Supreme Court of Mauritius, 26 février 2020, 2020 INT 33 – Murday M.V. v Doomun T.

1 Murday M.V. v Doomun T.

2020 INT 33

Cause Number 2016/10

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

Mr. Marday Veeren Murday

Plaintiff

v.

Mr. Tirkissoon Doomun

Defendant

Judgment

Plaintiff is allegedly the owner of a portion of land of an extent unspecified in the District of Plaines Wilhems, place called Camp Fouquereaux more fully described in Volume 1571 No.65. Defendant is allegedly the owner of a portion of land contiguous to that of the Plaintiff. Paragraph 3 of the plaint is reproduced below: “3. Plaintiff avers that the Defendant has without any right title or capacity illegally, unlawfully and without the consent of the Plaintiff caused a wall in blocks

2 and cement to be built on the land of the Plaintiff thus encroaching on Plaintiff’s land in an extent of 88 square meters.” Plaintiff avers that despite the fact that frequent amicable requests were made to Defendant to remove the said wall constructed on his land and to restore the land to its original state, he has up to now failed to do so although a mise en demeure was served upon him in that respect on 19 May 2006. Plaintiff has averred that by Defendant’s wrongful acts and doings he has suffered damage and prejudice in the sum of Rs.200, 000. He is, therefore, moving for a judgment condemning and ordering Defendant to restore Plaintiff’s land to its original state and this within a delay to be fixed by the Court and in default of his not doing so after the expiry of the said delay, authorizing Plaintiff to do so at Defendant’s costs. Defendant has denied liability in his plea by relying to some extent on the findings of a Sworn Land Surveyor. It is pertinent and imperative to note that Plaintiff’s said plot of land of an extent unknown has not been subjected to any survey by his Sworn Land Surveyor in relation to the above averments which is the cause of action before this court and as such, findings of one or more Sworn Land Surveyors cannot be established in evidence as part of his case as no survey of the land in lite was averred in the plaint in the first place. It is of cardinal importance to note that it is trite law that each party is bound by its pleadings and cannot travel outside. It is appropriate to quote an extract from the case of New Beau Bassin Co-operative Store v Juggroo [1980 MR 320] applied in Gheesah I.M. v The Road Transport Commissioner, National Transport Authority & Anor. [2016 SCJ 77], where it was held as follows:- “A ‘cause of action’ is constituted by the averment of facts which, if denied, require to be proved to enable a Plaintiff to obtain the remedy he seeks. The nature and extent of the remedy sought is a legal consequence of those facts and, as such, is a matter of law which the Court has to apply. Pleadings, therefore, are designed to aver, not the law, but the facts which constitute the ‘cause of action’.”

3 Thus, based on the material/essential facts averred in the plaint alone given that Plaintiff has failed to aver not only the extent of his property but also that an encroachment of the extent of 88 square meters was as per the survey carried out by his Sworn Land Surveyor, it cannot be concluded that there has been an encroachment by Defendant on Plaintiff’s land by the concrete wall erected by the said Defendant. I take the view that the fate of the present case is compellingly linked with a survey exercise in the form of a memorandum of survey pursuant to the Land Surveyors Act (the Act) in force at that particular point in time which is deemed to have not been done given the tenor of the averments of the plaint so that no weight can be attached to the evidence adduced in the absence of such survey having been averred in the plaint. Thus, any evidence adduced by Plaintiff is bound to be uncertain as he cannot rely on the findings of his surveyor in Court because he would then be travelling outside the averments of his plaint and as such he is bound to have acted in violation of Sections 9 and 10 of the Act. It is imperative for the court to make a finding in relation to the boundaries of the land belonging to the Plaintiff on the one hand let alone that its extent itself has not been averred in the plaint and that belonging to the Defendant and the other adjoining owners on the other (see – Gungah P.&Ors. v Mrs. Widow Vassoo Mootoosamy & Ors. [1999 SCJ 301]. An excerpt from Dulloo B v P.Ng King Man & Anor. [2002 SCJ 108] is directly in point: “(…) a survey under section 9 of the Act is to ascertain the boundaries of the land of the owner requesting that exercise and a survey cannot be effected along one side only. It concerns all adjoining neighbours as the boundaries of each one of them must be ascertained. This is why the legislator has provided that the neighbours must be served personally with the notice; they must produce their title deed and they must be asked at the end of the survey if they have any objection or comments. It was further submitted by learned counsel for the respondents that the trial court was entitled to rely on the oral testimony of Mr. Dumazel to conclude that there was an encroachment. We do not agree that the oral evidence of Mr. Dumazel can be substituted to the memorandum of survey as provided by section 11 of the Act. Furthermore, since Mr. Dumazel failed to comply with section 9 of the Act, the whole survey exercise i s a nullity.”(emphasis added)

