THE findings that a Magistrate’s Court had indulged in a wrong exercise when it issued a mandatory injunction restraining Mr. Insanally from making additions to his building earned the comment about wrong exercise from the Federal Supreme Court.Because the Council did not relate the matter to the Attorney General etc. the Federal Court allowed the appeal by Insanally, since it was a wrong exercise of the Court to give a declaration that a defendant has committed a criminal offence.
At the end of the four-day hearing judgment was entered for Insanally with costs awarded.
The facts of the case disclosed that in 1961, the Georgetown Town Clerk obtained a declaration from the Magistrate’s Court that Mr. Insanally by altering and making additions to a building had committed acts of nuisance and was in breach of the Public Health Ordinance.
A mandatory injunction was also granted to restrain the appellant Insanally from doing and making further additions or alterations.
But the Federal Supreme Court, constituted by Chief Justice Sir Eric Hallinan and Justices A. M. Lewis and J. F. Marnan held that the exercise was wrong.
According to the Federal Supreme Court it is a wrong exercise of the Court’s jurisdiction to give a declaration that a defendant has committed a criminal offence.
According to the Federal Supreme Court the acts alleged against the appellant did not infringe on any right vested in the Town Council but constituted a public wrong and accordingly the Town Council could not sue except with the involvement of the Attorney General.
Representing the appellant were Dr F. W. H. Ramsahoye and C. A.F. Hughes and Mr. C. Lloyd Luckhoo, Q. C and Mr. S. Rahaman for the respondent.
Sir Eric Hallinan in delivering the judgment said: “The Georgetown Town Clerk on September 1, 1959 issued a summons in the Magistrates Court against the appellant under Section 136 of the Public Health Ordinance, Chapter 145 for breach of that Ordinance. The building inspector has visited the appellant’s premises lot 9, Camp Street, Newburg and found that he had extended the building on the northern side by a structure 8’ 6” by 47’ 6” so that a building whose authorised area was 767 square feet had been increased by 403 square feet. After numerous adjournments in the Magistrate’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 offence was reduced from 403 square feet to a mere area of some 67 square feet ; whereupon, the appellant quickly pleaded guilty and the magistrate fined him $10.
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 496 square feet. The Town Council then launched the present proceeding 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 by-laws made under the Georgetown Town Council Ordinance Chapter 152 ;also the Town Council 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.
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 and alterations.
The Chief Justice added: “It can be said at once that the declaration granted by the Court cannot stan0d. There was no evidence of nuisance and no authority has been cited to us where declaration was made in civil proceedings that the defendant had committed a criminal offence. On principal I am of the 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 – A. G. V. Ashbourne Recreation Ground Co; (1903) 1Ch.D.101, and A.G. v. Wimbledon House Estates, [1904] 2 Ch. D. 39 are cases where suits were successfully brought by the Attorney General on behalf of the public to restrain by injunction infringement of statutes dealing with public health and by-laws, made thereunder.
Sir Eric in his final remarks said: “Obedience to bye-laws even 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.
The other judges of the Federal Supreme Court concurred.
Written By George Barclay