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Lagesse M.F. & Ors (Plaintiffs) v The Mauritius Commercial Bank Ltd & Ors (Defendants)

28/06/2021

 

Lagesse M.F. & Ors (Plaintiffs) v The Mauritius Commercial Bank Ltd & Ors (Defendants)

2021 SCJ 103

 

Record No.100235

 

FACTS

One Mr Gérald Lagesse was an employee of The Mauritius Commercial Bank Ltd(“MCB”) and was found dead of asphyxia by gagging following a robbery which took place in the main vault of MCB on 11 February 2005.

The Plaintiffs being his widow, daughter and mother claimed moral damages against MCB and claimed an amount of MUR 35 million along with interests. 

The Plaintiffs averred inter alia that MCB acted negligently, recklessly and unprofessionally and failed as an employer to ensure to its employees and more particularly to those working in the main vault a safe working environment.

The Plaintiffs contended inter alia that MCB failed to take the appropriate measures to prevent intruders from accessing the vault areas amongst others, did not have a system to prevent the robbery, did not have any security camera which would have enabled its security personnel that certain intruders penetrated the security areas of its premises, the late Mr Gerald Lagesse was not provided with sufficient training and instructions with respect to the security of the vault and the security areas.

Learned Counsel for the Plaintiffs further made it clear that the Mauritius Union Cy Ltd, Mauritius Eagle Insurance Company Limited and Swan Insurance Company Ltd, respectively Defendant No.2, Defendant No.3 and Defendant No.4, have been joined as parties to the case as a result of the insistence of MCB to put them into cause.

 

DECISION OF THE COURT

The plaint was dismissed with no order as to costs mainly on the following rationale:

(i)             all safety procedures and measures were scrupulously followed and applied by MCB on the material date (11.02.2005) and no evidence to the contrary was established;

(ii)           there was evidence from witnesses called by the Plaintiffs themselves that the late Mr Gerald Lagesse was an experienced bank officer and was more specifically the bank manager of several MCB branches where there were vaults and that in such capacity, he was fully conversant with the security aspects of the vault. Therefore the Plaintiffs’ complaint that Mr Lagesse was not given adequate training and required special skills remain unfounded;

(iii)          the intruders got access to the main vault not as a result of the defectiveness in the security system or the lack of aptitude of the late Mr Lagesse as contended by the Plaintiffs but rather on account of someone from the inside the bank having made it possible for the intruders to do so; and

(iv)         the preponderance of the evidence does not establish that the robbery and the death of Mr Lagesse were due to the faute, negligence and recklessness of MCB and the Plaintiffs failed to substantiate their claim for moral damages and their averments that MCB has failed in its duty to ensure a safe environment to it employees.

 

Attorney for Defendant No.2: Josephine Robert

 

Blencowe M.C. (Appellant) v ACMS Ltd (Respondent)

28/06/2021

 

Blencowe M.C. (Appellant) v ACMS Ltd (Respondent)

 

2021 SCJ 26

Record No. 1580 – 6B/24/19

 

Summary of Facts

The Appellant, was employed as an international financial consultant by the Respondent which is a management company.

 

The Respondent had guaranteed to pay to one of its clients (Mrs Fallot), the return of her investment plus interests in the tune of USD 73,639.33. (the “Guarantee”)

 

In view of his involvement in the transaction, the Appellant had given a written undertaking to the Respondent that he would contribute two thirds of the total amount due by the Respondent as a result of the Guarantee but failed to make the said contribution when the Respondent paid the sum of MUR 1,321,973 to Mrs Fallot.

 

Issue

The Appellant contended inter alia that the undertaking was null and void for having been signed duress.

 

Decision

 

The learned judge found on the facts that the Appellant failed to establish that he had signed the undertaking under duress and ordered the Appellant to pay to the Respondent the sum of MUR 881, 315 with costs and interests. The Appellant appealed against the said judgment.

 

The Appeal was dismissed and the Court stated that they found no reason to interfere with the learned Judge’s decision to reject the Appellant’s allegation of duress in the light of the evidence fully justified.

