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Singirok v National Executive Council [1997] PGNC 81; N1590 (3 July 1997)

Unreported National Court Decisions

N1590

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 435 OF 1997
BETWEEN: BRIGADIER GENERAL JERRY SINGIROK MBE
PLAINTIFF
AND: NATIONAL EXECUTIVE COUNCIL
FIRST DEFENDANT
AND: ATTORNEY GENERAL OF PAPUA NEW GUINEA
SECOND DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
THIRD DEFENDANT
AND: BRIGADIER GENERAL LEO NUIA OBE
FOURTH DEFENDANT

Waigani

Sevua J
30 June 1997
3 July 1997

INJUNCTION - application for injunction to restrain defendants from removing plaintiff from house where plaintiff’s entitlement to house ceased at time of revocation of appointment.

ADMINISTRATIVE LAW - contract of employment - plaintiff’s appointment as Commander of PNG Defence Force revoked – substantive claim is for damages for unlawful/wrongful termination of contract - remedy in damages not injunction – injunction not available - injunction refused.

Facts

The plaintiff was the former Commander of the Papua New Guinea Defence Force. He was employed on a contract effective 16^th November, 1995 till 16^th November, 1999. Under the contract, the provision of accommodation was one of his entitlements. Following his direct involvement in what is commonly known as the Sandline crisis, the Governor General, on 17^th March, 1997, terminated his contract upon advice from the National Executive Council. He continued to occupy the official Commander’s residence called Flagstaff House at Murray Barracks. He then filed a writ of summons claiming inter alia, damages for unlawful/wrongful termination of his contract. Whilst the substantive action was still pending, he filed a notice of motion seeking an injunction to restrain the defendants from removing him from the Flagstaff House until he is provided alternative accommodation.

Held

1. Past military prece entse here former Commanders have been permitted continued occupation of the official Commander’s residence has no effect in law and is not binding on this Court.

2. ـ Tie prleciples of law in r in relation to interloctory injunction are clear in this jurisdiction. These are established in Robinson -v- National Airlinmissid theican mid case. The plaintiff must must show show that that he hahe has a serious case to be tried, that is, he has a good arguable claim to the right he seeks to protect by the granting of an injunction.

3. ҈& A60;he the plaintlaintiff’s claim is for damages for unlawful/wrongful termination of contract, his remedy in law is in damages, if the unlawful tetion oven.

4. &#Th0; The; lae plaintlaintiff’s claim for alternative accommodation is neither a legal nor a equitable right which justifies the granting of an injunction. An injunction cannot be granted without any legal or equitable basis. The plaintiff therefore has not established that he has a legal or equitable right to be protected by injunction. Consequently, he must fail in his application.

Cases Cited

Papua New Guinea cases cited

Robinson -v- National Airline Commission [1983] PNGLR 476

Air Niugini -v- Elizabeth Talum [1992] PNGLR 296

Other cases cited

American Cyanamid Co -v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396

Counsel

M. Murray, for Plaintiff/Applicant

A. Iwais, for Defendants/Respondents

3 July 1997

SEVUA J: The plaintiff is the former Commander of the Papua New Guinea Defence Force and was terminated by the Governor General on advice of the first defendant on March 17, 1997 as a result of his involvement in what is commonly known as the ‘Sandline Crisis’. His appointment as Commander was effected on 16^th November, 1995 and was for a tenure of four years to 16^th, November, 1999.

On 8^th May, 1997, the plaintiff filed a writ of summons claiming, inter alia, damages for wrongful termination of his contract which is not the issue before me now. However, I highlight this at this juncture because the plaintiff’s pleadings advert to various matters which in the main, are tantamount to a breach of contract, the remedy for which is damages, if the breach is proven.

On 13^th June, 1997, the plaintiff filed a notice of motion seeking orders that:

1. ҈ B60; Brigadier Geneeal JSiry Singirok MBE and his family remain at Flagstaff House at Murray Barracks untp>

(a) ـ alternaternative accommodation within the barracks is fois found; or

(b) ـ&#1ui fuli fully paiy paid accommodation outside the barracks is located which is at least equal to conditonditions at Flagstaff House, with adequate provisio secu

2. ҈ Up0; Upon coon conf confirmation of a house, twenty eight days be allowed for removal to be effected.

