MAN PING NAM v. MAN MEI KWAI

HCA9852/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 9852 OF 1998

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J U D G M E N T

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1. This action concerns a customary Chinese unincorporated association, "wui" ("會"), loosely translated as a society or association in the English language, known as Man Sham Chung Wui (文深涌會) (the "Wui"), in which name four plots of land in the New Territories are held from the Government and registered. The Plaintiff (by original action) and 1st Defendant (by counterclaim) (referred to in this judgment as the "Plaintiff") is and was since 1949 the registered manager of the Wui. The Defendant (by original action) and Plaintiff (by counterclaim) (referred to in this judgment as the "Defendant") is and was at all material times a member of the Wui. The 2nd Defendants (by counterclaim) (referred to in this judgment as the "2nd Defendants") are the former "tenants" and current occupiers of part of the land registered in the name of the Wui.

2. According to the evidence adduced at trial, the membership of the Wui consists of indigenous New Territories residents of the surname Man. They are said to be the direct descendants of the well-known Chinese patriotic official Man Tin Cheung (文天祥) (A.D. 1236 - 1283) of the (Southern) Sung Dynasty in its final years. His resistance army, heavily out-numbered by the chasing Mongolian invaders, retreated to a region near Hong Kong, whilst the last emperor of the Dynasty actually fled from the Mainland to Hong Kong and no soon thereafter committed suicide after losing a sea battle (in A.D. 1279). Man had been captured in another battle earlier and was eventually executed after three years of imprisonment, having steadfastly refused to switch his allegiance to his captors. His descendants however settled in Hong Kong and have since formed a large clan scattering around the San Tin area in the New Territories.

3. Since settling in the San Tin area, the Man clan members became owners of land in that area. Moreover, in accordance with traditional Chinese custom and practice, various tsos, tongs and wuis were formed to own land for various purposes, and Man Sham Chung Wui was one of them. There is no evidence before me as to when the Wui was formed, nor is it clear from the evidence what was the original purpose of formation of the Wui save that it is referred to as a sort of business-tong formed or constituted by members of the same clan. But one thing is quite clear. The Wui had been in existence before 1898 when the New Territories were leased to Great Britain for 99 years. This can be seen by the naming of the Wui as the Crown lessee of four lots of agricultural land in San Tin, namely, Lot No. 733, Lot No. 674, Lot No. 669 and Lot No. 661 all in Demarcation District No. 99 under a Block Crown lease, and the registration of the Wui as the owner thereof after land registration system was established in the New Territories by the then Hong Kong Government. As time went by, and as a result of land resumption by the Government, the four lots, or more correctly, the remainder thereof, became Lot No. 733RP, Lot No. 674RP, Lot No. 669RP and Lot No. 661CRP. The four lots of land now have a total area exceeding 7 million square feet, and Lot No.733RP is said to be amongst the largest single lots of land in the whole of Hong Kong.

4. In accordance with traditional Chinese custom and practice, and indeed in accordance with law, the Wui has been and is at all material times managed by one or more registered "managers" ("司理"). As I said, the Plaintiff is the current and sole registered manager of the Wui, and the Defendant one of the members of the Wui. Essentially, the present action and counterclaim concern the power of the Plaintiff as registered manager of the Wui to let to others land registered in the name of the Wui, and the rights and powers of a member or "owner" of the Wui like the Defendant in relation to the same.

5. According to the evidence, before 1950, the land of the Wui used to be cultivated and farmed by its own members. With the change in the social and economic structure in Hong Kong since the end of the Second World War and the establishment of the People's Republic of China in the Mainland, the Wui through its manager(s) has let many parts of its land to others since 1950. Some parts of the land have since been used for container storage purpose, whilst other parts, consisting mainly of fish ponds, have been used for fish farming and other agricultural purpose as before by the tenants. Rental incomes so generated have been distributed amongst members of the Wui according to their respective shares expressed in terms of Chinese measurements in the crop produce. So for instance, the Defendant as a member of the Wui is entitled to a share of 5 "sheks"/"dams"/"dous" ("石"/"擔"/"斗") out of a total share of 63.98, whereas the Plaintiff, also a member of the Wui, is entitled to 1.33 sheks. According to a Book of Entitlement prepared by the Plaintiff as manager of the Wui in the 1980s, there were at that time 33 members of the Wui, consisting of individual members belonging to the Man clan, as well as tsos and tongs comprising members of the Man clan.

6. It is apparent from the evidence that by mid 1990s, some members of the Wui have become dissatisfied with the performance of the Plaintiff as manager of the Wui, and a "Working Group" of the Wui owners was formed by these members to ventilate their views. The Defendant became its leading member, representative and spokesman. It is also apparent that some of these dissenting members actually held shares in the Wui that had been sold to outsiders and they were registered or remained registered as members of the Wui as nominees of the outsiders, in order to comply with the traditional requirement of the Wui that members must be of the Man descent. Amongst other things, the Working Group apparently disagreed with the letting policy of the Plaintiff in that it wanted a greater proportion of the Wui land to be let for container storage purpose instead of agricultural purpose as this would bring in much higher rental incomes. The Plaintiff and presumably some other members disagreed to the extent that they did not want to expend (substantial) money on filling the fish ponds in order to turn them into open storage ground. They were content with the rental incomes generated by the existing tenancies. Another dispute arising in early 1996 when some 10-year tenancies of the Wui land were expiring was to whom should the Wui (through its manager the Plaintiff) re-let the land involved (particularly that portion which could already be used for open storage purpose).

7. Eventually, the Plaintiff as manager entered into a 2-year tenancy with the 2nd Defendants (plus a Mr. Leung) in respect of a large portion of Lot No. 733RP of several million sq. ft. in area at a rent of $640,000 per annum, expiring on 30th January 1998. Another 2-year tenancy, with two members of the Man clan, was entered into by the Plaintiff as manager of the Wui, in respect of over 300,000 sq. ft. of Wui land located partly in Lot No. 733RP and partly in Lot No. 674RP, at a yearly rent of $2,400,000, after calling for tenders by intending tenants. A part of the demised land comprising over 190,000 sq. ft. in area was eventually sub-let to an outside company, Jet Harbour Limited ("Jet Harbour") through various sub-tenancies, at a rent of $266,600 per month. This tenancy was also to expire in January 1998.

8. Two things then happened when the terms of the two tenancies were approaching their expiration. Firstly, by a purported "Notice of Termination of Tenancy" dated 28th July 1997 issued by the Working Group and signed by the Defendant, the Working Group purportedly "representing" the Wui gave the 2nd Defendants and Mr. Leung as tenants under the fish pond tenancy a 6-month notice of termination purportedly pursuant to the provisions in the Landlord and Tenant (Consolidation) Ordinance (Cap. 7), requiring the tenants to vacate the demised premises upon the expiry of their tenancy on 30th January 1998.

9. Secondly and more seriously, on 28th December 1997, the Defendant and two others, namely, Man Mei San and Man Chui Tai, signed a purported tenancy agreement prepared by them to lease all the Wui land to themselves as tenants for a term of 5 years ("Purported Tenancy Agreement"). The landlord (described as "Party A") under the Purported Tenancy Agreement was said to be "San Tin Man Sham Chung Wui Owners" ("新田文心涌會業主"). It purported to let the four lots of Wui land to the three tenants at an annual rent of $3,600,000. The rent was payable either to the manager of the Wui or "the representative sent by the Wui owners to collect rent on his behalf". According to the Purported Tenancy Agreement, whilst the term of tenancy was to be 5 years from 1st February 1998 to January 2003, if upon the expiry of the term, should the landlord (as described above) not require the land for development, the tenants should have a "pre-emptive" right to the renewal of the tenancy at a reasonable rent. The Purported Tenancy Agreement further provided that if the landlord should want to sell the land during the term of tenancy, the three tenants should have a "pre-emptive" right to purchase the land at the same price. At the signing space, the Purported Tenancy Agreement was to be signed by the Wui manager "or" the "joint representative(s) of the owners" ("業主聯名代表") on behalf of Party A (i.e. the landlord). As a matter of fact, the Purported Tenancy Agreement was signed by the three purported tenants (including the Defendant) as such, as well as the Defendant and a number of others apparently holding shares in the Wui as the "joint representative(s) of the owners" on behalf of the landlord. It was not signed by the Plaintiff in any capacity at all.

10. According to the evidence, the Purported Tenancy Agreement was stamped by the Defendant on 20th January 1998, and on the same day his then solicitors (Jessie Chu & Co.) wrote on his behalf to the Plaintiff as manager of the Wui informing him that the Purported Tenancy Agreement had been made and signed by a majority of the Wui members and requesting him "to ratify and confirm the said tenancy agreement by signing the same and to collect and acknowledge receipt of the rental deposit from [the Defendant] at [his] earliest convenience."

11. The Plaintiff through his then solicitors (David Y.Y. Fung & Co.) replied that he would not enter into any tenancy agreement with the Defendant on the terms of the Purported Tenancy Agreement, as the same were "not for the benefit of the Wui". To this the Defendant replied through solicitors on 20th March 1998 asking the Plaintiff to explain to the majority of the members of the Wui who had signed the Purported Tenancy Agreement the reasons why the Plaintiff considered that the Purported Tenancy Agreement was not for the benefit of the Wui, and warning him that he could be acting in breach of his fiduciary duty to the Wui in disregarding the wish of its majority members.

