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Present: Pereira J.> »
SAMUEL ». SENATHIEAJAHr70S—P. C. Negombo, 20,261.Biss—Expression. of opinionby Magistratebefore trial—Criminal
trespass—Action for declaration of title—Is it advantageous to be.defendant f
Observations by Febbiba J.—(1) On the impropriety and inex-pediency of a Magistrate so expressing, in open Court, in thecourse of one case, conclusions that he ha6 arrived at on' theevidence as to give rise to the suspicion that he has already madeup his mind to convict the accused in another case yet to be triedhy him;
(2) On the erroneous and mischievous notion that it is moreadvantageous to go to the Civil Court as a party defendant thanas a party plaintiff in a case for the vindication of rights to landedproperty.
Held, that a person who enters upon land in the possession ofanother and, with the sole object of molesting him in order todrive him to take legal proceedings for the purpose of having his(the trespasser's) own rights to the land adjudicated ujk>n, remainson the land, and in fact commits acts of annoyance on it, is guiltyof criminal trespass.
X HE facts appear from the judgment.
J. Grenier, K.C. (with him Samarakody), for the accused,appellant.—The Magistrate was greatly prejudiced against theaccused, and had expressed himself in very strong terms agiainstaccused in a case against another person. In the judgment in thatcase he says that the main culprit was this accused. He shouldnot have tried this case under the circumstances.
There is not sufficient evidence to support the conviction formischief.
The accused acted in the bona fide assertion of his right in enteringon the land. He had no intention to annoy or intimidate any one.
The parents of accused's wife were married in community, and themother predeceased the father. The mother's share devolved onall her children. The complainant's, master claims the whole estateunder a will of the father. The antenuptial – contract does notaffect the property acquired after marriage.
Counsel argued on the facts.
J. C. Pereira (with him Allan Drieberg), for .the respondents—It is clear from the evidence of the accused himself that his
intention was to drive Mr. Muttunayagam to Court as plaintiff.
Samuel v.obiect was to an“°y Inna and thus drive him to Court. The
Smathirajah accused is therefore guilty of criminal trespass.
Counsel argued on the facts.
Cut adv. vult.
October 4, 1918. Pereira J.—
The Magistrate begins his judgment in this case' by saying thatthe case is connected with case No. 20,057 of the Police Court ofNegombo, in which Mrs. Brito and her son were convicted of criminaltrespass on Dambawina estate; and counsel for the accused hasinvited my attention to certain observations made by the Magistratein his judgment in that case, and based thereon, a complaint againstthe action of the Magistrate in taking upon himself to try this case,
' having allowed his mind to be seriously prejudiced against theaccused. On referring to the judgment in the older case, I find thatthe Magistrate says: “ She (meaning Mrs. Brito) is a puppetin the hands of the man behind the scenes, Senathirajah, who willbe dealt with in due course”; and further:“The main culprit
(meaning the present, accused) has not yet been dealt with.” Thereis, so far as I can see, very little justification, if any at all, in theevidence in the case for these observations. Anyway, it is clearthat the Magistrate approached this case in a frame of mind by nomeans calculated to inspire confidence in his ability to sift theevidence properly, and to arrive at a fair and dispassionate verdict.In one part of his judgment in the older case he says : “ He (meaningthe present accused), it appears, is an experienced litigant.” Beyondthe fact that the accused once sued his father-in-law for his dowry,and the matter was referred to an arbitrator, who awarded to theaccused Bs. 10,000 and the estate promised, I can find no justifi-cation in the evidence for this observation. In the course of theargument in appeal I was anxious to know the foundation of'theMagistrate’s remark, and I looked in vain to the counsel engagedin the case for the information. If the Magistrate had formed sostrong an opinion against the conduct of the accused as is indicatedby the observations referred to above—indeed, if he had alreadymade up his mind that the accused was the “ main culprit,” he' would have done well to refrain from hearing this case. At thesame time I am free to admit that there are minds so constitutedthat in spite of the strongest impressions formed in one proceedingthey can bring themselves to bear on another with perfect impar-tiality; but it is now almost a trite saying that it is necessary that“ judicial proceedings should not only be free from actual biasor prejudice of the Judges, but that they should be free fromthe suspicion of bias or prejudice. ’ ’ The. observations' referred toabove were presumably read out in open Court, and whether theaccused heard them t-hen, or became aware of them since his trial,
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it is but natural, as his counsel has contended, that there should bea lurking suspicion in his mind that justice has not been meted
out to him. I would on this account quash the proceedings, but
that the independent opinion that I have formed on the evidence se^mrajaJofor the prosecution is rather in favour of the accused; and thedecision that I have arrived at, so far as it is adverse to him, islargely based on the evidence given by himself.
