Court of Appeal of Fiji

(iii) Costs of Application for Injunction by Summons filed on 8 September 2016, and Application to Dissolve Interim Injunction, Application to Strike Out the Action and Application to Transfer this action to Lautoka Registry be costs in the cause

ABU 122 of 2016- Appeal against the judgment dated 20 October 2016

[44] Aggrieved by the judgment of 20 October 2016, the Appellants lodged Notice and Grounds of appeal on 7 November 2016. The grounds of appeal are as follows;

1. The Learned Trial Judge erred in fact and law in extending the varied injunction orders made on the 22^nd September 2016 until final determination of the action for the following reasons:
   
   • 1.1 The learned trial judge erred in law and in fact in falling to identify the subject matter of the proceedings that needs to be preserved or protected pending the determination of who were the office bearers of Then India Sanmaraga Ikya Sangam (“TISI”) and who could declare the Appellants the office bearers (National Executives) when the evidence clearly established that: -
     • 1.1.1. The Appellants were unopposed nominees for their respective positions as office bearers (National Executives) of the TISI; and
     • 1.1.2. Regardless of who made the declaration the only people who could be and were declared the Office Bearers of the TISI were the Appellants; and
   • 1.2. The learned trial judge erred in law and in fact in failing to apply the principles as stated in Order 29 of the High Court Rules, and in particular failed to find the irreparable or serious mischief that would entail if the matter proceeded in its normal manner.
     
2. The learned trial judge erred in law in holding that the injunction orders could stand regardless of the nondisclosure of material facts if it was done in good faith.
   
3. The learned trial judge erred in law and in fact in holding and that even if the material facts were disclosed the interim injunction would have been granted when: -

3.1 While the learned trial judge identified at paragraph 2.6 that the respondents were challenging the elections of the Appellants as national executives of TISI the facts that were not disclosed were:-

3.1.1 All the Appellants were unopposed and that there would be no elections held for their position;

3.1.2 The Council of management of the TISI had called a meeting to decide on the election of the office bearers that were opposed; and

3.2. Such fact was material to the determination of whether injunction orders could be granted to restrain the unopposed national executive (Appellants) from carrying out their functions.

3.3. The management of the TISI and its various organisations were restrained to an extent that employees could not be paid and the learned trial Judge acknowledged this when he varied the injunction orders on 22^nd September 2016.

4. The learned trial Judge erred in fact and in law at paragraph 3.19 of his decision in holding that the injunction orders granted were prohibitory and not mandatory when:-
   
   • 4.1. The injunction orders altered the status quo as the appellants were functioning as national executives of TISI;
   • 4.2. The trial judge failed to identify the status quo prior to the grant of the injunction orders.
     
5. The learned trial Judge erred at paragraph 3.25 in identifying that there was a serious question to be tried because the articles of association of the TISI does not answer the question of who would be the office bearers in the circumstances of this case and who would declare them the office bearers when:
   
   • 5.1 The declaration of unopposed office bearers was procedural and regardless of which process was taken, it would not determine any people other than the Appellants to be the said office bearers;
     
   • 5.2 It is not a serious question that needs to be determined if the outcome would only confirm the position of the Appellants regardless of which way the case was decided; and
     
   • 5.3 It is not a question that requires injunction orders to restraint unopposed national executives simply because a procedural clause may not have been followed or that the Articles of Association was silent the procedure to be followed.
     
6. The learned trial Judge erred in law and in fact in taking judicial notice that there was an interim committee appointed on 29^th May 2016 to run the affairs of TISI until the Annual General Meeting of TISI when: -

6.1 The Affidavit of Sada Siwan Naicker referred to in paragraph 3.37 (ii) of his decision was not properly in evidence before the trial judge and no submissions were called or made upon it;

6.2. The said affidavit was looked at in isolation without the benefit of the rest of the Affidavit of Sada Siwan Naicker or other evidence in that matter;

6.3. The purported appointment of an interim committee on 29^th May 2016 to run the affairs of TISI until the Annual General Meeting of TISI was not a fact that was so clearly known or established that judicial notice could be taken of it;

6.4. The learned trial judge failed to take into account that the said affidavit expressly deposed the appointment of the interim committee was unlawful, illegal and was not sanctioned by either the TISI or its youth branch;

6.5. The evidence before the learned trial judge clearly established that the affairs of TISI was managed by its duly elected office bearers after 29^th May 2016 and the Appellants after the AGM on 28^th August 2016; neither of which included the purported interim committee; and

6.6. The Lautoka matter had been settled and terms of settlement had been entered which was in evidence and such terms of settlement did not endorse or sanction such interim committee. The Learned Trial Judge at paragraph 4.9(i) of his decision makes a finding that the Lautoka Action was settled;

7. The Learned trial Judge erred in law and in fact in holding that undertaking as to damages and evidence to support such undertaking was not required in the case because the defendant could not suffer any damages as a result of the injunction when: -
   • 7.1 It was established that the Appellants had been declared elected as National Executives of TISI and had been running its affairs prior to the grant of the ex-parte injunction orders on the 8^th of September 2016, and they could be liable to TISI for not managing its affairs;
   • 7.2 One of the established principles in grant of interlocutory injunctions is that an undertaking as to damages has to be given; such principle being established and stated in the quotation by the learned trial Judge at paragraph 3.11 of the decision.
     
8. The learned trial Judge erred in law and took into account irrelevant matters by refusing to transfer the matter from Suva High Court to Lautoka High Court when:
   • 8.1 The alleged caused of action was based on the events that occurred in Nadi, Fiji and as such any caused of action arose in Nadi, Fiji;
   • 8.2 Order 4 Rule 1(1) of the High Court Rules clearly provides that proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises;
   • 8.3 The law in Fiji was clearly established that that the location of the witnesses or parties was not a relevant consideration in deterring the proper jurisdiction; and
     • 8.3.1.1 Several matters arising out of the incidences complained were commented in auto High Court and the learned trial Judge used material from a Lautoka Action to make findings in his decision.
       

[45] In the interim, the Appellants filed Notice of Appeal in this Court, seeking orders to wholly set aside the interlocutory orders made by the High Court on 22 September 2016 and 20 October 2016. These matters will be dealt with below.

The Respondents’ application to amend the Originating Summons: the interim committee, and the suspension of members

[46] On 25 October 2016, the 1^st and 2^nd Respondents made an application by way of Summons for Leave to amend the Originating Summons filed on 8 September 2016. The parties filed affidavits in support of, and in opposition thereto. The 1^st Respondent pleaded that the basis of this application was that in August 2016 the Nominations Committee unlawfully disqualified members of the interim committee as candidates because of their part in the meeting held on 29 May 2016, and because they had been appointed to the interim committee by TISI members. He pleaded that the interim committee had been appointed for the limited purpose of liasing with the Chief Executive Officer to ensure that the AGM is convened, but the disqualification of suspension ensured that those contesting were unopposed. The 1^st Respondent also pleaded that if the court finds that the Appellants are not properly elected as executives, then the 1^st and 2^nd Respondents would seek amended orders so that pending an election, the administration of the TISI would be with the said committee.

[47] By this amendment, the 1^st and 2^nd Respondents sought to add the following prayers described as “C” and “D”:-

“C. That the Interim Committee appointed by the members who attended the Then India Sanmarga Ikya Sangam AGM on 29 May 2016 at Nadi Special School be hereby allowed to manage the affairs of the Then India Sanmarga Ikya Sangam until a General Meeting is called to elect members to the National Executive.

D. That any decision made by the persons holding themselves out as the National Executive after 29 May 2016 to suspend and disqualify members from standing as candidates for the position of National Executives in TISI be set aside forthwith and a further order that these persons be allowed to contest the elections for the post of National Executives if they duly meet all other requirements to stand as candidates.”

The Judgment of 2 February 2017

[48] The learned High Court Judge considered the affidavits, the oral submissions of Counsel, the relevant law, allowed the application of the 1^st and 2^nd Respondents, and on 2 February 2017, made order as follows:

“(i) Leave is granted to Applicants to file Amended Originating Summons by adding following prayers: -

(a) That the Interim Committee appointed by the members who attended the Then India Sanmarga Ikya Sangam AGM on 29 May 2016 at Nadi Special School be hereby allowed to manage the affairs of the Then India Sanmarga Ikya Sangam until a General Meeting is called to elect members to the National Executive.

