Prasad v Nasinu Land Purchase Co-operative Ltd [2024] FJCT 1; COT 22 of 2021 (15 March 2024)

IN THE CO-OPERATIVE TRIBUNAL
CENTRAL DIVISION

COT 22 of 2021

BETWEEN:
AJAY BABU PRASAD
COMPLAINANT

AND:
NASINU LAND PURCHASE CO-OPERATIVE LIMITED
COMPLAINEE

For the Complainant: Mr. A. Chand
For the Complainee: Mr. R. Singh

RULING

Background

1. The Complainant is a Research and Development Laboratory Technician of Lot 18 Maqbool Road, Nadera, Nasinu and of 1729 Hackett Road, Ceres, California, 95307, USA. The Complainee is a duly registered cooperative based at 68 Suva Street, Suva. The Complainant filed this application for referring a dispute to this Tribunal on 22^nd December 2021 (hereinafter referred to as “the application”).
   
2. One of the primary objectives of the Complainee is to ensure that membership is dealt with according to the by-laws and Cooperative Act 1996.
   
3. The nature of the complaint is premised on membership and termination. Basically, the Complainant complains that the Complainee unlawfully terminated his membership on the grounds that the Complainant although a dual citizen of Fiji and United States of America was and is an overseas resident, that is, of the United States of America.
   
4. Both parties filed several affidavits with their annexures in support of their respective positions. These affidavits are as follows:
   1. Affidavit (in Opposition) of Satya Narayan dated 17 February 2022.
   2. Affidavit in Reply of Ajay Prasad dated 16^th August 2022.
   100. Affidavit (in Reply) of Satya Narayan dated 1^st December 2022.
   4. Affidavit of Evidence in Chief of Ajay Prasad dated 21^st July 2023.
   5. Affidavit of Evidence in Chief of Satya Narayan dated 26^th October 2023.
      
5. During the hearing of this complaint, the Complainant called himself as a witness and the Complainee called Satya Narayan, the CEO of the Complainee. Both parties cross-examined each other’s witness respectively.
   
6. Both parties have filed written closing submissions for which the Tribunal is grateful for.

Agreed Facts

7. Before delving into the evidence and submission of both parties, the following are a few common facts that are captured from the affidavits of the parties:
   1. Maina Wati and Mahendra Prasad the initial members of the Complainee transferred their membership to the Complainant on 21^st October 2002. This transfer was then formalised when the Complainant received his membership on 10^th June 2003.
   2. Maina Wati and Mahendra Prasad whilst being members prior to 2002 attained one of the benefits of being a member of the Complainee and that was when they were allocated a lot on 26^th January 1984 being Certificate of Tile No. 22416. This property was then transferred to the Complainant in 2014.

Complainant’s Submission

8. This Tribunal has considered all the evidence and submissions in support of the Complainant’s position. The following are some of the relevant features of the evidence and submissions.
   
9. The Complainant submits that he migrated to the United States of America in 2004. Sometime later he had an argument about various issues with one Mr Yogesh who was the previous CEO of the Complainee and as a result of that argument, a by-law, terminating any membership of a member by virtue of residing overseas, was passed without proper mandate by its members.
   
10. He states that by virtue of having a property situated with the Complainee and shares with the Complainee then he is still a member of the Complainee.
    
11. He further submits that had the Complainee failed to give him a notice stating that his membership was terminated by virtue of residing overseas.
    
12. He also states that he has lost out on his shares and a proposed land that was to be given by the Complainee to its members because of the termination of his membership.
    

Complainee’s Submission

13. This Tribunal has also considered all the evidence and submissions in support of the Complainee’s position. The following are some of the salient of the features of the evidence and submissions.
    
14. The Complainee submits that the Complainant moved to the United States of America in September 2003. Under the Complainee’s by-laws, which was properly agreed, passed and registered, a person ceases to be a member if the said person resides overseas. Hence, the Complainee advised the Complainant on 25^th September 2018, as a response to the Complainant’s query, that he cannot continue being a member with its benefits by virtue of the said by-laws.
    
15. On 2^nd January 1997, the Complainee published a Notice in the Fiji Times stating that overseas residents will be disqualified from being members of the Complainee. This is also relied upon as a reason for the termination of the Complainant’s membership.
    
16. The Complainee states that the Cooperative Act 1996 forbids overseas residents from holding membership as well. Therefore members need to transfer their membership before they migrate overseas.
    
17. Further the Complainee states that the said Yogesh Krishna was never the CEO of the Complainee. Also should the Complainant allege fraud then there are appropriate forums that can better accommodate these allegations. There is also no information before the Tribunal that the Complainant was present at the time of the AGM as he claims.
    
18. The Complainee submits that the land which the Complainant owns by virtue of it being transferred to him by individuals who were members of the Complainee as nothing to do with membership. As for shares and/or benefits sourced from being a member of the Complainee, the Complainee states that the Complainant lost out on the same when he moved to reside overseas.
    

