Serial No. 655/2022 IN THE SUPREME COURT OF MAURITIUS (Before the Honourable Judge in Chambers) In the matter of:- Mauritius Turf Club Applicant vs The Municipal City Council of Port Louis The Ministry of Housing and Land Use Planning The Gambling Regulatory Authority exe Respondents In the presence of . MTC Sports and Leisure Limited 2. The Ministry of Local Government and Disaster Risk Management Co-Respondents ORDE On 29 April 2022, | declined to issue an ex parte interim order in the nature of an injunction Preventing and restraining the Respondent No. 1 (i) from giving effect to its letter dated 27 April 2022 to terminate the Concession de Privilége as embodied in the Agreement dated 02 July 2008; (ii) from ceding and/or transferring the rights of the Applicant under the Agreement to the Horse Racing Division of the Respondent No. 3 and/or to any other party; (iii) from granting to the Horse Racing Division of the Respondent No. 3 and/or to any other party the exclusive use of the Champ de Mars and/or part of the Champ de Mars, and ordered the parties to show cause why an interlocutory injunction in the above terms should not be granted. SEC. To JUDGES oFFicesUpon there being no objection from the parties, the Praecipe was amended on two occasions on 2 May 2022 and the prayers in the Second Amended Praecipe are now for an interim injunction restraining and prohibiting: (i) the Respondent No. 1 from giving effect to the latter dated 27 April 2022 to terminate the Concession de Privilége as embodied in the Agreement dated 02 July 2008 (“prayer (i); (ii) the Respondent Nos. 1 and 2 from ceding and/or transferring in any manner whatsoever the rights of the Applicant under the Agreement to the Horse Racing Division of the Respondent No. 3 and/or to any other party (‘prayer (i)"); and/or (iii) the Respondent Nos. 1, 2 from granting to the Horse Racing Division of the Respondent No. 3 and/or to any other party the exclusive use of the Champ de Mars and/or part of the Champ de Mars (“prayer (ii”), A motion made on 2 May 2022 by the Applicant to further amend the Second Amended Praecipe to include a new prayer with regard to Respondent No. 2 does not appear to have been pressed subsequently. ‘The application is being resisted by the Respondents and Co-respondent No. 2, while Co-respondent No. 1 is supporting the application. On 4 May 2022, counter-affidavits were filed on behalf of the Respondents, in which it was averred inter alia that, on 27 April 2022, prior to the lodging of this application, the State, through Respondent No. 2, had, upon giving notice to Respondent No. 1, resumed its full rights over the Champ de Mars pursuant to section 63 (4)(c) of the Local Government Act. Since it is trite law that the equitable jurisdiction of a Judge in Chambers will not be exercised in vain, | then asked for submissions on the issue of whether this application still discloses a live issue. SEC. TO JUDGES ‘OFFICES ) 2On 5 May 2022, Co-respondent No. 2 filed a counter-affidavit, while the Applicant filed affidavits in reply to each of the counter-affidavits on record. At the hearing on 5 May, all legal advisers agreed that, with the filing of affidavits by all parties, the matter is now in shape and they had no objection to my deciding the case on the merits if | were to find that there is still a live issue. On that day, after hearing Mr R Pursem, SC for the Applicant, Mr R Gulbul, of Counsel for Respondent No. 1, Mr K Naghee Reddy, Assistant Parliamentary Counsel for Respondent No. 2, Mr R Yerrigadoo, of Counsel for Respondent No. 3, Ms Z Elahee, Attorney for Co-respondent No 1 and Ms A MO Ombrasine, Ag. Assistant Parliamentary Counsel for Co-respondent No. 2, | took time to consider. And this day, after carefully considering the Second Amended Praoecipe, all the affidavits and the oral and written submissions of legal advisers- (a) | note that the termination of the Concession de Privilége (‘the Agreement") by Respondent No 1 will be challenged by the Applicant in the main case (notice of which is being given to the Respondents pursuant to the Public Officers’ Protection Act) while the resumption by the State of its full rights over the Champ de Mars is not being disputed. It is in fact the contention of the Applicant that the resumption by the State of its full rights over the Champ de Mars can only be subject to the rights of the Applicant under the Agreement ; (b) | find as follows- Live Issue ‘The main issue to be determined in this regard is whether the Applicant has any legal right which he is seeking to protect and which would warrant injunctions being