.2 is, accordingly, dismissed with costs.

APPLICATION OF ART. 1722 CCM

GHOOGOOLAH A. v THE MUNICIPAL COUNCIL OF PORT LOUIS AND ANOR


2013 SCJ 358
Issue:
The plaintiff, a vegetable seller, who had been occupying three stalls prior to the fire has been allocated
only two stalls in the new market. The third stall has been allocated to his late brothers son, the second
defendant.
The plaintiff claims that he is entitled to occupy three stalls in the new market as he did prior to the fire,
and he prays for a judgment declaring that he is so entitled and for an order directing the first defendant to
allot same to him.
Now, article 1722 of the Civil Code provides that:Si, pendant la dure du bail la chose loue est dtruite en totalit par cas fortuit, le bail est rsilie de
plein droit.
It follows therefore that the lease agreement between the plaintiff and the first defendant came to an end
with

the

destruction

of

the

stalls

by

the

fire.

Learned Counsel for the plaintiff submitted that the first defendant had been in breach of section 61 (3) of
the Local Government Act 1989 which provided that except with the approval of the Minister, the local
authority could not suspend, revoke or fail to renew a contract authorizing any person to occupy any stall,
shop or other place inside the market.
It is of note that section 61(3) was subsequently repealed and section 45 of the Local Government Act
2003 created new provisions with respect to those stall occupiers whose stalls were burnt in the fire as
follows:-

45. Occupation of stalls inside markets

(1) Notwithstanding the Landlord and Tenant Act, a municipal council may, by contrat dure
dtermine, authorise any person to occupy any stall, shop or other place inside any market or
other premises which it controls or manages, on such terms and conditions as it may determine.
(2) The authorisation under subsection (1) shall be for a period of not more than three years but may
be expressly renewed for further periods not exceeding three years, on such terms and conditions,
including a revision of the rent payable, as the Council may decide in each particular case.
(3) Notwithstanding anything to the contrary in any other enactment, every person whose stall was
burnt or damaged in the fire which destroyed part of the Market of Port Louis in the year 1999
shall, on the completion of the reconstruction of the Market, be given priority for the right to
occupy a new stall for a period of three years, on such terms and conditions as the Council may
decide, and his right of occupation of such stall may thereafter be renewed as provided in
subsection (2).

It therefore follows from the above facts and provisions of the law that the plaintiff who had lost his right
of occupation to all three stalls following their destruction by fire could not claim that he still held that
right in the new market.
Plaint is dismissed. WITH COSTS.

PROMESSE VAUT VENTE

PETIT D & ORS v PEERTHUM R & ANOR


2013 SCJ 382

The dispute between the parties, therefore, lies in the determination as to who between the Petit and
Peerthum, in the circumstances, are the legitimate owners of the rights in lite. It is the case of the Petit
family that Peerthum knowing full well that they are in actual occupation went surreptitiously with Rn
to the Notary to make a fraudulent acquisition of the house and the lease. It is the case of the Peerthum
couple that after Rn had revoked his agreement to the transfer to the Petit couple, the rights reverted to
Rn who made a transfer to him en bonne et due forme and against valuable consideration.
Having heard the witnesses and gone through the number of documents produced, the Court found that
the Petit family has satisfied me that they are the owners of the building and the holders of the lease hold
rights.
First, Article 1589 of the Civil Code is clearly in favour of the plaintiffs. In law, une promesse de vente
vaut vente. This article stipulates as follows:
La promesse de vente vaut vente, lorsquil y a consentement rciproque des deux
parties sur la chose et sur le prix:
(See Autard v. DEtienne [1863 MR 141]; Galdemar v. Diore [1869 MR 37]; Newton v Issac [1915
MR 34]; Bhageloo v. Matoorasing [1934 MR 52]; Azumtally v. Goobeea [1959 MR 18]; Coowar v
Jhooboo [1977 MR 52]; Jhooboo v. Coowar [1977 MR 367]; Nundlall v. The United Bus Service Co
Ltd [1981 SCJ 85].
In this case, there was already a valid consensual agreement with all the interested parties well before
the 18th of May 1989.
Rn with the concurrence of the Ministry had already transferred the property in the name of Petit
subject to contract being drawn up to witness the transaction.

An agreement subject to contract is no less a valid agreement as a contract in writing. What the
writing does is merely to give evidential value to the agreement.

The rights of Rn, therefore, had already passed on to Petit after the agreements had been sealed among
the parties and rental paid.
Accordingly, when Rn came back on his word on 18 May 1989, he had no title to pass on to Peerthum
any more than he had any right to revoke his consent to a transaction that was already sealed. The fact
that the agreement had not been reduced to writing yet did not make the agreement any less binding upon
the parties and legally enforceable.
The deposition of Mr Samsooruth is eloquent on the state of play: the three parties directly concerned had
agreed and all the papers had been released including the approval from the Ministry. The cancellation of
the lease of Rn and its grant to him had already been communicated to Petit.

The drawing up of the deed was no more than of evidential value which could be proved otherwise
to witness the agreement of the new lease.

In these circumstances, one cannot say that Rn had been left with any right which he could have
transferred to Peerthum.
When Peerthum, therefore, in 1998, brought Rn, whether in his drunken state or otherwise, to the
Notary to effect the transfer in his name, the notarial deed is not worth the paper it is written on. That is as
far as the law is concerned.
In the light of the above, the Court therefore found that the Petit have proved the case against the
Peerthum well beyond the balance of probability required in a civil case.

