ENL LIMITED & ANOR v.

INDEPENDENT COMMISSION AGAINST CORRUPTION

2023 SCJ 190

SCR 120653 – 5A/217/20

THE SUPREME COURT OF MAURITIUS

In the matter of:

1. ENL Limited
2. Rogers and Company Limited
Applicants

v.

Independent Commission Against Corruption

Respondent

And in the presence of:

1. The Financial Services Commission

2. New Mauritius Hotels Limited
3. Swan Life Ltd
Interested Third Parties

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JUDGMENT

On 14 June 2018 the Judge in Chambers granted an ex parte application entered

by the respondent [ICAC] against the Interested Third Party No. 1 [FSC] ordering the latter
to disclose to ICAC the data, report, documents and files listed in the said application
concerning the applicant No. 1 [ENL], the applicant No. 2 [Rogers], the Interested Third
Party No. 2 [NMH] and the Interested Third Party No. 3 [Swan Life] with respect to an
ongoing criminal investigation by ICAC into alleged breaches by ENL of the Securities Act
and Securities (Takeover) Rules 2010.

The present application by way of a “tierce opposition” has been made pursuant to
Article 474 of the Code de Procédure Civile for the discharge of the ex parte order dated
14 June 2018. The applicants have, in the alternative, prayed that should the report drawn
 2

up by Mr. Taukoordass (The Taukoordass Report) be communicated to ICAC this must

be done subject to certain binding declarations and restrictions on its part.

The FSC has as at date already provided all the materials ordered in the ex parte
order save for the interim report drawn up by Mr. Taukoordass, an investigator appointed
by the FSC to conduct an investigation into the alleged breaches (The Taukoordass
Report).

It is apposite first to outline briefly in chronological order the sequence of events.

Following the issue of the ex parte order, the FSC at the outset made an application
by way of motion on 9 July 2018 for the setting aside of the said order and joined ENL,
Rogers, NMH and Swan as third parties.

On the same day ICAC made an application to the Supreme Court for the above
third parties to be put out of cause. In a judgment delivered on 21 July 2020, the Court
granted ICAC’s application holding that the presence of the third parties was not
necessary to enable the Supreme Court to determine the FSC application. The third
parties appealed against the said decision; the appellate court upheld the Court’s decision
to put the third parties out of cause.

The third parties thereafter made an application for leave to appeal to the Judicial
Committee of the Privy Council. On 24 March 2022 leave to appeal was refused by the
Supreme Court and the application was set aside. The third parties have since made an
application for special leave to appeal to the Judicial Committee and for a stay of the said
application pending the determination of the present application which they have entered
on 29 September 2020.

On 5 January 2023 the Judicial Committee has granted a stay of that application
for special leave pending the determination of the present application.

ICAC had initially raised several preliminary objections to the present application.
 3

ICAC’s additional preliminary objection

ICAC subsequently raised a further preliminary objection (“additional preliminary

objection”) with respect to the representation of the applicants in the present proceedings.

It was submitted by ICAC that the representatives of the respective applicants who
have sworn affidavits in support of the application, are not properly authorised to represent
the applicants and affirm the affidavits on their behalf. This, in view of the fact that in the
founding affidavit, the deponents have not testified that they had been duly authorised to
represent the respective company pursuant to a board resolution. As such ICAC contends
that the said affidavits are not valid and do not have any probative or evidential value and
the application must accordingly be set aside.

On 29 September 2022 the applicants made a request that a Full Bench be

designated to determine the additional preliminary objection, this in view of the confusion
which has allegedly arisen with regard to the legal principles governing the issue of
representation of companies as a result of the following decisions of the Supreme Court:

1. Mahé P L J & Ors v Mayer A & Ors [2017 SCJ 421];

2. Meaders Feeds Ltd v Parboteeah D & Ors [2020 SCJ 317];
3. Jyoti’s Clinic Ltd v Sika (Mauritius) Ltd [2021 SCJ 295];
4. Laser Informatics Ltd v RBRB Construction Ltd [2021 SCJ 407];
5. Barachois Villas Company Ltd v Super Builders Co. Ltd
[2022 SCJ 201].

The request that the additional preliminary objection be determined by a Full Bench
has been acceded to and it has been heard by the Bench as presently constituted.

