WESTPORT ENTERPRISE LTD v STATE

2017 SCJ 256

Record No. 77477 (1/174/02)

THE SUPREME COURT OF MAURITIUS

In the matter of :-
Westport Enterprise Ltd
Plaintiff

The State of Mauritius

INTERLOCUTORY JUDGMENT

By way of an amended plaint with summons “plaint” dated 23 May 2008, the plaintiff
Company is claiming from the State the sum of Rs.103,540,000 which represents loss of
time on the project, loss of opportunity on acquisition of land, loss of potential profits, extra
expenditure for the construction of a factory and for the acquisition of machinery, refund of
reservation fees and fees paid to architect.

The plaintiff Company is a manufacturer of roller shutters, cable trays, filing cabinets,
doors frames, louvers, etc. and is suing the defendant for the failure of the Ministry of
Housing and Lands for having allocated, a plot of State land in the area of
Phoenix/Curepipe, which was reserved to be leased to the Company, to a third party and for
having kept the matter in abeyance for 16 years.

The defendant has put in a third amended plea together with a plea in limine which
reads as follows: “The amended plaint with summons be dismissed with costs as it discloses
no cause of action against the defendant inasmuch as-

(a) ex facie the amended plaint with summons, the plaintiff has failed to aver whether its
action is based on contract or tort; and

(b) the plaintiff has failed to aver any “lien de préposition” in the said amended plaint with
summons.”
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Upon a statement made by learned senior counsel for the plaintiff in Court that the
plaintiff’s case is based solely on contract, learned counsel for the defendant dropped the
first limb of the plea in limine.

However, on the second limb of the plea in limine, learned counsel for the defendant
submitted that ex-facie the pleadings, there is no averment of the “material fact” illustrating in
what capacity and how the State is at all responsible or liable for the acts and doings of the
Ministry of Housing and Lands. He further added that in the absence of any averment
illustrating that the State or the Ministry of Housing and Lands is being sued as “commettant”
for any breach caused by its “préposé”, the plaint discloses no cause of action quoad the
defendant and should be dismissed with costs.

In his reply, learned senior counsel for the plaintiff submitted that the necessity of
averring that the State is being sued as the “commettant” of its agent is not regarded as
sacrosanct and it applies only in cases of tortious liability. Learned counsel further submitted
that even if at the end of the day, the Court concludes that the same principle should apply in
cases of contract against the State, it may be curled from the plaint which set out in great
detail the chain of events starting from March 1991 to 2001 and from the references to the
exchange of correspondences, the defendant would know what case it has to meet. The
defendant can clearly identify the persons who have dealt with the file of the plaintiff.

The State Proceedings Act provides that:

1. “Liability of State in contract

Where a person has a claim against the State in respect of a breach of contract the
claim may be enforced as of right by proceedings taken against the State for the
purpose in accordance with this Act.”

2. “Liability of State in tort

1. Subject to this Act, the State shall be subject to all those liabilities in
tort to which, if it were a private person of full age and capacity, it would be
subject in respect of:-

(a) torts committed by its employees or agents;

(b) a breach of those duties which, in law, a person owes

(c ) a breach of duties attaching, under the law, to the

It is well settled that in an action against the State in tort, failure to aver that it is being
sued in its capacity as “commettant” and that its liability results from the “faute” of its
“préposé”, is fatal and numerous cases have been set aside on that ground for want of a
proper cause of action. However, the application of the above principle to cases against the
State in contract was subject to controversies until the judgment of the full bench of the
Supreme Court in the case of D.S.A Company Ltd v The Ministry of Public Infrastructure
[2013 SCJ 485], and it is relevant to refer to paragraphs 13.8 and 16.4 of the said judgment,
which are reproduced hereunder :

“The SPA therefore covers both liability of the State for breach of contract and in tort
and it is not by singling out section 2 of the SPA to link it with section 4(1) and (2) of
the POPA that one can affirm with any small degree of conviction that these
provisions relate to the liability of the State in tort only. Section 1 of the SPA still
exists and co-exists with section 2.”

