[2012] UKPC 13
Privy Council Appeal No 0117 of 2010
JUDGMENT
Margaret Toumany and John Mullegadoo
v
Mardaynaiken
Veerasamy
From the Supreme Court of Mauritius
before
Lord Hope
Lord Brown
Lord Mance
Lord Dyson
Lord Sumption
JUDGMENT DELIVERED BY
LORD BROWN
ON
10 May 2012
Heard on 30 March 2012
Appellant
Nandkishore
Ramburn
Jennifer
Wong Ten Yuen
(Instructed
by SB Solicitors)
Respondent
Not Represented
LORD BROWN
1. Is
there a mango tree in the respondent’s back yard at No 303 Nelson Mandela
Avenue, Quatre Bornes? Was the first
appellant, the respondent’s neighbour, authorised by the respondent’s
predecessor in title to construct a balcony as close as she did to the boundary
line between the two properties with windows opening onto the respondent’s
yard? These and other such factual
questions were first raised almost a decade ago in litigation between the
parties, yet astonishingly they remain to this day unaddressed and
unresolved. How has this come
about? It is, in the Board’s view, a
sorry tale.
2. The
respondent issued her claim by proecipe as long ago as 30 September 2002. Certain particulars of it were sought and
given and on 27 May 2003 the appellants filed their defence. The second appellant is the first appellant’s
son and used to live at the premises with her.
In circumstances which are far from clear the Municipality of Quatre
Bornes was at some stage joined in the proceedings as “codefendant”.
3. The
case was initially fixed for a hearing in the Intermediate Court on 8 December
2003 but, on the joint application of counsel for both main parties, was on
that day adjourned and re-fixed for 24 June 2004. On 24 June 2004 counsel for the defendants
was in court but the case was postponed initially to 7 July 2004 at the request
of the co-defendant and then again to 4 August 2004 for the co-defendant to
file its plea. On 4 August 2004 the
co-defendant duly filed its plea and the case was finally fixed for hearing on
15 February 2005. Regrettably, however,
the defendant’s attorney had at that stage lost the case file and so was
unaware of that fixed date.
4. As it
happens, on 10 February 2005 the respondent’s attorney wrote to the presiding
magistrate at the court, noted that the respondent’s counsel had taken up a
post at the Financial Services Commission and was no longer available and asked
for the case to be removed from the list on 15 February so that fresh counsel
could be instructed. The letter was not,
however, copied to the appellants and, as already indicated, it in fact played
no part in their absence from court on 15 February. But the respondent’s attorney did attend
court on 15 February and, finding the appellants absent and unrepresented, he
proceeded to call the respondent to make out his case and thus secured judgment
(the co-defendant’s attorney offering no objection to this course since no
relief was being sought against the Municipality).
5. By
that judgment (given by Magistrate Mr B Marie Joseph) the first appellant was
directed “to pull down the balcony protruding onto the boundary line”; the
respondent was authorised “to extend the height of the wall found on the
boundary line” (as apparently he has since done to the height of some 20ft);
both appellants were directed “to stop interfering with the respondent’s quiet
and peaceful enjoyment of his immovable property” and both appellants were
ordered to pay the respondent “jointly and in solido the sum of Rs50,000 as damages with costs.”
6. The
appellant learned of the judgment only in March when they observed the
respondent raising the boundary wall but it was not until some three months
later, on 3 June 2005, that their attorney (still the same attorney as had
earlier lost their file) came to file an application for the judgment to be set
aside, execution stayed and a new trial ordered.
7. That
application was heard by Magistrate Mrs R Seetohul-Toolsee inter partes on 7
December 2005 and on 26 January 2006 was refused. Rules 62-72 of the District and Intermediate
Courts (Civil Jurisdiction) Rules govern the grant of a new trial, those most
pertinent here being rules 63 and 65:
“63 The magistrate shall have power (on such
conditions as to security for the amount of the judgment or for damages and as
to payment of costs, as he may deem proper), to grant a new trial, in any case
where it shall be in his opinion necessary so to do for the ends of justice.
65 Such
application for a new trial must be made at any time within 15 days from the
date of the judgment, if the judgment has been given in the presence of both
parties, or within 15 days after the execution of such judgment when it has
been given for the plaintiff, in the absence of the defendant.”
