COUNCIL FOR VOCATIONAL LEGAL EDUCATION

BARRISTERS' EXAMINATION - AUGUST 2023

PAPER V - DRAFTING AND OPINION WRITING

(THREE HOURS)

Candidates have ten minutes to read the Examination Paper which

consists of 7 pages before they start writing.

This Paper is in TWO PARTS.

•Part I is on Drafting. There are FOUR QUESTIONS out of which TWO must
be answered.

Part II is on Opinion Writing. There are FOUR QUESTIONS out of which

TWO must be answered.

Marks wilf be granted, where appropriate, for correct reference to

enactment and case law.

Each question must be answered on separate sheets with clear markinq

as to the question answered and to the number of paqes

MAKE SURE THAT YOU ENCLOSE ALL YOUR ANSWERS TO THE

DIFFERENT PARTS IN THE APPROPRIATE ENVELOPE.
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PART I - DRAFTING

QUESTION I

You appear for Mr King and your learned friend appears for Mrs Kamila regarding a
dispute where Mrs Kamila did not pay for goods which were ordered on her -behalf and
which are currently held in storage by Mr King.

Pursuant to discussions and negotiations, an-agreement has been reached in the

following terms and which the parties consider as being final:

• Mr King will release the goods upon Mrs Kamila paying half the storage fees;
• Mrs Kamila will pay for half of the storage fees immediately but will pay for the
goods by instalments in equal sums, payable each month until the whole sum
is paid.

Your services are retained by Mr King who asks that you ensure that there is a strong
mechanism in.place for Mrs Kamila not to default on any payment;

Mr King has already given a statement to the police against Mrs Kamila who does not
want the police enquiry to proceed.

(a) Draft a. Transaction Agreement setting out accurately the terms of the
settlement and protecting Mr King's interests.
(b) During negotiations, the state of the goods at the time of delivery was not
discussed. This is crucial for your client although you realise that mentioning
this to your opponent at this stage carries a great risk that thewhole transaction
falls through. How do. you deal with this as counsel for Mr King?

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QUESTION 2

On the 24th December 2022 your client Clio Pathrah instructed you to issue a notice
on J0015 Scissor for the non-payment of a judgment sum of Rs 2,000,000 awarded on
the 24th September 2022.

(a) Draft the appropriate notice and prepare the document to be subsequently
lodged should Mr Jools Scissor fail to comply with the notice.
(b) There is a mistake in the judgment wherein an amount in excess was added to
the amount awarded. Do you address this? If so, how?

QUESTION 3

Your client, Mrs Belle has separated from her husband. Pending the lodging of divorce
proceedings, she instructs you to ask for custody of her two minor children, Lou, aged
4 and Cam, aged 7. She also wants her husband to pay for the school bus, the nanny
and for food for the children. She is currently living in the conjugal home which she
jointly owns with her husband. The husband is abroad and is expected to return in two
weeks' time. Belle informs you that her husband sent her a WhatsApp message to
the effect that he intends to live in the house and that he also wants custody of the
children.

(a) Draft the pleadings for the case that must be lodged.
(b) As you are walking Belle to the door of your chambers on her way out, she
casually mentions that as soon as she obtains custody of the children she will
obtain travelling documents for her children and leave Mauritius with them for
the UK as she holds British citizenship. What is your advice to Belle regarding
this?

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QUESTION 4

A new client consults you after being prosecuted for the offence of Involuntary
Homicide by Imprudence following a road traffic accident where he knocked against a
pedestrian at a distance of 7 metres before a pedestrian crossing. Judgment was
delivered on 2nd May 2023 where he was convicted and subsequently sentenced to
pay afine of Rs 2 million. His licence was also cancelled for years. He is a taxi driver
by profession and informs you that he does not have the means to pay the fine and
that the cancellation of his licence for 4 years implies that he will not be able to work
as a taxi driver, so that his means of livelihood is threatened. The client meets you on
24th May 2023 and instructs you to appeal against the above court decision.

(a) Draft the most appropriate document to be lodged before the Court.
(b) What would your advice to the client be if he informed you that he was not the
driver at the time of the. accident but that he exchanged seats with his wife who
was in fact driving the car but who did not have a driving licence. Would your
pleadings be different from (a) above, and why?

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 PART II— OPINION WRITING

QUESTION I

A landlord lodged a case for possession of his premises under ss,16 and 24 of the
Landlord and Tenant Act, against his tenant before the District Court. The learned
Magistrate found in favour of the landlord, ordering the tenant to quit, leave and vacate
the premises by the 31St August 2023, and-made no order regarding any form of
compensation in favour of the tenant.

The tenant appealed from the judgment of the District Court.

In its judgment, the Supreme Court upheld the order for possession issued by the
District Court but remitted the matter back to the District Court for compensation to be
determined.

The tenant now seeks your advice as he still does not agree with the order evicting
him from the premises and he wishes to appeal to the Judicial Committee of the Privy
Council.

