Raghwan v Yalibau [2013] FJHC 474; HBC178.2012 (16 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL NO. HBC 178 of 2012

BETWEEN:

Vijay Raghwan, Ledua Koto, Brij Lal and Alivereti Yaya
PLAINTIFFS

AND:

Ilaitia Yalibau of Union Club, Suva, Fiji, President.
1st DEFENDANT

AND:

Rupeni Silimaibau and Tukana Levaci both of Union Club, Suva, Fiji, Vice President.
2nd DEFENDANT

AND:

Vijay Lal of Union Club, Suva, Fiji, Secretary.
3rd DEFENDANT

AND:

Executive Committee of Union Club, Suva
4th DEFENDANT

COUNSEL : Mr. S Sharma for the Plaintiffs
Mr. Lajendra for the Defendants
Date of Judgment: 16 September 2013

JUDGMENT

1. The Plaintiffs filed amended originating summons dated 16 November 2012 against the Defendants seeking following declaratory orders:
   
   1. A declaration that the purported Emergency General Meeting of the Union Club held on 7 June 2012, as called or convened by the Defendants, was contrary to the Constitution and Rules of the Union Club and was illegal, null and void;
      
   2. A declaration that the purported appointments of the Defendants and the Executive Committee is invalid, ineffective and of no force or effect;
      
   3. A declaration that the purported suspension of the First Named Plaintiff as the Trustee and the purported dissolution of the Plaintiffs as Administrators, is in all the circumstances, contrary to the Constitution and Rules of the Union Club, and in breach of Rules of Natural Justice and therefore, illegal, unlawful, null and void;
      
   4. A declaration that the First Named Plaintiff remains the Trustee of the Union Club and together with the other named Plaintiffs, continue as the lawful Administrators of the Union Club;
      
   5. A declaration that all actions, resolutions, decisions or proceedings taken by the Defendants in relation to the membership, management, or any other matter pertaining to the affairs of the union Club, on or after 7 June 2012 are invalid, ineffective, null and void;
      
   6. A declaration that the purported Annual General Meeting/Ordinary meeting held on 31 July 2012 as called or convened by the Defendants or otherwise including the purported membership present at the said meeting, was contrary to the Constitution and Rules of the Union Club and was illegal, null and void;
      
   7. A declaration that the purported appointments or the election of the Defendants as office bearers of the Union Club on or about 31 July 2012 is invalid, ineffective and of no force or effect;
      
   8. An order restraining the Defendants from holding themselves out to be the office bearers of the Union Club and for the Defendants together with their servants and/or agents to forthwith handover possession, custody, care and control of all property and assets of the Union Club at Kimberly Street, Suva including all books, papers, documents and records pertaining to financial, legal or management or otherwise pertaining to the affairs of the Union Club, to the Plaintiffs;
      
   9. An order that the Defendants, their servants, agents or associates be forthwith prohibited from entering the premises of the Union Club and from interfering in any way whatsoever with the Plaintiffs their servants or agents or authorized personnel from running and conducting the affairs of the Union Club;
      
   10. That the Defendants jointly and/or severally do within seven (7) days of the date of the order do prepare a full and detailed report pertaining to the management and finances of the Union Club for the period 7 June 2012 and to-date and have such report to be verified by an affidavit and filed in Court;
       
   11. That the Defendants do jointly and/or severally pay costs of this application on an indemnity basis;
       
   12. And for such further orders and/or relief as deemed incidental to the relief sought or as His Honourable court may deem and expedient.
       
2. Several applications and counter applications had been filed by both parties prior to the hearing of the amended originating summons and filed affidavits in support and in opposition to the respective applications. Both parties relied on the material deposed in all affidavits filed thus far for the hearing of the amended originating summons.
   
3. On behalf of the Plaintiffs affidavits of Vijay Raghwan sworn on 27 June 2012, 12 July 2012, 3 September 2012, 18 September 2012, 26 November 2012 filed on 29 June 2012, 13 July 2012, 3 September 2012, 18 September 2012 and 26 November 2012 respectively, were relied upon.
   
