113-NLR-NLR-V-51-THE-KING-v.-SELVANAYAGAM.pdf
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The King t>. Seivanayogom
[Is tub Privy Council!
1950 Present: Lord Normand, Lord Oaksoy, Lord Reid,Sir John Beaumont and The Chief Justice of Canada(The Right Hon. T. Rinfret)THE KING v. 8KLVANAYAGAMPrivy Council Appeal Aro. 38 of 1947S. C. 941—M. C. Kegaltn, 12,391
Criminal trespass—Ingredients of offence—Meaning of 11 occupation r’—Differentfrom “ possession ”—Unlawful entry—Docs not become criminal merely becausea foreseen consequence of such entry is animyance to occupant—Mature ofrelevant intention—Penal Code, ss. 427, 423.•
K,the superintendent of tin estate which had been recently purchased bythe Crown, was instructed by thy Assist ant Chivormnout Agent to giye noiicoto quit to all the labourers on thy estate. In accordance with those instructionsli gave duo notice to tho uocuaoil terminating his employment as from HistMay, 1946. On that date the accused declined to leave tho two rooms ofwhich ho was in occupation in tho linos on tho estate. Ho claimed that hoand his ancostors had boon in occupation of the rooms for 70 years and forthat reason he declinod to quit, sinco ho had no other houso to live in. Heclaimed the right to stay on the estate ainco for generations ho and his familyhad lived there. He was convicted under section 433 of tho Penal Code withhaving committed criminal trespass by unlawfully remaining in the two roomsof the ostato with intent to annoy K. The Magistrate found that R was attho material time in occupation of tho whole of t.he estate and all the buildingsthereon ; that tho accused had occupied the two lino-rooms not as a tonantbut as a servant and that when his employment ended by notice to quit hissubsequent remaining on tho estate was unlawful ; and that the facts provodwarranted tho conclusion that tho intention of the accused by remaining onthe estate was to cause annoyance to U since that would be the naturalconsequence of his action.
Held, (i) that section 427 of tho Fonul Code duals with occupation, which isa matter of fact, and not with possession, which may bo actual or constructiveand may involve matters of law. The section has no application where thefact of occupation is constant, the only change being in its character, as wherea tonant holds over after tho expiration of his tenancy.
1 S. A. 1. R. (1938) C. P. D., 459.
1 5. A. L. R. (1943) C. P. D., 309.
SIR JOHN BEAUMONT—The King v. Selvanayagam
47!
that tho only poreon in physical occupation of the two rooms at thematerial dates was the accused.
that there was no proof that tho relationship between R and the accusedwas tiiat of master and sorvant.
that, assuming that intention to annoy R wos relevant, the dominantintention of tho accused was to remain on the estate whore ho and his familyhad lived for generations and not to find himself homoless. Eutiy upon landmade undor a boiux juit. cl<kim ol ri£>»r._ i…Wnv»r iinv»unu»»a i_ t.h© claimmay bo, does not l>ceouio criminal merely because n fornseen consoqueuee 01the entry is annoyance lo tho occupant-. – To establish criminal trespass thoprosecution must prove that the retd or dominant intent of the ontry wasto commit an offence or lo insult, intimidate or annoy tho occupant, and thatany claim of right was a more cloak to covor the real intent, or at- ony rateconstituted no mom than a subsidiary intent.
Suppaiya v. Ponniah (1909) 14 N. L. R. 475 ovorruled.
that section 427 of tho Penal Codo does not muko evory trespass na criminal oflbnco. Tho class of trespass which it contemplates is one calculatedto cuuse a broach of I.ho peace. Tho section was not intended to provide achoap and expeditious met hod for enforcing a civil right.
A
X3.PPE.AL, by special leave, from a judgment of the Supreme Court.
Tho judgment of the Supremo Court is reported in (1940) 47N. L. n. 337.
J. D. Caswell, K.C., with Ralph Millntr and Rex Ilvrmo-n, for thoaccused appellant.
Sir David Maxwell Fyfe, K.C., with J. 0. Le Quesne, for the Crown.
