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

15/06/2020

 

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, 10th 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

United Docks Ltd v Interior Solutions (Ceilings and Partitions) Ltd

05/06/2020

 

 

UNITED DOCKS LTD v. INTERIOR SOLUTIONS (CEILINGS AND PARTITIONS) LTD 2020 SCJ 90

 

FACTS

This was an appeal against a decision of the learned Judge in Chambers refusing to issue a writ habere facias possessionem in respect of a shed occupied by the respondent.

In essence, the appellant had proposed to the respondent a new lease with an increase in the rental fees to which the respondent was not agreeable.

Given that all negotiations fell through, an application for a writ of habere facias possessionem was entered by the appellant which was resisted by the respondent on the ground that it has acquired a droit de rétention since it had conducted significant renovations and construction works over the property in lite.

The application for the writ was declined.

 

RATIO DECIDENDI & DECISION OF THE COURT

 

The appellate court observed that:

 

(i) Given that a clause in the lease agreement clearly provided that the respondent was debarred from carrying out any alterations, additions or works of any nature without the appellant’s written approval, same amounted to a contractual clause such that the defence of droit de rétention which exists pursuant to article 555 of the Code Civil Mauricien would found no application to the present case.

 

For ease of reference, as provided for in Dalloz Code Civil, 1969-1970 Ed 6 « l’article 555, régissant uniquement les cas où des constructions ont été élevées sur un immeuble par un tiers, est inapplicable lorsque les travaux ont été effectués en exécution d’une convention qui fait alors la loi des parties – notamment pour les rapports entre propriétaire et locataire. »

 

(ii) The respondent has failed to act in good faith inasmuch as it could not prove that it had obtained the prior written approval of the appellant before carrying out the construction works, as expressly required under the lease agreement

 

The appeal was allowed.

 

Attorney for Appellant: Josephine Robert  

 

 

 

 

DAHAL M. & Ors (Applicants) v Air Mauritius Ltd (Respondent)

05/06/2020

 

 

 

DAHAL M. & ORS v AIR MAURITIUS LTD 2020 SCJ 78

FACTS

This was an application for an interlocutory injunction prohibiting the respondent from acting, directly or indirectly, in breach of the contracts of employment of the Applicants by unilaterally imposing upon them the duties of a cabin crew, on a permanent basis, which according to them fell outside their job descriptions by virtue of them being Senior Flight Pursers.

The application was entered pending an on-going main case for breach of contract of employment.

 

RATIO DECIDENDI & DECISION OF THE COURT

The Judge in Chambers held that:

(i) In order to assess whether there have been breaches of the contracts of employment of all thirteen applicants, it would be cardinal to examine each of those contracts on an individual basis and same could not be done based on affidavit evidence.

 

(ii) Subsequently, this issue was deemed to be a serious question which is best suited to be adjudicated upon in main case before the trial court.

 

(iii) The applicants failed to act with utmost promptitude to seek the writ of injunction inasmuch as the main case was entered in 2015 and in absence of any reasonable cause for the delay, this application was entered in 2019.

 

(iv) The respondent successfully established that damages would be adequate compensation given that the alleged prejudice of the applicants could be quantified and that the balance of convenience clearly was in favour of the respondent.

 

The application was set aside.

 

Attorney for the Respondent: Mrs Josephine Robert  

 

To all our valued clients

25/05/2020

 

Dear Valued Clients

 

The unprecedented crisis we are currently facing has impacted all sectors of the Mauritian economy and more specifically tourism, hospitality and leisure industries. As we have now entered the first phase of the reopening of the economy along with an easing of the lockdown measures, a number of issues regarding legal, tax, financial and social measures related to the Covid- 19 crisis remain unclear.

Etude Guy Rivalland law firm remains committed to assist you in order to tackle and address any issues you may encounter in light of the legal implications and the regulatory framework which have been constantly evolving as a result of the current circumstances.

Our team of legal experts are available to answer promptly any query you may have with a view to support you as much as possible during this historic turmoil and help you resume your activities smoothly. 

In this particular context, we would like to invite you to read the short memo below which could be helpful to you. 

 

With best regards

All the team at Etude Guy Rivalland

 

 

As a leading litigation firm in Mauritius, it is of utmost importance to Etude Guy Rivalland to keep its valued clients updated on some critical legal issues that may be of interest to them and to other readers as well. Indeed, the Covid 19 has hit us all hard in many ways and the unprecedented economic crisis resulting therefrom led to a number of questions which often remain unclear or even unanswered. 

 Some of the major challenges being faced by the stakeholders including leading business owners, financial market players and employers more generally are to help maintaining the employment of their personnel during the crisis.

