REZISTANS EK ALTERNATIV & ORS v THE STATE OF MAURITIUS & ORS

2023 SCJ 459

Record No. 123690
THE SUPREME COURT OF MAURITIUS
In the matter of:-

1. REZISTANS EK ALTERNATIV
2. MUVMAN 1ER MAI
3. MARIE Dany Sylvie
4. SUBRON Ashok Kumar
5. JACOB Ian Harvey
6. BANEE Kashmira
7. LEGALLANT Adrien Georges Laval
8. NARRAIN Devianand
9. CHEVATHYAN Jean Francois
10. CHIFFONNE Michel Essan
11. MARCHAND Denis Rolando
12. DHOLAH Paveetree
13. MARIE Jenny Tashana
14. JAUFFRET Serge
15. RAMPAUL James Judex
16. GUA Georges Stephan
17. CHAVREE Edley Benjamin Bruno
18. DALAIS Marie Joseph Alain
19. JOLICOEUR Mario Robinson
20. PATEL Shenaz
21. JAUFFRET Maria Nathalie
22. SENEQUE Denise Camille
23. DORASAMY NAIKER Regis Gerald Noel Richard
24. ROSTOM Mohammud Guffran
25. PALMYRE Jean Stephan Gervais
26. ROSE Nathalie Marie Anne
27. LE BRETON DE LA VIEUVILLE Claude Rivalz Thierry
28. LAGRAVEUR Louis Jean Alain
29. VENCADASMY Dhojaven
30. JEAN Raphael
31. LALLMAMODE Mohamedally
32. DIAMASSE Marie Annick Vanessa
33. MUNGUR Shimanda
34. LALL Gerard
35. MERVEN Dominique
36. BIZLALL Jack
37. ARMEL Louis Sylvain
38. RAMSAMY Venoo Gopal
39. BERGICOURT Désirée Christiane Marie-Thérèse
40. DABYSINGH Raj
41. MOOTOOKISTNEN Claude Norman
42. IBRAHIM Moossa
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43. BABET Marie Aimée Patricia

44. BOOBUN Dhaneshwar
45. DE GAYE Stefane David
46. TAM FOK Jean Leanne
47. JANSON Marie Edith Corine
48. WAN WOON LAM Marie Assompta Caroline
49. NEEROHOO Randheersingh
50. RAMANO Dev
51. APPAVOO Coumarasen

Applicants

The State of Mauritius

Respondent
In the presence of:-

1. The Electoral Supervisory Commission

2. The Electoral Commissioner
3. BOUSSAC Jean Marie Dany
4. LINGAYA Kirk Jeffrey
5. HURREE Veersen
6. SHANTO Teyjanand (Atma)
7. COTTE Jean Paul Giovanny
8. SOUPE Norbert Jean Gael
9. MANUEL David Fabien
10. JAUFEERALLY Karim
11. BARONET Isy Luard
12. BHAGALEE Samine
13. BERGUE Jean Lindley Rock
14. SAVRIMUTHU Pushpam Marie Aimée
15. BEEPUTH Rabindranath
16. SAVRIMUTHU Marie Margaret
17. LAMARQUE Levi
18. LAVIOLETTE Alain
19. GOVINDEN Soocramanien
20. VISANJOUX Jean Philippe Fabrice

Co-Respondents

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JUDGMENT

This is an application for leave to appeal to the Judicial Committee of the Privy
Council from an interlocutory judgment of the Full Bench of the Supreme Court
[2022 SCJ 334] upholding the pleas in limine litis raised by the respondent and
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co-respondents nos. 1 and 2 and setting aside the applicants’ and co-respondents’
nos. 3 to 20 second amended plaint with summons.

The application is grounded under section 81(2)(a) of the Constitution.

The application is resisted by the respondent and co-respondents nos. 1 and 2. Co-
respondents nos. 3, 4, 6, 7, 8, 9, 11, 13 to 20 have left default whereas co-respondents
nos. 5, 10 and 12 will abide by the decision of the Court.

