015-SLLR-SLLR-1981-1-SUMANADASA-v.-EDMUND.pdf
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Sumanadasa v. Edmund
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SUMANADASA
w.EDMUND
SUPREME COURT.
SAMARAKOON. C.J., ISMAIL. J. AND WAN ASUNDER A, J.S.C. 45/80-C.A. 14/76—C. R. COLOMBO 4571/ED.
MAY 4, 5.1981
Rant Act, No. 7 of 1972, taction 22 (11 (d}-Action for ejectment on ground thattenant or person reaiding with him has been convicted of using premites forIllegal purpose—Case records produced to establish comictions—Whether oral evidenceadmissible to relate such conviction to premises in suit—Evidence Ordinance, section91—Need to establish that tenant had taken advantage of tenancy to commitoffence—Burden of proof—Discretion of trial judge.
The plaintiff sued the tenant, the defendant, for ejectment from certain premises relyingon the provisions of section 22 (1) (d) of Rent Act, No. 7 of 1972, which provided forinstitution of such an action where “the tenant or any person residing or lodging withhim or being his sub-tenant has, in the opinion of the Court, been guilty of conductwhich is a nuisance to adjoining occupiers or has been convicted of using the premisesfor an immoral or illegal purpose". The plaintiff produced several case records where thedefendant's daughters and son-in-law had been convicted of offences in connectionwith possession of unlawfully manufactured liquor or possessing liquor in contraventionof the law; in all these cases the address of the accused persons was given as the premisesin suit. The scene of the offence was described in ail cases except one as "at Ward Place,Borellla, within the jurisdiction of this Court”. The plaintiff also led evidence tosupplement this material by showing that the offences had been committed on or aboutthe premises in suit.
It was submitted on behalf of the defendant in appeal that the plaintiff was confinedto the records in the aforesaid criminal cases and that section 91 of the EvidenceOrdinance precluded him from altering, amending or supplementing the record with anyother evidence, it was also submitted that it was not sufficient that there is a convictionfor a crime committed on the premises, but the plaintiff must show that the tenant hadtaken advantage of his tenancy and of the opportunity it afforded for committing theoffence.
Held
A plaintiff is entitled to lead oral evidence to establish the fact that a conviction wasrelated to the premises in respect of which the defendant's ejectment is sought in themanner required by law. There is nothing in the provisions of section 91 of the EvidenceOrdinance to prevent such evidence from being led.
Upon the evidence led in this case there was ample material for the Court to inferthat the convictions were associated with the premises in such a way as to constitute theuser of the premises for an illegal purpose. There was evidence that the inmates of thepremises had been prosecuted no less than in 20 cases; that the offences were committedin the premises and the close vicinity and were in respect of varying quantities of liquor.The offences covered a continuous period from 1870 to 1973 when this action wasfiled. The inmates of the premises who were the accused in such cases did not give
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evidence in the present case and the defendant herself made an attempt to show thatthese persons were not residing with her, but was disbelieved by the trial judge.
Cases referred to
R. v. Wall work. (1958) 42 Cr. App. R. 153.
Abrahams v. Wilson. (1971)2 All E.R. 1114; (1971)2 W.L.R. 923; (1971)2 Q.B. 88.
Schneiders & Sons Ltd. v. Abrahams, (1925) 1 K.B. 301; 132 L.T. 721; 41 T.L.R. 24.
Saris Appuhamy v. Ceylon Tea Plantations Co., Ltd., (1953) 55 N.L.R. 447.
Abraham Singho v. Ariyadasa, (1968) 71 N.L.R. 138.
Aslin Nona v. Don William, (1971) 75 N.L.R. 136.
Asiya Umma v. Kachi Mohideen, (1959) 61 N.L.R. 330.
APPEAL from a judgment of the Court of Appeal.
V. S. A. Pullenayagum with Fail Mustapha, Miss C. Abaytekera and Miss D. Wijesunderafor the substituted defendant-appellant.
H. L. de Silva, with W. Siriwardena, for the plaintiff-respondent.
Cur. adv. wit.
June 3.1981.
WANASUNDERA, J.
This is an action for ejectment filed by the plaintiff respondentagainst the defendant-appellant in respect of a monthly tenancyof premises No. 285/9, Ward Place, Colombo. The plaintiff ccmcto court relying on the provisions of section 22 {1) (d) of the RentAct, No. 7 of 1972, which allows the institution of an action forejectment where "the tenant or any person residing or lodgingwith him or being his sub-tenant has, in the opinion of the court,been guilty of conduct which is a nuisance to adjoining occupiersor has been convicted of using the premises for an immoral orillegal purpose". Incidentally the requirement of a conviction underthis limb (which existed in the Rent Act of 1948) was taken awayby Act No. 12 of 1966, but has now been reintroduced by thepresent Act. This matter does not affect the issues which are beforeus in this case.
