Mr. Christian Spiess V. Mr. Job Oni (2016)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

Mr Job Oni was the complainant before a Kaduna State Chief Magistrates Court, holden at Makera, Kaduna State (trial Court). In his evidence he stated that he knew Mr. Christian Spiess, the accused/appellant, and that he used to work for CONDEM (the accused’s company) from time to time as a carpenter. The business of the company, he said, was that of making of satellite dishes sometime in 1999, the appellant was charged before the trial Court as follows:

“Count 1:-

That on or about the 18th day of July, 1999 at No. 8 Block 3, Gafai Street, behind Kaduna ile Limited, Kaduna, you commit (sic) criminal Trespass by entering into the above named premises, then in possession of Job Oni and dismantled a Satellite Dish then in possession of Job Oni, and thereby committed an offence punishable under Section 348 of the Penal Code.

Count 2

That you, on or about the 18th day of July, 1999 at No. 8 block 3 Gafai Street, behind Kaduna ile Limited, committed the theft of a Satellite Dish by taking it out of the possession of Job Oni and thereby committed an offence punishable under Section 287 of the Penal

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Code.

Appellant pleaded not guilty in each of the two counts. Evidence was taken by the trial Court. At the end of trial, the appellant was discharged and acquitted on count 2 of the charge on ground that the offence of theft was not proved against the appellant. The appellant was however found guilty of the 1st count charge of criminal trespass and was convicted and sentenced to three (3) months imprisonment or two thousand Naira (N2,000.00) fine in the alternative.

Appellant appealed to the Kaduna State High Court on the conviction and sentence handed down to him by the trial Court. After revising the whole case, the High Court exercising its appellate jurisdiction affirmed the conviction and sentence of the trial Court.

Dissatisfied further the appellant appealed to the Court of Appeal (Court below). The Court below dismissed the appeal.

Appellant finally lodged his appeal to this Court. He filed his Notice of Appeal which contained three grounds of appeal.

In this Court learned counsel for the parties filed their respective briefs of argument. Learned counsel for the appellant formulated the following sole issue for the determination of this Court:

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WHETHER THE COURT BELOW WAS IN ERROR IN HOLDING THAT THERE WERE CONCURRENT FINDINGS OF FACT AND THAT NO REASON WAS SHOWN BY THE APPELLANT TO DISTURB THE CONCURRENT FINDINGS OF FACTS. GROUND 1 AND 2.

It is to be noted that the appellant decided to abandon ground three (3) of his grounds of appeal and it is hereby struck out.

Learned counsel for the respondent formulated a similar issue but in different wordings, thus:

”Whether the learned Justices of the Court of Appeal were in error in their findings of fact that will attract the intervention of this Court in setting same aside.” (Grounds 1 and 2).

In his submissions on the issue under consideration, the learned counsel for the appellant stated, and I think I should quote him verbatim:

”4.2 In this appeal there was no dispute between the appellant and the respondent that the appellant entered the respondents compound to remove and removed the satellite dish which he genuinely believed was the property of his company.

Learned counsel further submitted that the trust of the evidence of the appellant and his three witnesses was that the satellite dish the appellant removed from the

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respondent’s compound, from the materials used in making the dish, belonged to the appellants company. The Learned counsel for the appellant stated that the appellant contended that his removal of the satellite, which he believed in good faith was the property of his company, was not criminal trespass but the trial magistrate and the High Court held that the appellant’s resort to self-help to retrieve the satellite dish from the respondents compound amounted to criminal trespass. Learned counsel went on to distinguish an issue of law from that of fact, citing the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491 412. Learned counsel stated further that the decisions of the trial magistrate and the High Court involved an (erroneous) application of the provisions of Section 342 of the Penal Code Law to the undisputed facts that the appellant in the bona fide belief that the Satellite Dish in the compound of the respondent was the property of his company, entered the respondents compound and removed the satellite dish. This, he said clearly falls under item (v) in the decision of this Court in Ogbechie v. Onochie (supra) thereby making it an

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issue of law. He submitted further that there was no finding by the two Courts on any disputed fact. Learned counsel argued that the only disputed fact in this case was the ownership of the satellite dish. The appellant claimed it as the property of his company and the respondent claimed it as his property. The learned trial magistrate, he said, refrained from making any finding on this disputed fact. The Court below, he submitted, was in error in holding that there were concurrent findings of facts by the trial magistrate and the High Court.

