PEAL from a judgment of the Municipal Magistrate, Colombo.
E. B. Wikramanayakt, K.C., with F. W. Obeysekera, lor the accusedappellant.
No appearance for complainant respondent.
Cur. adv. vult
May 9, 1949. Nagalinoam J.—
Tho aocused in this case has been charged with and convicted of havingcommitted an offence under section 2 (1) of the Nuisance Ordinance,Cap. 180, Legis'ative Enactments of Ceylon. The proceedings, howev er,reveal an exhilarating comedy. A medical man, an anaesthetist,complained to the Chief Medical Officer of Health of the City that hisneighbour, the accused, was keeping an aquarium and that the obnoxiousodours emanating therefrom defied description. A Sanitary Inspectorinspected the premises of the accu°ed and found a rovi of foul (sic) cagesalong the boundary separating the accused's premises from those of theman of medicine. The Municipal Magistrate at the invitation of theparties inspected the premises and found an aviary.
The evidence is so unsatisfactory that it is not possible to say withany degree of certainty whether the nuisance complained of is in respectof an aquarium, an aviary or a fowl run. lire accused in the course ofhis evidence expressly stated that unpleasantness arose between himselfand the medical man over tho latter’s servant pruning and thinningthe hedge that stood along the boundary separating the two premises.The accused apparently claimed the hedge as his. He is the owner of thepremises where he lives. The Doctor is a tenant of the p-omises occupiedby him, but claimed the right to prune the hedge; as a result, hot wordswere exchanged between the neighbours. The complaint by the Doctorto the Municipal authority was after this incident and the accused saysthat the complaint was not- a bona fide one but that it had its origin inmalice and spite and one that was totally unfounded.
On receipt of the complaint, the Municipality sent a notice to theaccused alleging that the “ premises arc in such a state as to be a nuisanceto or injurious to health owing to their being in a filthy and unwholesome
state and prescribing the remedy thus : “ Abate nuisance by screeningoff effectively the fowl cages placed near the boundary between abovepromises and No. 04, Ward Place. ” This notice purports to have beensigned by some officer on behalf of the Chief Medical Officer of Health,and that speaks well for the Chief Medical Officer, for it is the height ofhidicruusness for anyone, much less a highly paid Medical Officer, tosuggest that premises in a filthy and unwholesome state could be renderedclean and wholesome by the simple expedient, of screening off the offendingfowl cages from the view of the neighbours.
The accused, who describes himself as a poultry and bird fancier andwho has been Secretary of the Ceylon Poultry Club shows, paid little orno heed to this notice and the learned Municipal Magistrate in hisjudgment .says that ho cannot understand why the accused does notcomply with the notice. On behalf of the accused it was said that asthere were no fowl cages which could be screened off, it was impossibleto comply with the notice. On the occasion the learned Magistrateinspected the premises of the accused the cages did in fact containp:geons and not fowls. In his evidence-in-chief the Municipal SanitaryInspector did not say that he found any fowls in those cages. Hecontented himself with describing the state of the cages as being filthywith “ fowl droppings, feathers and stagnant water in empty oigarettetins ”. He says that on the expiry of the time allowed by the noticefor abating the nuisance he inspected the premises again and found•-the cages in the same condition as earlier but it was only under cross-examination when he was pressed as to w hether the cages he referred to'did'contain any birds at the dates of his visit, that he took upon himselfto say that he found fowls and not pigeons.
The doctor who was called as a witness does not refer to these cages asfowl runs but he refers to them as bird cages. It is truo that in the bookof (fdiesis we read of the fish of the sea ami the fowls of the air and inthe latter case birds of tho air no doubt are referred to, but when wcrefer to the inhabitants of the barn yard we refer to them simply as fowlsand their cages are called fowl runs and not bird cages ; that the Doctorhimself used the term very advisedly is clear, for he stated he could notsay whether “ there are fowls or pigeons in those cages. ” though ac-cording to the Doctor and confirmed by the Sanitary Inspector, thesecagei Were no more than fifteen feet from tho w’ndow of the Doctor’sbed-room. The accused, on the other hand, is quite definite that therewere never fowls in the cage3 complained of.
