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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL ACTION NO. HBC 72 OF 2015
BETWEEN:
VINOD NAIDU of Vaqia, Ba
1st Plaintiff
HYDRA BEGG ofWaimari, Rakiraki
2nd Plaintiff
ANWAR ALI of Waimari, Rakiraki
3rd Plaintiff
MOHAMMED AFZAL KHAN of Drumasi, Tavua
4th Plaintiff
MALKIT SINGH of Vaqia, Ba
5th Plaintiff
SAT DEO of Balevuto, Ba
6th Plaintiff
YOGENDRA KANT of Natawa, Tavua
7th Plaintiff
ANANDI LAL of Madhuvani, Rakiraki
8th Plaintiff
GAJRAJ SINGH of Banisogosogo, Rakiraki
9th Plaintiff
PRAMOD KUMAR of Lausa, Tavua
10th Plaintiff
AND:
RARAWAI & PENANG CANE PRODUCER'S ASSOCIATION having its registered office at the First Floor, Sunbeam Building, Main Street, Ba.
Defendant
Counsel : Mr. AmanRavindra Singh for the Plaintiffs
Mr. Samuel K. Ram & Mr. AmanDayal for the Defendant
Date of Hearing :Thursday, 2 July 2015
Date of Ruling : Thursday, 24 September 2015
Before : The Hon. Mr. Justice R. S. S. Sapuvida
JUDGMENT
8. The 2nd ex-parte notice of motion referred in paragraph 7 above was taken up before another Judge of the High Court on the request of the plaintiffs (in my absence) due to their urgency and the ruling was pronounced by Justice Mr. M.H.M. Ajmeer on 12.06.2015 declining to issue the ex-parte injunction sought by them.
9. Then the matter was fixed for hearing on the injunction application sought by the plaintiffs in their original ex-parte notice of motion dated 04.05.2015. The plaintiffs were also directed to file Summons within seven (7) days from 8th May 2015 and the defendant was also given an opportunity to file its objections.
10. The defendant filed its objections along with statement of defense and counter claim. Defendant also filed inter-parte Summons to strike out the proceedings including the plaintiffs'' Summons.
11. However when the matter was taken up for hearing, the plaintiffs submitted that the writ of summons with statement of claim was for hearing and not the injunction.
12. But it is not correct to say so, because the court made orders on 26th May 2015 to fix the matter for hearing with regard to the injunction but not with regard to the full process of the case in relation to the hearing of writ of summons. Therefore, the hearing was conducted with regard to the injunction application of the plaintiffs.
13. The Plaintiffs submit that there are two (2) main issues pending to be decided before this court: namely;
(i) Was the motion passed at the extraordinary general assembly on 31st January 2015 to establish the Board of Inquiry was invalid and unconstitutional?;
(ii) Was the motion passed at the annual general assembly on 30th March 2015 to suspend ten (10) members of the board was invalid and unconstitutional?
14. The plaintiffs contend that the motion passed at the extraordinary general assembly on 31st January 2015 to establish the board of inquiry was invalid and unconstitutional in view of section 4.7 of the RPCPA constitution. Section 4.7 of the constitution reads:
"Notices of agenda items and motions for consideration at a general assembly must be submitted to the secretary in writing at least fourteen (14) clear days before the date fixed for such meeting. Urgent agenda items and motions may be added to the agenda at the beginning of a general assembly, provided this is supported by a majority of voting members present."
15. Plaintiffs further submit that section 4.7 clearly and expressly states that for an item or motion to be added to the agenda of an extraordinary general meeting or an annual general meeting, it must be submitted to the secretary in writing at least fourteen (14) clear days before the date fixed for such meeting. Plaintiffs are of the view that the motion to set up a board of inquiry submitted in writing fourteen (14) clear days prior to the meeting to be included on the agenda item for extraordinary general assembly held on January 31st 2015 was never provided for in writing at any time leading up to the extraordinary general assembly so held on 31st January 2015 and also the motion to set up the board of inquiry was never added to the agenda at the beginning of the extraordinary general assembly by being put to vote and being supported by the majority of the voting members present.
16. Plaintiffs further submit that the evidence supporting the above position is contained at paragraph 9.2 in the minutes of the extraordinary general assembly contained in Annexure 3 of the first plaintiff's affidavit in support. The plaintiffs also point out that this position is strongly supported by the defendant by way of sworn evidence of Garish Kumar contained in the affidavit in support filed on 12th May 2015. The plaintiffs' Counsel cites certain portions from the statement made by Garish Kumar in the said affidavit as follows:
"Paragraph 44 states:
It was after these allegations that members felt that the activities of the board should be looked into. Thereafter, Mr. Khalid Ali moved a motion from the floor that a Board of Inquiry be appointed, this motion was seconded by Mr. JoneRalulu and subsequently accepted and voted in by the General Assembly.
