BENSON ERIC FERNANDOv.
MERVYN ANTHONY FERNANDO AND OTHERS
COURT OF APPEALISMAIL. J.
C.A. APPLICATION NO. 648/94NOVEMBER 21. 1994.
Co-operative Societies Law, S. 60(2) – Removal of Chairman on a no confidencemotion not placed on the Agenda and passed in the absence of the Chairman -Can aggrieved Chairman invoke writ jurisdiction of the Court of Appeal ?
The Chairman of a Board of Directors of a Co-operative Society was removed ona vote of no confidence motion which had not been on the Agenda and in hisabsence.
His remedy is under Section 60(2) of the Co-operative Societies Law whichempowers the Registrar to make a final decision. He is not entitled to invoke thewrifjurisdiction of the Court of Appeal.
APPLICATION for writ of certiorari to quash removal from the office of Chairman.
S.Mahenthiran for petitioner.
T.M. S. Nanayakkara for 1 to 5 respondents.
Cur. adv. vult.
The petitioner functioned as the Chairman of the Board ofDirectors of the Moratuwa Multi-Purpose Co-operative Society with sixother elected members since 15.08.93. Three additional directorswere nominated to the Board on 21.6.94.
A Board meeting was convened to be held on 26.8.84 at 10.00 a.m.The petitioner was unable to be present at the said meeting as he hadbeen arrested by the Mount Lavinia Police the previous night foralleged criminal trespass and intimidation. He was produced beforethe Magistrate’s Court, Mount Lavinia the next day and was releasedon bail. He reached his residence in the afternoon.
The 6th to 9th respondents who are members of the Boardinformed him that the Board meeting was held in his absence andthat a vote of no confidence was passed against him. The petitionerhas not been furnished with a copy of the minutes of the meetingheld on 26.8.94 at which he was removed from his post as Chairman.
The petitioner has stated that no prior notice or intimidation of theno confidence motion was given to him and that such motion wasnot on the agenda for the said meeting which was only a regularmonthly meeting of the Board. The petitioner claims that theChairman and Vice Chairman can only be removed in a situationcovered by Law 65(1) of the By-Laws of the Society and that thecorrect procedure was not followed. The petitioner claims that theresolution passed at the meeting in his absence is an interference withhis rights to the status and office of Chairman and is illegal and void.
The present application is for the grant and issue of a writ ofcertiorari to quash the decision of the Board taken in his absence Joremove him from the post of Chairman.
The 1st to 5th respondents have not in their objections stated as towhat transpired at the Board meeting held on 26.8.94, nor has the 1strespondent in his affidavit divulged the circumstances in which thepetitioner was removed from his office as Chairman. The otherrespondents have not filed objections or affidavits in theseproceedings. The petitioner appears to have accepted the positionthat he has been removed from his position as the Chairman.
Learned Counsel for the 1st to 5th respondents has taken up apreliminary objection to this application on the ground that thepetitioner cannot seek to have the decision of the Board of Directors,presumably that concerning the removal of the petitioner from theoffice of Chairman, quashed by an application for a writ and that heshould seek relief under Section 60 of the Co-operative SocietiesLaw, No. 5 of 1972.
Section 60(2) of the Co-operative Societies Law, No. 5 of 1972provides as follows:
“(2) Where any question arises as to whether a member of aregistered Society has been duly elected to any office in theSociety or whether a member has ceased to be a member orofficer of the Society, or whether any general meeting of theSociety had been validly held that question shall be decided bythe Registrar whose decision shall be final."
Learned Counsel for the petitioner submitted that the provisionscontained in Section 60(2) of the Co-operative Societies Law do notoust the jurisdiction of this Court to decide the question of the legalityof said meeting and to pronounce upon void acts which affect therights of parties.
The question has now arisen, in the words of Section 60(2), as towhether the petitioner who was a member has ceased to hold theoffice of Chairman of the Society and this section provides for thatquestion to be decided by the Registrar and it is further provided thathis decision shall be final. The petitioner is seeking a decision in thisapplication on the identical question which has been provided for bythe statute to vest exclusively in the Registrar. It is not the case of thenon-exhaustion of a alternative statutory remedy which exists for adifferent purpose. The petitioner is seeking relief in respect of thelegality of a matter for which an identical and overlapping procedurehas been prescribed by statute. I am of the view that the language ofthe provisions of Section 60(2) of the Co-operative Societies LawNo. 5 of 1972 and the statutory scheme of the Act itself impliedlyexcludes an application by way of writ to question the validity of theremoval of an officer or registered Society.
The preliminary objection to this application therefore is entitled tosucceed.
The application is dismissed with costs.
BENSON ERIC FERNANDO MERVYN ANTHONY FERNANDO AND OTHERS