REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

San Fernando

HIGH COURT ACTION NO. S-160 of 2002

Between

(1) WINSTON NAGESSAR

(2) DOLLY NAGESSAR
(3) TARA NAGESSAR
Plaintiffs

-And-

THE MAYOR, ALDERMEN, COUNCILLORS, AND

ELECTORS OF THE CITY OF SAN FERNANDO
Defendants

Before the Honourable Mr. Justice James C. Aboud (Ag.)

Appearances: Mr. Shastri Parsad for the plaintiffs

Mr. Roger Kawalsingh for the defendant
Dated: 29 May 2008

Reasons for Decision of 2 November 2007

1. The first and second plaintiffs are owners of a parcel of land on which a two-storied
concrete and wooden building once stood. The third plaintiff was alleged to be a
tenant of a down-stairs apartment in the building, which she had furnished. On 24
July 2000 servants or agents of the defendant entered the parcel of land, demolished

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 the building and removed the debris. The plaintiffs alleged that the demolition was
illegal and sought damages, both general and special. The defendant contended that
the demolition was authorized under the law and, in particular section 72 of the
Public Health Ordinance, Chapter 12 No 4, (“the Ordinance”) and sections 175 and
263 of the Municipal Corporations (Act 21, 1990) (“the Act”). The defendant filed
a counterclaim seeking to recoup the cost of the demolition and removal of the
building from the plaintiffs’ land.

2. At the pretrial review, directions were given for a 3-day trial utilizing witness
statements of all witnesses and bundles of agreed documents. Several days before
the start of the trial, counsel for both parties appeared and jointly sought leave to
bring the trial date forward. They submitted that there was only one legal issue to
determine, namely, whether on the facts, which were not in dispute, the defendant
was legally authorized under the Ordinance or the Act to demolish the building.
Mr. Parsad and Mr. Kawalsingh informed the court that the answer to the legal
question would be determinative of the liability (if any) of the defendant. In order
to save time, counsel requested and received directions for the filing of full written
submissions, and a re-scheduled trial date to make oral submissions. The court had
the benefit of reviewing the witness statements and documents from the parties’
agreed bundles.

3. For present purposes I shall refer to the three plaintiffs collectively as “the
plaintiffs” although the issue of law is more directly related to the first and second
plaintiffs as the owners of parcel of land and building.

FACTUAL BACKGROUND
4. In her witness statement of 14 March 2007, Ms Judy Bhola, the owner of an
adjoining property, stated that the plaintiffs’ property was unoccupied for
approximately one year prior to its demolition. She said it was kept in a very
dilapidated state. The bush at the back of the building was overgrown. She said
part of the steps and roof were falling onto the roadway and that rats, roaches, and

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 other vermin were seen on the property. She further stated that vagrants had started
occupying the premises. She made reports to the defendant’s public health
department. She said she made these reports in or around 1999 to 2000. Ms
Bhola’s witness statement continued:

Some months after my report to the Public Health Department, I saw the
said property being repaired and fixed and furniture coming in. The step
was partially fixed and the building on the said property was being
repainted. No major repairs were done. The repairs were purely
cosmetic. The place was still infested with vermin. Even the bushes at
the back of the said property were still overgrown. In my opinion the
said property still posed a health and safety hazard.

5. On 8 February 2000 a notice of even date was served on the plaintiffs, purportedly
issued under the Act. It was issued by the defendant’s City Engineer and was in the
following terms:

TAKE NOTICE that the building owned/occupied by you and assessed

as No. 4 Monsegue Lane, in the City of San Fernando, is in a ruinous and
dilapidated condition so much so as to become unfit for further use
and/or occupation. The structural integrity of the building has not been
maintained and therefore deemed to be dangerous and a threat to Public
Health and safety and prejudicial to the surroundings.

Therefore, pursuant to the powers vested in me, Notice is being served

on you in accordance with section 176 of the Municipal Corporations
Act, No. 21 of 1990, to demolish the building hereinbefore referred to,
within twenty eight (28) days of the date of this notice.

