Week 4-

PRE-TRIAL PREPARATION
• Notice of Trial
• Summons to witnesses
• Subpoena
• Personal answers-
Interrogatoire sur Faits et
articles
• Notice of tender of evidence
• Brief
• De Bene Esse
Civil Procedure- LLB Yr 3 2
CLOSURE OF PLEADINGS
The case is ready for trial when the Master is satisfied that all
incidents of pleadings in a case before the court have been dealt
with and that the case is ready to be heard on its merits. He/she
must then order that the case be placed on the list of cases
awaiting trial, except where, due to urgency, the Chief Justice
considers that the case must be immediately fixed for hearing (rule
23(1), SCR).
Where the judge is satisfied that all required exchanges of
affidavits have been dealt with and a case is ready to be argued on
the merits, the judge will fix the case to be heard on the merits on
such date as he/she thinks fit (rule 23(2), SCR).

Civil Procedure- LLB Yr 3 3

NOTICE OF TRIAL

Notice of trial is not obligatory but it is a practice which can be

adopted depending on the circumstances.
Lesage v Leclézio [2020 SCJ 39] : notice of trial is not obligatory
but ‘is an appropriate and advisable practice in certain instances.’

Civil Procedure- LLB Yr 3 4

SCR 9. Non-appearance of defendant before date of hearing
(1) Where, on the returnable date, or at any continuation or adjournment of a case prior to the
hearing, the defendant or other party-
(a) does not appear or is not represented;
(b) neglects to answer when called; or
(c) does not sufficiently, excuse his absence or failure to answer, the Master shall, upon proof of
the service of the summons, refer the case to be heard by the Court on a day to be fixed by him.
(2) Where a case has been fixed under paragraph (1), no notice of the day of the trial shall be
required to be served upon the defendant or other party.
Section 16(1) of the District and Intermediate Courts (Civil Jurisdiction) Act
“Where on the day so fixed in the summons, or at any continuation or adjournment of the Court
or cause in which the summons was issued, the defendant does not appear, or does not
sufficiently excuse his absence, the Court, upon the proof of the service of the summons, may
give judgment in terms of the plaint or, where the cause includes a claim for substantial
damages, proceed to the hearing of the witnesses and trial of the cause on the part of the
plaintiff only, and in either case, the judgment shall, subject to subsection (2), be as valid as if
both parties had attended.”
Civil Procedure- LLB Yr 3 5
Make out case- KHOLIL R v VICTORINE J & ANOR2018
SCJ 14
….
“From a reading of the Notices filed on record, I am satisfied that there
was good services on the defendants and it can safely be concluded that
the defendants were aware of the present proceedings against them
before the Supreme Court but they willingly decided not to appear in Court
to take up their defence. In spite of the fact that the Notice of Substituted
Service was served on the second defendant on two occasions yet she
was not present in Court. The Notice of Trial was equally served on both
defendants. However, they did not put up an appearance in Court on 14
July 2016to present their defence. Since the defendants have willingly not
put up an appearance in Court to defend the averments made in the plaint
against them, I am left to decide the case of the plaintiff as per the
averments in the plaint and the evidence on record”
Civil Procedure- LLB Yr 3 6
SUMMONS TO WITNESSES
SUPREME COURT
One day prior to the application for summons of witnesses, a list of witnesses must be served on
adverse parties.
There are two types of witnesses
(1) Those summoned to depone - ‘ab testificatem’
(2) Those summoned to produce documents - ‘duces tecum’

The application for issue of summons is made to the M&R verbally 8 days before the trial while
showing the list of witnesses already served on the defendant. Otherwise, the leave of the M&R
must be obtained if the delay is shorter.

The additional list of witnesses must be served on adverse parties at least 24 hours before the
trial day.

