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Board of the Reproductive and Family Health Association of Fiji v Varea [2010] FJHC 460; HBC296.2008 (13 October 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 296 of 2008

BETWEEN:

BOARD OF THE REPRODUCTIVE &
FAMILY HEALTH ASSOCIATION OF FIJI
[Plaintiff]

AND:

DR SAKEO VAREA
[Defendant]

Counsel: K I Law for the Plaintiff
Muaror & Co for the Defendant

Date of Judgment: 13th October, 2010

JUDGMENT

[1] This is the defendant's summons for an order that the statement of claim against him by the plaintiff be struck out under Order 18 Rule 18 (1) of the High Court Rules on the following grounds:

1. It discloses no reasonable cause of action against the defendants;
   
2. It is frivolous and /or vexatious and /or scandalous as far as it concern the defendant; and
   
3. It is otherwise an abuse of process of this court as far as it concerns the defendant.
   

[2] In the statement of claim the plaintiff claimed following relief:

1. AN ORDER that the Executive Director be relieved of his duty or his duties as Executive Director immediately;
   
2. A DECLARATION that the Respondent had wrongfully and unlawfully acted against the Board or the Board in its role as RFHAF's governing body in Fiji by acting individually in convening the Annual Branch Delegates Conference on 23rd August 2008 at JJ's on the Park in contravention of the Constitution of the Reproductive and Family Health Association of Fiji.
   
3. A DELECLARATION that the Respondent had acted wrongfully and unlawfully against the Board or the Board in its role as RFHAF's governing body in Fiji by his decision to convene the Annual Branch Delegates Conference contrary to written request by the National President of the RFHAF;
   
4. A DECLARATION that the Respondent had acted against the Board in its role as RFHAF's governing body in Fiji within its Constitution or the Constitution in its governance provisions therein, in direct contravention thereof, by his wrongful refusal to the National President of the RFHAF, and thereby acted wrongfully and unlawfully to the parent body the International Planned Parenthood Federation, to convene a Board meeting to resolve issues;
   
5. A DECLARATION that the Respondent by wrongfully and unlawfully moving or moving out the office of RFHAF without consultation and approval, being a decision that was made individually by him, of the Board or the Board's President incumbent, has exceeded his express powers in the Constitution in direct contravention thereof.
   
6. A DECLARATION that the Respondent directly contravened the Constitution at the AGM of the Central Eastern Branch by acting individually in a wrongful and unlawful manner by actively aiding, supporting and influencing the election of his wife, and the RFHAF's Administrative Financial Controller's son and daughter as Branch delegates to the ABDC.
   

[3] In addition to the writ of summons, the plaintiff further filed ex-parte summons seeking following relief:

1. An order that the respondent is to be immediately relieved of his duties as Executive Director; and,
   
2. An order that the respondent is not to engage, act or hold himself out as the Executive Director.
   

[4] In support of the plaintiff's application, an affidavit was filed by one Albert Mc Laren who was the National president of the Governing Board of the Reproductive and Family Health Association of Fiji.

[5] The plaintiff's initial claim was to relieve the defendant of his duties. The other relief sought by the plaintiff is declaratory.

[6] When the writ of claim is examined, it appears that the plaintiff mainly challenged the role of the defendant at the Annual Branch Delegate Conference and prayed that the defendant's conduct be declared illegal.

Background of the case

[7] The plaintiff in this case is the Board of Reproductive and Family Health Association of Fiji, (hereinafter referred as RFHAF) a body duly incorporated under the provisions of the Charitable Trust Act, Cap 67. The Executive Council of the RFHAF was elected on 09.08.2008. Subsequently, on 23.08.2008 the Annual Branch Delegates Conference was called and Mrs Losalini Matavesi was appointed as the chairperson.

[8] Further, the nominations to the Executive Council from the branches were also decided valid and correct, and was adopted.

[9] The plaintiff's writ of claim was filed on 09.09.2008. Although it does not challenge the validity of the appointment of the Executive Council, it challenges the conduct of the defendant.

[10] When the matter came up before Justice Hikie on 15.09.2008, it was ordered inter alia, to hold the Annual Branch Delegate Conference in order to resolve the following two issues;

1. Whether the current Executive Director should be confirmed in his position or dismissed pursuant to the terms of his contract; and,
   
2. Whether a new Executive Council should be elected and if so, then a further meeting for election of the delegates would be held.
   

[11] Accordingly, the Annual Branch Delegation Conference was held on 18.10.2008. In that conference the current Executive Director was confirmed in his position and the Executive Council was retained.

[12] It was, ordered by the High Court on 27.10.2008, that the Executive Council appointed on 23.08.2008 and confirmed on 18.10.2008, be confirmed as the Executive Council of the Reproductive and Family Health Association of Fiji. It attaches great importance to the substantive issue of this action.

[13] The defendant's position is that, subsequent to the Ruling of the High Court dated 27.10.2008 the plaintiff's claim has come to an end and therefore, the plaintiff cannot maintain this action.

[14] The defendant submitted that if the plaintiff wanted to remove the Executive Director, the provisions of the constitution must be followed.

[15] Having referred to the affidavit of Losalini Mataweci dated 23.10.2008 the defendant further submitted, that the power to dismiss the Director lies with the Executive Council and therefore, the plaintiff's claim is frivolous and vexatious.

[16] On behalf of the plaintiffs, it was submitted that, since the cause of action was acknowledged by the courts the writ of claim is valid.

Relevant legal principles:

[17] Striking out pleadings and indorsements are provided in Orde18 Rule 18 as follows:

18 (1). The Court may at any stage of the proceedings order to be struck out or amended any pleading or indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[18] The caution that should be exercised when, considering applications of this nature was highlighted in following authorities.