4. On behalf of the Defendants, the affidavit of Ilaitia Yalibau sworn on 21 August 2012, 9 October 2012 filed on 23 August 2012, 9 October 2012 respectively. In addition to the affidavit of Ilaitia Yalibau affidavit of Vijay Lal sworn on 8 February 2012 was also filed on 8 February 2012 respectively, were relied upon.
   
5. This matter was heard on 14 February 2013 and 24 May 2013, and both parties filed their submissions on 3 April 2013 and 13 May 2013 respectively.
   
6. On 14 February 2013, counsel for the Defendants in his Oral Submissions made on application that the instant actions should be converted to a Writ of Summons pursuant to order 28 rule 9 of the High Court Rules. Counsel for the Plaintiffs opposed the application of the Defendants.
   
7. Counsel for the Defendants made a further application by way of motion dated 8 February 2013 for discovery of documents listed in the motion on the premise that documents stated therein are important for determination of all issues raised in this proceedings.
   

The Plaintiffs opposed the application of the Defendants on the basis that the said application is no more than a speculative exercise to delay the determination of the proceedings and the documents listed in the motion are in the possession of the Defendants and also produced before the court.

8. This issues before this court for determination are as follows:
   

i] Should the instant originating summons be converted to a Writ of Summons?

ii] Should the application for discovery of documents listed in the motion be allowed?

iii] Are the Plaintiffs entitled to the reliefs as prayed for in the originating summons be granted, if the answers to the (i) and (ii) above are not in affirmative?

9. It is important at this stage to briefly state the chronology of events took place at the Union Club which led to the removal and suspension of Vijay Raghwan, the trustee and interim Administrator committee from the office of Union Club:
   

i] Union Club was formed in way back in 1945 in Suva for social interaction and the rules of the club were adapted in 1955.

ii] In the year 1994, Vijay Raghwan was appointed as a trustee of the club and the interim club administrators of the club were appointed in year 2009 at the special general meeting.

iii] At the emergency meeting held on 7 June 2012, the members attended agreed to suspend Vijay Raghwan and dissolve the interim Administrator committee. It was further decided at the meeting that Vijay Raghwan and other Plaintiffs are no longer office bearers of the Union Club and banned from attending Union Club pending investigation on alleged mismanagement of the affairs of the club.

iv] The Plaintiffs filed an application by way of motion seeking orders inter alia a reinstatement to the office of Union Club.

v] The Plaintiff also filed further application to restrain the advertising and holding the Annual General Meeting scheduled for 31 July 2012.

vi] The Defendants filed an application by way of a motion to restrain the Plaintiffs from interfering with the affairs of Union Club until the conclusion of originating summons.

vii] On, 19 October 2012, Court granted an interim injunction restraining the Plaintiffs from interfering with the affairs of Union Club until the determination of the originating summons of the Plaintiffs.

Application for conversion of originating summons to a Writ of Summons

10. Oder 28 Rule 9 states as follows:
    

"Where in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof."

11. The above rule should be read with order 5 Rule 4 which provides as follows:
    

"4(1) Except in the case of proceedings which by these rules or by or under any act are required to be begun by writ of originating summons or are required or authorized to be begun by petition, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.

(2) Proceedings:

(a) in which the sole or principal question at issue is, or in likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other documents, or some other question of law, or;

(b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appropriate to be begun by writ."

12. The position advanced by the Defendants is that the reliefs sought by the Plaintiff are confined not only to the emergency meeting held on 7 June 2012 but also a declaration that the Plaintiffs are the legitimate and lawful officer bearer of the Union Club which requires examination of witnesses to ascertain the correct position in a proceedings of a Writ of Summons. The Defendants in their submissions further stated that the appointment of Vijay Raghwan as a trustee for life was not in accordance with the rules of the club specially in term of rule 26 of the club and also does not entitled to hold the position of trustee due to the alleged mismanagement and abuse of powers.
    
