Hussein v Nadi Town Council [1979] FJSC 53; Criminal Appeal 76 of 1979 (16 November 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No. 76 of 1979

BETWEEN

ABDUL KUDDUS HUSSEIN
s/o Haji Kadir Hussein
(Appellant)

AND

NADI TOWN COUNCIL
(Respondent)

Mr. U. Mohammed for Messrs. A. K. Sharma & Co., for the Appellant
Mr. B.C. Patel for Messrs. Anand, Tappoo, Krishna & Co., for the Respondent

JUDGMENT

The appellant was charged with the following offence-

"Statement of Offence

Failing to keep land clear of all scrub, brushwood, undergrowth and garbage contrary to regulations 3(1) and (2) of the Nadi Township Regulations.

Particulars of Offence

Abdul Kuddus Hussein being the owner of land comprised in C.T. 12302 and C.T. 12301 both lots situated in Martintar, Nadi did after notice served on him on the 30th day of January 1979 requiring him to keep such land clear of scrub, brushwood, undergrowth and garbage to the satisfaction of Nadi Town Council failed to comply with the provisions of the said notice."

He pleaded not guilty but after hearing evidence the magistrate convicted him of the offence charged, fined him $35 and ordered him to pay $15 costs. Against this conviction and sentence he now appeals.

The prosecution called one witness only, a Health Inspector named Gopi Chand, whose evidence appears to me to leave a lot to be desired. He said that on a tour of inspection during mosquito campaign week he found two vacant lots in Martintar covered with grass.

Now the appellant has three plots in Martintar, but the witness did not identify the two plots he referred to, nor did he state that they were inside the Nadi Township boundary (so as to come within the ambit of the regulations). It was common ground that part of Martintar is within the boundary and part of it is outside the boundary.

He said he gave the appellant a notice to clear overgrown grass within 7 days. He did not exhibit the notice, though it was later exhibited by the appellant himself. Neither did he give the date of his first inspection nor his second inspection, and it was only in cross-examination that he said he served the notice on the appellant on 30/1/79. He said that he inspected the site 7 days later and saw that the grass was still uncut. It is not disputed that the grass was later "cleared"; though exactly when is not certain. The appellant says it was done within the 7 days but that was the issue in dispute, and the magistrate didn't believe the appellant or his witness, preferring to believe Gopi Chand, on grounds that can only be said to be rather flimsy.

One of the reasons given by the magistrate for rejecting the evidence of the witness called by the appellant was because he said he only cleared an area the size of the courtroom, whereas the size of the appellant's two plots was about half an acre. But then it was never made clear whether the whole of the two plots was covered with overgrown grass, and clearing an area the size of the courtroom might have been sufficient.

It should perhaps be noted here that there seems to have been some confusion as to whether the plots were to be cleared of grass altogether, or whether the grass was to be cut short, a confusion not assisted by the notice served on the appellant which refers to "clearing" the premises of overgrown grass. The notice itself is headed "Overgrowth of Grass" and says that premises CT 12302 and CT 12301 were overgrown with grass and weeds and littered with papers, tins, bottles and other refuse. The notice then warned the appellant that the premises were to be cleared of "overgrown grass and refuse within 7 days and maintained in clean conditions at all times in clean condition at all times in the future". There was in fact no evidence that the premises were littered with papers, tins, bottles or other refuse, or that any weeds were growing on it. There is no explanation of what an overgrowth of grass is, or how one clears premises of "overgrown grass". If the grass is merely to be cut why not say so. Surely the owner of the premises is not required to clear the premises of all grass leaving only bare earth, that would appear to be quite unnecessary.

I noted that on the back of the notice there is certain handwriting "Saturday 3/2/79 area cleared", but no explanation of those words was given in court.

It will be seen already that there is a difference between the notice served on the appellant, and the wording of the charge, and the evidence given in court. The charge alleges that the appellant failed to comply with the notice requiring him to keep his land clear of scrub, brushwood, undergrowth and garbage to the satisfaction of Nadi Town Council. In the charge there is no reference to overgrown grass, and no reference to the appellant's having to comply within 7 days. It is not disputed that the appellant did at least eventually - clear the land to the satisfaction of the Council, so that the 7-days qualification was an important element of the case against the appellant and should have been mentioned in the particulars of the offence.

The appellant's counsel argued that the charge was defective because of duplicity and uncertainty, but at this stage he may be too late to raise that ground of appeal. However it is open to him to complain that the evidence did not support the charge. Apart from the 7-day qualification already referred to, the question arises whether overgrown grass, or grass comes within the definitions of scrubs, brushwood, or undergrowth. There are no definitions in the Regulations or in the Townships Ordinance or in any other statute that could assist the court. But the definitions in the Shorter Oxford Dictionary most certainly support the appellant.

"Scrub" is defined as "a low stunted tree, brushwood also a tract of country overgrown with this."

"Brushwood" is defined as "a cut or broken twigs or branches, small growing trees or shrubs; thicket or underwood."

"Undergrowth" is defined as "a growth of plants or shrubs under trees, brushwood; the shorter stems of flax or other plants."

From these definitions it will be seen, as one might expect, that grass does not come within any of them, and so the evidence given in court cannot support the charge.

In view of the importance of the efforts to control mosquitoes, it is rather surprising that no other statutory provision can be invoked. Regulations 3(1) and 3(2) of the Nadi Township Regulations seems to me to be badly drafted and entirely inadequate for the purpose. The regulations read as follows: -

"3(1) The Board or an authorised officer thereof may serve upon the owner, occupier or lessee of any land (whether built upon or not) within the township, a notice requiring him to keep such land clear of all scrub, brushwood, undergrowth and garbage, and maintain such land in a sanitary condition to the satisfaction of the Board or of an authorised officer thereof.

(2) Any owner, occupier or lessee of any land failing to comply with the provisions of the last preceding paragraph shall be guilty of an offence."

It will be noted that no time limit is given for complying with the notice so that it is arguable what if any time limit may be imposed. The question then arises what offence is created by sub-regulation (2)? Is the offence "Failing to comply with the notice", or "failing to keep the land clear of scrubs, etc."? Or is the offence - "having been served with a notice, failing to keep the land clear, etc."? What is also not clear is whether the satisfaction of the Board relates to the sanitary condition of the land only, or to the clearing of the land and its sanitary condition. It is not a good piece of drafting. And as a means of ensuring that owners of premises keep the grass on their land cut (or even cleared) it is of no effect.

From what I have said it is quite clear that the conviction cannot stand. The appellant is acquitted and the sentence set aside. The fine and costs if paid must be returned to the appellant.

(Sgd) (G.O.L. Dyke)
JUDGE

LAUTOKA
16th November, 1979