SELVANAYAKAM KANGANY, Appellant, and HENDERSON , A. G. A. KEGALLA, Respondent

119-NLR-NLR-V-47-SELVANAYAKAM-KANGANY-Appellant-and-HENDERSON-A.-G.-A.-KEGALLA-Respondent.pdf


Selvanayakam Rangany v. Henderson. A. O. A., Regatta.
337
1946Present:-Jayetileke J.
SELVANAYAKAM KANGANY, AppeUant, and HENDERSON,
A. G. A., KEGALLA, Respondent.
M. C. Regatta, 12,301.
Criminal trespass—Meaning of “ occupation ” in section 427 of Penal Code—Occupation may be by oneself or through agent—Difference betweenoccupation by tenant and occupation by servant after expiry of notice toquit—Intention to annoy—Penal Code, as. 427, 433.
The Superintendent of a tea and rubber estate gave due notice to theaccused, who was a labourer occupying two line-rooms of the estate,that his services would no longer be required and that he should vacatethe rooms. The accused refused to vacate the rooms and was, thereupon,charged under section 433 of the Penal Code with having committedcriminal trespass by unlawfully remaining in the two rooms with intentto annoy the Superintendent.
It was established that the Superintendent was in paramount occupa-tion not only of the estate but also of the lin'e rooms and that he had theright to allot any rooms in the lines to the labourers and to change therooms occupied by the labourers as he wished.
The accused’s defence was that he was bora and bred on the estate,that the estate was his home, and that he intended to remain on theestate till he was able to build a house to move into. There was, however,no evidence that the accused paid any rent for the rooms which heoccupied or that he was permitted to occupy them as a reward for hisservices. The accused’s occupation of the rooms was, in fact, ancillaryto the performance of the duties which he was engaged to perform.
Held (i.) that the Superintendent was in occupation of the two roomswithin the meaning of section 427 of the Penal Code. The occupationthat is entitled to protection under the section may be by oneself orthrough an agent ;
(ii.) that the accused’s occupation of the rooms was not as tenant butas servant ;
(iii.) that the accused, by remaining in the rooms after his serviceswere terminated, was guilty of criminal trespass. If annoyance to theSuperintendent was the natural consequence of the accused’s act and ifthe accused knew that it was the natural consequence, then there wasan intention to annoy.
PPEAL against a conviction from the Magistrate’s Court, Kegalla.
V. Per era, K.C. (with him S. Nadesan and C. S. Barr Kumnrakvla-singhe), for the accused, appellant.—The conviction is bad on the followinggrounds :—(1) The accused-appellant is a tenant. (2) The line-roomswhich the accused-appellant refused to leave were in the accused-appellant’s occupation and not in the occupation of Rajapakse, theSuperintendent of the estate. (3) It cannot be said that accused-appellant intended to annoy Rajapakse by remaining in the lines.
There is no intention to annoy anyone in any way.
As regards (I). In the Privy Council case of The Calcutta Corporationv. The Province of Bengal1 Lord Porter in his judgment makes it clearthat where a servant occupies a particular house of the master for theconvenience of both of them the possession by the servant is that of1 (1944) A. I. S. (P. C.) 42 at 45.
15vXLVii.
1J. H. A 03104—658 (0/40)
338
fUeh/anayaJcam Kangcmy v. Henderson, A. O. A., Kegaila.
tenant unless the servant is required to occupy it for the better per-formance of his duties though his residence is not necessary for thatpurpose or if his residence there is necessary for the performance of hisduties though not specifically required.
On this aspect of the case there is the unchallenged testimony of theaccused that he was bom in these particular line rooms, lived thereall Ms life and that Ms father before him lived there. The accusedwas a labourer in the estate employed by the present owner on the sameterms as under the previous owner. There is no evidence as to whatthose terms were. The terms of service may and do actually vary indifferent estates.
The natural inference on these facts, on the authority of the PrivyCouncil case cited (supra), is that the accused is a tenant as there is noevidence of circumstances or facts wMch .negatives tenancy as requiredfey that case. Further the accused was allowed the free use of theparticular line-rooms. The use of the rooms without payment of rentmay be taken to be part payment for his services. See Hughes v. TheOverseers of the Parish of Chatham,1.
