Singh v Reddy [2016] FJHC 850; HBC123.2011 (23 September 2016)

IN THE HIGH COURT OF FIJI AT LAUTOKA CIVIL JURISDICTION
			Civil Action No. HBC 123 of 2011
BETWEEN	:	PREM SINGH, RAKESH PRAMOD 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 , SUREND VENKAT DAYA DAYA NAND, NAVEEN KUMAR, ANIL PRASAD, JANEND SINGH , H CHAND, SDASSKUMAR SAMI NAIKER and PRAKASH NAIR as office bearers ands and memb members of the Bhartiya Mitra Mandali Mannt Bo/div>
		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

These Orders supersede the previous Orders made on 15 December 2014.
CONSIDERING THAT the parties and the members of The Bhartiya Mitra Mandali (“TBMM”) are at loggerheads:

(i) as to whether or not there is at present a valid Management Committee to convene the SGM in accordance with Clause 8 of the TBMM Constitution, and,
(ii) as to whether or not there is a person validly holding the position of Secretary who could otherwise have convened an SGM, also, in accordance with the above mentioned Clause 8,

AND CONSIDERING THAT

(iii) the Office of the Attorney-General (and the Minister for Education) is currently managing the Tilak High School pursuant to an Order of Mr. Justice Fernando dated 24 January 2012.

I HEREBY MAKE THE FOLLOWING ORDERS:

1. Special General Meeting. A Special General Meeting of the TBMM is to be convened on a suitable date.
2. Date. That suitable date is to be decided by the Office of the Attorney-General/Minister for Education.
3. Supervision, Management and Chairing. That the Office of the Attorney-General (and the Minister for Education) as the parens patriae of all such educational trusts in Fiji, are to be responsible for convening the SGM and for all the supervision and the management of the said SGM.
4. Advertising/Notice of SGM. For the avoidance of doubt, the Attorney-General (and the Minister for Education) shall be responsible for the following:
   • (i) the advertising of the SGM in a local daily (to be advertised at least seven (7) clear days before the SGM so as to be compliant with clause 8.1 of the constitution).
   • (ii) the advertisement must state the place, date, time and nature of business to be considered at the meeting.
   • (iii) for the purpose of this particular SGM, the nature of business shall be the “election of new office bearers”. For the avoidance of doubt, “office bearers” means the Management Committee.
   • (iv) the agenda should also include an item relating to “matters pertaining to the Trustees”.
   • (v) chairing the meeting
   • (vi) counting the votes
   • (vii) ensuring that voting procedures outlined in clauses 8.2.a and 8.2.b and 8.3 are adhered to and bearing in mind that as chair, the A-G and Minister for Education shall have the discretion to take votes by any other method than the stipulated ones under clause 8.2.b.
     
5. Who can Vote.

The principal legal basis for the existence of a club is a contract between all of the members. It must be emphasised that the contract is the one between the members for the time being.

6. “Members for the time being” must mean all those who are eligible for membership and who have paid their subscriptions.
7. In my directions dated 06 October 2014, I did acknowledge that the parties are at loggerheads as to whether the 2011 members or the 2013 members can vote.
8. Subsequent to the above, I had also made an erroneous observation on 15 December 2014 that the Ministry for Education had called for subscriptions and was accepting new members.
9. In light of that, I now vary the last directions I made as follows, that is, that only those 2011 members who have paid their annual membership subscription valid and current on the date of SGM to be called by the Ministry for Education, are to vote.
   

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Anare Tuilevuka

JUDGE

Lautoka

23 September 2016