Section 176 states:

176. Where any structure in a municipality is in the opinion of the
Engineer ruinous or so dilapidated as to be unfit for use or
occupation, or to be from any cause in a structural condition
dangerous or prejudicial to property in, or to the inhabitants
of, the neighborhood, he may give notice in writing to the
owner of such structure requiring him to demolish, secure,
repair, or rebuild the same or any part thereof or to fence in
the ground on which such structure stands, or otherwise to
put the same in a state of good repair, as the case may
require to the satisfaction of the Engineer, within the time
specified in the notice.

PENALTY 179. Where an order under section 178, is not complied with
within the time specified therein, the person against whom

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 such order is made is guilty of an offence and liable to fine
of three thousand dollars and to a further fine of Two
Hundred dollars for every day during the continuance of
such non-compliance, and the Council may, without
prejudice to their right to recover such penalties, enter upon
the structure or on the ground upon which it stands and
execute the order.

6. The plaintiffs did not demolish the building in accordance with this notice. On 9
June 2000 the City Medical Officer of Health inspected the plaintiffs’ premises. By
memorandum of 12 June 2000 addressed to the Mayor of San Fernando, he reported
that it was filthy, unwholesome, and injurious to the public. He reported that
pursuant to section 72 (5) of the Ordinance immediate action was needed to abate
the nuisance. By memorandum of 14 June 2000 the Mayor directed the City
Engineer to take immediate steps to abate the nuisance by demolishing the building
and clearing the site. The memorandum recorded the report of the Medical Officer
and stated as follows:

Pursuant to Section 72 (5) of the Public Health Ordinance Chapter 12

No. 4, I therefore direct that immediate steps be taken to abate the said
nuisance by demolishing the said buildings and clearing the site so as to
render the premises safe, taking all due precaution to minimize as far as
is practicable any damage or inconvenience to the public.

7. On the same day of the Mayor’s directive, the City Engineer wrote a letter to the
plaintiffs (countersigned by the defendant’s Chief Executive Officer) in the
following terms:

Re – Demolition of premises at #4 Monsegue Lane, San Fernando

The City Medical Officer of Health visited premises said to be owned by

Winston Nagessar and Dolly Nagessar #4 Monsegue Lane, San Fernando
and has indicated that the buildings constitutes a Heath Nuisance in
accordance with Section 70 (1) (a) of the Public Health Ordinance
(Chapter 12 No 4) in that its construction is decayed, ruinous, filthy and
unwholesome as to be injurious to the safely and health of the public.

As a result, take notice that an order has been issued that immediate steps
be taken to abate the said nuisance by demolishing the said building and

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 clearing the site, so as to render the said site safe taking all due
precaution to minimize as far as practicable any damage or
inconvenience to the public.

Please also take notice that your failure to demolish same by June 20,
2000 will result in the Corporation doing so on June 21, 2000 as per
attached Notice, and placing the charges in respect of same on the House
Rate Card as a charge on the said premises.

The order referred to as having been issued was, apparently, the directive contained
in the Mayor’s memorandum of 14 June 2000.

8. Nothing further occurred until 5 July 2000 on which date Councillor Alvin Reeves,
an elected member of the defendant’s Council, wrote the defendant’s Chief
Executive Officer attaching correspondence he had received from the first plaintiff.
Councillor Reeve’s letter was copied to the Mayor. The attachment was a letter
from the first plaintiff of 4 July 2007 in which he informed the Councillor that the
property was in the process of being sold. He said that he informed the City
Engineer that repair works could be carried out within any reasonable timeframe,
but that the city engineer was uncompromising in his decision to have the building
demolished. The first plaintiff admitted that the building was old but said that it
was structurally strong, save for wooden extensions at the front of the building, on
both floors. He admitted that the wooden floors and the exterior stairway and
handrail needed replacing. The first plaintiff requested an opportunity to present a
structural engineer’s report to the defendant’s Council “with the hope that
permission would be granted to effect the necessary repairs within a specified
period”. There is no evidence from the defendant as to whether this correspondence
was considered by the Mayor or the Council.

