HON. DR. A. BOOLELL, G.O.S.K. v HON. S. PHOKEER, G.O.S.K.

& ANOR

2024 SCJ 29

Record No. 121978

THE SUPREME COURT OF MAURITIUS

Honourable Dr Arvin Boolell, GOSK

Plaintiff
v

1. The Speaker of the National Assembly, Honourable Sooroojdev Phokeer,

GOSK
2. The Honourable Prime Minister of the Republic of Mauritius,
Pravind Kumar Jugnauth
Defendants

In the presence of:

The Honourable Attorney General

Third Party

Interlocutory Judgment

By way of a Second Amended plaint with summons, the plaintiff is seeking

constitutional redress before the Supreme Court following his expulsion and suspension
during the sitting of the National Assembly (“the Assembly”) on 20 July 2021.

In the Second Amended plaint with summons, the plaintiff has, in a gist, averred that,
ever since his assumption of duty as Speaker, defendant No. 1 has, through his demeanour
and acts and doings, demonstrated that he is neither fair nor impartial but has in fact shown
a bias and predisposition in favour of the majority in the Assembly. He referred to several
instances where, according to him, defendant No. 1 acted in a biased manner against
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members of the opposition. With a view to depict the above, he set out the facts which,
according to him, led to his own expulsion and those of Honourable Bhagwan and Berenger
from the Assembly on 30 March 2021. He explained that the suspension was for that
session and until the Assembly would stand dissolved on 21 November 2024, unless earlier
dissolved. Following applications for constitutional redress lodged by the above members,
defendant No. 2, during the sitting of the Assembly dated 18 May 2021, moved that they be
reinstated. The proceedings for constitutional redress were therefore discontinued.

The Second Amended plaint with summons contains extracts published in the
Hansard of the proceedings of the sitting of the National Assembly of 20 July 2021, the date
on which the plaintiff was suspended for that sitting and for the next 8 sittings. He alleged
that the above disciplinary measure is unconstitutional and disproportionate. In support of
his contention that defendant No. 1 has been making a continuing abuse and acting in a
discriminatory and biased manner against members of the opposition, he set out, in a table,
the dates on which disciplinary measures were taken against members of the Assembly from
28 February 2020 up to 20 July 2021. In conclusion, he averred that the acts and doings of
the defendants to order him out and to subsequently suspend him are unconstitutional and
disproportionate as they violate his constitutional rights under sections 3, 12 and 16. He is
therefore seeking the following remedies:
(i) a declaration that the defendants have contravened, breached and
violated his constitutional rights under sections 3, 12 and 16 of the
Constitution by “ordering out”, naming and causing the plaintiff to be
suspended from the service of the Assembly for the sitting of 20 July
2021 and the next eight sittings;
(ii) a declaration that the decision to “order out”, name and cause the
plaintiff to be suspended from the service of the Assembly for the
sitting of 20 July 2021 and the next eight sittings is unconstitutional,
unlawful, mala fide, ultra vires and null and void to all intents and
purposes; and
(iii) an Order restraining and prohibiting defendant No. 1 from engaging in
any conduct which would further contravene the plaintiff’s
constitutional rights under the aforesaid provisions of the Constitution.

Following the filing of the Second Amended plaint with summons dated 21 June 2022
(“the plaint”), both learned Senior Counsel for defendant No. 1 and learned Counsel for
defendant No. 2 have renewed the motion made by them on 7 September 2021 to strike out
numerous paragraphs of the plaint.
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Both defendants are moving that the following paragraphs be struck out–
(a) paragraphs 2, 4, 6 and 81 as they are in breach of Rules 13(1) and 15(1) of the
Supreme Court Rules 2000 (“the Supreme Court Rules”);
(b) paragraphs 9 to 14, 16 to 20, 22 to 28, 31, 53 and 54 as they are in breach of
Rule 15(1) of the Supreme Court Rules;
(c) paragraphs 15, 33 (save and except for the reference to the sitting of 20 July
2021), 55 to 63, 67, 76, 82, 83 to 86 as they are in breach of Rules 15(1) and
(16(1) of the Supreme Court Rules;
(d) paragraphs 21 and 64 as they breach Rule 16(1) of the Supreme Court Rules;
and
(e) paragraph 30 as it breaches Rules 13(1), 15(1) and 16(1) of the Supreme Court
Rules.

