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Lal v Shankar [2011] FJCA 7; ABU0038.2006 (21 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO.ABU0038 OF 2006

BETWEEN:

MANI LAL
Appellant

AND:

UMA SHANKAR
JITEND KUMAR
ANAND RAM SHARMA
Respondents

Coram: Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice Sosefo Inoke, Justice of Appeal
Hon. Madam Justice Anjala Wati, Justice of Appeal

Date of Hearing: Wednesday, 1st September 2010

Counsel: Mr. S Kumar for the Appellant
Respondents did not appear

Date of Judgment: Monday, 21st February 2011

JUDGMENT

Izaz Khan, JA

1. This case was heard on 1st September 2010 when Mr S. Kumar appeared for the appellant, Mani Lal and there was no appearance for the Respondent. The Court was told by Mr Kumar that the respondents had not shown any interest in this appeal since 2008 and it was unlikely for them to be represented in the hearing of this appeal. Accordingly, we proceeded to hear the appeal with the respondent being unrepresented. However we have in the file submissions filed by the respondents for the hearing of this appeal and we have taken those submissions into consideration in coming to a decision in this case.

2. This case involves a dispute between the appellant and the Sanatan Dharam Mahamandal in relation to the expulsion of the appellant as the Manager/President of the Mahamandal on 2nd September 2005.
The Mahamandal is a religious organization which also has the responsibility of managing certain primary and high schools. It was managing the Vunimono High School in Nausori which forms the setting for the dispute which arose in this case.

3. Under Clause 5(f) of the Constitution of the Mahamandal, a member is required to disclose direct or indirect pecuniary interest in any contract or appointment as a staff or promotion in his/her job which is likely to lead to a conflict of interest in his/her duty and functions as the person presiding or making decision in a meeting affecting the Mahamandal.

4. On 2nd September 2005 at an emergency meeting of the Executive Committee the appellant was suspended as President on the ground that he had procured for his son the management of the school canteen in breach of Clause 5(f). It was alleged that the deal had been struck in January 2005 and the Mahamandal only became aware of it in May 2005.

5. The issue before the trial judge, His Lordship Jiten Singh was whether the emergency meeting called on 2nd September 2005 and the subsequent suspension of the defendant as President was valid and according to the constitution of the Mahamandal.

6. The appellant by his notice of appeal sought to set aside the decision below upon the grounds that the trial judge had erred by not considering all the relevant facts and by misinterpreting the facts in the case when he decided that the appellant had procured for his son the management of the school canteen when in fact the school canteen was or rather had been rented by the appellant’s son and not managed by him.

7. Clause 20(d) of the Constitution of the Mahamandal makes provision for the calling of the emergency meeting of the Management Committee. It provides as follows:

“An emergency or urgent meeting of the Management Committee shall be called by the Secretary at any time or any place by giving a short notice of five to twelve hours and such meeting shall only be called when the Secretary receives directive from the President/Manager to deal with specific business.”

8. It can be immediately seen that the calling of emergency meeting is dependent on the issuance of a directive from the President/Manager to deal with specific business at hand. And the specific business at hand, in this case, would have been the suspension of the President/Manager under the provisions of Clause 35(b). Understandably the appellant being the President/Manager of the Mahamandal refused to give a directive for the calling of an emergency meeting which would have adjudicated upon the expulsion of himself as President/Manager by reason of procuration of the canteen contract for his son.

9. As the appellant President/Manager was failing to give a directive for the calling of an emergency meeting, on 27th August 2005 the third named respondent received advice from the Chairman of the Board of Trustees to the effect that he should get a directive from one of the Vice Presidents under Clause 41 of the Constitution. Clause 41 provides:

“The duties of the Vice President shall be defined by the Management Committee Fundamentally they shall discharge the duties of the President during his absence.”

10. Accordingly, one of the Vice Presidents gave a directive for an emergency meeting to be held and this was convened on 2nd September, 2005 and it decided to suspend the defendant from his duties as President/Manager.

In our view the calling of the emergency meeting on the directive of a Vice President on 2nd September, 2005 was valid because in our view the word “absence” impliedly includes within it any unreasonable refusal or failure by the President/Manager to direct the calling of an emergency meeting. Similarly in Clause 20(d) we are of the view that implied within that clause is the power that one of the Vice Presidents could give a directive for the calling for an emergency meeting if the President/Manager fails to do so.

