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THE MAURITIAN JUDICIAL SYSTEM CHAPTER I PRELEUDE It has been said that the Arabs visited the island,

but we have no traces of their settlement. The Dutch made two attempts towards colonisation, but they were not successful and abandoned island. Dufresne DArsel, French sea captain took possession of Mauritius, on 20th. September, 1715, and named it Isle de France. The French did not take long in establishing the first judicial set-up here. But the development of the institutions was not at all smooth, specially with the taking over of the island in 1810 by the British. The constant gasping of the system will lead, as will be seen to heterogenous Courts and other bodies dispensing justice. Fortunately we have come down finally to a well-established system, which, though having some weaknesses according to some, is working harmoniously to the satisfaction of the great majority, if not the whole of the population. In the historical survey, an attempt will be made, starting with the highest tribunal, to show how we have come to the modern system through the last three centuries. CASSATION AND PRIVY COUNCIL It would seem that since the very early days of colonisation, a pourvoi en cassation" to the King,fountain of justice existed. It must be recalled that all justice was administered in the name of the King, and this ultimate appeal took place "en Conseil d'Etat." Although it has not been possible to find any enactment which specifically laid down the possibility of "pourvoi", examples can be found of the reversals of the decisions of the "Conseil Superieur, (the early French Superior Court). Such was the case of the decision dated 3rd December, 1772 which purported to suppress appeals from judments of the Royal Judge (1). The condemnation of JEAN LOUSTEAU, Registrar of the Court, for unlawful reception of money and forgery, was annulled by decision of the 6th January, 1781 (2). Under the Republic the "pourvoi en cassation from judgments of the Criminal Court and the Appeal Tribunal lay before the Tribunal de Caasation sitting in Paris (3). Georges Andre Wantzloeben has caused to be erected a barrier on the dam of the St. Amand River to deprive his Savannah neighbours of their rights to the water. DUCRAY, his opponent, won the case before the justice of the peace of Savanne, the Appeal Tribunal and finally before the Tribunal de Cassation (4). Abuse was being made of the right to cassation and an arrete of the Colonial Assembly of the 8 Germinal Year 8 (29th March 1800) established in the colony a Revision Tribunal examined whether the procedures prescribed for criminal trials had been properly followed and whether the judgment did not infringe the law, and thus whether an appeal to the Court of Cassation, the right to which was limitatively listed (e.g. wrong application of criminal law, violation of procedure, etc), did lie.

When in 1803 the Consular Government reestablished the Courts on the same footing as they existed in 1789, cassation was maintained (5). The British took the island in 1810 and although in accordance with the terms of the Treaty and a proclamation by the first Governor, ROBERT FARQUAR, the Courts were to continue on the footing and exercise, durante bene placito, the same jurisdiction as was prevailing (6). It was inconceivable that they would allow cassation in France. In fact the Crown retained its prerogative and when an existing law came into conflict with that privilege, the law had to give way (7). Faced with this situation, a Proclamation dated 19th November, 1811, was made granting a right of appeal to His Majesty in Council from decisions of the Superior Courts in the island. This right was maintained in 1831 and amendments were introduced in 1894. In 1909 new provision revoked those of 1831 and 1894. It is interesting to note that as far back as 1909 (9) the new provisions in respect of appeals to His Majesty provided that the subject matter should be equal to or exceed Re 10,000/- in value or where, in the opinion of the Courts the question involved was of general or public importance. Such restriction have always been felt necessary in order to prevent abuses. They still prevail, exception being made for criminal cases (10). THE SUPERIOR COURTS "Conseil Provincial" and "Conseil Superieur"- The first Superior Court for Mauritius was the "Conseil Provincial" instituted by edict of November 1723. It exercised full original jurisdiction in civil and criminal matter, over and above its administrative and legislative functions (11). Appeals lay to the "Conseil Superieur" of Bourbon (now Reunion). Then, in view of the increase in population in Mauritius, the delay in the process of the Court and the delaying tactics resorted to by the parties, a "Conseil Superieur" for Mauritius was established by edict of November 1734. It entertained civil and criminal cases in the last resort (12). Royal Judge and "Conseil Superieur- In June 1766, by royal edict, the "Conseil Superieur was abolished and a new one instituted. This one too was abolished in 1771 and one differently constituted set up. This latter exercised only an appellate jurisdiction (13) over the Royal Judge whose Court of first instance was created by an edict of October 1771 in view of the multiplicity of cases (14). The island which was under the administration of the "Compagnie des Indes" from 1722 had been retrocecled to the King in 1767. The administration of justice had by then become independent from administrative and legislative functions, but it remained under the control of the "Intendant".

Tribunal of First Instance and Appeal Tribunal- The French Revolution (1790-1803) (or rather "Terreur") had not so much impact in Mauritius, yet some important chances occured in our field. A constitutional instrument ("projet de constitution') was adopted in its entirety by the Colonial Assembly on the 2nd April 1791 (15). The constitutional rights of the inhabitants were being continuously affected, but Colonial Assembly took care not to effect the changes abruptly. By an arrete dated 25th February, 1793', the Colonial Assembly changed the name of the Conseil Superieur into that of Appeal Tribunal and that of the Royal Court into that of the Court of First Instance.

Prospects were not bright during those days. The administration of Justice was in a piteous state. One can scarcely imagine that judges of this Country have not always been enlightened. It was not at all strange to find sailors, planters, businessmen, without the slightest notion of the law, being elected to sit on the bench. With the consequence that Counsel who gained their favour, or the most eloquent or cunning ones won almost all the cases (16). Under the Consulate and Enipire (1803-1810), the Court of First Instance and Appeal Tribunal were maintained. In virtue of the powers conferred upon DECAEN, the latter appointed LOUIS RENE CRESPIN, Commiosioner of Justice, who made recommendations on the composition of the Appeal Tribunal and the Court of First Instance. It is interesting to note, as typical of the times, that the Commissioner of Justice had very large powers, the principal ones being the supervision and control of the Courts in the colony, the making of regulations for the despatch of the Courts business, the drafting of law, which he deemed appropriate to propose and so on (17). The Supreme Court - Though the British maintained the French institutions, that was only a temporary measure. Faced with difficulties in the colonies, and desirous of setting up structures resembling their own, the Colonial Office appointed a Royal Commission named the Commission of Eastern Inquiry (18). It held sittings in Mauritius from 1st October, 1826 to June 1828 and amongst its recommendation touching the Judiciary were the suppression of the Court of Appeal and the Court of First instance to replace them by a Supreme Court. The implementation of the report was not delayed. The Court of Appeal was suppressed by Order in Council dated 13th April, 1831 and it was replaced by a Supreme Court, reducing the number of Judges from 9 to three only. However, Art. 3 of Ordinance 78 of 1831 which expressly gave the name "Supreme" to the Court of Appeal was disallowed and therefore it resumed its title of Court of Appeal.

In 1850, a complete overhaul in the structure of our Courts occured vilth the creation of some new basic institutions. These constituted the beginning of our modern system. Some features disappeared and were only to reappear almost one century later. By Ordinance No. 2 of 1850 as ratified and recited in the Order in Council of 23rd October, 1851, the Court of Appeal bacame, for good, the Supreme Court of Liauritius with one Chief Justice and two or more Puisne Judges. It was given all the powers and jurisdiction of the Queen's Bench in England, and also the power of a Court of Equity. The Court of First Instance was abolished, its jurisdiction merging into that of the Supreme Court. Absence of an Appeal Court It was as from then that starts the long period (more than a century) of uncertainty in the minds of law practitioners and justiciables. The right of appeal which existed since the early times (as far back as the "Conseil Provisoire" in 1721) was abolished, except of course, the richt of appeal to the Privy Council. There existed a semblance of appeal by the provisions of section 168 of the Courts Ordinance of 1853 which allowed the reservation of a point of law cropping up during a criminal trial, or one on which the Judge entertained a doubt, for reference to three Judpes of the Supreme Court to determine the question (18 bis). But the trial Judge had a discretion to reserve the question or not (18 ter). Re-introduction of the rightt of Appeal - An appeal to the Privy council was cumbrous, costly, lengthy and offered little chance of success in the majority of cases because it was only in very exceptional circumstances that the Privy Council intervened"(19). By the passing of a Bill, the right of appeal from decisions of the Assize Court was revived and vested with a Court of Criminal Appeal which came into operation as from the 1st January, 1955. The late Honourable GUY FORGET expressed the view that the Bill would have been equally welcome if it had clauses concerning an appeal against any decision of the Supreme Court exercising civil jurisdiction. This did not remain a pious wish. Again a Bill was introduced in 1963 for the setting up of the Court of Civil Appeal and the then Attorney General, subsequently one of the most eminent Judges of the Supreme Court, MAURICE LAVOIPIERRE, drew the attention of the House to the fact that an appeal lay to the Privy Council only in exceptional circumstances and involved litigants in considerable expense. He also observed that a single Judge could be given unlimited jurisdiction in civil cases as the monetary value of the subject matter in litigation is not a suitable criterion of the importance or difficulty of a case (20). The Bill became law on the 9th September, 1963, although LAVOIRPIERRE'S observations were not entirely adopted. Cases can still be tried by two Judges in the first instance, with no right of appeal, except to the Judicial Committee of the Privy Council (21). Jury Trial - Jury trial, from which the British people owe much of their law of evidence, which we have borrowed, has not had the same favour here. It started in criminal cases in 1795 (5 Thermidor Year 3) in the same way as it existed in France, i.e. a Jury for the accusation and one for the trial. The Commissioner of Justice, under DECAEN, abolished Jury Trial and ordered that criminal trials were to take place according to the procedure laid down by the 1670 Criminal

Ordinance (22). The re-appearance of Jury Trial is due to Ordinance No. 10 of 1850. It provided for a Jury of nine men for criminal cases and seven men for civil cases. Jury Trial for civil cases has obtained still less the favou3: it has enjoyed elsewhere (23). Seychelles Appeals - After Seychelles became a separate colony, a Supreme Court was set up there in 1903 and our Supreme Court was vested with full jurisdiction to hear appeals and cases stated from that Court. Our Supreme Court also emitted opinions on points reserved bythe Supreme Court of Seychelles (24). THE INFERIOR COURTS

Justice of the Peace: The constitution of 1791 provided for the election of justices of the Peacc entrusted with judicial functions in the Municipalities. As from the 17th April, 1791 we had justices of the Peace and prudhommes assesseurs" in Port Louis and the countryside (25). This institution was abolished in 1803. District Courts: The Charter of Justice of 1850 and 1851 (as it is sometimes called) created a District Court for each of the Districts of the colony. They have been presided over by District Magistrates and have had civil and criminal jurisdiction for small cases. The Magistrates remained under the administrative control of the Procureur General until 1945 (26). The laws relating to District Courts were consolidated and amended by Ordinance No. 21 of 1888 which also gave the District Magistrate the powers of the justice of the peace or twoo justices of the Peace. Bench of Magistrates: The evolution of our system has been also influenced by the Bench of Maeistrates, Ordinance No. 3 of 1883 was passed creating the Bench for the more effective repression of crime and contraventions to criminal law. The Bench consisted of three Magistrates, the one of the District where the offence had been committed presiding over it. It dealt with offences of a more serious nature,e.g sedition, sodomy, forgery and so on. Vested with wider powers of punishment, it could inflict penal servitude not exceeding three years and imprisonment for not more than two years. It was the precusor of the Intermediate Court which is treated below. Industrial Court: Stipendary Magistrates had been appointed since the Order in Council of the 7th September 1838 (27). They were remodelled by Ordinance No. 1 passed in 1878 following the agitation of de Plevitz followed by the the Royal Commission which found in 1875 that there was evidence of illtreatment of Indians (28). They were of small jurisdiction and applied Labour Law, mainly for the purpose of punishing indentured Labourers and servants for breaches of their contracts with their masters. This court was superseded in 1944 by the Industrial Court, the circumstances of whose creation and mode of operation are examined below. OTHER JURISDICTIONS

The Judge in Chambers: He exercised "refere jurisdiction which, by nature, was concerned with urgent applications. The institution was suppressed in 1850 and during five years, a chaotic situation prevailed. It would seem that the judge did some Chambers work, imitating to some extent his British counter-part (29). Then in order to remove doubts, Ordinance No. 24 of 1855 was enacted and it declared that he had the powers and authority formerly enjoyed by the Precident of the First Instance or the President of the Court of Appeal-thus maintaining the operation of the Code of Civil Procedure on refere cases. The Master: He came into existence by the Charter of 1850. At first he was competent to tax costs, manage judicial sales, hold family councils etc. As from 1853 matters relating to bankcruptcy, insolvency and winding up of companies were dealt with by the Master. Then by Ordinance No. 61 of 1898-9 this latter jurisdiction was transferred to the Supreme Court. The work load of the Judges increased so much that in 1923, on representations made by the Judges, the Master was given back jurisdiction concurrent with the Judges of the Supreme Court, in matters of Bankruptcy. The Commercial Court: A Commercial Court was set up at the Port North West(new name given to Port Louis) on the 7th February, 1794 (30). It had cognizance of all matters concerning trade on land and ses. It also acted as a Prize Court and had the supervision of merchant shipping and the exchanfe agents. The first martyr of the history of Mauritius Courts, Mr. DE LECLUSE, was to come from this court. The day following the invalidation of a capture by him, he was found dead in his bed. Then, since 1803 when it was abolished with other courts, we have had no commercial courts. Instead, the ordinary courts have been exercising jurisdiction in commercial matters, with the result that they endure the same fate as ordinary civil matters except for bills of exchange and promissory notes. It was only last year that by GN 110 of 1985, the judges made rules providing that commercial actions should be entered by the expeditious procedure of plaint with summons. Arbitration: To face the chaotic situation during the period of the 3rd Colonial Assembly (September 1792-September 1793), it was thoughtof submitting litigations to compulsory arbitration. Arbitration first concerned cases between close parents and between minors and their guardians. Arbiters were termed Family Courts. Recourse to arbitration remained optional for other litigations (31). Following an islandwide consultation under the 4th Assembly, arbitration became compulsory for litigants, with the exception of matters specialty attributed to the Justices of the Peace and matters of trade and shipping (32). In 1795 (33), suitors werev given the faculty of resorting to public arbitration. The public arbiters entertained litigations which had not been completely determined by private arbiters, the justices of the peace or the Commercial Court D'UNIENVILLE remarks that this public arbiter usurped, to some extent, the functions of the Appeal Tribunal (34). Arbitration reappeared in 1808 with the application of the French Code of Civil Procedure and has up to day been extensively or another, prefer arbitration to court process. Arbitrqtion at District Court level is dealt with below. Admiralty: Admiralty jurisdiction was first exercised by the Royal Judge as from 1771 (35). It is significant to refer to the complaint made on the 21st April, 1776 as to the abuse made by the non-application of the Maritime Ordinance. Then it vested with the Court of First Instance until the 18th April, 1794, then transferred to the Commercial Court until 1803 ancl back again to the

Court of First Instance (36). Considering that it would be useful and in the interest of those plying between the Isle de France and Bourbon, a Vice-Admiralty Court was created in 1814 (37). In 1890, the Supreme Court was vested with the powers and duties of the Vice-Admiralty Court.

