RAMGOOLAM NAVINCHANDRA V COMMISSIONER OF POLICE & ANORS

2015 SCJ 84
Record No 196/2015
THE SUPREME COURT OF MAURITIUS
(IN CHAMBERS)
In the matter of:Dr Navinchandra Ramgoolam
Applicant
V
1. Commissioner of Police
2. ACP HemantJangi
Respondents
Ex Parte
Dr Navinchandra Ramgoolam
Applicant
--------------

JUDGMENT
THE APPLICATION
The applicant was the Prime Minister of Mauritius until December 2014. In February
2015 by virtue of a search warrant, his office and residence were searched where a variety of
items were seized including six mobile phones, suitcases and two safes.
The applicant who is the subject of a Police Enquiry is praying for the following:
A. an order in the nature of an interim Writ of Injunction to be issued restraining
and prohibiting the Police from having indiscriminate access to my mobile
phones and/or copying or otherwise storing data contained in the internal
memory or memory cards of the mobile phones, other than those relevant to
the investigation.

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B.

Requiring the Officer in Charge of the Police I.T. unit to keep any data

retrieved from my mobile phones with my consent, confidential under his care,
control and custody and not to communicate such data to the CCID or any
other Police Officer without a request made in writing by the Enquiring Officer
of the CCID specifying the precise and detailed data required for the purposes
of the investigation;
C.

Restraining and Prohibiting the Police from disclosing directly or indirectly

to the Public in any manner, shape or form data, or any part thereof, obtained
from my mobile phones or information gathered from such data and
D.

Making such other order/s as the Honourable Judge may deem fit and

proper or as the justice of this case may require.

I declined the above application for an interim order on Friday 20 th of February 2015 but
a summons was issued to show cause on the two respondents in the afternoon of the same
day to decide whether an interlocutory order should be made in view of the urgency of the
matter.
Being given the application related to an ongoing Police Enquiry, I was prepared to fix
the hearing on Monday the 23rd of February in the afternoon with the parties exchanging
affidavits over Saturday and Sunday. However as it was stated that the Police Enquiry could
continue along other avenues, I gave an order that the status quo regarding the mobile phones
be maintained. The usual procedure of exchange of 2 affidavits by the respective parties was
followed. Leave was obtained for a 3rd affidavit to be filed by the applicant. After I heard
argument on Friday 27th February 2015 about the contents of the 3rd affidavit, I gave my oral
decision immediately thereafter. The matter was finally in shape on Tuesday 3 rd of March 2015
and submissions were heard on Friday 6th of March 2015.

PROCEDURE
Under Rule 3(a) of the Supreme Court (Judge in chambers) Rules 2002, the application
should specify which aspect of the jurisdiction of the judge in chambers is being invoked. The
proecipe of the present application refers to an Interim Writ of Injunction but it is clear from

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submissions of Learned Counsel for the applicant that it is as a Juge des Rfrs that I am
being asked to consider this application. Though Rule 3(b)(i) of the Supreme Court (Judge in
Chambers) Rules 2002 has not been complied with, in view of the urgency of the present
matter to avoid protraction, as I already have affidavits before me and have heard the matter, I
will consider the present application as having specified Article 806 of the Code de Procedure
Civile and being compliant. I do not find this irregularity fatal to the present application.

JURISDICTION
The respondents in their first affidavit raised the issue of jurisdiction of the judge in
chambers to decide on issues of the security and interest of the State and privileged
information related to the Office of the Prime Minister and the violation of the applicants
alleged constitutional rights. As this was not a preliminary objection, it was taken together with
the submissions at the hearing.
The respondents have also raised the objection that a judge in chambers cannot deal
with the present matter as a mandatory injunction is being sought and is lacking a main action.
According to applicants Counsel, the present application is a novel one and is the first time the
judge in chambers has been seized with such a case.
I will deal with the second objection first and in some detail. The present application is
under Article 806 of the Code de Procedure Civile which was considered by the Judicial
Committee of the Privy Council in the case of Gujadhur&Ors v Gujadhur&Anor [2007 UKPC
54] here too it was submitted that in the absence of a principal action, the judge had no
jurisdiction to make an order in the nature of a mandatory injunction. The Lords of the Judicial
Committee were of the view that:
It does not necessarily require the judge to form the view that the
applicant is likely to succeed at the trial and even after the grant of a
mandatory injunction, he may well fail. But this has no application
to the rfr procedure which is an entirely freestanding instance
and in which no order is made unless the judge considers that there
is no serious and bona fide defence. It does not need the support
of a principal action although either party is at liberty to commence
one.

