BA Provincial Holding Company Ltd v BA Provincial Council [2006] FJHC 58; HBC225.2006 (2 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 225 OF 2006

NO. 148 OF 2006

BETWEEN

BA PROVINCIAL HOLDING COMPANY LIMITED
1st Plaintiff

THE BOARD OF DIRECTORS OF BA PROVINCIAL HOLDINGS COMPANY LIMITED
2nd Plaintiff

ISIMELI BOSE
3rd Plaintiff

AND

BA PROVINCIAL COUNCIL
1st Defendant

THE PURPORTED BOARD OF DIRECTORS OF BA PROVINCIAL HOLDINGS COMPANY LIMITED
2nd Defendant

RATU TEVITA MOMOEDONU
3rd Defendant

Appearances: Messrs Law Naivalu

Hearing: 1 & 2 August
Decision: 2 August 2006

JUDGMENT

[1] Late yesterday afternoon, an ex-parte notice of motion was filed by the plaintiffs seeking the following orders:

(i) A declaration that the purported meeting held on 31st July 2006 of the 1st Plaintiff Company be declared null and void.

(ii) A delaration that the removal of the 2nd Plaintiff by the 2nd and 3rd Defendants the by virtue of the purported Resolution of the Minutes of the 2nd and Third Defendants meeting held on 31st July 2006 be null and void.

(iii) The 2nd and 3rd Defendants be restrained from performing any duties for and on behalf of the 1st Plaintiff Company.

(iv) That the 2nd and 3rd Defendants either by themselves and/or their servants and/or their agents be restrained from entering into the business premises of the 1st Plaintiff Company situated at Rogorogoivuda House, Tavewa Avenue, Lautoka and further be restrained from interfering with the operation of the 1st Plaintiff Company business interests in any manner whatsoever.

(v) That the Defendants either by themselves and/or their servants and/or their agents be restrained from interfering with and obstructing the 2nd Plaintiff in any manner howsoever from performing their duties and obligations as the Board of Directors of the 1st Plaintiff Company.

(vi) That the Defendants either by themselves and/or their servants and/or their agents be restrained from interfering with and obstructing the 3rd Plaintiff in any manner howsoever from performing his duties and obligations as the Chief Executive Officer of the 1st Plaintiff Company.

(vii) The Defendants do forthwith at all times maintain a 200 meter radius distance from the 3rd Plaintiff and from the business place of the 1st Plaintiff Company situated at Rogorogoivuda House, Tavewa Avenue, Lautoka.

(viii) That the officers of Fiji Police Force to assist in the enforcement of the Orders, if necessary.

(ix) Damages.

(x) The Defendants do pay the costs of this action on Solicitor/client indemnity basis.

(xi) Any further and/or other relief that this Honourable Court deems just and expedient in the circumstances.

[2] I heard learned counsel for the plaintiffs a little after 4 pm yesterday. It was apparent to me that counsel had not come prepared to argue the legal basis of the orders sought. I indicated to him that I couldn’t possibly grant the declarations sought on an ex-parte basis. Counsel maintained that the orders prayed for including the declaratory orders were being sought on the ex-parte application. I indicated to him that I would need to hear legal argument supporting the propositions he was relying on.

[3] The hearing was adjourned to this morning. This morning, without leave being sought or granted, the plaintiffs filed an amended ex-parte notice of motion. The 3rd named plaintiff, Mr. Bose, filed a supplementary affidavit in support of the application. The amended application seeks the following additional orders:

(xiii) That the Defendant, its servants and agents be restrained from interfering with or removing or disrupting the contract of service and the employment of the Plaintiff with the Defendant pending further Order.

(xiv) That the Defendant, its servants and agents be restrained from removing from the premises of the Defendant as its registered office at Level 3, Rogorogo-i-vuda House, Tavewa Avenue, Lautoka any equipment computer programs and records or items being the property of the 1st plaintiff.

(xv) That the Defendant, its servants and agents be restricted from interfering with the 1st plaintiff’s bank accounts and financial facilities until further Order.

