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Suva City Council v Lal [2010] FJMC 140; Criminal Case 13 of 2009 (13 July 2010)

IN THE RESIDENT MAGISTRATE'S COURT
AT SUVA

Criminal Case No: 13 of 2009

SUVA CITY COUNCIL

vs.

JOSHILA LAL f/n Ramanlal

For Prosecution: Mr. Raj R.
For Accused: Ms. Malimali

JUDGMENT

1. Accused in this case is charged for "Act in Contravention of Town Planning Scheme" contrary to sections 27(1) (b) and 27 (5) [as amended by Act no. 8/97] of the Town Planning Act, Cap 139.
   
2. Making his opening submission, prosecutor informed the Court that this particular offence is a 'Strict Liability' offence and thereby sec. 124 of the Criminal Procedure Decree is applicable.
   

Section 124 of the Criminal Procedure Decree 2009

(1) Any exception, exemption, proviso, excuse or qualification —

(a) whether it does or does not appear in the same section as the description of the offence in the Act or Decree or Promulgation creating the offence; and

(b) whether or not it is specified or negatived in the charge or complaint —

is to be proved by the accused person on a balance of probabilities.

(2) No proof in relation to any relevant exception, exemption, proviso, excuse or qualification applying under any Act or Decree or Promulgation to any offence shall be required from the prosecution.

3. Two witnesses testified on behalf of the prosecution. Summary of evidence as follows.
   

Filipo Tawake (PW-1)

After a routine inspection had discovered that the No. 15 Extension Street, Suva which is situated at residential "B" site of Suva Zoning Scheme is being used for commercial purpose namely a Coffin Box Retail and Hearse Service. Accused is the owner of the said property and later had come to know that the accused is not living in the property.
Even though the accused had made an application to the Suva City Council (SCC) for re-zoning of her property on 26th February 2007, the application had been rejected by the council and up to date the property remains in a 'Residential Zone'.

Eric Singh (PW-2)

Accompanied PW-1 in the routine check on 31st January 2009. In August 2009 accused had made another application for re-zoning but neither the accused nor her engineers had attended to the discussions despite of the letter sent by the Engineering section dated 24th August 2009.
Aware that accused had been advised to apply for development permission for a show room but later refused by SCC. Accused was again asked to make re-development application which was accepted by SCC but had not approved so far as there are some outstanding issues to be dealt with.

4. At the end of the prosecution case, the accused and her tenant testified in the Court. According to the accused, after her re-zoning application and development application had been refused by the SCC, she had given notice to her tenant asking to vacate the premises. Notice to vacate dated 01st May 2009, marked as defence exhibit 3 (DE-3) through the witness.
   
5. Accused further informed the Court that she had made another re-development application to the SCC and that application is still pending before the Council. Accused inform that assuming her re-zoning application would be allowed she had allowed the tenant to continue with the business.
   
6. According to the accused, she has not pressed the tenant to vacate as the time is hard for everyone and his family is solely dependant on him. Apart from that she had been convinced by the assurance given to her by the tenant that he is working with SCC to get the application approved.
   
7. According to the accused that there are several commercial activities going in her residential area and therefore she had allowed the tenant to move in on the assumption that her application for re-zoning would be allowed by the Council. Accused admitted in the Court that the business is still running in her property. However, accused stressed the fact that she was misled by the different information she received in different occasions by the Council.
   
8. According to the tenant's testimony he had been running the "Viti Funerals" business at no: 15 Extension Street since 2008 and had not been aware of the zoning of the property before moving in. However, witness admitted making a proposal to the owner in early 2008 about running this sort of business and still continuing the business with the knowledge of the accused.
   
9. Counsel for the accused filed closing submission in writing and prosecuting counsel informed the Court that as this is a 'strict liability' offence, 'mistake' is the only available defence to the accused. In reply to the prosecuting counsel's clarification counsel for the accused informed that they are not disputing the actus reus but they were mistaken by the advise received by the SCC.
   

Analysis

10. According to the contents of DE-3, notice to vacate had been issued based on following grounds.
    
    • Illegal operation of business after been notified by owner in end of January.
    • Running a business from residential B property.
      
11. When considering the reasons mentioned by the accused in DE-3, it is clear that the accused was very well aware of the illegal nature of the business which was in operation at her property and the second bullet point confirms that the accused was aware that commercial activities are not allowed in a 'residential' property.
    
12. DE-3 was introduced to the Court through the accused and according to the contents of DE-3 there is nothing to suggest that accused had been misguided by the information she received from the SCC. Thus, I conclude that accused person was very well aware of the illegality of her actions from the date that her first re-zoning application was refused by the SCC.
    
13. In her closing submission filed in writing, Counsel for the accused had raised a preliminary objection, that is, the SCC's notice dated 31st January 2009 does not sufficiently explain that such notice has a mandatory compliance period of 28 days.
    
14. Mandatory compliance period of 28 days is a requirement under sec. 27 of the Town Planning Act (TPA) and according to the notice marked as PE-2, sec. 27 of the TPA mentioned in two occasions.
    
15. Apart from that, the second paragraph of PE-2 read as follows.
    

"TAKE FURTHER NOTICE that you are now required to cease using the said land for the above purpose by the 01/ 03/ 2009."

16. It is my view, that the above-mentioned paragraph alone very clearly explains the requirements to be met by the receiver of the notice and thereby dismiss the preliminary objection raised at the conclusion of the case.
    
17. As per the reasons mentioned I find the accused is guilty for the offence and convict accordingly.
    

On this Tuesday the 13th day of July 2010

Kaweendra Nanayakkara
Resident Magistrate