PART II

BREACH OF CONTRACT/ REGLE DE NON-CUMUL


PORTAL UNIVERSE (MAURITIUS) LTD v AIR MAURITIUS LTD

2013 SCJ 288


This is a claim by way of plaint with summons for damages in tort, namely the
defendants unlawful acts and doings which amount to faute. The plaintiffs case is
that such tort was committed by the defendant which abusively terminated a contract
biding the parties.
The defendant has in its plea in answer to the claim, denied having committed any tort and averred that it
lawfully terminated the contract by giving due notice to the plaintiff, in accordance with the provisions of
the contract.
A contract was signed by the parties.
The authorities relied upon by the defendant show clearly that where there is a contract between the
parties, the plaintiff should stake its claim in contract and not in tort where a breach of contract is invoked
(vide RAGHOONANDUN v. AIR MAURITIUS LTD [2011 SCJ 28], in which the cases of TFP
International Ltd v. S Itoola [2002 SCJ 147], The Hong Kong & Shanghai Banking Corporation v.
M S Sairally [2002 SCJ 227] and Air Austral v. Abdool Hamid Ismael Hurjuk [2010 SCJ 202]) (the
latter three cases being decisions of the Appellate Court) were considered and applied.
There is now a well established doctrine and jurisprudence whereby parties who are linked by contract
must ground any claim they may have on the basis of contractual liability and not on tort - .
Starck, Droit Civil, obligations, 1972, par. 2058; P Le Toureau, La Responsabilit civile, 3 me ed. 1982,
Dalloz No. 164 et 5, Civ. 1re, 16 nov. 1965, D. 1966.61 (vide TFP International Ltd (supra)).

In the case of The Hong Kong & Shanghai Banking Corporation (supra), the court ruled in the same
sense, namely that where there is a contract binding the parties, any matter whereby one party would be
in breach of his obligation would therefore have to be governed by the contractual terms existing between
them.
In the more recent case of Air Austral (supra), the principle considered therein was reiterated and applied
with approval. Reference was made to Prcis Dalloz Droit Civil, Les Obligations, 5 me Ed., at
paragraph 835, which sheds light on the raisondtre of the principle:

835. Jurisprudence. La jurisprudence, aprs avoir hsit, sest prononce en principe, contre le
cumul des responsabilits. Elle a dcid que les dispositions des articles 1382 et suivants sont sans
application, lorsquil sagit dune faute commise dans lexcution dune obligation rsultant dun
contrat. Indpendamment des raisons thoriques tires de la nature diffrente des fautes contractuelle et
dlictuelle, cette solution sexplique par le fait que le rgime de la responsabilit contractuelle est
gnralement moins favorable la victime que celui de la responsabilit dlictuelle (limitation, par
exemple, de la rparation au dommage prvisible). Si le crancier pouvait, son gr, invoquer la
responsabilit dlictuelle, ces limitations deviendraient lettre morte.
Enfin, le principe mme de la force obligatoire du contrat condamne le cumul des responsabilits:
lorsque les parties ont dcid, par exemple, quil ny aurait pas de responsabilit dans tel ou tel cas,
permettre cependant au crancier dinvoquer alors la responsabilit dlictuelle, ce serait, en quelque
sorte, lautoriser violer le contrat, en tournant les clauses conventionnelle relative la responsabilit.
Coming back to the case:
It is clear from the plaintiffs averments at paragraph 11 of the plaint with summons that it has invoked
the contract binding the parties and it is its case that the defendant has terminated the contract in breach of
the terms thereof. He then grounded his claim in tort by invoking faute and claims damages.
In view of the established or undisputed facts, and the authorities, considered above, and given that there
was a contract binding the parties, the plaintiff cannot succeed in his claim as formulated, in tort. It is
therefore non-suited.

PROMESSE DE VENTE
BHOLAH F. M. v BEENESSREESINGH D. & ANOR
2013 SCJ 199

.
Issue:
In virtue of the said agreement, the defendant No. 1 with the consent of the defendant No. 2 bound herself
and undertook not to sell the said portion of land to any party other than the plaintiff and the plaintiff
agreed that he would forfeit the deposit if he failed to purchase the said property.
The plaintiff has averred that he has suffered damage and prejudice as a result of the defendants failure to
sign and execute the bordereau or authentic deed of sale.
He has accordingly prayed for a judgment ordering the defendants to sign the bordereau or the authentic
deed witnessing the sale of the property to him, to deliver the aforesaid property free of all charges to him
and to cash from him the balance of the sale price.