'Only in plain and obvious cases that recourse should be had to the summary process under O. 18 R.18(1)' Hubbuck v. Wilkinson [1889]1 QB 86.

[19] This rule can only be invoked when the claim is on the face of it 'obviously unsustainable.' Attorney General of Duchy of Lancaster v. L.N.W.Ry Co [1892] UKLawRpCh 134; [1892] 3 Ch 274.

[20] The Fiji Court of Appeal in National NBF Finance (Fiji) Ltd v. Nemani Buli Civil Appeal No 57 0f 1998 expressed the principles as follows:

'The law with regard to striking out pleading is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided if a legal issue can be raised on the facts as pleaded then the Court will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...'

[21] It is with these principles in mind that I consider the plaintiff's claim. It is apparent on the plaintiff's claim, that it challenged the conduct of the defendant and his involvement in the convening of the Annual Branch Delegate Conference. The affidavit filed by Albert McLaren also stated the same.

[22] However, it could be observed that, the High Court Ruling dated 15.09.2008, mainly addressed the said issue. Further, it could be noted that the purpose of the said Ruling was to provide the members for an opportunity to decide, whether the current Director should be confirmed in his position or dismissed, and also to decide whether a new Executive Council should be elected.

[23] In compliance with the High Court Ruling dated 15.09.2008, the Extra Ordinary Branch Delegates Conference Meeting was held on 18.10.2008. In that meeting, the Executive Director was confirmed in his position and the Executive Council was retained, but the plaintiff has not challenged the validity of that meeting or the conduct of the secret ballot.

[24] Further, it could be noted that, though Mr. Albert McLaren has tendered an affidavit in support of the plaintiff's claim he himself put forth his vote of appreciation for the decision made in the said meeting. The document marked and annexed as SV 4 together with the affidavit of Dr Verea clearly demonstrate the stand, taken up by Mr. Albert McLaren at the time of electing the Executive Director.

[25] Furthermore, the minutes of the Extra Ordinary Branch Delegates Conference Meeting dated 18.10.2010, marked as 'LM 5' contains the concluding remarks made by Mr. Albert McLaren. In that meeting Mr. Albert McLaren has thanked the members for the way in which the meeting was conducted. None of these documents were challenged by the plaintiff.

[26] Hence, the veracity of the affidavit filed in support of the plaintiff's claim is also questionable.

[27] It is important to note, that the 9 additional plaintiffs were no longer in the Executive Council at the time of filing this action because their term ended on 23.08.2008, subsequent to the election of the new Executive Council. Similarly, Albert McLaren was not even a member of the executive council after 23.08.2008. Hence, Albert McLaren could not have had any authority to swear an affidavit on behalf of the Governing board of the Reproductive and Family Health Association of Fiji either.

[28] The main relief sought by the plaintiff is the removal of the Executive Director. According to Article 5.10 (m) of the Regulations of The Reproductive and Family Health Association of Fiji, power to appoint Executive Director is vested with the Executive Council. More importantly, the plaintiff has not challenged the validity of the meetings held on 23.08.2008 and 09.08.2008. As long as these meetings are not challenged the appointment of the Executive Director cannot be challenged either.

[29] Furthermore, on 27.10.2008 the High Court re-affirmed the appointment of the Executive Council, thus determined the substantive issue raised by the plaintiff. Therefore, the plaintiff's claim has virtually come to an end with the High Court Ruling dated 27.10.2008.

[30] Further, Losalini Matavesi in her affidavit dated 26.02.2010, stated that the defendant's term as the Executive Director of Reproductive and Family Health Association of Fiji concluded on 08.01.2010 pursuant to the terms of his employment contract. Therefore, it is apparent that the defendant is no longer the Executive Director of the Board of Reproductive and Family Health Association of Fiji.

[31] It could be noted that the affidavit in reply dated 09.04.2010, filed by Albert McLaren has only two paragraphs. In that affidavit none of these issues raised by Losalini Matavesi have been dealt with.

[32] The other important factor is the failure by the plaintiff to disclose a definite cause of action in the writ of claim. Therefore, it can be clearly seen that the plaintiff's claim is on the face of it unsustainable.

[33] The defendant also submitted that the plaintiff's claim should be struck out because it is an abuse of the process of the court.

[34] The process of the court must be used bona fide and properly and must not be abused. In this action the main issue has already been dealt with by the court pursuant to the order dated 27.10.2008.

[35] Following authorities would throw light as to how the court should decide whether there is an abuse of process.

In Stephenson v.Garrett [1898] 1 Q.B.677 it was held:

'It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata.

[36] Domer v.Gulf Oil (Great Britain) (1975) 119 S.J.392 'Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court.'

[37] Steamship Mutual Association Ltd v. Trollope and Colls (city) Ltd (1986) 33 Build.L.R. 77, C.A.

'The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out.'

[38] In the present case the relief sought by the plaintiff is mainly of declaratory nature. Subsequent to the High Court Order dated 27.10.2008 the plaintiff's claim is no longer maintainable, as the issue of the election of the defendant to the Executive Council was dealt with by the said order.

[39] Therefore, I conclude that seeking this courts indulgence to remove the Director is a clear abuse of process.

[40] On the above premise, I am of the view that the plaintiff's statement of claim is baseless and does not disclose a cause of action against the defendant. Further, in view of the High Court order dated 27.10.2008 the plaintiff's claim has come to an end and therefore, cannot be maintainable.

[41] The plaintiff's substantive action is therefore struck out with costs to the defendant, which is to be taxed unless agreed.

Pradeep Hettiarachchi
JUDGE