Learned counsel for the appellant argued that the grouse of the appellant with the judgments of the learned trial magistrate, the High Court and the Court below was that the ingredients of the offence of criminal trespass under Section 342 of the Penal Code Law were incomplete. That the mental element of the offence of criminal trespass was absent or lacking and that the Lower Courts were more concerned with the appellant’s resort to self help to remove his company’s property rather than his defence, that is to say, his bona fide claim of ownership of the satellite dish negatived the mental element of criminal trespass

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completely under Section 342 of the Penal Code. The Courts below, he submitted, did not appreciate the nature of the mental element required under Section 342 of the Penal Code Law. The mental element of the offence of criminal trespass is, according to the learned counsel, intent to commit an offence or to intimidate, insult or annoy. He buttressed his submission with foreign (Indian) authorities such as Gauri Shanker v. Delhi Administrator ILRI (1980) Delhi 1219; Smt. Mathri and Ors v. The State of Punjab (1964) 5 SCR 916. Learned counsel commended such cases to this Court and that a person with a BONA FIDE CLAIM OF RIGHT does not possess the mental element of the offence of criminal trespass since the aim, the dominant purpose of the action, is not annoyance, intimidation or insult but the assertion of that right over the property which in this case, was the retrieval of the satellite dish the property of the appellants company. Learned counsel again cited and relied on another Indian authority. Kunju Moideen Methram v. Kandan AIR 1959 Ker 146 (Indian Court of Criminal Appeal). Learned counsel for the appellant cited a decision of the

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Privy Council in SINVASAMY SELVANAYAGAM v. THE KING (1951) AC 83 at 87, 88. He faulted the Courts below in focusing on the appellants resort to self-help to retrieve his company’s satellite dish as a basis for convicting him. There is nothing in the provision of Section 342 which prohibits, deprecates or criminalises resort to self-help. He stated that resort to self-help is only deprecated in civil proceedings where the Court frowns at the use of self-help. He cited the case of Nwakire v. COP (1992) 5 NWLR (pt.241) 289 at 309. Learned counsel concluded that the findings of the that Magistrate Court affirmed by the Lower Courts were not supported by any evidence at all and are patently perverse or proceeded on a most erroneous interpretation of the provisions of Section 342 of the Penal Code and that this Court is entitled to interfere with the concurrent findings of the Court below. He cited the case of Ugwanyi v. Federal Republic of Nigeria (2012) 8 NWLR (pt 1302) 384 at 402. Learned counsel for the appellant urged this Court to allow the appeal, set aside or even reverse the Judgment of the Court below and enter a verdict discharging and acquitting the

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appellant of criminal trespass.

Making his submissions on the lone issue, learned counsel for the respondent stated that the findings of the trial magistrate were based of credible evidence and were not perverse. He cited several cases in support; Olley v. Tunji (2013) All FWLR (pt. 687) at p. 625 Oguno v. State (2013) All FWLR (Pt. 690) 1291 at 1314 1315. He stated that the true action of the appellant by resorting to self-help and trespass were contrary to Section 342 of the Penal Code under which the appellant was convicted. Criminal trespass, he further argued, could cover both movable and immovable property such as motor cars as well as land and annoyance cold be taken to mean annoyance which would reasonably affect an ordinary person. He submitted that the appellants going back to respondent’s compound was to annoy and or intimidate the respondent in a bid to exercise his bona fide claim of right in the premises of the respondent. Learned counsel for the respondent urged this Court to dismiss the appeal as lacking in substance and affirm the decision of the Court of Appeal.

