MAHE P L J & ORS (Applicants) v MAYER A & ORS (Respondents)
2017 SCJ 421
This is an application praying that the respondents be found in contempt of an order in the nature of an interim injunction granted on the 26 of July 2013 by Lam Shang Leen J.
The respondents have raised a preliminary objection that the person, Ms. Shenaz Bibi Rughoonauth, who has solemnly affirmed the initial affidavit dated 26 August 2013, had at the material time, no authority to do so.
The respondents’ preliminary objection, has as grounds the following:
- The authorization to represent applicant no.2 was not deposited with a notary pursuant to section 3 of the deposit of powers of Attorney Act 1928.
- The authorization to represent applicant no.2 does not have retrospective effect.
The respondents contend that as a result, the application cannot be entertained as the applicants were not properly represented at the time the application was made.
Now, sections 2 and 3 of the Deposit of Powers of Attorney act 1928 (“the Act”) are relevant and are as follows:
2. Deposit of power of attorney
(1) Where any person who has left or leaves Mauritius has appointed or appoints an attorney or agent in Mauritius to represent him in any capacity in any proceedings before a court, by an authentic deed, or by a deed under private signatures, the notary who has drawn up such deed or who received or receives the deposit of such power of attorney, or the holder of any such power of attorney under private signatures, where it has not been deposited with a notary, shall within 15 days from the date of such power of attorney or of the date of the deposit thereof with the notary file in the Registry, where the same may be inspected on payment of the fee provided in the Legal Fees and Costs Rules 1990, an extract from such power of attorney relative to such powers of agency and to the names of such agents.
(2) no party to any proceedings before a court shall pretend ignorance of any such power of attorney so deposited in the Registry.
3. foreign deed of appointment
Where the power of attorney, whether authentic or under private signatures, appointing an attorney or agent has been or is drawn up outside Mauritius, the attorney or agent appointed shall deposit the same with a notary in Mauritius before any use is made of it and section 2 shall apply to it.
For representation in court proceedings, there should be written mandate and not a verbal one, especially when the person is away from Mauritius. Indeed section 3 of the act provides for a power of attorney (whether authentic or under private signatures) to be deposited with a notary in Mauritius “before any use is made of it”.
The case of Group Five International Ltd/STRABAG International GmbH Consortium v Independent Review Panel & Ors [2014 SCJ 1] can be referred to as it is pertinent to the facts and issues under consideration to answer the question: whether the affidavit of Mr Mahe of 07 October 2013 “cure” the omission and have a retrospective effect?
This question was considered in Group Five case by the appellate court and it concluded in the negative. The salient parts at page 7 of the judgment are reproduced:
The power of attorney is a contract which can only take effect as from the day it is given. It is only as from the time that the mandat is given that the designated mandataire has the authority to step in and represent the mandataire.
A power of attorney cannot have a retrospective effect. The “mandate” must already have been given to the “mandataire” prior to the latter taking any iniative on behalf of the “mandant”.
It cannot be given ex post facto by a mandataire to his purported representative after the latter has already undertaken certain steps allegedly on behalf of the mandant, in order to validate such acts.
There are several cases whereby it has been decided by our courts that failure to comply with the Act is fatal and that applications cannot be entertained if there is not the proper authority and which has not been duly deposited in compliance with the Act.
Attorney for Mayer A ( Respondents) : Mrs Anju.K.Ghose