Blencowe M.C. (Appellant) v ACMS Ltd (Respondent)

2021 SCJ 26

Record No. 1580 – 6B/24/19

Summary of Facts

The Appellant, was employed as an international financial consultant by the Respondent which is a management company.

The Respondent had guaranteed to pay to one of its clients (Mrs Fallot), the return of her investment plus interests in the tune of USD 73,639.33. (the “Guarantee”)

In view of his involvement in the transaction, the Appellant had given a written undertaking to the Respondent that he would contribute two thirds of the total amount due by the Respondent as a result of the Guarantee but failed to make the said contribution when the Respondent paid the sum of MUR 1,321,973 to Mrs Fallot.

Issue

The Appellant contended inter alia that the undertaking was null and void for having been signed duress.

Decision

The learned judge found on the facts that the Appellant failed to establish that he had signed the undertaking under duress and ordered the Appellant to pay to the Respondent the sum of MUR 881, 315 with costs and interests. The Appellant appealed against the said judgment.

The Appeal was dismissed and the Court stated that they found no reason to interfere with the learned Judge’s decision to reject the Appellant’s allegation of duress in the light of the evidence fully justified.

Attorney for Respondent

Josephine Robert

You may access a copy of the full judgment through the link below

https://supremecourt.govmu.org/HighlightDoc/%20BLENCOWEM%20%20C%20%20v%20%20ACMS%20LTD%202021%20SCJ%2026.pdf

Le Petit Morne Ltée & Anor (Applicant) v Le Mauricien Ltée & Ors (Respondents)

(Supreme Court – In Chambers Serial No. 1360/19)

28/09/2020

FACTS

Applicant No.1 claims to be the owner of certain plots of land situate in Le Morne and obtained a number of injunctions against local people who were allegedly interfering with its proprietary rights over the said plots of land.  

A video of full press conference which was held on 10 July 2019 by REA (a group of persons acting together under the name “Kolektif Vilaz Morne”) and the Centre for Alternative Research and Studies has been published inter alia on social media platforms of ‘Le Mauricien’.

Respondent No.1 (Veena Dholah) and Respondent No. 2 (Stephan Gua) and the local people were speakers during the said press conference and commented on a number of pending cases against them which they labelled as “persecution”.

The Applicants applied for an injunction prohibiting and restraining the Respondents from:

(i)     broadcasting a video of a joint press conference held on 10^th July 2019;

(ii)     broadcasting and/or publishing online or in any whatsoever way any document, article,  interview on and/or connected to the different cases which the Applicant No.1 has lodged in relation to its property at Le Morne;

(iii)    making any public comment and/or giving any public opinion in relation to the facts of the different cases which the Applicant No.1 has lodged and which are still pending before the Court of law.

The Applicants did not insist on the prayers sought under paragraphs (ii) and (iii). Therefore the remaining issue before the Judge in Chambers was in connection with paragraph (i) above.

MAIN ISSUES

The Applicants contended inter alia that:

(i)   the Respondent No.2’s statements during the press conference amounted to contempt of court;

(ii)   Respondents No.1 and 2 and the local people were attempting to intimidate the Court and bring the Court process into disrepute;

(iii)   the publication of the video was calculated to interfere with the course of justice in cases which the above speakers knew to be pending;

(iv)   by publishing the said videos, Respondent No.3 (Top FM Ltd) and Respondent No.4 (Le Mauricien) committed a sub judice contempt of court.

DECISION OF THE COURT

The judge held that for the Applicants to be successful, the following three elements must be present:

(i)    there is a serious issue to be tried;

(ii)    damages will not be an adequate remedy; and

(iii)   the balance of convenience is in favour of granting the injunction.

The judge was of the view that there was a serious issue to be tried because the matter discussed by the media was still being considered by the Court and therefore there was sub judice contempt of court.

As regards the issue as to whether or not damages would be an adequate remedy, the judge noted from the outset that the Applicants’ main qualm appeared to be that the video was calculated to interfere with the course of justice and tarnish the image of the judiciary by equating the legitimate recourse to legal proceedings to acts of persecution and that the Applicants have not sought any damages from the respondents in the main case. Consequently, the judge held that damages would clearly not be adequate remedy.  

