BHADAIN S.

v INDEPENDENT COMMISSION AGAINST CORRUPTION

2004 SCJ 33

2004 MR 11

Record No. 83746

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Sudarshan Bhadain
Applicant
v.

Independent Commission Against Corruption

Respondent
In the presence of:
1. The Honourable Prime Minister
2. The Corruption Advisory Committee
Co-Respondents
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JUDGMENT

On 22 December 2003 the applicant moved this Court for an order granting him

leave to apply for a judicial review of the decision and decision making process of the

respondent, his employer, interdicting him from the post of Director of its Corruption

Investigation Division. The matter was postponed to 12 January 2004 for the

respondent and the co-respondents to take their stand.

On that date learned Counsel for the applicant stated that, following the

interdiction, his client had in the meantime been dismissed so that he would be moving

for an amendment of the application in respect of both the decisions to interdict and to

dismiss the applicant.

On 26 January 2004 learned Counsel for the respondent objected to the

proposed amendment. The objection was made on the ground that “a fresh application
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should be made with regard to the dismissal instead of making an amendment to the

original notice of motion.” Learned Counsel who appeared for the two co-respondents

stated, on the other hand, that they were abiding by the decision of the Court.

In his written submissions, and indeed in his address before us, Mr T. Gujadhur,

learned Counsel for the respondent has presented the objection under the following two

limbs:

(1) It was said that the applicant could not amend his Notice of Motion

or his Motion Paper by introducing a cause of action (i.e. judicial

review of his dismissal) which did not exist at the date the original

Motion Paper was lodged;

(2) It was also claimed that the intervening event (i.e. the dismissal of

the applicant) had rendered futile and academic the applicant’s

original application relating to his interdiction; that it was an abuse

of process to seek to amend the application instead of having the

application struck out and a fresh application lodged in relation to

the only live issue which was the dismissal.

Learned Counsel cited a number of English authorities in support of the first limb.

It is important to gauge the submissions of learned Counsel in the light of those

authorities which were claimed to be persuasive authorities which this Court ought to

follow.

First, it was submitted that Rule 17 of our Supreme Court Rules 2000 appears to

have been inspired by Order 20 Rule 8(1) of the English Supreme Court Rules. A

comparison of those two rules, or of the English rule with the earlier rule 35 of our Rules
 3
of the Supreme Court 1903, no doubt leads to that conclusion. Under rule 17(1) of our

Supreme Court Rules 2000, the Master or, indeed, the Court may grant an amendment

of any pleadings “in such manner and on such terms as may be just and reasonable, for

the purpose of determining the real question in controversy between the parties.”

Second, it was submitted that on the authority of Harel & Anor v. Société Jean

Claude Harel and Cie and Ors and Société du Patrimoine [1993 MR 251], “any

amendment allowed by the Court dates back in general to the time of the original issue

of the claim and the action continues as though the amendment had been made “ab

initio’.” (emphasis added). Harel itself identifies the source of the legal fiction of

retroactivity in the English case of Warner v. Sampson [1959 1 QB 297]. Harel’s

principle of retroactivity of amendments was cited with approval in Mutty v. Bhugbuth

[1996 SCJ 93] and Dwarka Sooredoo Associates v. The Municipality of Beau

Bassin-Rose Hill [2002 SCJ 168].

Third, the same principle in Harel was said to be also enunciated in the Supreme

Court Practice 1993 Vol. 1 at page 370, paragraph 20/5-8/2 viz:

“Effect of amendment. An amendment duly made, with

or without leave, takes effect, not from the date when the
amendment is made, but from the date of the original
document which it amends; and this rule applies to every
successive amendment of whatever nature and at
whatever stage the amendment is made. Thus, when an
amendment is made to the writ, the amendment dates
back to the date of the original issue of the writ and the
action continues as though the amendment had been
inserted from the beginning.”

