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Padayachi v Gounder [2017] FJHC 184; HBC228.2016 (17 February 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 228 of 2016

BETWEEN:

GOVIND SAMI PADAYACHI

First Plaintiff/Applicant

NARSA REDDY

Second Plaintiff/Applicant

AND:

DAMENDRA AMAS GOUNDER

First Defendant/Respondent

KUMAR SAMI GOUNDER

Second Defendant/Respondent

SOM PADAYACHI

Third Defendant/Respondent

SAILENDRA KUMAR

Fourth Defendant/Respondent

PRAGDISHWARAN GOUNDER

Fifth Defendant/Respondent

VIJAY NARAYAN

Sixth Defendant/Respondent

MUNI KAMLESH NAIDU

Seventh Defendant/Respondent

Counsel: Mr D. Sharma and Mr V. Singh for Plaintiffs/Applicants

Mr S. Ram for Defendants/Respondents

Date of Hearing: 16 February 2017

Date of Ruling: 17 February 2017

RULING (Application for Interlocutory Injunction and Application for Joinder by Plaintiffs)

1.0 Introduction

1.1 By Summons filed on 10 February 2017, the Plaintiffs as Applicants seek following orders:-

“A. The Then India Sanmarga Ikya Sangam be joined as a Defendant to the Amended Originating Summons herein.

2. The First to Seventh Defendants along with the Then India Sanmarga Ikya Sangam together with their servants or agents be restrained from doing or assisting in any way (either directly or indirectly) whether by participation or otherwise from holding the Annual General Meeting of the Then India Sanmarga Ikya Sangam on 2017 or any other date until further order of this Court.”

1.2 Following Affidavits were filed by the Applicants:-

(i) Affidavit in Support of Narsa Reddy sworn and filed on 10 February 2017 (“Reddy’s 1^st Affidavit”);

(ii) Supplementary Affidavit in Support of Narsa Reddy sworn and filed on 10 February 2017 (“Reddy’s 2^nd Affidavit”);

(iii) Affidavit of Pravin Kumar Bala sworn and filed on 10 February 2017 (“Bala’s Affidavit”);

(iv) Affidavit of Dorsami Naidu sworn and filed on 10 February 2017 (“Naidu’s Affidavit”).

1.3 On 16 February 2017, Counsel for Applicants and Respondents made oral submissions in respect to the Application for Joinder and Injunction and the Application was adjourned for Ruling to be delivered today.

2.0 Background Facts

2.1 Background facts appear from the Affidavits filed in this proceedings.

2.2 All parties are members of Then India Sanmarga Ikya Sangam (“TISI”).

2.3 The objectives of TISI is listed in Clause 3 of its Memorandum of Association of TISI.

2.4 The Annual General Meeting of TISI was scheduled to take place on 29 May 2016, in Nadi which meeting was called off, by the then executives of TISI.

2.5 Some members of TISI convened a meeting on 29 May 2009 which they called Annual General Meeting and appointed an interim committee and it convened an Annual General Meeting of TISi.

2.6 TISI on its own right and as parent body of its youth branch Then India Valibor Sangam Fiji (“TIVSF”) filed proceedings in Lautoka High Court being Civil Action No. 98 of 2016 against Dorsami Naidu, Praveen Kumar Bala, Raja Kumaran and Jai Narayan (“Lautoka Action”).

2.7 Lautoka Action was settled by Terms of Settlement dated 30 June 2016, (Annexure “DAG6” of Damendra Gounder’s Affidavit sworn on 14 September 2016) and on 1 July 2016, High Court Lautoka made Orders which was in terms of the Terms of Settlement.

2.8 Annual General Meeting of TISI was called on 28 August 2016, at 12.00pm but at certain stage of the meeting it was cancelled at the direction of Police Department.

2.9 On 29 August 2016, First Defendant declared that the Defendants were elected unopposed to following positions as appears from Annexure “C” of Affidavit of Narsa Reddy sworn on 8 September 2016:-

President Damend Gounder

Secretary Kumar Sami Gounder

Treasurer Som Padayachi

Vice President (Southern) Sailendra Kumar

Vice President (North Western) Pragdishwaran Gounder

Vice President (South Western) Vijay Narayan

General Secretary (Administration) Muni Kamlesh Naidu

2.10 On 8 September 2016, Applicants commenced this proceedings.

2.11 On same day the Applicants filed Ex-parte Application seeking following interim orders:-

“A. The Defendants by themselves or by their servants agents or otherwise howsoever be restrained from acting as the National Executives of the Then India Sanmarga Ikya Sangam including calling any meetings of the Then India Sanmarga Ikya Sangam or council of management meetings or any meetings and from dealing with the financial and administrative affairs of the Then India Sanmarga Ikya Sangam whatsoever until further order of the Court.