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It was also submitted before the Judicial Committee that the
rfrprocedure

applied

only

to

writs

of

possession

(haberefaciaspossessionem). This was not accepted:

Their Lordships can find nothing in the language of article 806 or the
Mauritian or French jurisprudence to confine the application of the
procedure in this way.
Another judgment of the Judicial Committee of the Privy Council, Fun World Co Ltd v
The Municipal Council of QuatreBornes [2009 UKPC8 2008 PRV 46] also considered
Article 806 of the Code de Procedure Civile but more relevant was the attention given to
what I will refer to as the jurisdiction point. Reference was made to the fact that for the
purposes of injunctions and judicial review, the Mauritian Courts follow similar paths as in
England but were not exactly the same:
First, there is a distinction between jurisdiction and procedural propriety. A judge in
chambers is, and sits as, a judge of the Supreme Court of Mauritius, as do the judges of the
Supreme Court when sitting on an appeal. The titles to the proceedings before P Lam Shang
Leen J and to the appeals in this case show as much. S.15 of the Courts Act provides that
"The Supreme Court . shall have all the powers and judicial jurisdiction necessary to
administer the laws of Mauritius". On the face of it, P Lam Shang Leen J had jurisdiction to
exercise all such powers and judicial jurisdiction, unless that jurisdiction was cut down by
statute.

The emphasis is added.

In the both the majority and the dissenting judgments of the Fun World (supra)
reference is made toGuaranty Trust Company of New York v Hannay& Co. [1915] 2 KB 536
and to what was stated by Pickford LJ at 563 :
"The word 'jurisdiction' and the expression 'the Court has no jurisdiction'
are used in two different senses which I think often leads to confusion.
The first and, in my opinion, the only really correct sense of the
expression that the Court has no jurisdiction is that it has no power to
deal with and decide the dispute as to the subject matter before it, no

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matter in what form and by whom it is raised. But there is another sense
in which it is often used, i.e., that although the Court has power to decide
the question it will not according to its settled practice do so except in a
certain way and under certain circumstances."
The Lords of the Judicial Committee also referred to the evident flexibility of Mauritian
law and to the case of DPP v Mootoocarpen [1988 MR 195] where Glover CJ and Lallah
SPJ noted that
our case law of Mauritiusis replete with instances where this Court, and by extension
the Judge in Chambers, have exercised powers and made orders in the field of equity
(particularly injunctions), in the much wider area of administrative law which is not, in
this country, broadly regulated by any statute, and in order to punish people for
contempt, to name only those instances.
It is quite clear that if a treatise were to be written on Mauritian Law, the sources of our
law would not be limited to statute but would have to include case law.
In Ragavoodoo v Appaya [1985 MR 18] the Judge stated:
there is a confusion between the jurisdiction of the to
grant interlocutory relief and his residual jurisdiction to
grant relief in matters requiring celerity so as to
implement or protect a clear legal right to theexercise of
which there is no serious or bona fide defence.
There have been other instances where the judge in chambers has dealt with urgent
matters where there is no main action. In the case of the Headmaster, Raoul Rivet
Government School, Ministry of Education & Human Resources v ParvezNuckcheddy
and NathaliaVadamootoo [2013 SCJ 170] there was no main action and the Judge considered
the application under article 806 in the absence of a main case. The case related to the
presence of a minor child being left on the premises of a primary school.
The necessity of a main case as a condition to the jurisdiction to a judge in chambers
was also considered on appeal in the case of Rault v Rambert[ 2009 SCJ 271] here it was
explained that the determination of a main action before a competent court would not act as a
bar to impede the jurisdiction of the juge des rfrs under Article 806 of the Code de
Procedure Civile.

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In the light of the above, I have no difficulty in finding that I can consider the present
application and have the appropriate jurisdiction to consider and determine the present
application.
With regard to the first objection by the respondents, I find that section 71 of the
CourtsAct (I take the reference to section 72which is repealed by Learned Counsel for the
Respondents as being to this section) does not preclude me from considering the issue of the
security and interest of the State in the light of the authorities and reasoning referred to above
in the various cases.

Locus Standi of Applicant

It is contended by the respondents that the ownership of the mobile phones has not
been adequately established by the applicant in the submissions of the respondents, thus
precluding him from exerting a right to prevent wholesale access to its contents.
This can be dealt with briefly:

The phones, it is not contested have been secured

following a search at the office of applicant at SSR Street, Port Louis by virtue of a search
warrant.

