Lami Town Council v Khan [2007] FJMC 5; Criminal Case No 351 of 2006 (19 March 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 351 of 2006

LAMI TOWN COUNCIL

V

JALIL KHAN f/n Gafoor Khan

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 1/03/07
Date of Judgment: 19/03/07

Prosecution: Mr. S. Valenitabua (Jr)
Defence: Ms A Ali

JUDGMENT

The defendant in this case has been charged by the Lami Town Council under the Public Health Act Cap III for creating a nuisance and for failing to comply with abatement notices.

The facts are in dispute in totality, so a detailed analysis of the evidence by me is necessary.

The prosecution called (4) witnesses. Jone (PW1) was the enforcement officer and process server. PW2 was a building Inspector and PW3 was the Health Inspector who now works for Nadi Town council.

The complainant was a neighbour and councilor who was not called by the Prosecution as a witness. The first witness told court on 14/11/05 he accompanied the PW2 and PW3 to Lot 13 Nakauvadra Road Delainavesi. The defendant has a block of flats on the property.

There was a seepage in council’s drain. He said a florescent test was required to determine the seepage. A red powder was put into the toilet tank of a flat down stairs in the defendant’s building. If there, is seepage the ‘red powder would turn red." They didn’t see any change that day.

On the next day they noticed red colour in the council drain. He served notices on the defendant to abate nuisance on 1/12/06 and a second notice given on 14/1/06. He denied the powder colour was purple which turned red.

The building Inspector was second witness who accompanied them on 14th November 2005. He said red powder was put into downstairs tenants tank which did not show outside. But he was not present to see the result the next day. He denied testing in upstairs flat of defendant.

The third witness was the driver who saw red powder put into the tank. He didn’t see the result. He saw it put in tank on 5/12/05.

The prosecution called the Health Inspector after a weeks adjournment. This witness had conducted the florescent test on 14/11/05. He said the powder colour changes if there is leakage in drains. The powder was purple and it changes to red if there is leakage.

He said he carried out tests at bottom and also on top flat upstairs, at the defendant’s flat. He then issued notices to repair to the defendant. He also made report to the council dated 25/11/05. He did not retest after the notices but noticed foul smell and proceeded to legal action.

Upon being questioned by court if he only saw colour change in the drain or also in defendants compound. He answered the colour change was also seen in the compound at the septic tank.

The defendant gave sworn evidence. He received notices of council on 6/12 and 22/12. He blames his neighbours water going into council drain. After receiving notices he asked plumber and contractor to check out his septic tanks. They dug around it but found no leakage. He kept it open for LTC to come and check but they didn’t do so. He rang and waited 7 days after which he had to close the tank due to the foul smell. He said no one tested in his flat 14/11/05.

He said he too was an experienced sewer and road draftsman and engineer. He worked in council for over 15 years and if there was a seepage he would have repaired it. He denied any leakage in his tank.

He called his contractor who testified he found no leakage in the septic tank of the defendant as per the notices. He waited for council to inspect and later closed the tank after 2 weeks. He also said water from neighbours was in the council’s drain.

Defendant also called his caretaker who stays in the upstairs flat. She said no one came to carry out any tests on 14/11/05 from Lami Town Council. She said a test was carried out on 12/2/07.

Defendant’s wife also gave evidence. She said she was at home and no tests were carried out of the top flat on 14/11/05.

I have considered whole of the evidence.

The Health Inspector who carried out the test said he tested the tenants flat and the defendant’s upstairs flat. He said he used 6 teaspoons of purple powder and placed in tanks. It turns red showing seepage in the council’s drains.

Yet his report to council states he used 3 teaspoons of florescent powder. He noticed on 15/11 the red colour in council’s ‘v’ drain.

The two prosecution witnesses did not say the defendant’s flat was tested. They say it was red powder and turns red when seepage is found. The defendant’s witnesses also denied any tests on top flat of the defendant.

Section 55 states "the occupier of any premises shall be deemed to have committed a nuisance and shall be liable to a fine not exceeding $20 for creating the nuisance _ _"

From the evidence led I am unable to conclusively say that the tests were carried out in the defendant’s flat. All prosecution witnesses except for the last inspector has said no tests was carried out of the premises occupied by the defendant’s.

The Health Inspector says all toilets go into one tank. However, the Prosecution has to prove the nuisance was created by the defendant so his premises which he occupies had to be tested as per the section.

There is also suspicion as to the retesting. There has been no retesting done after the notices were given. The Health Inspector said he had to carry out the florescent test to determine any seepage. After notices given, no further tests were carried out to see if the nuisance was abated.

The report (Exhibit 1) says the complainant was a town councilor. It does not say if the other houses which connect to the council’s ‘v’ drain in particular the neighbour of the defendant who has been accused was also tested.

Since the council’s drain is connected to all neighbouring houses, the council would have been fair to test the other houses also to rule out the alibi raised by the defendant.

I find on the whole the council employees did not carry out a thorough test and determination. The Health Inspector only said he saw colour also at septic tank when asked by court. No other witness saw any colour change in the defendant’s compound. I do not accept the evidence of the health Inspector as credible.

The Prosecution evidence is also contradictory and I cannot without reasonable suspicion say that they have proved the charge as laid. The defendant and his witnesses were more credible on issues before court.

I also find there were no follow ups by council employees. The defendant did everything to investigate after receiving the notices as required of him but did not find anything or get a response from the council.

Consequently the defendant is acquitted on both counts.

Dated this on the 19th day of March 2007.

Ajmal Gulab Khan
RESIDENT MAGISTRATE