13. The Defendants further categories the grievance of the members against the Plaintiff as follows:
    

"(a) No holding annual general meeting of the members for more than 2 ½ years;

(b) Abuse of Club funds for person enjoyment;

(c ) Failure I submitting the Audited Annual Financial Reports to the Commissioner Centrals office and members of the club;

(d) No accountability of the members income through rental income from Datt holdings Limited.

(e ) Trustee keeping most of the records and information of the Club to himself;

(f) Plaintiffs continuously interfering in the business of the Tenants; and;

(g) Due to interference from the Plaintiffs the members of the Club are withdrawing membership."

14. The main contention of the Defendants is that the court is unable to decide the issues and the declaratory reliefs sought without perusing the whole range of documents including minutes of the Union Club which mandates the conversion of present action to a Writ of Summons.
    
15. The Plaintiffs argue that there is no application or cross application by the Defendants or any other member or any interested party to challenge the appointment of interim administration in these proceedings and thereby not an issue of this proceedings. The Defendants further submitted that the rules expressly provide that the use of originating summons is appropriate in a situation where sole or principal questions at issue is or is likely to be one of the construction of an Act or of any instrument made under an Act or any deed, will contract or other document or some other question of law and that the principal question that is in the issue is the construction or interpretation of the constitution or the rules of the club.
    
16. Having considered the guidelines set out in the case of Reserve Bank of Fiji V Gallengner, Civil Appeal No. ABU 30 of 2005, 31 of 2005 and 32 of 2005, and the facts and circumstances deposed by both parties in their respective affidavits, I am of view that originating summons invoked by the Plaintiffs are appropriate for the jurisdiction of declaratory reliefs sought by the Plaintiffs and therefore in exercising of the discretion I conclude that reliefs sought are mainly on the interpretation and construction of Union Club rules. The main declaratory reliefs sought by the Plaintiff emanates from the legality of the emergency meeting held in June 2012 and removal and suspension of the trustee and dissolution of the interim committee.
    
17. The material facts in relation to the above are not disputed by either party and the court has to now apply the rules of the club to find whether the above resolutions and decisions are in accordance with the rules of the club. This court further re-iterates that examination of witnesses are not required and originating summons procedure would suffice to consider the reliefs sought.
    

Application for Discovery of Documents

18. The Defendants by their motion dated 8 February 2013, served on the Plaintiffs on 12 February 2013, made an application for discovery of documents listed in the said motion.
    
19. The hearing of the originating summons was listed on 14 February 2013. It reveals in the affidavits that emergency meeting was held on 7 June 2012, and decision was reached to suspend the Vijay Raghwan and dissolve administrator committee pending investigation.
    
20. The Defendants have not explained to court in their affidavits as to why they have waited almost eight months to peruse such documents to ascertain the alleged mismanagement.
    
21. It was revealed that complaint has been lodged at the Fiji Police against Vijay Raghwan and Fiji Police Force advised that the investigation against him regarding the misuse of funds has been closed for insufficient evidence.
    
22. In this backdrop, I now consider the High Court rules relating to the discovery of documents and the relevant authorities:
    

"Order for Discovery of Particular Documents (O.24,r.7)

7.-(1) Subject to rule 8, the Court may at anytime, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit sitting whether any document specified or described in the application or any class of documents so specific or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the documents, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

Discovery to be ordered only if necessary (O.24, r.8)

8. On the hearing of an application for an order under rule 3 or 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs."

23. The general principles on grant of order for discovery were considered by the in Singh v Minjecsk investment Corporation Ltd & Anor High Court Civil Action No. HBC 148 of 2006 at paragraph 18 to 26. The decision quoted Justice Byrne in Parvati Manilala Lallu Ranchod v. Sundar Lal Lallu Suva High Court Action No. HBC 488 of 1991 at page 3 of the judgment summarized the principles as follows:
    

"This text was applied by Menxies J in Mulley v Manfijold [1959] HCA 23; [1959] 103 CLR 341 at 345 where His Honour stated that discovery is a procedure directed towards a proper examination and determination of the issues between the parties as disclosed in the pleading and not towards assisting a party upon a fishing expedition. "Only a document which relates in some way to a matter in issue is discoverable but it is sufficient if it would or if it would lead to a train of enquiry would, either advance a parties own case or damage that of his adversary."