If the accused is a tenant he is not guilty of criminal trespass evenif he is in unlawful possession. In such a case there is always the civilremedy available to the owner.
As regards the second ground of appeal, occupation as contemplatedby section 427 must be exclusive—Gour : Penal Law of India, Article 3565.On the facts it is clear that it is the accused who is in occupation and notRajapakse. Even if both accused and Rajapakse are in occupationsuch occupation would not be sufficient under section 427. The offencemust be confined to trespass against apparent occupation, not againstperson in possession as understood by Roman-Dutch Law. See Rawtherv. Mohideen 2.
Occupation is different from mere user. Occupation by accused ofthese rooms is very different from mere user allowed to coachman,driver, &c.
As regards criminal intention, the intention necessary to be provedin a case of criminal trespass such as this is the intention to annoy byremaining unlawfully. The word “ thereby ” in the section makes thatposition clear. The finding of the Magistrate is that the fact of accusedremaining in the line-rooms after the expiry of the notice caused annoyanceto Rajapakse. Whether the requisite intention is there is a question offact in each case. The intentioii of the accused in tMs case is clear andobvious. The accused remained because it was Ms home. It is notnecessary to look further for Ms intention. Counsel cited PitcheBawa v. Abdul Coder 3 ; Jirasinyhe v. Selunge 4 ; Ebels v. Perianan 5.
C. Nagalingam, Attorney-General (with him H. A. Wijemanne, C. C.),for the complainant,respondent.—On the facts the position
is clear. Rajapakse in Ms evidence stated that he was in occupation ofthe entire estate including the particular line rooms, that he could allotany room to any labourer and could change rooms occupied by any
1 11843) E. R. 479.3 <1909) 3 Weer 47.
* (1911) 1 Bat. Notes of Cases 2.* (1944) 29 C. L..W. 96.
(1939) 4 C. L. J. 119.
Selvanayakam Kangany v. Henderson, A. 0. A., Regatta.
339
labourer as he (Rajapakse) pleased. That position was not challengedby the accused in cross-examination. The relationship betweenRajapakse and the accused has been established as that of master andservant and nothing more than that. If the accused was a tenant itwas for the accused to establish that fact. This has not been done.The prosecution cannot prove a negative, i.e., that the accused was not atenant.
Occupation does not mean actual physical occupation but meansactual control. Tenant in English Law has a much wider meaningthan in our law. See Defintions in Morsely and Whitly’s Law Dictionaryand in Stroud.
Under both English and Roman-Dutch Law rent in some form or otheris an essential ingredient in the contract of teDancy. Vide Wille’sLandlord and Tenant pp. 4 and 56 ; Crons v. Crous1 ; Hughes v. TheOverseers of the Parish of Chatham {supra) alp. 483.
In this case no rent was paid or deducted out of the wages of theaccused. Resident and non-resident labourers were paid at the samerates. The accused was in the line-rooms with leave and licence andhe occupied the rooms precario. See Maharaj v. Maharaja ; Rubin v.Botha 3 ; Dobson v. Jones *, Lumley v. Hodgson 6.
Test of occupation is the actual control—King v. Inhabitants of Ches-hunt6, Dobson Knight v. Jones1, McMahon v. David Lawson, Ltd.8Fox v. Dalby 9, Speldewinde v. Ward10, Gabriel Silva v. Amaris Silva 11.
In all cases where occupation is necessary for service or is in theinterests of the master there is no tenancy. See Rexv. Stock12 ; Bertie v.Beaumont13 ; The King v. The Inhabitants of Kelstern14 ; WestminsterCouncil v. Southern Railway Co. 18 ; Read v. Cathermole 16 ; Clark v. TheOverseers of the Parish of St. Mary Bury St. Edmunds 17.
