Reddy v India Sanmarga Ikya Sangam [2013] FJCA 136; ABU0075.2012 (6 December 2013)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO: ABU 0075 OF 2012
(HIGH COURT CIVIL ACTION NO.HBC 020 OF 2003L)

BETWEEN:

RAM REDDY & OTHERS
Appellants

AND:

1.THE THEN INDIA SANMARGA IKYA SANGAM
2. SADA SAWAN NAICKER
3. DAMEND GOUNDAR
Respondents

CORAM : Chandra, JA
Lecamwasam, JA
Kumar, JA

COUNSEL : Mr. J. Sharma for the Appellants
Mr. S. Krishna for the Respondents

Date of Hearing : 22 November 2013
Date of Judgment : 05 December 2013

JUDGMENT

Chandra JA:

[1] I agree with the reasons and conclusions reached by Lecamwasam JA.

Lecamwasam JA:

[2] The Plaintiffs Appellants and Defendants Respondents are members of the First Defendant, the THEN INDIA SANMARGA IKYA SANGAM. As the 2nd and 3rd Defendants being key office bearers of the above 1st Defendant, Sangam failed to hold their annual general meeting, the Plaintiffs by filing Originating Summons sought the following declarations viz:

(i) That there be a declaration that the defendants decision not to hold an annual general meeting of the 1st defendant for the year 2012 is null, void and unlawful and is in contravention of the 1st defendant's Memorandum and Articles of Association and the Company's Act.

(ii) That the defendants do convene an annual general meeting of the 1st defendant in accordance with its Memorandum and Articles of Association and the Companies Act within 7 days of an order being made herein.

(iii) That the defendants pay the costs of this application.

[3] The Defendants too filed Summons dated 25th September 2012 seeking an order to strike out the Originating Summons of the Plaintiffs. The learned High Court Judge of Lautoka by his order dated 29th October 2012 struck out the Originating Summons of the Plaintiffs and further ordered costs to be payable by the Plaintiffs to the Defendants. The instant appeal is against the above order of the learned High Court Judge. The grounds of appeal urged by the Appellants are as follows:

(i) That the Learned Trial Judge erred in law and in fact in finding the plaintiffs had no cause of action against the defendants jointly or severally when there was a clear breach of Article 9 of the 1st defendants articles of association by the defendants decision to defer the first defendants 2012 annual general meeting to 2013.

(ii) That the Learned trial Judge erred in law and in fact in finding the plaintiffs had no cause of action against the defendants jointly or severally when the defendants decision to defer the 1st defendants 2012 AGM to 2013 was a clear breach of section 133 of the Companies Act, Cap.247.

(iii) That the learned High Court Judge erred in law and in fact in ruling that "there was no challenge from the plaintiffs against the defendants complaint in regard to the breach of the provisions of Order 7 Rule 3 of the High court rules.", when there were submissions made, orally and in writing on behalf of the plaintiffs opposing the interpretation and application of O7 R3. High Court rules.

(iv) That the learned Trial Judge erred in law and in fact in not ordering the plaintiffs to amend their originating summons if the originating summons did not comply with O7. R3 of the High Court Rules.

(v) That the learned Trial Judge erred in law and in fact in failing to treat the breaches in the originating summons complained of by the defendants as irregularities and not dealing with it under O2.R1 of the High Court Rules.

(vi) That the Learned Trial Judge erred in law and in fact in holding the objections raised by the defendants on the alleged irregularities in the originating summon were held within a reasonable time pursuant to O2R2.

(vii) That the Learned Trial Judge erred in law and in fact in relying upon the "declaration of natural disaster Western Division for 31 days from 30th March 2012 by the Government as published in the Gazette on the 1st and the 19th April 2012 under the Natural Disaster Management Act No. 21 of 1998" and finding the decision of the defendants not to hold the first defendants AGM in 2012 was beyond reproach whereas that:

• (a) It was decided on the 5th May 2012 that the first defendants 2012 AGM was to be held and the date and the venue of the 2012 AGM was to be decided at the first defendant's council meeting;
  
• (b) At the first defendant's council meeting (initially to be held on 24th June 2012 but held on 1st July 2012) it was decided that the first defendant's 2012 AGM be deferred to 2013.
  

(viii) That the learned Trial Judge erred in law and in fact in failing to distinguish a difference between an originating summons in general form and originating summons – Expedited form.