The applicant No. 1’s founding affidavit was solemnly affirmed by the Group Head
of Company Secretarial Services, Mrs. Gopaul and, the Manager Legal Services,
Mrs. Appanah, solemnly affirmed the founding affidavit on behalf of the applicant No.2.

In the opening paragraph of its first affidavit, ICAC has denied the averment of the
respective applicants that the deponents are duly authorised to swear the said affidavits
on behalf of the respective applicants and have put the applicants to the proof thereof.
 4

After the pleadings had been closed and following ICAC’s additional preliminary
objection, each applicant has, without any objection from any party, put in a third affidavit
dated 29 September 2022 annexed to which is a board resolution dated 28 and 29
September 2022 in respect of the representation of the applicant No. 1 and the applicant
No. 2 by Mrs. Gopaul and Mrs. Appanah, respectively. It is averred in the said affidavits
that the Directors of the respective applicants were at all times fully aware of the contents
of the affidavits affirmed on their behalf and had themselves appointed the deponents,
Mrs. Gopaul and Mrs. Appanah, to represent their respective companies and swear the
affidavits on their behalf.

Submissions of applicants

We have had the benefit of comprehensive submissions in law by counsel

appearing for all the parties in the course of which the relevant case law has been
reviewed.

The gist of the applicants’ submissions is set out below:

“5.1. Under Mauritian law, the issue of one party representing

the other is a matter governed by the Civil Code, namely by
Articles 1984 and following of the Civil Code. … there is no
specific formality governing the way in which such mandates
may be given;

5.2. In such circumstances, it is the party challenging such

authority which bears the evidential burden of showing that the
person stating he has authority would lack such authority, in
which case it would then be for the Company to discharge the
burden of proof once it would have shifted upon it. The simple
assertion without any evidential basis is of no assistance to the
Respondent;

5.3. The presumption of regularity is a presumption that all the

internal rules of the company have been complied with cannot
 5

be displaced on a mere denial without any supporting facts for

that denial;

5.4. The authorities on the point make a confusion between the

regime applicable to a foreign company and that applicable to
a Mauritian company. That confusion has led to, in our view,
incorrect application of the law whereby it has been held that a
company has no power to lodge proceedings unless it would
have given a mandat spécial;

5.5. Some of the authorities further rely on Indian authorities on

the subject, whereas the basis in India for so holding was
sections 290 and 291 of the (now repealed) Companies Act
1956 of India. In any event, our Companies Act 2001, as
amended, does not contain provisions allowing our Courts to
make a direct application of Indian authorities having applied
sections 290 and 291 of the Companies Act 1956 of India;

5.6. By the same token, on the issue of mandate, the

Respondent has not put forward any mandate from its
governing body authorising its deponent and representative in
Court to represent the Respondent, and solemnly affirm
affidavits on its behalf;

5.7. The issue of ratification is confusingly addressed in those

judgments and need to be clarified.

6. … the issue of representation of corporate entities before our Courts

amount to a question of paramount importance, as it deals with the
very ability of companies to have access to Courts … certain of the
judgments quoted above have considered that whole proceedings are
null and void merely on the ground that the person representing a
company would not have been given proper mandate …”
 6

It was also submitted by counsel for New Mauritius Hotels Ltd that a distinction
needs to be drawn between an originating summons “demande introductive d’instance”
which commences a suit and the function of supporting affidavit evidence which falls within
the domain of evidence. Defects, if any, in a supporting affidavit cannot invalidate
proceedings, inasmuch as evidence cannot vitiate an originating summons.

Mandat

Articles 1984, 1985 and 1998

Counsel for the applicants also submitted that the law governing the power and
authority of a person to give affidavit evidence on behalf of a company in legal proceedings
is subject to the ordinary law of contract and agency. He referred to Article 1984, 1985
1998 of the Code Civil.

The above articles are no doubt relevant and applicable to “mandat” generally.

However, in so far as the representation of a company in legal proceedings is

concerned, the law applicable to “mandat” generally must be read subject to the express
provisions of the Companies Act, which is a legislation specifically enacted to deal with all
company issues including the set-up, operation, management or decision-making process
of a company.

