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Permanent Secretary for Education v Khan [2004] FJHC 364; HBJ0156.2003L (22 January 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0156 OF 2003

BETWEEN:

THE PERMANENT SECRETARY FOR EDUCATION
Plaintiff

AND:

SIKANDER ALI KHAN
1st Defendant

HAFI DEAN KHAN as the President,
NAZIM AHMED ALI as the General Secretary and
KHALID HUSSEIN as the Treasurer
of the Fiji Muslim League
2nd Defendant

Counsel for the Plaintiff: Ms. Ana Rokomokoti
Counsel for the Defendants: Mr. Samuel K. Ram

Date of Judgment: 22 January 2004

EXTEMPORE JUDGEMENT

The plaintiff in this matter seeks by way of amended Notice of Motion filed on 27 May 2003, an Order restraining the defendants whether by themselves, their agents and/or servants from interfering with the Plaintiff’s Appointee, Mr. Mohammed Hassan from carrying out his duties pursuant to his lawful appointment and employment as Head Teacher at Ba Muslim Primary School.

The Notice of Motion filed on behalf of the Plaintiff is supported by affidavits of Alumita Taganesia sworn on 6 May 2003 and 7 October 2003. The defendants rely on affidavit of Shikander Ali Khan sworn on 4 June 2003. Both the plaintiff and the defendants’ counsel furnished written submissions. The plaintiff is the Permanent Secretary for Education, a person in charge, pursuant to the relevant legislation of the appointment of the Head Teacher at the Ba Muslim Primary School.

The facts appear from the affidavits filed and might be briefly summarized in that the plaintiff exercising its statutory role appointed Mohammed Hassan to the position of Head Teacher after apparently complying with the prescribed protocol. There was initially an appeal against the appointment but the appellant subsequently withdrew that appeal.

It appears from the material filed that Mohammed Hassan initially carried out his duties as Head Teacher uncontroversially. After about 12 months issues arose that resulted in him being effectively locked out of the school. There is, it is submitted, on behalf of the plaintiff a protocol available for dealing with issues such as those that allegedly arose in this instance.

The plaintiff submits that this protocol was followed and the plaintiff satisfied itself that there was no basis for the complaints.

The defendants submit that the conduct of the Head Teacher was such that it unwarranted the defendants taking the action they did due to the failure of the plaintiff to properly or adequately carryout an investigation and inquiry and to take appropriate action against the Head Teacher with respect to the alleged misconduct.

It is not in issue that the Court when considering the granting of an injunction must consider the test as detailed by the House of Lords in American Cyanamid & Co v. Ethicon [1975] UKHL 1; [1975] A.C. 396, where was held that before an interlocutory injunction is granted the applicant must demonstrate that –

1. damages at common law are not an adequate final remedy;
2. there was a serious question to be tried;
3. interim relief is justified on the balance of convenience.
   

It is perhaps of assistance to look at the words of Lord Diplock in American Cyanamid when he said at page 406 and I quote: -

“My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19^th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatened to do.

The object of the interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.

In those cases where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination.”

When attempting to apply the law to the facts of this particular matter one faces some difficulty. Clearly, there is a serious issue to be tried and equally clearly damages are not an adequate or even appropriate remedy in the circumstances, which leaves for further consideration the question of whether interim relief is justified on the balance of convenience. When one looks at the balance of convenience there is an obligation to look at –

1. relative hardships that would be visited on the parties;
2. whether irreparable harm to the plaintiff will follow;
3. undertakings by the plaintiff as to damages;
4. the impossibility or futility of performance;
5. unclean hands.
   

It seems to me that if the situation that has existed is allowed to continue the authority of the plaintiff is certainly placed in some jeopardy. As I understand the defendants’ submissions it is that hardship may follow to the defendants to the school if Mr Hassan be the Head Teacher.

The plaintiff of course submits that there is a code of conduct and appropriate protocol that enables any potential hardship to be dealt with administratively.

Will there be any irreparable harm to the plaintiff?

The plaintiff being the Permanent Secretary for Education will perhaps superficially not suffer any irreparable harm should the injunction be granted or not but I am of the opinion that the relevant consideration must be the authority of the Permanent Secretary for Education, the authority that has been given to that office by virtue of the law and the usurping of those legal rights may well cause irreparable harm.

The plaintiff gives an undertaking as to damages and that is not an issue. The impossibility or futility of performance. I have been informed appropriately by the counsel for the defendants that there is no impossibility or futility in the performance of any injunction granted as is sought by the plaintiff.

The issue of clean hands which of course includes the general equitable doctrines is an issue that has been raised by the defendant but it appears to me that the plaintiff comes to the Court with cleans hands in the circumstances.

It follows therefore that I am of the opinion that the relevant tests as I have expressed them have been satisfied by the plaintiff and that the relief sought should be granted. Having said that I am also of the view that it is a matter that should be resolved without undue delay and accordingly I propose to fix the originating summons for hearing at the first available opportunity.

My Orders are –

1. The defendants are restrained whether by themselves, their agents and/or servants from interfering with the plaintiff’s appointee, Mr. Mohammed Hassan from carrying out his duties pursuant to his lawful appointment as employment as Head Teacher at Ba Muslim Primary School.
   
2. Cost of the application will be costs in the cause.
   
3. The originating summons be listed for hearing on the first available date.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
22^ND JANUARY 2004