REPUBLIC v. ACCRA DISTRICT COURT MAGISTRATE; EX PARTE KUMA [1968] GLR 954

DIVISION: HIGH COURT, ACCRA

DATE: 28 OCTOBER 1968

BEFORE: CHARLES CRABBE J.

NATURE OF PROCEEDINGS

APPLICATION for a writ of certiorari to quash a committal order. The facts are fully set out in the ruling.

COUNSEL

J. K. Agyemang (with him Amissah Aidoo and P. A. Adjetey) for the applicant.

JUDGMENT OF CHARLES CRABBE J.

This is an application for leave for the issue of a writ of certiorari to quash the committal proceedings and order made by his worship Mr. Moses Abaka, district magistrate, on 17 October 1968, in the case Republic v. Kuma who is the applicant before this court. This ex parte motion has attached to it, in accordance with the rules governing the same, a statement and an affidavit which purport to set out the facts upon which the application is based.

Counsel for the applicant argued on two grounds:

“(a) that the learned magistrate had no jurisdiction to entertain the committal proceedings brought before him; and

(b) that even if he had jurisdiction which is denied, the order made by him was made in breach of the rules of natural justice.”

He submitted that if either of these contentions is sustained then it would be a proper case for leave to be granted by the court. All he need establish, he contended, is a prima facie case.

[p.956] of [1968] GLR 954

On the question of lack of jurisdiction, counsel stated that the motion paper together with the supporting affidavit and the statement of the applicant made the position clear, namely, that the applicant had already been put before his worship, Mr. Hansen, district magistrate, for committal. That magistrate had, in consideration of the evidence before him and of the address of counsel for both parties, that is the prosecution and the defence, ordered that there was no case for the accused to answer and accordingly discharged him.

The facts of this case as stated by counsel for the applicant are that the applicant was brought before his worship, Mr. Hansen, district magistrate, somewhere in March 1968. On that date the learned magistrate discharged the accused and his ruling was attached as part of the statement of the applicant as exhibit A. The prosecution appealed against the order of the magistrate. They argued that if the learned magistrate was satisfied that the offence charged could not possibly have been committed by the accused but that some other offence was disclosed by the evidence, then, even though the accused was not charged with that other offence, it was the duty of the magistrate to commit him. The High Court, presided over by Amissah J.A., heard the appeal and gave ruling (see p. 532) that the case be remitted back to the magistrate with instructions that he should commit the accused if in his opinion there was a case of any possible offence disclosed by the summary of evidence in respect of which a trial court could call upon the accused to answer. The ruling of the High Court was attached to the statement as exhibit B.

According to counsel for the applicant, Mr. Hansen duly complied with the instructions of the High Court. It was stated that the prosecution then put the matter before another magistrate, her worship, Mrs. Liverpool. After hearing the case in part, that magistrate called upon the prosecution to include in the summary of evidence the statement of a Mr. K. Narayan whose name appeared as one of the prosecution witnesses but whose statement was not included in the summary of evidence. The case was adjourned for that purpose.

On the adjourned date, so claimed counsel for the applicant, the case was, for some reason or other, put before Mr. Hansen and not before Mrs. Liverpool who had duly complied with the directions of the High Court. All these facts, according to counsel for the applicant, are deposed to in the affidavit of the applicant. Mr. Hansen duly gave his ruling in the matter which was attached as exhibit C to the [p.957] of [1968] GLR 954 statement of the applicant. According to counsel for the applicant, Mr. Hansen made an order on 2 August 1968 discharging the accused. The position, as counsel saw it, is that there is a valid order of Mr. Hansen which subsists. There was no appeal in respect of that order nor was there any review. Counsel submitted that that order of Mr. Hansen is an order of a court of competent jurisdiction and that the order is valid and subsisting and in the circumstances binding on the State.