The accused has been fined Bs. 50 for mischief on a charge framedby the Magistrate ex mero moto suo after the commencement of thetrial, themischief being thecutting of the wire fenceroundthe
bungalowin the Dambawinaestate. It is necessary toenterinto
the facts that are alleged to have led up to the cutting of the wirefence in order to test the veracity of the witnesses. Mrs. Britovthe aocused in the. other case referred to by the Magistrate, was atthis timein the bungalow. The patch of ground withinwhichthe
bungalowstood was enclosedby means of a wire fence,whichhad
a wide gate on one side and a turnstile on another. The gate wasguarded by a watcher, who might or – might not allow anybody topass and re-pass, and therefore the turnstile was of the utmostuse to Mrs. Brito, for through it alone she and her servants * had’egress and ingress with the greatest freedom, and its removal wasnaturally calculated to inconvenience her. The turnstile suddenlydisappeared, and in its place there was a stretch of wire fence. Whowas responsible for this? Samuel, the chief witness for the prose-cution, says: “ The turnstile was removed by Mrs. Brito's men.”
Can this be true? In my opinion it is utterly false. It is certainlyextremely improbable. Immediately after the turnstile disappeared,
Mrs. Brito wrote letter K to the accused, in which she said: 11 Theturnstile has been removed and barbed wire put in its place, thegate locked, three watchers are in front, and we are unable to gofor water or to take a bath.” This statement so promptly made'corroborates the evidence for the defence. The accused came intothe estate on September 9, and he says that one morning theinmates of the bungalow found the wire fence cut and the turnstilere-erected. In this evidence he is well supported by his witnesses,among whom is one Vincent, who appears to have been the assistantconductor of the estate. This man, of course, is charged by thecounsel for the prosecution .with having gone over to the enemy'scamp, but there is nothing that I can see in the recorded evidencethat supports the insinuation. Anyway, the evidence against the.accused on the charge of cutting the wire fence is the evidence ofthe selfsame untruthful witnesses who- attempt to support thecharge against Mrs. Brito of removing the turnstile or causing it tobe removed. I cannot believe them.
As to the charge of criminal trespass, the evidence is the evidence,more %r less, of the same witnesses. The evidence of Baronchyshould not certainly have been accepted. It depends largely upon
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1918. , what the accused is said to have told him through an interpreter.
j The interpreter was not called, and counsel for the accused properlyg—^objected to the evidence, but the objection was peremptorily
JSenathirajah over-ruled, with no reasons recorded.
The accused and Mrs. Brito have attempted to make themselvesout to be persons with a grievance, and it is possible that theyhave a substantial grievance, but the question is whether thatgrievance can be said to justify their conduct. Their father-in-law,Mr. Brito, the original owner of Dambawina estate, .appears to havedevised the whole of his estate and effects to one child, and dis-inherited the rest of his children, the one child being the wife ofMr. Muttunayagam, one of the most prominent witnesses in thiscase. The testator, I suppose, had reasons for giving, and the soledevisee for taking, property depriving the rest of the children oftheir shares, and for making certain secret arrangements,i as appearsfrom Mr. Muttunayagam's evidence in the connected case, tocomfort the unfortunates with some money as a solatium for theirloss, but, in the circumstances, both the giver and the taker werenaturally exposed to a great deal of opprobrium from those deprived;of their inheritance. The accused and Mrs. Brito were smartingunder the grievance; and it helped the accused, at any rate, to see inthe antenuptial contract a meaning calculated to nullify partly theeffect of the disposition in the will. The question raised in connec-tion with the construction of the antenuptial contract, as explainedto me by the accused's counsel, I will not say is not arguable, but,whether that be so or not, so far back as 1898 the accused's wifehy her will devised to the accused an eighth share of Dambawinaestate, and the aceused had a conveyance for the same executed inhis favour by the executor of the last will of his wife in February,1906. Armed with this conveyance he was naturally awaitingan opportunity to assert his claim, and that opportunity presenteditself to him when he received Mrs. Brito’s letter of September 8,1913. I do not think there is sufficient evidence to support the, theory, accepted apparently by the Magistrate, that the accusedand Mrs. Brito were acting in pursuance of a conspiracy. Thereare possibly grounds giving rise to a suspicion and nothing more,but suspicions should never be allowed to prejudice the positionof an accused party in a criminal case. There is certainly no directevidence that it was in pursuance of a conspiracy that the accusedwent to Dambawina estate on September 9, and I am not preparedto infer from the evidence anything other than that which it plainlyindicates, namely,.that the accused went to the estate in responseto Mrs. Brito’s invitation to help her in her distress there. Whenonee in the estate, he found his chance to assert his own claim,and 1 have no doubt that he committed some acts which werecalculated to cause annoyance to the occupants. With the excep-tion of the cutting of the wire fence, which I totally disbelieve for
