DUVAL A C v THE ELECTORAL COMMISSIONER & ORS

2021 SCJ 188

SCR No: 119419 (5E/13/19)

THE SUPREME COURT OF MAURITIUS

In the matter of:

Mr Duval Adrien Charles
Petitioner
v
1. The Electoral Commissioner
2. The Electoral Supervisory Commission
3. The Returning Officer of Constituency No.17,
Curepipe and Midlands
Respondents
In the presence of:-
1. Honourable Louis Steven Obeegadoo
2. Honourable John Michael Tzoun Sao Yeung Sik
Yuen also known as Michael Sik Yuen
3. Honourable Soobeersingh Dhunoo
4. Mr. Lindsay Toussaint Paul
5. - (put out of cause on 09.12.2019)
6. Mr France Marie
7. Mrs Priya Soobarah (born Boodhoo)
8. Mr Avinaash Inderjeet Munohur
9. Mr Eric Joseph Raoul Guimbeau
10. Mr Louis Jose Gaetan Moirt
11. Mrs Marie Joelle Coret-Sophie
12. Mr Hanzy Jordan Ramen
13. Mr Julio Kirsley Mannoo
14. Mr François Claude Patrick Philogene
15. Mrs Marie Anabelle Dorothee Marie Louise
16. Mr Ralph Marie Pierre Jason Cesarine
17. Mr Jacques Daniel Boodhoo
18. Mrs Marie Mary-Leen Fouqueuse
19. Mr Resmeesing Joygopaul
20. Mr Yushan Ibrahim Cassim
21. Mrs Daniela Lise Nicole Police-Michel
22. Mrs Marie Martine Mavisa
23. Mr Sheik Nizam Goolfee
24. Mrs Marie Rosinette Edouard
25. Mr Mohummad Farhan Rashid Koodoruth
26. Mr Harish Singh Purmah
27. Mr Nicolas Jummun
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28. Mr Mahamad Nayaaz Abdool

29. Henri Hon Pin
30. Mr Deenesh Gokhool also known as Abdallah
31. Mr Nivesh Poonyth also known as Girish
32. Mrs Bebee Ackleemah Hisaindee
33. Mr Joson Moïse Ismaël
Co-Respondents
……….
RULING

At this stage of the proceedings, the petitioner has moved for further and
better particulars on the plea of respondents Nos.1 and 3 following their refusal to
furnish the requested particulars.

Respondents Nos. 1 and 3 are objecting to furnish further and better

particulars on the grounds that –

(a) the questions are irrelevant and amount to embarking on a fishing

expedition;

(b) the questions do not arise from the relevant paragraphs of the Plea;
and
(c) the answers to the questions are matters of evidence.

The furnishing of particulars of the pleadings is governed by Rules 10 and 11

of the Supreme Court Rules. The respondent or any other party to the proceedings
may apply for such particulars of the petition as may be required and for inspection
of any document which petitioner proposes to adduce in evidence. Where all
particulars have been filed and documents communicated, the respondent or other
party shall file the plea. The petitioner may apply for such particulars of the plea and
for inspection of any documents which the respondent or other party intends to
adduce in evidence.

The principles regarding particulars are well established and reiterated in E S

Jhuboo v A Ganoo & Ors [2021 SCJ 49], which stated –

“The requirement to give particulars reflects the overriding principle

that the litigation between the parties, and particularly the trial, should be
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conducted fairly, openly, without surprise and, as far as possible, to

minimise costs. It was held in Gujadhur v Gujadhur [1962SCJ 49] that “it
is settled principle that the object of particulars is to prevent surprise at the
trial by informing the opposite party what the case which he has to meet,
to explain and limit the pleadings which are vague or require limitation,
and generally to define and narrow the issue to be tried and to save
expense. It is sometimes argued as an objection to an application for
particulars that the applicant must know the true facts of the case better
than his opponent. However, this objection is misconceived: each party is
entitled to know the outline of the case that his opponent is going to make
against him and to bind him to a definite story.

