UKPC 13
Privy Council Appeal No 0017 of 2010
Margaret Toumany and John Mullegadoo v Mardaynaiken Veerasamy
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
10 May 2012
Heard on 30 March 2012
Jennifer Wong Ten Yuen
(Instructed by SB Solicitors)
"63 The magistrate shall have power (on such conditions as to security for the amount of the judgment or for damages and as to payment of costs, as he may deem proper), to grant a new trial, in any case where it shall be in his opinion necessary so to do for the ends of justice.
65 Such application for a new trial must be made at any time within 15 days from the date of the judgment, if the judgment has been given in the presence of both parties, or within 15 days after the execution of such judgment when it has been given for the plaintiff, in the absence of the defendant."
"Had this been the case, the attorney would have been perfectly entitled to inform the court by writing of that predicament well before trial date for the needful to be done until the file had been traced out. But unfortunately, no such step seemed to have been undertaken."
What can this mean? It certainly looks as if the attorney's negligence has after all been visited on the appellants. Before further considering this, however, the Board must explain how it came about that, even at the next stage of the litigation, the appellants were still denied a judgment on the merits.
"80(1) There shall be a Court of Civil Appeal . . . which shall be a division of the Supreme Court.
(2) The Court of Civil Appeal shall have such jurisdiction and powers to hear and determine appeals in civil matters . . . as may be conferred . . . by this constitution or any other law.
(3) The judges of the Court of Civil Appeal . . . shall be the judges for the time being of the Supreme Court."
"82(2) An appeal shall lie to the Supreme Court from decisions of subordinate Courts in the following cases . . .
(d) In such other cases as may be prescribed: . . ."
"Subject to this Act and to any rules of Court made under it, any party aggrieved by any judgment or order of a Judge sitting alone in the exercise in Court of his original civil jurisdiction may appeal from such judgment or order to the Court of Civil Appeal."
"The Chief Justice, or where he is absent or is for any reason unable to sit on the Court of Civil Appeal, the Senior Puisne Judge, shall preside over the Court of Civil Appeal."
One can readily see why, if the appeal jurisdiction being exercised by the Supreme Court is that from a Judge (himself or herself ex-officio a Judge of that Court), it is desirable that the presiding judge shall be the Chief Justice or the Senior Puisne Judge.
"69(1) Subject to any other enactment, the Supreme Court shall have full power and jurisdiction to hear and determine all appeals, . . . made to the Court from . . . (e) the Intermediate Court; . . ."
Their Lordships may add that none of the above has ever been in doubt or dispute in the present litigation.
"We take the view that this, in the light of the heading of the notice of appeal and the praecipe, cannot conclusively show that the appeal is directed to the Supreme Court, since the Court of Civil Appeal is also a division of the Supreme Court as provided by section 2(2) of the Court of Civil Appeal Act. At the most, it only goes to indicate that there is some ambiguity and confusion as to the jurisdiction that is being seized, but it does not unequivocally show that this appeal from the decision of a magistrate has been lodged before the Supreme Court as opposed to the Court of Civil Appeal, which is a different and separate jurisdiction that can only hear appeal from a judgment or order of a judge in the exercise of his original civil jurisdiction."
A little later the Court concluded:
"In the circumstances, the appellants being uncertain in what capacity they have seized the present Court – whether as a Court of Civil Appeal which, pursuant to section 80 of the Constitution, is a division of the Supreme Court, or as the Supreme Court, a separate and distinct jurisdiction which, by virtue of section 82(2) of the Constitution, hears appeals from decisions of subordinate courts, and since the jurisdiction of a court is a matter of public order, they can only ignore the competence of the court they are seising at their own risk and peril. For the above reasons, irrespective of whether there may be substance in this appeal, we have no alternative than to set it aside with costs."
"For the above reason, and also in view of the state of our jurisprudence in respect of appeals which have been either lodged before or directed to the wrong jurisdiction, we grant leave to the applicants to appeal to the Judicial Committee." (emphasis added)
Should this appeal to the Supreme Court have been dismissed on jurisdictional grounds as it was? That is the critical first question now for decision by the Board and we should be dissimulating were we to answer it other than by a categorical and resounding NO.