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 2025 SCJ 135 

Record No. 124403 (5A/94/23) 

THE SUPREME COURT OF MAURITIUS 

In the matter of: 

SOBORUN Sobodhsing 

Applicant 

v. 

The Public Bodies Appeal Tribunal 

Respondent 

In the presence of: 

1. The Public Service Commission 

2. BUMMA Venkata Ratnam 

3. SAHYE Lila Davee 

Co-Respondents 

——————– 

JUDGMENT 

The applicant was appointed on 30 December 2021 as Deputy Chief Town and Country Planning Officer by co-respondent No. 1, the Public Service Commission (“PSC”). 

The Public Bodies Appeal Tribunal (the “PBAT”) on 28 March 2023 quashed his appointment as Deputy Chief Town and Country Planning Officer following an appeal made by co-respondent No. 2 (“Mrs Bumma”). The applicant is now seeking a judicial review of the decision of the PBAT taken on 28 March 2023, after leave was granted, on the basis that the 2 

decision is (i) illegal and/or ultra vires and (ii) irrational and/or unreasonable under the Wednesbury principles. 

Co-respondent No. 3, Mrs Lila Davee Sahye was appointed on 30 December 2021 together with the applicant by the PSC and although she is a party to the present proceedings as well as before the PBAT, her appointment is not challenged and is therefore valid. This has been agreed by all counsel at the hearing. For clarity, her appointment to the post of Deputy Chief Town and Country Planning Officer as from 30 December 2021 remains and is not affected in any manner whatsoever. 

The contention in the appeal before the PBAT, by way of grounds of appeal, and before the present court, is the manner in which the former dealt with the issue of experience of the applicant and that of Mrs Bumma. 

It is necessary to set out the grounds of appeal before the PBAT. 

1. The decision of the Public Service Commission (PSC) to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye as Deputy Chief Town and Country Planning Officers must be quashed, set aside, reversed or otherwise dealt with because the PSC failed to properly assess the experience of the Appellant and of Mr Soobodhsing Soborun and Mrs Lila Davee Sahye who applied for the post. Had the PSC made a proper assessment of experience, it would have appointed Appellant. 

2. The decision of the PSC to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye as Deputy Chief Town and Country Planning Officers must be quashed, set aside, reversed or otherwise dealt with in as much as it failed to properly assess the experience of the Appellant for the post. Had the PSC properly assessed Appellant’s experience, it ought to have considered that the Appellant: 

(i) Had 22 years of experience in the service and eight and a half years of experience as Principal Town and Country Planning Officer; 

(ii) Had been granted actingship as Deputy Chief Town and Country Planning Officer from 10th June 2021 to 30th December 2021; 

(iii) Was involved in strategic and statutory planning and development control; 

(iv) Assisted in formulation of planning policies; 

(v) Prepared Master plans; 

(vi) Assisted the Chief Town and Country Planning Officer in the review of the Planning Policy Guidance (PPG); and 

(vii) Was a committee member of the National RAMSAR Committee at the Ministry of Agro-Industry and Food Security, Traffic Impact Committee at the Ministry of Public Infrastructure, Morcellement Board at the Ministry of Housing and Lands among others. 

3. The decision of the PSC to appoint the Mr Soobodhsing Soborun to the post of Deputy Chief Town and Country Planning Officer must be quashed, set aside, reversed or otherwise dealt with because the Respondent failed to assess that Mr Soobodhsing Soborun had no experience for any of the duties specified on part IV of the Duties for the post of Deputy Chief and Country Planning Officer, whilst had the PSC made a proper assessment of the experience of the Applicants for the post, it ought to have considered that: 

(i) At the time of selection and interview, the Appellant had already performed all duties specified in part IV 1, 2, 3, 4 and 5 of the scheme of duties; 

(ii) Mr Soobodhsing Soborun had not performed none of the duties specified in part IV 1, 2, 3, 4, 5 6, 7 and 9. 

4. The decision of the PSC to appoint Mr Soobodhsing Soborun and Mrs Lila Davee Sahye should be quashed, set aside, reversed or otherwise dealt with in as much as PSC failed to properly assess the ability of the Applicants for the post as required for the post of Deputy Chief Town and Country Planning Officer because: 

(a) Monitored and coordinated the work of subordinate staff; 

(b) Ensured proper staffing and distribution of work; 

(c) Had experience at managerial level, which was also a criterion for the post, as compared to Mr Soobodhsing Soborun; 

(d) Had the necessary interaction skills for the post for having liaised with several ministries on Town and Country Planning issues. 

It is the contention of the applicant that the PBAT, while considering grounds 1 to 3, was wrong to limit its consideration on the issue of experience to the markings given to each of the three candidates. The applicant identifies 3 errors, firstly that the PBAT usurped the functions of the PSC in assessing the marks allocated under the set criterion of selection. Secondly, it made an error as to the relevant time Mrs Bumma had acted as Deputy Chief. Thirdly, there was no consensus between the parties that the “markings under the criterion “Experience” will determine the case.” 4 

The relevant extract of the PBAT’s Determination is as follows: 

“Since Grounds 1, 2 and 3 are interlinked with the issue of experience, it was the view of all parties that being given the proceeding of the case concentrated mainly on this subject matter, the markings under the criterion “Experience” will determine the case” 

We propose to deal first with what has been characterised as the second ‘flaw’ by the applicant. The appointment was by selection and the closing date for the submission of the application forms was 7 October 20211. Note 5 of the “Notes and Instructions for online applications”2 states that qualifications obtained after the closing date for the submission of applications will not be accepted. Note 7 of the same document states that the filled in form should contain full details regarding qualifications, previous experience and any factors which would qualify candidate for consideration relating to the post applied for. We are of the view that in the present case, this would therefore exclude any experience obtained after the closing date. 

1 Annex A, page 137 of the brief. 

2 Annex A1, Page 138 of the brief. 

Annex A sets out the criteria for selection in the following manner: 

By selection from among officers, in the grade of Principal Town and Country Planning Officer who reckon at least three years’ service in a substantive capacity in the grade and who: 

a) possess a postgraduate degree in the field of Town and Country Planning from a recognised institution or an equivalent qualification, acceptable to the Public Service Commission; 

b) possess managerial skills and are able to interact effectively at all levels; 

c) possess good communication and interpersonal skills; and 

d) are able to contribute to sound decision-making. 

Experience at managerial level is desirable. 

NOTE 

1. Candidates should produce written evidence of experience claimed. 

2. The onus for the submission of written evidence of experience claimed and equivalent of qualification (if applicable) from the relevant authorities [ ] rests on the candidates. Applications will not be considered in case of non-submission of 

written evidence of experience claimed and equivalence certificate, as appropriate, by the closing date. 

[our underlining] 

The above reproduction illustrates the importance and emphasis given to the production of written evidence with respect to experience “by the closing date”. The interview panel of the PSC and the PBAT (when relevant) should therefore be very careful when considering experience post the closing date. 

In the case at hand, we find that the PBAT did consider assignment of duties and equated it to experience at pages 6 to 8 of its Determination and set out the duties assigned to each of the three candidates. The PBAT also set out the periods of said assignments for each candidate and with respect to Mrs Bumma states the following: 

“Appellant [Mrs Bumma] was also assigned duties for a short period of about three weeks in January/February 2021 as well as a continuous period of more than six months from 10 June 2021 to 29th of December 2021. Whereas co-respondent no. 1 [Mr Soborun] did perform the duties of the post for only one short period of 9 December 2021 to 27 December 2021.” 

