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Present: The lion. 8ir Joseph T. Hutchinson andMr. Justice Middleton.
FORREST v. LEEFE.
P. Qalle, 47,198.
Criminal Procedure Code, ss. 105, 109, 388, and 425—Order to abate anuisance—-Appeal lies—What constitutes a public nuisance.
An appeal lies against an order absolute (under -section 109, CriminalProcedure Code) to abate a public nuisance.
Aperson cannotbylongcontinuance ofhis practice acquire a
right to carry on a business in Buch a way as to be a public nuisance.If the place where he carried it on was' at first surrounded by loudon which there were no dwellings, but houses gradually approachit, so that it becomes a nuisance to the inhabitants, they have aright to have it abated. He cannot by making injurious noises orsmells for a long time deprive the public of the right to live peaceablyandcomfortably onthelandnear him. Thedoctrine that a man
who44 goes to ” a nuisance hasno legal right tohave it abated is not
nowaccepted; therearethings which wouldbe a nuisance in a
quiet village, which we would not consider to be a nuisance in acrowded manufacturing town.
rr HIS was an appeal against an order absolute to abate a public
1 nuisance made under section 109 of the Criminal ProcedureCode. The facts appear sufficiently from the judgments. The casewas first argued before Middleton J.
H. J. C. Pereira, for the appellant.
Qarvin, (7.(7. (with him Akbar), raised the preliminary objectionthat no appeal lay against an order made under section 109.Middleton J. referred the point for the consideration of a Bench oftwo Judges.
Garvin, (7.(7. (with him Akbar, G.C.). for- the respondent.—Noappeal lies against an order under section 109. The order is not afinal order for the reasons given by the Full Court in Gulantaivaluv. Somasundram.1 The powers of the Court are not exhausted withthe order made under section 109. See sections 110 and 111.
H. J. (7. Pereira (with him H. A. Jayewardene), for the appellant.—This is a final order. The moment the conditional order is madeabsolute, finality is reached. The fact that the Court has notexhausted^ all its powers with the making of the order is immaterial;otherwise no judgment of a criminal court will be final until the
* 11905) 2 Bal. 122.
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May 9, 1910 accused had suffered the punishment imposed. Numerous appealsForrest v. have been entertained by this Court and in India against* ordersLeefe made under section 109.
[Their Lordships took time to consider their decision on the pointargued, and after consideration intimated that they would hear theappeal.]
H. J. C. Pereira, for the appellant.—The proceedings in this caseare irregular. The first Magistrate, Mr. Forrest, appears to haveacted both as prosecutor and judge when he made the order undersection 105. Under section 105 the Magistrate has no power toinitiate proceedings ex mero motu suo. He can only act on receivinga report or other information. The special procedure provided bychapter IX. was not followed; the Magistrate, Mr. Forrest: originallypurported to act under section 148 (c), and not under section 105.[Hutchinson C.J.:Every criminal proceeding must commence
under section 148.] But there is a special procedure under section105. In ordinary cases a Magistrate may initiate proceedings ofhis' own knowledge and only issue summons. In this case Mr.Forrest has made an order against the accused under section 105;and it was for the accused to show cause against the order. TheMagistrate may only initiate proceedings under section 348 for“ offences." Section 105 does not refer to offences only, but alsoto various matters which are not offences. See Penal Code, section 8,for definition of offence. The order under section 105 merely saysthat the noise interferes with the business of the Court; it does notsay that the noise was injurious to the health or physical comfortof the community. Though it must be admitted that a personcannot, strictly speaking, acquire a prescriptive right to commit apublic nuisance, yet the public would be estopped from complainingof the nuisance after the lapse of a long time. Here the cooperagehad existed for forty years. The Crown itself sold the landTo theaccused for the cooperage. Counsel cited the following authorities:Directors of Si. Helen's Smelting Company v. Tipping * 3 Nathan'sCommon Law of South Africa 1793 and 1794, Du Toit v. De Bot*Rex v. Cross,3 Rex v. Watts,4, The King v. Lloyd,5 Polsue andAlfieri v. Rushmer * Seeks v. Omera.7
Akbar, C.C., for the respondent.— The case was tried, not byMr. Forrest, but by Mr. Kindersley. Even if the proceedings beforeMr. Forrest were irregular, that would not vitiate the wholeproceedings (see section 425, Criniinal Procedure Code). TheCrown cannot grant to any person a right to commit a publicnuisance (see The Attorney-General v. Burridge9). Rex v. Cross3 was 1
1 (1555) 11 Rouse of Lords 642*6 (1803) 4 Espinassts Nisi Prius Reports 200.
*2 8.0.213.*(1907) A* 0.121.
(1826) 2C. & P. 483.’ 3 Trans. Reports 284.
(1829) Moody and Malkins 281.* (1822) 10 Price 350.
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over-ruled by Hole v. Barlow,1 Archibald’s Pleading and Evidence May 9, 19101027 (2l8t edition). Counsel also oited Pollock on Torts 408 (8th Forest v.edition); Encyclopedia of the Laws of England, VI., 232.
