The folg affidavits were filed:-
(i) p;&nssp; p; &nbp; &nbp; ;&nbpp; &nAsp; caplicant, in supporupport 26 July, 1996;
(ii> (ii)&nbs) &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;; &nnbsp; &nbp; &nbp; Resnondein answer 19 SepteSeptember, 1996;
(in">(iii) p;&nbbsp; Asp; Applicaplicant, second in support to October 1996;
(iv) &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nMrs Shareen Mani Kuni Kumar, 4 December 1996;
(v) &nsp; &bsp; nbsp; &nbbs; Applicant, in reply 13 Jan3 January 1997.
& When the parties first appeared I only had the first affidavit before me. From that affidavit it appeared that although the Applicant
had received the notice of his dismissal on or about 6 April 1994 (paragraph 30) he had not taken any further step until 9 January
1995, over 8 months later, when he had consulted his solicitors. Legal proceedings were not commenced until 26 July 1996. Evidently
being aware that the Respondents would be likely to raise the question of delay the Applicant deposed (paragraph 36) that:
;Due to my financial constraints unleashed by my interdiction and subsequent dismissal from from service I was not in a position to
engage any lawyer to take up my case and to avoid getting embroiled into any legal proceedings at that time I did not take any further
steps by way of challenging my dismissal in Court." He added (paragraph 79):
"In fact I was e to make an application to this Honourable Court any earliearlier because of my financial constraints. It was
after some of my friends and well wishers offered to pay for my legal costs that I now make this application to seek redress for
my grievance and obtain appropriate remedies as provided in law."
In view of the fact that the Applicant had deposed that he had been a school te for over 24 years, that heat he had been a Head Teacher
since 1988 and that he owned his own home (paragraph 78) I found his assertion of indigence in 1994 to be somewhat unconvincing and
lacking in detail. I adjourned the hearing and granted leave to the Respondents to file an affidavit in answer. I also gave the Applicant
leave to file a further affidavit in support and indicated that I required further evidence of his means at the relevant time.
After the Respondents' affidavit in answer was filed the Applicaled his second affidavit in support. The further informatiomation
as to his means at the relevant time is contained in paragraphs 19 - 27 but in my view it did not clarify the position to any significant
degree. While it clearly emerged that the Applicant was, in the early part of 1994, under considerable financial strain having just
completed construction of his home it also emerged that his wife is and apparently was also working at the time at an undisclosed
salary. The question which calls for answer is not whether the Applicant was facing financial difficulties but whether his financial
difficulties were such that he "was unable to obtain legal representation or make an offer of payment" (paragraph 22).
Despite clearly being called upon by the Court to provide detailed particulars of his financial circumstances at the relevant time
the Applicant failed to do so. Furthermore, the Applicant's assertion that he was unable to afford to take legal action until July
1996 does not seem to be consistent with Exhibit L to his first affidavit, a letter dated 9 January 1995 from his solicitors addressed
to the Public Service Commission the third paragraph of which reads:
"We have been instructed by our client to institute proceedings inHigh Court of Fiji at Suva Suva against the Commission and
the Ministry of Education and to seek, inter alia his re-instatement, recovery of loss of wages and damages which loss and damage
is continuing, and costs occasioned by such proceedings."
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> There is and and central matter requiring attention and this is the issue of the Applicant's honesty.esty.
As will be seen from the affidavits tplicant's difficulties began when it was discovered that soat some very substantial amounts of
money had gone missing from the Dilkusha Methodist Boys Primary School at Davuilevu of which the Applicant was the Head Teacher.
On 7 December 1993 a special meeting o school's Council was held. A copy of what is said to be thbe the full minutes of the meeting
of the Council is Exhibit A to Shareen Mani Kumar's affidavit. The following day, 8 December 1993 (the letter is clearly wrongly
dated 1994) the Chairman of the meeting, the Rev. William Lucas wrote to the Permanent Secretary for Education advising him that
at the meeting the Applicant had admitted misappropriating school funds and had offered to repay $20,000 by way of three instalments.
