clr/1967/1967_2_117.pdf

(3)(a) and

(5)-~Proper enjorcement ol the Law — and Demolition ordei— Judicial discietion— \\romi e\eiase case oj such diwenon in this b\ the ttml Co'in in declining to makt such order Cnminal Appeal— Appeal >M the prosemtmg Proiedun Authoiit\ against sememe as being manifestly inadequate -In that the trial Couit ought in this ιuse to make the demolition oidei prainln d 20

(3){a) of Cap 96. supra -Appeal taken undei h\ saltan seition 2S

(2)ol llu Coaiix of Jusiue law RepuHn No. 14 of I % 0 ) I960 (law of the With the solution of the Section Π 7 ( Ι ) ( Λ ) of tin Cnminal (lenaal- Attornev- Ptincdiire law Cap 1*>S Sic also, heiehclow undei trial in aiminal aises~ Stteas anil Build,n^s icquiied peimii wdei C onstim tion ol a budding Piope' tiifoiteniaif ought not to fune been without of the Law icfused- Sec the Danoliiion abo\e mulct Criminal I aw Hiiihhngs C orstiiu tion ul without die η quired pennit—Penult η s - Demolit on ordei C iinunal Appeal undei Criminal Law , ul inal both <n mil and Piotcdurc Inal it, luminal irmiinal itists lasis idpninimcnts Piopci Piinaplctieiieiaied Stιongh Sic abou and pidaid e\eiase ol dismtion ί'/ιιΐιicssai ι and unjustified adjoin nrnents— depn .afed b\ ιhe Supi erne Com ι Gta\t anxietι and tontcin of tin Supreme Com ι expressed tenanting unwαϊιanted adjoin ninents —7he Criminal Cap Demolition stub Piocedtne I aw Law , Criminal I SS, sections 47. 6S (I) and 77

(3)Order—See above under Criminal Protedure 117 KAIMAKLI V PELOPIDAS P F L O P I D A S SEVASTIDES, Criminal Law—Sentence—Constnu BOARD OF SE\A^llDl·» 1967 April 7 IMPROVEMENT BOARD OF KAIMAKLI v. PELOPlDAa SEVAaTIDh.i Adjournments—Unnecessary and ;njus:ified adjournments both in civil and in criminal cases, strongly deprecated -See above under trial in criminal cases. This is an Appeal against sentence taken by the prosecuting Authority in a criminal case instituted under sections 3(A) and 20 of the Streets and Buildings Regulation Law. Cap. 96 as amended by Law No. 67 of 1963, against the respondent. for the construction of a building without the required permit. 1 would seem that the building so erected without the requireJ permit cost a considerable amount vi:. about £6.000 and was a factory constructed to house a machinery of the value of twenty thousand pounds. The trial Judge imposed a line of £20 but declined to issue a demolition order, now discretionary under section 20

(3)(a) of Cap. 96 (supra) as amended by Law No. 67 of 1963 on the ground that, in view of the cost of the building in question, a demolition order would lead to " catastrophy" of the accused-respondent ; and the learned trial Judge concluded : " 1 lind that th; scales of justice lean against the issue of a demolition order. 1 would be inclined to issue a demolition order if that order was not rather a punishment but a means of cnfoi\.in;z the conformity of the buildings with the provixi.u, of Cap. 96 (supra). It is against this refusal to issue a demolition order thai the prosecuting Authority took this appeal, exercising their right under section 25

(2)of the Courts of Justice Law, 1960 (Law of the Republic No. 14 of I960), with the sanction of the Attorney-General under section 137(!)(/>) of the Criminal Procedure Law, Cap.

