The Judicial Committee of the Privy Council delivered a judgment in March 2012, the opening words of which asked the following question:
“Is there a mango tree in the respondent’s back yard at No 303 Nelson Mandela Avenue, Quatre Bornes?
Far from being a rhetorical question, the subject matter of the query was a genuine question of fact – which had apparently never been resolved , nor even addressed, in the course of the case’s checkered history.
Lord Brown delivering the judgment on behalf of the Board explained that the case at hand concerned a civil litigation between the parties, which had lasted for 10 years and made its way through several levels of appellate jurisdictions before being finally heard by the Privy Council.
Interestingly, the judgment of the Privy Council barely explains the factual background to the case, nor even the legal issues involved in determining it. What the judgment does relate in some detail, is the series of jurisdictional and procedural objections and rulings which had marred the smooth progress and determination of the case – and which were eventually at the root of the very unsatisfactory state of affairs of the case by the time it reached the Privy Council.
After stating its findings on the technical jurisdictional issues brought before it the Board departed from its usually restrained criticism of domestic court proceedings, and allowed the following scathing reprimand to drop:
“Let the Board now state as emphatically as it can its clear conclusion on this appeal. In cases like these, where mistakes appear in the documentation as to which particular appellate jurisdiction of the Supreme Court has been invoked, those mistakes should be identified and corrected (without penalty unless they have genuinely created a problem) as soon as practicable and the Court should proceed without delay to deal with the substantive issues raised before it on the merits.
The line of authority represented by the Supreme Court’s decision in the present case constitutes a blot on Mauritius’s generally estimable record for the fair administration of justice. It must not be allowed to continue.”
The appeal was allowed, and a new trial was ordered.
This case of Toumany v/s Veerasamy, has since taken pride of place in submissions before our courts, wherever it is considered that an over technical application of the law may yield unjust consequences. However regrettably, the Privy Council has had occasion in subsequent cases, to repeat its above note of caution, which unfortunately still appears to fall on deaf ears from time to time.
It is therefore still relevant for us to keep addressing our minds to the actual dispute brought to be resolved by the Court – and to constantly remind ourselves that as long as the court does not give a clear decision on which version carries the day, the parties will not have obtained any judicial redress.
Procedural and technical issues are foreign to the dispute in its original form. These are imported into the debate by lawyers – for a specific purpose: that of delaying or avoiding altogether, the final determination of a matter. It is not uncommon for a case not be heard at all if the procedural flaw is found to be fatal. What better way to defend a case especially a hopeless one, than by having it aborted before it explodes into a full- scale hearing ?
The message being given to both the practitioners and the Courts by the Law Lords, is simple . The end result of a fair trial is a fair judgment. A judgment can only be fair if the litigants’ rights are not unduly fettered by the intricacies of a legal system – which ends up blurring the outcome rather than clearing it. Looked from this angle, it is fair to say that there is still a lot to be done until legal certainty may be achieved . The debate about procedural law being read differently to substantive law has devolved into the even more vexed question of mandatory and directory exercises of judicial powers. At the root of the discussion is the treatment of statutory time limits and their treatment by the Courts. Even before the Privy Council, in 2010, the Supreme Court in the case of Librarie Le Cygne Ltee v/s The Central Electricity Board had confessed being overwhelmed by the prevalence of this problem in the following terms:
“It is my view that talking in terms of mandatory, directory, procedural, substantive distinctions have resulted in creating more confusion than clarity in our law. As a result, there has occurred a subculture for permissiveness in non-compliance with the Rules. This has hampered rather than helped our justice system.”
Ten years on, we are still none the wiser. Court processes are peppered with preliminary objections and “pleas in limine” on procedural points – which are debated at length and become the subject of equally long rulings and judgments – not always consistent in approach . To free ourselves from the current vicious cycle , we may need to get some words of wisdom from another mango tree …