Intention in the case of criminal trespass is both a question of law andof fact. Where, as in this case, the prosecution relies on an intentionto annoy there is a sufficient compliance with section 427 if annoyance isactually caused and the annoyance is the natural consequence of theaccused’s remaining and the accused had foreknowledge that by remaininghe would cause annoyance to the complainant. There can be no doubtthat the accused acted in concert with others and that he had the criminal
» S. A. L. R. 1937 C. P. D. 250.
3 {1936) N. P. D. 128 referred to in 1939'Digest of South. African Case Law, 208.
{1911) S. A. L. R. Appellate Division
568 at 576.
(1844) 5 M. and G. 116 at 121.
(1812) 16 East 101.
« (1818) 106 E. R. 174.
7 (1844) 134 E. R. 502.
(1944) 1 A. E. R. 36 at p. 42.
9 L. R. (1S74) 10 C. P. 285.(1903) 6 N. L. R. 317.
(1929) 7 Times 32.
(1818) 168 E. R. 751.
12 (1812) 104 E. R. 1001.
'* (1816) 105 E. R. 1001.
(1936) A. C. 511.
(1937) 1 K. B. D. 613.
(1857) L. J. 26 C. P. 12.
340 JAYETILEKK J.—Selvanayakam Kangany v. Henderson, A.Q../1., KegcUla.
intention as is required by section 427. See Suppiah v. Ponniah *, De Voa v.Ernst 2, Perianan Kangany v. Ebels 3, Anthony Appuhamy v. Wijetunge 6,Forbes v. Rengasamy 5.
H. V. Perera, K.C., in reply.—Occupation is a question of fact in eachcase. If a man lives in a house for a long and continued period of timeone may properly draw the inference that he is in occupation of it. SeeWords and Phrases Judicially Defined Vol. IV., page 13.
[J a yetlueke J. read a passage from the judgment of Lord Halaburyin Quin v. Leathern 6 to the effect that general observations must be readwith reference to particular facts decided in a particular case and askedwhy the observations in that passage should not be applied to the state-ments of the law in Calcutta Corporation v. Province of Bengal (supra)].
They should be applied if one seeks to apply that decision. But theobservations in the Privy Council ease are relied on only as generalprinciples of law. It is not necessary for the accused that he should betenant; it is sufficient if he is in occupation. Counsel cited WestminsterCouncil v. Southern Railway CoP.
August 30, 1946. Jayettlbke J.—
The accused in this case was convicted under section 433 of the PenalCode with having committed criminal trespass by unlawfully remainingin two line-rooms of Knavesmire Estate with intent to annoyMr. Rajapakse, the Superintendent of the estate, and sentenced toundergo three months’ rigorous imprisonment. Criminal trespass isdefined thus in Section 427 :—
“ Whoever enters into or upon property in the occupation of anotherwith intent to commit an offence or to intimidate, insult or annoyany person in occupation of the said property, or having lawfullyentered into or upon such property unlawfully remains there withintent thereby to intimidate, insult or annoy any such person or withintent to commit an offence is said to commit criminal trespass.”
The section, as it originally stood, made it an offence for a person to enterupon property in the “ possession or occupation ” of another person.By Ordinance No. 16 of 1898 the section was amended by the deletion ofthe word ‘ ‘ possession ”. In Rawther v. Mohideen 8 Wood Renton J. said—
“ The word ‘ occupation ’ used in section 427 was formerly used inconjunction with and preceded by the word ‘ possession ’ which wasdeleted by section 5 of Ordinance No. 16 of 1898, the clear intention ofthe Legislature being that the offence should be confined I think to atrespass committed against persons in apparent occupation of premises,and not extended to a trespass against a person in the unascertainedcharacter of the rights involved in the word ‘ possession ’ as knownto the Roman-Dutch Law, to avoid the very evil which has occurredhere, i.e., the trial of questions of title in a Criminal Court.
Cur. adv. wit.
1 (1909) 14 N. L. R. 475.3 (1912) 15 N. L. R. 213.3 (1939) 16 C. V. W. 15.
* (193S) 3 G. L. J. 164.
(1940) 41 N. L. R. 294.
(1901) H. L. at 506.
