You are on page 1of 44

October 10 Sayyad BOODHUN

Jurisdiction
The power or legal authority of the Court to hear and
decide a case

The territorial range or the territory within which the


power, right or authority to interpret and apply the law
is given to a formally constituted legal body

The power to administer justice within a certain area

October 10 Sayyad BOODHUN


The Various Courts of Mauritius
The District Court
The Bail & Remand Court (BRC)
The Juvenile Court
The Court of Rodrigues
The Visiting Magistrate for Agalega
The Intermediate Court
The Industrial Court
The Supreme Court
The Judicial Committee of the Privy Council
October 10 Sayyad BOODHUN
Hierarchy of Courts

Privy Council

Supreme
Court

Visiting
District Juvenile Court of Industrial Intermediate
BRC Magistrate
Court Court Rodrigues Court Court
for Agalega

October 10 Sayyad BOODHUN


District Court
Section 93(1) of the Courts Act is to the effect that
there shall be a Court in every district to be known as a
District Court

In any proceedings before the District Court the


following persons may address the Court:
Any party to the proceedings
Any Law Practitioner authorised to do so

The District Court has Civil and Criminal Jurisdiction


October 10 Sayyad BOODHUN
Criminal Jurisdiction of District Court
Summary Jurisdiction
The District Court has territorial Jurisdiction, in that it can try
offences committed in its district
Where an offence has been committed partly in one district and
partly in another, the prosecution may take place in either district.
Where the offence is committed in any harbour or arm of the sea
or other water which forms the boundary between or is adjacent to
2 districts, the prosecution may take place in either district.
Where an offence has been committed near the boundary
between 2 districts, and it is doubtful in which of the 2 districts
the offence was committed, the prosecution may take place in
either district.
Where a person is charged with having been an accomplice in the
commission of an offence under section 37, 38, 39 or 40 of the
Criminal Code the prosecution may take place in the district in
which the offence was committed.
October 10 Sayyad BOODHUN
Criminal Jurisdiction of District Court
Summary Jurisdiction
Section 72(5) of the District and Intermediate Courts
(Criminal Jurisdiction) Act provides that the maximum
penalty that can be imposed on an accused by a District
Magistrate is a fine of Rs 100,000 and 5 years imprisonment
There are however many offences within the jurisdiction of
the District Court carry a greater sentence. Even then, the
District Magistrate cannot exceed the provisions of Section
72(5)
Parliament may however empower the District Magistrate to
inflict a more severe penalty like in the case of the Landlord
& Tenant Act or the Excise Act
October 10 Sayyad BOODHUN
Criminal Jurisdiction of District Court
Preliminary Enquiry & Commitment for Trial
Section 116 of the Courts Act expressly excludes some matters
from the jurisdiction of the District Court. However, for those
matters, the District Magistrate can proceed to hold a preliminary
enquiry.

Section 115 of the Courts Act provides that where upon the hearing
of an offence within his jurisdiction, the Magistrate is of opinion
that the offence deserves a punishment which is beyond his
jurisdiction or that the evidence discloses another offence which is
not within his jurisdiction, the Magistrate may, with the consent
of the Director of Public Prosecutions, proceed to hold a
preliminary inquiry.

This is to see whether there is a Prima Facie case against the


accused.
October 10 Sayyad BOODHUN
Criminal Jurisdiction of District Court
Preliminary Enquiry & Commitment for Trial
According to section 44 of the District and Intermediate
Courts (Criminal Jurisdiction) Act provides that where a
person is before a Magistrate, on a charge of having
committed an offence for which the Magistrate has no
jurisdiction to convict under section 116 of the Courts Act,
the Magistrate may inquire into the charge and commit the
party charged for trial.

If, upon inquiry into the charge, the District Magistrate is of


the view that there is no prima facie case against the accused,
he may order that the accused be discharged.
October 10 Sayyad BOODHUN
Criminal Jurisdiction of District Court
Judicial Enquiries
Under section 1 1 1 of the District and Intermediate Courts
(Criminal Jurisdiction) Act, the DPP may require the
Magistrate to inquire into violent or suspicious cases of
death, i.e. cases where a person:
has committed suicide;
has been killed by another, or by an animal or by machinery or
an accident;
has died under circumstances raising a reasonable suspicion
that some person hiis committed an offence; or
has died in prison or while in custody of the Police.