In a second amended plaint with summons, the applicants and co-respondents nos.
3 to 20 (then plaintiffs) sought constitutional relief pursuant to section 83(1) of the
Constitution and prayed for the following orders-

“A. Granting leave under Rule 2(2) of the Supreme Court (Constitutional
Relief) Rules 2000; and

B. holding and/or declaring and/or decreeing that any disqualification of a

prospective candidate at a general election based on a non-compliance
of Paragraph 3(1) of the First Schedule to the Constitution contravenes
and/or is repugnant to section 1 and/or section 33 and/or section 34 of
the Constitution.”

The pleas in limine litis were inter alia to the effect that prayer B did not have its
raison d’être inasmuch as (i) Regulation 12(4) and 12(5) of the National Assembly Elections
Regulations 1968, which provide for the disqualification of a prospective candidate at a
general election based on non-compliance with paragraph 3(1) of the First Schedule to the
Constitution, has been revoked by regulation 57 of the National Assembly Elections
Regulations 2014 and therefore, the applicants were debarred from proceeding with their
second amended plaint with summons, the basis of which is the repealed provision; and
(ii) the applicants have no locus standi as ex facie the pleadings they have failed to
establish or shown “any alleged contravention of any provision of the Constitution (other
than Chapter II) and how their rights and/or interests are affected or are likely to have been
affected by any such contravention”.

The arguments that were put forward on behalf of the applicants to resist the pleas
in limine litis were to the effect that (a) the pleas in limine litis do not appear to be
commendable and are without substance; (b) the crux of the plaintiffs’ cause of action is
formulated at paragraph 26 of the second amended plaint” and the respondent and co-
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respondent no. 1 appeared to have made “total abstraction of the very nature of paragraph
26B”; (c) “the second amended plaint makes abstraction of the 1968 Regulations” and (d)
“the plaintiffs are somewhat perplexed as to the nature of the objections raised suggestive
of a potential misunderstanding of paragraph 26B”.

The Full Bench of the Supreme Court summarised the applicants’ position in the
following terms: “The arguments of learned Counsel for the plaintiffs in essence are that
the plaintiffs’ cause of action is to be found at paragraph 26B of their second amended
plaint and that the defendant and the co-defendants have misconstrued that paragraph”. It
then considered the submissions of late Mr R. Stephen, who appeared on behalf of the
applicants and co-respondents nos. 3 to 20, in the light of the factual averments of the
second amended plaint with summons, the function and principle of pleadings as set out in
Odgers Principles of Pleading and Practice 22nd Ed., the case of Bedacee A.D.
v Hookoomsing Y [2002 SCJ 271], the White Book of England and Wales and other
authorities and the provisions of the Supreme Court (Constitutional Relief) Rules 2000.

The Supreme Court came, inter alia, to the following conclusions-

(i) the submission that the cause of action is to be found at paragraph 26B of the
second amended plaint was misconceived inasmuch as paragraph 26B only
spelt out the remedy sought by the applicants;

(ii) paragraph 26B cannot be read in isolation but in conjunction with the factual
averments made in the second amended plaint in support of the remedy
sought;

(iii) the grievances of the applicants as set out in particular in paragraphs 16, 17,
18, 19 and 20 of their second amended plaint were in effect in respect of
regulations 12(4) and 12(5) of the National Assembly Elections Regulations
1968 which have been revoked;

(iv) the inescapable conclusion, from a close reading of the factual averments of
the second amended plaint, is that the applicants were indeed challenging
regulations 12(4) and 12(5) of the National Assembly Elections Regulations
1968;

(v) prayer 26B can only be in respect of the act giving rise to the cause of action
of the applicants as averred in paragraph 2 of their second amended plaint i.e.,
the act of their candidatures being declared invalid by virtue of regulation 12(5)
of the National Assembly Elections Regulations 1968;
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(vi) the applicants’ contention that prayer 26B does not involve a challenge to the
National Assembly Elections Regulations 1968 contradicts the averments in
their second amended plaint which expressly sets out facts aimed at
challenging the National Assembly Elections Regulations 1968;