We find that there is a wrong consideration by the PBAT of the period of assignment of Mrs Bumma and Mr Soborun after the closing date of the application, that is, 7 October 2021. The period of assignment of duties clearly influenced the decision of the PBAT as can be seen from the wording of the Determination and the following is an illustration of how it influenced their decision in the following extract3: 

3 Page 7 and 8 of the Determination. 

Appellant [Mrs Bumma] was also appointed as Principal Town and Country Planning Officer before Co-Respondent no. 1 [Mr Soborun] and had been assigned duties to the post for a short period and a further continuous period of more than six months whereas Co-Respondent no. 1 was assigned duties to the post for only a short period of three weeks. Therefore, it is clear that appellant had gained more experience in the post than Co-Respondent no. 1. 

… 

However, the difference in the experience of Appellant and Co-Respondent no. 1 should have been reflected in allocation of marks under this criterion and they should not have been treated at par. 6 

This is an error of fact which has been heavily relied upon by the PBAT to reach their decision. As to the effect of this error of fact, we agree with the submissions of learned Counsel for the applicant on this score and reproduce the extract from Judicial Review Handbook (6th Edition) by Fordham which he provided: 

“49.2 Fundamental/material error of fact. 

Judicial review judges have traditionally been cautious about fact-based judicial review challenges. Factual questions are primarily entrusted to the public body. Their reinvestigating would expand the Court’s case-load and function. But, as everywhere in judicial review, there is a principled balance to be struck. The Courts are incrementally developing a reserve-power to exercise their supervisory jurisdiction where a factual error is of a nature and significance to warrant judicial intervention. Alongside precedent fact and objective fact, appropriate cases will include (a) an unsupported or unsustainable factual conclusion, (b) the disregard of an established and material fact, and even (c) a material error of fact. These categories of case are not sensibly be regarded as closed. 

… 

49.2.7 Unsustainable conclusion of fact as unreasonableness. 

Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 410G-411A (no need for “ingenious” Edwards v Baristow solution of inferred mistakes of law: “Irrationally” by now can stand upon its own feet”); R v Housing Benefit Review Board of the London Borough of Sutton ex p Keegan (1995) 27 HLR 92, 100 (Conclusion “was arrived at in the end of the teeth of the evidence and was accordingly Wednesbury unreasonable”); … ‘ [underlining added]” 

We also find it useful to cite the following extract from Forsyth et al (eds), (Effective Judicial Review: A Cornerstone of Good Governance) (Oxford 2010) at 259-60 which is referred in Administrative Law , Text and Materials, Fifth Edition, Elliot & Varuhas at Page 72, 2.4: 7 

Material mistakes of fact may be viewed as intrinsically unfair. In the absence of bad faith, it is reasonable and rational to assume that where there is a dispute between the decision-maker and the person affected, the individual tasked with resolving the dispute acts on the basis that he has understood the facts upon which the decision is based. Clearly there may be disagreements as to whose version of the facts is true, and this will be for the person hearing the dispute to decide. But where a factual finding which has an impact on the outcome is objectively shown to be mistaken, the process of fair dispute resolution can be seen to have failed. The outcome is no longer rooted in factual reality, putting the decision in the same category as one which is irrational, or is based on an irrelevant consideration, or is infected by bias. A material error of fact has the same effect on a decision as a mistake about the applicable law: the decision is rendered incorrect and unfairness results to one or both parties, or to the public interest generally. This analysis provides a compelling basis for concluding that material error of fact which causes unfairness should be viewed as an error of law in the same way that irrationality, bias, or a literal misdirection on the law, are. 

Since we have found that the PBAT made a material mistake of fact, we find its decision is unreasonable and must be quashed. We order accordingly. 

In the circumstances, we find it unnecessary to consider the two other grounds raised by the applicant. 

R. Teelock 

Judge 

V. Kwok Yin Siong Yen 

Judge 

31 March 2025 

 Judgment delivered by Hon. R. Teelock, Judge

For Applicant	Mr. R. Bucktowonsingh, State Attorney Mr. A. Sunassee, together with Mr. V. Reddi, both of Counsel
For Respondent	Mr. R. Rajroop, Attorney at Law Mr. N. Patten, of Counsel
For Co-Respondent No.1	Ms. A. Mohun, Senior State Attorney
	Mr. S. Bhoyroo, Principal State Counsel together with Ms. A. Aubeeluck, of State Counsel
For Co-Respondent No.2	Mrs. B. R. Venkatasamy, Attorney at Law
	Ms. M. Luchman, of Counsel
For Co-Respondent No.3	Mrs. A. K. Ghose, Attorney at Law
	Mr. R. Appaya, of Counsel

2025 SCJ 103 

Record No. 9664 

THE SUPREME COURT OF MAURITIUS 

In the matter of: – 

Farouk Ackbarkhan 

Appellant 

v 

1. Municipal Council of Vacoas-Phoenix 

2. The Director of Public Prosecutions 

Respondents 

—————- 

JUDGMENT 

This is an appeal against a sentence of the then learned Magistrate of the District Court of Upper Plaines Wilhems ordering the appellant (then accused) to pay a fine of Rs. 1000 together with Rs. 100 as costs and to restore the construction as per the initially approved plans attached to the Building and Land Use Permit (hereinafter referred to as “BLUP”) issued in 2012. She also ordered that the restoration be carried out within a delay of three months. 

There were initially three grounds of appeal but later, grounds 2 and 3 were dropped. Hence, the only ground of appeal is against the restoration order imposed upon the appellant because it is contended that it is manifestly harsh and excessive, wrong in principle, disproportionate and constitutes an inhuman punishment inasmuch as there is no evidence which warrants the imposition of such an order and the pulling down of part of the appellant’s residence. 2 

We find it relevant to set out the facts of the present case. On 31st October 2017, during a site visit, Mr. K. Mungur, a Building Inspector of the Municipal Council of Vacoas-Phoenix, found that the appellant was carrying out an unlawful development on the ground and first floors contrary to the initially approved plans and in breach of the conditions attached to the BLUP issued to him under Section 117 of the Local Government Act on 7th June 2012. The statutory distance of 3 feet from the boundary line was not respected as the construction was being carried out on the boundary line itself. 

On the same day, Mr. Mungur caused a Notice to be served on the appellant to stop the construction works, to pull down the unlawfully constructed parts and to provide his explanations within 7 days. As the appellant failed to comply with the said Notice, he was served a Notice of intended prosecution dated 13th November 2017. 

The appellant was thus prosecuted for having unlawfully carried out a development in breach of conditions attached to the BLUP issued to him, in breach of Section 8(1) of the Town and Country Planning Act 1954. In the light of the unrebutted evidence adduced by the Prosecution and the guilty plea entered by the appellant, the learned Magistrate found that the case was proved beyond reasonable doubt. She found the appellant guilty as charged on 7th December 2022. 

It is apposite to note that the Prosecution moved for a restoration order in the light of the evidence on record to the effect that some 14 m2 of the extension were found on the mandatory statutory distance. 

Following a pre-sentence hearing, the learned Magistrate, on 7th February 2024, ordered the appellant to pay a fine of Rs. 1000 together with Rs. 100 as costs. She also ordered him to restore the construction as per the approved plans attached to the BLUP issued to him in 2012 within a delay of three months. 

The gist of the submissions of learned Counsel for the appellant, Mr. Bhanji Soni, is that the restoration order constitutes a disproportionate and inhuman punishment given that such an order would have a devastating impact on all the residents of the house. The family members may be left without shelter during the demolition process, which in itself, is a collective punishment and humiliation. Further, it will impose a significantly heavy burden on the appellant who has to pull down part of his residence almost six years after it has been built. 3 

Learned Counsel added that such an order is draconian in nature and the trial court has failed to consider the safety of the remaining construction, the financial impact on the appellant, the environmental aspect of such demolition, the prejudice that would be caused to surrounding buildings and neighbours and the practicality of the situation. He contended that the learned Magistrate failed to give any reason as to why the pulling down order was absolutely and inevitably warranted. 

