Record No. 121978 THE SUPREME COURT OF MAURITIUS Honourable Dr Arvin Boolell, GOSK Plaintiff 4. The Speaker of the National Assembly, Honourable Sooroojdev Phokeer, Gosk 2, The Honourable Prime Minister of the Republic of Mauritius, Pravind Kumar Jugnauth Defendants In the presence of: The Honourable Attorney General interlocutory Judgment By way of a Second Amended plaint with summons, the plaintiff is seeking constitutional redress before the Supreme Court following his expulsion and suspension during the sitting of the National Assembly (‘the Assembly") on 20 July 2024 In the Second Amended plaint with summons, the plaintif has, in a gist, averred that, ever since his assumption of duty as Speaker, defendant No. 1 has, through demeanour and acts and doings, demonstrated that he is neither fair nor impartial but has in fact shown a bias and predisposition in favour of the majarity in the Assembly. He referred to several instances where, according to him, defendant No. 1 acted in @ biased manner against members of the opposition. With a view to depict the above, he set out the facts which, according to him, led to his own expulsion and those of Honourable Bhagwan and Berenger from the Assembly on 30 March 2021. He explained that the suspension was for that session and until the Assembly would stand dissolved on 21 November 2024, unless earlier dissolved,Following applications for constitutional redress lodged by the above members, defendant No. ing of the Assembly dated 18 May 2021, moved that they be reinstated. The 2, during the proceedings for constitutional redress were therefore discontinued The Second Amended plaint with summons contains extracts published in the Hansard of the proceedings of the sitting of the National Assembly of 20 July 2021, the date on which the plaintiff was suspended for that sitting and for the next 8 sittings. He alleged that, the above disciplinary measure is unconstitutional and disproportionate. In support of his contention that defendant No, 1 has been making a continuing abuse and acting in a discriminatory and biased manner against members of the opposition, he set out, in a table, the dates on which disciplinary measures were taken against members of the Assembly from 28 February 2020 up to 20 July 2021. In conclusion, he averred that the acts and doings of the defendants to order him out and to subsequently suspend him are unconstitutional and disproportionate as they violate his constitutional rights under sections 3, 12 and 16. He is, therefore seeking the following remedies: () a declaration that the defendants have contravened, breached and violated his constitutional rights under sections 3, 12 and 16 of the Constitution by “ordering out’, naming and causing the plaintiff to be suspended from the service of the Assembly for the sitting of 20 July 2021 and the next eight sittings; (i) a declaration that the decision to “order out”, name and cause the plaintiff to be suspended from the service of the Assembly for the sitting of 20 July 2021 and the next eight sittings is unconstitutional, unlawful, mala fide, ultra vires and null and void to all intents and purposes; and (iii) an Order restraining and prohibiting defendant No. 1 from engaging in any conduct which would further contravene the plaintiff's constitutional rights under the aforesaid provisions of the Constitution. Following the filing of the Second Amended plaint with summons dated 21 June 2022 (‘the plaint"), both learned Senior Counsel for defendant No. 1 and learned Counsel for defendant No. 2 have renewed the motion made by them on 7 September 2021 to strike out numerous paragraphs of the plaint. Both defendants are moving that the following paragraphs be struck out- (a) paragraphs 2, 4, 6 and 81 as they are in breach of Rules 13(1) and 15(1) of the Supreme Court Rules 2000 ("the Supreme Court Rules");(b) paragraphs 9 to 14, 16 to 20, 22 to 28, 31, 53 and 54 as they are in breach of Rule 45(1) of the Supreme Court Rules; (©) paragraphs 15, 33 (save and except for the reference to the sitting of 20 July 2021), 55 to 63, 67, 76, 62, 83 to 86 as they are in breach of Rules 15(1) and (16(1) of the ‘Supreme Court Rules; (@) paragraphs 21 and 64 as they breach Rule 16(1) of the Supreme Court Rules; and (©) paragraph 30 as it breaches Rules 13(1), 1(1) and 16(1) of the Supreme Court Rules. ‘They also contend that the averments contained in paragraphs 9 to 28, 33 (save and except for the reference to the sitting of 20 July 2021), 53, 54, 56 to 63 and 76 of the plaint “dale back fo more than 3 months after the cause of action’ and ought to be struck out as they are in breach of Rule 2 of the Supreme Court (Constitutional Relief) Rules 2000. With respect to paragraph 33 of the plaint, they have moved that paragraph 33 be struck out, save for the reference to the sitting of 20 July 2021, as it breaches Rule 2 of the Supreme Court (Constitutional Relief) Rules 2000. The plaintiff is objecting to the defendants’ motions while the third party is abiding by the decision of the Court. Breach of the Supreme Court Rules With regard to the defendants’ motion relating to alleged breaches of the Supreme Court Rules, we find it apposite to refer to the following extracts regarding the object of pleadings from Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, Twenty-Second Edition (1981), at pages 88 and 146, quoted with approval in lus Ad Vitam Association v The State of Mauritius & Ors [2014 SCJ 142]: “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings interchanged between the parties should be conducted according to certain fixed rules, .... The main purpose of these rules is to compel each party to state clearly and intelligibly the material facis on which he relies, omitting everything immaterial, and then to insist on his opponent frankly admitting or explicitly denying every material matter alleged against him, By this method they must spéedily arrive at an issue. Neither party need disclose in his pleading the evidence by which he proposes to establish his case at the trial. But each must give his opponent a sufficient outline of his case.though it is in general unnecessary to allege a matter of law, yet it is sometimes convenient to do so, and it may make the statements of fact more intelligible and show their connection with each other. There is no harm in this, if the facts are also stated on Which the proposition of law is based.” The following extract from lus Ad Vitam Association (supra), where the Court quotes L. J. Bowen in Knowles v Roberts 1888 C.A. 263, at page 270, is also relevant: “.... the rule that this Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass, and delay tho trial of the action, it then bocomes a pleading which is beyond his right.” ‘The following extract from Odgers’ Principles of Pleadings and Practice in Civil Actions in the High Court of Justice (14" edition) is also of interest: *...the threshold that had fo be met at the time for any matter to be struck out on tho ground that it was “unnecessary” was a very high one: *(..) it is not easy to obtain an order under this rule. Ono party has no right to dictate to the other how he shall plead (...). The mere fact that an allegation is unnecessary is no ground for striking it out (..)" (at page 141). It would appear that there was a further requirement in practice that the allegations had also to be found to be "embarrassing’, that is, “so irrelevant that to allow them to stand would involve useless expense, and would also prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues.” (see Mayor etc of London v Homer [1914] 111 L.T at p 814 and Willoughby v Eckstein [1936] 1 All E.R 650), as referred to in Odgers (14th edition) at page 141).” Bearing in mind the above principles, we shall now consider the motions for striking out the paragraphs of the plaint referred to above. We must, however, make it clear that, in deciding the motions, we are not in any manner making any determination as to the merits of the plaintiffs plaint, which may only be decided after pleadings have been exchanged and full arguments on the facts and in law have been heard, Paragraphs 2, 4, 6 and 81 The above paragraphs are being impugned on the ground that they breach Rules 13(1) and 15(1) of the Supreme Court Rules. Rule 13(1), so far as relevant, provides that every pleading shall clearly and distinctly state all matters of fact that are necessary to sustain the plaint, Pursuant to Rule 15(1) where a pleading contains a statement which is unnecessary, made vexatiously or made with unnecessary prolixity it may be struck out or amended.It was submitted on behalf of the defendants that paragraphs 2 and 4 contain averments which are superfluous and irrelevant and ere made with unnecessary prolixity about the piaintif's political career. They do not contain any material facts necessary to sustain the plaintiff's action for constitutional redress. It was also contended that the said paragraphs were only introduced to protract pleadings and ought to be struck out. Moreover, it was submitted that they offend Rule 3(1)(a) of the Supreme Court Rules 2000 and would not have any bearing in'determining the plaintiff's prayers. Learned Counsel for defendant No. 2 submitted that such averments are not required to sustain the plaintiffs case, which is not a 's experience in the Assembly and the plaintiff ought case as to the assessment of the plainti not give unnecessary details in relation to him. ‘We fail to understand the defendants’ grievance with regard to the above paragraphs which simply give a brief overview of the plainti's political career. We do not consider that the said averments are superfiuous or that they are ‘embarrassing’, that is, “so irrelevant that to allow them to stand would involve useless expense, and would also prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues’ tis also difficult to understand how the paragraphs can be said to be in breach of Rule 3(1){a) which merely provides that a plaint with summons shall state the names, occupations and addresses of the parties, For the reasons given above, we do not consider that paragraphs 2 and 4 are in breach of Rule 3(1)(a), 13(4) of 15(1). It was argued on behalf of the defendants that paragraphs 6.1, 6.4 and 6.5 purport to set out the political career of defendant No.1 and are immaterial to the plaintiff's cause of action. Further, it was submitted that paragraphs 6.2 and 6.3 which make reference to the alleged recalling of defendant No. 1 when he was a diplomat and an alleged incident in which he was involved during his posting as diplomat in Washington are vexatious. Ex facie, the averments in the plaint seemingly purport to show that defendant No. 1 has adopted @ systematic and similar pattem of behaviour which consists in suspending members of the opposition from the Assembly. It is also averred that defendant No. 1 was biased against the members of the opposition and that he acted in a discriminatory