4 In the same breath, the essential/material facts have not been averred with a sufficient degree of specificity in order to formulate a complete cause of action against the Defendant but instead reliance is being placed on the evidence adduced at the trial to fill those gaps. At this particular juncture, it is apposite to refer to the case of Gungadin J. v The State of Mauritius Anor. [2015 SCJ 193] where it was tersely stated that to decide as to whether a plaint discloses a cause of action, the essential averments contained in the plaint with summons will have to be examined closely. After having complied with that exercise, the matter was set aside without recourse being had to particulars in order to render valid or to cure that otherwise invalid cause of action. This is because, it is not the function of particulars to take the place of essential averments in the plaint in order to fill the gaps to make good an inherently bad plaint (as per Scott L.J. in Pinson v Lloyds & National Foreign Bank Ltd. [1941] 2 KB 72 at 75) ; see also – Charlie Carter Pty Ltd v. The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 419 and H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181 at [13] – [23] which pertain to a Common Wealth jurisdiction namely Australia derived from the English rules of procedure like ours.) – otherwise any bogus or nonsensical plaint will be endlessly cured by way of particulars which is against the overriding principle of procedural fairness ensuring proportional expenses and thus undermining faith in our civil justice system as fundamentally defective plaints would de facto be non-existent. This is because the purpose of particulars is to define the generality or vagueness of material facts already pleaded with a sufficient degree of specificity to convey to the other party the case that he has to meet by the evidence ex facie the plaint on the basis of the facts pleaded which if proved, are sufficient to establish the cause of action relied on (see – Danjoux v Partnership Bangaroo – Danjoux and Cie [2001 MR 64] ; Spedding v. Fitzpatrick (1888) 38 Ch.D. 410; 59 l.t.492, C.A. ; Cassim (supra) and Premchand I. & Ors. v. Jagoo A.R. & Ors.[2013 SCJ 184]). Thus, particulars form part of the pleadings as a matter of concept only and no more. Now, the provision of the law regulating the contents of a plaint is provided by Rule 3(1) (b) of the Rules of the Supreme Court 2000 as follows:

5 “3. Contents of plaint with summons (1) A plaint with summons shall – (a) (…) (b) State the substance of the cause of action; (…)”

Given that our District, Industrial and Intermediate Court Rules 1992 are silent on that issue, we follow Supreme Court Rules for guidance as no repugnancy whatsoever is being caused to our rules of court (see – Jhundoo v. Jhurry[1981 SCJ 98]).

An excerpt from the case of Mauritius Commercial Bank Limited v The Mauritius Union Assurance Company Limited [2010 SCJ 97] affords a useful illustration of the term “substance of the cause of action” meaning all material facts necessary for the purpose of formulating a complete cause of action as reproduced below:

“ Having found that the requirement of our relevant Supreme Court Rule that the plaint “ shall state the substance of the cause of action” has been satisfied, (…)The defendant is entitled to know what it is that the plaintiff alleges against him…….” in Odgers on the Principles of Pleadings and Practice, under the heading “The function of Pleadings” or “Indeed a plaintiff need not plead law, yet it is his duty to state with precision all the material facts “necessary for the purpose of formulating a complete cause of action”, referred to in A.Z.A.A. Cassim v The United Bus Service Co. Ltd [1986 MR 242].”