The prosecution, not being satisfied with the order of Mr. Hansen, so argued counsel for the applicant, got the accused re-arrested. It is alleged that the accused was locked up for the day and then brought before another magistrate in the same district court on the same facts and on the same charge. In doing so the prosecution purported to act under subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30). Counsel submitted that the phrase “subsequent charge” as used in that subsection is not intended to have the meaning of “same charge” and that the magistrate, Mr. Moses Abaka, could only validly exercise jurisdiction in the matter if the accused, the applicant herein, had been brought before him on another charge “in respect of the same facts.” To support this contention, counsel referred to section 113 of the Criminal Procedure Code, 1960 (Act 30). In his view the word “subsequent” does not have the same meaning as the word “same” bearing in mind that there is in this country a district court in Accra in the Eastern Region and that the order of Mr. Hansen is the order of the district court. It would be unwise, improper, so contended counsel for the applicant, for a person who had been discharged by the district court to be brought before the same district court, albeit occupied by a different person, on the same facts on the same charge. Counsel contended that so to do would mean that the magistrate, Mr. Abaka, was challenging the order made by the magistrate, Mr. Hansen, as being wrong and invalid. On this issue he cited Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A. He contended that on the authority of Dankwa v. Fuller (supra), the magistrate, Mr. Abaka, could not have jurisdiction to entertain the committal proceedings based on the same facts and on the same charge upon which a magistrate of co-ordinate jurisdiction had given a ruling. In his view the prosecution could only do that on the discovery of new facts or further evidence. On the second ground that the order made by the magistrate was made in breach of the rules of natural justice, counsel referred to paragraphs (16), (19) and (21) of the applicant’s affidavit and argued

[p.958] of [1968] GLR 954 that the prosecution, acting under section 184 of the Criminal Procedure Code, 1960 (Act 30), had a discretion to address the magistrate. Equally, the accused had a discretion to address the court; but that once the prosecution had exercised their right of address, the accused also had a right which cannot be refused. He contended that it is a right which lies with the accused. But then, so says counsel for the applicant, they were refused a hearing. It is the case for the applicant that the refusal was wrongful and in breach of the rules of natural justice. Here counsel relied on R. v. Wandsworth Justices; Ex parte Read [1942] 1 K.B. 281 at p. 283 and R. v. Toynbee Hall Juvenile Court Justices; Ex parte Joseph [1939] 3 All E.R. 16 at p. 21, D.C. The statement of the applicant prayed that relief be granted him on the grounds:

“(a) that the magistrate Mr. Abaka had no jurisdiction to hear the committal proceedings on the same charge and on the same summary of evidence on which he had already been discharged by a magistrate of co-ordinate jurisdiction;

(b) that the magistrate, Mr. Abaka could not sit on the same case in an appellate capacity and further that the procedure rules did not give him power to hear committal proceedings based on the same evidence and the same charge in respect of which he had been previously discharged by another magistrate;

(c) that the magistrate, Mr. Abaka having overruled his counsel’s preliminary objection as to jurisdiction did not proceed to hear his counsel’s submissions on the summary of evidence as to whether the summary of evidence disclosed the offence stated in the indictment before the court; and that by the said refusal to hear his counsel the magistrate erred in law by not following the procedure laid down regarding committal proceedings;

(d) that by refusing to allow his counsel to address the court before the committal to the High Court, the magistrate had acted contrary to the rules of natural justice by denying him a hearing on the merits of the case before the magistrate; and finally;

(e) that he was given less than 24 hours’ notice to appear before the committal magistrate instead of three clear days’ notice as required by the rules; and that when his counsel asked for an adjournment, the magistrate refused to allow the adjournment and committed the case to the High Court without listening to his counsel’s address.”

[p.959] of [1968] GLR 954

In respect of the first ground, the question which arises is whether the magistrate is bound by a decision of the High Court. That decision of the High Court is to the effect that the magistrate could commit the accused, the applicant in this case, if in his opinion there was evidence on the summary of evidence which supported the offences charged in the indictment or any other offence for which the accused could be convicted at his trial. Counsel for the applicant contended that a district court is a district court irrespective of the person or any particular magistrate who may be occupying the bench for the time being. If that argument is accepted, it means that a decision of the High Court which by virtue of the provisions of paragraph 27 (c) of the Courts Decree, 1966 (N.L.C.D. 84), binds the district court, would bind the district court irrespective of any particular magistrate who may be occupying the bench for the time being. In the affidavit attached to the statement by the applicant, he states in paragraph (17) thereof, that he sought leave of the High Court to appeal against the ruling of the High Court. Leave was refused. He appealed to the Court of Appeal against the refusal of the High Court to grant leave to appeal. The Court of Appeal ruled (see p. 926) that he had no right of appeal in the matter. The decision of the High Court therefore stands or, in the language of counsel for the applicant, subsists and if it subsists then it subsists against the district court irrespective of the particular magistrate who happens to occupy the bench at any particular time. But, it is argued by counsel for the applicant, once the matter had come before a particular magistrate and he has given his decision thereon, another magistrate of co-ordinate jurisdiction could not hear the same matter again. This will lead to a consideration of the meaning which should be attached to the word “subsequent” in subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30). But more of this later.