 On 01st May 2020, the Prime Minister of Mauritius announced a further extension of the lockdown measures which have then been imposed in Mauritius since 20th March 2020 up to 01st June 2020 in order to avoid a potential resurgence of the pandemic. Although the government announced measures to gradually ease the lockdown in view of re-opening the economy as from 15th May, the situation will not come back to “normal” before a while and very few categories of activities only have been able to resume work including but not limited to some employees of the private sector, self-employed and civil servants.

 

As we are following closely the most recent developments on this situation, the controversial but widely expected Covid-19 (Miscellaneous Provisions) bill (“Covid-19 bill”) has been discussed in Parliament since 13th May along with the Quarantine bill.

 

The Covid-19 bill concerns the proposed amendments to some 56 laws with the objective to adjust certain legal provisions to the "Covid-19 effects" in our daily activities subject to it being passed and enacted into law.

 

While some of the proposed amendments have been hailed by many such as those made to the Companies Act where we can see namely an extended time frame granted to companies for the holding of their annual meeting (9 months after the balance sheet date instead of 6 months) and the preparation/filing of their annual accounts (9 months after the balance sheet date or more as may be specified by the Registrar of Companies for the preparation of the accounts instead of 6 months and 3 months instead of 28 days for the registration of the accounts with the authorities) as well as a flexibility to the directors’ liability in the event of insolvency, the proposed changes to some other acts and more specifically the Workers’ Rights Act 2019 have sparked debates and negative comments amongst a number of people including the opposition party and trade union groups.

 

Below are some frequently asked questions which you may find useful in order to have a better understanding of the potential legal implications of the proposed amendments to the Workers’ Rights Act 2019.

 

The answers provided below are for informational purposes only for the benefit of the readers. 

 

1) Would an employer be entitled to make an employee redundant on the basis of economic reasons as a result of the crisis?

 

As the provisions of the Workers' Rights Act currently stand, the employer would be able to reduce its workforce through the Redundancy Board and in accordance with the provisions of section 72 et seq of the Workers' Rights Act 2019. 

However in order to avoid redundancies, the government has encouraged employers to retain their staff on payroll during the lockdown.  This partly explains the setting up of the Government Wage Assistance scheme which is aimed at supporting the employers where the employee receives a monthly pay not exceeding MUR 50,000.  The assistance scheme has been extended to the month of May as declared by the Ministry of Finance. 

 

 

2) What are the main conditions for an Employer to make an employee redundant or to reduce its workforce on the basis of economic reasons?

 

Prior to making a decision to reduce its workforce for economic reasons, whether temporarily or permanently, the employer shall explore any possible alternatives with the trade union (if applicable) or the representative of the workers (duly appointed by the workers for such purposes). These alternatives may include reduction in overtime, the retirement of workers who are beyond the retirement age, restrictions on recruitment. 

 

Under the Covid-19 bill, certain categories of employers working in the sectors listed below may proceed with a reduction of their workforce or a closing down of their enterprise within a shorter time frame as described further below. These sectors include civil aviation and airport, customs, electricity, health, hotel services, hospital, port, including cargo handling services and other related activities in the ports, radio and television, refuse disposal, telephone, transport of passengers and goods and water supply. In such instance, the employer has 15 days to notify the Redundancy Board of his decision (30 days in the current provisions), the latter will also have 15 days to complete its proceedings. 

 

 

3) What are the decisions available to the Redundancy Board in case an employer wishes to make an employee redundant or has the intention to close down its enterprise?

 

The Redundancy Board may either accept or reject the employer's decision.

 

         i.                        Should the Redundancy Board accept the redundancy, the employee shall be entitled to 30 days’ wages as indemnity in lieu of notice. The Redundancy Board may also order and in this instance in lieu of termination and subject to the employer’s consent that the employee be reinstated to the company in accordance with new terms and conditions imposed by the employer on leave without pay on such period designated by the employer.

 

       ii.                        Where the Redundancy Board finds that the reasons for the reduction of the workforce or the closing down are unjustified, the employer may either be ordered:

 - to reinstate the employee in his former employment (subject to the employee's consent) and be paid the amount he was due to receive between the date of redundancy and the date of reinstatement ; or 

- to pay the employee severance allowance at the rate of 3 months’ remuneration per year of service.

 

 4) Other significant change proposed under the Covid-19 Bill in terms of employment

 

An employer may during a period of 18 months following the expiry of the COVID-19 period, withhold up to 15 days’ annual leave, or such other number of annual leave as may be prescribed, from the aggregate of the annual leave which accrues to an employee as from the beginning of the year of the COVID-19 period or such further period as may be prescribed.

