Suva City Council v Kalou [1992] FJHC 22; Hbc0121d.1992s (28 May 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 121 OF 1992

Between:

SUVA CITY COUNCIL
Plaintiff

- and -

JOELI KALOU
Defendant

Ms. T. Jayatileke for the Plaintiff
Mr. A.R. Matebalavu for the Defendant

RULING

This is an application by the plaintiff Council, heard inter partes, for a mandatory injunction seeking the return of an 'official car' in the possession of the defendant and which it claims the defendant "... is not entitled to have in his possession and/or use ..."

The defendant in reply claims the 'right' to retain possession of the car under the 'Terms & Conditions' of his employment with the Council which he claims has been unlawfully and improperly terminated.

It is clear from the opposing affidavits that there is a serious question to be tried, namely, whether or not the employment of the defendant with the plaintiff Council was lawfully terminated.

In this regard the Council claims that the defendant's employment with it was probationary and determinable on a month's notice, or payment in lieu thereof, whereas the defendant claims that his terms and conditions of employment requires that the Council exhaust a 'grievance procedure' before it is entitled to terminate his employment.

In my view this is not an appropriate occasion to decide the merits of the dispute (which has racial overtones), but moreso in the absence of a Statement of Defence and where the defendant it seems is seeking declaratory relief that his appointment with the Council "... still subsists".

In this latter regard it is well to bear in mind the words of Rooney J. in a not entirely dissimilar case with which the defendant will doubtless be familiar, namely, Joeli Kalou v. The Fijian Teachers Association and Others Suva Civil Action No. 98 of 1987 where in dismissing the plaintiff's (here the defendant) application for an injunction to maintain him in his employment with the Association the learned judge said:

"The plaintiff's relationship with the Association is one of master and servant. It is well established law that a contract for personal services cannot be enforced by an order for specific performance. In Vine v. National Dock Labour Board [1957] 2 WLR 106 Lord Keith said at p. 118:

'Normally and apart from the intervention of a statute there never would be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages."

(my underlining)

This latter observation of Lord Keith is a relevant consideration in the present application in which the defendant seeks to retain the motor vehicle as one of the 'privileges' of his contract of employment and more particularly in the court's consideration of the second question enunciated by the House of Lords in the leading case of American Cyanimid [1975] UKHL 1; [1975] AC 396 namely, 'Are damages an adequate remedy?'

On this issue learned counsel for the plaintiff Council submits that the vehicle in question is the subject matter of a Lease Agreement between the Council and its legal owner the Westpac Banking Corporation and under the terms of which the Council makes regular monthly rental payments to the bank and is obliged to retain possession and control of the vehicle and repair and maintain it.

In addition the vehicle is an "official" Council vehicle required in the conduct of its affairs and needless to say whilst it remains in the possession of the defendant, the plaintiff Council is not only deprived of the enjoyment and use of the vehicle but also faces the ever-present 'risk' that it may be damaged in circumstances where the Council would be liable to the bank under the Lease Agreement.

Learned counsel for the defendant argues however that the Lease Agreement is a matter between the plaintiff Council and the bank and has no bearing on the issues in the case. He complains at what is variously described as the 'premature', 'misconceived' and 'piece-meal' approach of the Council in seeking the return of the vehicle without first addressing the primary issue of the lawfulness of its termination of the defendant's contract of employment.

I confess that I find that argument a little difficult to understand. An interlocutory injunction by its very nature seeks to regulate the relative position of the parties pending trial without deciding their ultimate rights. Accordingly it is temporary and discretionary. Furthermore in the exercise of its discretion whether to grant or refuse an injunction the Court is guided by well-recognised 'criteria' and the 'justice' of the case. The final determination of substantive issues and/or legal rights is not one such criterion.

Needless to say the application for the injunction in this case was made and heard inter partes and therefore counsel's suggestion of "unclean hands" on the part of the Council for its 'failure' fully to disclose material facts does not arise.

I turn next to consider the 'balance of convenience' in the case and here learned counsel for the defendant submits that the court ought to maintain the existing 'status quo' (i.e. with the possession and use of the vehicle vested in the defendant) until the question of the defendant's termination has been finally resolved.

Learned counsel for the plaintiff Council on the other hand forcefully argues that (whether rightly or wrongly) the defendant's contract of employment with the Council has been irrevocably terminated and accordingly that is the 'status quo' to be maintained and the return of the

Council's vehicle is a necessary 'incident' to the maintenance of that 'status quo'.

In all the circumstances after careful consideration of the various competing factors and the submissions of both counsels this Court is firmly of the view that the application of the plaintiff Council ought to be granted.

Accordingly the defendant is hereby ordered to return forthwith to the plaintiff Council or its authorised officer the motor vehicle bearing registration No. CI 110 together with any keys that he may have in his possession pertaining to its use. The Council is to give the usual undertaking in damages.

By way of further directions the defendant is ordered to file a Statement of Defence within 7 days. Thereafter the action is to follow its normal course.

(D.V. Fatiaki)
JUDGE

At Suva,
28th May, 1992.

HBC0121D.92S