Alpha Kamara v S.A.T Koroma (MAG APP 53 of 1963) [1963] SLSC 38 (30 September 1963)

-- Donald Grant. They are set down as children of the· deceased but from the evidence it was revealed that they are the niece and nephews of the deceased. This discrepancy does not, however, disqualify them under the Fatal Accident Acts. The other claimants, apart from the widow, Matilda Grant and Ola Macfoy, fall also within the category. Ola Tolbert appears to be in a different position and I presume that it was on that account she was left out of the statement of particulars, and for the same reason I am not considering any claim on her behalf. The deceased was 591 years old at the time of his death and was on the eve of retiring from the teaching profession in which his earnings were £480 per annum together with another £240-not questioned-which he gained from giving private lessons. I do not think it is . really good sense to fix takings from private tuition at a particular figure. These takings, even under the best of conditions, are known to fluctuate. I think it is reasonable to assess it at £120-an amount which could be considered generous. From the extent of voluntary responsibility the deceased seemed to have been doing pretty well on about £600 a year. It is from this background I propose to make the awards. Patricia was 18 years old at the time of the accident and has now left school. She is about 20 years of age-a young woman. I award £3 a month from end of May 1962, until she is 21 years old. This, calculated to December 1964, is £96 ; the twins I grant £250 for both for five years ; the mother £30 a year for two years; Ola Macfoy £100 for eight years; wife, £500, making a total of £2,706 and costs for the plaintiff against defendant. There will be no award for pain and suffering as deceased was unconscious from the date of the accident to the time of death. {SUPREME COURT) ALPHA KAMARA Appellant V. S. A. T. KOROMA Respondent [Magistrate Appeal 53/63] Criminal Su.mmons brought by Private Individual-Larceny Act, I9I6 (Vol. I. Laws of Sierra Leone. I960, p. 2I2), ss. I, 32 (I)-Debtors Act (Cap. 24, Laws of Sierra Leone, I960), s. 35 (I)-Courts (Appeals) Act. I960 (No. I8 of 1960), s. 4-Whether appellant was "person aggrieved" by "decision of ·a magistrate "--'Whet her magistrate can refuse to commit accused person for trial before taking evidence-District Co·uncils Act (Cap. 19, Laws of Sierra Leone, 1960), ss. 5, 52 (1)-0/]ences against Port Loko District Council-Whether appellant could institute criminal proceedings without authority from council­ Constitution of Sierra Leone (P.N. No. 18 Qf 1961, Sch. 2), s. 73. Appellant brought a criminal summons against respondent charging him with certain offences against the Port Loko District Council contrary to sections I and 32 (1) of the Larceny Act, 19I6, and section 35 (1) of the Debtors Act. The Police Magistrate held that the subject-matter of the summons was an " individual grievance " and, therefore, that criminal proceedings could be instituted only by the body aggrieved, i.e., the council or its duly authorised 79 s. c 1963 GRANT v. LAWRENCE. S. C. W. 13etts J. Free town Sept. 30. 1963 Cole Ag.C.J. S; C. 1963 KAMARA v. KOROMA. ag~nt. Having found that the appellant h~d no authority from the council~ the magistrate dismiss~d the summons. Appellant appeal~ from tltis .de~ision to the Supreme Court, Respondent • pbje~t~d .· to . the jurisc,li~tipn ·of. the . court .. to hear the appeal on . the ground that section 4 of th,e Courts (App~ls) Act, 1960, provides that no appeal shall lie against a. refusal to commit a person for trial. Held, . allowing the appeal, (1) that befp~e a 01agistrate ea~ properly refu.se to commit an accused person for trial by the Supreme Court lie must have taken the .. whole of the evidence . and must have considered such.· evidence insufficient to put the accused on his trial; (2) that the Supreme Court had jurisdiction to hear the appeal tinder section 4 of the Courts (Appeals) Act, 1960, since appellant was a •• person aggrieved " by a •• decision .of a magistrate·~ and was appealing •• on a question of law " ~gainst the ''discharge .. of the defendant}'; and (3) that any per~on} gtn)ay an ipfqrrr~ation t0r a. public .oifen~. to which a . p~nalty is l;lttached, unless ~he . statute . 