Parshotam v Narain [1977] FJSC 60; Civil Action 054 of 1977 (21 October 1977)

Fiji Islands - Parshotam v Narain - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

CIVIL JURISDICTION

ACTION NO. 54 OF 1977

BETWEEN:

1. RATILAL PARSHOTAM
f/n Dayabahai Parshotam
2. NARENDRA PRASAD SHARMA
f/n Pandit Ram Shankar
3.ARLAL PARBHUDAS GARDHI
f/n Parbhudas
4. HARI HARI NARAYAN f/n Ram Nath
5. DAMDARBHAI JIWANBHAI CHAMPANERI f/n Jiwanbhai
Plaintiffs

AND:

1. SURAJ NARAIN f/n Sahadeo
2. SHEIKH IMAM f/n Sheikh Pindu
3. JANARDHAN NAIKER f/n Munsami
4. MUNSAMI MUDALIAR f/n Kuppudu
5. SHRI KRISHNA PILLAI f/n not known
6. KAMPTA PRASAD f/n not known
7. KISTAMMA MUDALIAR f/n Munsami
8. HARI NARAYAN f/n Ram Narayan
9. SUBAIYA MANI f/n Malaiya
10. V.N. RAO f/n Narsaiya
11. CHANDRA PRAKASH f/n Jagdeo
12. THE ATTORNEY GENERAL OF FIJI
Defendants

JUDGMENT

In this action the five plaintiffs in their Statement of Claim allege they are members of the Divine Life Society (Suva-Fa religious body registered under the provisions of the Chae Charitable Trust Ordinance. The defendants deny they are members.

The action has been brought against the first eleven defendants and the Attorney General who is sued as the parens patriae of the Charitable Trusts in Fiji.

The plaintiffs, although alleging they are members of the Society, are not seeking a declaration that they are members, nor is the action a representative one. The Society has not been made a party to the action which I consider was necessary in view of the nature of the relief the plaintiffs claim. Nor are the first eleven defendants sued as representing the committee or as office bearers of the Society. The Statement of Claim, which has 39 paragraphs and runs to five and a half pages of closely typed foolscap is silent as to whether the first eleven defendants are sued in any representative or official capacity nor is it alleged that they are members of the Society. The only reference that they are members is paragraph 39 which alleges that they are not fit and proper persons to be members of the Society. The first prayer for relief, however, is for a declaration that "they were and are not members of the Society".

No basis was laid in the Statement of Claim nor indeed at the trial for such a declaration.

The first 19 paragraphs of the Statement of Claim refer to allegations that the five plaintiffs were and are members of the Society, the aims and objects of the Society, payment of their subscriptions, that the first plaintiff left for India in April 1972 and returned to Fiji in July 1974, positions held by the various plaintiffs in the Society from time to time, that the 5th, 8th and 10th defendants purporting to act for the Society had unlawfully and wrongly refused to accept subscriptions from the plaintiffs and had prevented them from participating in the Annual General Meeting of the Society held at Suva on the 13th February, 1977. The first three plaintiffs did testify that they had attempted to pay their subscriptions which were refused and that they were prevented from participating in the 1977 Annual General Meeting. They did not however, apart from stating what the 5th defendant did at that meeting attempt to establish that it was the 5th, 8th and 10th defendants who had refused their subscriptions or that the 8th and 10th defendants had prevented their participation in the meeting.

From the documentary evidence it is clear that it is the committee of the Society which is empowered to refuse subscriptions. There is no evidence that the 5th, 8th and 10th defendants acting individually or collectively unlawfully and wrongly refused to accept subscriptions from the plaintiffs. There is evidence that the Society through its committee refused subscriptions but apart from the 5th defendant who was the President no evidence that the 8th and 10th defendants were involved.

Paragraphs 20 to 24 of the Statement of Claim, which were admitted by the Defence, refers to the purchase of the property contained in CT. 5658 at 193 Waimanu Road, Suva, the financing of the purchase and the conversion of the property into a temple and activities of the Society. These paragraphs provide some historical information but do not advance the plaintiffs' case.

Paragraph 26 alleges that the 2nd, 3rd and 4th defendants sold and disposed of CT. 5658 "together with the Society's temple without authority at a gross undervalue and to the irreparable detriment, harm and loss to "the society". "

The Statement of Claim does not state when CT. 5658 was sold nor in what capacity the 2nd., 3rd and 4th defendants purported to sell.