3. &#U60; stil tich as erder rder 1 is effected, the defendants, their agents, servants whatever be restrained from doing anything contrary to the orders herein.

On 26^th June, 1997, when this application first came before Sheehan, J, ex parte, he ordered that no steps be taken to remove the plaintiff until Tuesday, 17^th June, 1997 at 9:30 am. This interim order has been extended on a few occasions until today.

As I understand it, the crux of the plaintiff’s case is based solely on public policy consideration because Mr Murray conceded and agreed with the authorities on the relevant law, which the defendants’ counsel had cited and relied upon.

On public policy consideration and on the basis that the Court has discretion to grant an injunction, the plaintiff seeks that an injunction be granted to enable him to remain at Flagstaff House for two or three weeks. Unfortunately, what the plaintiff did not realise is that the granting of injunction in his case does not depend on public policy or precedents previously set by the military in relation to the official residence of the Commander and in particular, former Commanders continued occupation of the official residence of the Commander, beyond their lawful tenure.

The law on injunction is clear in this jurisdiction. In Robinson -v- National Airline Commission [1983] PNGLR 476, where the plaintiff, inter alia, sought interlocutory injunction, prohibitive in nature, in respect of entitlement to a house and car, Andrew, J held that:

(5) ټ&#“8220;an intn interlocutory injunction, the purpose of which is to preserve the status quo, will be granted where just and convenient, the plaintiff must prove that he has a serious a sptive case, which hich has ahas a real possibility of ultimate success and that he has a legal or equitable right, title or intent which might be jeopardised if the injunctive relief were not granted: it is then for the Court to determine whether nonetheless the injunction should not go taking into account such factors as the adequacy of damages as a remedy, the possibility of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence what if any undertaking the defendant is prepared to give and most importantly, hardship and the balance of convenience”.

As I alluded to earlier, the plaintiff, in his pleadings, is claiming damages for unlawful or wrongful revocation of his appointment which basically, in my view, is the same as wrongful dismissal. His remedy as pleaded, is damages if the wrongful termination is established. In the light of that, the question to be determined here, in my view, is whether an interim injunction should be maintained.

In my view, if the interlocutory injunction is to be maintained, there must be a legal or equitable basis so that the injunction could issue to protect such right. The plaintiff must show that he has a legal or equitable right or title or interest which might be jeopardised if the injunctive relief was not granted. He has asked the Court to invoke it’s discretionary power to grant him the relief he seeks, but what is his right, legal or equitable? As far as I am concerned, he has no legal or equitable right which the injunction can protect. His rights at law is in an action for wrongful dismissal if the dismissal is unlawful. His counsel conceded that the plaintiff has no such right but asked the Court nevertheless to exercise its discretion in favour of the plaintiff. This, I consider to be an improper exercise of the Court’s discretion. It is trite law that the Court’s discretion must be exercised judicially. Is it then appropriate to say the Court is exercising its discretion judicially, when there is no legal or equitable basis for such an exercise of discretion? The answer must surely be, no. An employee who occupies accommodation of his employer has no right to remain in occupancy on the termination of his services. He may have a right to damages for unlawful dismissal. See Air Niugini -v- Elizabeth Talum [1992] PNGLR 296.

It is my opinion that the plaintiff’s remedy is in damages if the unlawful termination can be proven. The plaintiff adverts to the revocation as wrongful or unlawful in his statement of claim. The appropriate consideration then is whether damages is inadequate. I consider that since the plaintiff’s remedy is in damages only, it could not be said that damages is inadequate that hardship could be caused to him.

The principles in relation to injunction established in American Cyanamid Co -v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396 applied in Robinson’s case, do not favour the plaintiff. To start off with, he failed to give an undertaking as to damages, but comes to this Court nevertheless to ask for an interlocutory injunction. The other rules, ie, serious question to be tried and balance of convenience do not favour the plaintiff either.