They also contend that the averments contained in paragraphs 9 to 28, 33 (save and
except for the reference to the sitting of 20 July 2021), 53, 54, 56 to 63 and 76 of the plaint
“date back to more than 3 months after the cause of action” and ought to be struck out as
they are in breach of Rule 2 of the Supreme Court (Constitutional Relief) Rules 2000.

With respect to paragraph 33 of the plaint, they have moved that paragraph 33 be
struck out, save for the reference to the sitting of 20 July 2021, as it breaches Rule 2 of the
Supreme Court (Constitutional Relief) Rules 2000.

The plaintiff is objecting to the defendants’ motions while the third party is abiding by
the decision of the Court.

Breach of the Supreme Court Rules

With regard to the defendants’ motion relating to alleged breaches of the Supreme
Court Rules, we find it apposite to refer to the following extracts regarding the object of
pleadings from Odgers’ Principles of Pleading and Practice in Civil Actions in the High
Court of Justice, Twenty-Second Edition (1981), at pages 88 and 146, quoted with
approval in Ius Ad Vitam Association v The State of Mauritius & Ors [2014 SCJ 142]:

“The function of pleadings then is to ascertain with precision the matters on which the
parties differ and the points on which they agree; and thus to arrive at certain clear
issues on which both parties desire a judicial decision. In order to attain this object, it is
necessary that the pleadings interchanged between the parties should be conducted
according to certain fixed rules, ....The main purpose of these rules is to compel each
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party to state clearly and intelligibly the material facts on which he relies, omitting
everything immaterial, and then to insist on his opponent frankly admitting or explicitly
denying every material matter alleged against him. By this method they must speedily
arrive at an issue. Neither party need disclose in his pleading the evidence by which he
proposes to establish his case at the trial. But each must give his opponent a sufficient
outline of his case.
………
…. though it is in general unnecessary to allege a matter of law, yet it is sometimes
convenient to do so, and it may make the statements of fact more intelligible and show
their connection with each other. There is no harm in this, if the facts are also stated on
which the proposition of law is based.”

The following extract from Ius Ad Vitam Association (supra), where the Court quotes
L. J. Bowen in Knowles v Roberts 1888 C.A. 263, at page 270, is also relevant:

“…. the rule that this Court is not to dictate to parties how they should frame their
case, is one that ought always to be preserved sacred. But that rule is, of course,
subject to this modification and limitation, that the parties must not offend against
the rules of pleading which have been laid down by the law; and if a party
introduces a pleading which is unnecessary, and it tends to prejudice,
embarrass, and delay the trial of the action, it then becomes a pleading which is
beyond his right.”

The following extract from Odgers’ Principles of Pleadings and Practice in Civil
Actions in the High Court of Justice (14th edition) is also of interest:

“…the threshold that had to be met at the time for any matter to be struck out on
the ground that it was “unnecessary” was a very high one: “(...) it is not easy to
obtain an order under this rule. One party has no right to dictate to the other how
he shall plead (...). The mere fact that an allegation is unnecessary is no ground
for striking it out (...)” (at page 141). It would appear that there was a further
requirement in practice that the allegations had also to be found to be
“embarrassing”, that is, “so irrelevant that to allow them to stand would involve
useless expense, and would also prejudice the trial of the action by involving the
parties in a dispute that is wholly apart from the issues.” (see Mayor etc of
London v Horner [1914] 111 L.T at p 514 and Willoughby v Eckstein [1936] 1 All
E.R 650), as referred to in Odgers (14th edition) at page 141).”

Bearing in mind the above principles, we shall now consider the motions for striking
out the paragraphs of the plaint referred to above. We must, however, make it clear that, in
deciding the motions, we are not in any manner making any determination as to the merits of
the plaintiff’s plaint, which may only be decided after pleadings have been exchanged and
full arguments on the facts and in law have been heard.

Paragraphs 2, 4, 6 and 81
The above paragraphs are being impugned on the ground that they breach Rules
13(1) and 15(1) of the Supreme Court Rules. Rule 13(1), so far as relevant, provides that
every pleading shall clearly and distinctly state all matters of fact that are necessary to
sustain the plaint. Pursuant to Rule 15(1) where a pleading contains a statement which is
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unnecessary, made vexatiously or made with unnecessary prolixity it may be struck out or
amended.

