Chen Cheng and Another v Central Christian Church and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 21 November 1995
• Neutral Citation: [1995] SGCA 82
• Docket Number: Civil Appeals Nos 60 and 61 of 1995
• Date: 21 November 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Chee Meng and Melvin Khoo (Harry Elias & Pnrs)
• Citation: [1995] SGCA 82
• Defendant Counsel: Cheong Yuen Hee and Parambir Singh Sekhon (Bridges Choy & Lopez)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether having the necessary legal personality to sue for libel,Friendly societies,ss 2, 4, 7, 9, 10, 12, 14, 19, 24, 25, 35, 36 Societies Act (Cap 311),Unincorporated association registered under Societies Act,Unincorporated Associations and Trade Unions,Defamation,Tort,Whether registered society an entity with legal attributes distinct from members,Whether capable of suing and being sued in its own name,Legal personality

Cur Adv Vult

(delivering the judgment of the court): These two appeals, which we heard together, raise an important question of law. It is whether the Central Christian Church, the respondents in both appeals, have the necessary legal personality or are persona legalis to enable them to sue for libel in respect of two publications, one in the Lian He Wan Bao dated 23 November 1991 (CA 60/95) and the other in The New Paper also dated 23 November 1991 (CA 61/95), which the respondents allege were defamatory of them. This question was answered in the affirmative both by the senior assistant registrar and on appeal from him, by the learned judge. [See [1995] 1 SLR 115 .]

The question arose in this way. The respondents who are an unincorporated association registered under the Societies Act (Cap 311) commenced separate actions against the editors, publishers and printers of the Lian He Wan Bao and The New Paper , to whom we will collectively refer as `the appellants`, alleging that in the publications referred to above the respondents had been described as `cult organizations` who might organize `harmful activities here` and who `stretch the truth and have "exclusive" practices.` It is not necessary to refer to the pleadings any further. The appellants then took out a summons-in-chambers in the two actions claiming that the statements of claim be struck out under O 18 r 19 of the Rules of the Supreme Court, and under the inherent jurisdiction of the court on the ground that they did not disclose a reasonable cause of action against the appellants, were frivolous and vexatious and were an abuse of the process of the court.

Both summonses-in-chambers were heard together by the senior assistant registrar as were the appeals from him by the learned judge. The sole question, at least before the learned judge as framed by him in his judgment, was `whether a society registered under the Societies Act has a legal personality which is capable in law of being defamed.` Before us, counsel for the appellants framed three issues as follows:

(a) Whether an unincorporated association registered under the Societies Act (Cap 311) (registered society) has a legal personality separate from that of its members by virtue of its registration.

(b) Whether a registered society has a reputation capable of being defamed.

(c) Whether s 35(b) of the Societies Act is in reality a procedural provision which does not in any way affect the substantive law in respect of the tort of defamation.

Although issue (b) was not specifically raised as an issue before the learned judge and notwithstanding that counsel for the respondents objected to it being raised as an issue before us, we allowed it to be raised as, in our view, it was a corollary of the question before the learned judge, that is to say whether the respondents, a society registered under the Societies Act, were capable in law of being defamed. Issue (c) may be considered a sub-issue under issue (a) as it was contended in the court below and so held by the learned judge that one of the indicia which gave a registered society legal personality was s 35(b) of the Societies Act which gave the registered society the right to sue or be sued in its name, whereas the appellants contended that s 35(b) was in reality a procedural provision which did not give any substantive rights to the registered society.

The approach taken by the learned judge in determining the question put to him, in our view, is eminently correct. In his judgment he said:

[T]he answer to the question depends on a true and natural interpretation of the provisions of the Societies Act and also on a review of the English case law which had to grapple with the legal personality of associations such as trade unions and friendly societies. Such associations were and are registered under English statutes which have analogous, though not exactly similar, provisions nor [sic] analogous statutory framework as those of our Societies Act. The underlying principles of the law of status and of persons, however, are the same.