Law:
At the outset the legal nature of the agreement which the parties signed in September 1988, and its
legal implications, must be determined.
The plaintiffs contention is that the said agreement constitutes a promesse de vente, which under article
1589 of the Civil Code vaut vente that is, it is equivalent to a sale with all the legal consequences
deriving there from.
This, according to the plaintiff entails that the defendants are bound to complete the formalities and
perfect the sale.
Dalloz Rpertoire Pratique Verbo Vente Note 292:
La promesse de vente vaut vente ds que les parties se sont entendues sur la chose et sur le prix, lors
mme qu'il resterait prciser les conditions accessoires du contrat (Req. 26 janv. 1842, R. 316-2 o).
Cependant il a t jug que pour qu'il y ait vente ou promesse de vente, il ne suffit pas que le prix soit
determin, qu'il faut encore que les parties soient d'accord sur les modalits du prix, notamment sur la

date des payements et sur le taux des intrts des sommes qui restent dues (Agen, 29 nov. 1899, Pand.
Fran., 1901. 2.16).
Application to the case:
Turning to the issue in the present case, it is clear that a promesse de vente is equivalent to a sale if the
parties have agreed upon le prix, the price and la chose, the subject matter of the sale and there is a
common intention between them to transfer the ownership of the property under the terms agreed.
Such a promesse de vente has the same effects as and is enforceable as a sale.
The relevant provision of the law is Article 1589 which reads as follows:
La promesse de vente vaut vente, lorsqu'il y a consentement rciproque des deux parties sur la chose
et sur le prix.

The purport of Article 1589 is explained as follows in Aubry & Rau - Droit Civil Franais Vol. V,
Vente at page 3 para. 349
A. Le consentement des parties doit porter la fois sur la chose vendre et sur le prix. Il doit, de plus,
lorsque le contrat na pas t conclu purement et simplement, porter sur les conditions ou modalits sous
lesquelles lune des parties a dclar vouloir vendre, ou lautre, vouloir acheter.
Il faut, enfin, que le consentement ait pour but la transmission de la proprit de la chose formant lobjet
du contrat : une convention passe, sous forme de vente, par des parties
qui navaient pas lintention relle et srieuse, lune de se dpouiller de la proprit, lautre de
lacqurir, pourrait tre efficace sous dautres rapports, mais ne constituerait point une vente.
La promesse de vendre une chose, moyennant un prix dtermin, quivaut une vente actuelle, et en
produit tous les effets, lorsquelle a t accepte avec promesse rciproque dacheter. On la dnomme
promesse synallagmatique.
(Emphasis added)

In the present case the tenor of the agreement reveals clearly, to quote the terms of the above extract, that
there was a consentement rciproque des deux parties sur la chose vendre et sur le prix. The parties
had agreed that the defendant No. 1 would with the defendant No. 2s consent, sell her property.
Their common intention was to transfer the ownership of the property le consentement (avait) pour
but la transmission de la proprit de la chose formant lobjet du contrat.
This common intention is clearly set out in Document P1, in unequivocal and explicit terms which
confirm that the agreement that the parties entered into was a promesse de vente and nothing else + at no
time was there any condition suspensive or clause rsolutoire in the contract.
FURTHER NOTES REFERRED TO BY THE COURT TO UNDERSTAND PROMESSE DE VENTE:
Encyclopdie Dalloz Droit Civil Vol VIII Vo Promesse de Vente at Notes 161 and 162
as follows:
161. la ritration ainsi prvue constitue-t-elle une simple modalit de nature affecter les effets

de la vente, cest--dire le transfert de la proprit et le paiement du prix, lesquels sont ainsi reports
ou suspendus jusqu la date de la signature de lacte authentique ?
Si oui, on est bien en prsence dune promesse de vente valant vente, tant prcis que la passation
de lacte en la forme notarie parat devoir participer davantage du terme que de la condition,
expose ici au grief de la potestativit. Ou bien, la signature de lacte authentique est-elle une
condition de formation de la vente, autrement dit un lment constitutif de celle-ci?
Et alors, assurment, la promesse de vente ne peut pas valoir vente puisque, drogeant aux articles
1589 et 1583 du code civil, les parties sont convenues de solenniser le contrat dfinitif.
162. Evidemment, la rponse la question ici pose ne peut tre livre que par la dcouverte de la
commune intention des parties, travers linterprtation du contrat prparatoire. On sait quune telle
interprtation est laisse lapprciation souveraine des juges du fond, sous rserve de dnaturation.
Du moins le contrle exerc sur ce dernier point par la Cour de cassation suggre trs clairement que,
dfaut de stipulation traduisant la volont contraire des parties, ou de circonstances particulires, la
promesse rciproque de vente et dachat conclue sous seing priv et assortie dune clause de ritration

en la forme authentique vaut vente: la solution est acquise dans son principe, depuis un arrt de la
chambre des requtes de la Cour de cassation en date du 4 mai 1936 (DH 1936. 313), aux termes
duquel :
Lnonciation dans un acte sous seing priv portant accord sur la chose et sur le prix quun acte
notari sera ultrieurement dress na pour effet de subordonner la formation et lefficacit du contrat
laccomplissement de cette formalit que sil rsulte clairement, soit des termes de la convention, soit des
circonstances, que telle a t la volont des parties; elle sautorise, bien sr, de la lettre de larticle
1589 du code civil. Il nest donc pas tonnant quelle ait t maintenue constamment par la
jurisprudence. (Emphasis added).

In the circumstances, the absence of any stipulation traduisant la volont contraire des parties, ou de
circonstances particulires, la promesse rciproque de vente et dachat conclude sous seing priv et
assortie dune clause de ritration en la forme authentique vaut vente
-Note 162 - Dalloz (supra).

In the present case neither the terms of the agreement nor the circumstances denote any intention on the
part of the parties that the signing of the authentic deed was to be
une condition de formation de la vente or un lment constitutif de celle-ci. La passation de
lacte en la forme notarie parait devoir participer davantage du terme que de la condition.
It was une simple modalit de nature affecter les effets de la vente, cest--dire le transfert de
la proprit et le paiement du prix lesquels sont ainsi reports ou suspendus jusqu la date de
la signature de lacte authentique.