Moreover, Rule 13 of the Rules of the Supreme Court 2000 provides that:- “Every pleading shall clearly and distinctly state all matters of fact that are necessary to sustain the plaint, plea or counterclaim as the case may be.” Indeed, the cursus of our case law shows a rigorous application of Rule 3(1) (b) because procedural fairness imposes on the Plaintiff an undeniable duty to inform the Defendant in a concise and precise manner what it is that the Plaintiff is alleging against him. It boils down to mean that “a cause of action” comprises of “every fact

6 which is material to be proved to enable the Plaintiff to succeed; in other words, every fact which, if traversed, the plaintiff must prove to obtain judgment” (see- Heera v Ramjan & Ors.[1976 MR 220]) “so that a plaint which will not aver all material facts would, therefore, not disclose a cause of action” (see – Geerjanan P. v The Mauritius Commercial Bank Ltd [2006 SCJ 320], Compagnie Mauricienne de Textile Limitée v. Scott Shipping International Ltd.[2015 SCJ 8], Metex Trading Co.Ltd. v The State of Mauritius & Ors.[2014 SCJ 219], Constantin Roland v Jhuboo Scilla Par Vaty [2014 SCJ 221] and Tostee J.Y. v Property Partnerships Holdings (Mauritius) Ltd [2015 SCJ 41] ).

As explained by the learned author Odgers on High Court Pleading and Practice 23 ed. at page 124:

“The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings interchanged between the parties should be conducted according to certain fixed rules (…)” (emphasis added). Indeed, the case of Tostee (supra) has highlighted the importance of pleaded facts which reads as follows: “The case of Ramjan v Kaudeer[1981 MR 411][1981 SCJ 387] may also be referred to whereby the court had relied upon cases of Chetty v. Vengadasalon[1901 MR 22], Deena v. Malaiyandee 1940 Pt.II MR 156 and Ramdharry v. Dhumun[1942 MR 108] as being examples of judgments which have been quashed on appeal on the ground that the decisions were based on issues which did not appear in the pleadings.

7 The case of Ramjan v Kaudeer (supra) further referred to certain passages of Bullen and Leake, and Jacobs Precedents of Pleadings 12 th Ed. which were quoted in the judgment of Jagatsingh and Walter v. Boodhoo (supra) and explained that once a party has stated the facts on which he relies, these facts are binding and the Court cannot ground its judgment on other facts which may come to light in the course of the trial” (emphasis added). The word “material” means those facts, which are necessary for the purpose of formulating a complete cause of action, and if any one ‘material’ fact is omitted, the statement of claim is bad (see – Odgers Principles of Pleading and Practice, 22 ed. at p.98; Bruce v Odhams Press Ltd [1936 1 KB, at p. 697]. Odgers (supra) at p.100 goes on to state that: “Each party must state his whole case. He must plead all facts on which he intends to rely, otherwise he cannot strictly give any evidence of them at the trial. The plaintiff is not entitled to relief except in regard to that which is alleged in the pleadings and proved at the trial (per Warrington J. in Re Wrightson [1908] 1 Ch. at p. 799)”. The observations of Lord Esher M.R. in Read v. Brown (1888) 22 Q.B.D. 128 at page 131 cited with approval in the case of Premchand I. & Ors.v Jagoo A.R. & Ors.[2013 SCJ 184] further illustrates the meaning of “material facts” as reproduced below: “It has been defined in Cooke v. Gill (Law Rep.8 C.P.107) to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

8 This is in line with the reasoning in the case of Compagnie Mauricienne de Textile Limitée (supra). Thus, to prove liability, Plaintiff cannot adduce evidence to perfect that lack of precision in the material facts nor rely on particulars to fill those gaps. Therefore, the threshold needed to be reached in order to formulate a complete cause of action cannot be based on a mere subjective assumption as above which is necessarily obscure and useless. As pointed out by the learned author Odgers on High Court Pleading and Practice 23 ed. at page 145 at para. (iv): “In the first place, material facts must be stated clearly and definitely. Be as concise as you can, provided you do not thereby become obscure. Pleadings are useless unless they state facts with precision.” For the reasons given above, in view of the factual flaws found in the Plaintiff’s action namely lack of precision or specificity as regards the material facts averred which is an imperative of the law, this omission has resulted into a defective plaint. Thus, being in duty bound, I dismiss the Plaintiff’s action with costs.

S.D. Bonomally (Mrs.) (Magistrate) 26.2.2020