In tho application for special leave to appeal—
N. Pritt, K.C., with R. K. llandoo and C. E. L, Wkkremt'.singhe.,for the petitioner.
Frank Gahan, for the Crown.
Cur. adv. cult.
July 26,1950. [Delivered by Sm John Beaumont]—
This is an appeal by special leave from a judgment of the SupremeCourt of Coy I on dated tho 30th August, 1946, which dismissed thoappellant’s appeal against his conviction in tho Magistrate’s Court ofKegalla on a charge of criminal trespass punishable under section 433 ofthe Penal Code.
The facts on which the charge was based can be stated shortly. On .the 23rd April, 1945, the Government of Ceylon duly gave notice of itsintention to take possession of certain private lands, including theKnavosmire ostate, for village expansion pursuant to the Land AcquisitionOrdinance (Legislative Enactments of Coylon, 1936, Chapter 203). Onthe 26th November, 1945, the executive committee of the local adminis-tration directed the land officer of Knavesmiro to take possessionof the estate for and on behalf of His Majesty pursuant to section 12
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SIR JOHN BKAUMONT—The King r. ?rb*na>ja>j<un.
of the Ordinance, ;t;ul oil the Oth Decomber, 19-15, the land officer certifiedthat he had that day taken possession. of the said estate on behalf of HisMajesty. It in not- disputed that thereupon the cstato vested absolutelyin His Majesty free from all encumbrances.
The Government- continued for the time being to employ Clio labourforce then on the estate, the appellant boing a member o: such force.On the 3<Hlt January, 1940, D. R. M. Rajapakse was appointed by theGovernor to the post of superintendent of the Knavcsmiro estate, theterms of appointment homy stated in a letter dr ied the 20th June, 1946.addressed to him by tins Chief Secretary (Exhibit I 9). According to theevidence of Mr. Henderson, assistant government- agent of Kcgalla.
«rj;-.t the hearing cf this matter, the appointment, was made on hisrecommendation.
The object <.f the Government in acquiring the Knavcsmiro estate wasto place in possession of it s-dected landless residents from certain villageswho would work the estate on co-operative lines. According to theevidence of Mr. Henderson he sclocted 243 such tenants, and with a viewto providing them with work on the estate he instructed Mr. Rajapakse,the superintendent, to give notice to all the labourers on the estate asfrom the end of May. 1946. In accordance with these instructions Mr.Rajapakse on the 29th April, 1946. gave notice to the appellant (ExhibitJ). 1), terminating his employment ;>••< from 31st May, 1946, and directinghim to hand over to Rajapnkse the house which he occupied and to leave(lie estate on or before the 31st Mey, ?'?46. On that date the appellantaccepted his wages, but. refused to accept a discharge ticket tendered tohim, and declined to leave the premises in his cecupation.
According to the evidence of the appellant given at the hearing, whenthe estate was taken over by the Crown he and his wife and motheroccupied two rooms in the lines on the estate. His father and grandfatherhad occupied the rooms before him. His father had planted trees in thegarden plots in front and in rear of the rooms and the appellant and hisparents had enjoyed the produce- of the trees. The appellant claimedthat he and his ancestors had boon in occupation of the rooms for 70 yearsand for that reason lie declined to quit, since he had no other houseto live in. He claimed the right to stay on the estate since for generationsho and his family had lived there.
On the otli June, Mr. Henderson, the assistant government agent,made a report- to the Magistrate's court of Kcgalla s hat the appellant hadcommitted criminal trespass by unlawfully continuing to remain on theKnavcsmiro estate property of the Grown in the occupation of D. It. M.Rajapakse, superintendent of the said estate, with intent thereby to annoythe said Rajapakse, and thereby committed an offence punishable undersection 433 of the Penal Code, anti on the same day a summons wasissued to the appellant to answer to the said complaint.