1. It is to be noted that the accused in this case pleaded guilty on the 28th December, 1965, and after several adjournments sentence was passed on the 13th January,
2. It was strenuously argued by counsel on behalf of the respondent-accused that treating the demolition order as part of the punishment, leads to the unavoidable conclusion that the consequences of a demolition order in this particular case shall be a punishment disproportionate to the offence committed. No Court would impose a line, counsel argued. to the extent of the loss and damage which a demolition order in this case, shall cause to the respondent. The material parts of the relevant statutory provisions are set out in the judgment of the Court post. 118 The Supreme Court in allowing the appeal and in issuing a demolition order and strongly commenting on the unwarranted adjournments of the proceedings at the tnal (supra) : — 1967 April 7 IMPROV EMEVT BOARD OF Held (I) the fallacy in the argument put forward b\ ΚΛΙΜ\Μ.Ι learned counsel for the appellant (supra) can be s^en at once Ό from the fact that it leads to the position that the greater PELOPID^S the violation of the law, the stronger is the case against its application by a demolition order

(2)It is true that the provision ot the law inbe-hon20

(3)(ti) tor a demolition oider was peremptory until 1963 when it was amended bv Law No 67 of 1963 so as to bring the statute in confoimity with Aiticie 7 ol the Constitution as interpreted in proceedings of such nature and was made discretionary But this change cannot be understood or applied in a manner frustrating the very puipose Ιοί which the law exists , and for which the provision about a demolition order is contained in the statute

(3)Tlieie maν be cases where a demolition oidei need not be made w h u c Ιοί instance, some condition in the permit has not been complied with, or theie occuired inlnngement of minoi importance But the present case is not one of such cases

(4)In the result, the appeal will be allowed 1he sentence ol £20 line will be alteied so as to contain also a demolition ordei to be earned out within two months horn toda\ period being the maximum allowed this b\ section 20

(3)(a) t ol the Streets ind Buildings Regulation Law. Cap 96 Appeal allowed Sentcni e \aried as abo\e. Pa curiam This Court lias lime anJ time again, expressed concern legaulmg unne.essury and untus'ihed adjournments, both in civil and u t m u u l cases In July last this Couit had lo deal with the question ol such adjournments made rcleience lo scveial earliei cases (see The (niieial s Imincrotis

(1966)2 C L R 25) Publishing Co ltd and two uu\ t Attorneyothers The case in hand leads us to one oi lwo unavoidable conclusions Eithei the difterent Judges who dealt with the case in the course ol a whole year, did not have in mind ihe statements made in this Couit regarding the law pertaining to adjournments (eg 119 see the statements in S F \ \«TIDES 1967 April 7 IMPROVEMENT BOARD or the case just quoted above, .supra .it pp. 30-31) ; or, they did not feel that they should take guidance from such siutemj.it,. Either alternati\e iiives us considerable disappointment. anxiety and concern. KAIMAKM v. Cases referred to : PELOPID*? SEW^TIDI C The Attorney-General v. En'tmerotis Publishing Co. Ltd. and two others

(1966)2C.L.R. 25. Dictum atpp.30-31 followed. Appeal against sentence. Appeal by the prosecuting authority against the inadequacy of the sentence imposed on the respondent (the refusal of the trial Court to make a demolition order) who was convicted on the 7.2.67 at the District Court of Nicosia (Criminal Case No. 14754/65) on one count of the offence ot constructing a building without the required permit, contrary to sections 3 (b) and 20

(3)(a) and

(5)of the Streets and Buildings Regulation Law, Cap. 96 and was sentenced by Stylianides, D. J. to pay a fine of £20. K. Michaelides, for the appellant. A. Triantafy Hides with C Adamides, for the respondent. T h e judgment of the Court was delhercd bv : VASSILIADES, P . : T h i s is an appeal against sentence taken by the prosecuting authority in a criminal case instituted under sections 3 (

