Singh v Singh [1995] FJHC 98; Hbc0215r.94s (30 May 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0215 OF 1994

Between:

1. DHARAM SINGH s/o Pratap Singh
2. PREM SINGH s/o Mohan Singh
3. MAHENDRA SINGH s/o Darshan Singh
4. SAKATAR SINGH s/o Bakshish Singh
in their representative capacity
Plaintiffs

- and -

1. HARDAYAL SINGH s/o Chanan Singh
2. GYAN SINGH s/o Hari Singh
3. CHARANJIT SINGH s/o Avtar Singh
4. MAHENDAR SINGH s/o Pratap Singh
Defendants

Mr. H.A. Shah for the Plaintiffs
Mr. R. Prakash for the Defendants

RULING

This is an application by the defendants (Ds) to dissolve the interim injunction granted ex parte to the Plaintiffs (Ps) on 17 March 1995 restraining the defendants (Ds) "whether by themselves their servants agents or howsoever be restrained by an injunction from holding, convening or proceeding with the meeting on 25th day of March 1995 or on another date except as ordered by this Court until the 28th day of March 1995" pursuant to the Motion ex parte dated 17 March 1995 filed by the Ps who sought (a) an injunction (as in the above terms) and (b) "An order that Mr. Tara Singh Deshi, the National President of the Sikh Society, or such other independent person to preside and chair the Annual General Meeting on a date to be fixed by Court, and Plaintiffs be allowed to take part in the meeting including to sponsor and/or put up candidate for various positions."

On behalf of the Ps, SAKATAR SINGH filed an Affidavit sworn 16 March 1995 in support; GYAN SINGH filed an affidavit sworn 27 March 1995 in Reply followed by a further Affidavit in Reply sworn 3 April 1995 thereto by the said SAKATAR SINGH.

Both counsel appeared before me on 12 April 1995 for argument. They made both oral and written submissions.

Very briefly, the background to this case (Suva High Court Action No. 215/94) is that the hearing of this action is pending. The Plaintiffs there are praying for a declaration that they are the lawful management of the KHALSA COLLEGE and SHIRI GURU NANAK KHALSA PRIMARY SCHOOL, BA. This action commenced at High Court, Lautoka (Action No. 101/93) where it was dealt with by ASHTON-LEWIS J. His Lordship made an all out effort to bring about an amicable settlement of the dispute between the parties but to no avail. The action was later transferred to Suva. On 4 October 1994 after hearing an application on a preliminary issue, namely, "that this action should have begun by Writ of Summons and not Originating Summons", the Court gave a decision that there was no substance in the defendants' application which was dismissed with costs. Then on 14 October 1994 after hearing Counsel I made the following orders and gave directions as follows:-

"(a) Under Order 28 r.9 the Affidavits filed herein shall stand as pleadings and that this action continue as if begun by writ.

(b) Affidavits Verifying List of Documents are ordered to be filed and served by the Plaintiffs within 7 days from the date of this Order and by the Defendants within 7 days after service of Affidavit on them.

(c) Parties to comply with Order 34 r.2 of the Rules relating to Pre-trial conference within 14 days after filing of Affidavit Verifying List of documents.

(d) Thereafter the action is to be set down for trial under order 34 r.4".

Against the above background the Court is required to consider whether the said interim injunction ought to continue in the circumstances of this case or not.

I have carefully considered the arguments put forward by both counsel. It is not necessary to repeat them in this Ruling other than to consider the points raised which have a bearing on the issue before me.

No doubt there is a triable issue raised by the Ps in the Originating Summons. While the action is pending, Ds allege that time has now come for the Sikh Educational Society of Fiji, which manages and runs the two schools in question, to hold an Annual General Meeting (AGM) under its constitution. This is what the defendants as the present purported management attempted to do by giving a short notice of the AGM in the newspapers and which the Ps applied by this Motion to prevent being held.

Mr. Prakash refers to an Order dated 20 April 1993 made by the High Court Lautoka in Civil action No. 14/93 in which 1st, 2nd and 4th Plaintiffs (who were defendants in that action) were ordered that "until the determination of High Court Lautoka Civil Action No. 101 of 1993 there will be no interference by themselves or by their servants or agents or otherwise however with the operations of Khalsa College and Khalsa Primary School..." He says that the said Plaintiffs by their motion are acting contrary to the said order. I am of the view that in the present circumstances this is not an interference as envisaged in the said order. The Ps are entitled to be heard on this Motion in the present action.

The crux of the whole matter is, who are the proper officers of the Society and who are entitled to run the two schools. Are they the Plaintiffs or the Defendants?

A lot of time has elapsed since this action commenced and the parties are nowhere near finding a solution to their problem. They have reached an impasse despite all efforts by various individuals and even the Court. Even after the case was transferred to Suva, had counsel moved with some speed a hearing date would definitely have been given particularly after I had given certain directions on 14 October 1994. Mr. Prakash in his written submission emphasises the "urgency of the matter because it is a matter of public interest where the effective administration of two major schools is involved". He is asking for dismissal of the motion but what are counsel doing to expedite the hearing of the action. The ball is in their Court. Even now it should not take counsel more than a week to apply to set the action down for Trial as bound copy pleadings have already been filed and there only remains to file minutes of Pre-trial Conference and setting down for Trial under Order 34 of the Rules.

