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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC0088 OF 2004
BETWEEN:
FAIYAZ ALI
f/n Ramzan Ali of Drasa Vitogo, Lautoka
Plaintiff
AND:
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
First Defendant
DEVENDRA DASS
Second Defendant
PRAMOD RAE
Third Defendant
Counsel: Mr. S. Chandra – for the Plaintiff
Mr. V. Kapadia – for the Defendants
Date of Hearing: 10-11 August & 30 September, 2004
TRIAL MINUTE
Introduction
These proceedings relate to elections held by the Fiji Bank and Finance Sector Employees Union for the post of National Secretary.
The plaintiff nominated one Dr. Chand. Dr. Chand is not a party to the proceedings but it is clear he has inspired them. The first defendant is the subject union (“The Union”). The second defendant Devendra Dass was at the relevant time the Assistant National Secretary and the Returning Officer for the election. The third defendant Mr. Pramod Rae was the opposing candidate to the plaintiff’s nominee. Mr. Pramod Rae was overwhelmingly elected to the position of National General Secretary.
The Plaintiff’s Case
In his opening address counsel for the plaintiff emphasized that there were two major parts to the claim.
He said the first might be determinative of the matter. Apparently the Labour Ministry has the delegated authority to supervise the conduct of union elections. A union is obliged to give an appropriate 21 day period of notice for the conduct of an election. This is in accordance with Section 10A(a) of the Trade Unions Amendment Regulations 1991. It was claimed in the opening address that the Union failed to give the appropriate notice and that the election was accordingly null and void.
The plaintiff then went on to bracket a second group of his claims. It was submitted that while any one of these complaints on its own may not be sufficient to argue that the election should be declared null and void, nonetheless in combination, they are sufficient to demonstrate prejudice and unfairness to such an extent that the Court should make such a declaration.
Counsel submitted:
The Pleadings
The pleadings are defective in a number of respects. They follow a general narrative format rather than a bare statement of allegation. There is no clear cause of action. The prayer for relief apart from an unsupported claim for damages seeks declarations and orders undoing the democratic election process. The pleadings and prayer appear more like a set of judicial review proceedings then anything else. They have not been bought as such.
Witnesses
The plaintiff first called Kamaal Singh Verma, a Bank Officer and Union Member. He lives at Ba. In accordance with the agreed process he confirmed the contents of his affidavits and then proceeded to give some evidence in chief emphasizing the difficulties over nomination, the absence of ballot boxes and instructions given concerning voting. Under cross-examination he confirmed that his affidavit evidence was largely inspired by Dr. Chand although he did check a draft and then signed a final copy adopting the statement as his own.
He conceded that although there was difficulty nominating Dr. Chand he was nonetheless able to do so.
He conceded that he had an opportunity to consider the matter before he voted. He retracted paragraphs 18 and 19 of his primary affidavit (Verma 1) thereby taking away much of the impact of his evidence. Although I note in passing that the statements made were very vague and not factually supportable. He also qualified paragraph 20 of this affidavit an allegation that in effect although claiming privacy to the nominal role for the union the second defendant had in fact released his name to Dr. Chand to allow nomination to proceed in the first place.
I generally found this witness lacked credibility primarily because it became increasingly obvious that while he may have adopted the words of a draft affidavit sent to him they were not his own and he was therefore left uncomfortably trying to justify the statements made. He was in particular vague about paragraph 28 of his primary affidavit (Verma 1) and the impact of the 21 day notice rule saying that was a comment essentially prepared by Dr. Chand and then e-mailed to him.
He conceded at the end of the day that in his branch in Ba there were no problems with the voting and that the receipt of the ballot papers, their processing and despatch was correct and fair.
Under re-examination he confirmed to his own counsel that he believed he had enough time to vote and that he carefully thought about his vote before he cast it. In answer to questions from the Court he confirmed that he was able to fairly exercise his right of choice between the candidates and that he had adequate time before voting to make an informed decision.
The defendant then as a matter of trial convenience interposed a witness summoned by himself. This was the Assistant Registrar of Trade Unions. As he appeared under summons there was no agreed brief or affidavit from him.
He gave evidence that he had the delegated responsibility of supervising union elections in Fiji.
