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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 780 of 2000
BETWEEN
DANIEL TALI & 116 OTHERS
Plaintiffs
AND
CARL MALPO,
Commander of Papua New Guinea Defence Force
First Defendant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani : Sevua, J
2000 : 8th November
2001 : 8th March
DEFENCE FORCE – Repatriation of troops – Discharged servicemen claiming payment of entitlements under Manual of Personnel Administration.
INJUNCTION – Restraint on defendant from enforcing repatriation – Whether injunction should continue or be dissolved – Principles of law on injunction reaffirmed – Injunction dissolved.
Cases cited:
Gobe Hongu Ltd. v. National Executive Council & Ors., N1920, 8th June, 1999, unreported.
JF Stratford & Son Limited v. Lindley [1964] 3 All ER 102.
American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396.
Employers Federation of Papua New Guinea v. PNG Waterside & Seamens Union & Ors; N.393, 11th October, 1993, unreported.
Craftworks Niugini Pty Ltd v. Allan Mott, SC527, 27th June, 1997, unreported.
Haro Yamis v. Viviso Seravo & Ors, unnumbered and unreported 9th November, 1998.
Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 59.
Mt Hagen Airport Hotel Pty Ltd v. Gibbes & Anor [1976] PNGLR 216.
Mauga Logging Company Ltd v. South Pacific Oil Palm [1977] PNGLR 80.
Robinson v. National Airlines Commission [1983] PNGLR 476.
Counsel:
A. Amet Jr for Plaintiffs
Capt. N. Devete for First Defendant
H. Polume & J. Palek for Second Defendant
8th March, 2001
SEVUA, J: The principal plaintiff, Daniel Tali, and one hundred sixteen other members and former members of the Papua New Guinea Defence Force are claiming a declaratory order, an injunction, damages and costs in this action. The writ of summons was issued on 5th July, 2000, as a result of a Signal reference LOG ADMIN 01514 issued on 8th June, 2000 and codenamed "Operations Lukim Ples", which was aimed at repatriating discharged members of the Defence Force.
The damages aspect of this claim relates to what the plaintiffs claim to be their final entitlements from the Force. The substantive issues are yet to be determined.
However, on 7th July 2000, the Court granted an interim injunctive order, which, amongst other orders, restrained the defendants, their servants and agents from enforcing Operation Lukim Ples, until further orders. Since then the matter has been to Court several times and the original order of 7th July also varied.
On 8th November last year, I heard submissions from both parties on whether the injunction should continue or be dissolved. This decision therefore relates only to that issue.
At this juncture, let me refer to the schedule of names (annexed to the writ) of all the one hundred seventeen plaintiffs. A careful comparison of that schedule to the nominal roll, Annexure "B", to the affidavit of Daniel Tali, sworn on 15th February 2001, reveals a few anomalies, which remain unrectified. Firstly, Wapo, B., No.115, has the same rank and regimental number as Bomai, A, No. 53. Bomai Wapo is the same person as Andrew Bomai. One of the plaintiffs, E.T. Chapon was deceased prior to the commencement of this action. Thirdly, Lt. Col. Kukume, named in the nominal roll is not listed in the Schedule to the writ therefore he could not be a plaintiff thus has no standing. Those facts were not revealed by the principal plaintiff.
In respect of the injunction itself, the affidavit of Colonel Ben Norrie clearly reveals that the position as portrayed by Daniel Tali at the time the injunction was granted has actually changed. I am satisfied from the affidavit of Colonel Norrie that the circumstances as portrayed by the principal plaintiff are no longer the same, and I accept Colonel Norrie’s evidence in his affidavit sworn on 7th November, 2000.