2. That the Defendants pay the costs of and occasioned by this application.”

2.12 The Injunction Application was called on the same day at 4.30pm when following Interim Orders were granted:-

“A. The Defendants by themselves or by their servants, agents or otherwise howsoever be restrained from acting as the National Executives of the Then India Sanmarga Ikya Sangam including calling any meetings of the Then India Sanmarga Ikya Sangam or council of management meetings or any meetings and from dealing with the financial and administrative affairs of the Then India Sanmarga Ikya Sangam whatsoever until further order of the Court.

2. Plaintiffs do serve all documents including order on the Defendants by 4pm tomorrow, (9/09/16).

100. Defendants do file and serve Affidavit in Opposition by 16^th September 2016.

4. Plaintiffs do file and serve Affidavit in Reply by 21^st September 2016.
5. Matter adjourned for mention on 22^nd September 2016 at 9.30am.”

2.13 On 15 September 2016, Respondents filed Ex-parte Summons dated 15 September 2016, (which was converted to Inter-parte Summons) seeking Orders in following terms:-

“1. The injunction order granted ex-parte by this Honorable court made until further order of the Court on the 8^th September 2016 to be dissolved forthwith.

2. The Originating Summons filed by the Plaintiffs against the Defendants be struck out on the following grounds:-

(a) It discloses no reasonable cause of action.

(b) It is frivolous and/or vexations and/or scandalous.

(c) It is otherwise an abuse of process of the court.

(d) That this court does not have jurisdiction to hear this matter.

3. That the matter be transferred to Lautoka High Court.
4. That there be abridgment of time for filing and service of this Application.
5. Costs in favour of the Defendants against the Plaintiff on an indemnity basis.”

2.14 Respondents Application was called on 16 September 2016, before his Lordship Justice Mutunayagam when by consent following Orders were made:-

“1. The Defendant shall be entitled to pay the salary of the persons itemised in paragraph 46.1 to 46.4 of Affidavit of Damendra Amas Gounder filed on the 15^th September 2016.

2. Matter to be called before Honourable Justice Mr. Kamal Kumar on the 20^th September 2016.
3. Plaintiff to file Affidavit in Opposition within 7 days (22/09/16).”

2.15 On 22 September 2016, this Court varied the interim Order as follows:-

“1. The Injunction orders granted on 8^th September 2016 is varied as follows:-

1. The Defendants by themselves and/or their servants and/or their agents howsoever be restrained from acting as national executives of the Then India Sanmarga Ikya Sangam (“TISI”) or calling of Council of Management meeting or any other meeting or commencing or completing any capital projects until further order of the court.
2. The current signatories to TISI Head Office operating account, Sangam College of Nursing (SCN) operating account, Sangam Institute of Technology (SIT) operating account, namely Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker sign the cheques in respect to the operating account of TISI Head Office, SCN and SIT including but not limited to staff salary and cheques to all payments to creditors listed in annexure DAG 11 of the Affidavit of Damendra Amas Gounder sworn on 14^th September 2016 and filed on 15^th September 2016 until further order of this court.

100. The signatories, namely, Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker submit details of all payments made to the Court on a fortnightly basis until further order of this court.

2. Costs for the day is costs in the cause.”

2.16 On 20 October 2016, this Court delivered ruling in respect to Application for Interlocutory Injunction and made following Orders:-

“a) The Defendants by themselves and/or their servants and/or their agents howsoever be restrained from acting as national executives of the Then India Sanmarga Ikya Sangam (“TISI”) or calling of Council of Management meeting or any other meeting or commencing or completing any capital projects.