He confirmed a process of meetings with the union to prepare for the election. He confirmed that the appropriate 21 day notice was given under the act and that the postal balloting system proposed was a normal procedure and quite fair. He confirmed by reference to documents 13 and 14 in the agreed bundle that supervisors had been appointed to oversee the packaging and despatch of ballot papers, their return and counting. He confirmed that the supervisors had no complaint about any of these processes (i.e.) there was no irregularity in the preparation and despatch of ballot papers, their return or counting.
He confirmed that Dr. Chand had complained (I infer vigorously) concerning the process of the election and its fairness.
The Registrar went further to say that under the Legislation he not only had the obligation to supervise elections but also had an investigatory role in respect of any complaints made about them.
He confirmed receiving Dr. Chand’s complaints and that he had investigated each one of them. He then made a recommendation to the Registrar. Although the ultimate decision was not his he was able to confirm that at this point in time it appeared unlikely that the election would be declared invalid.
I find this evidence to be extremely important for the purposes of resolving this case.
It is a settled principle of law that the Courts should not interfere in the executive’s process of decision making and substitute a decision of its own. This is particularly so in the absence of the executive decision or during the process of investigation before a final decision has been made.
It is equally clear under the Legislation the Labour Ministry has the delegated responsibility to supervise elections and make enquiries over any complaint. Dr. Chand has made several complaints about the process of this election. Those complaints have been investigated and recommendations made. It appears those recommendations are likely to be that there was no irregularity in the election. However, there has been no formal announcement of the result of that investigation as these proceedings dissuaded the Registrar from completing his task in that regard. In short, inspired by Dr. Chand, the plaintiff has jumped the gun.
For this reason at the conclusion of proceedings on day 1 I retired to chambers and had a discussion with both counsel concerning this evidence and the continuing progress of the trial. Putting to one side the defects in the pleadings and the failure of the plaintiff’s first witness to come up to brief, it was nonetheless clear after the evidence of the Assistant Registrar of Trade Unions that the matters raised by the pleadings may require airing in subsequent proceedings.
I thought it prudent to offer plaintiff’s counsel the opportunity of consenting to non-suit. It appears that non-suit is not a fashionable practice in Fiji. It is nonetheless still an appropriate relief available to a plaintiff who may have a valid claim but finds either on the eve of trial or in the course of trial that they are embarrassed by their proceedings and can only salvage the situation by reserving the right to argue the subject matter again in a Court of concurrent jurisdiction on another occasion.
In the usual course the Court cannot non-suit the plaintiff after his opening and the proceedings have commenced without the consent of his counsel. An example of the practice can be found in Fletcher v London and North Western Railway Company, QBD 1892 p.122 and also The Directors of the Dublin Wicklow and Wexford Railway Company v Judith Slattery. A decision of the Privy Council recorded in volume 3 Privy Council Decisions 1155.
I gave counsel time to reflect on his position and take new instructions. Regrettably his instructions did not confirm the wisdom of non-suit, he elected to press on with this case. He called a further witness; the plaintiff himself, Mr. Faiyaz Ali.
I note some disquiet that the truly aggrieved party, the failed Dr. Chand, has not brought these proceedings but rather inspired his nominator to do so. I record that I warned counsel for the plaintiff in chambers over the possibility of a conflict of interest in the event of an unsuccessful claim. I received his assurance that the matter had been resolved and that there was no conflict.
Mr. Ali was an articulate and thoughtful gentleman. He was appointed a Liaison Officer by the Union of which he had been a member since 1993. He confirmed he arranged the nomination of Dr. Chand and described the difficulties he had in doing so. He had not participated in a major union election prior to this one.
His first concern was that Dr. Chand was denied excess to the union member’s roll. However, he conceded that this may have been for the reason that Dr. Chand was not a member of the union and therefore strictly in accordance with the Constitution he was not entitled to see the membership roll.
In evidence in chief he was concerned that there may have been pressure on union members to vote as quickly as possible thus denying them thoughtful consideration of the candidates. He claimed that despite written instructions to liaison officers directing that members were to have adequate opportunity to vote he received a “hurry” up call demanding almost immediate voting.
He too was not confident of his ground over the importance of the 21 day notice rule. He was not that familiar with the relevant provisions.
Under cross-examination his evidence was successfully attacked. Any reservation he had about the time available for members to consider their vote was swept aside by his concession that liaison officers were given a specific instruction in writing that “all members were to have an adequate opportunity to vote” (see document 24 in the agreed bundle). He confirmed that in his branch at Lautoka all members were present on the morning that the despatched ballot papers were received and that they were all able to vote very quickly and that the elections that occurred in his branch were fair, proper and above board.
