IN 1959, a city businessman had his building extended in breach of the Public Health Ordinance and became the recipient of a ‘Pull-down Order’ by the BG High Court. But on appeal, the ‘pull-down order’ was found by the Federal Supreme Court to be a “wrongful exercise of the High Court’s jurisdiction,” and was set aside.

Dr. Fenton Ramsahoye, SC, and Mr Clarence Hughes, SC, appeared for the appellant, while Mr C Lloyd Luckhoo, SC, with Mr MS Rahaman represented the respondent.

The Federal Supreme Court was constituted by Chief Justice Hallinan and Justices Lewis and Marnan.

Justice Hallinan, in his judgment, noted that on September 1, 1959, the Georgetown Town Council issued a summons in the magistrate’s court against the appellant under Section 136 of the Public Health Ordinance, Chapter 145 [BG], for breach of that Ordinance.

According to Hallinan, the building inspector had visited the appellant’s premises at Lot 9, Camp Street, Newburg and found that he had extended the building on the northern side by a structure 8’ 6”x 47’ 6” so that a building, the authorized area of which was 767 square feet, had been increased by 403 square feet.

After numerous adjournments in the magistrarte’s court, the appellant, during the absence of the Town Council’s lawyer, succeeded (in circumstances which reflect little credit on the Court, and still less on the appellant) in amending the summons so that the area, the subject matter of the defence, was reduced from 403 square feet to a mere 67

square feet; whereupon the appellant quickly pleaded guilty and the magistrate fined him $10.

But even after the case in the magistrate’s court had ended, the appellant continued to extend his building, and by February 17, 1960, the area of unauthorised building had reached 406 square feet. The Town Council then launched the present proceedings in the name of the Town Clerk, claiming a declaration that the appellant had, by altering and adding to the building , done acts of nuisance, and was in breach of the Public Health Ordinance and of the Bye-laws, made under the Georgetown Town Council Ordinance, Chapter 152 [BG]; the Town Council also claimed a mandatory injunction that the appellant should pull down the unauthorised building, and an injunction to restrain him from doing further alterations or additions.

According to the Chief Justice, the court granted the Town Council the declaration as claimed, and also granted an injunction to restrain the appellant from doing and making further additions or alterations.

As the Chief Justice would observe: “It can be said at once that the declaration granted by the High Court cannot stand. There was no evidence of nuisance, and no authority has been cited to us where a declaration was made in civil proceedings that the defendant had committed a criminal offence. On principle, I am of opinion that it is a wrong exercise of the court’s jurisdiction to give a declaratory judgment of that kind.

“However, had this action been properly constituted, an injunction might have been an appropriate remedy.”

After citing a number of similar cases, he said: “There is at least one exception to the general rule: There may co-exist a remedy by injunction to protect a right. It cannot be disputed after Cooper v Whittingham, that if a plaintiff is suing in a personal right to himself, he may be protected by injunction. The Attorney General suing in the invasion of the public rights has at least as large a right to invoke the protection of the court.

“But the main ground of appeal is that the respondent had no locus standi, except at the relation of the Attorney General, who should have been the plaintiff in these proceedings. It was submitted that the acts alleged against the appellant did not infringe any right vested in the Town Council, either under Chapter 145, or under Bye-law l5, made under Chapter 152.”

As he went on to explain: “Where the local authority, which have certain special rights to sue in their own name for certain special remedies, but have not done so, and are trying to put in suit a public wrong , they must do it in the recognized way, namely, at the suit of the Attorney General.”

The Chief Justice also cited a case on the point where it was held. “And I think it rather to be deprecated that public bodies such as the plaintiffs in this case, should be at liberty, without the leave of the Attorney General, to commence expensive proceedings such as these, at their own will.”

Chief Justice Hallinan said in his concluding remarks: “In the present case, what counsel for the respondent called the ‘right’, which the bye-law created is really a power and not a right. Even if the present action is regarded as brought to prevent the infringement of laws relating to public health, the right to enforce these laws is not limited to the inhabitants of Georgetown; such laws are made for the protection of the public in general.

“It was this kind of right which the Court of Appeal held to be a public right in Davenport Corpn. V. Tozer (4).”

Chief Justice Hallinan, in closing, said: “Obedience to bye-laws as to the construction of a dwelling house, is, I think, a public duty, and disobedience to their instructions is prima facie a public wrong…

“I think the judgment in this case should be set aside and judgment entered for the appellant with costs here and below.”
Other Justices of Appeal concurred.