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IN
THE COURT OF
APPEAL,
FIJI
ISLANDS
APPELLATE
JURISDICTION
Civil
Appeal No:
AAU0038/06
BETWEEN:
KALIVATI
TURAGACA
BAKANI
Appellant
And:
CARPENTERS
FIJI
LIMITED
Respondent
Coram:
Byrne
JA
Shameem
JA
Scutt
JA
Hearing:
13th February
2008
Counsel:
Mr. A R Matabalavu for
appellant
Mr.
H Lateef for
respondent
Date
of Judgment: 1st April 2008
JUDGMENT
OF THE COURT
1. INTRODUCTION
At
trial, Kalivati Turagaca Bakani (Mr Bakani), the Plaintiff and Appellant herein,
sought damages for breach and unlawful repudiation
of his contract as Deputy
Managing Director with Carpenters Fiji Limited (Carpenters). The High Court held
that on the evidence Carpenters
Fiji Limited was not in breach of its
obligations under the contract between it and Mr Bakani. His Lordship said there
was no breach
of contract on the part of Carpenters, and that Mr Bakani was
‘treated fairly and
reasonably’.
2. Mr
Bakani was not, it was held, simply ‘made redundant or dismissed without
any new offer, but was offered employment as
director in Shipbuilding (Fiji) Ltd
but ... declined’. Further, Carpenters ‘was very considerate towards
[Mr Bakani]
as they were losing someone who has served the Company for so
long’. Upon this basis it was held that no question of payment
of damages
arose for consideration. Mr Bakani’s claims were dismissed with costs of
$450.
3. Having
considered all the matters addressed in the appeal, including written and oral
submissions and authorities provided by Counsel,
this Court agrees with the
determination of the High Court. Mr Bakani was, in our opinion, treated fairly
and reasonably: insofar
as it was possible in ending Mr Bakani’s
employment with them as Deputy Managing Director, Carpenters acted considerately
in
recognition of Mr Bakani’s contribution and role as a valued employee.
The appeal
fails.
4. GROUNDS
OF APPEAL
1. That the learned Judge was wrong in law and in fact in finding that Mr Bakani’s case was one of unfair dismissal, whereas the learned Judge ought to have found that the claim was based on wrongful repudiation by Carpenters through redundancy of Mr Bakani.
2. That the learned Judge was wrong in law in purpoting to apply legal principles pertaining to termination of an employment contract per se to Mr Bakani’s claim when instead principles concerning repudiation of the contract by means of unilateral declaration of redundancy should apply.
3. That the learned Judge’s finding that the letter [signed by Mr Bakani on] 5 September 1994 contained entire terms and conditions of Mr Bakani’s contract of employment is inconsistent with the evidence that Mr Bakani was groomed by Carpenters to be its Managing Director which is in turn consistent with evidence of Mr Bakani to the same effect as well as evidence of Mr Bakani’s understanding of oral and written communication between him and officers of MBf Holdings Berhad. In the circumstances the learned Judge’s conclusion that Mr Bakani signed the letter of 5 September 1994 unconditionally is erroneous in fact whereupon the learned Judge also erred in law.
4. That considering that Mr Bakani was made redundant, not dismissed, acceptance by the learned Judge of the letter [signed by Mr Bakani on] 5 September 1994 as conclusive of the terms and conditions of the contract between the parties was erroneous in fact and in law.
5. That the learned Judge’s finding that Mr Bakani’s eventually becoming Managing Director of Carpenters was not in the contemplation of the parties is against the weight of the evidence that he was identified to be Carpenters’ Managing Director, particularly direct evidence in an application for extension of Mr Bakani’s work permit by Carpenter’s Chief Executive Officer, this evidence being consistent with evidence in oral and written communications between Mr Bakani and Officers of MBf Holdings Berhad.
6. There was no sufficient evidence upon which the learned Judge could accept that Mr Bakani’s redundancy was fair. Alternatively the learned Judge’s conclusion that Mr Bakani’s redundancy was fair is erroneous in fact and in law and further, in all the circumstances, compensation granted to Mr Bakani is wholly unreasonable: Court Record, pp.1-2.
5. In
written submissions Counsel summarized these grounds as
follows.