(1936) A. C. 511 pi 529, 532, 533.
(1911) 1 Bal. Notes of Gases, p. 2.
JAYETTT.EKE J.—Selvanayakam Kangany v. Henderson, A.G.A., Kegalia. 341
It is true no doubt that the occupation may be constructive alsoas in case of a tenant absent from the house or garden of which he is atenant when the trespass is committed ; but in my opinion the word‘ occupation ’ as used in the section implies the existence of a tenureentered upon either by owner or tenant or under-a bona fide claim ofright, or as a caretaker through whom also an owner or tenant might bein constructive occupation ”.
The occupation that is entitled to protection under the section may beby oneself or through an agent.
The main point that arises for decision in this case is whetherMr. Rajapakse was in occupation of the two rooms at the date materialto the prosecution. The question must be considered and answered inregard to the position and rights of the parties in respect of the premisesand in regard to the purpose of the occupation.
The facts of the case may be summarized as follows :—
Knavesmire Estate belonged to one Ibrahim Lebbe. It is about800 acres in extent of which 270 acres are planted in tea and 460 inrubber. It had a large number of line-rooms within its confines whichwere occupied by about 500 labourers. The accused, who worked in thefactory as a labourer, occupied two of the line-rooms with his wife andchildren. Mr. Henderson, the Assistant Government Agent of Kegalia,took steps under the Land Acquisition Ordinance (Chap. 203) to acquirethe estate for the Crown for village expansion, and on December 6, 1945,Mr. Abeywardene, the Land Officer of Kegalia, took possession of theestate on behalf of His Majesty and signed a vesting certificate undersection 12 (1) of the Ordinance. The regularity of the proceedings underthe Ordinance was not questioned at the argument before me and I thinkthat I am entitled to presume that all things required by the Ordinancehad been properly done. Section 12 (1) of the Ordinance reads—
12.(1) At any time the Government Agent has made an order under
section 9 or a reference under section 11 and has notified the same to theGovernor*, it shall be lawful to the Governor to direct that the landbe taken possession of by some officer of the Crown for and onbehalf of His Majesty. And the said officer shall sign a certificatesubstantially in Form A in the Schedule and the said land shallthereupon vest absolutely in His Majesty free from all encumbrances.
* Delegated to the Executive Committee of Local Administration—Gazette No. 8,060of June 22, 1934.
In the first place the sub-section says that the certificate shall actuallyvest the property in His Majesty, and, in the second place, it declaresthat the vesting shall be'an absolute vesting. The effect of the certificateseems to be to wipe out all claims that any person may have had to orin respect of the estate and to give the Crown a conclusive title to theestate.
Mr. Henderson says that when the Crown took possession of the estatethere was a labour force on the estate and the Crown continued to employthe labour force. At the end of January, 1946, Mr. Rajapakse, who wa*sappointed Superintendent, took charge of the estate. The evidence isvery scanty as to what precisely Mr. Rajapakse did after he took charge.
1*J. X. A 63] 04 <9/46)
342 JAYETII7EKE .TV—-Selvanayakam Kangany v. Henderson, A.O.A., Keg alia.
He says that he took up his residence on the estate on February 1, thatfrom that date he was in actual physical occupation of the entire estate,which would include all the buildings within its confines, and that he paidall the labourers including the accused at Wages Board rates. Whatone can gather from this evidence is that he got the labourers to work andpaid them the wages fixed by the Wages Board without making anydeduction in respect of the rooms they occupied. It is true that incross-examination he said that the accused’s wages included free housingaccommodation, but his evidence in re-examination shows that that is amistake. He does not seem to have discussed with the labourers anyterms or conditions of service but he says that he had the right to allotany rooms in the lines to the labourers and to change the rooms occupiedby the labourers as he wished. It must be noted that his evidence thathe had actual physical occupation of the estate and that he had theright to allocate the line rooms as he wished has not been challengedin cross-examination or denied by the accused when he gave evidence onhis own behalf.
