Mauritius: Mauritius Case-Law Summary

Last Updated: 6 July 2018
Article by Appleby  

Hassamal v Stoll Financial Services GmbH and anor 2018 SCJ 20

On 26 January 2018, the Court of Civil Appeal delivered its determination on whether a resolution that was produced by a representative of the Respondent (i.e. Stoll Financial Services GmbH) (i) amounted to a Power-of-Attorney and (ii) complied with the Deposit of Power of Attorney Act (DOPA).

The Court of Civil Appeal quashed the determination of the trial judge who did not provide any explanations for her finding that the DOPA did not apply to a resolution produced by the Respondent and that accordingly, the Respondent's representative could proceed to give evidence before the trial court.

The Court of Civil Appeal seized the opportunity to address its mind on the purport of sections 2 and 3 of the DOPA as well as on the issue of form over substance as regards the determination of whether a document not labelled as a power-of-attorney could nevertheless be considered as one as a matter of law.

On the first issue, having reviewed the language of the resolution and the minutes of proceedings for the sittings before the trial court, the Court of Civil Appeal held that the resolution was tantamount to a power-of-attorney or an agency under private signature. First, it was made in accordance with the constitution of the Respondent. Secondly, it was in the nature of granting an authorisation to a designated person mentioned in the resolution to act on behalf of the Respondent.

On the second issue, the Court of Civil Appeal determined that the resolution had to comply with the DOPA. In reaching this view, the Court of Civil Appeal drew a distinction between section 2 and section 3 of the DOPA.

The court held that section 3 of the DOPA applied to a foreign deed of appointment (e.g. a power-of-attorney drawn up outside Mauritius) regardless of whether the person who granted the power-of-attorney was a foreigner or was given to an attorney or agent in Mauritius or an agent appointed abroad to come and represent him. It was mandatory therefore to deposit such a power-of-attorney within a period of 15 days with a notary in Mauritius before any use could be made of it. As to section 2 of the DOPA it applied to a power-of-attorney in which a person appointed another person to represent him in court proceedings during his absence from Mauritius.

Accordingly, inasmuch as the line of authorities was to the effect that a failure to comply with the DOPA was fatal, the Court of Civil Appeal found that the trial court should not have allowed the designated person under the resolution to depose before the trial court. This was so because the representative of the Respondent had "no authority to represent the [Respondent] in court as a result of [the Respondent's] failure to comply with the provisions of the DOPA".


Keep Clean Ltd v The University of Mauritius 2018 SCJ 174

On 16 May 2018, the Commercial Division upheld a preliminary objection in law that was raised by the Defendant (i.e. University of Mauritius) to the effect that a contractual claim could not be entertained by the court as it was time-barred under Article 2279 of the Mauritian Civil Code.

On 1 November 2007 the parties entered into a two year contract during which the Plaintiff would provide cleaning services to the Defendant. The contract was terminated towards the end of October 2009. The Plaintiff served a notice Mise-en-Demeure dated 11 October 2012 on the defendant for breach of contract on the basis of unlawful deductions that it made when paying the Plaintiff for its services. The Defendant challenged the claim on the premise that the deductions were allowable by operation of clause 8.14 of the contract and that the claim was time-barred as it was brought after a period of three years that the contract was terminated.

On this question of time-bar, the Commercial Division took the view that this called for the determination of whether:

  • the contractual payments were to be effected periodically (i.e. à des termes périodiques);
  • the contractual payments were in the nature of revenues (i.e. "le caractère des revenus") as opposed to being rights over debts or fractions of capital (i.e. "un droit de créance d'un capital ou ayant le caractère de fractions de capital");
  • the contractual payments related to debts that were specific by reason of their amount (i.e. "des créances déterminées quant à leur montant").

The Commercial Division sought reliance on Article 2277 of the French Civil Code from which Article 2279 of the Mauritian Civil Code has been heavily inspired but which differs from the former that prescribes a limitation period of five years.

After a review of the terms of the contract, the Commercial Division took the view that the Plaintiff's claim was based exclusively on amounts due by reason of periodical services that were in the nature of debts that were specific by reason of their amount (i.e. "des créances portant sur des prestations périodiques ayant le caractère de revenus and déterminées quant à leur montant").

In the light of the above finding, the Commercial Division took the view that the service of the notice Mise-en-Demeure did not interrupt the limitation period under Article 2244 of the Mauritian Civil Code which sets out the exhaustive circumstances wherein an interruption will occur as a matter of law namely, (i) a summons to appear before a court (ii) a court order or seizure against the person whom one wishes to prevent invoking the limitation period (i.e. "une citation en justice, un commandement ou une saisie, signifiés à celui qu'on veut empêcher de prescrire).

Accordingly, the Commercial Division held that the service of a notice Mise-en-Demeure does not constitute an act which would interrupt the limitation period and, does not therefore have any impact on the 3-year prescription period such that the Plaintiff's claim was time barred under Article 2279 of the Mauritian Civil Code.



Oosman v Timol 2018 SCJ 38

On 12 February 2018, the Commercial Division of the Supreme Court (Commercial Division) set aside a challenge that was raised as to its very foundation. The preliminary objection was to the effect that the Commercial Division was "not a Bankruptcy Court. It is a division of the Supreme Court. There has not been any statute, any law conferring upon this Court the power of the Bankruptcy Division of the Supreme Court".

In setting aside the jurisdictional challenge, the Commercial Division remarked that this was not the first time that this point had been raised.

The Commercial Division reiterated its earlier determinations that having regard to the enabling legislation namely, the Courts Act 1945 (sections 7 & 17), "any judge of the Supreme Court has full jurisdiction to hear and determine all cases assigned to them in whatever division of the Supreme Court he or she is called upon by the Chief Justice to sit" and that "the Commercial Division is therefore vested with unlimited jurisdiction to hear and determine any civil matter be it bankruptcy proceedings or others within the purview of the Companies Act [2001] or even outside the ambit of a commercial nature".

