MEUNIER P.P.

v THE BEACH AUTHORITY

2016 SCJ 522
SCR: 101780
IN THE SUPREME COURT OF MAURITIUS
In the matter of:Paul Pouzet Meunier

Plaintiff

v/s
The Beach Authority

Defendant

INTERLOCUTORY JUDGMENT
The plaintiff has averred that he is a trader by profession and that he has been
involved since October 1998 in the business of hiring mattresses and umbrellas at
Pereybere Public Beach. The Beach Authority Act 2002 creating the Beach Authority
(henceforth referred to as the Authority) came into operation on the 1st of June 2002. The
powers of the Beach Authority are set out in sections 5 and 6 of the Act.
On the 4th of June 2006, the Authority asked the plaintiff to pay the sum of Rs 2,500
as a fee so that he may be issued with an authorisation to operate his business on the beach
of Pereybere. The plaintiff paid the required fee on the 2nd of August 2006 and was issued
with an authorisation by the Authority.
However, on the 11th of August 2006, the Authority issued the plaintiff with another
letter in which it communicated its decision not to renew the authorisation of the plaintiff with
effect as from the 1st of September 2006. But, the plaintiff learnt that the Authority had issued
a licence to another person to operate a similar business at Pereybere Public Beach.
In the month of November 2006, the plaintiff lodged Judicial Review proceedings
challenging the decision of the Authority. Whilst the proceedings were still pending, the
Authority lodged a preventive action on the 8th of March 2007 seeking an injunction before
the Judge in Chambers to stop the plaintiff from operating his business. On the 9th of March
2007, the learned Judge in Chambers issued an Interim Order of Injunction as applied for by
the Authority at the latters risks and perils.
The application for leave in relation to the Judicial Review case was heard on the 27th
of September 2007. On that day, the court made a comment to the effect that the law, as it

stood, did not allow the Authority to issue authorisations to operate businesses on the beach
on the condition that fees be paid by those proposing to do so. The court further suggested
that the law would have to be amended to give that power to the Authority. Taking those
comments into consideration, the Judicial Review proceedings were withdrawn.
The plaintiff has averred that following the proceedings of the 27th of September, it
was incumbent on the Authority to withdraw the injunction case before the Judge in
Chambers thereby causing the Interim Order issued formerly against him to lapse.
However, the Authority did not do so and on the 23rd of October 2008, the plaintiff caused a
notice mise-en demeure to be served on the Authority requiring it to take the appropriate
measures. But, the Authority did not comply with the notice immediately and the injunction
case was withdrawn only on the 23rd of January 2008.
The plaintiff has, therefore, averred that the acts and doings of the Authority amount
to a faute and he is asking for a judgment ordering and condemning the Authority to pay
damages to him in the sum of Rs 5,000,000.
The defendant has raised a preliminary point in the form of a plea in-limine-litis which
the plaintiff is resisting. The plea in-limine reads as follows:
Defendant moves that the Plaint with Summons be dismissed with costs
inasmuch as the Plaint with Summons discloses no cause of action against it
since Plaintiff has failed to aver bad faith on the part of the Defendant.
Counsel for the defendant made it clear that the plea in-limine-litis is based on
section 17 of the Beach Authority Act 2002 which essentially restricts the liability of the
Authority in relation to actions done by it in good faith. Counsel for the defendant argued
that, in view of the provisions of the above section, it was incumbent on the plaintiff to aver
clearly in his plaint with summons that the Authority had acted in bad faith, otherwise no
liability can attach to the Authority. The failure to do so is fatal in the sense that where bad
faith has not been averred, the plaintiff would be precluded from adducing evidence in
support of that element and the plaint would, therefore, be baseless.
Counsel referred to several authorities on the subject vide Ng Pan Hing K.X. &
Ors v the State of Mauritius [2006 SCJ 305], Metex Trading Co. Ltd v The State of
Mauritius & ors [2014 SCJ 219], The State of Mauritius v D. Sooknah [2001 MR 7] and
Calzatura Ltd v The Director General Mauritius Revenue Authority [2013 SCJ 420].

Suffice it for our purposes to quote the following extract from the case of Cesar L. J. C
v The Mauritius Revenue Authority [2012 SCJ 11] which quite nicely summarises the
position in law on the subject:
There is an additional reason why the defendant should succeed on its plea in
limine litis. Learned Counsel for the defendant has submitted that the failure of
the plaintiff to aver bad faith on the part of the defendant is fatal. He relies on
section 22(1) of the Mauritius Revenue Authority Act (the Act) which provides
that no liability, civil or criminal, shall be incurred by the Authority or any member or
employee in respect of any act done or omitted in the execution in good faith (my
emphasis) of his or its functions or duties under this Act.
In Ng Pan Hing v The State of Mauritius [2006 MR 312], the Court was called
upon to interpret section 32 of the Land Acquisition Act which is similar to the
above section 22(1). The Court held as follows:.....the plaintiff does not only have to prove that the authorised officer
acted in bad faith but he also has to aver bad faith and particulars showing
the mental element of dishonesty relied upon by him so that the defence
may know what case it has to meet. This is in line with the basic legal
principle that what must be proved must be averred. The objection raised
by the defendant to the plaintiffs adducing evidence of bad faith, which
has not been pleaded is, accordingly, sustained.
Again, a thorough perusal of the plaint shows that nowhere had the plaintiff
averred that the defendant acted in bad faith so that the latter is entitled to rely
on the immunity enjoyed by it under section 22(1) of the Act. In the absence of
any such averment of bad faith on the part of the defendant, it is clear that the
end result would be that the plaintiff will be barred from adducing any evidence
to that effect and will, therefore, be unable to circumvent the immunity enjoyed
by the defendant under section 22(1) of the Act.
For the above reasons, I am of the view that the preliminary point raised by the
defendant is well taken.
Relying on the above, counsel for the defendant submitted that the present action is fatally
flawed ex-facie the plaint with summons and should be set aside straightaway.