(b) That any decision made by the persons holding themselves out as the National Executive after 29 May 2016 to suspend and disqualify members from standing as candidates for the position of National Executives in TISI be set aside forthwith and a further order that these persons be allowed to contest the elections for the post of National Executives if they duly meet all other requirements to stand as candidates.

(ii) Costs of the Application to Amend Originating Summons be costs in the cause.

[49] By Summons dated and filed on 10 February 2017, the 1^st and 2^nd Respondents sought the following orders: -

1. A declaration that the appointment of the Defendants as the National Executives of the Then India Sanmarga Ikya Sangam on 28 August 2016 is void;
2. B. An order that a properly constituted General Meeting of the Then India Sanmarga Ikya Sangam be held to elect the National Executives of the Then India Sanmarga Ikya Sangam.
   

100. That the Interim Committee appointed by the members who attended the Then India Sanmarga Ikya Sangam on 29 May 2016 at Nadi Special School be hereby allowed to manage the affairs of the Then India Sanmarga Ikya Sangam until a General Meeting is called to elect members to the National Executive.
     

4. That any decision made by the persons holding themselves out as the National Executive after 29 May 2016 to suspend and disqualify members from standing as candidates for the position of National Executives in the Then India Sanmarga Ikya Sangam be set aside forthwith and a further order that these persons be allowed to contest the elections for the post of National Executives if they duly meet all other requirements to stand as candidates.
   
5. Such further or other reliefs as this Honourable Court deems fit and proper.
   
6. Costs of this action.”
   

The “Continuation” of the AGM on 19 February 2017

[50] In the meantime, while the determination of the appointment of the Appellants and the suspension of members was pending in the High Court, a notice of the “continuation’ of the AGM was placed in the newspapers. To the affidavit of the 1^st Respondent sworn on 10 February 2016, was annexed marked “A” a copy of the newspaper notice which stated as follows: -

“Pursuant to the Articles of Association of TISI Sangam and the Directive of the Council of Management; Notice is hereby given to all registered Life Members and Ordinary Members (who were financial members for consecutive 3 years and Life Members before 21^stMay 2016) of TISI Sangam Fiji that the Annual General Meeting held on 28^th August, 2016 is continued on the unfinished remaining Agenda items.

The following matters will be discussed.

1. Elections
2. Date of Meeting: 19th February, 2017

Time of Meeting: 1000hrs

Venue: Sangam SKM College- Nadi

Signed

Damend Gounder

Secretary General”

Application for Interlocutory Injunction and Joinder of the TISI and 3^rd Respondent

[51] It was in this background that by Summons filed on 10 February 2017, the 1^st and 2^nd Respondents sought the following orders:-

“A. The Then India Sanmarga Ikya Sangam be joined as a Defendant to the Amended Originating Summons herein.

2. The First to Seventh Defendants along with the Then India Sanmarga Ikya Sangam together with their servants or agents be restrained from doing or assisting in any way (either directly or indirectly) whether by participation or otherwise from holding the Annual General Meeting of the Then India Sanmarga Ikya Sangam on 2017 or any other date until further order of this Court.”
   

[52] The 2^nd Respondent filed two affidavits, and Parveen Kumar Bala filed one affidavit in support of the application for the joinder of the TISI, and an injunction restraining the holding of the AGM that was sought to be held on 19 February 2017.

The Judgment of the High Court dated 17 February 2017

[53] The matter was heard on 16 February 2017, and upon a detailed and careful analysis of the contents of the supporting affidavits, the learned High Court Judge allowed the application of the 1^st and 2^nd Respondents, and made order as follows:-

“(i) Then India Sanmarga Ikya Sangam be joined as eighth Defendant;

(ii) Plaintiffs/Applicants do serve all the documents including Rulings delivered in this Action at the registered office of Then India Sanmarga Ikya Sangam within fourteen (14) days;

(iii) Defendants and/or Executives of Then India Sanmarga Ikya Sangam and Then India Sanmarga Ikya Sangam whether by themselves, their agents or servants be restrained from holding the Annual General Meeting on 19 February 2017 at 1000 hrs at Sangam SKM College, Nadi or any other date including continuation of Annual General Meeting held on 28 August 2016 until further Order of this Court.

(iv) There be no orders as to costs for the Application.

Appeal ABU 008 of 2017: appeal against Judgment of the High Court dated 17 February 2017

[54] Aggrieved by the Judgment of the learned High Court Judge dated 17 February 2017, the Appellants filed Notice and grounds of appeal on 22 February 2017. The grounds of appeal are as follows:

1. The Learned Trial Judge erred in fact and law in granting leave to the Respondents to amend their Originating Summons to add prayers that an interim committee purportedly appointed on 29^th May 2016 be allowed to manage the affairs of TISI and that any decision made by any person other than the purported interim committee including any decision to suspend or disqualify members standing as candidates for the position of National executive of TISI be set aside when:-
   
   • 1.1 The Respondents in the High Court do not have a cause against the Appellants on these issues because: -
     
     • 1.1.1 There was neither any evidence to say that the Respondents were part of any purported interim committee nor that they were subject of any disciplinary proceedings or suspension.
     • 1.1.2 Any decision to discipline members or suspend them is made by the TISI and not personally by the Appellants.
       
   • 1.2 Any issues in relation to the appointment of an interim committee has been determined in a Civil Action Number HBC 98 of 2016 in High Court at Lautoka between the parties involved and therefore the principle of res judicata applies.
     
     • 1.3 The suspension and disqualification of members was challenged in proceedings in High Court Lautoka in Miscellaneous Action No. HBM 14 of 2016 between the parties involved and therefore the principle of res judicata applies.
       
     • 1.4 There was no evidence that there was any interim committee running the affairs of TISI from the 29^th May 2016 to 28^th August 2016.
       
     • 1.5 On 9^th December 2016, the Fiji Court of Appeal made an interim order that the national executives at the commencement of the AGM of 28^th August 2016 are to continue to manage the affairs of TISI until the determination of the stay application pending appeal.
       
2. The Learned Trial Judge erred in law in amending, undermining or watering down the effect of interim orders of the Fiji Court of Appeal when the jurisdiction to clarify or amend such orders are with the Fiji Court of Appeal.
   
3. The Learned Trial Judge erred in law and in fact in holding that the interim orders made by the Fiji Court of Appeal did not set aside or discharge the orders of 22^nd September 2016 and 20^th October 2016 when:-
   

3.1 While the injunction orders of the High Court restrained the Appellants from acting as national executives of TISI or from calling any meetings or commencing or completing any capital projects, it did not retrain the TISI or the national executives who were in office as at the commencement of the AGM of 28^th August 2016;

3.2 The interim orders of the Fiji Court of Appeal allowed the national executives as at the commencement of the AGM of 28^th August 2016 to take office of TISI;

3.3 The other injunction order of the High Court limited the people who could be signatories to the accounts of TISI which said order was effectively stayed or could not be followed once the national executives at commencement of the AGM of 28^th August 2016 took office.

4. Further the Learned trial Judge erred in not considering that the High Court orders were only made because of the issue of when the declaration could be made electing unopposed nominees to their position as national executives and not on the issue of suspension of members or appointment of purported interim committees.
   
5. The Learned trial Judge erred in law and in fact in failing to identify the subject matter of the proceedings that needs to be preserved or protected pending the determination of the issues. The Learned Trial Judge erred in law and in fact in failing to apply the principles as stated in Order 29 of the High Court Rules, and failed to find the irreparable of serious mischief that would entail if the matter proceeded in its normal manner.
   
   • 8.3.2 The Learned trial Judge erred in law in granting injunction orders against TISI when TISI had not been given an opportunity to be heard on the issue.
     
     • 8.3.3 The Learned trial Judge in law in not taking steps to reduce the issues in the proceedings; particularly by restraining the completion of the AGM of 28^th August 2016.
       
     • 8.3.4 The Learned Trial Judge erred in law by not determining the issue of his recusal based on apprehended bias before making injunction orders in the matter.
       
     • 8.3.5 Such further grounds of appeal as may be added upon receipt of the record.
       

