REPUBLIC vs. HALF ASSINI DISTRICT COURT MAGISTRATE GRADE II; EX PARTE WHAJAH [1968] GLR 780

CASES REFERRED TO

(1) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co., Ltd. (1920)

[1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715; 68 S.J. 188,, C.A.

(2) Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; 127 J.P. 295; 107 S.J: 313; 113 L.J. 716; 61 L.G.R. 369, H.L.

(3) Wood v. Woad (1874) L.R. 9 Ex. 190; 43 L.J.Ex. 153; 30 L.T. 815; 22 W.R. 709; 2 Asp.M.L.C.

289.

NATURE OF PROCEEDINGS

RULING on application for certiorari to quash the order of a district magistrate for confinement of the applicant as a lunatic. The facts are sufficiently set out in the ruling.

COUNSEL

J. Mercer for the applicant.

S. G. Badoo, Assistant State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.

This is an application by Morkeh Whajah for an order of certiorari to remove into this court the order made by the respondent for the purpose of quashing it. It involves the correct application of

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section 12 of the Lunatic Asylums Ordinance, Cap. 79 (1951 Rev.). section 12 is couched in the following words:

“12. Any Magistrate upon the information on oath of any informant to the effect that the informant has good cause to suspect and believe, and does suspect and believe some person within the district of such Magistrate to be a lunatic and a proper subject of confinement, may in any place which he deems convenient examine such suspected person, and in the same place or elsewhere may hold an enquiry as to the state of mind of such suspected person. For the purpose of such enquiry, the Magistrate shall have the same power of summoning witnesses and administering oaths as in a summary trial. Any person so suspected of being a lunatic may, by warrant under the hand of the Magistrate, be detained for observation in such place of custody as the Magistrate shall think fit for any period not exceeding one month.”

The jurisdiction of the magistrate emanates from an information upon oath of an informant that the informant has good cause to suspect and believe that some person within his jurisdiction is a lunatic and a proper subject of confinement. It then becomes his duty to hold an inquiry to determine the state of mind of such suspected person. The magistrate in accordance with section 13 has to appoint a medical officer to examine the suspected person.

The applicant in his affidavit has made the serious allegation that the magistrate did not hold any such inquiry in terms of section 12 of Cap. 79, and it is strange to observe that the respondent never filed any affidavit refuting this rather serious allegation of breach of judicial duty. The only record available to the court is the order made by the magistrate; there is no record of the proceedings about the inquiry.

It is my view that in the face of such an allegation amounting to an abandonment of judicial function on the part of the magistrate it became encumbent on him to swear to an affidavit, if an inquiry was held, refuting the allegation and exhibiting a copy of the proceedings relating to the inquiry.

Section 14 of Cap. 79 states:

“14. Where upon any such examination and enquiry as aforesaid it appears to the Magistrate that the suspected person is a lunatic and a proper subject of confinement, and where a Medical Officer or practising physician or surgeon as aforesaid has signed a certificate as required in the last preceding section,

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certifying that such suspected person is in his opinion a lunatic and a proper subject of confinement, the Magistrate may adjudge such suspected person to be a lunatic and a proper subject of confinement, and shall thereupon by warrant under his hand order him to be confined in an asylum, to which asylum he shall also forward the certificate aforesaid.”

It is abundantly clear that the magistrate was under a judicial duty to hold an inquiry otherwise the opening words of section 14 that “Where upon any such examination and enquiry as aforesaid it appears to the Magistrate that the suspected person is a lunatic and a proper subject of confinement,” will be meaningless and otiose.

If even such an inquiry were held but in the absence of the suspected person, I am prepared to hold that such a procedure was contrary to the elementary principles of natural justice, for the applicability of the principle of audi alteram partem is so firmly established, I think, in our law that any departure from it will bring into play the controlling jurisdiction of this court exercised in these writs: see R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co., Ltd. (1920) [1924] 1 K.B. 171 at p. 205, C.A.

The applicant never had any opportunity to challenge the allegation made against him that he was a lunatic and a proper person for confinement and the decision made by the magistrate in the form of an order is a nullity: see Ridge v. Baldwin [1964] A.C. 40, H.L. and the opinion of the medical officer cannot produce the result that validity is given to that which is a nullity. See also Wood v. Woad (1874) L.R. 9 Ex. 190.

For these reasons, I conclude that the application must succeed, and it is hereby ordered that the order of the magistrate dated 20 January 1968 be brought into this court to be quashed.

Costs of N¢100.00 to the applicant against the respondent.

DECISION

Application granted.

S. K. T.