1Jil4er wh,jch Jbe pr~ceedipgs. 1:\l'e piken cont1;lins specil:ll limiting proyisipns. Cases referred to: Cole v; Coulton (1860) 29 L.J.M.C~ 125; Allman v. Hardcastle (1903) 89 L.T; 553 ; Giebler •v. Mallning [1906] ·f K;R 709; Duchesne v. Finch and others (1912) 107 L.T; 412: Berthan Mac!lulay Q.C. (,.ith hk. S. Qcccles Da~ie.s-) f()r the appellant. N athfl!liel A. P. Buck for t4~ resp<>pdent. . . . CoLE f\.g.CJ> .. Qp.JldY 22,.19()3, the r~spondept,S,A.'J' • .Kon>l1la, ap~f~ before. the :Police ,Magistrate at Port Lo,ko qp Qrimin~l Sllil::UPoJ:lS ]!'.l(). J8!49 brought by the appellant charging him :with the QiJ;ence. offal~~ pr~tences unlier section 32 (1) of the Larceny Act, 1916. On that date this charge was replaced by six fresh charges, namely: (i) False pretences contrary to section 32 (1) of the Larceny Act, 1916; (ii) obtaining credit by fraud, contrary to section 35 (1) of Cap. 24 of the Laws of Sierra Leone; (iii) larceny, contrary to section 1 of the Larceny Act, 1916; (iv)f~lse pretences, contrary to section 32 (1) of the Larceny Act, 1916; (v) obtaining credit by fraud, contrary to section 35 (1) of Cap. 24, Laws of Sierra Leone ; (vi) Ja,rceny, contriD ~o section 1 of the Larceny Act, 1916. . .. .. ... ... ... ·.·· .. The appellant was then represented by Mr. Pratt anc:.t . tb~ r~sponden.~ by Mr. Buck. No objection was taken to the substitution of thefresbcharges. · On the same date-July 22, 1963~ounsel{or the respm1dent applied to the court for the summons to be dismissed on the grounds that the information was laid by a private person without the authority of t4e Port LOko District Council, the body affected by the charges .and who wasall~ged tO hav~ been defraud~d. He submitteli fu.rther t.bat the offences witlJ. whiclJ.. tlJ.e. re~pondent was charged were indictable offences for whic4 the ,Attor11ey-Genera,l's fi,J:ttwas necessary to initiate the prosecution by a private person .. On August 23; 1963, the learned magistrate in writing ruled in favour of the respondent, dismissed the summons and awarded the costs assessed at 50 guineas to the respondent. In awarding the costs the magistrate wrote, inter alia: "The summons is, therefore, dismissed with costs. T arrt {)fOpinion that the complainant's duty was to bririg his findings to the no~Jce of the Port Loko District Council and I can think of no other reason for his acting otherwise than . being actuated by malice." 80 The appellant, through his counsel, gave oral notice of appeal in open court against the ruling and order for costs of the learned magistrate. By notice dated August 27, 1963, filed herein, Mr. Pratt, for the appellant, gave as the several grounds of his client's appeal the following: " Ground 1. The learned trial magistrate misdirected himself in inter­ preting sections 5 and 52 (1) of Cap. 79 as making an incorporated district council analogous to an individual for the purposes of determining the party to institute criminal proceedings. "Ground 2. The learned trial magistrate misdirected himself in further interpreting sections 5 and 52 (1) of Cap. 79 to mean that a private person or any other person with no authority from the district council cannot lay an information against a person touching upon an offence alleged to have been committed by that person against the district council. " Ground 3. The learned trial magistrate misdirected himself in holding that the subject-matter of the aforementioned summons was an individual grievance. "Ground 4. The learned trial magistrate applied wrong principles of law in the exercise of his discretion in awarding costs against the complainant/ appellant, in that the learned trial magistrate presumed malice on the part of the complainant/appellant from an assumption that the complainant/appellant had a duty to inform the· Port Loko District Council of the facts within hts