Municipal Court: On the 21st October, 1791, the Municipalities were granted jurisdiction for police matters (38). We do not hear of this Municipal Court again until the Mayors Court started its operation in Port-Luois shortly in 1850. Then Ordinance No. 20 of 1860 instituted a Police Magistrate for Port-Louis and the Mayors Court jurisdiction was transferred to it. As from 1903 (Ordinance No. 23 of 1903), a final transfer was made to the District magistrate of Port-Louis. Bail Court: It was a short-lived Court. It was created subsequent to the Charter of Justice. It consisted of one Judge and had jurisdiction in civil matters up to 100. It also entertained appeals from judgments of the District Magistrate on the civil and criminal side. It was abolished in 1881 (39). Land Court: Although of purely historical importance, the creation of this Court since 1766 shows how agricultural property assumed importance since the very early days of the country (40). In fact, the King, advised of the importance, intricacy and interest concerning concessions of land, instituted a land Court by Royal Ordinance. It dealt with a number of disputes, the main ones being union (reunion) of the land property, rights over runs of water and taking and distribution of water, easement, exit roads, fishing, hunting and so on. It would seem that it was abolished or was dormant during the Terreur. It was revived in 1803 (41). The British maintained it with the same jurisdiction as when it was first created (42). By Ordinance No. 13 of 1832 the Land Court was transferred to the Executive Council. But the Supreme Court was consulted, when the need was felt, for its opinion by the Executive Council (43). Finally, by Ordinance No. 17 of 1834, its jurisdiction was finally transferred to the Supreme Court. Others: The other judicial institutions have been omitted for two reasons - they present no real interest to-day and they were established for specific purposes which they have already served, e.g the Commission Prevotale de la marine (44), the Jury Criminal Revolutionnaire dinstruction (45), the special Tribunal having competence to hear misdemeanours and crimes committed by slaves (46) and the Petit Court in Port-Louis (47). We have, therefore, seen that the Mauritian accused and suitor has always had the opportunity of resorting to the highest authorities, be it the King, the Court of Cassation or the Privy Council. This was possible when they could not obtain satisfaction at local level either at first instance or on appeal, exception being made for the absence of a right of appeal from judgments of the Supreme Court for about a century. Administration of Justice has decentralised to reach the various Districts. The workers and employers have a special Court. One may say that the system is firmly established.

CHAPTER II THE SUBORDINATE COURTS The historical survey has shown that our courts have developed as a result of the needs felt at particular times of our history. That is why the pyramidal structure does contain some meams standing on pillars independent of the main body. However, going down from the apex we may distinguish the Judicial Committee of the Privy Council, the Supreme Court with its various divisions and the subordinate courts, the most numerous, if not more important, are the District Courts. I. DISTRICT COURTS Establishment of District Courts: These are the Mauritian Courts which respond to the tradition that justice should be taken to every mans door by constituting as amny courts as are required. In fact there is established in every of the 9 Districts of the Island, a District Court (48). The Chief Justice, by regulations, declares that any District may sit in more than one division. That is how Plaines Wilhems District Court sits at Curepipe and Rose Hill. Port Louis has three divisions, one of which exercises civil jurisdiction exclusively, whereas the other two exercise criminal jurisdiction only. The Rodrigues Court is dealt with under a separate heading in view of its special powers. The District Courts are Courts of record (48) and they have a seal. Sittings: Although the rules provide for terms (49) normally the Courts sit all year round. The Chief Justice decides on the places and days of sitting. All sittings, except for trial of juveniles and young persons, are held in public, just as any other Court, except when exceptional circumstances exist (50) e.g. those where prejudice will be caused to the interests of justice or public morality, to protect the privacy of persons or in the interests of the defence, public safety and public order (51). Distribution of business: Jurisdiction to try or hear cases devolves on the Court of the District where the Criminal offence has been committed or normally where the defendants or one of the defendants reside (52). Any objection as to the venue should be raised befoe the plea (53). Magistrates have a discretion to grant, after full consideration of the circumstances, leave to sue outside their Districts (54). A judge of the Supreme Court may, before the case is started, grant a change of venue from one District to another in the interests of justice (55). Magistrates: The District Court is presided over by a Magistrate. His post is created by virtue of the Civil Establishment Act. His salaries are charged from the Consolidated Fund. He must be a barrister of at least 3 years standing at the bar and is appointed by the Judicial and Legal Service Commission. He should hold no other post (56). Their instrument of appointment normally requires their whole time to be at the disposal of Government. But it has been held doubtful that he holds another office, his jurisdiction lapses (57). There is no precedence for magistrates but they may, subject to certain conditions, be promoted to the post of Senior Magistrates. The power to exercise disciplinary control and to remove Magistratesvests in the Judicial and Legal Service Commission (59). Although independent in the administration of justice, they are under the administrative control of the Chief Justice. Independence should npt

be confused with answerability. The Chief Justice may call for and examine their records and may require them to submit reports on any particular case (60). Magistrates are given special protection in virtue of the Public Officers Protection Act. If an action is contemplated against any Magistrates, it should, as is the case for any other public officer, be brought within six months from the alleged act or omission, and one months notice of the intended prosecution should be given to the magistrate. The plaintiff should also establish that the act was done or the omission was made maliciously and without reasonable or probable cause, except when prejudice has occurred (61). If a magistrate is related by blood or marriage to one of the parties, he may be challenged. A Judge of the Supreme Court shall summarily decide whether to uphold or reject the challenge. The magistrate may ex-officio challenge himself. When the challenge has been accepted the Chief Justice will assign a Magistrate of another District to take up the case (62). The Chief Justice assigns one or more Districts to magistrates. The normal practice nowadays is to give a Magistrate islandwise jurisdiction, with special jurisdiction in one or two districts. Officers of the Court: The Senior Officer attached to a District Court is the District Clerk whosw duties are to act as registrar in the taking down of evidence in civil cases, to issue summonses, warrants and all other documents out of the District Court (63). He is assisted by other officers amongst whom are the ushers whose duties are to call cases in Court and execute warrants and writs and serve documents (64). All those officers are public servants and are giverned by the rules and regulations of the public service (65). Although not strictly an officer of the court, it is worth noting that in each District Court, there is a probation officer whose duties, inter alia, are to advise the residents of the District in their family problems and to assume a care service in respect of both adult and juvenile delinquents. Right of audience and practice: Any barrister or attorney may appear on behalf of a party and address the Court (66), But for Criminal cases, only attorneys who have passed the criminal law paper of their examination can appear (67). The language to be used in District Courts is normally english, but any witness may address the court in French or in a language to which he is best acquainted (68). Strict limitation of jurisdiction in criminal matters: This jurisdiction which may be termed residual, is derived from section 114 of the Courts Act. Therefore all misdemeanours and contraventions which are not tried by the Supreme Court sitting as Assizes, or the Intermediate Court, fall within the jurisdiction of District Courts (69). District Courts try cases sunmmarily for breach of a host of statuted, the most frequent ones being the Road Traffic Act, the Criminal code Act, the Public Health Act. But there is a limit to punishment. A District court can only inflict a maximum of Rs 2,000 fine and two years imprisonment(70). Exception is made to the rule under particular statutes for the infliction of fines exceeding Rs2000. They concern offences against revenue, quarantine or customs law (71). Judicial Enquiry: This is a power exercised by a Magistrate at the request of the Director of Public Prosecutions (72). It ressembles the inquests conducted by the Coroner in England (73). Whenever a person is suspected to have committed suicide, or been killed by another person,

animal or machinery or in an accident, or whilst in custody, the Magistrate proceeds to an inquiry and submits his findings and the record to the Director of Public Prosecutions (74). The magistrate has no power to order prosecution of any person whon he finds can be charged with a criminal offence. The discretion lies only with the Director of Public Prosecutions (75). Strict limitation of Civil Jurisdiction: The District Court has jurisdiction to entertain all civil actions where the sum or value of the matter in dispute does not exceed Rs 10,000 an amount prescribed by regulation (76). The law, as it stands now, provides that that sum may be in balance of account or otherwise and may be exclusive of interests and costs. This question of whether an action falls within the jurisdiction of a Magistrate has been the subject matter of abundant case-law since the last century. It would be tedious to delve into each one of them. However, a list of some of them can be found in the annexure (77). Very frequently, to remain within the jurisdiction of the District Magistrate, the plaintiff reduces his claim (78). Mut the fact that a plaintiff may set his claim for damages too high no ground for deduction of the amount he withdrew to meet the jurisdiction from the amount he is found entitled to (79). A property right is assessed at the time of entry of the plaint. Otherwise the plaintiff could find himself thrown back and forth from Court to Court (80). As far as jurisdiction in alimony cases is concerned, the amendment by Act No. 17 of 1980 of the Courts Act brought about some confusion. The Supreme Court came to the conclusion that by removing the restriction of Rs 3000 (the former prescribed amount) for a yearly alimony, the legislator did not intend to confer unlimited jurisdiction on the District Court, but that the yearly maximum should be Rs 10,000 (the actual pecuniary maximum) (81).

Ancillary Jurisdiction: The question posd by the amendments of the Courts Ordinance in Act No. 9 of 1963 and Act No. 7 of 1971, which amendments have now been incorporated in section 104 of the Courts Act of the Revised Laws of Mauritius, is whether, contrary to established case-law, a magistrate has power to grant mandatory injunction or other equitable remedy (82). The unreported case of BUNDHOO v BAICHOO [1979 SCJ 13] seems to give the answer. Those provisions have been made to enable the District Courts to enforce their judgments delivered within the limits of their respective jurisdiction. County Courts in England, upon which our District Courts have been modelled, do have such powers. Thety are given by express statutory provisions. After the lodging of a divorce petition, a Magistrate may make orders of an urgent nature such as orders for alimony pendente lite in virtue of article 239 Code napoleon. Apart from alimony case, jurisdiction for other provisional measures is sparingly exercised in practice. Exclusive Jurisdiction: One of the different types of actions with which the District Courts are flooded are those under the Landlord and Tenant (Control) Act. Irrespective of the amount of rent claimed, the District Court has exclusive jurisdiction to entertain cases brought between landlords or tenents under that Act. However the Act applies only to unfurnished dweklling house or business premises (83). When the rent is also paid for furniture, the protection of the Act disappears, and the Civil Code alone then applies. But the Court will not admit any sham

term of tenancy (84). For the Act to apply 3 conditions are essential, but sufficient: (i) that the tenant is in occupation; (ii) that his occupation results from an agreement with the landlord and (iii) money is paid or required to be paid in virtue of the agreement (85). Possessory actions are entertained by District Courts in respect of land, premises, runs of water or other immoveable property (86). The action should be entered within one year from the imputed trespass and the plaintiff should have been in possession for more than one year. The Magistrate need not consider the titles of ownership of the contending parties (87). However, if the value of the property is within his jurisdiction, the District Court may also determine ownership (88). But, if the action raises the title of a larger portion, ownership then cannot be adjudicated upon (89). Damages to the tune of Rs10,000 may, in addition, be claimed in the same action or in separate one (90). An action to eject the Curator of Vacant Estate is not a possessory action as it amounts to a revocation of an order of a Judge, although made ex parte (91). Exclusion of jurisdiction: The District Court has no jurisdiction to hear and determine divorce or judicial separation petitions, applications for interdiction of persons, matters of bankruptcy, civil status of persons, rights of inheritance (92), rights arising out of a contract of marriage, the ownership of immoveable property (93), the validity of wills or donations and generally all claims exceeding the prescribed amount (94). But a magistrate may entertain urgent application for provisional measures pending divorce (95), try criminal offences committed under the Bankruptcy Act (96) and also try possessory action concerning land, although the plaintiffs right depends from a legacy (97). Other Jurisdiction: (a) Crown debts: when taxes of any amount and small debts not exceeding Rs 100 are due to Government, the District Magistrate may cause summons to be issued on the alleged debtor, adjudicate on the claim and eventually execute the judgment by distress (98). Just as for taxes, the cost of sewerage works may be claimed at a District Court, notwithstanding that it exceeds the limit of Rs 10,000. (99). (b) Lunacy: A District Magistrate may at any time, on application of a next of kin, order the interim detention of an page missing of a removal of a mutawalli by decision of the Board of Waqf Commissioners, an appeal proper does lie. The Supreme Court came to the conclusion that the District Court, not having been invested of the power to re-open the case, it had to exercise its appellate jurisdiction by reviewing the decision upon the record of the proceedings before it (103). The District Court is competent to hear applications by the owners and occupiers of premises who are dissatisfied with notices served on them requiring them to remove or abate a nuisance (104).

Applicants for the grant of a building permit may appeal against a refusal to the District Magistrate (105). Appeals also lie against any order or notice given by the Municipal Council or the Permanent Secretary, Ministry of works directing the execution of any structural work, the closing of premises,etc. (106). Any person aggrieved by the refusal of the grant or the renewal of a driving licence may appeal to the Magistrate who deals with the case as an ordinary civil amtter. The decision of the magistrate is final (107). Under this heading, may be treated the special power given to a magistarte to remove a disqualification order under the Road Traffic Act six months after the order (108). Extra-Judicial Acts: Magistrates are called upon to carry out a number of extra-judicial activities in Chambers. He receives affidavits on oath. He Is vested with all the powers given by the Code Napoleon and the Code de Procedure Civile in respect of apposition and removal of seals (109). he May order, upon the conclusions of the Ministere Public, the amendments of entries in civil status acts (110). But these concern minor ones. When it relates to the status of the person, the jurisdiction of the Magistrate is ousted. He presides over meetings of riverains of a canal not administered by a corporation or other public body for the purpose of appointing two or more syndics (111). He may also upon affidavit sworn by parents or custodian of a minor, order the re-instatement of the minor to his or her domicile, if the minor absented himself or herself without the permission of his or her parents, custodian or Judge in Chambers (112). Extra-judicial processes that are served by District Court ushers vary in quantity and nature. There are, inter alia, simple notices or mises-en-demeure, notices commandements prior to the seizure of immoveable property and notices with offres reelles of money due to a creditor. Chambers: Every morning before starting Court business, all magistrates have to deal with quite a number of informal complaints from the residents of his district. It has always been a practice for Magistrates to act as mediator and advisor for the various problems faced by these people. It is said that these are relics of the past when the Magistrates acted as Justices of the peace and just like the former knights of the shire, they are assigned, amongst other things, to keep the peace (113). Arbitration: In any matter lodge before a District Magistrate, the latter, with the consent of the parties may refer the matter as well as any other matters within his jurisdiction, to arbitration in terms which he deems just and reasonable. The award of the arbitrator, when given, shall be entered on record and be binding and effectual on the parties as if it were a judgment given by the Magistrate (114). It must be said that this process is almost never resorted to. Appeals: This is a constitutional right conferred upon an accused and any litigant (115). However the constitution itself provides that appeals in acriminal case lie only against final judgments and above a certain limit of fine. It has been fixed tp Rs 50 (116). An appeal lies in all cases where imprisonment has been awarded.