But, as we have already seen, the “principle in Harel” was itself based on English

authorities.
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Fourth, Eshelby v. Federated European Bank Ltd [1932 1KB 254] held that

“the rule as to the effect of an amendment [i.e. retroactivity] is the reason why a plaintiff

may not amend his writ by adding a cause of action which has accrued to him since the

issue of the writ.” In that case the plaintiff issued his writ claiming payment of one

instalment of money under a particular contract. After the issue of the writ, the

defendant defaulted in paying a further instalment under the same contract. The plaintiff

sought leave to amend his pleading to claim in the same action the second instalment

also. It was held that he could not do so. The non-payment of the second instalment

was a separate cause of action which did not exist at the time when the writ was issued

and would therefore have to be claimed, if at all, in a separate action.

It is mainly on the authority of Eshelby (supra) that learned Counsel for the

respondent is submitting that an amendment which seeks to introduce a cause of action

not existing at the date of the initial pleadings should not be allowed. We have duly

considered that old decision relating to a breach of contract and the decision in Halliard

Property Co Ltd v. Jack Segal Ltd [1978 1 WLR 377] which was cited to us, as well

as the Harel case, and have not been persuaded that whatever limited principle is

contained in those decisions should apply to our case. We say so for the following

reasons:

(1) the overriding principle with regard to amendments which is

contained in Order 20, Rule 8 in England is that, generally

speaking, all amendments will be allowed at any stage of the

proceedings on such terms as to costs or otherwise as the Court

thinks just. This is explained in the Supreme Court Practice (vide

Order 20). This principle is said to be subject to the countervailing

rule of practice that an amendment will be refused or disallowed

when, if it were made, it would result in prejudice or injury which

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cannot be properly compensated for by costs. Accordingly, as a

general rule, either party is allowed to make any amendment in his

own pleadings or other proceedings which is reasonably

necessary for the due presentation of his case provided that there

has been no undue delay on his part and the amendment will not

injure or prejudicially affect any vested rights of his opponent. But

if the application is made mala fide, or if the proposed

amendment will cause undue delay, or will in any other way

unfairly prejudice the other party, or is irrelevant or useless or

would raise merely a technical point, leave to amend will be

refused. As was said in the case of Cobbold v. London

Borough of Greenwich, a decision of the Court of Appeal dated

9 August 1999, cited at paragraph 17.3.5 of the White Book

(2001):-

“The overriding objective is that the court

should deal with cases justly. That
includes, so far as practicable, ensuring that
each case is dealt with not only
expeditiously but also fairly. Amendments
in general ought to be allowed so that the
real dispute between the parties can be
adjudicated upon provided that any
prejudice to the other party or parties
caused by the amendment can be
compensated for in costs, and the public
interest in the efficient administration of
justice is not significantly harmed.”

(2) the “principle in Harel” of retroactivity of any amendment which is

granted to the time of the original issue of the claim is itself

qualified to apply “in general” and not as a matter of principle.

Retroactivity according to Harel therefore applies in principle but

not as a matter of principle and is therefore subject to exceptions;

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(3) Eshelby was itself distinguished in The Fairport [1966 2 AER

1026] where it was held that “the rule that claims in an action

could be made only in respect of causes of action that had

accrued at the commencement of the action was a rule of practice

rather than a rule of law, and was subject to exceptions; it was

well established that claims for viaticum [travelling money]

covering expenses incurred after the date of the writ, could be

made in actions in rem against a ship by seamen and the same

should apply to claims for wages.”

(4) pursuant to Order 20, rule 5(5) an amendment may be allowed

notwithstanding that the effect of the amendment will be to add or

substitute a new cause of action if the new cause of action arises

out of the same facts or substantially the same facts as a cause of

action in respect of which relief has already been claimed in the

action by the party applying for leave to make the amendment.

