D. HURNAM & ANOR v THE MASTER & REGISTRAR

Transcription

1 D. HURNAM & ANOR v THE MASTER & REGISTRAR 2017 INT 254 D. HURNAM & ANOR v THE MASTER & REGISTRAR Cause Number: 1611/12 IN THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of: 1. Devendranath Hurnam also called Dev Hurnam, a British Qualified Barrister, Chief Executive of Justice and Human Rights [Action Group], Founder Leader of Peoples Force [ Truth and Justice Party] acting in his personal name and as proxy of Mr Sonalal Mudhoo 2. Sonalal Mudhoo of Royal Road, Pointes Aux Sable and of 16 Malherbes Street, Curepipe Plaintiffs v The Master & Registrar, Supreme Court, Port Louis Defendant

2 Ruling: In the Amended Plaint, the Plaintiffs are claiming from the Defendant the sum of Rs 300,000 for allegedly having refused to refund the security deposited, as a result of which the Plaintiffs aver to have suffered damage and prejudice. The Defendant has raised the following Preliminary Objections in Law: The Defendant moves that the present matter be dismissed with costs on the following grounds: 1. The action is against the Master and Registrar which is a post and it has no legal personality. 2. Persons who exercise judicial functions are exempt from civil liability for any act done in their judicial capacity. 3. The Praecipe fails to comply with section 6 (1) (b) and (c) of the Public Officers Protection Act. 4. No notice of the present action has been served on the Defendant, in breach of section 4 (2) (a) of the Public Officers Protection Act. 5. The Praecipe does not disclose an actionable wrong/cause of action by the Defendant. 6. The Praecipe constitutes an abuse of the process of the Court. In short, Miss Gareeboo, Acting Assistant Parliamentary Counsel, appearing for the Defendant, submitted as follows: In respect of the first Preliminary objection she contended that the term Master and Registrar as the Defendant is just a post, an office; and it is devoid of any legal personality since no particular individual has been identified. With regard to the second Preliminary objection, relying upon, inter alia, the case of D.Hurnam v The State of Mauritius [2003 SCJ 54], she stated that it is firmly established that in Mauritius Judges and Magistrates enjoy judicial immunity. Hence, the present matter constitutes an abuse of the process of the Court, which deals with the sixth Preliminary objection. Under the third and fifth Preliminary objections, she argued respectively that the Proecipe fails to make the averments of malicious, as required by Section 6 (1) (b) of the Public Officers Protection Act (hereinafter referred to as the POPA), and, therefore, the said Proecipe does not disclose any actionable wrong/cause of action by the Defendant. In relation to the fourth Preliminary objection, she submitted that in the letter in question forwarded to the Defendant, there is no indication given as to why Mr. Mudhoo should

3 be entitled to judgment in the present matter and, thus, no notice has been served as regard to the action made on behalf of Mr. Mudhoo. Learned Counsel resorted to numerous authorities, which were enlightening on the issues involved. On the other hand, the Plaintiff No.1 took issue with Learned Counsel for the Defendant and contended as follows: There is no authority in law which holds that an action cannot be held against the Master and Registrar. Evidence needs to be adduced before deciding on the issues. In the present case, the Master and Registrar neither assessed nor taxed costs and, therefore, she was not acting in her judicial capacity. Section 6 of the POPA does not apply, in as much as the present action has nothing to do with a decision or a judgment. The trial process is being protracted and this Court should seriously consider whether the defendant s legal advisers be awarded wasted cost. The Defendant should be ordered to file its Plea and the matter be heard as soon as possible. Determination: The Court shall thrash out each Preliminary Objection in Law in an order of convenience. Legal personality: The question which arises under this point of law is whether the Master and Registrar can sue or be sued. This takes us to Section 19 of the Courts Act which provides that, (1) There shall be a Master and Registrar of the Supreme Court who shall be a barrister of not less than 5 years standing at the bar. (2) The duties of the Master shall include (a) the conduct and hearing of all formal matters relating to cases, other than criminal matters, pending before the Supreme Court including the power to hold pre-trial conferences and the power to make such orders or give such directions for the just, expeditious and economical disposal of proceedings;

