Horner v Trustees and Executives of the Sigatoka Club [2010] FJHC 564; HBC241.2010L (31 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 241 of 2010L

BETWEEN:

GRAEME ROBERT HORNER
Plaintiff

AND:

TRUSTEES AND EXECUTIVES OF THE SIGATOKA CLUB
Defendants

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Ms T Draunidalo for the Plaintiff.

Solicitors: Tupou Draunidalo for the Plaintiff.

Date of Hearing: 17 December 2010
Date of Judgment: 31 December 2010

INTRODUCTION

[1] This is a dispute between the members and management of the Sigatoka Club. It is over amendments to the Club Constitution and the annual general meeting to be held on 19 December 2010.

[2] On 17 December 2010 the Plaintiff, together with other members of the Club filed an Originating Motion and an Ex-parte Motion seeking orders to restrain the Trustees and Executive members of the Club from going ahead with the planned annual general meeting.

[3] I heard Ms Draunidalo, counsel for the Plaintiff, and granted the orders sought. These are my reasons.

BACKGROUND

[4] Mr Horner's affidavit in support gave the following background. The Sigatoka Club is a private members club. It has a Constitution which was adopted on 15 August 1958. On 20 November 2002, certain amendments were made to the Constitution and registered. A further amended Constitution was registered with the Commissioner Western on 14 December 2008. That Constitution is under dispute. Mr Horner and his supporters say that the second and final draft of that Constitution was only given to them and other members an hour before the meeting adopting it and on a show of hands no more than seven members supported the adoption of that Constitution. Members were assured by the current Trustees and Executives that the amendments had not been adopted as many of them disputed the adoption of the Constitution. However, the Plaintiff and his supports found out recently that this was not correct.

[5] They claim that the Defendants are proposing to hold the 2010 annual general meeting on 19 December 2010 pursuant to this disputed Constitution. They want it stopped because they say it will entrench the Constitution's confusing and unfair provisions. They also believe that any members who voiced any opposition to the Constitution would face suspension. Previous office bearers have been suspended under the disputed Constitution and can no longer enjoy Club privileges.

THE MOTION

[6] The Ex-parte Motion sought the following orders:

1. Until further orders, the Defendants are restrained forthwith from proceeding in any manner whatsoever with the annual general meeting of the private members club known as the Sigatoka Club at Sigatoka, Nadroga/Navosa, scheduled for 19th December 2010.
   
2. Until further orders, the Defendants are restrained forthwith from proceeding in any manner whatsoever with the annual general meeting of the Sigatoka Club, Nadroga/Navosa which the Defendants have given Notice for, scheduled for the 19th day of December 2010.
   

100. Until further orders, the Defendants are to manage the day to day affairs of the Sigatoka Club pursuant to the Constitution of the Club as up to the 13th day of December 2008.
     

4. Costs be costs in the cause.
   

[7] Two other supporting affidavits were filed in addition to that of Mr Horner.

[8] The Motion mistakenly states that the application was made pursuant to Order 11 rule 1(1)(b), (d) (i) (ii) (iii), (e) and (h) of the High Court Rules 1988. The proper rule is Order 29 rule 1. The application is also made under the Court's inherent jurisdiction.

[9] The Originating Motion seeks orders to have the 2008 Constitution set aside and the 2002 Constitution re-adopted instead.

CONSIDERATION OF THE MOTION

[10] Normally, the Court does not interfere with the affairs of private clubs. However, where persons entrusted with the management of such clubs take a heavy handed approach and act to protect their personal interests rather than the interests of the members as a whole leading to disunity, which seems to be the case here, the Court will interfere to put a check on the dispute escalating.

[11] I do not think I need to cite any case authority. It is an exercise of the Court's inherent jurisdiction to maintain the status quo.

[12] I therefore grant the orders sought in paragraphs (a) and (b) of the Motion. The order in paragraph (c) will be considered when the application is heard inter-partes.

ORDERS

[13] I therefore make the following orders:

• [1] Order as per paragraphs (a) and (b) of the Ex-parte Motion filed today.
  
• [2] The Plaintiff is to serve the Court documents on the Defendants within 3 days.
• [3] The matter is to be mentioned on 31 January 2011 at 9.30am.
  
• [4] The Originating Summons is to be issued with the same return date.
  

............................................................
Sosefo Inoke
Judge