(ix) That the learned Trial judge erred in law and in fact in holding (at paragraph 27) that it was "incumbent upon the plaintiffs to show as to why the decision of the 1st defendant not to hold the AGM was null and void and unlawful and violating of the Article of Association and/or Companies Act..." When article 9 of the first defendant's article of association and Section 133 of the Companies Act, Cap.247 making mandatory for an AGM to be held once every year.

(x) That the Learned Trial Judge erred in law and in fact in holding (at paragraph 27) that the "the orders sought in paragraph (2) would therefore follow, if an only if the above was established because courts are usually hesitant to interfere with the affairs of voluntary organisations such as the First defendant" when article 9 of the first defendants article of association and Section 133 of the Companies Act Cap.247 making mandatory for an AGM to be held once every year and whereas Section 137 of the Companies Act, Cap 247 provides that the court may, of its own motion or upon the application of any member of the first defendant to call a meeting of the first defendant.

(xi) That the Learned Trial Judge erred in law and in fact in holding (at paragraph 28) that "the plaintiffs have not prima facie established any illegality in the decision of the deferment of the AGM in relation to the Article of Association of the 1st Defendant or in relation to any provisions under the Companies Act or under the common law in order to find a cause(s) of action against a defendant". When Article 9 of the first defendants Article of association and Section 133 of the Companies Act, Cap. 247 make it mandatory for an AGM of the first defendant to be held once every year.

(xii) That the Learned Trial Judge erred in law and in fact in relying on the affidavit of the Chief Executive Officer, Mr Jaganath Sami dated 24th September 2012 filed hearing without taking into account the answering affidavit filed by the 4th Plaintiff on the 5th day of October 2012 which said affidavit was crucial to the plaintiff's case and as a consequence the Learned Judge has misdirected himself.

(xiii) That the Learned Trial Judge erred in law and in fact in awarding costs to the defendants which is punitive and excessive in the circumstances.

(xiv) That the Learned Trial Judge erred in law and in fact in ordering costs severally against the plaintiffs and at different amounts in respect of different plaintiffs which such costs are punitive and excessive in the circumstances.

[4] At the arguments stage the Respondents raised 2 preliminary objections viz:

(i) That the appellant has failed to file the appeal within the appealable period and neither has he moved court for extension of time.

(ii) As the respondents had already convened the AGM on the 31st of March 2013 the issue has now become academic and moot.

[5] Both parties addressed Court on the above two preliminary objections and the Court decided to go into the aforesaid preliminary objections, before considering the merits of the main appeal.

[6] It is common ground that the appeal had been filed fifty seven (57) days after the date of judgment. The Learned High Court Judge had pronounced the judgment of court on the 29th October 2012 whereas the appeal had been filed on the 24th of December 2012 i.e. 57 days after the date of judgment. The Appellants not only failed to file the appeal within the appealable period they have not moved court for extension of time. It was only at the argument stage the counsel of the Appellants made an oral application for extension of time that too after a lapse of one year.

[7] The counsel for the Appellants argued that the appealable period starts to run not from the date of the pronouncement of the judgment by the Judge, but from the date of perfection of judgment by the registrar. There are a series of cases in support of this contention. This argument holds good up to 31st December 2008. A new amendment to Order 16 of the Court of Appeal Rules had been brought in on the 19th May 2010 to take effect from 31st December 2008. The said amendment reads as follows:

"Rule 16 of the Court of Appeal Rules is hereby amended by substituting the word "pronounced" for the words "signed, entered or otherwise perfected" so that the amended Rule 16 states.."

[8] Hence the present position in relation to the instant case is that the appeal should have been filed within 6 weeks of the 'pronouncement' of judgment and not from the date of perfection. Therefore it is abundantly clear that the appeal had been filed not within the appealable period.

[9] As already stated the counsel for the Appellant made an oral application for extension of time for the first time when the matter was taken up for argument. This too is after a delay of one year. This itself is a sufficient indication of the lackadaisical attitude of the Appellants displayed in pursuing the appeal.

[10] In Kamlesh Kumar v State [2012] FJSC 17; CAV 0001.2009 (21 August 2012) His Lordship, the Chief Justice Anthony Gates has summarised the factors that will be considered by a court in Fiji for granting enlargement of time as follows:-

(i) The reason for the failure to file within time;

(ii) The length of the delay;

(iv) Whether there is a ground of merit justifying the appellate court's consideration;
(v) Where there has been a substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(vi) If time is enlarged, will the respondent be unfairly prejudiced?