 

5) What about the handling of court matters during this period?

 

The judicial system has not been spared by this crisis either and the Courts in Mauritius are currently closed until further notice except for urgent matters (including but not limited to the granting of protection orders or the request for release on bail).

 

It would be worth noting that the Covid-19 bill is also proposing to give a broader power to the Chief Justice to make any such rules or decisions which he deems fit during the Covid-19 period or at any time after the said period. These may include hearings and procedures being conducted remotely or the handling of a case to be heard before any specific court.

 

 

 

Mechanisation Company Ltd (Appellant) v The Municipal Council of Quatre Bornes (Respondent) (Supreme Court - Record No. 6934)

14/01/2020

FACTS

The Appellant and the Respondent entered into a contract whereby the services of the Appellant were retained for the supply of equipment to be delivered to the Respondent within 90 days from the signature date of the contract failure to which, liquidated damages per day of delay would apply.

The Appellant contended that it has delivered the equipment 135 days after the time limit for delivery and claimed that an excess amount was unduly retained by the Respondent. The Respondent maintained that the equipment was effectively delivered after 690 days from the signature date of the contract and further alleged that the equipment was not delivered in compliance with the specifications set out in the contract which the Appellant denied. The Respondent refused to pay the excess amount to the Appellant, which decision was upheld by the Honourable magistrate of the Trial Court.

 

MAIN ISSUES

The Appellant appealed against the judgment and submitted inter alia that:

(i) the learned magistrate erred in refusing to adjudicate on the date of delivery of the equipment being the main issue at hand;  

(ii) in the light of the evidence on record, there was a clear misdirection on the part of the learned magistrate when she concluded that the Court could not possibly embark on the assessment as to whether the equipment was defective or not;

(iii) the learned magistrate erred in disregarding a document when the Respondent itself invited her to rely on the tender documents produced by the Respondent;

(iv) if the learned magistrate had effectively analysed the testimonial and documentary evidence on record, she would have given judgment in favour of the Appellant inasmuch as: 

  • the alleged snags did not at all constitute material departures from contract specifications;
  • the date of delivery was 17th September 2010 (i.e. 135 days after signature of the contract) and the equipment was tested and driven on that day;
  • if there existed any material departure from contract specifications, the Respondent would not have accepted the equipment.

 

DECISION OF THE COURT

The Court quashed the judgment of the learned magistrate and ordered the Respondent to pay the Appellant the sum of MUR 294.615.40 cts with interest based inter alia on the following:

(i) the learned magistrate erred when she declined to proceed with an assessment of the issues raised by the parties on the basis of the absence of evidence as to the specifications;

(ii) Grounds 1, 2 and 3 are well taken since the documentary evidence clearly establish the specifications with which the appellant had to comply for the supply of the equipment;

(iii) the learned magistrate failed to give judgment in favour of the Appellant in respect of Ground 4 whereas it is abundantly apparent from the evidence that on 17th September 2010, the Appellant did deliver the equipment in compliance with the contract specifications and that the alleged snags and defects which were belatedly invoked by the Respondent did not constitute a breach of the contract specifications. Consequently, the Respondent was not entitled to withhold payment on the ground of further delay in the delivery of the equipment for any of the alleged complaint subsequently made by the Respondent;

(iv) the Respondent accepted delivery of the equipment without any reservation on 17th September 2010;

(v) the Respondent’s list of defects was issued only when the Appellant requested payment of the remaining balance on 03 November 2010;

(vi) the equipment (being tractors and trailers) had been lawfully registered as being roadworthy  by the National Transport Authority  and were approved by a registered engineer before their delivery on 17 September 2010.  

 

Attorney for Appellant: Jean Jacques Robert

Devendranath Hurnam v. 1. Le Mauricien Ltd, 2. Gérard Cateau, 3. Josie Lebrasse

20/11/2019

Devendranath Hurnam v. 1. Le Mauricien Ltd, 2. Gérard Cateau, 3. Josie Lebrasse Devendranath Hurnam v. 1. Le Mauricien Ltd, 2. Gérard Cateau, 3. Gilles Martial (Supreme Court - Court of Civil Appeal. Record No. 1278 and 1279) 16/10/2019

These two appeals relate to two cases which were heard together and for which a single judgment was delivered.

FACTS

The Appellant claimed damages following the publication of articles by the Respondent No.1 which the Appellant considered to be of a defamatory nature towards him and prejudicial to him.

