Ali v Reginam [1978] FJSC 7; Criminal Appeal 119 of 1977 (1 March 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 119 of 1977

BETWEEN:

IMAM ALI
s/o SALAM BUKSH

AND:

REGINAM

JUDGMENT

On the 15th September 1977 at Suva Magistrates Court the appellant was convicted on his own plea of being the owner of a dog which bit a girl, contrary to section 5 of the Dogs Act 1968, whereupon the Magistrate imposed a fine of $10 and purported to order that the dog be humanely destroyed.

On the 28th October 1977 this Court by oral judgment set aside the Magistrate's order that the dog be destroyed, for the following reasons.

Section 5 of the Dogs Act provides that "If any dog ... in any public place ... attacks any person whereby any person is injured ... the owner of such dog shall be guilty of an offence and liable on conviction to a fine not exceeding $20." There is no power upon a conviction for that offence to order the dog to be destroyed.

Section 3 of the Dogs Act provides that:-

"(1) Any magistrate may take cognisance of and hear any complaint that a dog, whether at large or not, is dangerous to person or property and not kept under proper control, and, if it appears to the magistrate that such dog is dangerous, he may make an order in a summary way directing either that the dog be destroyed in a manner to cause as little pain as possible or that it be kept under proper control by the owner.

(2) Any person failing to comply with such order shall be guilty of an offence and liable on conviction to a fine not exceeding two dollars for every day during which he fails to comply with such order."

There was no complaint laid before the trial Magistrate that the dog was dangerous to person or property and not kept under proper control; nor was any evidence led to that effect. Clearly a dog may bite someone without necessarily being dangerous and out of control; and conversely a dog may be dangerous and out of control without having bitten someone. Sections 3 and 5 of the Dogs Act are separate and distinct and a Magistrate cannot make an order under section 3 when the only complaint before him is laid under section 5.

Even on a complaint, under section 3, in the absence of aggravating factors it would not be usual on a first complaint to make an order for the destruction of a dog without giving its owner an opportunity to comply with an order to keep the dog under proper control.

Clifford M. Grant
Chief Justice.

Suva,
1st March 1978.