Mr. Bhanji Soni further argued that the plans produced before the trial court show the extension, but they do not precisely point out to those parts found on the boundary line. In his view, there cannot be a valid restoration order in the absence of a precise plan indicating clearly the ‘offending part’. 

Mr. Bhanji Soni also argued that the imposition of a restoration order is disproportionate as there was no evidence that the offending construction was causing prejudice to the neighbouring owners. He was of the view that a restoration order should be imposed only in appropriate cases, namely, where there is a definite and clear interference with third parties’ property which cannot be remedied other than by a pulling down order. He, therefore, submitted that the restoration order be quashed for being manifestly harsh, excessive and disproportionate. He also argued that a fine of Rs. 1000 only is highly inadequate for such a serious violation of the law. 

It is worth noting that learned Counsel rightly conceded that the appellant was wrong to have undertaken construction works without proper authorisation and a valid BLUP. 

Relying on the case of Municipal Council of Port Louis v Verte M E [2013 SCJ 7], learned Counsel for the respondent No. 1 submitted that a restoration order in the present matter is absolutely necessary given that failure to comply with the statutory distance of 3 feet is considered to be of absolute illegality. He emphasised that the personal circumstances of the appellant are irrelevant and should not be taken into account as this necessarily will open a floodgate for illegal construction. 

He added that the illegal construction relates to approximately 14 m2 out of a total of 188 m2 and it constitutes simply an extension of the property. In his view, this extension can be easily removed without any adverse impact. He further pointed out that the appellant has pleaded guilty to the charge implying that he was well aware of the part he has illegally constructed. 4 

Relying on the decisions of Denise Oraganon Savy v The Municipal Council of Vacoas/Phoenix & Anor [2024 SCJ 403] and District Council of Black River v Ujoodha A [2022 SCJ 247], learned Counsel submitted that sufficient evidence was adduced before the trial court as regards the illegality of the development works. He argued that the BLUP, the initial plan of the house, the plan which included the unlawful construction and the notices and warnings served on the appellant were all produced. The Building Inspector also deponed to that effect and he produced a sketch showing the illegal development works carried out by the appellant [Document B]. Learned Counsel observed that the latter never objected to the production of those documents and submitted that the appellant cannot now, on appeal, take issue with the nature of the evidence placed before the trial. 

Learned Counsel for the respondent No. 1, therefore, concluded that the present appeal be dismissed with costs. 

For her part, learned Counsel for the respondent No. 2 submitted that the court record shows that sufficient evidence pertaining to the gravity of the illegality of the construction was adduced. The evidence clearly reveals that the appellant knew fully well that he was going beyond the approved plans and this was admitted by the appellant himself. This is why the appellant tried to remedy the situation through a second application for BLUP in 2019, but it was declined in view of the illegality of the situation. Learned Counsel submitted that in the circumstances and in the light of the evidence, a restoration order was fully warranted so that the sentence meted out cannot be deemed manifestly harsh and excessive nor wrong in principle and disproportionate. The present situation relates to an absolute illegality as explained in Verte (supra), Goolamhossen N B v The District Council of Black River [2018 SCJ 211], Maiharaub M.M. v The District Council of Black River [2018 SCJ 284] and Savy (supra) and the learned Magistrate has duly exercised her discretion in ordering the restoration order. Learned Counsel, therefore, concluded that the present appeal be set aside. 

We have considered the evidence on record and the submissions. 

We find that the learned Magistrate carefully considered the evidence before her and relying on the unchallenged evidence of the Building Inspector, she found that the appellant was guilty. We note that the Building Inspector explained that the appellant was carrying out an unlawful development on the ground and first floors contrary to the approved plans and in breach of the conditions attached to the BLUP issued to the appellant under Section 117 of the Local Government Act on 7th June 2012. To add insult to injury, the said construction was 5 

being carried out on the boundary line itself without respecting the legal statutory distance of 3 feet from the boundary line. 

In the light of the landmark judgment of Verte (supra), it cannot be disputed that the present circumstances disclose a case of absolute illegality justifying the granting of a restoration order. 

We do not agree with the submissions of learned Counsel for the appellant that the learned Magistrate did not consider whether such an order was practicable in the circumstances. It is only on appeal that he put forward a number of factors to support his contention but, unfortunately, these were not canvassed before the trial court. 

We are of the considered view that the present case should be distinguished from the case of Koonjbeeharry P. v. District Council of Black River & Anor [2023 SCJ 466] where there was confusion in the evidence and the court record regarding the ‘offending part’ that had to be pulled down. In the present matter, the ‘offending part’ is clearly explained. It is of an area of 14 m2 of the whole extension and it is that part which encroaches on the statutory distance. Therefore, the order minimally impairs on the property of the appellant. This was not challenged by the appellant. We note that the second application made by the appellant in 2019 catered for the unapproved construction which means that the appellant was aware about which part was in breach of the approved BLUP. The behaviour of the appellant shows that he acted in complete disregard of the decision of the respondent No.1. As such, he cannot now seriously contend that the decision of the learned Magistrate to grant a restoration order is against the principle of proportionality. In our view, the restoration order granted is legitimate and important and it fits the legal harm caused by the appellant in the circumstances. 

The decision of the learned Magistrate to grant the restoration order in the absence of any evidence to the effect that such an order will or may not be practicable or may even be dangerous or detrimental to the whole structure or to neighbouring buildings, cannot be impeached. It is not because the appellant lives there with his family that such an order cannot be granted. We take note that at the time the Building Inspector visited the site, the construction was still under way and when informed by way of Notice of the breach, the appellant did not stop the construction and did not take any remedial action; instead, he proceeded to complete the construction of the ‘offending part’. We agree with learned Counsel for the respondent No.1 that the personal circumstances of the appellant should not be considered as this could encourage the flouting of the law and open a floodgate for illegal construction all over the island. Indeed, the amendment to the law in 2018 shows the intention 6 

of the legislator on the matter as the new provisions provide for a mandatory pulling down order in such cases as the present one. 

A pre-sentence hearing was carried out. The appellant was already aware, at this stage, that the respondent no.1 was moving for a restoration order. No evidence was adduced to show the learned Magistrate that such an order would not be practicable in the circumstances. As rightly pointed out by learned Counsel for the respondent No.1, the appellate court cannot, on appeal, consider issues which were not even canvassed before the trial court. We cannot but agree because this would bring about uncertainty for litigants and no finality in the proceedings. 

Learned Counsel Mr. Bhanji Soni submitted on the fact that the new legal provisions on the matter should benefit the appellant in the sense that the more lenient law should apply. We fail to follow him on that point. The new provisions are in fact more stringent as regards demolition orders because now, it provides that the court “shall, in addition to the penalty provided …order the offender to pull down, at his own expense and within 30 days of the order, the development works.” (vide Section 127G (2) of the Local Government Act). 

For all the above reasons, we dismiss the appeal with costs. We order the appellant to restore the construction as per the initially approved plans attached to the Building and Land Use Permit issued to him on 7th June in 2012 by 30th June 2025. 