4 (b) the taxation of costs, the conduct and management of judicial sales, probate of wills and incidental matters connected therewith; (c) the dealing with matters of audit, inquiry and accounts; and (d) all such matters as may be referred to him by the Chief Justice, Judge or Court. An association can acquire corporate personality only where it is created by statute (vide: Liverpool Youth Club v R. Seessungkur [1992 SCJ 427]. Similarly, for instance, the Director of Public Prosecutions derives his authority from Section 72 the Constitution and has a legal entity. Likewise, by analogy, the Master and Registrar is endowed with the legal personality pursuant to the above-cited enactment. Miss Gareeboo referred to the case of Sullivan v Union of Artisans of the Sugar Industry [1978 MR 20]. In that case, the relevant Section of the Industrial Relations Act 1973 conferred upon a trade union all the rights and powers of a natural person upon registration. However, that case can be distinguished, in as much as it concerned the legal status of a Trade Union which was not registered, unlike the issue which the Court is concerned with in the present matter. As a result, this Preliminary Objection in Law is misconceived and the Court cannot subscribe to same. Does the Proecipe fail to comply with Section 6 (1) (b) and (c) of the Public Officers Protection Act? Although this is the third Preliminary Objection in Law raised by the Defendant, the Court finds it appropriate to consider it prior to the second Preliminary Objection in Law. To start with, the Court finds it apposite to cite the relevant provisions of the Public Officers Protection Act: Section 6 of the POPA provides that, Action against Magistrate (1) (a) Sections 4 and 5 shall apply to any civil or criminal action, suit or proceeding, brought against a Magistrate, or a clerk or officer of any district or other court, for any act done by him, or for any omission, in the execution of his office. (b) Subject to subsection (2), the plaintiff shall also expressly allege that the act was done or omission made maliciously and without reasonable or probable cause. (c) Where the plaintiff fails to prove the allegation mentioned in paragraph (b), the defendant shall be entitled to judgment with treble costs.

5 (2) (a) Any person who has been injured by any act done - (i) by a Magistrate, clerk or officer in a matter in which he has no jurisdiction or in which he has exceeded his jurisdiction; (ii) under any conviction made or warrant issued in a matter mentioned in subparagraph (i), may maintain an action without averring and proving that it was done maliciously. (b) No action under paragraph (a) shall be brought for anything done under a conviction until the conviction has been quashed by the court on appeal or otherwise. [Emphasis added] Although the heading of the above-cited Section of the POPA refers to claims mounted against Magistrates, a close reading of that Section reveals that immunity is not limited to Magistrates only, but it has also been conferred upon a clerk or officer of any district or other court. Section 19 of the Courts Act, which was quoted earlier, provides for the office of the Master and Registrar, who is an officer of the Supreme Court. Moreover, in accordance with Section 19 (2) (b) of the Courts Act, one of the duties of the Master and Registrar consists of the taxation of costs. And, Rule 2 of the Legal Fees and Costs Rules 2000 defines taxing officer as; (i) in respect of the Supreme Court, the Admiralty Court the Bankruptcy Court, the Master s Court and the Judge in Chambers, the Master; Furthermore, Section 19 of the Mauritius (Appeals to Privy Council) Order GN 59 of 1958 stipulates that, Where the Judicial Committee directs a party to bear the costs of an appeal incurred in Mauritius, such costs shall be taxed by the proper officer of the Court in accordance with the rules for the time being regulating taxation in the Court. [Emphasis added] The proper officer is, undoubtedly, the Master and Registrar of the Supreme Court of Mauritius. It is clear from a reading of Section 6 (1) (a) of the POPA that this provision embraces all the officers of any other Court and, therefore, the Master and Registrar, who is the taxing officer under the Legal Fees and Costs Rules 2000, the proper officer under Section 19 of the Mauritius (Appeals to Privy Council) Order GN 59 of 1958 and, finally, an officer of the Supreme Court pursuant to Section 19 of the Courts Act, qualifies as an officer of any other Court under the POPA. Given that the status of the Defendant falls within the purview of Section 6 (1) (a) of the POPA, therefore, the provisions of the POPA applies into the present matter.

