Messrs KW March Ltd v Suva City Council [2002] FJHC 70; Haa0081.2002s (5 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 081 OF 2002S

Between:

MESSRS. K.W. MARCH LTD.
Appellant

And:

SUVA CITY COUNCIL
Respondent

Hearing: 29^th November 2002
Judgment: 5^th December 2002

Counsel: Mr H. Hazelman for Appellant
Ms T. Waqanika for Respondent

JUDGMENT

On 27^th September 2001, the Appellant was charged with the following offence:

Statement of Offence

FAIL TO COMPLY WITH THE NOTICE REQUIRING STATEMENT OF NUISANCE served under section 57 (1), 3(a), 4(b), 58, 59 and 64 of the Public Health Act Cap. 111.

Particulars of Offence

MESSRS. K.W. MARCH LIMITED, HAVING ITS REGISTERED OFFICE AT 75-77 MARKS STREET, SUVA being the owners of the premises within the meaning of the Public Health Act situated at 75-77 Marks Street, Suva did on the 2^nd day of August 2001 in the Central Division failed to comply with the requirements of a Notice Requiring Abatement of Nuisance in that it failed to:

1. Examine all soil drains and all its ancillary waste pipes and fixtures and repair/replace wherever defective and carry out whatever may be necessary to allow the proper flushing of water closet cistern and efficient drainage of sewerage into the main sewer line.
   
2. Provide adequate lighting for the water closet compartment.
   
3. Repair the defective roof leaving same in sound and weather tight condition for the bulkstore and privy of Sun Yee’s Store.
   
4. Replace the missing tiles of the floor in Sun Yee’s Store.
   

The matter was called in court on 14^th December 2001. The Appellant was present. The record states that the matter was adjourned to 11^th February 2002 for mention “to review execution works.” When the case was called on 11^th February the Appellant told the court that the tenant was responsible for abating the nuisance. The charge was read, and explained. The Appellant pleaded not guilty. The case was adjourned to 28^th February 2002 for disclosure. On that day the Appellant did not appear although counsel appeared on his behalf. The case was mentioned again on 11^th March 2002. Neither the Appellant nor his counsel appeared. However, on confirmation of disclosure, the learned Magistrate fixed a hearing date for trial.

The trial commenced on 21^st May 2002. There was no appearance by or for the Appellant. A senior assistant health inspector, Reena Maureen Narayan gave evidence. She said that she, on the 27^th of March 2001 visited 75-77 Marks Street, premises belonging to K W March. She went to attend a complaint that the water closet and cistern were defective and that there was overflowing of sewerage which emitted a foul smell. She found that the water closet cistern was defective, that there was no lighting inside the compartment, and that tiles were missing. She also found that a standpipe in the bulk store was the only means of water supply for the tenant. She said there was no proper waste water drainage for the stand pipe. She then warned the owner of the building at the registered office about the defects. There was non-compliance. She then served a notice of abatement of nuisance on the owner. A copy was tendered to the court. She then served a final notice after there was failure to comply with the notice. The defects were not repaired up to the morning of the trial.

The learned Magistrate held that there was ample evidence of non-compliance and convicted the Appellant as charged. She fined him $20, ordered $50 for court costs and ordered that the nuisance be abated within 28 days.

The Appellant now appeals against conviction and sentence. Because he was four months out of time for filing the petition of appeal, he also applied for enlargement of time. Counsel for the City Council did not object. Leave was given to argue the appeal proper.

The grounds of appeal are as follows:

(a) That the learned trial magistrate erred in law and fell into error by proceeding with trial in the absence of K.W. March Ltd. representative, as section 78 of the Criminal Procedure Code does not allow for a trial to proceed in the absence of the accused.

(b) That the learned trial magistrate erred in law and fell into error by making the orders against the accused company in its absence without sending the said company the right to defend the action.

At the hearing of the appeal, counsel for the Appellant submitted that proceeding to the trial in the absence of the accused was a breach of section 28(h) of the Constitution and of section 88 of the Criminal Procedure Code. Counsel for the City Council submitted that the Appellant admitted in his affidavit that he knew about the trial date but was late because he was held up in traffic, and that therefore he had waived his right to be present. She agreed that in principle, a court may only proceed in the absence of the accused if it is satisfied that the accused was served with a summons but had chosen not to attend. However she submitted that the Appellant’s admission that he had been given notice of the hearing date, meant that there had been no prejudice.

The appeal

Section 28(1)(h) of the Constitution provides:

“Every person charged with an offence has the right not to have the trial take place in his or her absence unless;

(i) the court is satisfied that the person has been served with a summons or other process requiring his or her attendance and has chosen not to attend; or

(ii) his or her conduct in the proceedings is such that the continuation of the proceedings in his or her presence is impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.”

Section 199 of the Criminal Procedure Code provides:

“Notwithstanding the provisions of section 189, if an accused person charged with any offence punishable with imprisonment for a term not exceeding six months and/or a fine not exceeding one hundred dollars does not appear at the time and place appointed in and by the summons, or by any bond for any appearance that he may have entered into, and his personal attendance has not been dispensed with under section 88, the court may, on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 90.”

