Thomson CJ:

This appeal raises the question of the liability of a registered trade union to be sued for libel,

The appellant is the National Union of Plantation Workers which I think is agreed to be a registered trade union and it is sued as the publisher and owner of a magazine entitled "Sangamani". The respondent is the Honorary Secretary of another body known as the Malayan Estate Workers' Union.It is alleged, and for the purposes of the present proceedings it must be assumed, that in the issue of the "Sangamani" dated 1 June, 1956, there were published certain defamatory statements in to the respondent.After some preliminary correspondence the respondent commence, proceedings in libel and cited as defendants the Editor of the "Sangamani" and the appellant union as "publishers and owners" of that periodical.

The appellant union thereupon took out a summons to have themselves struck out as defendants on the ground that the action against them was not competent by reason of s. 21 of the Trade Unions Enactment, 1940.This application was dismissed by Sutherland J, and against that decision the appellant has now appealed.

The law relating to trade unions in this country is contained in the Trade Unions Enactment, 1940, which is clearly based on, though it does not follow in detail, the provisions of the United Kingdom Trade Union Acts.Section 21 of that Enactment, which corresponds to s. 4 of the Trade Disputes Act, 1906, reads as follows:

21 (1) A suit against a registered trade union or against any members or officers thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any Court.

(2) Nothing in this section shall affect the liability of a trade union or any officer thereof to be sued in any Court touching or concerning the property or rights of a trade union, except in respect of any tortious act committed by or on behalf of the trade union in contemplation or in furtherance of a trade dispute.

Before proceeding to a detailed consideration of that section it is important to observe that it does not create any liability on the part of trade unions.What it does do is to cut down and limit liabilities which arise and exist independently of it and which, but for its provisions, would be greater than they are.

These liabilities are the same as were the liabilities of trade unions under the law of England prior to the Trade Disputes Act, 1906.After the case of The Taff Vale Railway Co. v. The Amalgamated Society of Railway Servants [1901] AC 426 it was settled law that a trade union was an entity known to the law and could be sued inter alia for the tortious acts of its servants or agents (see Bonsor v. Musicians' Union [1956] AC 104). Moreover, in the case of any unincorporated body whose property is vested in trustees the trustees as such can be joined as defendants in any proceedings where the plaintiff is seeking a remedy against the property (see Ideal Films Ltd. v. Richards [1927] 1 KB 374).

As regards libel, therefore, the position, had s. 21 not been enacted, would have been that a trade union could be sued for any libel published by its servants for which it would be liable............ on ordinary principles of agency" (see Citizens' Life Assurance Co. Ltd. v. Brown [1904] AC 423, 426). That is the liability which would exist were it not for s. 21 and which s. 21 has to some extent cut down and limited.

With great respect for the legislature I can only describe s. 21 as a sort of forensic jumping jack.He starts with the liability of the trade union as it has been stated; then the section cuts it down by saying that no action in respect of any tortious act shall be entertained by any Court.Having imposed that prohibition the section then detracts from it by saying it is not to apply where the union is sued "touching or concerning" its "property or rights." Then having thus