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ATTORNEYS EXAMINATION - SEPTEMBER 2011

PAPER IV - CIVIL PROCEDURE

QUESTION 1

(a) Mr. Michaels claim before the Supreme Court for damages
against Mr. Peter has been non-suited following an objection in law
taken by the defence. Mr. Michael wishes to appeal.

Advise Mr. Michael.

(b) Mr. Franco explains to you that he was summonsed to appear before
the Judge in Chambers on the 1st July 2011 to show cause why an
order to restrain and prohibit him from making use of confidential
information which he obtained during his employment with Android
Co. Ltd. should not be made interlocutory. Although he was aware of
the date of hearing, he did not attend and the order was issued. He
calls on you on the 20th July 2011 and wishes to apply for a new
trial.

Advise Mr. Franco

BARRISTERS EXAMINATION - SEPTEMBER 2006


PAPER II - CIVIL PROCEDURE

Question 2

(c) What is a dsistement dinstance and distinguish it from a


premption dinstance?

(d) What is an interlocutory judgment and how do you appeal against an


interlocutory judgment delivered by the Supreme Court?

BARRISTERSEXAMINATION SEPTEMBER 2016


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PAPER II CIVIL PROCEDURE

Question 1

By virtue of a judgment delivered on 31 March 2013 by the Senior District


Magistrate of Flacq District Court, D. Modo was ordered to vacate by 31 May
2013 the premises let to him by the then plaintiff, P. Coldo.

On 16 April 2013, Modo filed a written notice of appeal, containing the


grounds of appeal, with the Clerk of the district court and entered into a
recognizance and furnished the required security to prosecute the appeal.
He contends that after having complied with the formalities at the district
court level, he proceeded to the office of his attorney and remitted to the
attorneys clerk a copy of the notice of appeal bearing a certificate from the
district court clerk together with a copy of a receipt witnessing payment of
the relevant security and court fees.

On 20 June 2013, it came to his knowledge that the appeal had not been
prosecuted before the Supreme Court due to a breakdown of communication
between his attorney and the attorneys clerk.

In view of the above, Modo is now moving the appellate court to allow him to
prosecute his appeal.

What would be your arguments:

(1) In support of Modos motion to prosecute the appeal;

(2) If you are acting on behalf of Coldo and resisting Modos


motion to prosecute the appeal.

Question 4

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In a judgment handed by the Intermediate Court Naren Hinder (then
defendant) has been ordered to quit, leave and vacate a plot of land situated
at Ruisseau Rouge of which Treasury Cove Co. Ltd (then plaintiff) claimed to
be the lawful owner by virtue of a duly transcribed and registered title deed.
Naren Hinder has been also ordered to pay Rs 10,000 as damages to the
company.

The case for the plaintiff before the trial court was to the effect that it is the
owner, invirtue of a title deed TV 380/574, of a plot of agricultural land of
an extent of 2110 m2 situated at Ruisseau Rouge which it had leased since
1990 to one Roger Puthin for the cultivation of watercress.

In December 1999 Hinder unlawfully started occupying the said plot without
any right and in breach of the plaintiffs rights as owner as well as in breach
of the lessors rights.

The plaintiff had prayed for a judgment ordering Hinder:


(a) to quit, leave and vacate the plot of land forthwith and not to interfere in
any way in the future with its rights over the said plot of land; and
(b) to pay damages amounting to Rs 500,000.

However, Hinder had taken a plea in liminelitis which reads as follows:


(1) the Court has no jurisdiction to hear the present matter inasmuch as
the value of the land in lite exceeds the jurisdiction of the above Court;
(2) the plaintiff is not the owner of the land in lite, as averred in the plaint,
and since the question of ownership of the land would arise and be in issue,
the court would have no jurisdiction to hear and determine the present
action.

The Magistrate found that the plea in liminelitis was premature and could
only be dealt with after evidence had been adduced. The case of Hinder
before the trial court was to the effect that his late grandfather, his father
and himself have been cultivating the said plot of land with watercress and
have been earning their livelihood from such cultivation.
He has averred that their occupation was peaceful and au vu et au su of
one and all and that his father is the rightful owner of the land in lite for
having occupied same with all the requisites of acquisitive prescription.

In his judgment the Magistrate of the Intermediate Court found that Hinder
had not been able to establish acquisitive prescription inasmuch as no
affidavit of prescription had been affirmed nor any title by virtue of
prescription, transcribed by the appellant or his father. He also found that
Hinder had not occupied the plot in lite in an unequivocal manner and
titre de propritaire and that his possession had not been continue et non
interrompue in as much as the company had entered into lease agreements
in respect of the plot with Puthin ever since 1990.

The Magistrate on the other hand found that Hinder did not seem to dispute
the fact that the plaintiff was the owner of the plot of land by virtue of a title
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deed as the evidence of Mr. Dechaud remained unchallenged on this issue.
He further found from the evidence of Mr. Dechaud that the value of the
land is around Rs 325,000 and, therefore, within the jurisdiction of the
present court and came to the conclusion that the case for the plaintiff had
been proved on a balance of probabilities.

As he is dissatisfied with the judgment, Hinder is contemplating lodging an


appeal and has retained your services for that purpose. After taking
cognizance of the evidence before the trial court alluded to above and in
considering the grounds of appeal that could be invoked, the question which
crosses your mind is whether the Magistrate was right in setting aside the
plea in limineon the issue of jurisdiction.

Discuss the legal issues which may be raised in that connection on appeal.