S.B.A. Hamuth-Laulloo 

Judge 

P.M.T.K. Kam Sing 

Judge 

18 March 2025 

—————————– 

Judgment delivered by Hon. S.B.A. Hamuth-Laulloo, Judge. 7 

For Appellant: Mr. S. N. Sumodhee, Attorney at Law 

Mr. G. Bhanji-Soni, of Counsel 

For Respondent No.1: Mrs. A.K. Ghose, Attorney at Law 

Mr. R. Appaya, of Counsel together with Miss R.M. Sumaruth, of Counsel 

For Respondent No. 2: Ms. S. Jeetoo, Senior State Attorney 

Mrs. G. Rampoortab, Senior State Counsel together with 

Ms. O.R. Hotentote, Temporary State Counsel 

2025 SCJ 77 

Record No. SCR 122660 

THE SUPREME COURT OF MAURITIUS 

In the matter of: 

1. Satyam Goness 

2. Vikram Goness 

3. Rajanand Dauhajee 

4. Chand Dauhajee 

5. Vinesh Kumar Dauhajee 

6. Amardeep Sharma Dauhajee 

7. Sanjiv Dauhajee 

Applicants 

v 

The Municipal Council of Vacoas-Phoenix 

Respondent 

In the presence of: 

1. J & J Group Ltd 

2. The Ministry of Local Government, Disaster 

and Risk Management 

Co-Respondents 

———————– 

JUDGMENT 

The applicants challenge, by way of judicial review, a decision of the Respondent to grant a Building and Land Use Permit (“BLUP”) to the co-respondent no. 1. The said permit relates to the construction of a four-storey building to be used as a store for construction materials at Petit Camp, Phoenix. 2 

Leave to enter a judicial review application was granted by a differently constituted Bench on 26 May 2023 [2023 SCJ 208]. It was not in dispute then that the construction works were already ongoing. 

The grounds for review are set out in the Statement of Case as follows: 

“GROUNDS FOR THE REVIEW 

A. ILLEGALITY AND/OR ULTRA VIRES inasmuch as the Respondent, in the decision-making process, failed to comply with: – 

1) The relevant statutory provisions under the Local Government Act 2011, the Planning and Development Act 2004, the Town and Country Planning Act 1954 for the granting and/or refusal to grant applications for Building and Land Use Permits; 

2) The Technical Sheet (Industrial & Commercial Roads) of the Planning Policy Guidance 1 (PPG1) issued for Local Authorities under Section 13(2) of the Planning and Development Act and 

3) The Outline Planning Scheme approved in General Notice No. 942 of 2015 and the said Notice is provided for, under Section 14(3) of the Town and Country Planning Act. 

B. IRRATIONALITY AND/OR UNREASONABLE IN THE WEDNESBURY SENSE inasmuch as: – 

1) The decision of the Respondent to approve the Application is unreasonable as the said development has been approved in a residential zone and the business of the Co-Respondent No. 1 is industrial in nature and concerns activities which are not appropriate for a residential area and the more so as such activities will cause severe nuisance for the already settled residents of all age groups, in terms of road safety, continuous nuisance related to noise, loading and unloading, fumes and dust; 

2) The Respondent’s failure to get the relevant clearance from the Traffic Management and Road Safety Unit (TMRSU) led to an unreasonable decision. 

3 

C. PROCEDURAL IMPROPRIETY in as much as: – 

1) Respondent failed to provide the Applicant Nos. 1 and 2 enough time or to ensure that the Applicants Nos. 1 and 2 had enough time to attend a hearing for the objections raised by them to the application of the Building and Land Use Permit of the Co-Respondent No. 1. 

2) The absence of the Applicants Nos 1 and 2 at the hearing held on the 24th November 2021 cannot be the reason why the Respondent decided to grant the Building and Land Use Permit in the light of the several violations of the relevant guidelines highlighted in the e-mail dated 26th October 2021. 

It is the case for the applicants that the development is against the Vacoas-Phoenix Outline Planning Scheme for being in a predominantly residential area. Whilst there can be no objection to light commercial activities like shops and bakeries, or even a call centre, a four-storey building to house construction materials is an altogether different matter. 

The development is also said to be against the Planning Policy Guidance (1) (“PPG1”) since the road leading to the site is less than four (4) metres wide when it ought to be at least six (6) metres wide and there is no provision for pedestrian circulation. 

For the applicants, a development involving storage of construction materials, transportation and haulage of iron bars, construction equipment, frequent loading and unloading, noise and heavy traffic would constitute “bad neighbourhood activities” and “nuisances”. 

The applicants also rely on alleged procedural impropriety in relation to a hearing that took place on 24 November 2021 on their objections, to which hearing they could not be present as the letters were only posted on 19 November 2021 and they had not been granted enough time. 

The Preliminary Objection 

To the above the respondent raises, first and foremost, a preliminary objection to the effect that the applicants have no locus standi to bring this judicial review as they have 4 

not been able to demonstrate how they are personally and directly affected by the proposed development. 

Reliance is placed for this purpose on the decision in Troylukho J.C. v The District Council of Black River [2023 SCJ 234]. 

In that case, the applicant, whose locus standi to enter a judicial review against the granting of a BLUP was put in issue, argued that he was an inhabitant of the village, as well as a Councillor, where the proposed development would take place. The Court, in deciding the issue of locus, compared the English position (that of “a genuine interest in seeking a remedy”) to the position in Mauritian law (an applicant’s own concern in relation to a case) to come to the conclusion that the test for “locus standi” in Mauritius is “stricter than that in the UK” (page 4 of the judgment). It was held that the applicant’s affidavits failed to demonstrate how he was directly and individually affected by the proposed development. 

In MRU 2025 and Ors v The District Council of Savanne [2024 SCJ 218], the decision to grant a BLUP for a hotel development was challenged by way of judicial review. 

The applicant in that case was a registered non-governmental organisation having as one of its main objects the promotion of actions in favour of environment protection and sustainable development. The organisation was one which had received recognition locally for actively participating in key public policy consultations on the sustainable development of the coastal zone. 

Upon the issue of “locus standi” being raised, the Court addressed its mind to the question of standing and took the view that a distinction must be drawn between a mere busybody and an applicant who has a sufficient interest in the matter. The observations from AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46 were adopted – 

“I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words “directly affected” whichappear in rule 58.8(2) capturethe essence of what is to be looked for. One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related. The 5 

inclusion of the word “directly” provides the necessary qualification to the word “affected” to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” 

In the present case, we see that the applicants are not acting for a section of the public whom they seek to represent. They seek to raise, as individual inhabitants of Petit Camp, Phoenix, environmental concerns based on what they predict will in the future be “bad neighbourhood activities” (the term relied on by the applicants for their case). 

In his affidavits and the documents in support, the main applicant (Mr Satyam Goness) states that – 

 He is a Senior Health Inspector residing at Sofia Lane, Petit Camp, Phoenix. 

 He noticed a board affixed on “a portion of bare land situated at Petit Camp, Phoenix”. 

 The other applicants and him “all live in the vicinity of the said portion of land”. 

 Irreparable prejudice is being caused and will continue to be caused to him, the other applicants “and the other inhabitants of the vicinity of Petit Camp, Phoenix by the development being made by the co-respondent no. 1”. 

(Underlining added) 

 Himself and applicant no. 2 reside in a radius of about 120 metres of the development, whilst the other applicants reside at a distance of 20m – 50m. 

We also note that this is not the only such case lodged by the main applicant. In Goness S. & Ors v The Municipal Council of Vacoas-Phoenix [2023 SCJ 247] cited before us by Counsel for the respondent, the main applicant, together with other members of his family, challenged a BLUP granted to another company (Gokhool Engineering and Constructions Ltd) for the conversion of a building into a store for depot of vehicles at Petit Camp, Phoenix. The applicant also refers to this case in evidence, in response to the co-respondent no. 1’s averments to the effect that there are other industrial developments in the area. 6 

After going through the evidence, and the applicable legal principles, it appears to us, after careful consideration, that the applicants have hardly substantiated how they are directly and individually affected by the proposed development. 

The prejudice alleged in the affidavits is of a general nature: 

“the site is in a residential zone, the storage of construction materials involving the transportation and haulage of iron bars, construction equipment, frequent loading and unloading which is noise generating to a painful level in a residential zone …”. 

There is nothing here to substantiate how each applicant is individually affected. The applicants’ position appears to be all the inhabitants of Petit Camp Phoenix will be prejudiced eventually by the proposed developments, but we are not told how. 

