Ministry of Health v Nadan [2019] FJMC 144; Criminal Case 366 of 2017 (27 September 2019)

IN THE MAGISTRATE’S COURT AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. 366 of 2017

MINISTRY OF HEALTH

V

HARI NADAN

Appearance : Mr Turisau. K for the prosecution

Accused in person

Judgment : 27 September 2019

JUDGMENT

1. The accused, Hari Nadan is charge for one count of Restriction on carrying out of development after constitution of Town Planning areas contrary to section 7(1) and 7(7)(a) of the Town Planning Act, and one count of Use of Land contrary to section 27(5) of the Town Planning Act.
   
2. The particulars of the offence for the first count are that the accused is the owner and occupier of a residential premises at Tabucola in Labasa where on 20 June 2017 to 26 July 2017, he carried out illegal development by carried out motor vehicle repair on that premises without the permission of the Macuata Rural Local Authority.
   
3. The particulars of the offence for the second count are that the accused is the owner and occupier of the residential premises at Tabucola Labasa, used that land contrary to residential scheme by carrying out motor vehicle repair on the land without the permission of the Macuata Rural Local Authority.
   
4. The Accused pleaded not guilty to both the counts on 27 April 2018. The case proceeded to trial on 10 July 2019.
   
5. The Prosecutor called Isimeli Tuiteci (Isimeli) as the only witness for the prosecution case. The Accused wish to give evidence and is the only witness for his case.
   

Law

6. Section 7(7)(a) of the Town Planning Act state;-

“(7) Every person who-

(a)carries out any development of land without the grant or permission required in that behalf under the provisions of this section, shall in addition to any civil liability, be guilty of an offence....

7. Section 7(1) of the Town Planning Act state;-

“Subject to the provisions of this section, the permission of the local authority shall be required in respect of any development of land carried out within a town planning area during the period before a scheme affecting such area had been fully approved.”

8. The word “development” is defined in section 2 of the Town Planning Act as;-

“in relation to any land means any building operations or rebuilding operators, including the making of an alteration, addition or structure repair to any building, the formation, laying out or material widening of a street or a means of vehicular access thereto, and any use of the land or any building, either wholly or in part which is materially different from the purpose for which the land or building was last used....”

9. The elements of the offence for the first count are;-
   1. the accused,
   2. carried out a development of land,
   100. within a town planning area,
   4. without the permission of the Macuata Rural Local Authority.
      
10. Section 27(5) of the Town Planning Act state;

“Every person who uses any building or land in a manner prohibited under the provision of the section, or obstructs or interferes with the exercise by local authority of any power vested in it shall in addition to any civil liability be guilty of an offence....

11. The elements of the offence for the second count are;-
    1. the accused,
    2. used the land,
    100. in a manner prohibited under section 27.
         
12. The burden of proof is on the prosecution to prove all the elements of the offence beyond reasonable doubts.
    

Analysis and determination

13. The Accused stated in his evidence that the land is under the name of his deceased wife. His son was doing a business of repairing the vehicle on that land. Isimeli stated in his evidence that he served the notice to the accused because he is the occupier of the residential property. He identified the accused in court.
    
14. Section 7(7)(a) of the Town Planning Act is very clear and it refers to every person who carries out any development on the land. Isimeli stated that he issued the notice because of the operation of garage in the residential premises. It is clear from the accused that his son is the one who operate that garage. Apparently, it was not the accused who operate the garage in this case. It was not the accused who used the land in a manner prohibited by law.
    
15. There are doubt on the identity of the accused as he is not the person who carried out development on the land or used the land in a prohibited manner.
    
16. There is no evidence to say that the property at Tabucola, Labasa is located within a town planning area. There is no evidence adduced to say that repairing of vehicle in a residential land is prohibited under section 27 of the Town Planning Act.
    
17. In assessing the evidence, I find that the prosecution case failed from the first element on the identity of the accused. Consequently, all other elements of the offences cannot be linked or connected to the accused. The prosecution failed to discharge the burden of proof.
    
18. In this judgment, I find the Accused not guilty as charged for both the counts. The Accused is acquitted for count 1 and Count 2.
    

28 days to appeal.

C. M. Tuberi

RESIDENT MAGISTRATE