8. On its
face rule 65 requires any application for a new trial to be made within 15 days
(here 15 days after execution of the judgment) and could be read as disabling
the magistrate from granting the application even if, within the meaning of
Rule 63, in the magistrate’s opinion the grant of a new trial is “necessary . .
. for the ends of justice.”
9. Clearly,
however, that would be a wrong construction: the rule is discretionary rather
than mandatory or, in more modern terms, the rulemaking authority cannot have
intended so drastic a consequence to follow necessarily and automatically from
a (perhaps only marginally) late application.
Nor, indeed, did the magistrate in the present case suggest that she was
debarred from granting the application by virtue only of its being out of
time. On the contrary, her ruling ends:
“For all these reasons, this court declines to exercise its discretion to grant
a new trial.”
10. As for
the reasons given, the Board confesses to some puzzlement. For example, having cited authority for the
proposition that: “We must however be careful to see to it that counsel’s
conduct be not unfairly reflected on the appellant unless there is at least
some indication of negligence on his part as well”, the magistrate’s ruling
continued:
“Had this been the case, the attorney would have been
perfectly entitled to inform the court by writing of that predicament well
before trial date for the needful to be done until the file had been traced
out. But unfortunately, no such step
seemed to have been undertaken.”
What can this mean?
It certainly looks as if the attorney’s negligence has after all been
visited on the appellants. Before
further considering this, however, the Board must explain how it came about
that, even at the next stage of the litigation, the appellants were still
denied a judgment on the merits.
11. On 15
February 2006, just three weeks after the magistrate’s rejection of their
application for a new trial, the appellants issued proceedings by way of an
appeal against that ruling to the Supreme Court. By this stage they had come to be represented
by, amongst others, Sir Hamid Moolan QC.
Following the usual interlocutory processes the appeal was first (on 22
June 2006) fixed for hearing on the merits on 7 June 2007, next (on 5 June
2007) fixed for hearing on 30 July 2008 and finally (on 2 September 2008) fixed
for hearing on 26 October 2009.
12. There
is before the Board a transcript of the hearing before the Supreme Court (Judge
S Peeroo and Judge S B Domah) on 26 October 2009 and the great bulk of it
records the submissions of both parties on the appropriateness or otherwise of
the Intermediate Court ruling as it had.
Towards the end of the hearing, however, counsel for the respondents
suddenly, with no previous intimation whatsoever, took a jurisdictional
point. His submission was that the
Supreme Court had not been properly seised of the appeal.
13. It is
necessary at this stage to interrupt the Board’s account of the litigation and
explain, as briefly as may be, just how this jurisdictional point comes
about. The Supreme Court, as presently
constituted, was created by the 1968 Constitution and, pursuant respectively to
section 80 and section 82(2) of the Constitution, had conferred upon it certain
appellate jurisdictions. The material
parts of those sections (insofar as they govern civil appeals) are as follows:
“80(1) There shall be a Court of Civil Appeal . . .
which shall be a division of the Supreme Court.
(2) The
Court of Civil Appeal shall have such jurisdiction and powers to hear and
determine appeals in civil matters . . . as may be conferred . . . by this
constitution or any other law.
(3) The
judges of the Court of Civil Appeal . . . shall be the judges for the time
being of the Supreme Court.”
“82(2) An appeal shall lie to the Supreme Court from
decisions of subordinate Courts in the following cases . . .
(d) In
such other cases as may be prescribed: . . .”
14. Before
the 1968 Constitution there already existed a Supreme Court and by section 2 of
the Court of the Civil Appeal Act 1963 a Court of Civil Appeal was for the
first time created so that appeals from a single Supreme Court judge could be
heard within Mauritius rather than have to be appealed to the Judicial
Committee of the Privy Council. Section
3(1) of the 1963 Act provided that:
“Subject to this Act and to any rules of Court made
under it, any party aggrieved by any judgment or order of a Judge sitting alone
in the exercise in Court of his original civil jurisdiction may appeal from
such judgment or order to the Court of Civil Appeal.”
15. Section
3(1) of the 1963 Act was the only example provided to us of where, pursuant to
section 80 of the Constitution, the Court of Civil Appeal now has jurisdiction
over civil appeals. Whether other
examples exist, however, is for present purposes immaterial. More important is section 2(4) of the 1963
Act which provides:
“The Chief Justice, or where he is absent or is for
any reason unable to sit on the Court of Civil Appeal, the Senior Puisne Judge,
shall preside over the Court of Civil Appeal.”