The second ground upon which the leave is sought is that the magistrate, Mr. Abaka, could not sit on the same case in an appellate capacity and that the procedure rules do not give him power to hear committal proceedings based on the same evidence and the same charge in respect of which the applicant had previously been discharged by another magistrate. Nowhere in the papers filed in this case is it stated nor has it been argued that the magistrate, Mr. Abaka, claimed that he was acting in an appellate capacity. This is an interpretation which the accused, now the applicant, chooses to place upon the conduct of the magistrate. Again, consideration of this ground will lead to a consideration of what meaning should be attached to the word “subsequent” as used in subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30). [p.960] of [1968] GLR 954

The third ground on which relief is sought claims that the magistrate having overruled the submission of counsel for the accused did not proceed to hear submissions of counsel as to whether the said summary of evidence disclosed the offence in the indictment then before the court. Subsections (1) and (2) of section 184 of the Criminal Procedure Code, 1960 (Act 30), give discretionary power to the prosecution as well as to the defence to address the court. Under subsection (1), the prosecution may address the court in explanation of the case against the accused. Under subsection (2) an address may be made in reply by or on behalf of the accused. I agree with counsel for the applicant in his interpretation of these two subsections read together. In my view if an explanation is given by the prosecution of the case against the accused, then the accused is entitled to reply. But there is more to this than would appear in the statement of the applicant. He states that the refusal of the magistrate to hear his counsel was erroneous in law and that in so doing the magistrate was not following the procedure laid down regarding committal proceedings.

The applicant in his affidavit supporting the statement and the motion for leave referred to the committal order and attached a copy of it as exhibit E to his affidavit. This exhibit E is a document produced as an exhibit to this court by the applicant and the statements therein, for what they are worth, bind the applicant. In this exhibit E the words “counsel for accused addresses in reply” are used. The words are preceded by another set of words, “accused addresses in reply.” Both these sets of words are preceded by an asterisk which indicates that the set of words which does not apply is intended to be deleted. The first set of words, “accused addresses in reply” are deleted. The second set of words, “counsel for accused addresses in reply,” therefore stands as part of exhibit E. When the attention of counsel for the applicant was drawn by the court to this fact, he sought to ask leave of the court to adjourn the case in order that they might swear to a supplementary affidavit to deal with the issue. That application was immediately refused. The applicant in this case is a legal practitioner and in his affidavit which, be it noted, was made on oath, he had stated in paragraph (19) that the learned magistrate before committing him should have heard his counsel on the evidence submitted by the prosecution. Exhibit E has in no way been challenged as an improper record except in so far as one could take paragraph (19) of the affidavit attached to the statement of the applicant as a challenge. If this is so, then the statement on exhibit E signed by the applicant assumes great importance in [p.961] of [1968] GLR 954 this case. This is what the accused has stated in this exhibit E:

“I am not guilty. I rely on my statement which is part of the summary. I rely entirely on my counsel’s address. I do not intend setting up the defence of alibi.”

This is signed by the accused, the applicant herein, and dated 8 August 1968.

The explanation of counsel for the applicant is that that statement was made before the accused was committed on 17 October 1968 as there was an adjournment before the committal. All these facts as to the real position of the contents of exhibit E were not deposed to in the affidavit. It is pertinent to realise that in moving a court ex parte, an applicant is under a strict obligation of uberrima fides.

If the attention of counsel had not been drawn by the court to the position, and the effect of exhibit E is obvious, and counsel did say so, the application for leave for an adjournment to add a supplementary affidavit would not have been made. But whatever view is taken of the matter, exhibit E is a document which binds the applicant having been produced to the court as an exhibit by the applicant. If this were a case in which the applicant were in the witness-box he would be subject, no doubt, to severe cross-examination. But then one cannot cross-examine on an affidavit. And it must be accepted for what it is worth. In R. v. Wandsworth Justices; Ex parte Read [1942] 1 K.B. 281 cited by counsel for the applicant, Viscount Caldecote C.J. had this to say at pp. 283-284:

“The court has listened to argument on the proper procedure or remedy in the case of the exercise by an inferior court of a jurisdiction which it does not possess. It is, however, not necessary here to consider whether or not there has been a usurpation of jurisdiction, because there has been a denial of justice, and the only way in which that denial of justice can be brought to the knowledge of this court is by way of affidavit. For that reason the court is entitled, indeed, it is bound, if justice is to be done, to look at the affidavit just as it would in an ordinary case of excess of jurisdiction. Notwithstanding the argument of counsel for the justices that an affidavit is not necessary even in a case of want of jurisdiction, I am clearly of opinion that even in such a case an affidavit can be looked at, and that also in this case, which is not one of want of jurisdiction but is analogous to it, the court will look at the affidavit to see what the facts are. If it appears that there has been a denial of natural justice, the [p.962] of [1968] GLR 954 court will interfere and order that the conviction shall not stand.”

