Madhavan v Kunanitu [2015] FJHC 297; HBC194.2012 (26 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action HBC 194 of 2012

BETWEEN:

PHILIP SATYANAND MADHAVAN of Suva, PITA CILI of Nausori, VILIAME VAKASAUSAU of Suva and PRITAM SINGH of Lautoka and All Ministers of Religion and TRUSTEES for the GENERAL CONFERENCE OF THE ASSEMBLIES OF GOD OF FIJI
1st – 4th Applicants

THE GENERAL CONFERENCE OF THE ASSEMBLIES OF GOD OF FIJI, a Religious Body registered pursuant to the Religious Bodies Registration Act and having its principle place of business at 85 Robertson Road, Suva.
5th Applicant

AND:

AISAKE KUNANITU of Samabula, Suva, Religious Minister and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI
1st Respondent

WILLIAM GREEN KUNANITU of Lot 19 Tokai, Matana Street, Nakasi, Religious Minister and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI
2nd Respondent

RUSIATE TABUTABU of Lot 54 Pilling Road, Nasinu, Auditor and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI
3rd Respondent

NAIBUKA MATAINAVORA of PO Box 13069, Suva, Retired Executive Officer and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI
4th Respondent

EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI a Religious Body registered pursuant to the Religious Bodies Registration Act and having its principle place of business at Lot 36 and 37, Joyce Road, Laqere.
5th Respondent

THE REGISTRAR OF TITLES a statutory body set up by law at Ground Floor, Civil Towers, Victoria Parade, Suva.
6th Respondent

Appearance : Mr Fa I of Fa & Company for the Applicants
Mr Naco A of Naco Chambers for the 1st to 5th Respondents
Ms Ali S of the Attorney General's Chambers for the 6th Respondent

Date of Judgment : 26th March 2015

JUDGMENT

[1] The 1st to 5th Applicants issued Writ of Summons on 13 July 2012 and sought Orders as detailed in the Statement of Claim.

[2] On 13 July 2013, Ex-parte Notice of Motion was filed with the Affidavit in Support sworn by Rev. Pita Cili being the General Superintendent and one of the treasurers of the 5th Applicant. He had stated that 1st to 4th Applicants authorized him to swear the Affidavit in Support.

[3] The Applicants by their Ex-parte Notice of Motion sought the following reliefs:

(a) AN INJUNCTION restraining the 1st-5th Respondents whether by themselves, their servants or agents or otherwise from using the name "Assemblies of God of Fiji" in the name of the 5th Respondent;

(b) AN INJUNCTION restraining the 1st – 5th Respondents whether by themselves, their servants or agents or otherwise from selling, transferring, assigning, charging, mortgaging, encumbering or otherwise alienating or otherwise dealing or disposing of any of the assets including any real property and in particular all those pieces and parcels of land described as Certificate of Title No. CT 13441 and Certificate of Title No. CT 13442;

(c) AN INJUNCTION restraining the 6th Respondent by themselves, their servants, agents otherwise and howsoever from registering into the Registrar of Titles, any transfer, assignment, charge, mortgage, encumbrance onto those parcels of land described as Certificate of Title No CT13441 and Certificate of Title No. CT13442;

(d) THAT in the event that the 6th Respondent by themselves, their servants, agents otherwise and howsoever have registered onto the Registrar of Titles any transfer, assignment, charge, mortgage, encumbrance onto those parcels of land described as Certificate of Title No. CT1341 and Certificate of Title No. CT13442, then such decision be Stayed forthwith until the determination of this action;

(e) SUCH other Orders as this Honorable Court may consider appropriate.

(f) COSTS of this action.

[4] The said Ex-parte Notice of Motion was taken up by this Court on 24th of September 2012, and granted the interim injunction orders (for a limited period) as prayed for and directions were given.

[5] When the matter was taken up on 3rd October 2012, Mr Naco A. appeared for the 1st to 5th Respondents/Defendants Ms Ali S. appeared for the 6th Respondent Defendant and the directions were given to file the Affidavits in Response, Affidavit in Reply and the said Interim Injunctive Orders were extended until the next hearing date which was fixed for 23 October 2013.

