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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE
OS 216 OF 2008
BETWEEN:
PAUL ASAKUSA
Plaintiff
AND:
DAVID DAMBALI
First Defendant
AND:
NATIONAL HOUSING CORPORATION
Second Defendant
Waigani: Sevua, J
2008: 3 June & 3 July
CONTRACT – Contract of employment – Public sector employment contract – Benefits under contract - Terms and conditions – Contract not executed by Head of State and plaintiff – Motor vehicle as an entitlement under contract – Ownership – No provision for in contract – Motor vehicle agreement – Defective - Firearm – No provision for under contract – Contract unsigned - Whether plaintiff is entitled in law to claim benefits under unsigned contract.
PRACTICE AND PROCEDURE – Orders sought in this proceeding –Same orders sought in an appeal unrelated to this proceeding – Whether that is an abuse of process.
Held
Defendant, he is not entitled to claim benefits under an unsigned contract except for salary in return for work done or service rendered.
PNG cases cited in judgment
Haro Yamis v. Viviso Seravo & Ors (1998), unreported and unnumbered, 9 November 1998.
National Housing Corporation v. Yama Security Services Pty Ltd [2000] PNGLR 69.
Employesr Federation of PNG v. PNG Waterside and Seamens Union & Ors (1982), unreported, N393, 11 November 1982.
Rob9inson v. National Airline Commission [1983] PNGLR 476.
Gobe Hongu Limited v. National Executive Council & Ors (1999), unreported, N1964, 16 July 1999.
Ronny Wabia v. BP Exploration Operation Co Ltd. & Ors [1998] PNGLR 8.
Other cases
JT Stratford & Son Limited v. Lindley [1964]3 ALL ER 102.
American Cyanamid Co0mpany v. Ethicon Limited [1975] UKHL 1; [1975] 1 ALL ER 504.
Counsels
V. Narokobi, for Plaintiff
R. Bradshaw, for Defendants
3 July, 2008
1. SEVUA, J: The plaintiff, by way of a notice of motion filed on 22 April 2008, seeks an order in the following terms:
"Until further orders an interim order restraining the defendants, their employees, servants and or agents from recovering the vehicle described as Nissan Patrol Vehicle registration number BCH 739, and the firearm, under firearm licence Number C543."
2. The plaintiff is also seeking other orders including an order for costs.
3. The plaintiff’s motion was filed together with his Originating Summons on 22 April 2008. However he filed an Amended Origination Summons on 8 May 2008 in which he seeks similar orders sought in the original originating summons.
4. The primary facts of this case are not in dispute. The plaintiff was appointed the Managing Director of the second defendant on 16 March 2006 for a period of four (4) years under a "purported" contract with the second defendant. I have used the word "purported" because of the issue raised in respect of the contract of employment which I will further elaborate on later in the judgment.
5. On 10 March 2008, the National Executive Council, in its Decision No 39/2008, resolved to suspend the plaintiff as Managing Director of the second defendant and notice of that suspension was published in the National Gazette No. G.41 on 11 March 2008. In the same decision and notice, the first defendant was appointed Acting Managing Director of the second defendant.
6. Since the plaintiff’s suspension, he had filed two separate proceedings in the National Court in OS 127 of 2008, and OS 188 of 2008 in respect of his suspension and other related issues. Both of these proceedings were dismissed in April this year by the Deputy Chief Justice and Kandakasi, J respectively. The decision by the Deputy Chief Justice is the subject of an appeal to the Supreme Court.
7. This proceeding is therefore the third proceedings instituted by the plaintiff against the defendants since his suspension as Managing Director of the second defendant in March this year.
8. The plaintiff relies on his affidavits filed on 22 April, 24 April and 30 May 2008 respectively. His counsel, Mr. Narokobi said the plaintiff also relies on the originating summons filed on 22 April 2008 and the amended originating summons filed on 8 May 2008. However the plaintiff did not file a fresh notice of motion under the amended originating summons therefore I consider that the plaintiff cannot rely on the amended originating summons without filing a fresh notice of motion under that amended originating summons. In any event, the amended originating summons does not show what pleadings the plaintiff was amending.
9. The defendants filed three affidavits which they rely on. The first affidavit was sworn by the first defendant, David Dambali on 13 May 2008 and filed on 14 May 2008. The second affidavit was sworn by Richard Maru on 14 May and filed on 15 May 2008. Richard Maru is the Chairman of the second defendant’s Board. The third affidavit was sworn by Robert Bradshaw, counsel for the defendants, on 29 May and filed on 30 May 2008.
