IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0016 OF 1994

Between:

EPELI LAGILOA
Applicant

and

1. THE PUBLIC SERVICE COMMISSION
2. THE PERMANENT SECRETARY FOR EDUCATION
Respondents

Mr. I. Mataitoga for the Applicants
Mr. M. Gago for the Respondent

DECISION

By Summons dated 16 August 1996 the Applicants/Original Respondents are seeking an Order that the judgment herein delivered on 28 June 1996 granting Judicial Review to the Respondent/Original Applicant be stayed pending an appeal to the Fiji Court of Appeal.

On the hearing of the Summons the learned Solicitor-General (S.G) amended his application by saying that the appeal is against the second part of the said Order, namely, that the "applicant be reinstated forthwith on full salary and be paid arrears of salary from date of termination to date of reinstatement". He said that he is not appealing against the first part of the order which reads: "that certiorari go to quash the decision of the Public Service Commission to dismiss the applicant from service with the Government of Fiji with effect from 29 June 1994."

The Affidavit of REX HECTOR HATCH, a member of the Public Service Commission reads:

2. THAT I have delegated powers under the Public Service Commission (Constitution) Regulations 1990 in accordance with the 1990 Constitution of Fiji.

3. THAT the 1990 Constitution of Fiji empowers me to appoint, remove and to exercise disciplinary control over public officers employed in the Public Service Commission.

4. THAT no appeal lies against the decisions of the Public Service Commission with respect to matters concerning appointments, promotions and transfers under the 1990 Constitution of Fiji.

5. THAT I verily believe that I have the sole authority to reinstate an employee who has been dismissed under the 1990 Constitution of Fiji.

The Ground of Appeal stated in the Notice of Appeal filed on 14 August 1996 is:

"That the learned Trial judge erred in law in ordering that the respondent (applicant in the High Court) be reinstated forthwith on full salary".

The learned Solicitor-General submitted that in relation to the factors to be considered in this application he is relying on the authority of the Fiji Court of Appeal case of REDDY'S ENTERPRISES LIMITED and THE GOVERNOR OF THE RESERVE BANK OF FIJI (Civ. App. 67/90) where SIR MOTI TIKARAM J.A. (now President FCA) dealt with the principles applicable to a stay application. He took into account the following factors - the nature and purpose of appeal, prejudice to the parties if the application is granted or refused and balance of convenience.

Mr. Mataitoga asks the Court to consider these factors. He says that under s.127(1) of the Fiji Constitution, he "strongly" feels that the powers of reinstatement are vested in the Public Service Commission (PSC). He says that "in certiorari court does not make that order" and in support of that proposition he cites the House of Lords case of REGINA v BARNET LONDON BOROUGH COUNCIL Ex parte NILISH SHAH (1983) 2 A.C. 309 at 350. On "prejudice" he said that the Applicants would not be able to recover monies paid out if the appeal succeeds. On "balance of convenience" factor he said that "public interest would dictate; there are bodies empowered to do it; Court to resist to make such orders when invited to do so".

Mr. Gago in opposing the application said that ex parte SHAH (supra) does not apply to the facts of this case. The said Section 127(1) does not take away the powers of the Court. This was a consequential order made by Court. This order is outside the ambit of s127. He further submitted that if Court were to grant stay, the Respondent would be deprived of the fruits of the judgment which is in his favour and "would suffer the effect of stay". He asks Court to refuse the application.

I shall now consider the issue before me.

The principles governing the grant of stay pending appeal are outlined in Or 59 r 11 of THE SUPREME COURT PRACTICE 1979 Vol. I. p.909 et seq.

Here the Respondent has a judgment in his favour and he ought to have been paid his salary pursuant to an Order of this Court. The Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled" pending an appeal (THE ANNOT LYLE (1886), 11 P.D. at p.116, C.A.; MONK BARTRAM (1891) 1 Q.B. 346).

The Applicants need have no fear in this case that, without a stay, if successful on appeal, the appeal will be rendered nugatory (WILSON v CHURCH (No. 2) 1879, 12 Ch.D. at pp. 1458, 459, C.A.) for the applicants are bound to pay him his salary until the appeal is heard. Therefore no question of not being able to recover from the Respondent the salary if paid arises. In this regard it is pertinent to note the headnote to LINOTYPE-HELL FINANCE LTD v BAKER (1992) 4 A.E.R. 887 C.A. which reads:

"Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success. The old rule that a stay of execution would only be granted where the appellant satisfied the court that if the damages and costs were paid there would be no reasonable prospect of recovering them if the appeal succeeded is now far too stringent a test and does not reflect the court's current practice (see p 888 f to h post)."