[11] However, in the instant case the learned counsel has not shown any of the above reasons or any convincing excuse for his failure to file the appeal within time. Ignorance of law is no excuse. This amendment to R16 was effected way back in 2010 to take effect from 31st of December 2008. At this stage especially counsel should be aware of the applicability of the new amendment and be advised to comply with the provisions therein, hence the statement by counsel to the effect that he was under the impression that the appealable period runs from the date of perfection, cannot be accepted. In Bahadur Ali and Ors v Ilaitia Boila and Chirk Yam and Ors, Civil Appeal No. ABU 0030 of 2002, Reddy, P then President of the Court of Appeal said at page 7:

"The power to extend the time for appeal is discretionary and has to be exercised judicially, having regard to established principles. The onus is on the appellants to satisfy the court that in the circumstances, justice of the case require that they be given the opportunity to attack the order".

[12] Therefore in regard to the first preliminary objection I am of the view that the Appellants were not alert and vigilant in pursuing the appeal and hence the discretion of court should not be exercised in favour of the Appellants. The conclusion is that the appeal in general does not have sufficient merit to justify granting extension of time when the delay was extensive and the explanation was not excusable. Therefore I uphold the first preliminary objection and hold that the appellants have lodged the appeal at a point of time beyond the appealable period. Even if we decide to exercise discretion in favour of the appellants, Appellants will have to clear the second hurdle regarding 'proceedings being moot and academic' in order to take part in the main appeal.

[13] The Appellants have asked for a declaration to convene the Annual General Meeting (AGM). According to the respondents the AGM was held on 31st March 2013. Significantly the appellants maintained stoic silence about the holding of the AGM on 31st March 2013. At no stage have they revealed to court that the AGM was held subsequently. The omission gives rise to a contention of a lack of bona fides on the part of the Appellants. If the Appellant's main grievance was about the failure to hold the AGM, which was subsequently and belatedly held, can the appellants proceed with this case now?

[14] Time and again Fijian courts have considered the concept of moot or academic position. Courts exist to resolve disputes which have practical obligations. Decisions are not made for academic interests alone. They are made for the resolution of disputes between parties. In Ainsbury v Millington 1987 1 WLR 379. In Ainsbury Lord Bridge at page 381 aptly stated:-

"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved".

[15] As a general principle, courts do not give purely advisory opinions. In Railumu v Commander, Republic of Fiji Military Forces [2006] FJCA 7; ABU 0066J.2004 (unreported) (24 March 2006) the court of appeal was quick to dismiss an appeal from the High Court on an habeas corpus application. In that case, the detainees were released in the midst of the appeals being heard and the court held that "in our view the necessary substratum for the writ of habeas corpus to issue, namely an alleged detention, no longer exists and therefore this appeal must fail". In Fiji Public Service Association v Public Service Commission [2004] FJCA 32; ABU 0010.2004S (unreported) (26 November 2004). The Court of Appeal has considered legislative changes bringing about a change in employment structure and the court held:

"The regulations have been brought into effect. The Senior Executive Services has been established and has been operating for more than a year. Most, if not all, of the aims of the appellants when they sought review are now moot. Such a declaration, if it were granted, would achieve nothing..."

[16] In Akuila Yabaki v President of the Republic of the Fiji Islands, Court of Appeal; ABU 61/2001S(14 February 2003) (unreported), (Majority Judgment) the Court of Appeal in considering a very important constitutional issue affecting the legality of the General Election held that since the elections were concluded and the new government was in place the entire issue about the legality of the elections or application of the necessity – doctrine was moot and held once an action becomes moot, the only recourse is to dismiss it.

[17] Having considered all the above judicial dicta I am of the opinion that an action becomes moot or academic when there is no dispute to be resolved. The only alternative is to dismiss the action; hence I uphold the above preliminary objections and dismiss the appeal. No costs.

Kamal Kumar, JA:
[18] I agree with the reasons and decisions of His Lordship, Justice Lecamwasam.

[19] The Orders of the Court are:

1. Appeal is dismissed.
2. No costs.
   

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Hon. Justice S. Chandra
JUSTICE OF APPEAL

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Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

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Hon. Justice K. Kumar
JUSTICE OF APPEAL