GOPAL S v CAULLYCHURN A

2019 SCJ 263

Record No.: 6963
IN THE SUPREME COURT OF MAURITIUS
In the matter of:-
Sunil Gopal
Appellant
v
Anita Caullychurn
Respondent
And in the presence of:
The District Council of Pamplemousses
Co-Respondent
JUDGMENT

The respondent (then plaintiff) lodged an action against the appellant before the Intermediate
Court, praying for judgment to prevent the appellant “from causing any interference in any
manner whatsoever in the Rajiv Gandhi lane for the installation of electric poles by the Central
Electricity Board to supply electricity to the consumers residing at Rajiv Gandhi Lane, Arsenal”,
and from causing harassment in any manner whatsoever to the respondent, and condemning
the appellant to pay Rs 300, 000 as damages. The respondent additionally sought an order for
the co-respondent to authorise the Central Electricity Board (CEB) to proceed with the
installation of electric poles to provide electricity supply at her residence.

The respondent was the owner of a portion of land at Arsenal which she averred was bound on
one side by a common road of 3. 05 metres wide and which had always been used by
neighbours. The appellant had allegedly denied her access to the exit road and deprived her
from proper electricity supply as he had raised unfounded objections to the installation of
electric poles by the CEB. The respondent claimed that these wrongful acts and doings
amounted to “faute” and had prayed for damages and the abovementioned orders in the Court
below. The appellant’s defence was that all the parties had not been put into cause. He also
denied that the common road was used as a right of way.

In a judgment dated the 25th April 2018, the learned Magistrate of the Intermediate Court found
that the respondent (plaintiff) had “proved its case on a balance of probabilities” and ordered the
appellant not to interfere with the respondent’s right of access.
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She condemned him to pay Rs 100, 000 as damages for prejudice suffered, although she found
that “the plaintiff was not asked as to how she quantified her prejudice and damages”. The
learned Magistrate further ordered the co-respondent Council to assist the respondent if she
was not connected to electricity supply, in spite of her observation in the judgment that “no
evidence has been adduced as to why there is no electric poles and whether the plaintiff has no
electricity at her place. [sic]”

This is an appeal against the judgment on grounds which mainly challenge the learned
Magistrate’s appreciation of the evidence adduced before her. The respondent resists the
appeal. We need not reproduce all the grounds for purposes of this appeal, save for grounds 5
[C], 6 and 9 which read as follows:

“ 5. The Learned Magistrate allowed herself to be influenced by extraneous matters and irrelevant
considerations and erred when she granted a right of access to the Respondent (then Plaintiff)
over the alleged common road when:
…
C] “Ex facie” the pleadings, the Respondent did not even pray for a “right of access” to
the alleged common road.

6. The Learned Magistrate acted “ultra petita” when she “ordered the defendant not interfere with
plaintiff’s right of access on the said untarred road/lane”, since the prayer sought by the
Respondent in the Proecipe speaks of the “Rajiv Gandhi Lane” which, as has come out in
evidence, is situated at a different location to the one of the property in lite, the moreso that no
motion for amendment of the prayers sought by the Respondent ever ensued.
…
9. In a case where “ex facie” the record, damages were not insisted upon, the Learned Magistrate
wrongly awarded damages, the moreso that any alleged prejudice caused to the Respondent
(then Plaintiff) was denied by the Appellant (then Defendant).”

A close look at the pleadings shows that the learned Magistrate was side-tracked by counsel
then appearing for the appellant when he emphatically remarked during his cross-examination
of the sworn land surveyor that the plaintiff was “claiming a right of way on the property of the
defendant” and that “the only dispute is the access”. That misconception was upheld by the
learned Magistrate when she in turn observed in her judgment that the “main crux of this case is
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whether there is an access or not and whether the plaintiff has access to same as per her title
deed”.

The case which the respondent had to establish before the trial Court, as can be plainly
gathered from the proecipe, was simply that the appellant was denying the respondent access
to an exit road, thus depriving her from proper electrical supply at her residence since the
appellant had raised unfounded objections to the installation of electric poles by the CEB. The
respondent consequently prayed for the orders which we have already set out in the opening
paragraph of this judgment.

Senior Counsel appearing for the respondent (plaintiff) at first instance moreover explained in
his submissions to the trial Magistrate that the appellant (defendant) was being sued “as a
person who is preventing her from gaining access”. The primary issue was therefore whether
the appellant had impeded the respondent’s access and enjoyment of the road and whether he
had thereby caused interference and harassment to the respondent amounting to “faute”.

We note that when she testified in Court, the respondent never made mention of any of the so-
called “unfounded objections” which the appellant had allegedly raised and that she also
remained silent regarding the difficulties mentioned in her proecipe in relation to obtaining
proper electricity supply at her residence. Furthermore, the appellant had clearly stated in
evidence that the land in lite was accessible to one and all and that the respondent had not
been denied access thereto. The learned Magistrate clearly misapprehended the issues which
required determination and ground 5 [C] must therefore succeed.

Insofar as the location of the exit or common road is concerned, it is significant that the District
Council representative who deposed during the trial stated in no uncertain terms that Rajiv
Gandhi Lane was in fact situated at a different spot from the common road referred to by the
respondent.

The latter’s own land surveyor was doubtful as to whether the road in dispute was in fact “Rajiv
Gandhi Lane” and no attempt was made to amend the plaint, where specific reference had been
made to “Rajiv Gandhi Lane”, in spite of the above evidence adduced in Court. The judgment of
the trial Court indicates not only that the learned Magistrate misapprehended the material issues
but also that, in spite of her faithful recitation of the evidence, she made a finding in respect of
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an “untarred road/lane” which was not referred to in the plaintiff’s prayers, so that her
determination in that respect was ultra petita.

The learned Magistrate further failed to explain why the respondent’s version was preferred over
that of the appellant’s when she concluded that the respondent had established her case,
especially when the appellant had denied throughout his testimony that he had interfered with
the respondent’s use of the road in lite.

Ground 6 is therefore well taken.

There is also substance in ground 9 since the evidence adduced during the trial does not sit
easily with the learned Magistrate’s finding that the respondent had “been successful in her
claim and the Court firmly believes that she indeed suffered some prejudice for the interference
and actions of the defendant. … and thus she indeed suffered some damages and prejudice
and definitely some embarrassment”, especially after Senior Counsel for the respondent had
fairly conceded that his client was not pressing for damages as there was not much evidence on
that aspect of her case.

In the light of our findings, we have no other alternative than to quash the learned Magistrate’s
judgment and remit the case back to her for a proper determination as to whether the “faute”
averred and clearly set out in the pleadings was established, based on all the evidence already
adduced before her.

The costs of the present appeal will be costs in the case before the Intermediate Court.

A. D. Narain
Judge

N. F. Oh San-Bellepeau
Judge
30 September 2019
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Judgment delivered by Hon N. F. Oh San-Bellepeau, Judge.

For Appellant : Mr D Luchmun, Attorney-at-Law

Mr A R Peeroo, Senior Counsel & Mr G Bhanji-Soni of
Counsel

For Respondent : Mr K B Bokhoree, Attorney-at-Law

Mr S Bhuckory, Senior Counsel & Mr K Ragavoodoo of
Counsel

For Co-Respondent : Mrs A Ghose, Attorney-at-Law

Mr S Sauhoboa, of Counsel