Analysis

19. Section 115 of the Cooperative Act of 1996 states:

(1) If a dispute concerning the by-laws, election of officers, conduct of meetings, management or business of a co-operative arises-

(a) among members, past members and persons claiming through members, past members and deceased members;

(b) between a member, past member or persons claiming through a deceased member, and the co-operative, its Board or any other officer of the co-operative;

(c) between the co-operative or its Board and any other officer of the co-operative;

(d) between the co-operative and any other co-operative,

such dispute may be referred, after due attempts to settle the issue by local informal mediators, to the Registrar or directly to the Co-operative Tribunal constituted under Section 116 of this Act for decision.

(emphasis added)

20. As a quasi-judicial body, when compared to a court of law, there is a limitation to the ambits and parameters of the Tribunal’s functions and powers. Being an administrative tribunal, the Tribunal can decide claims and disputes arising in connection with the administration of legislative schemes^[1]. Section 15 (1)(b) as mentioned above, which is the relevant legal mandate for the issue at hand, makes this clear.
    
21. The Complainant submits that the Complainee unlawfully terminated his membership while the Complainee says otherwise in that it lawfully terminated the said membership. While the Complainant in this matter alleges that he was informed of his termination by way of an email in 2017, the Complainee proves that they had informed the Complainant of the termination by way of email by submitting a copy of the email dated 25^th September 2018 which shows the same.
    
22. What implication(s) does the Cooperative Act have on the Complainant who is a member residing overseas? Section 37 (1)(b) of the Cooperative Act states that a “person...shall qualify for membership in a primary cooperative if he or she...is a citizen or resident of Fiji.” The Complainant states that he has a Fiji passport and a US passport and possesses the capacity of a dual citizen, hence is a citizen of Fiji. His certificate of Fiji citizenship shows that he attained the same in 2013. Now the wording of Section 37 provides that a member can be either a citizen or resident. Not both as the Complainee avers. Therefore, the Tribunal accepts that by virtue of the Complainant’s Fiji citizenship, Section 37 does not have any implication on his membership.
    
23. The Complainee relies on its by-laws which appear to be registered in 2018 as the primary basis for terminating the Complainant’s membership via email. Before moving to what the current by-law says, it would be prudent to refer to what the purported original by-law registered on 22^nd April 1967 stated. Section 6(b) of the original by-laws states “every member of the society must be a resident within the area of operation.” Here the issue of being a citizen of Fiji or resident overseas were not specific issues when the Complainee was established as a body. Nevertheless, this was amended. Section 6(g) of the by-laws now states “Every member of the Cooperative must be...any person who is a citizen of Fiji but reside overseas shall cease to be a member of the Cooperative.” The evidence before the Tribunal does not pin point as to when exactly this amendment eventuated but the Tribunal implies the date that it was supposedly amended in 2018 as the effective date. Albeit minor reservations, as far as the general positions of both parties show, this by-law was registered and so is binding on its members^[2]. On another note, the Complainant does not argue that this by-law is inconsistent with the provisions of the Cooperative Act 1996 and so the Tribunal will leave that issue for another day or matter.
    
24. The Complainant does allege fraud though on the part of the Complainee, in particular that the said by-laws, during its amendment, were passed without proper mandate of its members and that it was passed to specifically terminate his membership because he had an argument with various members of the Complainee. As Lord MacNaghten describes it in Reddaway v Banham [1896] UKLawRpAC 18; [1896] UKLawRpAC 18; [1896] AC 199 at 221:

“Fraud is infinite in variety. Sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it.”

Regardless in whatever shape, manner of form, the general rule is that any allegation of fraud must be proved. Therefore the Complainant must provide evidence to show that the Complainee through fraud reached the mandate as required under Section 19 of the Cooperative Act; which states:

“(1) A co-operative may amend its by-laws, including a change of name, by a special resolution of the members passed at a general meeting convened for that purpose by at least two-thirds of the members present and voting according to the procedure laid down in the co-operative’s by-laws.”

(emphasis added)

Unfortunately, the Complainant has not done this as there is nil to insufficient evidence to prove fraud before the Tribunal.

25. The Complainee submits its position on its members residing overseas was made known even before this amendment in the current by-laws. It was made known in fact as early as 1997. A Fiji Times advertisement on 2^nd January 1997 is submitted to support this and it shows a notification to the public that an overseas resident disqualifies from being a member of the Complainee. This advertisement and its circumstances or source is not disputed by the Complainant in his evidence. The Tribunal therefore accepts that the position of the Complainee regarding the disqualification or termination of membership of overseas resident ought to have been known by all its members (post 1997), which includes the Complainant.
    

Decision

26. Therefore, given the above, the Tribunal is of the view that the Complainant has not proven on a balance of probabilities that the Complainant unlawfully terminated his membership.
    
27. The Complainee’s decision to terminate the membership of the Complainant in 2018 was therefore not unlawful. The Complainant continues not being a member of the Complainee by virtue of his capacity as an overseas resident.
    
28. The application has been heard and is hereby dismissed.
    
29. Costs is summarily assessed and awarded to the Complainee in the sum of $500.
    

-----------------------
Joseph Daurewa
Co-operative Tribunal
15^th March 2024

---

^[1] Oxford Dictionary of Law, 2018, Oxford University Press (9^th Edition).
^[2] Section 18(1) of the Cooperative Act 1996