6 Section 6 (1) (b) of the POPA specifically stipulates that it is incumbent on a Plaintiff to expressly aver that the act or omission complained of must have been made maliciously and without reasonable or probable cause. A perusal of the Amended Plaint reveals that the Plaintiffs have failed to aver that the act or omission was made by the Master and Registrar maliciously and without reasonable or probable cause. In the absence of such averment, no action would be maintainable against the Master and Registrar. Therefore, the Plaintiffs have failed to comply with the statutory requirement of Section 6 (1) (b) of the POPA. Such non-compliance of the provisions of the law renders the present action null and void. Hence, this Preliminary Objection in Law has been rightly taken. Judicial immunity: The relevancy of this Preliminary Objection in Law hinges on whether the refusal of the refund of a security for costs is a judicial function and if so, whether judicial immunity applies. (a) Is the alleged act of the Master and Registrar to refuse the refund of the security in question a judicial or an administrative one? In Mauritius, the procedure adopted for the purposes of taxing a bill of costs consists of hearing submissions of the Attorneys for both parties on the subject, which bears all the hallmarks of a judicial proceeding. The Court s view is fortified by the Footnote Nos.1 and 2 of page 199, in Administrative law Admiralty Affiliation and Legitimation Agency, Halbury s Laws of England, 4 th Edition, which runs as follows: 1 the taxation of a bill of costs by a master of the High Court is a judicial proceeding, and written statements by a solicitor in the objections lodged in the taxation are absolutely privileged (Pedley v Morris (1891)61 LJQB 21, DC), Therefore, in England the process of taxing the bill of costs by the Master is of a judicial nature. Thus, the procedure for the taxation of costs by the Master and Registrar in Mauritius being akin to that in England is, unquestionably, a judicial proceeding. The process of taxation of costs, clearly, encompasses the refusal to refund the security in question. As a result, in the present matter, at the time the Master and Registrar allegedly refused to refund the security furnished in respect of costs she was exercising her judicial function. (b) Does judicial immunity apply in the circumstances?

7 At times, guidance is sought by the Courts from the common law. Of interest is the case of Sirros v Moore [1974] 3 AER 776, where Lord Denning MR explained the need for judicial immunity at common law as follows at pages 781 and 782: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. [Emphasis added] The importance of and the need for judicial immunity was confirmed in D. Hurnam v The State of Mauritius [2003 SCJ 54], where the Supreme Court stressed that, The immunity enjoyed by Judges and Magistrates is therefore essential in ensuring freedom of thought without which there can be no freedom of judgment. Judicial immunity in fact guarantees judicial independence which is an essential prerequisite for a free and democratic state. It is because judicial officers enjoy such immunity that the State in turn cannot be held liable vicariously for the acts of a servant who is himself immune from legal proceedings. [Emphasis added] Thus, judicial immunity is based upon public policy requiring the judiciary to be free to pursue the furtherance of the administration of justice. Now, if judges and Magistrates are endowed with judicial immunity, it follows that the Master and Registrar is also eligible to same. A Magistrate and the Master and Registrar are afforded statutory immunity pursuant to two enactments, namely, Section 6 of the POPA and Article 510 of the Code de Procédure Civile. The application of the provisions of the POPA has already been dealt with above; but, as a matter of procedure and public order, Article 510 of the Code de Procédure Civile deserves to come to light. The relevant Articles of the Code de Procédure Civile provide as follows: Article 505. Les juges peuvent être pris à partie dans les cas suivants: 1. S il y a dol, fraude ou concussion, qu'on prétendrait avoir été commis, soit dans le cours de l'instruction, soit lors des jugements; 2. Si la prise à partie est expressément prononcée par la loi; 3. Si la loi déclare les juges responsables, à peine de dommages et intérêts; 4. S il y a déni de justice.

8 Article 510. Néanmoins aucun juge ne pourra être pris à partie, sans permission préalable du tribunal devant lequel la prise à partie sera portée. Article 511. Il sera présenté, à cet effet, une requête signée de la partie, ou de son fondé de procuration authentique et spéciale, laquelle procuration sera annexée à la requête, ainsi que les pièces justificatives, s'il y en a, à peine de nullité. The above provisions of the law set out the stringent procedures to be followed, which are prerequisites to the filing of a suit against a judicial officer in respect of acts and omissions committed either whilst acting judicially or in the exercise of administrative function. In order to sue a judicial officer, a Plaintiff must proceed by way of the Prise à Partie procedure. Failure to follow the specific procedures laid down by the statute renders the whole action null and void. As far as the issue of Prise à Partie is concerned, the following pertinent remarks can be referred from Code de Procédure Civile Annoté, A. Tissier, A. Darras et Louiche- Desfontaines, Vol. 2, Titre III, De la prise à partie, a. 505 : 2. L art. 505 s applique évidemment à toutes les personnes qui rendent la justice, aux juges des tribunaux civils et de commerce, aux conseillers de Cour d appel et de la Cour de cassation, aux juges de paix. 3. Jugé en ce sens que le mot juge, dans l art. 505, comprend d une manière absolue tous ceux dont le rôle est d administrer la justice. Trib. Sup. Cologne, 21 juin 1898 [S. et P ] 11. En dehors des hypothèses en vue desquelles a été organisée la procédure de la prise à partie, un juge ne peut en aucun cas, être poursuivi en responsabilité civile. 15. Il y a lieu à prise a partie en cas de dol, fraude ou concussion.- La faute, même grossière, sans dol ou fraude, ne donne pas lieu en principe à prise à partie. a.510: "Il y aurait nullité si la prise à partie était formée sans permission du tribunal devant lequel elle doit être portée. Cass., Belgique, 31 oct [D.p ]- Garsonnet, 2e édition, t.1, 147, p.239"[emphasis added] The present Plaint is grounded on faute under Article 1382 of the Civil Code. According to Article 510 of the Code de Procédure Civile, leave has to be sought from the Court where the Plaint against the judicial officer is lodged in order to set in train the ligation process. But, above all, in order to sue a judicial officer, the case must fall within the scope of one of the four instances as provided by Article 505 of the Code de Procédure Civile. These are the only circumstances where a judicial officer can be sued. In the case in hand, Article 505 Alinéas 1 and 4 of the Code de Procédure Civile do not apply in as much as the Plaintiffs have neither averred in the Amended Plaint the words dol, fraude ou concussion nor that there has been a déni de justice.

