Court acquits accused on nuisance charge because council failed to follow mandatory statutory procedure.

[*291] 1972 February 28

(COLOTAS, D. J. )

IN THE DISTRICT COURT OF NICOSIA

Municipality of Nicosia,

v.

Kermia Co. Ltd.,

Accused.

(Case No. 7953/71).

Nuisance

- Keeping premises in such a state as to afford a breeding place for mosquitoes

- A nuisance within the meaning of sections 138-152 of the Municipal Corporations Law Cap. 240 - To be dealt with in the manner provided

by the said sections and the Municipal Corporations (Nuisances) Rules.

Bye-law - Validity - Repugnancy to empowering enactment - Bye-law 95(a) of the Nicosia Municipal Bye-Laws 1938-1962 not repugnant to the provisions of the Municipal Corporations Law Cap. 240, sections 138-152.

D. Georghiades, for the Prosecution.

V, Sarris, for the Accused.

JUDGMENT

The following judgment was delivered by: -

COLOTAS, D.J. : The accused have been already acquitted on count 1 as no prima facie case was made out against them as

regards the said count.

On count 2 the accused are facing the charge of "keeping breeding places for mosquitoes" (Dimiourghia estion konopon) on their premises contrary to Bye-law 95(a) of the Nicosia Municipal Bye-laws of 1938-1962. [*292]

The facts as regards count 2 are in brief as follows:-

The accused are the owner of a building consisting of flats and shops situated at No. 40 Granikos Street, Nicosia. The flats are under tenancy to various tenants whilst the shops are let to a certain Mamas Sophocleous who uses the same as spare-parts shops. Due to a defect in the draining system of the said building some water overflows from the drains and. remains stagnant in the yard of an adjacent building not belonging to the accused. As a result of this situation sources of mosquitoes were created on the said yard and foul smells emerged therefrom. The central draining system of the building is situated underneath the shops of Sophocleous who, as the accused contend, refuses to allow them to repair the drains, although they (the accused) are willing and prepared to do so.

After the closing of the case for the Defence the learned counsel for the accused, submitted, when addressing the Court, that the prosecution failed to prove its case inasmuch as:-

(a) The situation in question is in law a nuisance falling within the provisions of sections 138 to

152 of the Municipal Corporations Law, Cap. 240 and therefore it should have been dealt with in the specific manner provided by the said law and the Municipal Corporations (Nuisances) Rules made thereunder; bye-law 95 is therefore ultra vires the power of the Municipal Council as contravening the provisions of the empowering law; and [*293]

(b) the accused cannot be held responsible for the said situation as they have taken all necessary measures within their power to abate it.

The learned counsel for the prosecution submitted in reply that:-

(a) The situation in question is not a nuisance but an independent offence based only on bye-law 95(a) of the Nicosia Municipal Bye-laws of 1938-1962 and therefore bye-law 95 is not contravening the provisions of sections 138-152 of Cap. 240 which are not applicable in the present case; and

(b) the accused have failed to prove that they have taken all the necessary measures within their power to comply with the requirements of the said bye-law.

Before proceeding further I must say that the prosecution has convinced me, by the evidence adduced, that the state of the premises of the accused in the material time did in fact afford a breeding place for mosquitoes. Actually this is not disputed at all by the Defence either.

It remains now to consider and answer the following questions:-

(i) Is the situation in question a nuisance covered by the provisions of sections 138-152 of the Municipal Corporations Law, Cap. 240 or does it constitute a different and independent offence? [*294]

(ii) If it is a nuisance is bye-law 95 of the Nicosia Municipal Bye-laws in any way repugnant to the provisions of the aforesaid Law? and

(iii) Can the accused he acquitted of the offence which they are facing on the ground that they have done everything within their power to comply with the provisions of bye-law 95(a)?

Section

138 of the Municipal Corporations Law, Cap. 240, provides :-

"138. For the purposes of this Law, the following shall he deemed to be nuisances liable to be dealt with summarily in the manner provided by this Law: -

(a) any premises in such a state as to be a nuisance or injurious to health;

(b) any pool, ditch, gutter, water course, privy urinal, cesspool, drain or ashpit, so foul or in such a state as to be a nuisance or injurious to health;

(c) ...

(d) ...

(e) ...

(f) ...

(g) ...

(h)... (i).. (j) .. (k)...

Provided that …………………………………………………………………….."

Bye-law 95 of the Nicosia Municipal Corporation Bye-laws provides:- [*295]

"95 Every owner, occupier, or person in charge of any building or place:-

(a) Shall keep the same free from all swamps, pools, gutters, ditches, pits and holes where mosquitoes may breed;

(b) ...

(c) ...

(d) ...

(e) …………………………………………………………………………….."

The said bye-1aw was made by the Nicosia Municipality on the power given to it by s. 125 of the Municipal Corporations Law Cap. 240, and its particular object is to enable the council to perform certain duties assigned to tt by section 123 of Gap. 240.

The provisions of s. 1 23 which are relevant to the present case are the following:-

"123. (1) Subject to the provisions of this Law and any other law in force far the time being the Council shall within the municipal limits –

(a) prevent the accumulation in any public or private place of any filth or refuse so as to be dangerous to the public health and take measures for the abatement of any nuisance arising from any public or private cesspool, drain, or otherwise ;

(b) ...

... [*296]

...

...

...

