Marpol Security Pty Ltd v Government of Seychelles Procurement Oversight Unit (MA 119 of 2021 (arising in CS 48/2021)) [2021] SCSC 311 (9 June 2021)

SUPREME COURT OF SEYCHELLES Reportable [2021] sese .. SU... MA 119/2021 Arising in es 4812021 Petitioner 1st Respondent 2nd Respondent In the ex-parte matter between: Marpol Security Pty Ltd Herein represented by its Managing Director Ms Hilary Dubignon (rep. by Daniel Cesar) and Seychelles Heritage Foundation (rep. by Evelynn Almeida) Government of Seychelles Procurement Oversight Unit Herein represented by its Director Annie Dugasse (rep. by Mrs Morel) Neutral Citation: Before: Summary: Heard: Delivered: [2021] sese ..3.1.1.... Marpol v Seychelles Heritage Foundation i..._dAnor (MA 119 of 2021 arising in es 48/2021) Pillay J Interim Injunction 31 st May 2021 qt.lJune 2021 (.7.1:....,. Iune 2021). ORDER Application refused. RULING PILLAY J [1] The Petitioner by way of a motion filed on 25th May 2021 with supporting affidavit seeks an interim injunction as a matter of extreme urgency as the first Respondent is about to proceed with the tender process denying the Petitioner an opportunity to participate which is at the root of the action. [2] The Respondents objected and sought time to answer. However noting the application as filed this Court found no necessity to adjourn the matter to give the Respondents time to answer in view of the averments on file or lack thereof and declined to grant the application with reasons to follow. [3] These below are the reasons for refusing the application. [4] The Petitioner, through its Managing Director avers as follows: (1) That 1 have.filed a case in the Supreme Court against the I" Defendant to claimfair participation in the Tender Process under the watch of the 2nd Defendant. (2) That the I" Defendant would be in no manner orposition to restore theposition should theprocess be continued and am barredfrom participating. (3) That the l" Defendant has no defence to this claim and if no precautionary measure such as an interim injunction is granted, the lsi Defendant will proceed thus denying me the opportunity to participate in the tenderprocess. (4) Therefore 1pray this Honourable Courtfor an Interim Injunction against the above mentioned 1st Defendant until thefinal determination of my case. (5) That the matter be heard as one of extreme urgency as the ]SI Defendant is in the process to deny me my legitimate and lawful right to participate in the tenderprocess without any lawful wrong doing which is at the root of my action. [5] Upon seeking clarifications from counsel for the Petitioner as to the date the new tender process is to start, counsel referred to paragraph 3 and paragraph 6 of the Plaint in the main case where the Plaintiff claims that by letter dated 14th May 2020 the first Defendant had sent out letters to security agencies seeking tenders. Based on the pleadings in the main case it would appear that the Petitioner did not receive one of those letters and in any case there is no exhibit attached to the affidavit in support of the motion. [6] The law with regards to applications for injunctions is very clear. In order for a Court to exercise its discretionary powers under section 6 of the Courts Act, the Applicant must show that there is a serious question to be tried and that damages are not an adequate remedy (see Pest Control v Fill Civ 175/1991, 6th January 1992). [7] In the case of Techno International v George SSC 147/2002, 31 July 2002, the Court went further and decided that in addition to the two above considerations it also had to consider the "balance the convenience" which in Dhanjee v Electoral Commissioner SCA 20/2011, 27 May 2011 was explained as follows: (i) whether more harm will be done by granting or refusing the injunction; (ii) whether the risk of injustice is greater if the injunction is granted than the risk of injustice if it is refused; and (c) whether the breach of the appellant's rights would outweigh the rights of other in society. [8] The Court in Techo International further stated that it must look at the actions and conduct of both parties and the effect an order would make before exercising its discretion. [9] Noting the above it is in my view that in the given circumstances of this case it would cause more harm to grant the injunction than to refuse it since the alleged contract between the parties comes to an end today (31st May 2021). The first Respondent would be left without security whereas if the injunction is refused the nature of the proceedings are such that damages could amply compensate the Petitioner for any losses. [10] On the basis of the above the motion is dismissed. Signed, dated and delivered at Ile du Port on ... ~ ti ~ 020(21 PiUay J 4