6. Grounds
1 and 2 were a claim by Mr Bakani of breach of employment by repudiation, being
a unilateral determination of his employment
as Deputy Managing Director, and
unreasonable notice of termination. Counsel said the evidence pointed to
‘a unilateral declaration
of redundancy’ and ‘invocation of
the notice provision in the written contract’ between Mr Bakani and
Carpenters
‘was clearly inappropriate’ as:
• the position of Deputy Managing Director was the second highest executive position at Carpenters; and
• the parties’ understanding was that Mr Bakani eventually was to become Managing Director.
7. Further,
if redundancy was intended as a possibility, then it was ‘just as
easy’ to include this as a term of the written
contract. However, Counsel
said, on the evidence there was a ‘mutual intention’ that Mr Bakani
should have a long period
of
employment.
8. As
to grounds 3 and 4, Counsel said Mr Bakani challenged ‘as wrong’ the
High Court finding that Carpenters’ letter
of 2 September 1994 (signed by
Mr Bakani on 5 September 1994) was ‘conclusive of terms and conditions of
employment’
and further said that the parties ‘intended’ Mr
Bakani to ‘be groomed as Managing Director’. Further, Counsel
said
that one month’s notice, ‘even if standrd’ for
Carpenters’ senior executive employees’ was ‘in
all the
circumstances inappropriate and unreasonable’. Mr Bakani, it was said, was
entitled to reasonable notice. In this,
Counsel relied upon
Yashni
Kant v. Central Manufacturing Company Limited,
Civil
Appeal No. ABU 0001 of
2001S.
9. Further
on grounds 3 and 4, Counsel said that no fairness was shown to Mr Bakani, for he
was ‘led to believe that he was
[being] groomed as Managing
Director’. Further, if the notice provision in the letter of 2 September
1994 ‘could be invoked,
then one month’s notice [was] clearly
inadequate’. Further, the manner in which Mr Bakani’s employment was
determined
‘clearly caused distress and loss of reputation’. Here,
Counsel relied upon section 33 of the Constitution;
Stuart
v. Armourguard Security
Ltd [1996]
1 NZLR 484; and
Whelan
v. Waitaki Meats
Ltd [1991]
2 NZLR
74.
10. As
to grounds 5 and 6, Counsel said the High Court ‘purported to link the
issue of redundancy with fairness’, and
submitted:
• strictly speaking, fairness deals first with appropriateness of notice, and secondly with whether in the entire circumstance there was fair treatment (here, for Mr Bakani);
• redundancy is a separate issue, and was the real reason for determination of Mr Bakani’s employment;
• further, redundancy related to the post of Deputy Managing Director, however Carpenters ‘clearly intended’ that Mr Bakani eventually become Managing Director;
• additionally, redundancy was neither an express nor implied term of the contract of employment, because:
▪ as well, correspondence between Mr Bakani and Carpenters supported long-term employment;
▪ redundancy related to the position of Deputy Managing Director;
▪ there was clear evidence that Mr Bakani was identified as the future Manager Director.
11. Additionally
regarding grounds 5 and 6, ‘assuming that redundancy was open to
Carpenters, then a redundancy package of up
to two years would be fair and
reasonable. Further, ‘in any event loss and injury suffered by [Mr Bakani]
during [his] period
of unemployment pending employment by [the] Native Land
Trust Board [his subsequent employer] is directly attributable to
[Carpenters’]
conduct of wrongful termination hence such period ought to
be the basis of [an] award of
damages.
12.
TERMS
OF APPOINTMENT AND
TERMINATION
Taking
into account the grounds of appeal and the High Court’s determination,
this Court considers that the proper approach
in the appeal is to employ a
three-stem process. First, upon what terms was Mr Bakani’s employment with
Carpenters terminated.
Secondly, what were the terms of Mr Bakani’s
employment with Carpenters from the outset. Thirdly, is there any thing between
the date of Mr Bakani’s employment and its termination which founds a
proposition that:
• the terms of his employment were anything other that those stated in his letter of employment; and/or
• the terms on which his employment was terminated failed to accord with his terms of employment;
• in light of his terms of employment, the terms upon which his employment was terminated were or were not fair and reasonable.