One can readily see why, if the appeal jurisdiction
being exercised by the Supreme Court is that from a Judge (himself or herself
ex-officio a Judge of that Court), it is desirable that the presiding judge
shall be the Chief Justice or the Senior Puisne Judge.
16. That,
however, appears to be the only material difference existing procedurally or
substantively in the nature of appeals before the Supreme Court which is made
dependant on the particular appellate jurisdiction being exercised by the
Supreme Court in a particular way.
17. Clearly
there was no question in the present case of the appeal coming before the
Supreme Court under section 80 of the Constitution. Rather the jurisdiction to hear it arose
under section 82(2)(d), an appeal to the Supreme Court being “prescribed” here
by section 69(1) of the Courts Act 1945:
“69(1) Subject to any other enactment, the Supreme
Court shall have full power and jurisdiction to hear and determine all appeals,
. . . made to the Court from . . . (e) the Intermediate Court; . . .”
Their Lordships may add that none of the above has
ever been in doubt or dispute in the present litigation.
18. That is
the only explanation necessary of the background to the jurisdictional point
taken here by the respondent’s counsel late in the argument before the Supreme
Court on 26 October 2009. The bald point
taken was that certain of the formal Court documents launching this appeal
erroneously referred to “The Supreme Court of Mauritius, Court of Civil
Appeal”. Perhaps unsurprisingly, the
Court’s initial reaction to the point appears to have been unenthusiastic: “. .
. you haven’t taken this as a preliminary objection and the Court is already
being seized (sic).” And a little later
the Court can be seen criticising the respondent’s attorney at the original
hearing for not having elicited any evidence as to whether or not the first
appellant, as pleaded, had in fact had the relevant authorisation for the
building works.
19. In the
event, however, by its judgment dated 11 November 2009, the Court accepted the
respondent’s jurisdictional point and dismissed the appeal solely on that
basis. The judgment extends only to one
and a half pages and can be briefly summarised.
Having accepted that not all the documentation pointed to the appeal
being wrongly directed to the Court of Civil Appeal – for example, “in the body
of the notice and ground of appeal it is stated that the appellants do ‘hereby
appeal to the Supreme Court of Mauritius’” – the Court continued:
“We take the view that this, in the light of the
heading of the notice of appeal and the praecipe, cannot conclusively show that
the appeal is directed to the Supreme Court, since the Court of Civil Appeal is
also a division of the Supreme Court as provided by section 2(2) of the Court
of Civil Appeal Act. At the most, it
only goes to indicate that there is some ambiguity and confusion as to the
jurisdiction that is being seized, but it does not unequivocally show that this
appeal from the decision of a magistrate has been lodged before the Supreme
Court as opposed to the Court of Civil Appeal, which is a different and
separate jurisdiction that can only hear appeal from a judgment or order of a
judge in the exercise of his original civil jurisdiction.”
A little later the Court concluded:
“In the circumstances, the appellants being uncertain
in what capacity they have seized the present Court – whether as a Court of
Civil Appeal which, pursuant to section 80 of the Constitution, is a division
of the Supreme Court, or as the Supreme Court, a separate and distinct
jurisdiction which, by virtue of section 82(2) of the Constitution, hears
appeals from decisions of subordinate courts, and since the jurisdiction of a
court is a matter of public order, they can only ignore the competence of the
court they are seising at their own risk and peril. For the above reasons, irrespective of
whether there may be substance in this appeal, we have no alternative than to
set it aside with costs.”
20. We come
finally in the history to the Supreme Court’s own grant of conditional leave to
appeal to the Judicial Committee dated 4 June 2010 which, to the Board’s mind,
clearly suggests a degree of unease about Mauritius’ present jurisprudence on
the point. Having recognised that the
value of the dispute in any event entitled the appellants to appeal as of
right, the Supreme Court continued:
“For the above reason, and also in view of the state
of our jurisprudence in respect of appeals which have been either lodged before
or directed to the wrong jurisdiction, we grant leave to the applicants to
appeal to the Judicial Committee.” (emphasis added)
Should this appeal to the Supreme Court have been
dismissed on jurisdictional grounds as it was?