2. The current signatories to TISI Head Office operating account, Sangam College of Nursing (SCN) operating account, Sangam Institute of Technology (SIT) operating account, namely Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker sign the cheques in respect to the operating account of TISI Head Office, SCN and SIT including but not limited to staff salary and cheques to all payments to creditors listed in annexure DAG 11 of the Affidavit of Damendra Amas Gounder sworn on 14^th September 2016 and filed on 15^th September 2016.

100. The signatories, namely, Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker submit details of all payments made to the Court on a fortnightly basis until further order of this court.

(ii) Defendants Application to Strike Out this Action, Dissolve injunction and Transfer this proceedings to Lautoka by Summons dated and filed on 15 September 2016, is dismissed and struck out.

(iii) Costs of Application for Injunction by Summons filed on 8 September 2016, and Application to Dissolve Interim Injunction, Application to Strike Out the Action and Application to Transfer this action to Lautoka Registry be costs in the cause.”

3.0 Application for Joinder

3.1 Order 15 Rule 4(1) of the High Court Rules provide:-

“4.-(1) Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where-

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.”

3.2 Whether to grant leave to joinder party to the proceedings is a discretionary matter and the discretion is to be exercised judicially.

3.3 Counsel for Respondents opposed the Application for joinder and submitted the party to be joined, being Then India Sanmarga Ikya Sangam has not been served with the Application the joinder and as such should not be joined as party.

3.4 With all due respect, this Court is of the view that there is no need to serve the party that needs to be joined as a Defendant.

3.5 Pursuant to Order 14 Rule (2) any party to be joined as Plaintiff needs to give consent.

3.6 It is not doubted that the relief sought by the Applicant in the Amended Originating Summons directly affects TISI, the party sought to be joined.

3.7 Therefore in the interest of justice and in exercise of this Court’s discretion Then India Sanmarga Ikya Sangam is joined as a party to this proceeding.

4.0 Application for Interim Injunction

4.1 It is undisputed and well established that this Court has unfettered discretion as to whether to grant the interlocutory injunction or not, which discretion of course is to be exercised judicially.

4.2 The principles to be applied in respect to Application before this Court, is that stated by Lord Diplock in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396 which are:-

(i) Whether there is a serious question to be tried;

(ii) Whether damages would be adequate remedy; and

(iii) Whether balance of convenience favor granting or refusing Interlocutory Injunction.

4.3 Lord Diplock in American Cyanamid v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396 stated as follows:-

“My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex-hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19^th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages of the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

4.4 In Series 5 Software v. Clarke [1996] 1 All E.R. 853 Justice Laddie stated that the proper approach in dealing with Application for Interlocutory Injunction is as follows:

“(1) The grant of an interim injunction is a matter of discretion and depends on all the facts of the case. (2) There are no fixed rules as to when an injunction should or should not be granted. The relief must be kept flexible. (3) Because of the practice adopted on the hearing of applications for interim relief, the court should rarely attempt to resolve complex issues of fact or law. (4) Major factors the court can bear in mind are (a) the extent to which damages are likely to be an adequate remedy for each party and the ability of the other party to pay, (b) the balance of convenience, (c) the maintenance of the status quo, and (d) any clear view the court may reach as to the relative strength of the parties’ cases.”

4.5 His Honour Justice Cook in Klissers Farmhouse Bakeries Ltd v. Harvest Bakeries Ltd[1985] NZCA 70; [1985] 2 NZLR 129 at 142 (paragraphs 20-30):-

“Whether there is a serious question to be tried and the balance of convenience are two broad questions providing an accepted framework for approaching these applications ... the balance of convenience can have a very wide ambit. In any event the two heads are not exhaustive. Marshalling considerations under them is an aid to determining, as regards the grant or refusal of an interim injunction, where the overall justice lies. In every case the judge has finally to stand back and ask himself that question. At this final stage, if he has found the balance of convenience overwhelmingly all very clearly one way ... it will usually be right to be guided accordingly. But if on the other hand several considerations are still fairly evenly posed, regard to the relative strengths of the cases of the parties will usually be appropriate. We use the word “usually” deliberately and do not attempt any more precise formula: an interlocutory decision of this kind is essentially discretionary and its solution cannot be governed and is not much simplified by generalities.”

Serious Question To Be Tried

4.6 The Application for Interlocutory Injunction must establish that there is a serious question to be tried.

4.7 It is well established that the test for serious question to be taken is that the evidence produced to Court must show that Applicant’s claim is not frivolous, vexatious or hopeless.

