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Mistry v Chandar [2009] FJHC 236; HBC149.2009L (23 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 149 of 2009L

BETWEEN:

SAMIGAM MISTRY, PERMAL GOUNDAR & RAMESH NAIDU
as President, Manager and Secretary, respectively, of the Andra Sangam College
and Korotogo Andhra Primary School
Plaintiffs

AND:

RAM CHANDAR, GYANESHWAR RAO & KAMAL SHASAIYA MANI
as General President, General Manager and Secretary, respectively of the
DAKSHINA INDIA ANDHRA SANGAM OF FIJI (incorporated religious organisation).
Defendants

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr S Sharma for the Plaintiffs
Mr D Gordon for the Defendants

Solicitors: Samusamuvodre Sharma Law for the Plaintiffs
Gordon & Co for the Defendants

Date of Hearing: 21 October 2009
Date of Judgment 23 October 2009

INTRODUCTION

[1] This is a dispute over the election of the national office bearers of the religious organisation called "Dakshina India Andra Sangam of Fiji" ("DIAS"). DIAS runs schools and temples particularly in the Western part of Vitilevu.

[2] The Plaintiffs in this action are the President, Manager and Secretary of the management committee of two DIAS schools, the Sigatoka Andhra Sangam College and the Korotogo Andhra Primary School in Sigatoka.

[3] The Defendants are the current General President, General Manager and General Secretary of DIAS national body elected on 10 April 2009 at the Association’s Annual General Meeting (the "AGM").

THE CASE HISTORY

[4] The Plaintiffs filed an Originating Summons, an Ex-parte Motion and two affidavits in support on 21 August 2009. The Originating Summons sought an order requiring the Defendants to step down and to call a special general meeting to re-elect the office bearers of the national committee of DIAS – the substantive matter. The Ex-parte Motion sought immediate interim relief to restrain the Defendants from interfering with the management of the two DIAS schools until final determination of the substantive matter. I directed that both applications be called on 24 August 2009 because of the urgency of the matter and set the timetable for filing of further affidavits and submissions and the ex-parte application be heard on 21 October 2009. Mr Gordon, Counsel for the Defendants urged me not to grant the interim injunction because there were irregularities in the application and that there had been a previous order in proceedings in this Court on the dispute. I indicated to Counsel that I was not willing to grant the ex-parte interim injunction but he should make clear to his clients that this Court did not approve of school children being used by parties to further their own agendas.

[5] Counsels filed the further affidavits and submissions on time and I am grateful for their cooperation as this matter was able to proceed to hearing exactly 2 months from the date these proceedings were filed.

[6] When the matter was called for hearing on 21 October 2009, Mr Gordon asked that I decide the substantive matter because the same points to be decided in the application for interim relief are the very points which are to be decided in the substantive matter so I should proceed straight to hearing argument on it. Mr Sharma, Counsel for the Plaintiffs was ready to argue the interim application but said that he was not quite ready to proceed with the substantive hearing. I agreed with Mr Gordon and stood the matter down for Mr Sharma to re-gather his thoughts and submissions for the substantive hearing.

PRELIMINARY POINTS

[7] There were preliminary arguments which I think I can dispose of now. One of these, raised by Mr Gordon, was that the Plaintiffs have no locus standii. The point was quickly disposed of when he conceded that the Plaintiffs are members entitled to attend and vote at the AGM.

[8] The other issues relate to non-disclosure of material facts such as a previous consent order in other proceedings in this Court in which the second Plaintiff had agreed to abide by the AGM result, his resignation as a Sigatoka branch committee member and inadequacy of undertaking as to damages. Although they are relevant to consideration of whether an interim injunction should be granted they are not relevant to the main issues in dispute. However, I think it is only fair to Counsel that I mention them in this Judgment because much of their submissions an arguments revolved around these preliminary issues.

THE MAIN ISSUES IN DISPUTE

[9] The Plaintiffs applications were supported by three substantive affidavits. They say that they were lawfully elected in the Annual General Meeting of the Sigatoka branch on 16 May 2009. They have been long standing members of the committee for the past 12 years and in their time the schools have been managed well and without incident. However, following the AGM of 10 April 2009, the Plaintiffs say that the newly elected members of the national body have attempted to remove the Plaintiffs from the management committee of the two schools. They say that the AGM was unconstitutional so they do not recognise the Defendants as legitimate office bearers. On 13 August 2009 a faction of them entered the schools during school hours and attempted to take over the operation and management of the schools which was only stopped because of swift action by the Sigatoka Police.

[10] The Plaintiffs say that there were irregularities in the calling of the AGM and in the election process itself. I do not need to go into the details because Mr Gordon has comprehensively and convincingly argued that none of these have been proven as sufficient to justify this Court interfering with that process and the election results. That is sufficient to dispose of this application but I think there is another reason why it should fail.

THE ARTICLES OF DIAS

[11] In the course of argument I asked Mr Sharma to address me on the relationship between the various branches of the organisation and the national body and whether DIAS had a "constitution". Parts of that "constitution" had been annexed to the Defendants’ affidavit so Mr Gordon handed me a copy of the complete document entitled "Amended Articles of Association" (the "Articles") of the association which was incorporated in December 1941.