manner vis vis them. In the circumstances, we do not find that paragraphs 6.1, 6.4 and 6.5 which purport to establish defendant No. 1's close affinity with the ruling party, the Mouvement Socialiste Militant, breach any rules regarding the drafting of pleadings.However, in so far as paragraphs 6.2 and 6.3 are concerned, we fail to understand how the above paragraphs can be relevant in assisting the Court in determining the controversy between the parties. Learned Counsel for the defendants argued that paragraph 81 contains averments to the effect that defendant No.1's alleged actions towards the opposition is linked to his past role in the General Elections and are speculative, express opinions and are not factual. Further, this paragraph does not disclose any material fact which shall assist the Court as to whether the prayers for constitutional redress are to be granted. Our reading of paragraph 81 is that the plaintiff alleges that defendant No. 1 has been acting in a biased and discriminatory manner because he believes that he has the support of the majority party with whom he has a political affinity on the basis of his past role as canvasser and campaign coordinator for the majority party in past general elections. Taking all the above into consideration, we find that the defendants have failed to establish that paragraphs 6.1, 6.4 and 6.5 and 81 are in breach of Rules 13(1) and 16(1) of the Supreme Court Rules and we refuse to strike out the said paragraphs. However, we agree that paragraphs 6.2 and 6.3 are clearly unnecessary and we accordingly strike out the said paragraphs. Paragraphs 9 to 14, 16 to 20, 22 to 28, 31, 63 and 54 Leamed Counsel for the defendants argued that paragraphs @ to 14, 16 to 20, 22 to 28, 31, 53 and 54 ought to be struck out for being in breach of Rule 15(1). It was argued on behalf of the defendants that paragraphs 9 to.18, 17, 19, 20, 22, 23 to 27 set out alleged occurrences of 23 and 30 March 2021 in the Assembly and that such averments do not relate to the decision of 20 July 2021 and will be of no use to the Court in an assessment of, inter alia, whether the said decision was in contravention of the constitutional rights of the Plaintiff, A perusal of the plaint shows that: (a) paragraphs 9 to 14 relate to a question put by Honourable Assirvaden, a member of the opposition party, to Honourable Ganoo, a member of the ruling party on 23 March 2021; (b) paragraphs 16 to 20 set out what happened in the Assembly after the above question was put;() paragraphs 22 to 27, in a gist, explain how, the plaintiff, Honourable Bhagwan and Honourable Berenger were suspended from the sitting of 30 March 2024 and for the rest of the session; (d) the plaint also spells out that defendant No, 2 moved for the lifting of the suspension at the sitting of 30 March 2021 after the aforementioned members had lodged an action seeking constitutional redress; (e) under paragraph 28, itis averred that despite the above, defendant No. 4 continued with his biased and improper conduct; () paragraph 31 sets out the plaintif’s explanation regarding his conduct in the Assembly on 30 March 2021, after setting out what allegedly happened in the Assembly on that date; (@) under paragraph 53, the plaintiff specifically avers that defendant No. 1 was biased and discriminatory against the members of the opposition including the plaintiff and that “they have suspended solely members of the opposition since 21 November 2019 except for one member of the government, namely Honourable S. Nuckcheddy, who was asked ... at the sitting of 24 November 2020 to withdraw from the Chamber for the remainder of the day only."; and (h) under paragraph 54, the plaintiff alleges that only members of the opposition have been systematically denied their right to sit in the Assembly and the right to free speech. After taking into consideration what the plaintiff's case is ex facie the plaint, we are of the view that the defendants have failed to establish that the above paragraphs breach Rule 15(1) in that they are unnecessary in the sense that they are ‘so irrafevant that to allow them to stand would involve useless expense, and would also prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues.” We accordingly, refuse to quash the above paragraphs. Paragraphs 1, 33 (save and except for the reference to the to 63, 67, 76 and 82 to 86 ing of 20 July 2024), 55 ‘The defendants contend that the above paragraphs breach Rules 15(1) and 18(1) of the Supreme Court Rules. It is relevant to recall that Rule 16(1) provides that a pleading which |s, by reason of its duplicity, argumentativeness, uncertainty, omission, defect, lack of form or other imperfection, framed in a way to embarrass or mislead the other party may be amended,Paragraph 15 cannot be considered in isolation; it depicts what happened during the sitting of the Assembly of 30 March 2021 and sets out the scene for the ensuing paragraphs which explain how the plaintiff and 2 other members of the opposition were suspended from that sitting and until the Assembly would stand dissolved on 21 November 2024, Paragraph 33, apart from referring to the sitting of 20 July 2021, contains a table which sets out the different dates on which members of the Assembly were suspended starting from 28 February 2020 up to 20 July 2021, i.e., the date on which the plaintiff was suspended. Under paragraphs 55 to 63, the plaintiff alleges that, even when the conduct of members of the government are grossly