4.8 In American Cyanamid Lord Diplock stated as follows:-

“In those cases where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing of an application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral examination.” (p 406)

“It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence in affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.” (p 407)

4.9 His Lordship further stated as follows:-

“In view of the fact that there are serious questions to be tried upon which the available evidence is incomplete, conflicting and untested, to express an opinion now as to the prospects of success of either party would only be embarrassing to the judge who will have eventually to try the case.”

4.10 The Applicants by Amended Originating Summons dated and filed on 10 February 2017, seeks following reliefs:-

“A. A declaration that the appointment of the Defendants as the National Executives of the Then India Sanmarga Ikya Sangam on 28 August 2016 is void;

2. An order that a properly constituted General Meeting of the Then India Sanmarga Ikya Sangam be held to elect the National Executives of the Then India Sanmarga Ikya Sangam.

100. That the Interim Committee appointed by the members who attended the Then India Sanmarga Ikya Sangam on 29 May 2016 at Nadi Special School be hereby allowed to manage the affairs of the Then India Sanmarga Ikya Sangam until a General Meeting is called to elect members to the National Executive.

4. That any decision made by the persons holding themselves out as the National Executive after 29 May 2016 to suspend and disqualify members from standing as candidates for the position of National Executives in the Then India Sanmarga Ikya Sangam be set aside forthwith and a further order that these persons be allowed to contest the elections for the post of National Executives if they duly meet all other requirements to stand as candidates.
5. Such further or other reliefs as this Honourable Court deems fit and proper.
6. Costs of this action.”

4.11 This Court holds that the relief sought by Applicants are not frivolous, vexatious or abuse of Court process and confirms its finding on 20 October 2016, that there are serious questions to be tried.

Whether Damages would be Adequate Remedy

4.12 This Court repeats its statement in the Ruling delivered on 20 October 2016 which was in following terms:-

“3.30 It is undisputed that the Plaintiffs and Defendants are members of TISI and any position held by them in TISI is voluntary and as such no income or profit is derived by them as members.

3.31 The Plaintiffs are challenging Defendants claim that they are not properly elected Executive of TISI and any damage Plaintiffs and Defendants will suffer will be legal cost incurred by them for instituting these proceedings.

3.32 The issue as to whether damages would be adequate remedy does not arise at all.”

Balance of Convenience

4.13 It is quite clear from Counsels’ Submissions that all parties need certainty in running the affairs of TISI, a large institution, which runs and manages secondary schools and primary schools, Sangam School of Nursing and Sangam Institute of Technology and Temple in Nadi.

4.14 TISI has approximately 6,500 members and these members need certainty.

4.15 It is also noted the following facts that appear in the Affidavits filed on behalf of the Applicants are not in dispute:-

(i) The Annual General Meeting (“AGM”) of TISI was scheduled to take place on 29 May 2016 at 10.00am at Sangam SKM College, Nadi;

(ii) The nomination for election for managerial positions of TISI during the AGM was approved as follows (Annexure DSN-7 of Naidu’s Affidavit refers):-

4.16 On 28 May 2016, that is a day before the AGM the then Executives of TISI called off the AGM and the notice of cancellation of the AGM was publicized on 29 May 2016, being the date of the AGM.

4.17 On 29 May 2016, about one thousand (1,000) members of TISI attended a meeting called Annual General Meeting at Nadi Special School and appointed interim committee whose duty was to organize Annual General Meeting of TISI.

4.18 On 30 May 2016, the Executives of TISI prior to 29 May 2016, instituted legal proceedings being Lautoka High Court Civil Action No. 98 of 2016 seeking following declaratory orders:-

“6. That the purported Annual General Meeting and/or meeting of the Then India Sanmarga Ikya Sangam held on 29^th May 2016 at Nadi be declared null, void and/or invalid.