(emphasis added). It is a fact that the amendment contemplated

under Order 20, rule 5(5) is said to be in relation to an amendment

under Order 20, rule 5(2) i.e. where an application to amend is

made after any period of limitation has expired, but a fortiori it

should also apply where there is no problem of limitation period;

(5) one strong reason in allowing an amendment is the need to see to

it that Court business is conducted with the utmost efficiency. In

Dwarka Sooredoo Associates (supra), a passage from Lord

Griffith’s judgment in Ketteman v. Hansel Properties Ltd [1987

AC 189] is very appropriately cited:

“Whether an amendment should be granted is a matter for the

discretion of the trial judge and he should be guided in the

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exercise of the discretion by his assessment of where justice lies.

Many and diverse factors will bear upon the exercise of this

discretion. I do not think it possible to enumerate them all or wise

to attempt to do so. But justice cannot always be measured in

terms of money and in my view a judge is entitled to weigh in the

balance the strain the litigation imposes on litigants, particularly if

they are personal litigants rather than business corporations, the

anxieties occasioned by facing new issues, the raising of false

hopes, and the legitimate expectation that the trial would

determine the issue one way or the other. Furthermore to allow

an amendment before a trial begins is quite different from allowing

it at the end of the trial to give an apparently unsuccessful

defendant an opportunity to renew the fight on an entirely different

defence.

Another factor that a judge must weigh in the balance is the

pressure on the courts caused by the great increase in litigation

and the consequent necessity that, in the interests of the whole

community, legal business should be conducted efficiently. We

can no longer afford to show the same indulgence towards the

negligent conduct of litigation as was perhaps possible in more

leisured age.”

(6) Finally, there are local decisions of our own Supreme Court which

have, as they must, high persuasive authority. In Tive Hive & Ors

v. Kam Tim [1953 MR 80], the applicants wanted to amend a

statement of claim. One of the grounds of objection taken by the

respondent to the proposed amendment was to the effect that the

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amendment would introduce an entirely new case. Osman J.

stated the rule to be as follows:

“The Court will not refuse to allow an amendment simply because

it introduces a new case, but it will do so where the amendment

would change the action into one of a substantially different

character which would more conveniently be the subject of a new

action.” (0.28, r. 1, rubric “New Case”.) In Bronsema v.

Mascareigne Shipping & Trading Co Ltd [1985 MR 79] the

defendant had objected to the amendment of a statement of claim

at an initial stage in the trial on the ground that it introduced a new

cause of action. The Court cited the passage in Tive Hive

(supra) and granted the proposed amendment which it felt was

necessary to enable justice to be done and to avoid a multiplicity

of proceedings between the parties.

For all the above reasons we are of the view that there is no legal or procedural

impediment as regards the first limb of the objection to have the application amended by

extending the prayer for judicial review to cover the respondent’s decision to dismiss the

applicant.

We now turn to the second limb of the respondent’s objection to the effect that

the intervening event viz. the applicant’s dismissal has rendered futile and academic the

applicant’s original application relating to his interdiction so that the Court should abstain

from hearing a matter which has no longer any relevance. We were referred to Planche

v. The PSC & Anor [1993 SCJ 128] in which the applicant had sought leave for a

judicial review of an alleged decision of the two respondents to nominate the co-

respondent to follow a course of training in France. By the time the motion was made
 9
the co-respondent had already left for France. Also, the co-respondent had already

returned to Mauritius by the time the application for leave was heard. It was in those

circumstances that the Court very appropriately cited the dictum of Lord Justice Clerk

Thomson in McNaughton v. McNaughton’s Trs [1953 SC 387] at 392:

“Our courts have consistently acted on the view that it is

their function in the ordinary run of contentious litigation to
decide only live, practical questions, and that they have no
concern with hypothetical, premature or academic
questions, nor do they exist to advise litigants as to the
policy which they should adopt in the ordering of their
affairs. The courts are neither a debating club nor an
advisory bureau.”

We were also referred to Sinatambou v. The Council of Legal Education & 16

Ors [1997 MR 173], a decision with which we are less at ease. In that case the

applicant sat for the Vocational Examinations for Notaries in October 1995. He scored

“A’s” in 4 of the five papers but was required to re-sit Paper III. He made

representations to the respondent as he considered that he had passed that paper. He

was informed by respondent that the Board of Examiners after scrutinizing his scripts,

had found no cause to vary the assessment. He then sought leave to apply for:

“(1) An order directing the Council of Legal Education

and/or the Board of Examiners to bring up for a judicial
review (a) the script of the applicant in Paper III as well as
all the other scripts relating to Paper III at the Vocational
Examination for Notaries held in the year 1995.

