'4. That in reply to paragraph 4(a) to (q) of the plaintiff's (Ganesh Chand's) statement of claim I state that the meaning of my letter has been twisted and turned to make it look defamatory, furthermore writing any letter to the Honourable Prime Minister or FICAC should not be tried in the Court of Law, but proper investigation should have taken place to justify my grievances therefore I deny the same.'
Lal v Chand [2012] FJHC 859; HBC160.2011 (7 February 2012) IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 160 OF 2011
BETWEEN:
RAJESH LAL of Drasa Vitogo, Lautoka, Lecturer at Fiji National University.
PLAINTIFF
AND:
GANESHWAR CHAND aka DR. GANESH CHAND Vice Chancellor / Academic, Fiji National University, Suva, Fiji.
1ST DEFENDANT
AND:
FIJI NATIONAL UNIVERSITY an Educational Institution incorporated under the Higher Education Act, Suva, Fiji.
2ND DEFENDANT
AND:
SISH RAM NARAYAN Saint Giles Psychiatric Hospital, Suva. Doctor.
3RD DEFENDANT
AND:
MINISTRY OF HEALTH Dinem House, 88 Amy Street, Toorak, Suva.
4TH DEFENDANT
ORDER
1. The plaintiff, by his writ of summons dated 05 October 2011, instituted action seeking inter alia a declaration against the 2nd defendant that the plaintiff's employment was terminated by the 2nd defendant without a lawful excuse or justification. The plaintiff also sought a declaration that such termination was mala fide, unlawful and was in breach of rules of natural justice.
2. The plaintiff also sought a declaration against the 3rd defendant on the basis that the 3rd defendant's actions were uncalled for, malicious and disrespectful.
3. The plaintiff, accordingly, sought to found claims for damages, both general and aggravated, against the 2nd and the 3rd defendants.
4. In his pleas for special damages, he claimed a sum of $ 10, 00,000.00 against the 2nd defendant; and, a sum of $ 150,000.00 against the 1st defendant (Ganensh Chand) on alleged bases of unlawful, malicious, disrespectful and derogatory actions. The plaintiff, in addition, sought a sum of $ 150,000.00 against the 3rd defendant, who is a medical practitioner at St. Giles Psychiatric Hospital in Suva under the 4th defendant-Ministry of Health, on alleged grounds of malpractice and negligence.
5. The basis of the claims is admittedly founded on the termination of the plaintiff's employment with effect from 01 November 2010 at the 2nd defendant-university. It could be deduced from the statement of claim, as pleaded by the plaintiff, that the termination of his employment was the culmination of an unsavoury relationship that he has had with the 1st defendant (Ganesh Chand). The plaintiff further pleaded that the alleged conduct of the 1st defendant caused him anxiety, depression, sleeplessness and instilled traumatized fear of uncertainty and uneasiness.
6. The plaintiff stated that, as the above symptoms surfaced, he took leave for medical treatment in August 2010 and consulted Dr Kiran at St. Giles Hospital. The 3rd defendant too assessed his condition at the hospital.
6. The plaintiff stated that he had requested for a report on the diagnosis of his alleged conditions; but, the 3rd defendant refused to give such report. The plaintiff claimed that the 3rd defendant was acting on dictation and that the refusal by him to issue a report was a breach of his professional duty and that he was acting beyond his jurisdiction.
7. The 1st defendant, in his statement of defence, denied the allegations. The 1st defendant, by his notice of motion dated 07 November 2011, moved that the action be struck-out in terms of O 18 r 18 of the High Court Rules as the statement of claim did not disclose a reasonable cause of action against him and asked that costs be awarded on indemnity basis.
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 160 OF 2011
BETWEEN:
RAJESH LAL of Drasa Vitogo, Lautoka, Lecturer at Fiji National University.
PLAINTIFF
AND:
GANESHWAR CHAND aka DR. GANESH CHAND Vice Chancellor / Academic, Fiji National University, Suva, Fiji.
1ST DEFENDANT
AND:
FIJI NATIONAL UNIVERSITY an Educational Institution incorporated under the Higher Education Act, Suva, Fiji.
2ND DEFENDANT
AND:
SISH RAM NARAYAN Saint Giles Psychiatric Hospital, Suva. Doctor.
3RD DEFENDANT
AND:
MINISTRY OF HEALTH Dinem House, 88 Amy Street, Toorak, Suva.
4TH DEFENDANT
ORDER
1. The plaintiff, by his writ of summons dated 05 October 2011, instituted action seeking inter alia a declaration against the 2nd defendant that the plaintiff's employment was terminated by the 2nd defendant without a lawful excuse or justification. The plaintiff also sought a declaration that such termination was mala fide, unlawful and was in breach of rules of natural justice.
2. The plaintiff also sought a declaration against the 3rd defendant on the basis that the 3rd defendant's actions were uncalled for, malicious and disrespectful.
3. The plaintiff, accordingly, sought to found claims for damages, both general and aggravated, against the 2nd and the 3rd defendants.