Discussion of the Grounds of Appeal

[55] The Appellants have raised several grounds of appeal in the three consolidated appeals. The issues raised in the grounds of appeal can be broadly categorized as the injunctions grounds and the other general grounds. A summary of the grounds is as follows; the grant of interim injunctions in the absence of the applicants’ failure to establish the requirements of Order 29 Rule 1 of the High Court Rules 1988(“HCR”), granting an injunction despite the applicants failing to provide an undertaking for damages, issue of a mandatory injunction without legal justification, grant of the interlocutory injunctions amounting to the grant of the final relief, failure to identify the subject matter of the action that needed to be preserved, issuing injunctions against non-parties who had not been heard, failure to transfer the matter to the High Court of Lautoka based on irrelevant matters, failure to dissolve the injunction despite the subsequent affidavit evidence of the Defendants (Appellants) showing that the applicants were guilty of material non-disclosure when they obtained the injunction, taking judicial notice of matters (in this case, the interim committee) not referred to in connected litigation, permitting the amendment of the 1^st and 2^nd Respondent’s Originating Summons to add prayers, misreading the effect of the order made by this court on 9 December 2016,and failure to make an order on recusal before determining other matters.

[56] The grounds of appeal based on failure to satisfy the criteria relating to the grant of interlocutory injunctions will be considered separately from the other independent grounds urged.

A - The grant of the Injunctions

(a) Was there a serious question to be tried?

[57] Under this ground of appeal the Appellants urge that the learned High Court Judge erred in concluding that there was a serious issue to be tried, merely because the Articles of Association of TISI did not answer the question as to who would have to make the declaration of election of unopposed candidates. Despite implicitly conceding this lacuna, the Appellants argue that the declaration was a merely “procedural” step, and regardless of the process taken, the answers would be the same, as no one else could be declared as office bearers except the Appellants. They contend that therefore there is no a serious issue to be tried, and submit that, “if the outcome would only confirm the position taken by the Appellants regardless of which way the case is decided”.They conclude by contending that; “that is not a question that requires injunction orders to restrain unopposed national executives simply because a procedural clause may not have been followed or that the Articles of Association was silent on the procedure to be followed.”

[58] I see an inherent contradiction in the said ground of appeal, which I shall deal with in due course.

[59] The relief sought by the 1^st and 2^nd Respondents in their Originating Summons was as follows:

“A. The Defendants by themselves or by their servants agents or otherwise howsoever be restrained from acting as the National Executives of the Then India Sanmarga Ikya Sangam including calling any meetings of the Then India Sanmarga Ikya Sangam or council of management meetings or any meetings and from dealing with the financial and administrative affairs of the Then India Sanmarga Ikya Sangam whatsoever until further order of the Court.

[60] The position of the 1^st and 2^ndRespondents in the High Court was that the AGM fixed for 28 August 2016, commenced, but since it was cancelled before it reached the stage of election, the Appellants and uncontested nominees cannot claim that they have been lawfully installed in their positions. The Appellants whilst conceding that the AGM was not concluded, contend that the Nominations Committee can make the declaration of the uncontested nominee. The learned High Court Judge considered the approved nominations list for the AGM that was to take place on 29 May 2016. At that time there was only one position which was uncontested, that was for Vice President -South Western. There were 3 contestants for post of National President, they were the 1^st Appellant, and 1^st and 2^nd Defendants in the Lautoka action. The 3^rd defendant in the Lautoka action was one of the two contestants for the post of Secretary General, and the other contestant was the 2^nd Appellant in this Appeal. However, as the then executives suspended the three defendants after entering the consent orders in the Lautoka action, although they had been contestants at the 29 May 2016 election, they became disqualified for the next election, which the Appellants called for the 28 August 2016, having breached the terms of settlement. This has a bearing on the orders that this court must make.

[61] The Appellants relied on terms 2, 3, 4, and 5 of the Terms of Settlement entered in the Lautoka action. Counsel for the Appellants and Respondents referred to Articles 17.4 and 17.5 of the Revised Articles of Association. Based on the contents of these Articles and submissions, the learned High Court Judge concluded that the issue that the court needs to determine is when the declaration of the office bearers must be made, and who is required to make such declaration. Both parties were in agreement that the Rules annexed by them did not specifically answer the question. In the light of this, it is untenable for the Appellants to argue that the learned High Court Judge erred in law in concluding that there was a serious question to be tried.

[62] In an application for an interlocutory injunction, the claimant need not convince the court at the outset itself that he has a case that will most likely be decided in his favour. In American Cynamid Co. v Ethicon Ltd. [1975]A.C. 396 at 406G-407G, the court said:

“The evidence available to the court at the hearing of the application for an interim injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if on that incomplete untested evidence the court evaluated the chances of the claimant’s ultimate success in the action as 50 per cent or less, but permitting its exercise if the court evaluated his chances at. More than 50 per cent...there is no such rule... The court no doubt must be satisfied that .... There is a serious question to be tried....”

[63] Since as injunction does not finally determine rights but is in effect an action within a larger claim, it reflects a temporary remedy which may become permanent if the applicant eventually succeeds in the larger claim, the applicant must establish that there is a serious question to be tried. This will initially be presented to court by the plaintiff providing material that reflects that his claim is not frivolous, and that there is a matter in dispute which requires the intervention of the court. The purpose of the injunction is to protect the applicant from damage which he could not be later adequately compensated for, if the defendant were to continue the acts complained of. Thus, the injunction is to preserve identifiable legal or equitable rights and interests, which can be effectively enforced if the applicant is successful in the final judgment.

[64] The Appellants state in their written submissions that the Respondents failed to identify and plead the “exact breach”. It appears that what is meant is that it was incumbent on the Respondents to identify the specific provision in the Memorandum and Articles of Association that the Appellants had breached. However, this argument is untenable because the Appellants themselves concede that who must make the declaration in regard to unopposed candidates and when it must be made, is not clear. It is plain that there is a case for the Appellants to answer. Instead of answering and clarifying under what provision they claim to have been “declared elected”, they have put forward reasons as to why the injunction should not have been granted. The learned Judge of the High Court was correct when he held that the test for establishing whether there is a serious question to be tried, is for the court to be satisfied on the material available, that the claim is not frivolous, vexatious or hopeless. This is the test laid down in American Cynamid (supra), and I see no reason to interfere with the finding of the learned High Court Judge on this matter.

(b) Did the Respondents satisfy the test of urgency entitling them to the injunction?

[65] The originating Summons of the 1^st and 2^nd Respondent sought a declaration that the appointment of the Appellants as the National Executives of the TISI on 28 August 2016 is void, and an order that a properly constituted General Meeting of the TISI be held to elect the National Executives of the TISI. The basis of claiming the relief was that the 1^st and 2^nd Respondents were Life Members of the TISI and are entitled to the rights set out in the Memorandum and Articles of Association, including the right to vote in the election of the National Executive Committee of the TISI, the 1^st Plaintiff was a candidate at the election scheduled for 28 August 2016, but the meeting was interrupted and incomplete and therefore the appointment of the Appellants is contrary to the Memorandum and Articles of Association.

[66] As the AGM and the election were both incomplete, which fact is also acknowledged by the Appellants, there is no doubt that, when the 1^st and 2^nd Respondents placed the newspaper notice and sent out letters to the branches calling a meeting, it was a clear indication that the Appellants were conducting themselves on the basis that they had been duly “elected’. It was this which triggered the urgency.

[67] The Appellants claim further that the 1^st and 2^nd Respondents did not “lead evidence” to show that there was urgency, or that they had complied with the other elements Order 29 Rule 1 (2) of the High Court Rules. Whilst granting of ex parte injunctions is not the rule, whether there is urgency is contextual and will depend on the matter sought to be stayed, and its implications if not stayed. In this case, the whole point was that the 1^st and 2^nd Respondents as Life Members of the TISI, and the 1^st Respondent being desirous of contesting at the election, was witness to the circumstances under which the election had not been completed. Therefore when the Appellants had taken it upon themselves, even before the date of the AGM and the election to have themselves “declared”, to act in the capacity of elected office bearers and call for meetings with the membership, it was a matter that needed to be urgently stayed.

[68] In the result, I find that the learned High Court Judge had exercised his discretion correctly in treating the matter as one that warranted the urgent intervention of the court. I therefore dismiss the ground of appeal based on the 1^st and 2^nd Respondents’ failure to establish that there was urgency in obtaining the injunction on 8^th September 2016.

(c) Balance of convenience-

What was the Status Quo when the Originating Summons was filed?

[69] A Judge who has to decide whether to grant an injunction or not, will have to look at the entirety of the facts and then apply the relevant legal principles to them. The issue will then be, does the balance of convenience favour the grant or refusal of the injunction? The executive positions that are being fought for by the Appellants based on an apparent lacuna in the Articles, are not personal to them, but arise out of the contractual relationship they have with a body corporate, the TISI. Similarly, the 1^st and 2^nd Respondents, who have the identical contractual nexus with the TISI as do the Appellants, are equally entitled to exercise their contractual rights of association with the TISI, such as the right to vote for candidates of their choice, as well as to be elected by the membership.

