Rex v Singh and Another (Criminal Appeals Nos. 125 and 126 of 1947) [1947] EACA 41 (1 January 1947)

### COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

### REX. Respondent (Original Prosecutor)

# GAJJAN SINGH, BAKHSHISH SINGH, Appellants (Original Appellants Nos. 1 and $2$ )

Criminal Appeals Nos. 125 and 126 of 1947 (Appeals from decision of H. M. Supreme Court of Kenya)

Criminal law—Forcible entry contra S. 87 P. C.—Criminal Trespass contra<br>S. 303, P. C.—Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, S. 4—Consent of Board not necessary for prosecution arising out of civil dispute relating to tenancy-Interpretation of Penal Code-Bail.

The appellants were convicted of forcible entry contrary to section 87 P. C. and criminal trespass contrary to s. 303 P. C. in respect of premises to which the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance applied. The facts which the Courts found proved were that they broke the locks of a room recently vacated by a tenant in a building belonging to the prosecutor and took possession of it against his will and that after throwing out the furniture and effects of the prosecutor they brought in their own furniture.

The appellants appealed to the Supreme Court on the ground that the conviction was against the weight of the evidence. The appeal having been dismissed they appealed a second time to the Court of Appeal for Eastern Africa on the ground, inter alia, that by s. 4 of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, the Rent Control Board's consent, which was not obtained, was necessary for the institution of the proceedings.

Held (12-8-47) .-- (1) That only civil proceedings are contemplated in section 4 of the Rent Restrictions Ordinance and that the consent of the Rent Control Board is not necessary for the institution of criminal proceedings.

(2) That in entering in a violent manner on premises lawfully in the possession of the complainant in order to take possession thereof the appellants committed the offences charged.

(3) That where the words of the local Penal Code are clear and unambiguous as they are in sections 87 and 303 each of the sections must be construed in its application to the facts of the case free from glosses or interpolations derived from any expositions. however authoritative, of the law of England or Scotland.

### Appeal dismissed.

Case referred to: Wallace Johnson v. The King (1940) A. C. 231.

### D. N. Khanna for the appellants.

### Holland. Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellants were convicted in the Resident Magistrate's Court at Nairobi on two charges (1) forcibly entering a room in occupation of Maghar Singh (section 87 of the Penal Code) and (2) committing criminal trespass into the said room by entering it with intent to commit an offence and to annoy the said Maghar Singh and to intimidate him (section 303 of the Penal Code). They were sentenced each to a fine of Sh. 500 on each charge. Sh. 500 of the fines to be paid to the complainant for costs and expenses. From the convictions the appellants appealed to the Supreme Court and their appeals were dismissed. They now come to this Court on second appeal and in this Court their appeals are consolidated.

The first point argued by appellants' advocate was ground 8 of the memorandum of appeal, which is in the following terms: -

"By reason of the premises, and in the absence of the consent of the Rent Control Board (Central Province), the proceedings both before the magistrate and the Supreme Court of Kenya were coram non judice".

The argument was based mainly on section 4 of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, which is in the following terms:-

"Where any dispute arises between any landlord and his tenant relating to a tenancy to which this Ordinance applies, no proceedings arising out of such dispute shall be instituted in any Court of law except with the written consent of the Board."

It is suggested that by this section the Rent Control Board is given absolute power to forbid any prosecution for criminal offences arising out of a civil dispute relating to a tenancy. We are quite unable to treat this argument seriously. Taking the section in the context of the whole Ordinance it is manifest that only civil proceedings are contemplated in section 4. We refuse to read the words in this section "proceedings arising out of such dispute" as covering proceedings in respect of any criminal offence arising out of such dispute. Section 5 of the Ordinance specifies the powers and duties of the Board in regard to complaints made to it by tenant or landlord, but the nature of the complaints is sufficiently indicated, and it is absurd to suggest that the Ordinance intended to give to a Rent Control Board the duty, right or power of deciding whether, for instance, a tenant who, in the course of a dispute as to a tenancy murders his landlord, should be prosecuted for murder. Appellant's advocate when that possibility was put to him objected that it was a very extreme case. So it is, but it is the *reductio ad absurdum* of his argument and to show its absurdity is the most suitable way to deal with such an argument which we reject without hesitation.

