JYOTI’S CLINIC LTD v ANTOINE J. C. & ORS 2020 SCJ 128

FACTS

In this present matter, the Plaintiff which runs Clinique du Nord, sued the Defendants for having published an article with the heading “Soins Médicaux” and the sub-heading “Rs 40,000 POUR UNE FRACTURE AU POIGNET” claiming Rs 10,000,000 representing damages and prejudice it allegedly suffered as a result thereof.

In essence, one Mrs E. de Senneville was taken to Clinique du Nord following a suspected broken wrist which was later confirmed after a clinical and radiological examination. She was treated for same at the said Clinique. The following day, Mrs E. de Senneville took cognisance of the fact that the bill for the treatment of her broken wrist amounted to Rs. 40,790.

RATIO DECIDENDI & DECISION OF THE COURT

The Honourable Court explained that:

(i) Such an action for damages is based on article 1382 of the Civil Code. Under this article, it is cardinal for the Plaintiff to satisfy the Court that prejudice has been caused by an illegal act on the part of the defendants sued.

For ease of reference, article 1382 of the Code provides that «tout fait quelconque, de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer»

Therefore, the publication of an untruth article will be actionable only if it has caused prejudice.

(ii)  Next, in order to establish the prejudice, it is not sufficient that the article contains defamatory statements. It is pivotal for the plaintiff to show the causal link that as a result of the defamatory statements, its reputation has been adversely affected – Vide Gatley on Libel and Slander, 10^th Edition.

Substantially, it is important to assess:

 whether the alleged imputation would tend to lower the plaintiff in the estimation of right-thinking members of society generally?

-   whether the imputation would tend to cause others to shun or avoid the plaintiff?

-   whether the words would tend to expose the claimant to ‘hatred, contempt or ridicule’?

Here, the Plaintiff failed to satisfy the court that it suffered actual prejudice in light of compelling evidence showing that it has not suffered any deficits and that instead it has flourished and expanded with the opening of a new clinic in Flic en Flac.

b) Furthermore, the defendants wrote and published an article based on the extensive factual narration of Mrs E. de Senneville.  They also gave the Plaintiff the opportunity to give its version of the facts in a ‘Mise au point’ published on 05 and 12 November 2006.

The result of same was that the readers had the benefit of reading both versions of the story before drawing up their conclusions.

c) The Plaintiff thus failed to establish the faute of the defendants.

The plaint was accordingly dismissed.

Attorney for the Defendants - Mrs Joséphine Robert instructing Counsel Mr G Ithier, SC

CHEERS LTD v. UNITED DOCKS LTD 2018 SCJ 163

The present matter is an application for the stay of execution of a judgment delivered by a Judge, sitting in Chambers where the applicant, then Respondent, was ordered to quit, leave and vacate a premises and to discharge and/or dissolve the Order made by the same learned Judge in Chambers on the ground that the said Order refusing to stay execution of the judgment infringes the applicant’s right of appeal against the judgment delivered.

The respondent raised a preliminary objection to the effect that the application is procedurally flawed inasmuch as a similar application for stay of execution had already been declined by the learned Judge in Chambers and that the applicant is debarred from making the present application. Respondent moved that the present application be set aside. The respondent argued that the case should have been proceeded with by way of an appeal and not by motion supported by affidavit as has been done in the present case.

Contention:

The applicant sought to challenge the decision of a Judge in Chambers by way of a motion to set aside the judgment of the learned Judge in Chambers purportedly under section 73 of the Courts Act.

The Court ruled that the circumstances of the present case is similar to the case of Sport Data Feed Ltd (supra) and found no reason to depart from the interpretation given to section 73 of the Courts Act to be extended to an order of “stay of execution”.

The Court also held the proper procedure for challenging the decision of the Judge in Chambers refusing to stay execution of judgment pending the determination of the appeal is by way of an appeal from the decision to stay. It is an abuse of the process of the Court to enter a fresh application by way of motion with supporting affidavit to question the decision to refuse to stay.

The application was accordingly set aside with costs.

Etude Guy Rivalland defended the interests of the Defendant.

Eureka E.C. Oxenham & CY Ltd v Oxenham Alexandre E. (SC/COM/WRT/01244/2017)

FACTS:

Eureka E.C. Oxenham (the Applicant company) is a company incorporated under the laws of Mauritius, whose activities include the manufacture, importation and distribution of wines and spirits in Mauritius.
It was a business which started in 1932 by late Edward Clark Oxenham and has, over the years, earned a goodwill and reputation through considerable investments, both human and material for the superior quality of its products and its expertise in the field.

The Applicant is furthermore the registered proprietor of the trademark ‘OXENHAM’ which has been registered under The Patents, Industrial Designs and Trademarks Act 2002, which mark was registered to cover alcoholic beverages (except beers) and advertising, business management, business administration and office functions.
As a result, the mark ‘OXENHAM’ is the exclusive property of the Applicant.

ISSUE:

In or about August 2017, it has come to the knowledge of the Applicant that Alexandre E. Oxenham (the Respondent) intends to launch a winery in the name of Takamaka Boutique Winery which will, similarly to the Applicant, be engaged in the manufacture of wines in Mauritius and will thus operate in the same market as the Applicant.

The Respondent has also created/ is managing a Facebook page for Takamaka Boutique Winery with a view to advertise and promote the said winery and the products that will be offered by it.
The advertisement being carried out by the Respondent is being done in such a way as to cause confusion in the minds of the public that Takamaka Boutique Winery is associated with the Applicant Company by making direct references to the Applicant company, its brand and history to promote, advertise and/or sell its own products, thereby misappropriating all the hard work and know-how that the Applicant has built over the years.

REMEDY SOUGHT:

The Applicant prayed from the Supreme Court (Commercial Division) of Mauritius for:

A. An interim order in the nature of an injunction to be issued, restraining and prohibiting the Respondent from:

(i) Making any reference to the Applicant company, including references to the Applicant’s founder, its history, its former and current premises, its former and current employees, in order to promote and advertise TAKAMAKA BOUTIQUE WINERY and the products thereof;

(ii) Using any photographs of the Applicant company, including photographs of the Applicant’s founder, its history, its former and current premises, its former and current employees, or any other material on which the Applicant Company owns proprietary rights, in order to promote and advertise TAKAMAKA BOUTIQUE WINERY and the products thereof;

(iii) Using the mark “OXENHAM” and/or any other appellation similar to the Applicant’s mark “EUREKA E.C. OXENHAM” in a manner that is likely to cause a confusion that the Respondent and its business activities are directly and/or indirectly associated with the Applicant company;

- And this pending the determination of the main case to be entered before the Commercial Division of the Supreme Court and at the Applicant’s own risks and perils.

B. A Summons to issue calling upon the abovenamed Respondent to be and appear before the Honourable Judge sitting in Chambers to show cause, if any, why the Interim Order should not be made Interlocutory;

- And for any other order as the Honourable Judge may deem fit in the circumstances.

OUTCOME:

An interim order in the nature of an injunction in the above terms was granted by Honourable G. Angoh on the 22nd September 2017, this pending the determination of the present application after hearing the version of the Respondent.

Etude Guy Rivalland appeared representing the interests of the Applicant in the present application.