Qalo v Public Employees Union [1994] FJHC 138; Hbc0425d.94s (6 October 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0425 OF 1994

BETWEEN:

SALOTE QALO
of 9 Loa Street, Tamavua,
Suva, Trade Unionist
Plaintiff

AND

THE PUBLIC EMPLOYEES UNION
whose registered office is at 73 Edinburgh
Drive, Suva
1st Defendant

SEMI TIKOICINA
of Nayavu Village,
Tailevu, Storeman
2nd Defendant

JONE GATA
of Nabua Village, Nabua,
Suva, Storeman
3rd Defendant

JOSUA RANUKU
of Cunningham Road, Suva,
Mechanic
4th Defendant

I. Fa for the Plaintiff
Q.B. Bale for the Defendants
J. Semisi (by leave for Peleki Leweniqila)

Dates of Hearing: 22nd, 23rd and 30th September 1994
Date of Interlocutory
Judgment: 6th October 1994

INTERLOCUTORY JUDGMENT

The Plaintiff, who describes herself as the duly elected General Secretary of the 1st Defendant, issued a Writ on the 1st of September 1994:

(1) Claiming an injunction restraining the Defendants from interfering with the Plaintiff's rights to continue in her tenure as the duly elected General Secretary of the 1st Defendant until properly terminated in accordance with the 1st Defendant's Constitution and with law.

(2) A declaration that the decision of the 1st Defendant of the 27th of August 1994 in terminating the Plaintiff's tenure as General Secretary to the 1st Defendant is null and void.

(3) Damages and interest thereunder pursuant to the Law Reform, Death and Interest Act.

(4) Costs of and incidental to this action.

(5) Any other relief this Court may deem just.

On the 1st of September 1994 the Plaintiff also issued a Motion seeking an Interim Injunction against the Defendants the permanent version of which she has sought in the Statement of Claim annexed to her Writ.

The Statement of Claim in her Writ alleges that the 1st Defendant is a Trade Union duly registered under the Trade Unions Act and as such, is a body corporate which can sue and be sued in its own name.

The Plaintiff alleges that the 2nd and 3rd Defendants are the President and Treasurer of the 1st Defendant who were lawfully and duly elected into their respective positions during the 1st Defendant's Annual General Meeting held on the 18th of September 1993 under the supervision of the Registrar of Trade Unions.

The 4th Defendant is a member of the Executive Committee of the 1st Defendant.

The Plaintiff next claims that the affairs of the 1st Defendant are conducted in accordance with its Constitution which is subject to the Annual General Meeting of the 1st Defendant and which is its supreme authority (I take this to refer to the Constitution).

The Statement of Claim then sets out various clauses of the 1st Defendant's Constitution which I shall not mention here but later in the course of this judgment when discussing the present Motion for an Injunction.

The Plaintiff then alleges that it is an implied term under the provisions of the 1st Defendant's Constitution governing the Plaintiff's occupation of the position of General Secretary of the 1st Defendant and as a matter of natural justice that in the event if the Plaintiff is suspended or dismissed in relation to any allegation of wrong doing during the course of her occupation of the position of General Secretary, the Executive Committee of the 1st Defendant had to put any such allegations of wrong doing to the Plaintiff and give her the opportunity to respond to such allegations and that any explanations provided by the Plaintiff had to be given consideration without bias or prejudice before any disciplinary action such as suspension or dismissal would be taken against the Plaintiff.

The Plaintiff claims that it is a further implied term under the 1st Defendant's Constitution that in the event of any finding of impropriety against the Plaintiff and as a matter of natural justice the Plaintiff had to be given a warning and an opportunity to improve her conduct and performance prior to any disciplinary action being taken against her.

The Plaintiff then alleges that on or about 27th of August 1994 the 1st Defendant proceeded to wrongfully suspend the Plaintiff's tenure as General Secretary of the 1st Defendant without giving the Plaintiff any reasons whatsoever for her suspension and without giving her an opportunity to be heard in relation to any matters relating to her suspension in breach of the implied conditions of the 1st Defendant's Constitution in relation to such matters.

