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Hicks v Seru [2002] FJHC 52; Hba0025J.2001s (21 May 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 25 OF 2001S

Between:

MOSIO MOSES QASE HICKS
and
NAIKANIDEVU SERU
Appellants

and

FIJI SUGAR CORPORATION LIMITED
Respondent

Seru for the Appellants
T. Tuitoga for the Respondent

JUDGMENT

The Appellants had worked for the Respondent (the Corporation) for some years when they were given the opportunity to participate in the Cadet Engineers Training Scheme. The scheme involves taking a three year course at the Fiji Institute of Technology.

The cost to the Corporation of sending a cadet on this scheme is $24,900 and in order to protect its investment the Corporation requires participants to enter into a bond. The bond commits the cadets to repayment of the full sum expended but becomes void upon the completion by the cadets of 5 years service with the Corporation beginning with the end of the 3 year period.

It is not in issue that the bond, a copy of which is at page 38 of the record, was for a 5 year period. The only two issues are (i) whether the bond is valid and (ii) whether the five year period is unreasonably long.

As to the validity of the bond Mr. Seru (who filed a helpful written submission) pointed out that a bond is a form of deed and that a deed needs to be sealed. In his written submission in reply Mr. Tuitoga cited Section 4 of the Property Law Act (Cap 130). Under Section 4 (2) “sealing of a deed is not necessary except in the case of a deed executed by a corporation under its common or official seal”. Since however it was the Appellants and not the Corporation who executed the bond it is submitted that no seal was necessary. I agree. I also take the view that there was in any event good consideration for the agreement reached by the Appellants and the Corporation namely the offer of the opportunity to participate in the scheme. This was therefore not a bare deed but was in fact a contract the feature of which it was desired to emphasise was the bond.

As to the period of the bond the Corporation had a practice of taking 5 year bonds. Perhaps other organisations such as the Public Service Commission take shorter periods but it is not for this court to alter the terms of a contract freely entered into unless they are wholly unconscionable. If the Appellants thought that the five year period was too long then they were free to decline the offer to take part in the scheme.

The final matter raised by Mr. Seru was Section 32 of the Constitution which grants each person “a right to freedom of association”. In my opinion this constitutional right is not available to prevent repayment of a bond. The Appellants had a choice: either work for the Corporation as bonded or leave the Corporation and repay the bond. They did not, as the Resident Magistrate found, have a right to leave without repaying the bond.

In my opinion the Resident Magistrate (Jiten Singh Esq.) correctly found in favour of the Corporation. The appeal fails and is dismissed.

M.D. Scott
Judge

21 May 2002