IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0072 OF 2004

BETWEEN:

ANAY SUMESHWAR YADAV, SHIU NARAYAN,
JOSEPH PRASAD,
NIRANJAN and RAJENDRA PRASAD
Plaintiffs

AND:

CHIEF EXECUTIVE OFFICER EDUCATION
First Defendant

MINISTRY OF EDUCATION
Second Defendant

GURUDAYAL, Principal of Nausori
Third Defendant

ANAND RAM SHARMA of Nasinu
Fourth Defendant

PARVIN SARUP of Nasinu
Fifth Defendant

Counsel: Mr. Singh - for the Plaintiffs
Mr. Raikadroka - for the 1st, 2nd and 3rd Defendants
Mr. N. Shivam - for the 4th and 5th Defendants

Date of Hearing: 21st December, 2004
Date of Judgment: 1st February, 2005

JUDGMENT

Background:

This is an application by the plaintiffs for stay pending appeal filed on the 2nd of November 2004 in respect of my Judgment dated the 1st of October 2004. I note in that regard that paragraphs 7 and 8 of the appellants’ submissions in answer received by the High Court on the 14th of January 2005 are in error. The subject of my appeal is a decision of the 1st of October 2004 not a decision of the 1st of December 2004 as referred to in counsel’s submission.

The facts leading to the dispute are described in my earlier extempore ruling of the 11th of June 2004 and again in the judgment under appeal where I said:

“Two factions within a school (run by the Sanatan Dharam Mahamandal hereafter “the Mahamandal”) have remained unable throughout the latter part of 2003 and all of 2004 to come to any amicable arrangements concerning the resolution of constitutional and political differences over the governance and management of the school.

The plaintiffs filed an originating summons seeking certain declaratory orders on the 1st of March 2004. They effectively seek political control of the Board of Trustees. The fourth and fifth defendants representing a group of disenfranchised members of the organization opposed that summons.

As this was clearly a matter affecting the best interests of children I encouraged the parties to resolve their differences by a process of alternate dispute resolution. A settlement conference took place on the 16th of March and resulted in the parties entering a Memorandum of Understanding which for the sake of completeness is annexed to this decision at appendix A. 

That memorandum set up a neutral process of future elections for the school Board of Trustees that would allow a fair and even democratic process to resolve the bitter political dispute between the parties.

In essence the agreement provided for a cooling off period during which the two factions could gather their membership together prior to an agreed AGM being held. At the AGM there would have been opportunity for a change of office bearers by proper democratic process and the new Board thereafter for the greater benefit of the children would govern and manage the interests of the school.

The first, second and third defendants, the Ministry of Education and School Principal, have indicated a willingness to abide the decision of the Court.”

The Application

The plaintiff appellants rely heavily on the fact that the originating summons of the 1st of March 2004 has remained undisputed as no defence has been filed. In this application they ignore the fact that they attended a settlement conference which resulted in a comprehensive Memorandum of Understanding between the parties dated 16th March 2004. When the plaintiff signed the memorandum they were represented by senior and competent counsel. They made comprehensive and unequivocal agreements. In the best interests of the children they laid to one side their originating summons. However, when the plaintiff realized it could not retain political control for the management and governance of the school it sought to resile from that memorandum and frustrate the democratic process created by it.

In those circumstances no defence was called for or indeed necessary as the pivotal reference point remains that memorandum of the 16th of March 2004. Based on that memorandum I granted the ex parte injunction brought by the 4th and 5th defendants. That memorandum was supported in my decision of the 1st of October which is now the subject of this appeal.

In further support of the stay application the plaintiffs argued that the orders of the court have lead to the unconstitutional appointment of additional members of the Mahamandal. It is further claimed that the orders I made on the 1st of October 2004 were contrary to the constitution of the Mahamandal and have lead to the unlawful calling of a further AGM, appointment of officers and by inference the unlawful conduct of school business.

Based on these submissions counsel says that the prospect of success on appeal is strong.