Halsbury's Laws of England 4th Edition at page 78 describes the documents which are capable of being discovered as follows:

"8.Documents required to be Disclosed.

The obligation of a party to make discovery necessarily involves that he must make a full and frank disclosure of all relevant documents which are or have been in possession, custody or power. Apart from any order limiting the scope of discovery of particular documents, or class of documents, or to particular issues, there are two general and essential conditions as to what documents are required to be disclosed, namely:

(i) They must be relevant, that is, they must relate to some matter in question in the action or other proceedings; and

(ii) They must be or have been in possession, in custody or power of the party required to make discovery."

Relevant Document is defined as [Halsbury Law of England (4th Edition)] at page 34]:

".... The matter in question in the action if it contains information which not which must either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train on enquiry which may have either of this consequences. Documents relate to matters in question in the action whether they are capable of being given in evidence or not, so long as they are likely to throw light on the case. The expression 'matter in question' means a question or issue in dispute I the action and not the thing about which the dispute arises."

The relevance of a document was discussed in the case of AB Annand (Christchurch) Limited v ANZ Limited [1997] 43 FLR 22 where Fatiaki J discussed that:

"Quite plainly in order that any document may be discoverable it must firstly, be shown" .... To relate to (some) matter in question in the cause..." In other words the document must be relevant to a question or issue in the proceedings in so far as the same may be deducted from the pleadings in the action......"

24. In view of the above rules and guidance, I am of view that the investigation against Vijay Raghwan has already concluded by the Fiji Police Force and the manner in which the application was made and the necessity of the documents required related to the matter in issue, it is not appropriate to permit the application of Defendants at this stage. It is further observed that the documents relevant for adjudication of the issues are already provided before the court and or in possession of the Defendants.
    

Application of the Rules of the Union Club to the Emergency Meeting held on 7 June 2012 and suspension of Vijay Raghwan from Trusteeship and dissolution of Administrator Committee.

25. Adoption of Rules

Clause 67 of Union Club Rules states as follows:

"The rules of the Union Club as adopted on 4 August 1945 are hereby repealed and replaced by these rules adopted this 28 Day of January 1955."

26. Rules of the club and or the Constitution of the club regulates and governs the affairs of the club. The rights and duties of the members of the club and procedures to be adopted in calling Annual General Meeting, Special General Meetings, powers of the trustee etc. has been clearly spelt out in the rules.
    
27. Any decision or move by the members should be made or taken strictly in compliance and adherence to the rules of the club.
    
28. It is undisputed and unchallenged that Vijay Raghwan was appointed in way back in 1994 as a Trustee and continued as a trustee until June 2012. It appears that all members since then accepted him as a trustee of the club. Although Defendants allege that Plaintiffs have failed to hold the Annual General Meeting in the last three years, there was no evidence whatsoever to establish that there was no Annual General Meetings held since 1994. It is apparent that his appointment as a trustee and function of the trustee has not been challenged in the past in compliance with the rules or any other law.
    
29. Nature of the appointment and the position of the trustee is as follows in accordance with Clause 26;
    

Clause 26 provides:

"The Trustees shall be elected at a Trustees general or a special general meeting, and shall continue in office until removed by death, resignation or otherwise."

30. Powers exercised by the trustee in relation to the properties of the club are as follows in accordance of clause 34(1) of the Union Club rules:
    

"The property of the Club, subject to the liabilities thereof, shall be vested in the Trustees upon trust for the members for the time being."

31. In view of the above two clauses, it is clear to this court that the nature of the position of the trustee. In clause 26 sets out the manner in which the trustee can be removed and limited to "death" registered or otherwise." The word otherwise has not been addressed anywhere in rules. However, a trustee of the trust can be removed other than the above grounds in terms of the law. Trustee Act provides as to how a trustee could be removed from the trusteeship on the proof of allegation of mismanagement of the trust and abuse of power and misconduct through the due process of the law.
    
