| Page 3 | Etude Guy Rivalland

CHEERS LTD v. UNITED DOCKS LTD - 2018 SCJ 163

11/05/2018

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.

A.Parsoramen & Co. Ltd & Sun Insurance Co Ltd v La Prudence Mauricienne Assurance Ltd (Main Case-CN: 1235/10) and La Prudence Mauricienne Assurance Ltee (substituted to read ‘The Mauritius Union Assurance Co Ltd’) v CIM Finance Ltd & Phoolchand Ujoodha (

02/10/2017

A.Parsoramen & Co. Ltd & Sun Insurance Co Ltd v La Prudence Mauricienne Assurance Ltd (Main Case-CN: 1235/10) and
La Prudence Mauricienne Assurance Ltee (substituted to read ‘The Mauritius Union Assurance Co Ltd’) v CIM Finance Ltd & Phoolchand Ujoodha (Third Party Case-CN: 514/11)

FACTS:

The present claim for damages arise following a road accident involving five vehicles (‘carambolage’), the Plaintiff’s and Defendant’s vehicles in the main case (CN: 1235/10) were second and third vehicle of the pile up whereas the Third Party in the Third Party case (CN: 514/11) was the last vehicle.

No plea was filed on behalf of the Defendant in the main case (CN: 1235/10) even after the third party case (CN: 514/11) was lodged. Only at the stage of writing judgment did the Learned Magistrate take cognizance that in fact no plea had been filed, although same had been communicated to the attorney of the Plaintiff.

ISSUE:

Can Defendant now file its plea at this stage, where judgment is about to be given and all parties have closed their case?

HELD:

In the light of requirements set out under rule 38 of the Supreme Court Rules (which provide guidance on the third party procedure) and after having taken into consideration the ‘ratio decidendi’ of several cases, the learned Magistrate has carried out a balancing exercise as to whether it is in the interests of justice to allow the Defendant in the main case (CN: 1235/10) to re-open the case and file the plea.
The learned Magistrate, using his wide powers and discretion proceeded to decide that ‘the omission in filing the plea in the main case was a genuine and minor error which can be cured by allowing same to be filed at this stage’, after having taken into consideration the following:

(i) Counsel for the Plaintiff and the Third Party admitted having had no difficulty to conduct the defence of their client in all fairness and in the interest of justice inasmuch as they were both in possession of the plea, abided by same and knew very well the case they had to meet;

(ii) It was in the interest of justice to allow the plea to be filed at this stage since the case took so long to be heard and if non-suited, the Plaintiff will not be able to lodge a case on the same facts anew due to time bar; and

(iii) At no point in time did Counsel for the third party indicate to the Court, although he had ample opportunity to do so, that he was impeded in the conduct of his case due to this error and could not do justice to his client. Court records and proceedings instead point out that he had all latitude to conduct his case. No prejudice had been caused to Counsel or his client in the conduct of the defence.

Etude Guy Rivalland defended the interests of the Defendant in the main case (CN: 1235/10).

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

27/09/2017

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.

Joseph André Christian Rouger Lagane v Rey & Lenferna Ltd (CN: 329/2010)

31/08/2017

Joseph André Christian Rouger Lagane v Rey & Lenferna Ltd (CN: 329/2010)
FACTS:
By way of a Plaint before the Industrial Court of Mauritius, Joseph André Christian Rouger Lagane (the Plaintiff) was claiming the sum of Rs. 3,304,545/- from Rey & Lenferna Ltd (the Defendant), which sum represented severance allowance together with interests as from the date of the Plaint, with Costs.
Plaintiff was employed with the Defendant as General Manager since the 20/11/1996 and was drawing a monthly terminal salary of Rs. 57,315/-. He was also provided with two company vehicles, one for himself and one for his wife. He averred that on the 02/02/2010, the Defendant terminated his employment without justification and notice.
The Defendant’s case was to the effect that the Plaintiff had put the vehicles provided to him by the company to illegal use, to wit, illegal hunting-an offence for which the Plaintiff was charged with a provisional information before the District Court of Bambous. The matter was also widely reported by the written press.
ISSUE:
Was the termination of the employment of the Plaintiff by the Defendant justified in the circumstances?
HELD:
Having referred to Section 38(2) (a) (i)-(v) of the Employment Rights Act 2008 and a line of authorities from Mauritian jurisprudence, decisions of the French Cour de Cassation, Dalloz and Jurisclasseur, it was held by the Magistrate that although the Plaintiff committed an offence outside the company premises, outside office hours and whilst he was on leave, there was nevertheless a connection with the employer inasmuch as the Plaintiff had made use of the company vehicle to participate in the commission of the offence of illegal hunting at night, thereby resulting in “manquements aux obligations resultant de son contrat”. Therefore, the acts and doings of the Plaintiff are tantamount to gross misconduct or “faute grave au regard des obligations qui pesent sur lui”.
The Plaint was therefore dismissed with no order as to costs.
Etude Guy Rivalland defended the interests of the Defendant.