It was submitted on behalf of the defendants that paragraphs 2 and 4 contain

averments which are superfluous and irrelevant and are made with unnecessary prolixity
about the plaintiff’s political career. They do not contain any material facts necessary to
sustain the plaintiff’s action for constitutional redress. It was also contended that the said
paragraphs were only introduced to protract pleadings and ought to be struck out. Moreover,
it was submitted that they offend Rule 3(1)(a) of the Supreme Court Rules 2000 and would
not have any bearing in determining the plaintiff’s prayers. Learned Counsel for defendant
No. 2 submitted that such averments are not required to sustain the plaintiff’s case, which is
not a case as to the assessment of the plaintiff’s experience in the Assembly and the plaintiff
ought not give unnecessary details in relation to him.

We fail to understand the defendants’ grievance with regard to the above paragraphs
which simply give a brief overview of the plaintiff’s political career. We do not consider that
the said averments are superfluous or that they are “embarrassing”, that is, “so irrelevant that
to allow them to stand would involve useless expense, and would also prejudice the trial of
the action by involving the parties in a dispute that is wholly apart from the issues”. It is also
difficult to understand how the paragraphs can be said to be in breach of Rule 3(1)(a) which
merely provides that a plaint with summons shall state the names, occupations and
addresses of the parties.

For the reasons given above, we do not consider that paragraphs 2 and 4 are in
breach of Rule 3(1)(a), 13(1) or 15(1).

It was argued on behalf of the defendants that paragraphs 6.1, 6.4 and 6.5 purport to
set out the political career of defendant No.1 and are immaterial to the plaintiff’s cause of
action. Further, it was submitted that paragraphs 6.2 and 6.3 which make reference to the
alleged recalling of defendant No. 1 when he was a diplomat and an alleged incident in
which he was involved during his posting as diplomat in Washington are vexatious.

Ex facie, the averments in the plaint seemingly purport to show that defendant No. 1
has adopted a systematic and similar pattern of behaviour which consists in suspending
members of the opposition from the Assembly. It is also averred that defendant No. 1 was
biased against the members of the opposition and that he acted in a discriminatory manner
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vis à vis them. In the circumstances, we do not find that paragraphs 6.1, 6.4 and 6.5 which
purport to establish defendant No. 1’s close affinity with the ruling party, the Mouvement
Socialiste Militant, breach any rules regarding the drafting of pleadings.
However, in so far as paragraphs 6.2 and 6.3 are concerned, we fail to understand
how the above paragraphs can be relevant in assisting the Court in determining the
controversy between the parties.

Learned Counsel for the defendants argued that paragraph 81 contains averments to
the effect that defendant No.1’s alleged actions towards the opposition is linked to his past
role in the General Elections and are speculative, express opinions and are not factual.
Further, this paragraph does not disclose any material fact which shall assist the Court as to
whether the prayers for constitutional redress are to be granted.

Our reading of paragraph 81 is that the plaintiff alleges that defendant No. 1 has
been acting in a biased and discriminatory manner because he believes that he has the
support of the majority party with whom he has a political affinity on the basis of his past role
as canvasser and campaign coordinator for the majority party in past general elections.

Taking all the above into consideration, we find that the defendants have failed to
establish that paragraphs 6.1, 6.4 and 6.5 and 81 are in breach of Rules 13(1) and 15(1) of
the Supreme Court Rules and we refuse to strike out the said paragraphs. However, we
agree that paragraphs 6.2 and 6.3 are clearly unnecessary and we accordingly strike out the
said paragraphs.

Paragraphs 9 to 14, 16 to 20, 22 to 28, 31, 53 and 54

Learned Counsel for the defendants argued that paragraphs 9 to 14, 16 to 20, 22 to
28, 31, 53 and 54 ought to be struck out for being in breach of Rule 15(1). It was argued on
behalf of the defendants that paragraphs 9 to 15, 17, 19, 20, 22, 23 to 27 set out alleged
occurrences of 23 and 30 March 2021 in the Assembly and that such averments do not
relate to the decision of 20 July 2021 and will be of no use to the Court in an assessment of,
inter alia, whether the said decision was in contravention of the constitutional rights of the
Plaintiff.

