Dangin v Paturau

• Jurisdiction: Mauricio
• Docket Number: 105
• Court: Supreme Court (Mauritius)
• Date: 14 September 1949

Mauritius, Supreme Court.

(Brouard and Osman, Acting JJ.)

Case No. 105

Dangin

and

Paturau.

Conclusiveness of Statement of Executive — Recognition of Consul — Immunities of — Endorsement of Claim to Immunity for Acts done in the course of Official Duties — The Law of Mauritius.

Consuls — Appointment and Exequatur — Conclusiveness of Statement of Executive — The Law of Mauritius.

Consuls — Immunities of — Immunity of Consular Records — Basis of Consular Immunities — Relevance of Reciprocity — Claim for Damages — Cause of Action arising out of Exercise of Official Duties — Refusal to Issue a Passport — Status of Person Domiciled in Local Territory as Consul for Foreign State — Conclusiveness of Statements of Executive — Recognition of Person entitled to exercise Consular Functions — The Law of Mauritius.

The Facts.—In May 1944 the defendant, a local resident, was appointed Consul in Mauritius for the then provisional Government of France and, as such, was authorized by His Majesty's Government to perform consular duties in the Colony of Mauritius (see Government Gazette No. 48 of 1944, dated June 10, 1944; General Notice No. 453 of 1944; and section 28 of Ordinance No. 8 of 1898). Subsequently, he received his exequatur as French Consul from His Majesty's Government in the United Kingdom and was acting in that capacity at all material times. On July 25, 1945, the plaintiff, who, though a French national and domiciled in France, had been residing in Mauritius, called at the French Consulate in Port-Louis and applied for a French passport. The defendant then asked the plaintiff to sign a letter which read as follows:

“The French Consul

Port-Louis

Mauritius

Sir,

On 25, 28 and 30 August 1944 the French Consulate inserted notices in all newspapers on the Island announcing the compulsory registration of French nationals. I have not complied with the instructions then published and I now express my apologies for this refusal.

I now undertake loyally to serve the Provisional Government of the French Republic which I recognise as the sole authority entitled to exercise jurisdiction over all French nationals. I have accordingly now come to place myself completely at your disposition.

Kindly accept, Sir, the renewed apologies of

Your respectful and devoted servant,

Thureau Dahgin .

The plaintiff refused to sign this document, and the defendant refused to issue a passport to her. After further correspondence and conversations between the parties and the attorney for the plaintiff, on November 23, 1945, apparently on instructions received from the French Government, the defendant issued a passport to the plaintiff without the plaintiff's subscribing to the lettre de soumission previously required from her.

Subsequently, the plaintiff instituted the present action against the defendant, claiming damages for his refusal to issue a passport to her. The main contention advanced by Counsel for the plaintiff was that although the defendant was acting in his official capacity in refusing to issue the passport, he was nevertheless acting contrary to the directions of the French Government in refusing to issue the passport to her. In addition to his general denial of this allegation the defendant submitted that the local courts lacked jurisdiction to entertain an action for damages against him in respect of a cause of action arising out of his official duties. The plaintiff argued that the acceptance of this claim by the Court would deprive her of a forum in which she could obtain redress for the defendant's wrongful acts, since the defendant could not be sued elsewhere than in Mauritius: on these grounds the plaintiff submitted that the principle of consular immunity claimed by the defendant should only be admitted in cases where a consular defendant may be sued in some other jurisdiction in which he does not exercise consular functions.

Held: that judgment must be given for the defendant. The claim to immunity advanced by the defendant should be accepted for the reason that the courts are without...