Next the Plaintiff alleges that the 1st Defendant's purported suspension of the Plaintiff as General Secretary of the 1st Defendant is ultra vires to the 1st Defendant's express provisions of its Constitution.

As particulars of this allegation the Plaintiff then states that the Executive Committee Meeting called to decide the Plaintiff's suspension was not called in accordance with Clause 42 of the 1st Defendant's Constitution which reads as follows:

"The Executive Committee shall meet at least three times a year at such times and places as the President, General Secretary, and one committee member think, fit. The quorum shall consist of not less than 33 1/3 per cent of the members of the Executive Committee where the total number of Executive Committee consists of 21 persons or more, and of not less than 50 per cent of the members of the Executive Committee where the total number of Executive Committee consists of 20 persons or less, but that in any case the quorum shall not consist of fewer than five persons."

The Plaintiff alleges that the 2nd Defendant in calling the Executive Committee Meeting of the 27th of August 1994 had at no time consulted the Plaintiff in relation to such a meeting as required by Clause 42 of the 1st Defendant's Constitution.

She then alleges that the Executive Committee Meeting of the 27th of August 1994 which purportedly terminated her tenure as the General Secretary of the 1st Defendant was made up of six people who are not members of the Executive Committee and six people are then named.

The Plaintiff alleges that these six persons voted on the decision relating to the Plaintiff's suspension when they were not members of the Executive Committee and not entitled to vote.

Next the Plaintiff claims that the purported Executive Meeting of the 27th of August 1994 was held in contravention of Clause 67(b) of the 1st Defendant's Constitution which reads:

"He (the General Secretary) shall call and attend all meetings and record Minutes thereof. He shall have the right to speak but not to vote."

The Plaintiff claimed that at the purported meeting she was barred by the 2nd, 3rd and 4th Defendants from attending the same.

She claims that the decision to suspend her was done in contravention of Clause 31 of the 1st Defendant's Constitution as the same was done on a show of hands and not through a secret ballot.

Clause 31 so far as relevant reads as follows:

"All decisions in respect of the following matters shall be taken by secret ballot;

(i) election or dismissal of officers, including branch officers of the Union."

To this Statement of Claim a Statement of Defence was delivered on the 20th of September 1994.

I shall now mention relevant parts of the Defence. First the Defendants deny that the Plaintiff is the General Secretary of the 1st Defendant. They do not deny the registration of the 1st Defendant as a Trade Union and Body Corporate nor that the 2nd and 3rd Defendants are President and Treasurer of the 1st Defendant with a qualification which I need not mention here but I shall mention later in this judgment.

The Defendants admit that the affairs of the 1st Defendant are conducted in accordance with its Constitution but deny the Plaintiff's claim to the position of the General Secretary.

They deny that the Plaintiff was wrongfully suspended by the Executive Committee of the 1st Defendant and say that the Plaintiff was suspended and not dismissed by the Executive Committee of the 1st Defendant so that she may clear the allegations against her if possible.

They deny any failure by the Executive Committee to consult the Plaintiff in relation to the holding of the meeting of the 27th of August 1994 and say that a decision to suspend, as opposed to dismissing, does not require voting by secret ballot.

At this point it is necessary to mention that there are related proceedings to this action currently before this Court in Action No. 364 of 1993 in which the parties are the Public Employees Union as Plaintiff and Salote Qalo, Semisi Lasike, Taniela Delaitamana, Jiuta Waqatabu and Jone Gata as Defendants.

The Writ in this action was issued on the 29th of June, 1993 and seeks declarations:

(1) That the Defendants are in unlawful occupation of the Union's premises at 73 Edinburgh Drive, Suva, 1 Tukana Street, Lautoka, Nasekula Road, Labasa and other properties owned by the Plaintiff.

(2) That the Defendants are in unlawful possession of the Union's vehicles, assets, books, documents, accounts and records.

(3) That the current legally elected Executive Committee remain in the office until such time as a valid election is held under the Union's Constitution.

(4) The Union also claims damages.