Write an opinion about:

(a) the best course of action for the tenant in these circumstances;

(b) the issues that would be canvassed by the tenant and the landlord in an eventual
application before the court, explaining what arguments could be put forward by the
landlord and your views on how these can be countered.

(c)After you provide your opinion to your client, you realise that a new judgment has
been delivered in 2023 which impacts the opinion you have submitted to the client in
such a way that renders your initial opinion totally incorrect. What do you do?

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QUESTION 2

Your client, Mr Dill has just been served with summons to attend court for trial where
he is being prosecuted for the offence of attempt upon chastity upon a child under the
age of 12, in breach of section 249(3) of the Criminal Code. In November 2014 Mr
Dill's younger cousin XY, the complainant, gave a declaration to the police reporting a
case of rape perpetrated in 1982. In her statement, XY stated that she was 5 years
old and that Mr Dill was 16 years old at the time that the offence took place.

Mr Dill was arrested in October 2018 and admitted to bail on the same day and he
denied the charge in his statement to the police recorded during that same month.

The information was lodged in January 2019 under a single count of attempt upon
chastity on a child under the age of 12, the exactdate of the offence being unknown.

There is one piece of evidence bearing some forensic value against Mr Dill, namely
the underwear worn by XY which was handed over to the police at the time of enquiry
and which bore traces of semen which have been linked to Mr Dill. No other forensic
evidence could be collected due to the delay between the time of the commission of
the offence and the police enquiry. Two potential witnesses to the incident as well as
two witnesses for the defence (Mr Dill's grandmother and father) have passed away.
Another witness for the prosecution has remained untraceable. Mr Dill was never
called for a reconstruction exercise.

(a) Advise Mr Dill on the strengths and weaknesses of his case and regarding
potential motions which can be made on his behalf, citing relevant
jurisprudence and legal provisions in support of such motions/stand.
(b) During your conference with Mr Dill, he informs you that he has a vague
memory of having touched his cousin in a way that he now realizes was
inappropriate. What is your advice to Mr Dill in these circumstances?

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QUESTION 3

In a construction agreement, the contractor agreed to provide a bank guarantee to the

extent of 10% of the contract amount to the client to secure the performance of the
contract within the agreed time frame. Disputes arose between the parties where the
contractor issued a claim for a part-payment in February 2022, as per the terms of the
contract but which the client did not settle.

The contractor now claims that this was the reason why he could not diligently perform
the construction works. The client claims that the contractor failed to complete the
works as per the agreed time frame.

On the 1St June 2022, the client issued a notice of termination to the contractor, thereby
ending the contract.

The contractor has been advised two days ago by the bank which had issued the bank
guarantee that the client has informed it of its intention to cash the bank guarantee.

(a) Write an opinion on the avenues which are open to the contractor in this
situation and the potential strengths and weaknesses of any action(s) which
you would advise him to take, detailing the action(s) contemplated and the
parties against whom such action(s) would be directed whilst explaining why.

(b) The contractor, your client, advises you that due to an oversight, all signed
copies of the contract agreement have remained in his possession such that
the client has no signed copy of the contract. He asks you whether the existence
of a contract can be denied and whether the cancellation of the bank guarantee
can be requested. Advice the contractor accordingly.

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QUESTION 4

Your client, Mrs Kat Ares, a Senior Lecturer at the University of Arts & Theology, has
applied for the post of Associate Professor for the Department of Theology. A selection
exercise was carried out and she was called for an interview, along with other
applicants. Her colleague, Mrs Lah Thena, also a Senior Lecturer, was however
appointed to the post.

Mrs Kat Ares does not agree with this appointment and requires your opinion on the
legal recourse that she may have and consults you for legal advice.

According to your client, her academic achievements are far superior to those of Mrs
Lah Thena, although they both hold doctorates. Mrs Kat Ares claims that she has
occupied high-ranking posts, contrary to Mrs Lah Thena. Fujthermore, the selection
panel for the post of Associate Professor, which is a highly academic post, was
composed of panelists who do not hold a doctorate degree, such that Kat Ares
questions whether the selection panel was qualified to assess The academic
qualifications, experience, achievements and competence of any of the candidates.

It is also a fact that whilst the Scheme of Service for the post of Associate Professor
for the Department of Theology provides that the post is not to be filled by promotion
but by selection amongst officers in the grade of Senior Lecturer, and that seniority is
not the determining factor, thestablished practice so far has consistently been to
appoint the seniormost lecturer to the post. Mrs Kat Ares is the seniormost lecturer
within the Department.

(a)
Advise Mrs Kat Ares on the legal action(s) that she may contemplate lodging in
Court and against whom such actions would be lodged, giving your views on
the strengths and weaknesses of such action(s) and providing an analysis
regarding the possible response of the other parties.
(b)
Your client has prepared a comparative table of the respective qualifications,
experience and achievements for herself and Mrs Lah Thena. How do you go
about referring to this document and placing it before the Court for its
consideration?

End of Paper