1. b)and 20 of the Streets and Buildings Regulation Law, against the respondent, for the construction of a building without the required permit. T h e appellants, who are the statutory authority for the issue of building permits in the area of Kaimakli, (one of the suburbs of Nicosia, where the respondent put u p the building in question) instituted criminal proceedings against him on December 7, 1965, for extending the building of his factory during 1964, and for carrying out alterations and additions thereto, without the permit required by section 3 (
2. b)of the Streets and Buildings Regulation Law (Cap. 96). T h e charge filed, contained four different counts ; but we are only concerned in this appeal, with the sentence on count 3, regarding the building described above. O n the hearing of the case in answer to the summons, on December 28, 1965, the accused (respondent in this appeal) pleaded guilty to counts 1 and 3 in the charge ; 120 wheteupon, the prosecution ofrenng no e\idence on counts 2 and 4, the Court convicted the respondent according to his plea, and discharged him on the other counts Presumabh at the request ot counsel tor the accused, the case was then a d j o i n e d to Lebruan 8, I960, pending the outcome of steps taken tor a co\enng permit T h e Judge's note in this connection, reads : " As proceedings tor a covering permit are still pending (case) adiourned to 8.2 1966." T h e record does not show what did the other litigant ha\e to sav in the matter But one ma\ assume that the adjourn­ ment was consented to, b\ the piusecution It ma\ also be assumed that tin learned trial Judge, alter hearing the parties m this connection, was ot the opinion that the period of about 40 da\s, tor which he adjourned the case, would he sufficient for the purpose toi which he granted the adjourn­ ment. On L e h m a n X, 19(>6, both sides were a g u n betore the Court ; and according to the Judge's note,jomth applied tor a further adjournment as " proceedings weie still pending " for the issue ot a eo\eimg pcinut We shall ha\e to ie\ert to these adjoinnments latei m this judgment One alter another, thc\ were glinted on no less than eight dirtcrcnt occasions, before tout d i r l u e n t pidges, o\er a period ot about a \eai, until the 13th J a n u a n , 1967, when the Court c\enttia!l\ hcaid counsel toi the parties on the tacts ; iind again adjourned the c.isc U> L e h m a n 7, 1967 (about three weeks later) Ιοί judgment Nothing appears to haw been said, as fai as the record goes, legardmg the u n t i u i g pcimit toi which this criminal case was kept pending with one adjournment after another, lor o\ti a viai \ppa*cnil\, no such permit was granted ; and the position was much the s a m e ^excepting tor the great del.iv in the application ot tin law, and considet.tble expense to the litigants) as on the i\.\x on which, a \eat earlier, the accused hail pleaded guilt\ to the ehaige as stated earlier \fter dealing with the facts and giving the reasons for hts decision in a considered judgment, the last trial Judge proceeded to pass sentence On the first count, tor disobe­ dience to π demolition o u l e i . made m a previous cnminal prosecution for the unlaw lul building ot a shed in the same fa c t o n , the learned Judge imposed a fine ot ^ 2 as, accord- 121 1967 \pnl 7 IMPROVEMLNT BOARD OF KAIMUIM V. PELOPIDAS SFVA8TTDES iy67 _ ' IMPROVEMENT HOKRD OF ΚΑΐΜλκι.ι v Ap PELOPIDAS SEVA«TIDES m t 0 t n e £ relevant part of the judgment (page 5 D - E ) " the accused after the filing of this case, did comply with the order, ano t n e s e n t e n c e t 0 D e imposed would be nothing but a nominal one " . We prefer to say nothing more regarding this part of the sentence, as it does not really form part of the present appeal. But we should not be taken as subscrib­ ing either to the view regarding the culpability attaching to the disobedience of a court-order, or to the sufficiency of a fine of £ 2 for such an offence. On count 3, for the construction of a building which according to the judgment (page 4L) cost £6,000 and was erected to house machinery of the value of twenty thousand pounds, the learned trial Judge imposed a sentence of £ 2 0 fine ; and declined to make a demolition order, which was, apparently, the main object of the proceedings. In addition to the £20 fine, the Judge ordered the accused to pay £ 1 2 costs. T h e reasons for which the learned Judge reached his de­ cision regarding sentence, appear in the judgment. I t may be observed, however, here, that in addition to other cir­ cumstances, a factor militating against the accused in this connection, was that the area in question was duly declared as a residential area as early as 1955, and a permit for the work done (the additions to the factory) could only be granted with the authority of the Council of Ministers, under the provisions of section 14 of the Law, a point which was in fact referred to by the trial Judge in his j u d g m e n t . T h e Judge also rightly observed that " the Courts have a duty to discourage owners of land from putting up unautho­ rised buildings " , as he put it ; but he also expressed the view that the Court " has a duty to apply the law for the benefit of the community as a whole, but in such a way as not to cause catastrophy to the individual " as he said (page 7 D - E ) . Again here, we would ratheravoid comment­ ing on this rather unusual, as it seems to us, view ot the application of the law, described as " c a t a s t r o p h i c " when properly applied, as intended by the legislator. " Weighing all the lacts of this case " , the learned trial Judge says in the final part of his judgment, -1 find that the >cales of justice lean against the issue of a demolition order. I would be inclined to issue a demolition order it that order was not rather a punishment but a means of enforcing the conformity of the buildings with the provisions of Cap. 96 " . It is against this view of the law, that the prosecuting authority in the present case, took this appeal, exercising Ι.Ϊ.Ϊ their right to do so under section 25