Numerous affidavits have been filed in those proceedings and on the 27th of January this year I delivered an Interlocutory Judgment on a Motion by the Plaintiff that the action be dismissed on the ground that it was instituted without authority of the Executive Committee of the Union and that Peleki Leweniqila the present Acting General Secretary of the Union had no legal right to issue or to continue with the action. I dismissed the Motion.

It will be necessary to refer briefly to Action No. 393 which is related to the present action in certain respects.

In respect of her Motion for an Injunction in the present proceedings two affidavits have been filed in the Plaintiff's Motion for an Interim Injunction, the first by the Plaintiff and the second by the 1st Defendant Semi Tikoicina.

Because the Defendants dispute many of the allegations made by the Plaintiff in her affidavit, on the hearing of the Motion I allowed the Defendants and counsel for Peleki Leweniqila limited cross-examination of the Plaintiff on her affidavit and I shall refer to some of this shortly.

The Plaintiff repeats in her affidavit that she is the duly elected General Secretary of the 1st Defendant which is denied in the affidavit by the 2nd Defendant.

The Plaintiff deposes that since the 8th of June this year she and the 3rd Defendant have been assisting to run the affairs of the 1st Defendant in consultation with the Registrar of Trade Unions.

She states that on the 25th of August 1994 she went to commence work at about 8.30 a.m. in the 1st Defendant's office at 73 Edinburgh Drive, Suva and was confronted by a number of people who told her that they were members of the Suva Branch of the Public Employees Union and that they had terminated her employment as General Secretary of the 1st Defendant. She claims she was assaulted. She also claims that the Registrar of Trade Unions advised her that as far as his records were concerned she was the lawfully elected General Secretary of the 1st Defendant and that the 4th Defendant and his group had no authority to prevent the Plaintiff entering the Union's premises.

She states that she then went to the Central Police Station for assistance and then returned to the offices of the 1st Defendant to commence work. On her arrival she found the offices were open. She claims that she was again assaulted and forced to leave the premises.

On the 26th of August 1994 the Plaintiff went again to the Central Police Station to lay a complaint in relation to the assault on her by the 4th Defendant and his group. Here she was telephoned by the 2nd Defendant who informed her that there would be an Executive Meeting of the 1st Defendant to be held at the Fiji Trade Unions Congress Headquarters on Saturday the 27th of August 1994 at 9.00 a.m. She deposes that she asked the 2nd Defendant upon whose advice this meeting was being called as under Rule 42 of the Union's Constitution such a meeting could be called only after consultation by the President, General Secretary and another committee member and that under Rule 67(b) of the Constitution the General Secretary would then proceed to call a meeting.

The Plaintiff claims that the 2nd Defendant advised her that because he was the President of the Union he was at liberty to call Executive Committee Meetings when he thought fit. The Plaintiff states that following this, on the 27th of August 1994 she went to the Fiji Trade Unions Congress Headquarters and found the place to be empty. She then proceeded to Valelevu and was informed by one of the members of the Executive Committee Josefa Turagalada that the meeting was to be held at the 1st Defendant's Headquarters at 73 Edinburgh Drive, Suva.

She and Mr. Turagalada then drove to 73 Edinburgh Drive where she found some members of the Executive Committee and other members of the Suva Branch of the 1st Defendant together with Police and Security Officers.

At 11.00 a.m. the Executive Committee began its meeting and the Plaintiff claims that the 2nd Defendant advised the meeting that there was no Agenda for the meeting which was being called to discuss the actions of the members of the Suva Branch of the 1st Defendant headed by the 4th Defendant in relation to their occupation of the 1st Defendant's premises on the 25th of August 1994 and that she was advised by the 2nd Defendant that she should leave the meeting.

The Plaintiff states that she protested that the 2nd Defendant was not empowered by the Constitution of the 1st Defendant to exclude her from an Executive Committee Meeting as under Clause 36(a), she was an elected officer of the 1st Defendant and as such a member of the Executive Committee. She says the 2nd Defendant then instructed a security officer to remove her from the meeting.