My noble lords, the sole issue raised by both parties before this

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Court is whether there were concurrent findings of fact by the Courts below which would require no interference by this Court. I think for me to answer this question in line with my understanding my lords, I need to breakdown the issue into three fold: (a) was there really a criminal trespass on the property of the respondent (b) Did the appellant resort to self-help in a bid to recover the said satellite dish (c) was there any defence to negative appellants criminal intention

The spring board upon which I base my discussion is Section 342 of the Penal Code Law, Cap 89, Laws of Northern Nigeria, 1963, (a 1982 re print (applicable to Northern States including Kaduna State) per Rahidson, S. S. (1986) Notes on the Penal Code, ABU University Press, Zaria first page of the Preface:-

`342. Whoever enters into or upon property in the possession of another with INTENT to commit an offence OR to INTIMDATE INSULT OR ANNOY any person IN POSSESSION of such property or, having lawfully entered into or upon such property, unlawfully remains there with INTENT thereby to INTIMIDATE, INSULT OR ANNOY such person or with INTENT to commit an offence, is said to

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commit CRIMINAL TRESPASS.”

The ingredients for proving criminal trespass are as follows:

a) unlawful entry into or upon a property in the possession of another, or unlawfully remaining there

b) an Intention to commit an offence, or, to Intimidate, insult or annoy the person in possession of the property.

The necessary intendment of the two ingredients as above presupposes that:

i. there must be an actual entry by the person interested (the appellant in this appeal) as constructive entry by a servant, for instance, acting on the orders of his master is not an entry, within the meaning of the Section.

ii. the use of force is not necessary

iii. the entry and or, remaining on the property must be unlawful

iv. the existence of a BONA FIDE claim of right ordinarily excludes the presumption of criminal intention. However a person may attempt to enforce his right in a wrong way, e.g. by using unnecessary force of intending to wrongfully restrain the person in possession.

v. the Section covers both movable and immovable property. For Instance, there can be a criminal trespass to a motor car as well as to land.

vi. the possession is clearly intended to be possession at the

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time of entry and it does not imply that the person in possession must be present at the actual time of the entry (as was the situation in this appeal when appellant illegally entered respondents compound while the respondent was away to a church service).

vii. the Section does not protect a trespasser in possession as against a party lawfully entitled to possession. It is worthy of note that the party lawfully entitled to possession has a right to private defence of his property (Section 60 of the Penal Code Law)

viii. the word “annoy” as used in the Section should be taken to mean annoyance which would reasonably affect an ordinary person, not what would specially and exclusively annoy a particular individual.

My noble lords, from the beginning of my summation of submissions of the learned counsel for the respective parties. I quoted the learned counsel for the appellant from his brief of argument, Paragraph 4.2, that there was no dispute between the appellant and the respondent that the appellant entered the respondents compound to remove and did indeed remove the satellite dish in contention.

It was the finding of the learned trial magistrate as

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well that:

”The accused as I have said earlier admitted that he went to complainant’s house twice The first entry to my mind was not criminal because (DW1) went to discuss some technical details with the carpenter, i.e. the complainant when he saw the satellite which he believe (sic) was his companys dish.

The second entry was criminal because he (DW1) went to remove the said dish without the consent of the complainant who was then in possession. Possession no matter how slightest (sic) entitles he complainant to maintain an action for trespass. The second entry of the accused into the complainant’s compound therefore was to comit(sic) an offence by using self-help to remove the satellite dish and thereby annoyed the complainant who was then in possession. I therefore found the accused guilty of the offence of criminal trespass as charge (sic) and I accordingly convict him for the offence.

Possession in land matters, even ordinarily is the backbone against all other claims to land if not accentuated by the owner of the land who has a better title. In ordinary civil trespass, this Court in the case of Ogunbiyi v. Adewunmi (1988) 3 NSCC 268, had cause

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to re-iterate that:

“Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon the land in possession of another. Also trespass is actionable at the suit of the person in possession of the land who can claim damages or injunction or both.

How much more of a criminal trespass There is a finding also by the learned trial magistrate that the 2nd entry by the appellant was criminal with a view to committing an offence to wit: to remove the satellite dish without the respondent’s consent who was then in possession. Further, it was the learned magistrate’s finding that the resort to self-help by the appellant annoyed the respondent in possession. This is what was affirmed by both the High Court and the Court below. It is thus, concurrent findings of fact. Although intention is not a mere matter of fact, as it is a state of mind, but it can be inferred from facts which have been proved. Both entry into the land in possession of the respondent and the unlawful removal of his satellite dish by the appellant must, necessarily, attract the inference that the respondent was insulted and annoyed and this certainty is likely to

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annoy/insult an ordinary man. In order to establish criminal trespass, the prosecution (in this appeal the complainant must prove 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. See the Privy council’s case of Sinnasamy Salvanavagam v. The King (supra). There was thus, an unlawful or illegal entry into or upon a compound (land) which was in the possession of the respondent.