9. On 10 July 2000 the City Engineer wrote another letter to the plaintiff in identical
terms to his letter 14 June 2000, but requesting that the plaintiffs demolish the
building by 21 July 2000. Attached to this letter was a notice dated 10 July 2000 in
the following terms:

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 TAKE NOTICE that pursuant to the order of his worship the Mayor,
that building situated at No. 4 Monsegue Lane, San Fernando and of
which you are the owner will be demolished on the 24th day of July 2000.

Demolition will commence at 9 am or so soon thereafter as practicable.

10. The letter and notice having been served, and the building not having been
demolished by 21 July 2000, the defendant caused its contractor to demolish and
remove it at 6.00 am on 24 July 2000. On the next day the Mayor received a letter
from the “Monsegue Lane Residents” which thanked him for removing the
building. The letter contained this paragraph:

We must admit that when the owners started renovating the said
premises on Tuesday July 22nd, wiring the property for electricity supply,
and on the weekend, furniture and other household items were brought in
we thought it [the demolition] would never happen, given the fact that
the property was unoccupied for almost two years and a ‘for sale’ sign
was posted on the building over a long period of time.

THE MUNICIPAL CORPORATIONS ACT

11. In its defence the defendant pleaded that the demolition was authorized under
sections 175 and 263 of the Act. Section 263 is not relevant to any issue upon
which the case turns. The material sections of the Act are sections 175 to 186.
These sections of the Act are only material in relation to the legitimacy of the notice
issued on 8 February 2000. The demolition was in fact undertaken under the
provisions of the Ordinance, but the court will deal with the Act as part of the
defendant’s pleaded case. Section 175 empowers the Corporation’s engineer to
give notice to the owner of a structure to demolish or repair it if it is dangerous to
persons using the street. Section 176 provides that where, in the opinion of the
Engineer, any structure is ruinous or so dilapidated as to be unfit for use or
occupation, or to be so structurally unsound as to prejudice the property or
inhabitants of a neighbourhood, the Engineer may give notice requiring the owner
to demolish, secure, repair, or rebuild it. Section 177 imbues the Engineer with the
same powers as in section 176, but in relation to defects in the internal areas of a
structure, and gives him power to enter and inspect. Section 178 was mysteriously

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 omitted from the catalogue of relevant provisions duplicated in the notice of 8
February 2000. It provides as follows:
Where the owner fails to comply with the requirements of a notice served
on him under any of sections 175, 176, or 177, within the time specified
in the notice, the Council or any person authorised by it in writing may
complain of the non-compliance before a Magistrate who may by order
require the owner to comply with the requirements of such notice within
a time specified by him in the order.

Section 179, which was duplicated in the notice of 8 February 2000, creates
monetary penalties for non-compliance with “the order”, meaning thereby the
Magistrate’s and not the Engineer’s order, and gives power to the Council to itself
demolish the structure.

12. The notice of 8 February 2000 was ineffective and incapable of validating the
demolition. It threatened a monetary penalty and unilateral demolition under
section 179 but the defendant never sought the section 178 mandate of a Magistrate.
The failure to reprint section 178 in the notice appears to be a deliberate omission
and intended to spread fear rather than accurate or responsible information.
Without a Magistrate’s order the threat was idle. The demolition of the building on
the basis of this notice, and without a section 178 Magistrate’s order, was therefore
illegal, and ultra vires the Act.

THE PUBLIC HEALTH ORDINANCE

13. At the core of the defendant’s submissions is the contention that section 72 (5) of
the Ordinance empowers the Mayor to unilaterally make an effective demolition
order.