11. Normally, a term is implied when such a term is viewed by the court as one which the parties must have intended to include because it was so obvious that it went without saying that such a term would operate in the eyes of an officious ”bystander” who would regard the implied terms’ inclusion as an express term. See Shirlaw v. Southern Foundries (1926) Limited [1939] 2KB206 at 227.

Put another way a term would be implied if it was necessary to give business efficacy according to the parties’ intention: see BP Refinery (Westernport) Pty Ltd v. Shire of Hastings (1977) [1910] ArgusLawRp 71; 16 ALR 363 at 365.

12. Here, clearly, the only way in which business efficacy could have been given to the operation of the Constitution and in particular to clause 20(d) and clause 41 was to enable a Vice President to call an emergency meeting when the President/Manager was either away or was refusing to fulfill his duty in accordance with the terms of the Constitution. Therefore, I am in agreement with the trial judge, his Lordship Jiten Singh when he said on Page 6 of his judgment:

“Generally speaking absence would mean physical absence that is not being physically present due to ill health or being overseas or away for some other good cause. Here was a President who was physically around was, refusing to do what the Management Committee asked him to do. By his silence and inaction, he had made himself unavailable and unwilling to carry out his duties and therefore a Vice President could give such a directive. The Constitution must be given a purposive construction so that the management could effectively conduct its business.”

13. The appellant says that the respondents failed to follow the proper procedure set out in clause 20(d) but in the light of my conclusion in relation to that clause operating in conjunction with Clause 41 and the implication of terms within them, I reject the Appellant’s arguments on this point.

14. One of the other major arguments of the appellant was that he had been denied natural justice because he was not notified of the suspension till 24th October, 2005 a day after the Mahamandal’s AGM which took place on the 23rd October 2005.

15. Clause 36 of the Constitution allows a member who has been inter alia suspended or expelled the right to appeal to the Annual General Meeting or the Special General Meeting in compliance with the rules set out therein.

16. The appellant says that he did not receive the letter of suspension which is dated 3rd September 2005 and is to be found at page 56 of the Court of Appeal Records.
The appellant further says that he did not receive this letter until the day after the holding of the AGM on 23rd October, 2005. And, therefore the appellant says that the respondent is in breach of the requirements of natural justice by failing to allow him time to lodge an appeal to the AGM as he was entitled to under Clause 36 because of the failure of the service of the notice of expulsion before the holding of the AGM.

17. I find it very difficult to accept this submission because in our view it is most unlikely that the appellant would not have known about his expulsion either on the 3rd of September 2005 or soon thereafter when the emergency meeting had taken place. This is because the facts indicate that the community with which we are concerned was a close knit community and that the appellant had a close association with the Mahamandal and the Vunimono High School where his son was running a canteen. Therefore it is most unlikely, in our view that the appellant did not hear about his expulsion soon after the decision was made:

18. In my judgment the appeal should be dismissed. I now turn to the issue of costs. In my view this was a very arguable appeal raising on its facts serious issues for the Court to decide. The applicable law had to be stated and applied. Mr Justice Byrne (as he then was) in giving leave to appeal was clearly of the same opinion. In my view Mr Kumar has acted reasonably in prosecuting the appeal and has taken the points available to him fairly and in a realistic and proper manner. He has assisted the Court. Mr Justice Jiten Singh made orders for costs in the Court below with which I would not interfere. In my view this Court neither encourages or discourages litigation so long as it is conducted reasonably and there is no abuse of the process of the Courts. This was a case where the view of all parties was that recourse to law was necessary. I believe they were acting reasonably. I do not take the view at all that because the Foundation has limited means neither its members nor its office bearers should engage in litigation. The Courts of Fiji must provide access to justice and the rule of law and must leave it to litigants, well endowed or otherwise, to make the decision whether or not take and continue legal actions. The appellant cannot be criticized for appealing in this case.

19. The key factor in deciding whether or not to order costs of the appeal in favour of the Respondents and against the Appellant in this appeal is simply the fact that the Respondent’s chose not to incur costs by not appearing to contest the appeal. This as it turns out was and is a correct decision. However the Respondents must have incurred costs in respect of the submissions which were prepared and sent to the Court. As stated I have found these submissions helpful in coming to my decision and in writing my judgment. In my view the appropriate order for costs on account of these considerations is that the appellant should pay costs of the appeal to the Respondent assessed at $1,000.