With respect to the last element, the judge decided that the balance of convenience was not in favour of granting the application on the basis of the following grounds:

(i)   the Director of Public Prosecutions did not initiate any action for contempt against the respondents; and

(ii)  more importantly, if the application is not granted but where the respondents are found to have committed contempt of court in the main case against them, the Court will mete out the appropriate penalty against the respondents by taking into consideration the length of time during which the contempt was ongoing whereas if the application is granted and the main case is decided against the Applicants, the respondents would have been deprived of their constitutional right to freedom of expression.

Attorney for Le Mauricien Ltée: Josephine Robert

(Supreme Court - Record No. 6920)

FACTS

The Appellant was the Managing Director and General Manager of a company called Diesel Pro Ltd, a company owned by the Respondent and was provided two company vehicles for himself and his wife as part of his conditions of service.  

On 18 January 2010, the Appellant received a letter to attend a disciplinary committee to answer a charge relating to the Appellant’s involvement in an illegal hunting at night while using the company’s vehicle following which, the Appellant’s employment was terminated on the ground of misconduct.  

It is apposite to note that further to the above incident, the Appellant was arrested by the police and provisionally charged for the offence of illegal hunting prior to being released on bail and that a press article making reference to the said incident and identifying the company’s vehicle was published in the newspaper.

Further to the termination of his employment contract, the Appellant entered a claim for severance allowance together with indemnity in lieu of notice, which claim has been dismissed by the learned magistrate of the Industrial Court.

MAIN ISSUES

The Appellant appealed against the judgment and contended inter alia that:

1. the learned magistrate was wrong to opine that the Respondent could conclude that the Appellant committed an illegal act when it is for a Court of law to make such determination;
2. there was no evidence that an illegal act had been committed by the Appellant, the more so since he did not participate in the act of hunting himself;
3. assuming that the facts complained of by the Respondent were true, the acts of the Appellant did not constitute a ‘faute lourde’ on the following basis:
   1. there was no element of dishonesty or violence but  a simple case of hunting at night;
   2. appellant’s role was minor;
   3. the hunting was done for charitable purposes;
   4. appellant was not prosecuted.
4. the acts occurred outside working hours and outside the Respondent’s premises which did not have any effect on “le bon fonctionnement de l’entreprise”;
5. the Respondent could have taken another course of action since the Appellant had an “unblemished record” and has never received any warning from the Respondent and the incident was a minor one;
6. the act of the Appellant did not show any disloyalty against the Respondent nor was it in the nature of a competition against the company’s activities.

DECISION OF THE COURT

The Court upheld the decision rendered by the lower Court in that the acts and doings of the Appellant constituted a ‘faute grave’ which was tantamount to gross misconduct so that the employer did not have any other alternative than to terminate the Appellant’s employment.  The Appeal was therefore dismissed.

The Court’s decision was based inter alia on the following reasoning:

1. the learned magistrate relied on the general circumstances in which the offence was committed to come to the conclusion that there were sufficient elements evidencing that the Appellant participated either as an accomplice or a co-author in the illegal hunting (namely because the Appellant was apprehended by the police and it was not incumbent on the company to await the outcome of the criminal case before taking any disciplinary action against the Appellant);
2. the acts and doings of the Appellant constituted a ‘faute grave’  although it was committed outside working hours, outside the company’s premises and while he was on leave. The Appellant’s misconduct was of a nature to bring about « un trouble profond dans le fonctionnement et la morale de l’entreprise »;
3. the Appellant made an ‘usage abusif’ by using the vehicle for the commission of a criminal offence;
4. there is clear breach of trust on the part of the Appellant and the Appellant’s behaviour as a high-ranking employee was not proper and objectively created ‘un trouble objectif’ in the ‘bon fonctionnement de l’entreprise’ leading to ‘manquements aux obligations résultant de son contrat’ and consequently put the company’s reputation and business in jeopardy.

Attorney for Respondent: Josephine Robert