Solomon Islands Ports Authority v Fook [2016] SBHC 55; HCSI-CC 185 of 2016 (29 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case No. 185 of 2016

Solomon Islands Ports Authority
The Claimant

-V-

Colin Yow Tuck Fook
The Defendant

Hearing: 29 April 2016
Ruling: 29 April 2016

Mr. S. Banuve (Solicitor General) and Mr. J. Muria (Jnr.) for the Applicant/Claimant.
Mr. C. Tagaraniana for the Respondent/Defendant

Palmer CJ.:

1. The applicant/claimant in this case is a creature of statute, a state owned enterprise created under the Ports Act (cap. 161), as a body corporate with perpetual succession and a common seal and powers to sue and be sued in its corporate name and to acquire and hold and dispose of lands.
   
2. The respondent in this case is the Chief Executive Officer, Colin Yow (“the Respondent”) of the Solomon Islands Ports Authority (“SIPA”) who was initially appointed on the 25^th January 2015 for a term of three years by the former Board of SIPA but was then superseded by a subsequent contract of employment commencing on 11^th June 2015 for a term of 72 months (6 years).
   
3. The Solicitor General and Counsel John Muria (Jnr.) come to this court on behalf of SIPA seeking interlocutory orders to restrain the Respondent from entering SIPA’s premises and continuing with his duties and responsibilities as the Chief Executive Officer of SIPA on the grounds that his tenure of appointment had been terminated with effect from the 24^th April 2016 by the SIPA Board. As such he should no longer be allowed to access SIPA’s premises without authority. This application as pointed out by Mr. Muria (Jnr.) had been necessitated by the actions of the Respondent in refusing to accept his termination and questioning in turn the validity of the appointments of the Chairman, Mr. Billy Titiulu and another member of the Board of Directors of SIPA and their authority to terminate his appointment. The two sworn statements of Mr. Billy Titiulu filed on 27^th April and 29^th April 2016 contain details of the matters relied on in support of the application for injunctive relief.
   

Preliminary Issue of Locus Standi

4. In his submissions before this court, Mr. Tagaraniani raised what appears to be a muted objection to the Attorney-General, in this instance, the Solicitor General and Mr. Muria (Jnr.) appearing for SIPA, couched with the issue of locus standi or legal standing. I think Counsel may have confused that issue with the capacity of the Attorney-General to represent SIPA, for it is evident SIPA has locus as a legal entity to take up this case. The real question I think is whether the Attorney-General’s decision to be instructed in this case is objectionable or improper and that he should not be permitted to continue representing the applicant. It would seem to me that is more a matter between the Attorney-General and his Employer, the Solomon Islands Government, but it should also not be overlooked, that the Attorney-General can in certain instances take up a matter in what is commonly referred to as a relator action, where he may accept to take up a case where the interest or right of the public is at stake. When he appears in such instances, he does so, on the relation of such person.
   
5. I am not satisfied that argument or objection a bar or impediment to the capacity of the Attorney-General to appear before this court and the objection is rejected.
   

Injunctive Relief

6. The right to injunctive relief normally arises where it is alleged there is, has been or likely breach of a property or proprietary right. It is necessary that the applicant demonstrates evidence of breach or likely breach of its legal rights and that it is necessary for the court to consider imposing an injunction to preserve, protect or maintain the status quo pending determination of the triable issues before the court. To that extent it is necessary from the outset to show that there are triable issues for consideration before this court.
   
7. On the first point I am satisfied on the material before me that SIPA has shown its interests have been or likely to be breached with the continuation of the employment of its Chief Executive Officer, who the Board had decided no longer requires his services as its Chief Executive Officer.
   
8. I am also satisfied that it has been shown that the main issue in this case is the validity of termination of the appointment of the Respondent and is also directly related to the question of the rights of an employer to hire and fire its employee. That is both a legal question and question of fact. Other side issues that may require to be considered include the validity of the appointments of the current Chairman of SIPA, Mr. Titiulu and another board member, Mr. Johnny Sy, by virtue of their purported termination by the Minister of Infrastructure Development; a matter also in dispute.
   
9. On the issue of adequacy of damages, I am satisfied on the material before me, any damages that may be incurred if an injunction is issued is quantifiable and will be adequately compensated in monetary terms. If at the end of the day, the Respondent wins his case any compensation due can be adequately catered for with an order for damages in monetary terms, or re-engagement, if the Board or a new Board decides to re-engage him with a new and revised contract of employment.
   
10. In contrast, I am satisfied on the material before me that if an injunction is refused, irreparable harm or damage may be caused to the statutory operations, activities and obligations of the applicant and that these outweigh the damage and injury that may be caused to the Respondent.
    
11. In terms of the balance of convenience, this must lie in favour of the applicant pending determination of the triable issues in this case. The work and operations of the applicant are classified as essential services and the Board is obliged to ensure that these continue unhindered and without undue interference.
    
12. As to the requirement for an undertaking, the issuance of injunctive relief is subject to the issue of an undertaking for damages. The applicant, a corporate body and being run as a business entity to make profits and to recover all its expenses, has the capacity to meet the costs of this case and the Respondent if he wins his case at the end of the day. The orders for injunction accordingly are to be subject to the issue of an undertaking for damages.
    
13. I grant the orders sought as set out in the orders of the court herewith.
    

Orders of the Court:

1. Grant orders as sought herewith subject to the issue of an undertaking for damages as follows:
   
   • (i) The Respondent/Defendant, his servants, agents, invitees, licensees or others currently acting under the Respondent/Defendant’s authority or purported authority are restrained from entering all premises owned and/or controlled by the Solomon Islands Ports Authority.
     
   • (ii) The Respondent/Defendant is restrained from issuing any directives or instructions to the Management of the Claimant/Applicant in relation to the operations of the Applicant/Claimant.
     
   • (iii) The Respondent/Defendant is restrained from holding meeting or forum in relation to the operation of the Applicant/Claimant or in the name of the Applicant/Claimant.
     
   • (iv) The Respondent/Defendant return to the Director of Corporate Services of Solomon Islands Ports Authority all properties belonging to the Authority.
     
   • (v) The Sheriff of the High Court will implement these orders with the assistance of the Royal Solomon Islands Police Force where needed.
     
   • (vi) The Applicant/Claimant to file and serve a Claim within 14 days herewith.
     
   • (vii) Liberty to apply on 3 days’ notice.
     
   • (viii) Costs in the cause.
     

The Court.