Raja Azlan Shah CJ (Malaya):

The respondent successfully sought a declaration that the annual general meeting of the Parit Bakar Branch of the Malaysian Indian Congress held on 19 March 1979 was unconstitutional and unlawful and therefore ineffective, null and void. She named the first and second appellants in Federal Court Civil Appeal No. 245/79 who were elected chairman and secretary respectively of the branch at that meeting as the first two defendants. She also named the appellant in Federal Court Civil Appeal No. 248/79 who acted as the returning officer at the said meeting as the third defendant.

The appellants appealed against the decision of the learned Judge. We allowed the appeal and now give our reasons.

It is trite law that the relationship between the Malaysian Indian Congress (a registered society under the Societies Act) and its members is based on contract and the terms of the contract as embodied in the Malaysian Indian Congress Constitution will prima facie be binding on the parties. Article 15(4) of the said Constitution impliedly forbids members from resorting to Court proceedings in matters relating to their rights, obligations, duties and privileges unless and until such matters are first referred to the Central Working Committee. The said article reads as follows:

Every member shall be bound by the decision of the Central Working Committee in matters relating to his rights, obligations, duties and privileges as a member of the Congress. If he resorts to Court proceedings in respect of his rights, obligations, duties and privileges or on behalf of any other member or in respect of the rendering or meaning of the provisions of this Constitution without first referring to the Central Working Committee or in violation of any decision or directive of the Central Working Committee, he shall ipso facto cease to be a member of Congress and shall not be entitled to exercise any of the rights of a member.

The only ground of appeal taken before us is that as an agreement Article 15(4) purports to oust the jurisdiction of the Courts and is consequently against public policy and void. Indeed the learned Judge held that such a provision in the rules of the Malaysian Indian Congress has the effect of ousting the jurisdiction of the Courts to hear any dispute between a member and the Congress or its office-bearers.

One of the long standing difficulties in a subject which is often difficult, is the absence in public law of any definition of an `ouster of jurisdiction'. That has yielded much discussion and deep analysis, with comparisons being drawn from developments in other countries. The lack of clear definition may not always matter much, and in some respects insight might be thought to resemble the old quip about the elephant: easy enough to recognise, but difficult to describe. This is well indicated by the difference of opinion in the speeches of their Lordships in the House of Lords in Scott v. Avery 10 ER 1139 Crompton J said that he considered the agreement which came under consideration in that case a mere attempt to evade the law (p. 1131), while Coleridge J (p. 1134) took the view, which was upheld by the House of Lords, that the judgment of the Court of Exchequer stood on a safe distinction between an agreement which would close entirely the access to the Courts of law and that which only imposed a condition precedent to the appeal to them, that the parties should have first settled by an agreed mode the precise amount to be recovered. The case of AtlanticShipping Company v. Dreyfus 38 Times Law Report p. 534 is another illustration of the same kind of differences of opinion, the House of Lords putting an entirely different construction upon the agreement between the parties to that which was put upon it in the Court of Appeal. In the present case Article 15(4) provides as a first step that reference to the Central Working Committee is a condition precedent before resorting to Court proceedings. Th