The particulars and numbers of the said phones are/were unknown to the

Respondents. The Respondents have sought to make a distinction between the ownership of
the mobile phones and the registration of the SIM cards. The applicant has sworn an affidavit
stating the phones in question belong to him. If this statement is later found not to be true and
correct, he may face the consequences. Be that as it may, I have no reason placed before me
to disbelieve the assertion by the applicant.
In any event the six mobile phones were under the control and custody of the applicant
at the time of the search and seizure at his office by the relevant Police Officers.
For the purposes of the present application, I do not see the need to make the distinction
in as much it is access to both which is being contested by the applicant and it is for the
purposes of an enquiry for alleged offences committed by the applicant.

RIGHTS CLAIMED
The applicant has claimed violation (or risk of) of his constitutional rights and for this
purpose cites:
a) Section 9 of the constitution
Protection for privacy of home and other property
b) Section 10 of the Constitution
Provisions to secure protection of law
c) To protection from interference with my correspondence under Section 12 of the
Constitution, Article 12 of the Universal Declaration of Human Rights and Article 17 of the
International Covenant on Civil and Political Rights and Article 22 of the CivilCode. Here I
consider the relevant Sections of the Constitution.

THE CONSTITUTION OF MAURITIUS

Section2.

Constitution is supreme law

This Constitution is the supreme law of Mauritius and if any other law
is inconsistent with this Constitution, that other law shall, to the extent
of the inconsistency, be void.
Section3.

Fundamental rights and freedoms of individual

It is hereby recognized and declared that in Mauritius there have existed and
shall continue to exist without discrimination by reason of race, place of origin,
political opinions, colour, creed or sex, but subject to respect for the rights and
freedoms of others and for the public interest, each and all of the following
human rights and fundamental freedoms

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(a) the right of the individual to life, liberty, security of the person and the
protection of the law;
(b) freedom of conscience, of expression, of assembly and association and
freedom to establish schools; and
(c) the right of the individual to protection for the privacy of his home and other
property and from deprivation of property without compensation,
and the provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of that
protection as are contained in those provisions, being limitations designed to
ensure that the enjoyment of those rights and freedoms by any individual does
not prejudice the rights and freedoms of others or the public interest.

Section 9.

Protection for privacy of home and other property

(1) Except with his own consent, no person shall be subjected to the search of
his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention of this section to the extent that the
law in question makes provision
(a) In the interests of defence, public safety, public order, public
morality, public health, town and country planning, the development
or utilisation of mineral resources or the development or utilisation of
any other property in such a manner as to promote the public benefit;
(b) For the purpose of protecting the rights or freedoms of other persons;
(c) To enable an officer or agent of the Government or a local authority,
or a body corporate established by law for a public purpose, to enter
on the premises of any person in order to value those premises for
the purpose of any tax, rate or due, or in order to carry out work
connected with any property that is lawfully on those premises and
that belongs to the Government, the local authority or that body
corporate, as the case may be; or

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(d) To authorize, for the purpose of enforcing the judgment or order of a
Court in any civil proceedings, the search of any person or property
by order of a Court or the entry upon any premises by such order,
Except so far as that provision or, as the case may be, the thing done
under its authority is shown not to be reasonably justifiable in a
democratic society.
The emphasis is added.
It is relevant and apposite for the purposes of determining the present application to refer to the
powers of the Police in the Constitution which are set out in section 71 as well as the Police Act.
Section 71 of the Constitution
Commissioner of Police
(1)

There shall be a Commissioner of Police whose office shall be a public

office.
(2)

The Police Force shall be under the command of the Commissioner of

Police.
(3)

The Prime Minister, or such other Minister as may be authorized in that

behalf by the Prime Minister, may give to the Commissioner of Police such
general directions of policy with respect to the maintenance of public safety and
public order as he may consider necessary and the Commissioner shall comply
with such directions or cause them to be complied with.
(4)

Nothing in this section shall be construed as precluding the assignment to

a Minister of responsibility under section 62 for the organization, maintenance

and administration of the Police Force, but the Commissioner of Police shall be
responsible for determining the use and controlling the operations of the Force
and, except as provided in subsection (3), the commissioner shall not, in the
exercise of his responsibilities and powers with respect to the use and
operational control of the Force, be subject to the direction or control of any
person or authority.
POLICE ACT

