[1947] EACA 78

## APPELLATE CRIMINAL

### Before HORNE, J.

# ESMAIL ABDULREHMAN, Appellant (Original Accused)

#### $\mathbf{v}$

# MUNICIPAL BOARD OF MOMBASA, Respondent (Original Prosecutor) Criminal Appeal No. 409 of 1946

Nuisance-Storage of collections of old iron or other materials-Likely to harbour rats-S. 118 (1) (i), Public Health Ordinance-"Accumulation of materials"-Meaning of—"Vermin"—Invalid notice.

By s. 118 (1) (i) of the Public Health Ordinance it is provided that "any accumulation of stones, timber, or other material if such in the opinion of the Medical Officer of Health is likely to harbour rats or other vermin" is a nuisance.

The appellant was a dealer in second-hand goods and had on certain plots of land occupied by him collections of old metal and other material. These were stored in two dumps surrounded with walls consisting of drums and partly roofed over.

The appellant was notified by the Medical Officer of Health that a nuisance existed on his plots "arising from an accumulation of old iron, etc., likely to harbour rats and other vermin and to facilitate the breeding of mosquitoes" and required to abate the nuisance and remove the accumulations and so forth within 30 days. Having failed to comply with the notice, the appellant was charged and convicted of failing to comply with the Medical Officer of Health's notice contrary to s. 120, Public Health Ordinance. He appealed.

*Held* $(31-1-47)$ .—(1) The collections of material in the circumstances of this case were not an "accumulation of material" within the meaning of S. 118 (1) (i) of the Public Health Ordinance and did not therefore constitute a nuisance within that paragraph.

(2) As the nuisance alleged in the notice did not in fact exist the notice was not valid and failure to comply with it did not constitute an offence.

(3) The word "vermin" in the section is limited to such vermin as can be harboured in solid materials and does not include mosquitoes.

Appeal allowed.

### O'Brian Kelly for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal from the third class subordinate Court at Mombasa from an order under section 120 (2) of the Public Health Ordinance, directing the appellant to remove all the accumulations of old iron and other material from his premises; the removal to be complete within six months, and to maintain the plots in a state satisfactory to the Medical Officer of Health. The appellant was also fined Sh. 101 for not having complied with an order of the Medical Officer of Health made under section 119 of the Ordinance (Cap. 124).

For some years the appellant has carried on business as a second-hand dealer, mainly in old metals, on certain plots in Station Road which he occupies as a monthly tenant. From the evidence of Dr. Liston, the Medical Officer of Health, and Mr. Hufford, the Sanitary Inspector, it would appear that on the several plots there are a main dump and two overflow dumps. The main dump has a wall of 44 gallon drums, 1,244 in all, built up to a height of 7 ft. 6 in. in tiers. From the top tier and rising another 6 ft. and going outwards from the drums an average of $14$ ft. there is a roof, but the line is without method and haphazard. Thus there is a space within the drum walls not roofed over at all. Inside the drums there are bolts, brass fittings, motor parts and other ironmongery. The larger overflow has a partial roof. The smaller overflow is open to the sky. Both the overflows have walls of drums laid in tiers, but the dimensions have not been given. The smaller overflow contains heavy steel wire and steel plates as used on ships.

Another description (Dr. Liston's) is that half the dump consisted of a structure under which a collection of material was stored; another large area surrounded by stacked drums; in the sheds passages have been floored with wooden boards raised off the ground a few inches. In Dr. Liston's opinion the space under the boards was an "ideal rat harbourage". The appellant has carried on business on these plots for several years, but latterly the amount of material has increased and, according to the appellant's evidence, he has several thousand pounds' worth of material on the plots which cover an area of 0.45 acre.

On the 13th March, 1946, the Medical Officer of Health served a notice on the appellant in the following terms: $-$

Exhibit "A"

### MUNICIPAL BOARD OF MOMBASA

$P. O.$ Box 440, Telephone: 575, No. $ii/2/$ .

PUBLIC HEALTH DEPARTMENT, MOMBASA, 13th March, 1946.

$\mathbf{I}$

# To: Esmail Abdulrehman, Station Road, Mombasa.

TAKE NOTICE that under the provisions of the Revised Laws of Kenya, and regulations made thereunder, the Medical Officer of Health being satisfied of the existence of a nuisance at Plots Nos. 162, 163, 164, 165, 166, 97 and 100; Sect. XX, occupied by you in Station Road, Mombasa.

ARISING FROM an accumulation of old iron and other material which in the opinion of the Medical Officer of Health is likely to harbour rats and other vermin and to facilitate the breeding of mosquitoes so as to be a nuisance, DOES HEREBY REQUIRE YOU WITHIN 30 DAYS from the date of service of this notice, to abate, and to prevent a recurrence of the said nuisance and for that purpose to remove the aforementioned accumulations and clean the plots thoroughly of all refuse and maintain the plots in a state satisfactory to the Medical Officer of Health and do all such other works as may be necessary to the satisfaction of the Medical Officer of Health.

DATED THIS 13th Day of March, 1946.

(Sd.) R. A. Murphy, Sanitary Inspector. (Sd.) James M. Liston, Medical Officer of Health.

SANITARY INSPECTOR may be seen by appointment during Office Hours.

The foundation of all subsequent proceedings is this notice and if it has no legal validity no offence has been committed in refusing to comply with it.