It is quite clear that the parties had ever since the 3 September 1988 conclusively and unequivocally
agreed upon the essential terms of the sale when they drew up and signed Document P1.
They had on that day further agreed to proceed to the transfer of ownership of the property and to perfect
the sale by the signing of the authentic deed on the date earmarked i.e. the 30 November 1988.

In the addendum made to the document on 1 October 1988, when they agreed to postpone the signature
of the bordereau until the 30 November 1988 although the parties did not earmark a date for sale, I note
that they did not express any intention not to proceed with the sale of the property.
At any rate if the sale was not to be proceeded with, there would have been no need to sign the bordereau
and to earmark a date for such signature. The absence of any date earmarked for sale in the addendum,
does not have any incidence on the clear intention of the parties to transfer ownership of the property as
expressed on 3 September 1988.
The fixing of a new date for sale would simply be a formality une condition accessoire du contrat
which needed to be finalised and which does not alter in any way the legal nature of the agreement signed
between the parties and which was undoubtedly a promesse de vente.
The parties had a definite and mutual intention to proceed with the sale of the property ever since 3
September 1988 and the clause providing for the signature of the authentic deed at a later date was in the
circumstances merely a formality by virtue of which, the contract would culminate to its already
determined conclusion.

WHAT THE DEFENCE SHOULD HAVE DONE:


At any rate the Court notes that in their defence, the defendants have not raised any issue to the effect that
the agreement was not a promesse de vente nor was such an issue raised in the reply to the mise en
demeure that the plaintiff sent to the defendants for them to proceed to the signature of the authentic deed
before the notary.
The need for the defendants to clear an alleged lien on the house prior to the sale, which the defendants
sought to invoke in court as a pre-condition to perfect the sale, was not averred in the pleadings or
embodied in Document P1. This was never the case for the defendants, nor was any evidence adduced by
the defendants in respect of any such alleged lien. At any rate if the sale was subject to certain specific
conditions, it is odd that no mention whatsoever was made in the agreement signed between the parties.

Other issues raised in the plea such as a disparity of prestation between the parties to the agreement
rendering the agreement null and void and or the agreement being null and void on account of a breach of
Section 40 of the Land, Duties and Taxes Act, were not addressed during the hearing. Counsel informed
the court that they were not pressed, rightly so inasmuch as these were not live issues during the trial and
were not addressed at all.
Nor did the defendants adduce any evidence regarding their averment in the plea to the effect that they
had a droit de retention over the property in respect of extensions improvements and renovations which
they claimed to have made to the property subsequently, allegedly giving it a plus value of some Rs 5
million.
The plaintiff has also made a claim for damages against both defendants. He explained that he needed the
premises in lite urgently, to live in. At the relevant time, he was staying in cramped conditions at his
parents house sharing a room with his wife and three-year old daughter. As a result of the defendants
failure to perfect the sale, he had to keep on living in the same conditions. It was some two years later that
he found another house to move into. He also pointed out that he has been waiting for some twenty five
years to get possession of the house subject matter of the promesse de vente, ever since 1988.
The plaintiffs claim for damages in the sum of Rs 100,000 has been substantiated, he was not crossexamined at all on this issue and his claim has in fact not been challenged by the defendants.
On the whole it was found that the plaintiff has proved his case against the defendants.

VESTALANE INVESTMENTS (PTY) LTD v FEDERAL TRUST (MAURITIUS) LTD


2013 SCJ 217
The defendant denied being liable to the plaintiff and moved that the action be dismissed.

At the outset it must be observed that the basis for the plaintiffs case is not for breach of contract with the
plaintiff inasmuch as the plaintiff was not a party to any contract with the defendant. The defendant had a
contract with Selby Eritcel to supply management services to it and the plaintiff is a third party to any
such contract.
Generallyunder Article 1165
Les conventions nont deffet quentre les parties contractantes; elles ne nuisent point au tiers, et elles
ne lui profitent que dans le cas prvu parlarticle 1121 -Codes Annotes de LIle Maurice, Code Civil,
Deuxieme Edition par L. E. Venchard Q.C.
Under Article 1121
On peut pareillement stipuler au profit d'un tiers, lorsquetelle est la condition d'une stipulation que l'on
fait poursoi-mme ou d'une donation que l'on fait un autre. Celui quia fait cette stipulation, ne peut plus
la rvoquer si le tiersa dclar vouloir en profiter.

However as explained by M. Gariazzo (Premier Avocat Gnral) in an Avis Arrt No. 541 Cour de
Cassation/Jurisprudence atpage 4/21, paragraph 5:
La jurisprudence a trs vite eu recours la responsabilit dlictuelle comme instrument gnral de
protection contre les dommages dont souffrent les tiers loccasion de lexcution de contrats auxquels
ils sont juridiquement trangers.
Citing the words of H. Lalou, op.cit., p. 72 the author refers to the fact that la jurisprudence a
fait prvaloir la rgle lmentaire dquit et dordre public inscrite dans larticle 1382 sur le principe
goste formul dans larticle 1165 quand la violation dun contrat constitue de la part des contractants
une faute lgard dun tiers, reconnaissant ainsi un non contractant une action en responsabilit
dlictuelle contre un contractant.