The applicants’ contention is that they stay in a residential area (but without any further precision). We note that the subject site is in fact found between two compact industrial zones. The applicants only have their word to the effect that Petit Camp, Phoenix is residential, whilst the respondent demonstrates, with the help of photographs, the industrial sites found in the same area. 

We very much fear that the applicants cannot demonstrate how they are personally affected by the granting of the BLUP. Examples would have been vehicular flow on the road they live, noise next door to them, other obstructions. The application has been lodged purely and simply on the basis that all the applicants live in Petit Camp and do not agree to the BLUP having been granted. 

Merely being a resident of Petit Camp, Phoenix cannot be sufficient to acquire “locus standi”, in our view, whether for the applicants or all other residents of the “vicinity” as referred to in evidence. 

In any event, the grounds invoked for judicial review – illegality, Wednesbury unreasonableness and procedural impropriety are also not made out on the evidence before us. When we look at the permit which has been granted by co-respondent no. 1, it is clearly set out that the developer needs to comply with the Local Government Act 2011, the Building Control Act 2012, the Town and Country Planning Act 1954, the Planning and Development Act 2004, the Environmental Protection Act 2002 and the Sugar Industry 7 

Efficiency Act 2001, so that complaints at this premature stage about traffic and noise levels can only be at best hypothesis and, at worst, potentially an abuse of the court’s process, as submitted by co-respondent no. 1. 

The applicants’ absence at the hearing held on their objection was their choice. They decided to ask for a week’s delay when it was clearly stated in the letter convening them that the authority had only fourteen days to make a decision and was therefore operating within a strict time limit. In any case, the objections were all listed in the applicants’ letter of 25 October 2021 where they themselves say there may be no need for a hearing. 

The alleged failure to get Traffic Impact Assessment (TIA) clearance in accordance with PPG1 Design Guidance only applies, from what we see in the documents before us, where the proposal is for a development of more than 1,000 sqm commercial, 5,000 sqm industrial or 100 plots/units residential (re: Design Guidance Industrial Development). Counsel confirmed that the development is less than 2,500 m2 in terms of gross floor area, which means that it did not meet the threshold value for such an assessment. 

There is unfortunately a logic which we cannot follow when we are told by applicant’s counsel that his clients’ stand is that offices or call centres are acceptable to them but not a store for construction materials. 

We consider, on all the evidence and the submissions before us, that the applicants have not made out a case for judicial review. 

We also wish to re-emphasise two of the observations made in the first Goness decision, namely 

(1) the existence or non-existence of factual objections are best left to the judgment of the authorities to whom the law has entrusted the decision-making power, so long as they do not act outside these powers or in bad faith. 

(2) specialised tribunals are better suited to deal with such matters and there is to date no response to the various appeals by this Court to the legislator to look into the way forward following the decisions in Baumann M.L.I v The District Council of Rivière du Rempart [2019 SCJ 311], Peerthy J. 8 

v The Municipal Council of Vacoas & Anor Beeharry I. v The Municipal Council of Port Louis [2022 SCJ 166], on what an appropriate forum would be to deal with complaints such as those raised in this case by the applicants. 

For all the reasons given above, we set aside the application, with costs. 

D. Chan Kan Cheong 

Judge 

S. Beekarry-Sunassee 

Judge 

24 February 2025 

——————- 

Judgment delivered by Hon. S. Beekarry-Sunassee, Judge 

For Applicants : Mr J. Hemraz, Attorney at Law 

Mr G. Bhanji-Soni, of Counsel 

For Respondent : Mrs A.K. Ghose, Attorney at Law 

Mr R. Appaya, of Counsel together with 

Ms S. Doolooa, of Counsel 

For Co-Respondent No. 1 : Mr P. Thandarayen, Attorney at Law 

Mr A. Toorabally, of Counsel 

For Co-Respondent No. 2 : Mr D.K. Manikaran, Principal State Attorney 

Mr H. Adeen, Senior State Counsel 

SCR-2020 SCJ 166

Facts

It is an appeal from a decision of the Judge in Chambers granting the Respondent’s application for a Writ Habere Facias Possessionem against the appellant company and ordering it to vacate the commercial premises situated at No.10, La Chaussee Street, Port Louis by 31^st January 2019.

Issues

In its application dated 4 June 2018 before the Judge in Chambers, the Respondent had averred that it is the owner of a commercial building which stands on a plot of land leased from the state. Pursuant to a written contract, the respondent had leased to the Appellant, part of the above premises of an extent of 1500 sq feet for a period of five years starting on 20 June 2015 and ending on 30 May 2020.

The basis of the application for the writ was that the Appellant was in breach of the lease agreement and at the time of the application, it was indebted to the Respondent in the sum Rs 360,000 representing 9 months’ rent due for the period September 2017 to May 2018 together with Attorney’s commission and VAT. It was further averred that the Appellant had in breach of the contract, carried out extensive structural alterations to the premises.

The Appellant inter alia contended that the Respondent no longer had any clear title since its lease agreement with the state, had expired on 30 June 2018. The Appellant did not deny withholding the rental payments but claimed that it had a “droit de retention” over the premises for having carried out extensive renovation works to the premises.

The Judge found that the Respondent had established ‘a clear and unambiguous title’ to the premises rented to the Appellant and that any dispute between the Respondent and the Ministry of Housing and Lands regarding the lease of the land on which stands the property, I of no concern to the Appellant.

In so far as the defence of a ‘droit de retention’ raised by the Appellant is concerned, the Judge found that the conditions required for this defence to succeed were not satisfied inasmuch as the tenant was not of good faith and had only come up with mere assertations without any documentary evidence to support is contentions.

The Appellant is now appealing against the judgment on four grounds.

Counsel for the Appellant reiterated the arguments before the trial Judge. The substantive point is that the Respondent had failed to establish a clear and unambiguous title. This in view of the fact that the lease agreement between the respondent and the state regarding the land on which stands the building, had expired on 30 June 2018 and there was no evidence that any new lease has been signed by the parties. Counsel also referred to the case which the Respondent had lodged against the Ministry of Housing and Lands before the Supreme Court in connection with its State lease.

Counsel for the Respondent has submitted that following the expiry of the initial lease, a new lease came into being by way of “tacite reconduction” pursuant to Article 1738 of The Civil Code, since the Ministry of Housing and Lands allowed the Respondent to remain in possession of the said plot of land. Further the state had made an irrevocable offer to the Respondent to enter into a new sixty-year lease and the latter had in turn opted to enter into the new lease. According to counsel, the Learned Judge was right to conclude that the Appellant did not have any locus to intervene into any dispute between the Respondent and the state.

Counsel further argued that a lessee of State Land has the right to evict an occupier and it was not necessary for the Respondent to put the State into cause as a party to the application for the writ habere facias possessionem inasmuch as the State would not have been any assistance in resolving the issues. Finally, counsel pointed out that the Respondent’s claims for outstanding rent was for the period September 2017 to May 2018 which period is well within the currency of its lease with the State.

It is clear that the first core issue in the appeal is whether the Judge was right in finding that the Respondent had a “clear and unambiguous title” to the property on which stands the commercial building leased to the appellant. It was indeed incumbent upon the Respondent (then applicant) to prove in the first place that it had a clear and unambiguous title to the subject property, before the Judge could further proceed to determine whether it was entitled to the writ.

According to the evidence, the Respondent had at the time of the hearing, not signed the new lease agreement because of a dispute regarding the rental amount.

A lessee has the necessary locus standi to apply for a writ habere facias possessionem provide he can establish his good title as a lessee.

Thus, in Rangloll V Nobin [1979 MR 94], the Judge in Chambers granted the application for a writ habere facias possessionem made by a lessee of State land against a trespasser who was in occupation of the land.

