Hasara Sindato v. R., Crim. App. 333-A-69; 7/2/70; Platt J.

Hasara Sindato v. R., Crim. App. 333-A-69; 7/2/70; Platt J.

The appellant was convicted on the first count of cultivating scheduled crops on Township land without a permit contrary to Rules 16, and 8 of the Township Rules Cap. 101, and fined Shs. 100/- or two months’ imprisonment in default. On the second count, he was convicted of erecting a building without complying with the Township (Building) Rules, namely Rules 4, 12 and 62 of Cap. 101, and fined a similar sum. In addition, he was ordered to pay a fine of Shs. 10/= per day until he removed the building.

            Held: “The only difficulty which arises on the appeal, concerns the order of the fine of Shs. 10/= per day for failing to remove the house. It appears that the appellant was unable to pay or did not pay the fine and therefore was in prison for fourth months. I presume that while he is in prison, the appellant cannot remove the house. I agree with the appellant therefore that the fine for the recurring offence would operate harshly. It is not, of course, a case where the learned Magistrate had no authority to impose the fine, which is sanctioned by the Rule 64 of the Building Rules. But if the appellant is unable to pay the other fines, it is most unlikely that he will be able to pay the recurring fine for each day that he is in prison …. Rule 12(2) provides that where the authority has given notice to demolish, and the notice has not been complied with, the authority may enter the premises and carry out the demolition and removal and recover all costs and expenses

Incurred by it, from the person who has failed to comply with the notice, the proviso to the Rule allows the appellant the right to challenge the notice. Therefore as both parties have their rights in this matter; it would seem more suitable for the authority to exercise its powers that for the appellant to pay a fine for the recurring breach, which would amount to an extremely large sum of money. Accordingly the recurring fine is set aside. The authority may, if it wishes, now serve another notice upon the appellant requiring him to remove the building within a specified time after which the authority may enter and remove the building for him. He should be given a reasonable time after he has completed his sentence of imprisonment within which to comply with the notice. Apart from these variations, the appeal is dismissed.”