The plaintiff’s argument on public policy consideration in my view, is also detrimental to his case. He sought to rely on past cases of precedents which past Commanders have been permitted to overstay their tenure in the official Commander’s residence, but these precedents have no effect in law and they are therefore not binding on this Court. If I were to accept the plaintiff’s argument on public policy consideration, what about his evidence that seems obviously tainted with politics that what he has deposed to in his affidavit sworn on 15^th June, 1997 amounted to statements of a political nature? Specific reference is made to paragraphs 12, 14 and 20 where he made references to election of a new Prime Minister, formation of a new Government, etc. The election of a new Prime Minister and formation of a new government are not matters concerning him as a military officer. These are statements with political connotations which, in my view, should not be made by a military officer. Contrary to what the plaintiff would have this Court believe, it is contrary to public policy for a military officer to be making statements, highly political in nature.

Although the plaintiff has asserted that his reason for seeking an injunction is to give him adequate time to secure alternative accommodation, I consider that he has had adequate and sufficient time. From 17^th March, 1997, the date of the revocation of his appointment as Commander, to 11^th June, 1997, the date which the present Commander and fourth defendant gave him notice to vacate Flagstaff House, is almost four months. It seems the plaintiff just did not do much to secure alternative accommodation. He was no longer the Commander of the Defence Force, therefore he knew he was no longer entitled to reside in the Commander’s residence.

There is no evidence at all that he did anything genuine to get alternative accommodation, let alone persuade the Defence Force administration to secure him a house, if that was the Defence Force’s obligation. Whether his continued occupation of the Commander’s official residence was a step towards stability within the military is open to debate as that evidence is refuted by Brigadier General Leo Nuia.

In my view, the plaintiff was not only waiting for alternative accommodation which he did nothing to secure, but was waiting for the formation of a new government in the middle of July. My view is fortified by the plaintiff’s own evidence which I have specifically referred to. The resolving of problems within the military following the Sandline crisis is a matter for the present Commander and the government. The plaintiff was no longer the Commander and his continued occupation of the official residence of the Commander, in my view, would have directly contributed to the instability in the force.

Of course, the plaintiff was the central figure in the Sandline crisis, and it was therefore his moral duty to the Defence Force, the nation and its people that he contributed to restoring peace, harmony and stability within the force, however, that did not mean he could do that whilst residing at Flagstaff House, since he was no longer the Commander, and his continued occupation of that residence could be interpreted as a threat to the lawful authority of the Commander and the general administration of the force. Perhaps, he should not reside at Murray Barracks at all for that very reason. However, be that as it may, that is the prerogative of the new Commander of the Defence Force and I am not going to make that decision for him.

Needless to say, some of the evidence in the affidavits of both the plaintiff and Brigadier General Leo Nuia concern me greatly, not only as the presiding Judge in this matter, but more so, in my capacity as the Defence Force Judge. As far as the Defence Force is concerned, the Sandline crisis is now, water under the bridge. The constitutionality, legality, validity or the wrong or right of the Sandline transaction are matters that do not concern the Defence Force. The politics of that deal should best be left to the politicians and the Defence Force should no longer be a party to Sandline.

It is not in the best interest of the force that a certain undisciplined element within the force continues to destabilise the efforts that are being made to restore normalcy, stability and peace in the Defence Force.

In the final analysis, I say that the law is clear. An injunction cannot be granted without any legal or equitable basis. The plaintiff’s claim to alternative accommodation is neither a legal nor an equitable right which justifies the granting of an injunction. The plaintiff has not established on proper legal principles that he has a right to be protected by injunction. Simply, the plaintiff has not shown that he has a legal or equitable right that requires protection and that is the most fundamental consideration in his application.

For these reasons, the plaintiff’s application for injunction must fail, and I order that his notice of motion be dismissed with costs to the defendants. However, in view of the defendants’ submission that the plaintiff be ordered to vacate Flagstaff House within two days, I order that the interim order granted by Sheehan, J on 13^th June, 1997, is to continue until 4.00 pm, Saturday, 5^th July, 1997.

Lawyer for Plaintiff: Murray & Associates

Lawyer for Defendants: Solicitor General