Abdul Hamid Acting LP:

This is an appeal against an exercise of discretion of the Court below. The facts are not in dispute. Indeed in the grounds of judgment the learned Judge made the following findings:

(1) that a resolution suspending the appellant was passed in his absence. He was orally informed. A letter followed on 26 November 1985;

(2) that the appellant was not notified of Majlis Kerja Tertinggi's intention to resolve his suspension;

(3) that the appellant was not given any notice specifically of what he was accused of. It was only the appellant's belief that Majlis Kerja Tertinggi was going to discuss his conduct when he was asked to leave the meeting; and

(4) that the appellant was not given the opportunity of being heard before the resolution was made to suspend him.

However the learned Judge declined to grant the interlocutory injunction sought by the appellant on two grounds. The question we have to decide on appeal is whether the learned Judge had erred in law in so declining.

The principles governing the exercise of discretion to grant or withhold an interlocutory injunction are well established. Injunction is pre-eminently a discretionary remedy. The discretion is to be exercised judicially. It is also well established that such an exercise of discretion will not be interfered with by an appellant Court save in exceptional cases such as where the decision of the trial Judge is shown to be based on erroneous assumptions of law or fact or where no reasonable explanation is given for the decision. It is not enough that the appellant court might have exercised the discretion differently. See Equitable Remedies by Spry, 3rd Edn. and Hadmor Productions Ltd. & Ors v. Hamilton & Anor [1983] 1 AC 191. We might add that a decision will be set aside on appeal if the Court has failed to act in accordance with recognized principles.

In this case it is quite clear from the affidavits that there is a prima facie case of natural justice having been denied to the appellant. In other words the claim was not frivolous or vexatious and that there is a serious question to be tried - see American Cynamid Co. v. Ethicon Ltd. [1975] 1 All ER 504. It is also clear that in law there is no distinction between expulsion and suspension - see John v. Rees [1969] 2 All ER 299, Lawlor v. Union of Post Office etc. [1965] 1 All ER 353, and Stevenson v. United Road Transport Union [1977] 2 All ER 941. But that alone is not sufficient for the appellant to obtain the interlocutory injunction as of right. In this case the trial Judge considered that the balance of convenience did not lie in favour of the appellant.

He summarised his judgment at p. 20 of the record of appeal in that the suspension was only for six months and when the application was heard before him three months had lapsed. But it will appear that the trial Judge also relied on the long delay of two months before the appellant sought relief and this delay the Judge held to be unreasonable and unexplained by the appellant. Discretionary remedies are exceptional in their nature and shall not be made available to those who sleep on their rights. See R. v. Senate of University of Aston [1969] 2 All ER 964 and Evercrisp Snack Products Sdn. Bhd. v. Sweeties Food Industries Sdn. Bhd. [1979].

Thus there therefore are two factors which the learned Judge considered. Firstly, the fact that half of the period of suspension had lapsed. Secondly, he found the delay of two months unreasonable and no explanation given. Relying on the principle which governs the approach to be taken by an appellate court in a matter of this nature, it is our view that the decision should not be interfered with and accordingly the appeal is dismissed with costs.

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