That is the critical first question now for decision by the Board and we
should be dissimulating were we to answer it other than by a categorical and
resounding NO.
21. The
Board is aware that this is by no means the only case where the Court has
adopted a highly technical approach to the jurisdictional point here
raised. Indeed a series of such cases is
rehearsed in the Supreme Court’s judgment, dated 28 April 2011, given by the
Chief Justice and the Senior Puisne Judge in Begue v The Mauritius Union
Assurance Co Ltd [2011] SCJ 104, a judgment which itself dismissed an appeal –
from a judge’s award of damages in a fatal accident claim – because the notice
of appeal bore the heading “In the Supreme Court of Mauritius” instead of, as
the subsequent proecipe did, “In the Supreme Court of Mauritius, Court of Civil
Appeal”. Having referred to a number of
cases in which a similar mistake had been held fatal to the appeal, the Court
concluded: “In the light of the decided cases . . . we uphold the preliminary
objection. This appeal cannot proceed
since the notice of appeal, which is the initiating process, is itself
defective so that it cannot be cured down the line.”
22. True,
of course, in some of the cases, including Begue itself, the mistake in the
documentation could theoretically have led to the court being wrongly
constituted ie without the Chief Justice or the Senior Puisne Judge
presiding. But in none of the cases is
this referred to as a possibly relevant consideration and plainly it caused no
problem in Begue (where, indeed, both the Chief Justice and the Senior Puisne
Judge were in fact sitting). Still less
could it cause a problem in a case like the present where the Court could
properly comprise, as it did, any two Supreme Court judges.
23. The
Board has sought in the past to encourage the courts of Mauritius to be less
technical and more flexible in their approach to jurisdictional issues and
objections – see in particular Woventex Ltd (In Receivership) v J I Benichou
and Others [2005] PRV 27 (para 17 of Lord Walker’s judgment) and Fun World Co
Ltd v The Municipal Council of Quatre Bornes [2008] PRV 46 (paras 24 and 25 of
Lord Mance’s judgment). No doubt, as the
Supreme Court observed in Mosque v A R Rossaye and Another [2007] SCJ 322 (yet
another in the present line of cases), Woventex has no direct application to
the particular question which these cases raise. We find it impossible to accept, however, the
Supreme Court’s conclusion in Mosque that: “the Court of Civil Appeal, though
forming part of the Supreme Court, is nevertheless a different juridical
entity. We accordingly consider that the
appeal as presently lodged cannot be entertained.”
24. Let the
Board now state as emphatically as it can its clear conclusion on this
appeal. In cases like these, where
mistakes appear in the documentation as to which particular appellate
jurisdiction of the Supreme Court has been invoked, those mistakes should be
identified and corrected (without penalty unless they have genuinely created a
problem) as soon as practicable and the Court should proceed without delay to
deal with the substantive issues raised before it on the merits.
25. The
line of authority represented by the Supreme Court’s decision in the present
case constitutes a blot on Mauritius’s generally estimable record for the fair
administration of justice. It must not be allowed to
continue.
26. As we
noted at the outset, it is now almost ten years since issue was joined between
these neighbours. Rather than at this
point remit the case back to the Supreme Court so that it may properly decide
the appeal before it on the merits, or remit the case back to the Intermediate
Court for it to decide afresh on whether the appellants should be granted a new
trial (they being apparently blameless for their non-attendance at the original
hearing), it seems to the Board imperative that there should indeed now be a
new trial to be fixed as soon as possible for substantive hearing by the
Intermediate Court on the merits. The
Board, therefore, allow the appeal and so direct.
27. Clearly
the appellants (or more properly, as we have no doubt will readily be
recognised, their original negligent attorneys) should pay the costs thrown
away by both the earlier hearings before the Intermediate Court (the hearing at
which judgment was given and that at which a new trial was refused). We shall make no order as to the costs of the
proceedings before the Supreme Court although would observe that the
appellants’ lawyers instructed on that appeal can hardly seek to charge their
clients given the problems brought about by their erroneous documentation. The appellants’ costs on the appeal to the
Board should, however, be paid by the respondent. On this final appeal he chose not to
appear. Perhaps he recognised that a
signal injustice had been occasioned to these appellants. It is high time that at last it was
rectified.