9 With regard to Article 505 Alinéas 1 and 2 of the Code de Procédure Civile, the Court has not come across any such law prevailing in Mauritius. Therefore, the Plaintiffs claim is outside the four circumstances listed in Article 505 of the Code de Procédure Civile and cannot stand. All in all, the Master and Registrar was, at all material times, exercising her judicial function and the judicial immunity applies in this case. The Notice under Section 4 (2) (a) of the Public Officers Protection Act: Section 4 (2) (a) of the POPA provides that, No civil action, suit or proceeding shall be instituted, unless one month previous written notice of the action, suit, proceeding and of the subject matter of the complaint, has been given to the defendant. Miss Gareeboo has submitted that this Preliminary Objection in law is relevant to the Plaintiff No.2 alone. She added that there is no indication as to why the Plaintiff No 2 is entitled to judgment and, hence, no notice has been served on his behalf. Quite rightly, as can be culled from the Amended Plaint, although the name of the Plaintiff No.2 has been mentioned therein, there is no apparent reason why judgment must be given in his favour. Consequently, the Amended Plaint being devoid of any reason for the Plaintiff No.2 s entitlement to judgment denotes that there is no subject matter which subsists in his case. Having omitted to mention in either of the two letters the subject matter of his complaint, he has failed to give one month s previous written notice of any subject matter of the complaint, contrary to Section 4 (2) (a) of the POPA. There is even more: Either of the two letters (Annex C and C.1) sent to the Defendant by the Plaintiff No.1 cannot amount to a Notice under Section 4 (2) (a) of the POPA given that the words malicious and without reasonable or probable cause cannot be found in the two letters. As such, no Notice has been given in relation to the subject matter of the Plaintiffs complaint and this concerns both Plaintiffs. The relevance and importance of the legal requirement is highlighted by the condition set out in Section 4 (2) (b) of the Act which provides that, No evidence shall be produced at the trial except of the cause of action as specified in the notice. In China International Water And Electrical Corporation v The State of Mauritius & Anor [2017 SCJ 3], the Supreme Court had this to say on the subject:

10 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. Failure to adhere to the strict requirements contained in the above provisions of the law entails the dismissal of the claim (vide: Société Cap Dal & Ors v The Registrar- General [2002 SCJ 58]). It is plain that there has been a breach of Section 4 (2) (a) of the POPA in the present case, in as much as the Plaintiffs have failed to give the Defendant one month written notice in the terms required under this provision of the law prior to the lodging of the present action. Does the Proecipe disclose an actionable wrong/cause of action? Miss Gareeboo submitted that the Plaintiffs have failed to aver the words maliciously and without reasonable or probable cause and, consequently, the Amended Plaint does not disclose a cause of action. In the case of Innodis Ltd v C. Madayah [2016 SCJ 284], the Supreme Court quoted with approval the meaning of a cause of action as: 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. In Geerjanan v MCB [2006 SCJ 320], the Supreme Court remarked that, a plaint which will not aver material facts would, not disclose a cause of action. Also of relevance is the case of D. Jwallaparsad v The State of Mauritius [1996 SCJ 414], where a similar issue arose and the Supreme Court pointed out the following in that matter: it was incumbent on the Plaintiff to specifically aver that the acts done or omissions of the Magistrates and/or the officers of the Courts were so done or made maliciously and without reasonable or probable cause. In failing to make that averment in the statement of claim, there is in effect no cause of action against the Defendant. In the present case, it is plain that the absence of the words maliciously and without reasonable or probable cause in the Amended Plaint is fatal because those words are material averments in order to constitute a cause of action against a Magistrate, or a