MAIN ISSUES

First appeal

It was submitted that:

  • the learned judge of the Trial Court wrongly examined matters extraneous to the publication dated 26 December 2004 which the judge considered legitimate;
  • the learned judge of the Trial Court failed to decide whether or not one sentence mentioned in the disputed publication was asked by the appellant as a member of parliament which the judge considered not well founded;
  • the learned judge of the Trial Court refused to interpret the alleged analogy of the Appellant’s behaviour as depicted in the impugned parts of the publication with the conduct of TV serial characters convicted of criminal offences; 
  • the learned judge of the Trial Court failed to direct her mind to the Appellant’s legal and factual submissions which in any event were not pinpointed;
  • the trial Court was wrong to consider that the Respondents acted in the exercise of the freedom of expression guaranteed by section 12 of the Constitution of Mauritius and that the article contained fair comments made in good faith on a matter of public interest.

Second appeal

It was submitted on behalf of the Appellant that:

  • The learned judge of the Trial Court came to the conclusion that when the Appellant requested the rectification of the impugned publication to the Respondents in the following issue of the newspaper, the Appellant had the burden of proving his averments and failed to do so by not even explaining in evidence the rectification he had asked to the Respondents. In any event the judge considered that the above contention was not material and could not be deemed defamatory of the Appellant;
  • The trial Court was wrong to decide that the article was not defamatory of the Appellant in the light of the unchallenged evidence given by him with no rebuttal evidence from any of the Respondents;
  • The learned judge’s findings that the reporter had not disclosed the instructions that one Dabidin (an inmate) had alleged he had received from the Appellant are clearly perverse in the light of the words used in the impugned article. However, the learned judge was satisfied that the impugned extract in the article was not capable of conveying a defamatory meaning prejudicial to the Appellant.

DECISION OF THE COURT

All grounds having failed, the appeal was therefore dismissed.

Attorney for Respondents: Etude Guy Rivalland

Injunction: La Sentinelle Ltd v Akash Callikan, ABZ Global Solutions Ltd & URI CYPIN

26/11/2018

Mrs Joséphine Robert, acting for La Sentinelle Ltd, lodged an application for injunction on the 22nd of November 2018, praying for an order of the Judge in Chambers to restrain and prohibit the website “Mo Ti News” from (i) reproducing, copying and replicating articles published by La Sentinelle Ltd in its newspapers or on its website, lexpress.mu and (ii) infringing the copyright of La Sentinelle Ltd in the articles published in its newspapers and on its website.

An interim order as per the prayers sought was granted as the Judge sitting in Chambers was satisfied that the matter was so urgent as to require his Lordship’s immediate intervention.

THOMAS T M v AIR MAURITIUS LTD 2018 SCJ 217

22/06/2018

THOMAS T M v AIR MAURITIUS LTD 2018 SCJ 217

The subject matter of the case is an appeal against the judgment of the Industrial Court in which the claim of the appellant (“the plaintiff”) against the respondent (“the defendant”) was for indemnity in lieu of notice and for severance allowance based on the alleged unjustified termination of his employment and that was dismissed with costs.

Before the Trial Court, the plaintiff had averred that he had been working continuously with the latter under five contracts of employment. He was given written notice that his employment was terminated whereas by virtue of paragraph 9 (A) (ii) of his contract of employment where the defendant had an obligation to give three months written notice of termination. The plaintiff also averred that he had been discriminated against due to his foreign nationality. According to the plaintiff, the termination of his employment was unjustified.

The defendant admitted that there were five contracts of employment but denied that the plaintiff had been in the defendant’s continuous employment and that termination was lawful inasmuch as the contract of employment was for fixed duration. The defendant denied the allegation of discrimination and explained that the decision to terminate the plaintiff’s employment was motivated by the difficult financial situation of the defendant.

The Trial Court found in favour of the Defendant. The Court decided that the termination was reasonable as the Defendant was in great financial distress at the material time.

Issue on before the Appellate Court:

(i)                the issue of continuous employment and

(ii)               the entitlement to severance allowance

The decision of the case of De La Haye v Air Mauritius Ltd [2018 UKPC 14, Privy Council Appeal No. 0088 of 2016] was referred where the appellant in that case was, like the appellant in the present case, an expatriate pilot who had been employed on successive contracts of fixed duration. His employment was terminated by the respondent on grounds similar to those on which the appellant in the present case was terminated. The Judicial Committee agreed that the appellant's employment under four successive fixed term contracts did indeed fall within the concept of continuous employment as defined in section 2 of the Employment Rights Act 2008.

The Privy Council went on to say that the termination was clearly justified on the basis of the findings of the Magistrate in the Industrial Court. The findings they were referring to are those to the effect that there was clearly sufficient economic justification for the termination of the plaintiff’s contract.

The appeal was dismissed with costs.

Etude Guy Rivalland defended the interests of the Defendant.

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