Court acquits refugees for trespassing on abandoned war-damaged house, finding no intent to annoy.

[*69] 1975 September 22

(HADJICONSTANTINOU, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Police

v.

Charalambos Gregoriou Georghiades and Another,

Accused.

(Case No. 14525/75).

Criminal Law - Trespass with intent to annoy - Section 280 of the Criminal Code Cap. 154 - Ingredient of the offence - Whether constructive possession of property by complainant suffices to constitute the offence - Intent - Meaning - Uninhabited house entered into by refugees - No intention to annoy - Real and dominant intention the securing of a house accomodation - Element of intent to annoy not proved by prosecution.

Inspector S. Andreou, for the Prosecution.

Accused present in person.

RULING

The following ruling was delivered by:-

HADJICONSTANTINOU, S.D.J.: The two accused stand [*70] charged with criminal trespass, contrary to section 280 of the Criminal Code, Cap, 154.

The unchallenged evidence adduced by the Prosecution, put shortly, is as follows:-

The complainant is the attorney of a certain Sapel Mevledian who is residing in England and who is the owner of a house situated at Macedonias Street No. 14, St. Paul Quarter of Nicosia. In July, 1974 Cyprus was invaded by Turkish troops and there was an air bombardment and troops' fighting in the area near the said house. In consequence thereof the house was damaged and its tenants, whose life was in danger, vacated the premises and moved away.

Some time after the cease fire some refugees moved into and occupied the house until they had been ejected therefrom as a result of steps taken by the complainant. Since then the damage to the house was never repaired and the complainant did not visit the house.

On the

30.5.75 the accused, who are also refugees, having found the house empty, damaged and open moved into it with their families and still occupy the house. Accused 1 is living with his wife and two children, and accused 2, a widow, is living with her three daughters aging 13,14 and

16 years respectively.

In his examination-in-chief the complainant, asked whether he was annoyed by the accused’s entry and remaining in occupation of the house said: "It’s not a [*71] matter of annoyance, it’s a matter of seizure". He also said that he did not see the accused on any previous occasion except when he saw them in Court.

In their voluntary written statements to the Police both accused state that they are ready to offer a small sum of money by way of rent out of their very poor means.

On the basis of the above facts the duty falls on the Court to decide whether a prima facie case has been established so that the accused may be called upon to defend themselves.

To do so I turn to consider the legal aspect of the case.

One of the elements necessary to constitute the offence of section 280 Is that there must be an entry into or upon property in the possession of another.

The Roman lawyers distinguished possession in fact as "possessio naturalis" and possession in law as "possessio civilis". Thus, possession may exist in law but not in fact and such possession in law is termed as constructive. The whole concept of possession, as I understand it, embraces both actual and constructive possession. For, had the intention of the Legislature been that actual and physical possession should be an ingredient of criminal trespass, nothing would have been easier for it than to have qualified the word "possession" with the words "actual and physical". In my opinion, it is quite [*72] conceivable, that even though an owner may not be in actual possession of the property trespassed upon, the act of trespass may annoy him. If trespass upon vacant land causes annoyance to its owner, such trespass may also be committed with intent to annoy him.

It should be noted that our section

280 is identical to section of the Indian Penal Code. In the case of Sant v. Union of India, A.I.R. 1962 H.P.1 at pp. 2, 3 it was said: "Entry in or upon the property of another person may cause annoyance to him even if he be not present at the time of entry. A trespass with intent to cause annoyance to the owner may conceivably be made even though the owner be not present at the time of the trespass. The cause of annoyance is the violation of the rights of ownership and not the presence or absence of the owner at the time of trespass. The degree of annoyance may be more in the case of trespass in the presence of the owner but it is not correct that no annoyance is caused if the owner is not present at the time of trespass".

It is clear from the above position of the law that the non presence or absence of the complainant from the house at the time when the accused entered into it does not make the case fallnoutside the ambit of the section. The complainant, being an attorney of the owner, must be found to have possession of it in law i.e. constructive possession which falls within the meaning of the word "possession". [*73]

But let us now turn on a more essential ingredient of the first part of section 280, that of the intent to ... annoy any person in possession.

