[IN THE PRIVY COUNCIL]

1950 Present: Lord Normand, Lord Oaksey, Lord Reid,
Sir John Beaumont and The Chief Justice of Canada
(The Right Hon. T. Rinfret)

THE KING v. SELVANAYAGAM

Privy Council Appeal No. 38 of 1947

S. C. 941-M. C. Kegalla, 12,301

Criminal trespass-Ingredients of offence-Meaning of " occupation "-Different from " possession "-Unlawful entry-Does not become criminal merely because a foreseen consequence of such entry is annoyance to occupant-Nature of relevant intention-Penal Code, ss. 427, 433.

R, the superintendent of an estate which had been recently purchased by the Crown, was instructed by the Assistant Government Agent to give notice to quit to all the labourers on the estate. In accordance with these instructions R gave due notice to the accused terminating his employment as from 31st May, 1946. On that date the accused declined to leave the two rooms of which he was in occupation in the lines on the estate. He claimed that he and his ancestors had been in occupation of the rooms for 70 years and for that reason he declined to quit, since he had no other house to live in. He claimed the right to stay on the estate since for generations he and his family had lived there. He was convicted under section 433 of the Penal Code with having committed criminal trespass by unlawfully remaining in the two rooms of the estate with intent to annoy E. The Magistrate found that R was at the material time in occupation of the whole of the estate and all the buildings thereon; that the accused had occupied the two line-rooms not as a tenant but as a servant and that when his employment ended by notice to quit his subsequent remaining on the estate was unlawful; and that the facts proved warranted the conclusion that the intention of the accused by remaining on the estate was to cause annoyance to R since that would be the natural consequence of his action.

Held, (i) that section 427 of the Penal Code deals with occupation, which is a matter of fact, and not with possession, which may be actual or constructive and may involve matters of law. The section has no application where the fact of occupation is constant, the only change being in its character, as where a tenant holds over after the expiration of his tenancy.

(ii) that the only person in physical occupation of the two rooms at the material dates was the accused.

(iii) that there was no proof that the relationship between R and the accused was that of master and servant.

(iv) that, assuming that intention to annoy R was relevant, the dominant intention of the accused was to remain on the estate where he and his family had lived for generations and not to find himself homeless. Entry upon land made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent.

Suppaiya v. Ponniah (1909) 14 N. L. R. 475 overruled.

(v) that section 427 of the Penal Code does not make every trespass a criminal offence. The class of trespass which it contemplates is one calculated to cause a breach of the peace. The section was not intended to provide a cheap and expeditious method for enforcing a civil right.

APPEAL, by special leave, from a judgment of the Supreme Court.

 The judgment of the Supreme Court is reported in (2946) 47 N. L. R. 337.

J. D. Casswell, K.C., with Ralph Millner. and Rex Hermon, for the accused appellant.

Sir David Maxwell Fyfe, K.C., with J. G. Le Quesne, for the Crown.

 In the application for special leave to appeal.

D. N. Pritt, K.C., with R. K. Handoo