Yadav v Chief Executive Officer Education [2004] FJHC 213; HBC0072.2004 (11 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0072 OF 2004

BETWEEN:

ANAY SUMESHWAR YADAV, SHIU NARAYAN,
JOSEPH PRASAD,
NIRANJAN and RAJENDRA PRASAD
Plaintiffs

AND:

CHIEF EXECUTIVE OFFICER EDUCATION
First Defendant

MINISTRY OF EDUCATION
Second Defendant

GURUDAYAL, Principal of Nausori
Third Defendant

ANAND RAM SHARMA of Nasinu
Fourth Defendant

PARVIN SARUP of Nasinu
Fifth Defendant

Mr. Singh - for the Plaintiffs
Mr. Raikadroka - for the 1st, 2nd and 3rd Defendants
Mr. N. Shivam - for the 4th and 5th Defendants

Date of Hearing - 11th June, 2004
Date of Ruling: - 11th June, 2004

EX TEMPORE RULING

This is an extempore ruling delivered at approximately 3.25pm on Friday the 11th of June, 2004.

I reserve the right to improve this extempore ruling if that is required.

Background

The background to this matter is aptly described in several affidavits on the file. Two factions within a school have remained unable throughout the latter part of last year and the six months of this year to come to any amicable arrangements concerning a resolution of their differences and a smooth running of the school for the children’s benefit.

The matter has been before me on several occasions this year.

This culminated in the parties entering into a good faith memorandum where they sort to resolve their differences by the application of a political but fair and democratic process.

The related memorandum of understanding is found at ‘Annexure A’ in the supporting affidavit to this application filed on the 11th of June, 2004. This is the affidavit of Mr. Anand Ram Sharma.

The purpose of that memorandum was to ensure that the parties continued to run the school for the benefit of the children while they gathered their membership together and properly called an Annual General Meeting. It being the intention and purpose of the memorandum that the Annual General Meeting would appoint a fresh Committee with a proper mandate.

The Application

The defendant applicants have come to Court because they believe the plaintiff is seeking to take advantage over the process of conducting the AGM. Essentially what they are saying to the Court is that the plaintiffs are stonewalling the approval of membership. That is a fair inference. The plaintiffs somewhat challenged by the amount of members the defendants have been able to secure don’t want to face the political reality that would be the inevitable outcome of the AGM which is scheduled for Sunday the 13th of June.

Senior Counsel for the plaintiff respondents is unable to get proper instructions from his clients and so appears on a “pickwick” basis. I accordingly treat the application for interim injunction as ex parte.

The best the plaintiff can offer at this time is a request for an adjournment of these proceedings to enable his clients time to respond to the affidavit prepared by the defendant applicants and informally served on him.

However, were I to grant this request I would deny the applicants an opportunity to participate in the political process as their membership would not be approved in advance of the AGM scheduled for Sunday.

Law

Given the short amount of time and urgency of this matter I simply note the principles for granting interim relief based on such decisions as American Cyanamid and also the higher threshold required concerning applications that are effectively made ex parte. Is there a serious issue to be tried? Yes. Where does the balance of convenience lie? With the applicants.

I am prepared to accept for the purpose of this ex parte application that the plaintiff respondents have stonewalled approval of the “applicants members”. They have done this to gain the upper hand and frustrate a proper democratic process at the intended AGM. The applicant defendants will effectively be denied relief if the AGM proceeds this Sunday.

Accordingly, I make the following Orders on an interim basis only:

1. The plaintiffs and the registered trustees of the Sanatan Dharam Mahamandal of Vunimono, Nausori are hereby restrained from holding their Annual General Meeting scheduled for the 13th of June, 2004.
   
2. An AGM of the Sanatan Dharam Mahamandal of Vunimono, Nausori shall not be held for a minimum period of 37 days.
   
3. Leave is reserved to the plaintiff to make an application to vary these Interim Orders. I decline to make the other Orders of Interim relief requested by the applicant. In my view further evidence would be required before I would be motivated on an ex parte interim basis to direct any form of declaratory relief concerning the approval of new members. Further I wish there to be sufficient time for the parties to re-assess their position and then allocate a new Annual General Meeting if that is their wish.
   

In my view this application was completely unnecessary. I reserve the question of specific costs for further submission from the defendant applicants and the plaintiff.

I direct that this matter be called before me again next Tuesday the 15th of June, 2004 at 9.30am. It is my hope that by then some common sense will have prevailed and the plaintiff and defendant will have yet again attempted to reconcile their differences and will come back to Court with further consent orders that will see these untiring matters resolved with the need to resolve to a full Court hearing.

[ Gerard Winter ]
JUDGE

At Suva
11th June, 2004