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RB Patel Group Ltd v Central Board of Health [2022] FJHC 197; HBC231.2020 (3 May 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil action No. HBC 231 of 2020

BETWEEN

RB PATEL GROUP LIMITED a limited liability company duly registered under

the Companies Act of Fiji and having it registered office at Centre Point

Complex, Ratu Dovi Road, Laucala Beach Estate, Nasinu.

PLAINTIFF

AND

CENTRAL BOARD OF HEALTH

FIRST DEFENDANT

AND

SUVA CITY COUNCIL

SECOND DEFENDANT

AND

LAUTOKA CITY COUNCIL

THIRD DEFEDNANT

AND

LAMI CITY COUNCIL

FOURTH DEFENDNT

AND

NASINU TOWN COUNCIL

FIFTH DEFENDANT

AND

NAUSORI TOWN COUNCIL

SIXTH DEFENDANT

AND

SIGATOKA TOWN COUNCIL

SEVENTH DEFENDANT

AND

NADI TOWN COUNCIL

EIGHTH DEFENDANT

AND

LABASA TOWN COUNCIL

NINTH DEFENDANT

Counsel : Mr. Fatiaki S. with Mr. Sing R. for the Plaintiff.

Ms. Lagilevu G. with Ms. Taukei S. for the 1^st Defendant

Mr. Lajendra N. for the 3^rd & 4^th Defendants.

Mr. Sing R. for the 3^rd Defendant

Mr. Prasad A. for the 9^th Defendant.

Date of Hearing : 01^st April 2022

Date of Ruling : 03^rd May 2022

RULING

(On the Preliminary Objection)

[1] The plaintiff filed this originating summons seeking the following orders:

An order and/or a declaration that the health licence Type and Fee payable by the plaintiff for its respective supermarkets to the defendants pursuant to Twenty-Sixth Schedule of the Food Safety Regulations 2008 shall be for “Licence Type ID – Other (not elsewhere specified)” only and no other health license type or health licence fees in respect of it supermarkets situated within the defendants’ respective boundaries.
An order that the defendants by themselves, their respective servants and/or agents be permanently restrained from demanding payment of other health licence types or fees from the plaintiff apart from Health Licence Type ID – Other (not elsewhere specified), and not to interfere in any manner whatsoever in the plaintiff’s day to day running of its supermarket activities situated within the defendants’ respective boundaries.
An order that the court action between the plaintiff and the 3^rd defendant in Lautoka Magistrate Criminal Case No. 48 of 2016 be stayed pending the hearing and determination of this action.
An order that the defendants do pay costs of this action on an indemnity basis.

[2] When this matter came up for hearing on 01^st April 2022, learned counsel for the 9^th defendant raised a preliminary issue that the plaintiff’s affidavit in support is defective for the reason that the affirmant did not have the written authority to swear the affidavit.

[3] Parties were given 14 days to file their respective written submissions on this issue and another 7 days thereafter to reply to the submissions.

[4] In paragraph 1 of the affidavit in support of Deepak Kumar Rathod it is averred:

I am the Chief Operating Officer of the Plaintiff and I am duly authorised by the Plaintiff to depose of matters herein on the basis of my knowledge and on information available to me from the Plaintiff’s records and files unless I state that I am advised and/or informed believing the same to be true.

[5] The issue here is whether it is sufficient for the affirmant merely to say that he has authority or he should tender along with the affidavit a written authority from the plaintiff.

[6] The plaintiff is a limited liability company registered under the companies Act of Fiji which has a corporate personality.

[7] Section 53 of the Companies Act 2015 provides:

(1) A Company may execute a document if the document is signed by—

(a) 2 Directors of the Company;
(b) a Director and a Secretary of the Company; or
(c) for a Private Company that has a sole Director who is also the sole secretary of the Company, that Director.

(2) A Company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with this section.

(3) This section does not limit the ways in which a Company may execute a document, including a deed.

[8] In Thomas Johansen Consultants Pte Ltd v Ah Sam [2021] FJHC 240; HBC276.2019 (28 September 2021) this court held:

In the affidavit of Thomas Salvador Johansen he states that he is the sole shareholder and director of the 1^st plaintiff company is the sthe sole shareholder of the second plaintiff company. Section 53(1)(c) requires for the sole Director to execute a document on behalf of the Company, he must also be the sole Secretary. In this case the Director does not say in the affidavit that he is also the sole Secretary of the company. Therefore the affidavit of Thomas Salvador Johansen is defective.