Paragraph 27 of the Defence, which admitted the sale, filled in some of the gaps and admitted the sale was on 20th December, 1976. A perusal of the documentary evidence which must represent a large proportion of the Society's records from 1969 onwards indicates that the 2nd, 3rd and 4th defendants were at the relevant date trustees of the Society (exhibit 'A' 21 - Appointment of Trustees). No effort was made by the three plaintiffs who did give evidence to establish the sale was "at a gross undervalue" or to call any witness to establish the value of the property when sold.

Paragraph 26 and paragraph 28, which alleges the 2nd, 3rd and 4th defendants in selling CT. 5658 acted mala fides and in breach of trust, was the basis laid for the plaintiffs claiming $100,000 as special damages "for the loss of certificate of title No. 5658". The alleged special damages were not itemised or pleaded. How the plaintiffs could seek to claim $100,000 special damages from the defendants was not explained.

Paragraph 27 of the Statement of Claim alleges the 2nd, 3rd and 4th defendants had burnt or caused to be burnt valuable religious books of the Society at the temple of the Society and had disposed of some of them. None of the plaintiffs said anything in evidence about these books nor was any defendant questioned about them. It was one of several serious allegations made by the plaintiffs against the defendants which the plaintiffs made no effort to prove.

Paragraphs 29 and 30 refer to the Annual General Meeting of 13th January 1974 which the plaintiffs allege was invalid because seven days' notice of the meeting was not given and that the defendants (except the 12th defendant) had "wrongfully, unlawfully and fraudulently elected and caused to be elected the 2nd defendant (who does not and has never accepted, endorsed, or contributed to the aims and objects of the Society) a trustee of the Society." The 2nd defendant was elected Treasurer and a Trustee at the 1974 Annual General Meeting which was attended by the 2nd plaintiff.

Mr. Sherani did put in a copy of the notice of the 1974 meeting which indicates that only six instead of seven clear days' notice of the 1974 meeting was given but nothing was said by any of the plaintiffs' witnesses about the election of the 2nd defendant as a trustee although the 2nd plaintiff was at that meeting. If the defendants had not put in the minutes of the 1974 meeting there would have been no evidence that any of the defendants were at that meeting. There were 21 members at the meeting as disclosed by the minutes including the first 10 defendants. Why they were singled out was never made apparent. It transpired during the final address by Mr. Sherani that what constituted the alleged unlawful and fraudulent election of the 2nd defendant was the election of a Muslim to what the plaintiffs allege is a Hindu Society, although there was considerable evidence that the Society was open to people of all religious beliefs and was not a Hindu Society.

In a Divine Life Society booklet put in evidence by the plaintiffs appears this quotation by Swami Sivananda the founder of the Society.

"Make no distinction between high and low, between Hindu and Mohammedan, between Christian and Buddhist."

The plaintiffs ignored the teachings of the founder of the Society in their attack on the 2nd defendant Sheik Imam, a Muslim whom they alleged was fraudulently representing himself as a trustee of the Society and they seek damages from him.

Paragraphs 33 and 34 allege that the defendants (except the 12th defendant) derived secret profits from the sale of CT. 5658 and "conspired among themselves and fraudulently and unlawfully have agreed to pay $4500.00 commission to the 9th defendant."

The three plaintiffs who gave evidence made no effort at all to establish these serious allegations of dishonesty, conspiracy and fraud and when this was pointed out to Mr. Sherani he stated it was a matter of legal argument. He referred to paragraphs 688 and 690 of Halsbury's 3rd Edition pp.334 and 335 and stated that the onus was on the defendants to establish that there was no breach of trust on the sale of charity land.

This does not excuse the raising of serious allegations with no effort made to substantiate accusations of the nature levelled at the defendants. The two defendants who gave evidence were subjected to severe and lengthy cross-examination during which they were repeatedly accused of dishonesty and fraud which they indignantly denied.

Paragraph 35 refers to the 1977 Annual General Meeting and alleges the defendants (except the 12th defendant) unlawfully and maliciously removed in excess of 60 bona fide members including the plaintiffs from participating in the meeting.

Paragraph 36 refers to the 1977 Annual General Meeting and alleges that the eleven defendants circulated accounts "containing false and fraudulent entries knowing the said entries to be false and fraudulent."

