Inspector-General of Police V. Morlai Kamara (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application of Summary Jurisdiction Act (11 and 12 Vict. c. 43) to Gold Coast—Matter not properly before the Court because no case stated by Magistrate—Having regard to special circumstances of case Court gives ruling—Crinsinal Procedure in Colonial Courts of Summary juriaiction regulated and governed-by local laws.

The facts are fnlly set out in the iudvnent.Case

C. C- Lokko^–for Accused: V. L. Howe for

The following joint judgment was delivered :—

KINGDON, 03., NIGERIA, AITKEN AND GRAHAM PAUL, JJ.

This case came before His Worship the Police Magistrate of the Accra Police District on the 16th of August, 1934, and the defendant was charged with having stolen a pair of platinum and gold links at some time or other during the month of September, 1433. Obviously more than six months had elapsed between the commission of the offence and the commencement of the prosecution. When the defendant was asked if he admitted or denied the truth of the charge against him, he appears to have made a statement which the learned Magistrate construed as an admission of its truth, and conviction and sentence followed straight away. Later on in the same day, and before any Warrant of Imprisonment had.been signed, Mr. Lokko appeared on behalf of the defendant and applied to the learned Magistrate to state a special ease for the opinion of the Divisional Court on the ground that the conviction was bad because the compkint or information had not been^–made or laid within six months from the commission of the offence as required by. section 11 of the Summary Juries diction Act of 1848 (11 and 12 Vict. c. 43). He contended that that act is a statute of general application in force within this Colony under and by virtue of section 14 of the Supreme Court Ordinance.

The learned Magistrate refused to state a case, and on the 1st of September, 1934, Mr. Lokko moved the Divisional Court’ at Accra, coram Yates, Acting Chief Justice, for an order directing the Magistrate to state a case. Upon this Motion the Acting Chief Justice made the following order :—

” I rule that section 11 of Cap. 29 ousts the jurisdiction ” of the Summary Jurisdiction Act, 1848, section 10 ” (i.e. 11), but in view of the importance of the ” matter I refer the case under section 172 of Cap. 31 ” as amended to the Full Court for their final ” decision. Sentence to be respited until such time

as the case may be heard “.

Now it is to be observed that section 172 of the Criminal Procedure Ordinance (as amended by Ordinance No. 30 of 1929) does not empower a Divisional Court to refer a motion for ‘an order directing a Magistrate to state a case to the Full Court: it only empowers a Divisional Court to refer a case which actually has been stated by a Police Magistrate or District Commissioner to the Full Court. Here in this matter of Morlai Samara’s conviction no such case stated exists, and in point of reality there i2, nothing before us on which we can adjudicate. Nevertheless the question of law which Mr. Lokko raised before the Magistrate, and then before the Divisional Court, has been, argued before us on the footing that a case had been stated for our consideration, and the learned Judge has respited execution of the judgment against the defendant until our decision has been pronounced. In these circumstances we have decided to treat the matter as properly before us and express an opinion on the question of law involved. It is short and simple and emerges clearly enough from the record before us; it is also obviously desirable that it should be disposed of without any further delay. At the same time we deem- it necessary to disclaim any intention of creating a precedent for such a procedure as has been adopted by us in the very special circumstances of this case.

The question on which our opinion is sought may be stated shortly as follows :—

(1) Is the Summary Jurisdiction Act of 1848 in force in this Colony,

and (2) If so, does section 11 thereof apply to summary trials before a Police Magistrate.

We are all agreed that that Act is a statute of general application within the meaning of that phrase as employed in section 14 of the Supreme Court Ordinance, and section 17 of the same Ordinance provides that such statutes- shall be in force in this Colony so far only . . . . as local circumstances permit and subject to any existing or future Ordinances of the . Colonial legislature. The learned Police Magistrate and the learned Judge both considered that section 11 of the Criminal Code deprived. the

Summary Jurisdiction Act of 1848 of all force and effect in this Colony, but seeing that that section deals with substantive criminal law only whereas the 1848 Act ia a purely Procedural Statute, we cannot accept that short cut to-a solution of the question. We can, however, arrive at a aolution by the following reasoning:—

First of all it is very doubtful if a Statute like the Act of 1848 could be held to apply to the Police Magistrates’ Courts of this Colony, which are branches of the Supreme Court invested with far larger powers and wider jurisdictions than a Petty Sessional Court in England. A time limit of six months to prevent stale prosecutions for petty offence in a country like England is by no means a statutory provision which obviously fits in with local circumstances and the status of our Courts of Summary Jurisdiction.

In the second place a cursory study of the Supreme Court Ordinance, the Criminal Procedure Ordinance and the Commisaionen Ordinance, all of which are to be read together, suffices to show that the Colonial legial.ature has adopted and embodied in its own Ordinances practically every provision of the 1848 Act except the six months time limit provided by section 11 thereof. From these legislative activities it seems reasonably clear (a) that the Colonial legislature intended to replace the 1848 Act by its local Ordinances, and (b) that it had decided that the six months limit was not suitable to the circumstances and conditions of this Colony.

Lastly we have section 15 of the Supreme Court Ordinance, which explicitly enacts that the jurisdiction vested by that Ordinance in the Supreme Court shall be exercised (so far as regards procedure and practice) in the manner provided by itself, and the Criminal Procedure Ordinance, or by rules and orders of the Court made pursuant to its own provisions.

In the face of that section it seems well nigh impossible to argue that the procedure and practice of the local Supreme Court, which includes all Courts of the Police Magistrates and District Commissioners in the Colony, can be affected by any other enactments than those specified therein. Our judgment on the question at issue may thus be summarised as follows :—The criminal procedure in the Colonial Police Magistrates’ and District Commissioners’ Courts is regulated and governed by our local laws, which have made ample provision therefor, and there appears to be no reason–whatsoever to pray in aid the provisions of any English Statute ” of general application “.

In our opinion, therefore, section 11 of the Summary jurisdiction Act of 1848 does not apply to this Colony.