(2)of the Courts ot Justice Law, I960, with the sanction ot the \ttorne\-Gener,'l under section 137

(1)(b) of the Ciiminal Procedure Law (Cap. 155). T h e appeal is taken mamlv on the ground that the sentence imposed is manifesth inadequatcMn the circumstances ol this ease toi the proper enforcement and application of the law. We have no difficult\ or hesitation whatsoever, in allowing the appeal on that ground. T h e provision ot the law under which this prosecution was instituted, and on which count 3 was based, is quite clear, in our opinion, both regarding the purpose toi which such legislation was enacted, and the teims in which the law was expressed The nv.tenai part ol section 3 of the Streets and Buildings Regulation I aw (Cap 96) reads : " N o person shall . . erect . oi allow to be elected a building.. without a permit m that behalf first obtained Irom the appiopnate authontv as in sub­ section

(2)provided." λ glance at the law is sufficient to show the purpose lor which it was enacted It has been in operation tor mam years ; it has been repeatedlv amended trom time to tune, to make it ht changing conditions in the development ot building operations ; and it has been discussed and consi­ dered in a number ot cases betorc the Courts There is no suggestion that the respondent, or the contractors who earned out on his behalf tins building-opeiation, had am doubt in their mind as to the effect ot the law ; or, the con­ sequences ot acting contran to its piovisions. Section 20 (!) of the statute piovules that " \nv peison who contravenes. a m ot the provi­ sions ot section 3 . ot this law. or a m regulations made thereunder, shall be gudiv ot an offence and shall he liable to a tine not exceeding £ 5 0 . . . " Sub-section

(3)ol section 20, piovules that " In addition to any othei pc-naltv prescribed bv this section, the Court before which a petson is convicted for any offence under subsection

(1)m.n ordei . . .that the building or anv part theieot, as the case tnav he, m respect ot which the offence has been committed, shall be pulled down or removed within such time as shall be specified in such ordei, but in a m case not exceeding two months, unless a permit is obtained m respect thereof in tin meantime fiom the appropriate authority." 123 19fi7 \pnl 7 iMlKOVhMEM BO\KU Ol· K\IM\M I I. PELOPIDAS q F \ \sriDti> Ϊ967 April 7 IMPROVEMENT BOARD OF KAIMAKLI v. PELOPIDAS Subsection