13. In our view, the principal items of evidence upon which the appeal is to be determined by reference to this three-step process are:
• the letter of 10 July 1998 from the Managing Director of Carpenters to Mr Bakani confirming oral advice as to the need for reducing overhead expenses of the company in Fiji and Papua New Guinea and that the position of Deputy Managing Director in Fiji ‘is to be abolished’ with the result that Mr Bakani’s position was thereby redundant;
• a follow up letter of 16 July 1998 with attached documents relating to Mr Bakani’s forthcoming departure’;
• the letter of 2 September 1994 setting out terms of Mr Bakani’s employment, and its precursor a letter of 11 July 1994 confirming that Carpenters would make Mr Bakani an offer of employment with reference to its terms; and
• an application for a work permit vis-à-vis Mr Bakani and evidence from an officer of the Department of Immigration in respect to it.
14. The
letter of 11 July 1994 from Carpenters to Mr Bakani confirms a discussion with
him making of an offer of employment ‘
on the following basis’. It
then sets out in numbered paragraphs (1) base salary; (2) annual bonus; and (3)
‘compensatio’,
the latter stating:
Deputy Managing Director of the Carpenters Group of Companies Reporting to the Managing Director, currently Mr Ross McDonald. Your exact duties will be worked out between you and I and Mr McDonald but will certainly entail such matters as overseeing government an official relations, relations with unions, special major Carpenters and MBf projects in Fiji, including property and hotel development projects and in general acting as Senior Deputy to Mr McDonald: Exhibit P3-4, Court Record, p.311.
15. A
further unnumbered paragraph states:
All the other details of your employment and other benefits with be in line with those accorded to other senior personnel in the Carpenters Group: Exhibit P3-4, Court Record, p.311.
16. The
letter of 2 September 1994 upon which Carpenter’s relied as providing full
terms of Mr Bakani’s employment contract
consists of three (3) pages,
commencing with an opening paragraph which states:
We refer to our various discussions, and to the MBf Asia Capital Corporation Holdings Limited, Hong Kong letter of 11 July 1994 addressed direct to yourself and have pleasure in confirming your appointment as Deputy Managing Director of this company on the following terms and conditions: -: Exhibit P3-6, Court Record, pp.313-15.
17. That
letter then goes on to list the terms under various headings, including
‘Title’ – Deputy Managing Director,
‘Duties’ (here
various items are listed generally consistent with the matters set out in the 11
July 1994 letter), ‘Reporting
To’ – The Managing Director;
‘Commencing Date’ – 5 September 1994; ‘Salary’
(identical
with that in the earlier letter and to be reviewed annually);
‘Superannuation’; ‘Annual Leave’; ‘Car’
(for
business and private use); ‘Medical’; ‘Life Insurance’;
‘Club Fees’; ‘Telephone’;
and
‘Termination’.
18. The
remainder of page 2 and part of page 3 ‘expand on’ the duties listed
earlier. Prior to a paragraph welcoming Mr
Bakani to the Carpenter Group and
extending to him ‘our best wishes for a long and successful career with
the Group’,
the letter states:
Your duties will change and you will be involved in many ways across all activities of the company where you can make a positive contributions as your knowledge of our operations grows. You will also be able to relieve the writer [Managing Director RG McDonald] of a substantial portion of the workload he carries.
You will sit on the company’s senior management committee where your experience and background will enable you to participate in decision making that influences and directs the operations of the Group: Exhibit P3-6, Court Record, p.315.
19. Earlier,
on page 2 of the letter, under the heading ‘Termination’, the
following appears:
This contract is terminated by not less than one month’s notice in writing on either side, or by payment of one month’s salary in lieu of notice’.
20. This
was a particular focus of the trial, the High Court’s determination, and
matters raised on the appeal. As was noted
by the High Court and in this Court,
Mr Bakani signed the letter (on 5 September 1994), confirming: ‘I hereby
accept this appointment
on the terms and conditions stated
above’.
21. That
clause appeared in all contracts or letters setting out terms of appointment of
other senior personnel, so that Mr Bakani
was in no different position from any
other member of senior management. Carpenters said that this confirmed that
there was no obligation
on Carpenters to provide Mr Bakani with longer term or
ongoing or permanent employment, or that contradicted Carpenters right to
end
his employment on the terms upon which it was ended. Further, it was said that
Mr Bakani’s contention that he was being
‘groomed’ for the
post of Managing Director and held a permanent position was not substantiated by
the terms of employment
set ou in the letter of 2 September
1994.
22. Once
having signed the letter on 5 September 1994, it was said, and hence accepting
employment with Carpenters on the basis of
one month’s notice of
termination, Mr Bakani was precluded from a contention that his employment was
wrongly terminated or
should have been terminated on terms different from those
ultimately extended to him. Mr Bakani, however, said in evidence that his
understanding was that he would remain with Carpenters until he reached 65 years
of age, unless his contract was terminated for misconduct:
that is, his
employment for life was subject only to satisfactory
performance.