Please view full text here: Joseph André Christian Rouger Lagane v Rey & Lenferna Ltd (Judgment)

Maheindra Kumar Sahye v Air Mauritius Ltd (1497/2007)

10/08/2017

Facts:
Maheindra Kumar Sahye (the Plaintiff) was claiming from Air Mauritius Ltd (the Defendant) the sum of Rs. 300,000 with costs and interests for damage and prejudice suffered by him due to the acts and doings of the Defendant during his flight from Kuala Lumpur to Hong Kong, which acts and doings allegedly amounted to a “faute”.

While he was on the abovementioned flight he was drenched by a viscous liquid falling from above his seat.

The “faute” alleged was to the effect that the Defendant has failed in its contractual obligations to carry him safely and without inconvenience from one place to another, this amounting to a “faute”.

The Issue:
Whether the Plaintiff has a cause of action against the Defendant and if the unpleasant incident that occurred with him during his flight can be assimilated to “death” or “wounding of a passenger” or “any other bodily injury suffered by the passenger” for which an action against the airline company is provided under the Warsaw Convention and the Code de Commerce.

Held:
It was held that the Warsaw Convention 1929 (also known as the Convention for the Unification of certain rules relating to international carriage by air), which is the exclusive code for limitation of liability for air carriers for international air carriage of passengers for reward, has been incorporated in our domestic law at articles 437 to 473 of the Code de Commerce.

Citing judgments from the House of Lords (Morris v KLM Royal Dutch Airlines, King v Bristow Helicopters 2002 2 All ER 565 HL), the United Kingdom Supreme Court (Scott v Thomas Cook 2014 UKSC 15), the United States Supreme Court (Eastern Airlines Inc, v Floyd 499 US 530 1991), United States Court of Appeals, Second Circuit (George KING and Judy King v American Airlines Inc Flagship Airlines Inc, AMR Corporation, AMR Eagle Holding Corporation and American Eagle Airlines Inc Docket No. 01-7611), Canadian Courts and South African Courts, the Intermediate Court magistrate held that if there is no wound or bodily injury (blessure ou lesion corporelle) but mere inconvenience suffered by the passenger alleging damages, the conditions for liability under the Warsaw Convention and consequently under the provisions of the Code de Commerce are not satisfied.

The case of the Plaintiff was therefore dismissed.

Attorney for the Defendant: Etude Guy Rivalland

Please view full text here: Maheindra Kumar Sahye v Air Mauritius Ltd (1497/2007) [PDF]

Central Electricity Board v. New Mauritius Hotels Ltd (2017 SCJ 297)

10/08/2017

CEB (the Plaintiff) was claiming from New Mauritius Hotels Ltd (the Defendant) the sum of Rs 33,943,879 for the supply of electricity by the former to the latter for the period from 1 November 2004 to the 1st October 2007, period during which the Plaintiff allegedly under billed the Defendant by half the amount of electricity consumed by the latter.

The Issue:
Does error/ negligence and/or want of caution on behalf of the Plaintiff (inasmuch as there has been no tampering of equipment registering consumption of electricity by the Defendant but failure to effect installation as per the instructions of its clients) entitle it to claim from its customers the balance of the amount under billed?

Held:
Reference was made to article 1110 of the Code Civil mauricien and Droit Civil Les Obligations 5e Édition by Terré, Simler et Lequette at paragraphe 215 to determine whether error/ negligence and/or want of caution of the CEB is an ‘érreur excusable’

“L’erreur excusable.

Fausse représentation de la réalité, l’erreur doit-elle être prise en compte lorsque celui qui s’est trompé avait en sa possession ou aurait pu aisément se procurer tous les éléments nécessaires à la connaissance de cette réalité? Le droit répond par la négative. L’erreur doit être excusable. En s’abstenant de prendre les précautions élémentaires, l’errans a manqué à son devoir de s’informer. Il a commis une faute de négligence qui sera sanctionnée par un refus d’annulation. De non vigilantibus non curat praetor (Des insouciants le préteur n’a cure).

The following was held by the Judge of the Supreme Court hearing the matter:
“The plea taken by NMH to the effect that the CEB is not entitled to relief for any loss that it may have suffered from its sole fault, negligence, imprudence or lack of caution, is therefore well taken. I need not consider the other points in law taken on behalf of NMH.”

The Plaint of the Plaintiff was therefore dismissed. With Costs.