[70] The Appellants argue in their written submissions that if the office bearers were to revert to the positions they held prior to the AGM, even then, the signatories to the accounts of TISI would be the same persons. This however, does not answer the central question of whether nominees can be declared without having duly followed the proper procedure at a duly constituted AGM.

[71] The Appellants have drawn the attention of this court to paragraph 3.35 of the judgment dated 20 October 2016, where the learned High Court Judge observes as follows:-

“ 3.35. It appears that there has been uncertainty in respect of TISI from 29 May 2016, when the Annual General Meeting scheduled for 29 May 2016 was called off by then Executive Committee (May AGM) as appears from Padayachi’s affidavit.

3.36. The Defendants claim that the status quo remain.

3.37. The question that needs to be answered is what is the status quo for the following reasons:-“

[72] The Appellants contend that in paragraph 3.37 (vii) of the judgment dated 20 October 2016, the learned High Court Judge, “speculated that that the status quo was that some interim committee was managing the affairs of the 3^rd Respondent”. However, I find that this is not a true reflection of the judgment. This is what the court said:

“(vii) Could it then be that since AGM was not completed on 28 August 2016, the status quo requires the interim committee appointed on 29 May 2016 meeting, manage the day to day affairs of TISI until next Annual General Meeting.” (Emphasis added].

[73] I find that this submission chooses to target one sub-paragraph and fails to consider the entirety of all the sub-paragraphs of the judgment. In actual fact, what the learned Judge did, was to consider the cumulative effect of the terms of Settlement in the Lautoka action, the affidavits filed in support thereof, and the fact that Naicker’s affidavit filed in the Lautoka action itself stated (and complained), that an interim committee had been formed. In his affidavit Naicker said:-

“That I am informed that the 1st, 2nd and 3rd Defendants chaired the purported meeting at the Nadi Special School. I am unaware of the exact agenda of the meeting or the resolutions, orders and/or motions passed/resolved at the said meeting however I am informed that the purported meeting passed/resolved that there be an interim committee undoubtedly led by the 1st, 2nd and 3rd Defendants appointed to lead and/or govern the Plaintiff. I wish to say that any such meeting and/or action goes against the constitutional documents of the Plaintiff and is unlawful, illegal and beyond the authority of the 1st, 2nd and 3rd Defendants.”

[74] In my view, the learned High Court Judge’s conclusion was not speculative as alleged; indeed, it was based on the evidence relied upon by the Appellants themselves. This is confirmed by the fact that although the action was filed in the name of the TISI, it was the Appellants, as members of the Executive Committee who approved the institution of the Lautoka action. In these circumstances, it is not open to the Appellants to argue that the court “speculated’ that the status quo was that “some” interim committee was managing the affairs of the TISI.

[75] On a consideration of the material available to the High Court, the status quo argument of the Appellants seems to be this; they, as the executive committee decided to cancel the AGM fixed for on 29 May 2016, the members who were clearly affected by the cancellation were expected to await the announcement of the new date. The members have no contractual or other right to ask why the AGM was indefinitely cancelled. The members who met and decided to take steps to ensure that the AGM is held without delay, were then sued, and sought to be disciplined for holding the meeting. The Appellants then sought declarations that the decisions, orders, and resolutions passed at the said meeting are null and void, and that the committee that cancelled the AGM is the proper and authorized Council of Management and that this is the status quo that must be maintained. For the reason set out in that judgment, this court does not consider this status quo one that must be protected by the discretionary power of court.

The Circumstances preceding the Consent Orders

[76] The Lautoka action was eventually settled. However, when the case was called on 1 July 2016, (copy record 306) and terms of settlement were to be entered in court, the Judge’s Notes reveal the reservations and anxiety on the part of the Defendants, who clearly feared that disciplinary action would be taken against them for conducting the meeting on 29 May 2016 and forming the interim committee. At that time, they were assured that no such thing would happen.

[77] During the Hearing in this court, Mr. Devanesh Sharma drew the attention of the court to this matter as reflected in the Judge’s Notes (copy record p. 306 and p. 307). The relevant extract from the Notes is reproduced below:

“Mr. Naidu: At the moment my Lord unfortunately though we went in the best of intentions but overnight I’ve had calls from the intervener proposed intervener and the 3^rd defendant that the terms of settlement those signed and there were certain terms we were pushing to be included and its not included and that’s disciplinary action and because we were told that there would be no such thing happening but now we are told, and I am reliably informed by the proposed intervener and the 3^rd defendant that the plaintiff intends to take disciplinary actions against the first defendant, the intervener and the 3^rd defendant prior to the AGM they agreed to on 28^th, I don’t know whether the Counsels know of this, I don’t think they do or that it is just a rumour..”,

Mr. Pillay: “.. Now the disciplinary process is the process that exists, its something that council of management and the executives are empowered to discharge if, if there is a disciplinary matter that arises. Now at present there is none.

Court: ... The first defendant informs that the third defendant is in fear of disciplinary action being taken against him by the plaintiff. The counsel for the plaintiff confirms that there is no such process on or intention of taking such move...”

[78] At this point, in my view, there is another matter to be considered and that is, two of the terms entered in the Terms of Settlement, which have a bearing on how to determine the balance of convenience in deciding whether to grant the injunction. They are, that the AGM should be held on 28 August 2016, and that the membership of the TISI for the Annual General Meeting shall be as in the approved register of members on 21st May 2016.

[79] Although the Appellants have sought to argue that the Terms of Settlement did not preclude the taking of disciplinary action against the members, in the totality of the evidence presented in the court below, I am unable to agree with that submission.

[80] It is not difficult to see, that the suspension of members almost immediately after the settlement in the Lautoka action, effectively precluded those members from contesting and taking part in the AGM. This then begs the question, whether the Terms of Settlement were followed both in letter and spirit. In my view, this must inform the discretion of the court in determining whether to grant or refuse the injunction, and what place to accord to the interim committee. I fail to see how the steps taken by a group of members that passed a resolution that sought to have the AGM held without delay, can be described as improper.

[81] The court accepts the principle advanced by the Appellants that the granting of an interim injunction must be for the purpose of maintaining the status quo. They say that since 29 May 2016, up to 9^th September 2016, when the High Court granted the first injunction, it is they who have been managing the affairs of the TISI, and that this status quo should not be disturbed. But an important question is, what is the status quo that needs to be preserved in this case? How was the status quo which is sought to be preserved, achieved? Was the status quo achieved by improper means? If so, is that the status quo that needs the protection of the court and must be maintained? In this case, the answer lies in the consideration of a complex set of facts, exacerbated in no small measure by several other factors. The decision whether to grant the injunction or not, will depend on the matter complained of, the conduct of the parties, and what reasonable conclusions could be drawn therefrom. If one party had acted in breach of the spirit and terms of a settlement, it can tip the scales in favour of the other party.

[82] Therefore, in deciding whether or not to grant the injunction requires the court to reflect on the sequence of events set out above, and the Terms of Settlement that were made into a court order. Orders No. 9 and 10 state as follows:

“9. THAT the parties shall act according to the written and signed terms of Settlement filed of record dated 30^th June and filed on 1^st July 2016.

10. In terms of Notice of Discontinuance the case is hereby struck out and dismissed against the 1^st, 2^nd, 3^rd and 4^th Defendants with no costs”
    

[83] In exercising its discretion and deciding where the balance of convenience lies, the court must weigh the competing interests of the parties, consider the subject matter of the dispute, its significance to each party, and then be satisfied that the comparative mischief, hardship, or inconvenience which the applicant will suffer by refusing the injunction, will be greater than what is likely to be suffered by the defendant in granting it. In other words the question is whether the harm that the defendant will suffer, will be greater than the harm the plaintiff will suffer if the injunction is issued.

[84] In considering where the balance of convenience lay, the learned High Court Judge considered all material facts; the TISI is an association with a membership of approximately 6500, a figure which can hardly be described as negligible. Its activities ranged from maintaining and managing the Temple in Nadi, primary schools, secondary schools, an academic institution the Sangam Institute of Technology, and primary and secondary schools.