The plaintiff produced in evidence the case records P3, P4, P5,P6, P7, P8, P9, and P10 of the Magistrate's Court, Colombo,where the defendant's daughters Leelawathie and Wimalawathie,and her son-in-law Victor Perera have been convicted of possessingunlawfully manufactured liquor orpossessingliquorincontraventionof the law. In all these cases, the address of the accused persons isgiven as No. 285/9, Ward Place, which are the premises relating tothis action. In all those cases the accused pleaded guilty to thecharges and ha'd been convicted and given a sentence. Except inone case (P6), where the venue is given as Maradana Road, Borella,which is also adjacent to the premises, in all the other cases the
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scene of offence is described as "at Ward Place, Borelia, within thejurisdiction of this court". The plaintiff has sought to supplementthis material by showing that these offences had been committedon or about the premises. S.l. Navaratnam of the Borelia Policehas stated that these accused were detected "in the house, atvarious places close to the house, and in the near vicinity". He hasalso mentioned two other instances where the accused were seengoing into the house with a plastic can and on another occasionthe accused had rushed out of the house with a bottle in his hand.
Mr. Pullenayegum for the appellant objected to P6, referred toabove and also to P10, because the record does not contain thecharge sheet. The report to court in this case shows that it was acase of possession of about 25 bottles of pot arrack. The accusedhad pleaded guilty to the charge and was sentenced to pay a fine.The court had ordered the destruction of the productions.
The first ground urged by Mr. Pullenayegum is that there is nolegally admisssible evidence to show that these offences werecommitted in or on the premises to satisfy the legal requirementof being convicted of using the premises. The records, he says,do not bear this out. Further, he relies on the provisions ofsection 91 of the Evidence Ordinance and has submitted that inlaw the plaintiff is confined to the records in the criminal casesand is precluded from altering, amending or supplementing thatrecord with any other evidence.
There would be merit in Mr. Pullenayegum's submission if thecriminal law prescribes that the exact spot where a crime iscommitted should be set out in the charge, on the basis that itconstitutes an ingredient of the offence. Our law certainly containsprovisions for the giving of particulars in regard to the time andplace of the alleged offence. This requirement is for the purpose ofgiving the accused reasonable information regarding the chargeagainst him and to indicate to court that the offence took place ina place or area within the territorial jurisdiction of the court. Inthe U.K. law, I find that there is no legal requirement that thelocation of the offence should be included in the particulars andaccordingly an indictment is not rendered invalid by an incorrectstatement about the venue. R. v. Wallwork (1); Abrahams v. Wilson
. The latter case shows clearly that the certificate of convictionmade no reference whatsover to the premises but nevertheless apolice witness was allowed to testify to the finding of cannabis .
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resin in one of the rooms occupied by the tenant. In fact Widgery,L. J. after referring to the test as laid down by Scrutton, L.J. inSchneiders & Sons Ltd. v. Abrahams (3) the leading case on thismatter, said—
'Taking that as the test, when one looks at the certificate ofconviction here, that certificate by itself is clearly not enough.It indicates a conviction for possession of cannabis, but in itselfit contains no kind of reference to the premises sufficient tobring the matter within case 2. In my judgment a plaintiff, facedwith such a situation, can and should lead evidence at the courtof trial to connect the certificate of conviction with case 2;in other words, to prove such facts as are necessary—if they canbe proved—which turn a conviction of itself unrelated to thepremises into a conviction adequately related to the premises,to satisfy Scrutton, L. J.'s test."
The words of Edmund Davies, L. J. are to the same effect. He
said:
“But l think that, in cases (such as the present) where
the user of the premises is the focal point of the claim topossession, evidence should be called as to what actuallytranspired in the criminal trial, so that the civil judge may knowwith precision the basis of the conviction "
In the case of the convictions produced in the case before us,the accused had pleaded guilty to the charges and no questionabout the venue of this offence has been raised. The fact that thecriminal law does not regard the exact spot where a crime has beencommitted as an ingredient of the offence or as an essentialparticular going to invalidate a conviction must be takenconjunctively with the fact that the case before us is a separatecivil proceeding and it is incumbent on the plaintiff to establishthose matters which constitute his cause of action. The use of thepremises for an illegal purpose is, as it were, the focal point of thisclaim for possession. This he must do by legally admissibleevidence, and I can see nothing in the provisions of section 91 ofthe Evidence Ordinance to prevent a plaintiff from leading oralevidence to establish the fact that a conviction was related to thepremises in respect of which the defendant's ejectment is soughtin the manner required by the law.