Counsel for the plaintiff, for his part, argued that a distinction must be drawn between
bad faith and a lack of good faith. According to him, section 17 of the Act does not require
bad faith to be averred in the plaint and to be proved subsequently. Rather, it is sufficient
for a plaintiff to show that the actions of the Authority showed lack of good faith which is a
lower standard as compared to an averment of bad faith in its strict sense.
Counsel conceded that words to the effect that the Authority acted in bad faith or that
it acted out of a lack of good faith have not been specificically used in the plaint with
summons. However, his argument was to the effect that there is no strict duty on the plaintiff
to aver those words specifically. He referred to the case of Police Welfare Association &
Ors v Rampersad DI [2016 SCJ 391] where the following is said:
Now, what is required of every pleading is that it states clearly and distinctly all
matters of fact that are necessary to sustain the plaint, plea or counterclaim as
the case may be. [Supreme Court Rules 2000 Rule 13(1)]. It is for the trial
court, after having heard evidence, to determine whether the allegations have
been proved and if proved, amount to faute lourde.
Counsel then submitted that the failure to actually mention the words bad faith or lack
of good faith may or may not be fatal to a claim. It would be fatal if the cause of action or the
acts reproached of an authority enjoying such statutory protection are not clear upon a
perusal of the plaint. However, if upon the plaint being read as a whole, it appears that the
lack of good faith is clearly implied, then that would be sufficient to sustain the action against
the authority, the point being that the authority, as defendant in an action, should know what
is being averred against it so that it can put up its defence properly.
Counsel then went through the plaint in the present case and stated that a reading
thereof clearly shows the following:
[1] the Authority issued an authorisation to the plaintiff in the first place which shows that it
must have been satisfied that the plaintiff could operate his business on the beach. Then,
shortly after that, the Authority refused to renew the authorisation of the plaintiff when it had
issued an authorisation to another person operating a similar business; and
[2] the Authority unduly delayed in taking remedial action, by withdrawing the injunction that
it had obtained against the plaintiff, which would have allowed the latter to continue his
business when the comments of the Supreme Court in the Judicial Review proceedings had
made it clear that the Authority could not claim fees and issue authorisations.

All this, according to counsel, can leave no doubt that the contention of the plaintiff is
to the effect that the Authority had acted out of a lack of good faith towards him even though
this is not mentioned in the plaint in so many words.
Thus, counsel submitted that it would not be fair to stop the proceedings at this stage
based solely on the technical averments in the plaint. He therefore suggested that the case
should be allowed to proceed and the plaintiff should be allowed to present the evidence in
support of his case. Should the court come to the conclusion that the element of lack of good
faith has been satisfactorily proved, a finding can be made in favour of the plaintiff, and it
would still be open to the court to dismiss the case if it finds that that element has not been
proved to the standard required by law.
At this stage, I believe that we should set out the provisions of section 17 of the Beach
Authority Act in full which will highlight a point which, apparently, both counsel missed. The
section reads as follows and I have underlined the relevant part:
No liability, civil or criminal, shall attach to the Authority or to any member or
officer, in respect of any loss or damage arising from the exercise in good faith
by the Authority, or by a member or officer, of its or his functions under this Act.
It is clear that the statutory protection against liability is given to the Authority with
respect to any act done or omitted by it in good faith whilst it is exercising its functions under
the Beach Authority Act. In the cases referred to by counsel for the defendant and which
have been set out above, there appeared to be no issue about the fact that the bodies
referred to therein were actually acting within the ambit of the powers given to them by the
statutes which also gave them protection from liability.

However, in essence, the case for the plaintiff in the present claim seems to be that:
[a] under the Beach Authority Act, the Authority did not have the legal power to undertake
the actions that it did as from August 2006, namely requiring the plaintiff to pay a fee, issuing
him with an authorisation to operate his business and, thereafter, obtaining an injunction to
prevent him from operating his business. The law was amended in May 2008 and it was only
then that the Authority was empowered to regulate the trade of mattresses and umbrellas on
public beaches; and
[b] the Authority has unduly delayed in taking remedial action, that is to say, the withdrawal
of the injunction case following the comments of the Supreme Court in the Judicial Review
proceedings to the effect that the Authority was not empowered to do what it had done.

Thus, the first limb of the claim of the plaintiff is essentially based on the allegation
that the Authority acted ultra vires or, in other words, that it acted outside the ambit of the
powers given to it by the Beach Authority Act. The second limb refers to the alleged failure of
the Authority to act reasonably by abating, as soon as was practicable, the prejudice which
the plaintiff was suffering once the attention of the Authority had been drawn to the fact that
it had been acting ultra vires. Thus, it is clear that the protection of section 17 would not
extend to the Authority in the present case in view of the nature of the action which the
plaintiff has lodged against it which is an action for damages for faute for having caused
prejudicie to the plaintiff by acting ultra vires the powers that the Beach Authority Act
purportedly gave to it.
In the light of the above, the plea in-limine-litis is set aside. The case is to proceed on
the merits.

P. Fekna
Judge

20 December 2016
--------------------For Plaintiff

: Mr. Y. Nazroo of Counsel

Mrs. K.D. Varmah , Attorney-at-Law

For Defendant

:State Attorney
State Counsel