|
|
Mauritius: Get The Name Right!
 |
 |
|||||||||
|
||||||||||
|
|
|||||||||
|
||||||||||
L'Express (Port Louis)
24 April 2008
Posted to the web 24 April 2008
Deepa Bhookhun
Port Louis
What is the difference between "New Mauritius Hotel Co. Ltd" and "New Mauritius Hotels Ltd"? A whole lot, as Jugdish Moholu, a former employee of Le Mauricia Hotel, and his lawyers discovered at the plaintiff's expense.
The plaintiff was an employee of Le Mauricia Hotel, once owned by New Mauritius Hotels Ltd.
Magistrate Fekna ruled that the difference was so fundamental that the case had to be dismissed without further ado. A former employee of Le Mauricia Hotel, owned by the company New Mauritius Hotels Ltd (formerly Beachcomber) sued his former employer for unfair dismissal, claiming a sum of Rs 3.8 millions.
Unfortunately for Moholu, his lawyers wrote "New Mauritius Hotel Co.Ltd" instead of "New Mauritius Hotels Ltd". When the defendants' lawyers raised the point that "New Mauritius Hotel Co. Ltd" did not exist and the plaintiff's lawyer asked to be allowed to amend the heading of the proecipe, so that the name of the defendants be read as "New Mauritius Hotels Ltd" instead, the magistrate rejected the plea, stating that allowing such an amendment would be tantamount to substitute an "imaginary defendant" against a real one.
Magistrate Fekna says he is well aware that, despite the difference in names, Jugdish Moholu meant New Mauritius Hotels Ltd, owners of Le Mauricia Hotel, former employer of the plaintiff. He knows this because New Mauritius' Hotels' lawyers have admitted being the employer of Jugdish Moholu. Still the amendment wasn't allowed.
Magistrate Fekna based his ruling on the judgment on appeal in a 1981 case where the plaintiff entered a case against a defendant styled as "Pelle Estate, as represented by his Manager, Mr Bissoon Jhundoo". It turned out that "Pelle Estate" did not exist and there was a motion to amend the heading by deleting the words "Pelle Estate, as represented by his Manager" so that the name of the defendant would simply read as "Bissoon Jhundoo". The magistrate allowed the amendment and the matter was considered on appeal.
Chief Justice Rault was of the opinion that "the rule" - regarding amendments to be allowed - "does not seem to envisage the substitution of a real defendant for an imaginary defendant"; CJ Rault said that "if then, when an action is brought against a dead man, it is a complete nullity, it follows by analogy that when an action is brought against a non-existent body, it is equally null and void and the defect cannot be cured by substituting a real person for the imaginary defendant. The rule gives the power to substitute when there is a real action brought against a real defendant. It does not give the power to create a defendant for the first time in a void action brought against a non-existent person."
Is the action of Jugdish Moholu then "a void action"? The magistrate doesn't elaborate but adds however that the "proposed amendment causes no prejudice to the parties" as the defendants had already accepted and acknowledged the fact that they were the employees of the plaintiff.
What then is the problem? The problem lies in the fact that in the Jhundoo case (in 1981 cited above), the situation is comparable because Mr Jhundoo admitted that he was the employer of the plaintiff in that particular case. Yet, on appeal, the reasoning didn't stand. As it doesn't today.
Unfair dismissal or not?
|
But Magistrate Fekna goes further and considers the hypothetic effect of the amendment. As per the proecipe, the defendant is styled as "New Mauritius Hotel Co. Ltd". The proposed amendment is to strike out the word "Co." so that the heading would read "New Mauritius Hotel Ltd." The magistrate says that for the real company to be put into cause, a second amendment would have had to be made, namely by adding an "S" to the word "hotel" so that it would have read "Hotels" in its amended form.
"Thus, even if the amendment prayed for is granted, it appears that it would only substitute one imaginary defendant (New Mauritius Hotel Co. Ltd) by another imaginary defendant (New Mauritius Hotel Ltd) and would not put the real company represented by Mr Hein into cause at all (i.e New Mauritius Hotels Ltd)", writes the magistrate in his ruling.
The case was thus not heard on its merits and Jugdish Moholu, unless he appeals against the judgment or enters a new case, will never know whether by law, he was unfairly dismissed or not and whether his former employers were right to treat him the way they did
| |||||||||||||||||||||||||||||
| |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
| Copyright © 2008 L'Express. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections -- or for permission to republish or make other authorized use of this material, click here. | |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
| Make allAfrica.com your home page | RSS Feed | |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
| Top | Site Guide | Who We Are | Advertising | Search | Subscribe | |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
| Questions or Comments? Contact us. Read our Privacy Statement. | |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||