Secondly, did the appellant resort to self-help in a bid to recover the said satellite The submission of the learned counsel for the appellant is that the appellant contended that his removal of the satellite dish which he believed in good faith was the property of his company was not criminal trespass. He argued that such issue is an issue of law and not fact. He faulted the decisions of the trial Magistrate and the High Court as they erroneously applied the provisions of Section 342 of the Penal Code Law to the undisputed facts that the appellant in the bona fide belief that the satellite dish in the compound of the respondent, was the properly of

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his company, entered the respondents compound and removed the satellite dish. Permit me and bear with me my lords to review the evidence in chief and the cross-examinations of both the appellant and the respondent. The appellant was the defence witness No. 1 (Dw1) before the trial magistrate. He testified among others as follows:-“My names are Christian Spiees. I am the Managing Director of COMDEM NIGERIA LIMITED. I am a German Nationale .COMDEM NIGERIA LIMITED is the manufacturer of satellite Antennas at Karfage Street, Kakuri Kaduna. I intended to travel to Germany, I realised that I have to discuss some technical details with the carpenter Job Oni, the complainant. My driver droved (sic) me to his house and I entered the always open compound … when I entered I saw a satellite Antenna which was a COMDEM SATELLITE i.e. our company from the design and material. I asked the tenant how the satellite came to this compound and they told me that it was brought in with wheel barrow. I went to our workshop which is in the instant neighbourhood from Job Oni compound. In the workshop I was informed that Mr. Job Oni has carried out from the workshop all accessories

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which are require(sic) for the Satellite Antenna and the Satellite itself was carried on a wheel barrow … I checked our store and discovered that material for the manufacture of three satellite Anterna(sic) has been missing. I went back to Mr. Job Onis compound together with two staff of our company and on arrival I met Mr. Simon Ogah who is a satellite installer in our employment our staff I went with me(sic) one Joshua and Chidi. I asked Simon Ogah who told me that he was called to install satellite Antenna by Job Oni. Mr Simon Ogah had with him a Feed and Scalar Ring in which Mr. Job Oni call (sic) the Upper Satellite A.N.B. This Feed and Scalar Ring are manufactured in cast aluminium to our own design and they are no where for sale as they are for our company COMDEM NIGERIA LIMITED… From our list the satellite dish is our own. There is no satellite dish in the world having the same design data. I reported the matter to our foreman Friday Hitler who was absent but I discovered in Fridays Hitler compound two more satellite dishes stolen from our company.

I reported to the DPO Kakuri Police Station that within the last two years materials

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corresponding to the manufacture of about 30 Satellite Antennas were missing. The Police in their investigation linked Mr. Rasaki to the stealing of all the materials who was our staff. Mr. Rasaki was claimed to have manufacture(sic) the Satellite Dish for Mr. Job Oni. Mr. Rasaki pleaded with me that it was not him but it was the devil who made him to steal the material and he was dismissed.

The material on Exhibit 1 did not correspond with the material used in the making of a satellite. The name of the company an Exhibit I is not known in penteka. The company on Exhibit 1A is in Kakuri Market and the items are not available in Kakuri Market.”

While on cross examination, the appellant stated, inter alia:

“There is no contract agreement between my company and the complainant. It is correct that I removed the Satellite dish from the complainant’s home. It is correct that COMDEM is not the only Satellite dish manufacturer in Kaduna State. There are technicians who can manufacture Satellite dish like the one in Court in Kaduna. It is true I met some people in the compound. They did not tell me that the Satellite dish belong to Job Oni. I am not the one who put the

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Satellite dish at Job Oni’s compound. I instructed two of my staff to take it out after verification. It is correct that I did not report to the Police before removing the satellite dish to my company. It was when I arrived at the complainant’s compound that I was told that the satellite dish was taken there in a wheel barrow. I did not discovered (sic) that the satellite dish is missing until I saw it at the complainants premises. Rasaki, Simon Ogah and Friday were not prosecuted in any count. This dish is not fully identical to my dish my dish have(sic) 13 brackets which Exhibit 5 has 14 brackets. It is correct that you cannot get the satellite dish from the entrance unless you get to the compound. My initial intention was to go and meet the complainant and not to carry the satellite dish. COMDEM own the satellite dish. COMDEM print (sic) names on its dishes. No COMDEM on Exhibit 5. I am aware that the police search (sic) the complainant’s house while investigating my report. I am aware that nothing belongs to me was found at the complainants house and his decoder was returned to him. The people who told me that the dish was moved with a wheel

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barrow did not told (sic) me that they saw the complainant moving it. I did not have patent right.”