14. Part VII (sections 69 to 80) of the Ordinance deals with “nuisances”. Section 69
deals with the duty of local authorities to inspect districts for the detection of
nuisances. Section 70 deals with what nuisances may be abated summarily and, so
far as relevant, provides:

70. (1) For the purposes of this Ordinance –

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 (a) any premises, or part thereof, of such construction or in such
decayed, ruinous, filthy or unwholesome state or condition as
to be injurious or likely to be injurious to safety or health,

(b) ~ (m)…etc.

shall be deemed to be nuisances liable to be dealt with summarily in

manner provided by this Ordinance.

15. Section 71 deals with the provision of information of nuisances to local authorities:

71. Information of a nuisance liable to be dealt with summarily under this Part of
this Ordinance in the district of a local authority may be given to that
authority by any person and it shall be the duty of every officer of that
authority to give that information.

16. Section 72 of the Ordinance is the critical section. It deals with the notice
procedure and the steps required for the abatement of a nuisance:

72. (1) On the receipt of any information respecting the existence of a nuisance liable to
be dealt with summarily under this Part of this Ordinance, the local authority
shall, if satisfied of the existence of a nuisance, serve a notice on the person by
whose act, default or sufferance the nuisance arises or continues, or, if such
person cannot be found, on the occupier or owner of the premises on which the
nuisance arises, requiring him to abate the same within the time specified in the
notice, and to execute such works and do such things as may be necessary for
that purpose, and, if the local authority think it desirable (but not otherwise),
specifying any works to be executed.

(2) The local authority may also, by the same or another notice served on such
occupier, owner or person, require him to do what is necessary for preventing the
recurrence of the nuisance, and if they think it desirable, specify any works to be
executed for that purpose, and may serve that notice notwithstanding that the
nuisance may for the time have been abated, if the local authority consider that is
likely to recur on the same premises.

(3) Provided that –

(a) where the nuisance arises from any want or defect of a structural
character, or where the premises are unoccupied, or consist of a barrack
yard, the notice shall be served on the owner;

(b) where the person causing the nuisance cannot be found, and it is clear
that the nuisance does not arise or continue by the act, default or
sufferance of the occupier or owner of the premises, the local authority

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 may themselves abate the same and may do what is necessary to prevent
the recurrence thereof;

(c) Where the Medical Officer of Health certifies to the local authority that
any house or part of a house in their district is so overcrowded as to be
injurious to the health of the inmates, whether or not members of the
same family, the local authority shall take proceedings under this section
for the abatement of such nuisance.

(4) Where a notice has been served on a person under this section, and either:-

(a) the nuisance arose from the willful act of default of the said person, or

(b) such person makes default in complying with any of the requisitions of
the notice within the time specified, he shall be liable to a fine of forty-
eight dollars for each offence, whether any such nuisance order as in this
Part of this Ordinance mentioned is or is not made upon him.

(5) Provided that in event of immediate action becoming in the opinion of the
chairman of the local authority, necessary to deal with a nuisance the abatement
of which is certified by the Medical Officer of Health to be urgent, the chairman
of the local authority may take all such steps and do all such things as the local
authority is empowered to do for the purpose of abating a nuisance under this
Part of this Ordinance.

17. The form of the requisite notice to be served is set out at Form A of the Second
Schedule to the Ordinance. It reads as follows:
Form A
If you make default in complying with the requisitions of this notice, or if the said
nuisance, though abated, is likely to recur, a summons will be issued requiring your
attendance before a Magistrate to answer a complaint which will be made for the purpose
of enforcing the abatement of the nuisance, or prohibiting the recurrence thereof, or both,
and for recovering the costs and penalties that may be incurred thereby.

18. The marginal note to section 73 describes its contents in this way: On non-
compliance with notice, order to be made. The section is quoted in its entirety:
73. (1) If either-
(a) the person on whom a notice to abate a nuisance has been served as
aforesaid makes default in complying with any of the requisitions thereof
within the time specified, or

(b) the nuisance, although abated since the service of the notice, is, in the
opinion of the local authority, likely to recur on the same premises,

the local authority shall make a complaint before the Magistrate of the district,
and such Magistrate may make on such person a summary order (in this Part of
this Ordinance referred to as a nuisance order).