Denarau Corporation Ltd v Deo [2015] FJHC 112; HBC32.2013 (24 February 2015) –

Rupeni's affidavit of 14 February and 31 March 2014 state that, 'I am the Chief Executive Officer of the plaintiff and have its authority to swear this affidavit. In term of s.40 of CA a document or proceeding may be signed by a director, secretary or other authorised officer. Mr Rupeni merely states that he is authorised to swear affidavit on behalf of the plaintiff, a company. A company being an artificial person cannot act by itself. It should act through agent. That agent must have proper authority to act on behalf of the company. Merely stating that the deponent is Chief Executive Officer of the plaintiff and has authority to swear affidavit on behalf of the plaintiff company is not sufficient. He must state the person who gave that authority, whether it is a director or secretary or other authorised officer of the company. In the absence of this the deponent will lack authority to swear affidavit on behalf of the company. Counsel for the plaintiff argues that, provisions of the HCR do not require any authority to be annexed by the deponent swearing an affidavit in a professional, business or other professional capacity. For my part, I would say it is preferable to show authority when a deponent swear an affidavit on behalf of a company because the deponent is giving evidence by affidavit. The court cannot take judicial notice in this regard. The deponent must show that he has proper authority to swear affidavit on behalf of the plaintiff which he has failed to do so.

Sun Insurance Co Ltd v Sorojini [2019] FJHC 139; HBC218.2012 (28 February 2019)

Let me now move to consider the “first objection’.

(ii) The second defendant is a limited liability company having its registered office at No.1, Foster Road, Walu Bay, Suva.

The deponent, the third defendant, states as follows in paragraph two (02) of both affidavits;

(2) That I have been duly authorized by the Second Defendant to swear to the contents of this affidavit on his behalf too.”

(iii) The deponent, the third defendant, the driver of the second defendant company, needs sanction to swear on behalf of the second defendant company. But the deponent does not annex authority given to him by the company.

Carpenters Fiji Pte Ltd v Pleass Global Ltd [2021] FJHC 300; HBE19.2020 (9 November 2021) –

The Affidavit in Support deposed by Kunaseelan Sabaratnam in his capacity as the Director of the Applicant company needed to annex a written authority empowering him to swear Affidavits on behalf of the Applicant company, CFL. Once the written authority was annexed to the Founding Affidavit then only the Founding Affidavit of Kunaseelan Sabaratnam would have been procedurally completed to be used and tendered into evidence seeking for the Order for setting aside of the statutory demand.

For the aforesaid rational, I hold that the omission of the authority to swear Affidavits on behalf of the Applicant Company (CFL) in the Affidavit in Support deposed by Kunaseelan Sabaratnam filed on 17^th April 2020 is fatal and cannot be accepted into evidence and these proceedings.

[9] The learned counsel for the plaintiff in his submissions has referred to section 54 of the Companies Act 2015. Section 54(1) of thd Act provides;

(1) >(1) A person is entitled to make the following assumptions in relation to dealings with a Company—

(a) a person may assume that the Company’s Articles of Association and any provisions of this Act that apply to the Company, have been complied with;
(b) a person may assume that any person who appears, from information provided by the Company that is available to the public from the Registrar, to be a Director or a company secretary of the Company—

(i) has been duly appointed; and

(ii) has authority to exercise the powers and perform the duties customarily exercised or performed by a Director or company secretary of a similar Company;

(c) a person may assume that any person who is held out by the Company to be an Officer or agent of the Company—

(i) has been duly appointed; and

(ii) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of Officer or agent of a similar Company;

(d) a person may assume that the Officers and agents of the Company properly perform their duties to the Company;
(e) a person may assume that a document has been duly executed by the Company if the document has been signed in accordance with section 53;
(f) for the purposes of making the assumption, a person may also assume that any person who states next to their signature that they are the sole Director and sole Company secretary of the Company occupies both offices; and
(g) a person may assume that an Officer or agent of the Company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

[10] Section 53 of the Companies Act 2015 clearly states who has the power to sign a document on behalf of a company. It is not disputed that under section 53 of the Companies Act 2015 the persons who have the power authority to execute a document are (a) 2 Directors of the Company; (b) a Director and a Secretary of the Company; or (c)for a Private Company that has a sole Director who is also the sole secretary of the Company, that Director. Section 54(1)(e) provides that a person may assume that a document has been duly executed by the Company if the document has been signed in accordance with section 53. It is very clear that for a person to assume that a document has been duly executed it has to be signed in accordance with section 53.

[11] It is also important to note that the court is not a person dealing with the company and the decisions of the court cannot be based on assumptions. Further, the issue here is not whether the affirmant had the authority from the plaintiff company to affirm the affidavit in support but whether he was authority in law to affirm the affidavit in support under section 53 of the Companies Act 2015.

[12] For the reasons set out above the court holds that the affidavit in support is defective.

ORDERS

(1) The preliminary objection is upheld and the plaintiff’s action is struck out.
(2) The plaintiff is ordered to pay each of the defendant $500.00 ($4500.00 in total) as costs.

Lyone Seneviratne

JUDGE

03^rd May 2022

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