It is explained in Odger’s Principles of Pleading and Practice in

Civil Action in the High Court of Justice, 22nd Edition, at page 156,
that particulars will not be extracted where it would be oppressive or
unreasonable to make such an order, as where the information is not in
the possession of either party, or could only be obtained with great
difficulty, or where the particulars are not applied for till the last moment.
The advantage of obtaining particulars therefore from the opponent is that
“he is bound by his particulars and cannot, at trial go into any matter not
fairly included therein”.
As a general rule, particulars will not be ordered:
1) where the party asking for them is fishing for evidence or
where the issue is a matter of evidence;
2) the questions are in the nature of an interrogatory;
3) the issues raised are a matter of law; or
4) they are not within the knowledge of the petitioner.”

The demand for further and better particulars on the plea, subject matter of
the present application may be grouped under the following headings –

(A) Insufficiently trained and inexperienced staff (questions 78, 79 and 82

on the respondent No. 1’s plea and questions 78 - 80 on respondent
No. 3’s plea); and

(B) Usurpation of the role of the Returning Officer (questions 84 - 94 on the

respondent No. 1’s plea and questions 82 - 90 on the respondent No.
3’s plea).

As regards the particulars sought for under heading (A) - Insufficiently trained
and inexperienced staff, the petitioner has made the following averment at paragraph
23 of the petition –
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“Respondent No.1 chose as its Heads, Callers, Recorders and

Ballot Box Clerks, many persons who had never acted in such capacity
before and who did not get sufficient training so much so that they
committed many errors, and were guilty of negligence and mishaps during
the counting process, thus rendering the whole process of counting of
ballot papers flawed.”

In their respective pleas, respondents Nos. 1 and 3 have averred the following
at paragraph 17 –

“17. Respondent No. 1 denies the contents of paragraph 23 of the

election petition, puts the Petitioner to the proof thereof and avers that –

(d) all election officers involved in the polling and counting

processes in Constituency No. 17 were thoroughly briefed in
relation to the counting process by Respondent No. 3 and
the Senior Presiding Officers on the eve of poll, on the
polling day and on the counting day, and through written
instructions given to them by the Office of the Electoral
Commissioner on the polling and counting processes.”

The petitioner is seeking to obtain further particulars as to the number of

election officers working for the first time and communication of the alleged written
instructions referred in paragraph 17(d) above. The material allegation in the petition
is that many election officers had not acted in such capacity before and were not
given sufficient training. The defence of respondents Nos. 1 and 3 is that all election
officers were thoroughly briefed. The core of the dispute, therefore, is whether
election officers were sufficiently trained and briefed on the polling and counting
processes.

It will be a matter for respondents Nos. 1 and 3 to consider whether they will
adduce evidence to show how election officers were trained and briefed for the
election. The number of election officers working for the first time is clearly
irrelevant. Also, we agree with the submissions made by learned Counsel for
respondents Nos.1 and 3 that by virtue of rule 11(4) of the Supreme Court Rules
2000, the petitioner is only entitled to inspect the written instructions if respondents
Nos. 1 and 3 intend to adduce them in evidence. In O J Adebiro v I L
Collendavelloo & Ors (2021 SCJ 91), it was held that “inspection of a document is
only available under rule 11(4) of the Supreme Court Rules 2000 if the party referring
to it in its plea intends to adduce it in evidence”. Learned Counsel for the
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respondents Nos. 1 and 3 has informed this Court that respondents Nos. 1 and 3 do
not intend to adduce the written instructions in evidence. Thus, the question of
inspection of the written instructions does not even arise.

Further, at paragraph 24 of the petition it was averred that during a public

interview respondent No.1 had confessed that the reputation of the institution that he
represents as well as respondent No. 2 “has been stained because of irregularities in
the election process and that 20% of the staff recruited by him for the election
process were first timers who received their training and or briefing on Polling and
Counting day only”.

Respondents Nos.1 and 3 have replied at paragraph 18 of their pleas inter alia
that “all Returning Officers and Deputy Returning Officers were thoroughly briefed by
the Chief Electoral Officer, Deputy Chief Electoral Officer and Special Election
Officers on the procedures to be adopted for the nomination day, polling day and
counting day”.

The particulars prayed for are in respect of the names of the Chief Electoral
Officer, Deputy Chief Electoral Officer and Special Election Officers. We are of the
view that the issue to be determined is whether election officers were sufficiently
trained for the election process and that the particulars prayed for are totally
irrelevant to the issue to be determined.

