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Fiji National Provident Fund v Rokovunisei [2011] FJHC 76; HBC424.2007 (18 February 2011)
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 424 of 2007
BETWEEN
FIJI NATIONAL PROVIDENT FUND
a corporate body duly registered under
the FNPF Act Cap 219, 33 Ellery Street, Suva
Plaintiff
AND:
OLOTA ROKOVUNISEI
of 761 Damu Circle, Pacific Harbour, Deuba,
Businessman
Defendant
BEFORE : Master Deepthi Amaratunga
COUNSELS :
PARSHOTAM & CO. for the Plaintiff
HOWARDS LAWYERS for the Defendant
Date of Hearing: 22nd September, 2010
Date of Ruling : 18th February, 2011
RULING
- INTRODUCTION\
- This is an application for a judgment against the Defendant on admissions in terms of the Order 27 Rule 3 of the High Court Rules.
- FACTS
- The Plaintiff is seeking judgment to be entered in its favour against the defendant in the sum of $90,538.75 together with interest
at the rate of 3.6% per annum from 13th September, 2007 and the Defendant has pleaded a counterclaim for unlawful termination in
accordance with the clause 36(1) of his contract of employment for a sum of $179,228.
- The Defendant has admitted obtaining the loans given to its employees including this loan upon the terms and conditions of those loans.
The terms and conditions of the loan in question are not before the court. No party has filed the said contract or alleges any term
of the contract that deals with the position regarding the termination of employment and how the employer (Plaintiff) will recover
the loan in such an instance.
- The contract of employment was entered in to on 1st June, 2004 and it was terminated on 19th April, 2007. The initial time period
of the contract was for 5 years and it was terminated before the expiry of that time.
- LAW AND ANALYSIS
- The Order 27 rule 3 states as follows:
"Where admissions of fact or of part of a case are made by a party to a cause or matter either by his or her pleading or otherwise,
any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he or she may be
entitled to without waiting for the determination of any other question between the parties and the Court may give such judgment
or make such order on the application as it thinks just."
- The contract of employment was entered into on 1st June, 2004 between Plaintiff and the Defendant, for a period of 5 years and it
was terminated by the Plaintiff before the expiry of the time period. The employment contract expressly deals with termination of
the contact before the expiry of the term and Defendant is relying on those terms and makes a counter claim. The Defendant states
that his contract of employment was terminated unlawfully, but admits the loan in question including the amount in the statement
of claim. It is clear that Defendant admits the receipt of the loan that was granted to him during the employment upon the said terms.
- The Defendant's counter claim was a set off to the Plaintiff's claim in terms of his contract of employment that was annexed as OTR
2 to his affidavit in reply.
- In the Supreme Court Practice (White Book) on Order 27 "Admissions" it states at paragraph 27/3/4/ (at page 502) "Where the defendant admits a claim but pleads a counterclaim the plaintiff may obtain leave so sign judgment of the terms that the
money is to be paid into Court, or that there is a stay of execution pending the trial, or it may be refused according to circumstances( see Showell v Bouron(1883) 52 L.J.Q. 284; Mersy.etc.,Co. V Shuttlewoth([1883] UKLawRpKQB 85; 1883) 11 Q.B.D. 531".
- It is clear that discretion is granted to court in determining this issue when there is a counter claim. It is to be noted that every
counterclaim will not be regarded equally and each and every counterclaim has to be considered with the circumstances of the case
in determining the issue of entering a judgment on admissions when there is a counterclaim. The bona fides of the claim has to be
considered from the materials available to the court.
- The Defendant does not dispute the loan being obtained while in the employment with the Plaintiff. His position is that in accordance
with his contract of employment, if the contract is terminated before the stipulated 5 year time period, he should be paid in terms
of the contract and he also states that employment was terminated unlawfully and he makes a counterclaim of $179,228.00. It should
be noted what whether his employment was terminated unlawfully or not cannot be decided summarily at this stage.
- In South Pacific Aquatic Inc V Information Technology Services(Fiji) Ltd (2001) FJHC 97 it was sited with authority the judgment of the New Zealand Court of Appeal case of Grant V NZ MC Ltd [1988] NZCA 135; (1989) 1 NZLR 8 and in that judgment, Sommers J held:
"The principle is we think, clear. The defendant may set-off a cross-claim which so affects the plaintiff's claim that it would be unjust to allow the plaintiff to have judgment without bringing the cross-claim to account. The link must be such that the two are in effect interdependent: judgment on one cannot fairly be given without regard to the other; the defendant's claim calls into question or impeaches the plaintiff's
demand. It is neither necessary, nor decisive, that claim and cross-claim arise out of the same contract" Grant V NZ MC Ltd [1988] NZCA 135; (1989) 1 NZLR 8.
- It is to be noted that that counter claim is based on a claim that is the subject matter of this court in Civil Action No 319 of 2007
and it is also noted that before filing of the present case by the Plaintiff, the Defendant has filed the Civil Action No 319 of
2007 and it should also be noted that the counter claim and the loan in question both interdependent as they arose from the employment.
If the Defendant was not an employee he would not have obtained the loan under the said conditions and at that same time if his employment
was not terminated before the stipulated time the Plaintiff's claim would not have been maintained in the present form. So, it is
clear that claim and counter claim are interdependent. If the counter claim is successful there will not be a claim as it will set-off
the claim.
- It is also noteworthy that no formal loan contract was submitted to court. The Defendant has admitted the sum $90,538.75 as the outstanding
amount, in the statement of the defence and in the corresponding affidavit.
- The Paragraph 4 of the affidavit of the Aisake Taito of 11th September, 2007 state "The Defendant was an employee of FNPF and had obtained unsecured loans form FNPF in sum of $ 90,538.75 under the contract that governed
his terms and conditions of employment" and the Defendant has admitted this in the statement of defence and the relevant paragraph in his affidavit filed.
- It is clear that Defendant is not denying the loan or the interest on it, but only alleging illegal termination of the employment
contract by the plaintiff and has already taken legal action regarding this issue, which is yet to be determined by a court of law.
It should be noted that the present loan has admittedly granted while in the employment, under the terms and conditions in the employment
contract and such other terms and conditions applicable to employees and the recovery of the loan by way of a claim arose from the
termination of the contract of employment, which according to the Defendant was done illegally. If the contract of employment was
not terminated the claim would not have arisen to the Plaintiff and the termination is challenged by the Defendant, before this action
was instituted. The final determination of the alleged illegal termination will have a direct effect on the present claim of the
Plaintiff.
- CONCLUSION
- In the circumstances the judgment for the Plaintiff is entered as prayed in the summons dated 29th January, 2009 and stayed till
final determination of the counter claim of the Defendant in this case is determined.
- Cost for the Plaintiff will be cost in the course.
Dated at Suva this 18th day of February, 2011
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva
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