7. That the decisions, orders, resolutions and/or motions raised and passed at the purported Annual General Meeting of the Then India Sanmarga Ikya Sangam held on 29^th May 2016 at Nadi be declared null, void and/or invalid.
8. That National Executive Committee of the Then India Sanmarga Ikya Sangam prior to 28^th May 2016 be declared the valid, proper and/or authorised National Executive Committee of the Then India Sanmarga Ikya Sangam until the next Annual General Meeting of the Then India Sanmarga Ikya Sangam.
9. Alternatively, the Council of Management of the Then India Sanmarga Ikya Sangam prior to 28^th May 2016 be declared the valid, proper and/or authorised Council of Management of the Then India Sanmarga Ikya Sangam until the next Annual General Meeting of the Then India Sanmarga Ikya Sangam.
10. That National Executive Committee of the Then India Sanmarga Ikya Sangam prior to 28^th May 2016 be charged with the overall government of the Then India Sanmarga Ikya Sangam until the next Annual General Meeting of the Then India Sanmarga Ikya Sangam.
11. Alternatively, the Council of Management of the Then India Sanmarga Ikya Sangam prior to 28^th May 2016 be charged with the overall government of the Then India Sanmarga Ikya Sangam until the next Annual General Meeting of the Then India Sanmarga Ikya Sangam.”

(“Lautoka Action”)

4.19 On 30 June 2016, parties to Lautoka Action settled and obtained consent Orders in following terms:-

“2. That the Annual General Meeting of the Then India Sanmarga Ikya Sangam shall be held on 28^th August 2016 at 12.00pm.

3. That the membership of the Then India Sanmarga Ikya Sangam for the Annual General Meeting shall be as at the approved register of members on 21^st May 2016;
4. That there shall be a fresh filing of nominations and said nominations shall be processed in the normal manner in accordance with the Constitution of the Then India Sanmarga Ikya Sangam and Rules and Regulations of the Then India Valibar Sangam Fiji;
5. That the nominations committee be appointed by the Council of Management of the Then India Sanmarga Ikya Sangam.”

(“Consent Order”)

4.20 Subsequent to the Consent Order in Lautoka Action, the then Executives of TISI suspended Dorsami Naidu, Praveen Kumar Bala and Raja Kumaran the First to Third Defendants in Lautoka Action and nominees for the post of National President and General Secretary in the 29 May 2016, election together with some other members of TISI.

Paragraphs 6 to 13 of Naidu’s Affidavit and paragraphs 9 to 16 of Bala’s Affidavit refers.

4.21 The suspension of the members named in paragraph 4.20 hereof effectively stopped them from taking part in the Annual General Meeting held on 28 August 2016, or to submit nominations for post of office bearers of TISI for which they were to contest for in 29 May 2016, election.

4.22 The Annual General Meeting that was being held on 28 August 2016, was stopped by Police Department at certain stage which appears to be at the stage when financial transaction of TISI were being discussed (Annexure “C” of Narsa Reddy’s Affidavit sworn on 8 September 2016 refers).

4.23 At that time, that is prior to 29 May 2009 AGM, the First, Second, Third and Sixth Defendants/Respondents in this action were executive members of TISI and held following positions:-

(i) Damendra Gounder (First Defendant) - Secretary General

(ii) Krishna Sami Gounder (Second Defendant) - Assistant General Secretary

(iii) Som Padayachi (Third Defendant) - General Treasurer

(iv) Vijay Narayan (Sixth Defendant) - Vice President South Western

Annexure “A” of Sadasivan Naicker’s Affidavit annexed as Annexure DAG1 of Damendra Amas Gounder’s Affidavit sworn on 23 November 2016 refers.

4.24 The nominations for management position with only one nominee for 28 August 2016 AGM were as follows:-

National President Damendra Gounder

Secretary Kumar Sami Gounder

Treasurer Som Padayachi

Vice President (Southern) Sailendra Kumar

Vice President (North Western) Pragdishwaran Gounder

Vice President (South -Western) Vijay Narayan

General Secretary (Administration) Muni Kamlesh Naidu

Paragraph 16 of Damendra Amas Gounder’s Affidavit sworn on 14 September 2016 refers.

4.25 One day after the 28 August 2016, meeting was stopped by Police Department before the meeting reached the Agenda item for “Election” the First Defendant declared himself to be the National President of TISI together other nominees against when there were no oppositions for 28 August 2016, meeting.

4.26 Applicants as life members in this action then moved this Court by way of Originating Summons which was amended on 2 February 2017, as appears from paragraph 4.10 of this Ruling.