October 10 Sayyad BOODHUN


Criminal Jurisdiction of District Court
Judicial Enquiries
The inquiry is held in open court. The Magistrate may, in the
course of such investigation, exercise the powers spelt out in
sections 50 and 1 10 of the District and Intermediate Courts
(Criminal Jurisdiction) Act (e.g. power to order the performance
of a post mortem examination, and, for the purpose of such
examination, to order the body of any person who has already
been interred to be disinterred).

Section 112 of the District and Intermediate Courts (Criminal


Jurisdiction) Act vests the DPP with the power to order similar
enquiries "where a person has suffered some grievous bodily
injury in consequence of a crime or accident or where the death of
a person may have been due to unnatural causes."

October 10 Sayyad BOODHUN


Criminal Jurisdiction of District Court
Judicial Enquiries
Under the Fire Inquiry Act, the District Magistrate of the
district within which a property burnt down or damaged is
situated can proceed to a judicial investigation into the cause
of such fire. The DPP, any company of insurance,
underwriters, or persons suffering prejudice from such fire
may apply to the District Magistrate.

October 10 Sayyad BOODHUN


Civil Jurisdiction of the District Court
The District Court has jurisdiction in all civil cases
where the sum or matter in dispute, whether in balance
of account or otherwise, does not exceed the amount of
Rs 50,000 exclusive of interest and costs (see section
104 of the Courts Act).

October 10 Sayyad BOODHUN


Civil Jurisdiction of the District Court
Which Court to Seize?
Section 5 of the District and Intermediate Courts (Civil Jurisdiction) Act
provides that a plaint shall be lodged in the District Court of the district
where the defendant, or one of the defendants, dwells or carries on his
business at the time the action is brought, or, where any immovable
property is the subject matter of the suit, in the District Court of the district
in which such property is situate either in whole or in part.

By leave of the Magistrate, the case can be lodged in any district in which
the defendant or one of several defendants has dwelt or carried on business
at any time within the 6 months before the action brought or in which the
cause of action has arisen in whole or in part.

If the plaintiff is a trader in Port Louis and the subject-matter of the dispute
relates to the trade or business, the plaintiff can either lodge the case in
Port Louis or in the district in which the defendant dwells or carries on
business. Note that in such a case, the plaint must not be in relation to an
immovable property.
October 10 Sayyad BOODHUN
Civil Jurisdiction of the District Court
Small Claims
Section 104A of the Courts Act provides that where the
sum claimed or matter in dispute does not exceed
Rs25,000, the plaintiff may choose to lodge his civil action
under the "Small Claims Procedure" under Part IIA of the
District and Intermediate Courts (Civil Jurisdiction) Act.

This is a more rapid procedure that normal cases.

October 10 Sayyad BOODHUN


Civil Jurisdiction of the District Court
Other Matters
The District Court has exclusive jurisdiction to hear and determine any
matter arising under the Landlord and Tenant Act e.g. actions for the
recovery of rent, irrespective of the amount of rent involved.

The District Court has jurisdiction to hear cases brought by the State of
Mauritius for the recovery of costs of sewerage work, irrespective of the
amount involved.

Possessory actions (see S.108 of the Courts Act)

Alimony (see S.107 of the Courts Act)

Actions under the Civil Status Act

Actions for the apposition or removal of seals


October 10 Sayyad BOODHUN
The District Court
Other Functions of a District Magistrate

The District Magistrate can be a Licensing Authority


under the Excise Act.

He can issue protection, occupation or tenancy orders


under the Protection from Domestic
Violence Act.

He performs other functions as provided by express


statutory provisions.
October 10 Sayyad BOODHUN
Juvenile Court
This court is established under the Juvenile Offenders Act.
It hears charges against persons under the age of 18.
The law, inter alia, makes special provisions to avoid the
mixing of juvenile offenders with adult offenders. There are
also provisions to protect the identity of juvenile offenders
(e.g. proceedings in camera, restrictions on press reports).
The law also considers the issue of sentencing of juvenile
offenders.
It should be noted that for a listed series of offences, the
offender, even though he might be under the age of 18, will
be tried before the ordinary courts (see sections 3 and 4 of
the Juvenile Offenders Act)

October 10 Sayyad BOODHUN


The Court of Rodrigues
This court has all the powers of a District Court.

In addition, and this for practical reasons, the Court of


Rodrigues has some of the powers normally exercisable by the
Intermediate Court (see the Court of Rodrigues Jurisdiction
Act). Under section 81(3) of the Courts Act, the Chief Justice
may direct that any civil case lodged before the Intermediate
Court be tried in Rodrigues.