Earlier on the respondent as complainant at the trial Magistrate Court testified to the effect that inter alia:

“My names are Job Oni. I am a carpenter. I know the accused. Before I used to work for him. On 18/7/99, it was a Sunday, I went to Church and when I came back from the church I was told that Mr. Spiess the accused came to my house and go(sic) away with my dish i.e. satellite dish. I then went to the accused and he said the satellite dish belongs to him. But the said satellite dish belongs to me because I bought a Galvanize Iron and 3 quarter pipes black and somebody made the satellite dish for me. From the items I bought, when I bought the items I was issued with a receipt. I can recognize the receipt one at Panteka and one is at Kakuri here. My name is on the receipt…The satellite dish is in Court by an Order of this Court. That was in my store before it was removed by the accused.”(underlining for emphasis)

On cross-examination the respondent stated, inter alia:

”I worked for Condem the accused company from time to time. The accused works for that

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company. The business of the company is the making of satellite dishes. The accused tought(sic) that the satellite dish belongs to condem. The name of the company CANDEM is not my complaint…”

Other witnesses gave evidence and were cross-examined. At the end of evidence, the learned trial magistrate made the following finding:

It is clear that the satellite dish the subject matter of this complaint was in possession of the complainant before it was trespassed upon. It is the law that where the plaintiff has established that he is in possession, it is necessary to make an order to protect the possession in him See. Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt 146) 592 – 593 Even though, title is not in issue before this Court, I want to state by way of reference what the Supreme Court said in this regard in OTUAHA v. OBINSEKA II (1983) SC 1 that the fact that the claim for title fails does not mean that the claim for trespass and injunction must fail.”(underlining for emphasis)

Both the High Court and the Court below affirmed that finding of fact and the position of the law stated by the learned trial magistrate. The High Court in its reasoning process stated,

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among others:

”The action of the appellant to re-enter the premises of the complainant 2nd time was ill-motivated. The appellant formed what would be regarded unlawful means to do illegal act. It is apparent that the appellant took his own unilateral decision to resort to self help. He had formed in his mind the mental elements to forcefully enter the premises and removed out the same object i.e. the satellite dish. Indeed, the action of the appellant combined mens rea and actus reus to materialize what he intended to do. We are convinced from the evidence before us that the appellant committed criminal trespass and was rightly convicted and sentenced for that same offence.

We are in agreement with the submission made by the learned counsel for the respondent to the effect that there was finding of trial magistrate on to what kind of entry. The 2nd appellant entry was done without consent of complainant who was then in possession.”

The Court below, in affirming the Magistrates Court and the High Court decisions stated, per Ariwoola, JCA (as he then was) as follows:

“In the instant case, I have no reason to disturb the finding of facts of the trial Court which

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was affirmed by the High Court in its appellate Jurisdiction. The appellant has failed to show that the findings of facts by the two Courts below, a miscarriage of Justice has occasioned.

On the issue of self-help resorted to by the appellant the learned trial magistrate made the following finding:

”The 2nd entry of the accused into the complainants compound therefore was to commit an offence by using self-help to remove the satellite dish and thereby annoyed the complainant who was then in possession.”

In his brief of argument the learned counsel for the appellant submitted (Paragraph 4.26) the Court’s below were clearly in error in focusing on the appellants resort to self-help to retrieve his company’s satellite dish as a basis for convicting him. He argued further that there is nothing in the provision of Section 342 which prohibits, deprecates or criminalizes resort to self-help. This is only deprecated in civil proceedings where the Court frowns at the use of self-help. He cited the case of Nwakire v. COP (1992) 5 NWLR (Pt. 241) 289 at 309.