As regards the other grounds of appeal they amounted in this Court to an argument that there had been no violence against any person but only a peaceable right of entering exercised by the appellants and that therefore neither forcible entry nor criminal trespass had been made out.

First as regards forcible entry section 87 of the Penal Code is very clear in its $terms: -$

"Any person who, in order to take possession thereof, enters on any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an unusual number of people, is guilty of the misdemeanour termed forcible entry.

It is immaterial whether he is entitled to enter on the land or not, provided that a person who enters upon lands or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry.

It is established that the appellants, in order to take possession of the premises in question, entered on the premises in a violent manner, the violence consisting at the least in breaking open the locked premises. That is enough to bring them within the clear terms of section 87.

As regards the criminal trespass under section 303, the case is equally clear on the facts as found by the learned Magistrate. As it is put in the judgment of the first appellate Court, "They broke the locks of a room recently vacated by a tenant in a building belonging to the complainant and took possession of it against the will of the complainant; that after throwing out the furniture and effects of the complainant they brought in their own furniture". It is manifest that this conduct certainly amounted to entering "into or upon property in the possession of another". It was argued that there was, however, no intent "to annoy<br>any person lawfully in possession of such property" for the reason that the first appellant as tenant had the legal right to the possession of the premises and that the complainant was therefore not a "person lawfully entitled to possession".

Upon that question there was a conflict of evidence in the Magistrate's Court which was resolved by the learned Magistrate accepting the evidence of the complainant. The first appellate Court saw no reason to interfere with that finding of fact and credibility and on second appeal we certainly would not interfere with $\mathbf{it}$

On the evidence of the complainant it is clear that since March, 1946, the first appellant's tenancy had definitely come to an end and Mohinder, with the consent of the first appellant and the complainant, had become the tenant of the premises. Just as clearly the tenancy of Mohinder came to an end in March, 1947. All the arrangements as to tenancy and termination of tenancy were of the most casual oral nature, but on the complainant's evidence it is abundantly clear that by 18th March, 1947, the first appellant had no subsisting rights as tenant of the premises and the complainant was lawfully in possession of his own property on that date.

We may mention that appellants advocate referred us to section 4 of the Penal Code, which is in the following terms: —

"This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith."

$\overline{a}$

Under that section a rather vague suggestion was made that in interpreting sections 87 and 303 we must be guided by the decisions of English Courts on the corresponding law in England. It was not made very clear to us to what precise effect we should apply English decisions in this case but upon this argument we follow with respect the decision of the Privy Council in the case of *Wallace* Johnson v. The King (1940) A. C. 231 that where the words of the local Penal Code are clear and unambiguous as they are in these two sections each of the sections must be "construed in its application to the facts of this case free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England or Scotland".

We find no substance in these appeals and they are dismissed.

Before leaving this case we would refer to the proceedings before the learned Magistrate in regard to the application made for bail at the outset of the proceedings. That application was conditionally opposed by the prosecuting advocate not on the ground that the appellants might not appear to stand their trial but on the ground that there was reason to apprehend breach of the peace by one side or the other if the appellants were allowed to go on bail and to continue in possession of the premises. He intimated that he was agreeable to the premises being vacated by both sides till the case was decided and in that event would not oppose bail We consider that the attitude taken up by the prosecuting advocate was very sensible and wise, and had the magistrate allowed bail and made an order that the premises were to be vacated by both sides until the case was decided no possible exception could have been taken. It appears, however, that the magistrate granted bail conditionally only upon the appellants vacating the premises with no order as to the complainant vacating. We think it proper to express our view that in doing this instead of acceding to the sensible suggestion of the prosecution advocate the magistrate erred as he was using his jurisdiction as to bail to effect what was tantamount to a civil order of ejectment against one of the contending parties.