23. The
High Court held that the letter of 2 September 1994, signed by Mr Bakani on 5
September, was the contract between Mr Bakani
and Carpenters, and that the terms
and conditions of Mr Bakani’s employment were fully contained in it. His
Lordship observed
that there was ‘no mention anywhere that [Mr Bakani]
will eventually be appointed Managing Director as alleged’ and
said:
I do not find in the evidence that this was in contemplation of [Mr Bakani]. There is nothing in the evidence to create in the mind of the plaintiff that he would be promoted to the position of Managing Director except to the effect that [Carpenters] was looking forward to a long association and greater responsibilities will be given to him: Court Record, p.11.
24. We
note that the letter of 2 September 1994 does contain the aforementioned
reference by the Managing Director (its signatory)
that Mr Bakani
‘....will also be able to relieve the writer [Managing Director RG
McDonald] of a substantial portion of the
workload he carries’. However,
it would be drawing a longbow to say that this confirms Mr Bakani’s
contention that that
post was to fall to him in the future and he was being
‘groomed’ for it. Further, the work permit and immigration evidence
is not persuasive of that
view.
25. In
the High Court, His Lordship made the following findings on this
aspect:
On the evidence before me I find as fact that after verbal discussion and correspondence between the parties, they entered into a contract of service by [Mr Bakani’s] signing it unconditionally on 5 September 1994.
All the terms and conditions of employment are contained therein and [Mr Bakani’s] employment is governed by the contract and he accepted them by signing it.
I
find that the termination clause ‘ of one month’s notice] is very
clear and all that is required is a month’s
notice: Court Record,
p.12.
26. Taking
into account all the material, including oral evidence in the trial, we cannot
but agree with his Lordship. His finding
was consistent with both the facts and
the law. In this regard, we refer to the authorities cited by His Lordship and
referred to
later
herein.
27. Mr
Bakani says that the terms of his termination were unfair and unreasonable. In
light of this, we set out in full the contents
of the letter of 10 July 1998
[Exhibit D], Court Record, pp.228-39) terminating Mr Bakani’s employment
with Carpenters:
As verbally advised to you last week, at the time of my visit to Malaysia in February of this year the directors issued instructions that overhead expenses of the company in Fiji and Papua New Guinea were to be addressed and reduced. As a result of this a number of senior positions in Papua New Guinea have been abolished or merged and this process is continuing.
In Fiji the directors have decided that in addition to other expense savings the position and office of Deputy Managing Director is to be abolished. As a result of this your position has become redundant.
It is with sincere regret that I have to notify you of the company’s decision. Our personal relationship has always been of the highest order and your integrity and loyalty to the company have been outstanding.
At your request I have spoken again to the Malaysian directors concerning the redundancy proposals that were verbally put to you. The following arrangements will now apply:-
1. You will receive one month’s notice of termination.
2. You will receive five months redundancy pay.
3. The date from which your period of notice begins is Wednesday, 22 July but in accordance with MBf Group policy it will be necessary for you to leave the company on that date.
4. You are granted the right to use your company motor vehicle up to and including 31 December 1998 at which date it is to be returned to the company in good condition. From the date of your leaving the company’s employment until the return of the vehicle the company will maintain registration, third party and comprehensive insurance on the car. Fuel and maintenance are your responsibility apart from the warranty attaching to this relatively new vehicle.
5. At any time up to 31 December 1998 you have the option of purchasing this vehicle at its written-down book value plus VAT. At 31 December 1998 the written-down value of this vehicle will be $47,560. Alternatively at any time up to and including 31 December you may purchase the vehicle currently driven by Max Danker at its written-down value plus VAT. At 31 December 1998 Max’s vehicle will have a written-down value of $31,582. Vehicle purchase must be for cash or through an external finance company.
6. You will be paid all accumulated holiday pay and any other benefits due on 22 July next.
You will be asked to resign from the Board of WR Carpenter (South Pacific) Ltd and its subsidiary and associated companies. The company would be very pleased however if you would continue as a director of Shipbuilding (Fiji) Ltd and accept an appointment as a director of MCI Carpenters Ltd. The annual fees for which are $4,000 and $2,000 respectively.