It is not unimportant to take into consideration the testimony of theaccused that ho has won several prizes for poultry and pigeons; for aperson who breeds expensive strains of poultry and pigeons is not likely,apart from civic considerations but from pure self-interest to keepaviaries or fowl runs in a filthy or unhygienic condition. The evidenceof the accused receives support from the evidence of the MunicipalInspector and of the Doctor. The Inspector nowhere says that anystench or odour emanated from the cages he referred to. He confinedhimself only to fowl droppings, feathers and stagnant water in emptycigarette tins He does not say, assuming that what he did see wasfowl droppings ”, that there was an accumulation of fowl droppings
NAGALINGAM J.—Amcen v. Edwin
over a period of days or months indicating that the cages had not beenattended to. If in fact no attention had been paid to these cages thefirst thing that would have attracted one's attention would have beenthe offensive smell that would have emanated from them, but theInspector says not one word about it. The presence of feathers, on theother hand, with no noxious smell about the cages tends to indicate thatpigeons rather than fowls have had the shelter of the cages ; in regard tostagnant water iu cigarette tins, it is impossible to believe that theMunicipal Inspector used the term '‘stagnant water’' in the sense inwhich the term is understood certainly in relation to nuisances. Itwould be idle to talk of water in a glass, replenished from time to time,as stagnant water, though etymologically it w*ould be correct to saythat it is water that does not flow. But stagnant water at the presentday not only means water not flowing but from which offensive odouremanates. A clear pool of water with no offensive odours about it cannotbe described as stagnant water. The Inspector 'does not even say thatthe water he saw in the cigarette tins had stood in them for a long timewithout having been renewed or replenished from time to time. TheMunicipal Inspector, therefore, made use of a stereotyped formula ingiving evidenco without committing himself too much to facts observedor seen. The Doctor’s evidence, however, is that there was an offensiveodour from those cages from the droppings of the birds. The Doctorfurther stated that on occasions there had been smell like that of deadrats, but this may be so, and the smell may have emanated from in .factdead rats. Bnt there is no evidence whatsoever to connect the smell ofdead rats with any smell emanating or that could possibly emanatefrom the cages that are complained of. It is therefore clear that on thepoint as to whether there is any offensive odour from these cages theevidence is that of one witness who is not corroborated by the onlyother witness called for the prosocution and is contradicted by theaccused.
The Doctor, it seems to mo, overreaches himself when he says that hecould from his bed-room see the “ dirt ” in the two cages, and althoughhe does not say so in so many words, it is obvious from his evidencethat it was the pruning of the hedge by his servant that made it possiblefor him to have a view of the “ dirt *1 in the cages. But this is a surprisingphenomenon, for the Doctor is unable to identify from the very bedroomfrom where he says he was able to notice the dirt whether the muchlarger objects therein were pigeons or fowls. Is it to be supposed thata person of the eminence and erudition of a medical man is incapable ofdistinguishing a pigeon from a fowl ? Or is the inability rather not due toobstruction of vision ? If so, the only inference possible is that theDoctor could not see into the cages at all. If this inference is correct,is it possible to take him seriously when he says he saw “ dirt ” insidethe cages which are much tinier objects ?
The Doctor’s own solution to the problem of abating the nuisanceis the same as that of the Health Department and consists in the twocages being screened on his side. The learned Magistrate has acceptedthis evidence, for in convicting the accused the learned Magistrate saysthat the nuisance is quite easily remedied at least appreciably by merely
CAJfEJSEBAT^NE J.—Thambiak v. Tennehoon
screening off the unscreened parts of the two cages on the Doctor’s side.I do not think that this is a satisfactory method of abating a nuisancecaused by fowl droppings, feathers and stagnant water.
There is no evidonce in this case that the state of the accused’s premisesare such that it is injurious to the health of any person. The only otherquestion is whether it amounts to a nuisance. The term “ nuisance ”was defined by Knightbruce V.C., in Walter v. Selfe 1 as an “ incon-venience materially interfering with the ordinary comfort physically ofhuman existence not merely according to elegant or dainty modes andhabits of living but acoording to plain and sober simple notions amongstEnglish people X think this definition may well be applied in Ceylonwith the substitution of the word “ Ceylonese ” for “ English Judgedby this test it cannot be said that the condition of the accused’s premisesis such as to amount to a nuisance.
It is a pity that the Municipal authorities should have permittedthemselves to have been made tools of by one irate neighbour to pay offa grudge against another. Not the slightest attempt appears to havebeen made to find out before the plaint was filed whether the evidenceavailable disclosed an offence or satisfied the provisions of the law underwhich it was proposed to prosecute the accused.
I think this is a fit case where the complainant should be condemnedto pay the costs of the accused. I set aside the conviction appealed fromand acquit the accused and order the complainant to pay to the accusedthe costs of appeal.
A reused acquitted.
' 4Q.D.6S. 322.