The Companies Act

Pursuant to Section 129 of the Companies Act (the Act) the management of a
company is vested in the Board which has all the powers to manage and conduct the
affairs and business of the company.

Section 129 of The Companies Act reads as follows:

“129. Management of company

(1) The business and affairs of a company shall be managed

by, or under the direction or supervision of, the Board.
 7

(2) The Board shall have all the powers necessary for
managing, and for directing and supervising the management
of, the business and affairs of the company.

(3) Subsections (1) and (2) shall be subject to any

modifications, adaptations, exceptions, or limitations contained
in this Act or in the company's constitution.”

The exercise of its powers by the Board is therefore governed by the conditions or
limitations contained in the Companies Act. The Board may only exercise its powers of
management subject to the other provisions of the Act and any limitations or conditions
contained in the constitution and articles of association of the company.

Furthermore,

“One consequence of the artificial nature of a company as a legal

person is that inevitably decisions for, and actions by, it have to be
taken for it by natural persons.” [Principles of Modern Company Law
(Gower and Davies) (1997), 6th Edition, pg 201]

The company being an inanimate entity, decisions of the company have to be taken
by its decision-making organs; the primary organ may be the Board or its members in a
general meeting. All decisions which fall within the powers of the Board are taken by the
passing of resolutions at a properly constituted meeting of the Board.

It is useful in that connection to refer to the following passage from Halsbury’s

Laws of England, Vol. 14 – Companies – Fifth Edition (2016) which aptly summarises
the principles applicable to the exercise of the powers of directors with regard to the
administration of the company –

“575. Powers of directors to manage the business. The true

position of directors is that of agents for the company. As such, they
are clothed with the powers and duties of carrying on the whole of its
business, subject, however, to the restrictions imposed by statute and
by the company’s constitution. The intention of the company may be
 8

established by its directors, even if acting informally, depending upon

the nature of the matter under consideration, the relative positions of
the directors in the company, and generally all the circumstances of
the case.

Articles of association generally give directors very wide powers as to

the control and management of the company and its affairs; the powers
given by the default or model articles are sometimes amplified by
special articles which enumerate the powers of the directors …”

Thus, as regards litigation by a company whose management powers are vested

generally in the Board of Directors, it is the directors who have authority to act in the name
of the company.

The Companies Act which sets out the legal framework for the management of a
company, also provides for the delegation of powers by the Board.

Section 131 of the Act entitled “Delegation of Powers” sets out in the following
terms the circumstances in which the Board may delegate any of its powers:

“131. Delegation of powers

(1) Subject to any restriction in the constitution of the company, the

Board of a company may delegate to a committee of directors, a
director or employee of the company, or any other person, any one or
more of its powers other than its powers under any section specified
in the Seventh Schedule.

(2) …”

Pursuant to Section 131(1) the Board is empowered to delegate any of its powers
to another person save for those powers specified in the Seventh Schedule. Section 129
is not listed in the 7th Schedule and the Board may therefore delegate its management
powers to any other person subject to such limitations as specified in Section 129 itself.
 9

The Board may delegate its authority to institute proceedings and designate a
director or an employee to swear an affidavit or give evidence on its behalf in conformity
with its Constitution and articles of association.

The question that invariably arises is who would be a duly authorised person to
represent the company and how would such a person be appointed as a representative
of a company in the course of civil proceedings like the present one.

New Zealand

The issue of legal representation of companies in New Zealand is interesting

inasmuch as the provisions of Section 128 of the Companies Act in New Zealand are of
the same tenor as Section 129 of the Companies Act in Mauritius.

Section 128 of the Companies Act 1993 (New Zealand) reads as follows:

“128 Management of company

(1) The business and affairs of a company must be managed by,

or under the direction or supervision of, the board of the
company.

(2) The board of a company has all the powers necessary for
managing, and for directing and supervising the management
of, the business and affairs of the company.

(3) Subsections (1) and (2) are subject to any modifications,

exceptions, or limitations contained in this Act or in the
company’s constitution.”

In Powell v K 2 Investment Group Limited [2021] NZHC 2253 the New Zealand
High Court held that in the absence of any board resolution or any express power in the
constitution of the defendant company, it had not been established that the person who
purported to represent the company, was lawfully delegated and authorised to file the
 10

pleadings on behalf of the company. The defence and counterclaim of the defendant
company were accordingly struck out.