After forty-five minutes she says she was summoned back to the meeting and advised that she had been suspended by the Executive Committee from continuing as General Secretary of the 1st Defendant forthwith for a period of three months. She deposes that the Executive Committee did not tell her the reasons for her suspension nor give her a chance to be heard in relation to any allegations made against her with regard to her suspension. She stated that up to the date of swearing her affidavit on 2nd September she had not been informed in writing or in any manner whatsoever as to the reasons for her suspension.

Later she says that she learned from members of the Executive Committee who were present at the meeting that six people who attended the Executive Committee Meeting and who had voted in relation to her suspension, were not members of the Executive Committee and consequently not entitled to attend or vote at the Executive Meeting.

She then named six people one of whom was Filimoni Banuve. She annexes to her affidavit a copy of alleged Minutes of the meeting and says that she had been informed by several persons including Filimoni Banuve that the Minutes exhibited to her affidavit are totally incorrect and they have been fabricated.

The Plaintiff also alleges that the voting in relation to her suspension as recorded on page 4 of the Minutes is fabricated and she claims that out of the twenty-eight members present only ten voted in support of her suspension, seven voted against whilst the remaining eleven members abstained from voting as the 2nd Defendant who had the conduct of the meeting refused to take a secret ballot on the issue as the Plaintiff alleges is required by Clause 31 of the 1st Defendant's Constitution.

There are various other allegations made by the Plaintiff in her affidavit including that the 2nd and 3rd Defendants have shown a complete disregard for proper administrative procedures and compliance with legal requirements necessary for the conduct of the affairs of the Union. It is not necessary to refer to these but I conclude this summary of the Plaintiff's affidavit by stating that in the last paragraph thereof she asks this Court to restrain the Defendants from preventing her from carrying on her duties as the duly elected and lawful General Secretary of the 1st Defendant.

In reply to this affidavit the Defendants have filed an affidavit by the 2nd Defendant. I have already touched on part of this but essentially the Defendants deny any assault on or use of abusive language against the Plaintiff and maintain that the Plaintiff's copy of the Minutes should not be accepted in preference to the copy held by the Defendants.

They deny the Plaintiff's allegation that the meeting of the Executive Committee on 27th August 1994 was called to discuss the actions of the Suva Branch; rather, the meeting was to consider serious allegations made against the Plaintiff and what should be done about those allegations. They also deny that the Plaintiff never received any notification of the reasons for her suspension first because she was informed of the reasons for her suspension before she was suspended and a letter confirming her suspension and giving details of the reasons for it together with an invitation to reply to those allegations before a final decision was made, and her right to an Extra-ordinary General Meeting of the Union was delivered to her home at 10.15 p.m. on 29th August 1994 after several earlier attempts to do so had failed.

Mr. Tikoicina concludes his affidavit by saying that he honestly and sincerely believes that the interests of the Union will be seriously and adversely affected if the Plaintiff's application herein were to be granted by this Court.

I pass now to the sworn evidence given before me on the 22nd of September by the Plaintiff.

Once again she claimed to be a member of the Executive Committee of the Defendant having been elected as a member on the 18th of September 1993. She said her election is recorded at the office of the Registrar of Trade Unions and she referred to a document exhibited to her affidavit herein.

She repeated the claim in her affidavit that before the meeting of the 27th of August 1994 she had no idea that the meeting was going to deal with her suspension or her conduct. She repeated also that she never received an agenda of what was to be discussed at the meeting before it took place.

In cross-examination she stated that she had helped very much to prepare her affidavit herein. She described herself as a senior Trade Unionist who would not make any false or misleading statements in such an affidavit.

She asserted that she was the duly elected General Secretary of the Union and that she had been unlawfully suspended by the Executive Committee of the Union on the 27th of August 1994. She said that these were her two main concerns in these proceedings. She stated that she was familiar with the Constitution of the Union and she was then referred by counsel to various clauses in that Constitution. She agreed that under Clause 18 the Annual General Meeting of the Union must be held before the 30th of April each year at a time and place to be determined by the Executive Committee. She also stated that the meeting at which she was elected was held on the 18th of September 1993 so that this was an Extra-ordinary General Meeting and not an Annual General Meeting.

