Court Holds That Requirement Of Fumigation Of Premises In AMAC Only Applicable To Food Establishments

*Voids Judgement of Magistrate Court Convicting Construction Company of Failure to Fumigate

An FCT High Court has nullified the judgement of a Magistrate Court which held that the requirement of fumigation of premises under Section 4 of the Abuja Municipal Area Council Pest Control Bye Law (No. 21) 2012 concerns all establishments within the Area Council.

The Court sitting in its appellate jurisdiction over the judgement of an FCT Magistrate Court delivered by Chukwuemeka Ubani (Senior Magistrate) on the 17th of July, 2019 in Case No. AMAC/PFC/0259/2018, held that the Magistrate erred in law when it qualified the Appellant, a construction company as an establishment required of the Bye Law to compulsorily fumigate its premises. According to the High Court in its judgement delivered by Hon. Justice Asmau Akanbi-Yusuf in the appeal between LIEBHERR NIG. LTD  VS. ABUJA MUNICIPAL AREA COUNCIL, the Magistrate Court’s interpretation of Section 4 of the Abuja Municipal Area Council Pest Control Bye Law (No. 21) 2012 amounted to the importation of non-existent words and meaning to the literal meaning of the section. It was held emphatically, that by the literal construction of the section, only food premises or food establishments are compelled to fumigate their premises periodically as provided under the bye law.

The case commenced in 2019, when the Respondent had served demand notices on the Appellant to pay a default charge. The Respondent, as Complainant, subsequently brought the Appellant before the Senior Magistrate Court of the FCT (sitting at Wuse Zone 2 (pest control and fumigation) Mobile Court, pursuant to a Summons on “a charge of failure to disinfect or fumigate your premises as at when due contrary to the provision of Section 7 No. 20 Part 5 of AMAC Public Pest Control Management and Certification Bye-Law 2012”.

In its judgment, the lower trial court observed that the offence for which the Appellant was charged and stood trial was provided for under the Abuja Municipal Area Council Pest Control Bye-Law (No. 20) 2012. The lower court also found that the Respondent had proved its case against the Appellant and therefore found the Appellant guilty of the contravention of Section 4 of that Bye-law. It thus ordered the Appellant to pay the penalty demanded from it or have its premises sealed up.

Aggrieved with this decision of the lower court, the Appellant filed notice of its appeal to the FCT High Court on the 29th of July 2019.

In the Appellant Brief of Argument, he raised two issues for determination before the Court:

1. Whether the lower court was right in its interpretation of Section 4 of the Abuja Municipal Area Council Pest Control Bye-Law (No. 21) 2012 and in applying its provisions to the Appellant.
2. Whether the Respondent proved the Appellant guilty of contravention of Section 4 of the Abuja Municipal Area Council Pest Control Bye Law (No. 21) 2012. Grounds four and five of the Grounds of Appeal.

In his contention, the Appellant argued that a community reading of the provisions of the Abuja Municipal Area Council Pest Control Bye-Law (No. 21) 2012 shows that Sections 1, 2, 3 and 4 thereof applies to every premises while Section 4 upon which its business was wrongly convicted is only intended by legislature to apply to regulated food premises or food establishments. He argued that had the lower court read the provisions together it would have discovered the true intention of legislature that Section 4 was not intended to apply to every premises or establishment. He urged the High Court to take judicial notice of the nature of food premises and business of food establishments that constantly generate refuse, waste water, food crumbs and debris that attract pests, rodents and vermin to such premises and establishments, thus requiring them to be fumigated at the beginning of the year and quarterly thereafter.

He further argued that it is elementary rule of interpretation of statutes that where words or expressions used in statutes are clear and unambiguous, they must be given their plain and ordinary meaning while the court is not allowed to import words into the statute which were not used by legislature.

In its judgement which upheld the appeal, the Court reiterated that it is not in the powers of the courts to make laws or to import extraneous meanings to existing laws.

The Court noted: “It is trite law that the Court has no power to make laws as that is the exclusive preserve of the legislature. Therefore, the primary responsibility of the Court in the area of interpretation is basically to identify the true intention of the framers of the statute.The provisions must be read as a whole and not in isolation in order to bring out succinctly the real intention and desire of the law makers. The Courts cannot supplant their judicial mind or thoughts in place of the intention of the lawmakers.”

The Court held that by specifically mentioning ‘food premises’ or ‘food establishment, the implication is that other premises or establishments that are not ‘food premises’ or ‘food establishment are excluded from the application of Section 4 of the Bye-law restating the principle that in the construction of statutory provisions, the principle is well settled that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. According to the Learned Judge; “The fact that the provisions of Section 4 of the Bye-law do not apply to premises other than food premises and food establishments is further underscored by the second sentence in that provision which provides that the issuance of certificates evidencing fumigation is a condition for the registration of food premises or annual renewal of permits for food premises. This is the inevitable conclusion having regards to the wholistic approach to statutory interpretation.”

Proceeding, the Court held that since the requirement to fumigate on a regular basis under Section 4 of the Abuja Municipal Area Council Pest Control Bye-Law (No. 20) 2012 applies only to regulated food premises’ or ‘regulated food establishment, the application of that provision to the Appellant without any evidence whatsoever that the Appellant qualifies as one of either, is erroneous. Thus, the lower court was wrong in its decision to apply the provisions of Section 4 of the Abuja Municipal Area Council Pest Control Bye-Law (No. 20) 2012 against the Appellant.

On this note, the appeal was sustained and resolved in favour of the Appellant.