On March 1, 1946, Mr. Henderson published a notice in the Gazettethat he would consider applications from landless residents of certainvillages named therein for working the estate on Co-operative lines.Towards the end of March he selected 243 persons, and noticed them toturn up for work on the estate on June 1. He had to provide accommoda-tion for them on the estate pending the constructing of houses, presumably,on the lots allotted to them. In order to provide the allottees with workand accommodation Mr. Henderson got Mr. Rajapakse to give notice inwriting to the resident labourers that their services would not be requiredafter May 31, 1946, and that they should vacate the rooms occupied bythem on or before that date. The notice P 7 was served by Mr. Rajapaksepersonally on the accused on April 30, 1946. On May 31, 1946,Mr. Rajapakse paid the accused the wages due to him and tendered tohim a discharge certificate. He informed the accused that the LabourInspector, who was present at the time, would find work for him onanother estate. The accused accepted his wages but refused to accepthis discharge certificate. None of the labourers vacated the roomsoccupied by them and Mr. Rajapakse was unable to find accommodationfor more than 12 to 15 of the allottees who turned up for work on June 1.Thereupon, Mr. Rajapakse charged the accused and the other labourerswith trespass with intent to annoy him.
The accused’s defence seems to be that he was born and bred on theestate, that the estate is his home, and that he intended to remain on theestate till he is able to build a house to. move into.-
After a careful review of the evidence the learned Magistrate arrivedat the following conclusions :—
That the accused occupied the.rooms in the capacity of a servant
for the more satisfactory performance of his duties and not in thecapacity of a tenant.
That Mr. Rajapakse was in occupation of the whole estate including
the buildings standing thereon.
JAYETILEKE J.—Selvanayakam Kangany v. Henderson, A.G.A., Kegalla. 343
That the occupation of the rooms by the accused after his services
were terminated was unlawful.
That the accused continued to occupy the rooms with intent to
annoy Mr. R&japakse..
Mr. Perera, in a very interesting and forcible argument, submitted thatthe learned Magistrate had gone wrong both on the facts and on the law.He candidly admitted that there was no Evidence to support a contractof tenancy. But he contended, relying on the following passage in thejudgment of Lord Porter in Calcutta Corporation v. The Province ofBengal1, that the possession of the accused must be taken to be that of atenant :—
" The general principles upon which a tenancy as opposed to anoccupation as servant is created are not in dispute. The mere factthat it is convenient to both parties that a servant should occupy aparticular house and that he is put in possession of it for that reasondoes not prevent the servant from being a tenant: his possession isthat of a tenant unless he is required to occupy the premises forthe better performance of his duties though his residence is notnecessary for that purpose or if his residence there be necessary forthe performance of his duties though not specifically required—per Brett J. 2 ”.
The learned Attorney-General pointed out that these observations weremade in a case in which the facts showed indubitably that the servantnot only paid rent for the house he occupied but had also the right tosub-let it. He contended that that passage must be read as applicableto the particular facts proved and relied, in support of it, on the followingwords of Brett J. in the judgment referred to in that passage—
‘J The result of these three cases seems to be this, that, where a personsituate like the respondent is permitted (allowed if so minded) to occupypremises by way of reward for his services or as part payment,his occupation is that of a tenant ”.
With reference to observations of a general character in a judgmentLord Halsbury said in Quin v. Leathern 3.—
“ Now before discussing the case of Allen v. Flood and what wasdecided therein, there are two observations of a general characterwhich I wish to make, and one is to repeat what I have very often saidbefore, that every judgment must be read as applicable to the particularfacts proved or assumed to be proved, since the generality of theexpressions which may be found there are not intended to be ex-positions of the whole law, but governed and qualified by the particularfacts of the case is which such expressions are found. The other is thata case is only an authority for what it actually decides. I entirelydeny that it can be quoted as a proposition that may seem to followlogically from it. Such a mode of reasoning assumes that the law isnecessarily a logical code, whereas every lawyer must acknowledge thatthe law is not always logical at all ”.
(1944) A. I. R. (P. C.) page 42 at page 45.
(1875) 10 C. P. page 285 at page 295.
(1901) House of Lords at page 506.
