This was an application for leave to appeal outside delay made by Metatron Global Fund and Metatron Global Asset Managers Ltd (Metatron) against a judgment whereby they were ordered to pay to Canada Life International Ltd (Canada Life) the remaining amount following payment of USD 752,854.17 already effected on the basis a determination that the net asset value of the shares was USD 1,026.32 as at 31 January 2014, together with USD 100,000 as costs.
The application was resisted by Canada Life who raised a preliminary objection to this application in relation to the limited power of attorney granted to Appleby (JV) Ltd & Cie.
Metatron argued that (a) Mr. Ramdhur was entitled to receive service on behalf of Canada Life as the agent (it is conceded not as attorney) and (b) they did not have access to the power of attorney.
Canada Life argued that it was Appleby (JV) Ltd & Cie which was appointed by the power of attorney as represented by Mr. Ramdhur. This was for the sole purpose of representing the respondent to give evidence on its behalf in the plaint with summons and that Appleby was not mandated to accept any process in Mauritius or elsewhere. It is also averred by the Metatron that the mandate of the attorney came to an end with judgment in the plaint with summons having been delivered.
The Court needed to decide whether the grounds invoked by Metatron for the delay, constituted exceptional circumstances or sufficient justification warranting the exercise of the Court’s discretion to allow Metatron to lodge an appeal outside the statutory delay.
The Supreme Court held:
- It is Appleby which is appointed as the agent and proxy of Canada Life and it is specified as “attorney” indicating the intention of Canada Life, that it is in the role of an attorney that the appointment is made. Hence, Mr. Ramdhur is representing Appleby and cannot be ascribed a wider role as an agent as submitted by learned counsel for Metatron;
- Precision is required as to the extent of the mandate given to an agent and should leave no room for inference. The boundaries need to be clear as to what an agent can or cannot do. There should be no room for ambiguity;
- The granting of an application for leave outside delay is a matter of discretion to be exercised only in exceptional cases and that the Court cannot condone every instance whereby an incorrect choice is made by lawyers as to procedure… especially when our court system deals with high volume of cases including cases which should never find their way to litigation before the courts and impinges on the time of the court to the detriment of other cases.
- The application was found to be without any merit and dismissed with cost.
This decision reiterates the importance of drafting with precision the extent of a mandate which should leave no room for inference. The Court also sent a stark reminder to legal advisers that it is their duty to adopt the correct procedure and that failure to do so would not trigger the exercise of the Court’s discretion inasmuch as this would not amount to sufficient justification.
Metatron may exercise its right of appeal to the Judicial Committee of the Privy Council.