4. In his pleas for special damages, he claimed a sum of $ 10, 00,000.00 against the 2nd defendant; and, a sum of $ 150,000.00 against the 1st defendant (Ganensh Chand) on alleged bases of unlawful, malicious, disrespectful and derogatory actions. The plaintiff, in addition, sought a sum of $ 150,000.00 against the 3rd defendant, who is a medical practitioner at St. Giles Psychiatric Hospital in Suva under the 4th defendant-Ministry of Health, on alleged grounds of malpractice and negligence.
5. The basis of the claims is admittedly founded on the termination of the plaintiff's employment with effect from 01 November 2010 at the 2nd defendant-university. It could be deduced from the statement of claim, as pleaded by the plaintiff, that the termination of his employment was the culmination of an unsavoury relationship that he has had with the 1st defendant (Ganesh Chand). The plaintiff further pleaded that the alleged conduct of the 1st defendant caused him anxiety, depression, sleeplessness and instilled traumatized fear of uncertainty and uneasiness.
6. The plaintiff stated that, as the above symptoms surfaced, he took leave for medical treatment in August 2010 and consulted Dr Kiran at St. Giles Hospital. The 3rd defendant too assessed his condition at the hospital.
6. The plaintiff stated that he had requested for a report on the diagnosis of his alleged conditions; but, the 3rd defendant refused to give such report. The plaintiff claimed that the 3rd defendant was acting on dictation and that the refusal by him to issue a report was a breach of his professional duty and that he was acting beyond his jurisdiction.
7. The 1st defendant, in his statement of defence, denied the allegations. The 1st defendant, by his notice of motion dated 07 November 2011, moved that the action be struck-out in terms of O 18 r 18 of the High Court Rules as the statement of claim did not disclose a reasonable cause of action against him and asked that costs be awarded on indemnity basis.
As revealed by Fijileaks, a catalogue of complaints were filed against Ganesh Chand with the regime, and some even went to the High Court for redress but were TOLD by the court that it had no powers to hear their cases under Khaiyum's illegal Employment Relations Promulgation 2007; did this give Chand and his FNU cronies to bully and terrorize staff with impunity, knowing they had powerful allies in
Bainimarama/Khaiyum regime
11. At the hearing, Mr Anu Patel, learned counsel for the 1st and the 2nd defendants strongly contended that this court did not have jurisdiction insofar as employment-related matters are concerned after the enactment of the Employment Relations Promulgation 2007. Mr Jeremaia Lewaravu, learned State Counsel appearing on behalf of the 3rd and the 4th defendants, associated himself with the submissions of Mr Patel and submitted that this court lacked jurisdiction to hear cases arising out of employment relationships in light of the Employment Relations Promulgation 2007. I agree with the submissions of Mr Patel, learned counsel for the 1st and the 2nd defendants, that this court had ceased to have jurisdiction over the employment-related matters with the enactment of the Employment Relations Promulgation 2007. In the circumstances, I hold that the writ of summons and the statement of claim against 2nd defendant are misconceived and constitute an abuse of process of court. I accordingly permanently stay the proceedings against the 2nd defendant. As regards the 1st defendant, the statement of claim does not disclose a reasonable cause of action and it is scandalous, frivolous and vexatious and also constitutes, in the circumstances, an abuse of process of court. Accordingly, in the exercise of power under O 18 r 18 of the High Court Rules, I strike-out the statement of claim against the 1st defendant and dismiss the action.
Priyantha Nāwāna, Judge High Court
http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2012/859.html?stem=&synonyms=&query=ganesh%20and%20chand
Case Two
GANESH CHAND (father's name Hira Lal) Vice Chancellor of the Fiji National University, Kings Road, Nasinu in the Republic of Fiji Island.
PLAINTIFF
AND:
PUSHP CHAND (father's name Shiu Narayan) of 113 Rewa Street in Suva in the Republic of Fiji Island.
DEFENDANT
BEFORE: Master Deepthi Amaratunga
Date of Hearing: 24th November, 2011
Date of Ruling: 16th January, 2012
RULING
A. INTRODUCTION
1. The Plaintiff (Ganesh Chand) filled this action against the Defendant for alleged defamation. The Defendant wrote a letter to the Prime Minister (and it was referred to various agencies including Fiji Independent Commission Against Corruption (FICAC) alleging certain abuses and corrupt practices of the Plaintiff. The Plaintiff is the Vice Chancellor of the University, where the Defendant was employed. The Plaintiff filled this action for defamation and obtained default judgment against the Defendant and at the time of assessment of damages Defendant filled this summons for setting aside of the default judgment.
'4. That in reply to paragraph 4(a) to (q) of the plaintiff's statement of claim I state that the meaning of my letter has been twisted and turned to make it look defamatory, further more writing any letter to the Honourable Prime Minister or FICAC should not be tried in the Court of Law, but proper investigation should have taken place to justify my grievances therefore I deny the same.'
