Supreme Court of Mauritius, 10 juin 2020, 2020 INT 65 – Gheeseeawon A.R. v The State Trading Corporation

1 Gheeseeawon A.R. v The State Trading Corporation

2020 INT 65

Cause Number 258/2014

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:-

Abdool Reshan Gheeseeawon

Plaintiff

v.

The State Trading Corporation

Defendant

Judgment

Plaintiff’s claim from Defendant in this plaint in the sum of Rs.52,400/- concerns his alleged entitlement to a car Allowance in lieu of duty free facilities since July 2009 as per the Pay Research Bureau (hereinafter referred to as PRB) Report of 2008 following which he was requested to reimburse same by Defendant as from August 2013 which he agreed under protest being employed with Defendant as Technical Officer since June 1987. At the time of the lodging of the plaint namely on 3 March 2014, Plaintiff was a Senior Technical and Facilities Officer earning a monthly salary of Rs.46, 480. It significant to reproduce paragraph 9 of the plaint as follows: “9. Plaintiff avers that a Notice Mise En Demeure claiming the said sum has been served on the Defendant but he has failed to comply with same.” The plea of Defendant is essentially that according to the PRB Report 2008 Recommendation 5, officers drawing a monthly salary of Rs.33, 750/- which Plaintiff was drawing at that time was not eligible for a car allowance in lieu of duty free

2 remission so that following a misinterpretation of the above provision, he among eleven officers who were incorrectly paid such an allowance were requested to reimburse same which Plaintiff did under protest. Therefore, his claim is unjustified and made in bad faith and should be dismissed because he is not entitled to the said allowance as he is not eligible for a car allowance in lieu of duty free remission. It is significant to note that in the course of the trial the “Notice” or “Mise En Demeure” has not been produced in Court and no date has been given as to when it was served on Defendant in line with the averments at paragraph 9 of the plaint as reproduced above. At this stage, without going into the merits of the case I take the view that this case should be dismissed for the reasons given below. At this particular stage, I find it apposite to reproduce Section 13 of the State Trading Corporation Act 1982 hereinafter referred to as (STC Act) which covers the issue of immunity: “13. Protection from liability (1) No liability civil or criminal, shall attach to a member or officer or to the Corporation in respect of a loss arising from the exercise in good faith by a member or an officer or the Corporation of his or its functions under the Act.” True it is that Section 13 of the STC Act does not contain additional provisions as regards immunity in other subsections as provided in other Statutes akin to the present one namely “This section shall be in addition to and not in derogation from the Public Officers’ Protection Act, and for the purposes of that Act, every member shall be deemed to be a public officer or a person engaged or employed in the performance of a public duty.” However, in the same breath, the purport of some provisions in the STC Act, for instance, Sections 14 &20 compellingly show that Section 13 of the STC Act shall be in addition to and cannot be in derogation from the Public Officers Protection Act. Sections 14 and 20 of the STC Act stipulate the following: “14. Powers of Minister The Minister may, in relation to the exercise of its powers by the Corporation under this Act, give such directions of a general character to the Corporation, not

3 inconsistent with this Act, as he considers to be necessary in the public interest, and the Corporation shall comply with these directions. 20. Transfer of assets and liabilities (1) The Government shall, on a day to be fixed by regulations made by the Minister, transfer to the Corporation such assets as may be specified in the regulations. (2) A contract, entered into by or on behalf of Government and specified by the Minister, shall have effect as if it has been entered into on the same terms and conditions by the Corporation and a right, obligation, liability or arrangement subsisting in favour of or against Government shall continue to exist in favour of or against the Corporation.” Section 2 of the STC Act has defined “Corporation” as follows: “2. Interpretation In this Act – (…) “Corporation” means the State Trading Corporation established under section 3;” Now Section 3 of the STC Act provides: “3. Establishment of Corporation (1) There is established for the purposes of this Act, the State Trading Corporation. (2) The Corporation shall be a body corporate.” As per Section 5(1) of the said Act, the “Corporation” shall be administered by a Board. Now, Section 4 of the Public Officers’ Protection Act 1957 provides: “4. Limitations of actions (1) Every civil or criminal action, suit, or proceeding, by a person, other than the State, for any fact, act or omission, against a –