We also read the following from Jurisclasseur Civil Code, Notes 75 and 76:

75. Responsabilit dlictuelle.- Cest pourquoi la jurisprudence admet depuis longtemps que
linexcution fautive dun contrat causant un dommage un tiers engendre la responsabilit du dbiteur
de lobligation inexcute lgard de la tierce victime.
Mais cette responsabilit sera de nature dlictuelle, en raison de labsence de relation contractuelle entre
le responsable et la victime.
76. La seule limite serait le cas o le dommage subi par la victime est totalement tranger au contrat
et o il aurait pu tre subi indistinctement par un tiers ou le crancier.
Dans ce cas, il ne rsulte pas rellement de linexcution dune obligation contractuelle et engagerait la
responsabilit dlictuelle du contractant, mme sil est caus loccasion de lexcution du contrat.
It is on this jurisprudence that the plaintiff purports to rely to establish his claim against the defendant.
Regarding the application of this principle which is termed as lopposabilit du contrat, sur le
fondementdlictuel, we read the following:
le contrat ne gnre de responsabilit envers les tiers que si le manquement contractuel se double
dun manquement une obligation gnrale de prudence et de diligence, cens caractriser la faute
dlictuelle.
Ainsi, toute faute contractuelle nest pas automatiquement une faute dlictuelle. Il sagit ainsi de ne
sanctionner le contractant dfaillant qui cause autrui un dommage que sil aurait pu lui causer ce
mme dommage en dehors de tout contrat.
Le contrat ne doit pas pouvoir constituer pour lauteur du dommage un chappatoire sa
responsabilit. - Avis de M. Gariazzo(supra),pg 8/21 para.10-1.
Mr. Gariazzo also refers to an arrt de La Chambre Commercialedated 5 avril 2005 which reiterates that
Un tiers ne peut, sur le fondement de la responsabilit dlictuelle, se prvaloir de linexcution du
contrat qu la condition que cette inexcution constitue un manquement son gard au devoir gnral
de ne pas nuire autrui.

However, in order for a tiers to successfully invoke this principle, he must establish all the elements
required to establish liability for faute under Article 1382 of the Civil Code namely a faute, a prejudice
sustained and a lien de causalit entre cettefaute et son prejudice.
This is made explicit under the heading Faute in the above cited article Laction est, toujours, celle dun tiers qui sestime victime dun manquement contractuel, pour
reprendre lexpression la plus large. Il agit en responsabilit, ncessairement sur le fondement dlictuel.
Il lui appartient donc de dmontrer que son action rpond aux exigences de larticle 1382 du code civil,
cest--dire de dmontrer lexistence dune faute, dun prjudice et dun lien de causalit entre cette faute
et son prjudice. -pg 13/21 para.11-1 (Emphasis added)
In order to establish its case, the plaintiff must prove une execution dfectueuse du contrat and secondly
that such execution dfectueuse has caused prejudice to it.
Such prejudice must be personal to the plaintiff, and must be distinct from any prejudice sustained by the
party who is a victim of the breach under the contract.
On this issue we read the following:
le tiers a un contrat est fond a invoquer lexcution dfectueuse de celui-ci a la seule condition
quelle lui ait caus un dommage Dalloz Rpertoire de Droit Civil, Tome X, para 16 para. 67.
La rgle ne peut jouer que si la victime se prvaut dun prjudice propre, distinct de celui subi par la
partie lse au contrat. -Mga Code Civil Edition 2009 Art 1165 paragraphe 207.
Courts verdict:
I accordingly find that the plaintiff has failed to establish that the defendant is liable in any way towards
either Hanlan or Vestalane or that it has committed any faute as averred in the plaint when effecting the
disbursements from the said account.
On the contrary the evidence has revealed that Federal Trust did not owe any duty of care either to Hanlan
or Vestalane (Plaintiff) with whom it did not have any contact or commitment whatsoever. Federal Trust
(Defendant) owed a duty of care towards its client Selby Eritceland the evidence has established that it

has always fulfilled this duty and has always acted with due diligence and in compliance with the terms
and conditions of its contract with Selby Eritcel and under its instructions.

WRIT HABERES FACIAS POSSESSIONEM


RAMDAWOR S v JEEAJEE L
2013 SCJ 228
The applicants have applied for the issue of a writ habere facias possessionem against the respondent.
The applicants purchased a plot of land of 229 m 2 on which stands a concrete building. They allowed the
respondent, who was the previous owner of the property, to continue staying on the property free of rent.
By virtue of a notice mise-en-demeure they revoked the licence, but the respondent would not move out in
spite of her having agreed to do so by the 13 November 2010.
Principle enunciated in case: Gujadhur v Reunion Ltd [1960 MR 208]
If a right to property has been established by an applicant, he is entitled to be granted the writ applied for
unless the respondent raises a bona fide defence.
The appellate Court went on to say that such right should not be denied to an applicant upon mere
allegations which are unsupported by such facts or circumstances as are likely to help the Judge or the
Court in assessing the seriousness of the defence.
In this case, the very title of the applicants has been strenuously challenged by the respondent.
Although the respondent has not come forward with any documentary evidence, I consider that the nature
of the case and her illiteracy and other facts and circumstances point toward a genuine defence raised by
her.
This case is easily distinguishable from that of Janally v Manaar & ors [1993 SCJ 186] quoted on
behalf of applicants wherein the learned Judge had found that the respondents had not raised a bona fide
and serious defence but were using delaying tactics to remain in occupation of an immoveable property
which had been sold to the applicants since 5 years.