This statement of the law was cited to the court by counsel for the applicant. The court has looked at the affidavit. Nowhere in the affidavit has it been stated that exhibit E is not proper or that there is an error on the face of it. The resulting situation is an interesting one. The applicant swears to an affidavit that his counsel was not heard; that is contrary to the rules of natural justice. But he at the same time produces a document in which he has signed a statement saying, inter alia, “I rely entirely on my counsel’s address.” Sub-section (3) of section 184 of the Criminal Procedure Code, 1960 (Act 30), states that the address of the prosecution in explanation of the charge shall not be recorded but, that the accused may make a statement which shall be recorded. The statement made by the accused pursuant to this provision contains the words “I rely entirely on my counsel’s address.” One is thus reminded of the well-worn Chancery jibe, “truth will out even in an affidavit.” In the result I consider the affidavit as being unsatisfactory. Even so, this refusal, if there was one, cannot, in my view, be made a ground for the issue of a writ of certiorari. For the procedure outlined by section 184 of the Criminal Procedure Code, 1960 (Act 30), allows an accused person the privilege of keeping his mouth shut up. He can reserve what he wants to say or has to say for the trial court. There he has to meet his accusers. There he has to challenge them. There he has to say what is his case. To put it in another way, it is at the trial that he has to meet justice. He will cross-examine his accusers at the trial. They will be at his mercy. At the end of all that exercise he can take a course which makes it difficult for him to be cross-examined. At the committal stage the magistrate is not hearing the case on its merits and it cannot be argued that an accused person has been denied a hearing so as to invoke cries of natural justice. If that argument is sound then it would be proper for counsel for the applicant to raise issues of autrefois acquit. But that he would not do. In my view that would make meaningless the words of subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30), which say that if there is no case for the accused to answer and he is discharged, that discharge, “shall not be a bar to a subsequent charge in respect of the same facts.” Were it otherwise, this provision of the law, however much one would argue that it is a statutory provision, cannot escape the very serious charge of a statutory denial of natural justice. [p.963] of [1968] GLR 954

The fourth and fifth grounds raise practically the same issues as the grounds already dealt with. They were not argued by counsel for the applicant. I do not propose, therefore, to go into the merits and demerits of those grounds, except to say that it has not been specifically stated either in the affidavit of the applicant or in argument by counsel before this court, what rule requires the three clear days’ notice having regard to the provisions of paragraph (a) of section 10, or subsections (3) and (4) of section 15 and of section 77 of the Criminal Procedure Code, 1960 (Act 30). Counsel for the applicant argued that the word “subsequent” in subsection (5) of section 184 of the Criminal Procedure Code, 1960, should not and cannot be construed as meaning “same.” The Concise Oxford Dictionary (4th ed.) at p. 1265 defines “subsequent” as “That follow(s) or followed the event etc. indicated in the context, of later time or date than something posterior in time to.” The emphasis on “to” is not mine. The Readers Digest Great Encyclopaedic Dictionary also defines “subsequent” as meaning “Following in order, time or succession especially coming immediately after.” In R. v. Peters (1886) 16 Q.B.D. 636 at p. 641, C.C.R. Lord Coleridge C. J. said: “I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.”

The instruction which the dictionaries cited give is that “subsequent” relates to time. That accepted, subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30), can be rendered thus:

“If the Court is of opinion that there is not a case for the accused to answer, it shall discharge him but this shall not be a bar to a charge brought at any time thereafter in respect of the same facts.”

It could also be rendered thus:

“If the court is of opinion that there is not a case for the accused to answer, it shall discharge him but that shall not be a bar to a charge brought immediately thereafter in respect of the same facts.”

It is important to realise that the indefinite article “a” is used; “a charge” is the expression used. The letter or word “a” used in that subsection has the same meaning as “any.” But as, Driedger in his

[p.964] of [1968] GLR 954 book on The Composition of Legislation (1956) said at p. 79 “Any” is “A tiresome word in legislation. Many anys can be replaced by a or an with better effect.”