CurK adv. vult.
May 9, 1910. Hutchinson C.J.—
The Magistrate made a conditional order under section 105 ofthe Criminal Procedure Code requiring the appellant forthwith toremove his cooperage from the vicinity of the Magistrate's Courtat Galle, or to appear and show cause why the order should be.modified or set aside. The appellant duly appeared and showedcause; evidence was taken, and the Magistrate after hearing theappellant and the complainant made the order absolute. This is anappeal against the order made on March 4, making the conditionalorder absolute.
The respondent’s counsel took the preliminary objection that noappeal lies.
Section 338 of the Criminal Procedure Code enacts that, “ Subjectto the provisions of the last three preceding sections," which do notapply in this case, " any person who shall be dissatisfied with anyjudgment or final order pronounced by any Police Court or District-Court in a criminal cause or matter to which he is a party mayprefer an appeal to the Supreme Court against such judgment forany error in law or in fact." The wording is curious; it looks as ifthe Legislature here meant " judgment " and " final order " to bethe same thing; or at least that a final order is a judgment; other-wise there is no appeal given against a final order. There is nodefinition of “ judgment ” in the Code; the definition of it in theCivil Procedure Code as the statement given by the Judge of thegrounds of his order perhaps does not apply. A Magistrate orDistrict Judge “ records a verdict of acquittal " or " records averdict of conviction and passes sentence" (sections 190, 214); inSupreme Court trials the jury returns a verdict, and the Judge incase of conviction '* passes judgment on the accused according tolaw " (section 251). Chapter XXTV. treats of " the judgment,"and directs how it is to be pronounced and what it is to contain;it speaks of a " judgment of death," section 305; and enacts thatwhen a person is sentenced to death,’ "the sentence shall direct " soand so, and when he is. sentenced to whipping, " the judgment " shallstate so aud so. And then chapter XXV. deals with " sentencesand the carrying out thereof." All this seems to show that theword " judgment " is used rather loosely. Section 338, with whichwe are now dealing, does not speak of appeals against the " verdict "or " sentence " of a Magistrate or a District Court, but only againsta “ judgment." Is the order of March 4a" judgment," or is it a
1 27 L. J. (C. P.) 208.
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May 9, 2910 4t gnai order," or is it an order which is not " final "? In Cvlantai-Hutchinson valu v. Somasundram1 the Full Court held that an order undersection 88 requiring a person to execute a bond to be of goodForrest v. behaviour for a certain period is not a final order, because it is not■W® the last order which the Magistrate has power to make in the case;for if ift is not obeyed, there is a further order to be made undersection 98 committing the defendant to prison. It seems that theCourt thought that the final order in such a case would be the orderfor imprisonment; at any rate, Middleton J. said that he thoughtthere would be an appeal against the order for imprisonment if anappeal was not precluded by section 835. Layard C.J. did notconsider the question whether it was a “ judgment but MiddletonJ. said that it was an order and not a judgment. And both thoseJudges, with whom Moncreiff J. doubtfully concurred, held that itwas not “ final."
The judgment pronounced by the Magistrate in this case dealtwith the evidence, decided that the appellant’s cooperage was apublic nuisance, and decided against his plea of right to continue it,and ordered him to remove it; it did in fact finally dispose of allthe questions in dispute, and all that remained to be done was toenforce the order and (possibly^—about that I do not express anyopinion) also to punish the appellant if he disobeyed it. Assumingthat we ought to hold in accordance with the above-cited decisionthat the order was not a final order, I nevertheless think that thisis ah appeal against a judgment. The Magistrate heard evidence,dealt with it, and decided all the questions of law and fact whichwere raised, and thereupon made an order in accordance with hisfindings. In ordinary language, he gave judgment; his statement ofhis reasons and his findings and his order constitute his “ judgment."
I think, therefore, that the preliminary objection should beover-ruled. And I think that the Magistrate was right in consideringthat the appellant's coopering was injurious to the physical comfortof the community, and should therefore be removed. The evidenceproves that the coopering goes on every day and all day, and thatthe noise from it at times makes it impossible for the Magistrateand the proctors and the interpretor and the witnesses to hear eachother; that it is a nuisance to all persons attending the Court; andso it is injurious to their physical comfort.
The appellant's counsel urged that the powers given by section 105should be exercised on the same principles on which a Court &cts indealing with nuisances under the Penal Code, and that where athing has been done for a great many years, a right to go on doing itis acquired, even though it may have become a nuisance, and thatif people then go and live within reach of it they must put up withit. I agree that the same principles ought to be applied; but I do.not think that it is the law that a man can by long continuance of
1 (1905) 2 Bal, 122.
