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Amos v Toropo [2019] PGNC 362; N8093 (8 November 2019)

N8093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 663 OF 2019

BETWEEN
KAUPA AMOS for and on his behalf and MIGULE LUDWIG, MELEROT ROBIN, KAULE SCOTTY, AGIRU ALEX, MAIRI MAIRI, YUPANGA JOE, GURIA URBAN, WAIMI WALTER, WORIHUN, PHILIP KIAK discharged Army Officers with Respective ranks.
Plaintiffs

AND
THE COMMANDER, PNG DEFENCE FORCE, BRIGADIER GENERAL, GILBERT TOROPO
First Defendant

AND
PAPUA NEW GUINEA DEFENCE FORCE
Second Defendant

AND
THE INDEPENDENT STATE OF PNG
Third Defendant

Waigani: Makail, J
2019: 7^th & 8^th November

PRACTICE & PROCEDURE – Application for stay or interim restraining order – Eviction of members of the Defence Force – Members discharge on disciplinary grounds – Dishonourable discharge – Claim for service, termination and repatriation entitlements – Claim to entitlement to continued occupation of Defence Force issued accommodation pending payment of entitlements – Proof of – Lack of – Application refused

Cases Cited:

Nil

Counsel:
Mr. J. Poponawa, for Plaintiffs
Mr. R. Yahamani, for First & Second Defendants
No appearance, for Third Defendant

INTERLOCUTORY RULING

8^th November, 2019

1. MAKAIL, J: Pursuant to a Notice of Motion filed 6^th November 2019, the plaintiffs who have been discharged from the Papua New Guinea Defence Force (“PNG Defence Force”) in 2016 for disciplinary reasons, applied for an order to stay an order of 30^th October 2019 in proceedings HRA No. 10 of 2019 or alternatively, an interim injunction to restrain the defendants from evicting them from their Defence Force issued accommodation pending the determination of the proceedings.

2. According to the affidavit of the lead plaintiff Kaupa Amos sworn on 5^th November 2019:

• The plaintiffs were members of a team of soldiers who were deployed in 2014 to Komo Camp in Komo/Magarima District in Hela Province to prepare it for use by the PNG Defence Force when the developer – Exxon Mobil Limited closes down its construction and training facilities at the camp site.
  
• It was supposed to be a three month deployment but it turned out to be more than a year deployment.
  
• Each plaintiff was paid incidental allowance and meal allowance.
  
• Not all of the allowances were paid. Each plaintiff is owed K6,100.00 for incidental allowance and K39,500.00 for meal allowance.
  
• On 28^th July 2016 they were discharged from the PNG Defence Force on disciplinary grounds.
  
• They were given cheques but the amounts were incorrect because there was no one-on-one interview with them done. The termination and repatriation entitlements comprised of:
  
  • ➢ Money in lieu of Furlough Leave.
  • ➢ Money in lieu of Recreational Leave.
  • ➢ Airline ticket fares or hire car costs for those travelling by road.
  • ➢ Freight costs.
    
• In December 2018 they commenced HRA proceedings No. 285 of 2018 to enforce their human rights and were granted interim restraining orders against their eviction from the PNG Defence Force issued accommodation.
  
• On 6^th August 2019 the interim restraining orders were discharged.
  
• On 8^th August 2019 the defendants gave notice to the plaintiffs to vacate the PNG Defence Force issued accommodation.
  
• On 26^th September 2019 they commenced this proceeding.
  
• On 27^th September 2019 they attempted to obtain interim restraining orders before David J but were directed to return to the HRA proceedings.
  
• On 28^th September 2019 they filed an urgent application for interim restraining orders in the HRA proceedings.
  
• On 29^th September 2019 Cannings J granted their application for interim restraining orders.
  
• On 30^th October 2019 the interim restraining orders were extended until 7^th November 2019 to give the plaintiffs time to vacate the accommodation.
  
• On 7^th November 2019 the interim restraining order lapsed.

Power to grant a stay order

3. Based on the above facts as put by the plaintiffs, the power to stay orders of another National Court is in doubt. This Court is not sitting as a Court higher than the National Court which granted the interim restraining orders in the HRA proceedings. Thus, the order sought by the plaintiffs for this Court to stay the order in the HRA proceedings is beyond the jurisdiction of this Court and will be refused.

Interim Restraining Order

4. The originating summons including the facts as deposed to by Kaupa Amos show that the cause of action is one of breach of contract for services rendered to the defendants. What is being alleged to have been breached by the defendants is a term of the contract for plaintiffs to remain in their PNG Defence Force issued accommodation until they receive their service, termination and repatriation entitlement.

5. However, this claim is in doubt because they did not refer the Court to the governing document whether a written contract or Manual of Personnel Administration (“MPA”) which provided for this term or entitlement. Similarly, they did not refer the Court to evidence either in a written contract or MPA that provided for a one-on-one interview before the defendants may calculate their termination and repatriation entitlements.

6. In the absence of this evidence, the relationship between the plaintiffs and the defendants must be categorised as one of master and servant relationship. Where the relationship is terminated, there is no obligation on the defendants to allow the plaintiffs to be accommodated until they receive their termination and repatriation entitlements.

7. That kind of relationship places the plaintiffs in the hands of the defendants to hire and fire at will. But they were discharged on disciplinary grounds. In the military language, it was a “dishonourable discharge”. The question which has not been adequately answered by them is whether they may continue to occupy PNG Defence Force issued accommodation on account of their request to the defendants to review the sum due and payable to them after they claimed that the sums tendered to them by cheque were “incorrect”.

8. In short, they are entitled to sue for any short-fall, in one package, for service, termination and repatriation entitlements but the evidence is inadequate to support their claim to remain in the PNG Defence Force premises until this proceeding is concluded.

9. Finally, they were given more than enough time since December 2018 to vacate the accommodation by the defendants. They even benefited from the interim restraining order granted by the Court in HRA proceedings which allowed them further time until 7^th November 2019 to vacate.

10. For these reasons, with the question as to the legitimacy of their continued occupation of the PNG Defence Force issued accommodation in doubt, the defendants will not be guilty of being unreasonable or denying the plaintiffs’ right to a smooth repatriation if the interim restraining order is declined.

Order

11. The orders are:

1. The application for stay or interim restraining orders is refused.

2. The plaintiffs shall pay the costs of the application, to be taxed, if not agreed.

________________________________________________________________
Jopo Lawyers: Lawyers for Plaintiffs
Defence Force Legal Officer: Lawyers for First & Second Defendants
Solicitor General: Lawyers for Third Defendant