In Yu v Whitford Properties Ltd [2013] NZHC 3162 only one of the two directors
of the defendant company had filed and served a notice of opposition to an application
directed against the company.

A preliminary issue arose as to whether one of the two directors acting alone had
the authority to file such a document and whether the company was entitled to be heard
in relation to the application for opposition. The Court held that one of the two directors of
the company could not, in the absence of a Board resolution, undertake any step in legal
proceedings in which the company was being sued. In the absence of any evidence that
the Board had resolved to delegate authority to that director to act on behalf of the
company, the notice of opposition was struck out.

United Kingdom – Authority to Institute Proceedings

The issue of the institution of legal proceedings in the name of the company in the
UK was examined in the case of Mitchell & Hobbs (UK) Ltd v Mill (Mitchell & Hobbs)
[1996] 2 BCLC 102 (QB) in which the managing director of a company acting alone
purported to institute proceedings on behalf of the company. There was no evidence of
any board meeting authorising the proceedings or delegating the managing director to do
so. The Court held that the institution of legal proceedings in a company’s name is a
power to be exercised by its Board of directors. The Court observed that “the institution of
such proceedings [cannot] be carried on by a single director acting, as it was, as the board
of Directors.”

UK - Practice Directions

In the course of submissions, we were also referred to the procedure in the UK and
in particular to Practice Directions and the Civil Procedure Rules pursuant to which a
Board resolution may not be necessary to represent the company and a witness statement
and affidavits may be sworn by certain persons holding senior positions in the company
as defined in the Practice Directions, on behalf of the company. These Practice Directions
are to the effect that an affidavit or a witness statement would be in the proper form if
 11

made by a person holding a senior position at a company and contains a statement of

truth. In the case of an affidavit duly sworn and signed, there is no requirement under the
law to show that the company, by way of a board resolution, has authorised the said senior
employee to make the witness statements or swear the affidavit.

There are however no provisions in our law equivalent to the above Practice
Directions or civil procedure rules which are only applicable in the United Kingdom and
which would not find their application in Mauritius.

India

In India, the situation is described as follows in Ramaiya’s guide to the

Companies Act, 14th Edition 1998:

“Power to institute suits/legal proceedings - Unless the power to institute

a suit is specifically conferred on a particular director, he has no authority to
institute a suit on behalf of the company. Needless to say that such a power
can be conferred by the Board of directors only by passing a resolution in that
regard.
…. …. ….
Individual directors have only such powers as are vested in them either under
the company’s memorandum or articles or otherwise authorised by the board
of directors. Hence, the managing director, does not, much less the ordinary
directors, have the power to engage the company in the serious task of
litigation without specific authorisation either under the constitutional
documents or by a resolution of the board. Any suit or proceeding on behalf
of the company not so authorised is liable to be dismissed.”

In fact, the Articles of the company may make provision for the passing of a general
resolution authorising a designated person to act on behalf of the company for the
purposes of litigation in all cases in which the company m ay be involved, it may further
authorise that person to delegate such authority to another designated officer. This issue
of legal suits was considered in Hindustan Petroleum Corporation vs Sardar Chand
And Another AIR 1991 P H 185.
 12

In that case pursuant to the Articles of Association –

“6. The Board of Directors, thus, was the authority under the articles of
association, to take a decision regarding institution or defending the
suits. The power was delegated to Sh. Mohinder Kumar Bagai the
Marketing Director vide power of attorney. Under this power of
attorney, Mr. Bagai was further authorised to delegate the aforesaid
powers mentioned therein to officer in the Marketing Division. This
authority to Mr. M. K. Bagai was ratified by the Board of Directors.”