For the reasons given, the application is refused.

COMPANY LAW
GENERAL CONSTRUCTION CO. LTD V SOHORAYE D T
2013 SCJ 252
Contention of applicant: since Modern Walking Enterprise Co. Ltd (Company where Respondents
Director) was unable to pay its debts when they fell due, but had nevertheless continued to trade, the
respondent as sole director of the said company was liable under the law to pay to the applicant the sum
of Rs.187,614.39 as more fully detailed at paragraph 9 of its affidavit.
The respondent has in his affidavit in rebuttal, averred that the writ Habere facias Possessionem was
issued against Modern Walking Enterprise Co. Ltd and not against him in his personal name.
Accordingly, the applicant is debarred from producing and/or alluding to the meeting of the contributories
which took place before the Bankruptcy Division of the Supreme Court held on 24 May 2012.
Law:
Under section 162 of the Companies Act 2001, on the duty of directors on insolvency, the director of a
company who believes that his company is unable to pay its debts must call a meeting of the Board to
consider whether to appoint a liquidator or an administrator.
Where the director fails to call a meeting of the Board and the company is subsequently put in liquidation
as in the case at hand, the Court may, on application of a liquidator or a creditor of the company, make an
order that the director shall be liable for the whole or any part of any loss suffered by the creditors of the
company as a result of the company continuing to trade vide Caudan Leisure Ltd V Caddy & Foxy
Ltd and Anor [2012 SCJ 460].
By virtue of section 162 (4) of the Act, the Court may on the application of a creditor, as is the case here,
make an order, that the director who in the present matter is the respondent to be liable for the whole or
any part of any loss suffered by the creditor of the company, in occurrence, the applicant as a result of
Modern Walking Enterprise Co. Ltd continuing to trade.

Learned counsel for the respondent has capitalised on the fact that the respondent became aware that his
company was unable to pay its debts only in mid-2010 well after a statutory demand was served on his
company.
In any event, it is contended by learned counsel that the respondent who was the then director of Modern
Walking Enterprise Co. Ltd was in a position to pay off the debts of the company and that is why he had
asked for a delay of one month to effect payment.
The Court does not subscribe to that stand inasmuch as under section 178 (a) of the Insolvency Act on the
meaning of inability to pay debts, unless the contrary is proved, and subject to section 179, a company
is presumed to be unable to pay its debts as they become due in the ordinary course of business where
the company has failed to comply with a statutory demand.

In the light of the above provisions of the law, the Court found that upon failure to comply with the
statutory demand served on Modern Walking Enterprise Co. Ltd on 21 July 2010, the company was
deemed to be unable to pay its debts as they became due in the ordinary course of business.
Pursuant to section 162 (4) of the Act, the Court ordered the respondent to pay to the applicant the sum of
Rs.187,614,39 being the loss suffered by the applicant as a result of Modern Walking Enterprise Co. Ltd
of which the respondent was the sole director at the material time continuing to trade.

DWARKASINGH C P v BAHADOOR F
2013 SCJ 204
The applicant has applied for the issue of a writ habere facias possessionem against the respondent in
respect of stall No 16 near the Jawaharlall Nehru Hospital, Rose Belle.
It is trite law that an applicant in an application like the present one has to establish that he has a clear title
in respect of the property from which he applies for the eviction of a respondent. The applicant had title
by virtue of a lease from the local authority. He has himself averred that he granted a licence of
occupation to the respondent.

In the light of the affidavit filed on behalf of the local authority and on his own affidavit, there is an
indication that applicant may have breached a condition of the tenancy on the stall.
Courts Verdict:
I am of the view that the applicant has not been able to establish that he still has a clear title on the stall. I
may also add that in view of the documentary evidence filed by respondent, he has been able to raise a
bona fide and serious defence.
For the reasons given, the application is refused.

MUNGUR A.K.M. v VEERUN K.


2013 SCJ 340
Issue:

I granted an interim order was granted restraining the respondent either by himself, his agents and/or
prposs from operating a car wash on ground of nuisance invoked by the applicant.
Principle:
Even if a permit is granted by the appropriate authorities, an individual can still seek the Court's
protection and have a remedy in his own right if the operations permitted by any licence or permit cause
harm to the individual (vide Joosub v Boodhun [1994 SCJ 37].
The applicants main complaint against the respondent is that latter is making use of electric equipment
and motors in respect of which no permit/licence has been obtained from the appropriate authorities and
that, he (the applicant) claims, is interfering with his comfort and convenience and that of his family.
Courts Conclusion:
Having regard to the conflicting affidavit evidence and the experts reports, the Court is of the considered
view that the Order of 12 August 2011, whereby the use of electric equipment is prohibited, should
remain in force whilst at the same time, in order not to force a complete shutdown of the respondents
business which is unwarranted in the present circumstances, the respondent is allowed to manually wash
vehicles pending the determination of the main case.
The Court therefore made interlocutory the interim order of 12 August 2011

HOSSENALLY M T N v TOWN COUNTRY PLANNING BOARD & ANOR


2013 SCJ 353 ***TO RECONSIDER***
The appellant applied to respondent No. 2 (the Municipal Council) for a Building
and Land Use Permit (BLUP) for the construction of a building at basement and
ground floor to be used as an Automotive Workshop

