Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Simpson v Madden [2002] FJHC 212; HBC0002j.2001b (23 April 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0002 OF 2001

Between:

1. IAN SIMPSON
2. CYRIL MITCHELL
Trustees
Plaintiffs

and

1. PETER MADDEN
2. DALIP LAL
3. SONIA PETERSEN
4. BOBBY KUMAR
5. SHALENDRA SINGH
Committee Members
Defendants

Mr. K. Marawai for Plaintiffs
Mr. A. Sen for Defendants

JUDGMENT

The Plaintiffs filed Originating summons against the Defendants seeking, inter alia, the following orders:

1. A declaration that the purported Special General Meeting of the Taveuni Country Club held on the 10th day of December 2000 as called by the Defendants was contrary to the constitution of the Taveuni Country Club and is illegal, null and void.
   
2. A declaration that the purported appointment of one Douglas Thomson and Jai Ram f/n unknown to Plaintiffs as Trustees of Taveuni Country Club is ineffective and of no force and that Ian Simpson and Cyril Mitchell remain Trustees of the Taveuni Country Club.
   

100. A declaration that the Plaintiffs as Trustees of the Taveuni Country Club have a duty to protect the assets and property of the club inclusive of dismissing committee members endangering such assets and property.
     

4. A declaration that the defendants endangered the Taveuni Country Club assets and property by resolving on the 29th November 2000 that AWhatever is discussed by the committee, the President will have the final say@ and can therefore be properly dismissed by the Plaintiff Trustees.
   

They also claim injunction and costs.

An Affidavit in Support was sworn 8 January 2001 and filed in Court on 23 January 2001. An Affidavit in Reply was filed by the Defendants on 21 June 2001. There was a further response by the Plaintiffs by Affidavit filed 7 August 2001. The Summons was heard on 26 February 2002.

The Issues

The disputed facts are:

Whether there was a Committee Meeting to determine the date and Agenda of the Special General Meeting held on 10 December 2000 in accordance with Article 19 of the Club=s Constitution?

The issues for the Court=s determination are:

1. If the said Special General Meeting on 10 December 2000 was null and void then the Plaintiffs ought to be reinstated.
   
2. If on the other hand, the said Special General Meeting on 10 December 2000 was legal then the new Trustees should remain.
   

Background facts

The plaintiffs were appointed Trustees of the Taveuni Country Club (hereafter referred to as the >Club=) pursuant to Article 12.1 of the Constitution of the Club and its Rules on 1 August 1999.

Because of a disagreement upon the appointment of the new bar Manager dispute arose between the plaintiffs and the Committee of the Club when the plaintiffs upon the alleged powers vested in them removed the committee and took control of the Club and temporarily closed it on 25 September 2000.

After a meeting on 28 September 2000 between the plaintiffs and the dismissed committee the said committee was reappointed and it was emphasised that it was necessary that the club be run by the committee and >not a one-man show=.

The dispute however continued and it was again decided by the Committee on 29 November 2000 that >whatever is discussed by the Committee, the President will have the final say= who is the first defendant.

Finally, on Sunday 10 December 2000 there was a Special General Meeting purportedly organised by the defendants when the plaintiffs were removed as trustee and voted in Douglas Thomson and Jai Ram to be Trustees of the Club.

Plaintiffs= contention

Because of the dispute between the plaintiffs and the first defendant, the Club was closed on 24 September 2000 and it is alleged by the plaintiffs that without a committee meeting and without adequate notice, a notice was put up at the Club for a Special General Meeting (SGM) to, amongst other things, dismiss the plaintiffs as Trustees without just cause. That notice was dated 22 September 2000.

The Plaintiff maintains that under Article 12.1 of the Club=s Constitution the Trustees can continue in office >until removed by death, resignation or otherwise=.

When the Club premises was >firstly= opened on the evening of Saturday 9 December 2000 the first plaintiff reported the matter to Police on 10 December but no action was going to be taken as it was a civil matter.

The plaintiffs say that the SGM on Sunday 10 December 2000 is null and void and is of no legal effect because 10 days= notice is required under the Constitution. The plaintiffs say that the Notice for the SGM which took place on 10 December 2000 was posted on the Notice Board of the Club on Thursday 7 December 2000 i.e. three days before the SGM. The plaintiffs say that therefore the meeting is illegal and of no legal effect.

On the question of the removal of the plaintiffs as Trustees by the SGM, the plaintiffs say that it is null and void and of no legal effect because it is contrary to Article 19.1 of the Club=s Constitution.

Defendants= contention

The defendants= response to plaintiffs= affidavit in support is contained in the affidavit of the first defendant (D1) sworn 22 May 2001.

The first defendant admits that the Secretary had placed a notice calling for a special general meeting and that the notice was in accordance with the provisions of the Constitution. He denies receiving any notice placed by the plaintiffs nor does he have any knowledge that the notice alleged was removed. He denied that he was the sole decision maker as alleged and that all issues were resolved at the committee meeting after proper deliberations and voting.

The D1 further submits that the members of the Club have all the rights to dismiss the Trustees when they have no confidence in them. He says that the proposed dismissal was not unconstitutional and illegal and of no effect.

The D1 further said that there were lot of other dissatisfaction with the trustees. They were removed because the defendants did not have any faith in them. The plaintiffs treated the Club as their family affair and had failed to render proper accounts; they are working adversely to the interest of the Club and are making all attempts to keep the Club inoperative.

Determination of the issue

The issue for the Court=s determination is confined to a very narrow compass. In short, as stated hereabove, it is whether the Special General Meeting held on 10 December 2000 was in accordance with Article 19 of the Club=s Constitution?

