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Yacoob Ramtoola (Plaintiff) v The Mauritius Union Company Limited & Ors




Yacoob Ramtoola (Plaintiff) v The Mauritius Union Company Limited & Ors

2021 SCJ 325


(Interlocutory Judgment)


Summary of facts

The Plaintiff in his capacity as special administrator of BAI Co. (Mtius) Ltd and its related companies including Bramer Banking Corporation Ltd (in receivership) (“BBCL”) entered a Plaint With Summons on 30 December 2015 whereby the Plaintiff claimed MUR 200 million to the Defendant under an insurance policy issued by the Defendant for the benefit of the directors and officers of BBCL.  The said insurance policy engages the Defendant to pay out claims for wrongful acts and doings of the directors and officers of the said companies so long that a faute can be established against those persons in the performance of their duties.

On 21 October 2019, Co-Defendant No.2 moved for the application of ‘péremption d’instance’ under articles 397 to 401 of the Code de Procédure Civile (“CPC”), which motion was adopted by the Defendant as well as all Co-Defendants in the case. The matter was fixed for arguments on that basis and a letter was issued by the learned Judge at the Commercial Division of the Supreme Court on 08 October 2019 in querying about the ‘idleness’ of this case. Article 397 CPC states that: “toute instance, encore qu’il n’y ait pas eu constitution d’avoué, sera éteinte par discontinuation de poursuite pendant trois ans. Ce délai sera augmenté de six mois, dans tous les cas où il y aura  lieu à demande de reprise d’instance, ou constitution de nouvel avoué. »

According to the Defendant, the Plaintiff (i) had not done anything since 15 September 2016 when he filed the amended Plaint and (ii) did not reply to the Demand of Particulars filed by the Defendant be it in March 2016 or in September 2016. Consequently, this is a fit case for ‘péremption d’instance’ to apply.

On the other hand, counsel for Plaintiff submitted that the motion of ‘péremption d’instance’ was flawed as it was not made to the Plaintiff’s attorney.



(i)                  Whether the fact that Third Party No. 2 filed a Demand of Particulars on 10 March 2017; and

(ii)                Whether the fact that the statement made by the attorney for Plaintiff when he was seeking a postponement to report progress on the pooling of BAI Co. (Mtius) Ltd on 21 October 2019

would interrupt the required 3 year period for the ‘péremption d’instance’.




The judge is satisfied that article 397 CPC finds its application in the present case and upheld the plea in limine litis raised by the Defendant and the Co-Defendants and non-suited the plaint with costs on the following grounds:

(i)                  The request for ‘péremption d’instance’ not only benefits the party who has sought the same but all those whom the Plaintiff had put into cause i.e. the Co-Defendants and the third parties (principe de l’indivisibilité de la péremption d’instance);

(ii)                The required 3 year-period for ‘péremption d’instance’ would only be interrupted by an ‘acte de procédure’ or an ‘acte valable’. In this case, the fact that Third Party No.2 filed a Demand of Particulars does not constitute an ‘acte valable’ on the part of the Plaintiff nor does the statement made by the Plaintiff’s attorney during the sitting dated 21 October 2019 be construed as an ‘acte de procédure’ as it was a mere statement that some amendments needed to be made to the Plaint With Summons;

(iii)               Since the prayer and remedy sought from the Court is only for damages against Defendant and that the ‘litige est indivisible’, article 397 CPC finds its application. “L’instance étant éteinte” against the Defendant, it also inevitably leads toit being ‘éteinte’ vis-à-vis Co-Defendants and Third Parties.  



Attorneys for Defendant

Jean Jacques Robert and Josephine Robert


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



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

2021 SCJ 103


Record No.100235



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.



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)



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.



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




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


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




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




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.



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.



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)



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

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




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.



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.



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



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)


(Supreme Court - Record No. 6920)



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.



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.



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






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.





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