Goundar v Bhan [2015] FJHC 405; Civil Action 264.2013 (2 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 264 of 2013

BETWEEN :

PERMAL GOUNDAR and MARK FROST
of 72 Brown Street, Toorak, Suva and Korotogo, Sigatoka respectively as Trustees of the Sigatoka Club

Plaintiffs

AND :

KRISHNA RATTAN BHAN
of Sigatoka Town as the President of Sigatoka Club
1st Defendant

AND :

REGISTRAR OF TITLES of Suva

2nd Defendant

Appearance : Mr Sharma N, Counsel of Neel Shivam Lawyers for the Plaintiffs

Mr Nandan S, Counsel of Reddy & Nandan Lawyers for the 1st Defendant
Ms Sami R, Legal Office of AG's Chambers for the 2nd Defendant

Date of Judgment : 2nd June 2015

JUDGMENT

[1] The Plaintiffs filed originating summons on 13 September 2013 and made an Application Ex-parte on certain orders against the 1st and 2nd Defendants.

[2] Having taken up the matter by this court on 17 September 2013, the orders sought in the paragraph 1 of the ex-parte summons to be in force until 7 October 2013.

[3] On 4th of October 2013, the Plaintiffs filed inter-parte summons and made an application to join 5 new Defendants to this action. This matter was not taken up for hearing since the Defendants filed summons dated 21 October 2013 to strike out the action on the grounds:

(a) that the matter herein has been instituted in the wrong court;

(b) that the matter should not have been instituted in the expedited form of the Originating Summons;

(c) that it is an abuse of the process of the court.

[4] The said summons was taken up for hearing on 17 March 2014 and the counsels made submissions and the Affidavits and documents filed in this case was taken into consideration. The following Affidavits were filed in this case:

(1) Affidavit of Permal Goundar the 1st named Plaintiff (1P) filed on 13/9/2013.

(2) The Supplementary Affidavit by 1P filed on 4/10/2013.

(3) The Affidavit in Support of joinder of parties by 1P filed on 4/10/2013.

(4) Affidavit in Opposition filed by the 1st Defendant on 22/3/2014.

(5) Affidavit in Reply filed by the 2nd Defendant on 21 October 2013.

(6) The Affidavit in Reply filed by 1P on 11 March 2014.

(7) The Supplementary Affidavit filed by the 2nd Defendant on 11 December 2013.

[5] PRELIMINARY ISSUES

5.1 There are two preliminary issues raised by the 1st Defendant in this matter and firstly I deal with same:

(a) the matter being filed in the wrong court;

(b) the matter should not have been instituted in the expedited form of the originating summons;

(c) there is an abuse of the process of the court.

5.2 The Order 2 of the High Court Rules which reads:

"1. – (1) Where, in beginning or purporting to being any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

........

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.

Application to set aside for irregularity (O.2, r.2)

2. – (1) An application to set aside for irregularity any proceedings any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.

5.3 In terms of the above rule, the originating summons and the place of lodgment does not nullify the proceedings, it is curable irregularity.

5.4 The 1st Defendant submitted that the Plaintiffs have failed to comply with Order 2 Rule 2 in that whilst alleging irregularity. However, the 1st Defendant has failed to file any summons or motion to set aside this application for irregularity. I agree with the Plaintiffs that this is a waiver of their right to objection on the issue of the form of summons and place of institution.

5.5 I too agree that the Plaintiff filed this action applying for urgent injunctive relief and if it was not filed under the expedited manner the substantive relief would have defeated.

5.6 The matter before the court should not be dismissed unless serious prejudice caused to the other party or that there is a serious breach of rules by the other party or the intention is deceptive and that there was an abuse of process, which I am dealing with in the second part of the judgment. If not there is no justification for the court to decide on the matters to be dismissed on only technical grounds. All cases the court takes the view that matters should be decided on merits, unless the breach is on a mandatory provision or considering the prejudice caused by such default.

5.7 Accordingly, the preliminary issues are dismissed and now I deal with the substantive application.

[6] CONCLUSION AND DETERMINATION

6.1 Both counsel made submission at the hearing with regard to the reliefs claimed by the Plaintiff.

[7] The allegation raised by the Plaintiff is Article 55 of the Sigatoka Club constitution was breached by the Defendant. Before making the substantive matter on perusal of the Affidavits, I find there is a serious allegation that the Plaintiffs made false representations to the court which I will deal as a preliminary issue.

7.1 The 1st named Plaintiff (1NP) and the 2nd named Plaintiff (2NP) were appointed after an advertisement in the Fiji Times on 13/07/07. There were 5 responses and the 1NP and 2NP were appointed as Trustees. They were appointed at a Special General Meeting held on 5 August 2007, (PG2). The Trustees were appointed at the Special General Meeting by taking the votes of the members present (PG1). It is important to note that these appointments were made at the "Special General Meeting". If the appointment is made at a Special General Meeting similarly removal of the Trustees can also be done at a Special General Meeting unless the procedure is inconsistent with the constitution, I conclude.