[85] The learned High Court Judge also correctly considered the history of the matter, the litigation that had preceded the Suva action; the approved nominations list relating to the election for managerial positions of TISI during the AGM (marked as Annexure DSN-7 with the affidavit of Naidu) which contained 3 nominees for the Post of National President, 2 nominees for Vice President -South, 3 nominees for Vice President -North, 2 nominees for Vice President North- Western, 1 nominee for Vice President South- Western, 3 nominees for General Manager, 2 nominees for Secretary General, 1 nominee for Secretary General- Administration, 3 nominees for General Secretary Operations, and 2 nominees for General Treasurer), the sudden postponement of the 29 May 2016 AGM, the formation of the interim committee, the consent orders recorded in the Lautoka action, the suspension of members after the consent orders were recorded, the aborted AGM that commenced on 28 August 2016, the later list of nominations for management positions in respect of which there was only one nominee, which had been annexed to the affidavit of Sadasivan Naicker in the Lautoka action, (which was marked as Annexure DAG1, to the 1^st Appellant’s affidavit sworn on 23 November 2016 in the Suva action), the order issued by this court on 9 December 2016 on an application made by the Appellants on 18 November 2016 against the order of the High Court dated 20 October 2016, the contents of the correspondence that passed between the parties between the 6 and 10 February 2017, the fact that the parties had not sought a clarification of the order of this court made on 15 December 2016, the fact that in any event the order that this court had made, was only an interim order operational until the application for the stay is heard, and that the first interim injunction Order granted by this Court on 8 September 2016 and varied on 22 September 2016, and the interlocutory injunction granted by the High Court on 20 October 2016, had not been set aside by this court. Therefore, those orders were valid and binding on all parties.

[86] The learned High Court Judge correctly concluded that although the order of this court dated 9 December 2016, on an appeal made by the appellants stated that; “The members of the Executive that were in office at the time of commencement of the Annual General Meeting on 28^th August 2016 o continue in o in office until the hearing of the stay application in this appeal,” the members who were managing and running the affairs of the association on the strength of the said order of this court that they had obtained on 9 December 2016, were well aware that those members who had been suspended after the Consent Orders in the Lautoka action, had thereby effectively been precluded and effectively shut out from contesting the election of office bearers, and had challenged their suspensions from membership.

[87] Upon a close consideration of the facts and documents that was before the High Court, the sequence of events that had unfolded from the beginning, the competing interests of parties to this appeal, and the connected litigation, in my view, the irresistible conclusion is that there was a concerted effort on the part of the Appellants to ensure that the AGM was not held, and if it had to be held because the Consent Orders required it to be held, then the persons who were in office, appear to have identified and targeted certain members for exclusion via the disciplinary process. This was a relevant matter to be considered in deciding where the balance of convenience lay.

[88] Therefore, the learned High Court Judge was correct when he concluded in his judgment dated 17 February 2016 that:-

“4.44 This will obviously mean that most of the executives who are managing the affairs of TISI which comprises of First, Second, Third and Sixth Defendants will achieve what they intended to do when First Defendant made declaration on 29 August 2016, that is one day after the 28 August 2016, Annual General Meeting of TISI was stopped by Police Department.”

[89] Accordingly, the learned High Court Judge was correct when he issued the injunction on 9 September 2016, and I see no reason to interfere with the order.

(d) Were the injunction orders mandatory?

[90] The appellants argue that a mandatory injunction was granted. This is in respect of the details of payments to be submitted to court on a fortnightly basis. Whilst it is not common for such an injunction to be granted, the court can use its discretion in a case where the applicant (or persons he represents) will suffer harm if it is not granted, or the applicant is likely to succeed at the trial and the respondent will not incur expenditure which would be disproportionate to the applicant’s harm.

[91] A mandatory injunction can be sought where no damage has occurred. The principles were laid down by Lord Upjohn in Redland Bricks Ltd. v Morris [1970] A.C. 652 at 665G-D. The court said that the grant of the mandatory injunction is entirely discretionary, and though it will not be granted as a matter of course, it must be granted on a case-by-case basis depending on facts, the judge in his discretion considers relevant. The fact that it may be troublesome or unprecedented for the defendant to do what has been ordered, is not by itself a ground for refusal. In this case the order was made until a further order of court and was not indefinite. In all the circumstances of this case, I see no reason to disturb this order.

(e) Did the injunctions restrain the activities of the 3^rd Respondent, when it was not a party to the proceedings?

[92] An examination of the orders made by the learned High Court Judge, which orders have been set out above, were directed at the defendants and not the TISI as an institution. Besides, the variation of the orders enabled the relevant officers to administer the finances and pay salaries of staff, a matter then was bought to the attention of court by the Appellants. There was no evidence produced by the Appellants that any of the institutions run by the TISI had stopped functioning. Therefore, this ground of appeal is without basis and is dismissed.

(f) Was there Material Non-Disclosure?

[93] The Appellants claim that the learned High Court Judge failed to dismiss the injunction despite the Respondents being guilty of material non-disclosure. This principle was laid down in Castelli v. Cook [1849] EngR 256; (1849) 7 Hare 89, 94 and in the well-known case of Rex v. Kensington Income Tax Commissioners, Ex parte de Polignac (Princess) [1917] 1

K.B. 486, 509, in which Warrington L.J. said:

"It is perfectly well settled that a person who makes an ex parte application to the court - that is to say, in the absence of the person who will be affected by that which the court is asked to do - is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. . That is perfectly plain and requires no authority to justify it."

[94] The relevant principles regarding material non- disclosure in respect of the grant of injunctions, have been reviewed in several cases: Brink’s-MAT Ltd v Elcombe [1988] 1 WLR 1350; Memory Corporation v Sidhu [2000] EWCA Civ 9; [2000] 1 WLR 1443; Arena Corp Ltd (In Provisional Liquidation) v Schroeder (2003) EWHC 1089; Dadourian Group International Inc [2007] EWHC 1673. Some principles that can be extracted from these judgments are: (i) If the non-disclosure would have resulted in the order not being made initially, then the proper remedy will be for the order to be discharged; (ii) If an order could properly have been made even if the material fact or matter had been disclosed, the court may nevertheless allow the order to continue, or make an order on new terms, particularly where the failure was innocent and not grave; (iii) A material non-disclosure which was intentional, or grave, will tend to tip the balance in favour of discharging the injunction.

[95] In determining whether there had been material non- disclosure, the learned High Court Judge considered the facts which the Appellants described as ‘material’. The Appellants claimed that the following facts were material:

“The elections to be held on 28 August was only for three office bearer positions. The seven (7) defendants named herein were elected unopposed”.

I find that to be a disingenuous argument, as it is exactly this claim of the Appellants, that is in issue. Therefore, for the Appellants to claim that that was a material non-disclosure was not correct, because this claim was disputed by the 1^st and 2^nd Respondents. In any event as to what is a material fact is a matter for the court, and the court is not bound by the assessment of the applicant or his legal advisers: The Kensington Income Tax Commissioners case [1917] 1 KB 486 at 504 per Cozens -Hardy MR citing Dalglish v Jarvie [1850] EngR 688; (1850) 2 Mac & G 231 at 238, 42 ER at 92, Thermax Ltd. v Schott Industrial Glass Ltd. [1981] FSR 289 at 295, per Browne- Wilkinson J.

[96] Applying these principles to the facts of the case, I am satisfied that the learned High Court Judge has carefully considered the pleadings, the submissions made, and the applicable law and correctly refused to dissolve the injunction granted. In fact, the claim of the Appellants that they were unopposed nominees and that the Nominations Committee nominated them was made known to the membership only when the 1^st Respondent said so in his affidavit on 15 September 2016. In this regard, firstly, I am satisfied that there was no material non-disclosure, innocent or otherwise. Secondly, even if the material described by the Appellants as “material” had been disclosed by the 1^st and 2^nd Respondents, I have no doubt whatever that the same order would still have been made. I am therefore satisfied that there was nothing in the matters adverted to by the Appellants that could have affected the conclusion which the learned high Court Judge had reached. The learned High Court Judge has considered this matter in detail, and I see no reason to interfere with his findings on this point. The ground of appeal based on material non- disclosure is therefore dismissed.

(g) Failure to provide evidence of damages

[97] The Appellants contend that the learned High Court Judge erred in holding that an undertaking in regard to damages and evidence to support such undertaking was not required in this case because the defendant could not suffer any damages as a result of the injunction. The basis for this ground of appeal is that the Appellants contend that they had been “declared elected” as national executives of TISI and had been running the affairs of TISI before the grant of the injunction on 8 September 2016, and therefore the claimants for the injunction had no case.

