In the case of Acharyadeo Gunoory (as plaintiff) v. the State of Mauritius & the Commissioner of Police (as Defendants) 2015 SCJ 388 issued on 28 October 2015, Judge H Abdoula commented upon the test for vicarious liability of the State of Mauritius.
The basis of the case of A. Gunoory was that he suffered prejudice as a result of the acts and doings of the police officers posted at Grand Bay Police Station. Therefore, he sued the State of Mauritius together with the Commissioner of Police for damages in the sum of Rs 2 million.
The defendants addressed the case of A. Gunoory by raising a ‘plea in limine litis’ in their defence. A plea in limine litis is an objection in any point of law which needs to be addressed at the outset of a trial. Examples of such objections are : that the court has no jurisdiction in a particular matter, that the prescribed delay to bring a case was not observed, or even essentially preliminary steps have not been complied with.
In the present matter, the State and the Commissioner applied to have the action of A. Gunoory dismissed on the legal basis that (a) the statement of case (known as Plaint in the legal jargon) of A. Gunoory did not disclose any cause of action, and (b) the Commissioner of Police is not the employer of the police officers concerned – he, therefore, cannot be sued as ‘commettant’ for their acts and doings.
A ‘commettant’ can be understood to be a person who has under his wing some ‘préposés’ (employee or agents) to whom he gives instructions and orders.
By way of background, the State of Mauritius can only be liable in tort for the acts of its ‘préposés’ by virtue of the State Proceedings Act and the State can be sued for damages for the ‘faute’ committed by its ‘préposés’ by virtue of Article 1384 of the Civil Code.
His Lordship Judge H. Abdoula stated that “the State, which is a corporate entity (Shiven Coothen v The Ministry of Housing and Lands & Ors [2007 SCJ 125]), can only act through agents or servants and, therefore, can only be sued in their capacity as ‘commettant’ for the acts, doings and omissions of the agents or servants pursuant to article 1384 of the Civil Code”.
His Lordship explained the necessity for a statement of case to show the agency liaison (lien de preposition) between a ‘commettant’ and ‘préposés’. In his words, “the wordings of the pleadings must sufficiently convey the meaning that the defendant was in fact responsible and answerable as ‘commettant’ for the tort committed by or through his or its ‘préposés’.”
To the extent that the pleadings of A. Gunoory failed to establish the ‘lien de preposition’, it was held that there was no cause of action against the State of Mauritius.
As regards the second objection raised – the Commissioner of Police not being the employer of the police officers concerned -, reference was made to the case of M.Jhumka v The Commissioner of Police [2001 SCJ 2001] where it was ruled that while the police force is under the command of the Commissioner, this does not make him its employer who is, in fact, the State of Mauritius. The Commissioner of Police is not therefore the ‘commettant’ of the police officers.
The action lodged by A. Gunoory was therefore dismissed on the basis of the objections in law without even stepping into the merits of the matter.
- Published in print edition on 6 November 2015
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