Bankole-Bright v Boston, 1920-36 ALR S.L. 289

r BANKOLE-BRIGHT v. BOSTON, 1920-36 ALR S.L. 289 s.c. that the latter had offered it to him for £80 and so I think that there would be very little point in my declining to decree specific performance merely because there might be some hope that if auctioned again the property might fetch more. It might, indeed, fetch less. 5 I declare that the agreement to sell the property which is the subject of this suit ought to be specifically performed and I ordered and adjudge the same accordingly. I direct an enquiry by the Master for the ascertainment of the amounts, if any, for which the defendant is accountable in respect of rents and costs 10 (which I give against him), and I direct the defendant to convey the said property to the plaintiff against payment by him of the unpaid purchase money after adjustment and set-off of the several amounts for which the parties respectively are accountable to one another in respect of purchase money, rents and 15

Costs

Judgment for the plaintiff. BANKOLE-BRIGHT v. BOSTON and TWO OTHERS Supreme Court (McRoberts, Ag. J.): December lOth, 1931 [ 1] Courts - magistrates' courts - jurisdiction - law applicable - English Summary Jurisdiction Acts, 1848-1897 not applicable in Sierra Leone: The English Summary Jurisdiction Acts, 1848-1897 are purely municipal enactments confined in their operation to England and Wales and cannot therefore be statutes of general application in force in Sierra Leone (page 292, lines 7-24).

[2] Courts- magistrates' courts- preliminary investigation- committal for trial - normally no appeal against refusal to commit - prosecutor on charge of criminal libel may appeal as "person aggrieved" against magistrate's refusal to commit: Although there is a general principle that there can be no appeal against an acquittal, or a refusal to commit for trial, an appeal will lie whenever statutory authority is specifically given, and since the Appeals from Magistrates Ordinance (cap. 8), s. 2 confers a right of appeal upon anyone "aggrieved" by the decision of any magistrate, the prosecutor on a charge of criminal libel may appeal against the refusal of a magistrate to commit the defendant for trial (page 292, lines 25-29; page 294, lines 5-12; page 294, line 28-page 295, line 3; page 295, lines 18-26).

[ 3] Criminal Law - libel - elements of offence - essential element of criminal libel that it should tend to provoke breach of peace - no 40 committal for trial if this element absent: It is an essential element of •

a criminal libel that it should have a tendency to disturb the public peace, and so a magistrate who conducts the preliminary investigation into a charge of criminal libel should refuse to commit the defendant for trial when this element is missing (page 298, lines 7-24). [ 4] Criminal Procedure - appeals - appeals against refusal to commit for trial - prosecutor on charge of criminal libel may appeal as "person aggrieved" against magistrate's refusal to commit: See [ 2] above. [ 5] Criminal Procedure - committal for trial - normally no appeal against refusal to commit - prosecutor on charge of criminal libel may appeal as "person aggrieved" against magistrate's refusal to commit: See [ 2] above. [ 6] Criminal Procedure - law applicable in Sierra Leone - statutes of general application - Summary Jurisdiction Acts, 1848-1897 not applicable in Sierra Leone: See [ 1] above.

[7] Jurisprudence - reception of English law - legislation - statutes of general application - statute specific to England cannot be statute of general application -Summary Jurisdiction Acts, 1848-1897 not appli cable in Sierra Leone: See [1] above. The respondents were charged in the police magistrate's court with publishing a criminal libel on the appellant. The respondents, joint editors of the Sierra Leone Guardian, published an article concerning the appellant. He was out of the country at the date of publication and although he saw the article shortly afterwards he did not return to Sierra Leone for four months. He then began the present proceedings against the respondents. The magistrate who conducted the preliminary investigation into the charge of criminal libel refused to commit the defendants for trial, although he appeared to think that the article was libellous, on the ground that it would not tend to provoke a breach of the peace. The appellant appealed to the Supreme Court against this refusal to commit for trial. A preliminary point was taken by the respondents who con tended that there was no right of appeal against a magistrate's refusal to commit for trial. They also contended that the English Summary Jurisdiction Acts were statutes of general application which laid down the correct procedure whereby the appellant should have asked the magistrate to state a case. In reply the appellant contended that he had a right to appeal under the Appeals from Magistrates Ordinance (cap. 8), s. 2, being a person "aggrieved by the decision" of the magistrate.

r BANKOLE-BRIGHT v. BOSTON, 1920-36 ALR S.L. t289 s.c. The court dismissed the respondents' objection and heard the appellant's appeal. The appellant contended that since the magistrate considered that the article was libellous it was his duty to commit the respondents for trial, leaving it to the jury to decide whether the libel was calculated to provoke a breach of the peace. The appeal was dismissed. Cases referred to:

(1) Dauys u. Douglas (1859), 4 H. & N. 180; 157 E.R. 806.

(2) Ferens u. O'Brien (1883), 11 Q.B.D. 21; 52 L.J.M.C. 70.

(3) Foss u. Best, [1906] 2 K.B. 105; (1906), 95 L.T. 127.