 

Attorney for Respondent

Josephine Robert

 

You may access a copy of the full judgment through the link below

 

https://supremecourt.govmu.org/HighlightDoc/%20BLENCOWEM%20%20C%20%20v%20%20ACMS%20LTD%202021%20SCJ%2026.pdf

 

Mechanisation Company Ltd (Appellant) v Emcar Ltd (Respondent)[Record No. 1392]and Emcar Ltd (Appellant) v Mechanisation Company Ltd (Respondent)[Record No. 1395]

21/01/2021

 

 

Mechanisation Company Ltd (Appellant) v Emcar Ltd (Respondent)[Record No. 1392]

Emcar Ltd (Appellant) v Mechanisation Company Ltd  (Respondent)[Record No. 1395]

2021 SCJ 15

18/01/2021

 

FACTS

MECOM was the owner of a sugar cane harvester (the ‘machine’) which was to be sold to a prospective buyer in South Africa for the sum of ZAR 1,000,000. MECOM entered into an agreement with EMCAR as freight forwarder for the purposes of the shipment of the machine from Mauritius to South Africa.

While it was partly dismantled in South Africa, the machine was found to be in a damaged state and the then prospective purchaser cancelled the acquisition accordingly.  It was only after a long time that MECOM was able to sell the machine at a much lower price (ZAR 350,000).

MECOM claimed damages from EMCAR as compensation from the damages suffered resulting from EMCAR’s failure to abide by its contractual obligations.

In the first appeal, the Mechanisation Company Ltd (MECOM) claimed damages for breach of contract to EMCAR Ltd (EMCAR) following which, the trial judge ordered EMCAR to pay an amount of ZAR 360,614 (or its equivalent in the Mauritian currency) to MECOM as from judgment date together with interest thereon as from 29 May 2015 up to the final payment date. Mecom contested the quantum of damages and claimed an amount of ZAR 650,000 plus interests as from date of entry of the plaint.

In the second appeal, EMCAR is challenging both the trial judge’s finding of liability for breach of contract and the amount of awarded damages.

The two appeals were consolidated.

 

MAIN ISSUES

EMCAR denied liability and submitted inter alia that:

(i)   it has not received the machine in good state and condition when it was partly dismantled and loaded on the ship;

(ii)  the amount claimed was excessive and unjustifiable;

(iii)  it was merely acting as an ‘intermédiaire’ in order to organise the transport of the machine;

(iv)  the damage to the machine was caused prior to its ‘prise en charge’ by it;

(v)   it was not responsible for the delay in causing repairs to be effected to the machine and for the loss of opportunity to sell the machine;

(vi)  the action should fail since MECOM failed to serve a notice ‘mise en demeure’ upon it.

 

DECISION OF THE COURT

First appeal

The Court ordered EMCAR to pay an amount of ZAR 710,614 (or its equivalent in Mauritius currency) to MECOM plus interest as from the date of the plaint up to the date of final payment.

Second appeal

Dismissed with costs against EMCAR

The decisions of the Court were based namely on the following rationale:

(i) EMCAR was a « commissionaire de transport » with respect to the agreement it entered into with MECOM as “commettant” and therefore, EMCAR was fully responsible for the “avaries” caused to the machine by virtue of articles 95, 96 and 97 of the Mauritius Code de Commerce. In that respect, it is essential to reproduce the provisions of the said articles which respectively state that:

- Art. 95: “Le Commissionnaire qui se charge d’un transport est garant de l’arrivée des marchandises et effets dans le délai convenu ou dans un délai raisonnable, hors les cas de force majeure légalement constatée.

- Art.96 : « Il est garant des avaries ou pertes de marchandises et effets, s’il n’y a stipulation contraire ou force majeure. 