12. At around the same time, Jet Harbour got into direct contact with the Plaintiff for the direct letting of that part of the Wui land occupied by Jet Harbour for container storage purpose through sub-tenancies upon the expiry of the 2-year head lease. This sounded acceptable to the Plaintiff who thus entered into negotiations with Jet Harbour through its solicitors (Tommy Lai & Co.) regarding the intended direct letting between the Wui through the Plaintiff and Jet Harbour.

13. However, this became known to the Defendant who through solicitors wrote to Jet Harbour's solicitors on 20th March 1998 informing the latter that he had entered into the Purported Tenancy Agreement "with a majority of members of the Wui", enclosing the correspondence between the Defendant's solicitors and the Plaintiff and his solicitors relating to the Purported Tenancy Agreement, and asking Jet Harbour's solicitors to take instructions regarding their client's taking up a "sub-tenancy", meaning apparently a sub-tenancy from the Defendant as head-tenant under the Purported Tenancy Agreement, of the premises in question.

14. This understandably prompted the solicitors of Jet Harbour to write to the respective solicitors of the Plaintiff and Defendant seeking clarification of the position. In particular, they wrote to the Defendant's solicitors on 23rd March 1998 asking the latter to let them have "evidence whether the [Defendant and his two co-tenants under the Purported Tenancy Agreement] have the authority to deal with the above property." To this, the Defendant's solicitors replied on the following day that they were instructed that "[their] client's authority to deal with the above property derived from the [Purported Tenancy Agreement] which was signed by a majority members of [the Wui]".

15. From the Plaintiff's side, his solicitors wrote back to Jet Harbour's solicitors contending that no one other than the Plaintiff as manager of the Wui could deal with the Wui land and the Plaintiff had not agreed to or signed the Purported Tenancy Agreement which was therefore not binding on the Wui or the Plaintiff. They invited Jet Harbour to continue dealing with the Plaintiff for leasing the relevant premises. These letters from the Plaintiff were duly copied by Jet Harbour's solicitors to the Defendants' solicitors for comment. By a letter dated 29th April 1998, the Defendant's solicitors replied to Jet Harbour's solicitors by enclosing a copy extract of their letter to the Plaintiff's solicitors as answer. In this enclosed extract, the Defendant agreed that the Plaintiff had "the capacity/power to sign tenancy or else [the Defendant] would not request [the Plaintiff] to sign/endorse the [Purported Tenancy Agreement]." But it went on to allege that the Plaintiff's refusal to sign or endorse the Purported Tenancy Agreement against the wish of the majority of the Wui members could amount to a breach of fiduciary duty to the Wui members, and demanded the Plaintiff to convene a members' meeting forthwith to discuss the tenancy of the relevant premises. It asked the Plaintiff not to enter into any new tenancy agreement without the majority members' consent in meeting or by resolution.

16. In this state of affairs, the solicitors of Jet Harbour apparently concluded that it would not be safe for their client to enter into a direct tenancy relationship with the Plaintiff pending the clarification of the Plaintiff's right to do so. Eventually it was agreed between the Plaintiff and Jet Harbour that Jet Harbour be allowed to continue occupying the relevant part of the Wui land for container storage purpose after the expiry of the 2-year head tenancy as before on the condition that Jet Harbour should pay a monthly sum of $266,000 (being its then current sub-rental amount) as mesne profits or "compensation money" to the Plaintiff's solicitors as stakeholder pending clarification of the Plaintiff's right to receive the payment and resolution of the dispute between the Plaintiff and Defendant. According to the evidence, this has since become and remained the position up to the time of trial.

17. As regards the fish pond premises, the 2-year tenancy also expired by the end of January 1998, but the tenants (i.e. the 2nd Defendants and Mr. Leung) continued to remain in occupation. According to the evidence of the Plaintiff and the first-named 2nd Defendant (Mr. Lo) whose evidence in this regard I accept, they did not enter into a new written tenancy agreement with each other although both sides were desirous of so doing because of the dispute between the Plaintiff and the Defendant relating to the Purported Tenancy Agreement and the Plaintiff's right to let the Wui premises against the alleged majority wish of the Wui members. Therefore although at one stage the Plaintiff by solicitors asked the tenants to vacate the fish pond land or to become the Wui's "annual tenant", nothing of that sort ever came into being. Instead pending the resolution of the dispute between the Plaintiff and the Defendant, "compensation money" at the same rate as the previous rent was paid to the Plaintiff without the protection of any written tenancy agreement for the continued occupation of the premises by the tenants. Subsequently Mr. Leung of the tenants did not pay his share of the compensation money, and the Plaintiff obtained a court order for possession of the premises against him. But practically speaking, the fish pond premises continued to be occupied and used as before on this interim basis by the tenants less Mr. Leung, i.e. the 2nd Defendants, pending the outcome of the present dispute.

18. Proceedings were duly commenced by the Plaintiff against the Defendant on 17th June 1998 seeking declaratory and injunctive relief relating to the Purported Tenancy Agreement. In his Defence and Counterclaim filed on 30th July 1998, the Defendant by counsel pleaded that he "has not taken the position that the Intended Tenancy [i.e. the Purported Tenancy Agreement] is already effective and binding as neither [the Plaintiff] nor the District Officer had signified their consent to the granting of the same under section 15 of the New Territories Ordinance." The reference to the consent of the District Officer under section 15 of the New Territories Ordinance (Cap. 97) (the "Ordinance") reflected the Defendant's contention in his pleading that all tenancies of the Wui land had to be consented to by the District Officer (now the Secretary for Home Affairs) in order to be effective by reason of section 15 of the Ordinance which applied to the Wui.

19. Indeed, based on that contention, the Defendant also alleged that the fish pond tenancy of 1996 was not validly granted by the Plaintiff to the 2nd Defendants and Mr. Leung as no consent had been obtained by the Plaintiff from the District Land Officer relating to the same, and any purported renewal of the same as from February 1998 was likewise invalid for want of consent. The same argument applied to any attempt letting of the Wui land to Jet Harbour by the Plaintiff.

20. The fish pond tenants with the exception of Mr. Leung were therefore joined as the 2nd Defendants alongside the Plaintiff (as the 1st Defendant) under the Defendant's counterclaim for declaratory and injunctive relief relating to the requirement of consent under section 15 in the grant of any Wui land tenancy. It should be noted that the question of consent was never raised by anybody prior to the Defendant's filing of his Defence and Counterclaim in July 1998.

21. The issues between the parties were thus joined, and by and large they remain the primary issues in dispute between the parties, although there have also been raised subsidiary issues.

What is a "Wui"?

22. It is useful and indeed necessary to say something about the true nature of a "wui" before I proceed to deal with the issues raised. This brings me to the traditional or customary Chinese modes of land ownership and land transaction. According to the so-called Lockhart Report (a government report on the New Territories during the first year of British administration) written by the then Colonial Secretary of Hong Kong, Mr. Stewart Lockhart, in 1900, the proclaimed policy of the then Hong Kong Government in assuming administration of the New Territories as from 1st July 1898 was as follows:

'Before the territory was taken over the Governor issued a proclamation in Chinese ... In this proclamation the people are assured that "their commercial and landed interests will be safeguarded and their usages and good customs will not in any way be interfered with", and that "as subjects of the great British Empire their perfect freedom from oppression is assured."'

23. In an Appendix to the report, land ownership in the New Territories was dealt with in some detail. Apart from the more familiar institutions of "tso" and "tong" and the office of a "manager"/"sze lei"/"trustee"(as to which see, for instance, Tang Kai-chung v Tang Chik-shang [1970] HKLR 276, Chu Tak-hing v Chu Chan Cheung-kiu [1968] HKLR 542 and J. Hayes, Tong and Tso in the New Territories (1962)), the peculiar Chinese customary "association" known as "ui" in the report, i.e. "wui", was also mentioned in the Appendix:

" Land according to Chinese tenure is held as freehold by grant from the Crown and descends in the male line only. Daughters never inherit.

...

Deeds of absolute sale have been brought in from the New Territory for registration which were made in the reign of the Emperor Ka Tsing and of subsequent Emperors of the Ming Dynasty (A.D. 1519 to 1626) and which have been recognized by the present dynasty. Strictly, a grant issued by the present dynasty should be attached to all grants by the previous dynasty. The present owners under such grants are all the existing male descendants of the original grantee and in one case the proprietors now number over 700.

...

In most cases land is owned by clans or private families and individuals, and can be sold, mortgaged or settled upon specific trusts. In addition to these there are also the following varieties of tenure.

Ancestral land or "Sheung T'in," "Temple land", or "Miu T'in," Land held by Associations, or "Ui T'in." [i.e. "wui" land]

...

Land held by Associations

China is a land of associations which are as numerous and the objects of which are as varied as the needs of man. Their formation is simple and easy. Certain villagers, whatever their object may be, meet in a temple, ancestral hall or private house to deliberate over some scheme. If it is approved, a fund is raised to which the members contribute equally, their contributions being devoted to the purchase of a piece of land, landed property in China being considered the safest investment. The rent derived from this land may be used for the burial of a member of the association when he dies, or may be let out on interest, or may be used to assist members to emigrate to California and Australia, or for any other enterprise or good object that may be desired.