[98] In this regard the Appellants have drawn the attention of this court to the judgment of the Supreme Court in Wakaya Ltd. v Chambers [2012] FJSC9; CBV0008.2011 (9 May 2012).It is true that it is usual to obtain an undertaking in damages, and the Supreme Court observed as follows:

34. A further fact that emanated from the judgment of the Court of Appeal was the fact relating to an undertaking as to damages by the Petitioner which the Court stated that the Court was not aware of. The High Court in granting the interim injunction failed to obtain an undertaking regarding damages, which was erroneous as it is usual to obtain such an undertaking to safeguard the interests of a defendant against whom an injunction is obtained. In the affidavit filed on behalf of the Petitioner when seeking the interim injunction it was stated that the Petitioner was a viable company and has the ability to meet any award of damages, and also a Bank statement as at that date to show their financial viability, but this would not be sufficient to be considered as an undertaking to pay damages. As Justice Marshall stated in his judgment that if the cross-undertaking is not given, the loss suffering defendant should upon vindication at trial be awarded damages in respect of his loss. This would go on to show that the 1st Respondent could vindicate his rights at the trial into the main case before the High Court. (Emphasis added).

[99] In Wakaya (supra), the original plaintiff’s claim was one for damages in anticipation of being prevented from entering a land in respect of which he claimed an equitable right to title. The Supreme Court said:-

“23. The grant of an interim injunction would be to maintain the status quo of the parties in relation to a state of affairs which would have changed if the party against whom such relief is sought was allowed to carry on his actions. In the present case the prevention of the 1st Respondent from carrying out what he intended to do has not brought about a change in the state of affairs in relation to the parties as far as their property rights have been concerned which remained before the grant of the interim injunction”

[100] In these appeals however, the 1^st and 2^nd Respondents claimed that if the Appellants had gone ahead and conducted the intended meeting in September 2016 as reflected in the letter dated 6 September 2016, sent by the 1^st Appellant to the District representatives, then the acts sought to be prevented by the 1^st and 2^nd Respondents would have occurred. Thus the injunction had to be issued.

[101] In Wakaya (supra) the Supreme Court held that the Court of Appeal erred in granting an interim injunction, because the application of the plaintiff in the original action was not in accordance with the main relief that he had sought in the statement of claim, which was a claim for damages. Therefore, it was held that the refusal to dissolve same too, would be erroneous.

[102] In these appeals however, the original plaintiffs, the 1^st and 2^nd Respondents came by way of Originating Summons seeking an interim injunction on facts that could not have been disputed; the election on 28 August 2016 was (admittedly) not completed as it was stopped by the Police and, was followed by an undated press release and a newspaper article which stated that national executives had been “appointed” without an election. The press release said;

“Despite the postponement of the meeting, as per the Constitution of Then India Ikya Sangam, those candidates who were unopposed in today’s election were returned to office as elected officer (sic) holders”.

[103] In regard to the undertaking in damages, in Wakaya (supra) the Supreme Court said:

“Adverting to this omission Marshall JA in the Court of Appeal stated "In my view common law and equity have developed to the point that the cross undertaking is to be implied in quia timet applications. That will not stop judges from requiring the undertaking from the Plaintiffs so that they are advised of the adverse risks involved in making a quia timet application. But this risk is now so well known, that if the cross-undertaking is not given, the loss suffering defendant should, upon vindication at trial, be awarded damages in respect of his loss. We are in agreement with that observation, as the question of damages has to necessarily await the conclusion of injunction by the High Court. If in the High Court the Petitioner fails, then in addition to any other relief, it will be obliged to make an order for damages against the Petitioner for the loss, if any, that was sustained as a result of the grant of the It is to be noted that the Court of Appeal has observed that the High Court overlooked an essential requirement for the grant of an interim injunction, in that it had not obtained an undertaking as to damages.”

[104] My understanding of the ratio of the Supreme court’s judgment in Wakaya (supra) in regard to obtaining an undertaking in damages from the Plaintiff, is to put him on notice that should it turn out at the conclusion of the trial that he was not entitled to a quia timet application, he bears the risk of the defendant being entitled to damages, however that too would be only after the latter has established such right, at the conclusion of the trial. The preponderance of authority is however that, obtaining this undertaking is a matter of discretion for the trial judge. Considering the unique and peculiar facts of this case, and the reasons set out in the judgement of the learned High Court Judge, I do not see a reason to interfere with the exercise of his discretion on the matter of the undertaking for damages. This ground of appeal is therefore dismissed.

(h) Do the interim orders amount to the final relief?

[105] The brief answer to this is, no. The final relief is the determination on the issue of whether uncontested nominees can be declared elected, in the absence of a duly constituted and conducted AGM. Therefore, the Appellants’ argument that the interim injunction has granted the final relief is without basis. The actions of the Appellants that have been stayed by the injunctions only prevent them from holding themselves out as national representatives, because the issue of whether they have been duly elected as national representatives, was one of the central matters in dispute and under determination. The injunctions granted by the High Court have made no final determination in that regard, nor have the injunctions been granted indefinitely. The injunction granted on 9 September 2016 and varied on 22 September 2016, in paragraphs (a) and (b) of the order, specifically provide that they shall operate ‘until further order of the court”. This contrasts with the contention of the Appellants.

[106] The impugned order made on 2 February 2017, in paragraph (1) (i) provides that the interim committee appointed by the members who attended the meeting on 29 May 2016, are to be “allowed to manage the affairs of the TISI until a General Meeting is called to elect members to the National Executive”, (emphasis added). Thus, the contention of the Appellants’ is factually incorrect, and I therefore reject the submissions made in that respect. Therefore, this ground of appeal is dismissed.

B: The Other Grounds of Appeal

Refusal to transfer the action to High Court Lautoka

[107] The Appellants argue that the learned High Court Judge took irrelevant matters into consideration by refusing to transfer this action from the High Court of Suva to Lautoka. The application for transfer was based on the contention that the cause of action if any, arose in Lautoka. The reasons of the learned High Court Judge in respect of the refusal to transfer was based on the provisions of Order 4 Rule 4 of the High Court Rules, which is couched in directory and not mandatory language, leaving the matter of transfer of proceedings to the discretion of the judge. The learned High Court Judge having considered the relevant law, exercised his discretion to permit the matter to remain in Suva. Transfer is a matter in the discretion of the judge, and in this case, I do not find a basis on which to interfere with the discretion exercised by the learned High Court Judge. This ground of appeal is therefore dismissed.

[108] One other submission of the Appellants was that the court ought not interfere in this matter as it is a matter of contract between the members and the association. Whilst this submission at first blush appears to have some force, in the unique circumstances of this case, I looked beyond that argument and found that there is precedent for what the High Court did when it issued the impugned injunctions. In Woodward & another v Smith & another [1970]1 All ER, a case with somewhat similar facts, where the membership of certain persons was in dispute, an admitted member of an association commenced action against the secretary of the association and others seeking a declaration and injunctions restraining the defendants from proceeding with an AGM. In considering whether to grant an injunction, the court said:-

“It has been common ground throughout that the rules constitute a contract between the members of the association. In breach of their contract, the defendants and others have been excluding the first plaintiff and others from the benefits of membership to which they are entitled. No doubt the value of the property rights of a member are small, and perhaps negligible; but the case is one which has manifestly aroused strong feelings amongst a large number of those affected, and the association is concerned with matters of public importance in the district. It accordingly seems proper that the matter should be resolved at the earliest possible moment. Further, unless the court intervenes, the first plaintiff and the others of the 57 will be denied their rights as members at the adjourned AGM.

The wrongful deprivation of a right to vote even at a mere private association is, in my judgment, no trivial matter. It may not be possible to put any real monetary value on it, any more than it may be possible in the case of a Parliamentary vote (see Ashby v White [1790] EngR 55; (1703) 2 Ld Raym 938); but that does not mean that the court must abstain from intervention. If an injunction be refused now, the election can take place without the 57 having an opportunity to take part in or vote at the adjourned annual general meeting, so that by the time this action is heard, unwelcome changes may have taken place in the association which the 57may be powerless to put right. Leaving the matter until the trial of the action may thus fail to achieve justice”, (Emphasis added).

[109] Accordingly, I am fortified in my conclusion that the intervention by the High Court by granting the impugned injunctions, was the correct exercise of the judge’s discretion, and that the interest of justice required the injunctions to be granted.