When a person, including, of course, the Director of Public Prosecutions, desires to question the final judgment of a magistrate on the ground that it is erroneous in point of law or in excess of jurisdiction, that person may apply to the Magistrate to state a special case for the opinion of the Supreme Court (117). In all civil cases, an appeal lies to the supreme court from the final decision of the Dirtrict Magistrate (118). Therefore any interlocutory judgment given by the Magistrate before his final one may be questioned on appeal (119). However, when the parties to a suit have acquiesced to the judgment, where the matter concerns private interest and does not affect public order, they are debarred from appealing (120). Except for cases stated, appeals, both in civil and criminal cases, may be had on facts and /or in law. II - JUVENILE COURTS Establishment: When a District Court sits to hear a charge against a juvenile (either a "child", "i e. a person under 14 years or a "youth person,i.e a person of between 14 and 17 years) or to deal with uncontrollable juveniles; then it sits as a Juvenieo Court (121). It is presided over by a magistrate and it would appear that he has jurisdiction to try cases of offences not committed in his District (122). Sittings: As the Court is then dealing with persons of tender age, the law has taken care not to subject them to the trauma of normal Court proceedings. The Court sits as often as is necessary and in a different building or room (usually the Magistrates Chambers) or in Court when it is not sitting for its normal business. The persons then having accessed to the Court are limited to the officers of the Court, the parties, witnesses and legal representatives and other person, specially authorised by the Magistrate(123). However this protection disappears when a juvenile is a, co-accused with an adult. Or if in the course of proceedings against an accused, it appears that the person is a juvenile, then the Court normally competent to try the charge shall have jurisdiction to dispose of the case (124). Therefore inspite of attempts to make juvenle courts more informal, they still bear the marks of their origin as Criminal Courts (125). Jurisdiction: Apart from the offences under Section 50 to 76, 216 to 223, 228(3) and 229 of the Criminal Code, which concern mainly offences against the security of the state, like plotting with a foreign power, high treason, murder and other offences involving the death of another person, the Juvenile Court has jurisdiction to try all offences, whatever be the minimum punishment imposed by law (126). When an offence committed by young person is not within the summary jurisdiction of the Juvenile Court, the Court shall ask the Juvenile to decide after consultation with his parent or guardian if he desires, whether to be tried by the Juvenile Court or a Jury or the Intermediate Court. The Court has no power to order a child to be sentenced to penal servitude or to be imprisoned for nonpayment of fines or costs. A young person may be sentenced to imprisonment, but not sent to Prison for default in payment of fine or costs (127). The Court may discharge the offender on his entering into a recognizance; order him or his parent or guardian to pay a fine and costs,

order him to be detained at the Industrial School or other place of detention (128).A juvenile Court may inflict a fine on a juvenile in respect of an offence where it would have been illegal to do so had the offence been committed by an adult. But it would be well for the Magistrate to state, in his judgment, that he has exercised the discretion given to him by section 22 of the Juvenile Offenders Act (129). The Juvenile Court does not only deal with children and young persons having committed an offence. In fact, when such a person becomes uncontrollable, the Court may, upon the oath of his parent or guardian, send him to Industrial School. Appeals: Appeals from the decision or judgments of a Juuvenile Court may be had to the Supreme Court from a decision committing the juvenile to custody, or ordering security for the good behaviour of the juvenile by the parent or guardian. In fact the Juvenile Offenders Act does not affect the rights of appeal and case stated provided for District Courts (130). III - THE MAGISTRATE FOR RODRIGUES AND THE VISITING MAGISTRATE Special situation of Rodrigues: Following the successive wrecks of the Victoria and the 0xford" in 1843, the Governor gave Captain Sir John Marshall a special commission to act as magistrate and judge surrogate of Rodrigues and the shores and sea surrounding it. Marshall arrived on the 20th September, 1843 and started his activities immediately (131). The post was later styled Police Magistrate and the holder also acted as administrator. Later he was called the Magistrate and Civil Commissioner. After independence judicial and administrative functions are distinctly carried out. The geographical situation of Rodrigues, part of the State of Mauritius, 350 miles away from the main island, has led the legislator to make special provisions for the administration of justice there. The Magistrate for Rodrigues: The Chief Justice may assign the island of Rodrigues to any magistrate and the latter shall then exercise in the island the powers and jurisdiction of a district magistrate (132). The magistrate normally sits five or six weeks in a year at different periods, depending on the number of cases awaiting trial.

Special jurisdiction of the magistrate for Rodrigues: The magistrate has jurisdiction in all cases of taxes, rents or other civil dobts due to the Crown, whatever be the amount due (133). Upon reference by the Director of Public Prosecutions the Magistrate may be required to hear and dispose of serious criminal offences like wounds and blows causing death without intention to kill, abortion, bigamy, rape, involuntary homicide, arson and in the exercie of that jurisdiction the Magistrate may inflict the heavy penalties which on the main island are within the jurisdiction of the Intermediate Court (134). The magistrate may also try cases under the Bankcruptcy Act. Would this amount to discrination on account of place of origin? The Supreme

Court has had occasion to deal with the point and has held that in view of the administrative and geographical differences between Rodrigues and Mauritius, Parliament may validly enact thatcases triable by two magistrates in Mauritius may be decided upon by one in Rodrigues. The Court added that the Act did not show hostility towards the Rodriguans, but benevolence (135). The Court also made observations as to the facilities of communications and suggested that perhaps in future Parliament could envisage giving power to the Intermediate Court to move to Rodrigues for the hearing of those offences. The Rodrigues Magistrate may also determine cases brought under the Supplies Law and exercise the powers and duties of the profiteering court. The preliminary steps and measures in relation to divorce suits may be taken before the Magistrate for Rodrigues. He can be presented with divorce petitions, hold reconciliation sittings and consider the possibilities that can be afforded to parties with a view to their reconciliation, hold preliminary hearing of the petition where the respondent may file his cross-petition or admit the averments in the petition. The magistrate may order provisional measures such as the payment of alimony for the other spouse or children, the provisional custody of the children, etc. pending the hearing of the petition by a Judge of the Supreme Court who calls at Port maturin from time to time (136).

The Chief Justice may direct the Magistrate to whom he assigns to hear and determine any amtter which falls within the exclusive jurisdiction of the Industrial Court (137). A peculiar aspect of the administration of justice in Rodrigues can be attributed to a series of regulations which can be made by the Governor General for the good government and well being of not only Rodrigues, but the other islands forming part of the State of Mauritius. Subject to their being laid before the Assembly, they have the same force as a law passed by Parliament and the magistrate is empowered in relation to contraventions thereof, to inflict a penalty of a fine of Rs 500 and imprisonment not exceeding 3 months (138). Administrative Secretary: This officer who was formerly known as the Resident Commissioner, exercises some of the Magistrates duties during the latters absence from Rodrigues or his inability to act. They are, inter alia, the affixing and remioval of seals, issuing warrants of arrest, search warrants, remanding persons in custody, taking and receiving dying declarations, and especially receiving information and issuing orders for interim detention under Lunacy Act (139).

Appeals: Appeals lie to the Supreme Court and the conditions for appeal, whether by way of a usual appeal or by case stated, are the same as on the main Island, except that the time to presecute the appeal is one month from the day of lodging the appeal with the clerk (140).

The Visiting Magistrate: Since 1904 Magistrates have been administering (141) justice in what were called the Lesser Dependencies. The Chief Justice may assign any other island forming part of the state of Mauritius to the Rodrigues or any other magistrate. This magistrate is often called upon to travel to Agalega to try criminal cases there. The problem which the geographical position of the island poses resides in the question of adequate time and facilities for the accused to prepare his defence. The Supreme Court'sanswer to this is that it is open to the accused to ask for a postponement until the next visit of the Magistrate, otherwise it is perfectly proper for the magistrate to hear the charge if he does nor require time (142). The advent of air links with Agalega is likely to solve this and many other problems, as it did in the case of Rodrigues.

IV - THE INTERMEDIATE COURT Genesis: By 1960 administration of justice by the Bench of Magistrates had become cumbersome The jurisdiction of the Bench had since its creation in 1883 been extended to cover major criminal offences. On the other hand the Supreme Court itself was overburdened with criminal cases and sometimes with lesser ones (143). So that the criticism of the Tucker Committee in 1958 on the delays in the administration of justice and its observations on the fragility of the human memory applied to Mauritius. All this led to the birth, almost without pain, of the Intermediate Criminal Court. Later, in 1971, following representation made by the Chief Justice on the alarming state of the Civil Cause List at the Supreme Court and after consultation with the Bar Council, Government introduced a bill to extend the jurisdiction of the Court to civl cases too. The bill was passed on the 27th April 1971 (144). The Intermediate Court: It is a Court of record with a President and a number of magistrates. It sits at the place which the Chief Justice directs. Proceedings are held before 2 or 3 magistrates and the decision of the Court is unanimous or by majority. Where ther is a difference in opinion between 2 magistrates, a third one is brought in (145). With the frequent transfers and promotions of magistrates, an abundant number of cases have come to the Supreme Court on appeal questioning the jurisdiction of the court. The Supreme Court has held that there is no ground to quash a conviction simply because the two magistrates who delivered judgment had not started the case (146). The court however added that when they do not know which side to believe they should acquit. That was in 1968, and in 1984, the court went as far as holding that a conviction and sentence of the Intermediate Court should stand although the magistrate who delivered judgment did not hear any evidence at all (147), When the 2 magistrates diverge in opinion, the Court should be reconstituted with an additional magistrate and proceed to a rehearing, wholly or partly (148). If the parties are not given an opportunity to express their views before the reconstituted Court, a new trial will be ordered (149). But when the plea of an accused has been recorded by only one magistrate, the trial becomes a nullity for lack of jurisdiction. The recording of such a plea has no more effect than if no plea had been taken at all by the Court (150). There is no greach of section 85 of the Courts Act if the magistrates of the

Intermediate Court deliver separate judgments as is often done at the Supreme Court (151). However, the Supreme Court has pointed out that this is not good practice. Jurisdiction in Criminal Cases: The manner of proceeding before the Intermediate Court is the same as in the District Court. But there is an extension of jurisdiction. Almost all the offences which were formerly tried by the Bench of Magistrates or at the Assizes now come within the purview of the Intermediate Court. They are, for example, forgery, embezzlement by public functionary, rape, debauchery, bigamy, wounds and blows causing death but without intention to kill-the complete list being given in section 112 of the Courts Act. In theory, all criminal cases may be brought before the Assizes. In practice the DPP sends to the Supreme Court cases of murder, manslaughter and wounds and blows causing death without intention to kill but with premeditation. For the other cases he would do so in special circumstances only e.g in the case of a habitual rapist (152). The jurisdiction of the Court is also limited to the punishment it can award against an offender. It is penal servitude for not more than 8 years, except when the offender is a persistent one, in which case it rises to 12 years, and imprisonment not exceeding 5 years (153). Jurisdiction in civil cases: It is again an extension of the jurisdiction of the District Courts monetary limit. The Intermediate Court may adjudicate on claims up to a prescribed limit of Rs 50,000 exclusive of interests and costs (155). But it cannot adjudicate on claims for alimony or possessory actions which are reserved to the District Court. All actions like divorce, rights of inheritance and others which are excluded from the jurisdiction of the District Court are also beyond the jurisdiction of the Intermediate Court. But it can entertain a demand of damages resulting from the trouble caused to a lawful possessor (156).