[12] It is clear from the Articles that the national office bearers are elected at the annual general meeting and serve for 3 years. These office bearers become the National Executive Board (the "Board") which consists of the National President, three Vice Presidents, General Secretary and his Assistant, General Treasurer and General Manager. Within 30 days following the AGM, the Board shall appoint other members of the Association who together with the Board members shall constitute the National Executive Council (the "Council"). The Council shall consist of between 20 and 10 members. The Council, "under the administration of the Board, shall have absolute control over all the affairs and the properties of the Association and shall prescribe, alter or cancel rules for the regulation of the Association, its funds and properties and shall exercise all such powers of the Association as they think fit except as otherwise provided by other articles for the Board". It has the power to co-opt any learned and respected person to serve on the Council for any purpose and for any period.

[13] The Board appoints the local branch Managers to assist the General Manager in the day to day administration of the educational institutions and temples. The local branch Managers act under the administration and supervision of the General Manager. It is the General Manager’s responsibility as the CEO to administer all assets and all matters connected with the management and conduct of schools and temples of DIAS. The Board also appoints local branch committees or sub-committees for the different institutions or in respect of different areas to administer the day to day running of these institutions and affairs of DIAS.

[14] In respect of meetings, a Special Meeting of the Association may be convened by the General Secretary on instructions from the Council and the Board or upon requisition by 100 members. The requisition shall state the object of the meeting. There is no limitation as to what can be discussed and resolved at such a meeting so it is open to the Plaintiffs to ask for a dissolution of the election of 10 April 2009 and re-election of new members. In fact, this is what the Plaintiffs have asked this Court to order. The Articles provide that if the General Secretary and the National President fail to convene such a meeting within the prescribed time then the requisitioning members themselves can conduct the meeting. At any such meeting, unless a poll is demanded by at least 10 members, a declaration by the Chairman that a resolution has been carried or lost and an entry to that effect in the book of proceedings of the Association shall be conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against the resolution.

THE LAW

[15] Mr Gordon referred me to several case authorities on the conduction of "public" elections. I do not think that they are of assistance in this case because those cases were decided against a background of legislation framework. However, I will mention them in this Judgment in recognition of his industry and research. The first of these is the comprehensive analysis of the law by Byrne J in Morarji v Singh [1997] FJHC 147; HBC 0509j.96s (10 October 1997). The other cases are those cited in the Morarji decision.

[16] I think the more helpful authority is the decision of Phillips J cited by Mr Sharma in Kalou & Others as the FPGA v Raikuna & Others [2005] FJHC; HBC 55 of 2005L (6 November 2006) and the later decision of Singh J in the sequel to that case, Rokotavaga & Others as the FPGA v Singh & Others [2007] FJHC; HBC 170 of 2007S (3 June 2008). The underlying principle in those decisions is that the remedy to disputes over election of office bearers is to be found in the association’s constitution and not in the Courts. The provisions of the DIAS Articles on elections were open to the Plaintiffs to use. They could have requisitioned the Council, Board or the members for a special meeting. They should have done that first before coming to Court.

[17] Further, this is a matter of private law and not public law. The Articles clearly, in my view, give absolute authority to the Council and the Board. They have the power to change the Articles and hence the power to validate any election procedure or result. The Plaintiffs as members of DIAS are bound by the Articles. This Court should be loath to rewrite those Articles which have been adopted by consensus of the members. This Court should also be loath to interfere with the use of any such powers, unless there is a clear case of fraud or abuse and the majority of the members want the Court to interfere. The facts in this dispute fall far short of that.

GUIDELINES

[18] I think it would be helpful that I set out some guidelines on how these private disputes should be resolved so the Court’s limited resources are not tied up in their resolution. As I have said above, the first place to look for the solution to disputed election results is the association’s constitution. A properly drawn up constitution should set out a procedure by which such disputes are to be resolved. Whether the procedure is specific or general, as in the current case, does not matter. But it should be followed. Indeed, I will go as far as to say that, if that procedure is not used first before the aggrieved members come to Court, the Court will not entertain their application, even if it is a clear and blatant case of fraud or abuse of power. It is up to the members whether to accept it or not and if the majority of the members accept the result that should be the end of the matter, in my view. The Court has far better use of its limited resources than be the supervisor of private elections.

[19] Finally, I must commend the parties and their lawyers for complying with the timetable set for the filing of affidavits and submissions and having this matter heard promptly. It has taken 2 months and 2 days from the date of filing of the application for it to be heard and Judgment to be delivered. I gave this matter some priority because it involved the running of two schools but we could not have achieved this result without your cooperation.

COSTS

[20] Mr Gordon submitted that I should order costs to be paid by the Plaintiffs. The Plaintiffs, collectively, have over 24 years of experience and service to the two schools and the Association. I think this is a matter which should not be lightly discarded. What should be discarded are the personal and political differences of the parties and I do not want a costs order to stand in the way of reconciliation. I therefore make no order as to costs.

ORDERS

[21] The Orders are therefore as follows:

1. The Plaintiffs’ Originating Summons and Ex-parte Motion filed on 21 August 2009 are dismissed.

2. There is no order as to costs.

Sosefo Inoke
Judge