32. The Defendant have not resorted to the remedies available in law for the removal of the trustee. The procedure adopted by some members to remove and suspend trustee is in violation of law and not in compliance of the rules of the club. This court is not hesitant to declare that the removal and suspension of Vijay Raghwan is unlawful, illegal and procedurally irregular in view of the aforementioned reasons.
    

Legality and the Validity of the Emergency Meeting Held on 7 June 2012

33. The procedure in calling for special general meeting and Annual General Meeting is laid down in rule 30, 31 and 40 to 46 and the procedure in complaining against members is laid down in rule 24 of the club.
    
34. Rule 45 states as follows:
    

"The committee may at any time call a special general meeting on giving ten days notice; such notice shall specify the object of the meeting and be posted in the club house and mailed or delivered to each member. No business other than that mentioned in the notice shall be transacted at such meeting. The committee shall also in like manner call a special general meeting upon receiving a written requisition from not less than 20 per cent of the ordinary members of the club."

35. Upon perusal of the documents annexed to the affidavit of Ilaitia Yalibau sworn on 21 August 2012 filed on 23 August 2012, clearly demonstrates that the petition was dated 5 June 2012 and the notice of the special general meeting was dated 24 May 2012 for the meeting to be held on 7 June 2012. Further in the affidavit of Ilaitia Yalibau deposed that the meeting was on 7 June 2012 at 10:00am whereas the minutes disclose that meeting was held at 2.00pm on 7 June 2012.
    
36. The manner in which the emergency meeting held on 7 June 2012 is clearly not in compliance of the rule 45 of the rules of Union Club. Further, the police report prepared by Ilaitia Yalibau based on the petition was dated 2 June 2012. This too clearly demonstrate that the emergency meeting on 7 June 2012 cannot be under any circumstances consider as valid, lawful and legal.
    
37. In the outcome, it follows that the previous trustee, Vijay Raghwan's position remain intact and he is the trustee of the club. It also follows that the interim Administrator committee is entitled to remain in their respective positions. This judgment in effect is to have the status quo remains as it was before the meeting held on June 2012 and the trustee and the committee members still hold the respective positions.
    
38. It is important at this stage to suggest that Annual General Meeting of the Union Club, in terms of rules should be held every year in or around November and Trustee reinstated and the interim Administrator committee should comply with rules of the club and hold the Annual General Meeting as per the rules. This enables the entire membership to decide all matter relating to the club and the best possible action in relation to the allegations against the trustee and or the members of the club for the best interest of the club.
    
39. It is also important to state that this judgment in no means will prevent or a bar, any member or group of members taking any action against the trustee or interim Administrator committee strictly in accordance with the rules and or the Trustee Act, or any other law for alleged mismanagement or abuse of power through the due process of the law.
    

Orders

In the outcome, I make only the following declarations:

1. That the purported Emergency General Meeting of the Union Club held on 7 June 2012, as called or convened by the Defendants, was contrary to the Constitution and Rules of the Union Club and was illegal, null and void.
   
2. That the purported appointment of the Defendants and the Executive Committee is invalid, ineffective and of no force or effect.
   
3. That the purported suspension of the first named Plaintiff as the Trustee and the purported dissolution of the Plaintiffs as Administrators, is in all the circumstances, contrary to the Constitution and Rules of the Union Club, and in breach of Rules of Natural Justice and therefore, illegal, unlawful, null and void.
   
4. That the first named Plaintiff remains the Trustee of the Union Club and together with the other named Plaintiffs, continue as the lawful Administrators of the Union Club.
   
5. Interim injunction granted by this court on 19 October 2012 is dissolved forthwith.
   
6. Application of the Defendants pursuant to order 28 rule 9 is declined.
   
7. Motion of the Defendants dated 8 February 2013, for discovery of documents is declined.
   
8. Each party to bear their own costs.
   

Susantha N. Balapatabendi
JUDGE