Paragraph 45 states:
It was at this point that a Board of Inquiry was nominated by the General Assembly.
Paragraph 52 states:
It was after these allegations that members felt that the activities of the board should be looked into. Thereafter, Mr. Khalid Ali moved a motion from the floor that a Board of Inquiry be appointed, this motion was seconded by Mr. JoneRalulu and subsequently accepted and voted in by the General Assembly.
Paragraph 53 states:
It was at this point that a Board of Inquiry was nominated by the General Assembly."
17. In view of the above, the plaintiffs point out that the motion to establish a board of inquiry was moved from the floor as contained in the sworn affidavit of Garish Kumar. They further assert that documentary evidence along with the sworn evidence of Garish Kumar confirm the position that the motion to set up a board of inquiry was never submitted in writing fourteen (14) days prior to the meeting nor added on as an urgent agenda item or motion at the beginning of the general assembly as provided under section 4.7 of the RPCPA constitution. Thereby plaintiffs submit that there was a breach of Section 4.7 of the RPCPA constitution, the moment a motion to establish a board of inquiry was moved from the floor at the extraordinary general assembly on 31st January, 2015. Therefore they submit that the motion passed at the extraordinary general assembly on 31st January 2015 to establish a board of inquiry was invalid and unconstitutional.
18. The plaintiffs addressing on the issue number (ii) in paragraph 13 above, say that the motion passed at the annual general assembly on 30th March 2015 to suspend ten (10) members of the board was invalid and unconstitutional in view of section 4.7 of the RPCPA constitution. They point out the reason for that, is because the motion to suspend ten (10) members of the board at the annual general assembly on 30th March 2015 was not submitted in writing fourteen (14) clear days prior to the meeting.
19. All in all, plaintiffs contend that there was a breach of section 4.7 of the RPCPA constitution the moment the motion to suspend ten (10) Board members was moved from the floor at the annual general assembly on 30th March, 2015.
20. In reply to the plaintiffs' allegation against the defendant, the counsel for defendant made oral submissions at the hearing opposing the entirety of the plaintiffs action including the writ of summons and, later on filed written submissions together with the affidavit in support of Garish Kumar of Moto, Ba in which he has annexed documents in support from GK1 to GK17.
21. The defendant submits that, on 25th May 2015, full arguments were heard on whether the interim injunction could be extended and a ruling was delivered by this court on 26th May 2015 refusing to extend the injunction. The plaintiffs were given leave to file affidavit in opposition to the affidavit filed on behalf of the defendant and thereafter the matter was set for injunction hearing on 2nd July, 2015.
22. The plaintiffs have not filed any further affidavits and therefore all the documents that were before this Court on 25th May, 2015 and upon which the decision of 26th May, 2015 was delivered remain the same. The defendant points out that the plaintiffs have submitted only one ground in the entirety of their case and that is that there has been a breach of section 4.7 of the RPCPA Constitution.
23. The defendant in its submissions points out the fact that plaintiffs' allegation of the "breach" is when the appointment of the board of enquiry was not put in agenda "at the beginning" of the general assembly meeting, and yet, they never say that it was never done. The defendant's argument is undeniably correct as it does not reflect so from the averments of the plaintiffs.
24. The appointment of the board of inquiry arose during the course of the meeting and motions were listed and read out to the members. The minutes of the meeting held on 31 January 2015 speaks this position under paragraph 11.8 and 11.9 (GK4) that the secretary was asked to read the motions that were moved during the meeting. A majority of the plaintiffs were present at the meeting and raised no objections. Subsequently the plaintiffs conducted themselves in such a way that they accepted the appointment of the board of inquiry. Therefore the defendant is of the firm argument that the identifying of such a trivial breach by itself is not sufficient for the grant of the injunction orders. The defendant further submits that the plaintiffs have not satisfied the requirement for grant of injunction. In order to be entitled to a grant of injunction the following needs to be established:
- The plaintiffs have to show a serious question to be tried and that the claim is not frivolous or vexatious.
- If and only if the plaintiffs show that there is a serious question to be tried then the case goes to the next stage where the plaintiffs have to show that damages will not be an adequate remedy.
- If there is doubt as to adequacy of damages then only the Court considers the question of balance of convenience.