Advantages of the Intermediate Court: It avoids the meeting of Magistrates of three different Districts, which caused considerable delay. The magistrates are experienced in judicial activity, having either been promoted from the post of magistrate of a District Court or Senior Law Officer of the Crown. They sit in a particular Court House and can devote all their time to cases referred to them by the DPP or civil suits brought by private litigants. They sit from day to day for longer hours, having no Chambers work to do. The Court has islandwide jurisdiction, which helps towards uniformity in sentensing. There remains, however, the criticism levelled at it that the legislator, by creating this Court, has to some extent deprived the citizen of a fundamental right of beinh tried by his peers. But without going into the details of this controversy, it can be said that at the Assizes strange acquittal occur. V-INDUSTRIAL COURT Genesis: Following the labour unrest which occurred in 1937, Government took steps towards conciliation and co-operation between workers and their employers. It was decided to establish a more efficient Court to deal with industrial matters. It was to have been presided over by a specialist who would be looked upon in time as someone in whosw impartiality and on whose sympsthy both parties could rely. For administartive reasons, he has not been given the expected status of a Judge. The proposer of the law had in mind that the President would move

from place to place to reach the poor men and listen to their grievances (157). This was achieved at first, when the Industrial Court was an itinerant Court sitting in the various District Court premises. But lately, it has been sitting in Rose-Hill and now it is fixed in Port-Louis. Jurisdiction: It has exclusive competence to hear and determine cases arising out of the Boilers Act, the Employment and Training Act, the Export Processing Zones Act, the Export Services Act, the Labour Act, the Passenger Transport Industry (Buses) Retiring Benefits Act, the Sugar Industry Retiring Benefits Act, and the Workmens Compensation Act. All proceedings before the Court should concern Labour law. If not, the jurisdiction is ousted (158). The Court has also been attributed competence to hear and determine cases under and in breach of the Industrial relations Act. Proceedings are normally conducted in the same manner as before a District Magistrate, but when special procedures are provided for by special enactments, they should be given preference (159). An example is the procedure by which a workman who is incapacitated or is illiterate may avail himself of the servises of the Clerk of the Court to make the claim for compensation (160). Proceedings instituted by and intervention of Government: As as been seen and will be apparent in the following passages, the legislator had in mind the protection of workers when enacting the clauses of the Industrial Court Act. That is how it is provided that the Permaanent Secretary of the Ministry of Labour and Industrial Relations may institute proceedings on behalf of a worker, even without the consent of his parent or guardian, if he is a minor (161). But he does not thereby become a party to the suit and therefore a respondent or a co-respondent an appeal (162). The Attorney general, either of his own motion, or at the request of the Court may intervene in any matter before the Court and call evidence and tender submissions thereon, without thereby becoming liable to be a party or have an award or order pronounced against him (163). Magistrate as mediator: Whether a dispute has arisen or is simply contemplated, the magistrate may offer his advice, guidance and help in a settlement out of Court. This power exists even when a case has been started and the magistrate feels that a settlement might be conducive to good industrial relations. Any settlement reached out of Court by the parties and signed by them and the magistrate has the effect of a judgment of the Court (164). This provision reflects the intention of the legislator when in 1944 it was said that the magistrate should come to be a specialist in his field so that the work of the Court will be complemented with his personality touch. Appeal and Review: What is peculiar again is that the magistrate should explain to the litigant or the accused that he has a right of appeal (165) and he must even made a note of having done so in the record after delivering judgment (166). Apart from appeals from final judgments of the Court, a right of review may be exercised by the Chief Justice (as Reviewing Authority) or by any other judge whom the Chief Justice may

depute, either on application of a party within six weeks from judgment, or proprio motu (a report of all criminal and civil cases is esnt monthly to the Chief Justice). No costs are awarded in respect of the review (167). The Reviewing Authority is not restricted by the grounds upon which a review is asked and if, in a civil matter, a point of law has been wrongly decided and a miscarriage of justice has occurred, the Authority must set aside the judgment (168). However, it must be pointed out that whenever an appeal has been lodged, review will not be undertaken (169). VI-THE PROFITEERING COURT Necessity for the Court: When the State controlling prices and following abuse made by traders in the exercise of their profession, the legislator intervened in 1974 for the protection of the vulnerable consumers as it did posterior to first World War and during the second World War to deal with black market (170). The District Courts, which in both instances had jurisdiction to punish these traders, were considered insufficiently equipped to effectively curb the numerous breaches of the Supplies Laws.

Constitution: The Court is presided over by a Judge of the Supreme Court without a jury. The Judge is assisted by Officers designated by the Chief Justice. The Judge and the staff are under the administartive control of the Chief Justice (171). Jurisdiction : The Court hears and determines all cases brought under the Supplies laws and the Fair Trading Act. Under the latter Act the court may inflict a maximum fine of Rs 10,000 and a term of imprisonment not exceeding one year and, on repetition, a fine not exceeding Rs100,000 and imprisonment not exceeding 2 years (172). And under the Supplies Control Act, a maximum fine of Rs50,000 and penal servitude not exceeding 10 years (173). The number of counts of an information laid before the Court is unlimited. Appeal: The law provides that an appeal from a decision of the Court shall be conducted in the same manner as one before the Court of Criminal Appeal (174). This, by itself, does not mean that the appeal is heard before the Court of Criminal Appeak as is the case of an appeal from a decision of the Court of assizes. It is provided that an appeal shall be heard before at least two Judges of the Supreme Court (175). In fact the Supreme Court has had occasion to construe this last provision and has held that it means that appeals lie before the Supreme Court (176). Decline in activity: Judicial activity has greatly slowed down before the Court since a few months on account of the easing of restrictions on prices. The Court will be abolished with the coming into effect of the Criminal Procedure (Amendment) Act 1986 by Proclamation (177). This does not mean that it will be a boon for dishonest traders as offences under the Supplies Laws will then be prosecuted at the instance of the DPP before a judge without jury (178). CHAPTER III

THE SUPREME COURT

The people distrusts everybody-politicians, civil servants, the police, the Yet, they make an important exception. When all their hopes fade temporal resort is the judiciary, especially the Supreme Court.

armed forces. away, their last

And in that we differ from the English people, each single judge is a vreversed figure, an oracle to whom the laymen and the lawyers run to obtain guidance or settlement of their dispute. The Supreme Courtis really supreme in the sense that it embraces all aspects of the local administration of justice. And yet all criminals cannot be convicted, all innocents acquitted. Redress for all wrongs cannot be achieved. The judges, although an elite, know the limits of their powers and jurisdiction. As will be seen, they guard themselves from encroaching on the ground of the Legislature and the Executive whilst jealously repelling any attempt to thwart their own powers. The Charter of Justice of 1850-1851 established the Supreme Court. With the passage of time and in accordance with the needs of the country in its development, various divisions have been added to it, with the result that whilst remaing the highest court of the State, it has extended powers and jurisdiction which did not exist at the start. Therfore, apart from its original common law, equitable and appellate jurisdiction which is exercised since 1850, two more divisions have been added to the Supreme Court: The Court of Criminal Appeal and the Court of Civil Appeal. I and II Constitution and sittings of the Supreme Court. The Judges: The Supreme Court is composed of a Chief Kustice, a senior Puisne Judge and a number of Puisne Judges. The Chief justice is appointed by the Governor-General acting after consultation with the Prime Minister. The Senior Puisne Judge by the Governor-General acting in accordance with the advice of the Chief Justice. The Puisne Judges by the Governor-General acting in accordance with the advice og the Judicial and legal service commission (179). The Puisne Judges take precedence as determined by the Governor-General (180). When one looks at the composition of the Judicial and Legal service Commission, one immediately puts the question about the danger of politicians packing the Supreme Court. One need have no qualms about this as firstly the administration of justice is not in the hands of a political Minister as in many countries, but in those of the Chief Justice. All the judges need to have been barristers of at Least five years standing at the bar (181). And they usually come from the bench of the lower courts or from the Crown Law Office. They are trained legal practitioners and very quickly assert

their independence, the more so because all the judges have equal power, authority and jurisdiction (182) and their posts cannot be abolished unless they consent thereto (183). Is the judge immune from attack in his activities? This seems to be partially so. In Sirros v Moore (184)it has been said that it has been accepted 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 orders which he gives and the sentences which he imposes cannot be made the subject of proceedings against him. This has been confirmed in the majority judgment Maharaj v Attorney General of Trinidad and Tobago (185). Of course, when the judge commits criminal offences, he will be amenable before our Criminal Courts. Further article 4 of the Code Napoleon provides that any judge who in view of the silence, the obscurity or any gap in the law, refuses to deliver judgment or to entertain an action, shall be guilty of deni de justice, a criminal offence. Then there is also article 505 of the Code of Civil Procedure which it seems, has nevr applied in Mauritius. It provides for the civil liability of the State in respect of dol, fraude, concussion or faute lourde professionelle. The State has a remedial action against the Judge, or a Magistrate, as the case may be. A judge of the Supreme Court may also be removed from office for inability to perfirm the functions of hisoffice, whether because of infirmity of body or mind or for any other cause, or that he has misbehaved himself (186). The question should be submitted to her Majesty by the Governor-General if a Tribunal, specially appointed to that effect, so recommends. (187) Officers of the Court: The Master and Registrar: He is a barrister of at least 5 years standing, therefore a trained lawyer. His main duties are to tax costs, conduct and manage judicial sales, probate of wills, matters that are referred to him by the Chief Justice or the Judges (188). The Master acts by delegation whether axpress or implied, from the Supreme Court. His Court is a branch of the Supreme Court and he cannot act independently of it (189). For example, although he is entrusted to carry through all sales of property, there is no text which gives him exclusive jurisdiction and he exercises concurrent jurisdiction with the Supreme Court (190). Apart from those powers, he is an officer vested only with ministerial powers. He cannot, for example, decide on a question of ownership in an application for sale by licitation (191). The Master is also called upon to conduct local examinations and enquiries. When a person cannot attend court for any lawful impediment or when he has to leave the country, the Master is the officer normally requested to record his evidence (192). He is also the Chief Executive of the Judicial Departmrnt of Mauritius. He is therefore responsible for the day-to-day business of the courts and the supervision of subordinate staff. He is under the general direction of the Chief Justice. Chief Regiatrar: The Master is assisted in his duties by the Chief Registrar to whom the Chief Justice has delegated some of the powers and duties devolving on the Master and Registrar (193).

Other Officers: They are the registrars who are responsible mainly for the taking down of minutes in court proceedings, issuing rules, writs and warrants of execution. The ushers are responsible for order in court, execution of judgments and service of process. The finance officer keeps money paid into court and has control of the treasury, the fines and court fees paid. Sittings: The Supreme Court sits in Port-Louis, the Capital, in the building the Governor General has assigned (194). The sittings are held at the discretion of the Court and there are three terms of about three months every year (195). However the Court may decide to sit in vacation and Chambers work is proceeded with both in term-time and in vacation (196). Right of Audience and Practice: A Mauritian barrister and a barrister entitled to practise in a foreign country, with special consent of the Chief Justice, may address the Court. Attorneys are allowed only in Chambers, the Bankruptcy Division or the Masters Court. Any party to proceedings should obtain leave to address the Court, but such leave is not given as a matter of course, let alone the signing of pleadings without the endorsement of an attorney (196 bis).

III

Jurisdiction of Supreme Court.

Original Civil Jurisdiction: There is a principle of law by which a jurisdiction can only be vested be vested by express words or necessary implication. A superior court is one which is presumed to encompass all subjects of litigations within its jurisdiction (197). Nowadays, however, there is nothing to be implied or presumed. The Constitution provides that the Supreme Court shall have unlimited jurisdiction to hear and determine any civil proceedings under any law, other than a disciplinary law (198) and the Courts Act provides that it is a superior court of record and it has a seal (199). Therfore, in theory, it has concurrent jurisdiction with all lower courts in matters where exclusive jurisdiction has not been granted to them by Parliament (e.g The Industrial Court). The Judge normally sits alone, but the Chief Justice, on his own motion, or on application of parties and considering the importance of the interests at stake or the intricacy of the facts or points of law involved may assign 2 or more judges to a case (200). The assistance of the jury in civil matters has never been much favoured (201). The single judge rule has the advantage of allowing the Supreme Court to sit for the trial of many cases at a time, and enabling the litigant to appeal locally first. It must be said that at the request of the parties, any case pending before the Court may be referred to arbitration. The award may later be brought the Judge for exequatur to render it executory betweenthe parties in dispute. Ar=t this juncture it is worth pointing out that our system has been and is essentially an accusatorial one. The method of pleading, the selection of the basis of ones action or defence rests with the parties. The Judge acts as an umpire. The same applies to criminal cases, except that the judge acts as guardian to a fair hearing.

Original Criminal Jurisdiction: The Supreme Court is also the principal Court of original criminal jurisdiction (202). When it sits to try criminal charges, it is said to be sitting at Assizes. This is the only occasion when the judge clads himself in red gown and wig. Since the establishment of the Intermediate Criminal Court, the latter had carried off much of the criminal work load of the Supreme Court (203). The practical result is that the two offences which are now frequently brought are murder and manslaughter and that is why Assizes are held very rarely (204). Assizes sit with a jury of 9 men. The Supreme Court, exercising its function as guardian to the constitution, has held that,having regard to the local conditions, the provisions of the enactment providing that juries should be males are not discriminatory (205). At the discretion of the DPP, cases like sedition and inciting disobedience to law, and with the coming into effect of the Criminal Procedure (Amendment) Act 1986, a number of offences under the Drugs Act, the Supplies laws, etc may be brought before a judge without a jury (206). There have always been views for and against the jury system. One of our own eminent judges has said that we should credit them with intelligence and the aptitude to understand legal questions. Devlin has qualified them as a restraint on judicial supremacy (207). IV- The Equitable Jurisdiction of the Supreme Court: When the common law courts in England could no longer deal with all the disputes brought before them or rather when the people failed for one reason or another to obtain justice, they reported by way of petition to the Lord Chancellor, The Chancery gradually evolved into a court- the Court of Chancery- and it dispensed equitable remedies. Gradually, by the early years of the last century, a working arrangemeent became in force in England. Equity became a gloss an common law: it continued with the precedents established by the Court of Chancery, to perry to the draw-backs of the common law when the latter proved itself deficient in the remedied afforded. When our courts were re-organised in 1850, the Charter of Justice specifically laid down that the Supreme Court should exercise an equitable jurisdiction (208). The empowering section provided that the court would act as a Court Of Equity every time a party would not find a remedy in law. The Supreme Court in fact refused to supplement what was wanting in the power of attorney of a local agent of an insane person in France to enable the former to receive bequeathed property. The Court decreed that our law provided for the vesting of the Curator of Vacant Estates and declined to grant the remedy (209). That was in 1917. In 1958 the court again refused to grant equitable relief by the appointment of a provisional administrator to a person, through illness could not speak and was incapable of managing his own affairs (210). But our case-law came to a turn in 1965. That was in the case of Banymandhub v Kwan Chung Woo (211). It was a case where the defendant pleaded in limine that the court could not grant

an equitable relief by way of an injunction ordering the defendant to pull down a building which, he alleged, had not been reconstructed in accordance with an agreed plan. He contended that the plaintiff could exercise his rights under articles 1143-1144 of the Code Napoleon. The Court disagreed and construed the amendment made to the Courts Ordinance in 1954 by the substitution of the words the High Court of Justice in England for the Kings Bench.