The alleged nuisance is said to arise from an accumulation of old iron and other material which in the opinion of the Medical Officer is likely to harbour rats and other vermin and to facilitate the breeding of mosquitoes. Under section 118 (1) (i) of the Ordinance, "any accumulation of stones, timber, or other material if such in the opinion of the Medical Officer of Health is likely to harbour rats or other vermin" is a nuisance liable to be dealt with under Part IX of the Ordinance. The first question is whether on the evidence given by Dr. Liston and Mr. Hufford the various collections of material with the partial roofing and partial flooring are properly described as "an accumulation of old iron and other material". In my opinion an accumulation of old iron occurs where scrap material is piled up in a heap or in heaps. If the expressions "an accumulation" and "other material" are to be given the wide meaning which the Medical Officer of Health has given to it and the magistrate has adopted, the Medical Officer of Health could apply his powers based on his opinion as to likelihood of rat harbourage to all sorts of collections of goods in shops and warehouses and order the removal of a large part of Mombasa, a result which I cannot imagine the legislature to have intended.

If, however, section 118 is carefully read it will be seen there is no necessity for such an extensive interpretation. For instance, clause (i) provides that: "Any premises in such a state or condition and any building so constructed as to be likely to harbour rats" is a nuisance. That clause would seem more applicable to the facts of this case than clause $(i)$ under which the Medical Officer of Health has purported to act. And when clauses (i) and (j) are considered together it is obvious that "accumulation" is not so wide a term as "premises" and that "an accumulation" means a distinct and detached piling-up of material that is capable of being specifically described and definitely identified; whereas "premises in a condition to harbour rats" would include, assuming they are in such a condition, such premises as are described by Dr. Liston and Mr. Hufford.

I would, therefore, say that the magistrate has given far too wide a meaning to clause (i) and has quite unnecessarily included in the category "an accumulation of old iron and other material" the whole business, carried on by the appellants extending over five plots amounting to 0.45 acres, a part of which is described as "a structure under which a collection of material was stored".

But even assuming that the notice served by the Medical Officer of Health could be held to permit him describing the area concerned and the structure and other things thereon as an accumulation, then I would say that the opinion of the Medical Officer of Health that the accumulation is also "likely to facilitate the breeding of mosquitoes" does not turn an accumulation of material into a nuisance. There is a nuisance described in Part XII, section 136, and that is: "a collection of water in certain articles found to contain the immature stages of the mosquito"—and such collections of water are liable to be dealt with under Part IX as nuisances. But the Medical Officer of Health's opinion of the likelihood of the facilitation of the breeding of mosquitoes does not make an accumulation of material or a collection of water a nuisance. Towards the end of the trial there appears to be some recognition that such was the case, for there is argument by counsel pro and contra and consideration by the magistrate as to whether mosquitoes would fall within the description "vermin", so that the opinion of the Medical Officer of Health that the alleged accumulation was likely to harbour rats or other vermin would be supported by asserting mosquitoes or their larvæ to be vermin.

In my opinion clause (i) was not intended to cover the likelihood of the nuisance described in section 136. That relates clearly to a nuisance caused in the first place by an accumulation of water in vessels or containers, while the nuisance described by clause $(i)$ is the likelihood of vermin caused by an accumulation of solids. To try and make clause (i) do so, as has been the case here, is to place a highly artificial meaning on the word "vermin" which it cannot bear because it is used in clause (i) in conjunction with rats being harboured in solid materials, and must therefore be limited to such vermin as could be harboured in such materials. The notice given by the Medical Officer of Health on the 13th March, therefore, did not describe any statutory nuisance at all. Moreover, the order given by the Medical Officer of Health is too vague and general in its terms. After describing the nuisance as "an accumulation, etc.", it requires the appellant "to remove the aforementioned accumulations and clean the plots of all refuse and maintain the plots in a state satisfactory to the Medical Officer of Health and do all such other works as may be necessary to the satisfaction of the Medical Officer of Health".

The nuisance as alleged in the notice does not arise from an accumulation of , refuse. Such a nuisance comes under clause $(h)$ of section 118 (1) and no such nuisance has been alleged to exist. And where are the "aforementioned accumulations" for only "an accumulation" has been referred to in the statement of the alleged nuisance. This notice appears to me to go beyond the powers given to the Medical Officer of Health by section 119 and a notice to do all such other works as may be necessary to the satisfaction of the Medical Officer of Health is clearly bad in the present case and even in the case of a nuisance arising from an accumulation of material likely in the opinion of the Medical Officer of Health to harbour rats.

The appellant having failed to comply with the notice of the Medical Officer of Health, the latter caused a complaint to be made before a magistrate. The complaint stated that the appellant "did fail to comply within the specified time (30 days) with a notice of the Medical Officer of Health dated 13th March, 1946, and served upon him on the same day requiring him to remove an accumulation of old iron and other material which in the opinion of the Medical Officer of Health is likely to harbour rats and other vermin and to facilitate the breeding of mosquitoes, such accumulation being a nuisance in the terms of section 119".

Section 119 is a mistake for section 118. But as I have already said there is no such nuisance in section 118.

A charge was framed in the same terms as being "a contravention of section 120" and such charge following as it does the terms of the notice and the complaint does not refer to a nuisance within section 118 but to a nuisance invented by the Medical Officer of Health. The result of such a charge was to let in evidence as to mosquito breeding and to lead to much confusion on the question how far the opinion of the Medical Officer of Health concluded the existence of a nuisance. I think that as the opening words of sub-section $(2)$ of section 120 are:

"If the Court is satisfied that the alleged nuisance exists"—The Court is not bound by the opinion of the Medical Officer of Health which opinion is not that a nuisance exists, but that a certain accumulation is likely to harbour rats. By holding the contrary the magistrate has misconceived the issue, if it can be said there ever was a proper issue, and there has not been a proper trial. It is not, however, necessary to allow the appeal on that ground because neither the notice, the complaint, nor the summons or charge disclose an alleged nuisance within section 118 (1) (i), and on that ground I must say that the order of the magistrate is bad in law and must be quashed. The fine ordered to be paid must be returned.