Although the witness raised a hypothetical concern about the processes of balloting and voting he had no specific instances of rigging, tampering or interfering with the postal process. Indeed he went further to say that he had no actual complaints about any of those matters.
While he criticized the union for its tardiness in accepting the nomination he appeared to accept some responsibility for the lateness of the filing of that nomination himself. His prime complaint was that it was unfair for the union to schedule the election so quickly after the late nomination of Dr. Chand.
In answer to questions from the Court he confirmed that he participated in the process of complaint to the Registrar of Trade Unions about the election together with his nominee Dr. Chand. He confirmed that largely the same complaints made out in the Statement of Claim were made to the Registrar. He said he wanted the Registrar to declare the election null and void.
He confirmed he was awaiting a decision from the Registrar.
The plaintiff then proceeded to call Dr. Chand. He explained the difficulties he had in having his nomination accepted and the frustration he felt at the lack of administrative support for his candidacy, particularly demonstrated by the Union pressing on with its election at short notice effectively denying him any opportunity to campaign. He had observations about the “postal ballots” process. In his experience at University and Parliament he said that must mean actual posting to individual voters. He has always in the past found the postal balloting meant that individual voters should receive their individual voting forms through the post.
Somewhat importantly near the conclusion of day 2 he confirmed that he had complained to the Registrar of Trade Unions about the election process right throughout the election and after it. He had some 16 lengthy pieces of correspondence with the Registrar about these complaints. None of these materials had been “discovered” for this case. He confirmed that some of those complaints had been answered (see agreed bundle document 30) but that he had not yet received an answer from the Registrar as to whether the election was null and void.
I should again record at this point that at the conclusion of evidence on day 2 shortly after 4.30pm I retired to chambers and invited counsel to join me.
In the light of the clear evidence given by the last two plaintiff witnesses I raised again the opportunity of non-suit with the plaintiff. I explained to him in relation to decisions which I have earlier referred that this practice may at least preserve for his client or Dr. Chand the right to argue these matters again in some other forum. He would not consent and elected to proceed.
It was clear that counsel's original estimate for the length of trial was hopelessly inadequate. The estimated two days was never going to be sufficient to complete the matter. Accordingly, after consultation with diaries I directed that the matter re-commence again on the 30th of August.
Resumption of Hearing
The matter was scheduled for resumption on the 30th of August 2004.
In the intervening period plaintiff’s counsel decided to amend his claim and gave notice by letter of the 26th of August 2004 that the resumption of the hearing may have to be vacated.
The fixture was vacated and a mention of the matter proceeded in its place with the plaintiff arguing to amend his claim. The plaintiff was, however, not fully prepared to proceed that day and the matter was adjourned again at his request to the 9th of September for mention.
At that date the plaintiff had withdrawn his original draft application for leave to amend and add parties and again sought time to file a further application to amend. The defendants did not oppose the making of that application but otherwise reserved all their rights. The matter was listed for mention again on the 27th of September.
On the 15th of September an inter-parte motion to amend the statement of claim was filed supported by affidavits by the plaintiff and Dr. Chand.
30th of September
Defendants counsel was unavailable on the 27th of September. The matter was recalled on the 30th of September. The plaintiff’s application for amendment and joinder was refused for the following reasons:
Plaintiff’s counsel was again given the choice to consent to non-suit or proceed with this hearing. He elected to resume the fixture. I indicated to the plaintiff’s counsel that in my view the proceedings had been mis-managed from the outset and that any claim for urgency was now totally exhausted and the matter would go back into my ordinary call-over list for the allocation of a resumed hearing or fixture on notice.
This procedure was adopted to take into account counsel’s availability. Plaintiff’s counsel sought a fixture before the 25th of October but was away between the 25th of October and the 19th of November and had some dates available after the 22nd of November. Defence counsel had some dates available after the 20th of November.
It was estimated the trial would take a further 3 days to complete and at that time the Court did not have 3 days available in its calendar.
Accordingly, the following orders were made:
I also directed the typing of the record of the part heard case.
The file can now await any application by the plaintiff for resumption of fixture.
At the date of finalizing this minute no application for resumption of the fixture has been made. The record has not been typed. I direct a further call for mention on the 14th of January, 2005.
Gerard Winter
JUDGE
At Suva
30th September and
14th December, 2004
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