Now, it is well-known that the Judicature Acts 1873-5 consolidated all the superior courts in England into one Supreme Court of Judicature. Therefore, equitable jurisdiction having been exercised by an independent court (the Court of Chancery) and not having been possessed by the Queens Bench, it was felt necessary in 1850, to confer on our Supreme Court jurisdiction in Equity when no legal remedy was by the laws of Mauritius. This is what was held by the Supreme Court in the Banymandhub case: (i) The Judicature Acts having consolidated the pre-existing superior courts in England into one Supreme Court, consisting of the High Court and the Court of Appeal, the Supreme Court of Mauritius, having all the powers of the High Court in England, had the same to grant injunctions wherever it could be shown to be just and convenient that the power should be exercised;

(ii) Since the coming into force of the Judicature Act 1873, this court derived its equitable jurisdiction not from section 16 but from section 15 and 17 of the courts Act and from the Act itself and decided that it could grant the remedy prayed for, it being a general principle that equity prevails on the common law. Therefore, from that decision of the Supreme Court, we can infer that it has held section 16 of the Courts Act to be redundant and that it derives its equitable jurisdiction from sections 15 and 17, and from the Judicature Act 187305. VThe Supreme Court as Guardian of the Constitution:

Since the Stuarts, Parliament in England has gained its victory over the Courts. It is the supreme authority to pass laws. No doubt that our Parliament is the body to pass our substantive laws and whenever power is given to other persons or authorities to legislate, their enactments are subject to the control of Parliament (212). But Parliaments power itself is subject to the limitations provided by our supreme law, the Constitution. Any law that is inconsistent with that instrument shall, to the extent of its inconsistency, be void (213). The task of deciding on this question devolves on the Supreme

Court. Although such a delicate problem is left in the lap of a few, an elite of the academics of the country, it is opposite to quote the words of the father of the American Constitution: Strip it (the Judiciary) of that armor and the door is wide open for nullification, anarchy and convulsion (James Madison). And it is not useless to quote Araham (214): ..the Judiciary does not count constituents, is neither engaged nor interested in a popularity contest, is far public hysteria, public panic and public greed. Under section 17 any person who alleges that section 3 to 16 have been, is being or is likely to be contravened, then if that person cannot obtain redress by any other lawful means, he may apply to the Supreme Court for relief. Section 84 provides that when a person feels that a provision of the Constitution has been contravened and that his interests are being or likely to be effected, he may seek a declaration and relief. When the question as to the interpretation of the Constitution arises in a lower court, the latter should stop the proceedings and refer the question to the Supreme Court and eventually to the courts of Appeals or Her Majesty in Council, if need be (215). In the exercise of its powers as guardian of the Constitution, the Court has had occasion to make a number of pronouncements. The very first section of the Constitution Mauritius shall be a soveraign democratic State was the subject of scrutiny. The Court has held that section 1 must be viewed not merely as an interpretative adjuvant in ascertaining, for instance the policy of a statute, but as an express provision of the Constitution to which ordinary legislation must yield. The Court ha sruled that it has not only the power, but also the duty of saying what it thinks are the standards of democracy appliacble to the country (216). The Supreme Court has had occasion to deal with a number of complaints about the infringements of constitutional rights. For example, unreasonable delay in bringing a criminal action before the Court (217) and decided that the word charged meant arrainged and that the time which elapsed before the preferment of the charge should not be considered. Giving a Magistrate for Rodrigues the power to try a charge cognizable by the Intermediate Court here was not tantamount to discrimination on account of place of origin (218). The non-allowance of female on the jury list does not amount to discrimination on the ground of sex (219). Although the Supreme Court is endowed, in the context of a written constitution, with original jurisdiction not only to interpret (S.84) but also to enforce obedience thereto (ss 17 and 83), it is conscious of its limitations. Firstly it applies the principle of presumption of constitutionality which is to the effect that when a provision of the law is capable of two interpretations, the one which makes it constitutional should be preferred (220). It also follows the well-established principle that a law is presumed to be constitutional unless the contrary is shown (221). When the Constitution was altered to allow Parliament to continue in existence in 1973, the Court held that it was only competent to see whether the procedure laid down by the Supreme

law was followed and it refrained from enquiring into the reasonableness or the motive behind the decision (222). The Court has also ruled that although it has jurisdiction to decide whetehr an Act has been passed in accordance with the Constitution, it will exercise self-restraint as regards the internal working of parliament and refuse a prayer or injunction to prevent a Bill from being presented (223). The Court is well conscious that it holds the powers from the Constitution itself and its competence can only emanate from the instrument only (224). The Court has also refrained from encroaching into the province of the Executive. When, for example, the Government refuses to grant citizenship to an alien on grounds of public security or public policy, the Court refused to substitute its own notions of these concepts and left them to the exclusive domain of the Executive (225). So far as Mauritius is concerned, the doctrine expounded by Montesquieu would not have been in vain (226). The Judges will say: Please do not tread on ground exclusively reserved for us. If you do, then you will be rebuked and your nactments struck down. Afterv a private dispute concerning a land had been resolved by the Supreme Court against a foreign institution, Parliament legislated to give the right to the institution to acquire property in Mauritius, long after the delay of appeal had expired. To say the least, the Court frowned upon the procedure adopted and vehemently condemned the usurpation of its function (227). It is apposite to speak of section 119 of the Constitution which gives jurisdiction to the Supreme Court to investigate the acts of persons or authorities whom the Constitution declare as not being under the control or authority of any other person or authority. The Court intervenes only when when the act is ultra vires, or is in disregard of the Constitution or any other law (228).

VI- The Admiralty Jurisdiction of the Supreme Court. Formerly we could speak of a Court of Admiralty in Mauritius. In fact a proviso to section 15 of Cap 168 (Courts Ordinance) in the Lane edition of the Laws of Mauritius laid down the following: -Provided that the Admiralty jurisdiction and authority of the Supreme Court shall be exercised in virtue and in pursuance of the provisions of the Colonial Court of admiralty Act 1890, and the Supreme Court when exercising such jurisdiction shall be called the Colonial Court of Admiralty. In 1981 with the Revision of Laws Act (229) the proviso was omitted. But our new section 15 of the Courts Act reads:

-the Supreme Court shall be a superior court of records and, in addition to any other jurisdiction conferred upon it, shall have all the power and judicial jurisdiction necessary to administer the law of Mauritius. The Supreme Court in the case of Unuth V Police Service Commission [1982 SCJ 284] has impliedly held that the amendment to the Courts Act cannot have for object the removal of the Courts jurisdiction in matters of which it had cognizance, therefore of Admiralty. It is interesting to point out that Government Notice No. 13 of 1962 reproduces the Admiralty Jurisdiction (Mauritius) Order in Council 1962. The order brinhs in line the jurisdiction of the Supreme Court of Mauritius with that of the English High Court of Justice as prescribed in section 1 of the U.K Administration of Justice Act 1956. Now, the Administration of Justice Act 1956 lists the areas of jurisdiction of the High Court under a number of paragraphs. In addition to the jurisdiction which the High Court had prior to 1875, it has been conferred with further admiralty jurisdiction by Statute after 1875 (230). Admiralty work is a highly specialised topic and in England the work is entrusted to specialists. The Judge is assisted by nautical assessors. But in Mauritius, the work devolves on the Judges of the Supreme Court. Although Admiralty work is not important, yet it deserved treatment in this memoire because when a case comes to Court, it involves huge sums of money and a bitter juridical struggle ensues between lawyers. One just has to look up the famous Sugar Trader Case, which is pending since mid-1984 and has given rise to much acrobatic submissions to the Court as to who should come first in order of priorities in respect of the proceeds of sale of the ship in question. Contrary to the normal proceedings of the Court which are usually in personam i.e litigation between private persons or private persons and corporation or personnes morales, most of the sections in admiralty are in rem. By such sections it is possible to sue the ship or the cargo direct. The ideas is that whereas the probability of getting assets from the owners brought within jurisdiction is remote, the ship (or aircraft or hovercraft-extension afforded by the 1956 Act), is in port and unless security is given, it cannot leave. When dealing with such actions the Supreme Court may entertain claims concerning the possession of a ship or a share therein, question arising between co-owners of a ship as to possession, employment and earnings with regards to the captain and the crew, claims in respect of mortgage or charge on the vessel, claims for the forfeiture and condemnation of the ship or the goods, or for the restoration of the ship after security given. The procedure to be followed in such actions are not the same as those obtaining through normal rules of practice an dprocedure for ordinary court cases. A simple example is that an order should be sought from the Judges in Chambers for the exchange of pleadings. Now, it should be remembered that we are not governed by the Rules of the Supreme Court in England, but we are

still governed by the rules of the 1863 Order in Council which were specifically saved by the repeal of the UK Vice Admralty Courts Act 1863 by the Colonial Courts of Admiralty Act 1890 (231). VIISupervisory and Inherent Jurisdiction of the Supreme Court

The recent case of Unuth v Police Service Commission (232) has an important bearing on the subject. The Court has held: that it is inappropriate to speak of this Courts inherent powers in the same way as we do in relation to the English High Court of Justice. This Court is a creation of the Constitution and it derives its powers and its jurisdiction, pervasive and considerable though they may be, from that instrument. The Court went on to say that the Courts powers can only be extended or curtailed in the manner provided for by the Constitution itself in respect of entrenched provisions. The conclusion reached by the Court is that whatever may have been the amendment brought about to section 15 of the Courts Act by Act No. 27 of 1981, Parliament cannot be said to have taken away any of its powers of review in administrative law and to hold persons in contempt. Now, in England, supervisory jurisdiction used to be exercised by the prerogative writs of habeas corpus, mandamus, prohibition and certiorari. In 1938 a reform was made to do away with the complication in procedure. In Mauritius, following the judgment in the case of C.E.B v Forget (233) we follow the present English practice in applications for mandamus, prohibition and certiorari. So that, in Mauritius, under section 15 of the Courts Act, the Supreme Court is exercised constantly a supervisory jurisdiction over public bodies or officers when they impinge on legally recognised interests. In Mauritius, like in England they are called orders. The oldest one is habeas corpus, where the Court enquires into the lawful detention or imprisonment. Mandamus is a command directed towards persons, bodies or courts to perform their public duties. Prohibition has for effect to restrain the hearing or further hearing of a case for some reason or other. By certiorari, the Court compels inferior tribunals, officers or other bodies to bring up their record for judicial review. This jurisdiction of the Court is not exercised as a matter of course. It is a special form of procedure and has been held to follow English forms. Leave has to be obtained first. Then the Court will decide whether it will exercise its discretion in favour of the applicant, according to the merits of his application, and finally check whether the applicant has observed the delay imparted to him, although an extension may sometimes be granted. Turning to our Subordinate Courts (which, by definition given in the Constitution, excludes courts-martial), the Constitution provides in section 82(1) that the Supreme Court has jurisdiction to supervise any civil or criminal proceedings and may make orders, issue writs or directions as appropriate. The Court has had occasion to remit a case to a Magistrate to say whetehr an unsigned judgment was his (234). But when the error is one of substance and the Magistrate was functus officio, the Court refused to send back the record for calling further evidence and quashed the decision (235).

It cannot be doubted that the Court has very wide powers in the exercise of its functions. They have prior to 1968 been called the inherent powers as possessed by the High Court of Justice in England. And now, as from Unuth, we may speak of its wide and considerable powers conferred upon it by the Constitution. Though statutes that wer made in England did not apply to Mauritius, a colony then, yet when it regulated and facilitated the exercise of the inherent jurisdiction of the Court, the statute could be used in supplying wise rules for the Court to do Justice (236). Then after 1968, the Court still exercised such powers. For example it has held when judgment has not yet been delivered the question of new trial does not arise, and it is rather a case of resorting the matter to the cause list (237) The Supreme Court has in the exercise of its inherent jurisdiction held that it has power to grant a new trialin a case decided by its judges (238). And it also has inherent jurisdiction to extend time when time limit is provided for the lodging of proceedings and the delay has elapsed (239). A plaintiff may be allowed to call further evidence in order to establish a material fact as to which he had not led evidence (240). VIII- The Disciplinary Powers of the Supreme Court. Since very long the question of disciplines of the liberal profession was posed in Mauritius. In 1914, the Supreme Courtheld that it had sole control over attorneys practising before it and will scrutinize closely the fees they recover (241). In the same year the Court said that it would go into agreements between attorney and client and, if need be, decide what could be the effect of an agreement savouring of champerty or a pacte de quota litis (242). In 1937, the misconduct of a magistrate was considered a so gross that his name wa orderd to be struk off the roll of barristers (243). Today the matter of professional discipline is governed both by statutes and by the inherent powers of the Court. Section 18 of the Courts Act provides that the Supreme Court has full power and jurisdiction to try cases of a disciplinary nature against any barrister, attorney, notary or ministerial officer. In addition to those provisions we have those of the Law Practitioners Act 1984 which provides that, on complaint made by a person against a law practitioner, i.e a barrister, notary or attorney, the Attorney general may conduct an enquiry and if he deemd it fit, he may report the matter to the Chief Justice (244). The Chief Justice may in turn, order that disciplinary proceedings be held before all the judges of the Supreme Court and in open Court (245). And the result may be very distressing for our poor practitioner. He is liable to be suspended, struck oss from the roll or else the Court may take such other sanction against him as it thinks proper (242). There remains always the inherent powers of the Supreme Court to deal with the professional discipline of the law practitioners (243).

As far as medical practitioners are concerned, the Court, on motion of the chairman of the Medical Board, and upon complaint that a medical practitioner has been convicted of a crime or a misdemeanour or is guilty of infamous conduct, may erase his name from the Register of Medical practitioners (244). IX- The Judge in Chambers It will be remembered that the judge transacted business in Chambers well before the Charter of Justice. When the institution was abolished in 1850 (the framers of the Ordinance must have forgotten him) it would seem that some confusion about his jurisdiction arose until the passing of Ordinance No. 24 of 1855. See Chapter I for the intervening period. This Ordinance divided the powers of the Judge in Chambers into two categories: (i) (ii) those which he could dispose of finally and those which were formerly exercised by the President of the Court of First Instance or the President of the Court of Appeal (245).

The applications which he can dispose of finally are now reproduced in section 71 of the Courts Act. They are applications to be lrt into possession of the unadministered property and rights of a party deceased or absent, applications for an affirmative declaration, applications for admission of a relinquishment of immoveable property, application touching absent persons under article 115 of the Code Napoleon, applications for homologations of compromises under article 441 of the Code Napoleon, applications for nominations of surveyors, appraisers, skilled witnesses, applications foe cancellation or reduction of mortgage inscriptions, applications for removal of seizures, application for validity or nullity of attachments and applications for partitions of property. It is provided that when an objection is raised in respect of the last four, no order shall be made by the Judge in Chambers. That serious doubts have been expressed concerning this ouster of jurisdiction if the objection is frivolous or vexatious (246). However, it should be pointed out that the Judge has a discretion in any of tose applications, to refer them to the Court.

We may now pass on to what section 72 of the Courts Ordinance was. It enacted that all matters upon which a judges order or authority was formerly required from the president of the Court of First Instance or president of the Court of Appeal, previous to the introduction of any section before either Court, and all matters which were settled at Chambers by the president of either court (other than matters in which jurisdiction may have been given exclusively to the District Magistrate) were within the competence of a judge of the Supreme Court.