344JAYETILEKE J.—Selvanayakaitt Kangany v. Henderson, A.O.A., Kegnllam
Under both English and Roman-Dutch law no contract of letting andhiring is valid unless the sum to be paid as hire is fixed by the parties orin accordance with custom. (Vide Morice : English and Roman-DutchLaw,page 148). That being so, I think there is much force in the learnedAttorney-General’s submission that the observation of Lord Porter mustbe taken to apply to a ease where the servant pays rent in some form orother. This view has the support of the judgment in Dobson v. Jones1where Tindal C.J. said :—
“ We stated that the relation of landlord and tenant would not becreated by the appropriation of a certain house to an officer or servantas his residence, where such appropriation was made with a view,not to the remuneration of the occupier, but to the interest of theemployer, and to the more effectual performance of the service requiredfrom such officer or servant: upon the same principle as the coachmanwho is placed in rooms by his master over the Stable, the gardenerwho is put into a house in the garden, or the porter who occupies alodge at the parish gate, cannot be said to occupy as tenants, but asservants merely where possession and occupation is strictly and properlythat of the master. ”
In this case there is not a tittle of evidence that the accused paid any rentfor the rooms that he occupied or that he was permitted to occupy themas a reward for his services. He had no right to sub-let the premises orto make any profit from his occupation. If he was a tenant one would,at least, have expected him to say so when he gave evidence on his ownbehalf. If the test of probability is applied to the facts of this case Ithink there is every reason to suppose that the accused’s employer couldnever have intended that the accused should be a tenant, because, thoughthe relation of master and servant may be determined at any time, yet,if the accused happened to get a tenancy, he may defy his employer andrefuse to vacate the premises. It is impossible to infer the relationshipof landlord and tenant from the facts of this case and I think the properconclusion to be drawn is that the accused’s occupation of the two roomswas not as tenant. Even if his occupation must be taken to be that of atenant it seems to me that the presumption has been amply rebutted.In the case of manual labourers the character of the work which they haveto perform is, in general, work which requires their presence on theemployer’s premises. This is particularly so in tea estates where theleaf has to be plucked and manufactured daily, and on rubber estateswhere the trees have to be tapped and the latex coagulated and rolled intosheets daily. The work of labourers employed on tea and rubber estatesis of such a character that residence on the estate is essential for its per-formance. It is, presumably, for this reason that owners of tea andrubber estates expend large sums of money in constructing lines to housethe labourers. In this connection I may refer to the following observationsof Goddard L.C.J. in Bomford v. SoiUk Worcestershire Area AssessmentCommittee and Pershore Rural District Rating Authority 2.
(1844) S M. and G. p. 116 at p. 121.
2 (1946) 2 A. E. R-. at page 81.
JAYETLLEKE J.—JSelvanayakam Kangany v. Henderson, A.G.A., Keg alia.346
“ When I turn to the oaae as counsel for the respondent invited usto do, the first fact that is stated in the case is this :—
The appellant is a farmer and occupies two cottages for the accom-modation of agricultural workers employed by him on his land. Thecottages are not let to the agricultural workers who reside therein byvirtue of their employment.
They are therefore what are commonly called service tenants, but,in fact, must be regarded as in the position of licensees, because if theyleave the farmer’s employment they have to leave the cottages and canbe ej ected from the cottages. ’ ’
In my view the accused’s occupation was ancillary to the performance ofthe duties which he was engaged to perform. The second point takenby Mr. Perera was that Mr. Rajapakse was not in occupation of the tworooms. In Westminister Council v. Southern Railway Co. <fc W. H.Smith <Ss Son and Westminister Council and Kent Valuation Committee v.Southern Railway Co. and Puleman Car Co.1 Lord Russell of Killowensaid :
“ The general principle applicable to the cases where persons occupyparts of a larger hereditament seems to be that if the owner of thehereditament (being also in occupation by himself or his servants)retains to himself the general control over the occupied parts, theowner will be treated as being in rateable occupation ; f he retains tohimself no control, the occupiers of the various parts will be treated asin rateable occupation of those parts.”