(vii) the applicants have failed to show that there has been a contravention of a
specific provision of the Constitution and their interests are being likely to be
affected by such contravention;

(viii) no significant arguments had been offered to clarify the applicants’ position in
spite of the pertinent and lengthy arguments offered on behalf of the
respondent and co-respondent no. 2;

(ix) the second amended plaint does not disclose any live issue which calls for a
meaningful determination of the Supreme Court;

(x) the Supreme Court was loath to interpret or pronounce itself on a repealed law;

(xi) the applicants have no cause of action and/or locus standi to insist on their
application for constitutional relief based on the second amended plaint in its
present form;

(xii) the second amended plaint was cast in a futuristic and speculative language
leaving it to the Court to guess whether the words “any disqualification of a
prospective candidate” referred to the plaintiffs or to other candidates who
would stand as candidate at the next general elections; and

(xiii) the applicants have failed to readjust their second amended plaint to reflect
their real cause of action in the light of the arguments put forward in support of
the pleas in limine litis which would have then enabled the Supreme Court to
pronounce itself on the merits of their case.

The Supreme Court also took into consideration a joint statement filed in Court by
late Mr R. Stephen and learned Counsel for the respondent (then defendant) to the effect
that the “Issues in Dispute” on which the parties wanted a decision of the Court were –

“Whether regulation 12(4)(c) and regulation 12(5) of the National Assembly

Elections Regulations 1968 contravene, or are otherwise repugnant to-

a) section 1 of the Constitution in view of-

i. the mandatory declaration imposed upon a prospective

candidate to a general election in his nomination paper as
to his appurtenance to one of the four stated communities
as laid down in the First Schedule to the Constitution;
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ii. the nomination of a prospective candidate being rendered

void following non-compliance with such mandatory
declaration; and

b) sections 33 and 34 of the Constitution.”

The Court further observed that:

“No significant arguments have been offered to clarify the plaintiffs’ position
in spite of the pertinent and lengthy arguments offered on behalf of the
defendant and co-defendant no. 2. We have been told that the second
amended plaint is not concerned with regulations 12(4) and 12(5) of the
1968 Regulations but with other issues and that it has never been the
intention of the plaintiffs to proceed on these repealed provisions. We were
left to guess what specific provisions of the law/Constitution are being
challenged and what these ‘other issues’ are.” (Emphasis not ours)

The Supreme Court noted that notwithstanding this joint statement to which learned
Counsel for the respondent made reference in the course of her submissions, learned
Counsel for the plaintiffs did not deem it fit to address the Court on this issue.

The grounds of appeal which the applicants wish to submit for the consideration of
the Judicial Committee of the Privy Council are to be found at paragraph 8(a) to (p) of their
affidavit dated 12 October 2022. There is no need for us to replicate them in this judgment.

It was emphasised in the written submissions of learned Counsel for the applicants
that the judgment of the Full Bench of the Supreme Court is not being challenged as being
wrong simpliciter. The arguments advanced before us in support of this application are
that the Supreme Court adopted the wrong procedures and principles in its consideration
of the applicants’ second amended plaint which was for a declaration under section 83(1)
of the Constitution with the result that there is now a precedent from the Full Bench of the
Supreme Court in support of the propositions that:

“(i) declaratory relief cannot be sought under section 83(1) of the

Constitution without “challenging” the constitutionality of a specific
piece of legislation or of a part of the Constitution; and

(ii) declaratory relief should not be granted by the Supreme Court under
section 83(1) of the Constitution with respect to hypothetical events or
future rights.” (Emphasis not ours)
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It was also submitted that in formulating these propositions, the Full Bench of the
Supreme Court has set out “an evil precedent…and that the administration of justice has
been drawn into a course which will deprive future applicants of the full scope of the
protection provided for by section 83(1) of the Constitution”. The matter is of such general
and public importance that leave to appeal to the Judicial Committee of the Privy Council
should be granted.