Civil Procedure- LLB Yr 3 7

SCR- 26. List of witnesses

(1) Where a party wishes to examine a witness, he shall serve on every

other party a list of those witnesses including their occupation and
addresses at least one day prior to his application for a summons.
(2) An application for a summons to issue to secure the attendance
of a witness and if necessary, the production of a document or other
article shall, unless the Master or the Court otherwise orders, on good
cause shown, be made not later than 8 days before the date fixed for
the trial.

Civil Procedure- LLB Yr 3 8

Rebuttal witnesses- SCR 27
(1) Where any party wishes to examine any witness to rebut any fact
to be proved by another party, he may apply to the Master for the
issue of a summons.
(2) The party shall give notice of the names of his witnesses,
occupation and address to every other party at least one day before
the date fixed for the trial.

Civil Procedure- LLB Yr 3 9

 In the Supreme Court of Mauritius

A
Plaintiff

v.

B
Defendant

LIST OF WITNESSES

TAKE NOTICE that the following is a list of witnesses whom the Plaintiff intends to call at the hearing of the above matter in
order to prove the facts, things and matters averred by the Plaintiff.
(1) Mr XY, [address], [profession] to come and produce xxx and give evidence on …
(2) The representative of Company X to come and produce xxx and give evidence on…
(3) …..
(4) …..

Under all legal reservations

Dated etc.

To/
The Defendant, with election of domicile at the office of Attorney XXX.
Civil Procedure- LLB Yr 3 10
DISTRICT COURT
Plaintiff and Defendant who wish to call witnesses must ask the District Clerk so the
respective attorney can summon the witnesses giving proper name and address and
profession.

Procedure
Simple letter to the District clerk stating the case number suffices. If you want
someone to produce a document you must ask for it in the letter.

This needs to be paid for.

In a case a party wishes to call the adverse party on his personal answers a motion to
that effect must previously be made to the magistrate and the clerk must
subsequently be requested to the adverse party to be examined on personal answers
on matters personal to him and relevant to the case.

Civil Procedure- LLB Yr 3 11

DICR
103. All summons to witnesses, orders of the Magistrate, notices, and
other process requiring to be served, which shall issue from any District
Court, may be served in the same manner as summonses to appear to a
plaint; except where a special mode of service has been directed in these
rules, or by any section of the District and Intermediate Courts (Civil
Jurisdiction) Act.
104. No summons, notice, or other process shall be served on Sundays,
Good Friday, Christmas Day, or any other day appointed by the President
for a public holiday, or a day of thanksgiving, of public fast, or of
humiliation, but such days shall be counted in the computation of the time
required by these rules, unless any of such days shall be the last of such
time, in which case it shall be excluded from such computation.

Civil Procedure- LLB Yr 3 12

 SUBPOENA-
Who can be served a writ of subpoena?
“I must straightaway state that it is not because applicant is a Minister that she cannot
be summoned.[P]ersons holding high offices stand in the same position as any other
[...] in regard to their liability to be called upon to give evidence before Court, and that it
must not be thought that a person summoned on subpoena ad testificandum can get
the summons set aside as a matter of course by swearing that he can give no relevant
evidence.[Vide Rex v. Baines, 1909, 1 K.B. 258; 78 L.J. K.B. 119 cited with approval in
Harford & Anor v Mason [1950 MR 10],Bacha & ors v Boodhoo and anor [1989 SCJ 98].”

See Jeewa- Daureeawoo F v Hoobert and Ors 2020 SCJ 336; Ringadoo v Pyndiah
and Jagatsingh v Pyndiah [1977 MR 153]; Dabee v Hurnam [2008 SCJ 6]

Civil Procedure- LLB Yr 3 13

 In the Supreme Court of Mauritius

A
Plaintiff

v.

B
Defendant

SUBPOENA
To:
(1) Mr XY, [address], [profession] to come and produce xxx and give evidence on …
(2) The representative of Company X to come and produce xxx and give evidence on…
(3) …..
(4) …..