10. There is also a notice of motion filed on 14 May 2008 by the defendants seeking orders to dismiss these proceedings and costs. That motion has not yet been prosecuted and is still on foot until the outcome of the plaintiff’s motion, the subject of this judgment.
11. Having read all the affidavits and heard submissions from both counsels it appeared to me that the plaintiff’s case was quite confusing, perhaps because of the manner in which his counsel’s submissions were presented. It seemed that the plaintiff was talking about three different contracts of employment altogether, one with the second defendant, one with the State, and the third with the Salaries & Conditions Monitoring Committee (hereinafter the SCMC).
12. However, the plaintiff’s evidence only relates to the contract of employment with the second defendant which is annexed to his affidavit sworn on 22 April 2008, and marked Annexure "C1". That contract appears to have been signed by the former Board Chairman, Nenes Wurin, Anthony Waira, Corporate Secretary and the plaintiff himself. The contract annexed to the plaintiff’s affidavit filed on 24 April 2008 does not have any execution clause and does not show who executed it on behalf of the second defendant although it purports to be a contract between the plaintiff and the second defendant.
13. There is another contract annexed to the plaintiff’s affidavit sworn on 27 May and filed on 30 May 2008, however there are differences in the three contracts increasing the confusion. Even the annexure clause in relation to this contract is also confusing. On top of page 1 of the contract is the letter "G" which suggests that this document is Annexure "G", but in paragraph 9 of the same affidavit, the plaintiff refers to the contract as Annexure "H" so the confusion continues. The contract was signed by the same people referred to earlier including the plaintiff.
14. Then, there is yet another contract annexed as Annexure "L" to the same affidavit which is purportedly made between the plaintiff and the second defendant, and which is stated on the bottom of the cover sheet as, "Effective on and from G58 16th March 2006". The major differences in these contracts of employment which the plaintiff has brought into evidence are that, firstly, in this contract, Annexure "L", Schedule 1 of the summary of benefits annexed to the letter of Ms Margaret Elias dated 23 April 2008, which letter is Annexure "B" to the affidavit of the plaintiff filed on 24 April 2008, now forms part of that contract.
15. Secondly, there are three execution clauses at page 4 of that contract which is required to be signed by the Head of State, the second defendant under seal, and the plaintiff.
16. Thirdly, this contract has not been executed. This is a very significant issue in this proceeding because the defendants have made submissions on this aspect and it is an issue which, in the opinion of the Court, will determine the plaintiff’s application.
17. The plaintiff has not stated in any of his three affidavits if the contracts are the one and same contract or different contracts. And as I said, the confusion continues without any explanation and clarification. Either the plaintiff is a confused person or his counsel is or both are confused. They both have not assisted the Court in making it easier for the Court to determine the issues involved in this application, especially in defining exactly what contract of employment the plaintiff relies on in this proceeding. The fact that the plaintiff has annexed more than one contract to his affidavits without any satisfactory explanation adds to the total confusion.
18. Even though the appointment of the plaintiff was said to have been effective on 16 March 2006, the contract of employment between the plaintiff and the second defendant which Ms Elias has also referred to, has never been executed. It seems obvious that the contract which the plaintiff relies on in this case was entered into and executed by the second defendant, however the plaintiff now claims benefits under a contract of employment which has not been executed therefore does not have the force of law. His counsel concedes that his client cannot claim benefits under a contract that has not been executed, and that in my view, is the correct position in law.
19. The plaintiff also relies on correspondence and advice he had obtained from the Salaries & Conditions Monitoring Committee Chairperson, Ms Margaret Elias quite belatedly, if I may add.
20. Nevertheless, as confusing as it were, Ms Elias advised that the contract between the plaintiff and the State is yet to be executed by the Head of State. This confusing state of affairs is contained in a letter dated 23 April 2008 from Ms Elias to the plaintiff, which is Annexure "B" in the plaintiff’s affidavit filed on 24 April 2008.
21. An important observation that I make here is that the plaintiff had pursued advices from the SCMC only after he had been suspended and filed this proceeding. Even the Motor Vehicle Agreement he relies on was only executed on 10 March 2008, the date of the NEC decision.
