THE MOTOR VEHICLE DEALERS ASSOCIATION v THE DIRECTOR-

GENERAL, THE MAURITIUS REVENUE AUTHORITY & ANOR

2018 SCJ 383

Record No. 113967

THE SUPREME COURT OF MAURITIUS

In the matter of:

The Motor Vehicle Dealers Association

Applicant
v/s

1. The Director-General, The Mauritius

Revenue Authority
2. The Mauritius Revenue Authority
Respondents

In the presence of:

Allied Motors Co. Ltd
Co-Respondent

JUDGMENT

The applicant is moving for the respondents to be committed for contempt for
having failed to comply with the interim injunction issued by the Judge in Chambers dated
15 January 2016, by allowing vehicle bearing registration no. 5965 AG 16 to be cleared
from the customs department on 22 August 2016.

It is the contention of the applicant that that vehicle registration No. 5965 AG 16
was not a new vehicle, having been first registered in the United Kingdom, hence
breaching the following prohibition (as per the interim injunction) –

“YOU, THE ABOVENAMED RESPONDENTS, ARE HEREBY

RESTRAINED AND PROHIBITED from clearing and releasing from the
customs of the respondent No.1, all vehicles dubbed new vehicles, which
vehicles do not comply with the definition of new vehicles as they do not
satisfy the following three pronged criteria –
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(i) A second hand vehicle is one which has been first registered at least
once in its export country prior to shipment:

(ii) and (iii)…(omitted).”

It is not denied that the respondents were aware of the interim order and has been
acting upon such order to detain a number of vehicles. It is also not further denied that by
way of letter dated 12 August 2016, respondent No.2 requested confirmation from Allied
Motors Co Ltd (co-respondent), in relation to the vehicle in lite, of the following information
namely the year of (i) manufacture, (ii) first registration, and to submit (iii) “any documents”
in relation to the said car. It is also not denied that these information were submitted to
respondent No.2 on 12 August 2016, and complemented through a second letter of 18
August 2016. From what we can gather the “documents” submitted were (i) a screen shot
or a print out of the web page showing the details of the vehicle (i.e. having the same
chassis number), web page which can only be accessed by an authorized Audi dealer,
and (ii) exchange of emails with Hatfield Audi (Hertfordshire, UK) where it was alleged that
the said vehicle was first registered.

It is the contention of the applicant that, in view of the information in its possession
the respondents ought not have released the car on 22 August 2016, have deliberately
failed in exercising their duties, and hence have deliberately acted in breach of the order
of the Judge in Chambers, with particular reference to the part quoted above.

The respondents, firstly claim that respondent No.2 (i.e. the MRA) was not a party
to the case of injunction and only the Director-General, MRA (respondent No.1) was in
that case, hence should be put out of cause. It is clear that the Director-General is not
personally being held accountable here, but in his capacity as the Chief Executive Officer
of the Authority which is the MRA. It is also clear that the Authority being a body
corporate can only act through its officers. In the circumstances, I do consider that the
Authority was through its Director-General fully aware of the prohibition against it.

In any event, the respondents’ claim is that the vehicle in lite did not fall under the
prohibition (as cited above) given that it was not established that the vehicle has been first
registered in the UK. The respondents further claimed that the vehicle had to be released
given that there were no “authoritative documents” to show that the vehicle was so first
registered. The respondents have also put in an order from my sister Judge S.B.A.
Hamuth-Laulloo dated 4 December 2017 (Epicerie de l’Est Ltée v Director-General
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Mauritius Revenue Authority) in support of their contention, presumably in relation to

the nature of “authoritative document” that are required.

As regards the order of my sister Judge, it is noted that unlike the present case,
she was in presence of a certificate, duly legalised, from the Vehicle Registration and Tax
Standard Bureau, Department of Land Transport of Bangkok, Thailand, which was
produced by the importer of the vehicle, as against a document from the Toyota
Corporation, Japan, upon which the Customs Authority was relying to detain the vehicle.
It is obvious and it stands to reason that the Honourable Judge will de facto give more
weight to the “official” document emanating from the country of alleged first registration. It
has to be noted, in addition, that such document was produced by the importer.

