D'souza v Machado (Civil Appeal No. 20 of 1951) [1952] EACA 87 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BOURKE, J. (Kenya)

SEBASTIAN JOE D'SOUZA, Appellant (Original Plaintiff)

W. S. MACHADO, Respondent (Original Defendant) Civil Appeal No. 20 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya, Windham, J.)

Clubs-Secretary or other officer's right to eject from the club premises an undesirable non-member.

For the appellant it was contended that the Secretary or other officer of an unincorporated members' club has no right to eject from the club premises a non-member whose presence he regards as undesirable, if such person is there by leave and license of a member of the club because every member of an unincorporated members' club is a joint owner of the premises and is therefore entitled to an undivided enjoyment of possession to the whole of the premises.

Held $(14-5-5)$ .—A person by becoming a member of a club binds himself to abide by the rules and thereby accepts a limitation on his rights as a co-owner. Appeal dismissed.

D. N. Khanna for appellant.

Kaplan for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—Although on the facts of this case the matter in litigation is trifling, a point has emerged during the hearing of the appeal which must be one of considerable interest and importance to all concerned in the control and management of clubs. If Mr. Khanna, who appeared for the appellant is right, the secretary or other officer of an unincorporated members' club has no right to eject from the club premises a non-member whose presence he regards as undesirable, if such person is there by leave and license of a member of the club. This argument is based on the premise that every member of the unincorporated members' club is a joint owner of the premises and is therefore entitled to an undivided enjoyment of possession to the whole of the premises. Just as a householder can invite into his house, any person whom he likes, so can a club member bring into the club a person whose presence may be objectionable to the other members. Mr. Khanna concedes that the rules of an unincorporated club constitute a contract between the members inter se, but he argues that a breach of any rule is a matter between the members only and cannot affect the status of a third party. Mr. Khanna also conceded that each member of a club can be presumed to have delegated to the Committee and its officers the duty to see that the club is run properly. Here I think lies the answer to Mr. Khanna's somewhat astonishing proposition. Even assuming the correctness in law of the premise, a person by becoming a member of a club binds himself to abide by the rules and thereby in effect accepts a limitation on his rights as a co-owner. On the facts as found by the learned Judge in this case and which are fully set out in the judgment, it is very evident that under the rules the appellant was disqualified from admission to the premises of the Goan Institute as a guest. The respondent who held the office of assistant secretary was therefore doing no more than his duty in pointing this fact out to the member who had introduced the appellant as his guest and to the appellant as well.

Whatever may have been the position up to that moment I agree with the learned trial Judge that once he had been told the position the appellant knew or should have known that he was a trespasser and I regard the fact that Mr. Zuzarte who had introduced him to the club apparently encouraged him to continue the trespass matters not at all. It would only matter if Mr. Zuzarte, in spite of the rules, had the power to confer the status of a guest on the appellant, but he had not this power, because by acceptance of the rules he had deprived himself of it. Neither is it material that the appellant may not have intended to commit a trespass *ab initio*. A person can be a trespasser without *mens rea*.

In my opinion therefore the learned trial Judge was right in dismissing the action. He found as a fact that there was nothing in the nature of a serious physical assault on the appellant and that the respondent neither said nor did anything more than was necessary under the circumstances to uphold the rules of the club and to insist on their observance.

This appeal is dismissed with costs.

SIR NEWNHAM WORLEY (Vice-President).—I entirely agree and have nothing to add.

BOURKE, J. (Kenya).—I also agree.