7.2 The 1st Defendant was appointed as the President of the Committee at the Annual General Meeting held on 14 July 2013 with the approval of the trustees. The Plaintiffs stated in the Affidavit that the 1st Defendant was appointed as the President of the Sigatoka Club by the trustees in terms of the Constitution Amendment of 1986 (PG4). However, the 1st Defendant state there was no effect of the amendment in 1986 and at the time of the 1st Defendant was appointed as the President the said amendment in 1986 was not in force. In careful consideration of PG3, I agree with 1st Defendant that the said amendment was for a limited period of time until the loan obtained from the Bank is repaid.

7.3 The 1st Defendant had annexed the copy of the SGM held on 11th September 2011 marked as KBB1. It is abundantly clear that the 2nd named Plaintiff's had deliberately suppressed the fact that the Trustees powers were taken out at the meeting held on 11 September 2011. This was a Special General Meeting chaired by the mediator Miss Vasantika Patel in terms of the High Court Case No. 241 of 2010. There were two proposals for the amendment of the Constitution according to the minutes of the said Special General Meeting:

"1. The Club Constitution of 1958 was amended in 2002 proposed by Mr Graeme Horner. This did not have the 1986 amendment giving Trustees power to elect the committee.

2. The 14 December 2008 Constitution proposed by the Trustees and Management of the Club".

7.4 It further states i.e.

"Mr Horner proposed the 1958 Constitution and Mr Premlal Goundar proposed the 2008 Constitution for adoption"

When the vote was taken out of the 87 members present only 11 members voted in favour of the 2008 Constitution and all others voted in favour of the 1958 Constitution without the 1986 amendment. At the said meeting it was stated by the mediator, election of the office bearers should be done in accordance with the Clause 36 of the Constitution. The Defendants contention was in paragraph 7 of the Affidavit in Reply filed on 11 March 2014 and that the 1958 Constitution is adopted. The Plaintiffs participated at the meeting on 11 September 2011 according to the minutes of the meeting. The Plaintiffs admit that there was a court order and the meeting was to be held within 3 months from the date of the court order. However, the Plaintiffs have failed to divulge the court order to prove this position. I further observe at the meeting held on 11/09/2011 it was decided to have the Annual General Meeting on 6 November 2011.

7.5 The said Annual General Meeting was held on 6 November 2011, decided in accordance with the decisions made by the mediator at the meeting held on 11 September 2011. The minutes of the 11 November 2011 was tendered to court by the Affidavit of the Plaintiff's filed on 11 March 2014 in reply to the Affidavit of the 1st Defendant filed on 22 October 2013. The questions arises, if the meeting held on 11 September 2011 was void:

1) why the Annual General Meeting was held on 6 November 2011 and appointed a committee on the directions of the meeting held on 11 September 2011?

2) why at the meeting held on 6th November 2011, the 1st Plaintiff did not raise this issue of the validity of the meeting held on 11 September 2011.

The available evidence before this court proves that the 11th September 2011 meeting was held properly and directions given in the meeting were complied as per the minutes. The Plaintiffs cannot merely state that minutes are not signed and therefore, the meeting is void or the meeting was not held within the time stipulated in the Judgment of Inoke J. in Case No. 241 of 2010.

7.6 On perusal of the minutes of the meeting held on 6 November 2011, the 1st named Plaintiff Goundar stated that the 2008 Constitution should be tabled and make the membership aware of it. It further stated:

"Mr Jimmy Dhir Singh moved that the Trustees should be given back the power to hire and fire the president and the committee if they are not performing or involved in mismanagement and Krishnaiya seconded it"

which shows the 1986 amendment to the Constitution was not in force as at that date (PG5). In such circumstances, the Trustees decision on 12 August 2013 that President of the club should hold one position is void. The Plaintiffs were well aware that they did not have the powers to take decisions on the president or any other office bearer. I conclude the Plaintiffs suppressed this fact to mislead the court and lied in the Affidavit.

7.7 I further conclude that the Plaintiffs had abused the process of this court and not come to this court with clean hands thus the reliefs claimed are not warranted.

[8] I further observe that the Plaintiffs replied to the Affidavit of the 1st Defendant filed on 22 October 2013 only on 11 March 2014 and they had ample time (more than 4 months) to appraise the correct facts to this court which was defaulted by the Plaintiffs and continued to mislead the court. In the above circumstances, there is no necessity to consider other issues in this case since the Plaintiffs' conduct is scandalous, vexatious and abuse of process by concealment of the correct facts.

Orders:

(1) The Plaintiffs' action dismissed.

(2) The Plaintiffs are ordered to pay $2,500.00 costs summarily assessed to the 1st Defendant within 30 days of this Judgment.

(3) The Plaintiffs are ordered to pay $1,000.00 costs summarily assessed to the 2nd Defendant within 30 days of this Judgment.

Delivered at Suva this 2nd Day of June 2015.

..........................

C. KOTIGALAGE

JUDGE