I think I should approach this issue firstly by considering the defence said to have been placed

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(through evidence) by the appellant – BONA FIDE CLAIM OF RIGHT. The phrase is an amalgam of the Latin and English languages. In Latin anything ‘BONA FIDE’ connotes ‘good faith’. Thus, for a claim of right to qualify a bona fide claim of right, it must be made in good faith, without fraud or deceit. It must be sincere and genuine (Black’s Law Dictionary 8th ed).

It is clear as found by the Lower Courts that, that claim was not established by the appellant. It was his duty now to establish that claim before the trial Magistrate. The trial Magistrate, however, found that it was the respondent who established that he was in possession of the satellite dish and that by decided authorities his possession had to be protected. The appellant having failed to discharge the onus on him on his claim of right to the satellite dish and the respondent having rightly been found in possession of the disputed satellite dish by the learned trial magistrate, he is presumed in law to hold better title against the appellant. The bona fide claim of right cannot therefore succeed to defeat or negative appellants intention to annoy the respondent. See: Ogunbiyi v. Adewunmi

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(1988) 5 NWLR (Pt. 93) 315: Da Costa v. Ikomi (1968) 1 All NLR 394.

I think it needs further clarification that the principle of Criminal Liability (mens rea) in each offence is separate distinct and independent of any other offence. The mens rea in the offence of theft is different from that of criminal trespass. Where the trial judge or magistrate fails to read mens rea in an offence of theft, that does not mean that he cannot find mens rea in the offence of criminal trespass. This is what happened in the present appeal. The appellant was discharged and acquitted on the offence of theft whereas he was found guilty by the learned trial magistrate of the offence of criminal trespass. Thus, lack of mens rea in one offence cannot with all due respect, defeat mens rea in the other offence. Certainly, the two offences of theft and criminal trespass are two different offences created by the Penal Code Law.The bona fide claim of right in this case must therefore fail.

The other thorny issue is that of resort to self-help. I concede that there is no relevant provision from the Penal Code Law which punishes self-help. But conversely there are provisions which allow

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complainant to resort to private defence and or defence of property. This is punished by Sections 59 and 60 of the Penal Code. The Sections provide thus:

”59. Nothing is an offence which is done in the lawful exercise of the right of private defence.

60. Every person has a right, subject to the restrictions hereinafter contained, to defend.

a) his own body and the body of any other person against any offence affecting the human body.

b) the property whether movable or immovable of himself or of any other person against any act, mischief, or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.”

Such self defence or defence of property would have been resorted to, especially under Section 60(b), by the respondent if he were around in the premises. That would have yielded an ugly result. Thus, although resort to self-help has been left to go unpunished it is an open invitation to resort to conflict, violence and perhaps blood-shedding. That would be animalistic in any civilized society. The case of Nwakire v. COP (1992) 5 NWLR (Pt 241) 289, cannot be relied upon even by this Court to say that it encourages resort

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to self-help which may likely resort in violence. In Nwakire v. COP (Supra) facts giving rise to the case were that the appellant and the complainant had conflicting claims to ownership of a piece or parcel of land situate at Nnewi, in Anambra State. To drive home his claim to the land, the appellant in 1979 filed a claim in the High Court for trespass and injunction against the complainant. In 1981, during the pendency of the suit, the complainant went upon the land and installed some electric poles and fluorescent lights for purposes of a funeral ceremony. After the ceremony the complainant refused to remove the poles and the tights despite demands by the appellant. In June, 1982, ten months after their erection, the appellant went upon the land and removed and destroyed the poles. As a result, he was charged at the Magistrates Court on two counts of unlawfully conducting himself in a manner likely to cause a breach of the peace and also wilfull and unlawful damage of the four electric poles and four fluorescent lights property of the complainant one Albert Ano Urili. The appellant was tried and convicted. The conviction was affirmed by both the High

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Court and by a split decision by the Court of Appeal. On further appeal to this Court, the appeal was allowed on the principle of bona fide claim of right pursuant to Section 23 of the Criminal Code of Eastern Nigeria, applicable in Anambra State.