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 (2) A nuisance order may be an abatement order, a prohibition order, or a closing
order, or a combination of such orders.

(3) An abatement order may require a person to comply with all or any of the
requisitions of the notice, or otherwise to abate the nuisance within a time
specified in the order.

(4) A prohibition order may prohibit the recurrence of a nuisance.

(5) An abatement order or a prohibition order shall, if the person on whom the order
is made so requires, or the Magistrate considers it desirable, specify the works to
be executed by such person for the purpose of abating or preventing the
recurrence of the nuisance.

(6) A closing order may prohibit a dwelling house from being used for human
habitation.

(7) A closing order shall only be made where it is proved to the satisfaction of the
Magistrate that by reason of a nuisance a dwelling house is unfit for human
habitation, and if such proof is given, the Magistrate shall make a closing order,
and may impose a fine of ninety-six dollars.

(8) The Magistrate, when satisfied that the dwelling house has been rendered fit for
human habitation, may declare that he is so satisfied and cancel the closing order.

(9) If a person fails to comply with the provisions of a nuisance order with respect to
the abatement of a nuisance, he shall, unless he satisfies the Magistrate that he
has used all due diligence to carry out such order, be liable to a fine of five
dollars a day during his default; and if a person knowingly and willfully acts
contrary to a prohibition or a closing order, he shall be liable to a fine of ten
dollars a day during such contrary action; moreover, the local authority may enter
the premises to which a nuisance order relates, and abate or remove the nuisance,
and do whatever may be necessary in execution of such order

19. The plaintiffs, relying on the Court of Appeal judgment of A. T. Warner JA in The
Mayor, Aldermen, and Burgesses of San Fernando v Chandrawatee Ramlogan
(unreported judgment of 26 July 1986 in Civil Appeal No. 54 of 1985) conceded
that the Mayor, for the purposes of the Ordinance, is deemed the chairman of the
local authority. Mr. Parsad forcefully argued that the Mayor’s powers cannot
exceed the powers of the local authority as set out in the Ordinance; his decisions
and actions must strictly comply with all the statutory procedures that bind the local
authority, in whose name he acts. Foremost among these procedures is the
requirement to initiate proceedings before a Magistrate. The plaintiffs’ case is quite
simply put. The Mayor had no unilateral or independent power to order the

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 demolition of the building unless and until he had caused a section 72 (1) notice to
be served, there was non-compliance with the notice, a complaint was made before
a Magistrate, and a nuisance order was obtained and subsequently disobeyed.

20. The defendant contended that the powers of the Mayor under section 72 (5) are
powers that can be freely exercised, without any procedural fetters save those set
out in that subsection namely, (a) that, in his opinion, immediate action is necessary
to abate a nuisance; and (b) the Medical Officer of Health certifies the abatement to
be urgent. If these two preconditions are met the Mayor “may take all steps and do
all such things as the local authority is empowered to do for the purpose of abating
a nuisance under[Part VII] of the Ordinance”. Mr. Kawalsingh submitted that one
of the powers of the local authority is the one found in section 73 (9); it allows the
local authority to enter the premises of a person who has disobeyed a nuisance order
and itself abate the nuisance. He pointed out that section 72 (5) is framed as a
proviso to the rest of section 72; it therefore emancipates the Mayor from the
cumbersome and time-wasting procedures of serving a section 72 (1) notice,
complaining to a Magistrate if it is ignored, obtaining a nuisance order, and taking
unilateral steps to abate the nuisance if the order is disobeyed. He submitted that
the key words of the proviso are that “immediate action” is “necessary” and the
medical officer certifies that the abatement is “urgent”. In this way, Parliament
must have intended to give emergency powers to the Mayor to act decisively
without delay, and without regard to the procedural formalities in sections 72 and
73. According to Mr. Kawalsingh, the meaning of the words “immediate action”
and “urgent” would be rendered absurd and illogical if the intention was to
encumber the Mayor with the procedural formalities set out in Part VIII. He argued
that the court should adopt a purposive approach in construing the subsection, and
read Parliament’s subterranean intention into the language.