Section 89 of the Code provides that all evidence must be taken in the presence of the accused or of his barrister and solicitor (if any).

There is no inconsistency between section 28(1)(h) of the Constitution and section 199, except that section 28(1)(h) gives the court the discretion to proceed in the absence of the accused in all cases irrespective of penalty. What both provisions require is that the magistrate must be satisfied that the accused was served with a summons (or other process) and has chosen not to attend.

In most cases in the Magistrates Courts, no trial will proceed on first call. Instead, on that day, the case will be adjourned to another day to allow the prosecution to disclose witness statements and exhibits on the accused. It is on the second mention day, when disclosure is confirmed, that a hearing date is set. Further, I understand that after the initial summons to attend court on the first day, no further written process is served on the accused. Instead he/she is told verbally by the Magistrate of the trial date. That of course is a court order, and if, after being told of the hearing date by the Magistrate, the accused chooses not to attend court, he/she is deemed to have waived his/her right to be present at the trial.

However, where the accused does not appear at the mention date on which day the hearing date is announced, how can the Magistrate be satisfied that summons or other process has been served on him/her. The short answer is that the Magistrate cannot be so satisfied. Thus unless a fresh notice of hearing or summons is served on the accused giving him/her reasonable notice of the trial date, and that copy notice is shown to the Magistrate on the trial date, the trial cannot proceed without the accused.

In this case therefore, the Magistrate was in breach of section 28(1)(h) because she did not satisfy herself that the Appellant had been served with a summons or other process. However, as counsel for the Respondent pointed out, the Appellant conceded in his affidavit in court that he did know about the hearing date. Indeed, in his affidavit, sworn on the 23^rd of August 2002, in support of his application for stay, the Respondent said at paragraph 2:

“On the day set for trial, I was delayed in arriving on time and the late arrival of my counsel as well, due to traffic congestion and lack of parking space within the Government Building premises contributed in the trial concluding in my absence.”

Assuming that the trial proceeded at 9.15, the Appellant must, with respect, have been very late indeed, because he failed to appear at the proceedings at all, although the evidence of Reena Maureen Narayan must have taken some time to lead.

The Appellant says that he was prejudicial by his absence because he had a defence. That defence was that it was not his responsibility to abate the nuisance, but his tenant’s.

Section 57 of the Public Health Act Cap. 111 provides as follows:

“(1) On the receipt of any information respecting the existence of a nuisance liable to be dealt with summarily under this Act the local authority shall, if satisfied of the existence of a nuisance, serve a notice on the person by whose act, default or sufferance the nuisance arises or continues or, if that person cannot be found, on the occupier or owner of the premises on which the nuisance arises, requiring him to abate the same within the time specified in the notice and to execute such works and do such things as may be necessary for that purpose and, if the local authority thinks it desirable (but not otherwise), specifying any works to be executed.

(2) The local authority may also by the same or another notice served on such occupier, owner or person require him to do what is necessary for preventing the recurrence of the nuisance and, if it thinks it desirable, specify any works to be executed for that purpose, and may serve the notice notwithstanding that the nuisance may for the time have been abated if the local authority considers that it is likely to recur on the same premises.

(3) Provided that -

(i) where the nuisance arises from a want or defect of a structural character or where the premises are unoccupied or are a common lodging-house, the notice shall be served on the owner; and

(ii) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufferance of the occupier or owner of the premises, the local authority may itself abate the same and may do what is necessary to prevent the recurrence thereof.

(4) Where a notice has been served on a person under this section and either -

(a) the nuisance arose from the wilful act or default of the said person; or

(b) the said person makes default in complying with any of the requisitions of the notice within the time specified,

he shall be liable to a fine not exceeding twenty dollars for each offence.”

Section 59(1) provides as follows:

“(1) A nuisance order may be an abatement order, a prohibition order or a closing order or a combination of those orders.”

Section 59(8) provides:

“(8) If a person fails to comply with the provisions of a nuisance order with respect to the abatement of a nuisance he shall, unless he satisfies the court that he has used all due diligence to carry out the order, be liable to a fine not exceeding two dollars a day during his default.”

It is abundantly clear that an abatement order must be served on the owner of the premises creating the nuisance if the nuisance arises from a structural defect. This was clearly the case here. Further, no compliance with the abatement notice creates a strict liability offence under section 57(4)(b) and it is no defence to say that the responsibility for repair lay with a third party.

I notice that on first call, the accused did not raise any such “defence”, saying instead that he would try to repair the water closet. Indeed in his affidavit seeking stay, he raised yet another argument, that the nuisance was caused by the City Council’s failure to provide a waste water outlet.

In all the circumstances, I am satisfied that although there was a technical breach of section 28(1)(h) of the Constitution, the Appellant did know of the trial date and did not attend. Further, I consider that he was not prejudiced by his absence at trial because his “defence” was not available to him in law.

For these reasons, this appeal is dismissed. The stay order on sentence is lifted forthwith. The nuisance must be abated within 28 days of this judgment.

Nazhat Shameem
JUDGE

At Suva
5^th December 2002