In the Salvanayagam v. The King (supra), facts contained in the judgment of the Judicial Committee of the Privy Council, show that:

”On April 23, 1945 the Government of Ceylon duly gave notice of its intention to take possession of certain private lands, including the Knavestmire estate, for village expansion pursuant to the Land Acquisition Ordinance (Legislative Enactment of Ceylon, 1938, c. 203). On November 26, 1945, the executive committee of the local administration directed the land officer of Knavesmire to take possession of the estate for and on behalf of His Majesty pursuant to S. 12 of the Ordinance, and on December 6, 1945, the land officer certified that he had that day taken possession of the estate on behalf of His Majesty. It was not disputed that thereupon the estate vested absolutely in His Majesty free from all encumbrances. The Government continued for the time being to employ the labour force then

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on the estate, the appellant being a member of that force. On January 30, 1916. D.R.M Rajapakse was appointed by the Governor to the post of superintendant of the Knavesmire estate, the terns of appointment being stated in a letter dated June 26, 1946, addressed to him by the Chief Secretary (Exh. P.9) According to the evidence of one Hendersan, Assistant government agent of Kegalla, given at the hearing of this matter, the appointment was made on his recommendation.

The object of the Government in acquiring the Knavesmire estate was to place in possession of it selected landless residents from certain villages who would work the estate on co-operative lines. According to the evidence of Henderson, he selected 243 such tenants, and with a view to providing them with work on the estate he instructed Rajapkse, the superintendant, to give notice to all the labourers on the estate as from the end of May, 1946. In accordance with those instructions Rajapakse, on April 29, 1946, gave notice tothe appellant (Exh D1) terminating his employment as from May 31, 1946, and directing him to hand over to Rajapakse the house which he occupied and to leave the estate on or

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before May 31, 1946. On that date the appellant accepted his wages, but refused to accept a discharge ticket tendered to him, and declined to leave the premises in his occupation. According to the evidence of the appellant given at the hearing, when the estate was taken over by the Crown he and his wife and mother occupied two rooms in the lines on the estate. His father and grandfather had occupied the rooms before him. His father had planted trees in the garden plots in front and in rear of the rooms and the appellant and his parents had enjoyed the produce of the trees. The appellant claimed that he and his ancestors had been in occupation of the rooms for seventy 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.

On June 5, Henderson, the assistant government agent, made a report to the Magistrates Court of Kegalia that the appellant had committed criminal trespass by unlawfully continuing to remain on the Knavesmire estate, properly of the Crown in the occupation of D.R.M. Rajapakse, superintendant of the said estate, with

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intent thereby to annoy Rajapakse, and thereby committed an offence punishable under S. 433 of the Penal Code and on the same day a summons was issued to the appellant to answer to the complaint.

At the trial the magistrate found that Rajapakse was at the material time in actual and physical occupation of the whole of the Knavesmire estate and all the buildings thereon; that the appellant had occupied two lines rooms not as a tenant but as a servant, and that when his employment ended by notice to quit duly served on him 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 Rajapakse, since that would be the natural consequence of his action the appellant was accordingly, on June 28, 1946, convicted and sentenced to two months rigorous imprisonment.

An appeal against the conviction was lodged in the Supreme Court and was heard on August 30, 1946, by Jayetileke J., who agreed with the conclusions of the magistrate and dismissed the appeal.

On further appeal, the Judicial Committee of the Privy Council allowed the appeal, set

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aside the conviction and sentence passed by the magistrate on the accused/appellant.”

The case of Nwakire v. COP (supra) and the case of Salvamayagam v. The King (supra), are from the facts and antecedents, quite dissimilar and distinguishable from this appeal.

Distinguishing features

In Nwakire’s case:

i. there were conflicting claims to ownership of a piece or parcel of land situate at Nnewi in Anambra State.

ii. the appellant had filed a claim in the High Court for trespass and Injunction against the complainant.

iii. during pendency of the suit complainant went upon the land and installed some electric poles and fluorescent lights for purposes of funeral ceremony.

iv. After the ceremony complainant refused to remove the poles and the lights despite demands by the appellant

v. After ten months of erection, appellant went upon the land and removed and destroyed the poles.

vi. The accused/appellant raised the defence of bona fide claim of right pursuant to Section 23 of the Criminal Code of Eastern Nigeria, applicable in Anambra State.