The offence of criminal trespass is denned by sect ion -127 of the PenalCode in the following terms
i: Whoever cutters Lulu uv upon property in the occupation of another
with intent to commit an offence, or to intimidate, insult or annoy any
SIB JOHN BEAUMONT—The King v. Seivanayajam
•173
person in occupation of such property, or having lawfully enteredinto or upon such property unlawfully remains there with intentthereby to intimidate, insult or annoy any such person, or with intentto commit an offence, is said to commit ‘ criminal trespass V
At the trial the learned magistrate found that Kajapakso was at thematerial time in actual and physical occupation of the whole of theKnavcsinirc estate and all tho buildings thereon; that the appellant Joccupied two line rooms not as a tenant but as a »»»—' —c’*ia^ "'hen. .—tfioymemuuuouisji,v cjUsi auiy served on him his subsequent
remaining on the estate was unlawful; and that the facts proved warrantedthe conclusion that the intention of tho accused by remaining on the estatewas to cause annoyance to Kajapakso since that would be the naturalconsequence of his action. The accused was accordingly, on tho 28thof June, 1946, convicted and sentenced to two months' rigorousimprisonment.
An appeal against the conviction was lodged in the Supreme Court andwas heard on the 30th August, 1946, by Mr. Justice Juyetileke, Mho agreedwith tho conclusions of the learned magistrate and dismissed the appeal.
In order to establish the criminal trespass charged the Crown mustshow :—
that the occupation by the appellant of his two rooms after the
expiration on the 3lst May, 1946, of the notice to quit wasunlawful;
that Rajapakse was at- the date of the expiration of the notice
to quit in occupation of the Knavesmirc estate including therooms in which tTie appellant and his family lived : end
that tho intention of the appellant in refusing to surrender bis
two rooms was to annoy Rajapakse, there being no suggestionof an intention to commit, an offence or to intimidate or insult.
The evidence on record does not establish clearly the nature of theappellant’s occupation of his two rooms, sine© there is no evidence as tothe origin of such occupation, but their Lordships are in agreement withthe view expressed by Mr. Justice dayotileke in the Supreme Court, thattho effect of acquisition by the Crown of the Knnvesimre estate underthe Land Acquisition Ordinance, assuming the proceedings under theOrdinance to have been in order, was to wipe out any interest which theappellant may have had in any part of the estate. Their Lordships willtherefore assume that the occupation of the appellant was unlawful afterthe 31st May, 1946, and they will determine on that basis tho tworemaining questions whether Rajapakse was in occupation of the roomsin which the appellant lived, and, if so, whether the refusal of the appellantto give up such rooms was with intent to annoy Rajapakse.
Section 427 does not make every trespass a criminal offence. It isconfined to eases in which the trespass is committed with a particularintention and the intention specified indicates that the class of trespassto be brought within the criminal law is ono calculated to cause a broachof the peace. Their Lordships are satisfied that the section was not
474SIR JOHN BEAUMONT—The Kiny v. Selvanayuyam
intended to provide a cheap and expeditious method for enforcing a civilright. It is to be noted that the section deals with occupation, whichis a matter of fact, and not with possession, which may be actual or con-structive and may involve mattors of law. The lirst paragraph of thesection comes into operation when a trespasser enters land in the occupa-tion of another with the intent specified, and the second paragraph applieswhen the entry is lawful but becomes unlawful, c.g., when the entry ism:vde on the invitation of the occupier and there is a refusal to leave whenthe invitation is withdrawn. But in either case there must be an occupierwhoso occupation i& interfered with, and whom it is intended to in6ult,intimidate or annoy (unless the intent is to commit an offence). Thesection has no application where the fact of occupation is constant, theonly change being in its character, as where a tenant holds over after theexpiration of his tenancy.