No question of the Applicant being "ruined" has any relevance to the facts of this case bearing in mind the nature of the first part of the Order.

In considering this application it appears that Court has to consider whether the appeal has "some prospect of success" (BAKER, supra) which factor has been referred to by counsel as the "nature and purpose of appeal".

Although it is more for the appellate Court to consider this Ground, but since it is a factor to be considered on this application I shall deal with it shortly for present purposes.

It is my view that the Applicants have no prospect of success. It is in fact a frivolous application.

The Court's powers to make an Order for "reinstatement" cannot be taken away from it. The said s 127(1) does not do so nor does it deal with the question of "reinstatement" contrary to what is stated in the Affidavit of HATCH. The said section provides, inter alia:

"127.-(1) Subject to the provisions of this Constitution, power to make appointments to public offices (including power to confirm appointments) and to remove and to exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission."

I cannot see what harm the Applicants will suffer if stay is not granted. They can still continue with the appeal. They are already ordered to pay the Respondent's salary which evidently they have failed to do so far. I am of the view that the case of Ex. p. SHAH (supra) on which Mr. Mataitoga relies, has no relevance to the facts of this case.

The following passage from the Court of Appeal judgment in MANUNIVAVALAGI DALITUICAMA KOROVULAVULA and PUBLIC SERVICE COMMISSION (Civ. App. 6/94) at p.18 indicates that it is within the powers of Court to make an Order for reinstatement:

"The Court always has a discretion as to the form of relief to be granted on applications for Judicial Review. It is six and a half years since these events occurred. It is plainly far too late to quash the notice of termination and re-instate the appellant. The termination must stand. In the circumstances we consider the best course is to make a declaration that the Minister's termination of the appellants appointment as Principal Licensing Authority was improper and unlawful. Accordingly there will be a declaration to that effect." (underlining mine for emphasis).

This is case in which as the Court has found, and it is not appealed, that the Applicants as employer have done wrong, and they should not be allowed, as LORD DENNING M.R. said in HILL v C.A. PARSONS & CO., LTD (1972) 1 Ch 305 at 316 C.A. said, "to break the law" by raising the Ground they have raised that Court has no jurisdiction in this case. It is a clear case of "reinstatement".

I quote again from LORD DENNING M R ibid at p316 that:

"Whenever a man has a right, the law should give a remedy. The latin maxim is ubi jus ibi remedium. This principle enables us to step over the trip-wires of previous cases and to bring the law into accord with the needs of today."

How appropriate are these statements to the facts and circumstances of this case. If ever there was a case where "reinstatement" should have been ordered against the Applicants, this is the case.

Also in this case there were special circumstances which existed to enable the Court to make an order of reinstatement to be in line with the statements of LORD MORRIS OF BORTH-y-GEST in FRANCIS v KUALA LUMPUR COUNCIL & ORS (1962) 1 W.L.R. 1411, 1417 P.C when he said:

"In their Lordships' view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court." (underlining mine for emphasis)

The Respondent was employed in the Civil Service as a School Teacher for about 26 years. He would be 48 years now and according to his affidavit in support of his application for judicial review, he would within nine years (now 7 years since affidavit was sworn), be entitled to receive a Pension if he continued his career with the Civil Service. Also one very important factor to be taken into account is that the civil judgment on which his dismissal was founded has since been set aside.

On the argument put forward by Mr. Mataitoga regarding "prejudice", I am of the view that there will be no prejudice to the Applicants if the application was refused.

Since there is no appeal against the order for certiorari the Respondent is entitled to be paid his salary and the appeal in actual fact should be only as to the Order for "reinstatement". From the statement made by S.G. it seems to me that the order for payment of salary has not been complied with by the Applicants. Despite that the Applicants are asking this Court for a stay of the reinstatement Order which I am not inclined to grant in all the circumstances of this case.

In these circumstances it is the Respondent who is already greatly prejudiced by not being able to enjoy the fruits of the judgment which is in his favour and which the Applicants are withholding from him for reasons of their own.

To conclude, to grant or to refuse a stay pending an appeal is a discretionary remedy vested in the Court. This discretion is absolute and unfettered. I have carefully considered the various factors that ought to be considered and the competing interests of the parties, I have also taken into account the submissions of both counsel.

For the reasons given I have come to the conclusion that the balance of convenience dictates that I ought not to grant the stay pending determination of the appeal.

Therefore, in the exercise of my discretion I refuse the stay sought with costs against the Applicants to be taxed if not agreed.

D. Pathik
Judge

At Suva
5 September 1996
HBJ0016D.94S