(xvi) That the Defendant, its servants and agents be restrained from notifying orally by whatever means or in writing by whatever means or by facsimile transmission the news media or through any dissemination to a or any third party as to the purported suspension of the 1st and 2nd plaintiff in the circumstances including the re-structuring of the 1st plaintiff, if any.

(xvii) That the Defendant, its servants or agents be restrained from implementing all resolutions passed at the meeting of the Defendant held on 31st July 2006 until further Order.

(xviii) Any further and/or other relief that this Honourable Court deems just and expedient in the circumstances.

[4] In response to my suggestion that he file skeleton written submissions this morning, leaned counsel has done so. These have been considered with the three supporting affidavits now before the Court.

Consideration of applications

[5] An interim injunction provides relief that is both temporary and discretionary. Before granting such relief, the Court is required to carefully balance or weigh the needs of a plaintiff against the needs of a defendant. The starting point for the consideration as to whether the order sought should be granted are the principles expressed in American Cyanamid –v- Ethicon Limited [1975] UKHL 1; [1975] A.C. 396. At pages 406 & 407 of the judgment Lord Diplock expresses the principles as follows:

"The object of the interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve 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 will resolve in the defendant’s favour at the trial. The Court must weigh one need against the other and determine where "the balance of convenience lies."

[6] On page 407 Lord Diplock said:-

"It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits 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. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of interlocutory injunction was that "it aided the court in doing that which was its great object viz. abstaining from expressing any opinion upon the merits of the case until the hearing": Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."

[7] It is upon this basis that I consider the applications before me.

[8] The fundamental requirements might be summarized as:-

(i) Is there a serious question to be tried?

(ii) Are damages an adequate remedy?

(iii) Where does the balance of convenience lie?

Per Connors J in Air Pacific Limited –v- Airports Fiji Limited (Civil Action HBC 418 of 2003L)

Serious question to be tried

[9] A plaintiff will fail if he cannot show that he has "any real prospect of succeeding in his claim for a permanent injunction at the trial": American Cyanamid supra at 408A.

[10] In regard to prospect of success, Sir Robert Mcgarry V. C in Mothercare Ltd –v- Robson Books Ltd [1979] FSR 466 at 474 cited in Goldrein & Wilkinson Commercial Litigation: Pre-Emptive Remedies Sweet & Maxwell 1991 p. 106 said:

"All that has to be seen is whether the plaintiff has prospects of success which in substance and reality exist. Odds against success no longer defeat the plaintiff, unless they are so long that the plaintiff can have no expectation of success, but only a hope. If his prospects of success are so small that they lack substance and reality, then the plaintiff fails, for he can point to no question to be tried which can be called "serious" and no prospect of success which can be called "real".

[11] In the context of this dicta, I must decide the likelihood of success of the plaintiffs claim against the defendants.

[12] Learned counsel submits that there are three serious questions to be tried. These are considered in the order of the submission made.

(i) That the meeting held at Viseisei Village on 31 July 2006 is an improperly constituted and thus illegal meeting and hence all resolutions arising therefrom are null and void and of no legal effect.

[13] Learned counsel submits that the meeting does not conform and hence is in breach of Articles 53, 54 and 55 of the first plaintiff’s Articles of Association.

[14] Aside from merely stating the clauses relied on, there was no legal submission made as to the legal principles applicable to those facts. The sentiments expressed by Lyons J about submissions come to mind:

"The first task of any lawyer making submissions is to assemble the relative facts. The facts are those matters which distinguish each case from any other. Having assembled the relative facts and pointed them out to the Court, the legal principles applicable to those facts must then be identified. Having performed that task, the submissions surrounding both the law applicable and the facts are then made..."

Dhan Kaur & Anr. –v- Tevita Mara Vitukawalu & Others (Unreported Civil Action No. HBC 0233 OF 1993l, P.4)

[15] Of importance, the evidence relied on by the plaintiff’s is introduced in the written submissions filed. The plaintiffs have not put before the Court the 1st plaintiff’s Articles of Association. Learned counsel’s reliance on evidence not properly before the Court is both irregular and improper. In the circumstances and given the absence of legal authority supporting the contention made, I am not persuaded. Nevertheless there is some merit in the argument that there are serious issues to be determined concerning the validity or otherwise of the 31 July 2006 meeting, and the resolutions made at the meeting.