The judge referred to the following provisions of Article 1725 of The Code Civil which establishes the personal right of a lessee to sue any illegal occupier before a “Juge des referes”:

« Le bailleur n’est pas tenu de garantir le preneur du trouble que des tiers apportent par voies de fait a sa jouissance, sans pretendre d’ailleurs aucun droit sur la chose louee ; sauf au preneur a les poursuivre en son nom personnel »

He found support for his decision from the following extracts of Dalloz Repertoire Pratique, Vo Refere-

“Le louage d’immeubles donne lieu au refere a cause de l’urgence, dans des cas assez nombreux. Le preneur peut se pourvoir en refere…lorsque son bailleur retarde ou empeche indument son entree en possession.

Le juge des referes est competent pour ordonner les mesures urgentes qui ont pour but d’assurer la paisible jouissance du preneur ou de regler le mode de jouissance tel qu’il est prevu par le bail pourvu que les mesures ne fassent pas prejuidice au principal. » 

As such in the present matter, it was incumbent upon the Respondent to establish in the first place that it had a clear and unambiguous right to the lease in its capacity as a lessee of the subject property which formed part of State land.

Since it fails to establish for the purpose of a writ habere facias possessionem, the required title to the subject property in view of the fact that the lease agreement with the state in respect of the land on which stands the building, had not yet been concluded at the time of the application.

The failure by the Respondent to come up with a “clear and unambiguous” title should normally be fatal to the application for a writ but there are compelling reasons which arise from the facts of the present case

Although the Learned Judge erred in holding that the Respondent had established a clear and unambiguous title entitling it to the writ habere facias possessionem, the best alternative and indeed proper course in the circumstances of the present case, would be to order a non-suit in lieu of the decision of the judge in Chambers granting the application so that in the eventuality of any fresh application for a writ by the Respondent such an application would be determined in presence of the Ministry. An outright dismissal of the appeal, in view of the nature of the evidence tending to establish the renewal of a valid lease agreement and the nature of the defence raised by the appellant, would result in an unjustified curtailing of the exercise of a lessor’s rights against what may be a potentially unlawful occupier.

We accordingly-

Order instead that the application be non-suited

Decision

Although the Learned Judge erred in holding that the respondent had established a clear and unambiguous title entitling it to the writ habere facias possessionem, the best alternative and indeed proper course in the circumstances of the present case, would be to order a non-suit in lieu of the decision of the Judge in Chambers granting the application so that in the eventuality of any fresh application for a writ by the respondent such an application would be determined in presence of the Ministry. An outright dismissal of the appeal, in view of the nature of the evidence tending to establish the renewal of a valid lease agreement and the nature of the defence raised by the appellant, would result in an unjustified curtailing of the exercise of a lessor’s rights against what may be a potentially unlawful occupier. The Judges accordingly:

• Quash the decision of the Learned Judge granting the writ habere facias possessionem; and
• Order instead that the application be non-suited.

Barrister for Lunch Spot Co Ltd (Appellant): Mr Robin Appaya

2020 SCJ 194

Facts

This is an application, by way of motion, for an order granting a new trial in case SCR No. 115582 (5A/305/17) and directing a stay of execution of the judgment in that case.

Issues

According to the applicant’s affidavit in support of this application-

1. He had, as an owner of race-horses and a member of the respondent, sought, “by letter dated 17 March 2017”, to participate “in the coming horse racing seasons/s”. His “participation was denied” by the respondent on 20 April 2017 and no reasons, nor any copy of the relevant minutes of proceedings, were ever given to him by the respondent;

• He applied for leave to apply for judicial review of the respondent’s decision and decision-making process (application bearing reference number SCR No. 115582 (5A/305/17); and

• He retained the services of Mrs Sookun-Teeluckdharry as Counsel for the said application. The latter arrived late at the hearing on 26 September 2018 and the application was set aside by the Supreme Court on the same day.

The applicant is now moving for an order granting a new trial, pursuant to rule 45(1)(a) and (c) of the Supreme Court Rules 2000, on the grounds inter alia of error by both the Registry of the Court and the Supreme Court as to the identity of his Counsel and “good arguability” of his application for judicial review which was based on illegality, breach of natural justice, unfairness, abuse of power, unreasonableness, breach of legitimate expectation and irrationality.

The application is being resisted by the respondent and co-respondents mainly on the ground that it does not fall within the ambit of rule 45(1) and that the respondent’s decision is not amenable to judicial review. Learned Counsel for the first co-respondent has in addition highlighted in his written submissions that there is no longer any live issue in the application for leave to apply for judicial review as ex facie the applicant’s own averments, the respondent’s decision was limited to the 2017 racing season.

It is well settled that this Court will only pronounce itself on “live issues” of practical value and is not concerned with “hypothetical, premature or academic questions” (see Planche v The PSC & Anor [1993 SCJ 128]. In Dahari (supra), the Supreme Court referred to the above principle as quoted in Planche but went on to highlight the distinction that is now drawn between hypothetical and academic questions (see De Smith’s Judicial Review (7^th ed) at paragraph 18-042); a declaration may be given in judicial review proceedings where a hypothetical question requires to be answered for a real practical purpose “although there may not be an immediate situation on which the decision would have practical effect”, but the Court will not grant relief in the form of a declaration where the question is merely an academic one which “need not be answered for any visible practical purpose”. Reference was also made in Dahari, quoting from De Smith, para 18-054, to cases where an order would serve no practical purpose, for example, where a licence of which the validity is being challenged has expired, or the challenged activity has ceased, before the application is determined.

Decision

The issue now for our consideration is therefore whether the application in case SCR No. 115582 (5A/305/17) discloses a hypothetical question, in respect of which a declaration may be issued in the course of judicial review proceedings, or an academic one.

There is therefore no live issues, and it would serve no practical purpose for the court to entertain the application, in case SCR No. 115582 (5A/305/17) at this stage.

For the above reasons, we consider that granting the present application will not serve the ends of justice and we set it aside. With costs.

Attorney for the Mauritius Truf Club (Respondent) : Mrs Anju. K. Ghose

SCR 1889/19

Facts

It is an application under article 439 of the Code Civil before the Honorable Judge In Chambers for an Order authorizing the Applicant to apply for the Division in Kind of four portions of land, with all that may depend therefrom or form part thereof, among the parties entitled thereto, and in case they cannot be divided, for an Order authorizing their sale by way of licitation.  

Issues

The Applicant and Co-Respondent No.3 are respectively the appointed guardian and sub-guardian of the majeure en tutelle , Gisele Elie Liu Sing Chuen, who is one of their heirs entitled to apprehend the estate of late Paul Marcel Wong Mun Fong and late Sin Shee Ah You. The Respondent is the other heir entitled to the same estate. According to the Applicant, the majeure en tutelle is no longer willing to remain in a state of indivision and it is in her best interests to proceed with a division in kind. The Respondent who is the brother of the majeure en tutelle, is resisting the application on the ground that his sister cannot express her civic rights, and because the guardian had petitioned for the division in kind in bad faith and out of mischief. He avers that this court should take into account the conduct of the guardian and sub-guardian.

 The respondent referred to an emphyteotique lease agreement entered into by the guardian on the 1^st May 2007 and averred that the guardian and sub-guardian are not acting in the best interest of the majeure en tutelle so that they should be allowed to proceed with any division in kind. He maintained that an application will be made for the revocation of the guardian and sub-guardian although at that time of the hearing this was not done. The Applicant avers in turn that co-heirs should not remain in a state of indivision as they are each entitled to their share of the succession and that his mother therefore had the right to ask for the division in kind. As her guardian, he was also legally entitled to make the application on her behalf.