(5)of the same section, provides that—" Any person . . . who disobeys or fails to comply with such order (for demolition) shall. . . , be guilty of an offence and shall be liable to imprisonment not exceed­ ing three months or to a fine not exceeding fifty pounds or to both such imprisonment and fine." SEVASTIDES It is significant in this connection, that the provision of the law in this section for a demolition order, was peremptory until 1963, when it was amended (by Law 67 of 1963) so as to b r i n g the statue in conformity with the Constitution as interpreted in proceedings of such nature, and was made discretionary. But this change cannot be understood or applied in a manner frustrating the very purpose for which the law exists ; and for which the pro­ vision about a demolition order is contained in the statute. T h e r e may be cases where a demolition order need not be made ; where for instance, some condition in the permit has not been complied with, or there occurred an infringement of minor importance. But this is not one of such cases. It has been strenuously argued by learned counsel on behalf of the respondent that treating the demolition order as part of the punishment, leads to the unavoidable conclu­ sion that the consequences of a demolition order in this particular case shall be a punishment disproportionate to the offence committed. N o Court would impose a fine, counsel argued, to the extent of the loss and damage which a demo­ lition order in this case, shall cause to the respondent. T h e fallacy in this argument can be seen at once from the fact thai it leads to the position that the greater the violation of the law, the stronger is the case against its application by a demolition order. For a shed which cost £ 6 , for instance, the Court may have no difficulty in making a de­ molition order ; for a building of the value of £60, there may be some difficulty ; for a bigger building of £600, the difficulty will be ten times bigger ; and for a building of six thousand pounds, or, say £600,000 a demolition 'order should be out of the question. Obviously, this is neither the object of the law ; nor the effect of its provisions. It has also been argued on behall ol the respondent, that the appropriate public authority have failed in this case, lo deal with his application for a building permit for over a year ; and that to this day, they have not informed him of their decision on his original application, or his subsequent applications for a covering permit. T h e respondent morcIJ-t over complains that .although this matter has been dealt with bv the Council of Ministers, and their decision has been communicated to the appellants nearly two months ago, the latter have not yet informed the respondent of the negative result of his petition to the Government. All these complaints, undisputed by the other side, and probably constituting a good ground for a grievance against the public authority concerned, cannot, in our opinion, constitute sufficient answer to the charge in this prosecution ; nor a sufficient reason for not effectively applying the law bv making a demolition order. We now come to the question of the adjournments in Court-proceedings which give us considerable concern and anxiety regarding the exercise of the discretionary power of the Court to adjourn the hearing of a case in the course of the trial ; particularly the exercise of such a power during the trial of a criminal case. As already stated, the parties were before the Court in answer to the summons, on December 28, 1965. T h e respondent on that first hearing, pleaded to the counts in the charge ; he was convicted on his own plea on counts 1 and 3; and was acquitted and discharged on counts 2 and 4. According to the usual practice, and as expressly provided in sections 47, 68