Again the plaintiffs made no effort in giving evidence to establish this serious allegation. They put in evidence the 1976 accounts which contains an auditor's report that does not disclose that anything was amiss and left it at that until the 5th defendant gave evidence when he was subjected to a lengthy cross-examination.

The 5th defendant was challenged on certain loans shown in the accounts as having been made by certain of the defendants to the Society and a great deal of the time of the Court was taken up by having the 5th defendant, who is not an accountant, endeavour to trace the loans in the receipt books, bank deposit books, and books of accounts.

The cross-examination of this witness and the 4th defendant as regards financial matters was very much a fishing expedition and the plaintiffs' attitude appeared to be that they had labelled the defendants dishonest and it was for the defendants to establish that they had not been dishonest. The minutes of the 1977 Annual General Meeting disclosed that the 1st, 6th, 7^th, 8th and 11th defendants were not at the meeting. The defendants pleaded and established that the 1^st, 6th, 8th and 11th defendants had no present connection with the Society. The 11th defendant was in fact the auditor of the Society and not a member and Mr. Sherani conceded in his final address that there was no evidence against this defendant but made no concessions as regards any other defendant.

Paragraphs 37 to 39 inclusive allege the defendants have mismanaged the affairs of the Society, unjustly enriched themselves from the funds and the property of the Society, have refused, neglected and failed to advance the aims and objects of the Society and are not fit and proper persons to be members of the Society.

The trial extended over six days and the Court has been presented with an unusual number of papers, receipt books and books of account.

What does emerge from the pleadings and the evidence is that the plaintiffs allege they are members of the Society which the defendants deny. The plaintiffs claim the sale of CT. 5658 was in breach of trust which the defendants deny.

The major issue is whether at all relevant times the five plaintiffs were members of the Society. If they are not members they cannot legally complain about the defendants' alleged actions.

The 3rd and 4th plaintiffs did not give evidence and the only evidence that they are members is evidence given by the 2nd plaintiff who stated he paid their subscriptions for 1976 and 1977.

Paragraph 3(g) of the Society's Constitution provides:

"(g) Any member whose subscription fees shall be in arrears after a period fixed by the Committee, shall IPSO FACTO cease to be a member of the society."

Minutes of a committee meeting held on the 22nd March 1973 (exhibit N.N.) indicate that the committee decided that subscriptions had to be paid before the 31st March each year. The minutes indicate that the 2nd and 3rd plaintiffs attended that committee meeting. At the time of the meeting the 1st plaintiff was in India.

When Mr. Knight sought to introduce the minutes (exhibit N.N.) into evidence through the 5th defendant Mr. Sherani objected that it was never put to the plaintiffs' witnesses that the committee had fixed the time by which subscriptions had to be paid and the plaintiffs were at a disadvantage to challenge the evidence.

The objection was overruled but Mr. Sherani was informed that the Court would allow him to call or recall witnesses in rebuttal if it transpired that the committee had fixed the time before which subscriptions were to be paid and had notified the members of that fact. The 5th defendant testified that members were notified of the committee's action at the 1973 General Meeting. Mr. Sherani did not call any witness to rebut this evidence. I find as a fact that the committee did on the 22nd March 1973 fix the date by which annual subscriptions had to be paid.

The 1st plaintiff was a founder member of the Society and was its President from 4th March 1969 to 12th January 1974 and also a trustee for the same period.

The Society had purchased a freehold property at 193 Waimanu Road, Suva in 1969 for $19400 in which the Society had its temple on the upper floor. Part of the premises was let to tenants including the 4th defendant. The Bank of Baroda financed the purchase against guarantees by the 1st plaintiff and others and also deposits made by a number of people. The first plaintiff lent the Society money and there were others who also lent money.

The 1st plaintiff left for India in April 1972 and did not return until July 1974. While he was in India he did not renew his subscription.

While the 1st plaintiff was in India trouble started in the Society.

The 2nd plaintiff. a very devout Hindu acted as the Society's priest and early in 1972 he took strong objection to the alleged conduct of the 4th defendant who was organising secretary of the Society and who lived on the premises. The 2nd plaintiff objected to the 4th defendant, a Hindu South Indian, cooking and eating meat on the premises. One thing led to another and the 1st plaintiff wrote a number of letters to office bearers of the Society. complaining about the conduct of the 4th defendant. Without going into detail the acrimonious feelings between Sharma, the 2nd plaintiff, and Mudaliar the 4th defendant, was a factor if not the cause of splitting the Society into two factions one led predominantly by South Indians who then controlled the Society and the other predominantly Gujeratis who had originally provided the bulk of the financial backing of the Society and who had previously controlled the Society.