From that affidavit, I am satisfied that twenty three (23) of the plaintiffs have been re-enlisted into the Force therefore, they ought not to be plaintiffs in these proceedings. These servicemen are:-
No. | Regimental No. | Rank | Name |
1. | 83595 | Lt. Col. | S. Maiasa |
2. | 87912 | Lt. Col. | I. Lai |
3. | 86002 | Major | G. Aiede |
4. | 83382 | Lt. | J. Keri |
5. | 83490 | CWO | J. Pakungle |
6. | 84131 | CWO | G. Tirip |
7. | 82121 | WO | L.M. Gori |
8. | 83554 | WO | R. Mua |
19. | 85637 | WO | G. Kale |
10. | 82572 | Sqt | T. Haro |
11. | 83519 | Sqt | G. Namuni |
12. | 86054 | Sqt | W. Ereman |
13. | 86189 | Sqt | E. Joseph |
14. | 84864 | WO | J. Namuri |
15. | 83053 | Cpl | L. Kerry |
16. | 84137 | WO | K. Koivaku |
17. | 81121 | Cpl | D. Aigal |
18. | 85363 | Cpl | S. Kraembi |
19. | 83393 | CWO | C. Nuembui |
20. | 84531 | Sqt | D. Rewait |
21. | 82159 | Sqt | B. Nohou |
22. | 86757 | Sqt | S. Kasu |
23. | 84067 | CWO | E. Tamai |
I am also satisfied that 84067 WO E.T. Chapon is deceased and therefore could not be a plaintiff in this case. That therefore means that out of the one hundred seventeen plaintiffs, twenty four should not be included as plaintiffs, leaving only ninety three servicemen.
Once again, let me refer to the affidavit of Colonel Ben Norrie. From that evidence, it appears that the following servicemen have already been discharged. Their particulars are as follows:-
No. | Regimental No. | Rank | Name | Record No. & Date of Discharge |
1 | 86160 | WO | K. Nanele | PERS (DORM) 00456 15th Feb. 1999. |
2 | 83376 | WO | J. Papau | PERS (DORM) 00456 15th Feb. 1999. |
3 | 83019 | WO | F. Esrom | PERS (DORM) 00456 15th Feb. 1999. |
4 | 84134 | WO | R. Sibu | Discharge Notice 04012. 10th Dec. 1999. |
5 | 82625 | Sqt | S. Patgawi | PERS (DORM) 00456 15th Feb. 1999. |
6 | 86783 | Sqt | L. Yangun | Discharge Notice 02879. 15th Dec. 1997. |
7 | 83245 | Sqt | J. Ejiropa | Discharge Notice 00438. 18th Feb. 2000. |
8 | 82596 | Sqt | S. Venove | Discharge Notice 00438. 18th Feb. 2000. |
9 | 83176 | Sqt | K. Kaman | PERS (DORM) 00456 15th Feb. 1999. |
10 | 83768 | Sqt | C. Krila | Discharge Notice 012129, 23rd July. 1998. |
11 | 83618 | Sqt | S. Kameli | Discharge Notice 00245. 22nd Jan. 1999. |
12 | 82930 | Cpl | D. Toka | PERS (DORM) 00456 15th Feb. 1999. |
13 | 82411 | Cpl | T. Imora | PERS (DORM) 00456 15th Feb. 1999. |
14 | 82390 | Cpl | A. W. Bomai | PERS (DORM) 00435. 18th Feb. 2000. |
15 | 82575 | Cpl | O. Laeka | PERS (DORM) 00456 15th Feb. 1999. |
16 | 83526 | Cpl | A. Ipang | PERS (DORM) 00435. 18th Feb. 2000. |
17 | 82352 | Cpl | D. Namb | Discharge Notice 02794, 3rd Nov. 1999. |
18 | 83858 | Cpl | J. Popiakon | PERS (DORM) 00456 15th Feb. 1999. |
19 | 82759 | Cpl | S. Kaba | PERS (DORM) 00456 15th Feb. 1999. |
20 | 87788 | Sqt | A. Kori | Discharge Notice 01943, 1st July, 1998. |
21 | 87652 | Sqt | J. Kondi | PERS (DORM) 00456 15th Feb. 1999. |
22 | 83471 | Sqt | D. Finusue | Discharge Notice 03086, 8th Dec. 1999. |
23 | 82222 | Cpl | V. Valeba | PERS (DORM) 00456 15th Feb. 1999. |
24 | 85728 | Sqt | E. Wesley | PERS (DORM) 00456 15th Feb. 1999. |
25 | 86995 | WO | J. Lovika | PERS (DORM) 00456 15th Feb. 1999. |