disorderly, the defendants fall to suspend them and he supports his contention by referring to two instances where defendant No. 1 did not take any action against members of the government inspite of their conduct which was allegedly grossly disorderly: firstly reference is made to an alleged incident between Honourable Mohamed and Honourable Hureeram at the sitting of 23 June 2020 and secondly the plaintiff refers to the following words: “eta aller do ta boutfon" which defendant No. 2 allegedly uttered to the address of Honourable Assirvaden during the sitting of 24 November 2020. It is the plaintif’s contention, under paragraph 67, that he was never given an opportunity to be heard before he was sanctioned and that this is in breach of the right to be heard in any democratic society. Under paragraph 76 the plaintiff avers that defendant No. 1 has on numerous occasions falled to suspend members of the majority when they uttered words which were grossly offensive. Bearing in mind the case which the plaintiff purports to put across in his plaint, we are of the considered view that the defendants have been unable to satisfy us that the above paragraphs suffer from “duplicity, argumentativeness, uncertainty, omission, defect, lack of form or other imperfection[s’ or are “framed in a way to embarrass or mislead’ the other parties, For the reasons given above, we refuse to quash the aforementioned paragraphs. Breach of the Constitutional Relief Rules Leamed Counsel for defendant No. 1 submitted that the impugned paragraphs 9 to 28, 33 (save and except for the reference to the sitting of 20 July 2021), 53, 54, 66 to 63 and 76 of the plaint “contain averments that arose more than three months after the alleged right of action" which we understand to mean more that 3 months prior to the alleged right of action.{twas argued that the cause of action arose on 20 July 2021 and that the plaintiff cannot make averments setting out facts which happened before the cause of action. It was their contention that the above paragraphs ars in breach of Rule 2(2) of the Constitutional Relief Rules Rule 2(2) reads as follows- “Except with leave of the Supreme Court, on good cause shown, no application shall be lodged more than 3 months after the right of action arises.” We do not agree with the defendants that the above paragraphs which contain averments pertaining to acts which took place more than 3 months prior to the date of the lodging of the plaint cannot form part of the plaint. What Rule 2(2) provides is that an action for constitutional redress cannot be lodged more than 3 months from the date of the cause of action giving rise to it. The present case was lodged on 9 August 2021. Ex facie the plaint, the cause of action giving rise to the present application for constitutional redress arises from the naming and suspension of the plaintiff on 20 July 2021. The said acts clearly fall within a delay of 3 months prior to the lodging of the application. True it Is that the plaint also refers extensively to acts which took place more than 3 months before 9 August 2021. However, those acts are simply referred to in support of the claim that the naming and suspension of the plaintiff is unconstitutional, We further disagree that pursuant to Rule 2(2), the plaintiff cannot refer to those acts. It is obvious from the plaint that this Court is only being called upon to determine whether the suspension of the plaintiff on 20 July 2021 is unconstitutional. However, this exercise cannot be carried out in a vacuum. As stated above, ex facie, the averments in the plaint seemingly purport to show that defendant No. 1 has adopted a systematic and similar patter of behaviour which consists in suspending members of the opposition from the Assembly. It is also averred in the plaint that defendant No. 1 was biased against the members of the opposition and acted in a discriminatory manner vis a vis them. In the circumstances, the plaintiff is perfectly entitled to refer to what took place before his impugned suspension with a view to establish his case which ex facie the plaint is that defendant No. 1 was biased and acted in a discriminatory manner vis & vis members of the opposition. Aiter taking into consideration all the above, we find that the defendants have failed to establish that paragraphs 9 to 28, 33 (save and except for the reference to the’sitting of 20 July 2021), 63, 54, 56 to 63 and 76 of the plaint should be struck out for being in breach of Rule 2(2) of the Constitutional Relief Rules.10 In conclusion, for all the reasons given above - (a) we find that there is no merit in the defendant's motion to strike out paragraphs 2, 4,6.1, 6.4, 6.5, 9 to 14, to 20 to 28, 31,83, 63 to 55, 63, 64, 67, 76, and 81 to 86 as the defendants have falled to establish that they are in breach of the Supreme Court Rules referred to above, However, we strike out paragraphs 6.2 and 6.3 as being unnecessary; (0) we also find thet there is no merit in the motion to strike out paragraphs 9 to 28, 33 (save and except for the reference to the sitting of 20 July 2021), 53, 54, 56 to 63 and 76 of the plaint on the ground that they relate to facts which occurred more than 3 months prior to the lodging of the plaint and are in breach of Rule 2 of the ‘Supreme Court (Constitutional Relief) Rules 2000, ‘The case will be mentioned before the Master and Registrar on 8 February 2024 for the case to be put in shape. K, D. Gunesh-Balaghee Judge se D.C... D. Mootoo Judge . January 2024