Supreme Court
Inferior Appeal No. 212 of 1979
9th February, 1980
Moe, J.
Mr. Wilfred P. Elrington for the Plaintiff
Mr. V.H. Courtenay for the Defendant

Breach of statutory provisions attracting criminal penalties - Ordinance No. 21 of 1962 - whether such breach can give rise to an Action for nuisance - Need to specify nuisance in Statement of Claim - Effect of failure to specify nuisance.

J U D G M E N T

This is an application by the Defendant for an order that the Statement of Claim
delivered herein be struck out as disclosing no reasonable cause of action. The
Statement of Claim is as follows:-

STATEMENT OF CLAIM

1. The Plaintiff is the freehold owner of the house and lot situate at No. 55 West
Canal Street, Belize City, Belize.

2. The defendant is the freehold owner of the house and lot situate at No. 59 West Canal Street, Belize City, Belize.

3. In or about the month of August 1979 the defendant in violation of Ordinance No. 21 of 1962 began to construct an addition on the northern section of his said house No. 59 West Canal Street so as to extend his dwelling house to within two feet of the boundary line dividing the plaintiff's property from that of the defendant and to within six feet of the plaintiff's adjoining dwelling house.

4. The Plaintiff at once complained to the defendant about the extension of said
building and demanded that he desist from continuing with the erection and that he pull down and remove the said addition. The defendant also complained in writing to the Housing and Planning Authority in Belize City.

5. In breach of the said Ordinance and in spite of the plaintiff's remonstrance, the defendant did not desist, but continued with the erection of the said extension until it is now almost completed.

6. The defendant intends, unless restrained by this Honourable court from doing so, to complete the erection of said addition.

AND THE PLAINTIFF CLAIMS:

(1) An order that the defendant do forthwith pull down and remove so much of the said addition as is constructed in contravention of the said Ordinance.

(2) An injunction to restrain the defendant by himself, his servants, workmen or agents, or otherwise howsoever, from constructing, keeping or maintaining the said addition in violation of Ordinance No. 21 of 1962 and so as to cause a nuisance to the plaintiff.

DATED the 5th day of December, 1979.

It is submitted on behalf of the Defendant that the Statement of Claim merely alleges a violation by the Defendant of a Statute viz. Ordinance No. 21 of 1962 and the mere fact that the Defendant's act is unlawful does not necessarily give the Plaintiff a right which can be enforced and particularly not by way of injunction. It is argued on behalf of the Defendant that Ordinance No. 21 of 1962 not only creates the offence which it is alleged was committed but also prescribes the procedure to be followed when there is a violation of the provision and the penalty which may be imposed. Therefore the plaintiff is bound by the procedure set out in the Ordinance and cannot seek relief by way of injunction.

The Plaintiff on the other hand submits that the Defendant's act complained of amounts not only to a statutory offence, i.e. an offence created by Ordinance 21 of 1962 but also involves injury to his property. It is argued that the Defendant by the act complained of has committed a nuisance against the Plaintiff's property and the Plaintiff is entitled to have his rights of property protected.

There is no dispute that by section 17 of Ordinance 21 of 1962 a criminal offence is created and the penalty for such an offence is provided for in section 35 of the said Ordinance. It is also agreed that assuming the allegations in the Plaintiff's Statement of Claim to be true, the Defendant's act complained of would amount to an offence against the provisions of Ordinance 21 of 1962.

There is abundant authority for the proposition that where the only wrong complained of is breach of a statute, then the procedure and remedy laid down in the statute must be followed and pursued. Counsel for the Defendant referred to Mullis v. Hubbard (1903) 2 Ch. 431, in which the decision was on section 3 of the Public Health (Buildings in Streets) Act, 1888 that for the offence prohibited by that section a penalty was imposed to be exacted by the authority specified therein and the Act did not create rights in individuals but general rights for the benefit of the inhabitants of a particular borough or district. Reference was also made to Devonport Corporation v. Tozer (1903) 1 Ch. 759 where Collins M.R. reiterated the principle "where there is a public wrong and where the local authority who have certain special rights to sue in their own name for certain special remedies but have not done so, and are trying to put in suit a public wrong, they must do it in the recognized way, namely, at the suit of the Attorney General".

But nothing that has been said means that a complainant is precluded from pursuing his common law rights. Indeed in the said Mullis v. Hubbard, Farwell J pointed out that "If the next door neighbor has any common law rights, they are left untouched and he can assert them."

It is therefore necessary to determine first whether the Statement of Claim discloses or sets up an allegation of injury to property of the plaintiff. For as Lord Eldon pointed out in the case of Gee v. Pritchard (1818) 2 Sw. 402, 413, "The jurisdiction of this court is to protect property and it will interfere by injunction to stay any proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate destruction of property, or to make it less valuable or comfortable for use or occupation." This principle was reiterated by Ungoed-Thomas J in Argyll v. Argyll (1965) 1 AER 611 p. 633." In the case of a mere criminal act an injunction would not issue, but if the criminal act involved an injury to property an injunction would be based on the threatened injury to property independently of the crime".

However, after study of the Statement of Claim I can find no allegation by the Plaintiff of any legal right. There is no statement in the Statement of Claim that the plaintiff has been, is or is about to be injured or affected in any way. I hold that the Statement of Claim does not state nuisance as the cause of action which the plaintiff asserts arises from the facts set out therein. The only complaint appearing is the complaint that the plaintiff has breached a Statue i.e. Ordinance 21 of 1962. In my view therefore, the action is not maintainable.

The plaintiff at the hearing sought leave to amend the Statement of Claim to make a specific claim of nuisance. To my mind to give leave for this purpose would be to allow a change to the whole nature of the action now before the Court. In these circumstances leave will not be granted for such an amendment. In the result no cause of action is disclosed. The Statement of Claim must be struck out and the Action dismissed.

Defendant to have his costs.