22. On page 2 of the letter, Annexure "B", Madam Chairperson Elias said the following:
"Although the contract of employment is yet to be cleared by my Department and the Office of the State Solicitor for formal signing between yourself and Head of State, your appointment by the Head of State under advice by National Executive Council entitles you to receive Salary and Benefits shown on Schedule 1 attached to this letter."
23. Then Schedule 1 sets out the plaintiff’s allowances enumerated 1 to 12 and the Court notes that the plaintiff is entitled to a Motor Vehicle Allowance in the sum of K51, 585.00 per annum and Security Allowance of K5, 000.00 per annum. Notably, there is no provision for a firearm to be provided to the plaintiff as part of his entitlement under the contract with the second defendant and there is nothing provided for in the SCMC letter of 23 April 2008. So that begs the question, what is the legal basis for the plaintiff’s claim for a restraining order against the defendants for the recovery of the firearm?
24. Again as confusing as it were, Clause 11.1.6 of the contract with the second defendant which I have alluded to earlier, provides for a "motor vehicle allowance of K31, 800.00 per annum in lieu a motor vehicle provided by the State...", where as the SCMC has advised him that he is entitled to a motor vehicle allowance of K51, 585.00. As I alluded to, there is no clarification by the plaintiff and his counsel. This Court is not in a position to clarify issues of fact that the plaintiff himself should clarify by credible evidence. It is obvious that the plaintiff’s case continues to be confusing because on the one hand he says he has a contract of employment with the second defendant, while on the other, he says he has a contract with the State which contract has not been executed by the Head of State, but he is already claiming benefits from that unexecuted contract as confirmed by the SCMC.
25. Can the plaintiff claim benefits under two different contracts of employment? I am of the view that in law, he cannot claim benefits under two contracts. If he is permitted to, it will be tantamount to fraud, double dipping and out right dishonesty. The plaintiff can’t have his pie and eat it.
26. Alternatively, can he claim benefits under a contract of employment which has not been executed? Apparently he thinks he can because he has gone to the extent of seeking advice from the SCMC; however there is no executed contract so how could he claim entitlements under a contract which has not been endorsed by the Head of State acting on advice, and which contract does not exist? Can he legally do that, and if so, under what law?
27. I have already alluded to the fact that his counsel has conceded that he is not entitled to claim benefits under a contract which
has not been executed. I have also expressed the view that, that is the correct position in law. I need only reiterate that an agreement
or contract confers rights and imposes obligations
to the contracting parties so that if a party breaches its side of the bargain, the other party can enforce the contract by suing
for damages for breach of contract or claim specific performance depending on what type of contract it is. That is one of the basic
tenets of the law of contract.
28. In the present case, the plaintiff is claiming benefits under a contract of employment which has not been executed; however he is being encouraged and urged on by the Chairperson of the SCMC, Ms Elias. Can the plaintiff do that in law? This situation clearly demonstrates the inefficiency and negligence of the bureaucracy especially the SCMC. It is my opinion that the plaintiff is not entitled in law to benefits under a contract which has not been executed and therefore does not legally exist, other than work performed or services rendered for remuneration.
29. In relation to the motor vehicle issue, the plaintiff is entitled to K31, 800.00 per annum under the contract of employment with the second defendant which he had signed. From the SCMC letter of 23 April 2008, he is said to be entitled to a motor vehicle allowance of K51, 585.00 per annum. Neither the contract he executed nor the letter from the SCMC confers right of ownership of the motor vehicle to the plaintiff. He might be given the option to purchase it after the end of his contract, but until that is done, he does not own the motor vehicle, which remains the property of the Independent State, through the National Housing Corporation.
30. The defendants have maintained that the vehicle in question is the property of the State and should be returned to the second defendant as it is the subject of an investigation. While the plaintiff remains suspended, the second defendant would pay to him his motor vehicle allowance under the contract he had signed. That assurance is from the Chairman of the second defendant’s Board and he states that in paragraph 20 of his affidavit.
31. Furthermore, the purchase of the motor vehicle which the defendants say costs K250, 000.00 is an issue which will be investigated as it appears that the plaintiff had no authority to expand money over K80, 000.00 without the approval of the Board. Besides, the defendants further say, it was purchased at a time when the second defendant was almost insolvent. Of course the plaintiff has denied that the vehicle costs K250, 000.00, but that is not an issue for determination by this Court in this application therefore it should be best left to the appropriate forum when that issue arises.
