Saheem v Shah [2014] FJHC 782; HBC57.2007 (28 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 57 OF 2007

BETWEEN:

MOHAMMED SAHEEM son of Mohammed Jaffar of Tabucola Labasa, Cultivator, and

: MOHAMMED SALIM son of Fakir Mohammed of Labasa,
PLAINTIFFS

AND:

MEHRAB SHAH son of Jikar Mohammed of Wailevu Labasa Cultivator, MOHAMMED JANIF son of Noor Mohammed of Siberia Labasa Fisherman for and on behalf of themselves and every other elected official purporting to act on behalf of the MACUATA MUSLIM LEAGUE as elected officers.
1ST DEFENDANT

AND:

HAJI ABDUL AKIF ALI son of Abdul Ali and Haji TAIYAB
HUSSAIN son of Mohammed Hussain of Labasa Businessmen for and on behalf of themselves and all other members of the Executive Committee purporting act on behalf of the MACUATA MUSLIM LEAGUE.
2ND DEFENDANT

AND:

MOHAMMED ISMAIL son of Samsher Khan BAHADUR
ALI son of Jamalu Dean ABDUL KAREEM son of Jaman AZIZ BEGG son of Jahoor Begg all of Labasa as purported Trustees of the MACUATA MUSLIM LEAGUE.
3RD DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI
4TH DEFENDANT

Appearances: Mr. Ram of Gibson & Co for the plaintiffs
Mr. Sen of Magbool & Co for the Defendants.

RULING

Introduction

On the 11 July 2014 the Court sought the Counsels views as to whether this matter should not be struck out given that certain matters prayed for in the summons of 12 November 2007 had already taken place which made the matters prayed for a mere academic exercise. Although both parties agreed that the matter is completed the Defendants in particular are seeking costs against the Plaintiff's on an indemnity basis. Because the issue of cost is contested in that neither party was successful in the litigation, counsels were of the view that the Court should rule on whether costs should be awarded in the circumstances. This is the ruling on that question, however to better understand the issues a brief outline of the background needs to be appraised.

Background

At the Southern End of Labasa Town is a Muslim Mosque where Fijians of the Islamic faith worship. This place of worship was established in 1928 and was known as the Anjuman Islam but in 1932 the name was changed to Macuata Muslim League (hereinafter referred to as MML). Under the umbrella of the MML are fourteen (14) smaller Mosques, twenty (20) Markazs' (small places of prayer and teaching), nine (9) schools and four (4) other sports and recreational organisations. The Plaintiffs are members of the MML and have been for over thirty (30) years. The MML had its last annual general meeting in 1999 and the defendants were elected officials and executive committees. At this annual general meeting or sometimes after, the defendants were able to (by consensus presumably) form a parallel body under the style of Macuata Muslim League Fiji (hereinafter referred to as MMLF) with its own constitution. This was adopted on the 18 April 1999. With the two institutions existing side by side without a clear break from the original MML the exercise of powers in the administration of the affairs of the Mosque became a concern.

The first indication of the differing of views and identities could be seen from the first relief sought by the plaintiffs. The relief was for the Court to declare that the two organisations are different and had separate constitutions. The rest of the reliefs sought relates to the validity of the differing roles of the parties within these two organisations. Due to the sometimes concurrent membership of these two organisations by the faithful of the Mosque and the issue of whether these two organisations are in fact one organisation, disputes often arose and it became unclear whether a member of one organisation was also a member of the other. This was further exasperated by two inherent facts and these are; that the title deed to the Mosque was owned by the trustees of one group and that there were no election or annual general meeting of the League since 1999. The latter situation in particular appeared to give rise to a lackadaisical approach to the financial affairs of the organisation and what appears to be a form of control of the organisation by unelected executives. It took some six years from the annual general meeting of 1999 before a memorial of trustees was finally registered. It is within these scenarios that this action was brought.

The Action

The Plaintiffs by its originating summons dated 12 November 2007 sought the following reliefs from the High Court which in essence questions the validity of the Macuata Muslim League as an entity distinct from Macuata Muslim League Fiji. Other claims flow from the above distinction and so did certain declarations which question the validity of persons or executives who hold executive positions within the Macuata Muslim League. As a finality they sought a claim that the executive positions are vacant and therefore an annual general election should be held.

The defendant in response to the plaintiff's claim filed an extensive affidavit consisting of some ninety paragraphs deposed by one of the third defendants (the trustees) which deposed in essence that the Macuata Muslim league is the same entity as the Macuata Muslim League Fiji and therefore those who held office are valid members of both organisations.

What is clear in my view is that the small matter of the change of name of the organisation has become disputed because of the uncertainty in the registration of the entity.

The defendants initially considered that the plaintiffs had no cause of action and made an application to have the matter struck out. This was denied with costs. The Defendant on the failure of its application to strike out filed a further summons on the 7 February 2009 seeking an order that the proceedings be continued as if the action had started by writ. On the 1 July 2009 the plaintiff was ordered to deliver a statement of claim with a writ no later than the 24 August 2009. This order was never followed by the plaintiff. Notwithstanding this court order the plaintiff by motion dated 7 July 2010 chose instead to seek the Court's indulgence to make an order that an annual general meeting to be called by both bodies together and that such a meeting be chaired by the 4th Defendant, the Attorney General of Fiji. It appears that the reason for the non-filing or deliverance of a statement of claim by the plaintiff is that their Counsel Mr. Ram senior had gone to Australia for medical treatment and was unable to attend to the matter. This became the position right until the end of the matter. An unsatisfactory state of affairs, to say the least.