4.27 On 8 September 2016, this Court granted interim injunction as stated in paragraph 2.12 of this Ruling.

4.28 On 15 September 2016, the Defendants filed Application to dissolve interim injunction which application was dismissed but the Orders were varied on 16 and 22 September 2016, to ensure that day to day affairs of TISI is not affected.

4.29 On 20 October 2016, this Court delivered its ruling in respect to Application for interlocutory injunction and made following terms:-

“(i) Following orders made on 22 September 2016, are extended and to continue until final determination of this action:-

1. The Defendants by themselves and/or their servants and/or their agents howsoever be restrained from acting as national executives of the Then India Sanmarga Ikya Sangam (“TISI”) or calling of Council of Management meeting or any other meeting or commencing or completing any capital projects.
2. The current signatories to TISI Head Office operating account, Sangam College of Nursing (SCN) operating account, Sangam Institute of Technology (SIT) operating account, namely Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker sign the cheques in respect to the operating account of TISI Head Office, SCN and SIT including but not limited to staff salary and cheques to all payments to creditors listed in annexure DAG 11 of the Affidavit of Damendra Amas Gounder sworn on 14^th September 2016 and filed on 15^th September 2016.

100. The signatories, namely, Damendra Amas Gounder (first defendant), Som Padayachi (third defendant) and Sadasivan Naicker submit details of all payments made to the Court on a fortnightly basis until further order of this court.

(ii) Defendants Application to Strike Out this Action, Dissolve injunction and Transfer this proceedings to Lautoka by Summons dated and filed on 15 September 2016, is dismissed and struck out.

(iii) Costs of Application for Injunction by Summons filed on 8 September 2016, and Application to Dissolve Interim Injunction, Application to Strike Out the Action and Application to Transfer this action to Lautoka Registry be costs in the cause.”

4.30 On or about 13 October 2016, Respondents filed Notice of Appeal and Grounds of Appeal in respect to Orders granted on 8 September 2016 and 22 September 2016 being Civil Appeal No. ABU 109 of 2016.

4.31 On or about 8 November 2016, Respondents filed appeal in respect to Ruling delivered on 20 October 2016.

4.32 On 18 November 2016, Respondents filed Application for Stay of Order granted on 20 October 2016, pending determination of the Appeal.

4.33 On 9 December 2016, His Lordship Justice Calanchini, the President of Fiji Court of Appeal made following Orders until hearing of the stay application:-

“1. The members of the Executive that were in office at the time of commencement of the Annual General Meeting on 28^th August 2016 are to continue in office until the hearing of the stay application in this appeal;

2. The Respondents are to file and serve answering affidavits within 14 days from todays date;
3. The Appellants are to file and serve any necessary reply affidavits within 14 days thereafter;
4. Appellants to file and serve written submissions within 14 days thereafter;
5. Respondents to file and serve answering submissions within 14 days thereafter;
6. Listed for mention on 28/2/16 at 9:30am;
7. Costs in the application.”

4.34 Between 6 to 10 February 2017, correspondence was exchanged between Solicitors for Applicants and Respondents and one of the contention was that the interim Order (1) of Fiji Court of Appeal in Civil Appeal No. ABU 122 of 2016 did not permit the executives of TISI prior to 29 May 2016 to hold Annual General Meeting.

4.35 Letter dated 6 February 2017, from Applicants Solicitor to Respondents Solicitor being Annexure “C” of Reddy’s 1^st Affidavit stated as follows:-

“Most of the prior national executives who have been allowed by the Court of Appeal to manage the affairs of the TISI Sangam in the interim are your clients and the Defendants in the proceedings. We are of the opinion that the order allowing for interim management does not allow for the holding of an AGM”.

4.36 Letter dated 7 February 2017, from Applicant’s Solicitor to Respondents Solicitor being Annexure “E” of Reddy’s 1^st Affidavit stated as follows:-

“We are of the view that the Fiji Court of Appeal only gave those persons in office prior to the AGM 28/8/2016 meaning those persons elected in 2015 to manage the affairs of the Sangam. This does not give you and the executives power to conduct an AGM as the question of elections is before the High Court and the Fiji Court of Appeal. We are of the view that any such elections can only be conducted with the Courts sanction and this has not been obtained.