21. Clearly, Parliament intended the Chairman of a local authority to have personal
powers in dealing with abatements that require immediate action. However, a
purposive approach to the construction of the subsection does not necessarily imbue

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 the Mayor with the draconian power to order the demolition of a building if, in his
opinion, and that of the medical officer, the demolition is, respectively, necessary
and urgent. In the first place, the Mayor’s powers are not open-ended. He is only
empowered to do the things that the local authority is empowered to do. The local
authority is empowered to take steps and actions. These steps and actions are
specifically set out in Part VII. The local authority does not have a discretion to
depart from any of the procedural requirements of Part VII. Section 72 (5)
expressly provides that the Mayor “may take all steps and do such things as the
local authority is empowered to do for the purpose of abating a nuisance under this
Part of the Ordinance.” The use of the word “and” in the first phrase of the
sentence signifies that the steps and the actions go hand in hand. It does not suggest
that the Mayor can pick and choose which steps to follow or which actions to take.
A different meaning might emerge if the Mayor was authorized to “take all steps or
do such things as the local authority is empowered to do”. The disjunctive
separation of “steps” and “actions” might open up an avenue for Mayoral
selectivity, but that avenue is barricaded. Moreover, in the second phrase of the
sentence, the steps and actions to be taken are the ones contained in Part VII. No
step or action in Part VII is unaccompanied by a procedural formality. While it is
correct that section 72 (9) empowers the local authority to enter premises and itself
abate a nuisance, this action is the last link on a long chain of procedural events. If
Parliament intended to give the Mayor the specific power to order the demolition of
a building it would have expressly said so, in language free of any ambiguity, by
inserting the words “including the powers in section 73 (9)” at the end of section 72
(5). If Mr. Kawalsingh’s interpretation is correct then the Mayor could select and
take any action in Part VII, including the imposition of a Magistrate’s Court fine
under section 73 (7).

22. There is no useful distinction to be made between the power to initiate and
prosecute the Part VII abatement proceedings and the power to unilaterally order
the entry onto premises to abate a nuisance. This supposed distinction is at the
heart of Mr. Kawalsingh’s submissions. Of the two powers, the former provides a

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 procedural framework to initiate and prosecute abatement proceedings and the latter
provides authority to take the final step to enforce orders made under that
procedure. The enforcement order cannot hypothetically be separated from the
procedure out of which it flows. It is one continuous river and not a series of
disconnected ponds.

23. For the valid exercise of any of its powers, the local authority acts through its
Council. The Council must first assemble at its monthly meeting and formally pass
a resolution. In cases of urgency, a special or extra-ordinary meeting is convened,
and, subject to the provision of adequate notice and the availability of a quorum, the
Council will pass the necessary resolution. A lone Councillor has no power to
activate any procedure under Part VII. However, under section 72 (5), the Mayor
by himself is given the power, without the need to wait for or summon a Council
meeting, to personally take such steps and do such things as the Council is
empowered to do under Part VII. This delegated power, vested in the Mayor
personally, overreaches the Council’s authority under Part VII. It does not create
any new powers nor does it adulterate an existing power. It vests in the Mayor the
unilateral power take the steps and actions available to the Council in accordance
with the statutory chronology, namely, to issue a section 72 (1) notice with its
deadline date for compliance, to make complaint and seek a nuisance order before
the Magistrate if the section 72 (1) notice is ignored, and, in the event that the
nuisance order is disobeyed, to order an entry into the premises to abate the
nuisance. It could not have been Parliament’s intention to allow the chairman of a
local authority to leapfrog over all the essential statutory and public law safeguards
and unilaterally order a demolition. Very fundamental rights are built into Part VII,
not least of which is the ratepayer’s right to be heard as to whether any order made
against him is justified or reasonable. The ratepayer would have that right before
the Magistrate. He also has a right of appeal, in section 74 of Part VII, against the
more severe nuisance orders a Magistrate might make. Is it reasonable to suppose
that Parliament intended that there should be no right of appeal against the Mayor’s
decision to order a demolition, or that the only redress against his decision is to sue