(2) A declaration that the applicant has passed Paper III of

the said Examination.

(3) A declaration that the applicant has passed the

Notaries Vocational Examination.”

The learned Judges found that the impeached decision was not reviewable and

that the applicant had failed to act promptly. With regard to the second and third

prayers, they also held on the authority of Planche (supra) that since the applicant had

already passed fresh Notaries Examinations in December 1996 they did not see what
 10
purpose such an application would in the circumstances serve. We express

reservations on the applicability of the principle in Planche to the facts in Sinatambou.

In Sinatambou, the subsequent success of the applicant at the examinations in 1996

had no connection with the declaratory judgment that was being sought in respect of the

applicant’s performance at the Notaries Examinations in 1995. With great respect to the

Bench which decided Sinatambou we are of the opinion that that later event could

hardly be invoked as a justification by the Court not to pronounce itself on a justiciable

issue which had been raised by the applicant for a declaratory order.

On the facts ushered before us, we cannot share the view of learned Counsel for

the respondent that the “intervening event” viz. the dismissal, has rendered academic

the application for leave to review the earlier decision of the respondent to suspend the

applicant. The reasons put forward by the respondent for interdicting the applicant are

threefold and are borne out in a letter addressed to the applicant dated 3 December

2003, viz.

“(a) you are bringing the Commission into disrepute:

(b) your presence at this office is prejudicing the smooth
running of the Commission;
(c) your conduct is against the interest of the Commission.”

Different reasons were relied upon by the respondent to terminate the appellant’s

employment viz. after considering the applicant’s performance and aptitude to work

within respondent organization he had been found not to be a suitable person for the

post to which he had been appointed on a 3 year contract which was allegedly subject to

an initial probationary period of one year. It is understood that the probationary period is

being questioned by the applicant and is a live issue.

It stands to reason that, should respondent’s objection be acceded to and a fresh

application solely for a review of the dismissal were to be considered by the Court at this
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stage, any eventual determination of that issue in applicant’s favour may still require the

latter to have to run the gauntlet a second time to disculpate himself on the three

different grounds put forward by the respondent to interdict him.

The mere fact that the grounds relied upon by the respondent to interdict

applicant are different from those put forward to dismiss him is sufficient reason for

saying that the dismissal cannot have rendered the interdiction irrelevant. At any rate,

having two judicial review cases, one in respect of the interdiction for certain specified

reasons and the other in respect of the dismissal for other reasons, is not consistent with

efficient or economical conduct of Court business.

We are of the view that the motion to amend the application which was duly

served on the respondent and the co-respondents ought to be granted so that all the

questions in controversy between the parties be mooted once and for all. We find that it

is just and reasonable that the intervening issue of dismissal be canvassed together with

that of the interdiction by allowing the amendment, the more so since the respondent

has not claimed that it would suffer any prejudice as a result.

We order accordingly. Respondent will bear the costs occasioned by his

objection to the motion to amend the application.

Y.K.J. Yeung Sik Yuen

Senior Puisne Judge

B. Domah
Judge
13 February, 2004
Judgment delivered by Hon. Y.K.J. Yeung Sik Yuen, Senior Puisne Judge
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For Applicant : Mr Attorney B. Sewraj
Mr Y. Mohamed, Senior Counsel
For Respondent : Mr P. Balmanno, Senior Attorney
Mr T. Gujadhur, together with
Mr R. Ramphul, both of Counsel
For Co-Respondents No. 1 and No. 2: State Attorney
State Counsel

[#Delivered by: Hon. Y.K.J. Yeung Sik Yuen, Senior Puisne Judge and Hon. B.
Domah, Judge#]

[#Delivered on: 13 January 2004#]