In this motion for injunction after some discussion on avenues to resolve the dispute Mr. Prakash wanted the Court to consider his application to dissolve the injunction and give a decision. Since that is his application I propose to do so.

As to the principles governing the grant of interlocutory injunctions, they are authoritatively laid down by the House of Lords in AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975 AC 396). "The rule is that the Court must be satisfied that the plaintiff's case is not frivolous or vexatious and that there is a serious question to be tried. Once that is established, the governing consideration is the balance of convenience" (HANBURY AND MAUDSLEY MODERN EQUITY 11th Ed. p. 102).

At this interlocutory stage, the Courts do not embark on anything resembling a trial of the action and it is not the Court's function to resolve conflicts of evidence on affidavit nor to resolve difficult questions of law. All these are matters for the trial (PORTER v NATIONAL UNION OF JOURNALISTS, the Times, July 30, 1980 H.L.). I find that there is a serious question to be tried in this case and that the Plaintiff's claim is not frivolous or vexatious.

This is a type of case where injunction could be granted. As stated by Mr. Shankar who appeared for Mr. Shah on the hearing of this application, it has been held that Courts would grant injunction against expulsion of members of unincorporated association if it is shown that the purported expulsion was contrary to natural justice, or contravened the rules, or was not made bona fide i.e. was malicious, or dishonest or in effect made for some ulterior purpose. (DAWKINS v ANTROBUS [1881] UKLawRpCh 28; 1881 17 Ch.D 615).

In this case the Plaintiffs allege that they have been prevented from taking part in the meetings, elections and in the administration of the two Schools by the Sikh Educational Society. The facts are also that the Sikh Educational Society of which Ps are or were members owns property and hence they qualify for injunction.

Further to what I have stated hereabove the Ps are entitled to look to the courts for assistance in a situation such as the present. This aspect has been dealt with by WOOTEN J in McKINNON v GROGAN (1974 1 NSWLR 295 at 298-299) thus:-

"I consider that citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions. If it is not forthcoming a vast and growing sector of the lives of people in the affluent society will be a legal no man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members.

Despite Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, the courts frequently deal with disputes between individual members and social clubs, such as RSL clubs. This seems to be both proper and desirable, and the courts should be willing to assist in resolving disputes in organisations, whatever their size, in which parties have deliberately adopted formal rules to govern their relations."

On the other principles in considering the grant of interlocutory injunction, namely whether damages are an adequate remedy and the related matter as to where does the balance of convenience lie, I find that in this case the affidavits raise conflicting evidence the balance of convenience favours the maintaining of status quo until trial. In this case I have borne in mind the principles governing the "balance of convenience" as stated by LORD DIPLOCK in CYANAMID (supra)(1975) [1975] UKHL 1; 1 AER 504 at 510 in the following terms:

"I turn to consider what those principles are.

My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies."

As stated hereabove, there is a triable issue and there is a question of evidence involved and it cannot be said without hearing evidence that the plaintiffs have a fair chance of success. In HUBBARD v VOSPER (1972) 1 AER 1023 at 1029 LORD DENNING M.R. said:-

".... In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done."

Also in HUBBARD v PITT 3 AER 1 OOR L.J. said "...... if the relevant factors were evenly balanced ....." it was appropriate:

"to grant an interlocutory injunction which would maintain the status quo; that being in the context of this case the situation which existed prior to the commencement, very shortly before the issue of the writ, of the activities complained of" (ibid 20).

In the outcome, bearing in mind the facts of this case, I consider this to be a proper case to exercise the Court's discretion in favour of the plaintiffs by granting them the injunctive relief sought by them but not item (b) of their prayer and to maintain the status quo.

Therefore, after considering the whole case I have come to the conclusion that the interim injunction granted on 17 March 1995 ought to continue until the trial of this action or until further order subject to the defendants giving their undertaking in damages in writing within 7 days; and therefore the defendant's application for dissolution of interim injunction is dismissed with costs in the cause.

Before I conclude, with the view to an early determination of the issue before me, I suggest to both counsel to have the Minutes of the Pre Trial Conference filed within 10 days and apply to set the action down for trial with the least possible delay. I will be prepared to give a date for speedy trial of the action.

D. Pathik
Judge

At Suva
5 May 1995

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0215 OF 1994

Between:

1. DHARAM SINGH s/o Pratap Singh
2. PREM SINGH s/o Mohan Singh
3. MAHENDRA SINGH s/o Darshan Singh
4. SAKATAR SINGH s/o Bakshish Singh
in their representative capacity
Plaintiffs

- and -

1. HARDAYAL SINGH s/o Chanan Singh
2. GYAN SINGH s/o Hari Singh
3. CHARANJIT SINGH s/o Avtar Singh
4. MAHENDAR SINGH s/o Pratap Singh
Defendants

Mr. H.A. Shah for the Plaintiffs
Mr. R. Prakash for the Defendants

ERRATUM

The third paragraph of the Ruling herein dated 5 May 1995 at page 8 reads:

"Therefore, after considering the whole case I have come to the conclusion that the interim injunction granted on 17 March 1995 ought to continue until the trial of this action or until further order subject to the defendants giving their undertaking in damages in writing within 7 days; and therefore the defendant's application for dissolution of interim injunction is dismissed with costs in the cause."

There is an error in the above paragraph in that the word "defendants" (in the fifth line) should be substituted by the word "plaintiffs" as that is what was meant.

D. Pathik
Judge

At Suva
30 May 1995

HBC0215R.94S