Matalau v Fijian Affairs Board [1992] FJHC 35; Hbc0581j.88s (11 September 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 581 OF 1988

BETWEEN:

KOLINIO BUIBOTO MATALAU
of 1 Waimate Street, Lami, Suva
formerly Roko Tui Ra of the Fijian Affairs Board
Applicant

AND

THE FIJIAN AFFAIRS BOARD
a statutory authority under the Fijian Affairs Act Cap. 120
Respondent

Mr. T. Fa for the Applicant
No appearance for the Respondent

Dates of Hearing: 5th and 11th March, 8th September 1992
Date of Judgment: 11th September 1992

JUDGMENT

The Applicant is now 50 years old and was an employee of the Respondent (which I will hereinafter refer to as "the Board"), for a period of twenty-three years from the 1st of May 1964 until he was purportedly dismissed from the Board on the 11th of November 1987.

The Respondent is a statutory authority under the Fijian Affairs Act, Cap.120. In the conduct of the day-to-day affairs of the Board, the Permanent Secretary for Fijian Affairs is the Board's Chief Executive Officer.

During the period of his employment the Applicant worked for the Board in various capacities, his last such being the Roko Tui Ra which is the senior executive position in a province.

On the 5th of May 1987 he wrote a "confidential and personal" letter to Dr. Timoci Bavadra who was then the Prime Minister for Fiji and Minister for Fijian Affairs. In this letter Mr. Matalau complained about his employment and the difficulties he was experiencing in it including a review of his salary and of an application he had made for a Fijian Affairs Board or Government scholarship to go overseas for the purpose of obtaining a Master's Degree in Local Government and Administration at the University of Birmingham, United Kingdom.

On the 24th of August 1987 he received a memorandum from the Permanent Secretary for Fijian Affairs informing him that he was to be charged with a disciplinary offence of insubordination and disobedience to a lawful instruction of the Permanent Secretary.

Before he received this memorandum he had already been charged with another disciplinary offence of insubordination for allegedly questioning and ridiculing a decision taken by the Ministry refusing to let him apply for a scholarship in America.

On the 25th of August 1987 Mr. Matalau wrote a memorandum to the Permanent Secretary purporting to explain his various actions and including this sentence, "However, I am firm on leaving the service of the Board, as communicated on 3/8/87, on 21/9/87 so that I could be much freer to tackle all outstanding irregularities from outside .........".

It is not necessary to refer to the various letters or memoranda which passed between Mr. Matalau and the Board and others until the 10th of June 1987 on which date he wrote a letter to the Permanent Secretary for Fijian Affairs requesting that he be released on study leave. This brought a reply from the Permanent Secretary refusing his application first because the Ministry could not release him at that time because of a critical shortage of staff but also because as he was still under disciplinary action that would have to be resolved before his application could be considered.

On the 13th of August 1987 the Applicant wrote to the Adviser or the Minister of Fijian Affairs in a letter which omitting formal parts was headed "STUDY LEAVE WITHOUT PAY AND OR RESIGNATION W.E.F. 21/9/87". In this letter Mr. Matalau renewed his request for study leave and made various complaints about the way he had been treated by his employer. The second paragraph is important. In it he wrote:

"I have been applying for a study leave and an FAB scholarship to do further studies leading to a Master Degree for a long time since my release had been refused from the last year, I have no alternative but to ask for the above, please. Although this is the saddest decision I have ever made, I am doing so after careful consideration and this is made on the following grounds:"

Mr. Matalau then listed various grounds.

In the penultimate paragraph of his letter he wrote:

"In the event of my resigning from the service of the Board, if this step is to be taken as the last resort,"

and then stated his appreciation of the assistance the Board had given him in the past.

The Permanent Secretary for Fijian Affairs replied to the Applicant's letter stating that his request for study leave would be considered only when the disciplinary actions against him had been completed and concluded "Your notice of resignation cannot be considered until the actions referred to above are completed."

On the 16th of September 1987 after giving the matter serious consideration Mr. Matalau wrote to His Excellency the Governor-General through the office of the Adviser of Fijian Affairs requesting the withdrawal of his letter of resignation.

Again on the 16th of September 1987 he states that shortly before mid-night he received a memorandum from the Permanent Secretary for Fijian Affairs accepting Mr. Matalau's resignation.

I have taken the above history from an affidavit which the Applicant swore on the 26th of August 1988 in support of an Originating Summons which I now have before me. This Summons seeks the following declarations:

(a) That the acceptance of the Applicant's resignation after it was withdrawn before the stipulated date 21st September, 1987 was unfair, contrary to law and in violation of the principles of natural justice so as to amount to unlawful dismissal.

(b) The applicant also seeks a declaration that his dismissal was null and void and that he is still a "Roko" in the employment of the Fijian Affairs Board.

(c) Alternatively he seeks damages amounting to 10 years salary at the rate of $16,185.45 per annum.

The Respondent has filed an Affidavit in Reply to the Applicant's affidavit, this being by Dr. Filimone Wainiqolo, the Permanent Secretary for Fijian Affairs. It is unnecessary to refer to most of this affidavit which contains certain admissions and denials of matters alleged by the Applicant. But paragraph 10 is important. There Dr. Wainiqolo states that the Respondent received the Applicant's letter of withdrawal of his resignation on the 17th of September 1987.

