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Ali v Jamal [2014] FJHC 836; HBC64.2014 (17 November 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 64 OF 2014

BETWEEN:

ABDUL RAHIMAN ALI and MOHAMMED IMTIAZ and MOHAMMED HARUN of Nadi, Fiji, former Committee Members of Nadi Airport Islamic Society.
Plaintiff

AND :

MOHAMMED JAMAL of Martintar, Nadi, Fiji, Chairman of Trustees, Nadi Airport Islamic Society.
1stDefendant

AND:

HAJI ROSHAN ALI and HAJI MOHAMMED AIYUB KHAN of Martintar, Nadi, Fiji, Trustees of Nadi Airport Islamic Society.
2nd Defendant

Counsel:
Mr S Faizal Koya for the plaintiff
Ms L Tabuakuro for the defendant

Date of Hearing : 8 August 2014
Date of Ruling : 17 November 2014

RULING

Introduction

[1] This is an application for discovery.

[2] By summons for discovery filed on 11 June 2014 ('the application') plaintiff seeks the following orders:

1. That the defendants do within 14 days disclose by affidavit copies of Minutes of the Special General Meeting held on the 16th day of February 2014 and/or Special General Meeting held after 30 days from the time the Executive Secretary received the request and if the Defendants have parted with them, when they parted with them and what has become of them.
   
2. That the defendants do within 14 days disclose by affidavit copy of the Notice published by the Executive Secretary that a Special General Meeting will be called after 30 days from receiving the request and if the defendants have parted with them, when they parted with them and what has become of them.
   
3. That the defendants do within 14 days disclose by affidavit copy of the document raising the issue of a Special General Meeting to be called by the full financial Members and if the Defendants have parted with them, when they parted with them and what has become of them.
   
4. That the Defendants do within 14 days disclose by affidavit copy of the amended constitution and if the Defendants have parted with them, when they parted with them and what has become of them.
   
5. That the Defendants do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Plaintiff.
   
6. That the Defendants do file and deliver interrogatories and that the Defendants do answer the interrogatories in the form annexed to the affidavit of Mohammed Imtiaz by affidavit by filing and serving a copy thereof to the Plaintiffs within 14 days from the service of the Order to be made hereon.
   
7. That the Defendants do pay costs of this application.
   

[3] The application accompanies affidavit of Mohammed Imtiaz sworn on 9 June 2014 ('the supporting affidavit').

[4] This application is made pursuant to Order 24 of the High Court Rules 1988 and the inherent jurisdiction of this Court. It is to be noted that the application does not state which rule of O.24 it has been filed under.

[5] Defendants oppose the application. They filed an affidavit of Mohammed Jamal ('affidavit in opposition') sworn on 15 July and filed on 17 July 2014.

[6] At hearing both parties tendered their respective written submissions.

Background

[7] On 25 April 2014 the plaintiffs filed a writ against the defendants seeking damage for defamation allegedly published by the defendants. It is alleged the defendants had acted fraudulently and maliciously in convening a special meeting for the review of the conduct of the plaintiffs as Committee Members and publishing a notice highlighting the alleged defamatory comments. The plaintiffs are former committee members of the Nadi Airport Islamic Society and the first defendant is the Chairman of the Trustees of the said committee. The defendants filed their statement of defence on 16 May 2014. The plaintiffs did not file reply to the statement of defence. Instead, they have filed the application for discovery. They filed the application on 11 June 2014.

Plaintiffs' contention

[8] Counsel for the plaintiffs, Mr Faizal Koya submitted that, the discovery asked for is essential to the claim for damage that the plaintiffs seek in their claim. Indeed the defendant bound to have disclosed them as they are relevant documents which will reflect on the question of damage. The plaintiffs are entitled to all information that relates to the case.

Defendants' contention

[9] The essence of argument of Ms L Tabuakuro, counsel for the defendants is that, the application for discovery under Ord. 24 is premature. The statement of defence has not raised any new issue, it merely disputes the said allegations and maintains that the said meeting has been convened at the request of the members and Executive Secretary and the said comment qualifies a fair comment. The statement of claim has detailed and specifically stated the alleged defamatory comments including references to sections of the Constitution of the said society. The defendants have been sued in their own personal capacity and the documents sought in this application are documents that belong to Nadi Airport Islam Society.

The Law

[10] The application does not specifically state which rule of Ord. 24 it is made under. The application generally states that it is made under Ord. 24. Ord. 24 has 17 rules in it. The application seeks orders against the defendants to disclose certain documents mentioned therein and to state when they parted with them and what has become of them, if the defendants had parted with them. From the nature of the orders that the plaintiffs seek, it can be presumed that they are making this application under Ord. 24, r.7 of the High Court Rules 1988 ('the HCR'). That rule provides that:

'Order for discovery&of palaicular documents<60;(160;(O.24, r.7)

7.7.-(1) Subject to rule 8, the Cmay a timethe application of any party to a cause or matter, make an order requirequiring aing any otny other party to make an affidavit stating wheany document specified or d or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.