Taking Judicial Notice of the Interim Committee; Suspension of members, Res Judicata and the effect of the Consent Orders in High Court Lautoka

[110] In the grounds of appeal in ABU 122 of 2016, against the Judgment dated 20 October 2016, the Appellants challenge the order allowing the 1^st and 2^nd Respondents to add the prayer for court to make order permitting the interim committee to manage the affairs of the TISI, and to set aside the order of persons holding themselves out as National Executives and suspending and disqualifying members from standing as candidates for election as National Executives. The Appellants contend that the learned High Court Judge erred in law and in fact when he took notice of the existence of the interim committee, because the purported appointment of an interim committee on 29^th May 2016 to run the affairs of TISI until the Annual General Meeting of TISI, was not a fact that was “so clearly known or established and that judicial notice could be taken of it”.

[111] In considering this ground of appeal, in my view, the contents of paragraphs 25 and 26 of the affidavit of the 1^st Appellant sworn on 15 September 2016, justify the court’s taking judicial notice of the interim committee. The 1st Appellant in his affidavit states as follows:

“25. The events of 29th May 2016 were widely publicised and was the subject of court proceedings between TISI and Dorasami Naidu and others (High Court Lautoka, Civil Action No. 98 of 2016).

26. These proceedings were settled and a copy of the terms of settlement is exhibited hereto and marked with the letter DAG -06 .This was made into a court order. A copy of the order is exhibited hereto and marked with the letter “DAG-07.
30. On the 18^th August 2016, several members who were suspended, commenced contempt proceedings in the High Court alleging that, I together with 11 others had breached the terms of settlement .orders made on 1^st July 2016”
31. On 19^th August 2016, on the basis of the contempt proceedings, they obtained an ex parte injunction order which is exhibited here too and marked with the letter “DAG- 08”
    

[112] In the grounds of appeal in ABU 008 of 2017, the Appellants contend that the learned High Court Judge erred when he granted leave to add the prayers in relation to the interim committee because there was no evidence that the 1st and 2^nd Respondents were members of the said interim committee, or that they had been subjected to disciplinary proceedings, and that any decision to discipline members is made by the TISI, and not personally by the Appellants. Nevertheless, for the reasons set out above, the locus standii of the 1^st and 2^nd Respondents cannot be confined to the basis suggested by the Appellants, and the submissions of the Appellants are rejected.

[113] Ground 1.2 in Appeal ABU 008 of 2017 states that:-

“Any issues in relation to the appointment of an interim committee has been determined in a Civil Action Number HBC 98 of 2016 in High Court at Lautoka between the parties involved and therefore the principle of res judicata applies.”

[114 ] In my view, the Appellants cannot approbate and reprobate; on the one hand they contend that there was no interim committee whose existence was known, and on the other hand also argue that all matters relating to the said committee have been resolved in the Lautoka action. Whilst the Terms of Settlement do not include a reference to an interim committee, the Lautoka action was against persons who were identified as members who were regarded as instrumental in the formation of, and constituted the interim committee. The arguments of the Appellants are therefore untenable and rejected.

[115] In this regard, the Appellants and the 3^rd Respondent submit that the consent orders are ‘yet in place’ and therefore this action was res judicata. The Appellants argue that the Lautoka Consent Orders are binding on all parties. They also state that the orders sought by TISI in the Originating Summons was for the existing Council to be declared as the authorised Council until the next AGM, but the consent orders recorded allowed the existing Council to manage the affairs until the next election. I am unable to agree with this submission because Consent Order No. 2, does not draw such a distinction. It refers only to the AGM, and the Appellants are estopped from extracting an implied presumption and benefit. Despite leave not having been sought on this matter by the Appellants, I examined the authorities cited by the Appellants and the 3^rd Respondent in this regard, I find that they are asking this court to take an unrealistic and artificially extended view of the principle, completely unsuited to the facts admitted in the case. For the reasons set out above, there is no basis on which the principles of res judicata will apply, and the Appellants and the 3^rd Respondent are estopped from relying on it. Having considered the entire sequence of events, the pleadings the matters that were put in issue, the Terms of Settlement, the relief sought in the Originating Summons, the amendment of the Originating Summons and the evidence before the High Court, for the reasons set out above I am unable to agree with their submissions. I therefore reject those submissions and hold that the learned. High Court Judge did not err in law when he took judicial notice of the interim committee. Accordingly, this ground of appeal is without basis and is therefore dismissed.

The consequences of the incomplete AGM of 28 August 2016

[116] Although the AGM commenced on 28 August 2016, it ended abruptly, and was therefore admittedly incomplete. This is undisputed. But the crux of the matter is; was that part of the AGM that took place prior to the abrupt ending, duly constituted and conducted? I think not. The reasons lie in the events that took place in the aftermath of the aborted 29 May 2016 AGM and the Consent Orders entered in the Lautoka action. The 28 August 2016 meeting was commenced on the Appellants’ presumption that the Appellants had been duly declared elected. This is premised on their contention that unopposed candidates can be declared elected by the nomination committee. If this contention were to be accepted, it would mean that unopposed candidates can be deemed elected even on a day other than the day on which the AGM is held, and only the contested candidates must be elected at the AGM. The bifurcation of the elections suggested by the Appellants’ is not legal. It is to be noted that clause 18 of the Memorandum and Articles provides that office bearers hold office until the next AGM. Therefore I hold that the election must be held at the AGM and declarations in respect of unopposed candidates must also be made at the AGM. The interruption or cancellation of an AGM for whatever reason, ought not be permitted to be used as tool to indefinitely postpone the AGM and elections. In this regard it is relevant to note that between the entering of the consent orders and 28 August 2016, members had been suspended, and the nominations that had been acted upon for the purpose of the 28 August 2016 election, had effectively excluded those members from contesting. The Consent Orders were entered because the Appellants agreed to hold the AGM on a specific date. It was they who did not pursue the action they originated. There was no purpose in entering into a settlement, if the Appellants intended to take disciplinary action against the defendants because, going by the orders they sought, the action was obviously a precursor to disciplinary action.

[117] In my view, this course of action taken by the Appellants nullifies and frustrates the Terms of Settlement. Therefore, the entire process that occurred on 28 August 2016 was not a proper AGM. The events preceding the conduct of the AGM on 28 August 2016, and the procedure and system used to ‘declare’ uncontested nominees as winners, was tainted. Therefore, a fresh election has to be held, permitting all members who were registered in the membership register as of 21 May 2016, to be considered eligible for nomination, if they meet the other relevant criteria.

[118] Having considered all the facts and evidence available, the only reasonable conclusion that can be arrived at is that that there was no AGM on 28 August 2016. Further, it is no justification for the national executives to indefinitely postpone elections on the apprehension, whether well- founded or otherwise, that the elections will get disrupted. That may be an indication of the sentiments of the membership, but it is no legal basis for indefinite postponement of the AGM. I do not see a legal basis for this, and the Appellants’ arguments based on this course of action are rejected.

The issue of recusal

[119] I find that this matter has been taken up belatedly after the learned High Court Judge had already made orders previously. On this basis, I dismiss this ground of appeal.

[120] On 20 October 2016, the learned High Court Judge extended the orders that had been made on 22 September 2016. The Orders made have been reproduced on paragraph [43] above.

C. The Appellants’ interlocutory appeals to the Court of Appeal

[121] In ABU 122 of 2016 by Summons dated 17 November 2016, the Appellants applied to this court to dissolve the injunctions granted by the High Court on by its order of 20 October 2016. By this order the High Court extended its order made on 22 September 2016 until final determination of the action, refused to dissolve the injunctions, dismissed the Appellants’ application to strike-out the 1^st and 2^nd Respondents’ Originating Summons, and refused to transfer the proceedings to Lautoka. The relief claimed by the Appellant was as follows: -

1. The injunction orders granted by the High Court on 8^th September 2016 and continued on 20^th October 2016 be dissolved and the status quo prior to grant of 8^th September 2016 orders be maintained pending the determination of this appeal.
2. The Appellants be allowed to manage the day-to-day affairs of then India Sanmarga Ikya Sangam (“TISI”) and call and complete the Annual General Meeting of TISI commenced on 28^th August 2016;
3. In the alternative, the National Executives elected and managing the affairs of TISI prior to the 28^th of August 2016 continue to manage and administer the TISI pending determination of this appeal.
4. The proceedings of the High Court at Suva be stayed pending determination of this appeal.
5. This appeal be consolidated with Civil Appeal No ABU 109 of 2016”
   

The Order of the Court of Appeal on the Appellant’s application to dissolve the injunction

[122] This application was heard by the then President of this court, who delivered a Ruling on 22 June 2017, (which order was sealed on 14 July 2017), and made the following orders:

“1. Until the determination of the appeal or until further order of this Court:

(a) The members of the national executive who held office as at the commencement of the annual meeting on 28 August 2016 continue in office to manage the affairs of TISI,

(b) Orders 1 (b) and 1(c) made on 20 October 2016 are set aside.