RETURN
The foregoing writ of Subpoena was duly served by me the undersigned court usher upon XXXX by leaving true and
certified copy thereof for him, in his absence, with his maid at his residence, situate at XXX
On Thursday 02 July 2022
Signed/ title/ u. fees

Civil Procedure- LLB Yr 3 14

PERSONAL ANSWERS-
Interrogatoire sur faits et articles
A party can call a witness before the start of a case to obtain
certain answers (interrogatoire sur faits et articles)- Articles 324
and 336 of the Code of Civil Procedure and section 167 of the
Courts Act, Rule 36 of the SCR

Civil Procedure- LLB Yr 3 15

Also called comparution personelle.

Whenever a party’s case cannot be proved by witnesses or

established by documents, he may have recourse to the personal
answers of the adverse party (itself)The purpose is 2-fold:

(1) to obtain a beginning of proof by writing (commencement de

preuve par écrit) which will enable the party to prove his case.

(2) to obtain an admission (aveu)

Civil Procedure- LLB Yr 3 16

Bouvet v Mauritius Turf Club[1962 MR 213]
New Goodwill Co. Ltd v Tan Yan [1977 MR 329]

“We find that the procedure of interrogatoire sur faits et articles is

provided by law in cases where a party to a suit is unable to supply
adequate proof, whether written or verbal, of the averments made
in the pleadings. The aim of such interrogatory is generally to
obtain judicial admissions or aveux.”

• See also Ex Parte Kassamally Esmael [1941 MR 17] and

THONDRAYEN P. v THE STATE BANK OF MAURITIUS LTD 2015
SCJ 414
Civil Procedure- LLB Yr 3 17
 1341 Code Civil
De la preuve testimoniale
1341. Il doit être passé acte devant notaires ou sous signatures privées de
toutes choses excédant la somme ou la valeur de cinq mille roupies, même
pour dépôts volontaires; et il n’est reçu aucune preuve par témoins contre
et outre le contenu aux actes, ni sur ce qui serait allégué avoir été dit
avant, lors ou depuis les actes, encore qu’il s’agisse d’une somme ou valeur
moindre de cinq mille roupies.
Le tout sans préjudice de ce qui est prescrit dans les lois relatives au
commerce.

Civil Procedure- LLB Yr 3 18

Exceptions to the rule (1347 Code Civil): -
(1) If writing is lost (i.e. there is an impossibilité physique ou moral to
have un écrit)
(2) If there is a commencement de preuve par écrit e.g if such is
obtained through personal answers.
- The beginning of proof may be verbal.
- The party who is examined on personal answers is not
under oath or solemn affirmation but he cannot communicate with his
counsel or attorney.
- The facts on which he is asked to depone must be personal
to him and relevant to the case.

Civil Procedure- LLB Yr 3 19

Articles 324 and 336 of the Code de Procédure Civile
“324.Les parties peuvent, en toutes matières et en tout état de cause,
demander de se faire interroger respectivement sur faits et articles
pertinents concernant seulement la matière dont est question, sans
retard de l’instruction ni du jugement.

336.Seront tenues les administrations d’établissements publics, de

nommer un administrateur ou agent pour répondre sur les faits et articles
qui leur auront été communiqués; elles donneront, à cet effet, un pouvoir
spécial dans lequel les réponses seront expliquées et affirmées véritables,
sinon les faits pourront être tenus pour avérés, sans préjudice de faire
interroger les administrateurs et agents sur les faits qui leur seront
personnels, pour y avoir, par le tribunal tel égard que de raison.”

Civil Procedure- LLB Yr 3 20

Encyclopédie Dalloz Procédure Civile Vo Comparution
Personelle et Interrogatoire.“
12.La comparution personnelle ne peut être ordonnée qu’à l’égard des
parties en cause, ... ... ”
“13.... ... Il n’est donc pas permis au tribunal d’ordonner la comparution
d’une personne étrangère au procès, pour l’interroger sur les faits de la
cause. Bien plus, le tribunal devrait refuser la comparution, s’il était
prouvé que la partie n’a été mise en cause que pour tourner les règles de
la preuve testimoniale (GARSONNET et CEZAR-BRU, t.2, no. 287, note
13)”

Civil Procedure- LLB Yr 3 21

COURTS ACT – S 167. Examination on faits et articles

Where a party to a suit is called upon to give his unsworn personal

answers, he may be examined as an adverse witness by a party
calling him and afterwards examined on his own behalf, but only as to
matters arising out of the examination made by the party calling him,
and he may then be reexamined touching any question put to him on
his behalf.

