Suva Rural Local Authority v Leylands Ltd [1978] FJSC 37; Criminal Appeal 035 of 1978 (23 June 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO. 35 of 1978

SUVA RURAL LOCAL AUTHORITY
Appellant

v.

LEYLANDS LIMITED
Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the acquittal of the respondent on the 17th February, 1978 by the Magistrates Court Suva of the offence of:

"Makes default in complying with the requisition of the notice within the time specified by the Local Authority contrary to section 57, subsection 4(b) of the Public Health Ordinance, Cap. 91."

The Statement of Office is far from clear and does not adequately specify the offence. In my view the essence of the offence is:

"Making default in complying with the requisitions of a notice requiring abatement of a nuisance within the time specified therein contrary to section 57 subsection 4(b) of the Public Health Ordinance, Cap. 91."

The Particulars of the Offence should then have specified the nature of the default. In this instance the particulars were again inadequate. The particulars in the charge are:

"Leylands Limited having its registered office at 67 Princess Street, Suva did on the 19th day of July, 1977 at Naboro Queens Road in the Central Division make default in complying with the notice namely 'Notice Requiring Abatement of Nuisance' within the time specified by the Suva Rural Local Authority."

The only ground of appeal is:

"That the learned Magistrate wrongly held that the words in the Notice Requiring Abatement of Nuisance, namely, "from which water is drawn for Naboro Prison Farm for domestic purposes" constituted a material averment."

For what is only a minor offence the trial was quite a lengthy one and resulted in a fairly lengthy judgment. The prosecution took the view that it was necessary to establish the existence and nature of the nuisance.

In my view all the prosecution had to establish was the issue by the Local Authority of the Notice requiring abatement of the nuisance described in the Notice, service of the Notice on the defendant and the default by the defendant in complying with any of the requisitions stated in the Notice.

It may have been open to the defendant to challenge the validity of the Notice by establishing that in fact no nuisance existed, a point I do not have to decide as the learned trial Magistrate found as a fact that untreated waste and excreta from 3,000 pigs discharged into a creek was offensive to the public - in other words a nuisance. It was certainly open to the defendant, under the first proviso to section 56 of the Public Health Ordinance to prove that the best possible means were taken by it to prevent injury to public health and that no serious danger to serious health existed.

The Court must assume, until the contrary is established, that the Local Authority in issuing a Notice to abate a nuisance is satisfied the nuisance exists. What is in issue after the Notice is issued and served is whether the person on whom it is served has made default in complying with any of the requisitions of the Notice within the time specified therein.

Little attention appears to have been paid to the terms of the Notice Requiring abatement of Nuisance non-compliance with the requisitions thereof being the essence of the offence with which the respondent was charged.

The main purpose of this Notice was to bring about the abatement of the nuisance specified therein. To that end the Notice specified the works to be carried out which by the Notice had to be executed within 14 days after service of the Notice. This was an unreasonably short period of time within which to carry out the works specified and in my view completion of the works was virtually impossible of performance within the time specified. Notwithstanding this virtual impossibility the respondent was required by the Notice within the same period of 14 days to submit proper plans and specifications for the construction of the specified oxidation ditch for the approval of the Authority. The period of 14 days for these plans alone was in my view an unreasonably short time to instruct an engineer, to have the plans prepared and submitted and obtain the Authority's approval.

It is the last sentence of the Notice however which is of importance. This states:

"No work shall commence without approval being obtained from the Authority."

The particulars of charge do not specify the nature of the defendant's default, as it should have, but it is clear from the record that the default alleged was failure to abate the nuisance within the time specified which by the express terms of the Notice the defendant was precluded from abating by carrying out the works specified until the Authority issuing the Notice first approved the plans. While the respondent did submit plans to the Authority, they were not submitted within 14 days of service of the Notice and that default in my view was the only default by the respondent of any of the requisitions in the Notice. The respondent was not specifically charged with this default nor was it the default on which the prosecution based its case.

So far as the appellant's ground of appeal is concerned, I would agree that the incorrect statement in the Notice to the effect that "water is drawn from Wainaboro Creek for Naboro Prison Farm for domestic purposes" is not material.

The nuisance in the instant case was the flow of pigs' excreta and waste water from the piggery into the Wainaboro Creek, and was held by the trial Magistrate to be offensive to the public. This was a nuisance as defined in section 56(j) of the Public Health Ordinance. The incorrect statement in the Notice I have referred to is surplusage and should have been ignored.

The learned trial Magistrate in a lengthy judgment held that the nuisance specified in the Notice was not established because he considered the incorrect statement in the Notice to the effect that there was pollution of the creek serving the Prison Water Supply was not mere surplusage.

There was evidence that the flow into the creek was offensive to the public and the trial Magistrate found as a fact that that was so.

In my view the trial Magistrate was correct in acquitting the respondent but not for the reasons given by him.

The Local Authority, by the terms of its own Notice, prevented the respondent from carrying out the works necessary to abate the Notice within the 14 days specified. Since the prosecution based its case on failure to abate the nuisance i.e. by carrying out the works specified in the Notice, there was in fact no default by the respondent in complying with that requisition in view of the absolute prohibition in the notice of carrying out that work without prior approval of the Local Authority.

The appeal is dismissed.

Suva,
23rd June, 1978.

R.G. Kermode
JUDGE