Land Sales

If any owner wishes to sell his land, he is supposed to offer such land in the first instance to his nearest relatives, and is not at liberty to sell to any one outside of his clan, unless the nearest relatives are unwilling to purchase ... In such transactions the deed of transfer is invariably worded as if it were a mortgage and no period for redemption is fixed, the vendor or mortgagor or his descendants thus having every opportunity to redeem the property at the original price even several generations after the transaction has been made. It is customary for the mortgagor to enter into possession so that a Chinese mortgage is often equivalent to a sale.

Landlord and Tenant

The relation between landlord and tenant is often a complicated one, chiefly owing to the system of perpetual lease. Under such leases the landlords have practically renounced all rights to the exercise of ownership and are contented to receiving rent, but the land is otherwise under the absolute control of the cultivators, who often sell their perpetual leases."

24. In the unchallenged expert report on the relevant Chinese law and custom prepared by Professor Wejen Chang whose expertise in the subject I accept, the nature of a wui or "hui" is further elaborated as follows:

"15. What is a Wui (or hui 會)? In traditional China people created hui for different reasons, thus there were hui of businessmen, craftsmen, religious groups, and so on. Generally the hui members wanted to pool their resources to form a greater, more powerful entity to further their causes more efficiently. For better management of land people used to form two types of hui, one by those who owned separate pieces of land, the other by those who contributed money to purchase the land. In the first case the land owners would form a hui, place their land in the hands of a manager and receive from him shares of profit proportionate to the size of their still separately identifiable pieces of land. The land would be registered under the name of the hui but each member remained the real owner of his separate piece.

16. In the second case the contributors would also form a hui, the land would also be registered under the name of the hui and placed in the hands of a manager, and the contributors would receive from him profits proportionate to their contributions. But a contributor would not gain ownership of any specific, identifiable part of the land. He got only a share of interest in the land proportionate to his contribution.

...

19. ... Unlike a clan member who had only a latent, unspecified and incidental interest in the clan land [such as tso land and tong land], each hui member had in the hui land a more clearly defined or definable interest and therefore a greater power in supervising its management. He could demand to know how the land was managed and insist in some form of participation in the disposition of a part of the land or a share of interest in it. When he believed a manager's action could harm his interest he could object and if he had the support of a majority of the members he could make the manager change course or even removed.

20. Although the manager of Wui land was more closely supervised by members he, like the manager of clan land, was usually left alone by the [Chinese] officials. None of the management action required official approval."

25. As regards the Wui in the present case, on the materials available to Professor Chang, he had this to say:

'23. Wui members have interests in the Wui land. But I cannot tell whether in the present case how clearly identifiable and "direct" the interests are. ... And I cannot tell whether the members of the Wui in question are "separate co-owners" or "joint co-owners" because it is not made clear to me how the Wui land came into existence. Was it formed from pieces separately owned by individuals who later created the Wui? Or was it purchased with money contributed by prospective Wui members? In the former case the Wui members are "separate co-owners," in the latter case they are "joint co-owners."

...

26. ... Wui members, whether "separate co-owners" or "joint co-owners" had considerable power in supervising Wui management. They could object to an action of the manager, but if it were not stopped beforehand, they (even being "separate co-owners") could not lawfully nullify or terminate it without paying compensation to the innocent third party. Nor could they (even being a majority), in disregard of the chosen (especially registered) manager, proceed to manage the Wui land themselves without his consent. In short, if the majority members disagreed with the manager, they could force him to change course or remove him from his post or make him compensate them but they must not violate the established procedure of management and harm others.'

26. I should add here that at trial the evidence adduced was no better in quality than that available to Professor Chang when he wrote his report, and it was equally unsatisfactory as to how the present Wui was formed many hundreds of years ago, so as to enable a finding to be made either way as to its mode of formation.

27. In line with the proclaimed policy of the then Hong Kong administration, laws were passed in early 1900s to govern the administration of the New Territories, and these laws were conveniently consolidated by the New Territories Ordinance in 1910 (Ord. No. 34 of 1910). The 1910 Ordinance contained, amongst others, provisions (i.e. sections 25 and 27) which were, for all practical purposes, equivalent to the present sections 13 and 15 of the Ordinance, relating to the Courts' (mandatory) recognition of Chinese customary law affecting unexempted land in the New Territories, and land held in the name of a "clan, family or t'ong" respectively. In fact, the former section 27 could be traced back to section 13 of the New Territories Regulation Ordinance 1905.

28. In this judgment, for the sake of convenience and ease of reading, all references to the two current sections should be understood, where the context requires, as references to the predecessors of the two sections applicable at the material time(s), unless otherwise stated. The present section 15 refers to the Secretary for Home Affairs whose predecessor in this regard was the Land Officer. Unless otherwise stated, the two are used interchangeably in this judgment for the sake of convenience. The present sections 13 and 15 of the Ordinance are in the following terms:

"13.(1) Subject to subsection (2) [which is irrelevant in the present case], in any proceedings in the Court of First Instance or the District Court in relation to land in the New Territories, the court shall have the power to recognize and enforce any Chinese custom or customary right affecting such land.

...

15. Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary for Home Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. Every instrument relating to land held by a clan, family or t'ong, which is executed or signed by the registered manager thereof in the presence of the Secretary for Home Affairs and is attested by him, shall be as effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t'ong. The Secretary for Home Affairs may on good cause shown cancel the appointment of any manager and select and register a new manager in his place. If the members of any clan, family or t'ong holding land do not within 3 months after the acquisition of the land make and prove the appointment of a manager, or within 3 months after any change of manager prove the appointment of a new manager, it shall be lawful for the Government to re-enter upon the land held by such clan, family or t'ong, which shall thereupon become forfeited. Such re-entry shall be effected by the registration of a memorial thereof in the appropriate New Territories Land Registry."

29. It is common ground, and I accept on the evidence including the expert evidence before me, that section 15 applies to a wui and thus the Wui in the present case. Indeed this has been and is the understanding of the District Land Offices since the first enactment of the provisions and a great number of wui managers have been registered pursuant to the provisions in the past century. This is also the case of the Plaintiff who was first registered as a manager of the Wui back in 1949.

Validity of the Purported Tenancy Agreement

30. All this brings me to the first main issue between the parties, which also comprises the subject matter of the Plaintiff's claim against the Defendant by his original action, namely, the validity of the Purported Tenancy Agreement.

31. The Purported Tenancy Agreement purported to deal with all the Wui land by way of letting. The landlord was described as the Wui owners. It was worded in such a way that it could be signed on behalf the landlord by either the manager of the Wui or the "joint representative(s) of the Wui owners". It was allegedly signed by a majority of the Wui members including the Defendant, apparently as such "joint representatives". The rent under the purported tenancy was said to be payable to the Wui manager or the representative sent by the Wui owners for rent collection purpose. It was dated and then stamped by the Defendant. The Plaintiff was then asked to sign it in order to "ratify or confirm" it or otherwise to "endorse" it, which he steadfastly refused to do.

32. Mr. Chan, counsel for the Defendant, told the Court during trial that it had never been his client's position that the Purported Tenancy Agreement was valid or binding on the Wui without the signature of the Plaintiff as manager of the Wui. This had been made clear from the very beginning in the pleading I referred to above, and furthermore this had been the position at the even earlier stage of solicitors correspondence between the parties and Jet Harbour when the correspondence was read as a whole.

33. In my judgment, the concession made by the Defendant is inevitable. According to the expert evidence available, there is no suggestion that under Chinese customary law, individual wui members, whether comprising a majority of the members or not, may by themselves only enter into any tenancy of the wui property without the participation of its manager. Whilst they may if they comprise a majority force the manager to change course or even remove him as manager, it does not follow that in the absence of the manager's consent and participation and whilst he is still in office, they can enter into any such tenancy by themselves alone.

34. As for section 15, the section concerns the power of a registered manager of a wui to "dispose of or in any way deal with the [wui] land as if he were the sole owner thereof, subject to the consent of the Secretary for the Home Affairs", and plainly does not confer any power on the (majority) members to so "dispose of or ... deal with the [wui] land".

35. For the sake of completeness, I should mention that there is some (obiter) suggestion in the first instance decision of Cheung J. (as he then was) in Lau Yue Kui (administrator of estate of Lau Wai Chau, deceased) v Estate of Lau Leung Chau, deceased [1998] 1 HKLRD 579, 596E to 597E that at least in relation to the dissolution of a Chinese customary ancestral worship trust, section 15 does not affect but rather recognizes by implication the unanimity rule that the trust land may be disposed of with the consent of all the beneficiaries even without the consent of the Secretary for Home Affairs or Land Officer. Amongst other reasons pointed out by Cheung J., the section actually refers to the validity of an instrument executed by the registered manager in the presence of the Secretary or Land Officer and attested by him as "effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t'ong", thus pre-supposing the validity of a document executed or signed by all the members of the tso, tong or wui in question. The decision was upheld on appeal, but neither the Court of Appeal nor the Court of Final Appeal found it necessary to comment on this aspect of the first instance judgment: [1999] 2 HKC 63 (sub nom. Re Estate of Lau Wai Chau); [2000] 1 HKLRD 924, 933F/G (sub nom. Re Lau Wai Chau).