Unfortunately the Respondent was not represented by solicitors or other counsel before me at any time during the hearing. I find this inexplicable and I consider it fair to say on the material before me that the Respondent has cause to complain about the conduct of its legal representatives. The present solicitors on the record Messrs Bulewa & Co. appear to have received instructions in June 1989, thereafter they appeared regularly at preliminary hearings before the Chief Registrar and before my brother Scott on the 28th of October 1991. They were informed by the Chief Registrar that on the 15th of January 1992 a date would be fixed for the hearing of the case but they did not attend before the Chief Registrar on that day. Likewise they did not appear before me on the day fixed for hearing, the 5th of March 1992.

On that date I took sworn evidence from the Applicant and later received written submissions from his solicitors. However as I read the papers I realised that I required clarification on certain matters but particularly those relating to the times at which the Applicant received notice of the acceptance of his purported resignation and of the date on which the Respondent received the Applicant's letter of withdrawal of his resignation.

Accordingly I took further evidence from the Applicant on the 8th of September and Mr. Fa then made a short submission. In his previous written submissions Mr. Fa argued that in all the circumstances Mr. Matalau had been denied natural justice in that he was never given a fair hearing by the Respondent. He cited several well known authorities on this question to which it is not necessary for me to refer. He also submitted, and I accept this, that although it might be thought the Applicant should have proceeded by way of application for judicial review of the Board's decision, nevertheless the Applicant was entitled if he wished to proceed by Originating Summons seeking declarations. This was the view taken by Mr. Justice Kermode in SEFANAIA MASI KAUMAITOTOYA -v- THE CONTROLLER OF PRISONS AND ATTORNEY-GENERAL OF FIJI - Civil Action No. 282 of 1982.

Similar views had earlier been expressed by Lord Goddard in PYX GRANITE CO. LTD v. MINISTRY OF HOUSING AND LOCAL GOVERNMENT (1960) AC 260.

Until I heard Mr. Fa make an alternative submission on the 8th of September I was of the view that this case fell to be decided on the ordinary principles of offer and acceptance and withdrawal of offers well known in the law of contract. Particularly I considered that the decision of Lindley J., as he then was in BYRNE v. VAN TIENHOVEN & CO. [1880] UKLawRpCP 10; (1880) 5 C.P.D. 344 bore clearly on the matter I had to decide. In BYRNE v. VAN TIENHOVEN & CO., Mr. Justice Lindley held that the withdrawal of an offer must be communicated to the person to whom it is sent before it can be withdrawn in law.

In short evidence before me on the 8th of September 1992 Mr. Matalau stated that a letter of acceptance of his resignation had been handed to him personally by a senior officer of the Fijian Affairs Board one Asesela Sadole at Mr. Matalu's home a few minutes before mid-night on the 16th of September 1987 but that he had posted his letter purporting to withdraw his offer of resignation at some time during the morning of the 16th of September and that he agreed it would not have been received by the Respondent until the 17th of September at the earliest.

In these circumstances if this case is governed by the law of offer and acceptance I must hold that the Board accepted Mr. Matalau's resignation on the 16th of September 1987 when it was handed to him and that consequently, since the Board did not receive his letter of withdrawal until the 17th of September, the latter was ineffective in law.

However in his alternative submission Mr. Fa argued that it was immaterial when the Applicant's letter of withdrawal was received by the Board because the Board had never made any decision affecting the Applicant and that under the Act only the Board could do so. He referred me to Sections 12 and 14 of the Act. Section 12 states that "the Minister may, with the advice of the Board, appoint Rokos of Provinces". In Mr. Matalau's case this was done because on the 29th of June 1984 in a copy letter annexed to his first affidavit the then Permanent Secretary for Fijian Affairs wrote to Mr. Matalau stating that at the meeting held on Tuesday 26th of June 1984 the Fijian Affairs Board decided that Mr. Matalau was to be posted to Ra province, as Roko Tui with effect from the 13th of August 1984. This was obviously done under Section 12.

Section 14(2) states that if the Minister is of opinion that there are grounds for considering the removal of a Roko from office ...... he may refer the matter to the Board for inquiry, at which the Roko shall be entitled to be heard.

Mr. Fa drew my attention to the fact that throughout the various correspondence which Mr. Matalau received concerning his dispute not one letter or memorandum was written by the Board except that of the 29th June 1984 which refers to the decision of the Board to appoint him. All the other letters or memoranda which Mr. Matalau received were from the Permanent Secretary for Fijian Affairs. I accept this submission.

Under Sections 3 and 4 of the Fijian Affairs Act one of the functions of the Board in conjunction with the Great Council of Chiefs is to work for the benefit of the Fijian people. The Board is a body corporate having the usual powers and duties of bodies corporate including that of taking decisions deemed to be for the benefit of the Fijian people.

In my judgment the combined effect of Sections 4, 12 and 14 is to vest the responsibility for making decisions affecting the appointment of Rokos or Fijian Magistrates in the Board only and there is no evidence before me that the Board ever considered the Applicant's position. It appears from the letter of the Permanent Secretary for Fijian Affairs of the 16th of September 1987 that the Secretary had communicated with the Adviser for Fijian Affairs but not the Board itself. The constitution of the Board is set out in regulation 2 of the Subsidiary Legislation namely, the Minister, 18 Fijian Members of the House of the Representatives and 2 Members of the Great Council of Chiefs.

For these reasons I declare that the Respondent's purported acceptance of the Applicant's resignation by the Permanent Secretary for Fijian Affairs and the Adviser for Fijian Affairs was invalid in that this resignation could only have been accepted by the Fijian Affairs Board.

I therefore further declare that the Applicant is still a "Roko" in the employment of the Respondent.

I also order that the Respondent pay the Applicant his costs of these proceedings to be taxed if not agreed.

JOHN E. BYRNE
JUDGE

HBC0581J.88S