Civil Procedure- LLB Yr 3 22

SCR 36- Examination on personal answers
(1)Where a party intends to call another party to give his unsworn personal
answers, he shall apply ex-parte to the Master for an order summoning to do so.
(2)Where the party to be examined on personal answers is a corporate body, only
a person who can legally represent the body may be summoned, and a list of
questions to be put to the body shall be served upon it.
(3)The Master shall, on good cause shown, order the other party to appear before
the Court for his examination on personal answers.
(4)The order and in the case of a corporate body, the list of questions shall be
served upon the other party at least 5 days before the date fixed for the
examination on personal answers.

Civil Procedure- LLB Yr 3 23

 IN THE ....COURT OF MAURITIUS

AB
Plaintiff
v/s

CD
Defendant
Ex parte
AB
Applicant

PREOCIPE

For an order to issue ordering the Defendant to be and appear on the floor of the Supreme Court at the
hearing of the above matter on the ... day of ......, 2022 at 10.30 a.m to be examined on his unsworn personal
answers on matters which are personal to him and relevant to the present case and this for the reasons set
forth in the hereto annexed affidavit.

Civil Procedure- LLB Yr 3 24

NOTICE TENDER OF EVIDENCE
Any party who intends to submit documentary evidence (in addition to
tender of evidence in a plaint with summons and plea and counterclaim,
if any) must serve on the other party’s attorney a notice signed by his/
attorney, describing the documents and stating where the documents
may be examined, no later than four weeks before the hearing, unless
agreed otherwise by the parties.
For the admissibility of documentary evidence, every notice of
documentary evidence must contain an invitation to every other party,
calling on them to agree in writing that they admits the evidence to be
what it appears to be, namely that the document is:
• If an original, written, signed or executed as it purports to have been.
• If a copy, is a true copy.
• Has been served, sent or delivered.

Civil Procedure- LLB Yr 3 25

SCR 29. Admissibility of documentary evidence

(1) Every notice of documentary evidence shall contain an invitation to

every other party calling upon him to agree in writing that he admits such
evidence to be what it appears to be, namely that a document which is
stated to –
(a) be an original was written, signed or executed as it purports to have
been;
(b) be a copy is a true copy; and
(c) have been served, sent or delivered,

(2) Where the other party does not signify his agreement within a
reasonable time, the Court may order that the costs of proving a
document, which is sufficiently proved at the trial, be paid by that party,
whatever may be the result of the case.
Civil Procedure- LLB Yr 3 26
TAKE NOTICE that the Plaintiff/ Defendant in the above matter intends to adduce
evidence at the hearing the hereunder described documents which may be inspected
by you, your attorney or agent on any office day or office hours and you are hereby
required by me that such of the same documents that are specified to be originals
were respectively signed and executed as they purport to be and that such other
documents as are specified to be copies are true copies and such documents as
were stated to be served, sent and/or delivered were so sent and delivered
respectively all just exceptions to the admissibility of the said documents as
evidence on this cause.

DESCRIPTION OF DOCUMENTS

Under all legal reservations

Attorney/ Address/ Dated etc.

Civil Procedure- LLB Yr 3 27

BRIEF
The attorney for the Plaintiff/ Applicant must apply to the Registry
for a certified copy of the pleadings and all entries on record in the
case. The attorney must prepare and file in the Registry not later
than 14 days before the hearing, a brief of the record, according to
the certified copy in as many copies as needed and forward a copy
to every other party (rule 32(1), (2), SCR).
Except where the judge otherwise orders, the Plaintiff/applicant’s
attorney must, in a case to be heard by the judge in chambers
prepare and file with the judge’s secretary a brief of the record and
forward a copy to every other party not later than eight days before
the hearing (rule 32(3), SCR).