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It seems to me that Mr. Pullenayegum’s submissfon was anattempt to get round the formidable difficulties created by a seriesof decisions both of the U.K. and in our own country in regard tothis matter. I may first refer to Schneiders & Sons Ltd. v.Abrahams (supra).
Schneiders' case concerned.a somewhat corresponding provisionin a U.K. Rent Act. Under section 4 of the U.K. Rent and MortgageInterest Restrictions Act, 1923, no judgment for the recovery ofpossession of any dwelling house could be given unless the tenant"has been convicted of using the premises or allowing the premisesto be used for immoral or illegal purpose". The tenant wasconvicted by a court of summary jurisdiction of receiving at thepremises a roll of cloth valued at £ 5, well-knowing it to be stolen.It was argued that a conviction that would be relevant was aconviction which is recorded as a conviction for using the premisesfor immoral or illegal purposes. The offence of receiving stolengoods, it was submitted, is constituted independent of the placewhere the receiving took place.
The court rejected this narrow interpretation. The number ofcases in law of the type contemplated by the appellant would bevery small and even those few cases dealt with the "keeping" ofpremises for this or that immoral purpose and not with 'using'.Such an interpretation would have made the law almost totally
unworkable. A strong bench consisting of Bankes, II., Scrutton,
L. J. and Atkin, L. J. rejected the narrow interpretation contendedfor, and held that the relevant provisions did not require that theuser of the premises should be an essential element but that itwas sufficient if such use was an incidental circumstance of theoffence; but it must be proved that the tenant had takenadvantage of his tenancy and the opportunity it afforded forcommitting the offence. This case has been followed inAbrahams v. Wilson (supra).
On the local scene, Schneiders' case was followed by Rose, C.J.in Saris Appuhamy v. Ceylon Tea Plantations Co. Ltd. (4), and byWeeramantry, J., in Abraham Singho v. Ariyadasa (5), and inAslin Nona v. Don William (6). As against this line of authorities,Sinnetamby, J. in Asiya Umma v. Kachi Mohideen (7) adoptedthe narrow interpretation which was considered and rejected inSchneiders' case. It appears that Sinnetamby, J., reached thatconclusion apparently unaware of the earlier authorities.
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The point now raised by Mr. Pullenayegum, it appears, isimplicitly covered by those decisions. Mr. Pullenayegum impliedthat his present arguments founded on the provisions of section 91,Evidence Ordinance, renders the earlier authorities inapplicable.The provisions of section 91 are based on the well-known parolevidence rule of English law relating to the exclusiveness andconclusiveness of documentary evidence. These are thereforeparallel provisions. The Judges in the U.K., I am sure, were awareof these corresponding provisions when they decided those cases.Mr. Pullenayegum's argument goes counter to all these decisions.He has presented the very same arguments rejected in those casesin a new garb. For these reasons, his first submission thereforefails.
For Mr. Pullenayegum's second argument he has sought to takeadvantage of certain dicta in these very same cases. Mr.Pullenayegum's contention is that the case against his client is ofpossession of unlawfully manufacture liquor and the fact that ittook place on these premises was merely incidental and does notshow a use as such of these premises. Relying on those cases hesays that it is not enough that there is a convication of a crimecommitted on the premises, but it is necessary to show that thetenant had taken advantage of his tenancy and of the opportunityit afforded for committing the offence.
In Saris Appuhamy's case, the tenant was found in possessionof three gunny bags of manufactured tea dust and eight gunnybags of tea sweepings-offences under the Protection of ProduceOrdinance. The premises were a boutique. Rose, C. J., refused tointerfere with the finding of the trial Judge that the premises hadbeen made use of for storing goods reasonably suspected of beingstolen.
In Abraham Singho v. Ariyadasa (supra), a single conviction forthe sale of an excisable article was proved. Weeramantry, J. said:
"Consequently, I have little difficulty in holding in this casethat the conviction for the sale of arrack is a conviction ofusing the premises for an illegal purpose inasmuch as advantagehas been taken of the tenancy of the premises and of theopportunity they afforded for committing the offence. Such acase cannot be likened to a case of assault where the premisesmerely afforded the venue or the scene for commission of the
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offence. An illegal sale of arrack requires a measure of cover,and there is no doubt that the building has in this sense beentaken advantage of. I may add that in this view of the matter itwould make no difference to the decision in this case whetherthe law applicable be the original statute or the amending ActNo. 12 of 1966, for the premises have been used in the sense ofbeing taken advantage of and are not merely the fortuitousscene of commission of a crime."