The Court of Rodrigues is also conferred exclusive jurisdiction


under certain enactments e.g. Additional Remuneration Acts.
October 10 Sayyad BOODHUN
The Intermediate Court
The Intermediate Court was set up in 1960 by the Courts
(Amendment) Ordinance no. 14 of 1960 which repealed and replaced
Section 136 of the Courts Ordinance Cap. 168 now the Courts Act. It
was then known as the Intermediate Criminal Court. The properly
constituted court had to sit with three Magistrates. It had
jurisdiction to hear criminal cases including certain cases which,
until then, were triable only at Assizes following a preliminary
hearing before a District Magistrate. Power was also given to the
Chief Justice to transfer a case scheduled to be heard before the
Assizes to the Intermediate Criminal Court (...)

By the Courts (Amendment) Act No. 1 of 1971 the Intermediate


Criminal Court was restyled the Intermediate Court and it was given
jurisdiction to hear both civil and criminal cases. Before the newly
set up Intermediate Court, cases could be heard and determined by
not less than two and not more than three Magistrates ..."

(Extract from the case of Police v. Flore (1993) MR 106, pp. 108-109)
October 10 Sayyad BOODHUN
The Intermediate Court
Section 80 of the Courts Act provides that "there shall be an
Intermediate Court which shall be a court of record and which
shall have civil and criminal jurisdiction in all districts.
The Intermediate Court consists of a President, to be known as
the President of the Intermediate Court, and a number of
Magistrates, known as Magistrates of the Intermediate Court.
The general rule is that a case before the Intermediate Court is
heard by one Magistrate. However, section 85(2) of the Courts
Act provides that "the President of the Intermediate Court
may, either Proprio Motu or on application in writing made to
him by any party to a case stating the reasons for such
application, direct that any case shall be heard by 2 or more
Magistrates, having regard to the magnitude of the interests at
stake or the importance or intricacy of the questions of fact or
law involved."
October 10 Sayyad BOODHUN
The Intermediate Court
Criminal Jurisdiction
Section 112 of the Courts Act provides that the Intermediate
Court shall have jurisdiction to try any of the following
criminal matters which the Director of Public Prosecutions
may refer to it:
any offence which a District Magistrate has jurisdiction to try;
any offence triable in Rodrigues or any island under the
jurisdiction of the State of Mauritius other than the Island of
Mauritius;
any offence specified in section 117; e.g. Abuse of Authority by
Public Officer
any offence under sections 104, 122, 123(2), 228 (J) and (4), 235,
239 (1), 249(1), (4) and (5), 251, 257, 283, 284, 291 and 346 of the
Criminal Code; e.g. Rape
any offence under the Forests and Reserves Act 1983;
any offence declared triable by the Intermediate Court under any
other enactment.

October 10 Sayyad BOODHUN


The Intermediate Court
Criminal Jurisdiction
Section 113 of the Courts Act lays down the sentencing powers
of the Intermediate Court.
As a matter of rule, the Intermediate Court cannot award
against any person penal servitude for more than 8 years or
imprisonment for more than 5 years.
However, in the case of a persistent offender, if the court is
satisfied that, by reason of his previous conduct and of the
likelihood of his committing further offences, it is expedient to
protect the public from him for a substantial period, the court
may increase the sentence to 12 years penal servitude.
Moreover, Parliament may confer additional powers to the
Intermediate Court, for instance, power to impose longer
sentences ,e.g. S. 47(3) Dangerous Drugs Act 2000.
October 10 Sayyad BOODHUN
The Intermediate Court
Civil Jurisdiction
Section 104(1) of the Courts Act provides that the
Intermediate Court shall have jurisdiction in all civil cases
where the sum or matter in dispute, whether in balance of
account or otherwise, does not exceed the prescribed
amount of Rs 500,000 exclusive of interests and costs.

As already discussed above, the civil jurisdiction of the


Intermediate Court may extend to the Court of Rodrigues.

Section 111(2) of the Courts Act provides that the


Intermediate Court shall have no jurisdiction in actions
for payment of alimony or possessory actions.
October 10 Sayyad BOODHUN
The Supreme Court
The Supreme Court was set up in 1850 and was vested
with the same powers, authority and jurisdiction as the
then Court of Queen's Bench in England (now the High
Court).