In Salvanayagam’s case

i. The Government of Ceylon gave notice of its intention to take possession of certain private

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lands pursuant to the Land Acquisition Ordinance of Ceylon, 1938 and it indeed did take possession of the estate for and on behalf of His Majesty.

ii. The estate vested, undisputably, thereupon, absolutely in His Majesty free from all encumbrances.

iii. The Government continued to employ for the time being labour force on the estate, the appellant being a member of that force.

iv. 243 of such tenants were provided with work on the estate

v. Notice was given to all the labourers on the estate effective from end of May, 1946.

vi. On April 29, 1946 appellant was given notice (Exh. D1) terminating his employment as from May 31, 1946 and directing him to hand over the house which he occupied and to leave the estate on or before May 31, 1946.

vii. The appellant on that date, accepted his wages but refused to accept a discharge ticket tendered to him and declined to leave the premises in his occupation.

viii. Appellants evidence at the hearing was that when the estate was taken over by the Crown he and his wife and mother occupied two rooms in the lines of the estate. His father and grandfather had occupied the rooms before him.

ix. His father had planted trees in the garden

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plots in front and in rear of the rooms and the appellant and his parents had enjoyed the produce of the trees.

x. The appellant claimed that he and his ancestors had been in occupation of the rooms for seventy 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.

xi. Mr. Henderson, the Assistant Government Agent, made a report to the Magistrates Court of Kegalla that the appellant had committed criminal trespass by unlawfully continuing to remain on the Knavesmire estate, property of the Crown in the occupation of D.R.M. Rajapakse, superintendant of the said estate with intent thereby to annoy Rajapakse and thereby committed an offence punishable under S.433 of the Ceylon Penal Code.

xii. After trial, the appellant was found guilty and was convicted and sentenced to two months rigorous imprisonment.

xiii. An appeal to Ceylon Supreme Court was dismissed, affirming the magistrates decision.

xiv. The Privy Counsel on further appeal, set aside the conviction and sentence.

From the above points, one can clearly see that all

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the facts in the two cases differ fundamentally from the present appeal in which there was no conflicting claims to the land/compound upon which the complainant was lawfully residing. The appellant, thus, had no authority to trespass upon the said compound. It was the finding of the trial magistrate that the complainant had a better title to the satellite dish and the second entry of the appellant was to annoy, insult or intimidate the respondent.

In interpreting the provision of Section 427 of the Ceylon Penal Code the Judicial Committee of the Privy Council stated:

”Section 427 does not make every trespass a criminal offence. It is confined to cases in which the trespass is committed with a particular intention and the intention specified indicates that the class of trespass to be brought within the criminal law is one calculated to cause a breach of the peace. Their Lordships are satisfied that the Section was not intended to provide a cheap and expeditious method for enforcing a civil right. It is to be noted that the Section deals with occupation, which is a natter at fact and not with possession which may be actual or constructive and may involve matters

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of law. The first paragraph of the section comes into operation when a trespasser enters land in the occupation of another with the intent specified and the second paragraph applies when entry is lawful but becomes unlawful, e.g. when the entry is made on the invitation of the occupier and there is a refusal to leave when the invitation is withdrawn. But, in either case, there must be an occupier whose occupation is interfered with and whom it is intended to insult, intimidate or annoy.

The ingredients set out earlier for the commission of criminal trespass stipulated by Section 342 of the Penal Code Law as found by the trial magistrate and affirmed by the two Lower Courts were sufficient to pin the appellant down to answer for the offence of illegal entry upon land with the motive of a illegally dismantling and removing of a satellite dish which belonged to the complainant.

Granted, even for the sake of argument that the element of resort to self-help and the defence of bona fide claim of right succeeded, that would not be enough to disturb the judgment of the learned trial magistrate as he made a concrete finding that the appellant committed criminal

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trespass by his second entry into and or upon the compound of the respondent. For this alone the appellant must remain liable as convicted and sentenced by the trial magistrate.

My noble lords Law is meant to provide peace, security, protection concord and purposeful co-existence amongst citizens. No reasonable society will encourage resort to self-help for whatever reason and not certainly on mere suspicion.

I agree with the Court below that no reason was shown by the appellant why the decisions of the Lower Courts would be disturbed by this court. I affirm the decisions and dismiss this appeal.

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SC.197/2013