The Incorporated Trustees of the Guyana United Sad'r Islamic Anjuman et Al v Ally et Al
| Jurisdiction | Guyana |
| Judge | Massiah, J. |
| Judgment Date | 20 July 1972 |
| Neutral Citation | GY 1972 HC 30 |
| Docket Number | 782 of 1972 |
| Court | High Court (Guyana) |
| Date | 20 July 1972 |
High Court
Massiah, J.
782 of 1972
J.O.F. Haynes, S.C. for the plaintiffs.
Dr. F.W.H. Ramsahoye, S.C. for the defendants.
Trusts and trustees - Meeting — Validity
Massiah, J. (IN CHAMBERS): On 9th January, 1972, the Executive committee of the Guyana United Sad'r Islamic Anjuman, hereinafter referred to as the “Anjuman” caused to be published in the “Sunday Graphic” and the “Mirror” a Notice that the General Meeting of the Anjuman will be held on Sunday 6th February, 1972, at 10:00 a.m. at the Enterprise Government School, East Coast Demerara.
In publishing that Notice through its Secretary, the Executive Committee purported to act under the provisions of rules 20, 21 and 28 of the Anjuman's Constitution. It is generally conceded that that Notice complied with those provisions and no one has any complaint about it.
In the “Guyana Graphic” of 3rd and 5th February, 1972, and the “Mirror” of 6th February, 1972, there appeared Notices to the effect that the meeting originally fixed to be held at the Enterprise Government School was now to be held at the Triumph New Mosque because of the unavailability of the school. The position is therefore that the meeting was still to be held on 6th February, but at a different place, and that this change of venue was announced not earlier than three days before the date of the meeting.
On 4th February, 1972, the 4th named plaintiff Mohamed Nissar, caused to be published in the “Daily Chronicle” and the “Guyana Graphic” a Notice complaining about the change of venue which he considered to be improper and invalid, and expressed his intention to contest the elections at Enterprise Government School as per the original Notice of 6th January, 1972, which was published in the newspapers of 9th January.
The climax to all these matters was the holding of separate meetings by certain members of the Anjuman both at the Enterprise Government School and the Triumph Mosque on 6th February, 19721. Elections of office-bearers of the Anjuman were held at both meetings after which there were two sets of persons each claiming to constitute the Executive Committee of the Anjuman.
This uncertain position could not be expected to continue for long without some sort of action from one side or the other, and on 18th March, 1972, the plaintiffs issued a writ seeking certain declarations and injunctions, the total effect of which, if granted, would be to put the administrative control of the Anjuman in the hands of the Executive Committee which was established by the officers elected at the Enterprise Government School in compliance with rule 14 of the Anjuman's Constitution.
There followed a prayer by the plaintiffs for interlocutory relief by summons dated 24th April, 1972,. That prayer is the present concern of this court.
What the plaintiff's seek at the moment is a restrictive interlocutory injunction which would inhibit the defendants and the Executive Committee appointed by them from acting in their respective capacities, and a mandatory interlocutory injunction ordering the delivery to the plaintiffs of all books, records, papers, documents and property whatsoever belonging to the Anjuman.
What is the position of the court in a matter of this nature? It is clear that the court is not now being asked to determine the substantive issues, and has only to be satisfied in the words of Lord Denning in Pett v. Greyhound Racing Association. Ltd [1968] 2 All E.R. 545 “that there is a prima facie case.”
But before granting an order for an interlocutory injunction the court must be satisfied about certain prerequisites, namely,
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(a) that the plaintiff has locus standi;
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(b) that there is a serious question to be tried between the parties;
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(c) that there is a reasonable probability the plaintiff is entitled to relief.
Fraser J. as he then was, referred to those pre-requisites when delivering the judgment of the Full Court in the Demerara Turf Club v. Phang (1961) 3 W.I.R. 454, and cited with approval a passage from the judgment of Cotton J. in Preston v. Luck (1848) 27 Chancery D. 497, where it was said that it is necessary for those conditions be satisfied before a court would grant an interlocutory order of injunction. Boland J. came to the same conclusion in the case of Hamandas et al v. Country Authority of Clonbrook, (1947) L.R. B.G. 11.
Mr. Haynes who argued for the plaintiffs contended for the position that the meeting held at the Triumph Mosque on 6th February, 1972, was invalid and of no effect, inasmuch as the Notice of the meeting was itself invalid since it did not comply with the provisions of rules 20 (a) and 28 of the Constitution of the Anjuman.
He argued that once one accepted the position of the invalidity of the Notice which sought to change the venue, then one should hold the view that the meeting at the new place was bad and that the elections held there, that is, at the Triumph mosque, were also void, for the invalid Notice would have the same effect as if no notice at all were given.
Rule 20 (a) of the Constitution of the Anjuman reads thus:-
“(a) Annual General Meetings of the Anjuman shall be held once every 3 years at such time and place as the Executive Committee shall from time to time decide.”
There is in the Constitution of the Anjuman no specific rule permitting the Executive Committee to change the meting-place once this has been fixed, but it would seem that such a power must by implication reside in the Committee by virtue of that rule, for if circumstances contrive to make it impossible for the meeting to be held at the original place intended, then it must be that the venue could be shifted to some other available and convenient place.
Mr. Haynes' contention is that once the Committee decides to change the place of the meeting, then that must be done in accordance with the provisions of rule 28 (a) of the Constitution of the Anjuman.
Rule 28 (a) reads thus:-
(a) “Movers of motions etc. for General Meetings shall be required to send in same to reach the General Secretary not later than 21 days before the date fixed for such meeting, notices for which shall be published in any two of the local Sunday newspapers four weeks prior to the date of the meeting.”
It is conceded on all sides that the notices announcing the change of venue to the Triumph Mosque did not comply with the provisions of that rule. Indeed, the first notice appeared on 3 rd February and the meeting was held on 6th February.
Counsel for the plaintiff's argued that this was fatal, and asserted that even if the Executive Committee did not start ab initio (as he said they should) and give the required 28 days' notice, then at least they should have had the notice published in Sunday issues of the newspapers since that was where members would expect to find them. As it was the notice appeared in the Guyana Graphic of Thursday 3rd and Saturday 5th February, 1972. One can hardly take into account the notice published in the “Mirror” of Sunday 6 th February, for that was the very day on which the Meeting was held.
Counsel argued that it was all well and good to say that some members knew about the change of venue, but he felt that the point to be considered was whether or not the members of the Anjuman were properly notified about the change. Members, he said must know the place and date of the meeting 28 days before the meeting was due to be held, and they must know of this through the columns of a Sunday newspaper since that was the right channel of information in keeping with rule 28 (a).
Dr. Ramsahoye met that argument by contending that since there was no specific rule in the Anjuman's Constitution dealing with notices of change of venue of a general meeting, then when a contingency arose which made it impossible or impracticable to hold the meeting at the place originally announced, it was for the Executive Committee in the exercise of its general power of management which derives from rule 13, to change the venue as it thinks best.
Rule 13 reads thus:-
“The management of the affairs — funds of the Anjuman shall be vested in the Executive Committee.”
Dr. Ramsahoye said that in exercise of that power the Executive Committee changed the original venue to the Triumph Mosque and gave wide publicity to the change which became necessary through the unavailability of the Enterprise Government School.
He argued that the change to the Triumph Mosque could not have proved inconvenient to members since the Mosque was quite near to the Enterprise Government School. He urged that different considerations apply to the time of a meeting as distinct from the date of a meeting. He felt that time was more important because certain things had to be done within a prescribed time in relation to the date of a meeting; for example, the submission of resolutions, and urged that the place where a meeting is to be held is important only from the aspect of convenience to members.
In this regard Dr. Ramsahoye posed the hypothesis of a change to a place next door to the original venue and asked whether it could be seriously contended that in such a case there should be strict compliance with rule 28 (a). He answered the question in the negative.
I understood his submission to be that in certain circumstances one would expect that 28 days' notice would be given in compliance with rule 28 (a) and that in other circumstances this need not be so, and that should be left to the Executive Committee to say how many days notice of a change of venue should be given and in any event compliance with rule 28 (a) would appear to be more important if there were a change of time rather then one of place.
I do not accept the...
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