knowledge, whereas the complainant/ appellant did at the earliest possible opportunity, which fact the learned trial magistrate would have clearly found out if he had investigated his presumption of malice, which presumption he did not give the complainant any opportunity of rebutting before awarding costs against him." At the hearing of this appeal, Mr. Buck, learned counsel for the respondent, raised a preliminary objection to the jurisdiction of the court to hear the appeal. He submitted that the appellant was not a " person aggrieved " within the meaning of section 4 (1) of the Courts (Appeals) Act, 1960 (No. 18 of 1960), because, the offences with which the appellant was charged bemg indictable offences, once the summons was dismissed the appellant had no right of appeal. He added that since the ruling of the learned magistrate was tantamount to a refusal by him to commit the respondent for trial by the Supreme Court the appellant had no right of appeal. He rested for his support on proviso (b) to section 4 (2) of the Courts (Appeals) Act, 1960 (No. 18 of 1960). I overruled the objection and indicated I would give my reasons for doing so in writing later. I consider this a fitting time to do so. Appeals from decisions of magistrates to this court are creatures of statute and are governed by the provisions of the Courts (Appeals) Act, 1960 (No. 18 of 1960). The relevant section is section 4, which is as follows: "4.-(1) Any person aggrieved by a decision of a magistrate in criminal proceedings may appeal from the decision to the Supreme Court: Provided that no appeal shall lie- ( a) against the acquittal or discharge of the defendant, except on a question of law ; (b) against conviction, where the defendant pleaded guilty, except by leave of a judge, which may be given if the judge is satisfied- SI 3 S.L-6 s. c. 1963 KAMARA l'. KOROMA. Cole Ag.C.J. s. c. 1963 KAMARA v. KOROM.A. Cole Ag.C.J. (i) that the defendant <did not appreciate the nature ofthe charge or did not intend to adlllit he was gtiilty or it ; of (ii} th~t upon the adlllitted facts he could not in law have been convicted of the offence charged ; (c) agairtst ~n order coii1Illittirl~Jl p~~n for trial by the Supr~e Court, or· against a ref~salto c9mmit. ~ for such tr~~l ; · (d) against sentence, where it is fixed by law ; Provided further that a defendant in criminal ... proceedings rn~y give notice of appeal eit~er ?rally in op~n c?Wt UAm~ately. afterJil~ ~~is10n of the. COUrt isi>rOilOUnced Or ill writing in accordance. \VftQ ~t1les (){ .tl}.e · Court inade tuider sec(ion12of this Ord,iJ:lance~ ·· · . ·· · ·· ·· · · · · · .. · · · · " (~) 'ij:te j\t~().I;Iley~9enef~, ••·· eye!l.: th()~Jgll. be .. was . n()t ~ p~rty •. ~o the proceedings, may ~PPe~l· Jo the ~preme C()urt from any. decisi9n ()f a magistrate in .criminal proceedings: ·.Provi4ed- . ......•.. ....... . .....•... ·•·· .................. ••••····.··•••>• ........ .,. .......•.•. ....:. (a) that no appeal shall lie against the acquittal or discharge .()f. tile defendant, except on a. question of law, and · .. · · ·· (b) .• that •. no appeal shall•lie against a ina8isfrate's. refusal to commit a ·· personforttial by the SUpreme Court?'··.···.· O.n)l blose SCI"lltiny of this secti~~. it\Vill.he se~n. tla~t SAbSe~ii~n (l} ~~~af~s appea~ ip ~~iipin~l.proceedings by persons .()ther .•. tban. th.e.Att9pey .. Q~n~r~. ~4 subs~tion (4) re~Jates appe~ls in .. prW;Y~:¥ pr(.)see4wgs k¥ Jlle 1\!!<?.fl!e~' Oe9eraL .••... lt is ll1Y .·· c()nsi<ler~ . view, . ~nd J •... s() 11<>1~. tll~t . PJ!"QYis(.)s. (tz:). .~9:9 ({!) .. t(.) . ~bsec;iion (2) apply only·· .. · to ..•. appelliS· .ni .. Pr#D~n~l .. Pr()CeeclingS .••• {)y fiW i\ttqrney-QeneraL That being .·so, Jltis appea~t~Pt .l>~~~ pQ.e·pl~de.<~y .~~ Attorney-General, proviso (b) to subsection (2) is inapplic~f>le ... :exea<.ifit does apply, according to the record of proceedings in.~is appe~l, tqe st~g~ at which·•the ·learned magistrate could properly refu~e to .commit· tf1e•respon<fe~t had not been reached when··the•·summonswas dis£Qissed,>the n1agi~trate not having taken ~ny evidence. In my view, before a magismtte can properly refl.lSe to·. commit.