The Privy Council also held that the prosecution must prove (hat thereal or dominant intent of the entry was to commit an offence or to insultor intimidate or annoy the occupant. Also there must be proof that thetrespass is one calculated to cause a breach of the peace.
I shall first deal with the question of occupation. As laid down in thecase of Fernando v. Holloway (4), the question as to whether a personis in occupation of any particular premises is a question of fact anddepends on the circumstances of each particular case.-
In this case really both accused had vacated the house because theyhad left the house with all their belongings. They had handed all four keysof the house to Jeevananda Silva who was in charge.
Wille in the well-known book “Landlord and Tenant in South Africa”(1948 Edn.) at pages 253 and 254 states as follows:-
“A lease may be terminated at any time by the mutual agreementor consent of the parties. Being a novation, an agreement for prematurecancellation of a lease requires clear proof. There must be satisfactoryevidence of an unconditional offer by one of the parties to terminate thelease, and of a definite acceptance of the offer by the other party….
The Attorney-General v. Chandran and Another (V/ijeyaratne, J.)
The consent of the parties to a premature cancellation may beinferred from their conduct in treating the lease as being at an end, forinstance, the acceptance of the keys of the premises by the landlord’sagent."
The same principle in converse form was laid down by Sansoni J. inthe case of Abeywardane vs. Rev. Siri Nivasa (5) by which it was heldthat a landlord is not entitled to take possession of rented premisesunless the tenant has vacated them or surrendered ppssession of them.
in this case clearly disagreement had arisen between the two accused-respondents (wife and husband) and they had decided to hand over thepremises to the landlord's agent Jeevananda Silva. ThereuponJeevananda Silva took charge of the house and he became the occupier.
The learned Magistrate has misdirected himself-
by refering to the two accused as tenants when they re-enteredthe premises ;
by holding that Jeevananda Silva was not in "occupation”.
The tenancy was over when the two accused removed all theirbelongings, vacated the premises and handed over the keys by way ofsymbolic delivery of possession. They re-entered the premises astrespassers, without any lawful right.
Thereupon Jeevananda Silva as agent took charge and he came into“occupation” though he was not physically residing therein.
In this connection the case of Ukku Singho v. Andiris Silva (6) isalmost directly in point. In that case it was held that where the complainantkept the key of a certain room and used to visit the place to see that it wastidy, he was held to be in occupation of those premises. Then again in thecase of The Attorney-General v. Deonis (7), it was held by Middleton, J.that the word “occupation” does not by any means imply “residence". Thedecisions in Speldewinde v. Ward (8), Silva v. Silva (9), Chandrasekerav. Jayanathan, S.l. Police (10). and Nandoris v. Inspector of Police,Warakapola (11), also support this view.
Sri Lanka Law Reports
{1990] 1 Sri LR.
Jeevananda Silva in his evidence said that he was actually annoyedwhen he saw the 1 st accused inside the premises. Undoubtedly this typeof conduct is likely to cause a breach of the peace. Therefore theingredients of the charge have been proved beyond reasonable doubt.
For these reasons I set aside the order made by the learned Magistratedated 27.6.1978 acquitting the 1st accused-respondent.
On the evidence it is clear that the 1st accused had, during the periodbetween 15.9.1975 and 21.9.1975, entered into these premises in theoccupation of Jeevananda Silva with intent to annoy him and I thereforeconvict the 1st accused of the charge under section 434 of the PenalCode.
There is no evidence that the 2nd accused was seen on thesepremises between 15.9.1975. and 21.9.1975. The evidence establishedthat only the 1st accused was inside the premises and not the 2ndaccused. It may well be that the 2nd accused (husband) had also enteredinto these premises at the same time along with the 1st accused (wife).However the prosecution witnesses have not given evidence that the 2ndaccused was also there residing in the same premises at any time duringthis period.
I therefore convict the 1st accused of the charge under section 434.The order of acquittal in respect of the 2nd accused will stand.
The next question that arises is the question of sentence to be passedon the 1st accused. As this is a high handed act by the 1st accused, Isentence the 1 st accused to pay a line of Rs. 1,000/-, in default 3 months'rigorous imprisonment.
Order of acquittal of 1st accused set aside and conviction entered.