The preliminary objection was to the effect that the appellant, then applicant, “has failed to establish that Mr. Ranjiv Gutty had been duly authorized by Applicant to lodge the present application to set aside the statutory demand served upon it by Respondent prior to 14 October 2020”.

BACKGROUND

The Appellant (“R.K.G Fruits”) challenged a statutory demand issued by the Respondent (“Maersk”).

Mr Ranjiv Gutty (“Mr Gutty”) was the appellant’s director who solemnly affirmed all the affidavits filed on behalf of the appellant in support of its application to set aside a statutory demand served upon it at the instance of the respondent. In his first affidavit, Mr Gutty stated that he has been duly authorised to solemnly affirm the affidavit on behalf of the appellant.

Maersk in its counter affidavit put him to the proof that he had been duly authorised by the appellant to affirm the affidavit on its behalf.

Mr. Gutty responded in his third affidavit by annexing a Board resolution (Annex C) confirming his authority.

In reply to his third affidavit, Maesrk merely “took note” of the Board Resolution and did not expressly deny or challenge that resolution.

The Learned Judge set aside the application on the basis that since the board resolution is undated, it is unknown as to when Mr Gutty was duly authorised to swear the affidavit and enter the case on behalf of the company and since the resolution misnamed the parties’ names in the application, it could not be taken as valid authority for Mr. Gutty to act on behalf of the company in the matter actually before the Court. Maersk also challenged the authority of the attorney for R.K.G Fruits to lodge proceedings on behalf of the appellant.

ISSUE

The Court of Appeal had to determine whether the application to set aside the statutory demand could be considered validly brought by R.K.G Fruits’ representative in light of irregularities in the board’s resolution.

DECISION

The Court of Appeal held that while the resolution had defects (e.g., it was undated and contained misnaming of parties), Maersk did not explicitly challenge its validity, merely “taking note” of it. Furthermore, it is also therefore deemed to have accepted that the Attorney for R.K.G fruits has taken all the steps for lodging and conducting the case in accordance with his mandat ad litem.

The Court referred to and applied the principles laid down in the judgment of ENL Limited & Anor v Independent Commission Against Corruption & Ors [2023 SCJ 190] and where the Full Bench of the Supreme Court stated that,

“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 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.”

The Supreme Court held, inter alia,

“… 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”.

CONCLUSION

This Court of Appeal judgment represents a progressive judicial stance and reinforces the Mauritian Courts’ position against over-reliance on procedural technicalities.

The case adds to the growing body of Mauritian case law that prioritises access to justice and procedural flexibility, particularly where corporate litigants are involved.

Will Procedural Flexibility always win?

Consider a scenario where on the day of trial in a plaint with summons lodged by a company, the representative of that company, a director, attends Court together with attorney and counsel. There is no board resolution which have appointed them the legal advisers and/or that director to represent the company. No document has been tendered in the Notice Tender of Evidence served on the defendant.

The defendant raises a preliminary objection challenging the legal representation and the representative of the company in the absence of a board resolution. The defendant moves for the Plaint with Summons to be struck out under Rule 33 of the Supreme Court Rules 2000 which provides:

33. Non-appearance of Plaintiff

Subject to paragraph (2), where on the returnable date of any plaint or motion, or at any continuation or adjournment of the case, the plaintiff or applicant does not appear or is not represented, the case shall be struck out.
Where the plaintiff does not appear, but the defendant or his representative appears and admits the cause of action and pay the fees payable in the first instance by the plaintiff, the Court may, if it thinks fit, give judgment as if the plaintiff has appeared.

What do you foresee the approach of the Court to be in this scenario?