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his practice acquire a right to carry on a business in such a way asto be a public nuisance. If the place where he carried it on was at-first surrounded by land on which there were no dwellings, buthouses gradually approach it so that it becomes a nuisance to theinhabitants, they have a right to have it abated. He caunot bymaking injurious noises or smells for a long time deprive the publicof the right to live peaceably mid comfortably on the land near him.The doctrine that a man who " goes to ” a nuisance has no legalright to have it abated is not now accepted: the only question iswhether or not the thing complained of is a nuisance. No doubtthere are things which would be a nuisance in a quiet village whichwe would not consider to be a nuisance in a crowded manufacturingtown. But once it is proved that the thing is a nuisance, having'regard to all the surroundings, the public have the right to haveit abated.
It was objected that the Government, which sold the land to theappellant, and which is the real complainant, is derogating from itsgrant. But it did not purport to grant the right to carry on anybusiness, and there is no evidence that it even knew that thepurchasers were intending to carry on this business on the land.
Another objection taken was that the appellant set up a bona fideclaim of right, and so the Magistrate’s jurisdiction was ousted. Bute. man cannot set up a bona fide claim of right to commit a publicnuisance, unless he is empowered by statute to do so.
Lastly, it is objected that the conditional order, which wasafterwards made absolute, is bad on the face of it. It is in theseterms: “ Whereas it has been made to appear to me that you arecarrying on, as Manager of Messrs. Clark, Spence & Co., Galle, thetrade or occupation of coopering, and the noise proceeding from thecoopering yard seriously interferes with the business of this Court,it being frequently impossible to hear what is being said.” And itdoes not state what is the enactment under which it is made. Itis, of course, irregular; it should have followed the words of theenactment by alleging that the coopering is injurious to the physicalcomfort of the community. It is urged that the judgment of theMagistrate should, therefore, be set aside. Section 425 of theCriminal Procedure Code enacts that no judgment shall be reversedon appeal on account of auy irregularity in the complaint, summons,warrant, charge, judgment, or other proceedings before or duringtrial, unless the irregularity has occasioned a failure of justice. Ido not think that this irregularity occasioned a failure of justice.The appellant before the day when he showed cause, which was onMarch 4, the conditional order having been made on January 2B,'had ample notice what the complaint against him was; he made noobjection to the form of the order then or in his petition of appealand I do not think that this objection should prevail now. I woulddismiss the appeal.
May 9, 1910
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May 9, 1910 Middleton J.—
Forrestv. The first poiftt in this case was whether an appeal would lie, it^efe being contended for the respondent that the order was not a finalone.. The question as to whether it was a judgment was not referredto in the argument. It is clear, I think, that the decision appealedfrom is a judgment within the meaning of that term as given insection 306 (1), Criminal Procedure Code. It becomes, therefore,appealable under section 338, C iminal Procedure Code.
As regards the merits of the case, I cannot see that the proceedingswere wholly irregular either under section 105 or section 148 ofthe Criminal Procedure Code. A public nuisance as described insection 261 of the Penal Code is an offence under the Code, andthis would enable the Magistrate to act on his own knowledge orsuspicion under section 148 (c), and I see no objection to his obtaininginformation direct through his own sense of hearing of the fact of itspresumptive existence and acting thereon under section 105 andmaking a conditional order.
The case was in fact tried by Mr. Kindersley, another Magistrate,and no prejudice occurred to the defendant in the case. As regardsthe objection that the order itself does not disclose that defendantcommitted any offence under section 105, this is capable of amend-ment under section 425.
The only point on which I felt doubt was the last raised for theappellant, i.e. that the evidence did not disclose the commission ofa breach of section 105, i.e., the carrying on cf a trade injurious tothe health or physical comfort of the community.
On reconsideration of the evidence, however, I think the factthat all the witnesses depose to the existence of a noise which, intheir opinion, is a nuisance to those having duties to perform in apublic Court and prevent the hearing of the proceedings, is sufficientto show that their physical comfort is interfered with and injured;and this, coupled with the evidence of Mr. Forrest, seems to provethat the coopering in question would be and is injurious both tothe health and physical comfort of the community. It affects theccmfort of all who have business to transact in the public PoliceCourt, and this is 1 think sufficient evidence of its injury to thecommunity in general.
The law as laid down in Rex v. Cross1 relied on for the appellantis at the present day obsolete. See pei Byles J. in Hole v. Barlow.2The argument, therefore, that the Police Court was taken to itspresent site many years after the respondents established theircooperage loses its force.
In the case of a nuisance from smells, it is sufficient to provethat they are offensive to the senses (R. v. Neil?), and so in'the caseof a noise, from analogy that it affects the hearing of things and
1 (1826) 2 C.<b P. 483.* 27 L. J. (C7. P. ) SOS.
3 2C.dk P. 435.
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interferes with comfort. Personally I can conceive no more May 9, 1910intolerable nuisance than a cooperage in the close vicinity of a Court Middletonof Justice, and have no difficulty in understanding as a juryman J.that such noises must be injurious to the physical comfort of aU jrJTTHj uthose whose duties compel them to resort thither, and that so Leefeaffecting daily a considerable section of the community they are infact and in law injurious to the physical comfort of the community.
In my opinion the appeal should be dismissed.
FORREST v. LEEFE