Article 19 provides:

AThe Committee may at any time call a special general meeting on giving ten days notice such notice shall specify the objects of the meeting and be posted in the Club House and mailed or delivered to each member. No business other than that mentioned in the notice shall be transacted at such meeting. The Committee shall also in like manner call a special general meeting upon receiving a written requisition from not less than twenty per cent of the ordinary members of the Club.@

The affidavit in support of the Originating Summons herein contained a lot of details alleging maladministration by the Committee. There was also counter allegations against the plaintiffs (the Trustees). However, by the time the summons was heard the >issue= was spelt out and I do not therefore propose to concern myself much with a lot of irrelevant matters of complaint from both sides, and will therefore confine myself to deciding whether the meeting of 10 December was constitutional or not in the light of the Constitutional provisions.

There is no dispute that the plaintiffs were appointed the Trustees of the Club on 1 August 1999.

The appointment and powers of Trustees are contained in section 12 which provides:

12.1 There shall be two Trustees who shall be members of the Club. The Trustees shall be elected at a general or a special meeting and shall continue in office until removed by death resignation or otherwise.

12.2 The property of the Club subject to the liabilities thereupon shall be vested in the Trustees in trust for the members for the time being.

12.3 The Trustees shall have the power to borrow and secure the payment of money in such manner and on such terms as they deem expedient and for that purpose to mortgage or charge the whole or any of the property or rights of the Club provided however that the said power shall be exercised in pursuance of a resolution of the Club passed by two-thirds majority of members present and voting at a General Meeting of which proper notice of intention to move such resolution was given.

12.4 All members of the Club whether voting or not and all persons becoming members after the passing of such resolution or not shall be deemed to have assented thereto and to be bound thereby.

Nowhere else in the Constitution is there reference to Trustees concerning their powers except that they are >Officers of the Club= (section 11) which includes APresident, three Vice-Presidents and two Trustees, one Secretary and six Committee Members.@ (ibid).

In the light of these provisions the Plaintiffs as Trustees had no power to dismiss the Committee which they did but later reinstated them perhaps after realizing that they were wrong in doing so.

The >Committee= according to section 11:

ATo consist of the President, three vice-Presidents, one Secretary and eight members who shall be elected annually. All such officers shall be eligible for re-election.@

In this case in so far as s.12 is concerned, the only complaint that the Trustees have is that they were unlawfully >removed=. As the section says they can >continue in office until removed by death resignation or otherwise=. The word >otherwise= is interpreted by the Plaintiffs as removal for >just cause=. As I interpret this section, since they were elected at the >general= or >special= meeting they can only be removed by those meetings and not by the Committee of the Club.

In the case before me they were removed by the purported Special General Meeting.

The validity of their removal is dependent upon whether the so called Special General Meeting of 10 December was constitutional or not.

I shall therefore deal with that aspect of the matter now. No doubt the Trustees have the right to question their removal in this action.

Was the meeting Constitutional?

The plaintiffs say that the defendants were not properly elected as the notice convening the Special General Meeting was not in accordance with the said section 12 as 10 days= notice was not given.

The documentary evidence (exhibit IS 10 in Ian Simpson=s Affidavit) reveals that a Notice of Special General Meeting for Financial Members to be held on 26 November at 11 o=clock at the Club Hose was posted on 22 November 2000. Then there is >IS 17' which states that >the next Special General Meeting will be held at 11 o=clock on 10 December at the Club House=. This Notice was posted on 7 December 2000 according to the 1st Trustee and he has noted it to this effect on IS 17.

Now as far as the meeting of 26 November is concerned, the position was (according to paragraph 25 of the affidavit of defendant Peter Madden sworn 22 May 2001) that:

I made an application for a permit for special general meeting on 27th November, as no meeting was held on 26th November. That the committee members therefore resolved to hold a special general meeting on 10th of December 2001. All financial members were informed of the said meeting in accordance with paragraph 19.1 of the constitution.

The said s19 is clear about the calling of Special General Meeting. But in this case there is no satisfactory evidence from the defendants that 10 days= notice was given. The defendants= have not refuted by documentary evidence or given proof that either a proper notice was posted at the Club House >and mailed, or delivered to each member= as required under the said section.

In the outcome, on the issue of constitutionality of the meeting of 10 December 2000, on the evidence before me I hold that it was held in contravention of the provisions of section 19 of the Club=s Constitution particularly because no proper 10 days= notice was given to members. Consequently, I declare that the meeting was null and void. It therefore follows that the previous trustees= (the two Plaintiff=s in this action) position remains intact and they are still the trustees of the Club. It also follows that the new Committee have not been properly elected and therefore the Committee=s election is also declared null and void.

My decision in effect means that the status quo remains (as it was before the meeting of 10 December 2000) and that the previous Trustees and the previous Committee members still hold their respective positions.

I might mention before parting that should there still be dissatisfaction among the members, the Committee and the Trustees, my only suggestion to the lawful Committee is to act in accordance with the provisions of the Constitution be it the calling of a Special General Meeting or the removal of trustees.

Orders

In the outcome I make the following declarations:

(a) that the purported Special General Meeting of the Taveuni Country Club held on 10 December 2000 was contrary to the Constitution of the Club and is illegal null and void;

(b) that the purported appointment of Douglas Thomson and Jai Ram as Trustees of the Club is ineffective and of no force and that Ian Simpson and Cyril Mitchell remain Trustees of the Club; and

(c) that the previous Committee members before being displaced remain Committee members of the Club.

(d) Each party to bear his own costs bearing in mind the circumstances of this case and their respective roles and actions in this matter.

D. Pathik
Judge

At Labasa
23 April 2002