The Court of Civil Appeal of Mauritius (Court of Civil Appeal) delivered an interlocutory judgment on 20 February 2014 (Interlocutory Judgment), in which it dismissed preliminary objections that touched on matters of procedure for appeals against decisions of the Bankruptcy Division of the Supreme Court (Bankruptcy Division).

In Borneo Investment Group Inc. v Egon Mauss 2014 SCJ 57, the minority shareholder of Borneo Investment Group Inc. (Borneo), a Mauritian company, applied to the Bankruptcy Division under section 170 of the Companies Act 2001 in order to obtain leave to enter a derivative action in the name of Borneo for alleged wrongdoings by the directors of Borneo. In November 2012, the Bankruptcy Division comprising a single judge, granted leave. However, Borneo appealed to the Court of Civil Appeal against the decision of the Bankruptcy Division. On appeal the minority shareholder raised two preliminary objections in law, which were dismissed in the Interlocutory Judgment.

The First Preliminary Objection

The minority shareholder argued that appeals from decisions of the Bankruptcy Division could only be made to the Supreme Court sitting in its appellate jurisdiction so much so that the Court of Civil Appeal lacked the necessary jurisdiction to entertain the present appeal. The argument was based on an interpretation of section 69(c) of the Courts Act 1945 (Courts Act) which invested the Supreme Court with "full power and jurisdiction to hear and determine all appeals, whether civil or criminal, made to the [Supreme] Court from ..../... the Bankruptcy Division."

It was argued in reply for Borneo that the jurisdiction that the Supreme Court derived under section 69(c) of the Courts Act was not exclusive. This was so because section 69(c) had a caveat namely, that it was "subject to any other enactment". It therefore followed that the Courts Act was necessarily subject to the Civil Appeal Act 1963 which post-dated the Courts Act and did not contain any similar provisos.

The Court of Civil Appeal upheld the interpretation of Borneo for three reasons. First, the language of section 3(1) of the Court of Civil Appeal Act 1963 unequivocally empowered the Court of Civil Appeal to entertain appeals from "any judgment or order of a Judge siting alone in the exercise in Court of his original civil jurisdiction", which was precisely the case in the present appeal. Secondly, the phrase "subject to any other enactment" in the Courts Act clearly made it subject to the later legislation namely the Court of Civil Appeal Act 1963. Thirdly, because of the recent admonitions of the Judicial Committee of the Privy Council (Privy Council) in Toumany and Mulleegadoo v Veerasamy [2012] UKPC 13. In that case the Privy Council refused to accept that the Court of Civil Appeal was a different judicial entity from the Supreme Court and, the Privy Council called for increased flexibility and less technicality on jurisdictional issues and objections.

The Second Preliminary Objection The minority shareholder argued that as a result of section 3(2)(c) of the Court of Civil Appeal Act 1963, Borneo should have sought and obtained leave from the Bankruptcy Division as a precondition for the instant appeal.

It was argued in reply by Borneo that even though the decision of the Bankruptcy Division was styled as "Interlocutory Judgment" nevertheless it had the effect of finality because the application before the Bankruptcy Division was for leave to enter a derivative action for Borneo and the decision of the Bankruptcy Division had the effect of disposing of the matter. Hence the appeal.

The Court of Civil Appeal upheld the interpretation of Borneo and stressed that without the possibility of appeal Borneo "would have been in the impossibility of moving further in the matter."

This decision of the Court of Civil Appeal, serves as an important reminder that the spirit of the law and the interests of justice must prevail and cannot be subsumed in the intricacies of legislative interpretation.

Appleby appeared for Borneo in the appeal with Partner Gilbert Noel as instructing attorney-at-law and Senior Associate Sharmilla Bhima as junior counsel.

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