Various attempts at mediation was made, the first was by the prior Master Udit and later by myself but unfortunately the only party who appeared in any capacity were the plaintiffs. The defendants changed depending on who was in control at the mosque and this made mediation difficult because an agreement must be signed by the parties to the proceedings when a consensus is reached. This did not become an option as a result.

The application by the plaintiff for a general election was opposed for the very obvious reason that the plaintiff had ignored the Courts order to file a statement of claim. It was further opposed because the defendants counsel had somehow given an undertaking that no election be held.

Both parties in my view acknowledge that the only way this matter could be resolved was for an annual general election to be held. What made the parties disagree is the growing faction within an organisation held together by a belief but separated by the need to control, the control of organisations whose constitutional basis they now question.

The application for an order for an election was dismissed by the Court on the 19 September 2012 as an abuse of process and costs of $1000:00 awarded against the plaintiff. It was an abuse of process because the plaintiff ignored the prior order to institute the action by writ but chose instead to divert the action towards what it prayed for in its originating summons.

Nothing moved after this ruling, in fact nothing moved from the date of application on 7 July 2010 until the decision on the Summons on the 19 September 2012. It is interesting to note that on the 25 February 2011 Justice Hettiarachchi made the following orders after hearing from both Counsels; the defendant's counsel to obtain instructions to agree to a general election with liberty to apply for costs separately; secondly if agreed the election to be in accordance with the constitution and thirdly parties were to file submissions and if the parties agree to an election then no need for submissions and the matter to be discontinued. What Justice Hettiarachchi did was to try and resolve the matter amicably between the parties. Both parties preferred to hear the application this is understandable from the defendant's point of view as the plaintiff was now trying to dictate terms when it had not complied with the Courts orders. In my view if both parties we willing to resolve the matter an agreement to have a general election would have resolved the matter and would not have prolonged it. As will be seen later a forced election resolved the matter. Why did the Counsels give their undertaking not to call an election? This undertaking in the light of the later resolution of the dispute only delayed the matter.

The Master was of the view that the matter was completed when it was called on the 22 October 2012, this was not so. The plaintiff's application to call an election failed with costs as it was an abuse of process (it failed to follow prior Court Order and tried to circumvent the proceedings). The matter thereafter did not move as the plaintiff had not complied with the Court orders.

The defendant then filed a summons pursuant to Order 62 rule 3 for costs to be awarded in its favour and that the Master is to tax the costs. Why this application was made is unclear since if the Master was wrong in that the matter has not been completed the parties themselves should know and neither of them had informed the court of the correct status. The defendant ought to have made an application to strike out the matter when the plaintiff failed to issue a writ after it was ordered to by the Court on the 1st July 2009 this it did not do. The defendant's application to order the plaintiff to change the proceedings into a writ action in view of the initial proceedings could not in my view resolve anything all it achieved was prolong the matter. But the Court ordered it and we are left with the order and all that the plaintiff could do was follow the order or find ways of resolving the matter. It did neither but chose rather to commit the court to order an election as prayed for in its initial summons.

On the 17 January 2014 the Court was informed by Counsel for the plaintiff that he had received instructions that the parties have written directly to the Attorney General's Office and that the Attorney General has endorsed that an Annual General Meeting and election be held and that this will be done in April. When the matter was further called on the 28 February 2014 the Court was informed by the Attorney General's Office that they had spoken to the Defendants. Counsel for the defendants indicated that there will be an AGM conducted but that they wanted costs. The application was opposed.

The Costs Determination

The defendant made this application for costs pursuant to Order 62 rule 3, this order states:-

When costs to follow the event (O.62, r.3)

3.-(1) Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.

(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

(3) The costs of and occasioned by any amendment made without leave in the writ of summons or any pleading shall be borne by the party making the amendment, unless the Court otherwise orders.

(4) The costs of and occasioned by any application to extend the time fixed by these Rules, or any direction or order thereunder, for serving or filing any document or doing any other act (including the costs of any order made on the application) shall be borne by the party making the application, unless the Court otherwise orders.

(5) If a party on whom a notice to admit facts is served under Order 27, rule 2, refuses or neglects to admit the facts within 7 days after the service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts shall be paid by him, unless the Court otherwise orders.

The first proviso under this order is that no party shall be entitled to recover any costs of or incidental to any proceedings without an order of the court. This power of the court is discretionary and if it sees fit to order costs it shall order the costs to follow the event. This is so except when it appears to the Court that the circumstances of the case some other order shall be in respect of all or some part of the costs. It follows that the costs of any amendment made without leave should be borne by the party making the amendment. This also applies where application to extend time fixed by the rules or any direction shall be borne by the party making the application.

It is clear from the above that if the Court is to order costs it shall order costs to follow the event unless circumstances of the case dictate otherwise. The event that should be followed is usually to the successful litigant. In my view there is no successful litigant both parties eventually followed the directions from the 4th Defendant to conduct the AGM and ensuing election. Both parties at some point during the litigation undertook not to have an election, the defendants in particular knew that no election had been held since 1999 and the organisation needed an election to quell uncertainty within the organisation.

Conclusion

In conclusion I am of the view given the circumstances surrounding the matter that both parties are to bear their own costs. This is more so when the event which resolved the matter, that is the AGM was instigated by the 4th Defendant and which, as the Court was informed, resolved the matter. The Court in the exercise of its discretion under Order 62 rule 3 (1) and (2) has therefore come to the conclusion that there was no event to allow an order for costs to follow and that both parties were equally responsible for prolonging the matter.

H ROBINSON
Master, Labasa High Court

28 October 2014.