· art accused person·· for trial·· by the Supreme Comt he must have taken the whole of • the evidence and must have considered such evidence instiffi.cient to put the accused on his trial+-section >107 of the CrinJmaJ Procedure Act, Cap. 39,< refers> For this reason 1 further hold that pr~V!so (b) to subsection (2)of section 4 of the CourtS (~ppeals) Actr19~ <N"o.l8 of 1960), does not apply to •· this case, nor. does proviso (c) of. the fiist pr()v•so to subsection (1) of section 4 apply; To entitle the appellant to appeal+(a) he must be a person> aggrieved ; (b) there must be a decision of a magistrate of which he was aggrieved ; (c) there must be an acquittaL or. discharge ;>arid (d) the question raised on appeal must be one of l~W· As to.(a). ~ltJ:tough neither before the Je~rned . m~gistrate nor. in.· his notice of groun~ .of l;lppeal dated August 27, 196~, did the appellant's solicitor state that his pJientwas a~grieved by the decisio)J ()f. the learned ~pagistrate.. I • fin9 ·. ~he :• circlUl1Stances here show uwnistakably that .the appellant was aggrieve<f by th~ q~isi(?tl ... His grievance Was peculiar to bin} and Was direct. It Was not C()nteh~e<l tQ.a;fthere was not a . decision of the.learned magistrate or that ther~ was not a discb~rge of the respondent by the magistrate or that the qUestion raised fu<thiS appeal was not one of law. I am of the opinion that this case falls widlin the ambit of section 4 (1) of the Courts (Appeals) Act, 1960 (No. 18 of 1960). For these reasons I overruled the objection of learned counsel for the respondent. 82 Mr. Macaulay argued only ground 2 of the notice of grounds of appeal and abandoned the others. This ground reads: " The learned trial magistrate misdirected himself in further interpreting sections 5 and 52 (1) of Cap. 79 to mean that a private person or any other person with no authority from the district council cannot lay an information against a person ·touching upon an offence alleged to have been committed by that person against the district council." Cap. 79 is the District Councils Act. Section 5 of this Act reads as follows: " Every district council shall be a body corporate with perpetual suc­ cession and a common seal, with power to alter such seal from time to time, and shall be capable in. law of suing and of being sued, of purchasing, holding and disposing of property of any description, and generally of doing and performing all such acts and things as bodies corporate may by law do and perform, subject to the provisions of this Ordinance and of any other law for the time being in force in the Protectorate." By section 52 (1), it is provided that- " A district council may appear in any legal proceedings by an officer of the council authorised generally or in respect of any particular proceed­ ings by resolution of the council; and any officer, so authorised; shall be at liberty to institute and carry on any proceedings which the council is authorised to institute and carry on under this or any other Ordinance, subject always to any directions which may be given to him by the council." The learned magistrate in dealing with the point at issue in his ruling said, inter alia: " The issue to be determined is whether the information is properly laid by the complainant or not. In the absence of. some statutory restriction there is no limitation on the common law right of any person to institute proceedings unless the matter is an individual grievance, in which case the information should be laid by the individual aggrieved (Cole v. Coulton (1860) 24 J.P. 332). In certain cases statutory provisions require that an information be laid by or with the consent of particular individuals or authorities and then the right to lay the information is restricted to them or their duly authorised agents. The prosecutor may lay the information in person or by his counsel or solicitor or other person thereunto authorised." He then set out the provisions of sections 5 and 52 (1) of the District Councils Act (Cap. 79) and continued: " The district council thus incorporated is analogous to an individual and I hold that the subject-matter of this summons is an ' individual grievance,' information of which should be laid by the district council or its duly authorised agents. " I find that the information is not so properly laid. " The complainant is a private person with no such authority from the Port Loko District Council. "The summons is, therefore, dismissed with costs." 