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 for damages after the ratepayer’s building is demolished and carted away? Such an
interpretation would indeed be absurd and fly in the face of the most basic
principles of our common law. It would also amount to an infringement of the due
process provisions of our constitution. The section 72 (5) power must have been
intended to facilitate the Mayor to initiate and prosecute nuisance proceedings in
any emergency that arose between meetings of the Council. It could not have been
Parliament’s intention for the Mayor to have the power to usurp the built-in
safeguards that protect the rights of property owners. The Ordinance was passed on
1 January 1917. At that time, I imagine, the workload of the Magistrate’s Court
was much lighter than it is today and it would not have been fair to then describe
that court’s process as cumbersome or time wasting. I believe that what could be
legally accomplished in two weeks in 1917 would today, sadly, take three or more
months.

24. The procedure adopted by the Mayor was flawed at the outset. The section 72 (1)
notice served on the plaintiffs seems to have been the creative handiwork of a
person other than the Parliamentary draftsman. The second schedule to the
Ordinance contains the required forms. Form “A” is the form to be used for the
purposes of section 72 (1). It contains the warning that non-compliance with the
requisition will result in a summons to appear before a Magistrate. No such
intimation of a Magistrate’s involvement was made in the purported notice. In fact,
two days after receipt of the report of the medical officer, and without inviting any
representation from the plaintiffs or a structural engineer, the Mayor purported to
order the City Engineer to demolish the building. The City Engineer’s letter to the
plaintiffs continued in the same vein, informing them that an order has been made,
that the building will be demolished by a certain date, and that the plaintiffs will be
charged with the City’s demolition expenses unless they demolished it themselves.
The question as to whether demolition constituted the only effective abatement was
never raised. Vermin can be exterminated with pesticides. Tall grass can be cut
with blades. Trespassers can be excluded with fences. Wooden staircases and
floors can be repaired by carpenters. A coat of paint can transform the most jaded

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 of walls. This is all the more surprising in light of the fact that Ms. Bhola, the
neighbour, testified that two days before the demolition the plaintiffs were seen
carrying out renovation works and re-painting the building. Notwithstanding these
works, which she described as “cosmetic”, she complained that the grass at the back
of the premises was still overgrown and the property was infested with vermin. The
plaintiffs’ written request to the Councillor to provide them a time frame to repair
the building and obtain a structural engineer’s report was studiously ignored. These
events and non-events fortify this court’s legal conclusions that the Mayor was
acting in excess of his jurisdiction and in a manner that willfully disregarded the
statutory rights of the plaintiffs.

25. In light of counsel’s agreement that the answer to the legal question would be
determinative of liability in the action, I gave judgment for the plaintiffs with costs.
I ordered the defendant to pay damages to the plaintiffs to be assessed before the
Assistant-Registrar with interest thereon at the rate of 6 % p.a. calculated from 24
July 2000. Because evidence of special damages was not tested in cross-
examination the assistant registrar will likewise have to make an assessment, should
the parties not already have agreed the quantum of special damages. In hindsight, I
now recognize the value of an order for exemplary or aggravated damages but, at
the time I gave judgment, I excluded damages on that footing. I felt that the
decision to quickly determine the action on the basis of legal submissions was a
responsible and welcome concession on the part of the defendant. I also observe
that I did not specifically dismiss the defendant’s counterclaim, although that was
my intention, and the natural effect of my ruling on the legal question.

James Christopher Aboud

Judge (Ag.)

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