She also agreed that under Clause 67(a) of the Constitution the General Secretary had to be elected by secret ballot at an Annual General Meeting. She agreed that there was an Annual General Meeting of the Union held in April 1993 when she was not in office.

She said that she was elected at an Extra-ordinary General Meeting on the 29th of May 1993 and later following a ruling of this Court on the 10th of July 1993. She said her appointment was made on the 27th of July 1993.

I have searched the Court record in relation to this allegation and have been unable to find any such order. On the 9th of July in Action No. 364 of 1993 I ordered that the Defendants to that action including the present Plaintiff be restrained from holding themselves out either to the members of the Union or the public that they were the office bearers of the Union and various other orders restraining the Plaintiff and the other Defendants to Action No. 364 from representing to the Union's bankers that the accounts of the Union be frozen and several other orders. Restrictions were placed on the Plaintiff and her colleagues in my order but none of my orders requires the Plaintiff to be recognised as the General Secretary of the Union and I am at a loss to understand the Plaintiff's claim in this regard.

In the end the Plaintiff accepted that she had not been elected at an Annual General Meeting but at an Extra-ordinary General Meeting. She agreed that she had not been elected in accordance with Clause 67(a) of the Constitution which I have already quoted but appears to rely on the last sentence of that clause which says: "That the General Secretary shall hold office during the pleasure of the Union." Again I fail to understand the Plaintiff's evidence on this matter.

When she was questioned about her allegation that among other people, Filimoni Banuve had told her that the copy Minutes of the meeting of the Executive Committee on the 27th of August had been fabricated, at first she said that Filimoni Banuve had not told her this, then she said she thought he had told her this and finally stated that he had told her this. She also said that as far as she was concerned she was elected as General Secretary at an Extra-ordinary General Meeting which is equivalent to being elected at an Annual General Meeting.

Under cross-examination by Mr.Semisi appearing for Peleki Leweniqila she stated that this Court had ordered an election for office bearers of the Union on the 25th of August 1993. Here she was apparently referring to the order which I made in Action No. 364 of 1993 on that date.

Paragraphs 1 and 2 of that order read as follows:

"(1) That Peleki Leweniqila and any two members of his choice of the Executive Committee of the Plaintiff, except the President and Treasurer of the Plaintiff, be given the right of entry to the premises of the Plaintiff at 73 Edinburgh Drive, Suva on Saturday, 28th day of August 1993 at 10.00 a.m. for the purpose of convening an Executive Committee Meeting of the Plaintiff on the 4th day of September 1993 at 10.00 a.m. for the purpose of calling an Extraordinary General Meeting of the Plaintiff at 10.00 a.m. on the 18th of September 1993.

(2) That no other persons except the three persons hereinbefore named to be given entry to the premises of the Plaintiff."

The other parts of my order made on the 25th of August have no reference to the matter before the Court now.

It is clear that no where in my order of the 25th of August 1993 is the Plaintiff mentioned and I believe the Plaintiff, whom I consider to be an intelligent woman, has deliberately attempted to mislead the Court by this evidence. Certainly there could be no justification for her claim.

She stated that she based her claim to be the lawfully elected General Secretary on Clause 27 of the Constitution which I now set out in full:

"27. Not less than fourteen days' notice of an Extraordinary General Meeting shall be given by inserting a notice in two newspapers circulating in the Colony and an agenda showing the business of the meeting shall accompany such notice. Discussion at an Extraordinary General Meeting shall be limited to those matters contained in the agenda and decisions reached thereat shall have the same validity as decisions reached by the Annual General Meeting."

In particular the Plaintiff stated that she relied on the second sentence in Clause 27 which she understood to mean equated any decisions made at an Extra-ordinary General Meeting to those made by an Annual General Meeting of the Union.

For reasons which will appear shortly I do not accept the Plaintiff's interpretation of Clause 27.