With the coming into force of the Revision of Laws Act No. 24 of 1981, the entirety of these provisions disappeared from our statute book. The question therefore is whether the refere jurisdiction ( by nature, in respect of urgent appliactions) conferred upon the Judge in Chambers disappeared too. The judge in Chambers says : no. He has held in Leclezio v Bhugobaun (247)that article 3 of the Act of 1855 was declaratory in nature and that the introductory words it is hereby declared were repeated in 1902 (248) and went as far as saying that in our Revised Edition of 1945, there was no necessity to keep those provisions on our statute book. This ruling was to be questioned on appeal but was, as approved by the Appellate Court, abandoned (249). In the final reckoning, therefore, the Judge in Chambers dos retain his powers to deal with urgent matters (referes). Of course, he does this in virtue of delegated powers conferred to it by the Court itself (250). Therefore the Court retains the power to review the decision. Section 73 of the Courts Act may seem to create some difficulty. But this is only apparent. It appears at first reading that the Judge in Chambers may grant an injunction. But since the very beginning of the century (251). It has been held that he has no equitable powers unless they are conferred by law. But section 73 only gives him power to grant interlocutory relief, which may be dissolved by the Court. This does not, however, prevent him from granting a mandatory injunction (252) or as said above reliefs under article 806 of the Code de Procedure Civile in respect of many applications looselt termed injunctions (253). Apart from those two important provisions of our law, there are many others which require the Judge in Chambers to intervene. What is deplorable is that the very judges sit at first instance for civil and criminal matters, or as Appeal Judges or in the Courts of Civil Appeal and Court of Criminal Appeal have to perform the duties of the Judge in Chambers in the morning and sometime during the day. In other countries, such duties have been transferred to a Master. To give an idea of his duties one may only proceed by giving examples as it would be tedious to list all the matters where he intervenes. He has the general supervision of the legal administration and guardianship of all minors, pronounces the adoption of children and adults, grants exequatur for arbitral award, homologates deed of partition, gives his fiat for contrainte on persons failing to pay registration dues, receives electoral petitions and sets them down on the roll of the Court, and an endless number of other matters. X- The Bankruptcy Division of the Supreme Court When looking at thetitle, one may be tempted to say that this division of the Court deals with bankruptcy of traders only. The historical background has shown that we did have a Commercial Court for years during the period of the French Revolution. After 1803, all commercial matters were dealt with by the ordinary courts of the island. Petty cases go before the District and Intermediate Courts and the more important ones to the Supreme Court. Since GN No. 110 of 1985, commerial actions gain the advantage of the speedy process of plaint with summons at the Supreme Court. But as far as bankruptcy, insolvency and winding up of companies are concerned, a special division of the Supreme Court, the Bankruptcy Division, deals with them.

It is composed of all judges of the Supreme Court and the Master has concurrent jurisdiction with them (254). In practice, it is the Master who shoulders almost all the work of this Division of the Court. The act of Bankruptcy has long ceased to be akin to criminal law and our bankruptcy law reflects the sympathy that should be extended to unfortunate traders. In the exercise of its jurisdiction in bankruptcy of traders, the court has competence to hear proofs of debts (255) and to determine all question relating to debts, to conduct a public examination on the debtor on his conduct, dealings and property (256), to proceed to the discovery of his properties for the purpose of distribution amongst his creditors (257), to consider the feasability of approving, on the report of the Official Recei, a scheme of arrangement or composition with his creditors(258), to consider all questions of priorities of, ownership as between trustee and the estate of the debtor. (N.B It has no competence to try contested questions of ownership which it refers to the competent court (82) and to consider granting, refusing, or suspending an order of discharge of the bankrupt(260). These are the main spheres of activity of the Bankruptcy Court in relation to a trader. When a non-trader cannot pay his debts he can petition the Court for cessio bonorum to show that he falls within the ambit of article 1268 of the Code Napoleon which provides that such a person may obtain his discharge if he shows to the satisfaction of the Court that his situation of insolvency has not been caused by his bad faith (261). The debtor should deposit his balance sheet (bilan) before the Bankruptcy Court in accordance with article 898 of the Code of Civil procedure(262). The court may condemn the debtor to prison if it be shown that he has fraudulently contracted his debts or has been concealing his assets, dstroying his books etc (263). Another field where the Bankruptcy Division has, of late, been active, is that of companies. The creation of an innumerable number of Export Processing Zone Companies proliferating in the country, has led to the inevitable result of their inability sometimes to honour their liabilities. Recourse if often had to this court for their winding up, voluntary or compulsory. Apart from these two important aspects of Company Law, the Court has a large number of matters assigned to it by the new Company Act No. 57 of 1984. Before leaving this section, it would be interesting to speak of an officer of this Court who has not been mentioned in the section dealing generally with officers of the Court.He is the Official Receiver and he does a highly specialised job. He is a public officer appointed by the Public Service Commission. His duties relate both to the conduct of a debtor and the administrator of his estate in bankruptcy proceedings (264). He acts as trustee prior to or in the absence of the appointment of one. He is also called the Official Assignee in insolvency proceedings. He may be requested to act as liquidator of a company upon the appointment made by the Court or in the absence of a duly appointed liquidator. XI-The Appellate Jurisdiction of the Supreme Court The notion of appeal, an arm against the temptation to act arbitrarily or negligently, is a review of the findings of facts or the wrong application of the law. A right of appeal should be expressly provided for and therefore it requires legislative authority (265). The Constitution does provide for a right of appeal from the subordinate Courts in all final decision in civil and, subject to

certain conditions, in all final decisions in criminal cases. In this part it will not be necessary to consider the various statutes which create a right of appeal. A look at the Statutes governing all the institutions studied in the memoire will show that a right of appeal does exist. The Supreme Court exercises appellate jurisdiction in respect of decisions of subordinate courts and of its own when sitting as Assizes or from decisions of a single judge. The latter two will be dealt with below under the headings Court of Civil Appeal and Court of Criminal Appeal. Section 69 of the Courts Act provides that appeals lie to the Supreme Court from decisions of the Master and Registrar, the Intermediate Court, the Industrial Court, a District Magistrate and the section adds from any other Court or body established under any other enactment. This is how, for example construing section 4 of the Profiteering Court Act, the Supreme Court has decided that it is the Supreme Court to which appeals from the decisions of the Profiteering Court should be made and not to the Court of Criminal appeal (266). Examples of other bodies from whose decisions a right of appeal has been legislatively conferred are the Tax Appeal Tribunal and the Value Assessment Tribunal. Appeals are normally heard by two judges of the Supreme Court (267). But when a question of importance has to be dealt with or where the Supreme Court has to reverse its previous case-law, it sometimes sits with more than two judges (268). Appeals may be based on wrong findings of fact or wrong applications of the la. As far as appeals on facts are concerned the practice of the Court has always been not to disturb the findings of a lower Court as it considers the Lower Court as the best judge of the weight of the evidence (269). The Court will certainly interfere when the lower court has erred in its inferences from established facts, but there must be grave circumstances (270). Another principle by which the Appellate Court has always been guided is that although the reasons given for a decision might not be the correct one or are not legal or sufficient, yet the Appellate Court will not interfere if the decision itself is sound (271). The Court of Appeal examines the record in the state it is in the lower court. No new evidence is allowed (272), not even a view of the locus in quo, which in our law amounts to ushering of evidence (273). No new grounds will be allowed as normally at the time when the appeal is heard on its merits the delay for appealing would have lapsed. This was held to be so in the case of Parahoo v R (274); Brouard J who dissented was of the vie that the Court of Appeal had the right, in exceptional circumstances, in order to cure a glaring defect appearing on the face of the record or to prevent a grave injustice, to allow proprio motu arguments on the points raised outside delay. It is not infrequent that the court itself raises legal points proprio motu, e.g in Ng Yelim v Chinese Chamber of Commerce (275). It was the Court which invited arguments on the constituyionality of section 3(3) of the Landlord and Tenant (Control) Ordinance in 1960. But the Court has held that it will not entertain grounds not raised in the reason of appeal, unless on a matter of public policy, (ordre public) like a question involving the jurisdiction of the trial court (276). Without at all belittling the ability of counsel, Denning made a very pertinent remark about points taken by a judge. He said counsel

very much in their ability and I do not think that their clients should suffer by any oversight or mistake of counsel (277). As far as review of damages are concerned, the Court is chary of disturbing the awards made by the lower courts. The court in dOffay v de Sylva (278) quoted with approval the case of Jones v Hardy (279) and held that the Apprllate Court will not substitute itself for the trial court when it has to decide on the adequacy of damages awarded in a particular case. It sometimes happen that convicted persons want to play on two boards. Whilst their case is pending decision on appeal, they petition for pardon or for grace. In a very old case, the Chief Justice doubted whether the appeal could be competently heard, but after consultation with the other Judges of the Court, he allowed submission on the merits of the appeal, whilst deprecating the behaviour of the appellant. He referred to the delicate constitutional position into which the appellant had placed the Judiciary vis a vis the Execcutive (280). Appeal can also be had by way of case stated in criminal proceedings on the ground that the decision is erroneous in point of law, or in excess of jurisdiction (281). Whatever be the words of the law, the Appellate Court in DPP v Kalleedeen (282) has applied the dictum in the famous case of Bracegirdle v Oxley (283) that if Justice come to a decision to which no reasonable bench could come, then the Court can interfere. In this small work on our judicial system, it would not be useless, in my humble opinion, to draw attention to the role that our Appellate Court has played in the administration of justice in Mauritius. One just has to look up a few judgments in our collection of law reports since 1861. No doubt, we have inherited from two systems of law, the continental one based on codes and the insular one whose fabric of the law itself is laid on precedents. The juxtaposition of those two systems, though it sometimes leads practitioners and judges to a confused melee, has nonetheless produced a body of case-law showing the judicial strength and craftsmanship required for the administartion of justice in this country, after enmeshing all the tangles thrown here and there on their way. XIIThe Court of Civil Appeal

This Court is treated in this chapter as both the Constitution and the Court of Civil Appeal Act provide that it is a division of the Supreme Court. It is composed of the Chief Justive and the other Puisne Judges. It is laid down that it is the Chief Justice, or when he is unable or absent the Senior Puisne Judge, who presides over the Court (284). When the Court hears an appeal it sits with two or three Judges. When there are two judges and there is a difference of opinion between them, a third judge is called in. The decision of the Court is by majority or unanime decision. At this juncture it is interesting to point out the importance of dissenting judgments which our system has always known. Let us rather quote Hughes A dissenting opinion in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the

dissenting judge believes the court has been betrayed. Had not John Marshall said in 1896 that the American Constitution is colour blind and did the American Supreme Court not agree with him 58 years later in Brown v Board of Education and Topokah? The Act provides that appeals can be heard by this Court only in respect of a judgment or order of a judge sitting alone (285). Therefore, each time a Court sits at first instance with a plurality of Judges, the judgment is no longer appeallable in Mauritius, but to her Majesty in Council, and so, subject to stringent conditions. What is curious again is that leave to appeal may be granted by a judge in respect of an interlocutory judgment or order, an order made by the consent of parties and an order as to costs only (286). Such applications may be made exparte and, when refused, the party aggrieved may still apply to the Court in the same manner (287). It will be remembered that appeals from lower courts can be had only in respect of final judgments and no appeal lies when there has been an acquiescement of the parties to the judgment of the Court. The scope of intervention of the Court of Civil Appeal is clearly defined in the Act itself. In so far as facts are concerned, the Court may draw its own inferences and give judgment and make the order which should have been made (289). The Court has large powers to set aside a judgment and orderr a new trial. For example when the trial Judge gives judgment on issues not raised brfore him, such will be the course which the Court will adopt (289). However, the Court of Appeal should be satisfied that some substantial wrong or miscarriage of justice has occurred by the improper admission or rejection of evidence before granting a new trial. If the wrong or miscarriage affected part of the matters in controversy, or some of the parties, new trial will be ordered only in respect of those matters or parties. New trial may also be ordered in respect of one or more questions only, without interfering with the others (290). Two last points. Whereas it is case-law which has established that an interlocutory ruling of lower courts can be questioned on appeal before the Supreme Court, the Act specifically provides that the Court of Civil Appeal can go into the merits of such an interlocutory ruling (although no appeal has been made after the ruling, as allowed by the Act, on leave granted by the Judge) (291). The Judge may, propri motu or at the request of a party to a case, reserve a point for the consideration of the Court of Civil Appeal and then give judgment in accordance with the ruling of the Coutrt (292). It is a great advantage given to parties and the judge himself. It saves time and allows the Judge to deliver a judgment after the point has been considered by two of his brother Judges. This does not, however, prejudice the right of appeal which any party has from the judgment or order of the judge (293). XIII- The Court of Criminal Appeal Although not laid down in the Criminal Appeal Act, the Constitution provides that this Court is a division of the Supreme Court (294).

