Three appeals against Emtel Ltd has been successful yesterday. The Supreme Court, Appeal Division has quashed the initial verdict of Emtel Ltd against Mauritius Telecom, Cellplus and ICTA.
Emtel had sued and won against the 3 appellants and the Ministry of Telecommunications claiming damages for prejudice suffered as a result of their tortious acts and omissions.
The trial took place in May and June 2016. In a judgment delivered on 9 August 2017, the trial court found the appellants liable and ordered them to pay jointly and in solido to Emtel 3 the sum of Rs 554,139,900 with interests and costs.
But on appeal, it has been another story. The fact that Emtel sued the then Telecommunication Authority (TA) in 2016 is key to its defeat, According to the Chief Justice, Asraf Caunhye, the civil claim in tort, as couched, could not be entertained against ICTA since, for the given reasons, no such action could, ab initio, lie against TA. The TA was not a body corporate nor did it have the attributes required of a “personnalité juridique” which could be sued in respect of a civil claim in tort. Any claim in tort in respect of the acts or omissions of TA at the material time could only have been entered pursuant to the State Proceedings Act, by virtue of which the State could be sued and be held tortiously liable for the ‘faute’, if any, of its “préposés” and/or agents. The TA was not incorporated as a ‘statutory corporation’ and was not, in the 1988 Act endowed with a legal personality which could make it answerable as a party in its own right to a civil action in tort.
