Principles

·  Civil procedure—Injunction-—Temporary—Civil Justice Ordinance. 1929. s. 142—. Issue of temporary injunction wrong where plaintiff cannot bring suit to restrain defendant because other remedies must be exhausted by a plaintiff first

 Where an unincorporated association, the Coptic Benevolent Society for Khartoum North, is governed by established by-laws, a party alleging a breach of those by-laws, and seeking to restrain such breach and to have the position regularized, must exhaust the remedies and procedures provided in the by-laws themselves before seeking the intervention of the court. Since a temporary injunction restraining such a breach issued under Civil Justice Ordinance, 1929, s. 142, can only be issued in the course of a suit for permanently restraining such a breach, it cannot be issued before the aforementioned remedies and procedures outside the court have been exhausted.

Judgment

M. A. Abu Rannat C.J. November. 28, 1961 :—This is an application for revision by Archbishop Younis against the order of the Province Judge, Khartoum, dated May 17, 1961, appointing seven neutral Copts to replace a committee which was appointed by the said Archbishop, and bestowed on them all the powers of an Executive Committee under the by-laws of the Coptic Benevolent Society for Khartoum North. This order was made under Civil Justice Ordinance, 1929, s. 142.

   In order to reach a correct decision, it is necessary to set out the facts which are admitted by both parties to the suit.

On May 4, 1961, two persons, namely, Abram Sorial and Sami Muad, submitted a petition to the court alleging that they are members of the Coptic Society in Khartoum North, that they paid their subscription until May 1961, and that the number of the members of the said society is300 . They stated in their petition that they are making the following claim in their own right and on behalf of the other members of the Society, which is a religious one.

The statement of claim embodied in the petition runs as follows:

1. On April 4. 1961, the Executive Committee, consisting of fifteen members, resigned their posts and the Archbishop appointed the ten other co-defendants in their place.
2. That under article 7 of the by-laws of the Coptic Benevolent Society, if the seats of three members are vacated, the General Committee should be called to elect three members in their place, and that if more than half the members of the Executive Committee resigned, the General Committee should also be called to elect a new Executive Committee in their place.
3. That the Archbishop has no power to appoint the ten co-defendants and that his act is contrary to the Society’s by-laws.
4. That the petitioners informed the Archbishop that his act was invalid and asked him to call the general meeting, but he refused.

Then the petitioners prayed for the following remedies:

(a)    A declaration that the appointment of the ten co-defendants is invalid.

(b)   Removal of the ten co-defendants from the administration of the Society.

(c)    Compulsion of the Archbishop to call for the general meeting.

(d)   A decision that; any member who paid subscriptions for three months before the general meeting is entitled to vote.

(e)    A declaration that any act done by the Archbishop or any other person contrary to the by-laws is null and void.

On presenting this petition, the petitioners were not examined as to whether they have a cause of action, and the learned Province Judge allowed the- action on payment of fees and a date for examination of the other parties was fixed for May 31, 1961.

On May 9, 1961, the petitioners applied for an injunction under Civil Justice Ordinance, s 142, restraining the defendants from administering the affairs of the Society.

   After hearing both parties on the petition, the learned Province Judge made the following order on May 17, 1961:

1.      A Committee of seven neutral Copts in Khartoum North should be appointed by the Commissioner, Khartoum.

2.      This Committee should replace the present Committee -for all intents and purposes and should have all the powers of a Committee elected under the Society’s constitution. -

3.      This order is made without prejudice to the powers of the Archbishop under the constitution of the Society.

            This order means that the body now governing the Society is to cease to function from the moment the Committee takes over.”

Against this order, the applicants are applying for revision.

Before us, advocate Abdulla El Hassan appeared for applicants, and advocate Mohamed Ahmed Orabi appeared for respondents.

Advocate Abdulla submits that the plaintiffs have no cause of action, as ‘hey have no capacity to sue in accordance with the provisions of the by-laws that the application was at first prayed for mandamus, and that according to AC-REV-166-1956 no writ for mandamus could be issued in the circumstances of the case. He also submits that even if it is considered by the court that there was a contract between the plaintiffs and respondents as laid down in the by-laws, there was in fact no breach by the Archbishop and other co-defendants. He also contends that even if there was a dispute between the Archbishop and the Executive Committee, the matter should be referred to the Patriarch in Egypt in accordance with article 28 of the by-laws.

Advocate Orabi replies that there is a cause of action, as the Archbishop refused to abide by the provisions of the by-laws which were accepted by him, appointed ten persons without election and refused to call the General Committee for the election of an Executive Committee. He also stated that article 28 of the by-laws does not apply, as no Executive Committee was elected and the former Committee does not exist.

 If we come to the conclusion that there was no cause of action or that the action is premature, then the injunction ordered by the court is wrong.

 In the preamble to the by-law, it is stated that if there is repugnancy between the judgment in CS-94-1955 and the award of arbitration dated December 27, 1956 on one part, and the provisions of the by-laws on the other part, the judgment and award shall prevail.

At the bottom of page 16 of the booklet containing the by-laws, the award of arbitration and the judgment, the award provides as follows:

The Archbishop has the right to administer the affairs of the Coptic Church and establishments in Khartoum North, spiritually, administratively and financially, and he is responsible for it.”

The second paragraph says that as he cannot alone administer all the affairs, it is natural that he should be assisted by benevolent committees, etc.

 This means that the provisions in the Award of Arbitration override article of the by-laws, which describes the Archbishop as an honorary chairman of the Society.

   Article 11 of the by-laws provides that the General Committee may be called to an extraordinary meeting in accordance with a resolution by the Executive Committee or by not less than one-fourth of the number of the members.

Article 12 (3) lays down that the General Committee elects the Executive Committee by secret ballot.

            In my view, the remedies open to the members of this Society are outlined in the booklet containing the by-laws and the Award of Arbitration, and unless those remedies are exhausted, they cannot resort to the Court.

The two plaintiffs cannot apply to the court to restrain the Archbishop from administering the affairs of the Society. At least one-fourth of the members must apply to the Archbishop for calling the general meeting. Furthermore, the fifteen members of the Executive Committee should have applied to the Patriarch if there was a dispute between them and the Archbishop as is laid down in article 28 of the by-laws instead of resigning, but if they preferred not to refer their dispute to the Patriarch, they must convince at least one-fourth of the members to apply for a general meeting.

  In our view the plaintiffs have no cause of action and consequently the provisional order under Civil Justice Ordinance, 1929, s. 142, has no legs to stand on. We therefore order the dismissal of the plaint and setting aside the order of the Province Judge dated May 17, 1961.

M. A. Hassib J. November 28, 1961:—I concur.