You are a well-known and well-respected person in the business company and I have no doubt that you will move on to bigger and better things. Whatever your future employment or vocation may be, I wish you well. Please feel free to make contact with me at any time.
With best wishes.
Yours sincerely.
Kenneth Clemens
MANAGING DIRECTOR
28. A
paragraph under Mr Clemens’ signature provides:
Redundancy is accepted on the above terms and conditions. I confirm that I have no further claim on the company: Exhibit DI, Court Record, pp.338-339.
29. This
is followed by Mr Bakani’s signature, affixed on 24 August
1998.
30. The
follow-up letter of 16 July 1998 (Exhibit A2, Court Record, p.340) also requires
quoting in full:
Further to my letter of 10 July I attach the following documents in relation to your forthcoming departure from the company now that the position of Deputy Managing Director has been made redundant.
1. Details of final pay. Please note that full benefit has been given in the tax calculation in relation to the redundancy component.
2. The P4-1 tax slip in duplicate.
3. Letters of resignation addressed to WR Carpenter (South Pacific) Ltd, Morris Hedstrom Samoa Ltd, Morris Hedstrom Tong Ltd, BHP Steel Building Products South Pacific Ltd and NMBf Insurance Company (Fiji) Ltd respectively.
You will advise in due course as to whether you wish to continue your directorship of shipbuilding (Fiji) Ltd and take up the directorship offered in MCI Carpenters Ltd.
The final pay as per attached will be deposited into your bank account on the morning of Friday, July 17. If you prefer an alternative arrangement please advise now.
31. On
redundancy and ‘fair and reasonable’ dismissal, the High Court said,
by reference to
Native
Land Trust Board Employees Association v. Native Land Trust Board
[1998] FCA
28;
Diners
Club (NZ) Limited v. Prem Narayan
CA No.
ABU00A96/S; and
Yashni
Kant v. Central Manufacturing Company
Limited,
Civil Appeal No. ABU 0001 of 2001S that the employer ‘has the right to
dismiss without cause and extends to the manner in
which a dismissal is to be
carried out and that it is to be fair and not in a manner that is humiliating
and distressing’.
His Lordship referred to the contact of employment
between Mr Bakan and Carpenters, as to the provision for termination previously
referred to,
namely:
32. This
contract is terminable by not less than one month’s notice in writing on
either side, or by payment of one month’s
salary in lieu of notice: Court
Record, at
p.14.
33. His
Lordship said that this clause ‘shows that both sides (the employer and
the employee) can terminate the contract by
giving one month’s notice or
salary in lieu of notice. Termination can be with cause and without cause as
shown by the above
authorities’: Court Record, at
pp.14-15.
34. His
Lordship held that even it were the case, as advocated by Mr Bakani, that his
contract was ‘for life’ –
that is, until he reached 65 years,
the age of retirement and hence was ‘permanent’, ‘the
employment can still
be terminated by reasonable notice:
Chitty
on Specific
Contracts,Vol.2,
p.780;
McClelland
v. Northern Ireland General Health Services Board
[1957) 1
WLR 594, at
601.
35. He
concluded that Carpenters had ‘though the period of [Mr Bakani’s]
employment dealt properly with [him] in conformity
with the principles stated in
the authorities ... cited’. Further, Mr Bakani was ‘quite fairly
dealt with by [Carpenters]
before termination. The treatment [he] received at
the hands of [Carpenters] was reasonable’. This conclusion was based on
a
number of factors:
• That Mr Bakani was verbally informed by the Managing Director of the situation and the proposal by Carpenters as to the need for ‘downsizing’ or contracting operations in Paua New Guinea and Fiji, as discussed at a meeting in Malaysia;
• This verbal informing occurred before the Managing Director wrote to Mr Bakani putting these matters in writing and notifying him of the redundancy of the position of Deputy Managing Director;
• Mr Bakani was informed of the reasons for redundancy, and that he would receive one month’s notice of termination along with other conditions of redundancy.
36. Looking
carefully at the terms of redundancy or termination offered to and provided to
Mr Bakani, we find it impossible to agree
with Mr Bakani’s contention that
these were unfair and unreasonable, or that his termination of employment was
unfair and unreasonable.