32. The preservation of the motor vehicle whilst legal battles are being fought is an important consideration which favours the defendants, in my view. I accept the first defendant’s evidence that if the plaintiff is allowed to serve the two years balance of his contract his motor vehicle allowance for that period will only be K63, 000.00 and that amount is not sufficient to redeem the cost of the vehicle over that period, although he might have the option to purchase it at the end of his contract. However as I understand, there is a formula used in the public sector where a motor vehicle purchased with public funds is redeemed at zero kina at the end of the contract period.
33. However, of concern to the defendants is the fact that the motor vehicle which was purchased in February 2008 at a cost of K250, 000.00 and therefore effectively a brand new vehicle, was purchased without the approval of the second defendant’s Board and is a very expensive asset for the State which should be preserved until the investigation against the plaintiff is completed and the status of the plaintiff’s employment is determined. As I have alluded to, the plaintiff is not going to be left high and dry, for want of a better phrase. He will be paid his motor vehicle allowances during his suspension, therefore in my view that is quite a favourable proposition which the plaintiff should accept as he does not own the vehicle in question.
34. Another important consideration which impacts on this case is the question of ownership of the said motor vehicle which has already been adverted to. There is no provision in the purported contract with the second defendant, and nothing is provided for in the letter from the SCMC that in the event of the plaintiff’s suspension, he is entitled to keep the motor vehicle which comes to his possession by virtue of holding office as Managing Director of the second defendant.
35. The vehicle belongs to the State and until such time the full value is redeemed by the plaintiff through the formula I adverted to, or the Board of the second defendant decides to dispose of the vehicle, the plaintiff does not own the motor vehicle. He may be given the option to purchase it at the conclusion of his contract however, if terminated for cause; he is not entitled to purchase it.
36. Relative to this issue is the Motor Vehicle Agreement "purportedly" executed by the plaintiff and the second defendant on 10 March 2008, Annexure "C2", to the first affidavit of the plaintiff filed on 22 April 2008. The first defendant says it is strange that the agreement was executed on the date of the plaintiff’s suspension, and this Court agrees with that view as it can be inferred that the execution of the agreement on the date of suspension may be subjected to suspicious foul play.
37. Why was the agreement not executed in February this year soon after it was purchased? And why was it executed on the day the plaintiff was suspended? The plaintiff has not offered any satisfactory explanation in any of his three affidavits therefore; it leaves the interpretation of that transaction to the defendants and the taxpaying public.
38. Interestingly enough is Clause 5 of the agreement which states, "The employee shall have ownership of the motor vehicle upon full payment of the agreed value". That clause settles the whole issue of ownership. Whether the plaintiff is suspended or not suspended, he does not have ownership of the vehicle until he has paid for the value of the vehicle whatever the value might be.
39. However, I hold that that agreement is seriously flawed and defective. The agreement is purportedly made between the second defendant and the plaintiff because the preamble reads, "MOTOR VEHICLE AGREEMENT BETWEEN NATIONAL HOUSING CORPORATION AND THE MANAGING DIRECTOR (MR. PAUL A. ASAKUSA)". However most importantly, the agreement was not executed by the Board and under the corporate seal of the second defendant. At the top of page 4 of the agreement is the execution clause which reads, "SIGNED FOR and on behalf of the National Housing Corporation of Papua New Guinea in accordance with the advise (sic) of the Managing Director of the National Housing Corporation." Then below that appears the name and signature of the plaintiff and Raho Kevau, General Manager Human Resources & Administration, witnessed by Jonah Sasingian, Acting Principal Legal Officer. It is obvious that the plaintiff had obtained the two officers’ signatures on behalf of the second defendant; however they are not the second defendant.
40. By virtue of s. 6 of the National Housing Corporation Act 1990 (the Act), the second defendant is a corporation with a seal, which seal can be judicially acknowledged by the Courts or Judges. As it were, the agreement was not approved by the Board and not signed by the Chairman of the Board under seal. It is therefore defective and has no force of law. This Court does not and will not recognize it because it is not consistent with s. 6 (2) of the Act.
41. Nevertheless, when one considers the date it was executed, it becomes abundantly clear that the plaintiff had secured the signatures of the two officers, and not the Board Chairman, for his own benefit. Nothing can be clearer than that. The plaintiff has therefore failed once again to explain why this agreement was executed on the date he was suspended, and also why it was not executed under Seal by the Board after all, the Board represents the corporate nature of the second defendant. Raho Kevau and Jonah Sasingian who signed the contract are not the Board.