26 | 82427 | Cpl | G. Meve | Discharge Notice 01771, 6th July, 2000 |
27 | 84011 | Cpl | P. Piteari | Discharge Notice 00437, 4th Feb. 1999. |
28 | 81957 | WO | L. Chalapan | PERS (DORM) 00456 15th Feb. 1999. |
29 | 83511 | Cpl | J. Ko | PERS (DORM) 00456 15th Feb. 1999. |
Warrant Officer 81859 L. Semesoa was discharged upon reaching retirement age, per Discharge Notice 00435 on 18th February, 1999. A number of servicemen who are also plaintiffs have been discharged by voluntary resignation. They are:
No | Regimental No. | Rank | Name | Status |
1. | 85862 | Lt. Col. | P. Kakasek | Resigned. MS 024999 30th Sept. 1999. |
2. | 86001 | Major | A. Ah Chee | Resigned. MS 01957 3rd Aug. 1999 |
3. | 86726 | Capt. | H. Duma | Resigned. MS 01670 22nd June, 2000. |
The following servicemen were discharged voluntarily, that is, at their own requests.
No. | Regimental No. | Rank | Name | Record No. & Date of Discharge |
1 | 88560 | Major | E. Connors | MS 012217, 21st Aug. 1999. |
2 | 83627 | CWO | D. Tali | Discharge Order 126/94 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
3 | 83861 | CWO | P. Kafataro | Discharge Order 215/98 effective 6th July, 1999 |
4 | 83475 | CWO | W. Tali | Discharge Order 232/98 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
5 | 84272 | WO | G. Siyo | Discharge Order 223/98 effective 31st May, 1999. |
6 | 83512 | WO | W. R. Pedro | Discharge Order Jul. 1999 effective 31st Dec. 1999. |
7 | 84306 | WO | J. Meakoro | Discharge Order Jan. 2000 effective 31st Aug. 2000. |
8 | 84779 | WO | S. Kaikere | Discharge Order 238/99 effective 7th July, 2000. |
9 | 84032 | WO | T. Ute | Discharge Order 171/98 effective 31st Dec. 1999. |
10 | 84325 | Sqt | S. Sakiki | Discharge Order 180/99 effective 27th June, 2000. |
11 | 84539 | Sqt | B. Deregi | Discharge Order 202/98 effective 31st Dec. 2000. |
12 | 86173 | Sqt | J. Pangora | Discharge Order 71/97 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
13 | 84032 | Sqt | H. Chouka | Discharge Order 260/99 effective 30th June, 1999. |
14 | 86649 | Sqt | F. Damo | Discharge Order 201/98 effective 30th June, 2000. |
15 | 83393 | Sqt | D. Makaul | Discharge Order 197/98 effective 31st Dec. 1999. |
16 | 88584 | Cpl | C. Murray | Discharge Order 43/98 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
17 | 87726 | Cpl | P. Pipi | Discharge Order 26/98 effective 23rd July, 1999. |
18 | 82232 | Cpl | A. Avoa | Discharge Order 143/95 effective 30 June, 99 PERS (DORM) 00456 15th Feb. 1999. |
19 | 84540 | Cpl | S. Karava | Discharge Order 52/97 effective 31st August, 1999. |
20 | 85800 | Cpl | P. Mai | Discharge Order 22/98 effective 30th June, 1999. |
21 | 83446 | Cpl | S. Pina | Discharge Order 101/99 effective 29th Oct. 2000. |
22 | 82016 | Cpl | W. Mutuaina | Discharge Order 209/98 effective 30 Sept. 1999. |
23 | 83815 | Cpl | R. Yendegle | Discharge Order 86/99 effective 31st Dec. 1999. |
24 | 84707 | Cpl | G. Kendena | Discharge Order 144/95 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
25 | 84762 | Cpl | J. Gene | Discharge Order 95/99 effective 31st Dec. 1999. |
26 | 83535 | Cpl | G. Yuyugao | Discharge Order 14/95 effective 30th June, 1999. PERS (DORM) 00456 15th Dec. 1999. |