Sosefo Inoke, JA

INTRODUCTION

20. The Respondents/Plaintiffs represent the Trustees and Executive Committee of the religious organisation SANATAN DHARAM MAHAMANDAL. The Appellant/Defendant is the organisation’s former President/Manager. Apart from its religious responsibilities to its members, the organisation runs the Vunimomo High School in Nausori.

21. Sometime in January 2005, the Appellant appointed his son to manage the school canteen without the knowledge or approval of the Executive Committee. The Committee only became aware of it in May 2005. Attempts to call a meeting to discuss the issue were stifled by the Appellant using his powers under clause 20(d) of the Constitution. So on 2 September 2005 the Committee held an emergency meeting and suspended the Appellant for failure to disclose his pecuniary interest in the appointment of his son as the manager of the school canteen.

22. Despite the suspension, the Appellant refused to yield to the Committee’s decision so by Originating Motion filed on 18 January 2006, the Trustees sought injunction orders from the High Court in Suva prohibiting the Appellant from interfering with the management of the High School and using the organisation’s letterheads, documents and other property and for an order for him to return the organisation’s property.

23. In a short and succinct judgment delivered on 21 April 2006, Singh J held that the Executive Committee meeting of 2 September 2005 was validly called and the suspension of the Appellant was proper.

24. This is the Appellant’s appeal against that judgment.

25. The Respondents’ solicitors have filed their submissions but did not appear at the hearing of the appeal. We were satisfied that the solicitors and counsel acting for the Respondents had due notice of this appeal but failed to appear so we heard the appeal in their absence.

THE FIRST GROUNDS OF APPEAL

26. The first Grounds of Appeal were:

“1. The learned Judge erred in law and in fact when he did not consider other relevant and salient factors.

2. The learned Judge erred in law and in fact when he misinterpreted the facts of the case when he assume (d) and in fact took upon himself in the said Judgment that the Appellant/Original Defendant “... had procured for his son to manage the school canteen ... “ when in fact the said school canteen was rented by the Appellant’s son and not managed as assumed or taken upon by the learned Judge.”
   

CONSIDERATION OF THE FIRST GROUNDS OF APPEAL
27. No particulars have been given in respect of Ground 1 so in my judgment it should be dismissed.

28. Ground 2 is misconceived in that it is irrelevant how the Appellant’s son came to manage the school canteen. I am of the view that the learned Judge correctly held that the Appellant had a pecuniary interest in his son’s appointment, he failed to disclose it in breach of clause 5(f) of the organisation’s Constitution, the meeting of 2 September 2005 was validly called and the suspension of the Appellant was proper. The appeal also fails on this ground.

29. However, in his written submissions, counsel for the Appellant submitted that his client was denied natural justice and the right to a fair hearing when the Executive Committee met on 2 September 2005. Counsel also raised other grounds such as lack of quorum, bias and unfairness. It is clear that such grounds would not fall within any of the above two grounds unless an amendment is allowed.

30. Subsequently, on 18 March 2010 Amended Grounds of Appeal were filed by the Appellant apparently pursuant to leave granted by Byrne, AP, which were:

1. THAT the learned trial Judge erred in law and in fact when he proceeded to hear the Originating Summons on the affidavit evidence, when there was serious dispute as to the fact pleaded in the affidavit filed by the parties which required oral evidence to prove the truth of the matter.
   
2. THAT the learned trial Judge erred in law and in fact in failing to make a finding of fact that the Appellant was denied rules of Natural Justice, and opportunity to be heard and defend himself before any decision is made.
   
3. THAT the learned trial Judge erred in law and in fact in failing to make a finding of fact that the suspension letter was not served until a day after the Annual General Meeting thus denying the Appellant any room to Appeal as provided in the Respondents/Plaintiffs constitution.
   
4. THAT the learned trial Judge erred in law and in fact in failing to order that a religious organisation’s dispute be decided by the Annual General as provided for in the constitution Respondents/Plaintiff’s.
   