36. For my part, I am quite prepared to accept both as a matter of the proper construction of section 15 and as a matter of Chinese customary law (albeit based on the limited expert evidence and case law before me) that all the members of a wui may in unanimity dispose of or otherwise deal with the wui land including the leasing of the land, without the consent of the Secretary. But this does not assist the Purported Tenancy Agreement at all for two simple reasons. First, it was not signed or consented to by all the members of the wui; only an alleged majority of the members signed it. Second, since in many cases, and the present case is one of them, the registered manager of the wui is also a member of the wui, if he does not consent to the intended disposal of or dealing with the wui land, the same cannot be done in unanimity. On the other hand, if he consents to the intended transaction, it will not be necessary to resort to this customary unanimity rule at all, for he alone can enter into the transaction pursuant to his power under section 15. Thus analysed, in such a case, this unanimity rule would only assume significance if it is the disagreement of the Secretary or Land Officer, rather than that of the registered manager, that the members are trying to overcome, a situation which the losing litigant in the Lau Wai Chau case unsuccessfully tried to argue that the Court was faced with, where there was no consent given by the Land Officer to the transaction under challenge.

37. In short, I conclude that the Purported Tenancy Agreement is null and void and of no effect as a purported tenancy agreement of the Wui land and does not bind the Wui or the Plaintiff, its registered manager.

What relief?

38. It only remains for me to decide whether I should grant any declaratory and/or injunctive relief in favour of the Plaintiff against the Defendant relating to the Purported Tenancy Agreement, which as I said comprises the only live subject matter of his claim by original action.

39. Mr. Chan on behalf of the Defendant, having conceded the point as mentioned above, argued that it was unnecessary to grant any such relief. As outlined above, he argued that on a fair reading of the pre-action correspondence, the Defendant never claimed that the Purported Tenancy Agreement was valid without the signature or endorsement of the Plaintiff. Alternatively, even assuming that in some earlier correspondence - by that Mr. Chan had in mind the two letters dated 23rd March 1998 and 24th March 1998 exchanged between the respective solicitors acting for Jet Harbour and the Defendant, the Defendant had claimed that his authority to deal with the Wui land in question "derived from the [Purported Tenancy Agreement] which was signed by a majority members of [the Wui]", the subsequent correspondence between the solicitors, on a fair reading, made it clear that the Defendant no longer asserted the validity of the Purported Tenancy Agreement without the signature of the manager. Rather the Defendant only insisted that the registered manager had a duty to follow the majority view or at least to hold a members' meeting to discuss the matter in accordance with his fiduciary duty owed to the Wui members. Therefore, Jet Harbour's refusal to enter into a tenancy with the Wui through the Plaintiff pending resolution of the dispute between the Plaintiff and Defendant was not caused by the Purported Tenancy Agreement but rather the (alleged) breach of fiduciary duty on the part of the Plaintiff, a matter that is not before me. In further alternative, Mr. Chan argued that the Defendant made his position very clear from the very beginning in his pleading after action was commenced by the Plaintiff seeking declaratory and injunctive relief relating to the validity of the Purported Tenancy Agreement. There was therefore no basis for the grant of any declaratory or injunctive relief, or put another way, such relief would not serve any useful purpose.

40. I disagree. In my judgment, the Defendant did claim that the Purported Tenancy Agreement was valid. First, the Purported Tenancy Agreement was worded and signed in such a way (as described above) that the majority owners were regarded as a valid alternative to the registered manager of the Wui in representing the Wui as landlord under the document.

41. Second, it was stamped by the Defendant as a legal instrument attracting stamp duty on tenancy agreement under the stamp duty legislation.

42. Third, the first letter dated 20th March 1998 written to the solicitors of Jet Harbour inviting the latter to consider taking up a sub-tenancy could, put at the lowest, be reasonably interpreted and understood by an outsider as an invitation to enter into a sub-tenancy relationship between the Defendant as head-tenant and Jet Harbour as sub-tenant of the relevant Wui land, thereby representing by implication that the Purported Tenancy Agreement created a valid and subsisting tenancy of the Wui land in favour of the Defendant and his two fellow "co-tenants". Although the correspondence between the Plaintiff's solicitors and that of the Defendant's was enclosed, in my judgment, that was not sufficient to remove the confusion or doubt thus created regarding the Plaintiff's power as manager to enter into a tenancy of the relevant Wui land with Jet Harbour direct. In the present context, in my judgment, what is more important is the confusion or doubt thus reasonably created, instead of whether on the true construction and detailed examination of the relevant correspondence, a court of law would eventually decide that the Defendant did or did not claim in the correspondence that the Purported Tenancy Agreement was valid without the signature or endorsement of the Plaintiff.

43. That Jet Harbour's solicitors were as a matter of fact confused cannot be denied. As mentioned, they wrote on 23rd March 1998 to enquire about the Defendant's authority to deal with the land in question, and the short and unqualified reply they got on the following day was that the Defendant's authority to do so was derived from the Purported Tenancy Agreement!

44. I do not agree that the subsequent correspondence from the Defendant's solicitors had the effect of satisfactorily removing the confusion or doubt (putting it mildly) thus created. The Defendant's subsequent acceptance in correspondence that the Plaintiff had the "capacity/power" to sign tenancy agreement did not necessarily mean or satisfactorily remove the doubt that the majority members did not also have the power or capacity to enter into a tenancy agreement as they purportedly did under the Purported Tenancy Agreement. Further, the making of an added allegation of a breach of fiduciary duty on the part of the Plaintiff as registered manager in failing to heed the view of the majority or to convene a members' meeting relating to the same simply complicated the matter; it did not necessarily mean that the previous allegation of a valid Purported Tenancy Agreement was no longer operative as a material (although not necessarily the sole) consideration in the mind of Jet Harbour and its solicitors, when they eventually decided to only enter into an interim arrangement short of a direct tenancy with the Plaintiff regarding Jet Harbour's continued occupation of the relevant Wui land, pending the resolution of the dispute between the parties arising from the Purported Tenancy Agreement. On the evidence, I find that it so remained an operative consideration. And in any event, that regardless, I also find that read objectively, the correspondence as a whole reasonably created the confusion or doubt relating to the Plaintiff's ability to let the Wui land and the Defendant's status vis-à-vis the same under the Purported Tenancy Agreement, and the letters from the Defendant's solicitors did not satisfactorily (again speaking objectively) remove the doubt and confusion so created.

45. As regards the pleadings of the Defendant, the short answer to the argument of Mr. Chan is that Jet Harbour is not a party to these proceedings and there is no evidence whatsoever before me that what has been pleaded by the Defendant in the pleadings (which in any event may be amended with leave at any time prior to judgment or even thereafter in the event of an appeal) has been brought to the attention of Jet Harbour at all. Although there was no direct evidence adduced before me at trial, I have no hesitation in inferring from all the circumstances of this case that similar doubts and confusion must have been created in the minds of many members of the Wui, which may only be satisfactorily removed by a definitive declaration from the Court in the matter for the benefit of all concerned.

46. In any event, in my judgment, such concession made in pleading came too late in the sense that it would not by itself automatically bar the opposite party from obtaining the appropriate declaratory and/or injunctive relief. Whilst of course there is no such thing as a declaration "by consent" or "by default" without any examination of the merits by the Court, there is at least nothing in principle to prevent a party from obtaining a declaratory judgment against a conceding opponent by reason of admission on pleading subject to the Court's satisfaction of the merits of his claim.

47. In my judgment, by reason of my above finding, the Defendant's pleaded allegation that he has never taken the position that the Purported Tenancy Agreement is valid without the signature or endorsement of the Plaintiff is factually incorrect, and in so far as it comprises a concession or admission that the Purported Tenancy agreement is indeed invalid, this is just part of the overall circumstances that the Court must take into account in deciding whether it should exercise its discretion to grant any declaratory and/or injunctive relief against the Defendant, and if so the form thereof.

48. Having considered all the relevant circumstances of this case, I am satisfied that declaratory relief in relation to the validity of the Purported Tenancy Agreement should be granted and there is a useful purpose served in my doing so. See generally Hong Kong Civil Procedure 2002 Vol. 1, para. 15/16/1 et seq. for the relevant general principles.

49. In the exercise of my discretion, I make a declaration in favour of the Plaintiff against the Defendant that:

(a) the Purported Tenancy Agreement is and was at all times since its inception null and void and of no effect whatsoever as a purported letting of or agreement to let, or as a purported grant or agreement to grant any option to purchase or further let, the Wui land (or any part thereof), to the Defendant, Man Mei San and Man Chui Tai (i.e. his two "co-tenants"), whether collectively or individually;

(b) the Purported Tenancy Agreement is and was at no time binding on the Wui, its members or the Plaintiff as the registered manager thereof; and

(c) the Defendant, Man Mei San and Man Chui Tai, whether collectively or individually, is/are and was/were at no time a tenant or tenants of the Wui land or any part thereof by virtue of the Purported Tenancy Agreement.

50. The above declaration should be sufficient and adequate in removing all doubts and confusion arising from the Purported Tenancy Agreement. The absence of the two "co-tenants" as parties from the present action does not affect my making of the above declaration. These two gentlemen, on the evidence, have never, after the coming into being of the Purported Tenancy Agreement, taken any active or open step to assert the validity of the Purported Tenancy Agreement. That was said to be the reason why they were not joined as parties by the Plaintiff. Without commenting on the correctness or wisdom of this course, I would simply say that this is insufficient to prevent my making the above declaration between the parties actually before me, and no contrary argument has been advanced before me at trial. Given the lack of any assertion by the two "co-tenants" regarding the validity of the Purported Tenancy Agreement, the above declaration should not have the effect of unduly affecting their interest.