Civil Procedure- LLB Yr 3 28

THE SUPREME COURT (PREPARATION OF BRIEFS) RULES
2009
• In any action entered before the Supreme Court or before any of its divisions, the
attorney of the party initiating the action shall be responsible for providing to the
Court and to the attorney of any other party to the action and, in the case of any
other party not legally represented, to the party himself, a duly indexed copy of all
documents and records of proceedings contained in the Court file.
• The copy mentioned in paragraph 2 shall be duly indexed and paginated, and shall be
referred to as "BRIEF" with the word printed on the cover.
• Where a case is going to be heard before more than one judge, a brief shall be
provided for each judge.
• Tendered documents shall not form part of the brief and additional briefs but shall
be included in a special bundle with a cover of a different colour from that of the
covers of the initial and additional briefs. The words "DOCUMENT(S) INTENDED TO
BE PRODUCED” shall be inserted in bold characters on the cover of that special
bundle which shall be duty indexed and paginated.

Civil Procedure- LLB Yr 3 29

DE BENE ESSE
There are many instances where the examination of witnesses or
party is taken down and made before the trial date.

Cases where de Bene Esse examinations are allowed:

• where the witness is now in Mauritius but will not be in Mauritius
on the day of trial.
• where there is a risk that the witness will not be available on the
trial date because of his failing health or because he may not be
alive. Also used if witness suffers from some mental/physical
incapacity.
Civil Procedure- LLB Yr 3 30
• An ex parte application to the Judge in Chambers by way of
Proecipe and affidavit.
• Once the application is granted, the judge fixes a day and hour for
the hearing.
• The order of the judge and a copy of the preocipe and affidavit is
served on all interested parties.
• Deposition taken by Registrar of Supreme Court.
• Parties can cross-examine.
• The result of the examination is filed in the Registry of the
Supreme Court and it has the same value as if given on court

Civil Procedure- LLB Yr 3 31

 IN THE SUPREME COURT OF MAURITIUS

In the matter of

AB
Plaintiff
v/s

CD
Defendant
And in the matter if

Ex parte AB
Applicant

PROECIPE

1. For an order from the Honourable Judge who may be sitting in chambers authorising the De Bene Esse examination of witness YZ who has
material evidence to give in the case of AB V CD fixed for trial on XXX, to be held before the Judge in Chambers on a specified date and time, the
result of such examination to be filed in the Registry of the Supreme Court and have the same value as if given in court, and this for the reasons
set out in the hereto annexed affidavit.

Under all legal reservations

Dated and signed etc.

Civil Procedure- LLB Yr 3 32

 IN THE SUPREME COURT OF MAURITIUS

In the matter of

AB
Plaintiff
v/s

CD
Defendant
And in the matter if

Ex parte AB
Applicant

I, PQ, attorney-at-law of Jules Koenig Street Port-Louis,

MAKE OATH AND SAY THAT

1. I am the attorney of the Plaintiff in the matter which is an action entered by AB against CD by way of plaint with summons and the trial date has
been fixed for XXX (SCR No......) and I am authorised to swear this affidavit on behalf of the above applicant.

2. Mr YZ has material evidence to give on behalf of the applicant. He is now in Mauritius, but will not be in Mauritius on the trial date as he is leaving for
England on the xxxx.

3. In the circumstances, it is urgent and necessary that his examination be taken de Bene Esse by a judge (or in front of a judge in chambers) and the
result of the same examination be filed in the Registry of the Supreme Court and have the same effect as if given in court.

4. The Applicant prays accordingly.

Drawn up be me etc.

Civil Procedure- LLB Yr 3 33

 QUESTIONS????

Civil Procedure- LLB Yr 3 34