issued against Respondent Nos. 1 and 2. It has to be highlighted in this regard that SEC. TO JUDGES 3 ‘OFFICESno injunction prohibiting Respondent No. 3 from doing any act is being sought in the Second Amended Praecipe. The application for an interim injunction, when lodged on Friday 29 April, was based on the allegedly unlawful termination of the Agreement. This termination of the Agreement by Respondent No. 1 has now been superseded by the subsequent resumption, on the same day, by the State, through Respondent No. 2, of its full rights over the Champ de Mars so that Respondent No. 1 is no longer vested with the control or maintenance of the Champ de Mars. | am unable therefore to issue any interlocutory order, as sought in the three prayers in the Second Amended Praecipe, against Respondent No. 1 in respect of the Champ de Mars. Prayer (i) is therefore set aside. only have to consider therefore whether Respondent No. 2 may still be prohibited from- (a) ceding and/ or transferring the rights of the Applicant under the Agreement to the Horse Racing Division (HRD) of Respondent No 3 or to any other party (prayer (ii); or (b) granting to the HRD or any other party the exclusive use of the Champ de Mars or part thereof (prayer (iii)). Itis the contention of the Respondents and Co-respondent No. 2 that the Applicant no longer has any rights under the Agreement following its termination by Respondent No. 1 and the resumption by the State of its full rights over the Champ de Mars. After anxious consideration of the submissions of Counsel on this matter, | find this contention to be over-simplistic in view of the fact that the State was at all times privy to the existence of the Agreement entered into by the Applicant over the Champ de Mars, which remains State land. Indeed, the Agreement for the lease of the Champ de Mars to the Applicant for a period of 20 years, which provided for the Applicant to be grante lusive use of the Champ SEC. TO JUDGES ‘OFFICESde Mars for specified purposes relating to horse races, was signed by Respondent No. 1 in 2008 with the due approval of the President of the Republic. Further, the lawfulness and validity of the termination of the Agreement are being strenuously challenged by the Applicant in its Plaint, a copy of which has been provided Although they have not been invoked by the Applicant, | have generally borne in mind the provisions of section 8 of the Constitution In the light of the above, | hold that there is still a live issue with regard to the alleged rights of the Applicant under the Agreement and the orders sought against Respondent No. 2 under prayers (i) and (ii) and | shall proceed to consider the application on the merits in the light of the applicable principles. Merits It was agreed by legal advisers that the well-known test laid down in American Cyanamid Co v Ethicon Ltd (which | need not set out here) should be applied to determine if the interlocutory injunctions should be granted in this case. | shall consider each limb of the test in turn. Serious question to be tried It was forcefully denied by learned Counsel for the Respondents and Co- Respondent No. 2 that the application discloses a serious question to be tried. Having carefully considered the submissions of all Counsel and the authorities cited by them, as well as the Plaint that the Applicant intends to lodge, | have no hesitation in finding that there are serious questions to be tried with respect to the lawfulness of the termination of the Agreement, including- (a) the precise grounds on which the Agreement may be terminated: SEC. TO JUDGES oFFices* tis worth noting that all six Agreements between the Apy (b) whether Respondent No. 1 could terminate the Agreement “de plein droit” in the absence of express provision to that effect in the Agreement; (©) whether the Chief Executive of Respondent No. 1 could, lawfully and pursuant to the Local Government Act, terminate the Agreement on behalf of the Council, a body corporate, without a prior decision of the Council to that effect’ and in purported compliance with a “(directive)” given by its “parent Ministry’, Co-respondent No. 2 (see letter dated 27 April 2022 from the Chief Executive of Respondent No. 1 to the Applicant, at Annexure Q to the initial affidavit in support of the application); and whether the rights of the Applicant under the Agreement would in the circumstances be preserved upon the resumption by the State of its full rights over the Champ de Mars. These issues which are all raised in the Applicant's proposed Plaint can hardly be said to be frivolous or vexatious. Further, the