27 | 88161 | Cpl | P. Iop | Discharge Order 80/98 effective 30th April, 2000. |
28 | 84978 | Sqt | D. Kuring | Discharge Order 55/2000 effective 30th Sept. 2000. |
29 | 82851 | Sgt | R. Arisa | Discharge Order 118/2000 effective 22nd June, 2000. |
30 | 84150 | Sqt | E. Ako | Discharge Order 46/2000 effective 31st Aug. 2000. |
31 | 82299 | Cpl | B. Malagau | Discharge Order 3218/98 effective 2nd July, 1999. |
32 | 84598 | Cpl | W. Musive | Discharge Order 85/99 effective 31st Dec. 1999. |
33 | 85351 | Sqt | S. Pouta | Discharge Order 14/99 effective 31st Dec. 1999. |
34 | 83493 | Sqt | D. Kumabore | Discharge Order 228/99 effective 2nd Jan. 2000. |
35 | 85215 | Sqt | J. Sioni | Discharge Order 47/98 effective 30th June, 1999. PERS (DORM) 00456 15th Feb. 1999. |
36 | 84920 | Sqt | N. Kwela | Discharge Order 183/98 effective 30th June, 1998 PERS (DORM) 00456 15th Feb. 1999. |
37 | 81960 | CWO | V.K. Jarope | Discharge Order 221/98 effective 31st May, 1999. |
38 | 84953 | L. Cpl | B. Yamandi | Discharge Order 158/98 effective 31st July, 1998. |
39 | 84737 | Sqt | K. Esau | Discharge Order 175/98 effective 31 Dec 1999, PERS (DORM) 00456 15th Feb. 1999 |
40 | 84748 | Sqt | L. Wombe | Discharge Order 52/2000 effective 31st Aug. 2000. |
41 | 84344 | Sqt | D. David | Discharge Order 122/2000 effective 30th Dec. 2000. |
42 | 84218 | Sqt | G. Apu | Discharge Order Feb. 1999 effective 31st Dec. 1999. |
43 | 83971 | WO | T. Yambei | Discharge Order 195/99 effective 30th Dec. 1999. |
44 | 86789 | Sqt | N.D. John | Discharge Order 54/97 effective 31st July, 1999. |
45 | 85693 | Sqt | J. Koromas | Discharge Order 38/2000 effective 30th Sept. 2000. |
46 | 83568 | Pte | D. Oroho | Discharge Order Aug. 1999 effective 31st Dec. 1999. |
47 | 87924 | L. Cpl | M. Hambuga | AWOL/illegal absentee Discharge Order 264/99 effective 31st Oct. 1999. |
There are servicemen who were discharged on medical grounds, at their own requests. These are:-
No. | Regimental No. | Rank | Name | Record No & Date of Discharge |
1 | 85999 | Capt. | P. Sudan | Discharge Order 2499/99.MS02499 30th Sept. 1999 effective 1st Oct. 1999 |
2 | 84135 | WO | L. Masuni | Discharge Order 169/97 15th Aug. 2000 effective 30th April, 2000. |
3 | 83604 | Sqt | E. Rankine | Discharge Order 208/98 13th Nov. 1998 effective 31st Dec. 2000. |
4 | 83608 | Cpl | E. Kaki | Discharge Order 248/99 18th Feb. 2000 effective 30th April, 2000. |
5 | 83083 | Cpl | J. Gomu | Discharge Order 128/95 14th Sept. 1995 effective 31st Dec. 1998. |
6 | 83288 | Cpl | H. Uvilime | Discharge Order 34/98 PERS (DORM) 00456 15th Feb. 1999 effective 30th June, 1999. |
7 | 83275 | L. Cpl | J. Bari | Discharge Order Mar. 1998 Rec.00143 21st Jan. 1998 effective 31st Dec. 1998. |
8 | 85063 | L. Cpl | B. Pile | Discharge Order 106/99 Rec. 01309, 31st May, 1999 effective 31st Dec. 1999. |
9 | 83631 | Cpl | A. Kalapa | Discharge Order 156/99 Rec. 01301 31st May, 1999 effective 30th June, 1999. |
10 | 82951 | WO | H. Dadada | Discharge Order Jan. 1999 Rec. 00049 5th Jan. 1998 effective 31st Dec. 1999. |
11 | 85760 | WO | T. Garami | Discharge Order 21/2000 Rec. 01736 5th July, 2000 effective 31st July, 2000. |
12 | 85625 | Cpl | K. Yowape | Discharge Order 234/99 Rec. 02693 20th Oct. 1999 effective 10th Jan. 2000. |
