Campos v De Souza and Others (C.C. 236/1933.) [1933] EACJ 4 (1 January 1933)

## • ORIGINAL CIVIL. **T**

## Before LANE, Ag. J.

1, J. J. CAMPOS, and 2, L. D'CRUZ, personally, and representing a number of members of the Goan Institute, Nairobi $\forall (Plaintiffs), \dots, \forall c \in \cdots \cdots$ $\mathbf{1}$

## $\cdots \cdots \boldsymbol{v}, \cdots \cdots$

## 1, A. C. L. DE SOUZA AND FIVE OTHERS (Defendants). C. C. 236/1933.

- Actions by or against members' clubs—Construction of Order I, Rule 8, Civil Procedure Rules—Whether members of club committee can be sued as individuals. - Held (8-12-33).—That members of the committee of management of a members' club may not be sued as individuals in a matter affecting the affairs of the club, upon a construction of Order I, Rule 8, Ing the shalls of the state, apol a consideration of the state of the<br>following English precedent under Order XVI, Rule 9, of the<br>English Supreme Court Rules, but that any such action must be<br>against the club as a whole or cannot authorize such representatives to be sued without application first being made to it under Order I, Rule 8; and that in the case of a suit being brought at the instance of club members in a representative capacity it is also necessary for the Court to direct the plaintiffs to give notice of the institution of the suit under Order I, Rule 8.

Figgis, $K. C.,$ for Plaintiffs.

Modera for Defendants.

Modera referred to Order I, Rule 8, Civil Procedure Rules; Halsbury's Laws of England, Vol. IV, sec. 914, and Vol. 17, p. 231; Kerr on Injunctions, p. 583; Wertheimer on Clubs, p. 129; Annual Practice, 1933, p. 250; Harrison v. The Marquis of Abergavenny, 1888, 57 L. T. R. p. 360; Wood v. McCarthy and Another, 1893, I Q. B. D. p. 775; Thellusson v. Viscount Valentia, 1907, 2 Ch. Div. p. 1; Hardie and Lane, Ltd. v. Chiltern and Others, 1928, I K. B D. p. 663.

The facts are found in the judgment.

JUDGMENT.-This is a preliminary objection taken by the defendants alleging that there is no cause of action and that the Court has no jurisdiction to grant the relief prayed.

The plaintiffs, suing personally and as representing a number of members of the Goan Institute, Nairobi, pray for (1) an order against the six defendants declaring the election of the committee of management to be invalid; and $(2)$ for an injunction restraining the six defendants from taking any part in the management of the finances and affairs of the club.

The Institute is a members' club. The plaint alleges that the members are beneficially interested in the club property; this is denied in the statement of defence, but was admitted only for purposes of arguing the preliminary objection.

The objection is that no cause of action is disclosed against the six defendants as individuals; that, on the assumption that the members are beneficially interested in the club property and that certain rules were broken at the general meeting, at which the election of the members of the committee took place. the action should have been brought against the club as a whole or against the committee as representing it.

Mr. Modera has argued that, construing Order I, Rule 8, Civil Procedure Rules, upon the rulings and practice laid down under Order XVI, Rule 9, of the English Rules, it is not competent for the plaintiffs to select the six defendants and to sue them as individuals in matters affecting the management and property of the club.

Mr. Figgis's argument for the plaintiffs is that the defendants may and should be sued as individuals (and not as president and members of the committee), because they are in active control of the club property, having by breach of the rules of the club got themselves elected as the managing committee.

He has not asked for a representative order but has expressed the view that the Court may give directions in this matter without application for such directions by the plaintiffs.

On this point it is relevant to quote from the notes on page 254 of the Annual Practice, 1933, under Order XVI, Rule 9: "An order is necessary where authorization is necessary, and may be obtained on summons or notice." And further: "These words 'may be directed' seem to be construed as equivalent to 'shall be directed' '' in Wood v. McCarthy, 1893, 1 Q. B. D. 775; and further: "If you cannot make everybody interested a party, you must bring so many that it can be said they will fairly and honestly try the right," Bedford v. Ellis, 1901, A. C.

These authorities give colour to the view that the Court cannot authorize defendants to be sued in a representative capacity without application being made to it, and further that all persons having an interest ought on principle to be given an opportunity of defending.

It would seem that Order I, Rule 8, not only lays down the practice to be followed in cases where there are numerous persons having the same interest in one suit and where one of such persons is suing or being sued on behalf of all, but it contains a direction as to the manner in which the rights of all such persons must be safeguarded. It is in fact mandatory upon the Court to see that notice of the institution of the suit is given to all parties interested, and from this it may be inferred that in a case of this sort the Court is not at liberty to take cognizance of a suit by or against one or several persons selected from the body of interested persons unless and until the steps set out in the rule are carried out.

It is laid down in Halsbury's Laws of England, Vol. 17, p. 231, dealing with clubs, that "the jurisdiction of the Court is founded upon the common interest of every member in the property of the club, and on the common right of every member to require that the rules to which he has subscribed shall be properly carried out".

A large number of authorities have been cited from which this principle emerges, namely, the common interest enjoyed by all members in club property, and also the established practice that suits in regard to such property are brought by or against representatives of the club. No cases have been brought to my notice which are on all fours with this; the English decided cases deal practically all with the expulsion of members from clubs.

Actions can be brought by or against trustees, in whom club property is usually vested, or by or against the committee. or against the club as a whole with persons selected as representatives.

There is no evidence here as to the existence of trustees, but the members as a whole have undoubted rights in the club property.

In the face of the authorities, it is somewhat difficult to reconcile Mr. Figgis' argument that the six defendants ought to be sued as individuals because they are members of the committee. If all members have equal rights in the club property then the club as a body must be sued; all members must be given an opportunity of defending an action which concerns their common interest. Equally, should they be enabled to sue as plaintiffs if they desire, and had this preliminary point not been taken it would, I think, have been necessary for the Court to direct the plaintiffs to give notice of the institution of the suit as provided in Order I, Rule 8.

It has been contended that the defendants were illegally elected, namely, by a deliberate breach of the rules, and that it is the Court's duty to see that the rules are enforced, be they good or bad; the fact that these people are thus said to be wrongfully in control of the club property is suggested as a ground why they should be sued individually. Even assuming it to be true that they were so elected by a breach of the rules. they were admittedly elected by the general meeting, and whether

the rules were broken or not, they, the members of the committee, are the club's chosen representatives at the present moment, and if they are in control of the property they are only so in their representative capacity, and not as individuals.

No action would therefore appear to lie against the six defendants as individuals declaring the election of the committee to be void, nor would it appear to be competent to grant an injunction restraining them as individuals from taking part in the management of the club.

I therefore dismiss the suit with costs against the plaintiffs, since the plaint discloses no claim sustainable at law.