Wakolo v Fiji Independent Commission Against Corruption [2021] FJHC 417; HBC271.2017 (1 February 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 271 OF 2017

BETWEEN : JIUTA MOCEVINAKA WAKOLO
PLAINTIFF

AND : FIJI INDEPENDENT COMMISSION AGAINST

CORRUPTION
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : In Person [Not Represented]

DEFENDANT : Ms S Dutt [Fiji Independent Commission Against Corruption]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 01 February 2021

INTERLOCUTORY RULING

1. The Defendant seeks to have claim against it struck out on the grounds that the action is statute barred and has no reasonable cause of action.
   

The application is made pursuant to section 4(1) (a) of the Limitation Act.

2. The Plaintiff’s claim is for unfair and unlawful termination of employment by the Defendant.
   
3. The Plaintiff is said to be employed with Fiji Independent Commission against Corruption [FICAC] with effect from 24^th September 2017. The employment contract was for a probationary period of 03 months.

The Defendant claims to have received a report alleging the Plaintiff whilst on his probationary period came to work heavily intoxicated. As a result the Plaintiff was given a warning letter.

The Plaintiff was requested to respond to the allegation in writing which he did.

On or about 24^th December 2007, the Plaintiff was issued with a letter advising him that his probationary period had expired and will not be renewed.

On or about 02 February 2010, the Plaintiff claimed his annual leave pay through the Ministry of Labour, Industrial Relations, Employment. Payments were made to the Plaintiff for his accrued leave.

The Plaintiff wrote to the then President about his termination and claiming compensation of salary and letter to the Attorney General Office.

The Plaintiff is said to have sought re-instatement and compensation from the Defendant through the Arbitration Court under the then Employment Relations Promulgation Amendment Act.

On or about 21^st March 2017, the Arbitration Court informed the Plaintiff that his application against the Defendant could not be maintained.

On or about 21^st September 2017, the Plaintiff filed the said action against the Defendant.

4. Section 4(1)(a) of the Limitation Act does not allow for an action founded on simple contract or tort to be brought after expiration of 6 years from the date on which the cause of action accrued.
   
5. In Riches v DPP [1973] 2ALL ER 935 whilst deciding on an appeal from an order of the court allowing a decision of the Master’s Court that the Plaintiff’s claim be struck out under RSC Ordinance Order 18 Rule 19 the Judges of Appeal made following comments whilst upholding the Judge’s decision and dismissing the appeal.
   

Davies LJ. at page 939:

“I do not want to state definitely that, in a case where it is merely alleged that the Statement of Claim disclosures no cause of action, the limitation objection should or could prevail. In principle I cannot see why not. If there is any room for an escape from the statute, well and good; it can be shown. But in the absence of that, it is difficult to see why a defendant should be called on to pay large sums of money and a Plaintiff be permitted to waste large sums of his own or somebody else’s money in an attempt to pursue a cause of action which has already been barred by the statute of limitation and must fail.”

Stephenson LJ at page 941:

“There is no material put before the court which could possibly suggest that the statute will not be a complete answer to the Plaintiff’s claim. I think it would be absurd for the court, faced with an application such as this to strike out, under its inherent jurisdiction or under the rules, a claim as an abuse of the process of the court, to shut its eyes to the fact that there is going to be raised an apparently unanswerable plea of the Limitation Act 1939. ............. Why should such a claim not be an abuse of the process of the Court? Why should not the court exercise its inherent jurisdiction to stay or dismiss an action which must fail?”

6. As per the Appointment Letter [Annexure A to the Affidavit in Support] the appointment was with effect from 24^th September 2007 with a probationary period of 3 months and the position could be terminated by either party giving a 3 weeks’ notice in writing.
   
7. On or about 24^th December 2007 the Plaintiff was issued with a termination letter informing him that the end of the probationary period his contract will not be renewed.
8. The alleged breach by the Defendant was in December 2007.
   
9. The current action was filed in 2017 some 10 years after the alleged breach.
   
10. As such I find that the Plaintiff’s claim is statute barred under section 4(1) of the Limitation Act and is accordingly struck out.
    
11. The Plaintiff is ordered to pay cost to the Defendant which is summarily assessed at $500 to be paid in 14 days.
    

...............................
Vandhana Lal [Ms]
Acting Master
At Suva.

01 February 2021.

TO:

1. Suva High Court Civil File HBC 271 of 2017;
2. Jiuta Mocevinaka Wakolo the named Plaintiff appearing in person;
3. Fiji Independent Commission Against Corruption, the named Defendant appearing through its in-house solicitors.