At this juncture, I wish to allude to the affidavit evidence of some of the plaintiffs in support of their claim for an injunction, namely the affidavits of Sgt. Kasu, Major Connors, Sgt. Ereman, Sgt. Kori, WO Mua, WO Sibu, WO Lovika and WO Tali. Having read those affidavits, I conclude that their evidence do not support their claim for an injunction. Except for Major Connors who said he had applied for discharge which was approved and was to be effective on 31st December, 1988; the others do not say in their affidavits that they have been discharged. There is no evidence of that so why are they seeking an injunction? I consider that factually and legally they could not claim an injunction.
I have already adverted to the affidavit of Colonel Norrie and my acceptance of his evidence. In my view, as the Chief of Personnel, his evidence is more reliable than the plaintiffs, because he is in a position where personnel issues relating to each of the plaintiffs come directly under his control and jurisdiction, and his records of personal matters would be more reliable and accurate than the plaintiffs would know.
One salient feature of this case is the fact that, despite various orders for discharge of some of these plaintiffs, they have remained on the payroll because the Defence Force could not afford to repatriate them due to financial incapacity, until the end of last year when the World Bank provided funding for the repatriation exercise. Those plaintiffs failed to appreciate the fact that even though they have been discharged, they were still receiving an income at the expense of the Defence Force, taxpayers and the country.
After perusal of the affidavits of Colonel Norrie, Lt. Col. Mai and the principal plaintiffs, and having identified the status of the one hundred seventeen plaintiffs, I conclude that the application for the restraining order was misconceived, on the basis of both fact and law. It should therefore be dissolved.
The law governing the granting of injunction is clear in this jurisdiction. The plaintiff/applicant must establish that he has a right or interest in law to protect by injunctive orders. If he fails to show that, he is not entitled to an injunction.
A line of authorities come quickly into mind when considering the law on injunction. The relevant principles in this area of law are reaffirmed in my unreported judgment, Gobe Hongu Ltd. v. National Executive Council & Ors., N.1920 of 8th June, 1999, wherein I cited and applied a number of authorities, JF Stratford & Son Limited v. Lindley [1964] 3 All ER 102; American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396, Employers Federation of Papua New Guinea v. PNG Waterside & Seamens Union & Ors; N393, 11th October, 1993 unreported; Craftworks Niugini Pty Ltd v. Allan Mott, SC527, 27th June, 1997, unreported; Haro Yamis v. Viviso Seravo & Ors, unnumbered and unreported judgment of 9th November, 1998; Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 59; Mt Hagen Airport Hotel Pty Ltd v. Gibbes & Anor [1976] PNGLR 216; Mauga Logging Company Ltd v. South Pacific Oil Palm [1977] PNGLR 80 and Robinson v. National Airlines Commission [1983] PNGLR 476.