2. The application to stay the proceedings in the High Court is refused.

3. This appeal is consolidated with civil appeal ABU 109 of 2016.

4. The costs of this application be costs in the appeal.

[123] It is clear that the Order of this court made on 22 June 2016, set aside only paragraphs (b) and (c) of the High Court Order dated 20 October 2016. The court refused to stay the High Court proceedings and significantly left intact paragraph “(a)” of the High Court order made on 8 September 2016, which was as follows:

“(a) The Defendants by themselves and/or their servants and/or their agents howsoever be restrained from acting as national executives of the Then India Sanmarga Ikya Sangam (“TISI”) or calling of Council of Management meeting or any other meeting or commencing or completing any capital projects.”

[124] The interim order of this court granted on 9 December 2016 will cease to be operative from the date of this judgment. The Appellants have been acting in the capacity of national executives without having been duly elected. This court is therefore of the view, and makes order that the interim committee appointed by the members on 29 May 2016 be allowed to administer affairs until, and with a view to holding an AGM and elections to the national Executive positions of the 3^rd Respondent association as expeditiously as possible. Suspending contesting members, and declaring themselves elected even prior to the 28 August 2016 AGM being held was a clear violation of the consent orders as well as the Memorandum and Articles of Association. This court holds those members who have been suspended are eligible to contest in the said elections.

Summary of Submissions of Counsel

[125] Mr. Ram for the Appellants submitted that the Terms of Settlement had concluded all matters, res judicata applied to this action, the interim committee is not legal, the election needs to be conducted only in respect of the contested posts, and there were only three such posts remaining. He also submitted that the Lautoka settlement did not preclude disciplinary action against members.

[126] Mr. D Naidu who appeared for the 7^th Appellant said his client was supporting the 1^st and 2^nd Respondents’ position.

[127] Mr. Devanesh Sharma for the 1^st and 2^nd Respondents submitted that the suspension of key members who were due to contest in the 28 August 2016 election, after having entered the terms of settlement, was a breach of both, the spirit and letter of the Terms of settlement. As I have already said, Mr. Sharma drew the attention of this court to the Judge’s Notes which I have also adverted to previously in this judgement. On a consideration of the entirety of the material available, taken in conjunction with the time frame within which the sequence of events unfolded, I find that Mr. Sharma’s argument stands to reason, and I accept his submissions.

[128] Mr. Richard Naidu who appeared for the 3^rd Respondent described his client as “the late-comer” into the proceedings, submitted that he was taking a ‘neutral ‘view, he did not want to be seen as partisan. His client, he said, was all for a ‘practical and logical resolution ‘of the matter. Attractive as that proposal might be, the duty of this court goes beyond that. In determining whether the grant of the impugned injunctions was an error of law, the court will have to consider the applicable law and ask where the interest of justice lies in this case. For the reasons set out above, in my view, it lies on the side of the membership, amply represented by the 1^st and 2^nd Respondents.

Conclusions

[129] The three judgments of the High Court challenged in these consolidated appeals, are consistent with the undisputed fact, that although the AGM was convened, and commenced on 28 August 2016, the election of office bearers had not been completed.

[130] One substantial matter that remains to be determined, is whether a person who is nominated can claim to be elected by virtue of having been declared elected by a person other than the interim Chairman who oversees the process of election of office bearers. This question is exacerbated by the fact that it is the very same persons whose claim to the posts, is being challenged by the 1^st and 2^nd Respondents in the High Court, who are part of the management that have purportedly suspended some members which precluded from contesting the election, which matter too, is under challenge. In the light of the above, there is no legal basis on which the Appellants could have claimed that they are the rightful holders of office, without the disputed matters being first determined. Accordingly, in my view the learned High Court Judge was correct in issuing the injunction staying the AGM, without the High Court action being concluded.

[131] For the reasons set out above, I am of the view and hold that the meeting that was commenced on 28 August 2016 was not a properly constituted and conducted AGM. There is no provision for the AGM to be bifurcated whereby uncontested nominees can be separately appointed in advance, and contested candidates must face elections at the AGM. Therefore, an AGM that is to be held shall be based on the membership register as of 21 May 2016, having followed a fair nominations procedure in accordance with the Terms of Settlement in the Lautoka action.

[132] The multiple appeals preferred by the Appellants which have spread over the last six years, have no doubt delayed the hearing of the substantive dispute. In the meanwhile, the order of this court made on 9 December 2016, restored the Appellants to the positions they held before the aborted 28 August 2016 AGM. However, the aborted AGM of 28 August 2016 was based on nominations that excluded the suspended members who were qualified to contest the election on 29 May 2016, had it been held, I have already held that this was illegal. Thus, although it is easy and convenient to argue that there is no place in the system for an ‘interim committee’, in my view, had the AGM and elections been held on 29 May 2016 the originally scheduled date, based on the original nominations, those persons who came to be part of the interim committee, may well have been elected, instead of being confined to an ‘interim committee’ which, if I understood the submission of the Appellants correctly, has no respectable pedigree. I am, however, unable to subscribe to that view.

[133] It seems to me to be correct, fair and just in all the circumstances, that the members of the interim committee be accorded the recognition they deserve, based purely on the fact that they did have the support of a sizeable proportion of the membership, and their only demand was the timely conduct of the AGM. This must mean something. Besides, a factor that is of overwhelming significance is that the interim committee only sought to ensure that an AGM is held expeditiously according to the rules. I fail to see how the alleged breach of conduct, ignores the reason behind the breach. Had the AGM been held as originally scheduled, all the subsequent events may not have occurred. Thus, in this difficult and deadlock situation that the membership was brought to, the interim injunctions granted by the court must stand until a duly constituted AGM and elections are held. The order of the High Court dated 8 September 2016, the order made on 16 September 2016 varying the order made on 8 September 2016, the orders made on 20 October 2016, the orders made on 2 February 2016, and 17 February 2016 are affirmed.

[134] For the reasons set out above, the consolidated appeals are dismissed subject to the variation in respect of one order, which is set out in the orders of the court below.

Orders of the Court:

1. ABU 109 of 2016
   
   • (i) The Orders of the High Court dated 8^th September 2016 are affirmed.
     
   • (ii) The Orders of the High Court dated 22 September 2016 are affirmed.
     
   • (iii) Paragraph (c) of the Order of the High Court dated 22 September 2016 is varied by ordering that such details be submitted to the High Court on a monthly basis, until the conclusion of the trial, or such other longer period that the High Court may order.
     
   • (iv) Subject to the variation above, and for the reasons set out in my judgment, the appeal is dismissed.
     
2. ABU 122 of 2016
   
   • (i) The Judgment and Orders of the High Court dated 20 October 2016 are affirmed.
     
   • (ii) Paragraph (c) of the order of the High Court dated 20 October 2016 is varied by ordering that such details be submitted to the High Court on a monthly basis, until the conclusion of the trial, or such other longer period that the High Court may order.
     
   • (iii) Subject to this variation, for the reasons set out in my judgement, the appeal is dismissed.
     
3. ABU 008 of 2017
   
   • (i) The Judgment and Orders of the High Court dated 2 February 2017 are affirmed and the appeal is dismissed.
     
   • (ii) The Judgment and Orders of the High Court dated 17 February 2017 are affirmed and the appeal is dismissed.
     
4. The orders of this court made on 9 December 2016 will cease to have effect with effect from the date of the judgment.
   
5. The case is remitted to the High Court to hear and determine the substantive matter. In view of the extreme delay that has ensued since the commencement of the action, the High Court is directed to have this case heard and disposed of expeditiously.
   
6. Costs will be costs in the cause.
   

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Hon. Mr. Justice E. Basnayake
JUSTICE OF APPEAL

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Hon. Mr. Justice S. Lecamwasam
JUSTICE OF APPEAL

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Hon. Justice F. Jameel
JUSTICE OF APPEAL