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Section 91(1)
Appointment in Disciplined Forces
(1) Subject to section 93, power to appoint persons to hold or act in any office in
the disciplined forces (including power to confirm appointments), to exercise
disciplinary control over persons holding or acting in such offices and to
remove such persons from office shall vest in the Disciplined forces Service
Commission:
Provided that appointments to the office of Commissioner of Police shall be made after
consultation with the Prime Minister.
In his affidavit, the applicant has referred to the following International instruments:

Article 12 of Universal Declaration of Human Rights

No one shall be subjected to arbitrary interference with his

privacy, family, home or correspondence nor to attacks upon his
honour and reputation. Everyone has the right to the protection of
the law against such interference or attacks.
Article 17 of International Covenant on Civil and Political Rights
No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.
The applicant is entitled to the protection of the law and the Constitution
in so far as his privacy rights are concerned.
The Constitutional protection afforded to him under sections 3, and 9 of
the Constitution provides for permissible derogations by virtue of law in the
public interest and in the interest of public order
The applicant, however is also subject to the laws of Mauritius and is the
object of a police enquiry for the alleged offences of Conspiracy under Section

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109(1) of the Criminal Code (Supplementary) Act and of Section 3(1)(b)of
the Financial Intelligence and Anti-Money Laundering Act.
On the issue of mobile phones containing sensitive and confidential
information in relation to the security and interest of the State as well as
privileged information related to the Office of the Prime Minister, it is for the
State and incumbent authorities of the State to claim such a privilege or
immunity. It has not been shown by the applicant that he can rely on such a
particular assertion to prevent lawful access to the contents of the mobile
phones.
The application refers to six mobile phones and it can be inferred that
four of them are what are termed smart phones (three iphones and a
Blackberry). There is no mention of the memory capacity of the phones and
cards. This is symptomatic of this application which is couched in wide general
terms and lacks specificity.
The applicant has invoked state secrets and sensitive information to
encompass all six mobile phones and their contents without any indication as to
which aspect is concerned and without specifying any contacts, names,
numbers, emails, photographs, videos.
A number of paragraphs are devoted to the conduct of the police and
their abusive behavior (such as summoning the applicant to the Police station in
the evening after he had filed a medical certificate). The applicant seeks a wide
protection and judicial control and in his submissions, Learned Counsel for the
applicant asked for the impositions of parameters on Police actions.
For the Judge in the rfr procedure to intervene, the speedy relief is
for matters requiring celerity so as to implement or protect a clear legal right to
the exercise of which there is no bona fide defence re Ragavoodoo vAppaya
[1985 MR 18].
although in the case of the rfr procedure the answer
must already be clear.

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The applicant has been unable to establish such a clear answer before
me, especially in the light of the lawful exercise of the Respondents powers and
duties in the course of a police enquiry.
Here the applicant though having a right, it is far from being a clear one
and to which there is no bona fide and lawful justification by the Respondents.
The Police are exercising their duties in law and the applicant has been unable
to establish that he is entitled to an order which should preclude or prohibit the
Respondents from having access to the contents of the six mobile phones for
the legitimate purposes of a Police Enquiry.
What is clear however is that such power should not in any way
contravene the constitutional rights of the applicant to the extent that there
should not be a trespass on these which in the present circumstances I find that
this relates to his right to privacy.
The applicant has averred that his treatment by the Police has been
unfair and partial. He has also averred that information has found its way to the
public by the press and media and which could only emanate from the
Respondents.
The suspicion may be present but for the purposes of this application it
has not been established that the only possible source are Police Officers or the
Respondents.
For all the above reasons, I find that the threshold for the present
application to succeed has not been reached and prayers A, B and C are not
granted.
I however find that in the circumstances of the present case and in order
to afford a proportionate protection to the constitutional rights of the applicant
that the following order under prayer D should be made:
1.

Respondent no. 1 shall identify the officers to whom shall be

entrusted the sole responsibility of keeping any data retrieved from the
six mobile phones and any memory cards;

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2.

These officers shall keep confidential under their care, custody

and control all such information;

3.

The use of such data shall be solely for the purposes of the

Police Enquiry; and

4.

The respondents and/or the identified officers shall not until the

completion of the police enquiry, in any circumstances communicate any

such information to any unauthorized person or body in any manner
which may infringe the constitutional right to privacy of the applicant.
The application is otherwise dismissed.

R. Teelock
Judge
Date: 13thMarch 2015
For Applicant:

Sir H. Moollan, Q.C, Y. Mohamed S.C, G. Glover S.C

and S. Oozeer, Counsel
Mr A.O. Jankee, Attorney

For Respondents:

State Counsel/Attorney