A perusal of the plaint shows that:

(a) paragraphs 9 to 14 relate to a question put by Honourable Assirvaden, a
member of the opposition party, to Honourable Ganoo, a member of the ruling
party on 23 March 2021;
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(b) paragraphs 16 to 20 set out what happened in the Assembly after the above
question was put;
(c) paragraphs 22 to 27, in a gist, explain how, the plaintiff, Honourable Bhagwan
and Honourable Berenger were suspended from the sitting of 30 March 2021 and
for the rest of the session;
(d) the plaint also spells out that defendant No. 2 moved for the lifting of the
suspension at the sitting of 30 March 2021 after the aforementioned members
had lodged an action seeking constitutional redress;
(e) under paragraph 28, it is averred that despite the above, defendant No. 1
continued with his biased and improper conduct;
(f) paragraph 31 sets out the plaintiff’s explanation regarding his conduct in the
Assembly on 30 March 2021, after setting out what allegedly happened in the
Assembly on that date;
(g) under paragraph 53, the plaintiff specifically avers that defendant No. 1 was
biased and discriminatory against the members of the opposition including the
plaintiff and that “they have suspended solely members of the opposition since 21
November 2019 except for one member of the government, namely Honourable
S. Nuckcheddy, who was asked … at the sitting of 24 November 2020 to
withdraw from the Chamber for the remainder of the day only.”; and
(h) under paragraph 54, the plaintiff alleges that only members of the opposition
have been systematically denied their right to sit in the Assembly and the right to
free speech.

After taking into consideration what the plaintiff’s case is ex facie the plaint, we are of
the view that the defendants have failed to establish that the above paragraphs breach Rule
15(1) in that they are unnecessary in the sense that they are “so irrelevant that to allow them
to stand would involve useless expense, and would also prejudice the trial of the action by
involving the parties in a dispute that is wholly apart from the issues.” We accordingly, refuse
to quash the above paragraphs.

Paragraphs 15, 33 (save and except for the reference to the sitting of 20 July 2021), 55
to 63, 67, 76 and 82 to 86

The defendants contend that the above paragraphs breach Rules 15(1) and 16(1) of
the Supreme Court Rules. It is relevant to recall that Rule 16(1) provides that a pleading
which is, by reason of its duplicity, argumentativeness, uncertainty, omission, defect, lack of
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form or other imperfection, framed in a way to embarrass or mislead the other party may be
amended.

Paragraph 15 cannot be considered in isolation; it depicts what happened during the

sitting of the Assembly of 30 March 2021 and sets out the scene for the ensuing paragraphs
which explain how the plaintiff and 2 other members of the opposition were suspended from
that sitting and until the Assembly would stand dissolved on 21 November 2024.

Paragraph 33, apart from referring to the sitting of 20 July 2021, contains a table
which sets out the different dates on which members of the Assembly were suspended
starting from 28 February 2020 up to 20 July 2021, i.e., the date on which the plaintiff was
suspended.

Under paragraphs 55 to 63, the plaintiff alleges that, even when the conduct of
members of the government are grossly disorderly, the defendants fail to suspend them and
he supports his contention by referring to two instances where defendant No. 1 did not take
any action against members of the government inspite of their conduct which was allegedly
grossly disorderly: firstly reference is made to an alleged incident between Honourable
Mohamed and Honourable Hureeram at the sitting of 23 June 2020 and secondly the plaintiff
refers to the following words: “eta aller do ta bouffon” which defendant No. 2 allegedly
uttered to the address of Honourable Assirvaden during the sitting of 24 November 2020.

It is the plaintiff’s contention, under paragraph 67, that he was never given an
opportunity to be heard before he was sanctioned and that this is in breach of the right to be
heard in any democratic society. Under paragraph 76 the plaintiff avers that defendant No. 1
has on numerous occasions failed to suspend members of the majority when they uttered
words which were grossly offensive.

Bearing in mind the case which the plaintiff purports to put across in his plaint, we are
of the considered view that the defendants have been unable to satisfy us that the above
paragraphs suffer from “duplicity, argumentativeness, uncertainty, omission, defect, lack of
form or other imperfection[s]” or are “framed in a way to embarrass or mislead” the other
parties.

For the reasons given above, we refuse to quash the aforementioned paragraphs.

