Dual Remedies Afforded against the Granting of Injunctions

THE FACTS

Following an ex parte application for an interim injunction before the Judge in Chambers by Super-Max Mauritius (“Super-Max”), the Judge declined to grant the order and issued a summons. On two occasions, service was effected upon Actis Consumer Grooming Products Limited (“ACGPL”) but the latter failed to appear.

The Judge in Chambers then granted an interlocutory injunction in the terms prayed for, pending the determination of the main case.

ACGPL lodged a motion supported by affidavit pursuant to Section 73 of the Courts Act 1945 (“the Act”), for the setting aside of the Judge’s order and for a stay of execution of the said order pending the determination of the application.

PRELIMINARY OBJECTIONS

Super-Max, at the outset, raised the following preliminary procedural objections:

• ”The present application is procedurally flawed and misconceived in that, in challenging the decision of the Honourable Judge in Chambers, the applicant ought to have proceeded by way of an appeal pursuant to section 76A of the Courts Act and not by way of motion supported by affidavits pursuant to section 73 of the Courts Act; and
• The stay of execution as prayed for by the applicant is vexatious, frivolous and an abuse of process inasmuch as it is subject to an application which is procedurally flawed.”

THE ISSUE

The Supreme Court was called upon to decide on whether it is open to an aggrieved party, seeking to challenge an injunction granted by a Judge in Chambers, to have recourse to Section 73 of the Act following the enactment of Sections 76A and 69(1)(a) of the same Act.

THE LAW

The relevant sections of the Courts Act 1945 are:

“69. Appellate Jurisdiction of the Supreme Court
(1) Subject to any other enactment, the Supreme Court shall have full power and jurisdiction to hear and determine all appeals, whether civil or criminal, made to the Court from –
(a) a Judge in the exercise of his original jurisdiction; …”

“73. Power to grant an injunction
A Judge may, whether in term time or in vacation, grant an injunction subject to a motion to the Court to set aside the injunction, and the Court may then set aside or modify it.”

“76A. Time for appeal
(1) Any person who wishes to appeal to the Supreme Court against any order, decision or judgment of a Judge at Chambers in any matter in which an appeal lies shall, unless otherwise expressly provided, lodge his appeal in the Registry and serve notice of the appeal on the other party or parties to the case within 21 days from the date of the order, decision or judgment.
(2) Section 69 (4) shall apply to an appeal under subsection (1).”

DECISION

The Full Bench of the Supreme Court concluded that a motion under Section 73 of the Act is limited to challenge the granting of an interlocutory or interim injunction by a Judge in Chambers whilst Sections 69(1)(a) and 76A create a general right of appeal against any “order, decision or judgment” issued by the Judge at Chambers, “in any matter in which an appeal lies” – which also includes any final determination of the Judge in the exercise of their original jurisdiction. (analysis made with heavy reference to the case of Hon P. Nababsing & Ors v Hon. P. R. Berenger & Ors [1994 SCJ 17].

The preliminary objections of Super-Max were set aside, the Court concluding that ACGPL can proceed by way of motion, pursuant to Section 73 of the Act, to challenge the Judge in Chamber’s decision to issue an interlocutory injunction.

COMMENTARY

The full bench of the Supreme Court of Mauritius has clarified the procedural remedies available to aggrieved parties seeking to challenge injunctions granted by a Judge in Chambers.

The question that had been long debated is whether aggrieved parties ought to appeal against injunctions or whether they can seek remedy by motion under Section 73 of the Courts Act. Section 73 of the Courts Act allows a party to apply by way of motion to set aside or vary an injunction granted by the judge in Chambers. That remedy will only apply to interim and interlocutory injunctions. The Court will only conduct a review of the case and not conduct a rehearing of the case. Section 69(1)(a) and 76A of the Act create a general right of appeal against an order, decision or judgment of a Judge in Chambers.

This is a welcomed clarification of the availability of a dual remedy especially when it comes to matters which require urgent intervention of the Court. Whilst both remedies have not been confirmed to apply to the granting of injunctions, law practitioners would need to carefully advise their clients on which one is best suited for them. Section 73 of the Courts Act (by way of motion) would apply for urgent challenges to interim and interlocutory injunctions whilst Section 69 and 76A of the Act would be more appropriate for final orders and wider disputes.

Contribution to this article: Ayush Ramsooroop, pupil to Yahia Nazroo.