Transpacific Export Services Ltd v The State and another

Constitutional rights do not provide an additional route to relief where adequate redress exists under ordinary law. A claim under section 17(1) is barred by section 17(2) where the ordinary-law remedy addresses the same complaint. A fair-hearing complaint cannot convert errors of law by a lower court, corrected on appeal, into an unfair hearing. For the administrative activities in issue, a claimant alleging misfeasance by public officers had to plead and prove faute lourde. The pleading need not use that expression, but it must state facts capable of constituting it and the evidence must establish them. Failure at both stages defeats the claim.

The appellant imported electrical goods into Mauritius. Police and revenue officers seized and detained them in 1996. It claimed damages for wrongful detention against the State, responsible for the police, and the Mauritius Revenue Authority.

The Supreme Court dismissed the plaint on three grounds. The Court of Civil Appeal accepted that two grounds were invalid but upheld dismissal because the company had neither pleaded nor proved faute lourde. The Privy Council considered the company’s constitutional arguments and whether that heightened threshold applied and had been established.

1. Constitutional claims. The Board rejected the claims based on protection of the law and protection from deprivation of property. No claim for constitutional redress had been made under section 17(1), and section 17(2) prevented relief where adequate redress was available under the ordinary law. The company’s misfeasance claim offered the relevant remedy and the constitutional provisions added nothing of substance.
2. The Board relied on Dosoruth v The State of Mauritius and the Director of Public Prosecutions [2004] UKPC 51 in recognising that section 82(1) could be invoked without proceeding under section 17. Even assuming that the trial court was a subordinate court for that purpose, the company identified no directions which the Court of Appeal should have given. The argument therefore failed.
3. The fair-hearing argument, raised for the first time before the Board, was misconceived. As explained in Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385, an error of law by a lower court, when rectified on appeal, does not make the lower court hearing unfair.
4. Faute lourde. The Court of Appeal was correct to hold that the company had to aver and establish faute lourde by the respondents’ préposés. The Board treated the authorities concerning public and administrative liability, including The State of Mauritius v Sookna 2001 SCJ 51, Ki Xia Ng Pan Hing v The State of Mauritius 2006 SCJ 305 and Mario Alain Chung Ching Ah Sue v The State of Mauritius 2015 SCJ 110, as supporting that conclusion.
5. The plaint need not have used the legal expression faute lourde. It had to allege the facts relied on as constituting it, and the evidence had to establish those facts. The plaint recited no facts capable of meeting that threshold, and the evidence established none. The appeal was dismissed and the appellant was ordered to pay the respondents’ costs.

1. Privy Council: On appeal as of right, the Board dismissed the appeal against the Court of Civil Appeal’s order dated 10 October 2016. [2018] UKPC 28
2. Court of Civil Appeal, Supreme Court of Mauritius: The court held that the trial judge’s findings concerning the number and value of the goods and their ownership were invalid, but upheld dismissal of the plaint for failure to aver and prove faute lourde.
3. Supreme Court of Mauritius: Angoh J dismissed the plaint on 21 August 2015, holding that the company had not established the number or value of the goods, ownership, or the required faute lourde.