“16.4 The gordian knot has finally been left to us to untie and we believe we have
been able to do so on the basis of a maximum convergence of points which lean in
the way of the decision in Vikas which are as follows:

(i) similarity of the basis of liability in both contract or tort resting on a “faute” – either
“faute contractuelle” or “faute délictuelle” so that whatever period of limitation exists
to bring a case in contract should be the same as in tort. For example, the delay to
bring an “action personnelle” pursuant to article 2270 C. Civ. which is of 10 years
apply mutatis mutandis to tort and contract. Section 4(1) of the POPA must therefore
be given a purposive interpretation which happens to also coincide with a literal
interpretation;

(ii) clarity and unambiguity of the language of section 4(1) and (2)(a) of the POPA
which calls for a literal interpretation;

(iii) the fact that the liability of the “commettant” extends not only for a “faute
délictuelle” of its “préposé” but also to a breach of contract initiated by a “préposé”.

(iv) the legislator is deemed to know the law. If he decided not to make a distinction
between contract and tort in POPA and uses instead the generic and general term
“Every civil action”, it would be judicial legislation for the Courts to insert that
distinction. That would violate the doctrine of Separation of Powers. The only
distinction that POPA makes is the distinction between civil and criminal. It does not
expressly or impliedly create any sub-heading under civil action for contract and tort.”
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The State as an incorporeal entity invariably and necessarily acts through its agents
and servants. It is also trite law that in our civil law, the State as “mandant” or “commettant”
is liable for any contractual breach committed by its “mandataire” or “préposé” in the
exercise of latter’s duty.

It therefore arises out of the judgment in D.S.A Company Ltd v The Ministry of
Public Infrastructure (supra) that it is incumbent on the plaintiff to aver in its plaint that the
State is liable as a “commettant” for a breach of contract initiated by its “préposé”. The same
reasoning is adopted in the case of Sumeru Ltd v Rodrigues Regional Assembly [2016
SCJ 361], whereby it was held that “in the absence of any specific averment in the plaint with
summons to the effect that the defendant is liable as a “commettant” for breach of contract
initiated by its “préposé” the plaint with summons does not disclose a proper cause of
action.”

In the present plaint, the plaintiff Company has lengthily referred to the
correspondences between its Company and the Ministry of Housing and Lands ranging from
1990 to 2001. However, none of the 38 paragraphs in the plaint contain an averment that
the defendant is being sued in its capacity as “commettant” for any breach of contract
initiated by its “préposé”. Although throughout the plaint, the plaintiff Company made
mention of the Ministry of Housing and Lands, yet at no time, it made any reference to any
breach of contract initiated by the “préposé” of the said Ministry. The Ministry of Housing
and Lands being an arm of the State, is equally a “commettant”. The “lien de préposition”
between the State as “commettant” and its officers as “préposés” does not appear in any of
the averments of the plaintiff’s pleadings.

True it is that the “lien de préposition” has to appear in the formulation of the cause of
action and it cannot be inferred. The wordings of the pleadings must sufficiently convey the
meaning that the defendant was in fact responsible and answerable as “commettant” for the
contractual breach committed by or through its “préposé”, but this is not so in the present
pleadings.

In the absence of specific averment in the plaint to the effect that the defendant as
“commettant” is liable for breach of contract initiated by its “préposé”, the plaint does not
disclose a proper cause of action.
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For the reasons given above, I uphold the second limb of the plea in limine and I,
accordingly, set aside the plaint. With costs.

G. Jugessur- Manna
Judge

7 July 2017

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For Plaintiff: Mr. A. Domingue, of Counsel

For Defendant: Mr. Y. Jean Louis, Ag. Principal State Counsel appearing together
with Mr. N. Meetook, State Counsel
Mrs. R. Camiah, Principal State Attorney
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