The Commercial Division also referred to determinations of the Judicial Committee of the Privy Council to the effect that the Courts Act (section 62(2)) "makes provision for the jurisdiction of the Bankruptcy Division to be exercised by the Master and Registrar concurrently with the Judges of the Supreme Court".

This was affirmed in SME Equity Fund Ltd v RFA Ltd 2018 SCJ 208 (see below).

SME Equity Fund Ltd v RFA Ltd 2018 SCJ 208

On 15 June 2018, the Commercial Division delivered its determination on a point of law that challenged its legal foundation set against the background of a winding up petition applied for under the Insolvency Act 2009 (Insolvency Act).

The Commercial Division once again remarked that the point was being raised despite its earlier determinations on the subject.

It confirmed the principles laid down in Osman v Timol (supra) and the authorities considered therein and stated the following:

"I once again repeat myself that the Commercial Division remains a division of the Supreme Court and consequently, as a trial Judge, I am perfectly entitled to hear this present bankruptcy petition".


Weston International Asset Recovery Company Limited v Chilton and anor 2018 SCJ 37

On 09 February 2018, the Commercial Division granted an application to set aside a statutory demand which had been applied for by Weston International Asset Recovery Company Limited (Weston) under section 181 of the Insolvency Act.

Weston challenged a statutory demand that had been served on it by the Respondents who were the liquidators of Arlington Assets Investment Limited, a BVI company (Arlington). The basis of the claim by the Respondents was a judgment delivered on 14 June 2010 (BVI Judgment) in their favour by the Eastern Caribbean Supreme Court in the High Court of Justice (Commercial Division), British Virgin Islands (BVI Court).

The Commercial Division held that since the basis for the Respondents' claim under the statutory demand was the BVI Judgment, it was mandatory that the Respondents should have a valid executory title in order to pursue any rights that they claimed under the statutory demand.

The Commercial Division took the view that what the Respondents were in effect attempting to achieve when relying on the BVI Judgment for their claim under the statutory demand was a double legal effect. First the recognition and enforcement of the BVI Judgment. Secondly, the payment of what was claimed as a liquidated sum pursuant to the BVI Judgment by way of the statutory demand.

The Commercial Division held that since the Respondents did not secure the 'exequatur' of the BVI Judgment as it is required under the Mauritian Code of Civil Procedure, they accordingly lacked the legal status to pursue their application before the Commercial Division in respect of their statutory demand.

The Commercial Division reiterated the principle that save for cases where foreign judgments concerned the legal status and capacity of individuals, there were no exceptions to the principle under Article 546 of the Mauritian Code of Civil Procedure that in order to have legal effect in Mauritius, the exequatur of a foreign judgment must have successfully been applied for before the Mauritian courts.


Barnwell Enterprises Ltd and anor v ECP Africa FII Investments LLC and ors 2018 SCJ 119

On 11 April 2018, the Commercial Division delivered its determination on the question of "frais" which was captured as an item falling under a claim for security for costs.

In Al Rawas I.S.A.A. v Pegasus Energy Limited & ors 2006 SCJ 274, the Supreme Court had determined that the term "frais" captured all necessary expenses which were fair and reasonable and that would be directly incurred by a defendant in order to resist an action such as legal fees, cost of swearing affidavits, travelling and accommodation expenses of witnesses in Mauritius. Insofar as counsel and attorney's fees, these are laid down in the Schedule to the Legal Fees and Costs Rules of the Supreme Court and stand to a statutory maximum of USD 3,300.

Accordingly, there was no exhaustive list of items that could be identified as being fair and reasonable and being directly incurred to defend a matter as this would be particular to every case. Thus, in the instant matter, while it was not justified that 2 representatives of the defendant should have to travel to Mauritius solely to swear an affidavit, the costs disbursed to secure the attendance of 2 expert witnesses were reasonable as they were costs directly incurred needed to defend the instant matter.


Mediacom Ltd v Vitiro Ltd and ors 2018 SCJ 130

On 18 April 2018, the Commercial Division held that there was no prohibition under Rule 18(1) of the Supreme Court Rules 2000 for a plaintiff to sue 2 different defendants under two different regimes (i.e. one in contract and another in tort) in the same action where the facts were the same.

Rule 18(1) of the Supreme Court Rules 2000 deals with the issue of joinder of actions and recites that "different causes of action of whatever nature by and against the same parties and in the same rights may be joined in the same suit".

A corollary to the above principle was the determination of the Judicial Committee of the Privy Council that Rule 18(1) precluded 2 different defendants to be sued in tort where there was a clear contractual relationship between them and the plaintiff (Mediterranean Shipping Company v Sotramon Limited [2017] UKPC 23.


Cinemax Ltd & ors v Le Mayricien Ltd & ors 2018 SCJ 139

On 25 April 2018, the Supreme Court expressed its views on the defence of fair comment in relation to actions based for defamation. In particular, it reiterated the conditions to be satisfied in order to succeed with the defence of fair comment.

It is a 4-pronged test as follows:

  • first, the subject-matter in respect of which the comment is made must deal with the public interest;
  • secondly, where the subject-matter consists of facts alleged to have occurred, the facts must be true;
  • thirdly, the comment must be 'fair'; and
  • finally, the statement must not have been made maliciously.

The Supreme Court went further and held that fair comment constitutes a full defence to a claim in defamation and that the onus is on a Defendant to prove, on a balance of probabilities, that the publication of the alleged defamatory statements was made in good faith.

In the present matter, the defence of fair comment was not successfully raised as the Defendant failed to adduce any evidence towards this end.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions