The Full Bench of the Supreme Court has delivered a judgment on how companies should be
represented before courts in Mauritius.
The case involved is a motion by the applicants to challenge an order given by the Judge in Chambers. On the eve of the set date for the hearing, the respondent objected to the effect the applicants had failed to show that their representatives in court had been properly mandated.
The applicants applied for the objection to be heard by the full bench of the Supreme Court, and immediately filed affidavits, with accompanying board resolutions, showing that:
- the applicants' directors were fully aware of the challenge initiated in the name of the companies, and of the contents of affidavits filed by their deponents;
- the directors had mandated their relevant deponents to initiate the challenge;
- the deponents were fully mandated to take all action as they may be advised as regards the said challenge; and
- in any event, all the acts and doings of the deponents were ratified by the board of the applicants.
The main takeaways from the judgment are as follows:
- the full bench made an express finding that judgments that had relied on the Deposit of Powers of Attorney Act, 1928 (the "Act") to decide on issues of representation of a Mauritian company have been incorrectly decided, as the Act has absolutely no bearing when a Mauritian company initiates proceedings before the courts;
- similarly, judgments having relied on Article 421 of the Code de Procédure civile are incorrect, as this article had been repealed by operation of the Revision of Laws Act;
- the issue of representation of a company in court is one that arises under the laws of agency, subject however to the provisions of the Companies Act, 2001, as amended;
- a company's board of directors may delegate any person to initiate court proceedings on behalf of the company;
- the court will expect a board resolution appointing a particular person to represent the company, as the onus lies on the company to show that its representative has been duly mandated; and
- such board resolution may come after the initiation of court proceedings and may ratify all the acts and doings of any representative having initiated the court proceedings.
This is welcome news. Previous decisions which stated that a Mauritian company must always pass a board resolution to appoint a representative before starting proceedings, have been officially reversed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.