Court dismisses prosecution for abuse of process when charging minor repairs after a prior demolition order.

[*311] 1982 January 11

(ELIADES, D.J.)

IN THE DISTRICT COURT OF LARNACA

District Officer of Larnaca,

v.

Petros Madellas and Another,

Accused.

(Case No. 3223/81).

Building - Erecting a structure without permit - Streets and Buildings Regulation Law, Cap.96 - Acts carried by accused amount only to small repairs - Ingredients of offence charged not established.

Criminal Procedure - Autrefois convict - Section 69(1)(b) of the Criminal Procedure Law, Cap.155 - Article 12.2 of the Constitution.

Abuse of the Process of the Court - Demolition order in respect of illegally constructed premises - Not complied with but no contempt proceedings - Prosecution of accused for effecting repairs to such premises - Amounts to abuse of the process of the Court - Prosecuting Authority ordered to pay costs.

Costs - Prosecuting Authority ordered to pay costs in a prosecution which was held to amount to abuse of the process of the Court.

P. Papamichael, for the Prosecution.

M. Nicolatos, for both accused.

JUDGMENT

The following judgment was delivered by;-

ELIADES, D.J.:- Both accused are charged that[*312] on the 1.6. 81 until the 6.6.81 they erected on the foreshore of Larnaca on plot N0.540, Block E, S/P X4/57.4.1 a structure, specifically a kiosk without a permit from the relevant authority.

The

undisputed facts of the case refer to the construction by accused 1 in 1976 of a hut on plot N0.54O which lies on the foreshore of Larnaca,

for which, as a consequence of criminal proceedings having been instituted in criminal case No. 6389/76, a demolition order was issued against accused 1 ordering him to demolish the above-mentioned structure within 2 months as from 7.10.76.

As accused 1 failed to comply with the order no steps were taken by the relevant authority for committal proceeding and during an inspection of the locus in 1981, the Prosecution alleges that accused 1 and 2 effected the following alterations namely:

(1) They installed a new floor.

(2) They installed covers made a straw on the roof.

(3) The installed a fence around the structure made of straw.

(4) They increased the surface of the floor.

The defence did not contest the allegations as such but they disputed the extent of the repairs. More specifically the version of accused was that the floor was repaired by having certain holes cemented and marbles placed on its surface, the floor surface was not increased, covers made of straw were placed on the roof, and covers made of[*313]straw were also placed around the sides of the hut except the side facing the sea. It is quite noteworthy that P.W.1 , Nicolas Mikellides, the main prosecution witness stated in cross-examination, that he thought that the floor surface was extended by up to 10% or less although he did not measure the original surface in 1976.

Learned counsel for accused submitted, amongst others, that the Prosecution is not entitled to ask for a demolition order after having slept for so many years on the demolition order they had obtained in respect of the relevant structure.

It is one of the maxims of Equity that DELAY DEFEATS EQUITIES or EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT. In the words of Lord Camden in Smith v. Clay (1878), "A Court of Equity has always refused its aid to "stale demands, where a party has shet upon his right and "acquisced for a great length of time. Nothing can call "forth this Court into activity, but concience, good faith, "and reasonable diligence where these are wanting, the Court "is passive and does nothing".

A plaintiff is bound in equity to procecute his claim without undue delay, and a Court of Equity will refuse its aid to demands, where the plaintiff has slept upon his right and acquiesce for a great length of time. He is then said to be barred by his laches. The defence of laches, however, is only allowed where there is no statutory bar.[*314]

However as this is a criminal case and the offence a continuous one, (see Verney v. Mark Pletcher And Sons Ltd., (1909)1 K.B.444)this submission cannot he sustained.

There is no definition of the word erect within ‘the meaning of the Law and some, guidance could he drawn from the provisions of the Streets and Buildings Law. (Cap.96) where a definition of the word alteration is to be found. However as the. charge preferred against accused is based on the ground that they "erected" a structure and no such definition can he found in the said law it can he said that no assistance can consequently he derived.

I have considered very carefully the evidence adduced by the Prosecution with regard to the charge preferred against both accused and I cannot see anywhere any evidence which tends to support the charge of erection.

In fact even the main prosecution witness, referred to his findings as alterations and the Prosecution failed to shake the allegation put forward by the Defence that the base upon which the hut was erected was originally constructed in 1976 in the sand and as such of exists up today.

The Court holds that all acts carried by both accused amounted to nothing more than small repairs in the sense of maintaining the unlawfully constructed structure.

It is expressly provided by Article 12(2) of the Constitution that "a person who has been acquitted or

"convicted of an offence shall not be tried again for the same offence. Ho person shall be punished twice for the[*315] same act op omission except where death ensues from such act or omission". .

In view of the provisions of s.69(l)(b) of the Criminal Procedure Law, Cap. 155 it would have been preferable for both accused to enter a plea of autrefois convict. In such a case the principal consideration is whether the offences are different and for the purpose one must study the ingredients of the earlier and subsequent offences. (See Garfield v. Haddocks,(1973) 2 All S.R. p.303).

The question whether the verdict of a Criminal Court on subsequent criminal proceedings may give rise to an estoppel in the way the doctrine is applied in civil cases, was raised in Conelly v. D.P.P. (1964) 2 W.L.R. p. 1145), where the majority of their Lordships took the view that issue estoppel has a limited application in criminal proceedings, in view of their distinct characteristics.

In that case it was agreed that the Court has a general and inherent power to protect its process from abuse by not allowing under certain conditions the case to proceed.

In view of the above it. can be said that the Prosecution has no doubt, chosen the wrong way to proceed with their complaint. Instead of instituting committal proceedings for a clear defiance by accused 2 to comply with the demolition order of the Court in criminal case 6389/76, they preferred to frame similar charges about the same offence which has already been dealt with, in view of certain minor alterations effected by both accused.[*316]

The prosecution has explained that their unwillingness to take committal proceedings against accused 2 was due to a policy of extending their sympathy and tolerance to people who suffered greatly as a result of the Turkish invasion. However they must bear in mind that their magnanimity may he misunderstood as in fact was the case in these proceedings.

Abusing the process of the Court is a term generally applied to proceedings which are wanting bona fides and are frivolous, vexatious or oppressive.

I have examined very carefully the evidence adduced in connection with the proceedings in criminal case 6389/76 to see whether punishment was sought by the same prosecutor twice for the same offence in which case an abuse of the process of the Court could be validly argued. Surely if the same factual allegations are pressed before the same Court, who has already passed a decision which has become final, the process of the Court is thwarted. In view of the evidence adduced I am inclined to the idea that the present proceedings amount to an abuse of the process of the Court and such a finding will have a bearing on the question of costs.

The Prosecution is warned that they cannot obtain orders for demolition of unlawfully erected buildings, sleep upon these orders for years and then institute criminal proceedings against the persons concerned when steps are taken to have the structure repaired or maintained, because in such a case the Prosecution would be taking indirectly steps to have the unlawfully erected building maintained in its previous [*317]conviction, at a time when they ought to take committal proceedings for disobedience.

Considering all the above the Court rules that the Prosecution has failed to establish the ingredients of the offence and both accused are hereby acquitted and discharged.

COURT: Regarding the question of costs both counsel agree that an amount of £30.- is reasonable. Accordingly the Prosecution is ordered to pay £30.- towards the expenses of the lawyer of accused.

Accused acquitted and discharged.