Supreme Court of Mauritius, 28 avril 2026, 2026 INT 99 – Yadhauv JOGOO & Anor v City Council of Port Louis

Yadhauv JOGOO & Anor v City Council of Port Louis

2026 INT 99

THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) Cause No.: 1271/2012 In the matter of:

1. Yadhauv JOGOO 2. Deepa JOGOO

Plaintiffs v

City Council of Port Louis Defendant

RULING In a second amended proecipe (the proecipe) dated 14 th August 2025, Plaintiffs are praying for relief from Defendant in relation to a road which was tarred on land belonging to them. In a fifth amended plea dated 25 th November 2025 (the plea), Defendant has raised the following plea in limine litis (PILL): “ A. The present action is time barred. B. The plaint cannot be entertained by the Court as other parties have not been put into cause. C. Plaintiffs have failed to comply with the requirements of the Local Government Act inasmuch as they have failed to give the Defendant one month’s prior written notice of the subject-matter of the complaint and the relief claimed, before instituting the present proceedings. In the circumstances, the Defendant moves that the 2 nd amended plaint be dismissed with costs.

D. Plaintiffs have failed to comply with the requirements of the Local Government Act inasmuch as they failed to institute legal proceedings against the Defendant within 2 years of the date of the fact, act or omission having given rise to such action. The Defendant therefore moves that the 2 nd amended plaint be dismissed with costs. E. The present action against Defendant is misconceived and flawed inasmuch as it does not disclose any cause of action against the Defendant; the moreso that the Defendant is being sued in its personal capacity for “faute” and that ‘no lien de preposition entre commettant et preposé(s)’ has been averred. The Defendant therefore moves that the 2 nd amended plaint be dismissed with costs. F. The Defendant avers that ex facie the pleadings, the present action against it is in breach of Section 4(1) of the Public Officers Protection Act. Being time barred, the Defendant therefore moves that the 2 nd amended plaint, be dismissed with costs. G. The Defendant avers that the present action is in breach of Section 4(2) of the Public Officers Protection Act inasmuch as no written notice of action/suit (“mise-en- demeure”) was served upon the Defendant. The Defendant therefore moves that the 2nd amended plaint, be dismissed with costs.” The case was called for arguments on the PILL and learned counsel appearing for Defendant informed Court that, whilst reserving his right to raise all the other PILL, he was insisting on PILL E only at this stage. Analysis This Court has given due consideration to arguments offered on behalf of both Plaintiffs and Defendant. The cause of action being in issue, this Court finds it apt to reproduce the proecipe: “ 1. Plaintiffs are the owners of an immoveable property of the extent of 12 ½ perches situate at Tranquebar, Port Louis duly transcribed in the Volume 7532 No. 50. 2. Defendant is the Municipal Council in charge of the District of Port Louis and is as such responsible for the general infrastructures and smooth running of the aforesaid district. 3. Plaintiffs avers that the Municipal Council has illegally, unlawfully and without any title and/or capacity tarred a road of an extent of 59.46m² on the land belonging to the Plaintiffs. 4. Plaintiffs therefore avers(sic) that the Defendant have encroached on Plaintiff’s property the extent of 59.46m².

5. Plaintiff avers that the acts and doings of Defendant amount to ‘faute’. 6. n(sic) the circumstances, Plaintiff therefore prays from this Honourable Court for a judgment condemning and ordering Defendant to: – (i) Remove any road created on Plaintiff’s land by Defendant. (ii) Reinstate the land in the state it was before Defendant tarred a road of an extent of about 59.46m² on the said land. (iii) Pay damages in the sum of Rs. 2,000,000/- to Plaintiffs. (iv) Any other such Order as the Court deem fit. WITH COSTS.” This case is being heard anew following an order from the Supreme Court dated 21 st