Furthermore the amendments allowed the Plaintiffs in the Suva High Court on 02/02/2017 clearly impacts on the proposed elections as it affects the rights of members to contest the elections but who have been shut out through arbitrary acts of suspension. The amendments allow for these issues to be addressed as they arise out of the aborted elections (AGM) 28/8/2016.

We therefore asked that the AGM be deferred until determination by High Court of Appeal.”

4.37 On 8 February 2017, Respondents Solicitors responded to Applicants Solicitors letter in relation to AGM and stated as follows:-

“Our clients and the TISI are approaching this with a view to reduce the amount of time spent in litigation. You letters will be considered in this light. As your position seems to be the interpretation of the orders of the Fiji Court of Appeal, we will make an application to the Fiji Court of Appeal by this Friday, 10 February, 2017.

We have also asked our client to consider your request for postponement of the AGM scheduled for 19 February, 2017 and we will let you know their position by the close of business on 10 February 2017”.

4.38 No clarification has been sought by any of the parties from Fiji Court of Appeal as to the effect of interim Order granted on 15 December 2016.

4.39 It appears that Executives of TISI who were to continue in office until the Stay Application is heard did not fully apprehend or understand what transpires when an Appeal is lodged or Stay Application is filed.

4.40 It is very clear that:-

(i) The Order of Fiji Court of Appeal is only interim order and it is until the Stay Application is heard;

(ii) The interim injunction Order granted by this Court on 8 and varied on 22 September 2016, has not been set aside or discharged by the Fiji Court of Appeal;

(iii) The Interlocutory Injunction granted on 20 October 2016 has not been set aside or discharged by Fiji Court of Appeal.

4.41 The National Executives of TISI who are managing the affairs of TISI pursuant to Fiji Court of Appeal interim order are very well aware that the First, Second and Third Defendants in Lautoka Action who were nominees for the post of National President and General Secretary have filed Application in Lautoka Court in respect to their suspension from TISI.

4.42 Most of them being Defendants/Respondents in this action are deemed to be aware of the Application in this Court to declare that the action of the Executive Committee in respect to suspending some of the members of TISI as invalid.

4.43 Due to action of the Executive Committee after the Consent Order in Lautoka Action the First and Second Defendants will have no opposition to contest for the post of National President and General Secretary because of the fact the life members who were to contest for these posts in 29 May 2016, election were suspended after the Consent Order.

4.44 This will obviously mean that most of the executives who are managing the affairs of TISI which comprises of First, Second, Third and Sixth Defendants will achieve what they intended to do when First Defendant made declaration on 29 August 2016, that is one day after the 28 August 2016, Annual General Meeting of TISI was stopped by Police Department.

4.45 This Court accepts the Counsel for Applicants, Mr Sharma’s submission that the action of the current executives of TISI which includes First, Second and Sixth Defendants are mischievous and to get around matter/issue which is sub-judice.

4.46 In view of what is stated at paragraphs 4.13 to 4.45 of this Ruling this Court finds that balance of convenience and interest of justice favours granting of interim injunction to restrain the national executives of TISI to proceed with the Annual General Meeting scheduled for 19 February 2017, at 1000 hrs at Sangam SKM College, Nadi and any further Annual General Meeting until all the issues raised in this action are determined by this Court.

5.0 Costs

I have taken into consideration the Affidavits filed by Plaintiffs and Oral Submissions made on behalf of the parties. I also consider that issues raised in the proceedings are quite legitimate and needs to be determined by Court and the fact that all parties are members of TISI and provide voluntary service to TISI.

6.0 Orders

I make following Orders:-

(i) Then India Sanmarga Ikya Sangam be joined as eighth Defendant;

(ii) Plaintiffs/Applicants do serve all the documents including Rulings delivered in this Action at the registered office of Then India Sanmarga Ikya Sangam within fourteen (14) days;

(iii) Defendants and/or Executives of Then India Sanmarga Ikya Sangam and Then India Sanmarga Ikya Sangam whether by themselves, their agents or servants be restrained from holding the Annual General Meeting on 19 February 2017 at 1000 hrs at Sangam SKM College, Nadi or any other date including continuation of Annual General Meeting held on 28 August 2016 until further Order of this Court.

(iv) There be no orders as to costs for the Application.

.......................
K. Kumar
JUDGE

At Suva

17 February 2017

Parshotam Lawyers for the Plaintiffs

Samuel K. Ram, Esquire for the Defendants