Margaret Toumany and another v Mardaynaiken Veerasamy (Mauritius)

An appeal to the Supreme Court should not fail because documents mistakenly identify the particular appellate jurisdiction invoked where the mistake creates no genuine procedural or constitutional problem. The court should identify and correct the error promptly and determine the substantive appeal on its merits. The Court of Civil Appeal is a division of the Supreme Court. Procedural rules governing an application for a new trial should likewise be read as discretionary where justice requires, rather than as automatically barring relief because an application is late.

The appellants were sued in the Intermediate Court of Mauritius, where judgment was entered in their absence. Their application for a new trial was refused. On appeal, the respondent argued that the appeal documents ambiguously referred to the Supreme Court and its Court of Civil Appeal. The Supreme Court dismissed the appeal on 11 November 2009 solely on that jurisdictional ground.

The Supreme Court granted leave to appeal to the Judicial Committee. The central issue was whether the documentary error justified dismissing the appeal instead of hearing it on its merits. The Board also considered the consequences of the earlier refusal of a new trial.

1. Appeal allowed. The Board held that the Supreme Court had jurisdiction under section 69(1)(e) of the Courts Act 1945, pursuant to section 82(2)(d) of the Constitution. The appeal was not brought under section 80, which concerns the Court of Civil Appeal’s jurisdiction over appeals from a single Supreme Court judge.
2. Because the Court of Civil Appeal is a division of the Supreme Court, an erroneous or ambiguous reference in the initiating documents did not invalidate the appeal where no genuine problem had been created. The error should have been identified and corrected without penalty, and the appeal heard on its merits.
3. The Board rejected the technical approach represented by the Supreme Court’s decision. The distinction between the two appellate jurisdictions did not justify treating them as separate and distinct courts where the Supreme Court was properly constituted.
4. The Board also held that rule 65 of the District and Intermediate Courts (Civil Jurisdiction) Rules was discretionary. It did not automatically prevent a new trial being ordered merely because the application was made outside the stated 15-day period where a new trial was necessary for the ends of justice.
5. Given the lapse of almost ten years and the appellants’ apparent lack of responsibility for their absence at the original hearing, the Board directed that a new trial be fixed as soon as possible before the Intermediate Court. The costs thrown away before that court were to be paid by the appellants’ original negligent attorneys. There was no order as to the Supreme Court costs, and the respondent was ordered to pay the appellants’ costs before the Board.

• Privy Council: The appeal was allowed and a new trial before the Intermediate Court was directed.
• Supreme Court of Mauritius: On 11 November 2009, the appellants’ appeal was dismissed solely because the documents were considered uncertain as to whether the appeal had been brought before the Supreme Court or its Court of Civil Appeal.
• Intermediate Court of Mauritius: Judgment was entered in the appellants’ absence. An application for a new trial was refused on 26 January 2006.