C. PREJUDICE TO THE PLAINTIFF 12. The Plaintiff has followed the procedure correctly and obtained default judgment and it is a regular default judgment. If the default judgment is set aside there is a delay, but even if that is not set aside still the Plaintiff needs to prove damages and assessment of damages needs to be proved with necessary oral and or documentary evidence. In the circumstances, if the default judgment is set aside it cannot be considered as a prejudicial to the Plaintiff, other than delay. The delay can be compensated by an award of cost against the defaulting party. Considering the circumstances of the case, I will allow the application to set aside the default judgment subject to a cost of $ 500 being paid by the Defendant to the plaintiff.
D. CONCLUSION
13. The proposed statement of defence alleges justification which is a legally acceptable defence for a claim against defamation. The defence of justification needs to be tested with proper evidence, subject to cross examination and this can only be done in the trial. The Defendant who had worked under the Plaintiff has alleged certain irregularities in the institution and this evidence needs to be tested in the trial. The default judgment needs to be vacated in the circumstances. There is no prejudice alleged by the Plaintiff, that cannot be compensated by an award of the cost. The Default judgment entered on 10th March, 2011 is set aside. The Defendant is ordered to pay a cost of $500 to the Plaintiff within 14 days and to file and serve the statement of defence within 14 days from today.
E. FINAL ORDERS
a. The Default Judgment entered on 10th March, 2011 is set aside.
b. The Defendant is ordered to pay a cost of $500 within 14 days from today.
c. The Defendant is ordered to file and serve the statement of defence within 14 days from today.
d. There after the matter will take normal cause.
Dated at Suva this 16th day of January, 2012.
Mr. Deepthi Amaratunga
Master of the High Court
Suva
http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2012/3.html?stem=&synonyms=&query=ganesh%20and%20chand
Priyantha Nāwāna, Judge High Court
http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2012/859.html?stem=&synonyms=&query=ganesh%20and%20chand
Case Two
GANESH CHAND (father's name Hira Lal) Vice Chancellor of the Fiji National University, Kings Road, Nasinu in the Republic of Fiji Island.
PLAINTIFF
AND:
PUSHP CHAND (father's name Shiu Narayan) of 113 Rewa Street in Suva in the Republic of Fiji Island.
DEFENDANT
BEFORE: Master Deepthi Amaratunga
Date of Hearing: 24th November, 2011
Date of Ruling: 16th January, 2012
RULING
A. INTRODUCTION
1. The Plaintiff (Ganesh Chand) filled this action against the Defendant for alleged defamation. The Defendant wrote a letter to the Prime Minister (and it was referred to various agencies including Fiji Independent Commission Against Corruption (FICAC) alleging certain abuses and corrupt practices of the Plaintiff. The Plaintiff is the Vice Chancellor of the University, where the Defendant was employed. The Plaintiff filled this action for defamation and obtained default judgment against the Defendant and at the time of assessment of damages Defendant filled this summons for setting aside of the default judgment.
'4. That in reply to paragraph 4(a) to (q) of the plaintiff's statement of claim I state that the meaning of my letter has been twisted and turned to make it look defamatory, further more writing any letter to the Honourable Prime Minister or FICAC should not be tried in the Court of Law, but proper investigation should have taken place to justify my grievances therefore I deny the same.'
C. PREJUDICE TO THE PLAINTIFF 12. The Plaintiff has followed the procedure correctly and obtained default judgment and it is a regular default judgment. If the default judgment is set aside there is a delay, but even if that is not set aside still the Plaintiff needs to prove damages and assessment of damages needs to be proved with necessary oral and or documentary evidence. In the circumstances, if the default judgment is set aside it cannot be considered as a prejudicial to the Plaintiff, other than delay. The delay can be compensated by an award of cost against the defaulting party. Considering the circumstances of the case, I will allow the application to set aside the default judgment subject to a cost of $ 500 being paid by the Defendant to the plaintiff.
D. CONCLUSION
13. The proposed statement of defence alleges justification which is a legally acceptable defence for a claim against defamation. The defence of justification needs to be tested with proper evidence, subject to cross examination and this can only be done in the trial. The Defendant who had worked under the Plaintiff has alleged certain irregularities in the institution and this evidence needs to be tested in the trial. The default judgment needs to be vacated in the circumstances. There is no prejudice alleged by the Plaintiff, that cannot be compensated by an award of the cost. The Default judgment entered on 10th March, 2011 is set aside. The Defendant is ordered to pay a cost of $500 to the Plaintiff within 14 days and to file and serve the statement of defence within 14 days from today.
E. FINAL ORDERS
a. The Default Judgment entered on 10th March, 2011 is set aside.
b. The Defendant is ordered to pay a cost of $500 within 14 days from today.
c. The Defendant is ordered to file and serve the statement of defence within 14 days from today.
d. There after the matter will take normal cause.
Dated at Suva this 16th day of January, 2012.
Mr. Deepthi Amaratunga
Master of the High Court
Suva
http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2012/3.html?stem=&synonyms=&query=ganesh%20and%20chand
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