073-NLR-NLR-V-28-NAIR-v.-COSTA.pdf
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Present: Dalton J.
1927.
NAIR t>. COSTA.14—P. G. Matale, 27,929.
Public nuisance—Annoyance to the public—Penal Code, s. 283.
In a prosecution for committing a public nuisance, it is necessaryto prove that the nuisance was such as to annoy (he neighbouringcommunity generally and not merely some particular person.
HE accused was charged with committing a public nuisance
i under section 283 of the Penal Code, in that he failed to takethe necessary precautions to prevent his dog barking continuouslyat night, and thereby disturbing the repose of the public or the*people in general, who dwell or occupy property in the vicinityand causing annoyance to them. The evidence showed that theonly person who complained of the barking was the Police Magistrate*of Matale. The learned Police Magistrate convicted the accused.
R. L. Pereira, for accused, appellant.
January 25, 1927. Dalton J.—
Appellant is the owner of a dog and has been convicted undersection 283 of the Penal Code with committing a public nuisance.The nuisance in question set out in the charge is that on November■12, 1926, he did fail to take “ necessary precautions to preveut.his brown pup barking continuously at night and thereby disturbing■ the repose of the public or the people in general who dwell oroccupy property in the vicinity, and causing annoyance to them.”
. A " Public nuisance ” is defined in section 261. A person issaid to be guilty of a public nuisance who does any act or is guiltyof any illegal omission which causes any common injury7, danger,,or annoyance to the public or to the people in general, who dwell. or occupy property in the vicinity.a
There was some dispute in the lower Court as to. the identityof the dog which caused the trouble, but the Magistrate was satisfiedon the evidence that it was proved that it was the dog of the accuseddescribed in the charge. The only question argued on appeal.was whether the evidence disclosed any act or illegal omission on.the part of the appellant which caused annoyance “ to the publicor to the people in general who dwell …. in the vicinity.”
The evidence shows that the only person who complained of the*barking was 'Mr. C. F. Ingledow, Police Magistrate of Matale.He had complained of barking dogs in general, and of this dog inparticular on a previous occasion. He states that on the occasion
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DaIiTON J.
Nair v,Costa
set out in the charge he was disturbed, with his household in the*night, by persistent barking.' He complained to the Sub-Inspectoro.t Police and the barking was traced, as deposed to by P. C. Nair,to accused's dog.
In cross-examination the complainant admitted that the com-plaint he made was due to the disturbance caused to his wife whowas ill at the time. He adds that the disturbance to him wasnot so much as to cause* him to lodge a complaint.
It appears to me that the Magistrate who tried the case has notdirected his mind to the essential difference between a privatenuisance and a nuisance to the public or the people, in general asseti out’ in section 261. :There is no evidence to show that -anyperson, except the complainant and his family was inconvenienced.The ■ Magistrate says: “The fact that nobody, besides .Mr., lngle-dow, the Sub-Inspector, and the P- G. gave evidence. does .notinfluence nae at all." That clearly shows that he.dicL.npt appreciatethe terms . of section 261 and the nature of the offence .charged.He says he, .is. satisfied with the respectability of the status ofthe complainant. I have not the least doubt that no one everquestioned that.■■. '*
An appeal in a similar case came before the Full Court as longago as 1872 (P. C., Colombo, 3,901, (1872) Grenier's Reports, p. 25)fwhfere it is reported as “ The Dog Case, ” Greasy G. J. in statingthe law, points out that, to constitute the-offence of a public nuisance,as1 distinguished from a private nuisance for which no criminalproceedings lie except under- special Ordinance, * it: is . necessarythat the nuisance* should* rbe such as to annoy the neighbouringcommunity generally and not merely some particular person.In that case the plaint alleged that the howling of. the defendant’sdog disturbed the repose of the public, but the proof adducedestablished that the inmates of one house only were disturbed.That, it was held, was insufficient to support the conviction.
The same question arose in another form in De Silva v. De Silva.1The Magistrate had ordered the removal of a coconut tree as likelyto fall and cause injury to persons living or carrying on businessin the neighbourhood or passing by. De Sampayo J. on. .thesame reasoning, held that the section provided for a case in whichthe part of the public living in the place where the nuisance existsare generally affected, and that a single man and his family whocomplain against the next door neighbour are not within theviCiitemplation of the section. He goes on to point, out that sucha person is not without a remedy.
The essential difference between a public and a private nuisancein such a case as this is also referred to by De Sampayo, J. in&aT<vm v. Seneviralne2 It is in the quantum of annoyance that
* */. W. /?. 98.:2 21 N. L. R. 190.,::
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public nuisance differs froin private. The words"" to the public 18*17.nr to the people in general ” mean a body or considerable number ba^tok J.of persons..——
.There was no evdence before the Magistrate that anyone was Costainconvenienced except the original complainant and his household.
The evidence led does not therefore support the charge., Whilstsympathizing wiijh. the complainant, • for.-. I also have • experiencedthe same annoyance on occasion, the ;accused should have beenacquitted.:
I might, here point out that had ; proceedings been institutedunder the provisions-of section 1.(4) of Ordinance No. Iff of 1862(an Ordinance for the better preservation of public health and thesuppression of nuisances) on the authority of Snowden v. Rodrigo 1and P. C. Colombo, 3,901 {supra) proof of a nuisance to one familyor person is; ehough if it be shown to be permanent or a frequentlyrecurring nuisance. The evidence Idd hern is, however, clearlynot sufficient to satisfy even that latter requirement.
•The appeal, must for the reason I have- given be allowed, theconviction being .set aside.
Conviction set aside.