In the present case according to the uncoutradictcd evidence the onlyperson in physical occupation of tho two rooms at the material dates wasthe appellant, who cannot have intended to anno}' himself. This difficultythe resjxmdent sought to overcome by alleging that the occupation bythe appellant of his two rooms was that of a servant and was in law,therefore, the occupation of the master, that after the acquisition ofthe Knavesmirc estate by the Crown and the re-employment of theappellant on the estate, the occupation of the appellant became that ofthe Crown, and that Rajapakso represented the Crown. Their Ixwdshipshave already indicated that in their view there is no satisfactory evidenceas to the character of the appellant’s occupation, but assuming it to havebeen that of a servant, thoir Lordships think it clear that Rajapakso wasnot tho master. The terms of his appointment in .Exhibit 1'. 9 do not definehis duties, but as already pointed out it was Mr. Henderson who securedhis appointment; it was Mr. Henderson who directed R.ijapakse to servethe notices to quit; and it was Mr. Henderson who selected the newtenants for the land. There is no evidence that Rajapakso had anypower to dismiss the appellant, or that he was under any obligation topay the appellant’s wages, or was in any sense his master, and in theirLordships’ opinion the Crown failed to prove that Rajapakso was the manin occupation of the estate, including the two rooms, at the material timo.If this be so an intention to annoy Rajapakso would be irrelevant, but intheir Lordships’ view the Crown also failed to prove the existence of suchan intention. It was suggested in argument that thero were concurrentfindings of fact as to the appellant’s intention, but intention, which is astate of mind, can never be proved as a fact; it can only be inferred fromfacts which are proved, it may well be that in doing a particular act'aman may have more intentions than one, and Sir David Maxwell Fyfe fortho respondent did not dispute that to bring a caso within section 427 thointention specified in the soction must be tho dominant intention. Theappellant when in the witness box was not asked whotlier he intended toannoy Rajapakso, nor wero any questions put to him to suggest that hewas on bad terms with Rajapakso, who was merely carrying out the ordersof his superiors. The courts in Ceylon thought that an intention to annoyRajapakae must be inferred becauso such annoyance would be the naturalconsequence oi the appellant’s refusal to quit, and that tho appellant must
Fernando v. Chandradaw
475
have appreciated this. Their Lordships are not prepared to hold thatthe appellant, in refusing to give up his two rooms, thereby no doubtincreasing the difficulties of the superintendent, intended to induoe, orcontemplated that ho would induce, in the mind of the superintendent anemotion so inappropriate to a Government officer and so unprofitable asannoyance j but even if the appellant did anticipate that Rajapakse wouldbe annoyed it is perfectly clear from his evidence that his dominant inten-tion was to remain on the estate where ho and his family had lived forgenerations and not to find himself homeless. Entry upon land, madeunder a bona jide claim of right, however ill-founded in law the claimmay be, does not become criminal merely because a foreseen consequenceof IK* entry is annoyance to the occupant-. To establish criminal trespassthe prosecution muc*- prove that the real or dominant intent of the ontrywas to commit an offence or to insult, intimidate or aiuwj tu© croo^paut,and that any claim of right was a mere cloak to cover the real intent, orat any rate constituted no more than ft subsidiary intent. Their Lordshipsare not in agreement with the contrary view which Mr. Justice WoodRenton seems to have entertained in Suppaiya v. Ponniah Theyprefer the view of Dalton A.C.J. in IFijeymanne v. Kandiak2. Thecase of Forbes v. Rengasamy 8 on which the courts in Ceylon relied isdistinguishable because in that case the accused did not give evidenceas to his real intention and the court thought that his conduct had beendefiant.
The appellant asked for costs against the Crown on the ground thatrecourse to the criminal law was entirely unwarranted. It is very rarofor their Lordships to allow costa in a criminal matter, and although theythink that in this case recourse to a criminal court was not justified, theapplication found some support in previous decisions of the Supreme Courtand was successful in two courts. In the circumstances their Lordshipswill adhore to their usual practice and make no order as to costs.
For the above reasons their Lordships will humbly advise His Majestythat this appeal be allowed and .the conviction and sentence upon theaocused passed by the magistrate of Kogalla on t-ho 28th of June, 1946,be set aside.
Appeal allowed.