The 1st plaintiff returned to Fiji in July 1974 and he stated in evidence that he received many complaints about the Society. He took over leadership of the Gujerati faction.

About 1975 the Bank of Baroda started applying pressure on the Society for repayment of the loan it had made to the Society which should have been repaid in 1972. The Suva City Council was also applying pressure to have certain repairs carried out. Up to 1973 the main income of the Society was obtained from operating lotteries. This income ceased when the Society was unable to obtain a permit to run lotteries. The Society was in a bad way financially and the committee decided it had no option but to sell the property and purchase another.

The 1st plaintiff learnt of these plans to sell the property some time after his return to Fiji and was opposed to the sale as were the 2nd and 3rd plaintiffs.

Led by the 1st plaintiff he and the 2nd and 3rd plaintiffs set about locking the proposed sale. About June 1975 they started a drive for membership and arranged for at least 123 persons to apply for membership on membership application forms which the 1st plaintiff supplied from a supply he had when he was President of the Society. The 2nd plaintiff being aware that the committee would not accept subscriptions sought to present the committee with a fait accompli and paid the subscriptions direct to the Society's bank account at the Bank of Baroda.

The persons applying for membership were predominantly Gujeratis and the applications were rejected by the Society's committee which notified all applicants that the applications were not approved and refunded the application fees. The uncashed postal notes or money orders with 123 applications and letters from the Society were all introduced into evidence (exhibit 1B).

The committee by this time must have been perfectly well aware that the unusual number of applications for membership from persons supporting the faction led by the 1st plaintiff who were opposed to the committee was a take-over bid and it is not surprising that the committee refused the applications which it was empowered to do under paragraph 3(b) and (f) of the Society's Constitution.

On the 19th June 1975 the 2nd plaintiff lodged a caveat against CT. 5658. The grounds for such caveat were not disclosed. The Society reacted by applying for removal of the caveat. If the 2nd plaintiff had legal grounds for stopping the sale he could have commenced Court action in August 1975. He did nothing and the caveat was cancelled on 2^nd September 1975. Three days later the 4th plaintiff lodged a caveat. He did nothing further and his caveat was cancelled on 2nd December 1975 only to be followed by the 1st plaintiff lodging another caveat the same day. This caveat was cancelled after notice to the 1st plaintiff on the 16th March 1976. Before this caveat was cancelled the 3rd plaintiff lodged a caveat on the 12th March 1976 and after a notice to remove this caveat it was cancelled on 1st December 1976. In December 1976 the Society sold the property. If the caveats were lodged by these four plaintiffs on the grounds that the proposed sale was a breach of trust they had four opportunities of coming to Court for redress but did not do so.

If any of them did commence any action this Court was not advised that they had done so.

At the time also there were reports and complaints to the police, the Labour Department, the Commissioner of Inland Revenue, the National Provident Fund Board and Suva City Council by one or other of the plaintiffs complaining about the Society or its office bearers.

After the sale was completed by registration of the transfer of the property on 22nd December 1976 they commenced this action on 8th March 1977 alleging (inter alia) breach of trust.

I will deal with the sale of the property later in this judgment. At this stage I will consider the main issue whether the plaintiffs were at all relevant times members of the Society.

The 1st plaintiff as stated previously did not renew his subscription the two years he was away in India. As President of tile Society one would have expected him to have made arrangements for payment of his annual $1.00 subscription.

He said that on his return to Fiji he spoke to 4th and 5th defendants about his subscription and was informed by them not to worry as he was a life member. The 4th and 5th defendants denied this. The Constitution makes no provision for life members and the 1st plaintiff should have known this.

He said in August 1974 he paid the 4th defendant either 32 or 34 for subscriptions and got no receipt. The 4th defendant denied this.

He stated when he received no receipt he then paid by cheque and produced the cheque. Under cross-examination he was emphatic that he had not paid the cheque direct to the Society's bank account and that he had posted his cheque for $6 - subscriptions for 1973, 1974 and 1975 to the Society.

