Naikarua v Airports Fiji Ltd [2005] FJHC 326; HBC0132.2005L (24 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0132 OF 2005L

BETWEEN:

SIMIONE NAIKARUA
Plaintiff

AND:

AIRPORTS FIJI LIMITED
Defendant

Mr. F. Koya for the plaintiff
Mr. K. Qoro for the defendant

Date of Hearing: 24 October 2005
Date of Ruling: 24 October 2005

EXTEMPORE RULING

In this matter the plaintiff seeks various orders by way of Notice of Motion filed on the 19^th May 2005.

At the commencement it was indicated on behalf of the plaintiff that only Orders (iii), (iv), (v) and (vi) were being sought. Those Orders are:

(iii) An Order that the defendant and/or its agent and/or its servants and/or its employees to reinstate the plaintiff to his former position with effect from 18^th March 2005 without loss of pay, allowances and other benefits.

(iv) An Order that the defendant to the Court the investigation reports prepared by the defendant prior to his termination.

(v) An Order that the defendant, in the interim, continue to pay and/or provide the plaintiff with his salary from 18^th March 2005 together with allowance and all benefits until this application is determined.

(vi) An Order that the defendant not to fill the position of General Manager Finance until this application is determined.

Counsel for the Plaintiff at the commencement of the hearing acknowledged that Orders (iii) and (v) are sought in the alternate. The Orders sought in the Notice of Motion are the same as the Orders sought in the statement of claim.

In support of the Notice of Motion, the plaintiff relies on an affidavit sworn on the 16^th May 2005 and a further affidavit sworn on the 22^nd July and 4^th October 2005. The Motion is opposed and the defendant relies upon an affidavit of the 22^nd July 2005 sworn by Ratu Sakiusa Tuisolia.

The facts very briefly are that the plaintiff’s employment was terminated by the defendant as a result of an overpayment to employees of the defendant of COLA payments. It is argued that the plaintiff’s employment was terminated pursuant to the terms of an employment agreement and that he was given 3 months pay in lieu of notice at the time of termination.

The plaintiff submits that the principles as expressed in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396 apply in the circumstances of this application.

At page 406 of American Cyanamid v Ethicon Lord Diplock said:

“My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19^th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s

undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

His Lordship went on at page 407 to say:

“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”

The relief sought by the plaintiff is by way of mandatory injunction. The relevant considerations with respect to the granting of a mandatory injunction were considered by the House of Lords in Redland Bricks Ltd v Morris & Another [1969] 2 All ER 576 at page 579, Lord Upjohn set forth four principles which he described as being laid down in general terms. These are:

“1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that grave damage will accrue to him in the future.

2. Damages will not be a sufficient or adequate remedy if such damage does happen.
   
3. The question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account where the defendant has acted wantonly and quite unreasonably.
   
4. If the injunction is granted, the order must be clear in its terms for the defendant to know exactly in fact what he has to do.”
   

These principles been adopted by the Fiji Court of Appeal on several occasions but perhaps most reasonably by Mr. Justice Ellice, sitting as a single judge of appeal in Coral Sun Limited v Fiji Sugar and General Workers Union.

When one applies the facts as before the Court to the authorities to which I have referred, it is clear that there is indeed a serious issue to be tried. It is clear that the plaintiff has shown a very probability on the facts that damage will accruing or is accruing but on both the Redland Brick Ltd v Morris & Another and American Cyanamid v Ethicon Ltd, it is necessary to ascertain if damages were an adequate remedy.

The Courts have in the past determined and I think it is clear that in cases of wrongful dismissal, damages indeed are an adequate remedy and are perhaps the more normal, if one can use that term, remedy than reinstatement.

I am therefore of the view that in the present case damages indeed are an adequate remedy. That being so leads to the conclusion that the relief sought cannot be granted at this time and accordingly the Notice of Motion is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
24 October 2005