In the present matter, nowhere it has been averred that the respondents
requested the importer to produce an “official” document that the vehicle in question was
never registered in the UK, on the face of the information they had in their possession at
the material time. It was clear from the cross-examination of the representative of the
respondents that no such document was ever requested from the importer of the vehicle
in lite. In fact prior the release of the vehicle the only communication the respondent had
was with the authorised reseller of Audi vehicles in Mauritius, as we have seen above.

We have it from Section Head Mr B Ramburuth, posted at the Customs

Department, that the MRA did write to the UK Customs, in the hope that they will be
provided with an “official” document, but this was done after the car was effectively
released, and to date there has been no reply. It is noted, however, that the UK customs
is not responsible for the registration of vehicles in the UK. Be that as it may, as stated
above, this exercise was carried out after the release of the vehicle in lite.

It is also clear, as is apparent from reading the judgment of Mrs Chui Yew
Cheong, Judge, of date 19 October 2016 (Chambers), granting the interlocutory
injunction, that “serious questions of law are being raised as to whether vehicles first
registered in a foreign jurisdiction must be considered de facto as used ones and
therefore second hand under the 2004 Regulations and if so, whether they can be
imported into the country although they do not satisfy the conditions set down under the
1999 Regulations as regards controlled goods or alternatively they should be considered
as “prohibited goods” under section 66 of the Customs Act.” This point, to my
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understanding, has yet to be authoritatively determined by the Supreme Court, hence the
importance and need to have the injunction, pending the determination of the issue.

As regards the legal principles applicable to civil contempt, this has been
extensively expounded upon in the case of Beekarry M v The Mauritius Revenue
Authority & Ors [2012 SCJ 500]. In the present matter it is not disputed that the terms of
the interim injunction were clear and unambiguous and that the respondents had notice of
same. Remains that the applicant has the burden of proof and that the contempt has to
be established beyond reasonable doubt.

In Borrie & Lowe, The Law of Contempt, 4th Edition, following a review of the
case law, in the light of Article 6 of the European Convention of Human Rights, the
authors stated the following at p 126 –

“The Courts are reluctant to exercise their powers and will do so only in the
clearest of cases, namely where the offender, having proper notice of the
order, has been shown to the criminal standard – beyond all reasonable
ground – to have committed contempt. In addition, in most cases the
offender will have been shown to have intentionally, deliberately or willfully
disobeyed the court order.

It stands to reason that a breach of an injunction can be a civil contempt. In the

case of Howitt Transport v Transport & General Workers’ Union [1973] ICR1 at 10
(reproduced in Borrie & Lowe at p130), Sir John Donaldson explained as follows –

“orders of any court must be complied with strictly in accordance with their
terms. It is not sufficient by way of answer to an allegation that a court
order has not been complied with for the person concerned to say that he
“did his best”. But if a court order requires a certain state of affairs to be
achieved the only way in which the order can be complied with is by
achieving that state of affairs.”

As regard the men rea required, as stated in the case of Beekarry (supra),
quoting the case of Stancomb v Trowbridge UDC [1910] 2 Ch 190 at 194 –

“if a person or corporation is restrained by injunction from doing a

particular act, that person or corporation commits a breach of the
injunction, and is liable for process for contempt, if he or it in fact does the
act, and it is no answer to say that the act was not contumacious in the
sense that, in doing it, there was no direct intention to disobey the order.”

As such the terms of an injunction must be strictly observed. In the case of P v P

(Contempt of Court: mental capacity) [1999] 3 FCR 547, CA (referred to in Halsbury’s
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Laws of England, Vol 22, Contempt of Court, paragraph 75, Note 1 last paragraph) it
was held that there was no need to establish willful intention to breach the injunction, but
merely that the contemnor understood what he must not do and the consequences.