The factors that are normally considered as to whether an injunction should or should not be granted are these; is there a serious question to be tried?; is there a real prospect of success by the plaintiff/applicant for an injunction at the trial?; whether the balance of convenience favours the granting of the injunction, whether damages is an adequate remedy if the applicant fails, and undertaking as to damages, and so forth.
The plaintiffs pleaded the Manual of Personnel Administration, which is a subsidiary regulation of the Defence Force. They claimed in paragraph 12 of their statement of claim that "the defendants are liable for the payment of certain entitlements to the plaintiffs upon their discharge by virtue of their retrenchment from the Defence Force" (my emphasis). I specifically allude to that paragraph because it is my considered opinion that the plaintiffs have misconceived their claim.
Whilst that issue is for the substantive hearing, it is my view that, it is also relevant in this application because it relates to the question of balance of convenience. The affidavits of the plaintiffs that I have referred to earlier, mentioned a "retrenchment" exercise that was promised to some troops by former Commander, General Singirok, and the present Commander, General Malpo. However, those references are mere comments. There is no conclusive evidence that all these plaintiffs were discharged on a retrenchment package. In fact, there is evidence which I accept that, the proposed retrenchment in the public service was put on halt because the Government could not afford it. That simply means that there has been no retrenchment of troops from the Defence Force.
On that basis, I consider that the plaintiffs were discharged at their own requests, some by resignation, and some at their requests on medical grounds. They could not correctly claim that they are entitled to be paid monetary entitlements, by the Defence Force pursuant to the provisions of the Manual of Personnel Administration. There is no evidence at all that these plaintiffs were retrenched. I therefore find that those plaintiff’s who were discharged, were not retrenched because there has never been a retrenchment carried out by the Defence Force at the material time. I find that they were discharged not retrenched. However, whether they were properly discharged is another issue, which does not arise at this stage, but will arise at the trial proper.
Furthermore, after a careful perusal of Chapter 58 of the Manual of Personnel Administration, I am unable to find any provision which directly relates to the allegation in paragraph 12 of the statement of claim that I have adverted to. I can find no provision which relates to payment of entitlements upon retrenchment. Had there been a provision in existence, it would have been the legal basis for the injunction, and the injunction would continue, but then it would depend on whether or not there had been a retrenchment. I have already found as a fact that there was no retrenchment.
In any event, I consider that the plaintiffs’ submissions on retrenchment is spurious and misconceived. As I said, they have not been retrenched therefore they cannot claim that they are entitled to certain entitlements upon retrenchment. Counsel for the plaintiffs have not referred the Court to any specific provision of the Manual or the Defence Act on this issue.
If the plaintiffs thought they were entitled to be paid entitlements at the time of their discharge because of their misconceived idea that the Manual of Personnel Administration provide for this, they are not entitled to continue the injunction. I consider that their remedy would be in damages for loss of entitlements, whether they are retrenched or discharged. The principle that I alluded to earlier on is applicable. That is, they could not continue the injunction because their remedy is damages. They cannot, in my view, protect their right to claim damages, by continuing the injunction because that is not the law.
The plaintiffs’ claim for money in lieu of notice (MILON); in lieu of leave (MILOL); in lieu of furlough (MILOF); ex gratia payments, resettlement allowances and repatriation expenses are claims of monetary compensation therefore they would normally be claims for damages. It is trite law that you are not entitled to an injunction where your claim is for damages.
Accordingly, it is my firm view that the plaintiffs are not entitled to continue the injunction granted on 7th July, 2000. Their claim for damages, which I have adverted to above, is not a right that needs to be protected by injunction. Therefore it is the judgement of this Court that the balance of convenience did not, and does not now, favour the plaintiffs so that the injunction can continue.