51. I am not minded to grant any injunctive relief against the Defendant in the light of the circumstances of this case, particularly his stance after the commencement of the present action. I am not satisfied by the evidence before me that after the filing of the Defence and Counterclaim in July 1998, the Defendant claimed to the 2nd Defendants that he was their "landlord, in the sense that he was their head-tenant (pursuant to the Purported Tenancy Agreement), thus representing by implication that the Purported Tenancy Agreement was valid notwithstanding his pleaded stance. I find that when he used the word "landlord", the Defendant was merely asserting his claim as a member/owner of the Wui having a beneficial interest in the Wui land and representing the majority view of its members, and in that sense he was the "landlord" of the 2nd Defendants. In other words, he was substituting himself for the Wui as the 2nd Defendants' landlord, rather than claiming that he was the head-tenant of the 2nd Defendants pursuant to a valid Purported Tenancy Agreement. In any event, a valid Purported Tenancy Agreement would only make him a new tenant of the fish pond land, but not the "landlord" of the 2nd Defendants, the former tenants of the fish pond land.

52. In short, in my judgment, there is no or insufficient evidence for suggesting that the Defendant threatens to continue asserting the validity of the Purported Tenancy Agreement whether by words or conduct, particularly in the light of the declaration I granted above, and thus there is no or no sufficient basis for the grant of any injunctive relief against the Defendant, on top of the declaration. In the circumstances, I decline to do so in the exercise of my discretion in the matter.

53. This essentially disposes of the Plaintiff's claim by original action, the Plaintiff having through counsel abandoned his claim for damages which is therefore dismissed; and I now turn to the Defendant's counterclaim.

Section 15 consent

54. The counterclaim of the Defendant revolves around the question of whether a registered manager of a wui like the Plaintiff can grant a tenancy of the wui land without obtaining the consent of the Secretary for Home Affairs pursuant to section 15.

55. The Defendant argues that consent is mandatory, and therefore seeks declaratory and/or injunctive relief against the Plaintiff relating to his letting or intended letting of the Wui land without obtaining the consent of the Secretary, and declaratory relief against the Plaintiff and the 2nd Defendants relating to any current purported tenancy in relation to the fish pond land by the Plaintiff in favour of the 2nd Defendants without obtaining the consent of the Secretary.

56. The Plaintiff accepts that he has let the Wui land to others including the 2nd Defendants and Mr. Leung under the 1996 fish pond tenancy in the past without obtaining the consent from the Secretary or formerly the Land Officer. His case is that this has been so throughout the history of the Wui ever since the establishment of the (former) British administration in the New Territories. He and his predecessors as managers of the Wui have never found it necessary to apply for such consent in relation to the letting of the Wui premises, and have never done so. The administration is and was fully of this practice of theirs and has never suggested that it is wrong. Further his case as advanced through counsel is that on a proper construction of section 15 of the Ordinance, no such consent is required for a letting of the Wui land not amounting to a "permanent or perpetual alienation" of the Wui's interest in the land in question.

57. It is perhaps convenient to repeat that part of the section which is more relevant to the present issue here:

" Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. ... [T]he said manager ... shall ... have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. Every instrument relating to land held by a clan, family or t'ong, which is executed or signed by the registered manager thereof in the presence of the Secretary for Home Affairs and is attested by him, shall be as effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t'ong. The Secretary for Home Affairs may on good cause shown cancel the appointment of any manager and select and register a new manager in his place ..."

58. Mr. Chong, on behalf of the Plaintiff (as well as the 2nd Defendants whom he also represented in the counterclaim), argued essentially that the mischief which section 15 sought to address was the possible abuse by the manager of a tso, tong or wui to either sell, or create a Chinese customary mortgage or perpetual lease (both specifically mentioned in the Lockhart Report referred to above) of its land, against the interest of the beneficiaries (including those unborn ones) of the tso or tong, or the members of the wui. All such transactions would have the effect of permanently alienating or depriving the tso, tong or wui (and thus the beneficiaries or members thereof) of its interest in the land, and would result in irreparable injury to the interest of the beneficiaries or members. As a result, section 15 was enacted to redress the problem by imposing the consent of the Land Officer as a prerequisite to such transactions. But any dealing with the land short of effecting such permanent or perpetual alienation of the tso, tong or wui's interest in the land was not a subject requiring legislative intervention and did not fall within the ambit of section 15, or more particularly, attract the consent requirement.

59. Mr. Chong further argued that had all "dealings" with land in the literal sense required the consent of the Land Officer, there would not be any need for the role of a registered manager at all. Further, if "dispose of or in any way deal with" were to be construed literally, it would catch all sorts of activities, no matter how trivial or temporary, on or relating to the land, such as the registered manager allowing a homeless person to stay overnight in the farm hut on the land, or more realistically, a short-term lease of the land for a year (see E.S. Haydon, Chinese Customary Law in Hong Kong's New Territories (1962) 21 and footnote 109); and this would lead to absurdity or at least unnecessary bureaucratic control over the management of tso, tong and wui land.

60. Therefore Mr. Chong also prayed in aid the ejusdem generis rule of statutory construction and argued that in the phrase "dispose of or in any way deal with" in section 15, "in any way deal with" should be construed narrowly and by reference to the preceding "dispose of", and be restricted in meaning to a transaction having the effect of permanently or perpetually alienating the tso, tong or wui's interest in the land in question, like a Chinese customary mortgage or a perpetual lease.

61. Mr. Chong further argued, by reference to the former Full Court decision in Lai Chi Kok Amusement Park Co. Ltd. (No. 2) v Tsang Tin-sun [1966] HKLR 124, that the intention of section 15 was to facilitate but not to prevent transactions by the registered manager, in general support of his contended construction of the section.

62. I do not agree. It is true that the Lockhart Report made some specific references to Chinese customary mortgages as a way of selling land as well as perpetual leases and the problems that they could create. That was done in the context of a memorandum on land under Chinese law and usage, forming an appendix to a first-year report made by the then Colonial Secretary to the then Governor, which was laid before the Legislative Council "for [the] information" of its members. The report or more specifically the memorandum did not single out the two as creating or giving rise to potential abuse by managers of tsos, tongs or wuis. They were mentioned because of their peculiarity in contrast with English land law. The report was not prepared for the purpose of enacting section 15 and did not recommend the enactment of any such provisions. It must not be confused with a governmental report leading to the enactment of specific legislation or the relevant legislative papers and documents concerning a particular piece of legislation. As to the latter, I have nothing placed before me relating to the enactment of section 15 (assuming for a moment that it should be right for me to look at them for the purpose of construing section 15).

63. Taking a broader view of the matter, and simply treating the report as a sort of background material relating to New Territories land ownership and usage at the turn of the last century, I am unable to discern any "mischief" in relation to land "owned" by tso, tong or wui, in the hands of managers, which would suggest, let alone satisfy the Court, that section 15 was enacted to deal with, and only deal with, the supposed mischief caused by Chinese customary mortgages and perpetual leases. And apart from this report, I am unable to find in any of the materials put before me, including Haydon, suggesting that there was this supposed mischief that section 15 was designed to deal with.

64. In this regard, I am not totally unassisted by past wisdom of the Courts. In Lai Chi Kok Amusement Park, a case relied on by Mr. Chong, the Full Court was concerned with whether an instrument executed by a registered manager not in the presence of the Land Officer and not attested by him as provided by section 15 (then section 19), dealing with land registered in the name of a tso, was nonetheless valid. The Full Court held that the instrument was valid because the specific mode of execution of documents laid down in section 15 was only permissive but not mandatory. Briggs J. (as he then was) in giving the leading judgment of the Full Court had this to say about the object of the section and the mischief it envisaged (at pp. 130 to 131):

"... [T]he position of the Land Officer carries with it a deep significance in the eyes of the people of the New Territories: he is not only a Government official but he is regarded by them as the paterfamilias of every clan, family or t'ong. It may therefore be said that his consent to the transaction is to be given in that capacity as paterfamilias as much as it is given in his capacity as a Government official. The mischief envisaged by the section is this: land held by a t'ong could in the usual way be conveyed only if the conveyance were executed by all the members of the t'ong. That would as time went on become increasingly difficult, if not practically impossible. The object of the Ordinance of 1905 was to facilitate transactions relating to land. It may well be in the interest of the t'ong that the land should be leased or sold and a convenient means of effecting the conveyance was sought. This was found in the appointment of managers, but at the same time it was necessary to protect members of the t'ong against malpractice on the part of managers. For this the personal supervision of any transaction entered into by the manager was desirable. Such personal supervision would be ensured if every instrument relating to the land had to be executed and signed by the manager in the presence of the Land Officer. At the same time the attestation by the Land Officer would be conclusive proof of his having consented." (emphasis added)

65. This passage was substantially quoted with agreement by Litton J.A. (as he then was) in the Court of Appeal decision Light Ocean Investments Ltd. v Enway Development Ltd. [1994] 3 HKC 31, 40C-H.