counter-affidavits of the parties reveal multi-pronged, almost concurrent measures taken on, or immediately before, 27 April 2022 by the three Respondents and Co-respondent No 2 with respect to the exercise of the rights of the Applicant under the Agreement, which they seek to justify on the ground of urgency in view of the current racing season. The Applicant, on the other hand, alleges that the various steps taken by the relevant authorities smack of collusion, bad faith and “abus de droit’. These are matters which will no doubt be fully canvassed and addressed at the trial before the Supreme Court and which | cannot determine in Chambers on the basis of affidavit evidence alone. stand Respondent No 1 in relation to the Champ de ‘Mars from 2000 to 2008 (which were appended to the Applicant's affidavits in reply) were signed on behalf of the Council by the then Lord Mayor and Council Secretary acting with the express authorisation of the Couneil given at y r acting withthe express authoristi ili a meeting SEC. TO JUDGES OFFICESAdequacy of damages Moving on to the next limb of the test, it is equally clear to me however that any Prejudice that the Applicant, a registered association, claims to be at risk of suffering as a result of the allegedly unlawful termination of the Agreement would be pecuniary in nature and may be quantified. Further it has not been averred, nor can it seriously be argued, that Respondent No. 2, or the State, would not be in a financial position to pay any damages that may be awarded against them. | find that the Applicant could therefore be adequately compensated in damages for any loss caused if no injunction is granted at this stage but the main case at the trial is resolved in its favour. This in itself is enough to preclude the granting of an interlocutory injunction to the Applicant. Balance of Convenience Although | am not strictly required to do so, | shall for the sake of completeness also determine where the balance of convenience would lie. After anxious consideration of all the circumstances, including the undertaking in damages provided by the Applicant, | find that the balance of convenience would tit in favour of the State which has, through Respondent No. 2, resumed its full rights over the Champ de Mars. It is not disputed that , as at present, the Applicant, or Co-respondent No. 1, effectively holds no licence to organise races at the Champ de Mars and there is no licensed horse racing organiser for the current horse racing season 2022 (see paragraph 6 of the affidavit of Respondent No 3 dated 4 May 2022) ; a licence was issued on 15 April 2022 to Co- respondent No. 1 subject to conditions imposed by the Board of Respondent No. 3 and upon payment of the prescribed fee, but Co- respondent No 1 has been deemed not to be willing to accept the conditions attached to the licence (see letter dated 27 April 2022 fram Respondent No. 3 tothe Applicant at Annexure P to the Applicant's initial affidavit in support of the application). Learned Senior Counsel for the Applicant accepts in this regard that the decision of Respondent No. 3 not to renew the licence of Co- respondent No. 1 is not being challenged as at date. ‘An order prohibiting the State, through Respondent No. 2, from, in effect, granting the exclusive use of the Champ de Mars, or any rights of the Applicant under the Agreement, to any other party may have the paralysing effect of banning the organisation or holding of any races at the Champ de Mars until the determination of the main case. On the other hand, I note that there is nothing, ex facie the affidavit evidence before me, that points to any decision having already been taken by the State with regard to any entity, other than the Applicant, being conferred the exclusive use of, or being authorised to organise races at, the Champ de Mars. The possibility of the Applicant itself being considered, together with any other qualified applicants, in accordance with principles of fairness, equality of treatment and transparency, for the exclusive use of the Champ de Mars or the granting by the State, through Respondent No. 2, of the right to organise races at the Champ de Mars, pending the determination of the main case, cannot therefore be excluded. | am satisfied in the circumstances that withholding the injunction is likely to cause the least irremediable prejudice in the circumstances. In the light of the above, | decline to issue interlocutory orders as sought at prayers (ii) and (ji) and set aside the application. | make no order as to costs. Chambers, this 09% May, 2022. fod ous (sd)A D Narain ‘\ a JUDGE wwe woo i