It was held that in these circumstances it was not incumbent upon the Board of
the defendant company “to pass a resolution in every case where the suit was to be filed
or an appeal was to be filed in the meeting of Board of Directors. Such authority was
delegated by the Board to Mr. Bagai, who was also competent to further delegate it and
he did so in favour of Mr. J. Sethi. The appeal having been filed by Mr. J. Sethi under
such authority was, therefore, competent. …”

The Court in Hindustan Petroleum (supra) also referred to Pepsu Road

Transport Corporation, Patialav, Kirat Mohinder Singh, 1983 PLR 219 which held that:

“The resolution fully authorised the General Manager to act on behalf

of the petitioner in all the cases filed or to be filed by or against it. The
passing of any specific resolution is not contemplated under the Act in
each and every case. Moreover, it will depend upon the constitution
of a Corporation and the manner in which its functions regulated by the
State itself. There cannot be any universal rule that every Corporation
must act through resolutions passed by it in each and every case.”

In both the above cases there was a general resolution to authorise the designated
persons to act on behalf of the company in all cases such that there was accordingly no
need for a specific resolution regarding each and every case.

Analysis

It is clear under our law, that in order for a person to represent a company in legal
proceedings, unless he is so authorised under the Articles of the company, that person
 13

must be duly authorised by the Board pursuant to a Board Resolution. The Court must
be satisfied that there has been a resolution duly passed by the Board to authorise the
person to represent the company in legal proceedings which would entitle him to give
evidence on behalf of and binding the company.

As such in the present case, there was no impediment for the Board of the
respective companies to delegate its authority to Mrs. Gopaul (applicant No. 1) and Mrs.
Appanah (applicant No. 2) to solemnly affirm the affidavit in lite on behalf of the applicant
No. 1 and the applicant No. 2 respectively.

One of the questions which arises is the manner in which such delegation may be
established to the satisfaction of the Court.

Burden of proof

It was submitted on behalf of the applicants that given that ICAC had put the
authorisation of the deponents in issue, ICAC could not rest content with merely denying
the applicants’ averment regarding authorisation. ICAC had the burden of establishing
such alleged lack of authorisation.

It was further argued that if the Court were to require the representative of the
respective applicants to adduce evidence regarding their authorisation to represent the
respective companies, “the Court will then be reversing the burden of proof on the
Applicants merely because there has been a denial of the statement made by the
representatives of the Applicants that they have been duly authorised when the
Respondent has adduced no evidence to substantiate its denial. It would be improper on
the basis of the burden of proof, to require the company to establish that the deponents
had been duly authorised.”

We were also referred to the English case of Haederie v Thomas, 2016 WL

06476210 (2016) which, according to counsel, is authority that in such a situation the
burden of proof shifts on the defendant.
 14

Counsel argued that in line with Haederie, given that it is ICAC which has invoked
a lack of authorisation on the part of the deponents, it is for ICAC itself to prove its
contention.

We do not find that Haederie would be of any relevance to the present matter as
it concerned the burden of proof with regard to the swearing of a false affidavit which is a
criminal offence and in respect of which there cannot be any burden of proof on the
defendant.

Counsel for NMH referred to the case of Zoya Ltd v Ahmed [2016] EWHC 1981
(Ch) and submitted that a defendant who seeks to dispute the authority of a company to
bring proceedings has the burden of proving such lack of authority. Counsel argued that
“The solicitors who issue process in the name of a company warrant that they are
authorised to do so, and the court proceeds on that basis unless the contrary is shown to
be the case.”

We do not consider that the case of Zoya is of much assistance inasmuch as what
is in issue in the present case is the authority of the deponent to swear the affidavit on
behalf of the company whereas in Zoya the Court was dealing with the authority of a
solicitor to lodge proceedings on behalf of a company. In the present case there is no
challenge regarding the authority of Mr Attorney Ragobur to lodge the application and
undertake all the steps for lodging and conducting the case in accordance with his mandat
ad litem.

We also need to add that we have found no legal basis for the submission made
by counsel for NMH that there is a presumption that an affiant who gives evidence on
behalf of a company must be presumed to be duly authorised to do so by the company.

We therefore hold that in accordance with the principles generally applicable to

burden of proof in civil pleadings, the onus lies on the applicants to prove that their
representatives are duly authorised to act on their behalf, where this has been expressly
denied by the opposing party.
 15

In the present case the “authorisation” of the respective companies is to be found

in the opening paragraph of the founding affidavit by each deponent to the effect that she
was authorised to swear the affidavit on behalf of the respective applicants. It is not in
issue that at the time of lodging the motion there was no evidence of any resolution or
authority emanating from the Board of the respective companies conferring upon the
deponents the right to act or to give evidence on behalf of the companies.