We will begin by considering the legal status of unincorporated associations under the common law. It is a settled principle of the common law, of which there can be no doubt, that an unincorporated association consisting of a mere aggregate of individuals is not a legal entity. Lord Buckmaster, Lord Chancellor, in London Association for Protection of Trade & Anor v Greenlands Ltd [1916] 2 AC 15, referring to the association said:

The association consisted of some 6,200 members; it was unincorporated and consequently could not be made a defendant to the action in any capacity whatever. As an entity it could neither publish nor authorize the publication of a libel; and this appears to have been recognized before your Lordships` House, as the plaintiffs have consented to strike out the association from the action.

In Electrical, Electronics, Telecommunication and Plumbing Union v Times Newspapers Ltd & Ors [1980] 1 All ER 1097, to which we will refer as the `the EETPU case`, O`Connor J referring to the common law position of unincorporated associations in the context of the tort of libel said at p 1099:

[T]he action for defamation is a personal matter because it is the reputation of the person which is defamed, and unless one can attach a personality to a body, it cannot sue for defamation. The best examples of this are found in the well-established law that a voluntary unincorporated association cannot maintain an action for libel on itself. Let me give an example. If one says of the Longbeach Anglers` Association that at the competition last Saturday they cheated, there is a defamatory statement; but the Longbeach Anglers` Association cannot maintain an action in respect of it. It may be that the individuals of the association who were partaking in the competition could successfully sue by saying that, although they were not named, the defamatory statement pointed at them with sufficient clarity and was so understood by those who knew that they were members of that association to enable them to sue for libel; but the association could not do so, and it could not do so, as I see it, on the principle that it has no personality of its own which is capable of being defamed. It may well be that an unincorporated association cannot sue in its own name for anything, but I am restricting what I have to say to defamation. So you have got to have personality which is capable of being defamed before a plaintiff can bring an action for libel. [Emphasis added.]

But Parliament can clothe an unincorporated association with legal personality or make it persona legalis and vest it with powers, generally or with limitations, to enable it to sue or to be sued in its own name, either in contract or in tort which of course includes an action of defamation. It cannot be gainsaid that a trade union consisting of an aggregate of individuals formed for the purpose of protecting or advancing their individual or collective rights in trade and industry is an unincorporated association. But the trade union was an unincorporated association with a difference unlike the Longbeach Anglers` Association referred to by O`Connor J in the EETPU case. The former being an association of individuals in the restraint of trade was unlawful whereas the latter formed in the pursuit of leisure and recreation was lawful.

In 1871 the English Parliament passed the Trade Union Act 1871, providing for the registration of trade unions and the legalization of such registered trade unions; `but they were without question unincorporated associations, and as such one would have thought that they could neither sue in their own names, nor be sued, and as such could not be defamed in their proper name` as O`Connor J observed in the EETPU case at p 1100.

In 1901 the question of whether a trade union registered under the Trade Union Act of 1871 and the amending Act of 1876 may be sued in its registered name came for consideration before the English Courts in the case of The Taff Vale Railway Co v The Amalgamated Society of Railway Servants [1901] AC 426. It will be noted that the Trade Union Acts of 1871 and 1876 did not contain any specific provision that the trade union may sue, or be sued in its registered name. Notwithstanding that, Farwell J at first instance and the House of Lords held that The Amalgamated Society of Railway Servants could be sued in its registered name.

The Taff Vale Railway Co had sought an injunction against The Amalgamated Society of Railway Servants, its general secretary and the organizing secretary from picketing the premises of the railway company for the purpose of persuading or preventing those working for the railway company from entering the premises of the railway company in connection with their employment. The Amalgamated Society of Railway Servants applied to the court for its name to be struck out as a defendant on the ground that it being neither a corporation nor an individual could not be sued in a quasi-corporate or any other capacity. Farwell J whose judgment was highly commended by their Lordships in the House of Lords, and is most instructive to us, addressed himself as follows at pp 427-428:

The questions that I have to consider are what, according to the true construction of the Trade Union Acts, has the legislature enabled the trade unions to do, and what, if any, liability does a trade union incur for wrongs done to others in the exercise of its authorized powers? The Acts commence by legalizing the usual trade union contracts, and proceed to establish a registry of trade unions, give to each trade union an exclusive right to the name in which it is registered, authorize it through the medium of trustees to own a limited amount of real estate, and unlimited personal estate `for the use and benefit of such trade union and the members

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