THE LAW FOR SUING THE STATE


CHADIEN S S v COMMISSIONER OF POLICE
2013 SCJ 351
Principle:

Our law does neither prohibit nor inhibit a citizen from bringing an action against the State. It simply
ensures that he does so within the framework laid down in the law.
Legal framework:
That legal framework is explicit in the Civil Code, the Public Officers Protection Act and the State
Proceedings Act which are interpreted in the light of our Constitutional provisions. They amply provide
for the manner in which a citizen in a deserved case may recover damages from the State for the prejudice
caused to him for illegal acts and doings of its servants and agents
However, an examination of the cases show how little attention has been given to the actual requirements
of the law. It goes without saying that our Constitution provides for the rule of law and no matter how
inclined a Court may be to allow a citizen to have his say in court, the Court may only decide within the
parameters of the above laws which are enabling rather than disabling. The citizen disables himself by its
non use or misuse. We would say that there are three fundamental requirements for a successful action
against a public officer and the State.

THE THREE FUNDAMENTAL REQUIREMENTS

The first requirement is that the litigant should satisfy article 1382 of the Civil Code.
That is the cause of action on which his plaint is grounded.
Article 1382 should be pleaded in the first place against the wrong doer for the wrong doing
before article 1384 is pleaded against the commettant for the acts of the prpos.

The second is that he has to comply with section 4 of the Public Officers Protection Act.
This has to do basically with a timeous initiation of action.
He has two years to do so.
**But a month before he lodges it, he needs to give a Notice of the action he is intending to lodge
to both defendants- the prposand the commettant.

The third requirement is that he should be mindful of the relevant provisions of the State

Proceedings Act.
This has to do with the parties against whom his action is directed.

This Act directs the complainant on such matters as whom to serve, where to serve and how to
bring the action and also cautions him on the defences that may be available to the defendants, of
which he has to be wary.

Rationale:
Among the horde of disgruntled people against public officers and the State for one grievance or another,
there will be a number of genuine ones. The genuine will pass the test easily. The fake will need to fall
early to the ground. Public time and judicial time are not for wasting but for production of solid work.
RATIONALE BEHIND THESE THE FIRST REQUIREMENT: ARTICLES 1382-1384 OF THE
CIVIL CODE
-

With regard to the first requirement, we need to note that we are in the realm of tort and vicarious

liability.
The obvious is often times not so obvious to many: that both articles 1382 and 1384 have to be

pleaded: they require the recitation of the wrong doing and the identification of the wrong doer.
There is no cause of action in law with a wrong doing (faute) without a wrongdoer (celui par

la faute du quel).
That is found in article 1382. Tout fait quelconque de lhomme, qui cause autrui un dommage,
oblige celui par la faute duquel il est arriv, le rparer.
From this stems the accountability of the other (commettant) who become vicariously liable for
the acts of the wrong doer (prpos).
On est responsable non seulement du dommage que lon cause par son propre fait, mais encore
de celui qui est caus par le fait des personnes dont on doit rpondre ..

Thus, with regard to the identification of the wrong doing and the wrong doer, a plaintiffs

primary concern is to ascertain not only the actionable wrong but also the actual wrong-doer.
With regard to the alleged actionable wrong, it does not help to use high sounding evocative
rhetoric formulated in constitutional provisions to impress oneself and the client. A recitation of
the material facts will suffice.
We are bound by the rule of law. The rule of law comprises the provisions of legislative texts,
the principles and the specific rules of law as laid down by the legislature and interpreted by
our Courts in the light of our Constitutional provisions.
For example, we read in the pleadings such terms as violations of his right of privacy, victim
of inhuman, degrading and cruel treatment, unfair, oppressive, prejudicial and in violation of

plaintiffs fundamental rights etc. Clients would be better served by practitioners if the ground
work on the facts were properly done and rules and principles of law properly followed.
**Emotion charged invocations is no substitute for meticulous attention to procedure and
substance.
With regard to the actual wrong-doer, the civil action is grounded under article 1382 (faute
personnelle) against des personnes physiques and not des personnes morales.
The Ministry, the police authority or the customs authority or the statutory body are des
personnes morales.
Their vicarious liability, if at all, in tort will be engaged if, and only if, the personal liability of the
actual officer has been established as a fact and not otherwise.
The personne morale, in the circumstances, can be sued only under article 1384 as commettant.
Likewise the Commissioner and the Permanent Secretaries may not be sued for acts of others
because the Commissioner or the Permanent Secretary are themselves servants and agent of the
State so that they cannot be a regarded as commettants:
(see Boodhoo v The Government of Mauritius[1995 MR 63];G. Nundlallv The State[supra];
Vikash Trading Co. Ltd v. The Ministry of Trade, Shipping, Price Consumer
Protection[2001 MR 189]; Gokhool v The Commissioner of Police [1999 SCJ 388]; Sauzier
& Anor v The Central Electricity Board [2000 SCJ 193]; Island Beach Ltd v Commissioner
of Police [2008 SCJ 264]; Riaz Bhugaloo v The Commissioner of Police, The State of
Mauritius and Anwar Saib [2004 SCJ 143]; Coothen v The Ministry of Housing and Land
and Ors [2007 SCJ 125]; Mahamedally Jhumka v Commissioner of Police [supra].