Article 397 of the Code Civil provides that the Judge in Chambers exercises ‘une surveillance generale  sur les administrations legales et les tutelles. S’il l’estime necessaire, il fait appel au service du Ministere Public..’ Under article 413, ‘Le juge en Chambre peut, en considerant les aptitudes des interesses et la consistance du patrimoine a administrer, decider que la tutelle sera divisee entre un tuteur a la personne et un tuteur aux biens’ There is nothing in this application which indicates that the guardianship was so divided by the Judge in Chambers at the time of appointment, as Mr Bhanji Soni for the respondent seems to suggest.

Under article 418, the functions of the sub-guardian are to ‘surveiller la gestion tutelaire et a representer le mineur lorsque ses interest seront en opposition avec ceux du tuteur’

Under article 422, the judge in chambers can decide ‘de soumettre la gestion tutelaire au coontrole du curateur aux bien vacants’.

Article 425 provides that ‘ le tuteur prendra soin de la personne du mineur et la representera dans tous les actes civils,… il administrera ses biens en bon pere de famille et repondra des dommages et interest qui pourraient resulted d’une mauvaise gestion…’

Under article 429 ‘ le tuteur accomplit seul, comme representant du mineur, tous les actes d’aministration…..’, whereas under article 431, ‘le tuteur ne peut, sans y etre autorise par le Judge en Chambre, faire des actes de disposition au nom du mineur’.

Finally, article 439 of the Code provides that ‘ le tuteur ne peut, sans l’autorisation du Judge en Chambre, introduire une demande en partage dirigee contre le mineur, mais il pourra, sans cette autorisation, repondre a une demande en partage dirigee contre le mineur’. The parties do not dispute that these provisions apply to a majeure en tutelle under article 503 of the Code Civil.

In this case therefore, the Order appointing the guardian and sub-guardian has conferred on them the gestion tutelaire of the majeure en tutelle, which gestion tutelaire is further subject to the control of the curator of Vacant Estated, since there has been no revocation of the guardian’s or sub-guardian’s appointment.

It is also trite law under article 812 of the Code Civil that ‘nul ne peut etre constraint a demeurer dans l’indivision, et le partage peut etre toujour provoque….’

 Moreover, the Curator of Vacant Estates and the Ministere Public (co- respondent nos 1 and 2) have both filed favorable conclusions.

Decision of the Court

The Court authorized the applicant to apply for the division in kind of the four potions of land in lite, with all that may depend therefrom or form part thereof, among the parties entitled thereto.

Attorney for David Christian Wong Mun Fong Liu Sing Chuen (Applicant): Mrs Anju.k.Ghose

2017 SCJ 421

Facts

This is an application praying that the respondents be found in contempt of an order in the nature of an interim injunction granted on the 26 of July 2013 by Lam Shang Leen J.

Issues

The respondents have raised a preliminary objection that the person, Ms. Shenaz Bibi Rughoonauth, who has solemnly affirmed the initial affidavit dated 26 August 2013, had at the material time, no authority to do so.

The respondents’ preliminary objection, has as grounds the following:

1. The authorization to represent applicant no.2 was not deposited with a notary pursuant to section 3 of the deposit of powers of Attorney Act 1928.
2. The authorization to represent applicant no.2 does not have retrospective effect.

The respondents contend that as a result, the application cannot be entertained as the applicants were not properly represented at the time the application was made.

Now, sections 2 and 3 of the Deposit of Powers of Attorney act 1928 (“the Act”) are relevant and are as follows:

2. Deposit of power of attorney

(1) Where any person who has left or leaves Mauritius has appointed or appoints an attorney or agent in Mauritius to represent him in any capacity in any proceedings before a court, by an authentic deed, or by a deed under private signatures, the notary who has drawn up such deed or who received or receives the deposit of such power of attorney, or the holder of any such power of attorney under private signatures, where it has not been deposited with a notary, shall within 15 days from the date of such power of attorney or of the date of the deposit thereof with the notary file in the Registry, where the same may be inspected on payment of the fee provided in the Legal Fees and Costs Rules 1990, an extract from such power of attorney relative to such powers of agency and to the names of such agents.

(2) no party to any proceedings before a court shall pretend ignorance of any such power of attorney so deposited in the Registry.

3. foreign deed of appointment

Where the power of attorney, whether authentic or under private signatures, appointing an attorney or agent has been or is drawn up outside Mauritius, the attorney or agent appointed shall deposit the same with a notary in Mauritius before any use is made of it and section 2 shall apply to it.

For representation in court proceedings, there should be written mandate and not a verbal one, especially when the person is away from Mauritius. Indeed section 3 of the act provides for a power of attorney (whether authentic or under private signatures) to be deposited with a notary in Mauritius “before any use is made of it”.

The case of Group Five International Ltd/STRABAG International GmbH Consortium v Independent Review Panel  & Ors [2014 SCJ 1] can be referred to as it is pertinent to the facts and issues under consideration to answer the question: whether the affidavit of Mr Mahe of 07 October 2013 “cure” the omission and have a retrospective effect?

This question was considered in Group Five case by the appellate court and it concluded in the negative. The salient parts at page 7 of the judgment are reproduced:

The power of attorney is a contract which can only take effect as from the day it is given. It is only as from the time that the mandat is given that the designated mandataire has the authority to step in and represent the mandataire.

Decision

A power of attorney cannot have a retrospective effect. The “mandate” must already have been given to the “mandataire” prior to the latter taking any iniative on behalf of the “mandant”.

It cannot be given ex post facto by a mandataire to his purported representative after the latter has already undertaken certain steps allegedly on behalf of the mandant, in order to validate such acts.

There are several cases whereby it has been decided by our courts that failure to comply with the Act is fatal and that applications cannot be entertained if there is not the proper authority and which has not been duly deposited in compliance with the Act.

Attorney for Mayer A ( Respondents) : Mrs Anju.K.Ghose  

2016 SCJ 283

Facts

It is not disputed that by an agreement dated 25 June 2004 Plaintiff joined the Defendant bank as “Supervisor, Retail Banking” for a determinate duration of 6 years, with effect from 2 August 2004 at a starting salary of Rs 20,000 monthly plus a monthly travelling allowance of Rs 3,000. She was transferred in December 2004 from Curepipe Branch where she was posted upon joining as “Assistant Branch Manager”, i.e as Supervisor assisting the Branch Manager, to Quatre Bornes as Branch Manager. In 2006 she was retransferred to the Curepipe Branch as Branch Manager.

Issues

The Plaintiff avers that while she has at all times performed her duties with the utmost diligence, skill and dedication, she was persistently singled out and targeted by the General Manager of the defendant bank, Mr Pavaday Thondrayen, who would treat her unfairly and/or abusively. She sets out her complaints as follows:

Plaintiff therefore prays for a judgment ordering the Defendant to pay the sum of Rs 1,662,957.50 as damages for the prejudice suffered by her. She explained in Court that her rights had not been respected by the bank as allegations were made against her and she was dismissed summarily without being given an opportunity to reply.

The Defendant bank had denied the Plaintiff’s allegations and averment that there has been a breach of contract on its part. It pleaded that during her tenure of office the Plaintiff has been issued with several memos/letters as referred to by the Plaintiff above. It is averred that the Plaintiff had created a situation, which left the defendant with no alternative than to terminate her contract of employment in accordance with the terms and conditions specified therein; Plaintiff was accordingly paid the sum of Rs 278,400 which was accepted by the Plaintiff albeit under protest, such that ex facie the pleadings no breach of contract is disclosed. The bank reiterates that the Plaintiff has no cause of action in as much as the Plaintiff’s contract of employment was for a duree determinee and was governed by the conditions specified in her contract of employment to which she was bound.