We have given due consideration to the lengthy and elaborate oral and written
submissions of learned Counsel for the applicants. As correctly stated by learned Counsel
for co-respondent no. 1, it is not within the remit of this Court to engage in a “mini-appeal”
or consider new points which were never articulated by the applicants before the Full Bench
of the Supreme Court.

Our impression of the submissions of learned Counsel for the applicants is that had
he appeared as Counsel for the applicants before the Full Bench of the Supreme Court, he
would have pitched his arguments in the manner he has done in his oral and written
submissions before us. His arguments before us contrast materially from the submissions
of late Counsel Mr R. Stephen before the Full Bench of the Supreme Court in answer to
the pleas in limine litis. As rightly observed by learned Counsel for the respondent, learned
Counsel for the applicants has adopted an entirely new approach and is addressing this
application from a different angle. It is pertinent to note that there is a complete departure
from the points of law which were submitted for the consideration of the Full Bench and on
which it adjudicated and points of law which are now being raised before us. At paragraph
23 of his written submissions learned Counsel for the applicants reproached the Full Bench
for not having addressed the questions of “what is a declaration?” and “what is the
procedure to be adopted when a plaintiff seeks a declaration under the Constitution” and
at paragraph 24 for not having considered “law and judgments from the UK and the
Commonwealth regarding declarations, specifically”. Learned Counsel further criticized the
Full Bench for not having addressed its mind “to cases delivered in Mauritius where
applicants sought and obtained declaratory relief in constitutional matters. Had it done so,
it would have readily seen why the principles and procedures which it elected to follow do
not apply, cannot apply, and create an untenable situation in law”.
We agree with learned Counsel for co-respondent no. 1 that the scope of the
argument before the Full Bench was limited to the consideration of the soundness of the
pleas in limine litis and that the Supreme Court addressed a purely pleading point
whereas novel points and questions of law of “declaratory relief and its alleged evolution”
which never formed part of the applicants’ case, that were never pleaded and argued before
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the Full Bench are being raised for the very first time before this Court in this application
for leave to appeal to the Judicial Committee of the Privy Council. It was never part of the
adjudicative mandate of the Full Bench to canvass and decide the law on declaratory relief.

We also agree with learned Counsel for co-respondent no. 1 that in his criticisms,
as formulated in paragraphs 23 and 24 of his written submissions, learned Counsel for the
applicants is indeed “repackaging [the applicants’] case at leave stage” and is seeking “to
distort and mischaracterise the true scope and purport of the interlocutory judgment”.

Indeed as rightly pointed out by learned Counsel for respondent no. 2, “it is only at
the stage of conditional leave to appeal that Applicants are setting out detailed submissions
with authorities on the issues of whether (i) a declaratory relief can be sought under section
83(1) of the Constitution without ‘challenging’ the constitutionality of the legislation or of a
part of the Constitution, and of whether (ii) declaratory relief can be granted by the Supreme
Court under section 83(1) of the Constitution with respect to hypothetical events and/or
future rights”.

The issues that we need to consider are whether it would be proper for the
applicants to raise and submit new points of law for the consideration of the Judicial
Committee of the Privy Council when the Full Bench of the Supreme Court was deprived
of the benefit of these new arguments and authorities; and of the opportunity of addressing
its mind and adjudicate upon these points? Have the applicants realised that there was a
defect in the manner in which their case was presented before the Full Bench and they are
now trying, through this application for leave, to cure that defect? If so, should the
applicants be permitted to “repackage and reformulate what is properly a pleading point
into a theoretical point on the law of declaratory relief in order to try and fall into the ambit
of section 81(2)(a) of the Constitution”?