(g) provide that all drains, urinals, privies and cesspits shall be so constructed and kept as not to be a nuisance or injurious to health;

(h)...

(2) ...

(3) ...

(4) The Council shall generally do such other acts and provide for such other measures as may be necessary for the conservancy and cleanliness of the town, the preservation of public health therein and the safety and comfort of the inhabitants thereof".

In order now to answer the first of the above mentioned three questions we must bear in mind the following general principles:-

Whether there is a nuisance or not is in each particular case a question of fact. Furthermore, a nuisance for the purposes of the provisions respecting statutory nuisances must affect the public health, although it is not necessary to prove injury to health; a matter which merely interferes with personal comfort if it is found to be a nuisance may be a statutory nuisance (Halsbury's Laws of England Vol.

31 p. 364).

Turning now to the present case and in the light of the above, I am of the opinion that the keeping of the premises of the accused and in particular of their draining [*297] system in such a state as to afford a breeding place for mosquitoes it causes a nuisance inasmuch as the said state is obviously injurious to health and affects the personal comfort of other members of the public in the area.

The above

conclusion can be safely gathered, in my opinion, by the careful reading of bye-laws 95 and 129 (and form C thereof) of the Nicosia Municipal Bye-laws in conjunction with sections 123, 125 and 138 of the Municipal Corporations Law Cap, 240.

It shall be noted here that, as it can be seen from the testimony of P.W.1 and from Exh, 1, the Municipal Council itself considers the situation in question as a nuisance and injurious to public health.

Having decided that the keeping of premises in such a state as to afford a breeding place for mosquitoes constitutes a nuisance within the meaning of sections 138-152 of Cap. 240, I shall now deal with the question whether bye-law 95(a) of the Nicosia Municipal bye-laws is ultra vires the Municipal Council as repugnant to the provisions of the Municipal Corporations Law, Cap. 240 or not.

In Powell v. May (1946) 1 All E. R. p.444 Lord Goddard,

L. C. J. at p. 446 refers to the judgment in Gentel v. Rapps

(1902) 1 K.B.160 where Channel J. said:-

"Again, a bye-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the bye-law bad as repugnant".

The same judgment (Powell v. May) quotes the following passage from the judgment in Thomas v. Sutters ((1900) 1 Ch. 10, at p. 16):- [*298]

"When an Act of Parliament has forbidden certain things to be done in certain places, it seems to me perfectly consistent with that that a municipality, with regard to their particular locality, should go somewhat beyond the Act, not contravening its spirit, but carrying it out, and making regulations somewhat wider than those to be found in the Act".

Turning again to the judgment in Gentel v. Rapps (1,900-3) All E.R. Rep. p. 152 at p. 156, Channel J. says:-

"I think that the recent cases, such as, for instance, Kruse v. Johnson (1), have settled that where an authority has power to make bye-laws to prevent nuisances they can declare particular things to be nuisances in particular places if these things are of a character which may possibly be a nuisance. That is because it is for the authority to say under their power of making bye-laws whether it is a nuisance in the place to which the bye-law applies - e.g. in a tram. The cases clearly establish that it is not necessary to add the words 'So as to be in fact a nuisance'. That is not necessary where you are specifying in the bye-law the particular place..." [*299]

I have referred to the above cases in order to show that a bye-law is not repugnant to the empowering enactment unless it provides something inconsistent with the provisions of the empowering statute; it is not bad merely because it goes somewhat beyond the statute, provided, of course, that it does not contravene its spirit.

As regards now bye-law 95 of the Nicosia Municipality bye-laws, in view of the above, I am of the opinion that it cannot be considered as contravening any of the provisions of its empowering enactment and therefore it cannot be considered as made ultra vires the power of the Municipal Council. It merely enumerates certain things which are considered by the Council to be dangerous to the Public Health and which are within the spirit of the empowering Law. Furthermore there is nothing in the said bye-law, or in any of the other bye-laws of the Nicosia Municipality, which debars the Municipal Council from following the procedure laid down by sections 138-152 of Cap, 240 and the Municipal Corporations (Nuisances) Rules; there is nothing, indeed, therein providing that the Council has to follow any other procedure in dealing with any breach of the said bye-law. On the contrary, the only bye-law which provides for the punishment in case of any breach of the bye-laws in question, i.e. bye-law 213, says clearly that it is applicable "save where other provision is made in any Law".

After having found that the accused were keeping their premises - in the material time - in such a state as to afford a breeding place for mosquitoes which state is [*300] in law a nuisance and injurious to health and that bye-law 95(a) is not repugnant to the provisions of sections 138-152 it is obvious that the Municipal Council could and should have followed the procedure specified in sections 138-152 and the Municipal Corporations (Nuisances) Rules, the provisions of which are in my opinion of a mandatory nature.

Since therefore the Council failed to deal with this case in the manner provided in sections 138-152 and the relevant Rules (i.e. it failed to serve the proper notice upon the accused as provided by the Law and furthermore it did not commence the present proceedings by filing the proper application as provided by the Municipal Corporations (Nuisances) Rules the charge against the accused cannot stand and consequently the accused are acquitted and discharged.

In view of my above decision I consider it unnecessary to deal with the question whether the accused have taken proper and sufficient steps to comply with the requirements of the Municipal Council a not.

Accused acquitted and

discharged.

1 (1898) 2 Q.B. 91