(ii) That ensuing from the said meeting the removal of the second plaintiff was improper and thus illegal.

[16] Again reliance is placed on evidence not properly before the Court. My conclusions pertaining to the first issue above are repeated here. Not withstanding, I am satisfied that there are serious issues to be tried concerning the removal of the board of directors of Ba Provincial Holdings Company Limited.

(iii) That ensuing from the said meeting the removal/suspension of the third plaintiff was improper and thus illegal.

[17] Learned counsel has submitted that the removal of Mr. Bose from office and the subsequent appointment of Ratu Tevita Momoedonu in his place does not conform with and hence is a breach of clause 23 of his employment contract with Ba Provincial Holding Company Limited. On the face of the documentation before the Court, it appears that there is a serious issue to be tried regarding the suspension of Mr. Bose’s employment contract.

In this regard, I cite the ruling of Fatiaki. J as he then was in Suva City Council –v- Joeli Kalou [Civil Action 121 of 1992 at p. 2]:

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] 2WLR 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]

[18] In my view it is extremely unlikely that Mr. Bose will succeed in his claim for a permanent injunction at the trial. His remedy is sound only in damages.

Are damages an adequate remedy

[19] In his submission learned counsel referred me to the case Finegan –v- Technical Education Centre Pty Ltd. [1991] FJMC 62 to support his contention that the interim injunction relief sought be granted. That case is clearly not supportive authority – it would support the defendants had I heard the application inter parte.

Byrne J adopted the following principles in that judgment:

"The general rule is that the Court will not order specific performance of contracts of employment. If there is a wrongful termination by one side the remedy of the other party is in damages only. That has been the law for a very long time: per Lord Denning MR in Chappel & Others –v- The Times Newspaper Limited & Others [1975] 2 ALL ER 233.

Even assuming that the plaintiff’s complaint of irregularities is correct, this is not a case in which an interlocutory injunction ought to be granted. I say that for the reason that the irregularities can all be cured by going through the proper process and the ultimate result would inevitably be the same. In Browne – v- La Trinidad (1887) 37 D 1 at p. 17 Lindley LJ said: "I think it is most important that the Court should hold fast to the rule upon which it has always acted, not to interfere for the purpose of forcing companies to conduct their business according to the strictest rules, where the irregularity complained of can be set right at any moment" per Plowman J in Bentley – Stevens –v- Jones & Others [1974] Ch. D. 653.

[20] In the latter case the plaintiff had been removed from the Board of Directors of a Company and claimed that this had been done irregularly. In my view similar considerations apply to this case.

[21] Learned counsel submits that damages would not be an adequate remedy if the injunction is not granted for the following reasons:

1. That the 2nd & 3rd plaintiffs would be unemployed due to their unlawful termination/removal and hence damages would accrue for their loss of income both present and future including aggravated, exemplary and junitive damages. That submission supports the contrary view – that damages are an adequate remedy. The remedy of specific performance which the plaintiff seeks by way of an interim injunction to continue employment is not available to them. The breach of contract may be unlawful but the plaintiffs are confined to their remedy in damages.

2. That the proposed MOU with Digicel Ltd will most definitely be terminated hence accruing loss and damages arising from the established and/or near establishment of Digicel personnel culminating in loss of employment and subsequent earnings for the 24 personnel.

[22] Again the submission shows that damages would be an adequate remedy. The alleged accruing loss and damages and loss of employment are losses capable of being ascertained and compensated for by an award in damages if the plaintiffs succeed at the trial.

3. That some of the present employees with the subsidiary companies face redundancy and/or termination by the 2nd and 3rd defendants resulting in loss and damages.

[23] My reasons above have equal application here. Clearly damages will suffice.

[24] Having found that damages would be an adequate remedy, I am not required to consider where the balance of convenience lies.

[25] The plaintiff’s applications fail for the reasons herein. The ex-parte motions herein are dismissed.

Gwen Phillips
JUDGE

At Lautoka
2 August 2006