Supreme Court of Mauritius, 10 juillet 2020, 2020 INT 89 – ANGLO AFRICAN LTD V UNIVERSITY OF TECHNOLOGY MAURITIUS

1 ANGLO AFRICAN LTD V UNIVERSITY OF TECHNOLOGY MAURITIUS

2020 INT 89

CN:- 389/19 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Anglo African Ltd Plaintiff v/s University of Technology Mauritius Defendant RULING In a proecipe dated 18 November 2015, the plaintiff is claiming damages from the defendant in the sum of Rs. 1,924,000, excluding VAT, together with costs and interests as from the date of the service of the mise en demeure dated 29 January 2015, for an alleged breach of contract.

The defendant has put in a plea in limine litis which reads as follows:

“The Defendant moves that the case be set aside on the ground that there is no cause of action since there is no valid contract between the parties. At the time the letter of award was issued to the plaintiff, the bid validity period had lapsed and no award could have been validly made.”

The plea in limine is being resisted by the plaintiff and the matter was set for hearing. During the hearing, counsel for the defendant sought to adduce some evidence in relation to the plea in limine. Counsel for the plaintiff objected to such course of action and he relied on the case of Rama v Vacoas Transport Co. Ltd 1958 MR 184 to sustain his objection. He submitted that the golden rule is that a plea in limine should be thrashed out on the basis of the existing pleadings and on the assumption that the facts averred by the plaintiff in the plaint are true. Thus, the defendant cannot adduce evidence on the bid validity period. He submitted that this did not form part of the plaint and that it goes against the admitted portions of the plaint. He highlighted that any evidence adduced would go directly to a hotly contested issue as per the pleadings.

Counsel for the defendant insisted on a minimal amount of evidence being adduced in court. She submitted that the bid validity period is prescribed in law and in the bidding documents. Hence, the limited amount of evidence that is intended to be adduced on the bid validity period during which the award should have been made, might actually dispose of the case. She contended that the evidence that is sought to be adduced would be limited to the relevant dates and period which are relevant in order for the court to determine, at the outset, the validity of the contract on which the plaintiff is basing his claim. She rested her submissions on the authority of Avigo Capital Managers PVT Ltd v Avigo Venture Investments Limited (in liquidation) [2019] SCJ 158 which was fully endorsed in the case of Partners in Performance Global Solutions v. Endeavour Mining Corporation [2020] SCJ 93.

I have duly considered the submissions of both counsel. The above principles of law, as referred by each counsel in their respective submissions, are not disputed. Counsel for the plaintiff conceded in court that as a matter of principle, an insignificant amount of evidence may be produced in court in relation to a point raised in limine if such evidence could purportedly dispose of the matter and avoid protracted hearing of the whole evidence in the case – vide the case of Avigo (supra). However, he disputed the fact that any evidence should be adduced in the present case for the reasons given above.

I have duly assessed the contention of counsel for the plaintiff but I am unable to subscribe to same. I do not find that the principle as laid down in the case of Rama (supra) would be offended in the circumstances since at paragraph 7 of the plaint, it has been averred that “by letter dated 09.10.2013, the Defendant informed the plaintiff that the tender cannot be awarded due to an alleged flaw in the procedure.” [Emphasis added].

Bearing in mind the above, the fact that counsel for the defendant has expressly highlighted in court that the evidence that she is seeking to call, would be restricted to certain dates only and the fact that the bid validity period is prescribed in law, I find that the motion of counsel for the defendant should be allowed and that a minimal amount of evidence may be adduced in relation to the plea in limine.

For all the reasons given above therefore, the objection raised by counsel for the plaintiff is set aside.

I.Dookhy-Rambarun (Mrs)

3 Magistrate, Intermediate Court 10 July 2020