003-NLR-NLR-V-23-FERNANDO-v.-FONSEKA.pdf
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Present; Bertram C.J.
FERNANDO v. EONSEKA.
576—P. 0. Panadure, 70,376.
Mischief—Demolishing httirine on land which was claimed by two adjoining
owners—Bona fide claim.
The complainant bought one of two lots, which correspondedto an undivided share, in a property of which there was an informaldivision. The accused objected to the use by the complainant of alatrine on what he claimed to be his lot. He gave six weeks’ noticeand demolished the latrine.
HeM, that in the circumstances the accused was not guilty ofmischief.
“The fact-that complainant himself asserted a bona fide claim,does not affect the position of the accused.
“ I should be very sorry to hold that a person cannot demolish alatrine on his own land which he claims to be a nuisance because itwas erected by a person, who wrongly claims an interest in theland.”
rpHE facts appear from the judgment.
B. F, de Silva, for appellant.
J. S. Jayawardene, for respondent.
June 16, 1921. Bektqam C.J.—
In this case an appeal arises only on a point of law, and the pointof law submitted by Mr. de Silva is that there is no legal jurisdictionin the circumstances of the case for a conviction for mischief. The
. 1 (1893) 2 G. L. B. 193.» (1910) 3 Bah Reports 64. .
2 (1909) 2 St C. D. &9.4 (1916Y2 G. W. B. 292.
1921.
1921.
Bbbtbam
C.J.
Fernandov. Fonseka
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facts are that the complainant bought one of two lots, which corre-sponded to an undivided share, jscle^operty of which there appearsto have been an informal divisor That question may arise as tothe precise direction of the line o£ division. But it is agreed thatboth the appellant and the respondent own separate lots. Theappellant finds, upon what he claims to be his lot, a latrine in use bythe respondent. He considers that latrine a nuisance. He givessix weeks* notice, and on the expiration of that six weeks hedemolishes the latrine. The learned Magistrate has convicted hi™of mischief, saying he has acted maid fide and highhandedly. Thelearned Judge, nevertheless, says that it is possible that the latrinemay ultimately be found to fall within the boundaries of the lotpurchased by the accused. If that is possible, clearly the appellant’sclaim to the land is bona fide, and I do not understand the learnedJudge whenhe finds that the appellant acted maid fide in the assertionof what he practically admits to be a bona fide claim.
The law has been laid down in the case cited by Mr. de Silva,Porolis v. Romanis,1 where Pereira J. says : “ It is only where a-person acts wantonly that he can be said to be guilty of mischief» … In other words, he should act spitefully, maliciously, orwantonly.”, Hutchinson C.J., in another case cited, used thesewords : “ Supposing it should turn out afterwards and be decidedby a Civil Court that the complainant had no right to put up the. fence, that it Was a wrongful encroachment on the appellant’s land,it would be absurd that the appellant should be convicted for the■ criminal offence of committing mischief by taking away an encroach-ment that he had a right to take away.”
Mr. Jayawardene raises two points : He says, in the first place,that, if the respondent on her side is also asserting a bona fide claim;the appellant is not entitled to take the lainto his own hands.That appears to be the view of the Magistrate himself. But I donot think that it is tenable in law. • In the next place, he says that. the appellant could haveno right to demolish the latrine, because therespondent may have a claim for compensation in that respect. I• do not understand that,the appellant destroyed the materials. Ishould be very sorry to hold that a person cannot demolish a latrineon his own land which he claims to be a nuisance, because it waserected by a person who wrongly claims an interest’ in the land. I,
‘ therefore, allow the appeal.
Set aside.
1 (1913) C. A. 0. 163.