006-NLR-NLR-V-12-FERDINANDS-v.-USOOF-SAIBO.pdf
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1909.
January 19and 21.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
FERDINANDS v. USOOF SAIBO.
M. C., Kandy, 15,976.
Bakery—Place used as a bakery—“ Place ”—Costs in criminal appeals—Municipal Councils’ Ordinance (No. 7 of 1887), s. 122.
A by-law enacts as follows :—“ No place used as a bakery shallbe used as a dwelling-place or for any other purpose whatsoever,”Held, that the word “ place ” meant only the building andgrounds actually used as a bakery, and did not include otherportions of the same building.
PPEAL by the Municipal Council from an acquittal of theaccused by the Police Magistrate (T. B. Russell, Esq.). Thefacts sufficiently appear in the judgment.
H. J. C. Pereira, for the Council (appellant).
H. Jayewardene, for the accused, respondent.
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January 19 and 21,1909. Hutchinson C.J.—
I think the decision of the Magistrate is right. The accused wascharged with breach of a by-lawjjmade under section 122 of OrdinanceNo. 7 of 1887. No copy of the by-laws is before me, and I have notseen any of them, except the one in question, which runs as follows:—“ No place used as a bakery shall be used as a dwelling-place orfor any other purpose whatsoever.”
The accused’s bakery has direct communication with the premisesin which he lives by means of a covered place in the verandah,which looks out on an inner courtyard. The question is whetherthe word “ place ” includes the premises in which the accused lives.The prosecution contended that the word “ place ” means thewhole of the buildings, of which the bakery forms part, although itcan hardly be argued that it would include a building, even if itwere in the same compound, separate from and without anycommunication with the building used as a bakery. The Magistrategave what he considered to be the natural meaning to the word“place,” i.e., as including only the building and ground whichisactually used as a bakery.
In my opinion the framer of the by-law could not have intendedthat, if one room in any extensive block of buildings is used as abakery, none of the other buildings, however distant and howeverstrictly shut off from it, can be used for any purpose whatsoever.
I dismiss the appeal.
The respondent asks for an order on the appellant to pay hiscosts of the appeal. He was summoned at the instance of theappellant in order that the Municipality might obtain a decisionon the meaning of a by-law; it was not said that he had beenguilty of any serious offence. His bakery had been in existencefor many years, and had always been clean and well kept, butthe prosecutor alleged that the inter-communication between thebakery mid the dwelling rooms which had existed all those yearswas a breach of the by-law. The respondent succeeded in theMagisterial Court on the merits; he had to bear his own costs ofthe contention there; but he does not complain of that. When,however, the prosecutor carries the case to the Appeal Court, it
is reasonable that, if he fails, he should pay the respondent’s costsof the appeal, and I so order.
Appeal dismissed.
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1909.
January 19and 21.
6-