House trespass

Law and Citizen

By Dr. C. Ananda Grero

When he left Bambalapitiya, he asked his friend Dhanapala to be the caretaker of this house, collect the monthly rent and send it to him. Dhanapala agreed. 

After sometime Alwis and Asilin had a misunderstanding. They vacated the house and handed over the keys to Dhanapala. Alwis went to his sister's home and Asilin to her parents' house at Dehiwala.

After they left, Dhanapala who saw that all the furniture etc., had been removed, closed the doors and windows of the house. He kept the keys, but checked on the premises every other day. He also informed Citizen Perera that he had accepted the keys. However, after about two months, Dhanapala was surprised to find the house occupied once again by Asilin.

When he questioned whether she had a right to occupy the house, she had said that she and her husband were together again and had come back as tenants. She had said that her husband too would join her in a few days. When Dhanapala pointed out that she could not stay in the house, she had abused him and said that she would not leave. Then Dhanapala complained to the Bambalapitiya Police. The matter was referred to the Mediation Board of the area, but Asilin and Alwis refused to come to a settlement. The police filed action in the Magistrate's Court of Colombo stating that the husband and wife committed an offence of house-trespass punishable under section 434 of the Penal Code.

Both accused pleaded not guilty to the charge and the Magistrate fixed the matter for trial. On the trial date the prosecution led the evidence of landlord Perera, caretaker Dhanapala and the Police Sergeant who conducted investigations. Asilin gave evidence when the Magistrate called for a defence. Alwis did not give evidence. At the end of the trial, the Defence Counsel made some legal submissions and the Magistrate made order acquitting both. 

The Attorney-General appealed against the order to the Court of Appeal. (At that time an appeal was made to the Court of Appeal, now it has to be done at the Provincial High Court). 

The Magistrate was of the view that though the house was in Dhanapala's possession, after getting the keys from the accused (Alwis and Asilin) he was not in occupation. Hence the accused did not commit the offence of house-trespass. He also stated that it appeared that the two accused after leaving the house, became friendly again and re-took possession as tenants. As such they could not be convicted (found guilty) of house-trespass. He was of the view that the dispute should be resolved by an action in the Civil Court.

A similar matter came up before the Court of Appeal and was heard by Justice Wijeyaratne. It was reported in 1990-1 Sri Lanka Report, Page 415. Justice Wijeyaratne stated in his judgement that the Magistrate had misdirected himself:

(1) By referring to the two accused as tenants when they re-entered the premises.

(2) By holding that caretaker Jeevananda (in that case) was not in occupation.

He observed that the tenancy was over when the two accused removed all their belongings, vacated the premises and handed over the keys by way of symbolic delivery of possession. They re-entered the premises as trespassers, without any lawful right. He cited some earlier decisions of the Supreme Court and held that the word "occupation" does not by any means imply residence. Based on these findings, to say Dhanapala was not in occupation of the house at the time in question was not in accordance with the law,

He further held that caretaker Jeevanada (in that case) in his evidence said he was annoyed when he saw the 1st accused in the house. This type of conduct was likely to cause a breach of the peace. He held that the ingredients of the charge had been proved beyond reasonable doubt. 

In this case too, the Court of Appeal set aside the order of acquittal of the 1st accused Asilin, convicted her and imposed a fine of Rs. 1,000 in default three months' rigorous imprisonment. As there was no evidence against the 2nd accused (Alwis) his acquittal was allowed to stand. Thus, one can see that Asilin's action fell within the criminal offence regarded as "criminal trespass", more particularly, "house-trespass" as stated in the Penal Code.

(Names of persons and places are fictitious)

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