It was this complaint, which also contained a request that the Applicant be immediately removed from the school, which ultimately
led to disciplinary charges being laid against him and which in turn led to his dismissal from the Civil Service.
In the light of the sequence of events detain the affidavits it is important to emphasise that the only only decision which it is
sought to remove and quash was the decision reached on 6 April 1994.
After the Applicant had been dismissed from the Service the Rev. William Lucas had a change of heart. On 20 September 1995, that is
18 months after the Applicant had been dismissed, the school Council met again (Exhibit N to the Applicant's first affidavit). It
was suggested at the meeting that the cause of the loss of the funds was not misappropriation by the Applicant but the lack of a
proper accounting system; a failure for which the school Council and not the Applicant was to blamed. After lengthy discussion it
was resolved to write to the Public Service Commission to seek the Applicant's reinstatement.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 27 Sept 1995 Rev. William Lucas wrote to the Permanent Secretary for Education (Exhibit I to the Rthe Respondent's Affidavit) informing
him that the Applicant had been "Pardoned", that "the issue has now been resolved and there is no need to prolong
the dismissal". He had, he told the Secretary "had a chance to discuss the matter with (the Applicant) and he also feels
that in the name of the Lord Jesus Christ we should forgive and forget".
The particular relevance of the minutes of the meetnd of the correspondence between the Rev. William Lucas ands and the Permanent
Secretary is that it is central to the Applicant's claim for relief that the Permanent Secretary's case against him (Exhibit F to
the Respondent's affidavit) which eventually led to his dismissal was founded on the totally false suggestion that the Applicant had ever admitted misappropriating anything. The truth, as asserted by the Applicant (see paragraphs 7 - 10 and
40 of his first affidavit, paragraph 6 of his second affidavit and paragraph 7 (d) of his third affidavit) is that at the meeting
of 7 December 1993 he never admitted misappropriation at all but merely agreed to accept that degree of responsibility for the losses which flowed from the fact that he was the Head Teacher
of the school.
Given this assertion by the Applicant it is obvious that the minutes of the meeting of the school Council held on 7 December 1993
must be closely examined. Having done so I find that the Applicant's assertion is quite insupportable. In my opinion on any fair
reading of the minutes as a whole it is abundantly clear that the Applicant admitted misappropriation and that the Council proceeded
to deal with the matter on that basis. The meaning to be attributed to these minutes does not however rest there since the Applicant
himself, doubtless fearing their effect (he had not disclosed them in his first supporting affidavit) resorted to the suggestion
contained in paragraph 7(a) of his second affidavit that:
"It now appto me that the minutes had been amended or tampered with inth in a manner prejudicial to me."
This suggestion, not surprisingly woutly rejected in her affidavit as " totally untrue and baseless" by the Secretarretary
to the school Council both then and now namely Mrs Shareen Mani Kumar.
Any lingering doubts as to the Applicant's credibility are in my view removed by a further coration. As has already been been seen
the Applicant stated in paragraph 22 of his second affidavit that he was "unable to make any offer of repayment" because
of his financial difficulties. But in the same affidavit (paragraph 9) he stated that his offer of repayment was conditional upon
his being allowed to remain as Head Teacher at Dilkusha, a proposition clearly and directly contradicted by the minutes of the meeting
and by the Rev. William Lucas's subsequent letter and for which there is no supporting evidence and that he "decided not to
make any payments" not because of financial difficulty but because "the school Council reneged on its undertakings".
I have gone into this Application for leave in far greater detail than is usualave done so because of the the nature of the material
placed before me and because upon examination of these papers I reached the firm conclusion that the Applicant was not telling the
truth. I do not believe that the Applicant could not afford to apply for Judicial Review within three months of the decision complained
of. I do not find that he has advanced any other good reason for delaying his Application for over two years. In my view the case
against the Applicant as laid before the Public Service Commission by the Permanent Secretary for Education was overwhelming and
unanswerable and remains so whatever crisis of conscience may have subsequently disturbed the Rev. William Lucas. In my opinion the
Applicant's case against the Respondents is hopeless and riddled with dishonesty. I decline to grant the leave sought.
M.D. Scott
Judge
3 February 1997.
Hbj0012d.96s
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