Valji and Another v Mulji and Others (Civil Appeal No. 89 of 1952) [1952] EACA 193 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAHON, J. (Tanganyika)

## (1) NAROTAM VALJI, (2) DULABH LAXMICHAND, Appellants (Original Plaintiffs)

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(1) BHIKA MULJI, (2) NAROTAM BHIKA, (3) DAMJI SAMJI, personally and as persons representing the RAJPUT BHOI PUNCH of Mombasa, Respondents (Original Defendants)

Civil Appeal No. 89 of 1952

(Appeal from decision of H. M. Supreme Court of Kenya—Connell, J.)

Unincorporated association—Expulsion—Jurisdiction of Court.

The appellants sued respondents in the Supreme Court of Kenya for a declaration that they had been unlawfully expelled from an unincorporated association and for damages. The respondents pleaded that the Court had no jurisdiction to entertain the suit such the issue involved did not constitute a suit of a civil nature.

Held (21-11-52).—The Courts have no jurisdiction unless it can be shown that by expulsion the appellants had been deprived of a right of property vested in them as members.

Appeal dismissed.

Case referred to: Rigby v. Connel, (1880) 14 Ch. D. page 487.

O'Brien Kelly for appellants.

K. I. Joshi for first and second respondents.

Respondent No. 3 absent, unrepresented.

JUDGMENT (delivered by SIR BARCLAY NIHILL, (President).—As we have already intimated to the parties, it is the unanimous view of the Court that this appeal fails and must be dismissed. I now give reasons for this decision.

The appellants brought an action in the Supreme Court of Kenya praying for a declaration that they had been unlawfully expelled from an unincorporated association known as the Rajput Bhoi Punch of Mombasa, and for damages. The respondents are respectively the president, secretary and a member of the management committee of the society.

On a chamber summons taken out under Order 1, rule 8, of the Kenya Civil Procedure Code the appellants were given leave to sue the respondents as representatives of the society. By their defence the respondents pleaded inter alia that the Court had no jurisdiction to entertain the suit, since the issues involved did not constitute a suit of a civil nature: (section 5 of the Kenya Civil Procedure Code).

Mr. O'Brien Kelly for the appellants has conceded as he must, that this defence was bound to succeed, unless it could be shown that by their expulsion from the society the appellants have been deprived of a right of property vested in them as members. As was said by Jessel, Master of the Rolls, in Rigby $v$ . Connel, (1880) 14 Ch. D. at page 487:-

"There is no such jurisdiction that I am aware of reposed, in this country at least, in any of the Queen's Courts to decide upon the rights of persons to associate together when the association possesses no property ... in such cases no court of justice can interfere so long as there is no property the right to which is taken away from the person complaining."

There are certain Indian cases where the Courts appear to have extended their jurisdiction to questions relating simpliciter to expulsion from a caste, but these are not binding on this Court and it is not necessary to review them in detail. It is sufficient to say that many of the Indian decisions follow the principle expressed in Rigby v. Connel, supra. Now in the instant case the learned trial Judge has found as a fact that the appellants failed to prove that they had, by the action of the respondents, been deprived of the right to use the movable property of the association. On the evidence before him he could hardly have come to any other conclusion. It was proved that this society, which appears to be an association for regulating the affairs of a certain Indian caste, possessed no property other than some cooking utensils, bowls and dishes which could be hired out by members for use on certain social occasions, such as marriage feasts or funerals. It is true that the appellants as members were required to pay a small monthly subscription, so that it may be correct to say that they shared a right of property in these vessels. There is nothing, however, in the resolution of the society (exhibit 3) which the appellants regard as a sentence of excommunication from the caste which forbids them from access to or use of this paraphanalia. Both the first and second appellants admitted in evidence that since the passing of the resolution they had not been refused the use of the utensils. They have in fact never asked for them. The truth is that the resolution does not expressly purport to be a resolution of expulsion at all. It is merely declaratory of an intention by 29 members of the society that they will not invite the appellants to their residences on the occasion of community feasts nor accept invitations from them. Mr. O'Brien Kelly has invited us to regard this as amounting to a denial to the appellants of the use of the society's vessels, but this is surely not the case. What the resolution does amount to is that the appellants will not receive invitations to certain social functions at the houses of the 29 signatories, where the society's vessels might or might not be in use.

I now come to that part of the judgment appealed against, where I think, with respect, the learned Judge went wrong. Having found with justification that no right of property to which the appellants were entitled had been taken from them, which alone would have given him the jurisdiction to entertain the suit, he then proceeded to decide the issue as to whether the appellants had received proper notice of the meeting of 4th February, 1949. The learned Judge found that they had not. Now had the appellants been able to satisfy the trial Judge that their dispute with the respondents did constitute a suit of a civil nature this issue would have been most material, but this is precisely what they failed to do and, accordingly the learned trial Judge was not called upon to inquire further. In fact, having found that the appellants had not been denied some right of property to which they were entitled, he should have dismissed the suit. The respondents have not complained of this part of the judgment by way of cross appeal, but since it goes to jurisdiction, the judgment of the Court below must be set right.

An order will accordingly be made setting aside the judgment of the Court below and ordering that the appellant's suit in the Supreme Court of Kenya be dismissed with costs. Similarly, this appeal is dismissed with costs.

SIR NEWNHAM WORLEY (Vice-President).-I agree and have nothing to add. MAHON, J. (Tanganyika).—I also agree and have nothing to add.