Mr Chetty SC then referred to the case of Perrine V Duke Haberdashers Co. Ltd [1986 MR 127] [1986 SCJ 206] to submit that the Plaintiff having accepted the said sum cannot be allowed to have another bite at the cherry and is not therefore entitled to also claim damages for breach of contract in the present case.

In reply, Mr Bhanji Soni appearing for the Plaintiff submitted that irrespective of the subsection of Clause 13 under which the bank chose to terminate the contract of employment of the Plaintiff, the Plaintiff was in law entitled to decide whether to bring an action before the Industrial Court or before the Civil Court.

The issue was whether the Plaintiff, having accepted “under protest” an amount equivalent to and representing the punitive rate of compensation for unjustified dismissal under the Labour Act, is entitled to her claim for damages before this forum on the same set of facts.

It is first relevant to know what is the legal significance of the words “under protest” without more in respect of the plaintiff’s acceptance, as the evidence has revealed.

In re Massey, [8 Beav 460], [1845] where a testator died indebted to the petitioner, in the context of a petition for taxation, the Court in England stated

“It is said, that the money was received by the petitioner, and the receipt given “under protest”. These words are often used on these occasions, but they have no distinct technical meaning, unless accompanied with a statement of circumstances, shewing that they were used by way of notice or protest, reserving to the party, by reason of such circumstances, a right to a taxation notwithstanding such payment. The words have no distinct meaning by themselves, and amount to nothing, unless explained by the proceedings and circumstances. [Emphasis added].

“There is no magic to the term “under protest”. This was stated in Castano and Gabriel, 302 NYS 2d 943 (1969). In Waara V Kane 269 N.W.2d 395 (1978) before Supreme Court of South Dakota, I find the following of interest:

“The term “under protest” contains no inherent magic. It does not per se establish compulsion or force. It may simply imply that the act is done contrary to the desire of the party indicating his protest, and nothing more.”

Therefore, unless acceptance under protest is statutorily provided, accepting a payment “under protest” without more only qualifies the acceptance by showing that the person is reluctant to accept but has nevertheless accepted. Acceptance of a payment under protest by itself has no legal significance unless the protest is clearly defined to show the circumstances under which the payment is being accepted. This would then also give an opportunity to the person making the payment to decide whether to accept whatever reservation or condition is accompanying the acceptance or, where appropriate, whether to withdraw the payment.

Decision

 In the present case the Plaintiff simply accepted “under protest” without more. She therefore must be taken to have accepted a claim, which she would have obtained before the Industrial Court as she admitted that the amount she received represented pay at six times the normal rate.

Having accepted the full compensation under the Labour Act the plaintiff cannot also claim redress under the Code Napoleon for breach of contract in respect of the same set of facts. I here refer to the pronouncement in the cases of Perrine v Duke Haberdashers Co. Ltd (supra) and Bisonauth Premchandra & Anor v The Sugar Insurance Fund Board [2013 SCJ 252].

Attorney for the Mauritius Post and Cooperative Bank Ltd (Respondent): Mrs Anju.K.Ghose

2013 SCJ 433 SN 1416/2011

Facts

This is an application for a writ habere facias possessionem to issue against the respondent directing and ordering her to quit, leave and vacate the servants’ quarters found on a portion of land of 17.25 perches situated at Pointe aux Sables (“the property in lite”).

Issues

Ex facie the affidavits sworn by Applicant No.4 on behalf of all the Applicants, it is averred that they are the lessees of the property in lite on which stand servants’ quarters. In on or about the year 2003, the applicants granted to the respondent and her late husband a license and authority to occupy the servants’ quarters as they have nowhere else to go. The Applicants have since quite some time through applicant No.4 verbally revoked the license and authority granted to the respondent. By notice dated30 September 2010, the Respondent was formally notified of the revocation of the license and authority. However, the Respondent has failed to vacate the servants’ quarters.

The Respondent, for her part, avers that she has a good and bona fide defence to the present application inasmuch as she has a droit de retention et de superficie on the property in lite. She further avers that the applicants have been guilty of undue delay in lodging the present application.

In applications of the present type, it is first incumbent on the Applicants to establish a clear and unambiguous title to the property they are claiming.

It is well settled that a lessee of State land has the required locus to evict an occupier of the land settled that a lessee of State land has the required locus to evict an occupier of the land (Rangloll v Nobin [1979 MR 94). In these circumstances, I have no difficulty in finding that the Applicants have established a clear and unambiguous title to the property in lite.

The issue which must now be determined is whether the Respondent has adduced sufficient evidence to show that she has a serious and bona fide defence to put forward. In this respect, she has averred that she has a droit de retention et de superficie on the property in lite and that the applicants have been guilty of undue delay in lodging the present application.

With regard to the Respondent’s alleged droit de retention et de superficie on the property in lite, her case, as disclosed in her affidavits and annexed documents, in as follows:- the son of Applicant No.4, who was a friend of the Respondent’s late husband proposed to the Respondent and her late husband to occupy the property in lite as his family needed someone to take care of it. The property was in a neglected, dilapidated and uninhabitable state and was a refuge for drug addicts and alcoholics.

With the consent and au vu et au su of applicant No. 4, the Respondent and her late husband have cleared the property in lite with their own funds, constructed a toilet and bathroom, repaired the corrugated iron sheets and went to stay there in or about 2003.

All the works, constructions, renovations and extensions were done with the approval and au vu et au su of Applicant No.4 and were financed solely by the Respondent and her late husband.

At this juncture, it is useful and appropriate to refer to the case of Bonarien V Loloth [1998 MR 26] in which the Appellate Court composed of 3 Judges, reviewed the law and the authorities applicable to a “droit de retention” and a “droit de superficie”.

The Appellate Court found that, in the light of existing authorities, for a droit de retention to exist, 4 conditions must be met, namely:-

1. The claimant must have the detention of the property;
2. There must be a debt of which the claimant is entitled to demand payment;
3. The claimant must be of good faith; and
4. There must be a relationship between the debt and the property detained.

The court also held that it was settled law that a person who acquires a droit de retention is entitled “de demeurer en possession that que le propriétaire ne l’aura pas rembourse du montant des travaux, ou le lui aura pas regle la plus-value.’’

Moreover, the Appellate Court held that since the Appellant had built the house au et au su of the respondent and with his consent, the Appellant had acquired a droit de superficie temporaire over the land of the Respondent at most as long as the construction which she had built lasted. Such a droit de superficie had been acquired by titre, namely the verbal agreement entered into by the Appellant and the Respondent whereby the Appellant was allowed to build on the land of the Respondent.

The Respondent has adduced sufficient affidavit and documentary evidence to substantiate her claim that she has a droit de retention et de superficie in respect of the alleged constructions, renovations and extensions carried out by her and her late husband on the property in lite. I, therefore, hold that the Respondent has raised serious issues which cannot be resolved on conflicting affidavit evidence. Whether the Respondent does in fact have a droit de retention et de superficie, and if she has such a droit de retention, the amount of compensation payable, and whether she is of good faith are serious issues which have to be referred to, and determined by, the competent Court.

Turning to the additional ground of delay in lodging the present application, it was held in Pavadi V Choyta [2008 SCJ 243] that in an application for a writ habere facias possessionem, delay per se is not fatal to the issue of the writ but is one of the factors to be considered by the judge.

Decision

 The respondent has raised a serious and bona fide defence to the present application. As was held in Pavadi v Choyta(above), where there are serious factual and legal issues to be determined ex facie the affidavit evidence, these can only be determined by the competent Court after a proper hearing on issues properly joined through a normal course of pleadings. I, accordingly, set aside the present application and I refer the parties to the competent Court.

Attorney for Angelique Mirella Ross (Respondent): Mrs Anju. K. Ghose

Barrister for Angelique Mirella Ross (Respondent): Mr. Robin Appaya