IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 251/2012

BETWEEN:

THE SUVA CITY COUNCIL

AND:

01. KAMINIELI VUADREU
02. MERERAI DAWAI

COUNSEL: Mr Z Sahu Khan for the Suva City Council 
Mr A Naco for the Accused 

Date of Hearing: 14/02/2013
Date of Judgment: 14/03/2013

JUDGMENT

01.	This matter was transferred from Suva Magistrate Court to this court for the purpose of Sentencing as it was determined by the magistrate's court that the fine that has to be imposed exceeds the monetary Jurisdiction of the Criminal Division of the Magistrate Court.

02.	The accused was charged on an information filed before Suva Magistrate Court by Suva City Council (hereinafter referred as "SCC") 

Statement of Offence

FAILED TO COMPLY WITH NOTICE FROM BUILDING SURVEYOR: Contrary to Regulations 17(5) and 137(1) of the Towns (Building) Regulations made pursuant to Public Health Act, Cap 111. 

Particulars of Offence

 KAMINIELI VUADREU AND MERERAI DAWAI of 25 Donu Place, Tamavua, Suva IN THE CENTRAL DIVISION did on the 27th day of April, 2009 having been served with a notice by the Suva City Council to stop all work being carried out namely illegal construction of timber structure on Certificate of Title No: 23978 being Lot 24 on DP 4762 situated at 25 Donu Place, Tamavua, Suva without having plans and specifications approved by the Council, failed to comply with such notice. 

03.	 At the end of the hearing in absentia of both accused the learned magistrate found the accused guilty of the charge and pursuant to section 190(b) and 191 of Criminal Procedure Decree 2009, transferred the case to this court to impose an appropriate sentence.

04	 Counsel for the prosecution submits court to consider sections 56(1)(b) of the Sentencing and Penalties Decree, 2009 

05. At the sentencing hearing prosecution called two witnesses and led their evidence before this court.

•	According to Narendra Prasad he has been working as a Building Supervisor of Suva City Council for the past three years. His primary responsibilities are to inspect various building structures within Suva City Council limits and give approval to remove illegal erections and serve notices. He admitted and identified the Building Permit issued to accused. This was marked as Exhibit No: 05 by the prosecution. According to Exhibit No: 5 the expiry date was 17/05/2009. He had served a notice to the accused before the expiry date of the permit as a timber structure which was not approved by the Council had been built on the land. 

Next prosecution marked exhibit No: 06 which is a plan submitted by the accused to Suva City Council which was not approved.

Next witness was shown annexure "A" of the defence's submission. He identified it as the amended approved plan by the Suva City Council. But on the reverse no conditions mentioned. Witness further said after the service of stop notice to the accused the wooden structure still remains on the land own by the accused.

In the cross examination witness said that he served stop notice to the accused on 27/04/2011. Clause 21 of the Exhibit 05 shown to the witness. Witness admitted that as per clause 21of the Building Permit (Exhibit-05) any illegal structure can remain until substantial completion of the approved building. He admitted that proposed building of the accused still not completed. Witness admitted that the building plan marked as "A" was lastly extended on 06/11/2011. Witness admitted as per annexure "A" temporary building is permitted until completion of approved building. Witness finally admitted that as per the permit given to the accused it allows remain of temporary structure until completion of main approved building. Witness agreed that accused had not breached any conditions in this case.

In the re- examination witness said the plan submitted by the accused was not approved by the SCC.

•	Surendra Prasad Sheriff Officer of SCC called next by the prosecution. He confirmed the service of summons to the accused on 04/11/2011. He has served the summons to Lot No: 25 instead of Lot No: 24.

In the cross examination witness said that he served the summons to Lot No: 25 as per the instruction of Building Supervisor of SCC.

06.	 Defence not called any witness and both parties made their submissions.

07.	The learned Magistrate pursuant to sections 190(1) (b) and 191 of Criminal Procedure Decree 2009 transferred this case to this court for an appropriate sentence. Since the prosecution called witnesses during the hearing before this court, this court cannot disregard that evidence to arrive at a final decision.

08.	Section 262(1) of the Criminal Procedure Decree 2009 states as follows:

"In any case of any proceedings in a Magistrates Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may-

(a) in the case of a conviction, exercise any of the powers conferred on it as a Court of Appeal by section 256 and 257; and

 (b) in case of any order other than an order of acquittal alter or reverse such order."

09. As per section 262(1) (a) and (b) this court has power to revise any order made by a Magistrate Court. Hence now this court is proceeding to consider all evidence adduced before this court to arrive at a final decision. 

10. According to prosecution the accused failed to comply with notice from Building Surveyor contrary to Regulations 17(5) and 137 of the Towns (Building) Regulations made pursuant to Public Health Act, Cap 111. To prove this allegation prosecution called two witnesses. The first witness is the person who issued a stop notice after inspection of wooden structure which was built on the accused's land. The accused were permitted to build a building on their land as per Building Permit which had been marked as exhibit-05. The expiry date was 17/05/2009. The witness had served the notice to remove the illegal structure before the expiry date of the permit. But as per the Clause 21 of the Building Permit-
"any illegal structure existing on site must be demolished prior to substantial completion of the proposed work".

As per the Clause 21of the building permit the applicants are entitled to keep any illegal structure till substantial completion of the proposed work.

11. According to annexure "A" and "B"(extended building permits by Suva City Council) submitted along with defence's submission SCC has approved extension of building permit 1st on 17th August, 2008 for two years("A") and second on the 30th January 2012 ("B"). By 27th day of April 2009 the accused had obtained SCC approval for extension of building permit. Therefore accused had never breached any regulations when summons were issued to them.

12. Considering all the documents presented before this court by both prosecution and defence it is very clear that accused had already obtained a written approval for extension of Building Permit from SCC. On the both occasions the extension were approved subject to demolition of temporary building after completion of approved main building. Therefore the issuance of Stop Notice was improper and without any legal basis.

13. Due to afore mentioned reason I set aside the order of the Learned Magistrate and acquit both accused from this case.

14. Prosecution initiated the proceedings against the accused in the Magistrate Court Suva on 27th May 2009. On perusal of the Magistrate Court record it shows that both accused had continuously neglected to appear in the court. Due to their lethargic attitude towards this case the matter got delayed considerably. The accused twice not appeared before this court.

15. Prosecution has filed the action against the accused without considering vital documents presented by the defence.

16. Considering these matters into consideration ordering cost is justifiable in this case. Hence I order $3000.00 cost against Suva City Council payable to the accused within one month's time.

17. 30 days to Appeal.

P. Kumararatnam
JUDGE

At Suva
14/03/2013