Dewani and Others v Datoo and Others (Civil Case No. 304 of 1952 (Mombasa)) [1952] EACA 293 (1 January 1952)

## ORIGINAL CIVIL

## Before Connell. J.

(1) G. M. DEWANI, (2) J. L. PANCHAMATIA and (3) R. D. DOSHI, on behalf of themselves and on behalf of all such other members of the "Mombasa Indian Sports Club" as are opposed to the change of name and objects of the Club, Plaintiffs.

(1) GULAMALI G. DATOO, (2) ABDUL SULTAN M. MAWJI, (3) HUSSEIN JIWAN KANJI, and (4) M. E. NURANEY, on behalf of themselves and on behalf of all other members of the "Mombasa Indian Sports Club" save and except the plaintiffs, Defendants.

## Civil Case No. 304 of 1952 (Mombasa)

Club—Proposed resolution $\mathsf{to}$ change name—Application for temporary injunction.

The plaintiffs on behalf of other members of the "Mombasa Indian Sports" Club" applied for a temporary injunction against the defendants restraining them for changing the name of the club.

For the plaintiffs it was argued that the whole objects and foundation or constitution of the club would be changed if the resolution were passed and the club would be extinguished and the property of the club would be passed to the new institution.

The defendants contended that the proposed resolution was ultra vires the rules of the club constitution and that no irreparable injury would be caused by allowing the resolution to proceed and further that the balance of convenience lay with the defendants.

*Held* (23-10-52).—Irreparable damage will not be done to the plaintiffs in the resolution proceeded. Motion for temporary injunction dismissed.

Cases cited: Morgan v. Driscoll, 38 T. L. R. 251, Hole v. Garnsey, (1930) A. C. 472-493, Thellusson v. Viscount Valentia, (1907) 2 Ch. 1, 7.

Inamdar for applicants.

O'Brien Kelly, Satchu, Ahmed and Mohamed for respondents.

RULING.—This is an application by certain members of the Mombasa Indian Sports Club on behalf of themselves and other supporting members for a temporary injunction against the four named defendants on behalf of themselves and other members, restraining the latter from changing the name of the Mombasa Indian Sports Club to any other name whatsoever.

The defendants, in an affidavit dated 17th September, 1952, claim that under the constitution of the Mombasa Indian Sports Club the name may rightfully and legally be changed at an annual general meeting provided that a resolution to that effect is passed by two-thirds of the members present and other formalities are observed.

It is admitted that the defendants propose sending out notices of the proposed resolution some time in December so that they may be placed before the annual general meeting in the third week in January, 1953.

As stated by Mr. Inamdar for the applicants, some 34 members are represented by the plaintiffs and some 66 members are represented by the defendants.

Mr. Inamdar argues that the whole objects and foundation or constitution of the club would in effect be changed if the resolution were passed, which would require in his submission either a dissolution of the club or a 100 per cent resolution. He also claims that if the resolution went forward the plaintiffs would be damaged in their original contract-rights and irreparable harm would be done as the rights of the present members (I presume he means the plaintiffs and their supporting members) would be extinguished.

Finally he claims that the proposed resolution would mean the extinction of the club and the passing over of property to the new institution. The very last claim of all is, I think, to a great extent met by the undertaking of Messrs. O'Brien Kelly, Satchu, Ahmed and Mohamed as well as the defendants that no property of any description will be alienated pending final disposal of the suit but that normal activities of the club must continue.

Mr. Kelly, for the defendants, argues—

$\cdot\,$

- (1) that there is nothing *ultra vires* in the proposed resolution as rule 27 of $\frac{1}{2}$ the club constitution is wide enough to provide for it; - (2) that no irreparable injury would be caused by allowing the resolution to proceed: - (3) that the balance of convenience lies on the side of the defendant.

As to (1), Mr. Kelly stresses that the object is clearly stated in rule 2 of the constitution which states that the club is established for the purpose of social and physical improvement of its members. Though the name may be changed. the object he states will not be effected.

As to (2), Mr. Kelly argues that even if the resolution goes forward, no irreparable harm is caused as the Court may declare the resolution null and void under prayer 18 $(b)$ of the plaint.

As to (3), he argues that if the injunction is granted but the suit for perpetual injunction dismissed the defendants will have to wait for another 15 months. before they can again issue notices for a similar resolution. The balance of convenience if at all is in favour of the defendants. Mr. Inamdar, per contra, argues that the defendants could not be prejudiced if the club continues to be run under its present name and that on the other hand if the name is changed the plaintiffs and their supporters would automatically resign and on the balance of convenience argument the scales are tipped in favour of the plaintiffs.

I have listened carefully to the arguments on the validity or otherwise of the proposed alteration of the constitution.

In the case of Morgan v. Driscoll 38 T. L. R. 251 the headnote states, "Where there is a power to alter the rules of the Association, such a power is prima facie valid, and if used bona fide (I underline those words) it has the effect of making all existing members bound by the altered rules, provided the alteration does not go to the foundation of the association and is not incompatable with its fundamental object (I again underline certain words)." Lord Atkin in his speech in Hole v. Garnsey, (1930) A. C. 472 at page 493, "Apart from any decision which binds your Lordships to the contrary view I should have thought on principle that the matter was fairly plain. If a man enters into association with others for a business venture he commits himself to be bound by the decision of the majority of his associates on matters within the contemplated scope of the venture. (I underline these last words.) But outside that scope he remains dominus and cannot be bound against his will."

Other cases were quoted, notably Thellusson v. Viscount Valentia 1907 2 ch. 7, where the club was founded for pigeon-shooting and other sports and it was decided by a majority to discontinue pigeon-shooting. In the summary of this case at page 587 of Kerr on Injunctions it was stated that it was held that there was no fundamental rule that any particular sport should be provided at the club.

Now it seems to me that all that the authorities go to show is that the plaintiffs have an arguable case; I do not like to use the words "likelihood of success" at this stage; and I think it is unwise to use such a phrase at present for these reasons:-

Except in one instance, which I have discovered, I have been quoted no authority at all and I doubt if any such authority exists, under which a Court has prevented by way of temporary injunction the carrying out of a proposed resolution at the holding of a club general meeting. It could, I conceive, do so if it were established that a meeting was about to be held for seditious purposes or for the purpose of contemplating or carrying out some criminal offence. The one instance I have found is referred to at page 584 of Kerr on Injunctions. "The Court has jurisdiction to restrain the committee or a general meeting of a club from expelling a member of a club." Even that power is confined within strict limits.

I have to consider no such state of affairs in the present motion. Mr. Inamdar hinted that if the name of the club were changed the plaintiff members would automatically resign. I can only express my hope that they will do no such thing until the validity or otherwise of the proposed resolution is finally adjudicated on by the Courts. I would likewise express my view that even if the resolution of the defendants were passed I think it would lead to unnecessary acrimony if the rules were amended forthwith into the new name and the club papers, bills, documents, etc., were altered forthwith into the new name. My view is that such actions should be held over until the case is decided.

I have given as much consideration as I can to the different aspects of the case and I have come to the conclusion that irreparable damage will not be done to the plaintiffs if the meeting and resolution proceeds; I have also come to the conclusion that it would be wrong at this stage to grant a temporary injunction in the terms of prayer $(a)$ of the Notice of Motion.

The motion for temporary injunction is dismissed.