The Response

The 1st, 2nd and 3rd defendants have maintained their position of abiding the decision of the court. The 4th and 5th defendants argue that the plaintiff appellants should not be allowed to resile from the consents and agreements given in the memorandum of the 16th of March 2004. They further argue that Article 13 (‘sic’) of the International Convention on the Rights of the Child (which Fiji ratified in 1993) applies even to the stay application and therefore the prime consideration must be the best interests of the school children. Counsel was, I believe, in fact referring to Article 3 of that Convention.

Decision

Section 39(1) of the Constitution (Amendment Act 1997) declares that every child has a right to basic education. Section 43 of the Constitution obliges me to have regard to public international law. These provisions when taken together with Article 3 of the Convention on the Rights of the Child must mean that the prime consideration in these civil proceedings and in particular the stay application are the best interests of the school children.

Article 3 of the Convention in part reads:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration.”

The Ministry of Education has a mandate under section 3 of its enabling act (Education Act Cap. 262) to ensure that children are provided efficient instruction and training. The Ministry must promote the best interests of the child.

There are 700 children at this school. Their right to education has been prejudiced throughout 2003 and 2004 by the bitter infighting between the political factions governing and managing the school. The Ministry tried on several occasions to mediate between the parties. When proceedings were filed the parties agreed to lay aside their political differences in preference for the best interests of the children. It was those interests that underscored and promoted the settlement contained in the memorandum of the 16th of March 2004.

In my view the plaintiff appellants having signed that memorandum then attempted to resile from it because they could not accept the political reality that their opponents would oust them at the subsequent AGM. No matter how learned counsel for the appellant plaintiff tries to dress up his appeal or argument in support of the stay these facts are at the heart of the matter.

In Reddy’s Enterprises Limited v The Governor of the Reserve Bank of Fiji, ABU0067 of 1990, The Fiji Court of Appeal at page 10 said that when dealing with an application for stay the courts had to consider the nature and purpose of the appeal, prejudice to the parties if the application was granted or refused and the balance of convenience. 

I find that there is no practical purpose to the appeal. If the appeal against my decision of the 1st of October 2004 is successful in my view, the parties return to the position detailed in the memorandum of the 16th of March 2004. The plaintiff appellants do not have the support necessary to frustrate the current democratic process without first seeking a series of declarations from the High Court concerning the constitutionality of post memorandum membership, appointments and meetings. In my view even if the appeal is successful it does not advance the appellants cause. Apart from the establishment of principle the appeal lacks any practical merit.

The Ministry of Education has recognized the 4th and 5th defendants group. I infer that financial grants for the 2004 and 2005 academic year will be paid because of that certainty. A school cannot operate without funding. I accordingly find that the 4th and 5th defendants in their present role as governors, trustees, or managers of the school would be extremely prejudiced if a stay application was granted because their ongoing relationship with the Ministry of Education might be frustrated and funding for the school denied.

The balance of convenience in my view favours the 4th and 5th defendants. In terms of the memorandum signed on the 16th of March 2004 they have practical control of the school and the responsibility for the education, care and welfare of several hundred children. They honoured the Memorandum of Understanding, the plaintiff appellants have not.

Finally, the academic year is about to start. What this school needs at this time is a degree of certainty and stability. I find that the 4th and 5th defendants are able to provide that at this time. In my view that stability and consistency can only promote the best interests of the children. Those interests must be my prime consideration in this stay application. Conversely if I were to grant a stay application at this stage there would inevitably be some uncertainty and consequent instability in the good governance, control and management of the school. I can therefore see no common sense or good purpose being served by granting a stay application.

The plaintiffs must of course be absolutely free to pursue their appeal and establish some perceived meritorious principle. However, that right to pursue an appeal does not entitle them to a stay especially when a stay would compromise the best interests of the school and its children.

For these reasons the application for stay is dismissed. I reserve costs in the cause to follow the appeal but indicate my view that an award of costs on an indemnity basis would be justifiable.

Gerard Winter
JUDGE

At Suva
1st February, 2005