Supreme Court of Mauritius, 23 juin 2020, 2020 INT 81 – M A C HANNELAS V I AULUM AND ANOR

1 M A C HANNELAS V I AULUM AND ANOR

2020 INT 81

CN:- 554/19 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Marie Anabelle Cathie Hannelas Plaintiff v/s 1. Ismael Aulum 2. Youwanand Ramdin

Defendants RULING In a proecipe dated 13 September 2017, the plaintiff has averred that the defendants acknowledged being indebted to her in the sum of Rs. 550,000, which they jointly undertook to reimburse to her by end of November 2016. The said sum represented an advance payment made by the plaintiff to defendant no. 1 as contractor for construction works and which defendant no. 2, as foreman, failed to use for the said works. Both defendants failed to reimburse the said sum by the due date in breach of the said acknowledgement of debt, signed on the 22 October 2016. Notice mise en demeure was served on both parties formally calling upon them to reimburse the said sum, failing which legal steps would be taken, the cost of which shall be borne by the defendants. Both defendants have failed to reimburse the said sum of money to date. The plaintiff has averred that as a result of the wrongful acts and doings of the defendants, she has suffered damages and prejudice which she values at Rs. 819,000 made up as follows:

(a) Amount due under the acknowledgement of debt Rs. 550,000 (b) Legal costs Rs. 69,000 (c) Moral damages Rs. 200,000

The plaintiff is therefore praying for a judgment from this court condemning and ordering the defendants, jointly and in solido, to pay to her the sum of Rs. 819,000 with interests at legal rate as from 01.06.2017 until the date of final payment and costs. The defendants have raised a plea in limine which has been couched as follows:

“The defendants aver that the Plaint with Summons is misconceived in that the Plaintiff cannot claim legal costs and moral damages. The Defendants therefore move that the said Plaint with Summons be dismissed, with cost.”

The plaintiff has objected to the motion and the matter was fixed for hearing. On the said date, counsel for the defendants informed the court that he was not too happy about the way the plea in limine had been couched and that his contention was in fact that the plaint should be dismissed as the plaint is couched both in tort and in contract and that he intends to offer submissions along those lines. Counsel for the plaintiff did not react to the above, although in his submissions he highlighted that it was only then that he took cognizance of the said contentions of counsel for the defendants. Arguments were heard and I have duly considered the submissions of both counsels.

Analysis There were two limbs to the submissions of counsel for the defendants.

First, it is the contention of counsel for the defendants that the plaintiff has averred that the plaint discloses that the parties had entered into an agreement pertaining to a debt whereas at paragraph 6 of the plaint it has been averred that “Plaintiff values the prejudice suffered by her as a result of defendants’ wrongful acts and doings at Rs. 819,000…” and he argued that “at no time is the plaintiff saying that it is because of a breach of contract or because there was an acknowledgement which was entered into by both parties for the repayment of a debt and I am claiming that sum.”

Counsel for the plaintiff for his part submitted that the present action has been entered on the basis of a contract as averred in the plaint and that the plaint should be looked at in its entirety when considering the order prayed for. The acts and doings averred at paragraph 6 are in respect of the “l’inexecution d’un contrat”. The paragraph of the plaint cannot be taken in isolation. He therefore submitted that there was no cumul and that the point raised by counsel be set aside.

3 After assessing the above and perusing the plaint, I find that it is clearly set out at paragraph 3 of the proecipe that the present action has been entered against the defendant for a breach of undertaking. I further find that the words “acts and doings” at paragraph 6 do not in any way connote to the present action being based on tort. As rightly submitted by counsel for the plaintiff, the present plaint should be looked at in its entirety and accordingly, I find that there is no ambiguity that the present action is based on contract.

In the second limb of his submissions, counsel for the defendants highlighted that if the present action is based on contract then the plaintiff is precluded from claiming legal costs as she is bound by the contract. He further submitted that the court will be able to adjudicate on such issue only after having gone through the contract.

Counsel for the plaintiff rested his submissions on the provisions of Article 1150 of the Civil Code which stipulates that “Le débiteur n’est tenu que des dommages intérêts qui ont été prévus ou qu’on a pu prévoir lors du contrat, lorsque ce n’est point par son dol que l’obligation n’est point executé.” He submitted that “the principle in our law is that when there is a contract, when there is a breach of contract, il y a un manquement dans une obligation contractuelle, on peut demander des dommages intérêts et ces dommages intérêts doivent être des dommages inérêts qui sont prévisibles au moment du contrat and in any contract, Your Honour, it is my humble submission that legal cost is something which is prévisible” as it is implied that the parties may seek legal redress in case of breach.

I have given due consideration to the above and I find that it is premature at this stage for the court to rule on whether legal costs are due and demandable. As rightly pointed out by counsel for the defendants, since we are in the realm of contract, the court needs to assess the real intention of the parties under the contract before making any pronouncement on the issue and this will be possible only if and when the agreement is placed before the court.

For the reasons given above therefore, the plea in limine is set aside with costs.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 23 June 2020