- Art. 97 : « Il est garant des faits du commissionnaire intermédiaire auquel il adresse les marchandises. »

(ii) the “Commissionnaire de Transport” is bound by an “obligation de résultat"and is liable not only for his personal acts but also for the acts of third parties whom he has engaged for executing the “contrat de transport”;

(iv) the machine was damaged prior to it being taken in charge by EMCAR;

(v)  EMCAR had the contractual obligation to ensure that the machine reached destination in good state;

(vi) EMCAR would still be liable even if the machine was damaged whilst it was loaded on the ship by Cargo Handling Corporation (CHC);

(vii) as stated in the bill of lading, EMCAR was responsible for the acts and omissions of the employees of the CHC and the ship since it resorted to their services for the performance of the contracts;

(viii) the cancellation of the sale by the prospective South African purchaser was a direct consequence of the damages caused to the machine as a result of EMCAR’s failure to accept liability which it knew very well and thus causing delay to MECOM to have the repairs done;

(ix) the contractual documents between MECOM and EMCAR were consistent with the aforementioned provisions of the Code de Commerce.

 

Attorney for Mechanisation Company Ltd: Jean Jacques Robert

Le Petit Morne Ltée & Anor (Applicant) v Le Mauricien Ltée & Ors (Respondents)

09/10/2020

 

Le Petit Morne Ltée & Anor (Applicant) v Le Mauricien Ltée & Ors (Respondents)

(Supreme Court – In Chambers Serial No. 1360/19)

28/09/2020

 

FACTS

Applicant No.1 claims to be the owner of certain plots of land situate in Le Morne and obtained a number of injunctions against local people who were allegedly interfering with its proprietary rights over the said plots of land.  

A video of full press conference which was held on 10 July 2019 by REA (a group of persons acting together under the name “Kolektif Vilaz Morne”) and the Centre for Alternative Research and Studies has been published inter alia on social media platforms of ‘Le Mauricien’.

Respondent No.1 (Veena Dholah) and Respondent No. 2 (Stephan Gua) and the local people were speakers during the said press conference and commented on a number of pending cases against them which they labelled as “persecution”.

The Applicants applied for an injunction prohibiting and restraining the Respondents from:

(i)     broadcasting a video of a joint press conference held on 10th July 2019;

(ii)     broadcasting and/or publishing online or in any whatsoever way any document, article,  interview on and/or connected to the different cases which the Applicant No.1 has lodged in relation to its property at Le Morne;

(iii)    making any public comment and/or giving any public opinion in relation to the facts of the different cases which the Applicant No.1 has lodged and which are still pending before the Court of law.

The Applicants did not insist on the prayers sought under paragraphs (ii) and (iii). Therefore the remaining issue before the Judge in Chambers was in connection with paragraph (i) above.

 

MAIN ISSUES

The Applicants contended inter alia that:

(i)   the Respondent No.2’s statements during the press conference amounted to contempt of court;

(ii)   Respondents No.1 and 2 and the local people were attempting to intimidate the Court and bring the Court process into disrepute;

(iii)   the publication of the video was calculated to interfere with the course of justice in cases which the above speakers knew to be pending;

(iv)   by publishing the said videos, Respondent No.3 (Top FM Ltd) and Respondent No.4 (Le Mauricien) committed a sub judice contempt of court.

 

DECISION OF THE COURT

The judge held that for the Applicants to be successful, the following three elements must be present:

(i)    there is a serious issue to be tried;

(ii)    damages will not be an adequate remedy; and

(iii)   the balance of convenience is in favour of granting the injunction.

The judge was of the view that there was a serious issue to be tried because the matter discussed by the media was still being considered by the Court and therefore there was sub judice contempt of court.

As regards the issue as to whether or not damages would be an adequate remedy, the judge noted from the outset that the Applicants’ main qualm appeared to be that the video was calculated to interfere with the course of justice and tarnish the image of the judiciary by equating the legitimate recourse to legal proceedings to acts of persecution and that the Applicants have not sought any damages from the respondents in the main case. Consequently, the judge held that damages would clearly not be adequate remedy.  

With respect to the last element, the judge decided that the balance of convenience was not in favour of granting the application on the basis of the following grounds:

(i)   the Director of Public Prosecutions did not initiate any action for contempt against the respondents; and

(ii)  more importantly, if the application is not granted but where the respondents are found to have committed contempt of court in the main case against them, the Court will mete out the appropriate penalty against the respondents by taking into consideration the length of time during which the contempt was ongoing whereas if the application is granted and the main case is decided against the Applicants, the respondents would have been deprived of their constitutional right to freedom of expression.

 

Attorney for Le Mauricien Ltée: Josephine Robert

Etude Guy Rivalland - New team member

08/10/2020

 

Etude Guy Rivalland (EGR) is delighted to welcome Mr Adil Calleea as a new team member since 01 October 2020.

Adil is an experienced barrister who previously worked for another Mauritian leading law firm prior to joining EGR. His main areas of expertise include employment law, contracts, civil and commercial law. 

The whole team wishes Adil a lot of success at EGR !

 

 

 

 

Mr Joseph André Christian Rouger Lagane (Appellant) v Rey & Lenferna Ltd (Respondent)

10/09/2020

(Supreme Court - Record No. 6920)

 

FACTS

The Appellant was the Managing Director and General Manager of a company called Diesel Pro Ltd, a company owned by the Respondent and was provided two company vehicles for himself and his wife as part of his conditions of service.  

On 18 January 2010, the Appellant received a letter to attend a disciplinary committee to answer a charge relating to the Appellant’s involvement in an illegal hunting at night while using the company’s vehicle following which, the Appellant’s employment was terminated on the ground of misconduct.  

It is apposite to note that further to the above incident, the Appellant was arrested by the police and provisionally charged for the offence of illegal hunting prior to being released on bail and that a press article making reference to the said incident and identifying the company’s vehicle was published in the newspaper.

Further to the termination of his employment contract, the Appellant entered a claim for severance allowance together with indemnity in lieu of notice, which claim has been dismissed by the learned magistrate of the Industrial Court.

 

MAIN ISSUES

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

  1. the learned magistrate was wrong to opine that the Respondent could conclude that the Appellant committed an illegal act when it is for a Court of law to make such determination;
  2. there was no evidence that an illegal act had been committed by the Appellant, the more so since he did not participate in the act of hunting himself;
  3. assuming that the facts complained of by the Respondent were true, the acts of the Appellant did not constitute a ‘faute lourde’ on the following basis:
    1. there was no element of dishonesty or violence but  a simple case of hunting at night;
    2. appellant’s role was minor;
    3. the hunting was done for charitable purposes;
    4. appellant was not prosecuted.
  4. the acts occurred outside working hours and outside the Respondent’s premises which did not have any effect on “le bon fonctionnement de l’entreprise”;
  5. the Respondent could have taken another course of action since the Appellant had an “unblemished record” and has never received any warning from the Respondent and the incident was a minor one;
  6. the act of the Appellant did not show any disloyalty against the Respondent nor was it in the nature of a competition against the company’s activities.

 

DECISION OF THE COURT

The Court upheld the decision rendered by the lower Court in that the acts and doings of the Appellant constituted a ‘faute grave’ which was tantamount to gross misconduct so that the employer did not have any other alternative than to terminate the Appellant’s employment.  The Appeal was therefore dismissed.

The Court’s decision was based inter alia on the following reasoning:

  1. the learned magistrate relied on the general circumstances in which the offence was committed to come to the conclusion that there were sufficient elements evidencing that the Appellant participated either as an accomplice or a co-author in the illegal hunting (namely because the Appellant was apprehended by the police and it was not incumbent on the company to await the outcome of the criminal case before taking any disciplinary action against the Appellant);
  2. the acts and doings of the Appellant constituted a ‘faute grave’  although it was committed outside working hours, outside the company’s premises and while he was on leave. The Appellant’s misconduct was of a nature to bring about « un trouble profond dans le fonctionnement et la morale de l’entreprise »;
  3. the Appellant made an ‘usage abusif’ by using the vehicle for the commission of a criminal offence;
  4. there is clear breach of trust on the part of the Appellant and the Appellant’s behaviour as a high-ranking employee was not proper and objectively created ‘un trouble objectif’ in the ‘bon fonctionnement de l’entreprise’ leading to ‘manquements aux obligations résultant de son contrat’ and consequently put the company’s reputation and business in jeopardy.

 

Attorney for Respondent: Josephine Robert

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  

 

 

 

 

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