IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. 419 OF 2008

BETWEEN:

SHIRI RAM REDDY
Plaintiff

AND:

REGISTRAR OF TITLES

AND:

ATTORNEY-GENERAL
Defendants

Plaintiff in Person.
Ms K Vuibau for the Defendants

JUDGMENT

By an originating motion filed on 21 November 2008 the Plaintiff sought an order that:

"the incorporation of the board of trustees of International Society for Krishna Consciousness be cancelled."

The motion stated that this was an application under the Charitable Trust Act Cap 67 (the Act). The grounds of the application were set out in the Plaintiff's Affidavit in support sworn on 7 November 2008 and filed with the motion.

The Notice states that the application is made under Order 8 of the High Court Rules. In compliance with Order 8 Rule 3 (2) the Notice of Motion clearly states that the relief claimed is the cancellation of the incorporation of the board of trustees of International Society for Krishna Consciousness (ISKCON).

An answering affidavit sworn by Usenia Losalini on 3 September 2010 was filed on behalf of the Defendants. The Plaintiff then filed a reply affidavit sworn on 8 September 2010.

After the Notice of Motion and affidavit in support had been served in early 2009, a number of interlocutory applications were filed by the parties. The affidavit sworn by Usenia Losalini on 29 August 2011 sets out in some detail the nature of those applications and their outcome. I consider it appropriate to refer in passing to those applications that are relevant to the final disposition of this matter.

A notice of originating motion dated 10 December 2008 was filed by the Plaintiff seeking an order that he be allowed to sue in forma pauperis. The right of a poor person to commence proceedings in forma pauperis can trace its origins back to legislation passed in Tudor times. Under the Legal Aid Act Cap 15 legal aid could be granted to persons who came within the definition of "a poor person" for the purposes of both civil and criminal proceedings. That legislation was subsequently repealed by the Legal Aid Act 1996 which makes provision for legal assistance to persons who qualify in accordance with guidelines that have been established under the Act. Accordingly the ancient statutory right to sue in forma pauperis is no long available in Fiji (see section 22 of the High Court Act Cap 13).

The Defendant filed a summons dated 27 January 2009 seeking an order that the Plaintiff's Originating summons (which I take to be a reference to the Plaintiff's Originating Motion) be struck out on the grounds that it discloses no reasonable cause of action and is an abuse of the process of the Court. The application was made pursuant to Order 18 Rule 18 (1) (a) and (d) of the Rules. Affidavits were filed by both parties.

The application came on for hearing before Master Tuilevuka on 16 July 2010. The Master delivered an oral Ruling on 13 August 2010. He dismissed the striking out application and gave directions for the filing of pleadings. This would indicate that the Master intended that the matter should proceed as if it had been commenced by Writ.

A written Ruling was subsequently handed down on 19 April 2011. In that Ruling the Master briefly referred to the issue of the Plaintiff's standing without deciding the issue as Counsel had not raised the question of standing at the hearing. The Master noted that there was an earlier action commenced by the Plaintiff (Shiriram Reddy and Another –v- Punja and Sons Limited and Others unreported civil action No. 69 of 1996 delivered 16 November 2005). The Master considered the issue of res judicata and dismissed the application.

Although he had given oral directions for pleadings to be filed, in his written Ruling the Master referred to Order 5 Rule 2 and Order 28 Rule 9. He decided to leave to Master Amaratunga the procedural issues that arise under the Rules and the question of standing.

Although there was an application filed by the Plaintiff to join further Defendants the application was subsequently withdrawn although Counsel had no objection to the Attorney-General being joined, presumably as a nominal defendant pursuant to section 12 of the State Proceedings Act Cap 24. It would appear that after the question of joinder had been resolved the parties requested the Master to refer the file to a judge for hearing of the substantive application. When the action came before me the parties indicated that they would rely on their written submissions and would not require an opportunity to make oral submissions.

The relevant provision is section 13 of the Act which states:

 "(1) If in the opinion of the Registrar 

(a)	the incorporation of a charitable trust was obtained by fraud, misrepresentation or mistake; or

(b)	any of the objects of a charitable trust has become unlawful; or

(c)	a charitable trust has been or is being used for any unlawful purpose; or

(d)	the board of trustees of a charitable trust is not functioning or has become dissolved; or

(e)	the board of trustees of a charitable trust is not, by reason of the state of its affairs, able properly to exercise its functions or any of them, 

he may serve notice in writing upon the board of trustees of such charitable trust, if the identities of the trustees are known, and, in any event, publish a notice once in the Gazette and once in a newspaper published and circulating in Fiji, requiring the trustees to show cause, within thirty days of the date of publication of such notice in the Gazette why the incorporation of the board of trustees should not be cancelled and if within such period of thirty days the trustees fail to satisfy the Registrar that the incorporation of the board of trustees should not be cancelled the Registrar may, by notice in the Gazette, cancel such incorporation.
 (2) – (4) _ _ _."