42. The Court therefore concludes that the plaintiff does not own the motor vehicle described as Nissan Patrol registration BCH 739. I find that that vehicle remains the property of the State through the second defendant. I consider that if the plaintiff is reinstated, he will continue to have the use of the vehicle by virtue of his position. In the meantime, as the defendants wish to preserve the vehicle as a State asset for purpose of investigation, it should be returned to the second defendant. The plaintiff does not own the vehicle in law therefore he cannot restrain the defendant from recovering it.
43. I do not see any prejudice to the rights or interests of the plaintiff because he will still be paid his motor vehicle allowances during his suspension. If he is reinstated, he will continue to use the motor vehicle. By law he cannot claim the use of the motor vehicle because the contract which he claims under is yet to be executed therefore does not have the force of law until it is executed. The Court therefore sees no impediment in the second defendant recovering the motor vehicle until the suspension of the plaintiff is determined one way or the other.
44. Whilst I am not asked to rule on the validity or otherwise of the contract of employment which will bind the plaintiff and the second defendant when it is eventually executed, I consider it necessary to make a finding for the avoidance of doubt. I have already discussed the status of the contract therefore I do not need to repeat what I have already said here, suffice it to say that, I find that since the contract of employment between the plaintiff and the second defendant has not been executed, the plaintiff is not entitled to claim benefits under that contract. Any benefit claimed by him will be void for illegality.
45. Accordingly, I find that as the plaintiff has no valid contract of employment with the second defendant, he is not entitled in law to the benefits he is presently claiming until such time the proposed contract is cleared by the State Solicitor and signed by the Head of State and the plaintiff himself. In any event, the second defendant is willing to pay the plaintiff’s motor vehicle allowances as and when they are due each fortnight.
46. In relation to the issue of the firearm, I have already found that there is no provision in the contract that the plaintiff relies on for a licensed firearm. There is nothing in the SCMC letter which is in evidence before the Court that the plaintiff is entitled to the possession of a firearm either as of right or at the expense of the second defendant. If he is entitled to a security allowance, he can purchase a firearm for his own use subject to the licensing requirements under the Firearms Act. But I find that he cannot maintain that he is entitled in law, to the firearm. It is not an entitlement that comes with his employment therefore I find that he has no right to keep the firearm as a benefit flowing from his employment.
47. The law governing the grant of injunction has been settled in this jurisdiction. It is trite law that the plaintiff/applicant must have a right in law or equity to protect by the grant of an injunctive order. In the present case, I consider that the plaintiff’s right to the use of the vehicle only subsist when he is holding the position of, and exercising the powers and functions of the office of Managing Director of the second defendant, not when he is under suspension. Such a right that he claims does not exist in law as it is not a term or condition of his employment contract, there being none in existence at the present time.
48. An injunction can be granted to protect a right that exists in either law or equity. It is an important aspect of the law on equity that the plaintiff must come with clean hands. Unfortunately, for the plaintiff, I do not find that he has come to Court with clean hands. Several aspects of this case that I have referred to in this judgment leave a lot to be desired and hopefully these will be unearthed in the investigation that the second defendant intends to carry out.
49. As to the case law on injunctions, I refer to what I said in Haro Yamis v. Viviso Seravo & Ors, (1998), unreported and unnumbered, 9 November 1998, page 4:
"The law on granting injunctions......is quite clear. In my view, an applicant must have a legal right or interest in or over a matter, the subject of the suit, which he seeks to protect by injunctive relief."
50. In that case, I cited the two famous English House of Lords cases in this area of law, JT Stratford and Son Limited v. Lindley [1964] 3 ALL ER 102 and American Cyanamid Company v. Ethicon Limited [1075] [1975] UKHL 1; 1 ALL ER 504. I also referred to a number of PNG cases; however it is not intended to cite the principles here as the law is well settled in our jurisdiction.
51. I also wish to refer to National Housing Corporation v. Yama Security Services Pty Limited [2000] PNGLR 69; which cited the above cases and two well known PNG cases, Employers Federation of PNG v. PNG Waterside and Seamens Union & Ors., (1982), unreported, N393, 11 October 1982 and Robinson v. National Airlines Commission [1983] PNGLR 476. I also referred to another of my decision, Gobe Hongu Limited v. NEC & Ors. (1999) unreported, N1964, 16 July, 1999, which I summarized therein the authorities on the law of injunction.