As I have found, those plaintiffs in the categories of voluntary resignations, voluntary discharge and discharge on medical grounds, have been discharged. I am therefore of the view that since they have been discharged, they are no longer entitled to the barracks accommodation. Their right to reside in accommodation provided by the Defence Force is a right or entitlement which arise by virtue of their continued employment as servicemen in the Defence Force. That right or entitlement terminates at the time they are terminated, discharged, retrenched or they resigned, unless the Defence Force permits them to continue living in their barracks accommodation.
If they claim non-payment of entitlements, they have the right to sue for damages, however they have no right to remain in the barracks as they have been discharged and would no longer be considered as serving members of the Defence Force.
Whilst I consider that some of these plaintiffs have some legal status in this dispute, ie. a claim for payment of entitlements, there is evidence that most of them have their benefits or entitlements calculated and are ready to be paid subject to this decision. There is also evidence that some have already been paid their entitlements. That is another basis for dissolving the injunction. That would seem to dispose of the issue of a good arguable case and they cannot seek to continue the injunction for that reason. In the light of Col. Norrie’s evidence, I am of the view that the plaintiffs do not have a serious issue at stake therefore it would be quite inappropriate to seek to continue the injunction.
The grant of an injunction is discretionary. The Court must balance the interest of the plaintiff/applicant against that of the defendant. One of the fundamental principle on injunction is that the Court ought to consider whether it is reasonable to impose a restraint on the defendant, or whether damages would be an adequate compensation. I consider that, as the plaintiffs claim is one for damages, damages would be an adequate compensation. It is therefore unnecessary to continue the injunction.
I am of the view that even if the plaintiffs have an arguable case, the balance of convenience does not favour them, on the basis that, if they succeed, they would be adequately compensated by damages for their loss. On that basis, no injunction should be granted. However, in this case, as the injunction was granted ex parte, I am of the view that on the question of balance of convenience it does not favour them, therefore the injunction should be discharged.
When I consider all the matters relevant to the balance of convenience, and the relative strength of each party’s case, I would tip the balance in favour of the defendants.
For these reasons, I rule that the interim injunction granted on 7th July, 2000, be dissolved and that the Defence is at liberty to repatriate those ninety two plaintiffs whom I have found to have been discharged either by voluntary resignation, voluntary discharge or discharged on medical grounds. For purpose of clarity, this category consists of those plaintiffs listed on pages 6 to 18 inclusive and including WO L. Semesoa who was discharged upon reaching retirement age.
The ninety two plaintiffs have been discharged and they are no longer entitled to remain at the barracks accommodation. The Defence Force is at liberty to repatriate them if it so desires. Out of the remnant of twenty five, E.T. Chapon is deceased and Andrew Bomai also known as Bomai Wapo is double listed on the Schedule to the writ. The balance of twenty three have been re-enlisted, therefore they cannot be plaintiffs in this case.
The final matter for the Court’s consideration is costs. I am of the view that costs should follow the event. However, I need to explain one or two matters relating to costs. One of the plaintiffs is deceased and the principal plaintiff ought to have known about it, however, the deceased’s name was included in the schedule to the writ and the authority. In my view, the plaintiff has no authority to represent a deceased person. I therefore consider that the principal plaintiff, Daniel Tali, must pay the deceased’s costs due to the defendants.
Similarly, the twenty three plaintiffs who have been re-enlisted ought not to have been in the writ as plaintiffs. Since they have been re-enlisted they could not be plaintiffs in this case. The principal plaintiff, Daniel Tali, must also pay their costs.
The final judgment of the Court is therefore that the interim injunction granted on 7th July, 2000 is dissolved. The ninety two plaintiffs
who have been identified as having been discharged including, Daniel Tali, shall pay the defendants costs of this application. The
Court further orders that the principal plaintiff, Daniel Tali, pays the costs to be borne by the deceased, E.T. Chapon, and the
twenty three re-enlisted servicemen.
__________________________________________________________________________
Lawyer for Plaintiffs : Maladinas Lawyers
Lawyer for First Defendant : S. Endehipa
Lawyer for Second Defendant : Solicitor General
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