Sahib v Chief Executive for Works and Energy [2006] FJHC 76; HBC164.2006L (22 September 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 164 OF 2006L

NO. 192 OF 2006

BETWEEN

HANIF SAHIB, GANESH GOUNDAR, SURENDRA RAO, ASUDA DEWAN & RAVUAMA TANOA
Plaintiffs

AND

CHIEF EXECUTIVE FOR WORKS AND ENERGY
1st Defendant

AND

THE PRINCIPAL ACCOUNTANT MINISTRY OF WORKS AND ENERGY
2nd Defendant

AND

PUBLIC WORKS DEPARTMENT
3rd Defendant

AND

THE MINISTER FOR WORKS AND ENERGY
4th Defendant

AND

PUBLIC SERVICE COMMISSION
5th Defendant

AND

THE ATTORNEY GENERAL OF FIJI
6th Defendant

Appearances: Messrs Iqbal Khan & Associates for the plaintiffs
Mr. Anare Tuilevuka for the defendants

Hearing: 26 July 2006
Decision: 22 September 2006

JUDGMENT

[1] Before me is a motion filed by the plaintiffs for an order that they be reinstated to their former positions with full pay and all entitlements forthwith, alternatively that the plaintiffs’ be paid their full wages from the date of suspension to the date of completion of the investigation against them by the defendants. I granted leave on 26 July 2006 to amend the motion by including an additional prayer: a declaration that Legal Notices 92/2002 and 61/2005 under the Public Service Act (Regulations) 1999 and the Public Service Circular 12/2005 are ultra vires the Constitution (Amendment) Act 1997.

[2] The application is strongly opposed. Comprehensive affidavits have been filed by both parties.

[3] The plaintiffs are all established PWD staff based in Lautoka. All of them were suspended from employment for 3 months without pay from 15 March 2006 pending an investigation into suspected fraudulent activities within the section they worked at PWD’s offices in Lautoka. The suspension was extended by a further 3 months in June 2006.

Consideration of application

[4] One of the grounds raised opposing the application is Section 15 of the State Proceedings Act (the Act). Learned counsel for the defendants, Mr. Tuilevuka submitted that the interim relief sought by the plaintiffs is analogous to an interim injunction against the State which cannot be granted given the provisions of Section 15.

[5] Section 15 (1) (a) of the Act provides:

"In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that –

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties"

[6] I need only consider the application on this issue since that of itself is determinative of the application. The order sought by the plaintiffs is that they be reinstated to their former positions with full pay, alternatively that they be paid their full wages whilst on suspension until the investigation against them is completed. The plaintiffs’ relationship with the defendants is one of master and servant. It is well established law that a contract for personal services cannot be enforced by an order for specific performance. The general rule is that the court will not order specific performance of contracts of employment. That is essentially the effect of the order which the plaintiffs seek. The prayer for restoration of wages is injunctive in nature and if granted would offend the provisions of Section 15. Section 15 (1) (a) is a complete bar to the orders sought in the application. On that ground alone I have dismissed the application.

[7] I have also upheld Mr. Tuilevuka’s submission in respect of the constitutional argument raised by the plaintiffs. The inter-partes notice of motion herein is not the proper procedural vehicle for raising the constitutional issue. Although I had granted leave to amend the motion at the hearing, I am cognizant of the fact that in doing so, I have effectively deprived the defendants of their right to put further evidence before me addressing the issue. The affidavit material filed by the defendants is confined to the employment issues raised in the motion in its original form. In addition the evidentiary basis of the plaintiffs’ argument on this issue is not contained in the affidavits filed by the plaintiffs. Learned counsel for the defendants Ms Khan submitted that I exercise my discretion and convert the writ action to an originating summons. But that would entail further difficulties given the strongly contested facts between the parties. In the circumstances I have declined to consider the merits of the constitutional issue raised and will deal with it at a later stage if I am asked to.

Orders

(i) Inter-partes notice of motion filed on 21 June 2006 is dismissed and costs to the defendants assessed in the sum of $450-00

(ii) Case adjourned to 29 September for mention. The plaintiffs are to inform me how they intend to proceed with the action. A statement of defence will be ordered when they have clarified whether they intend proceeding with the writ of summons herein.

Gwen Phillips
JUDGE

At Lautoka
22 September 2006