Breach of the Constitutional Relief Rules

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Learned Counsel for defendant No. 1 submitted that the impugned paragraphs 9 to
28, 33 (save and except for the reference to the sitting of 20 July 2021), 53, 54, 56 to 63 and
76 of the plaint “contain averments that arose more than three months after the alleged right
of action” which we understand to mean more that 3 months prior to the alleged right of
action. It was argued that the cause of action arose on 20 July 2021 and that the plaintiff
cannot make averments setting out facts which happened before the cause of action. It was
their contention that the above paragraphs are in breach of Rule 2(2) of the Constitutional
Relief Rules.

Rule 2(2) reads as follows-

“Except with leave of the Supreme Court, on good cause shown, no application shall
be lodged more than 3 months after the right of action arises.”

We do not agree with the defendants that the above paragraphs which contain
averments pertaining to acts which took place more than 3 months prior to the date of the
lodging of the plaint cannot form part of the plaint. What Rule 2(2) provides is that an action
for constitutional redress cannot be lodged more than 3 months from the date of the cause of
action giving rise to it. The present case was lodged on 9 August 2021. Ex facie the plaint,
the cause of action giving rise to the present application for constitutional redress arises from
the naming and suspension of the plaintiff on 20 July 2021. The said acts clearly fall within a
delay of 3 months prior to the lodging of the application. True it is that the plaint also refers
extensively to acts which took place more than 3 months before 9 August 2021. However,
those acts are simply referred to in support of the claim that the naming and suspension of
the plaintiff is unconstitutional.

We further disagree that pursuant to Rule 2(2), the plaintiff cannot refer to those acts.
It is obvious from the plaint that this Court is only being called upon to determine whether the
suspension of the plaintiff on 20 July 2021 is unconstitutional. However, this exercise cannot
be carried out in a vacuum. As stated above, ex facie, the averments in the plaint seemingly
purport to show that defendant No. 1 has adopted a systematic and similar pattern of
behaviour which consists in suspending members of the opposition from the Assembly. It is
also averred in the plaint that defendant No. 1 was biased against the members of the
opposition and acted in a discriminatory manner vis à vis them. In the circumstances, the
plaintiff is perfectly entitled to refer to what took place before his impugned suspension with
a view to establish his case which ex facie the plaint is that defendant No. 1 was biased and
acted in a discriminatory manner vis à vis members of the opposition.
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After taking into consideration all the above, we find that the defendants have failed
to establish that paragraphs 9 to 28, 33 (save and except for the reference to the sitting of 20
July 2021), 53, 54, 56 to 63 and 76 of the plaint should be struck out for being in breach of
Rule 2(2) of the Constitutional Relief Rules.

In conclusion, for all the reasons given above -

(a) we find that there is no merit in the defendant’s motion to strike out paragraphs
2, 4, 6.1, 6.4, 6.5, 9 to 14, to 20 to 28, 31,33, 53 to 55, 63, 64, 67, 76, and 81 to
86 as the defendants have failed to establish that they are in breach of the
Supreme Court Rules referred to above. However, we strike out paragraphs 6.2
and 6.3 as being unnecessary;
(b) we also find that there is no merit in the motion to strike out paragraphs 9 to 28,
33 (save and except for the reference to the sitting of 20 July 2021), 53, 54, 56 to
63 and 76 of the plaint on the ground that they relate to facts which occurred
more than 3 months prior to the lodging of the plaint and are in breach of Rule 2
of the Supreme Court (Constitutional Relief) Rules 2000.

The case will be mentioned before the Master and Registrar on 8 February 2024 for
the case to be put in shape.

K. D. Gunesh-Balaghee
Judge

D. C. N. D. Mootoo
Judge

24 January 2024
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--------------

Judgment delivered by Hon. K. D. Gunesh-Balaghee, Judge

For Plaintiff : Mr. A. O. Jankee, Attorney at Law

Mr. S. Bhuckory, Senior Counsel
Mr. R. Unnuth, of Counsel

For Defendant No. 1 : Mr. M. Mardemootoo, Senior Attorney

Mr. R. Chetty, Senior Counsel
together with Ms L. Veerapen, of Counsel

For Defendant No. 2 : Chief State Attorney

Mr. D. Reetoo, Assistant Parliamentary
Counsel together with Ms. V. Sunkur, of Counsel

For Third Party : Principal State Attorney

Mrs. P. V. Ramjeeawon-Varma, Assistant
Parliamentary Counsel together with
Ms. G. S. Manna, of Counsel