66. It is plain that the "mischief" identified by the Full Court was very different from the supposed mischief suggested by Mr. Chong. The mischief identified was two-fold and related to the difficulties of tsos, tongs and wuis to enter into land transactions on the one hand, and the potential "malpractice" by a registered manager regarding his statutory power, not only to sell, but also to "lease", land registered in the name of a tso, tong or wui on the other. By way of redress, the section aimed to give the registered manager a statutory power to enter into "transactions relating to land" for the tso, tong or wui "as if he were sole owner thereof", and at the same time impose a fetter on his otherwise unlimited power by requiring the consent of the Land Officer. It was in the spirit of such facilitation of transactions by the registered manager, yet always subject to the consent of the Land Officer, that the Full Court came to the conclusion that the registered manager need not follow the specific mode of execution of instrument effecting land transaction laid down in the section for the instrument to be valid and effective, for the merits of the transaction were safeguarded by the requirement of consent by the Land Officer regardless of the mode of execution.

67. In short, the mischief identified by the Full Court had really nothing to do with the supposed mischief relating to Chinese customary mortgage or perpetual lease suggested by Mr. Chong in support of his contended construction of section 15.

68. In the course of his detailed opening, Mr. Chong faintly suggested that this part of Briggs J.'s judgment relating to the mischief envisaged by section 15 was wrong in that the learned judge wrongly thought that a manager under Chinese customary law did not have the power to sell or lease and therefore had to depend on the conferment of such power (subject to the consent requirement) in section 15 to do so. In other words, it was wrong for the learned judge to say that a sale could not be done by the manager in his own name without joining in all beneficiaries or members concerned as signatories, and this was particularly so in the case of leases. And this mistake coloured the learned judge's approach in identifying the mischief envisaged by the section.

69. Regardless of whether what Briggs J. said in Lai Chi Kok Amusement Park, a decision of the former Full Court prior to the establishment of the Court of Appeal, and the endorsement thereof by Litton J.A. in Light Ocean Investments, a decision of the Court of Appeal, were obiter or strictly binding on me, and regardless of whether Mr. Chong was correct in suggesting that under Chinese customary law a manager could in his own name sell or lease land of his tso, tong or wui, on which there was insufficient expert evidence placed before me at trial, the short answer to Mr. Chong's argument is this. The whole discussion on whether a manager had the power to sell or lease under Chinese customary law as part of the mischief identified is irrelevant to the question of whether there is a risk of malpractice by registered manager of his power of sale or lease whether under section 15 or under customary law (if any). In my judgment, the risk is obvious, and thus the requirement of consent.

70. Put another way, even assuming that such a power of sale and lease already lied in the hands of a manager under Chinese customary law, it does not follow that the power, once put on a statutory footing, was not open to abuse and could not constitute a mischief attracting the enactment of the consent requirement in section 15; and by making the registration of a manager mandatory for any tso, tong or wui holding land from the Crown and by imposing the consent requirement in relation to the registered manager's power to enter into land transactions, the section adequately addressed the mischief.

71. But perhaps unknowingly, Mr. Chong, in raising his argument relating to what a manager could or could not do under Chinese customary law in relation to land of the tso, tong or wui, touched upon a much more fundamental question in the present context, namely, whether the old Chinese customary law relating to a manager's power to deal with land survived the creation of a statutory registered manager by section 15. If under Chinese customary law, a manager had the power to sell, dispose of or deal with land in his own name, and if that power survived the enactment of section 15 and the manager's registration thereunder, then Mr. Chong would after all have been correct in contending, although for a reason very different from that advanced by him, that a registered manager could grant a lease of the tso, tong or wui land without the consent of the Secretary. This would be because apart from his newly found statutory power following registration under section 15, he could still resort to his customary power to deal with land without obtaining the consent of the Secretary, subject to whatever restriction, if any, that might exist under Chinese customary law relating to the exercise of his power. On the other hand, if his Chinese customary power did not survive the enactment of section 15 and his registration thereunder, then whatever power he might have had under Chinese customary law to deal with land would simply be of historical interest only, and he could not deal with land without the consent of the Secretary.

72. In my judgment, viewed as a whole, the relevant legislation including section 15 aimed at providing a new statutory scheme regulating the management of land held from the Crown by managers registered under the new provisions and subjecting the same to the general control of the Land Officer, in replacement of the managers' power (regardless of its actual extent) under Chinese customary law.

73. After the enactment of the provisions, registration of a manager is a must, and once registered, the provisions in section 15 apply to govern his management of the land, including his representation of the tso, tong or wui, his "full power" to dispose of or deal with the land as if he were the sole owner thereof subject not even to the majority view of the beneficiaries or members but only to the consent of the Land Officer, and his personal liability to pay "all rents and charges" to the Government and observe all covenants and conditions in respect of the land.

74. The section goes on to provide a specific mode of execution of instruments affecting land, which if followed would constitute "conclusive proof" of the Land Officer's consent to the transaction involved (as per the actual decision in Lai Chi Kok Amusement Park). The section also provides for a registered manager's removal and replacement by the Land Officer on good cause being shown. Although the Land Officer has no power under section 15 to appoint a manager of his own motion unless the tso or tong has appointed him first (Li Tang-shi v Li Wai-kwong [1969] HKLR 367), the sanction for not appointing a manager is the re-entry of the land by the Government as provided in section 15, whereas the (added) incentive for doing so is the exemption from registration of the tso, tong or wui under the Companies Ordinance (Cap. 32), notwithstanding that it may consist of more than 20 members: Section 16 of the Ordinance, i.e. section 28 under the 1910 consolidation Ordinance. Moreover, the Land Officer was given the power to decide questions relating to land summarily in accordance with Chinese customary law up to an extremely high limit: Section 20 of the 1910 Ordinance, since repealed.

75. As Lord Browne-Wilkinson said in a related and not dissimilar context, "[t]o allow the old customary land law to cut across and to trump the new [statutory] system would be to defeat its whole purpose": Wu Koon Tai v Wu Yau Loi [1996] 2 HKLR 477, 482J (a case concerning registration of title of land in the New Territories under section 17 of the Ordinance). In my judgment, there is no scope for suggesting that a registered manager may nowadays still have or may still exercise any residuary Chinese customary power (if any) to sell or lease land without the consent of the Secretary.

76. The above conclusion of mine stands well with the actual decision in Lai Chi Kok Amusement Park relating to the specific mode of execution provided in section 15. On a proper reading of the case, the Court's sanction of the registered manager's execution of an instrument not in accordance with the specific mode provided stemmed from the registered manager's "full power to dispose of or in any way deal" with land "as if he were sole owner thereof" (as per section 15), subject only to the consent requirement. As "sole owner", the registered manager could of course execute instruments in whatever way recognized by general law, and need not follow the specific mode of execution laid down in the section. But if he chose not to follow the specific mode of execution, he would have to separately establish the consent of the Land Officer to the transaction embodied in the instrument in question. Thus analysed, this decision on the mode of execution of instruments in no way suggests that apart from the powers conferred on him under section 15, a registered manager has or still retains another source of power under Chinese customary law.

77. Likewise, my above conclusion sits well with Cheung J.'s (obiter) observations in the Lau Wai Chau case discussed above where the learned judge opined that section 15 did not take away the Chinese customary right of the beneficiaries of an ancestral trust to dissolve by a unanimous decision the trust and dispose of the trust land, even in the absence of consent from the Land Officer. The observations suggested that the Chinese customary right under this unanimity rule of the beneficiaries to deal with trust land (at least in the case of dissolution) survived the enactment of section 15 which concerned the rights and obligations of registered managers (and, to be fair, indirectly the corresponding rights and obligations, if any, of the beneficiaries). The case is no authority for suggesting that the customary rights and powers of managers survived their registration as statutory managers under section 15 of the Ordinance.

78. The above discussion on whether a registered manager retains any residuary power under customary law is directly relevant not only to his source of power but also to the proper construction of the section governing his scope of power thereunder. If my above view is correct, and in my judgment it is, section 15 must be construed generously in favour of the registered manager in terms of his power in relation to the tso, tong or wui land. For section 15 is (or has become) his only source of power. In particular, quite contrary to Mr. Chong's contended construction, "dispose of or in any way deal with" must be given a large and liberal construction so as to enable the registered manager to enter into land transaction of all sorts, all subject to the consent requirement. This accords well with the preceding words "shall ... have full power" and the following words "as if he were sole owner thereof".

79. Viewed in that light, "dispose of or in any way deal with" must include a sale, a mortgage and a lease or tenancy agreement of whatever duration, and most likely (although I need not express any definite view on it on the facts of this case) a licence coupled with an interest or a contractual licence (subject to the de minimus rule). What is not covered by "dispose of or in any way deal with" the registered manager may also do as "representative" of the tso, tong or wui pursuant to the opening sentence in section 15. The only difference is that, in the former case, the consent of the Secretary is required, and in the latter case, it is not.

80. In any event, I see no justification for limiting the protection afforded by the consent requirement to a sale or permanent or perpetual alienation of the tso, tong or wui land, in exclusion of a lease. A long lease at a disadvantageous rent or on unusual terms could be as injurious to the interest of the beneficiaries or members as a sale at an undervalue, or for that matter, a Chinese customary mortgage or perpetual lease on unfavourable terms, depending on the facts. And it is difficult if not impossible to demarcate what is and what is not a "permanent" or "perpetual" alienation of interest in land.

81. Thus, for instance, is a long lease for a term equivalent to the remaining term under the Government lease of the tso, tong or wui land, less three days, a "permanent" or "perpetual" alienation, and how does it differ in terms of potential injury to the beneficiaries or members from a Chinese perpetual lease? Or is a 2-year lease always safe from the consent requirement? If yes, what about a 2-year lease granted 2 years and 3 days before the expiry of the term under the Government lease? What about a contractual licence for a long duration that may be enforced by specific performance? And is an English- or Hong Kong-style mortgage with a power of sale and power of foreclosure in case of default but otherwise always subject to the equity of redemption a "permanent" or "perpetual" alienation?