Learned Counsel for the applicants conceded that what were argued before the Full
Bench and what he is arguing before us differ substantially. He also does not dispute that
novel points are being brought up now but argued that the grounds invoked by the
applicants are of public interest which ought to be submitted to the Judicial Committee of
the Privy Council. Learned Counsel even made a brave attempt at implying that we should
read in-between the lines of the submissions of late Mr R. Stephen and reach the
conclusion that his submissions reflect the current stand of the applicants. We are unable
to adopt this stand of learned Counsel which we find to be inappropriate.
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We find it apposite to refer to the case of Anne M A C v The State of Mauritius

and anor [2003 MR 212] where the Court observed that “…the …application [for leave to
appeal to the Judicial Committee of the Privy Council] is grounded on matters that were not
submitted for determination by the Supreme Court in the case that went on appeal. They
were therefore not points that were considered and adjudicated upon by that Court to form
the subject of an appeal to the Judicial Committee under Section 70A of the Courts Act. In
short, there has never been any decision of the Supreme Court on any of the issues which
are presently being raised in support of the application for leave”. In the light of its
observation, the Court decided that “…there is no justification warranting the granting of
leave to appeal to the Judicial Committee of the Privy Council”.

The cursus of this Court in refraining from allowing an applicant to rely on points or
questions of law, which were never canvassed and adjudicated upon by the Supreme
Court, in support of an application for leave to appeal to the Judicial Committee of the Privy
Council, was reaffirmed in the cases of Sujeeun V S v The State [2019 SCJ 122] and Ah
Yan G C v The District Council of Grand Port & Ors [2021 SCJ 115].

In Sujeeun (supra), the Supreme Court declined to grant conditional leave on the
basis that new issues which the applicant wanted to submit for the consideration of the
Judicial Committee of the Privy Council had never been canvassed or dealt with before the
trial court or the appellate court and there was therefore no pronouncement of the Court on
those issues.

In Ah Yan (supra) the Court stated “we…wish to reiterate, that this is an application
for leave to appeal to the Judicial Committee of the Privy Council which is governed by
section 81(1)(a) and (2)(a) of the Constitution, as averred in the motion paper. It is neither
an appeal from the judgment of the Supreme Court, nor a second appeal from the
determination of the Tribunal, and even less an appeal from the respondent’s decision. It
is not open to the applicant therefore to raise at this stage issues which have not been
raised before the Supreme Court (see Anne v State of Mauritius [2003 SCJ 163]”.
(Underlining is ours)

There are absolutely no cogent reason justifying a departure from what have been
stated in Anne v The State of Mauritius and anor and Ah Yan G C v The District Council
of Grand Port & Ors. On the other hand, allowing the applicants to restructure their case
along the lines presented to this Court as per the oral and written submissions of Counsel
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will indeed be unfair, improper and will cause grave injustice not only to the respondent and
co-respondents nos. 1 and 2 but equally to the Full Bench of the Supreme Court.

We wholly subscribe to the views of learned Counsel for co-respondent no. 2 that,
if as contended by the applicants “there is little guidance on declaratory relief under
Mauritian law”, the applicants ought to have initially sought guidance from the Supreme
Court by providing detailed submissions and authorities, by permitting the other parties to
respond to their submissions and by giving the Supreme Court the opportunity of
adjudicating thereon. Were the applicants allowed to raise and argue novel points as they
intend to do (as is apparent from the submissions of their Counsel) without having given
the proper opportunity to the Supreme Court to express its views on those issues, that will
“potentially create an evil precedent”.

We find support in some of the decisions of the Judicial Committee of the Privy
Council which reflect its approach when issues are sought to be argued for the first time
before it which were not raised or canvassed either before the Court of first instance or on
appeal.

In Director General of the Mauritius Revenue Authority v Lutchumun Adhinath

Singh and Others [2006 PRV 114], at paragraphs 9 and 10 of the judgment, Lord Hope
of Craighead had the following to say:

“9. The Revenue objected to the raising of issues B and C before the Board
because they had not been raised before the Tax Appeal Tribunal or the
Supreme Court or in the application for leave to appeal to the Privy
Council. Mr Pursem for the taxpayers submitted that they should be
allowed to raise these issues as they were purely issues of law, there
was no unfairness as notice had been given to the Revenue of their
intention to raise them and they were of importance in view of their effect
on the taxpayers’ tax liability. He said that they had been raised, albeit
without success, during the course of the argument in the Tax Appeal
Tribunal. But he accepted that no explanation could be given for the fact
that they were not raised again when the case came before the Supreme
Court and were not mentioned in the application for leave to appeal,
other than they had been overlooked.

