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Public Employees Union v Qalo [1994] FJHC 11; Hbc0364d.93s (27 January 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 364 OF 1993

BETWEEN:

PUBLIC EMPLOYEES UNION
a duly registered Trade Union established
pursuant to the Trade Unions Act
(Cap.96) and having its registered
office at 73 Edinburgh Drive, Suva
Plaintiff

AND

SALOTE QALO,
Trade Unionist,
SEMISI LASIKE,
unestablished employee
TANIELA DELAITAMANA,
unestablished employee
JIUTA WAQATABU, and JONE GATA all of
Suva and as representatives of
persons named in the Petition
dated 29th April, 1993.
Defendants

J. Semisi: For the Plaintiff
G.P. Shankar: For the Defendants

Dates of Hearing: 22nd, 29th October, 26th November,
23^rd December 1993
Date of Interlocutory Judgment: 27th January 1994

INTERLOCUTORY JUDGMENT

The Writ in this action was issued on the 28th of June 1993 and on the same day a Motion was issued by the Plaintiff seeking various orders restraining the Defendants from holding themselves out to be the office bearers of the Plaintiff; representing to the Plaintiff's bankers, the Plaintiff's account be frozen; from remaining in possession of the Plaintiff's assets, books documents, accounts and records. The Motion also seeks orders that the Defendants immediately quit and deliver up vacant possession of the Plaintiff's premises at 73 Edinburgh Drive, Suva, 1 Tukani Street, Lautoka, Nasekula Road, Labasa and all other properties owned by the Plaintiff; requiring the Defendants to handover possession of certain motor-vehicles to the General Secretary of the Plaintiff and prohibiting the Defendants or their servants or agents or associates from entering the Plaintiff's premises and from interfering with the Plaintiff and its servants or authorised personnel from conducting the Plaintiff's union and business activities.

The present action is closely related to Civil Action No. 250 of 1993 in which on the 16th of June 1993 Jesuratnam J. refused to dissolve an injunction against two of the Defendants to the present proceedings, Semisi Lasike and Taniela Delaitamana.

On the 9th of July 1993 I made an order granting the Plaintiff the relief which it sought in its Motion of the 28th of June 1993. The Defendants replied with an application to dissolve the injunction and orders which I made on the 9th of July.

There has followed the filing of numerous affidavits, the majority of which without leave of the Court, on behalf of the contending parties.

This action by the parties reflects no credit on them and I am left with the distinct impression that there has been too much "grand-standing" and personal point-scoring, the object of which I strongly suspect has been to divert the Court's attention from the real issues in this litigation. I have little doubt that the Defendants for reasons of their own are quite prepared to take the law into their own hands if they consider this to be in their interests. The Courts will not permit this, for if they did, their authority would be non-existent. It is quite possible in my view that this has been the object of the Defendants in the various delaying tactics they have employed since I first became seized of this litigation.

Presently before me there is a Motion on behalf of the Defendants dated the 7th of September 1993.

The Motion seeks an order that this action be dismissed on the grounds that it was instituted without authority of the Executive Committee of the Plaintiff Union and that one Peleki Leweniqila the present Acting General Secretary of the Plaintiff has no legal right to issue or continue with this action.

Before dealing with the Motion it is necessary to refer to the orders which I made on the 25th of August 1993 on the hearing of a Motion of the Plaintiff dated the 19th of August. On that date, as I had done earlier, I expressed the view that it was undesirable for this Court to intervene in this matter if that could be avoided by the parties showing some common sense and a willingness to resolve their differences without directions of the Court.

Regrettably it appears that this is no longer possible and that the Court must intervene in an endeavour to ensure that its orders are obeyed and this action resolved as quickly as possible.

On the 25th of August both counsel for the parties expressed their agreement with the sentiments I had expressed and after hearing submissions on the Plaintiff's Motion I made the following orders:

(1) That Peleki Leweniqila and any two members of his choice of the Executive Committee of the Plaintiff, except the President and Treasurer of the Plaintiff, be given the right of entry to the premises of the Plaintiff at 73 Edinburgh Drive, Suva on Saturday, 28th day of August 1993 at 10.00 a.m. for the purpose of convening an Executive Committee Meeting of the Plaintiff on the 4th day of September 1993 at 10.00 a.m. for the purpose of calling an Extraordinary General Meeting of the Plaintiff at 10.00 a.m. on the 18th of September 1993.

(2) No other persons except the three persons hereinbefore named to be given entry to the premises of the Plaintiff.

(3) The keys of the safe on the Plaintiff's premises to be deposited with the Chief Registrar of this Court by 3.30 p.m. on Friday, 27th August 1993 and to be held by him until further order of this Court.

(4) The Registrar of Trade Unions is hereby authorised to pay reasonable travelling and meal expenses to the members of the Plaintiff's Executive attending the said meeting on the 4th of September 1993 and reasonable expenses in connection with the holding of the Extraordinary General Meeting of the Plaintiff on the 18th of September 1993; otherwise the funds of the Plaintiff to remain frozen.

(5) The key to the premises of the Plaintiff at 73 Edinburgh Drive, Suva aforesaid to be given to Peleki Leweniqila at 10.00 a.m. on the 28th of August 1993 in the presence of the two Executive Committee members present at that time and place.

It is common ground that none of these orders has yet been obeyed for various reasons advanced by the parties. The keys to the safe of the Plaintiff's premises were not deposited with the Chief Registrar of this Court by 3.30 p.m. on the 27th of August 1993 and on the 28th of August when Mr. Peleki Leweniqila and two members of the Executive Committee of the Plaintiff arrived at the premises of the Plaintiff at 73 Edinburgh Drive, Suva, the Defendants and their agents refused to allow Mr. Leweniqila and his colleagues to enter the premises of the Plaintiff.

The reason for this now appears from an affidavit filed by two alleged Vice Presidents of the Plaintiff, Joseva Turagalada and Semi Tikocina - because the Defendants claim that the handing of the safe keys to the Chief Registrar was a condition precedent to the Defendants granting access to Mr. Leweniqila and his colleagues to the Plaintiff's premises.

I refute this allegation immediately. There is nothing in the terms of my order of the 25th of August nor in my notes of the submissions of counsel to support the allegation. The reason why I ordered the safe keys to be handed to the Chief Registrar was in an attempt by so doing to defuse the situation existing between the parties and which in my view it was vital to resolve as quickly as possible. I therefore consider there is no substance in this allegation of the Defendants.

Proceeding now to the Defendants' Motion of the 7th of September 1993 I have read the lengthy submissions made on behalf of the Defendants. Many of them seem to me more appropriate for the trial of this action and indeed the very Motion by the Defendants raises a clear issue of fact which it would be wrong for me to decide at this stage, namely whether the action was commenced without the authority of the Executive Committee of the Plaintiff. On that ground alone I dismiss the Motion with costs against the Defendants.

There is another reason why I consider that the Motion should be dismissed and that is because of Section 17 of the Trade Unions Act Cap. 96. Under this section any registered Trade Union is a body corporate with power inter alia to institute and defend suits and other legal proceedings. None of the submissions made by the Defendants questions the registration of the Plaintiff. For that reason also the Defendants Motion must be dismissed.

I shall now hear further arguments from counsel for the parties about the final resolution of this case as quickly as possible.

JOHN E. BYRNE
JUDGE

HBC0364D.93S