[6] When the matter was taken up for hearing on 23 October 2013, the Counsel appearing for the 1st to 5th Respondents stated he could not file the Affidavit in Opposition and sought further time. Ms Ali S who appeared for the 6th Respondent stated since there is no claim against her client she refrains from filing an affidavit. With consent of the parties the following directions were made:

(1) Hearing was vacated.

(2) The 1st to 5th Respondents to pay wasted hearing fee of $250.00 to the registry, costs of $250.00 to the 1st to 5th Plaintiffs and cost of $250.00 to the 6th Respondent.

(3) Subject to above orders the 1st to 5th Respondents were directed to file and serve the Affidavit in Opposition before 13th November 2012 and (if any) reply to file within 7 days thereafter.

(4) The Interim Injunctive Orders were extended up to the next hearing date i.e. 28 November 2012.

[7] The matter was taken up for hearing on 28 November 2012 and the counsel for the Applicants made an application to dispose the matter by way of written submissions and the Respondents' counsel agreed. Accordingly, directions were given to file submissions and the interim injunctive orders were extended up to the date of this order.

[8] The issue to be decided in this case is as to whether the injunctive orders made by this court on Ex-parte on the 24 September 2014 should be continued or not. In such situation, the Applicants should justify the continuation of the orders made.

[9] Analysis, Conclusions and Determination

9.1 The 5th Respondent is Evergreen Christian Centre of the Assemblies of God of Fiji is a Religious Body registered pursuant to Religious Bodies Registration Act Cap 68 (PC 4 annexed to the Affidavit in Support). The Applicants stated that the 5th Respondent was an affiliate and local church under the Central Eastern Division Council of the 5th Applicant, the General Conference of Assemblies of God. The Applicant had annexed the copy of the Memorial of the names of the Trustees registered under Religious Bodies Registration Act Cap 68 (Annexure PC1 – paragraph 7 of the Affidavit in Support). The 1st Respondent who filed the Affidavit in Response stated he has no comments on this Registration. In my view the 1st Respondent had not made available any document to this court to disprove the Applicants position and as such, I conclude the 5th Applicant is a registered religious body.

9.2 The 2nd named Applicant had annexed the constitution of the 5th Applicant marked 'PC2' and the Respondents stated that they do not wish to comment and as unchallenged the constitution and I conclude that 'PC2' is the constitution of the 5th Applicant.

9.3 The Applicant stated the 1st Respondent was at all relevant times ordained minister of one of the local churches of the 5th Applicant and he is being sued in his personal capacity. The 1st Respondent had admitted that he was an ordained minister of the 5th Applicant. Further the 1st Respondent had stated 5th Applicant is an affiliated in fellowship with the World Body of the Assemblies of God and not governed by the World body of the Assemblies of God.

9.4 The Applicant stated that 5th Respondent is a religious body registered pursuant to the Religious Bodies Act Cap 68 annexed 'PC4', the memorial of the names of the trustees of the 5th Respondent. This was denied by the 1st Respondent and produced document marked 'A' and stated the newly registered trustees are the 1st Respondent and 3 others. I observe that Kuini Tuidriva and Jiosefati Vakaloloma were named in Annexure 'A' in place of Rusi Tabutabu and Naibuka Matainavora stated in 'PC4'. In the Affidavit in Reply paragraph 6 stated that the Applicants were unaware of the newly registered trustees.

9.5 The 1st – 5th Respondents had admitted, 5th Respondent is an institution and its actions are made pursuant to the decisions of 1st – 4th Respondents.

9.6 The 1st – 5th Respondents admitted that 6th Respondent is a body set up by law.

9.7 The 1st – 5th Respondents admitted that Ever Green Christian Centre Assemblies of God was an affiliate and a local church under the Central Eastern Division Council of the 5th Applicant.