It is composed of the Chief Justice, and the Puise Judges. The Chief Justice, and in his absence, the Senior Puisne Judge, is the preesident of the Court. There should be 3 Judges on the Bench and the judgment should be either unanimous or by a majority. In that it differs from the Court of Civil appeal. But separate judgments are delivered only as regards questions of law and when The Court deems it convenient. However only the judgment of the Court is pronounced and no other separate judgment (295). The wording of the 1907 English Act from which our provisions have been borrowed have been changed and it clearly allows the pronouncing of a separate judgment. The Act allows appeals by persons convicted before the Supreme Court (296). Now, as we have seen, the Court of Assizes may, in theory, sit with two judges and a jury or without a jury. Therefore, in such a case, contrary to the situation as regards civil appeals, an appeal still lies before the Court of Criminal Appeal (and not to Her Majesty in Council). Appeal against convistion lies as of right on questions of la (297). However, when such appeal is made on grounds which are not substantial, the Master and the Registrar may refer the matter to the Court which, when it finds the appeal to be frivolous and vexatious, dismisses it without a full hearing (298). On grounds involving fact alone, an appeal may be made with the leave of the Court or upon certificate of the Judge (299). But when there is a question of mixed law and fact, appeal can only be made upon certificate of the trial Judge (300). When the Judge refuses leave, the applicant may move the Court for a determination on his application (301). The power to grant a certificate was given to meet cases where the Judge thinks the verdict is unreasonable or that there has been a miscarriage of justice (302). As far as sentence is concerned, leave should be obtained from the Court unless the sentence is one fixed by law (303). The provisions of the Criminal appeal Act are multifarious. So are the powers of the Court. In addition, the Court has expressed the view that section 3(7) enables the Court to exercise powers similar to those held by the Criminal Division of the Court of Appeal in England (304). The Court shall interfere only if the verdict is unreasonable or it cannot be supported having regard to the evidence, or when the Judge has made a wrong decision of law, or there has been a miscarriage of justice (305). Though the Court may think that a point should go in favour of an appellant or that the case is a weak one or that the Court feels some doubt about the verdict, it will not reverse the decision if no miscarriage of justice has occurred (306). However, whenit finds that there is a kurking doubt that injustice has been done, it will quash the conviction (307). The Court may in the interest of justice, order the production of new documents and exhibits, take or order further deposition of witnesses, refer for examination any document, or order scientific or local investigation, and even appoint a person with exper knowledge to act as

assessor to the Court (308). The House of Lords, whose opinions are used for guidance here, held that the Court of Criminal Appeal should have the maximum flexibility in dealing with an appeal. (309). However, the right to call fresh evidence or call a witness, which is peculiar to our system, (and which we borrowed from the 1907 English Act) will be in a wholly exceptional case and if expedient in the interest of justice (310). What would happen if one day the Court decides to receive fresh evidence and evidence in rebuttal is also to be called? It is to be wondered whether the Court will order a retrial before a jury (311). CHAPTER IV HER MAJESTY IN COUNCIL This is the institution to which a Mauritian may have ultimate recourse, though not as of right in all cases. After the downfall of the Counciliar Courts in England, the Sovereigns Council retained its jurisdiction over the colonies, through a Judicial Committee. When the Empire grew, a te-organisation wqas effected in 1833 to include the Superior Court Judges in the Committee. Mauritius is one of some of the Commonwealth countries which has retained a right of appeal to her Majesty in Council. Composition: Based on the British 1833 Act, it now consists of the Lord President of the Council, the Lord Chancellor, ex-lord presidents, the Lords of Appeal in Ordinary and such other members of the Privy Council as from time to time hold and have held judicial office and two other privy counsellors who may be appointed by the soversign by sign manual. Sometimes a Judge of a Commonwealth country is appointed member (313). When appeal lies: There are two modes, statutory or by special leave (314). For Mauritius, the Constitution (section 81) provides that an appeal shall lie from final decisions of the Court of Appeal or the Supreme Court on questions relating to the interpretation of the Constitution or from final ecisions regarding fundamental rights under section 17 of the Constitution, final decisions in civil matters of over Rs 10,000, evidence of which rests upon the applicant for appeal (315) and other cases to be prescribed by Parliament. Parliament did do so when allowed in 1980 an appeal as of right in all criminal cases (316). A decision of a Judge in Chambers on a writ Habere Facias Possessionem or of a judge in Bankruptcy that someone is a trader are not, for example, final decisions for the purposes of section 81 (317). The Supreme Court may grant leave to appeal when the question involved is of great general or public importance. But whatever be the situation, the right is curtailed when the application is frivolous or vexatious (318). However, the Supreme Court will refrain from encroaching within the province of the Judicial Committee (319). In whatever case one is, whether appeal as of right or with leave, conditional leave must first be obtained (320). Further, no leave will be granted if an appeal lies to the Court of Appeal (321). In this context, when appeal lies as of right, the word leave does not imply a discretion (322). Nothing bars the Judicial Committee from granting special leave. This may happen when, for example, the Court has refused leave or where the appeal has not been made within the prescribed delay.

The Constitution makes four important exceptions to the right of appeal to her Majesty. They are determinations as to questions of membership of Parliament (323), question incidental to any application or declaration in relation to an election of a candidate at an election, the community of such a candidate or the invalidation of a nomination of a candidate by the Returning Officer (324). Exercise of Jurisdiction: The Judicial Committee is an Appellate Court. It is a Commonwealth Court, but for convenience, it sits in London. It was once suggested that it should go on circuit. The mode of proceeding and practice and procedure before the Committee is minutely detailed (325). Without going into the whole of it, it appears interesting to point out that no party can argue an appeal unless he has previously lodged a case, which recites the circumstances giving rise to the appeal and the contentions to be urged by the appellant and the reasons of appeal. It should also be noted that no review of criminal proceedings will be undertaken unless the appellant satisfies the Committee that, by disregard of forms of legal process or some violation of the principles of natural justice, a real miscarriage of justice has occurred (326). The Judicial Committee will not interfere with the findings of fact as it considers the court below as the better judge for that purpose. It is also loth to overrulr a Court of Appeal which, in the exercise of its discretion, had disallowed a point not raised at first instance (327). The judgment is in the form of a report, advising Her Majesty as to the result of the appeal. It is invariably embodied in an Order in Council and then becomes final decree. It was formerly thought that contradictory advice could not be given to the Crown, but this was abolished by Order in Council in 1966 (328). Authority of the decisions of the Privy Council: The Committee does not feel itself bound by its previous decisions (329). But as far as we are concerned, the decisions of the Privy Council are binding on us when they apply Mauritian law. When they construe other laws, then we will feel bound on the point only when that foreign law is incidental to ours (330). What about decisions of the House of Lords? And for that matter those of the Cour de Cassation in France? For the House of Lords we find the answer in Moodoo v Coowar (331): they are treated with great respect and have persuasive authority. A reading of the Mauritius Reports shows the same attitude in relation to the Cour de Cassation and the other French Superior Courts. Recourse to the precedents of high tribunals in other countries is rather limited. S. BHAUKAURALLY &&&&&&&&&&&&&& (1) (2) (3) Code Delaleu Page 175 no. 127. Dictionnaire de Biographie Mauricienne, Page 755. Baron d'Unienville - Statistique de lile Maurice et ses dependances.

(4) (5) (6) (7) (8) (9) (10)

Annales de l Universite de Madagascar Vol. 6 - Toussaints Le Domaine de Benares et les debuts du sucre (page 77) Order 3 Germinal Year 11 (1803) 24 mars 1803. Code Farquhar Page 3. Colonial Government V Laborde (1902) MR 19. Lane - Vol. I Sub Leg- Page 27 Item 8. Order in Council 14th February, 1909. Section 70A Courts Act. Section 81 Constitution.

(11) (12) (13) (14)

Napal: Les Constitutions de Maurice Page P3 et Seq. Napal Op. Cit. Code Delaleu Page 139 & Page 164. Code Delaleu Page 109.

(15) R. d 'Unienville - Histoire Politique de lIsle de France 1789 - 1791 Page 69. (16) Bulletin Annuel de la Societe de lHistoire de lile Maurice 1938 - 39. France - Page 62. (17) (18) Code Decaen - Page 5. Toussaint - Histoire des Iles Mascareignes Paecs 178 181. Essai sur lile de

(18 Bis) E.g. R. V. LEtendry (1953) MR 15. (18 Ter) E.g. R. V. Jean-Louis (1953) MR I27. (19) Hansard - 1954 Vol I Page 9 Debates No. 2 (Remark of the Procureur General to the Legislative Assembly). (20) Hansard - 1963 855-858 907 910.

(21) (22) (23) (24) (25) (26) (27) (28) (29) (30) (31) (32) (33) (34) (35) (36)

Section 3 Court of Civil Appeal Act. Code Decaen Page 5. Leclezio V. Newton (1895) MR 30. Herchenroder & Koenig Page 2117. Repertoire Bonnefoy- Page VII. R. Hein - in I'lle Maurice et sa civilisation-N.M d'Unienville, Editor. Mauritius Illustrated 1914 (Archives). Dictionnaire de Biographie Mauricienne Gujadhur V. Reunion 1960 MR 112. R. dUnienville opcit, p.68 et seq. R. d'Unienville opcit. P.70-71. R. d'Unienville opcit. p. 71 Arrete of 16 frimaire Year 3 (6th December 1794) R. d'Unienville opcit. Code Delaleu p. 109. Toussaint L'Administration de I'lle de France,et Ses Archives (1721-1810) Page 1057.

(37) (38) (39) (40) (41) (42)

Code Faquhar p. 107. d 'Unienville - op. cit. p. 53. Code Delaleu p. 314. Code Decaen p. 4.

Proclamation dated 31st March 1811-CodeFarquhar P.32. E.g Despeissis v. Carenac (1867) MR 80.

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Toussaint L'Administration de I'lle de France et Ses Archives for speedy trials of crimes and misdemeanours committed in the gun factory, the hospital, the stores and workshops of the King. Toussaint op.cit. To try cases of attempts against the liberty, the equality, the unity and the indivisibility of the Republic as well as the internal and external security of the state and all plots tending to re-establish the sovereignty of the King It first exercised its functions when charges of treason were brought against the Vice-Admiral de St. Felix and other. Herchenroder & Koenig - Laws of Mauritius p. 2048. For Civil cases of small amount, and criminal offence of low degree. Section 93 Courts Act. District Court Rules (Terms: 15 January-15 June; 15 July to 15 December Rule 4) Julien V. Julien (1933) MR 192. Section 161A Courts Act. Section 4 of the District and Intermediate (Criminal Juirisdiction) Act. Sectior, 5 of the District and Intermediate (Civil Jurisdiction) Act. Candasamy v. R. (1948) MR 357. Beebeejaun v Receiver General (1930) MR 187. Section 102 Courts Act. And of art 171 of the Code of Civil Procedure Sections 119, 120 Courts Act. Hossenbaccus v R (1959) MR 79 Oozeerally v. Judicial and Legal Service Commission (1981) MR 444, Section 86 Constitution, Judicial and Legal Service Commission Regulations. Oozeerally v. Judicial and Legal Service Commission (1981) MR 444 Section 6 of the Public Officers Protection Act. Section 125 Courts Act.

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(45) (46) (47) (48) (49) (50) (51) (52) (53) (54) (55) (56) (57) (58) (59) (60) (61) (62)

(63) (64) (65) (66) (67) (68) (69) (70) (71)

Section 99 Courts Act. Ushers Act. The Public Service Commission Regulations Section 21 Law Practitioners Act. Section 24 (5) Law Practitioners Act. Section 131 Courts Act. Sections 114, 115, 116 & 117 Courts Aot. Section 114 (2) Courts Act (see Aukloo v. R (1986) SCJ 304 on the words "persistent offender" appearing in the sub- section), E.g The offence of smuggling. However if the Statute does not expressly give the power, the jurisdiction of the Magistrate is ousted (see Rama v. R (1970) MR 200, DPP v. Toolsee (1972) MR 237. cf. section 110 District and Intermediate Courts (Criminal Jurisdiction) Act. Celia Hampton - Criminal Procedure Page 55 (3rd. Edition). Sections 110 and 111 of the District and Intermediate Courts (Criminal Jurisdiction) Act. Section 72 Constitutio. Section 104 (1) Courts Act. GN 337 of l980. Busgeet v Busgeet (1966) MR 52 (Taking into consideration of the value of the whole of the successoral rights in a case of "retrait successoral."). Fleurie v Wong King Yuen (1978) MR 32 (Rules of the District Court cannot confer upon the District Court a jurisdiction which the parent enactment does not give it - i.e,.in a case of an interpleader action where the value of the goods seized exceeded the prescribed amount). Gangaram v dEmmerez (1876) MR 130) (the claim being dependent on a contingency and exceeding the prescribed amount at the time of judgment, the claim goes beyond jurisdiction). Pierrot v Lugeol (1876) MR 112 (A District magistrate is incompetent to try an action, the solution of which depends upon the existence or non-existence of a company with capital in

(72) (73) (74) (75) (76) (77)

excess of jurisdiction. c f Diore & Co v Lamarque (1880) MR 80 - (enforcement of the payment of instalment on a share is possible when it does not exceed the prescribed amount if the defendant does not deny the existence or formation of a society). Abdoola v Sankursing (1865) ME 38 - A Magistrate is fully competent to hear and determine a claim to goods seized in execution of a Supreme Court juggment provided the value of the goods is less than Rs 1O,,000/- (now sanctioned by Section 105 (2) of the Courts Act) Cf Ammanyamah v. Allokhan (1878) Mr 54 (The Supreme Court is alone competent to adjudicate on the nullity of a seizure made in execution of its judgment). Gebert v. Allaine (1920) MR 1- Garnishee proceedings are properly dealt with by the Judgee in Chambers . (78) (79) (80) (81) (82) Mukoonlall v. Rughoobur (186i) MR 60. Chung v.Gaspard (1964) MR 108. Pengwah v. Nowrung & Or. (1977) MR 274. Stobart v. Arlanda (1982) MR 15. Pernot & 0rs v Bhuttoo & Or. (1956) MR 252. Seegoolam v Fatingah (1957) MR 106. (83) (84) (85) (86) (87) (88) (89) (90) (91) Sections 2 &3 Landlord and Tenant (Control) Act. Mauritius Printing Co. Ltd. v. Hossen (Opticians) Ltd (1977) MR 119. Allied Cinemas Co. Ltd V. Allabux (1974) MR 202. Section 108 Courts Act. Jaypal v. Cayeux (1954) MR 181. Section 108 (3) Courts Act. Brasse v Leonide (1953) MR 137. Goorghan v Joye (1986) SCJ 11 Brown v Autard (1877) MR 194.

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E.g Chetty v. Vengadasalon (1901) MR 22. Cf Seenarain v Ramtohul (1888) MR 104 - where it was held that the magistrate has competence to hear a case where the contract of marriage or on a question of a right of inheritance was not in issue.

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Cf Felin v. Gourdin (1867) MR 35 - where it was held that the District magistrate has jurisdiction to try an action raised by a tenant against his landlord in order to obtain the removal of building ereced by him in the premises leased. Section 111 Courts Act. Article 239 Code Napoleon. Section 143 BanKruptcy Act. Bardin v. Brouse de Gersigny (1864) MR 900 Sections 2, 3, 4, 5 Recovery of Crown Debts Act. Section 3 District and Intermediate Courts (Civil Jurisdiction) Act

(94) (95) (96) (97) (98) (99)

(100) Sections 20, 24 & 34 Lunacy Act. (101) L 'Avenir Mosque v. Algoo (1986) SCJ 344 (102) Section 57 District and Intermediate Courts (Criminal Jurisdiction) Act. (103) Atchia v Board of Waqf Commissioner (1954) MR 46. (104) Section 31 Public Health Act. (105) Section 15 Building Act. (106) Section 57 Building Act. (107) Section 51 of Traffic Act. (108) Section 53 (3) (a) Road Traffic Act. (109) Section 109 Courts Act. (110) Section 50 Civil Status Act. (111) Section 53 Rivers and Canals Act

(112) Section 5 Criminal Procedure (Supplementary) Act. (113) See Potter: Historical Introduction to English Law p. 223.Maitland: The Constitutional History of England P. 206. (114) Section 12 District and Intermediate Courts (Civil Jurisdiction) Act. (115) Section 82 Constitution (116) Section 92 District and Intermediate Courts (Criminal Jurisdiction) Act. (117) Section 101 District and Intermediate Courts (Criminal Jurisdiction) Act. (118) Section 36 District and Intermediae Courts (Civil Jurisdiction) Act. (119) Rassool v Gungadass (1922) MR 26 Ministry of Works v Sheik Ally (1965) MR 262 Carey V Moussoudee (i966) MR 108. (120) Dilmahomed v. Earally (1956) MR 17. See Sawmy v Lecordier (1974) MR 246- That the acquiescement should be ratified by the signature of the party acquiescing. (121) Sections 3 & 18 Juvenile Offenders Act.

