Entresol Louis Cyrano & ORS v Saltlake
Resorts Ltd
2004 SCJ 305
2004 MR 268
IN CHAMBERS
IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Louis Cyrano Entresol & Ors
Applicants
v.
Saltlake Resorts Ltd.
Respondent
In the presence of:
1. The Director of Department of the Environment EIA
DESK
2. The Minister of Environment and National Development
Unit
Co-Respondents
JUDGMENT
The four applicants are
fishermen from the village of Bel Ombre and neighbouring
localities. On 27 October 2004,
on their ex-parte application, I granted an interim injunction
restraining and prohibiting the respondent company, the
promoter of a hotel resort in the said region, and/or its
préposés from proceeding with any beach and
lagoonal works pending the determination of the appeal
lodged before the Environment Appeal Tribunal. Affidavits
have now been exchanged in relation to whether the interim
injunction should be made interlocutory.
Section 54(2) of The Environment
Protection Act 2002 (the Act) provides that within 30
days of a decision of
the Minister to whom responsibility for the subject of
the environment is assigned, any person may appeal to the
Environment Appeal Tribunal set up under section 53 of
the Act. On 5 October 2004, an Environmental Impact Assessment
(EIA) licence was granted by the Ministry of Environment
and National Development Unit to the respondent company “for
the construction of a 35 m jetty, the floating pontoon
and the repositioning of the existing boulders for the
creation and profiling of swimming zones 1 and 2”.
Purporting to act under section 54(2), on 21 October 2004,
the four applicants lodged an appeal before the Tribunal.
I am given to understand that the appeal was called, the
first time, before the Tribunal on
9 November 2004 and the date of hearing is not known yet.
On the other hand, on 15 October 2004, the Ministry of
Environment with the agreement of the Ministry of Fisheries
approved the commencement of works and such works were
in progress until the grant of the interim injunction.
The need for the urgent execution of such works has been
stressed by the respondent company as the hotel is to open
shortly and has already received bookings. Indeed it is
urged on behalf of the respondent company that unless the
beach and lagoonal works are completed on time for the
opening of the hotel, it will suffer disastrous financial
consequences.
It is the contention of the respondent company that the
interim injunction should be discharged on the following
grounds:
(a) the Judge in Chambers does not have jurisdiction to
grant the order prayed for;
(b) the applicants have failed to make a full and frank
disclosure and a fair presentation of their case at the
time they made the ex-parte application to the Judge in
Chambers;
(c) the applicants have been guilty of laches;
(d) the applicants cannot vindicate an alleged public
wrong;
(e) the applicants have not established any right, let
alone any legal right, that the Judge in Chambers should
protect;
(f) the appeal, to which the respondent has not been made
a party, may take several months to be determined;
(g) the applicants have not established a case, let alone
a serious case, for the order to issue;
(h) the balance of convenience lies clearly in favour
of the respondent;
(i) any alleged prejudice to the applicants (which is
denied) can be compensated in cash and the respondent has
ample means to compensate the applicants.
As regards the challenge of my jurisdiction to grant
the interlocutory injunction, it is submitted on behalf
of the respondent company that, in the absence of a substantive
action before the Supreme Court, the present application
is not maintainable. This stand is shared by learned Counsel
for the co-respondents. The decisions in Yadally v. Sohotoo
and Anor [1958 MR 194] and Bundhoo v. Baichoo [1979 SCJ
13] are referred to as authorities for such proposition.
Learned Counsel rightly conceded however that the challenge
of my jurisdiction is taken with diffidence. If I am to
understand learned Counsel, since there is no actual main
action before the Supreme Court seeking relief as per the
injunction applied for,
I am precluded from granting such interlocutory relief.
This is not my understanding of the powers of the Judge
in Chambers as regards injunctions. That an injunction
is only a remedy is trite law. It can in most cases only
be granted if the applicant has a cause of action entitling
him to substantive relief. This well settled principle
is described in the words of Lord Diplock in the oft quoted
case of The Siskina [1979 AC 210] at
page 256:
“That the High Court has no power to grant an interlocutory
injunction except in protection or assertion of some legal
or equitable right which it has jurisdiction to enforce
by final judgment, was laid down in the classic judgment
of Cotton L. J. in North London Railway Co. v. Great Northern
Railway Co. [1883 11 QBD] 3030, 39-40, which has been consistently
followed ever since”.
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It may be remembered that in the case of The Siskina,
the House of Lords refused the injunction on the ground
that the defendant, a foreign company, was not amenable
to the jurisdiction of the Court.
What the law requires is that the applicant has a legal
or equitable right which can be enforced by the Court and
in relation to which interlocutory relief is sought. In
many instances, the applicant seeks the interlocutory relief
in connection of a main case which is awaiting trial. In
many others - textbook writers refer often to cases in
restraint in trade as examples - the applicant may choose
not to proceed with the main case. If the claimant has
a substantive cause of action, his application for interlocutory
relief in the nature of an injunction is maintainable.
