Saheem v Shah [2012] FJHC 1336; HBC57.2007 (19 September 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 57 of 2007

BETWEEN:

MOHAMMED SAHEEM
MOHAMMED SALIM
[Plaintiffs]

AND:

MEHRAB SHAH & MOHAMMED JANIF
[1st Defendants]

AND:

HAJI ABDUL AKIF ALI & TAIYAB HUSSAIN
[2nd Defendants]

AND:

MOHAMMED ISMAIL, BAHADUR ALI,
ABDUL KAREEM & AZIZ BEGG
[3rd Defendants]

AND:

ATTORNEY GENERAL OF FIJI
[4th Defendant]

Counsels : Mr. A. Ram for the 1st and 2nd Plaintiffs
Mr. A. Sen for the 1st, 2nd & 3rd Defendants
Ms. M. Lee for the 4th Defendant

Date of Ruling: 19th September, 2012

Ruling

[1]. The plaintiffs filed a Notice of Motion seeking following Orders against the 1st, 2nd and 3rd defendants who are the elected officials of the Macuata Muslim League.

[2]. The orders sought by the plaintiff are as follows:

1. that an Annual General Meeting of both bodies together be convened and chaired by a Representative of the 4th defendant;
   
2. that all existing trustees be removed and a fresh election be held for the appointment of new trustees;
   

100. (i) the general meeting be held of all Muslims over the age of 18 years who are not members of another Muslim organisation and who shall be entitled to vote at the meeting;
     

(ii) all deregistered and suspended members are to be re-instated and be entitled to vote;

(iii) there will be no voter registration for membership and/or elections; and,

(iv) no membership fee is to be collected.

[3]. In support of the motion, an affidavit was filed by the plaintiffs. In the affidavit, it is stated that no Annual General Meeting (AGM) of both bodies has been held since 2006, and by Clause II of the Constitutions an AGM must be held every year and elections held every two years.

[4]. Opposing the plaintiff's motion, an affidavit was field by the 4th named 3rd defendant. In the affidavit, it is stated that on 05.02.2009 the Master of the High Court has made an order that the plaintiffs to file a Writ of Summons, the plaintiffs had not taken any effort to file the Writ of Summons and also since the plaintiffs are not members of Macuata Muslim League, Fiji, they have got no locus standi in seeking any redress.

Chronology of events

[5]. The plaintiffs on 24.09.2007, filed proceedings by way of Originating Summons (Expedited Form] seeking a number of relief against the defendants. The defendants filed summons to strike out the plaintiff's originating summons, which was dismissed by the Court.

[6]. Thereafter, the defendants filed summons for an order that these proceedings be continued as if the cause of matter had been begun by writ, which was also opposed by the plaintiffs.

[7]. Master Udit on 05.02.2009, made following orders:

1. Plaintiff to file statement of claim by 3rd March 2009;
2. Macuata Muslim League Fiji to be joined as a party; and,
3. Adjourned to 4th March 2009 for mention only.
   

[8]. It must be noted that the plaintiffs have not complied with the said orders, instead filed a Notice of Motion seeking various relief against the defendants.

[9]. As can be seen from the Notice of Motion, some of the reliefs sought earlier by the plaintiffs in their originating summons have been again sought in the Notice of Motion. Prayer (g) of the Originating Summons is for an order that the plaintiffs do call an AGM of the Macuata Muslim League to be held under the chairmanship of the 4th defendant or his nominee. Similarly, prayer (a) of the plaintiffs' Notice of Motion is for an order that an AGM of both bodies together be convened and chaired by a representative of the 4th defendant. It is evident that the relief sought by the plaintiffs in their Notice of Motion involves Macuata Muslim League Fiji also. Therefore, as ordered by the Master, it is the duty of the plaintiffs to join Macuata Muslim League Fiji as a party to this action.

[10]. It could be observed that the Master of High Court in his order dated 05.02.2009, ordered the plaintiffs to add Macuata Muslim League Fiji as a party because in their originating summons the plaintiffs sought relief against the Macuata Muslim League Fiji.

[11]. However, for reasons best known to the plaintiffs, they have not complied with the orders given by the Master.

[12]. What is discernible from the plaintiffs' Notice of Motion and originating Summons is that the plaintiffs admitted the existence of Macuata Muslim League Fiji. The 1st relief sought by the plaintiffs in their Notice of Motion is that an AGM of both bodies together be convened and chaired by the representative of the 4th defendants.

[13]. Hence, it is apparent that when the originating summons was filed to obtain a declaration which could have separated Macuata Muslim League from Macuata Muslim League Fiji, the plaintiffs had very clearly sought a relief against the Macuata Muslim League Fiji.

[14]. If the plaintiffs have a cause of action against the Macuata Muslim League Fiji, they should have necessarily joined Macuata Muslim League Fiji as a party because if any relief is granted by this court in respect of the Notice of Motion, it would certainly have consequences on the Macuata Muslim League Fiji, which is not a party to this case.

[15]. As it appears to this court, the abovementioned reason would have pursued the learned Master of High Court to order the plaintiff that Macuata Muslim League Fiji should be joined as a party to this action.

[16]. Notwithstanding the learned Master's order the plaintiffs have failed to comply with it but have endeavoured to find a way out by filing a Notice of Motion which in my view is an abuse of process.

[17]. It could be observed on their submissions; the plaintiffs mainly rely on Order 33 Rule 3 of the High Court Rules to justify the filing of the Notice of Motion without complying with the Master's order.

[18]. Order 33 Rule 3 reads:

The court may order any question or issue arising in a cause of matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise to be tried before at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated.

[19]. It must be noted that the plaintiffs though submitted that they filed the Notice of Motion in terms of Order 33 Rule 3, have sought certain remedies which are of mandatory nature or, if not, orders for specific performance which in my opinion cannot be granted under Order 33 Rule 3.

[20]. It must be emphasised that once the court ordered a party to take certain procedural steps it is incumbent on the party so ordered to comply with it. In the instant case, the plaintiffs not only ignored the Master's order but have made an unsuccessful attempt to evade it and get the remedies, which in my view is quite inappropriate given the history and the nature of relief sought by the plaintiffs in their originating summons.

[21]. Upon consideration of the above facts, I am of the view that the Notice of Motion filed by the plaintiffs is an abuse of process and therefore should not be entertained. On the above premise, I dismiss the plaintiffs' Notice of Motion.

[22]. Cost is summarily assessed in the sum of $ 1000.00.

Pradeep Hettiarachchi
JUDGE