4 (a) public officer in the execution of his duty; (b) person engaged (c) or employed in the performance of any public duty; or (d) person acting in aid or assistance of the public officer or person mentioned in paragraphs (a) and (b), shall, under pain of nullity, be instituted within 2 years from the date of the fact, act or omission which has given rise to the action, suit, or other proceeding. (2) (a) No civil action, suit or proceeding shall be instituted, unless one month’s previous written notice of the action, suit, proceeding and of the subject matter of the complaint, has been given to the defendant. (b) No evidence shall be produced at the trial except of the cause of action as specified in the notice. (c) In default of proof at the trial that the notice under paragraph (a) has been duly given, the defendant shall be entitled to judgment with costs.” Thus, it is abundantly clear that in view of the above provisions, The State Trading Corporation necessarily operates as a body corporate through its Board pursuant to the STC Act so that it is deemed to act as a natural person/ Public Officer and given that Section 13 of the STC Act should be read in conjunction with and not in derogation from Sections 4(1) & 4(2) (a) of the Public Officers’ Protection Act 1957 hereinafter referred to as “P.O.P.A.” given that those provisions have to be interpreted in such a manner so as to be in harmony with each other in order not to destroy the coherence of our law. It is significant to quote the headnote in the Supreme Court case of Regina v Shummoogum [1977 MR 1] which reads as follows: “When we borrow a piece of legislation from a foreign country, it ceases to be foreign law and becomes Mauritian law; it should be interpreted in the light of the general principles applicable to other statutes in pari materia and in such a way that it does not destroy the coherence of our law”. It is appropriate to quote an extract from the case of D S A Company Ltd v The Ministry of Public Infrastructure & Anor and Super Construction Co Ltd v State of Mauritius [2013 SCJ 485] which is reproduced below:

5 “17.7 Our law does neither prohibit nor inhibit a citizen from bringing an action against the State. It simply ensures that he does so within the framework laid down in the law. The legal framework is explicit in the Civil Code, the Public Officer’s Protection Act and the State Proceedings Act which are interpreted in the light of our constitutional provisions: see Chadien v The Commissioner of Police and The State [2013 SCJ 351].” It is also worthy of note that in D.S.A. Company Ltd (supra), it was held that section 4(1) of the POPA applies not only to tort but also to contract and that it does not violate the Constitution.

Be it as it may, it is apposite to quote an extract from the words of Lord Rodger in the Privy Council decision in Mauvilac Industries Ltd. v Ragoobeer [2006 PRV 33] – “The Courts must respect the policy which lies behind the time-limits that the legislature has imposed.” There are no averments in line with the evidence adduced to show that the statutory delay of one month has been complied with as regards the written notice being served on the Defendant prior to the present action being instituted. Therefore, it is abundantly clear that a breach of Section 13 of the STC Act has to be compellingly stretched to be equally a breach of Section 4 (2) of the Public Officers Protection Act and as such the statutory delay of one month’s notice which is mandatory is in relation to the specified sum claimed. At this stage, I find it appropriate to quote an excerpt from the case of China International Water and Electrical Corporation v The State of Mauritius & Anor. [2017 SCJ 3] on the express statutory provisions of Section 4(2)(a)(b) and (c) of the Public Officers Protection Act as follows: “It is clear from the provisions of section 4(2)(a)(b) and (c) above, that the service of the notice must mandatorily be in the terms prescribed both as regards the nature of the action and its subject matter. These are not mere technical requirements but constitute a precondition for instituting civil proceedings against the State and its préposés.”

6 Moreover, the requirement of Section 4(2) of the P.O.P.A. is peremptory in nature as stressed in Gunesh v The National Transport Corporation and Ors [2010 MR 70] and endorsed in Bhoonah J. v Mauritius Revenue Authority[2017 SCJ 53] an extract of which is as follows: “ (…) the requirements of section 4(2)(a) of the Act which are quite specific: it enjoins the plaintiff to notify the defendant of the actual action, suit or proceeding that it will take against the defendant. The notice must set out the claim in similar terms to those in the plaint with summons, covering the same subject matters. It is clear from the case of Gunesh v The National Transport Corporation & Ors (supra), with which I respectfully agree, that although there the main issue was compliance with the delay to enter the case, it was clearly stated that the notice should mirror the plaint, the more so that the law clearly and unequivocally provides that the plaintiff will not be allowed to adduce evidence of what has not been averred in the notice, and that would include the items of damages claimed (vide also Hemraz Gobin v The Registrar General [2006 SCJ 128], in the same sense)”]. For the reasons given above, the Plaintiff having failed to give the mandatory written notice of one month of his action to the Defendant prior to the lodging of his plaint is compellingly fatal. Accordingly, the plaint is dismissed with costs.

S.D. Bonomally (Mrs.) (Magistrate) 10.6.2020

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