5. THAT the learned trial Judge erred in law and in fact in holding that the meeting was constitutional as it did not meet the requirement of the one quarter financial members attendance, the total 267 financial members, 25% or 30% would be presence of 66% or 67.1% financial members respectively and not 38 as in this case, any decision therefore taken is wrong in law.
   
6. THAT the learned trial Judge erred in law and in fact in making a finding of fact that the meeting was conducted in accordance with the Mahamandal Constitution when the majority of the financial members were locked out of meeting by the Respondent/Plaintiff and the Respondent/Plaintiff conducted their meeting with minority non financial members and later became office bearers, thereby breaching their own constitution.
   

CONSIDERATION OF THE AMENDED GROUNDS OF APPEAL
GROUND 1

31. Ground 1 has no merit whatsoever. It should have been raised and argued in the High Court. It was not done there and it is too late to do it now: Murt v. State [2009] FJSC 5; CAV0016.2008S (12 February 2009) applying Suttor v. Gundowda Pty Ltd [1958] HCA 35; (1950) 81 CLR 418 at 438; Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8.

GROUND 2

32. Again, these issues could have been but were not raised or argued in the High Court. They should not be raised or argued now. In fact, the trial Judge came to the conclusion, which I agree with, that the Appellant was unlikely to give a directive for a meeting because it was his conduct which was going to be the subject of discussion. He tried to stifle the meeting and should not now be allowed to say that he was not given an opportunity to be heard.

GROUND 3

33. Indeed, counsel for the Appellant conceded that the Executive meeting of 2 September 2005 was valid but he took issue with his client being notified of the decision in time to lodge an appeal. I find it difficult to accept that the Appellant did not receive or become aware of the suspension letter, which was dated the very next day after the meeting, until after the time to appeal had expired. There is no factual basis for such a submission. Fundamentally, I think the trial Judge was correct in holding that the Appellant could not use his powers as President to stifle the proper and efficient functioning of the organisation especially when it was his own conduct that was being called into question.

GROUND 4

34. There is no merit in this ground. The dispute in this instant was found by the learned Judge to have been decided in accordance with the constitution of the organisation and I find no reason to disagree with the Judge. In fact the Secretary for the organisation swore on affidavit that the Annual General Meeting of 23 October 2005 resolved to revoke the Appellant's appointment as President/Manager.

GROUNDS 5 & 6

35. This "quorum" argument was not raised in the High Court and it is too late to raise it now. There was affidavit evidence before the learned Judge that there was no basis for such an argument.

36. The Appellant should have taken heed of the trial Judge's comment postscript where he said:

"The office bearers of the Mahamandal must realise that their tenure under the Constitution is for one year only and if they spend most of their time, energy and resources in litigation which is a costly business, then they are not doing justice to the positions they have been appointed to but making the Mahamandal very poor indeed."

PROPER DRAFTING OF GROUNDS OF APPEAL

37. I have reproduced the Grounds of Appeal as they appear in the Notice of Appeal. I am disappointed to point out once again the sloppiness with which grounds of appeal have been drawn up in this Court in the majority of appeals. Counsel and solicitors are not only doing a disservice to their clients, they make the work of the Justices of this Court and the writing of judgments extremely time consuming. It is not the function of the Court to search out the real issues on appeal or to formulate counsel's appeal. That is the function of the advocates. A fundamental rule of practice which seems to escape many advocates. This is the risk that they run.

38. This appeal is dismissed for lack of all merit.

COSTS

39. Although the Respondents or their counsel did not appear at the hearing of this appeal counsel filed submissions. The High Court made no award of costs. I think this appeal and the action below have no merit whatsoever. The Appellant has not heeded the trial Judge's warning and has put the organisation to further unnecessary expense. In the circumstances he should pay the organisation's costs of this and the lower Court which I assess as $5,000.

Anjala Wati, JA

40. I agree with judgment and the reasons of Justice of Appeal Izaz Khan and I agree also with the orders including the order in respect of costs which he proposes.

Izaz Khan, JA

The Orders of the Court

41. The orders of this Court, by a majority on the matter of costs, are:

(1) The appeal is dismissed.

(2) The appellant do pay to the Respondents their costs of the appeal assessed at $1000.

Hon. Justice Izaz Khan
Justice of Appeal

Hon. Justice Sosefo Inoke
Justice of Appeal

Hon. Madam Justice Anjala Wati
Justice of Appeal