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Nasinu Town Council v Kissun [2012] FJMC 186; Criminal Case 17.2010 (3 August 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 17/2010

NASINU TOWN COUNCIL

-v-

LAKSHMAN SHIRI KISSUN

Mr. Semi Tinivata appeared for the prosecution
The accused is absent.

Judgment and sentence

1] The accused was charged on following counts;

CHARGE:
(Private Complaint)

LAKSHMAN SHIRI KISSUN father's name Shiri Kissun, owner of premises in Lot 16, DP 4608 Secala Road, Nasole, Nasinu is charged on the complaint of the Nasinu Town Council, a body Corporate duly Constituted under the provisions of the Local Government Act, Cap 125 with the following offence:

Statement of Offence [a]

ENGAGING IN ILLEGAL DEVELOPMENT OF UNAUTHORISED BUILDING THAT CONTRAVENES: Contrary to Section 7 (1) and 7 (7) (a) of the Town Planning Act, Cap 125 and also the Public Health Act, Cap. 111.

Particulars of Offence [b]

LAKSHMAN SHIRI KISSUN father's name Shiri Kissun, owner of premises in Lot 15 DP 4608, Secala Road, Nasole, Nasinu is charged on the complaint of the Nasinu Town Council on or about the 19th May 2008, in the Central Division engaged in Illegal Development of Unauthorized Building namely the Contruction of concrete and wooden structure of toilet and wash room without written approval and permission from the Nasinu Town Council and the Director of Town and Country Planning.

2] On 16th February 2012 the accused appeared and sought adjournment to get legal advice. Thereafter he evaded the court. Matter was formally proved. The prosecution tendered affidavit evidence.

3] the evidence of the prosecution is given by Building Inspector Mr. Navneet Chand of Nasinu Town Council . He said;

1. THAT on 15th February a routine inspection was carried at Lot 11 DP Ratu Dovi Road, Nadera. During the inspection it was noted that Illegal Development was carried out by building a structure on the side yard setback.
2. THAT the landlord carried out work without prior approval of Nasinu Town Council and the Director Town and Country Planning. Exhibited herein and marked as Annexure A is copy of the Notice dated 22nd April 2010.

100. THAT the landlord was given thirty (30) days to reinstate the ground to its original status or report to Building Section within seven (7) days from the date of this letter.

4. THAT the final inspection was carried on 21st April 2010 and was found that the Illegal structure still exists. Exhibited herein and marked as Annexure B is copy of the Final Inspection Report dated 18th May 2010.
   

4] These evidence show that the landlord has failed to comply with notice from Building Inspector Contrary to Section 7 (1) and 7 (7) a of the Town Planning Act, Cap 139 and Part III of the Public Health Act and Part VIII of Public Regulations Cap III.

5] I am satisfied with the evidence and documents before me. The Nasinu Town council has followed the procedure laid by the statues and regulation and the accused failed to comply those. The prosecution has proved its case beyond reasonable doubt. I therefore convict the accused as charged.

6] The accused evaded the court. No defence was produced. The accused knew that there was a case, but did not inquire and came forward. Therefore, there is no point to postpone the sentence indefinitely till he is arrested. I consider to sentence him now itself.

7] The maximum penalty in this offence is $1000.00 or 3 months Imprisonment under Section 7 (1) 7 7 (a) of the Town Planning Act Cap 139.

8] Further it is continuous offence upon conviction of the offence the accused will be doing continuous offence charge against him until he complies the provisions. According to Town Planning Act Cap 139 a Court may impose a fine of $20 per day.

9] Therefore I make following orders;

1. The accused to pay $500 as fine In default 50 days imprisonment. Committal Warrant to be issued in this regard.
   
2. The accused is given one month time to submit plan and application for illegal to have the structure legalized. If not, after that the accused should pay $20 per day as fine till he demolishes the illegal structure.
   

100. The Council will take steps to illegal structure be demolished. Cost of demolition to pay by the accused, if not paid to be recovered as fine, every $100 10days imprisonment.
     

10] 28 days to appeal

On 03rd August 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu