Jamiat Ahle Hadees Fiji Nadi Branch v Mohammed [2019] FJHC 570; HBC142.2019 (7 June 2019)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 142 OF 2019

BETWEEN JAMIAT AHLE HADEES FIJI NADI BRANCH being a Religious Body registered under the Religious Bodies Registration Act Cap 68 and having its registered office at Mulomulo, Nadi in Fiji.

PLAINTIFF

A N D NASEEB MOHAMMED of Nadi in Fiji, Businessman.

FIRST DEFENDANT

A N D AIYAZ BEGG of Nadi in Fiji, Delivery Person at Yees Cold Storage.

SECOND DEFENDANT

A N D FAUZAN FAROOK of Nadi in Fiji, Panel Beater.

THIRD DEFENDANT

A N D MOHAMMED MOSHIM HAIYAT of Nadi in Fiji, Hairdresser.

FOURTH DEFENDANT

Appearances : Ms I. Sauduadua for the plaintiff
Date of Hearing : 7 June 2019
Date of Ruling : 7 June 2019

R U L I N G
[on ex parte interim injunction]

[01] This is an application for ex parte interim injunction.

[02] By an ex parte notice of motion supported with an affidavit filed today (7 June 2019), Jamiat Ahle Hadees Fiji Nadi Branch, the plaintiff seeks the following orders:

1. That the Defendants appointment as office bearers of the Jamiat Ahle Hadees Fiji Nadi Branch be stayed until this matter has been heard;
   
2. That the Defendants be restrained from carrying out the Annual General Meeting scheduled for 9^th June 2019 or any further meetings until further Order of this Court.
   

[03] The application is made under Order 29, Rule 1 and 2 of the High Court Rules 1988, as amended (‘HCR’), which provides:

“1 (1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s writ, originating summons, counterclaim or third party notice, as the case may be.

(2) Where the applicant is the plaintiff and the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief such application may be made ex parte on affidavit but except as aforesaid such application must be made by notice of motion or summons.” (Emphasis supplied)

[04] I have gone through the application, affidavit and the documents attached to the affidavit and heard the submission advanced by counsel for the plaintiff.

[05] The plaintiff seeks to stop the Special General Meeting scheduled to be held on 9 June 2019, the next Sunday.

[06] The application is made on the grounds that the defendant’s appointment at the last AGM was improper where non-members were allowed to vote in the absence of the proper list of members and that the defendants had failed to submit audited financial report of the plaintiff.

[07] The meeting scheduled to be held on 9 June 2019, is not an AMG as claim by the plaintiff. It is an SGM to discuss the issues of audited financial accounts and membership.

[08] The action appears to be wrongly constituted, where the Religious body has been named as plaintiff. It is against section 2 of the Religious Bodies Act, 1881 (‘the Act”). That section states:

“2. All suits and proceedings at law instituted or brought by or against any religious body shall be instituted or brobght by or against the persons registered as hereinafter provided as trustees for the time being of such religious body&#/b>and any such suit or proceeding shall be carried to its final termination notwithstandinanding any alteration in the registered trustees of such religious body while such suit or proneeding is pending. (My emphasis)”

[09] The plaintiff is a Religious Body registered under the Act. The plaintiff cannot bring an action in its own name. It ought to havught the action by its regi registered trustees. In the circumstances, this is a wrongly constituted action. The action offends section 2 of the Act.

[10] I would, therefore, refuse to issue an ex parte interim injunction. There will be no order as to costs.

DATED THIS 7^TH DAY OF JUNE 2019 AT LAUTOKA.

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

M.H. Mohamed Ajmeer

JUDGE

Solicitors:
For the plaintiff: Lal Patel Bale, Lawyers