On this question of intention the then Mr. Justice Josephides in Protopapas v. The Police case reported in the 1962 Cyprus Law Reports at p. 29 said: "On the authority of R. v. Steane (1947)

K. B. 997 at p. 1004, if the prosecution prove an act, the natural consequence of which would be a certain result and no evidence or explanation is given, then the jury may, on proper direction, find that the prisoner is guilty of doing the act with the intent alleged".

In the present case there is clear and ample evidence and the accused have given an honest and true explanation as to the circumstances under which and the purpose for which they have moved into and continue to be in occupation of the house in question.

Moreover, "the mere fact that a person in possession is annoyed is not enough. It must be proved that the intention of the trespasser was to annoy. But the word "intent" cannot be read as if it were identical with "which" or "desire". There may be no wish to annoy, but, if annoyance is the natural consequence of the act and if it is known to the person who does the act that such is the natural consequence then there is an intent to annoy". (Vide "The Law of Crimes” by Rotanlal and Thakore p. 1123-34). [*74]

In the present case, on the question of whether the complainant was annoyed, there is the complainant's statement that "it is not a matter of annoyance, it is a matter of seizure". Thus thematter is put by the complainant as a violation of his right of possession which, according to the authority of Sant v. Union of India (supra) is the cause of annoyance. In other words it is only a matter of degree of annoyance. But the intention of the accused to annoy must be proved. Such an intention must be gathered from all the circumstances of the case, and I do not think that in the present case under the circumstances the intention of these accused persons was merely to annoy the complainant. It cannot, in my view, be said that at the time of the entry and under the circumstances such entry was effected, the accused knew or ought to have known that the natural consequence of such entry would be the annoyance of the complainant.

As to the meaning of "intent" I consider it pertinent to cite a passage from page 3576-87 at paragraph 16, headed "with intent” from the Penal Law of India by Dr. Sir Kari Singh Gour, 9th ed. Vol. IV (1973-74): "The following observations mode by Batty, J., in Bhagwant v. Kedari (1 L.R. 25 Bom. 202) form. "one of the best expositions of the meaning of the word "intent" as used in the Indian Penal Code".

"The word ’intent’ by its etymology, seems to have metaphorical allusion to archery, and

implies ’aim’ and thus connotes not a casual [*75] or merely possible result-foreseen perhaps as a not improbable

incident, but not desired, but rather connotes the one object for which the effort is made and thus has reference to what has been called the dominant motive, without which the action would not have been taken”.

Also in the case of Lambides v. The Police (1967) 1 C.L.R. at 148 ex P. Vassiliades said:-

"In this connection, and particularly regarding the submission that the appellant's entry on the property was lawful, we might refer to a privy Council Case from Ceylon, discussed in paragraph 10488 of the Current Law Consolidation 1947-1951, where the original entry to the property was made under a claim of right. It was held in that case, that where the real or dominant intent of the entry was to commit an offence, or to insult, or intimidate, or annoy the occupant, and that a claim of right was a mere cloak to cover the real intent, the offence of criminal trespass had been committed."

Thus, according to the above principles, what has to be decided in the present case is whether in entering the house in question these accused persons aimed at causing annoyance to the complainant or whether that was only a casual or merely possible result which they may have foreseen but not desired. Was the accused’s real or dominant [*76] intent to annoy the complainant? Can it be said that but for causing annoyance to the complainant the accused would not have effected their entry into the house?

On the basis of the evidence adduced and under the circumstances that these accused persons entered into the house in the possession of the complainant, I have hot the least hesitation to find, and I do find, that they never aimed at causing annoyance to the complainant. Their entry was merely a casual one necessitated by the circumstances under which they had found themselves, and was not aimed at causing annoyance to the complainant. Their real and dominant intention was to secure for themselves and their families a house accommodation since they had found themselves, as a result of the war, as refugees and of no means to pay for a proper house accommodation.

It follows from my above findings that a very essential element necessary to constitute the offence of criminal trespass, that of the intent to annoy, is missing and has not been proved by the prosecution as it had the burden to do. On the contrary the accused have given a true and reasonable explanation for their entry, which precludes a real and dominant intention on their part to annoy the complainant.

Consequently I find that the Prosecution have failed to establish a prima facie case against the accoused. [*77] Therefore, the accused are not called upon to make their defence and are acquitted and discharged.

Accused acquitted.