We shall now deal with the request for further and better particulars under the
heading (B) – Usurpation of the role of the Returning Officer.

At paragraph 25 of the petition, the petitioner has averred that “Respondent

No.1 bypassed Respondent No.3 in the choice of the legal entity responsible for
computing and recording the counted votes in the Constituency inasmuch as it
entrusted this responsibility to persons not entitled to be within the precincts of the
Counting centre, as defined by Regulations 39(5) of the National Assembly
Regulations 2014, and who used a computer with its system under their sole control
to do the said computing and recording, at all material times. The said choice and
the presence of the said persons in full action of computing and counting was
therefore illegal, as this is exclusively part of the duties of the Respondent No.3 on
the day of counting.”
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In reply to the above paragraph respondents Nos.1 and 3 have averred the
following –

“a software application was developed by the State Informatics

Limited (SIL) for the Office of Respondent No. 1 to enable the general
public to access in real time, information related to the National Assembly
Elections 2019, namely on nomination day, polling day and counting day
through a mobile application and web portal. In that regard, a dedicated
room was set up at the counting centre where computers were installed for
the sole purpose of inputting the number of votes obtained by each
candidate from each of the 18 counting rooms, after the figures were duly
verified and certified correct both by the election officers and counting
agents” and
“the final results of the poll in Constituency No. 17 were not based on the
figures from the software application, but solely based on the number of
votes obtained by each candidate, as manually counted in each counting
room and on the recapitulation of votes exercise carried out by
Respondent No. 3 in his office”.

The petitioner is moving for communication of the software application and the
names and addresses of all the office bearers of State Informatics Limited (SIL) at
the time of the election. He is also asking under the purview of which Ministry SIL
fell at the time of the election as well as by whom was SIL represented physically at
the computer room on the day of counting. Also, the petitioner is insisting on the
name and address of the person who was assigned the physical control of the
computer room on the day of counting.

Finally, petitioner is praying for particulars of the names and addresses of all
the Data Transmission Officers, their dates of appointment, official forms and
whether such appointment was made by public advertisement.

On the basis of the averments set out at paragraph 25 of the petition and the
reply made thereto by respondents Nos. 1 and 3, we are of the view that the
particulars prayed for do not constitute information which is relevant. The defence
as clearly set out in the pleas of respondents Nos. 1 and 3 is to the effect that a
software programme was used only for the purpose of disseminating real time
information to the public.
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Similarly, we fail to see the relevance of disclosing the identity of the office
bearers of SIL, the data transmission officers, official forms as these are extraneous
to the issues for our determination.

In the light of our analysis and applying the legal principles set out above, we
uphold the objections raised by respondents Nos. 1 and 3 as the further and better
particulars prayed for do not arise from the relevant paragraphs of their respective
pleas and consequently are totally irrelevant in respect of the issues to be
determined and amount to fishing for evidence. On the basis of the plea of
respondents Nos. 1 and 3, the petitioner knows what case he has to meet and the
issues are sufficiently defined and narrowed down.

For the above reasons, we decline to make an order to furnish the requested
further and better particulars and accordingly set aside the motion.

M. I. Maghooa
Judge

G. Jugessur-Manna
Judge

14th June 2021

……….

Judgment delivered by Honourable M.I. Maghooa, Judge

For Petitioner : Mr P Rangasamy, Attorney-at-Law

Mr A H Leblanc, together with
Mr J Panglose, of Counsel

For Respondents Nos 1 & 3 : Mrs P Ramjeeawon-Varma, Ag Assistant

Parliamentary Counsel
Chief State Attorney

For Respondent No 2 : Mr A K Rajah, SA

Mr R Pursem, SC together with
Mr A Moollan, SC and
Mr A Adamjee, of Counsel
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For Co-Respondents Nos 1 & 3 : Mr I Collendavelloo, SC together with

Mr R Chetty, SC
Mr G Ithier, SC
Mr E Ribot, SC and
Mr P De Speville, SC
Mr S Sookia, Attorney-at-Law

For Co-Respondents Nos 4, 6 & 8 : Ms R Jaunbaccus, Attorney-at-Law

Mrs S Beedassy, together with
Mr M Uteem, of Counsel