83 s. c. 1963 KAMARA v. KOROMA. Cole Ag.C.J. S. C. It is correct that section 5 of the District Councils Act constitutes the Port 1963 Loko District Council a body corporate. The general principles of law as to ----- who may institute proceedings appear to Q.ave been correctly stated by the KAMARA learned magistrate. Where. he went wrong is in the application .of those Ko:~. principles to .the facts of this case. Cole Ag.C.J. Itis. a generalprim:;iple of law that any person can lay an information for a public offence to which a penalty is. attached, unless the sta.tute under which the proceedings are taken contains special limiting provisions. As an example, section 42 of the Offences against the Person Act, 1861, prescribing the penalty for common assault, requires that the complaint should be made by or on behalf of the party aggrieved ; but a complaint for aggravated assault under section43 of the same Act may be made by or on behalfof the party aggrieved or otherwise. In Cole. v. Co~lton (1860) 29 L.J.M.C. 125, Cockbum C.J. held that an information fc:>r an offence against public policy might be laid by anyone, without ·authority ·from the party to . whom the. penalty to be recovered W4'8 to be awarded, so long as he. professed that the recovery of the penalties ~hould ensure to the benefit of that party. The cases ofAllman v, Hardcastle (1903) 89 L.T. 553, Giebler v. Manning [19061 1 K.B. 709, Duchesne v. Finch and others (1912) 107 L.T; 412 establish this proposition. In Halsbury's Laws of England; VoL 10 (3rd ed.); p. 338, para. 628~ it is stated: ~In the absence of statutory provisions to the contrary any person may of his ·own initiative, and without any preliminary consent, institute criminal proceedingS with a view to an indictment.'" I have·· carefully examined the various ·sections of the Acts • under· which the respondent was charged before the learned magistrate and I find. no pro­ vision prohibiting any. person of his own initiative from initiating groceedings or requiring any prelinlinary consent. I also find that the offences created under the respective sections of the Acts with which the respondent ·was charged are public offences with penalties attached. In those circumstances the appellant was legally entitled to initiate the proceedings as a private individual against ·the respondent. 1·· have given due consideration to .the provisions of section 52 (1) of the District Councils Act, Cap; 79. This subsection, in my view, does not in any way operate as a bar to a private individual initiating crim.inal proceedings relating· to matters touching ·the· Port Loko District Council without the authority of the council. I have also given due consideration to seetion 73 of the ConstitUtion of Sierra Leone (P.N. No. 78 of 1961, Sch. 2), which deals with the functions of the Direetor of Pu:blic Prosecutions which are being lawfully performed by the Attorney-General. I find that it does not adversely affect the legal position. In the circumstances, l find that the learned magistrate was wrong in holding that the information was not properly laid and in dismissing the summons. I therefore allow the appeal. I order that the case, together with this judgment, be remitted to . the Port Loko. ma:gistrates' court ·for· an investigation by another magistrlite of the alleged offences against the resp()ndent. The order of the learned magistrate awarding costs .of 50 guineas t() the respondent is hereby set aside. I order that if the costs so ordered have already been paid they should be refunded to the appellant. The appellant to have the costs of this appeal. 84