10. Their Lordships’ normal practice is not to allow issues of law to be raised
before the Board which have not been argued before the Supreme
Court. This practice may be departed from in exceptional
circumstances, but their Lordships were not persuaded that they would
be justified in departing from it in this case. The issues which Mr Pursem
 11

wished to argue do not depend on anything that was not known when
the assessments were appealed against. They raise questions of taxing
practice on which their Lordships would have wished in any event to
have the views of the Supreme Court. In the absence of a sound reason
for their not having been raised in that court, they refused leave for these
two issues to be argued before the Board.”

We may also refer to the pertinent observations of Lord Clarke at paragraph 58 of

the judgment in the case of Dany Sylvie Marie and Dhojaven Vencadsamy and others
v The Electoral Commissioner, The Electoral Supervisory Commission and The State
of Mauritius [2011] UKPC 45 and which reads as follows:

“58. The second reason for not granting special leave is that, in the opinion
of the Board, it is of the utmost importance that, save perhaps in an
exceptional case, the Judicial Committee should not pronounce upon
what are or may issues of considerable constitutional importance
without having the benefit of the opinion of the Supreme Court or the
Court of Appeal upon them. Those courts have much greater familiarity
with the history and development of the voting system in Mauritius and,
so far as they may be relevant, with both issues of policy and the
political realities in Mauritius today. They are in a far better position
than the Board, at any rate in the first instance, to grapple with such
issues and to identify which issues are in truth issues of law and which
are issues of policy.”

In Madhewoo v The State of Mauritius and another [2016] UKPC 30, the
appellant was refused permission to argue a point which was not canvassed before the
Supreme Court in the following terms: “…the Board notes that the appellant seeks to argue
that the requirement to provide fingerprints in order to obtain an identity card was
discriminatory, contrary to section 16 of the Constitution, because no such requirement was
imposed on foreign residents and tourists. The Board was informed that this was not
argued in submissions before the Supreme Court. It cannot be raised now.”

In De La Haye v Air Mauritius Ltd [2018] UKPC 14, Lord Hughes cited with
approval paragraph 24 of the decision in Grewals…which reads as follows:

“24 …the Board will not normally entertain an argument which was not
advanced below unless it can be done without injustice.”

Lord Hughes then observed at paragraph 18:

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“18. …[there is] great desirability of the Board having the considered
opinion on the topic of the courts in the country from which the question
comes to it….”

In addition, we note that the applicants have failed, as rightly submitted by learned
Counsel for the respondent,

(i) to substantiate in a meaningful, clear, precise and succinct manner how and
why the Full Bench of the Supreme Court has erred in its decision;

(ii) to explain how the grounds of appeal which are prolix, repetitive and
argumentative “disclose issues which have interrupted and diverted, are
interrupting and diverting and will continue to interrupt and divert the due and
orderly administration of the law and of justice into a new course, which will
create an evil precedent for the future”;

(iii) to explain how “the conditions laid down under section 81(2)(a) of the
Constitution of Mauritius have been met”;

(iv) to establish that the application “discloses a serious complaint of substantial

and grave injustice, in the sense of a “disregard of the forms of legal process”
and a ‘violation of the principles of natural justice’”;

(v) to establish how the Full Bench of the Supreme court misapplied the legal
principles to the constitutional relief case, in such a manner which “has caused
substantial and grave prejudice to [them] and has interrupted and diverted, is
interrupting and diverting and will continue to interrupt and divert the due and
orderly administration of the law and of justice into a new course, which will
create an evil precedent for the future”; and
(vi) to establish in what exact manner the present application raises issues of
great general or public importance which ought to be submitted to the Judicial
Committee pursuant to section 81(2)(a) of the Constitution.

