Singh v Reddy [2016] FJHC 1090; HBC123.2011 (30 November 2016)

IN THE HIGH COURT OF FIJI AT LAUTOKA CIVIL JURISDICTION
			Civil Action No. HBC 123 of 2011
BETWEEN	:	PREM SINGH , RAPRAMOD KUMAR> and ELLE NARSHEA as lawful Trustees of the Bhartiya Mitra Mandali, the governing body of Tilak High School.
			Plaintiffs
AND	:	GANGA REDDY, JAGDISH SINGH , S VENKAT, DAYA DAYA NAND, NAVEEN KUMAR, ANIL PRASAD, JANEND SINGH&#16u>RAKESH CHANDCHAND, SATYA DASS, KUMAR SAMI NAIKER and PRANAIR as office bear bearers aers and members of the Bhartiya Mitra Mandali Management Board.
		1st Defendants
AND	:	THE ATTORNEY-GENERAL OF FIJI
		2nd Defendant
AND	:	SWAMI KUMAR MAHARAJ
		Interested Party
Counsel	:	Ms Natasha Khan for the Plaintiffs Mr. D.S. Naidu for the 1st Defendants Mrs. Lee for the 2nd Defendant Interested Party in Person

ORDERS

1. The animosities which have disintegrated the TBMM into two squabbling factions (and which led to the decision of Mr. Justice Fernando to Order in 2011 that the Ministry for Education manage Tilak High School in the interim), persist to this day, and yet, the two factions are adamant that the management and control of Tilak High School be restored to TBMM. An AGM is being scheduled for later in the month to elect a management committee for the TBMM. It is terribly important that the scheduled AGM meeting is widely attended by all those members who are eligible to vote (in terms of the last directions I gave on this matter).
2. The timetable that I had set earlier in my Orders were meant to be a guide to facilitate the process of getting that AGM organized and done.
3. The ultimate goal is to restore management of the school to the TBMM as I have said.
4. It would be unduly strict against the interests of these members to not allow them to vote simply on account of their minor procedural lapse. To do so would also be counterproductive to the interests of the TBMM in that it will result in the votes cast at the TBMM being not fully as representative of the views of the members. At this crucial time, this is paramount.
5. The members concerned should be allowed to vote and the Office of the Attorney-General should accept the fees to update their subscriptions and add their names to the list to be published on Saturday 03 December 2016.
6. As for the Trustees, the Constitution does not say quite clearly that they are not allowed to vote at an AGM. Mr. Naidu argues that in the past, the Trustees were never allowed to vote at an AGM. Ms Khan argues otherwise.
7. TBMM members may be estopped by equity from denying the Trustees from voting at the AGM if there is evidence that they have permitted the Trustees to vote at AGMs over a prolonged period of time, even if the Constitution is not clear about that. In Dunne & Ors v Mahon & Anor [2014] IESC 24, the Irish Supreme Court reiterated this position relying on the oft cited English case of Crabb v Arun District Council [1975] 3 All ER 868:

12.2 The reason why the rules of a club cannot, in the absence of a specific amending mechanism being provided for in the rules, be amended without the agreement of all members is because the rules are essentially a contract between all of those members. However, if parties to a contract permit the contract to be implemented over a prolonged period of time on a basis other than in strict compliance with the contractual terms so that parties act in reliance on the contract being in that charged form, then a situation may be reached where any party to such a contract may be estopped from denying that the contract has so changed. The fact that a party to a multi-party agreement could have objected to the contract being changed above its head does not mean that a party can stand by and allow the implementation of the contract on different terms for a prolonged period (where the other parties rely on the purported change) and then be heard to say, retrospectively, that the contract should not have progressed on the amended basis in the first place.

12.3 Finlay P., in Smith v Ireland & Ors [1983] I.L.R.M. 300, was satisfied that a passage from Crabb v. Arun District Council [1975] 3 All ER 868 represented an accurate statement of the law in this jurisdiction. In the relevant passage from Crabb, Denning M.R. outlined the circumstances in which an equitable estoppel might arise at p. 871:

"Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights knowing or intending that the other will act on that belief and he does so act, that again will raise an equity in favour of the other, and it is for a court of equity to say in what way the equity may be satisfied."

8. However, neither counsel has been able to provide me with clear evidence to support their respective arguments that the TBMM constitution has been implemented over a prolonged period of time to allow or disallow the Trustees from voting at an AGM.
9. I agree with the interpretation by Swani Maharaj that since the Trustees have always been paid members of the TBMM, they are allowed by virtue of Clause 8 of the TBMM Constitution to vote at the AGM. Clause 7 which Mr. Naidu relies on only applies to forbid the Trustees from voting at a Management Committee, which meeting they are allowed to attend nonetheless (but not to vote in).
   

ORDERS

1. The members for whom the application was filed are to be updated to the list of members who will vote at the next AGM, upon their updating their subscriptions for previous years.
2. The Trustees are to be allowed to vote.

30 November 2016

................................... Anare Tuilevuka JUDGE Lautoka