The falsity of this evidence is readily ascertainable from documentary evidence put in by the plaintiffs. Exhibit 1C contains a number of papers including Bank of Baroda credit slips with the 2nd plaintiff's signature thereon and details of membership moneys paid by the 2nd plaintiff direct to the Bank. On 24th June 1975 $18 was paid into the Bank. N0.13 on the list reads:

"13. Mr. and Mrs. Ratilal Parshotam $6 cheque 1973/74/75 fees."

The photocopy of the cheque produced by the 1st plaintiff exhibit 1F. is for $6 dated 25th June 1975 and has a Bank of Baroda stamp on it with date 25th June 1975. Exhibit if indicates thereon that the 86 is "D.L.S. membership fee for 1973/74/75 R. Parshotam 3.00 Bhagwati Ben 3.00 $6.00". On this evidence I have no hesitation in holding that on this vital issue of membership the 1st plaintiff did not tell the truth. I do not believe he was told he was a life member or that he had paid Mudaliar $2 or $4. I find as a fact that his membership lapsed when he failed to pay his subscription for 1973 if not in 1973 then in 1974 or 1975 by virtue of paragraph 3(g) of the Society's Constitution.

Both the 2nd and 3rd plaintiffs were at the committee meeting in 1973 when the committee fixed the period when subscriptions had to be paid.

The 2nd plaintiff did establish he paid his subscription for 1974 exhibit A1 and payment was made in time.

Exhibit A2 indicates that the 2nd plaintiff paid $2 into the Bank of Baroda on 18th June 1975 with written advice to the Bank that it was for "1975 membership fees from N.P. Shanna and Hari Narayan $2.00. Hari Narayan is the 4th plaintiff. The subscriptions should have been paid before 31st March 1975 and when they were not paid in time the membership of both the 2nd and 4th plaintiffs lapsed. I hold on the evidence that neither of these two plaintiffs are members of the Society.

The 3rd plaintiff admitted he was in arrears for 1973/74/75. Like the 1st plaintiff he stated he had posted his cheque for $6 to the Society and produced his cheque butt. In cross-examination he stated he had handed his cheque to the 1st plaintiff to send on to the Society.

The documents in exhibit ‘C’ establish that a cheque for $6 was deposited with the Bank of Baroda on the 26th June 1975 by the 2nd plaintiff. Details show as follows:

"5. Mr. and Mrs. N.P. Gandhi $6 cheque fees for 1973/74/75."

I am satisfied that the 3rd plaintiff was not telling the truth on this issue. The facts clearly indicate that the 3rd plaintiff's membership lapsed in 1973 if not in 1974 or 1975 and I hold he was not a member of the Society at any relevant time.

There remains the 5th plaintiff who did not testify. Exhibit 'C' lists the name of this plaintiff as having 81 cash deposited in the Bank by the 2nd plaintiff for 1975 fees on 24th June 1975. Whatever the position may have been in 1974 his membership lapsed on 31st March 1975 when he failed to pay 1975 subscriptions by that date.

I find as a fact that none of the plaintiffs are members of the Society and were not at the time they commenced this action members. Nor were any of them members at the time of the 1977 Annual General Meeting nor in 1975 or 1976. They have no locus standi and that is fatal to their claims.

Dismissal of the action at this stage is not a satisfactory conclusion to this action leaving unanswered the very serious allegations levelled at the defendants by the plaintiffs.

First as to the alleged breach of trust in selling the Society's property. I am satisfied on the evidence that at the time the decision was made by the Society to sell the property the Society was in financial difficulties. The Bank of Baroda was applying pressure for repayment of its loan. The property required repairs and the Suva City Council was applying pressure. The discontinuance of the lotteries deprived the Society of its main source of income. Prior to 1972 lotteries brought in an income in excess of $3000. Even in 1972 when lotteries were operated there was a deficit of $516.31 in the income and expenditure of the Society. In 1972 the 1st plaintiff was the President of the Society and under his management the Society was already in financial difficulties. By 1976 the Society must have been in a bad way financially as the defendants alleged.

The Society decided to sell the property. pay its debts and purchase another cheaper property. The Constitution of the Society is silent about sale of the Society's property but section 12 of the Charitable Trusts Ordinance empowers the Board of Trustees to sell its property on such terms as it sees fit.

The property was widely advertised and efforts were first made to sell the property at $100,000 without success. The asking price was finally reduced to $50,000 and the committee agreed to pay as commission any sum received above the figure of $50,000.