Furthermore, we fully concur and endorse the submissions of learned Counsel for
the respondent with regard to grounds (g) and (h) of the grounds which the applicants wish
to submit for the consideration of the Judicial Committee of the Privy Council. The case
before the Full Bench was one of constitutional redress under section 83(1) of the
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Constitution. Such an action is entered where a person “alleges that any provision of this
Constitution (other than Chapter II) has been contravened and that his interests are being
or are likely to be affected by such contravention”. However, the applicants themselves
admit in these grounds that “there was no actual infringement or threat of an imminent
infringement of [their] rights” and that the issue pleaded by them was “academic in the
context of the current proceedings” the purpose of which is to “pre-empt future
litigation”. The applicants cannot, therefore, seriously contend that these grounds disclose
any issue of “great general or public importance”.

Additionally, the applicants have not deemed it fit to address the issue of public
interest which the respondent has raised in support of its arguments that the present matter
is neither an exceptional one nor is there a good reason in the public interest for the Court
to exercise its discretion to hear a matter which has become academic.

Similarly, grounds (i), (k) and (l) invoked by the applicants are misleading in the view
of the tenor of prayer 26B of the applicants’ second amended plaint, the “Issues in Dispute”
submitted for the consideration of the Full Bench and the submissions of the then Counsel
for the applicants. In other words, the constitutionality of paragraph 3(1) of the First
Schedule to the Constitution was never made a live issue so that there is no
pronouncement of the Full Bench thereon. By raising novel issues at this stage, the
applicants have given a new spin to the case altogether which is most objectionable and
they are estopped from doing so.

We have not been persuaded by the arguments of learned Counsel for the
applicants that grounds 8(a) to (p) satisfy the requirements of section 81(2(a) of the
Constitution and that the interlocutory judgment of the Full Bench of the Supreme Court, if
left to stand, will interrupt or divert the due and orderly administration of the law into a new
course and will create an evil precedent.

We can only reiterate the observation of the Supreme Court that the applicants who
discarded and paid no heed to the invitation of Mr A. Moollan, Senior Counsel, for co-
respondent no. 1 (then co-defendant no. 1) to restructure their amended plaint so that the
Full Bench could adjudicate on the real disputes did so at their own risks and perils. The
applicants cannot lay the blame at the door of either the respondent or co-respondents nos.
1 and 2 in support of their contention that they have been “deprived of the right to a fair trial
and the protection of the law”. They had the carriage of proceedings and were best placed
to prevent any alleged substantial and grave injustice.
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Having screened the present application and the interlocutory judgment of the Full
Bench of the Supreme Court, we are not satisfied that the requirements of section 81(2)(a)
of the constitution have been satisfied and that leave to appeal to the Judicial Committee
of the Privy Council ought to be granted.

The application for leave is accordingly set aside with costs.

N. Devat
Ag. Chief Justice

P.M.T.K. Kam Sing

Judge

07 November 2023

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Judgment delivered by Hon. N. Devat, Ag. Chief Justice

For Applicants : Mr S. Mardemootoo, Attorney at Law

Mr Y. Reesaul, of Counsel
Mr K. Chetty, of Counsel

For Respondent : Mr D.K. Manikaran, Principal State Attorney

Mrs P.V. Ramjeeawon-Varma, Assistant
Parliamentary Counsel
Mr G.S. Coolen, State Counsel
For Co-Respondent No. 1 : Mr A.K. Rajah, Senior Attorney
Mr A. Moollan, Senior Counsel
Mr A. Adamjee, of Counsel

For Co-Respondent No. 2 : Mr D.K. Manikaran, Principal State Attorney

Ms K.K. Domah, Senior State Counsel

For Co-Respondents Nos. 3, : Left default

4, 6, 7, 8, 9, 11, 13 to 20

For Co-Respondents Nos. 5, : Will abide

10 and 12