A full bench of the Supreme Court in the case of ENL Limited & Anor v Independent Commission Against Corruption [2023 SCJ 190] has brought a long-awaited clarification on the issue of representation of domestic companies in legal proceedings in Mauritius. Following objections raised by the Independent Commission Against Corruption to the effect that the applicant companies had not given a proper mandate to their representatives, the Supreme Court held as follows:
- When it comes to representation of companies in legal proceedings, our Civil Code provisions on “mandat” have to be read subject to the express provisions of the Companies Act 2001 (the “Act”);
- In that respect, section 129 of the Act provides that the business and affairs of a company shall be managed by, or under the supervision of, the board of directors;
- As regards litigation initiated by a company, it is the directors who have authority to act in the name of the company;
- This authority to institute proceedings may be delegated by way of resolution by the board of directors to one director or to an employee of the company to swear affidavits and give evidence in Court;
- In accordance with the principles generally applicable to burden of proof in civil proceedings, the onus always lies on the applicant companies to prove that their representatives were duly mandated to represent them in Court;
- Importantly, even if the deponents had no authorisation at the outset, it would still be open to the directors of the company to ratify the acts and doings of such representatives by passing a subsequent resolution; and
- A subsequent ratification may even cure a defect arising from proceedings being commenced without proper authority.
Now that the position regarding domestic companies has been defined, it would be interesting to also consider the issue of representation of foreign companies before the Mauritian Courts. The procedure set out in the Deposit of Powers of Attorney Act 1928 (“DOPA”) for the recognition of foreign deeds of appointment in Mauritius has often proved cumbersome and inefficient when it comes to urgent applications by foreign companies before our Courts. Almost a century later, it may be time for amendments to be brought to the DOPA to facilitate the process leading to the recognition in our jurisdiction of powers of attorney drawn up outside Mauritius, at least for very urgent applications seeking for example injunctive relief or the prevention of dissipation of assets. Legal provisions authorising a “subsequent ratification” for such types of applications could enhance access to justice by simplifying procedures, reducing administrative burdens, and promoting efficiency. It will also protect the rights and interests of individuals and businesses involved in legal processes further reinforcing the position of the Mauritius jurisdiction.