Section 76( 1) of the Constitution provides as follows:


"There shall be a Supreme Court for Mauritius which shall
have unlimited jurisdiction to hear and determine any
civil or criminal proceedings under any law other than
a disciplinary law and such jurisdiction and powers as may
be conferred upon it by this Constitution or any other law.

October 10 Sayyad BOODHUN


The Supreme Court
Proceedings before the Supreme Court take place before
Judges i.e. the Chief Justice, the Senior Puisne Judge and such
number of Puisne Judges as may be prescribed by Parliament.
Section 77 of the Constitution deals with the appointment of
Judges of the Supreme Court.
The Chief Justice is appointed by the President of the Republic
acting after consultation with the Prime Minister.
The Senior Puisne Judge is appointed by the President, acting
in accordance with the advice of the Chief Justice.
The Puisne Judges are appointed by the President, acting in
accordance with the advice of the Judicial and Legal Service
Commission.
It should be noted that no person is qualified for appointment
as a Judge of the Supreme Court unless he is, and has been for
at least 5 years, a barrister entitled to practise before the
Supreme Court of Mauritius.
October 10 Sayyad BOODHUN
The Supreme Court
Section 15 of the Courts Act provides that "the Supreme Court
shall be a superior Court of record and, in addition to any
other jurisdiction conferred on it, shall have all the powers and
judicial jurisdiction necessary to administer the laws of
Mauritius.

Section 12 of the Courts Act deals with the right of audience


before the Supreme Court and reads as follows:
"In any proceedings before the Supreme Court, any of the following
persons may address the Court-
(a) any party to the proceedings, with leave of the court;
(b) a barrister, and, if the proceedings are before the Bankrupcy
Division, an attorney retained by or on behalf of any party."
October 10 Sayyad BOODHUN
The Supreme Court
The term "Supreme Court" can be used in two senses:

in the narrow sense, it would include only its original and


appellate jurisdictions,

in the wide sense the term would include, over and above
the original and appellate jurisdictions, the Court of Civil
Appeal and the Court of Criminal Appeal

October 10 Sayyad BOODHUN


October 10 Sayyad BOODHUN
The Supreme Court
Original Jurisdiction in Civil Matters
The original jurisdiction of a court is the right to hear a
case for the first time as opposed to appellate
jurisdiction when a court has the right to review a lower
court's decision.

It is the jurisdiction in the first instance.

October 10 Sayyad BOODHUN


The Supreme Court
Original Jurisdiction in Civil Matters
The Supreme Court has full original jurisdiction to hear,
conduct and pass decisions in civil suits, actions, causes,
and any matters that may be brought and may be pending
before it.
The Supreme Court can try any civil case whatever be the
residence of the plaintiff or defendant.
Where the sum or matter in dispute exceeds Rs 500,000
the case can only be heard and determined by the
Supreme Court.
The Supreme Court and the judges shall sit and proceed
to and conduct, and carry on, business in the same
manner as the High Court of justice in England and its
judges.
October 10 Sayyad BOODHUN
The Supreme Court
Original Jurisdiction in Civil Matters
Section 111(1) of the Courts Act vests exclusive jurisdiction in
the Supreme Court in any action or suit for:
Divorce or Judicial Separation
Interdiction of persons
Matters of Bankrupcy
Any action where the civil status of any person is concerned
Any right of an inheritance is concerned
Any right arising out of a contract of marriage is concerned
The ownership or usufruct of immovable property or servitude
thereon of a value exceeding the prescribed amount of Rs 500,000
is in question
The validity of any will or other testamentary instrument
any donation inter vivos is disputed
October 10 Sayyad BOODHUN
The Supreme Court
Original Jurisdiction in Civil Matters
Cases before the Supreme Court are normally heard by
one Judge (s. 35 of the Courts Act).

However, section 36 of the Courts Act provides that "the


Chief Justice may, either proprio motu or on application in
writing made to him by any party to a case stating the
reasons for such application, direct that any case shall be
heard by 2 or more judges, having regard to the
magnitude of the interests at stake or the importance or
intricacy of the questions of fact or law involved."

October 10 Sayyad BOODHUN


The Supreme Court
Original Jurisdiction in Criminal Matters
Offences of particular gravity (e.g. murder) are tried at the
Assizes (i.e. the Supreme Court in the exercise of its
criminal jurisdiction) consisting of a Presiding Judge and
a Jury of 9 persons.

Where it is so provided by legislation, a criminal case can


be heard by a Judge of the Supreme Court sitting alone,
e.g. cases of importation of drugs.