(122) Section 4 (a) Juvenile Offenders Act. (123) Section 6 Juvenile Offenders Act. (124) Section 4 Juvenile Offenders Act. (125) Wilson: The English Legal System (The remark of the author applies in some measure to our juvenile courts). (126) Section 3 Juvenile Offenders Act. (127) Section 15 Juvenile Offenders Act (128) Section 22 Juvenlie Offenders Act (129) The DPP v. The D.M of Savanne and anor (1980) MR 88 (130) Section 23 Juvenile Offenders Act Reprint No.1 of 1983

(131) A. North Coomdes: The Island of Rodrigues. (132) Section 97 Courts Act. Section 3 Rodrigues (Administrative and Judicial Provisiona) Act. (133) Section 4 Court of Rodrigues Jurisdiction Act. (134) Section 12 Courts of Rodrigues Jurisdiction Act Section 113 Courts Act (135) Police V Rose (1976) MR 79. (136) Sections 20A, 6, 7, 8 & 9 Divorce and Judicial Separation Act. Article 240 to 243 Code Napoleon. (137) Section 4 (3) Industrial Court Act. (138) Sections 158, 159 & 160 Courts Act. For a series of examples of such regulations see the unofficial publication of the Statutes (Subsidiary Legislation) 1971. Vol II Page 243 onwards. (139) Section 5 Rodrigues (Administrative and Judicial provisions) Act. For a complete list of the powers and duties of the Administrative Secretary, see the Schedule to the Act For the question whether he can delegate those powers to another officer, the Supreme Court has reserved judgment on the point in an appeal case. (140)Section 5 of Act No.40 of 1985. (141)Section 3 of Ordinance No. 4 of 1904. (142)Kolawan v R 1984 SCJ 110 Begue V R 1973 Mr 278 Section 68 (1) of the District and Intermediate Courts (Criminal Jursdiction) Act. (143)Hansard - 1960 Vol.I p.1321 onwards. (144)Hansard- 1971 Vol. I p. 364 onwards.

(145)Sections 80 & fol. Courts Act. (146)Shea & ors v. R. (1968) MR 100 (147)Ecumoir v. R (1984) SCJ 310. (148)The practice to be followed is laid done in Bayjoo v. Jehangeer (1982) SCJ 202 (149)Bayjoo v. Jahangeer (supra) (150)Mungrally v R (1975) Mr 191 Rault J. dissenting (151) Paniapen & or. v. R (1980) MR 292. (152) E.g Regina v. Chevery (1st Session 1982) Case No.3 (153) Section 113 Courts Act as amended by Act No. 5 of 1985. (154) Section 67A District and Intermediate Courts (Criminal Jurisdiction) Act. (155) Section 104 Courts Act GN 330 of 1980 (156) Goorghan v Joye (1986) SCJ 11. (157) Hansard 1940 44 Vol. III and IV Page 1149 onwards. (158) Desvaux de Marigny v M.C.B Ltd (1979) MR 15. (159) Chokalingum v. Chedy (1955) Mr 52. (160) Section 31 (1) Workmens Compensation Act Lieutier v Sungkoora (1958) MR 156 (161) Section 15 Industrial Court Act (162) Lee v Labonne & Ors. (1980) SCJ 381 Section 17 Industrial Court Act (163) Section 17(4) Industral Court Act. (164) Section 5 Industrial Court Act. (165) Section 11 Industrial Court Act. (166) Lee v. Labonne & Ors. (1980) SCJ 381.

(167) Section 12 and 13 Industrial Court Act. (168) Narainen v. Director of Medical Services (1957) MR 297. Ministry of Labour on behalf of Birjmohun v. The Constance and la Gaiete (1970) MR 45. (169) Section 13 (1) Industrial Court Act. (170) Ordinance No.22 of 1920 made to check profiteering Regulations made under the Emergency Powers (Colonial Defence) order in Council 1939. See E.g. Currimjee Jeewanjee & Co v. R (1942) MR 133. (171) Section 3 Profiteering Court Act. (172) Sections 13 & 14 Fair Trading Act. (173) Section 8 Supplies Control Act. (174) Section 4 (1) Profiteering Court Act. (175) Section 4 (4) Profiteering Court Act. (176) Chikuri v. R. (1986) SCJ 46. (177) Act No. 12 of l986. (178) Section 3 Criminal Procedure (Amendment) Act l986. (179) SS 76 and 77 Constitution. (180) S 7 (2) Courts Act. (181) S 77 (4) Constitution. (182) S 7 Courts Act. (183) S 76 Constitution. (184) (1974) 3 WLR 459. (185) (1979) AC 385. (186) S 78 (2) Constitution. Co. Ltd.

(187) S 78 (4) Constitution. (188) S 19 Courts Act. (189) de Lanux v. Boyer de la Giroday (1886) MR 18. (190) Delbor v. Martial (1886) MR 89. (191) Bigaignon v. Collard (1905) MR 30. (192) E.g. S. 174 Courts Act. (193) S 22 Courts Act. (194) S 10 Courts Act for a period extending from July 1791 to September 1803, the Palais de justice was used by the Colonial Assembly; The same building has been used by the Cour d 'Appel since 1785, and then by the Supreme Court since 1850. (195) S 9 Courts Act. r. 160 Rules of Supreme Court. (196) rr. 16l and 162 Rules of Supreme Court. (196Bis) S 12 Courts Act S 21 Law Practitioner Act Ex-parte: Bisooondoyal (1945) MR 139. Tronche v. Legras (1924) MR 145 (197) Peacock v. Bell (1 Wms. Saund. 73; 85 ER 84) In Rama v. N.T.C (1958) MR184. (198) S 76 Constitutioon. (199) S. 15 & 8 Courts Act. (200) SS. 35 and 36 Courts Act. (201) Leclezio v Newton (1895) MR 30 (202) S 76 Constitution

S 38 Courts Act. (203) See S 112 of the Courts Act. (204) cf. S.40 of the Courts Act. (205) Jaulim v. DPP and or (1976) MR 96. (206) S 38 Courts Act. Criminal Procedure (Amendment) Act 1986. (207) Devlin -The Judge p.201 (208) art 3 of Ordinance No. 2 of 1850. (209) Ex-parte: Ganachaud (1917) MR 19 (210) Ex-parte: Citta (1958) MR 347 (211) (1965) MR 102. (212) S20 (2) Interpretation and General Clauses Act. (213) S. 2 Constitution. (214) Abraham: The Judiciary. (215) S. 84 Constitution- e.g. Police v. Labat(1970) MR 214. (216) Vallet v. Ramgoolam (1973) MR 89 (217) Police v. Labat Supra. (218) Police v. Rose (1976) MR 79. (219) Jaulim v. DPP and or (1976) MR 96. (220) DPP v. Masson (1972) MR 204. see also Vallet v. Ramgoolam (1973) MR 29 (221) Police v. Moorba (1971) MR 199. (222) Berenger v.Governor-General of Mauritius (1973) MR 215.

see also Lincoln v.Governor-General (1975)MR 290 (223) Lincoln v. Governor-General (1973) MR 290 (224) Leckning v. Governor-General(1975 ) MR 134 (225) Esther v. The Honorable Prime Minister (1983) SCJ 233 (226) Noordally v The Honorable, The Attorney General (1986) SCJ 339. (227) Mahboob v. The Government of Mauritius (1982) SCJ 159. (228) Unuth v. Police Service Commission (1982) SCJ 284 Erriah v. Public Service Commission (1974) MR 22 (229) Act No. 27/1981. (230) Halsbury Vol I p. 212 307 (231) Seaway Mauritius Agencies Corporation v. Orient Fishing Co. Ltd (1982) SCJ 367. (232) (1982) SCJ 284 (233) (1974) MR 299 (234) Ramtohul v, Dabydoyal (1971) MR 49 (235) Meewah v R (1972) MR l64. (236) Bird v An Attorney (1914) MR 94. See also Koo Foo Seng (W) v. (h) (1957) MR 104. (237) Ng Kon v. Gopee (1970) MR 218. (238) Private Company Three Feathers v. Nouvelle Societe Tamarind Falls (1978) MR 48. (239) Tea Board. v. Societe Ramdin and Co. (1981) MR173. (240) Seeruttun v. Moosun (1973) MR 193. (241) Bird v. An Attorney (1914) MR 94. (242) de Laroze v. An Attorney (1914) MR 113.

(243) Procureur General v. D (1973) MR 191 (244) S. 13 Law Practitioners Act. (241) S. 14 (1) Law Practitioners Act. (242) S. 14 (2) Law Practitioners Act (243) S. 13 Law Practitioners Act. (244) S. 9 Medical Prcactitioners Act. (245) Ordinance No. 24 of 1855 Nuckchady v Ramjeeawan (1887) MR 147 Goomany v. Ransley (1954) MR 257 (246) MCB Ltd. v Sibartie and or (1980) MR 155 (247) (1993) SCJ 280. (248) Ordinance No. 45 of 1902. (249) Bhugobaun v. Leclezio (1984) SCJ 208. (250) Gujadhur v. Reunion Ltd (1960) MR 112 and Laiterie de Curepipe V. Maurilait (1982) SCJ 20 (251) LHoir v. Levieux (1909) MR 130 (252) Bundhoo v. PSSA (1983) SCJ 131 (253) The Rameshwarnath Temple Association & ors v The Mauritius Sanatana Federation (1986)SCJ 173 (254) S. 62 Courts Act (255) S. 9 Bankruptcy Act (256) S. 18 Bankruptcy Act (257) S. 28 Bankruptcy Act (258) S. 19 Bankruptcy Act Temples

(259) S. 103 Bankruptcy Act (260) S. 28 Bankruptcy Act (261) S. 15 Insolvency Act (262) S. 12 Insolvenvy Act (263) S. 18 and 19 Insolvency Act (264) S. 81 Bankrupcy Act (265) Veeren v. de Villecourt (1874) MR 36 Per Lord Wesbury in Attorney General v. Sillun (1864) 10 HLC 701, 720 (in Goomany V. RansLey) (266) Chikuri v. DPP (1986) SCJ 46 (267) S.70 Courts Act (268) E.g Sewnarain v R (1986) SCJ 231 Ollivier v. R (1986) SCJ 232 (269) Marie v. Rambohjur (1863) MR 70 (270) Nancy v. R (1901) MR 2 (271) Murray v. Rahiman (1863) MR 36 (272) cf. Court of Criminal Appeal (273) Ramdanee v. Luximion (1970) MR 270 (274) (1950) MR 66 (275) (1970) MR 125 (276) Aukburally v Aukburally (1967) MR 30 (277) Denning: The Discipline of Law p. 289 (278) (1971) MR 226 (279) (1970) MR 195

(280) Govinden v. R (1875) MR 44 (281) S. 82(2)(a) Constitution s. 101 of District and Intermediate Courts (Criminal Jurisdiction) Act (282) (1980) MR 328 (283) (1947) 1 AER 126 (284) (285) (286) S. 2 Court of Civil Appeal Act S. 3 Court of Civil Appeal Act S. 3 Court of Civil Appeal Act

(287) S. 6 Court of Civil Appeal Act New Goodwill v. Tan Yan (1977) MR 186 (288) S. 9 Court of Civil Appeal Act (289) S. 11 Court of Civil Appeal Act Chuttoo v. Rohee (1967) MR 35 (290) (291) (292) (293) (294) (295) (296) (297) (298) (299) S. 11 Court of Civil Appeal Act S. 10 Court of Civil Appeal Act S. 4 Court of Civil Appeal Act Opening words of s. 4 Court of Civil Appeal Act S. 80 (1) Constitution S. 3 Criminal Appeal Act S. 5 Criminal Appeal Act S. 5 (1) Criminal Appeal Act S. 17(2) Criminal Appeal Act S. 5(2) Criminal Appeal Act

(300) (301) (302) (303) (304)

S. 5(2) Criminal Appeal Act S. 19(2) Criminal Appeal Act Edoo v. R (1966) MR 76 S. 5(3) Criminal Appeal Act R v Myrtille (1982)SCJ 264 Allowing the raising of additional matters on the day of hearing if they concern issues of some substance. The Court added that, following R v. Haycraft (1974) 58 Cr. App R 121 such application will be rarely granted.

(305) S. 6(1) Criminal Appeal Act (306) Edoo v R (1966) Mr 76 S. 6(1) Criminal Appeal Act (307) R v. Cooper (1969) 1 QB 267 (308) s. 11 Criminal Appeal Act (309) Stafford v. DPP (1974) AC 878 (310) Devlin- The Judge p. 187 (311) R v Merry (1971) Crim LR 91 (312) James: Introdruction to English law-p.35 Jackson: The Machinery of Justice in England p. 116 (313) Halsbury: Laws of England (4th Edi) P. 355 paras. 767 (314) Halsbury op. cit. Para 774 (315) Concord International (Mtius) Ltd v. Concorde Tourist Guide Agency Ltd (1986) SCJ 39 (316) (317) S. 70A Courts Act Beenesseering v. Sawmy (1976) MR 207 Roy v. Ste de Vallonvert(1982) SCJ 268 and 768

(318) Ramdharry v. 0'Shea (1970) MR 114 (319) Bata Shoe v. CEB (1978) MR 159 (320) Tyack v. Jhurry & ors (1973) MR 310 s. 4 Mauritius (Appeal to Privy Council) Order 1968 (321) S. 81 Constitution (322) (323) (324) (325) (326) (327) (328) (329) (330) (331) Halsbury op. cit. para 774 S. 37(6) Constitution Paras 2(5), 3(2) and 4(4) of the First Schedule to the Constitution see Halsbury op cit para 782 et seq Wong Pooh Yin v. Public Prosecutor (1955) AC 93 Halsbury op. Cit. para 820, 821 see E.g. Of dissenting judgment in the Commissioner of Income Tax v Esperance Co. Ltd delivered on the 7th November, 1983. Nkambule v R (1950) AC 379 Societe United Dock v. Government of Mauritius (1981) MR 500 (1971) MR 248