82. Nor need I dwell on these more borderline examples to test the soundness of the contended construction. In my judgment, land being a (if not the most) precious form of asset in a society like Hong Kong and of particular importance in the case of a tso, tong or wui in the New Territories, any ordinary transactions relating to it are of sufficient importance to merit the protection, where necessary, by the Secretary. Of course, in most cases, the grant of consent would only be a matter of formality, the good sense of the Secretary and his staff in these matters being something that can be safely assumed, yet the important point here is that such a power of control is available for his use in the hopefully rare cases that call for its exercise.

83. Finally, as a matter of language usage, I see no good reason to cut down the meaning of "in any way deal with". To be sure, there are many cases in the books concerning the construction of the same or similar words used under different legislations and background circumstances, resulting in both literal construction as well as narrow and restrictive construction. Apart from illustrating the obvious point that every piece of legislation has to be carefully construed according to circumstances peculiar to it and that English words, even ordinary and common ones, may carry different meanings when used in different contexts, I do not derive any particular assistance from any of the authorities cited to me, and I do not propose to lengthen this judgment unnecessarily by making any further reference to them.

84. In short, I have come to the conclusion that a registered manager under section 15 may only grant a lease or enter into a tenancy agreement of whatever duration of the tso, tong or wui land subject to obtaining the consent by the Secretary for Home Affairs.

85. As to the status of a "tenancy" granted by a registered manager, the consent to which has not been obtained, I have not heard full argument on the point. I would simply say this. According to authority (Tang Kai-chung, supra, at p. 299) and the expert evidence on the relevant government practice, retrospective consent is available. Pending the obtaining of the consent, the "tenancy" is at best a conditional agreement between the parties: C.f. Light Ocean Investments, supra, at p. 39A - B. I do not wish to use the term "void" or "voidable" to describe the status of the "tenancy" in the meantime. For in my judgment, if subsequently consent is obtained, it will become and should be regarded as a fully valid tenancy from the beginning. If consent is refused, it will be treated as invalid from the beginning, with whatever legal consequences that may follow as between the registered manager and the "tenant". But in the meantime and after the lapse of a reasonable time for the registered manager to obtain the consent, the "tenancy" is open to challenge by the tenant and the beneficiaries or members of the tso, tong or wui. I have deliberately left out the registered manager as I do not think he should be allowed to challenge the validity of the "tenancy", he being the person who has granted the "tenancy" in the first place and the person who should obtain the consent to the "tenancy" from the Secretary.

Abandonment or general implied consent by the Secretary

86. I now turn to deal with a number of side points raised. Mr. Chong argued on behalf of his clients that by the inaction of the Land Officer and Secretary throughout the years regarding the widespread failure of managers to apply for and obtain consent to the letting of tso, tong and wui land in the San Tin area (if not the rest of the New Territories - a matter on which there is little evidence anyway), the Land Officer and Secretary must be taken to have abandoned the requirement for consent, or alternatively they must be taken to have consented to this sort of lettings generally as a matter of implication - an argument that was not specifically pleaded but argued at trial by Mr. Chong without much opposition from the Defendant. (A related argument of estoppel was pleaded but no longer pursued in final submission.)

87. I reject Mr. Chong's argument. On a factual level, there was simply insufficient evidence adduced at trial to prove abandonment or implied consent. There were documents in the trial bundles evidencing the application for and the grant of consents in some cases, although not relating to the Wui. In the standard forms for application for and grant of consent used by Land Officers pursuant to their manuals under various editions throughout the years, the leasing of land was (subject to individual exceptions) included as an appropriate type of transaction for application for and grant of consent. The expert evidence adduced relating to the relevant Government practice and understanding of the position suggested that Land Officers considered that section 15 covered leases (which is of course as irrelevant to the proper construction of section 15 as the Plaintiff's understanding that he is not required by law to obtain consent) and it was only because of lack of manpower that in many cases no active steps were taken to enforce the requirement; applications for consent to letting were invariably entertained in accordance with the same procedure for consent to sale, and registration of leases in respect of which no consent had been obtained was invariably withheld. In short, I am not satisfied even on the factual level that the Plaintiff and the 2nd Defendants, on whom the (evidential if not legal) burden of proof relating to this issue lies, have made out a case of abandonment or implied consent (or for that matter, estoppel).

88. In any event, if necessary, I would hold that it is, as a matter of law, not open to the Land Officer or Secretary to "abandon" or "impliedly waive" their statutory duty under section 15. Mr. Chong's analogy of the abandonment of a covenant by the Crown/Government in its capacity as landlord under a Crown/Government lease on the facts of Attorney General v Fairfax Ltd. [1997] 1 HKLRD 243 (PC) is clearly inapt. Whilst in a sense the Land Officer or Secretary plays the role of a paterfamilias, a private role like that of a landlord under a lease, he also plays the role of a Government official in the statutory scheme for consent under section 15: See the passage from Briggs J.'s judgment in Lai Chi Kok Amusement Park extracted above. In his latter role, in my judgment, there is no room for abandonment or waiver. Proper analogy may be drawn with the statutory role played by the Building Authority under the Buildings Ordinance (Cap. 123) and that played by the Incorporated Owners under the Building Management Ordinance (Cap. 344): See, for instance, Re an application by Ho King Kwan for judicial review [1986] HKLR 931; Wong On v Lam Shi Enterprises Ltd. HCMP2549/1995 Le Pichon J. (20/12/95); The Incorporated Owners of Hoi Luen Industrial Centre v Ohashi Chemical Industries (Hong Kong) Limited [1995] 2 HKC 11; and Link Harvest Ltd. v Wayhang Development Ltd. [2001] 2 HKC 652.

89. In short, I reject this argument.

Abuse of process

90. Mr. Chong argued that regardless of the true construction of section 15 and the correctness of his argument based on abandonment and implied consent, the Defendant's counterclaim should not be entertained because it was an abuse of the process of the Court and taken out "with an ulterior motive". This is a serious allegation, and I think it only right and fair to restrict strictly Mr. Chong to his pleaded case in this regard, particularly in the absence of any application to amend.

91. Paragraph 35 of the Amended Reply and Defence to Counterclaim pleaded and supplied three sets of particulars in support of the claim as follows:

"(a) ... the Defendant has been attempting to usurp the power and function of the Plaintiff with a view to extorting a financial benefit for himself at the expense of the Wui and all its members.

(b) In pursuit of his said attempt, the Defendant tried to exert pressure upon the Plaintiff by commencing his Counterclaim.

(c) Despite the availability to him of the statutory remedies under s.15 of the New Territories Ordinance, the Defendant refrained from applying to the District Officer to show good cause to him for the removal of the Plaintiff for the Defendant's alleged grievance set out in the Counterclaim ... which otherwise would provide an effective remedy to address the alleged wrong done to the Defendant."

92. As to (a), I find that there is simply insufficient evidence to support the allegation that the Defendant did what he did, i.e. forming and participating in the Working Group of the Wui owners, issuing the purported notice to quit to the fish pond tenants, making the Purported Tenancy Agreement, intermeddling in the intended tenancy between the Wui and Jet Harbour and inviting the latter to enter into a sub-tenancy with him instead, making demands on the Plaintiff to ratify or endorse the Purported Tenancy Agreement in accordance with the alleged majority wish or to hold a members' meeting to discuss the matter, raising the consent requirement argument when he had previously acted as witness to some Wui tenancy agreements entered into without the consent of the Secretary and received his due share of rental incomes from these and other similar lettings, and commencing the counterclaim, by way of "attempts" to usurp the power and function of the Plaintiff" and "with a view to extorting a financial benefit for himself at the expense of the Wui and all its members".

93. In my judgment, on the evidence, the Defendant may have been misguided in some of the things that he did, and he may have been over-aggressive in seeking to persuade the Plaintiff as manager to let the Wui land to himself and his co-tenants for the general development of the Wui land (subject to a substantial capital investment which the Plaintiff was not prepared to make) into container storage ground for a much larger rental return in the long run; yet it is against such background that the issue of the notice to quit and the making of the Purported Tenancy Agreement should be considered. The forming of the informal Working Group was by itself unobjectionable. There is insufficient evidence to say that his intended development of the Wui land did not have the majority support of the Wui members or was not for the general and long-term benefit of the Wui as a whole but rather for his personal "financial benefit" only. His demands on the Plaintiff to respect the (alleged) majority view or to call a members' meeting to discuss the matter were most understandable if not legitimate. The options to renew the purported tenancy and to purchase contained in the Purported Tenancy Agreement should be understood in the context of the Purported Tenancy Agreement having been signed (allegedly) by a majority of the members of the Wui, as well as the Defendant's request to the Plaintiff to ratify and confirm the terms thereof, thus impliedly inviting the Plaintiff to object to any terms found to be objectionable.

94. As regards (b), I do not think the Defendant has exerted undue pressure on the Plaintiff by commencing the counterclaim, particularly when his contention of the consent requirement which comprises the main subject matter of his counterclaim for relief has since been shown to be correct, a matter which he as a member of the Wui and an intending tenant of the Wui land (as evidenced by the Purported Tenancy Agreement) must have been justifiably concerned with, given the past leasing practice of the Plaintiff as manager.

