Supreme Court of Mauritius, 6 février 2020, 2020 INT 43 – TOGUI LTD V EMCAR LTD

1 TOGUI LTD V EMCAR LTD

2020 INT 43

CN:- 917/16 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Togui Ltd Plaintiff v/s Emcar Ltd

Defendant RULING The plaintiff is claiming from the defendant the sum of Rs. 323,849.15 representing an unpaid amount for goods ordered and delivered to the defendant, as more fully particularised in the plaint, together with interest, attorney’s commission plus VAT thereon and costs.

The defendant has denied being indebted in the sum claimed or any sum whatsoever and has in its plea averred that due to plaintiff’s poor performance of its contractual obligations towards the defendant, it is in fact the latter who has suffered material loss and moral damages, for which the plaintiff is liable. For such reasons the defendant is moving that the plaint be dismissed.

During trial, the representative of the plaintiff deposed under oath. After her examination in chief, she was duly cross examined by Learned Counsel for the defendant. In re- examination, Leaned Counsel for the plaintiff sought to make the witness produce a document from one Mr. Phutully, witnessing the fact that prior to the notice mise en demeure being sent to the defendant, claims for payment had been made by the plaintiff company to the defendant. Learned Counsel for the defendant objected to this course of action on the ground that the plaintiff cannot adduce such documentary evidence in re-examination, the moreso as the purpose of re-examination is to clarify an answer in cross examination and not to adduce new evidence. Learned counsel for the plaintiff insisted on the production of

2 such document arguing that it was related to an issue which was raised in cross examination. The court was thus invited for a ruling on the issue.

I have gone through the proceedings dated 18 November 2019. I note that it came out from the witness in cross examination that after the goods were duly delivered to the defendants, she regularly followed the payment of the remaining 20% of the contract price which was due to be paid by the defendant within 30 days after delivery of the goods and it is also clear from the evidence on record that this was done prior to the service of the notice mise en demeure being effected on the defendant. I am therefore of the view there is no ambiguity that has arisen during cross examination which would warrant the production of the documents to clarify same in re-examination. In fact, the record shows that it is not disputed by the defendant that prior to a mise en demeure being served on them, the plaintiff had been claiming the sum due from the defendant.

At this juncture, I find it apposite to refer to the following paragraphs of Phipson on evidence, 9th Ed. at page 506 which read as follows:

“The right to re-examine exists only when there has been cross-examination, and must be confined to the explanation of matters arising thereon. … Thus, if the witness has admitted making a former inconsistent statement, he may in re-examination explain his motives for so doing.” In the case of R v Szach (1980) 23 SASR 504 the Court held: “Re – examination is permitted for the purpose of explaining matters arising out of the cross – examination. It is to be permitted "whenever an answer or answers given by a witness in cross – examination would, unless supplemented or explained in the manner proposed by the re – examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourable to the side responsible for calling the witness, and that represents a distortion, or an incomplete account of the truth as the witness is able to present it.”

In the present case, I find that the evidence of the witness on the purported issue is clear and unambiguous. For such reasons therefore the objection raised by Learned counsel for the defendant is upheld.

3 I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 06 February 2020