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Nanhu v Police [1957] FJLawRp 12; [1956-1957] 5 FLR 75 (12 July 1957)

[1956-1957] 5 FLR 75

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Criminal Appeal No. 30 of 1957

NANHU
Appellant

AND

POLICE
Defendant

Penal Code s. 209 (1) (a)-entering upon land in possession of another with intent to intimidate-proof of "possession".

The appellant was convicted under s. 209 (1) (a) Penal Code of entering upon land in the possession of one Suruj Mati, wife of Chottu Prasad, with intent to intimidate her. Upon appeal, it was contended on behalf of the appellant that although Suruj Mati had referred to the premises as "my house", and other witnesses described the premises as "her house", this was too vague for the strict proof of possession on the part of Suruj Mati which was necessary to found the charge.

Held: - (1) Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action of trespass against a wrong doer.

(2) Suruj Mati must be held to have been in joint possession with her husband.

(3) The possession alleged in the charge had been proved with the requisite strictness.

Appeal dismissed.

K. C. Ramrakha for the appellant.

A. M. Greenwood, Solicitor-General, for the defendant.

HYNE, C.J. [12th July, 1957]-

Judgment:

This is an appeal by one Nanhu, f/n Ram Gati of Buca Bay in the Colony of Fiji against his conviction under section 209 (1) (a) of the Penal Code for entering upon land in possession of Suruj Mati, wife of Chottu Prasad, with intent to intimidate Suruj Mati, on 17th October, 1956.

The contention of the counsel for appellant was briefly that in as much as the charge refers to land in possession of Suruj Mati, such possession should have been strictly proved. He cited in support of his submission the two cases heard before this appellate court, namely Criminal Appeal No. 12 of 1954 and Criminal Appeal No. 32 of 1955.

In case No. 12 of 1954, the accused was charged under section 128 of the Penal Code with giving false information to a person employed in the public service, and in case No. 32 of 1955, the accused was charged under section 91 (b) with official corruption, namely the giving of a bribe to a person employed in the public service. In both cases the court held that there must be strict proof that the offence was committed in relation to someone employed in the public service.

Strict proof in such cases is, of course, necessary, I agree, and the learned Attorney-General also agrees that, in as much as it is alleged in the charge that the land is in the possession of Suruj Mati, it must be proved that she was in fact in possession.

It is submitted by Mr. Ramrakha that, while the complainant refers to the premises as " my house" and other witnesses for the prosecution referred to the house as " her house ", i.e. Suruj Mati's house, this is too vague to establish possession on the part of Suruj Mati. Mr. Ramrakha's contention is, as I understand it, that since Suruj Mati did not categorically say "I am in possession" the prosecution cannot succeed.

The learned Attorney-General pointed out, that it was not disputed in the court below that she was in possession and that whether it was referred to as "Suruj Mati's house" or " Chottu's house" is immaterial. Suruj Mati is the wife of Chottu. Her children lived there with her. She and her husband have lived together there for seven or eight months. Even the defendant says so in the course of his evidence. Counsel for appellant cited 2 Halsbury Vol. 33 at pp. 2 and 11 as to trespass and possession. At p. 2 it is said-

"Trespass is a wrongful act done for disturbance of possession of property of another or against the person of another against his will."

At p. 11, paragraph 17, it is said-

"Actual possession is a question of fact. It consists of two elements; the intention to possess the land and the exercise of control of the land to the exclusion of other persons."

He also cited Odgers, Pleading and Practice, p. 108-12th Edition-

"Possession is a physical fact and generally an obvious one. It is wholly distinct from ownership which is often a difficult question of law. A man may be said to be in possession of land or of a chattel whenever he has full and uncontrolled dominion over it."

In the passage on "possession" cited from Odgers by appellant's counsel, it is quite clearly stated that possession is wholly distinct from ownership.

It is not suggested that Suruj Mati was the owner of the land; but it cannot be said that she did not have the right to exclude other persons from the land.

The learned Attorney-General submitted that the complainant said that the defendant had no right to be inside her house; that he came inside her house and tore her dress; that she was interfered with. This is supported also by the fact that she came out of the house with her blouse torn and calling upon neighbours to assist her.

Section 209 (1) of the Penal Code is based on section 441 of the Indian Criminal Code and at p. 791 in paragraph 579 of Mayne's The Criminal Law of India it is stated-

"The property wrongfully entered upon must have been at the time in the possession of another. This means an actual not a merely constructive possession."

In the present case there is undoubted evidence that the appellant wrongfully entered on the land, and that he intimidated Suruj Mati. There is also undoubted evidence, both from prosecution witnesses and from witnesses for the defence that Suruj Mati actually lived on the premises on which the accused trespassed, and that she had so lived, with her husband and family, for many months.

Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action of trespass against a wrong doer. That she was in possession is not based on mere inference, but is based on categorical statements made by various witnesses. She herself says she lives there, other witnesses have referred to it as "her house". Others have referred to it as "Chottu's house" it is true, but as husband and wife they must be held to be in joint possession and the possession alleged in the charge has been clearly established. In other words, possession has been proved with the requisite strictness.

The appeal is dismissed and the conviction affirmed.