I have received submissions from counsel for the Plaintiff and Defendants and from Mr. Semisi. The Plaintiff contends that her suspension was unlawful in that the Defendants and their relevant officers failed to comply with the rules of natural justice in that they denied her first the right to be present at the Executive Committee Meeting of the Union and secondly that the Defendants failed to notify her of the allegations and charges which were made against her.

She submits that the Annual Return for the 1st Defendant submitted to the Registrar of Trade Unions clearly provides that in relation to the records of the Union the Plaintiff is the lawful General Secretary or an officer of the 1st Defendant. She submits that the Registrar of Trade Unions has neither in these proceedings nor any other proceedings disputed the Plaintiff's position. It is submitted that it is highly unlikely that the Registrar would allow incorrect records to be shown to the public as if he were to do so he would be grossly negligent.

She further submits that logically, she must be the General Secretary of the Union as it is the subject of these proceedings that the 1st Defendant is purporting to suspend her from holding this position for a period of three months.

The Plaintiff therefore submits that she has established a serious issue to be tried and as such is entitled to an Interlocutory Injunction to preserve her position and interest. It is contended that the Plaintiff has a very strong case and at the hearing of the same it is almost likely that she would succeed.

For their part the Defendants submit that essentially the Plaintiff's claims fall into two categories:

(1) that she is the duly elected General Secretary of the 1st Defendant; and

(2) she has been unlawfully as opposed to unjustifiably suspended by the Executive Committee from her position as the duly elected General Secretary of the Union.

In short the Defendants say, and I agree, that if the Court is not satisfied that the Plaintiff was the duly elected General Secretary of the Union she has no right to claim she was unlawfully suspended as General Secretary from the Union.

Having considered the evidence it is clear that in the end the Plaintiff was forced to accept that she was elected at an Extra-ordinary General Meeting and not at an Annual General Meeting.

Clause 67(a) of the Constitution of the Union makes it clear that the General Secretary is to be elected by secret ballot only at an Annual General Meeting and not otherwise.

She has tried to point to two sources as justifying her claim to be the General Secretary of the Union namely clause 27 of the Constitution and the order of this Court on the 25th of August 1993. She says in fact that Clause 27 permits by implication an exception to Clause 67(a). I do not accept this claim.

In my judgment, and contrary to the Plaintiff's assertion, the agenda for an Extra-ordinary General Meeting could not be equated to that of an Annual General Meeting. In my judgment it is obvious that the two agenda are meant to be different. Furthermore under Clause 18 the Annual General Meeting at which the General Secretary is elected must be held between the 1st of January and the 30th of April each year. The language is clear and mandatory and in my judgment permits of no exception.

I agree with the submission of Mr. Bale for the Defendants that not even this Court, let alone any other authority, can supersede the express requirement of Clause 18 from which it follows that a General Meeting of the Union held beyond April in any year cannot be called an Annual General Meeting of the Union.

Here I should comment on the fact that in the Minutes of both those annexed to the Plaintiff's affidavit and those relied on by the Defendants which are annexed to the affidavit of the 2nd Defendant filed in Action No. 364 of 1993 the Plaintiff is referred to as the General Secretary of the Union. I have little doubt that this is because the Plaintiff has at all times asserted this but as a matter of law in my judgment she has no right to the title so that even though at the time of the meeting on the 27th of August 1994 the 2nd Defendant called the Plaintiff the General Secretary in my view he was wrong in so doing.

He appears later to have recognised this as in both the Defence to the Plaintiff's claim in these proceedings and in his Affidavit in Reply to that of the Plaintiff Mr. Tikoicina denies that the Plaintiff is the General Secretary and puts her to strict proof thereof. I am satisfied on the evidence before me that the Defendants are right in not accepting the Plaintiff as General Secretary of the Union.

To accept the Plaintiff's interpretation of Clause 27 would in my judgment make provisions such as Clauses 67 and 21 which deals with the Business of the Annual General Meeting otiose and without reason and I am satisfied that this was never the intention of those responsible for the drafting of the Constitution; I therefore reject the Plaintiff's submission on this question.