Aslin Nona v. Don William's case (supra) involved a convictionfor possession of unlawfully manufactured arrack. Weeramantry,J. said that the landlord has not been ready with the requisiteproof of his allegation and the court was left with the evidence ofa conviction which was not too clear. He said that there was noevidence of the tenant taking advantage of the premises forcommitting the offence. He added—
"Unlike in the case of an illicit sale where the cover of
the building is made use of or taken advantage of for thepurpose of effecting the sale, the mere offence of possessiondoes not appear to involve taking advantage of the building assuch.”
If Weeramantry, J. by this statement meant that one act ofpossession cannot in any circumstances constitute a use of thepremises within the meaning of the section, then I think he hasdeclared the law a little too narrowly as we can gather from theU.K. decisions.
In Abraham v. Wilson (supra), the tenant had been convictedof possessing 66 grams of cannabis resin. No reference was madeto the premises in the certificate of conviction. There was theevidence of a police witness that he had found this drug under acupboard in one of the rooms. The tenant, while not denying thatthis was found in the premises, vehemently denied knowledge ofits existence. The tenant was convicted in the criminalproceedings; but in the proceedings under the Rent Act, the courtexercised its discretion against issuing an order for possession bythe landlord. The U. K. law contains an overriding provision thatno order for possession should be made by the court even whenthe required circumstances are established, unless the courtconsiders it reasonable to make the order. Widgery, L. J.observed—
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"Some kind of attempt was made by the landlady to
show that the cannabis in question has been found under acupboard in the demised premises. I am prepared, for presentpurposes, to assume that she proved that, although it is notaltogether clear to me that she did. One would then have toconsider whether a conviction for possession of cannabis,which was shown to have been cannabis located in such aposition, came within case 2. Applying Scrutton, L. J.'s test, theposition in regard to the finding of dangerous drugs on thedemised premises I think is simply this. If the drugs are on thedemised premises merely because the tenant is there and hasthem in his or her immediate custody, such as a pocket or ahandbag, then I would say without hesitation that that doesnot involve a 'using' of the premises in connection with theoffence. On the other hand, if the premises are employed as astorage place or hiding place for dangerous drugs, a convictionfor possession of such drugs, when the conviction is illuminatedby further evidence to show the manner in which the drugsthemselves were located, would I think be sufficient to satisfythe section and come within case 2."
Although Wiagery, L.J. ultimately declined to interfere with thediscretion of the trial Judge, his own view on the facts was thatthey were adequate to establish a user of the premises for an illegalpurpose. He said—
"Accordingly, I think on the evidence here, such as it was,the learned Judge might have been entitled to take a contraryview on the strict matter of law and to have concluded thatthere was here a conviction of 'using the dwelling-house' for anillegal purpose"
Edmund Davies, L.J. appears to have favoured even a broaderapplication of these principles. He said—
"Applying that test to the present case, I for my part wouldput it in this way. In proper and clear circumstances—whichmust be established, of course, by the landlord—a conviction ofusing premises for an illegal purpose, within the meaning of case2, can be established by proof that in the demised premises aquantity of cannabis resin was found. One must, however, lookat the circumstances very carefully before an isolated findingon a single occasion is held to constitute proof of such user."
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The situations mentioned in this case are not exhaustive of theinstances when the required inference can be drawn.
Turning now to the facts of the case before us, there is evidencethat the inmates of these premises have been prosecuted no lessthan in 20 of these cases. The offences were committed in thepremises and in the close vicinity. The quantities possessed rangefrom 4 or 5 drams to 25 bottles in P10. The offences cover acontinuous period from 1970 to 1973 till the present action wasfiled. The inmates of the premises, who were the accused in thesecases, did not choose to give evidence in the present case. Thedefendant made an attempt, in the face of overwhelming evidence,to show that these persons were not residing with her,' but she wasrightly disbelieved by the trial Judge. She however admitted thatthese persons were selling unlawfully manufactured arrack in thegarden which was common to a number of tenements, includingthis. She also said that she herself visited her house only once ortwice a week and did not know what took place there when shewas away.
upon this evidence, bearing always in mind that the burden laywith the plaintiff, there was ample material for an inference to bedrawn as to whether or not the convictions were associated withthe premises in such a way as to constitute a user of the premisesfor an illegal purpose. This Court will not interfere with thediscretion of a lower court if there is sufficient material to supportthat decision, although it could be said that another tribunal mayhave come to a different conclusion. We have on this matter theconcurrent findings of the trial Judge and of the Court of Appeal.I am unable to say that their decision is wrong or unreasonable.The appeal is therefore dismissed with costs.
SAMARAKOON, C.J.-I agree.ISMAIL, J.—I agree.
Appeal dismissed.