April 2021, in an appeal, for the case to be heard and disposed of within the shortest delay. The present proceedings are fresh proceedings before a differently constituted bench and parties are required to conduct their case from scratch for determination. At the outset, this Court wishes to reiterate firstly, that for the purposes of arguments in limine litis, as held in Rama v Vacoas Transport Co. Ltd [1958 MR 184], “Objections cannot be heard in limine unless the objector accepts – for the purposes of arguments only – all the facts alleged by the plaintiff but argues that, even accepting them, his opponent cannot succeed. Where the objection is based on disputed facts the court must hear evidence before it can rule on the point in law; the objection cannot be taken in limine” (underlining mine). Secondly, it is a settled principle that parties in civil proceedings are bound by their pleadings. In S. A. Jaumdally & Anor v M. S. E. N. Appadoo [2024 SCJ 342], it was held that “…it is a cardinal principle that every pleading must state material facts concisely in a summary form, that is to say facts necessary for the purpose of formulating a complete cause of action. It has also been held that if any one material fact is omitted, the statement of claim is bad: Odgers on Pleadings and Practice, 20th edition, p.89.”. Defendant, the City Council of Port Louis, is a local authority by virtue of section 2 of the Local Government Act. Section 3(2) of the said Act prescribes that every local authority shall be a body corporate. It has not been averred in the proecipe that Defendant was the ‘commettant’ of its agents or servants or ‘préposés’ in the commission of the alleged ‘faute’. From the proecipe, Defendant’s ‘faute’, under Article 1382 of the Code Civil Mauricien, for its acts and doings is being invoked. A plethora of cases addresses the way in which body corporates can be sued in the case of ‘faute’. In S. Coothen v The Ministry of Housing and Lands & Ors [2007 SCJ 125], it was observed that “…the Ministry and the State are both corporate entities which can only

act through agents or servants and that, under the general law, they may become liable in tort only in their capacity as master (commettant) pursuant to article 1384 al. 3. Furthermore, such liability can be incurred only where the agents or servants (préposés) have rendered themselves liable for ‘faute’ or for ‘negligence” or ‘imprudence” pursuant to article 1382 or 1383 of the Code Civil.”. The following passage in O.P.S Ltd v District Council of Rivière du Rempart [2024 SCJ 86] is also noteworthy: “Indeed it is only when the acts complained of are those of a ‘préposé’ or agent of the corporate body that the latter can be sued vicariously as ‘commettant’. In Peerally v Commissioner of Police & Town Clerk, Municipal Council Beau Bassin/Rose-Hill [2007 SCJ 275] the Court observed that officers of the Municipal Council are “employees and préposés of the Municipal Council which is the body corporate that is amenable to justice as commettant” for the acts and doings of its employees. On the other hand, in Cono Cono & Co Ltd v Black River District Council [2015 SCJ 212], the local authority, being the body responsible for considering permit and licence applications, was sued directly as the tortfeasor, under Article 1382 of the CCM, for having turned down an application for a development permit.”. In Cono Cono (supra), the cause of action against the local authority stemmed from an administrative exercise of the statutory powers of the local authority. In the present case, the ‘faute’ of Defendant is the tarring of a road of an extent 59.46m² on a land allegedly belonging to Plaintiffs. Clearly, Defendant as a body corporate must have acted through its ‘préposés’ in the tarring of the said road. Defendant should have therefore been sued as ‘commettant’ in the present matter for the ‘faute’ invoked. The legal argument raised in PILL E is not disputed by learned counsel appearing for Plaintiffs. No submission was offered to the Court in reply to Defendant’s contention that Defendant is being wrongly sued in its personal capacity for ‘faute’. He argued that the point is premature for this Court to determine and that he needs to call the representative of Defendant on personal answers. Learned counsel for Plaintiff also submitted that the present case was heard by the Intermediate Court, went on appeal and remitted back to the Intermediate Court. He made reference to much earlier sittings where he appeared as counsel for Plaintiff and discussions which he had with late senior counsel, who then appeared for Defendant in the case. This Court fails to see how calling Defendant’s representative on personal answers will cure the absence of any averment of ‘lien de préposition’ between Defendant as ‘commettant’ and its ‘préposés’ in the proecipe in the crafting a complete cause of action against Defendant.

The Supreme Court, in P. C. Lutchman & Ors v Beau Plan Milling Company Ltd [2016 SCJ 170], observed: “…The State, and any other party for that matter, must be made aware that it is being sued as a commettant so that it knows what case it has to meet. The failure to make such an averment in the 2nd plaint is not a mere technical procedural defect. Here its is clear that the State is being sued directly as a tortfeasor. All this goes to the root of the case and is fatal.” (underlining mine). In light of all the above, this Court finds that, as presently styled, the proecipe does not disclose any cause of action against Defendant in the absence of any ‘lien de préposition’ between Defendant as ‘commettant’ and its ‘preposé(s)’. PILL E is upheld and the proecipe is dismissed, with costs.

K. Poollay Mootien Magistrate 28 th April 2026