Ratification

Counsel for the applicants however argued that assuming that a board resolution
was essential for the deponents to act on behalf of the company pursuant to the
Companies Act, it was permissible for the Board to ratify the authority of the deponents by
passing a resolution as was done in the present case. He went on to submit that in the
present case any such alleged initial defect would be cured by the Board resolution dated
29 September 2022 which states that the Directors of the applicants were at all times fully
aware of the contents of the affidavits affirmed on their behalf and had appointed the
deponents to represent them.

In fact, in the present case, each of the applicants has in its third affidavit confirmed
that their deponents had from the start been acting with their authorisation and approval.

The applicants’ third affidavit contains a Board resolution that the Board had
instructed Attorney Mr. Ragobur to lodge the present application and that at all times the
Board knew and had approved the acts and doings of the deponents. The applicants
accordingly contend that the deponents were throughout these proceedings authorised to
act on behalf of the company and to swear the affidavits for the purposes of the
application. The averments contained in the third affidavit have not been contested or
denied by ICAC.

It is expressly averred in the opening paragraph of each deponent’s founding

affidavit that she has been duly authorised to affirm the affidavit. Each deponent therefore
contends that from the outset she has acted under the authority of the Board. This has
been confirmed by the tenor of the third affidavit.
 16

Even if the deponents had no authorisation at the outset, it would indeed still have
been open to the directors of the company to ratify the acts and doings of the deponents
by passing a subsequent resolution granting the required authority.

In Anglo Australian Resources N.L. v. Bloom Financial Advice Pty Ltd [2019]
WASC 480 it was held that:

“28. … If an act falls within the authority of directors, it is open for a properly
constituted meeting of directors to ratify the act …”

According to the resolution annexed to each third affidavit, the Board had given its
authorisation to the deponents to affirm the affidavit on behalf of the company and the
resolution accordingly provides unrebutted evidence that the company had conferred
authority on the deponents to affirm the affidavits from the outset.

The following cases explain that a subsequent ratification may even cure a defect
arising from proceedings being commenced without proper authority from the Board of
directors.

In Massey (trading as Massey Bailey, Solicitors & Consultants) v Wales

[2003] NSWCA 212, the Court held that:

“… where proceedings are commenced in the name of the plaintiff

without proper authority, it is a nullity and can be stayed at any time.
It is, however, open at any time to the purported plaintiff to ratify the
act of the solicitor who started the action and to adopt the
proceedings. When that has been done, in accordance with the
ordinary law of principal and agent and in accordance with the
ordinary doctrine of ratification, the defect in the proceedings as
originally constituted is cured. …”

Similarly, in Ox Operations Pty Ltd v Land Mark Property Developments (Vic)

Pty Ltd (in liq) [2007] FCA 1221 the Court held:

“… the action though brought without authority is not a nullity in the

sense that it is void ab initio without the possibility of subsequent
 17

ratification. To the contrary, it is well established that it is possible for

the company to ratify the unauthorised act of the solicitor in bringing
an action in its name without its actual or implied authority. And,
because ratification is possible, a practice has developed that when an
action is brought without authority it will not be stayed or dismissed
forthwith, but the company will be permitted to convene a general
meeting or a meeting of its directors to consider whether to adopt the
action. (citations omitted)”

Ratification of act done without authority

Further in Essential Media and Entertainment Pty Limited [2020] NSWSC

990 the Court made the following observation:

“73 … A step taken by a director without authority may be ratified. Ratification

has the effect that the company is entitled to take advantage of the act as if
the director had been authorised when he or she acted …….”

In the circumstances of the present case, we have no difficulty in holding that the
subsequent resolution of the Board which was annexed to the applicant’s third affidavit
cured any possible shortcoming and conferred valid authority upon the respective
deponents to affirm the affidavits on behalf of the respective applicants.

