Civil Cases Nos 109 of 1943 & 113 of 1943 (consolidated)

Nuisance - public health - right of a local authority to abate a nuisance -

whether the right is dependent on the conviction of the owner or occupier

of the land on which the nuisance exists - Malaria Prevention Ordinance,

1929 section 8 - Public Health Ordinance, 1921 sections 121, 126 - Civil

Procedure Rules, 1927 order XIII rule 6.

Two cases were stated for the opinion of the Supreme Court under o XIII

r 6 of the Civil Procedure Rules, in which the following facts were set

forth:-

The defendants were the joint owners of plot No 4 of section VII (Land

Reference No 36) situate on Juja Road, Eastleigh, within the area in which

the plaintiffs were the Local Authority within the meaning of the Malaria

Prevention Ordinance, 1929. The defendants made or permitted to be made

a quarry on this land and in consequence thereof excavations were also

made. All such operations were legal and within the defendants’ legitimate

rights. On or about the 17th July, 1940, the plaintiffs served the following

notice on the defendants:-

“Notice is hereby given under and by virtue of the

provisions of section 8 of the Malaria Prevention

Ordinance whereby you are required within 30 days

from the date of service of this Notice, to drain and/or

properly and adequately fill in all excavations, holes,

hollows, or low-lying land on plot No.4, Section VII

Eastleigh (of which you are the owners) to the

satisfaction of the Local Authority, for the purpose of

preventing or suppressing the existence or propagation

of mosquitoes therein or thereupon.

And Notice is hereby further given that if within the

period of time above specified you have not complied

with the requirements of this Notice, the Local Authority

will enter upon the said plot and execute such works as

they may be required thereon for the purpose aforesaid

and charge with the cost of such works.”

The defendants without admitting the existence or otherwise of the alleged

acts or omissions set out in the notice did not comply with it.

The plaintiffs did not attempt to prosecute the defendants for failing to

comply with the notice but on or about 10th September 1940, entered

upon defendants’ land and abated the nuisance caused by the excavations.

Subsequently the plaintiffs claimed the cost of the work performed on the

defendants’ land.

On these facts the following questions were submitted to the Court for

decision:

(1) Are any, and if so what, of the powers and provisions of the Public

Health Ordinance abrogated, repealed or superseded by the Malaria

Prevention Ordinance?

(2) Is section 8 of the Malaria Prevention Ordinance to be construed as if

it were incorporated in and formed part of the Public Health Ordinance?

(3) If the answer to No (2) is the negative, is section 8 of the Malaria

Prevention Ordinance to be construed as being unfettered in its

application without regard to the general provisions in the Public Health

Ordinance relating to nuisances?

(4) If the answer to No (3) is in the affirmative or otherwise, is it obligatory

upon the plaintiffs to give the defendants an opportunity of defending

themselves by instituting proceedings in Court and obtaining a decision

from the Court that that the defendants had been guilty of a contravention

of the Malaria Prevention Ordinance before the plaintiffs themselves

were entitled to enter upon the premises and do work thereon?

Held:

1. That section 8 of the Malaria Prevention Ordinance is to be construed

independently of the provisions of the Public Health Ordinance.

2. That the right of a local authority to abate a nuisance under the Malaria

Prevention Ordinance is not dependent on the conviction of the owner

or occupier of the land on which the nuisance exists.

Cases

1. Sunlife Assurance Company of Canada v Jervis [1943] 2 All ER 425;

[1944] AC 111

2. Corporation of Yarmouth v Simmons (1879) 10 Ch D 518

3. Pirbhai, Jamal and others v Municipal Council of Nairobi Civil Case

No 156 of 1940

Statutes

1. Public Health Ordinance (cap 124) sections 119; 120; 121; 136 (a), (b),

(c)

2. Malaria Prevention Ordinance, 1929 sections 8, 13, 14

3. Civil Procedure Rules (cap 21 Sub Leg) order XIII rule 6

Advocates

Kaplan for the Plaintiffs.

Shapley and Trivedi for the Defendants.