Clause 37 gives the Executive Committee the power to fill vacancies on the Executive Committee if for any reason any officer or other member of the Executive Committee vacates his or her office before the expiry of his full term.

Clause 38 of the Constitution deals specifically with the appointment of an Acting General Secretary.

In my judgment these were the provisions which should have been used during the year when the officers responsible knew they could not comply with the requirements of annual elections. These clauses give the Executive Committee the right to appoint to casual vacancies on the Committee. If the Plaintiff had been so appointed under Clause 37 or particularly, Clause 38, the Defendants would have no cause to complain about the Plaintiff's actions, in particular her allegations of illegality by the Executive.

In this case the Plaintiff did not attempt to use Clauses 37 and 38; instead she sought to have General Elections held when in my view she should have availed herself of Clause 38 and attempted to be appointed as Acting General Secretary pending elections at the proper time.

It is thus not to the point in my judgment for the Plaintiff to claim that the Registrar of Trade Unions has accepted the legality of her actions because the Registrar of Trade Unions has no right to do so if the Plaintiff's actions are contrary to the Union's Constitution, especially Clause 67 which the Plaintiff herself quotes in her Statement of Claim. I repeat that it is clear in my view that the requirements of Clause 67 are mandatory in that they stipulate that the General Secretary can only be elected at an Annual General Meeting.

It follows from what I have said that in my judgment the Plaintiff had no right even to be given a hearing by the Executive Committee on the 27th of August in that she was not then the General Secretary. It likewise follows that her purported suspension was also a nullity in that she could never be suspended from a position which she did not hold in law.

In this respect this case is distinguishable from for example, R. v. Barnsley Metropolitan Borough council, ex parte Hook (1976) 3 All E.R. 452 where there was never any argument that Mr. Hook held the trading licence from the Barnsley Metropolitan Borough Council and as such, as the Court of Appeal held, had a right to be heard when the Committee of the Council banned him from trading in the market and revoked his right to a stall.

For the reasons I have given therefore the Plaintiff's Notice of Motion must be dismissed and I order her to pay the costs of the Defendants.

Before leaving this matter I must express my grave concern at the welter of litigation which has occurred between the parties in this and other proceedings connected with the Public Employees Union. In my Interlocutory Judgment of the 27th of January 1994 I stated on page 2:

"This action by the parties reflects no credit on them and I am left with the distinct impression that there has been too much "grand-standing" and personal point-scoring, the object of which I strongly suspect has been to divert the Court's attention from the real issues in this litigation."

I had hoped that, having said that, the various parties would come to their senses and allow the rank and file of the union membership to have their say as to who should manage the affairs of this Union and that there would be no further litigation between the parties.

Unfortunately this has not proved to be the case as the present action shows.

As a further and very serious consequence of the litigation and particularly this Court's decision to freeze the funds of the Union temporarily the union membership has been denied any voice in industrial affairs. Section 14 of the Constitution of Fiji guarantees every person his right to associate with other persons and in particular to belong to trade unions or associations for the protection of his interests.

For reasons best known to themselves but which I have little doubt were those which I mentioned in my judgment of the 27th of January the principal protagonists in this unhappy saga have chosen to ignore the rights of those whose interests they would be the first to proclaim they have at heart. I trust I may be pardoned for a certain cynicism about such claims.

I have been assured by counsel for the Defendants that it is the intention of the current Executive Committee of the Union to ensure that an Annual General Meeting and elections for office bearers in the Union will be held between the 1st of January and the 30th of April 1995. I trust that such elections will be held because I indicate now that if they are not and no good reason can be shown for their failure to hold them then this Court will assert its inherent power and order such elections to be held at the earliest possible opportunity and to be supervised by the Registrar of Trade Unions.

The order of the Court is that the Plaintiff's Motion is dismissed with costs.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in judgment:

(1) Constitution of Fiji.
(2) R. v. Barnsley Metropolitan Borough Council, ex parte Hook (1976) 3 All E.R. 452.

No cases or legislation were cited in argument.

HBC0425D.94S