The General Secretary of the Assemblies of God in Fiji by letter dated 7th June 2006 informed the 1st Respondent that the Credentials Committee of the Assemblies of God of Fiji (5th Applicant) was suspending his credentials as an ordained minister of the 5th Applicant and his position as a Senior Pastor of the 5th Applicant, (Annexure 'PC5' to the Affidavit in Support). There were several charges made against the 1st Respondent in the said letter, under the bylaws of the Assemblies of God of Fiji. By the letter dated 1st September 2011 (PC6), the Assemblies of God of Fiji terminated 1st Respondent's credentials as an ordained minister of the Assemblies of God of Fiji (5th Applicant). This decision was taken at the Executive Committee Meeting held on 4 August 2011.

9.8 On 25th of September 2011, the 3 resolutions were adopted by the 1st Respondent and his followers (PC7):

(1) To sever ties with the 5th Applicant, General Conference of Assemblies of God of Fiji and to run under its registered name of Evergreen Christian Centre Assemblies of God of Fiji (5th Respondent).

(2) To establish the own church of the 5th Respondent.

(3) To take steps to transfer two (2) church properties Lot 36 CT 1441 and Lot 37 CT 1442 from the Trustees of the 5th Applicant to the Trustees of the 5th Respondent on the basis that the said two properties belonged to their congregation and not to the Trustees of the 5th Applicant.

9.9 By the letter dated 2 November 2011 (PC8) the Secretary of the 5th Applicant informed the 1st Respondent inter-alia that the name "Assemblies of God" could not be used by him and his followers and the church property occupied by them is held under the trusteeship of the 5th Applicant and the 1st Respondent and his followers were given time until end of 2011 and further informed legal redress will be sought in maintaining the church property.

9.10 By the Reply dated 30 December 2011 (PC9) the 1st Respondent informed the 5th Applicant that they would not change their original resolutions (PC7) and the General Secretary to the 5th Applicant replied by the letter dated 5 January 2012 advised that the 1st Respondent's matter will now be referred to the lawyers.

9.11 I further note by the letter marked PC9 and by the affidavit of the 1st Respondent had disputed the title to the church property.

[10] Now I consider merits in this case for continuation of the Interim Injunction Orders.

(a) As to whether there are serious issues to be tried:

(i) The Applicants/Plaintiffs in its Statement of Claim stated by using the name Assemblies of God by the 1st to 5th Respondents/Defendants amounts to passing off the reputation of the 5th Applicant/Plaintiff to the 1st to 5th Respondents/Defendants. There is no dispute with regard to the fact the 1st Respondent functioned as the Senior Pastor of the 5th Applicant/Plaintiff until 2011 and he came into the occupation of the church property with the leave and license of the 5th Applicant/Plaintiff in pursuant to the appointment as the Senior Pastor. The sequence of events was submitted by the Plaintiffs counsel after the 1st Respondent was appointed as the senior pastor to the church at Lot 36 and 37 Joyse Road, Laqere were considered by me. It is established that the 1st Respondent's conduct by using the name of the 5th Applicant/Plaintiff 'Assemblies of God of Fiji' was for the benefit and advantage of the 1st – 5th Respondents. This is caught by law of passing off which prevents a person or organization from misrepresenting another's goods and services as that another or has a connection with the goods and services of another when in fact it is not true.

Although, Law of Passing off generally applies for the business organizations, its application does not limited to the business organizations and it can be extended to other organizations like religious organizations. In this case, it is inevitable to apply the law of passing off since the 1st Respondent/Defendant was working as the Senior Pastor to the 5th Applicant/Plaintiff. I find enough material and admissions by the 1st Respondent to establish he was misrepresenting the name of Assemblies of God of Fiji to his advantage.

In the case of Holy Apostolic and Catholic of East and Others vs. Attorney General (New South Wales) on the relation of Elisha and Others (1989) 18 NSWLR 291 at 292 was cited in the care of Sukanabulisau vs. Karavaki [2010] FJHC 269 which states:

"As a matter of general practice, I cannot see why a religious organization should not have the same protection as to the goodwill in its name as is afforded by the law to commercial organizations. Surely whilst religious organizations may not have ordinary commercial goodwill, they have something closely analogous thereto in that their reputation will be damaged by people falsely ascribing as an adjunct to them the organization which is holding itself out by a deceptively similar name".