Once the plaint has averred the nexus between wrong doing and the wrong doer and the causal link
between the wrong and the prejudice, it should establish the lien de prposition between the specified
officer (the prpos), on the one hand, and the commettant, on the other: see Louise Jean Noel v The
State [2003 SCJ 221].
It is still possible that the Court may salvage a case where the existence of the lien de prpositionis
apparent from the pleadings:Fazil Peerally v The Commissioner of Police &The Town Clerk of the
Municipal Council of Beau Bassin Rose Hill [2007 SCJ 275].
However, where it is not apparent, no such judicial salvage is possible:Hurreeram v The State of
Mauritius [2008 SCJ 347]; Chow Wei Ming v The State of Mauritius and Padiachy H. Contractors

Ltd [2009 SCJ 174]. Rapid Security Services Ltd v The Ministry of Education and Scientific
Research [2009 SCJ 249]; Satinaden v State of Mauritius [2009 SCJ 50].

We shall examine later whether the above stated first requirement is satisfied in this plaint.
THE SECOND REQUIREMENT: COMPLIANCE WITH SECTION 4 OF POPA.
The second requirement is that the plaintiff should comply with the provisions of the Public Officers
Protection Act. Section 4(1)(c) requires that the action should be instituted, on pain of nullity, within 2
years from the fact, act or omission.
The time
given to him is not short. He has two years to do so. Section 4(2)(a) requires him to
give a statutory Notice to the defendant prior to the institution of his action. It is
important that the formulation of his action in the advance Notice and the action
instituted be the same. A cosmetic notice will not do. He will be precluded from
bringing any action which is not contained in the notice. He will be precluded from
admitting evidence in relation to an action other than the one which he envisaged in
the Notice: see section 4(2) (b). The one month pre-action notice should be written,
disclose the cause of action, disclose the subject-matter and be given to the
defendant: see Louise Jean Noel v The State[supra].

26. That only means he should serve the statutory notice on the actual tortfeasorwho
should be made party to the case as well as the commettantsimply
inasmuch as article 1384 is grounded on article 1382 and not otherwise. Prpos as
well as commettant should be made parties to the case. For this purpose, an analogy
in such types of action with a claim for damages following a road accident where the
insured owner is sued as the commettantand the wrong-doer driver as the prpos
comes in handy.

27. Proper compliance with section 4 of the Public Officers Protection Act is a
prerequisite to a claim against any officer or the State for acts of the officer on pain of
nullity. At one time, an action could only be initiated within 6 months from the wrong
doing complained of. After its constitutionality was challenged, the period was

extended to 2 years. On the present state of the law, there is no unconstitutionality in


section 4 of POPA which requires that notice should be given to the State when an
action is being brought against it: see Jeekahrajee v The Registrar of Co-operatives
[1978 MR 215], Socit United Docks and Ors v The Government of Mauritius
[1984 MR 174] and Gujadhur v Deerpalsing [2008 SCJ 109].

28. Compliance with the above requirements is not a matter of procedure. It is a


matter of substance. As has been stated in the case of Rapid Security Services Ltd
v The Ministry of Education and Scientific Research [2011 SCJ 105], an objection
to an improper action against the state in such cases is not a technical matter
8
inasmuch as it relates to the choice of action between article 1382 and article 1384. It
goes to the very root of an action based on responsabilitcivile:
. the short coming is not merely a procedural one but one of substance since it
essentially involves a fundamental change in the basis of the appellants cause
of action from one under articles 1382 and 1383 for fauteintentionnelle or for
ngligenceou imprudence to one under article 1384 al. 3 (responsabilit du
commettant pour le fait de son prpos).

29. We shall see later whether in this case this second essential requirement has
been fulfilled.
THE THIRD REQUIREMENT: COMPLIANCE WITH THE STATE PROCEEDINGS ACT

30. The third requirement of the litigant is to comply with the relevant provisions of
the State Proceedings Act. Above all, one needs to heed section 2(1A) which reads:
No proceedings shall lie against the State under subsection (1)(a) in respect of
any act or omission of a servant or agent of the State unless the act or omission
would, apart from this Act, have given rise to a cause of action in tort against that
servant or agent of his estate.

31. The appellate court went on to explain in Rapid Security Services Ltd v The
Ministry of Education and Scientific Research [supra] the reasons why it is
essential to get it right from the very beginning. It has to do with the defences that may
be raised:
The need to prove liability of the prpos in the first place must also be considered in
the light of the defences which are open to the public officer in particular
pursuant to the Public Officers Protection Act [POPA]. There are more
precisely defences which are provided by section 4(1) and (2) in relation

to the time limit of 2 years to bring an action and to serve a notice of at


least one month prior to the entry of the plaint.
32. The other requirement of the State Proceedings Act should be heeded. The scope
and the limitation of the action against the State is the same as those of the tort-feasor.
Section 2(4) which reads:
Any enactment which extends or limits the extent of the liability of an
officer of the State in respect of any tort committed by that officer shall, in
the case of proceedings against the State under this section in respect of
a tort committed by that officer, apply in relation to the State as it would
have applied in relation to that officer if the proceedings against the State
had been proceedings against that officer.
9
33. We shall examine below whether this third requirement was fulfilled.

34. All is all, a plaint is the initiating process that gives access to a court of law. As
such, it should satisfy the basics of the rule of law as enshrined in the Constitution, the
provisions of the Civil Code under articles 1382 and 1384 and the relevant provisions
of the Public Officers Protection Act and the State Proceedings Act.