Yadav v Chief Executive Officer Education [2004] FJHC 248; HBC0072.2004 (1 October 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. R. Singh - for the Plaintiffs
Mr. Raikadroka - for the 1st, 2nd and 3rd Defendants
Mr. N. Shivam - for the 4th and 5th Defendants

Date of Judgment: - 1st October, 2004

JUDGMENT

Background

The background to this matter is described in my Ex tempore Ruling of the 11th of June, 2004.

Two factions within a school (run by the Sanatan Dharam Mahamandal hereafter “the Mahamandal”) have remained unable throughout the latter part of 2003 and all of 2004 to come to any amicable arrangements concerning the resolution of constitutional and political differences over the governance and management of the school.

The plaintiffs filed an originating summons seeking certain declaratory orders on the 1st of March, 2004. They effectively seek political control of the Board of Trustees. The fourth and fifth defendants representing a group of disenfranchised members of the organization opposed that summons.

As this was clearly a matter affecting the best interests of children I encouraged the parties to resolve their differences by a process of alternate dispute resolution. A settlement conference took place on the 16th of March and resulted in the parties entering a Memorandum of Understanding which for the sake of completeness is annexed to this decision at appendix A.

That memorandum set up a neutral process of future elections for the school Board of Trustees that would allow a fair and even democratic process to resolve the bitter political dispute between the parties.

In essence the agreement provided for a cooling off period during which the two factions could gather their membership together prior to an agreed AGM being held. At the AGM there would have been opportunity for a change of office bearers by proper democratic process and the new Board thereafter for the greater benefit of the children would govern and manage the interests of the school.

The first, second and third defendants, the Ministry of Education and School Principal, have indicated a willingness to abide the decision of the Court.

These Applications

The fourth and fifth defendants were frustrated by the plaintiff's lack of good faith dealing over implementation of the Memorandum of Understanding. They came to the Court on the 11th of June by way of an ex parte injunction application claiming that the plaintiffs would not approve the membership they had collected.

The plaintiffs wanted to steam roll ahead with an AGM which was scheduled for the following Sunday, the 13th of June.

I granted the application as I was of the view that the plaintiffs were denying the 4th and 5th defendants and their “group” an opportunity to fully participate in the political process. The plaintiffs were somewhat challenged by the number of members the defendants had been able to secure and clearly did not want to face the political reality that they would be removed from office. The plaintiffs answer to that was to make it difficult if not impossible for the defendants to have their members validly approved in advance of the AGM.

The plaintiffs then made a notice of motion seeking to dissolve the exparte interim injunction order made by me on the 11th of June, 2004.

They also sought declarations concerning the 4th and 5th defendants personnel membership and status within the organization.

It is that application that I now address in this judgment.

The Application

The applicant claims that the injunction should be dissolved as the 4th and 5th defendants failed to disclose certain information on their ex-parte application.

Counsel submits that the 4th and 5th defendants made no applications for new membership in accordance of the Memorandum of Understanding (paragraph 3.1). It is said by the plaintiff that this lack of honesty and failure to disclose the true process of membership approval is fatal to the injunction. I disagree.

First I do not consider that there was a failure to disclose. In the subsequent paragraph of the supporting affidavit the plaintiff's deponent confirms that approval of membership was sought on the 10th of June, 2004 at 1.00pm but rejected. Second, I accept and prefer the evidence of the 4th defendant contained in his affidavit of the 11th of June, 2004 that in fact considerable effort was made to get the defendants new members for the Mahamandal approved. I completely reject the plaintiff's arguments in that regard. I find as a fact that the plaintiffs have used every method at their disposal to frustrate the approval of membership. I reject plaintiff counsels argument concerning non-disclosure.

The plaintiff then submits that the 4th and 5th defendants have no standing as their membership of the organization has lapsed. The plaintiffs in particular allege that the 4th defendant is disqualified from being a member of the Mahamandal by saying that he failed to pay his membership subscription for 2003. That is not so. I accept and prefer the contents of the 4th defendant’s affidavit (see paragraph 3 Sharma’s affidavit filed 22 July 2004). I completely reject the plaintiffs assertions in that regard and prefer the defendants' evidence and argument that indeed they were valid members entitled to introduce new members to the organization.