11 clerk or officer of any district or other court. It follows from what precedes that Miss Gareeboo is quite right to submit that there is no cause of action in the present matter. En passant, it is also worth noting that there is another reason to justify that there is no cause of action in the present matter. Here, the case of D. Hurnam v Mrs Mungly- Gulbul & Ors [2017 SCJ 88] is of relevance, where the Defendants were being sued following a judgment they handed down in their capacity as Magistrates of the Intermediate Court, as they were then, and in the exercise of their jurisdiction. The Supreme Court in that matter explained that, in application of the principle of immunity, there would indeed be no cause of action in a civil suit against a judicial officer, which ex facie the pleadings is tantamount to an attack on a decision of the judicial officer. The Supreme Court, indeed, held that in applying the principle of immunity from liability in a civil action enjoyed by the Defendants in their capacity as judicial officers at the material time, the Plaint with Summons does not disclose any cause of action against the Defendants. Similarly, in the present case, given that the principle of immunity applies, by the same token there is no cause of action in this matter. Abuse of the process of the Court: The District, Industrial and Intermediate Courts Rules do not provide for the striking out a plaint which constitute an abuse of the process of the Court. Where such rules are silent, the Intermediate Court is to be guided by the Supreme Court Rules unless there is some repugnancy arising from the different nature of the Courts (vide: Jhundoo v Jhuree [1981 SCJ 98]) Rule 15 (3) of the Supreme Court Rules 2000 provides that: The Court may after hearing any interested party, order an action to be stayed or dismissed, or judgment to be entered on such terms as may be just and reasonable, where the plaint, the plea or the counterclaim, as the case may be, is - (a) frivolous, scandalous or vexatious; (b) an abuse of the process of the Court. It was held in the case of Hunter v Chief Constable of the West Midlands Police [1982 AC 529,536, that the Court s power to strike out a case which is an abuse of process is a power "which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

12 . On the issue of abuse of process, reference can conveniently be made to the case of Mauritius Turf Club v Lagesse [1993 SCJ 9] where the Supreme Court had this to say: The process of the Court must be used bona fide and properly and must not be abused. The Court will therefore, prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. In D. Hurnam v Mrs Mungly-Gulbul & Ors (supra), the Supreme Court considered that by lodging and pursuing the action in that case which is in complete disregard of the protection from liability enjoyed by the Defendants on the basis of the principle of immunity afforded to judicial officers and of the decision of the Privy Council restoring their findings of fact and judgment, same would constitute an abuse of process of the Court. In the present case, the Court takes the view that by instituting legal proceedings against the Master and Registrar, who is protected by judicial immunity, coupled with the non-compliance with the provisions of the POPA and Article 510 of the Code de Procédure Civile, and compounded by the fact that the Amended Plaint does not disclose a cause of action, the Amended Plaint is, obviously, tantamount to an abuse of the process of the Court. The issue of Wasted Costs: The law governing this matter is Section 197D of the Courts Act; the sub-section (1) of which provides that, The Magistrate, Master, Judge in Chambers or Court, as the case may be, may, at any stage of any civil proceedings, on an application by a party who has incurred wasted costs, order the legal representative of a party to meet personally the whole or part of those costs as specified in the fourth Schedule. In Lugun v Rambarun [2003 SCJ 181], the Supreme Court underlined that, contrary to normal costs which are borne by a party to the case, wasted costs are to be disbursed personally by Counsel and/or attorney, as may be ordered by the Court, as a form of indemnity for improper, unreasonable, or negligent act or omission resulting in additional costs being incurred by a party on the opposing side.

13 In the present case, the Court finds that the Defendant s legal advisers have not committed any improper, unreasonable, or negligent act or omission resulting in additional costs, if any, being incurred by the Plaintiffs. Conclusion: In the light of the foregoing observations, the Court finds that the Preliminary Objections in Law Nos. (2), (3), (4), (5), and (6) have been well taken and upholds same. The Court, accordingly, dismisses the present Amended Plaint against the Defendant with costs. Ms. A. RAMDIN A.g President Industrial Court Mr. P. SEWPAL Magistrate Intermediate Court Date: 07/07/17