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Nasinu Town Council v Faiyam [2012] FJMC 129; Criminal Case 194.12 (8 June 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 194/12

NASINU TOWN COUNCIL

-v-

MOHAMMED FAIYAM

Mr. V. Sharma for the Prosecution.
Accused in person.

Sentence

1] The Accused MOHAMMED FAIYAM is charged with following offence.

CHARGE:

(Private Complaint)

MOHAMMED FAIYAM Owner of premises at Lot 37, Kalokalo Crescent, Makoi, Nasinu, is charged on the complaint of Nasinu Town Council a Corporate body Duly Constituted under the Local Government Act, Cap 125 having its office at Mayoral Drive, Valelevu, Nasinu on the following offence:-

Statement of Offence [a]

Failing to comply within the specific time the requisitions of a notice to abate a Public Health Nuisance Contrary to Sections 57, 58, 65 and 140 of the Public Health Act Cap 91 and failing to comply with the requisition of a notice.

Particulars of Offence [b]

MOHAMMED FAIYAM Owner of premises at Lot 37, Kalokalo Crescent, Makoi, Nasinu, in the Central Division did on or about the 23rd day of May, 2011 for failing to comply within the specified time the requisitions of a notice to abate a Public Health Nuisance at your premises namely:

3. Defective vent pipe emitting foul smell;

4. Discharge of waste water into a concrete v drain from Residential allotment causing health hazard to the neighbors and further that you failed to comply within the specified time allowing the nuisance to exist.

3] Facts as charged and the accused admitted the facts.

4] On 01st of May 2012 the accused pleaded guilty to the charge. But the penal section is ambiguous.

5] The accused was charged under Public Health Act Cap 91.When I see cap 91, it is Aliens Act, an act to provide for the registration and deportation of aliens. The real legislation should be Cap 111. The court may disregard as this is a typing error.

6] The Penal section is given as section 140. I reproduce penal section of the Public Health Act for clarity. It says;

"This Act shall not apply to Fijian villages:

Provided that, after consultation with the Fijian Affairs Board, the Minister may, by order, apply any Part or provision to any of such villages.

(Amended by 12 of 1966, s. 2.)

*Part VII applied to all Fijian villages with effect from 15th Nov., 1966-notification 12th Oct., 1966."

7] It seems to me the penal section is also wrongly mentioned. Literally, charge is blatantly wrong and particulars given in the charge sheet are also misleading. The accused has right to know to what that he was convicted and sentenced. He may admit the charge but that is a different matter. Moreover, the Court cannot find the exact penal section and it is seen there are so many amendments to this legislation.

8] I therefore dismiss the charge. This is a continuous offence. Prosecution may charge the accused again mentioning proper penal section with taking proper procedure.

09] 28 day to appeal

On 08th of June 2012, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu