Cawa v Fiji Military Forces [1998] FJHC 161; Hbc0188d.97s (20 November 1998)

Fiji Islands - Cawa v Fiji Military Forces - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 188 OF 1997

BETWEEN:

VILIAME SAMU CAWA
Plaintiff

AND:

1. FIJI MILITARY FORCES
2. PERMANENT SECRETARY FOR HOME AFFAIRS
3. ATTORNEY-GENERAL OF FIJI
Defendants

p class=MsoNormal>Mr. Devanesh Sharma for the Piff
Lt. Col. T. Bukarau & Ms. N. Basawaiya for the the Defendants

DECISION

This is the plaintiff's summons under Or.18 r.19(a), (b); (c) and (d) of The High Court Rules seeking the following orders:

"... an ORDER pursuant to Order 18 rule 19(a), (b), (c), (d) and the inherent powers of the Court to strike out defence and to enter judgment for the Plaintiff on the grounds that:-

(a) The Statement of Defence discloses no reasonable grounds of defence;

(b) That it is frivolous and vexatious.

(c) It is an abuse of the court process.

(d) It is a sham defence and will cause prejudice and delay to the fair and expeditious disposal of the Plaintiff's claim".

In support of his summons the plaintiff has filed an affidavit to which Lieut. Col. T. Bukarau, the Director Army Legal Services replied on behalf of the first defendant (D1) by affidavit sworn 16 March 1998.

I have before me the affidavits referred to hereabove and the oral arguments of the learned counsel for the parties as well as a written submission from Mr. Sharma for the Plaintiffs.

Background facts

The plaintiff issued a writ of summons against the defendants to which the defendants have filed a Statement of Defence.

The Chronology of Events are set out clearly in the written submission of Mr. Sharma.

In short the facts relating to the plaintiff inter alia are that he enlisted in the Fiji Military Forces (D1) in 1982. In 1989 he became a member of the Regular Force. On 18 April 1995 (as is Chronology of Events):

"Plaintiff pleaded guilty to a charge of Assault Occasioning Actual Bodily Harm at Nausori Magistrates Court. The Complainant in the case had caused a collision with the Plaintiff's vehicle. An argument broke out between the Complainant and the Plaintiff in which the Plaintiff punched the Complainant to calm him down. The Complainant was intoxicated and was charged with a traffic offence.

The Magistrate considered the mitigating factors and gave the Plaintiff a conditional discharge i.e. bound over for 12 months under section 44 of the Penal Code. Case No. 260/95".

In July 1995 as a result of that case the plaintiff was discharged from D1 by Capt. Tokova on the grounds of misconduct pursuant to Army Regulations 9.404(f)(1) without prior warning to the plaintiff.

The plaintiff made unsuccessful attempts to become reinstated. On 3 June 1996 Messrs. Q.B. Bale & Associates wrote to D1 alleging wrongful discharge for the reason that D1 completely disregarded Reg. 9.404(g), failed to adhere to the procedure outlined in Reg. 9.406(c) and (d) and that the discharge was not effected by the Brigade Commander as is required and Reg. 9.404(f).

On 2 July 1996, D1 responds in writing and accepts that the Plaintiff's discharge has been inconsistent with the Army Regulations and recognises its (D1's) liability in the letter. Then on 8 October 1996 Bale & Associates wrote and set out the terms for computation of compensation and reinstatement. Several reminders after that by Bale & Associates and Messrs. Jamnadas Jalal & Associates failed to attract any response. As a result this action was instituted.

Plaintiff's submission

The plaintiff's counsel submits that this is a writ for unlawful dismissal and because of D1's previous admission of liability it made it an abuse of the process of the court for it to now deny liability; but in any event it has no defence to the claim.

Mr. Sharma says that in breach of the Army Regulations the plaintiff was dismissed from the Force. He says that there was non-compliance with Regulation 9.406 and the dismissal was without a warning.

Regulation 9.404(g) states as follows:-

A soldier who has been placed on probation or discharged absolutely or conditionally by a civil court is deemed not to be convicted and may not be discharged under this paragraph. If despite non-conviction the soldier's retention is considered undesirable, an application may be submitted to immediately discharge under 9.414 with full reasons to support the recommendation.

Mr. Sharma submits under Reer Reg. 9.404(g) the plaintiff was deemed not to have been convicted. There was nothing in the plaintiff's case which warranted an immediate dismissal.plaintiff was simply discharged under Reg. 9.404(f). He saye says that the plaintiff's dismissal was unlawful and that failure to respond after 'admission' leaves D1 with no defence and that the Statement of Defence discloses no reasonable cause of defence and the continued denial of liability is an abuse of the process. He asks that the Defence be struck out and judgment be entered for the plaintiff.

Defendants' Reply/Submission

Lt. Col. Bukarau deposed that the 'views' expressed in the said letter of 2nd July 1996 were his own and he intended to "take instructions and revert to your goodself" (the Plaintiff's solicitors) in due course and that the Army as such had not reached any final decision or agreement in respect of the plaintiff's claim". That in effect is the defendant's argument.

Consideration of the issue

I have given careful consideration to the matters raised by both counsel in their submission to Court.

It is a matter of some criticism that after the letter of 2 July 1996 from Major Bukarau to Q.B. Bale & Associates there was complete silence on the part of D1 despite repeated reminders for a response. The contents of the said letter did create the impression in the mind of the plaintiff that there was admission of liability and all that was left was to consider appropriate damage. One cannot overlook the fact that the Major wrote on behalf of the first defendant on its letter head as Director Army Legal Services. Now he says that what is stated there are his 'personal view', and also that the matter was not closed and the first defendant had still to make a decision.

Be that as it may, the Statement of Defence filed raises a number of triable issues including the interpretation of the various Army Regulations and in particular Regulation 9.404 and also the question of the applicability and enforceability of Queen's Regulations.

On all the facts and circumstances of this case I would rather see that this action take its normal course and counsel should see that this action is entered for trial without further delay.

The application is for these reasons refused with costs in the cause.

D. Pathik
Judge

At Suva
20 November 1998

Hbc0188d.97s