It is true that these observations were made in a case in which the courthad to consider whether the occupation was by the owner or the person inactual occupation within the meaning of the rating statutes but I cannotdiscover any difference in principle between that case and this. Theevidence in this case shows that the previous owner had appropriatedto the use of the labourers the line-rooms on the estate. After the Crownacquired the estate the use to be made of the appropriated premises wassubject to the general control of Mr. Rajapakse. As I said before hereserved to himself the right to allocate the rooms as he wished. Thereservation of such a predominating right must necessarily prevent theoccupation of the rooms by the labourers to be exclusive. The onlyreasonable inference to be drawn from these facts is that Mr. Rajapaksewas in paramount occupation not only of the estate within whose confinesthe line-rooms are situate but also of the line rooms. He occupied thewhole estate for the purpose of his business of working it and for thepurpose of that business he retained the control of the lines. The labourershad no occupancy rights over the line rooms but only a licence to use them.Their occupation is merely that of servants and is in law the occupationof the master. (Vide—Dobson v. Jones 2 ; and Bertie v. Beaumont3.
The third point taken by Mr. Perera was that the intention of theaccused in remaining on the estate could not be said to annoyMr. Rajapakse. On this question one is not without assistance from the
1 (1936) A. C. page 511 at page 530.
(1844) 5 M and G. p. 116 at p. 121.
16 East at page 36 ; 101 E.R. at 1002.
346 JAYETLLEKE JT.—Selvanayaleam Kangany v. Henderson, A.O.A., Regalia.
reported eases. The cases are many in number. The effect of the caseswhich begin with Suppiah v. Ponniah1 in 1909 and continue in a streamto the present day is that ii the annoyance is the natural consequence of theaccused’s act and if he knows that it is the natural consequence thenthere is an intention to annoy. It is not necessary to refer in detail tothe cases. I refer to only two of them by way of example, AnthonyAppuhamy v. Wijetunga2 and Forbes v. Rengasamy3 where the factswere similar to the facts of the present case. In the former casede Kxetser J. said :
“ Foreknowledge that annoyance will result is good evidence of anintention to annoy. Knowledge of the possibility of annoyance isnot enough but if annoyance is the natural consequence of the act andthe person who does the act knows that that is the natural consequence,then there is the intention to annoy.”
In the latter case, Keuneman J. said :
“ In this case there is evidence to show that the accused was warnedthat he'must leave the estate on the expiration of the term of the noticeand that about the end or the middle of December, 1939, the accusedcame to the Superintendent and said that he had not been able toget employment elsewhere and that he could not go on January 2. Hewas informed that he must leave on that date. He was on severaloccasions warned that he must leave the estate but he refused to accepthis discharge certificate and he refused to leave the estate. Therefusal to accept the discharge certificate is significant as withoutit the accused cannot obtain work elsewhere. This tends to showthat the excuse made by the accused was not a genuine one. Theaccused has not given evidence in this case as to his intention in remain-ing on the estate. His conduct was calculated to cause annoyance,and, in fact, has done so. The Superintendent said that the accused’sattitude was one of defiance. In the circumstances the Magistratehas come to the conclusion that the accused continued to remain onthe estate with the intention of annoying the Superintendent, and Ithink the finding is justified. ”
In this case it would not take much to persuade me that the accused’sobject in remaining on the estate was to annoy Mr. Rajapakse. I mayalso add that in the two cases I have referred to almost all the questionsI have dealt with came up for consideration and the learned judgesdecided them in precisely the same way in which I have done.
Having carefully considered this case I am of opinion that the judgmentdelivered by the learned Magistrate was correct.
Finally Mr. Perera urged that the sentence passed on the accused wasundhly severe. On the facts of this case I am unable to say that it is.If a person deliberately and obstinately refuses to obey the law he is nomartyr, but a law breaker, and deserves no more than justice.
The appeal is, accordingly, dismissed.
Appeal dismissed.
> (1909) 4 Bal. 157.
(1938) 3 Ceylon Law Journal Reports, page 164.
(1940) 41 N. L..R. page 294.