It is not required of him to have actually lodged a main
case. Thus, if the applicants are successful in the present
application and in their appeal before the Tribunal, they
may legitimately not consider a main case. The injunction
prayed for is pending the hearing of the appeal before
the Tribunal. Ground (a) therefore fails.
Do the applicants have a right in law for the enforcement
of which the respondent is amenable to the jurisdiction
of the present Court? I now turn to grounds (d), (e) and
(f) which were argued together. The right in law of the
applicants to fish at and around Bel Ombre, thereby earning
their livelihood is seriously put into question by the
respondent company. To my mind, though, such right in law
undoubtedly exists if it is interfered with to such extent
that special damages result therefrom, such right being
based in tort.
I am fortified in my view by examples of injunctions granted
in cases of pollution given in N. D. Basu’s Law of
Injunctions (3rd - Enlarged and Revised - Edition), although
the learned author speaks of the existence of equitable
right. I read at page 623:
“Pollution. Injunction to protect water rights are
very common illustrations of equitable intervention because
of the inadequacy of legal remedies. The principle governing
the equitable jurisdiction are essentially the same as
in nuisance, the legal wrong being in the same class of
torts. For a more detailed statement of these principles,
therefore, reference should be made to the preceding chapter
(4): herein are simply stated the more general rules as
illustrated in the case on water rights. Pollution of running
waters is a matter of frequent injunction (5). The grounds
of the jurisdiction are to prevent multiplicity of acts
because of continuing or recurring wrong (7), or to prevent
irreparable injury (6), or the fact that the damages are
not susceptible of estimation, and hence a verdict would
be in the nature of conjecture (8). …..”
What is applicable in cases of alleged pollution is all
the more applicable to cases of alleged damage to the environment.
Grounds (d), (e) and (f) accordingly, in my view, fail.
Under ground (b), it is argued that the failure of the
applicants to disclose in their application that they did
not submit comment/representation to the Director of the
Department of Environment, must be fatal to the application.
This view is shared by learned Counsel for the co-respondents.
Section 20 of the Act provides that an EIA report submitted
in connection with an application for an EIA licence shall
be open for inspection. The Director of Environment shall
give notice of public inspection in the Gazette and also
in two dailies and the public may submit written comments
within a specified time. It is not denied by the applicants
that they did not submit comments and/ or representations
to the Director. However it is averred by them that they
only took cognizance of the notices in the course of the
present application in the affidavits of the Acting Director.
Also it is averred they have and had no duty under the
Act to submit comments/representations. Further, section
54(2) of the Act which creates the right of appeal to the
Tribunal, does not lay down as prerequisite to the lodging
of an appeal the prior submission of comments/representations
to the Director.
There is no doubt that non-disclosure of material facts
may lead to the discharge of an interim injunction, even
if such non-disclosure was innocent and not intended to
mislead. Learned Counsel for the respondent company cited
the decision of Balancy J. in Robert Lesage and Ors v.
The Town and Country Planning Board [1997 SCJ 427] where
the requirement of a full and frank disclosure of material
facts in an application for injunctive is stated as follows:
“….. failure to disclose material facts is
an overriding consideration which may lead to an interim
injunction being discharged even where the normal criteria
for the grant of an injunction are satisfied …..”
However the grant of an injunction is a discretionary
exercise and each application must be judged on its merits.
It is not therefore surprising that in the same case, reference
is made to the observations of Glidewell L. J. in Lloyds
Bowmaker Ltd. v. Britannia Arrow Holdings [1988 1 WLR]
1337 at pp 1343H-1344A:
“When the whole of the facts, including that of
the original non-disclosure, are before (the Court, it)
may well grant ….. a second injunction if the original
non-disclosure was innocent and if an injunction could
properly be granted even had the facts been disclosed …..”
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In the present application,
not only do the applicants state that they were unaware
of the notices inviting public
comments but also that the authorities and the respondent
company were at all times aware of their objections to
beach and lagoonal works. In fact, a meeting was held on
6 February 2003, where the tourism development project
of the region of Bel Ombre was presented by the Chairman
of Cie Sucrière de Bel Ombre Ltd. to the “forces
vives” of the locality, members of the village of
Bel Ombre/ St. Martin and Baie du Cap. The meeting was
held in presence of the hotel promoters including the representative
of respondent company. At the meeting, to a question from
a fisherman, the Chairman “said that there was no
plan to any digging of (sic) other marine works in the
lagoon in the initial hotel projects. But, he guaranteed
that all legal and environmental aspects would be protected
if there would be any future marine projects and, the fishermen
would be in the frontline of communication if such a case
occurred”. (Emphasis added). The applicants also
state that the hotel promoters including the respondent
and themselves were present at a meeting held on 30 August
2004 by the Ministry of Fisheries in connection with the
Integrated Resorts Scheme of Bel Ombre. At the meeting
they again voiced their objections. The presence of the
applicants at the meeting is not denied by the respondent
company although the fact that they voiced objections is
denied.