October 10 Sayyad BOODHUN


The Supreme Court
Inherent Jurisdiction
That jurisdiction originates from the very creation of the
Supreme Court as a Court with similar jurisdiction as the
Court of Queen's Bench.

This is confirmed in section 17 of the Courts Act.

Such inherent jurisdiction would include power to hear


applications for judicial review and contempt of court
cases.

October 10 Sayyad BOODHUN


The Supreme Court
Constitutional Jurisdiction
As already discussed, the Supreme Court is the guardian
of the Constitution.
As far as the enforcement of constitutionally-guaranteed
human rights are concerned, section 17(1) of the
Constitution provides that "where any person alleges that
any of sections 3 to 16 has been, is being or is likely to be
contravened in relation to him, then, without prejudice to
any other action with respect to the same matter that is
lawfully available, that person may apply to the Supreme
Court for redress."
For other constitutional actions, the aggrieved party
would have to rely on the provisions of section 83 of the
Constitution to seek redress.
October 10 Sayyad BOODHUN
The Supreme Court
Constitutional Jurisdiction
Also, by virtue of section 84 of the Constitution,
subordinate courts must send novel and substantial
questions as to the interpretation of the Constitution to
the Supreme Court.
Of course, if the Supreme Court has already - e.g. in a
previous case - given its opinion on a particular issue, the
subordinate court should not send the matter to the
Supreme Court (as this would be a waste of time) and can
rely on the previous pronouncement of the Supreme
Court on the matter
Accountant-General v. Baie du Cap Estates (1988) MR 1

October 10 Sayyad BOODHUN


The Supreme Court
Disciplinary Powers
Section 18(1) of the Courts Act provides that
"notwithstanding any other enactment, the Supreme Court
shall have power and jurisdiction to hear and determine
any complaint of a disciplinary nature in respect of the
professional conduct of a law practitioner or a ministerial
officer including a land surveyor."

October 10 Sayyad BOODHUN


The Supreme Court
Equitable Jurisdiction
The Supreme Court is a Court of Equity.
Section 16 of the Courts Act provides the the Supreme
Court shall be a Court of Equity vested with power,
authority and jurisdiction to administer justice, and to do
all acts for the due execution of such equitable
jurisdiction, in all cases where no legal remedy is
provided by any enactment.
It is by virtue of its equitable jurisdiction that the
Supreme Court issues injunctions.
For further discussion on the matter see Banymandhub v.
Kwan Chung Woo (1965) MR 102

October 10 Sayyad BOODHUN


The Supreme Court
Judge in Chambers
Deals generally with private or urgent matters.
E.g. An Order of Habeas Corpus

Also gives equitable remedies.

See sections 71 to 76A of the Courts Act.

October 10 Sayyad BOODHUN


The Supreme Court
Supervisory Jurisdiction
Section 82( 1 ) of the Constitution provides that "the
Supreme Court shall have jurisdiction to supervise any
civil or criminal proceedings before any subordinate court
and may make such orders, issue such writs and give such
directions as it may consider appropriate for the purpose
of ensuring that justice is duly administered by any such
court."

October 10 Sayyad BOODHUN


The Supreme Court
Appellate Jurisdiction (Criminal/Civil)
By virtue of section 69(1) of the Courts Act, the Supreme
Court shall have full power and jurisdiction to hear and
determine all appeals, whether civil or criminal, made to
the court from
a judge in the exercise of his original jurisdiction;
the Bankruptcy Division;
the Registrar;
the Intermediate Court;
the Industrial Court;
a Magistrate;
any other court or body established under any other
enactment.
Appeals are normally heard by 2 judges.
October 10 Sayyad BOODHUN
The Supreme Court
Court of Civil Appeal

See section 80 of the Constitution and the Court of Civil


Appeal Act.

This court hears appeals from decisions of a judge of the


Supreme Court sitting alone. The Court of Civil Appeal is
constituted by 2 or 3 Judges of the Supreme Court. The
Chief Justice, or when the latter is unable to do so, the
Senior Puisne Judge presides over the Court of Civil
Appeal.

October 10 Sayyad BOODHUN


The Supreme Court
Court of Criminal Appeal

See the Criminal Appeal Act.

This court hears appeals from the Assizes. It is constituted


by 3 Supreme Court Judges. The Chief Justice, or when the
latter is unable to do so, the Senior Puisne Judge presides
over the Court of Criminal Appeal.

October 10 Sayyad BOODHUN