On this interpretation subsection (5) of section 184 of the Criminal Procedure Code, 1960 (Act 30), bearing in mind the two renderings of that subsection referred to above, the prosecution could, if it chooses, bring any person before any magistrate on any charge immediately after his discharge pursuant to the provisions of that subsection.

It may not be out of place, I think, if some reference is made in this respect to the use of the word “subsequent” in some other legislation and the meaning that has been attached to it. In Fear v. Castle (1881) 8 Q.B.D. 380, it was held that a second action which was commenced after the issue of a writ before judgment was obtained in the first action was a “subsequent action” within the meaning of the Married Women’s Property Act (1870) Amendment Act, 1874 (37 & 38 Vict., c. 50). Equally, it has been held that “subsequent action for infringement” means, within the meaning of the Patents Act, 1949 (12, 13 & 14 Geo. c. 87), an action about the same patent commenced after the one in which the court or judge has, under section 31 thereof, certified the validity of the patent. In R. v. Cutbush (1867) L.R. 2 Q.B. 379 it was held, on an interpretation of the words “subsequent offence” as used in section 25 of the Summary Jurisdiction Act, 1848 (11 &12 Vict., c. 43), that two charges could be heard consecutively at the same sitting and if the accused were found guilty of both, that he could be sentenced for the first, and that the second should be treated as the trial for a subsequent offence for which he might, at the same sitting, have a second sentence. This was, however, doubted in R. v. Martin, The Times 18 May 1911 and the court in that case refused to extend its ruling to a third sentence. These cases also show that “subsequent” relates to time. The argument by reference to section 113 of the Criminal Procedure Code, 1960 (Act 30), does not help either. If anything, it is against the arguments of counsel for the applicant who raised it in support of his arguments. For that section means what it says, that is, where a person has been tried and convicted or acquitted of an offence then, that person “shall not be liable to be tried again on the same facts for the same offence. . .” In other words the prosecution is precluded from bringing against that person an offence or a charge based on the same facts for the same offence or for any other offence disclosed by the evidence. [p.965] of [1968] GLR 954

Clearly if this section 113 is read side by side with subsection (5) of section 184 the obvious interpretation that could be given that subsection is that the prosecution could, if it so chooses, bring a person up for the same offence in respect of the same facts before any magistrate under the procedure relating to summary evidence. For if it is the intention of the legislature that once a person has been discharged by a magistrate on summary evidence he should not be brought up again in the circumstances in which we are dealing in the instant case, it would have said so. In other words that subsection (5) would have been put thus, or in words to a similar effect: “If the court is of opinion that there is no case for the accused to answer, it shall discharge him, and any such discharge shall be a bar to a subsequent charge in respect of the same facts.”

I cannot therefore hold that the magistrate, Mr. Abaka, could only have exercised jurisdiction validly in this matter if the accused had been brought before him on another charge in respect of the same facts. I am thus bound to hold that the magistrate, Mr. Abaka, had jurisdiction to entertain the matter. Counsel always argue before judges of the High Court that a decision of a brother judge of the High Court does not bind the judge before whom they are appearing and, at best, is only of persuasive effect. If counsel accept that principle, in the absence of any statutory provisions to the contrary, I do not see how that principle cannot be applied to the district courts. If I may be permitted to borrow a well-known phrase from mathematics bis bina quartor sunt, and this is so whether the reference is to people, pets or pebbles. One often hears in cases of this nature cries of the rules of natural justice. True, the idea has fulfilled many functions. It has served conservatism; it was used as a device to consolidate the established order of things in the name of an eternal order of things. Equally, it has served revolutionary ends, as, for example, in the struggle for emancipation from absolutism and feudalism. The examples are legion; the indestructible rights and freedoms of the individual, all these and many other ideals have derived their appeal from the plea of natural justice. What should be appreciated is that, at different times, the appeal has been used to separate almost every ideology. It inspired the Stoics, the later period of Roman jurisprudence, the legal order of medieval society and Grotius in his theories of the modern system of international law as well as Locke and Paine. Counsel are therefore always in good company when they raise arguments based on natural justice. But, in my humble [p.966] of [1968] GLR 954 view, justice means justice for the accused as well as justice for the prosecution.

Is it in conformity with the rules of natural justice, one may ask, that the prosecution are required to give the accused, before trial, the evidence they intend to lead against the accused at his trial, but the accused is not required to let the prosecution know the defence he intends to put up at the trial, except, perhaps in a case where he depends upon alibi? Portia was right, perhaps, when she taunted Shylock with the Jew’s cries of justice. But this is too big a question to go into now.

