A building contractor constructed a 22’ x 13’ kitchen pen (building) without permission by the

local sanitary authority, in accordance with the Ordinance and was convicted by a magistrate.
But on appeal, his counsel, Mr. Ashton Chase submitted to the Full Court that the Ordinance did not classify a kitchen pen as a building and as such his client was not at fault.
As a consequence, the Full Court constituted by Chief Justice Joseph Luckhoo and Justice Guya Persaud dismissed the appeal.

But in its judgment the Full Court said: “We are grateful to Mr. Shahabuddeen for his assistance in this matter, but we will not award costs to the respondent who did not appear at the hearing of this appeal, and who, as far as we are aware made no arrangements to brief counsel.
Appeal dismissed.”

Mr. M. Shahabuddeen, Crown Counsel, had appeared amicus curiae, (friend of the court).
According to the Judgment of the Court: “The facts as found by the magistrate in this matter were that the appellant erected a new structure measuring 22 feet by 13 feet 6 inches, with a roof sloping from 7 feet to 6 feet 6 inches at lot 630 East Ruimveldt and that he used that structure as a chicken pen.

The evidence was that the structure had been erected over a new concrete floor and stood on new uprights. It was accepted that the permission of the local sanitary authority was not obtained for its erection.
As a result the appellant Graham was prosecuted for erecting a building without approval, contrary to s.136 of the Public Health Ordinance, Cap.145, whereupon he was convicted, and an order was made for the structure to be taken down. It was against the conviction and order that the appeal was brought.

The short point to be decided was whether the structure fell within the definition of the term ‘building’ as set out in s 2 of Chapter 145.
There “building” is defined to include

“any house, kitchen, storeroom, garage or other out-house, or part thereof being part of any premises, whether permanent or temporary.
Counsel for the appellant argued that Part XII of the Ordinance of which ss. 136 and 141 formed part, was devoted to housing and district planning. He submitted that although the appellant might have committed some other offence, there was no contravention of s. 136.

He contends that s. 141 authorised the making of regulations relating to buildings intended for human habitation only, and that this was to be gathered from the scheme of Part XII as a whole…. For the purpose of the case reference could be made to para. (d) of s,141
“The Board may make regulations with respect to the erection and sanitary control of buildings and in particular with regard to …. the keeping of domestic animals, and the distance of any stable, pen, byre, sty or manure heap from any building. ….”
“We are of the opinion that para (d) of s. 141 contemplates a structure such as the one which is the subject matter of this appeal, and that such a structure falls within the definition of the word

“building” in s, 2 of the Ordinance.
“The Public Health Ordinance is an Ordinance to make provision for promoting the public health of the Colony, and we feel, as was said in Super Sites Ltd. v Keen [1938] 2 All E. R. 471, that in making his decision the magistrate was entitled to take into consideration the mischief against which the section in which the word was used was directed.

“As indicated above, we are of the view that the decision of the magistrate should stand undisturbed. The appeal is dismissed and the conviction and order affirmed. We are grateful to Mr. Shahabuddeen for his assistance in this matter, but we will not award costs to the respondent who did not appear at the hearing of this appeal, and who, as far as we are aware, made no arrangements to brief counsel.
Appeal dismissed.