Night watchman acquitted for refusing to maintain refuse container as he is not an occupier.

[*83] 1985 July 26.

(KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Municipal Corporation of Nicosia,

v.

Andreas Mayias,

Accused.

(Case No. 19510/84).

Words and phrases - Occupier within the meaning of Bye-Law 101 of the Nicosia Municipal Corporation Bye Laws, 1965-73 - Person occupying premises in virtue of his office - Whether an occupier.

Criminal Procedure - Charge - Particulars.

A. Papakokkinou (Miss), for the Prosecution

H. Papandreou, for the Accused.

JUDGMENT

The following judgment was delivered by: -

KALLIS, D.J.:- The accused in this case was charged on two counts of the offence of laying refuse in unsuitable containers and of the offence of not maintaining suitable sanitary refuse containers. The charges were laid under Regulations 101(5) and 216 of the Municipal Corporation Nicosia Bye-Laws 1965-1973. Regulation 101(5) which is the regulation creating the offence speaks of liability of the “owner”, “the tenant” or “occupier” of premises. [*84] According to the evidence of the prosecution the accused was occupying certain premises at Pallouriotissa and was not maintaining a suitable sanitary refuse container. The accused in his sworn testimony said that he resides at Latsia and makes use of the premises at Pallouriotissa which belong to his employers, in the performance of his duties as night watchman of the property of his employers which is in the vicinity of the premises. He works from 3.45 p.m. - 8.00 daily from Monday - Thursday and on Fridays from 3.45 p.m. until 8.00 a.m. of Monday. During his stay in the premises for the purpose of the performance of his duties as night watchman he prepares coffee for himself and occasionally he cooks his meals. On the evidence of the accused, which I have no reason at all to disbelieve, I find that accused makes use or occupies the premises in question in virtue of his employment, and for the purpose of carrying out his duties as a watchman; and since the charge - though not expressly stating so - is based on his capacity as occupier the question arises whether he is an “occupier” within the meaning of the above bye-laws. In the Municipal Corporations Law, Cap. 240 and in the above bye-laws there is no definition of the word “occupier”; and therefore, recourse should be sought to case-law. It has been held (see Clarke v. St. Mary, Bury St. Edmunds, 26 L.J. C.P. 12; Bent v. Roberts, 3 Ex. D. 66; R. v. Spurrel, L.R. 1 Q.B. 72; Tennant v. Smith, (1982) [*85] A.C. 150) that “a servant, or other person who may be in the premises virtute officii is not an occupier”. With this construction I have no reason to disagree and, therefore, I conclude that the prosecution has failed to prove a substantial ingredient of the offence charged, namely that accused is an “occupier” of the premises in question. Accordingly the accused is acquitted and discharged.

Having concluded as above, I would draw attention to the absence of sufficient particulars in the charge. In view of the provisions of the bye-law creating the offence, it is at least expected that the charge should state the capacity under which accused was in the premises - owner, tenant, occupier; but such capacity was not stated and was sought to be established by evidence. It should be stressed that it is the constitutional right of the accused, safeguarded by Article 12(5) (a) of the Constitution, to be given adequate particulars of the charge. (See, also, Chrysostomou v. Police,

(1971) 2 C.L.R. 176) and the charge in this case fell far below the required standards of particularity. In view, however, of my conclusion on the substance, I leave the matter at that.

Accused acquitted and discharged.