95. As for (c), the availability of a procedure to remove the Plaintiff as manager is quite irrelevant to the resolution of the issue raised by the counterclaim, namely, the proper construction of section 15 relating to the consent requirement. Removal of the Plaintiff as manager will not resolve the issue of construction. Further, even if relevant, this cannot by itself constitute an absolute bar to bringing the issue to the Court for relief, and can at most be a relevant consideration to be taken into account by the Court in considering whether any discretionary declaratory and/or injunctive relief should be granted. Moreover, the alleged conduct and wrongdoings of the Plaintiff may well not justify his removal as manager - after all the proper construction of section 15 is not an easy task; and what else can the Defendant have done but brought this counterclaim to resolve the construction issue.

96. In short, there is really nothing in the abuse of process argument, and I reject it.

Position of the 2nd Defendants and locus standi of the Defendant to sue

97. The 2nd Defendants have been joined by the Defendant in the counterclaim although no relief is sought against the now-expired 2-year fish pond tenancy made in 1996. The Defendant argued through counsel that under the arrangement between the Plaintiff as manager and the 2nd Defendants whereby the latter were allowed to remain in occupation and use the fish pond land in return for payment of "compensation money" or "land rent" ("田租") as described in an account prepared by the Plaintiff in 1998, there was a tenancy relationship that was as a matter of fact and law sought to be created after the expiry of the 2-year term and that required the consent of the Secretary. As no consent had been obtained, the tenancy was invalid and therefore declaratory relief was sought against the Plaintiff as well as the 2nd Defendants regarding the invalidity of the purported tenancy relationship.

98. The position of the Plaintiff and the 2nd Defendants in this regard, according to the pleadings and Mr. Chong who represented all of them in the counterclaim, is that no tenancy relationship was intended by either party and none was entered into. The arrangement only concerned the payment of mesne profits at an agreed amount by the 2nd Defendants pending the resolution of the dispute between the Plaintiff and the Defendant.

99. I see nothing objectionable in principle in the making of such an interim arrangement. According to the evidence of the Plaintiff in this regard which I accept, apart from the 2nd Defendants it was difficult to find alternative tenant(s) of the fish pond land as fish breeding was becoming less and less profitable in Hong Kong, the potential development cost of filling the fish ponds and putting the land to some other more profitable use was unattractive to the Plaintiff, and therefore he was most reluctant to lose the 2nd Defendants as tenants of the fish pond land. But given the dispute in question, he could not enter into any new tenancy with them. As I understand his evidence and find as the true nature of the arrangement reached on the evidence before me (including the evidence of the 1st-named 2nd Defendant), reluctantly the Plaintiff and the 2nd Defendants reached this arrangement as a sort of "holding" arrangement but with no commitment on either side. In other words, the 2nd Defendants could leave anytime they liked, whereas the Plaintiff could take any action to evict them from the land at anytime as he pleased, since there was no protection for either side by a written tenancy agreement and there was no security of tenure.

100. In my judgment, the arrangement agreed did not amount to any tenancy relationship, and in this regard, Mr. Chan was unable to say precisely what tenancy relationship had been entered into according to his submission. What had been agreed was simply the amount of mesne profits or "compensation money" for the (wrongful) occupation and use of the land. For good reasons of his, the Plaintiff refrained from taking action to evict the 2nd Defendants. But there was no agreement as part of the arrangement that he would not do so even if payment of the agreed mesne profits or compensation money was tendered by the 2nd Defendants. In so far as the evidence on this part of the case was not clear, I find that the Defendant has not discharged his burden of proof in establishing a tenancy relationship between the Plaintiff and the 2nd Defendants after January 1998. Labels, like the parties' subjective belief and intention, are not conclusive if not quite irrelevant, so I do not place much weight on what the payment was called by the parties or by the Plaintiff in his written account.

101. As no tenancy has been created, no consent from the Secretary is required. The upshot of all this is that the 2nd Defendants are not involved in the dispute between the Plaintiff and Defendant relating to the proper construction of section 15 and the consequential relief sought by the Defendant in the counterclaim.

102. It only remains for me to mention and reject Mr. Chong's argument that the Defendant as a member of the Wui has no locus standi to sue the 2nd Defendants in respect of any current tenancy relating to the fish pond land, on the dual assumption that section 15 imposes a consent requirement on lettings (which is indeed the case) and such a tenancy exists (which is not the case), as this would be a wrong done to the Wui as distinct from the members of the Wui, relying on or on the analogy of the rule in Foss v Harbottle. Given my conclusion above, I need not deal with this point which I reject for a number of reasons, but would simply give the shortest one of them. (See also the judgment of Cheung J. (as he then was) in this action handed down on 10th June 1999 dealing with this point in a strike-out context.)

103. Once Mr. Chong conceded as he very wisely did that the Defendant as a member of the Wui had sufficient interest to sue in respect of the alleged wrongful purported tenancy - a concession that was quite inevitable in the light of the Court of Appeal decision in Tang Yau Yi Tong v Tang Mou Shau Tso [1996] 2 HKLR 212 relating to the nature of a tso or tong and the interest of its members in the land held in the tso or tong as well as Professor Chang's unchallenged expert evidence in this case, his argument of the 2nd Defendant's lack of locus standi to sue the 2nd Defendants did not stand a real chance of success. For quite plainly in such a suit, the 2nd Defendants being the other party to the alleged wrongful purported tenancy would be a necessary party to the suit. The suit would directly affect the 2nd Defendants' interest and as a matter of civil procedure it would be most desirable that the 2nd Defendants should be bound by the result of the suit so as to avoid any risk of inconsistent judgments. In other words, in such a suit, the Defendant could and in fact should join the 2nd Defendants as co-defendants seeking declaratory relief against them together with the Plaintiff relating to the alleged purported tenancy between the latter two.

Form of relief

104. In my judgment, a declaration but no injunction should be granted against the Plaintiff. On the one hand, the Plaintiff has said in no uncertain terms in evidence that his past practice has been to let land without obtaining consent and if his understanding is correct he fully intends to continue doing so in future, and there are millions of square feet of Wui land waiting for him to let. That calls for the making of a declaration regarding the true legal position for the benefit of all concerned including the Plaintiff. On the other hand, the Plaintiff has also said in evidence which I accept that if the Court is to rule otherwise on the requirement of the law, he will act accordingly. I have no reason to doubt his sincerity to comply with the law once it is clearly declared and made known to him. In those circumstances, no injunction is called for.

105. I am also acutely aware of the possibility - I put it no higher than that on the very unsatisfactory evidence in this regard placed before me at trial - that there may be other purported tenants under yet-to-be expired tenancy agreements already entered into by the Plaintiff without the blessing of the Secretary before this issue of consent arose in 1998, who are not made parties before me in these proceedings. In reality, the Plaintiff will most likely apply for retrospective consent to these possible purported tenancies and that would solve any possible dispute arising from the declaration I am going to make. Fairness to these possible purported tenants dictates against my granting any declaration covering their "tenancies". I therefore do not find it necessary or appropriate, in the exercise of my discretion, to make any declaration directly on the validity of "all [purported] current leases or tenancies" entered into without the requisite consent as prayed for in the pleading.

106. I make the following declaration against the Plaintiff under the counterclaim, namely, that the Plaintiff as registered manager of the Wui under section 15 of the Ordinance may only grant a lease or enter into a tenancy agreement of whatever duration in respect of land held from the Government under the relevant Government leases in the name of the Wui subject to the consent of the Secretary for Home Affairs but not otherwise.

107. The Defendant having abandoned at trial his counterclaim for "damages" which is therefore dismissed, that effectively disposes of the counterclaim against the Plaintiff. The counterclaim against the 2nd Defendants is dismissed.

Outcome

108. In summary, under the original action, I make the declaration set out above in favour of the Plaintiff against the Defendant. I dismiss the rest of the Plaintiff's claim.

109. Under the counterclaim, I make the declaration set out above in favour of the Defendant against the Plaintiff and dismiss the rest of the counterclaim against the Plaintiff. I dismiss in entirety the counterclaim against the 2nd Defendants.

110. As regards costs, I make the following order nisi which will become an absolute order 14 days after this judgment is handed down, unless any party applies to vary it within the 14-day period, namely, that:

(a) The Plaintiff be paid out of the funds and if necessary other properties and assets of the Wui his costs of the original action to be taxed on a common fund basis if not agreed (with all the members of the Wui);

(b) The Defendant reimburse and pay to the Plaintiff as representing the Wui the Plaintiff's costs of the original action to be taxed on a party and party basis if not agreed (between the Plaintiff and the Defendant);

(c) The Defendant pay to the 2nd Defendants their costs of the counterclaim to be taxed on a party and party basis if not agreed;

(d) The Plaintiff out of the funds and if necessary other properties and assets of the Wui pay to the Defendant his costs of the counterclaim against the Plaintiff to be taxed on a common fund basis if not agreed (between the Plaintiff and the Defendant);

(e) The Plaintiff be paid out of the funds and if necessary other properties and assets of the Wui his costs of defending the counterclaim to be taxed on a common fund basis if not agreed (with all the members of the Wui);

(f) The costs of the trial be apportioned thus: One-quarter in respect of the Plaintiff's claim by original action, one-half in respect of the counterclaim against the Plaintiff, and one-quarter in respect of the counterclaim against the 2nd Defendants.