Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Fiji Muslim League v Saleem [2002] FJHC 47; Hbc0484j.2000s (16 April 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 484 OF 2000S

Between:

FIJI MUSLIM LEAGUE
Plaintiff

and

MOHAMMED AYAIS SALEEM
First Defendant

and

MOHAMMED ASHIM
Second Defendant

S. Parshotam for the Plaintiff
R. Singh for the Defendants

JUDGMENT

This is the Plaintiff’s application for summary Judgment against the Defendants brought pursuant to the provisions of RHC 014.

Two affidavits were filed:

1. Subhan Ali, in support, 24 January 2002;
2. First Defendant, in opposition, 26 March 2002.
   

On 30 May 1991 the First Defendant applied for a scholarship offered by the Islamic Development Bank. In his application a copy of which is Exhibit SA2 to the supporting affidavit the First Defendant explained that he wished to study medicine. He wanted to use his new qualification to the benefit of members of his community living in remote areas: “to give them vital medical education so that they can improve their health standards”.

On page 3 of his application (Exhibit SA3) there was Form 2. In this Form the First Defendant who had already being educated to class 8 level declared that:

“Once I have completed my studies under the IDB Scholarship Programme I will continue to assist development of my community and country and will refund the amount of scholarship as soon as I start employment”.

The Form 2 declaration was accompanied by a Form 3 certificate (Exhibit SA4) which stated, inter alia that the Defendant was “of good conduct and high moral character” and that he promised to:

“fully comply with the rules and regulations of the IDB Scholarship Programme”.

Form 3 was followed by Form 4 which was also signed by the Defendant in May 1991. This Form which was headed “Declaration of Refund” contained the following declaration:

“I Mohammed Ayais Saleem the undersigned applicant in the town Ba country Fiji applying for IDB scholarship do solemnly declare that I shall refund the whole amount paid to me by the Islamic Development Bank Jeddah to any organisation/body named by the IDB”.

After being witnessed the Form continued with the following certificate:

“CERTIFICATE OF THE MUSLIM ORGANISATION ON

THE ABOVE DECLARATION

The Muslim Organisation Fiji Muslim League Ba Branch in the town Ba, Country Fiji certify that the above student accepts that he will refund the whole amount paid to him by the Islamic development Bank Jeddah to any organisation/body named by the IDB after completing his education”.

On a date unknown to me but subsequent to the application and prior to 14 November 1991 the First Defendant’s application for a scholarship was approved.

On 14 November 1991 the First and Second Defendants signed a Deed of Indemnity and Guarantee (Exhibit SA 6).

As appears from this Deed the Defendants jointly and severally explicitly agreed to repay the funds advanced under the scholarship to the Fiji Muslim League either upon completion of the course of study or following failure to complete the course studied for whatever reasons. The second paragraph of the second page of the Deed reads:

“the student and/or guarantor under no circumstances shall be exempted from repayment of the said loan, loans or advances to the League”.

In late 1991 the First Defendant proceeded to the Allama Iqbal Medical College of Pakistan. According to Exhibit SA8 (not denied by the Defendant) a total of US$19750.44 was paid to the Defendant during the 8 years 1991 to 1999. Mr. Parshotam told me that under an exchange rate formula that amount (very much in the Defendant’s favour) amounts to F$26,633.90.
3.

The First Defendant successfully graduated with his medical degree on 29 June 1998. He then returned to Fiji. Subsequent to his return he obtained employment with the Ministry of health. According to his affidavit filed herein on 26 March 2002 he is now employed as a medical officer at the Lami Health Centre.

On dates unknown to me the Fiji Muslim League sought repayment of the sums advanced to the First Defendant under the scholarship. The Defendants refused to repay. The writ was filed on 24 October 2002.

Two Statements of Defence were filed, the first in November 2000 and the second in July 2001. Broadly these two defences advance the same case which is repeated in the affidavit filed in March 2001 in opposition to this application.

The Defendant denies owing the Plaintiff anything at all. The Defendants say they were surprised to be asked to sign the 14 November Deed. The First Defendant explains that he had already made arrangements to depart for Pakistan and had already told his friends and relatives that he would be going. Not then to have gone would have been embarrassing and “therefore the document was signed under duress”. Mr. Singh suggested that this amounted to a defence on the merits and that the Order 14 application should be dismissed.

As pointed out by Mr. Parshotam (who filed an excellent helpful written submission) the proposed defence ignores two important matters. The first is that the First Defendant knew perfectly well when he signed the application forms for the scholarship in May that he would be required to repay the sums advanced to him. There can therefore be no question of any surprise in the following November.

Secondly, embarrassment cannot in law amount to a defence of duress. Duress in law is quite distinct from mere pressure (see Barton v. Armstrong [1976] AC 104). In the absence of violence or threats of violence to person or goods there is no duress.

Far from having a defence on the merits I am of the opinion that the Defendants’ case is one of the least meritorious ever to come before me.

There will be judgment for the Plaintiff in the amount claimed. I will hear counsel as to costs.

M.D. Scott
Judge

16 April 2002