Najike v Waninga [2022] PGNC 66; N9502 (16 March 2022)

N9502

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 31 OF 2022

BETWEEN:
DR. SAMUEL NAJIKE
Plaintiff

AND:
DR. TENG WANINGA
First Defendant

AND:
UNIVERSITY OF GOROKA
Second Defendant

Goroka: Mugugia, AJ
2022: 15^th, 16^th March

INJUNCTION – application for interim injunctive order against the Defendants to restrain them from forcefully removing the Plaintiff from the institutional house – requirements to satisfy - considerations - based on documents relied on, there are no serious questions to be tried - damages would be an adequate remedy if the interim order is not granted – the balance of convenience does not favour the grant of the interim order – interest of justice does not require that an interim order be made - application for interim injunctive order refused.

Cases Cited:

Ewasse Landowners Association Incorporated v. Hargy Oil Palms Ltd (2005) N2878.

Counsel:

G. Gendua, for the Plaintiff
No appearance for the Defendants

RULING

16^th March, 2022

1. MUGUGIA, AJ: The Plaintiff filed his originating summons on 10 March 2022. At the same time, he filed an urgent ex parte application pursuant to Order 4, Rule 49(5)(ii)(e), and or alternatively Order 12 Rule 1 of the National Court Rules, seeking an interim injunctive order to restrain the Defendants from forcefully removing or seeking to remove him from the institutional house he occupied at the University of Goroka campus. The Plaintiff’s application was made ex parte. In his motion, he sought an order for the requirement of service of the documents filed in this proceedings to be dispensed with pursuant to Order 1 Rule 7 of the National Court Rules. The Plaintiff’s motion is supported by three affidavits.
   
2. I heard submissions by Counsel representing the Plaintiff on 15^th March 2022 and reserved my ruling to the next day (16 March 2022). This is my ruling.
   

BACKGROUND

3. The evidence filed in Court by the Plaintiff shows that he is an academic at the University of Goroka (UoG). He was a member of the Top Management Team there. The Minister for Higher Education Hon. Wesley Raminai suspended the Top Management Team on 23 April 2021 and ordered for an investigation to be conducted into the affairs of the UoG. The Plaintiff was informed that the suspension period was for six (6) months. This lapsed on 23 October 2021. At the time of the suspension, the First Defendant was the interim Acting Vice Chancellor of the UoG. The Plaintiff deposed that he is not sure if the investigation has been completed. He was employed on a contract of employment and his contract will expire on 30 May 2022. The Plaintiff’s allegation is that the First Defendant claimed that he had no contract of employment, and that he was not a staff member of the UoG. Since there was no legally binding contract between him and the UoG from 2019, he was advised to leave the UoG. The Plaintiff claims that he has a contract that is valid and enforceable in law and this will expire on 30 May 2022, and the First Defendant does not have the power or authority to make substantive decisions including his ejectment from the UoG while he is still on suspension.
   

ISSUE

4. The issue is whether I should grant the interim injunctive order sought by the Plaintiff.
   

THE LAW

5. When dealing with applications for interim injunctions, the court should consider three main issues. First, are there serious questions to be tried or does the plaintiff have an arguable case? Secondly, does the balance of convenience favour granting the injunction? Thirdly, is an injunction necessary to do justice in the circumstances of the case?: Cannings J in Ewasse Landowners Association Incorporated v. Hargy Oil Palms Ltd (2005) N2878.
   
6. Before the Court can grant an interim order, the applicant has to satisfy the following requirements:
   

1. Whether there are serious questions to be tried.
2. Whether an undertaking as to damages has been given.

3. Whether damages would be an adequate remedy if the interim order is not granted.
4. Whether the balance of convenience favours grant of the interim order.
5. Whether interest of justice requires that an interim order be made.

PLAINTIFF’S SUBMISSIONS

7. When asked by the Court if there is any urgency in making this application, Counsel submitted that his client is not having access to his residence. His client is being bothered by the UoG security. Counsel referred to specific paragraphs in his client’s affidavit demonstrating the urgency. The Plaintiff gave evidence that he is under threat of being evicted at any time from the UoG campus residence. He is always bothered by the UoG security officers on instructions from the First Defendant. He is on suspension and he should be left alone to wait for the completion and determination of the investigation or the expiry of his contract of employment. Further, he and his family have lived outside of the UoG residence for about a week now because he has been threatened that he would be physically removed.
   