(1), and 77

(3)of the Criminal Procedure Law (Cap. 155) the Court should have then, proceeded to impose on the accused " such punishment as may be provided under the enactment under which he is convicted, and as the circumstances of the case niav require ". Instead of doing so (and presumably for the purposes of sentence) the Court proceeded to adjourn the case to L e h m a n ' 8, 1966. T h e relevant part ot the Judge's note reads : " As proceedings for a covering permit are still pending adjourned to 8.2.66". On February 8, 1966, the parties were again before the Court (the respondent together with his advocate) when the Judge made the following note : " Proceedings still pending. On the application of both parties adjourned to 30.3.66 " . This was more than seven weeks later. On that day (30.3.66) the Judge's note reads : " Plea : Proceedings for a covering permit are pending. Adjourned to 17.5.66 for mention ". T h e note leaves one with the impression that the Judge was not clear in his mind as to what the position was regarding pica, at this stage. Re that as it may, the case was then again adjourned to 30.6.66 (More than six weeks later) " for mention " . 125 1967 April 7 IMPROVEMENT BOARD or KAIMAKLI l'. , PELOPIDAS PEVASTIDF? 1967 April 7 IMPROVEMENT BOARD OF KAIMAKLI V. PELOPIDAS SEVASTIDEF In more or less the same manner, the case was again adjourned to the 29.7.66 ;then to the 2.9.66 ; then to 4.11.66; and finally to 6.12.66 " for facts and sentence " . " Last adjournment " according to the note of the Judge who was on that day dealing with this case for the first time. T h e case had been handled, so far, by four different Judges ; and now on 6.12.66 by a fifth Judge who again adjourned the case to 13.1.67 " for facts and sentence ". it was on this last date, 13.1.67, that a Judge finally heard the facts of the case, more than 13 months after prosecution ; for an offence the material facts of which were never in dispute ; and more than a vear after the accused had pleaded guilty. We find it extremely difficult to comment in moderate terms on such a course, in a criminal ease ; and we prefer to leave the matter at that. T h e facts speak for themselves. In our opinion no counsel should have drawn a Court to such a course ; and no Judge should have permitted such a course to be followed. It is obvious (tn the record that the position was the same, as far as sentence was concerned, on January 13, 1967, as it was more than a year earlier, when the Court accepted respondent's plea of guilty. Moreover, in none of these eight different adjournments, does the record show what steps, if any, the! the parties take for the purpose tor which the adjournments were granted, one after another. This Court has time and time again, expressed concern regarding unnecessary aiul unjustified adjournments, both in civil and in criminal cases. In July last, this Court had to deal with an appeal taken on behalf of the AttorneyGeneral, against an order for adjournment in a criminal case {Attorncy-denerat v. /uiimern/is Publishing Co. Ltd and Tic» Others,

(1966)2 C.L.K. 25). In that appeal, this Court went again into the question of unnecessary adjournments, and made reference to several earlier cases regarding the same matter. T h e Court is reported lo have said p p . 30-31 : " In the present case, it is obvious that the trial Judgeeither did not have in mind these judicial statements which arc binding on him ; or, he did not direct his mind to the matter before him, and tailed to apply correctly ihe law." \IU T h e appeal was allowed ; and the order for adjournment was set aside on the ground that the Judge's discretion in the matter, had not been properly exercised. T h e case was remitted to the District Court for trial as early as this could be arranged ; and the partv responsible for the adjourn­ ment, was ordered to pa\ all costs incidental thereto, in­ cluding costs in the appeal. T h e case in hand leads us to one ot two unavoidable con­ clusions : either the diffetent Judges who dealt with the case m the course of a whole >cai, did not have in mind the state­ ments made repeatedly in this Court regarding the law pertaining to adjournments ; or, thev did not feel that thev should take guidance from such statements. Either alter­ native gives us considerable disappointment, anxiety, and concern Going now back to the substance of the appeal before us, we unanimously take the view that the prosecutor's appeal against sentence must be allowed ; and the sentence of £20 fine, imposed bv the trial Court on count 3 in the charge, be altered so as to contain also a demolition order for the part of the building constructed without the necessary permit, in respect of which the respondent was prosecuted and con­ victed on count 3 There will be Judgment and demolition order accordingly, directing the respondent to demolish, pull down, or remove the said building within two months from todav ; this period being the maximum allowed bv section 20

(3)(a) of the Stieets and Buildings Regulation Law (Cap 96) tor carrying out a demolition order As rcgarils (osis. we take the view that in the circum­ stances, we should allow no costs m the appeal ; and that the order fin costs in the District Court should be dis­ charged in view of the part taken bv the appellants irt con­ nection with the adjournments Appeal allowed Sentence and older for costs vaned accordingly. No order tor costs in the appeal Appeal allozced. Sentem e and ender for costs of trial Couit ναι ted as above. No otdei for costs hi tlte appeal. 127 1967 April 7 IMPROVEMENT BOARD ot KM\I\KLI ι PELOPIDAS S M ASTIDEa