In the light of the above,
had all the facts been disclosed, they would have shown
that the applicants objected at all
material times and the fishermen were given the assurance
that they would be “in the frontline of communication”,
should there be a marine project. Accordingly, the present
application comes within the instances in which as observed
by Glidewell L. J., an injunction could still properly
be granted.
I now turn to the issue raised in ground (g) viz. whether
the applicants have raised a serious question to be tried.
It is submitted by learned Counsel for the respondent company
and the co-respondents that the 8 grounds of appeal invoked
before the Tribunal are vague and accordingly, it cannot
be said that there is a serious question to be tried. From
the tenor of section 55 of the Act, appeals before the
Tribunal are full hearings at which evidence is admitted.
Section 55(2) and (3) read as follows:
“ (2) Where the Tribunal
adjourns any proceedings, it may resume them at such
place and time as the Chairman
of the Tribunal may determine.
(3) Subject to any regulations
made under Section 58, all appeals before the Tribunal
shall be instituted and
conducted –
(a) as far as possible in the same manner as proceedings
in a civil matter before a district Magistrate;
(b) in accordance with the law of evidence in force in
Mauritius;
(c) in public, except with
the agreement of all the parties, or where the Tribunal
so orders in the interests of public
order.”
The applicants have filed
affidavits to the effect that the works carried out by
the respondent company are detrimental
to the environment. The issue raised is eminently within
the attributes of the Tribunal and, in the light of the
affidavits and the attributes of the Tribunal, it cannot
be said that no serious question has been raised. That
the contents of the applicants’ objections have been
taken into account by the Director of Environment does
not preclude the Tribunal from considering the same objections.
I must now consider whether
the balance of convenience lies in favour of the granting
or the refusing of the interlocutory
relief sought. On the one hand, the applicants assert that
the works undertaken by the respondent company will deprive
them of their livelihood and also of a way of life, thus
causing irreparable injury which cannot be compensated
by damages. On the other hand, the respondent company rejoins
that the granting of the injunction will cause great financial
loss which the applicants who have limited means, will
be unable to compensate. It is in these cases where damages
prove to be inadequate remedies and the granting or refusing
of the injunction will cause equal prejudice to the parties
that a status quo is ordered by the Court. In the oft quoted
words of Lord Diplock in American Cyanamid Co. v. Ethicon
Ltd. [1975 AC 396] at 408F, “where other factors
appear to be evenly balanced it is a counsel of prudence
to take such measures as are calculated to preserve the
status quo”. Such “status quo” is as
conceded by learned Counsel for the respondent company
that which prevailed at the time of the issue of the licence.
In my view it should be at the time the licence is issued
but before the start of the works by the respondent company.
In addition to what I have
stated above, it is furthermore my view that on the facts
and in law, it is just and convenient
to grant the interlocutory injunction prayed for. The respondent
company applied for an EIA licence to make coastal improvements
works on the beach on 5 July 2004. On 5 October 2004, it
was issued with the licence described above. In the letter
granting the licence, the Acting Director of Environment
rightly drew the attention of the respondent company that “(This)
licence is granted subject to any appeal within 30 days
as from the date of issue, as specified under section 54(2)
of the Environment Protection Act 2002”. On 15 October
2004, the respondent company started the works. At the
time the works started, the decision of the Minister approving
the EIA had not yet been published in the Gazette and in
the press as required under section 23(5) of the Act. The
decision was published in the issue of Le Mauricien of
25 October 2004. Common sense dictates that since the legislator,
in its supreme wisdom, has granted a right of appeal from
the decision of the Minister, the commencement of the works
by the respondent company cannot be effected before the
lapse of the delay for appeal. Otherwise the right of appeal
is illusory and rendered nugatory.
One final issue is whether
I should require the applicants to “fortify“ their
undertaking in damages to the respondent company. Learned
Counsel for the applicants
cited the decision in Allen v. Jambo Holdings Ltd. [1980
1 WLR] 1252 as authority for the proposition that the applicants
who are of limited means should not be denied the remedy
of an injunction on the ground that an undertaking given
by them in damages may prove of no or little value. I respectfully
agree.
For the above reasons, I grant the interlocutory injunction
prayed for. With costs. I certify as to Counsel.
A. F. Chui Yew Cheong
Judge
15 November 2004
For Applicants: Mrs. Attorney A. Prayag
Mr. E. Sinatambou, of Counsel
For Respondent: Mr. Attorney R. Bucktowonsing
Mr. R. Pursem together with Mr. R. Unnuth, of Counsel
For Co-Respondents: Mrs. F. Maudarbaccus-Moolna, Chief
State Attorney
Mr. D. Chan Kan Cheong, Assistant Solicitor-General
together with Mrs. G. Manna, Principal State Counsel
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