The resolutions indeed comprehensively and conclusively established that:

(1) Mrs. Gopaul and Mrs. Appanah had been duly authorised at all material times
to represent the respective companies for the purpose of the application and to
adduce evidence on behalf of the company;

(2) the Board of Directors of the respective companies was at all material times
fully aware of, and endorsed, the contents of all the founding affidavits;

(3) for the avoidance of any doubt, the Directors have ratified all the acts and
doings of Mrs.Gopaul and Mrs. Appanah as being acts performed in their
capacity as the authorised representative of each company.
 18

It is apposite for that purpose to reproduce in toto the resolution in order to

understand the all-encompassing scope of the authority delegated to each deponent by
the directors of each company.

“(1) THAT the Directors of the Company (a) were at all times and were fully
aware of the contents of affidavits sworn by Ms Preety Pamela Gopaul on 29
September 2020 and on 17 May 2021 on behalf of the Company in the context
of the application for Tierce Opposition bearing SCR No. 120653 – 5A/217/20
(the ENL Tierce Opposition), wherein the Respondent is the Independent
Commission Against Corruption, and (b) for that purpose, had appointed Mrs.
Preety Pamela Gopaul and/or Mrs Laowmila Arlandoo and/or any Director in
office at the relevant time (the Authorised Representatives), to represent
the Company to initiate the said application for Tierce Opposition, to seek
legal advice in respect thereof, to instruct attorney and counsel, to represent
the Company for the purpose of the application for Tierce Opposition, to
adduce evidence on behalf of the Company, and to do any such acts as may
be required, or as she may be advised to do in the context of the said
application for Tierce Opposition, or any appeal that may ensue.

(2) THAT the Authorised Representatives had at all times had and shall
continue to have the mandate to appoint any employee of the Company to do
all such acts that she had been mandated to do in the context of the ENL
Tierce Opposition and that such delegation of powers by any Authorised
Representative to any employee of the Company may be verbal, or given by
simple letter.

(3) THAT in so far as need be and for the avoidance of doubts, the Directors
of the Company hereby ratify all acts and doings of Mrs Preety Pamela
Gopaul, any other Authorised Representative and any person appointed by
any Authorised Representative on behalf of the Company in respect of the
ENL Tierce Opposition including (a) giving instructions to Mr. U. K. Ragobur
to lodge the ENL Tierce Opposition and (b) the affidavits sworn by Mrs Preety
Pamela Gopaul on 29 September 2020 and on 17 May 2021.
 19

4. THAT the Authorised Representatives shall continue to be so mandated

until the resolution of the ENL Tierce Opposition, including in respect of any
appeal that may ensue.

5. THAT for the avoidance of doubt, the Directors hereby ratify all the acts of
Mrs Preety Pamela Gopaul, of any Authorised Representative and of any
person appointed by any Authorised Representative, including them
representing the Company and adducing evidence on its behalf in the ENL
Tierce Opposition.”

There is also annexed to the applicant No. 2’s third affidavit a resolution dated 29
September 2022 which states in identical terms that Mrs. Appanah was duly authorised to
represent the applicant No. 2.

Deposit of Powers of Attorney Act

We agree with the submissions of counsel for the applicants that any reliance on
the Deposit of Powers of Attorney Act when deciding the issue of representation by a
company as was done in Mahé P L J & Ors v Mayer A & Ors [2017 SCJ 421] and
Barachois Villas Company Ltd v Super Builders Co. Ltd [2022 SCJ 201] is incorrect.

The representation of a company in Court proceedings and the representation of

a person who is absent from Mauritius, pursuant to the Deposit of Powers of Attorney Act,
are 2 different matters.

The provisions of the Deposit of Powers of Attorney Act only cater for the
representation of a person who is absent from Mauritius and such representation is subject
to the conditions in the Act pursuant to which an ex post facto compliance with the
provisions cannot cure any existing defect e.g. failure to observe requisite time frames.

The situation however, as it has been seen, is altogether different as regards the
authorisation by a Board to represent the company, in which case it is open for the Board
to ratify any act which falls within the authority of the directors.
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Whereas failure to strictly comply with the provisions of the Deposit of Powers of
Attorney Act constitutes a lack of authority which invalidates the proceedings, failure by a
company to confer authority upon a person who represents the company may be remedied
by an ex post facto authority by the company where all the conditions for ratification are
met.

It is not therefore correct to invoke the provisions of the Deposit of Powers of

Attorney Act in the context of the legal representation of a local company.