25. In view of the above points, the defendant submits that the breach of section 4.7 alone is not sufficient to grant relief to the plaintiffs, since the plaintiffs have only relied on an alleged breach by which it does not show that they have a serious question to be tried.
26. Defendant further points out that the plaintiffs have failed to establish the rest of the grounds as well.
27. The defendant says that the constitution of an unincorporated association is a contract between its members. In order to have a sufficient course of action the plaintiffs must be able to show that there has been a material or fundamental breach of the contract. A trivial breach does not give right to a course of action and further the remedy sought by the plaintiffs must be clearly established.
28. The plaintiffs are of the view that the breach of section 4.7 of the RPCPA constitution is all that they need to prove to get their final relief. However, in opposition to this, the defendant contends that section 4.7 is merely procedural and it does not go to the root of the constitution.
29. Even if it is considered that the breach was a material one, the plaintiffs have relinquished any right to bring a claim on the breach, for the simple reason that out of ten (10) plaintiffs' named in this case, one has resigned from his position as interim president. (This fact was concerned in my earlier ruling on the extension of the interim as well).
30. The plaintiffs' at a board meeting held on 3 February 2015 confirmed the appointment of the board of enquiry.
31. The report by the board of enquiry was tabled at the annual general meeting held on 31 March 2015 when the first plaintiff chaired the meeting.
32. Be that as it may, now I direct myself to the constitution of the association on which the plaintiffs are fervently relying upon in establishing their case from the beginning of the cause.
33. It is very relevant here to have a look at the section 6.15 of the constitution of the association which explicates very clear provisions relating to dispute resolution amongst its members pertaining to the governance, functions, operations, or administration of the association.
34. Section 6.15:
(1) Any dispute relating to the governance, functions, operations, or administration of the association shall be referred to board of the association.
(2) If the disputing parties are not satisfied with the decision of the Board they may write to the Executive Manager and the dispute is referred to the Chairperson of the Dispute Committee. The Dispute Committee will consist of a chairperson, who shall be the Labour Officer of the Ministry of Labour and two other committee members, who shall be two nominees independent of the dispute nominated by the two parties to the dispute. If it is an employment dispute, the matter will be referred to the Ministry of Labour for resolution. The Dispute Committee after listening to the parties to the dispute will put in writing to the parties and to the Executive Manager of the Association their decision.
(3) If the disputing parties are not satisfied with the decision of the Dispute Committee they may write to the Executive Manager and the dispute is referred the Sugar Industry Tribunal for final decision. The final decision shall be enforced by the General Assembly of the Association.
(4) Any dispute should be lodged in writing with the Executive Manager within 7 days of the dispute and should be settled within 30 days.
(5) Parties to the dispute will not discuss the dispute publicly or with the media during the course of the dispute proceeding.
(6) Both parties to the dispute must follow these procedures.
35. In view of section 6.15 of the RPCPA constitution, I would say that it is undisputable that any dispute relating to the affairs of the association should first be referred to the "Board" of the association. The sub sections provided for the procedure to be adopted when there is a dispute among the members of the association. It is very clear that the plaintiffs have not resorted to the dispute resolution procedure within the association. The section 6.15 provides provisions for simple and amicable way of dispute resolution within the association which has not been followed by the plaintiffs.
36. The plaintiffs had an alternate remedy under the purview of the above provisions rather than bringing an action against the defendant in this nature.
37. Therefore, on the foregoing reasons I align with the argument advanced by the defendant and hold that the plaintiffs' have not shown a prima facie case with sufficient material evidence to establish the averments prayed for, against the defendant to allow the injunction or for the decision made on 26 May 2015 to be changed.
38. Therefore, I dismiss the plaintiffs' application for injunction filed against the defendant.
39. I find that the reliefs sought for by the ex-parte notice of motion for the injunction orders and the final reliefs sought for by the writ of summons filed by the plaintiffs' against the defendant are of mirror-imagery identical in nature, and as such the decision to dismiss the plaintiffs' injunction application itself puts the plaintiffs' entire cause of action into a complete motionless position.
40. In so doing, I make the final orders as follows;
(a) The injunction application filed by the plaintiffs is dismissed with costs.
(b) The writ of summons filed by the plaintiffs dated 15 May 2015 is struck out and dismissed with costs.
(c) The costs so ordered to be taxed & paid by the plaintiffs to the defendant unless agreed upon.
R. S. S. Sapuvida
Judge
Dated on this 24th day of September 2015 at Lautoka
Solicitors: Aman Ravindra Singh Lawyers for the plaintiffs
S. K. Ram Lawyers for the defendant
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URL: http://www.paclii.org/fj/cases/FJHC/2015/686.html