The reference to "Registrar" in section 13 (1) is a reference to the "Registrar of Title" (see section 2 of the Act).

The Registrar is only required to set in motion the chain of events that may lead to cancellation if (i) the Registrar is of the opinion one of the circumstances listed in (a) to (e) has been established and (ii) it is appropriate to serve and publish the prescribed notice. The words used in the section are indicative of a discretion to be exercised by the Registrar. The Registrar may serve and publish a notice. The Registrar may then cancel the incorporation by notice in the Gazette.

It is the Registrar who exercises the discretion in deciding whether or not to serve and publish a notice. It is only when the Registrar has formed the necessary opinion in relation to one of the circumstances listed in (a) to (e) that he or she is required to exercise a discretion and make a decision. It may be that even after forming an opinion that one of the circumstances listed in (a) to (e) is present the Registrar decides that it is not appropriate or necessary to serve and publish a prescribed notice.

The effect of section 13 is that a public officer is empowered to exercise a public law function. The Registrar is empowered to serve and publish a notice and having taken such a decision she is also empowered to cancel the incorporation.

In exercising the public law duty under section 13 the Registrar is required to (a) form an opinion that one of the circumstances listed in (a) to (e) exists, (b) decide whether to serve and publish a prescribed notice, (c) determine whether the trustees have shown cause and (d) decide whether to cancel the incorporation by notice in the gazette.

The one matter that is absolutely clear about section 13 is that it is the Registrar who may cancel the incorporation of a board of trustees. The Court has no jurisdiction under section 13 to cancel incorporation. The court's jurisdiction is supervisory and that jurisdiction is exercised by way of judicial review under Order 53 of the High Court Rules. Under the procedure of judicial review the Court exercises its supervisory jurisdiction in response to an application by a person who has a sufficient interest in the matter to which the application relates. The Court may be asked to determine whether the decision maker has exceeded his jurisdiction, has made an error of law, has denied the applicant natural justice or has acted unreasonably.

The proceedings commenced by the Plaintiff cannot succeed for two reasons. First, the Court does not have any power under section 13 of the Act to cancel the incorporation of the board of trustees. Secondly, the application before the Court is not one that requires the Court to exercise its supervisory jurisdiction. The Plaintiff's Notice of Motion is not an application under Order 53 and none of the procedural steps that are set out in Order 53 have been followed.

The second part of the Plaintiff's affidavit in support sets out some material under the heading of "Particulars of Fraud". The material appears to contain allegations of fraudulent conduct on the part of the Registrar and other people who are referred to as "trustees".

It is not clear on what basis this material has been placed before the Court. It certainly does not relate directly to the application that is in the Notice of Motion. To the extent that the material contains allegations of dishonesty such allegations should be referred to the Police. They are ultimately a matter for the criminal jurisdiction of the courts.

In the context of the civil jurisdiction of this Court, such allegations may form part of one of the recognised torts. The tort of deceit is sometimes referred to simply as fraud. The tort arises where a person makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that another should act in reliance on it, then in so far as that other person does so and suffers loss, the defendant is liable for that loss (See Clerk and Lindsell on Torts 19 Edition paragraph 18.01).

There is another possible tort to which the allegations in the affidavit may be relevant. That tort is referred to as misfeasance in public office. These are two different forms of the tort which were described by Lord Steyne in Three Rivers D.C. –v- Bank of England (No.3) [2006] 2 WLR 1220 at 1229 as:

"First, there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the Plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful."

Finally, there is the tort of breach of statutory duty. A person who has suffered loss as a result of the breach of a statutory duty may have an action in tort. Whether or not a claim arises for breach of statutory duty will depend upon the construction of the particular statute.

Such claims, if one or more exists, must be commenced by way of a writ with pleadings. The evidence is adduced by oral testimony and tested by cross-examination under oath. It is unfortunate that the Plaintiff has not sought legal advice on how best he should pursue his grievances. It is also unfortunate that the many interlocutory applications by the Plaintiff have been misguided.

The court is left with no choice but to dismiss the application. The Defendants are entitled to costs which are in this case fixed summarily in the sum of $500.00.

W D Calanchini
Judge

10 November 2011
At Suva