8. When asked about the reasons why the requirement for service of the documents should be dispensed with, Counsel submitted that the Defendants’ lawyers are based in Mount Hagen and Port Moresby. Thus, service of the documents should be dispensed with.
   
9. These were the submissions for the Plaintiff on the requirements:
   

1. Whether there are serious questions to be tried.

Counsel submitted that the serious question to be tried is that his client has been properly employed, and that is to be determined. The Court is to find as a fact that his client has been employed in accordance with the process and the law that governs the university in terms of employing academics.

2. Whether an undertaking as to damages has been given.

His client has filed an undertaking as to damages.

3. Whether damages would be an adequate remedy if the interim order is not granted.

His client has been taken off the payroll. He has given an undertaking. In the given situation, all he is required to do is to give an undertaking, and that is sufficient. If the interim order is not granted then it would terminate the proceedings.

4. Whether the balance of convenience favours grant of the interim order.

What relief his client is seeking will not jeopardise or cause any prejudice to the other side. The Court should believe what his client is seeking, and should grant the orders that he is seeking.

5. Whether interest of justice requires that an interim order be made.

The interest of justice requires that an interim order be made.

CONSIDERATION

10. The Plaintiff alleged that he is always bothered by the UoG security officers on instructions from the First Defendant. I have considered the evidence in the supporting affidavits. I find that there is no evidence of imminent threat to the Plaintiff. The evidence does not sufficiently demonstrate the urgency. There is no urgency in making this application.
    
11. I am not satisfied with the reason given by the Plaintiff that he should be heard ex parte since the Defendants’ lawyers are based in Mount Hagen and Port Moresby, and it is hard to effect service of the documents. Counsel confirmed that the First Defendant is based in Goroka. I see no difficulty in effecting service of the documents on the First and Second Defendants.
    

Whether there are serious questions to be tried.

12. Counsel submitted that the primary relief that his client is seeking in paragraph 2 of his originating summons is a declaration that he, in his capacity as the Pro Vice Chancellor - Academic Research and Innovation of the UoG is still on suspension, and is awaiting the findings and recommendations of the team that is investigating the affairs of the University. Counsel further submitted that his client is seeking a permanent order. In paragraph 6 of his originating summons, the Plaintiff sought an order to permanently restrain the Defendants from forcefully removing him from the residence at the UoG until the completion and determination of the investigation, or until the expiry of his contract of employment which will expire on 30 May 2022. Counsel submitted that the serious question to be tried is whether his client has been properly employed. When asked whether his client has a reasonable cause of action, Counsel appeared uncertain about his client’s cause of action.
    
13. To determine this issue, I considered the originating process and the affidavits to see if the Plaintiff demonstrated a serious question to be tried. I had difficulty in identifying the Plaintiff’s cause of action. It is not clear from the Plaintiff’s originating summons. Based on documents relied on, I am of the view that there are no serious questions to be tried.
    

Whether an undertaking as to damages has been given.

14. An undertaking as to damages was filed by the Plaintiff. This requirement is satisfied.
    
15. I find that there are no serious issues to be tried. I am not convinced by Counsel’s submissions on the other requirements. For each requirement, I find as follows:
    

Whether damages would be an adequate remedy if the interim order is not granted.

16. I am of the view that damages would be an adequate remedy if the interim order is not granted.
    

Whether the balance of convenience favours grant of the interim order.

17. I am of the view that the best thing to do is not to grant the interim order sought by the Plaintiff because the balance of convenience does not favour its grant.
    

Whether interest of justice requires that an interim order be made.

18. I am of the view that the interest of justice does not require that an interim order be made.
    

CONCLUSION

19. I am not convinced by the Plaintiff’s Counsel to exercise my discretion to grant the interim injunctive order sought by his client. I therefore refuse the Plaintiff’s application.
    

COURT ORDERS

20. I make the following orders:
    

1. The Plaintiff’s application is refused.

2. I make no order as to costs.

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
G.Gendua: Lawyer for the Plaintiff