On the contrary, the approach taken by Carpenters
appears to be extremely fair and reasonable. In addition to the one
month’s
termination, Mr Bakani was offered the use of his company car for
just under six months, with registration, comprehensive insurance
and other
expenses (apart from petrol and running costs) continuing to be paid by
Carpenters; he was offered two directorships at
a total of $6000 per year
– a far smaller sum than his annual income of course this is true, but
nonetheless in all the circumstances
an offer which went beyond anything
required by Mr Bakani’s contract; he was offered the option of buying at
written-down value
his company vehicle or one at a lesser cost; he received five
months redundancy pay; a requirement for immediate clearance and deduction
of
company accounts (Carpenters Finance, etc) was waived ‘on the
understanding the [Mr Bakani] would meet these accounts as
they fall due’:
Exhibit D1, A2, Court Record,
pp.338-340.
37. We
considered whether the liberality of the provisions extended to Mr Bakani to
cover his employment termination could be taken
as supporting his contention as
to ‘permanent employment’ until reaching retirement age and being
‘groomed’
for the position of Managing Director. Did this imply that
Carpenters had in fact held out to Mr Bakani employment ‘for life’
and the top management position? In our view, this was not the case. Rather, it
was consistent with the comments made by the Managing
Director, Mr. Clemens, in
the letter of 10 July 1998, namely that Carpenters ‘sincerely
regretted’ the need for the decision,
that Mr Bakani’s integrity and
loyalty to the company [had] been outstanding’, and that Carpenters and Mr
Clemens wished
him well as a ‘well-known and well-respected person the
business community [who would] move on to bigger and better things
...’:
Exhibit D1, Court Record,
pp.338-339.
38. Counsel
for Mr Bakani relied amongst other authorities upon
Yashni
Kant v. Central Manufacturing Company
Limited
Civil Appeal No. ABU0001 of 2001S (HCCA No. HBC 567 of 1996S) as to the
‘unfairness’ and ‘unreasonableness’
of Mr Bakani’s
termination, and also Mr Bakani’s stated expectation of taking over the
post of Managing Director. However,
we consider that that case is very different
from that of Mr
Bakani.
39. First,
in
Yashni
Kant the
employee was treated summarily, being dismissed/terminated on the spot, in
circumstances both humiliating and distressing, with
a later letter which
effectively sought to ‘excuse’ the summary dismissal by putting
forward substantive reasons –
effectively as an afterthought as it would
appear an attempt to rectify the summary action taken it might be suggested in
the heat
of the moment. In the present case, the treatment of Mr Bakani was
quite different as illustrated by reference to the two letters
which dealt with
his termination. In this regard, we consider also that section 33 of the
Constitution is properly met: the circumstances
were consistent with the
requirement that every person ‘has the right to fair labour practices,
including humane- treatment
...’. There was no inhumane treatment or
unfairness in the way in which Mr Bakani was terminated, in the way in which the
termination
was conveyed to him and in the circumstances of his
termination.
40. As
to the question of taking over the Managing Director’s position, in
Yashni
Kant there
was independent evidence substantiating this. In the present appeal, the
question whether there is independent evidence substantiating
the proposition as
to expectation must be answered, as it was in the High Court –
‘no’. If there was any such evidence,
the question is whether in all
the circumstances that expectation was realistic and also whether it provides a
platform from which
Mr Bakani can argue, according to law, that his legitimate
expectation was not met and hence he was entitled to damages. In all those
respects, we are constrained again to answer
‘no’.
41. In
our view,
Yashni
Kant serves
simply to highlight in stark and conclusive terms that the High Court was right
in holding that Mr Bakani had not made out
his claim of being
‘groomed’ for his superior’s job, and that Mr Bakani’s
treatment was, in fact, fair and
reasonable. Again this regard, in addition to
being consistent with the law as set down by His Lordship in the High Court,
there
was no breach of section 33 of the
Constitution.
42. CONCLUSION
As
observed at the outset, this Court considers that the finding of the High Court
was correct in fact and in law. We are unable to
accede to any of the grounds of
appeal, clearly argued though they were. We agree with the High Court and hence
must dismiss the
appeal.
ORDERS
1.
The appeal is
dismissed.
2.
There will be no order for costs.
Hon.
Justice John
Byrne
Judge
of
Appeal
Hon.
Justice
Shameem
Judge
of
Appeal
Hon.
Justice
Scutt
Judge
of Appeal
Solicitors:
Essessimarm
Solicitors for the
appellant
Lateef
& Lateef Solicitors for the respondent
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