What is this plea of natural justice here? It is that on 8 April 1968, the prosecution presented the nature of their case against the accused; that counsel for the accused made his submissions thereto but that the magistrate overruled those submissions; that the learned magistrate should have heard counsel for the accused on the evidence submitted to the court by the prosecution and finally that the learned magistrate refused an adjournment when informed that there was an application for leave to issue a writ of prohibition. These are the averments in paragraphs (16), (19) and (21) of the affidavit of the applicant on which counsel relied. It is a bit hard on a magistrate, I think, to be told that his view of the law in overruling a submission of jurisdiction offends against the rules of natural justice. His view of the law may, on appeal, turn out to be right. And as for errors, only the legislature can claim human infallibility. Paragraphs (19) and (21) of the affidavit raise substantially the same issues which I have dealt with already. This brings me to the arguments based on Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A.

In that case, Dankwa v. Fuller (supra), an application for enlargement of time within which to file grounds of appeal had been made when the appeal came for hearing in the High Court. The learned judge ruled that the application under the Native Courts (Ashanti) Procedure Rules, 1949 (No. 32 of 1949), r. 129 (1) for enlargement of time should be made by motion on notice and not ex parte. He also expressed the opinion that the procedure rules gave no power to the High Court to enlarge the time and that the enlargement that had been ordered was a nullity. It was in respect of that ruling by the High Court on the enlargement of time granted by the High Court presided over by another judge that the Court of Appeal decided, inter alia, that the order enlarging time was a valid order of a competent court and was binding unless and until set aside by the judge on review or by a

[p.967] of [1968] GLR 954 competent appellate court. It was not within the power of a court of co-equal jurisdiction or of the same differently constituted to declare such order invalid. Counsel for the applicant in seeking to rely on this case argued that once Mr. Hansen presiding over the district court had given a ruling discharging the accused, Mr. Abaka another magistrate presiding over the district court could not deal further with the matter.

The present case is, in my view, clearly distinguishable from Dankwa v. Fuller (supra). In that case leave had been granted for the enlargement of time. On appeal, therefore, it was not competent for the learned judge to rule on this enlargement of time in the face of the decision of the Court of Appeal in R. v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 137, C.A. which had established that an order of enlargement of time is a binding order and which was not even appealable to the Court of Appeal. If the Court of Appeal had no jurisdiction on an appeal to deal with an enlargement of time in those circumstances then, of course, a High Court differently constituted could not deal with the matter. In the present case, subsection (5) of section 184 of the Criminal Procedure Code 1960, (Act 30), clearly states that the opinion of one committal magistrate in discharging an accused person shall not be a bar to a subsequent charge based on the same facts. This subsection clearly establishes that in the procedure by way of summary evidence the decision of one committal magistrate in discharging an accused person cannot bind another committal magistrate. And this, a statutory provision, is couched in mandatory terms.

In R. v. Kensington Income Tax Commissioners; Ex parte Princess Edmond Polignac [1917] 1 K.B. 486, C.A. Viscount Reading C.J. had this to say at pp. 495-496:

“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the [p.968] of [1968] GLR 954

Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear everything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

In paragraph (21) of the affidavit of the applicant, exhibit E is put forth as being a ruling of the magistrate, Mr. Abaka. In fact it is not a ruling of the magistrate. Exhibit E is a document prepared pursuant to the provisions of sections 182, 184, 187 and 188 and the Sixth Schedule to Criminal Procedure Code, 1960 (Act 30). As I have already indicated, until the court drew the attention of counsel to the significance of exhibit E, no attempt had been made either in the affidavit or during argument by counsel to show that exhibit E contains errors on the face of the record. If it is accepted that counsel was refused the right to address the court, I conceive that no amount of supplementary affidavits can obliterate the statement of the applicant as shown on exhibit E in the words: “I rely entirely on my counsel’s address. . .” It does not say that he relied upon submissions of his counsel. He says that he relied entirely on his counsel’s address. Exhibit E is a record of the committal proceedings and above the signature of the applicant are the words: “I rely entirely on my counsel’s address. . .” The motion before me is an ex parte application which is based on the requirement that an obligation of the fullest confidence is a sine qua non on the part of the applicant. I cannot say that on this affidavit the utmost good faith has been shown.

Considering all these factors as I have outlined above I cannot grant the leave sought. I therefore dismiss the application.

DECISION

Application dismissed.

L. F. A