All the 4th and 5th defendants seek is an even playing field upon which the political process can fairly produce an appropriate and democratic outcome.

In that regard they remain content to return to the Memorandum of Understanding. Indeed they argue that despite the plaintiff resiling from that memorandum of the 16th of March, 2004 they are still prepared to adhere to its terms. The plaintiffs were represented by senior and competent counsel. They made comprehensive and unequivocal agreements and signed off on those. The fact that the plaintiffs now find it inconvenient to settle the matter in terms of that memorandum and has sought to frustrate the democratic process reflects very poorly on them.

At the heart of this dispute lie the best interests of several hundred children and their ongoing education. It is a pity the plaintiffs cannot accept that important and primary reality.

The Law

In accordance with the well-worn principles expressed in “Cyanamid” I accept there is a serious question to be tried. I find that the consequences that may be caused by the plaintiffs continued political belligerence can never be remedied by the award of damages.

I further find that the balance of convenience lies with the 4th and 5th defendants.

The plaintiffs are deliberately in breach of the Memorandum of Understanding set up on the 16th of March, 2004 to resolve this matter. I find that the plaintiff after signing the Memorandum of Understanding came to the realization that they were unable to secure sufficient members to maintain their power and control of the Mahamandal. I find that the plaintiffs are avoiding the proper democratic process. I reject the plaintiff's arguments and prefer those of the defendants.

Conclusion

The plaintiff’s application to dismiss the interim injunction is dismissed. Costs on the ex-parte application by the 4th and 5th defendants reserved by me in my judgment of the 11th of June, 2004 are now fixed. I order each of the plaintiffs to pay $200.00 to the 3rd defendant and $200.00 to the 4th.

I fix costs in respect of the plaintiff’s now dismissed application. Each of the plaintiffs are to pay the sum of $200.00 to the 3rd defendant and $200.00 to the 4th defendant.

All costs are to be paid within 14 days of this judgment and in default bear simple interest at 11% per annum.

I direct the parties to comply with the spirit and letter of the Memorandum of Understanding achieved in the settlement conference on the 16th of March, 2004 and in accordance with that memorandum I now make the following orders:

1. Trustees shall not cause or make any alteration to the Constitution either directly or indirectly until after a properly called AGM of the Mahamandal.
   
2. Any trustee is not to remove or appoint anyone to any post during the interim period between the date of this order and the date of the AGM of the Mahamandal.
   
3. I appoint the following trustees to have the day to day control of the affairs of the Mahamandal between the date of this order and the date of the full AGM:
   
   • (a) Anand Ram Sharma
   • (b) Parvin Sarup
   • (c) Anay Sumeshwar Yadav
   • (d) Shiu Narayan
   • (e) Joseph Prasad
     
4. Anay Sumeshwar Yadav and Anand Ram Sharma will be appointed as Co-Chairman of Trustee.
   
5. The trustees are only allowed to conduct the following affairs of the Mahamandal in the interim period that is:
   
   1. Matters relating to the needs of the school at the request of the Principal or Heads of Department or Ministry of Education.
      
   2. Matters relating to the collection of funds from the Ministry of Education, Parents or other sources and the payment of all school bills. I direct that all cheques, orders or invoices for the school are to be signed by both Anay Sumeshwar Yadav and Pravin Sarup.
      
   3. Matters relating to the appointment of membership.
      
   4. Matters relating to the conduct and calling of an AGM.
      
   5. I order the trustees to abide their undertaking to approve any membership application submitted between the date of this order and the 5th of November, 2004 to any person who meets the part 3 membership qualifications of the Constitution of the Mahamandal that is:
      

“5(a) The membership of the Mahamandal is open to any person of either sex provided he is a follower of Sanatan Dharam and is over 18 years of age”.

6. I direct the trustees to convene a proper AGM called in accordance with the Constitution on or before the 30th of November, 2004.
   

After completion of Mahamandal’s AGM leave is reserved to any party to bring the matter back to Court for such further directions as may be required.

Gerard Winter
JUDGE

At Suva
1st October, 2004