52. In those cases the usual conditions which I described as conditions precedent to the grant of an injunction were discussed. These are; whether the applicant has shown that he has a serious question to be tried; whether the balance of convenience favours the granting of the injunction to the applicant; undertaking as to damages and delay.
53. I have already discussed the evidence of the plaintiff and the defendants. The question now is whether the plaintiff has satisfied these conditions precedent that he should be granted the injunctive relief sought.
54. Because I have formed the opinion that the plaintiff is not entitled to what he seeks on the grounds that he sought to rely on a contract that has not been executed, I consider that he does not have a serious issue to be tried. On the issue of serious question therefore, I find that the plaintiff has not shown that there is a serious question to be tried.
55. Secondly, for the same reason, I am of the view that the balance of convenience does not support the grant of an injunction in his favour. The balance of convenience does not favour him.
56. Thirdly, although the plaintiff has given an undertaking as to damages, it is my opinion that the defendants are capable of paying common law damages to the plaintiff for any loss suffered between the application and the trial. In the American Cyanamid case (supra) supposing that damages would be adequate if a plaintiff succeeds, an interlocutory injunction would not normally be granted.
57. As to delay, the plaintiff brought this proceeding after his suspension on 10 March 2008 was published on 11 March 2008. Therefore I find that there is no delay in making this application.
58. One other aspect of this case which is of concern to the Court is that whilst this proceeding had been filed and was pending in the National Court, the plaintiff proceeded to file an appeal to the Supreme Court in respect of the decisions in OS 716(JR) of 2007 and OS 127(JR) of 2008. That appeal has nothing to do with the present proceeding OS 216 of 2008.
59. However, in the plaintiff’s application filed in SCM 3 of 2008 on 23 May 2008, he sought in paragraph 4 (f) of his notice of motion the same orders he is seeking in this proceeding. Evidence of this is in the affidavit of Robert Bradshaw filed on 30 May 2008.
60. This is clearly an abuse of the process of the Court. The Court has power to prevent its process from abuse by litigants. However, in this case, the plaintiff’s lawyer should also shoulder the blame for his part in the abuse of process. Such conduct of counsel is unprofessional and unethical which warrants referral to the Statutory Committee of the PNG Law Society.
61. Under Order 12 Rule 40 National Court Rules the Court has a discretion to stay or dismiss proceedings which it considers frivolous, vexatious or an abuse of the Court process (r 1 (c)). The Court also has an inherent jurisdiction to stay or dismiss proceedings for the same reason.
62. Therefore, if proceedings are considered to be an abuse of the process of the Court, the Court has a duty to protect its process from abuses. Refer to Ronny Wabia v. BP Exploration Operation Co Ltd. & Ors. [1998] PNGLR 8 and the cases cited therein.
63. For that reason alone, the Court should dismiss the plaintiff’s proceedings because it is an abuse of process.
64. However in the final analysis, the Court has already found that the plaintiff does not have a signed contract with the second defendant and the State. Whilst I agree with his counsel that he is entitled to the salary and benefits that have been spelled out by the SCMC, it is my view that conditions like salary is for actual work done or services rendered by the plaintiff. No one gets paid for doing nothing. In respect of the other benefits, they must be stipulated in a contract of employment which must be executed by the parties. In the present case, the contract has not been executed so I find that the plaintiff is not entitled to claim the other benefits which are contained in the standard terms and conditions of the public sector employment contract.
65. Accordingly, I find that the plaintiff’s case is merely a speculative case. As there is no contract I consider that there is no serious question to be tried. I am not satisfied that here is a serious question to be tried. See: American Cyanamid v. Ethicorn Ltd. and Robinson v. National Airline Commission (supra). For the same reasons, the balance of convenience does not favour the granting of the injunction to the plaintiff.
66. Whilst the plaintiff has filed an undertaking as to damages, I am of the view that he has not satisfied the Court of the other conditions referred to. In any event I have already pointed out the law in American Cyanamid case that if a defendant is able to pay damages, the injunction sought should not be granted. Accordingly, he should not be entitled to the injunction sought in this proceeding.
67. It is therefore the judgment of the Court that the plaintiff’s application must fail. Accordingly, the application for injunction is refused and the plaintiff’s application is dismissed with costs. The plaintiff shall pay the defendants’ costs.
Orders accordingly.
___________________________________________
Narokobi Lawyers: Lawyers for Plaintiff
Bradshaw Lawyers: Lawyer for Defendants
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