Article 421 of the Code de Procédure Civile

We also need to point out that, as rightly submitted by counsel for NMH, any
reference to Article 421 of the Code de Procédure Civile for the purpose of determining
the issue of the representation of a company in civil proceedings would be inappropriate
inasmuch as the said Article has been effectively repealed.

Article 421 is not applicable and has been tacitly repealed in Mauritius as explained
in the following from:

(i) The edited version Code de Procédure Civile at page 240:

“Procédure devant les tribunaux de commerce

414. à 442. Inapplicables.

V. notamment Constitution, Bankruptcy Act et Courts Act.”

(ii) The Revised Laws of Mauritius – Lexis Nexis, C28-34:

“Titre Vingt-Cinquième
Procédure Devant Les Tribunaux de Commerce

414. – 442 –
The Code was extended to the then ‘Isle de France’ in 1808. When,
under British rule, the Courts of the colony were set up, no provision
was made for ‘tribunaux de commerce’. Jurisdiction in commercial
matters was vested in the various Courts and, in particular,
applications for a ‘saisie conservatoire’ can be made to the Judge in
Chambers. All the Courts have their own procedural rules. These
 21

articles are not reproduced as they have obviously been tacitly

repealed.”

In Mauritius our Code de Procédure Civile has, subject to certain amendments,

been the same as that which was in force in France during the French colonial period.

The procedure prescribed under Titre XXV of the Code de Procédure Civile under
the heading ‘Procédure devant les Tribunaux de Commerce’ was meant to be applicable
only in France.

The said chapter was thus copied wholesale into our Code de Procédure Civile
during the French colonial period. But no Tribunal de Commerce existed in Mauritius at
the relevant time nor has any “Tribunal de Commerce” been since created. A Commercial
Division of the Supreme Court has recently been set up in order to deal with commercial
matters.

The Commercial Division is a division of the Supreme Court and not a “Tribunal de
Commerce” as exists in France and to which Chapitre XXV of the Code de Procédure
Civile applies. Article 421 is therefore not applicable in commercial proceedings before
our Courts. The procedure to be adopted in commercial matters is to be found in other
provisions of our law notably the Courts Act, the Supreme Court Rules, the Insolvency Act
and the Companies Act.

Conclusion

For all the above reasons we hold and direct, with regard to the additional
preliminary objection, that:

(1) subject to any restriction in the constitution of a company, the Board of a company
may lawfully delegate and authorise any person to represent the company and to
give evidence on behalf of the company in the course of any civil proceedings;

(2) such authorisation must normally emanate from the Board in conformity with its
constitution and the relevant legislation;
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(3) the lack of a formal resolution does not render the proceedings void as it is open
to a properly constituted Board of directors to ratify subsequently authority to
represent the company and to give evidence on behalf of the company;

(4) in the present matter the conditions have been met for a valid ratification of all the
acts and doings of the representatives of the companies.

We accordingly order that the case shall proceed in the light of the present directions.

B. R. Mungly-Gulbul
Chief Justice

N. F. Oh San-Bellepeau
Judge

K. D. Gunesh-Balaghee
Judge

HEARD ON : 17 February 2023

DELIVERED ON : 19 May 2023, by Honourable B. R. Mungly-Gulbul, Chief Justice

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For Applicant No. 1 : Mr. P. De Speville, Senior Counsel, together with

Mr. S. Dabee, of Counsel
Mr. Attorney U. K. Ragobur

For Applicant No. 2 : Mr. S. Moollan, KC

Mr. Attorney U. K. Ragobur

For Respondent : Messrs M. Roopchand, together with

Mr. T. Naga, both of Counsel
Ms. Attorney N. Seetaram

For Interested Party No. 1: Mr. D. Basset, Senior Counsel, together with
Messrs J. C. Basset and H. Dhanjee, both of Counsel
Mr. J. Gujadhur, Senior Attorney

For Interested Party No. 2: Mr. A. Moollan, Senior Counsel, together with
Mr. A. Adamjee, of Counsel
Mr. Attorney G. H. Froberville

For Interested Party No. 3: Mr. R. Pursem, Senior Counsel, together with
Ms. M. Jeetah, of Counsel
Mr. G. Ng Wong Hing, Senior Attorney