Brassel and Anor v The Estate of the late Philip Brassel (CS 18 of 2022) [2023] SCSC 765 (16 October 2023)

PILLAY J:

1. This ruling follows an application from the Defendant pursuant to section 13 of the Courts Act.
2. Section 13 of the Courts Act provides as follows:

1. A Judge may in his discretion, irrespectively of any appeal and whether a case may be appealable or not reserve any question of law decided by him in the course of any civil cause or matter for the ruling of the Court of Appeal. The question so reserved shall be stated in the form of a case prepared and signed by the judge himself, and such, case shall be transmitted to the said court.

2. A case reserved and stated shall not operate as a stay of execution or of proceedings unless the Supreme Court or the Court of Appeal so orders and subject to such terms as it may impose. No intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.

3. The process by which a Judge exercises such discretion is amply explained in the case of Ex Parte Parcou (1935-1955) SLR no. 28 page 151 as follows:

…the draftsman provides a section which enables the matter to be taken up to a Court of Appeal, not as of right, or at the instance of an aggrieved party, but at the instance and sole discretion of the Judge himself who made the order which in the special circumstances of any case he may deem it desirable that the matter should go before a higher tribunal. Such a provision is referred to by some draftsmen as “cases reserved”, and others as the “stating of a case”.

It is that the Judge and the Judge alone, may use his discretion in deciding whether or not a case should be stated, and that the very idea of stating a case should originate in his own mind and not at the suggestion, request or petition of any other person.

[t]his power may be exercised by the Judge even where no appeal which existed as of right has been availed of by an aggrieved party. The essence of the article lies in the words “in his discretion”. These words mean that the Judge must use his discretion, in other words he must be discreet. How else can he be discreet unless he finds in his own mind that there exists some reasonable ground that his order or conclusion is not unlikely to be incorrect, and that such ground is of sufficient importance to state a case for the ruling of the Supreme Court of Mauritius.

The principle that should guide the judge in the exercise of his discretion is that the Article is intended to provide for a case where he is of the opinion that a question of law on which he has made an order is such that there is a likelihood of its being erroneous for good grounds, and that for the purpose of settling any doubt in his mind he is given the privilege of approaching the Supreme Court of Mauritius with a case stated on which he seeks guidance.

[t]hus … a “case stated” is a totally different proceeding from an “appeal” strictly so called.

4. Clearly section 13 above is a pathway for the benefit of the Judge to settle any doubt that he may have in his mind; if he finds that there are good grounds to believe that he was wrong on a point of law by way of seeking guidance from the Court of Appeal. It is a process quite apart from the appeals process which the parties may avail themselves of.
5. Indeed, I have on a previous occasion stated a case for the guidance of the Court of Appeal, in the case of Brutus and Ors v Brutus (MA287/2018 arising in CS96/2017) [2019] on the application of counsel, who incidentally is Learned counsel for the Plaintiff in the present case. On the basis of Ex Parte Parcou above I was wrong to have granted the application as it was not for counsel to make the application but for me to come to the conclusion that I needed to exercise the discretion. On the proceedings though it was justified for me to state a case to the Court of Appeal in Brutus as there was an element of doubt in my mind as to the correctness of the procedural law I applied.
6. With that said I have no doubt in my mind as to the correctness of the decision that I gave on the plea in limine in the current matter. That is not to say that I was not wrong but that I don’t believe that I was which could have caused me to avail myself of the procedure laid down in section 13 above; learned counsels submitted on the pleas raised, I considered their submissions, did some further research, informed counsels of the research I had done and requested their input and considered their further submissions before giving a decision.
7. Should counsel for the Defendant be of the view that the decision this Court gave was wrong, Counsel has the option to seek redress before the Court of Appeal by way of the appeals process.
8. On the basis of the above, the motion for the Court to formulate a question to be stated to the Court of Appeal is refused.

Signed, dated and delivered at Ile du Port on 16 October 2023

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Pillay J