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Tadrau v The Commander, Republic of Fiji Military Forces [2023] FJHC 442; HBC334.2020 (4 July 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 334 of 2020

BETWEEN :

KAIAVA TADRAU Army Officer, of Narere Settlement, Nasinu, Fiji Islands.
PLAINTIFF

AND :

THE COMMANDER, REPUBLIC OF FIJI MILITARY FORCES of Berkely Crescent, Suva.
1^ST DEFENDANT

AND :

THE ATTORNEY GENERAL OF FIJI of Attorney General’s Chambers, Levels 4-7, Suvavou House, Victoria Parade, Suva.
2^ND DEFENDANT

Counsel: Plaintiff: No appearance
1^st Defendant: Mr. Tawake P.S.B
2^nd Defendant: No appearance

Date of Hearing: 04.07.2023 (9.30 am)
Date of Judgment: 04.07.2023 (2pm)

JUDGMENT

INTRODUCTION

1. Plaintiff instituted this action on 16.11.2020 by way of writ of summons seeking reinstatement of service in the Republic of Fiji Military Force (RFMF). He was terminated from his services on 31.12.2019.
   
2. According to statement of claim Plaintiff was engaged in tour of duty to Lebanon, and while on duty he was convicted by a Military Tribunal and repatriated to Fiji.
3. Upon returning Plaintiff had requested for re-engagement in Fiji since 7.7.2019 but he was terminated on 31.12.2019.
   
4. Plaintiff is challenging the dismissal of the Commander of RFMF on the basis of double jeopardy as he was already punished by Military Tribunal abroad.
   
5. In the amended statement of defence of first Defendant claimed immunity in terms of Section 52 of RFMF Act, for strike out of this action.

ANALYSIS

6. Section 52 of RFMF Act 1949 state

“52.-(1) No action shall be brought against any officer or soldier for anything done by him under this Act unless the same is commenced within three months after the act complained of was committed nor unless notice of such action has been given at least one month before such action was commenced.

(2) In every action brought against any officer or soldier for anything done by him under this Act the plaintiff shall expressly allege in his statement of claim that such act was done either maliciously or without reasonable and probable cause or through gross negligence, and if at the trial of such action he fails to prove such allegation he shall be non-suited or a verdict shall be given for the defendant.”

7. This action was instituted against Commander of RFMF who is an ‘officer’ in terms of Section 2 of RFMF Act 1949.
   
8. This action was instituted on 16.11.2020 seeking reinstatement in services in RFMF, from May 2018. According to statement of claim decision to terminate was taken on 31.12.2019 by first Defendant.
   
9. The time period for institution of an action in terms of Section 52 of RFMF Act 1949 is clearly stated and accordingly it needs to be instituted within three months after giving notice of one month.
   
10. Plaintiff had instated this action nearly eleven months from the termination as alleged in the statement of claim and this action cannot proceed against Defendants due to immunity conferred in Section 52 of RFMF Act 1949.
    
11. The action is struck off. First Defendant had not pleaded immunity contained in the RFMF Act 1949 and this was done by way of an amendment in 2023. Considering this and other circumstances no cost awarded.
    

FINAL ORDERS

1. Action is struck off.
2. No cost.
   

DATED this 4^th day of July 2023.

.....................................
Justice Deepthi Amaratunga
Judge High Court, Suva