Further, in the case of P A Thomas & Co v Mould [1968] 1 AII ER 963 (see
Halsbury’s (supra) at Note 3), it was held that if a dispute arises as to whether a
proposed design breaches the terms of an undertaking, the parties may apply to the court.
The purpose is clearly to seek directions so as to avoid any contempt. In any event, this
is not the case here.

In the present matter the respondents’ stand is that there was no conclusive
evidence to the effect that the car had been registered a first time in the UK, hence this
matter is not within the ambit of the prohibition established by the injunction and as
reproduced above. The applicant, however, claims that given the circumstances, in
particular the interim nature of the injunction, which subsequently was made interlocutory
pending the determination of the main case, the respondents ought not to have released
the car. This stems from the rationale that the respondents had a duty to ensure that
prohibited goods should not enter the territory and there were alternative ways open to the
respondents to seek confirmation or information of that registration, for example by
requesting the importer to submit the appropriate official documents.

It would be preposterous to claim that the respondents did not have information to
the effect that the car may have been first registered in the UK. The fact that they did ask
information from the Mauritian “franchise” of Audi, Allied Motors Ltd (correspondent) itself
shows that the MRA (respondent No.2) considered the “franchise” to be a reliable source
of information.

The question is whether they could have acted on that information to come to the
conclusion that that vehicle was one that ought not to be allowed into the territory, the
more so that there was an interim injunction issued by this Court. The respondents’ stand
is clearly in the negative and they ought to have some more “authoritative” documentation.
It further appears from the respondents’ stand that they consider that that duty fall on
Allied Motors Co Ltd, the authorized dealer of Audi in Mauritius to provide them with that
authoritative documentation.
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Under Part III of the Customs Act (The Act) the MRA (i.e. customs) has the powers
to prevent prohibited goods or restricted goods to enter the territory. Under section 125 of
the Act, the Director-General has been given the powers to enforce laws relating to the
import of goods. Under section 127A, the Director-General has the power to request the
production of and examine “a document of any kind relating” to an imported good. These
powers are further enhanced by section 139 of the Act. In other words, the customs has
been given extensive powers to ascertain whether the appropriate types of goods are
entering the territory.

In the present matter no explanations have been offered as to why those powers
have not been used, the representative of the respondents being content to state that the
documents supplied by Allied Motors were insufficient.

It is to be noted that in the case of Stancomb (supra) contempt was held to have
been established even though the acts were done “reasonably and despite all due care
and attention, in the belief based on legal advice, that they were not breaches”.

In the present case, one cannot fail to observe that the Authority may have been
somewhat careless in their enquiries by failing to probe further, as seems to have
happened in the Epicerie de l’Est Ltée (supra), by requesting the importer to produce an
“official” document from the relevant UK Authority to effectively show that the vehicle was
not first registered in the UK in light of the information they had, namely that as per the
documentation communicated by the Mauritian “franchise” of Audi that car was first
registered in the UK, before releasing same.

In the House of Lords case of Re The Supply of Ready Mixed Concrete (No.2)
[1995] 1 AC 456, Lord Templeman stated “Given that liability for contempt does not
require any direct intention on the part of the employer to disobey the order, there is
nothing to prevent an employing company from being found to have disobeyed an order
“by” its servant as a result of a deliberate act by the servant on its behalf”. (See also
Borrie & Lowe (supra) p. 142).

In the circumstances, I consider that the Authority has, by failing to exercise due
diligence in its enquiries prior the release of the vehicle, acted in breach of the injunction,
with particular reference to the part of the prohibition reproduced above, hence in
contempt of the Court.
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However, given that I do consider that the chances of this type of situation arising
again being remote, the respondents are ordered to pay a symbolic fine of Rs 1.00, with
costs.

O.B. Madhub
Judge
21 November 2018

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For Applicant : Mr G Glover SC

Mr J Gujadhur SA

For Respondents : Mrs P Varma, Principal State Counsel

Ms S Angad, Principal State Attorney