The 9th defendant operated a land estate business and he was one of the persons requested by the committee to find a purchaser. He found a purchaser for $55,000 on terms and was paid $4500 commission by the Society. The 9th defendant was not a trustee of the Society. At the time he negotiated the sale he appears only to have been an ordinary member although at the 1977 Annual General Meeting he was appointed treasurer. In my view there was nothing improper in the 9th defendant being paid and receiving the $4500 commission.

I am satisfied also that the Society was empowered to sell the property and the sale at $55,000 in 1976 of a property purchased in 1969 for $19,400 was on the evidence before me the best price it could obtain for the property and was not a sale at a gross undervalue. I find on the facts that the sale of the property was not in breach of trust.

On the evidence before me the Society appears to have been run in a businesslike manner. Proper books of account are kept as well as records of all meetings. All accounts are audited by an independent auditor whose certificates I accept. There was no evidence before me of any fraudulent or false entries in the accounts or for that matter any fraud, conspiracy or dishonesty by any of the defendants.

There was short notice of the 1974 Annual General Meeting but no members attending that meeting took any objection to this fact. The 2nd plaintiff played a prominent part at this meeting and raised no objection.

The plaintiffs did not complain about the 1975 meeting and it can be assumed that that meeting approved the minutes of the 1974 meeting. There was no evidence that the 1976 and 1977 meetings were not constitutional meetings.

The plaintiffs did complain about being excluded from the 1977 meeting but since they were not members at the time they cannot validly complain about being excluded. The bona fide members in excess of 60 they allege were maliciously and wrongfully removed from the meeting ware some of the 123 People the plaintiffs persuaded to apply for membership and whose applications were not approved by the committee. They were not entitled to attend the meeting.

One of the factors which appears to be the reason why so many people who were interested in the Society did not bother about paying subscriptions, was the fact that the premises of the Society were open to anyone whether a member or not, non members could pray at the temple attend functions and make use of facilities available. This led to laxity in renewing subscriptions.

There can be no doubt that the site of the temple in Waimanu Road was centrally sited and suited all those people who had businesses or resided in central Suva. There is also no doubt the proposed sale and move to Samabula to other premises was bitterly resented by many who used the Waimanu Road premises whether members or not. The Society is now operating in a densely populated residential area at Samabula.

Any hopes of a settlement of the dispute which arose were banished by the tactics adopted by the 1st plaintiff and his faction to block the sale and gain control of the Society. The split widened and both factions became embittered and stubborn. That such a state of affairs was permitted to arise in a Society with such laudable aims and objects is to be deplored. Neither faction is free from blame in allowing this state of affairs to develop.

Even if I had been able to hold that the plaintiffs were at all relevant times members of the Society that would not assist them to obtain the relief claimed on the evidence before me. It was in fact the 5th defendant and he alone who caused the first three plaintiffs and others to be excluded from the meeting on 13th February 1977 although the Defence admits the defendants excluded them from the meeting. The reason for the exclusion was the trouble caused by the 3rd plaintiff who was told he could remain as an observer and that his claim to membership would be investigated after the meeting. He and his 90 or more supporters were clearly out to cause trouble at the meeting and would have broken up the meeting if the 5th defendant had not anticipated the trouble and acting as Chairman and President had excluded them.

In my view there was little understanding of the issues involved in this action or how to frame a case to resolve those issues and obtain relief. If the plaintiffs were members and as such members had complaints they should have commenced a representative action against the committee and joined the Society which is a body corporate under the Ordinance. Any of the defendants who had transgressed could have joined as defendants in both an official and private capacity.

Had the action been properly framed and the plaintiffs able to establish any of the allegations set out in the Statement of Claim the Court would then have been in a position to grant relief.

The major grievance the plaintiffs had was the proposed sale by the Society of its premises. The plaintiffs could have challenged this proposed sale by Court action in 1975 but did not do so although they exhausted every other avenue for creating trouble for the committee in their efforts to block the sale. My criticism of the plaintiffs' actions and conduct of this case is reflected in the order I propose to make in regard to costs.

The plaintiffs' claims are dismissed with costs to the defendants. I order that costs if they are to be taxed, be taxed on the higher scale provided by the Supreme Court Rules, 1968.

R.G. Kermode
JUDGE

Suva,
21st October, 1977.