I conclude, the above principle prima facie applies in this case. In the same case of Sukanabulisau vs. Karavaki, it was cited statement made in case of Purcell vs. Summer and Others 145 F2d 979 (1944) at page 987:

"Men have the right to worship God according to the dictates of conscience; but they have no right doing so to make use of a name which will enable them to appropriate the good will which has been built by an organization which they are no longer connected".

It is the Applicants/Plaintiffs contention that the 5th Applicant has presence in Fiji since 1926 which was officially established and registered on 21 April 1959. The 1st – 5th Respondents admitted that the 5th Applicant/Plaintiff is affiliated to the world body of the Assemblies of God. PC3 shows under the Executive Committee under various divisions, local churches are established. I find the use of the name "Assemblies of God of Fiji" by the Respondents and their followers will have the effect of deceiving people in to believing that the donations made to the 5th Respondent are made to the 5th Applicant/Plaintiff and 5th Respondent is connected to it. I conclude this amounts to passing off the 5th Plaintiffs reputation to the 5th Respondent and his followers which result interference with good will acquired by the 5th Applicant/Plaintiff over 60 years of existence in Fiji as a registered body. In the circumstances there are serious issues to be tried at a proper trial and the continuation of the interim injunction orders is justified.

(ii) The Applicants/Plaintiffs have annexed CT13441 and CT13442 and in terms of memorial those two properties are in the name of the Trustees for the Applicants/Plaintiffs. The allegation is that the 1st – 5th Respondents and their followers are in the possession of the said property. The legality of the occupation by the Respondents has to be decided at a proper trial; as such status quo of the property has to be maintained until final determination of this matter. In the said circumstance, the Interim Injunction Orders issued by this court are justified and should remain in force until final determination of this case, I determine.

This determination in line with the statement made by the Fiji Court of Appeal in the case of Rev. Sairusi Kamanalagi Soqeta and Others vs. Rev. Paula Tikoinakau and Others Civil Appeal No. 21 of 1993 at page 10:

"We have not found it necessary to examine in detail the constitution and bylaws of the Assemblies of God of Fiji. It need only be said that they give to the Plaintiffs adequate power to "hire and fire" their pastors for good cause as they see fit. Further custodians of all the church property belonging to and held in the name of Assemblies of God of Fiji, they have duty to deal with it as may be necessary for the propagation of its work".

The above statement gives wider powers to the 1st to 5th Applicants/Plaintiffs to preserve the properties owned and/or in their custody and their rights should be safeguarded by the court of law; until the proper trial being held. This further justifies the continuation of the interim injunction orders.

(iii) It is also noted the 1st – 5th Respondents having filed the Notice to Defend failed to file the Statement of Defence to date. There are several issues to be addressed in this matter which cannot be compensated with the damages. It is a matter to be decided on damage caused to the 5th Applicant/Plaintiff's reputation and goodwill by the 1st – 5th Respondents/Defendants actions and conduct by using the name "Assemblies of God of Fiji". If the interim injunction orders are not extended until the proper trial being taken up there will be irreparable damages will cause to the 5th Respondent and damages will not be an adequate remedy. As such I determine to continue with the interim injunction orders until final determination of this case.

Considering all the evidence before me the balance of convenience lies with the Applicants. I am satisfied with the undertaking as to damages given by the Applicants in the affidavit dated 18 June 2012.

[11] Orders of the Court:

(a) The interim injunction orders granted on 24 September 2012 which are presently inforce shall continue until final determination of this case.

(b) Costs in this matter is costs in the cause.

(c) The Applicants/Plaintiffs to take steps to fix this matter for Trial within four(4) months from the date of this Judgment.

Delivered at Suva this 26th Day of March 2015.

............................
C. KOTIGALAGE
JUDGE