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reasons given already, the evidence does not show that the accusedwas guilty of any very serious act of aggression,, and the evidence,even so far as it goes, bears, to my mind, the impress of the grossestexaggeration. I would rather accept the version of the wholeaffair a6 given by the accused and his witnesses,- but even so I cannot,help thinking that the accused has brought himself within thepenal provision of the law on the subject of criminal trespass.ThiB offence is committed, not only by a person who enters into-property in the occupation of another with a certain intent, butalso by one who having lawfully entered unlawfully remains inthe property with, a similar intent. Now, the -evidence of theaccused is that he sent men to occupy what is referred to in the-proceedings as the “ pit bungalow ” for the “ purposes of a testcase,’* and it is clear from his evidence that he did this and certain:other acts of annoyance for the purpose of driving the possessor ofthe estate to take legal proceedings against him to test the validityof his claim so that he himself might figure in those proceedings asdefendant, being under the impression that it was more advan-tageous to go to the Civil Court in. the capacity of a defendant thanof a plaintiff. I should like to pause here to say that this is anerroneous and mischievous notion which is entertained by somepeople in this country, and which is la fruitful source of crimes ofviolence. There was, perhaps, some excuse-for it twenty-five yearsago, but since then our laws of procedure and evidence have beenso altered that it now makes practically no difference whether oneenters at the open door of the Civil Court of his own accord as aplaintiff, or is obliged to do so as a defendant. This, I think, isa fact that should be widely known and appreciated in this country.The rigid rules as to pleadings of a quarter of a century ago havedisappeared, and where the parties cannot agree, issues are framedafter an oral examination, if necessary,, of the parties, and it ismade the duty of every Judge to brush aside legal quibbles and'technicalities and to try to get at the actual facts, and give hisdecision accordingly. Then, in the field of the law of evidencemany wholesome presumptions and many facilities for the proofof certain facts have been expressly provided for, and where factsare specially within the knowledge of a party, be he plaintiff ordefendant, the burden of-proving them is thrown on him. In this6tate of things it is absurd to say that a defendant in a civil actionoccupies a vantage ground any more than a plaintiff. But theaccused in this case still entertained the- old-world notion, and ledhimself to the commission of acts obnoxious to the provisions ofthe criminal law of the country. His defence, <-of course, is thathe acted in the bona fide assertion of a right. Now, the bona fideassertion of a. right is one thing, and the molestation of a person byacts not really necessary for the assertion of rights, with the onlyobject of driving him into Court in order that he may take-
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IMS. proceedings to enable the person molesting to obtain an adjudication^^ on the right- claimed by him, is another. Possession is vested with
,'.* peculiar sanetity under the Roman-Dutch law. A person who has
Samuel v. ^een possession of property for a year and a day is not allowed%r°^ to be disturbed, even by the rightful owner, without proper processof law. A person enters upon property in the bona fide assertion ofa right when he enters with no object other than, that of enjoying thebenefits of the property to the extent of the right claimed by him,but in the present case the object of the entry, or rather of theremaining in the property after the entry, was, I might almostsay, admittedly the molestation of the occupant in order to forcehis master into the Civil Court. I think that the accused is guiltyof criminal trespass, but that, in the circumstances of the case,the ends of justice will be met by the imposition of a fine ofRs. 100.
1 set aside the conviction and sentence under section 409 q£ thePenal Code. In view of the facts of the case, the order undersection 418 of the Criminal Procedure Code and the order forsecurity to keep the peace are, in my opinion, unnecessary, and Iset them also aside. I vary the conviction under section 433 ofthe Penal Code to a conviction of the offence of unlawfully remainingin Dambawina estate (having lawfully entered into it) with intentto annoy its occupant Samuel, and commute the sentence to a fineof Rs. 100 (three weeks' simple imprisonment in default).
SAMUEL v. SENATHIRAJAH