(4) R. u. Alien, [1912] 1 K.B. 365; (1912),106 L.T. 101.

(5) R. u. Garden (1879), 5 Q.B.D. 1; 41 L.T. 504.

(6) R. u. Labouchere (1884), 12 Q.B.D. 320; 50 L.T. 177.

(7) R. u. London (County) JJ. (1890), 25 Q.B.D. 357; 63 L.T. 243.

(8) R. u. Newport (Salop) JJ., [1929] 2 K.B. 416; (1929), 141 L.T. 563.

(9) Stokes u. Mitcheson, [1902] 1 K.B. 857; (1902), 86 L.T.

767. Legislation construed: Appeals from Magistrates Ordinance (Laws of Sierra Leone, 1925, cap. 8), s.2: The relevant terms of this section are set out at page 292, lines 27-29 .

s.10: The relevant terms of this section are set out at page 292, lines 32-35. 25 Taylor for the appellant; Kempson for the respondent.

McROBERTS, Ag. J.: This is an appeal from the decision of the learned acting police 30 magistrate in which he dismissed an information brought by Dr. Bankole-Bright against John Fowell Boston and two other defendants, cited as the joint editors of the newspaper called the Sierra Leone Guardian, wherein they were charged with publishing a criminal libel regarding him. The matter is one beyond the 35 jurisdiction of the lower court, and the magistrate declined to commit the defendants, and it is against this refusal that the present appeal is now brought. A preliminary point was taken by the respondents to the effect that such a refusal is not in any case appealable, and I shall deal 40 with this question first. Mr. Kempson argued that the proper

procedure for the appellant to follow was to ask the magistrate to state a case under the Summary Jurisdiction Acts, but I am unable to agree with this contention because I do not think that these Acts apply in this country at all. The procedure regulating 5 the Police Magistrate's Court is laid down in the Magistrates' Courts Ordinance (cap. 118), and appeals from magistrates by the Appeals from Magistrates Ordinance (cap. 8). The English Acts cannot be said to be statutes of general application within the meaning of s. 7 of the Supreme Court Ordinance for the 10 earliest of them, that of 1848, definitely excludes Scotland and Ireland, and the Isle of Man, Jersey, Guernsey, Alderney and Sark, and the latest, so far as we are concerned, that of 1897, excludes both Ireland and Scotland. Those of the Dominions which follow English law have all their own enactments dealing 15 with magisterial procedure, and though many of them follow the English practice, they can only do so by embodying its provision in their own legislation. We in this country have done the same thing, for many of the English provisions can be found repeated here when they have been thought to be suitable, but the 20 Summary Jurisdiction Acts themselves have been framed to deal with a condition of affairs which does not exist here, and with machinery which has no counterpart in Sierra Leone - they are purely municipal enactments confined in their operation to England and Wales. 25 The Appeals from Magistrates Ordinance (cap. 8) makes no provision for a case stated by way of appeal, but it does enact, in s. 2, that - "any person feeling aggrieved by the decision of any Magistrate may appeal to the Supreme Court as a Court of Appeal." This might be said to be wide enough to cover anything, 30 but the position of a dissatisfied plaintiff is more particularly dealt with ins. 10, which provides that- "if the decision be a judgment in favour of the defendant, or a non-suit or dismissal of the plaintiff's claim, or of the charge or complaint against the accused, the plaintiff or 35 complainant, on appealing, shall in like manner pay .... " The reports are seldom helpful in the matter which I have here to decide, for most of them have to do with the question whether, in the particular case dealt with, the justices could be compelled to state a case when, in the exercise of their summary jurisdiction, 40 they had acquitted an accused person. In only one of the cases which I have examined is it decided, and that is in Foss v. Best (3).

j BANKOLE-BRIGHT v. BOSTON, 1920-36 ALR S.L. 289 s.c. According to Darling, J. ([1906] 2 K.B. at 107; 95 L.T. at 128): "In this case the justices before whom the respondent appeared on a charge of embezzlement came to the conclusion, as a matter of law, that there was no ground for committing him for trial, and accordingly they refused to do 5 so. There was no question of the case being dealt with summarily.'' The following portion of the judgment of Channell, J. is of interest here ( [1906] 2 K.B. at 110): "Assuming, however, that we had a discretion in the matter, 10 this is not a case in which we ought to exercise our discretion to hear the appeal, because there is the gravest possible doubt as to whether a case can be stated upon acquittal. To begin with, a case can only be stated in respect of a 'conviction, order, determination, or other proceeding of a Court of 15 summary jurisdiction,' and I think that justices who are taking depositions for the purpose of committing a prisoner for trial have not this power to state a case, as they are not exercising summary jurisdiction. Here the justices were not proceeding to deal with the case summarily. Even if it had 20 appeared that they were sitting as a Court of summary jurisdiction, either by reason of the respondent electing to be dealt with summarily or otherwise, the difficulty remains whether the prosecutor would be a person aggrieved who could require a case to be stated. There is much in the judg- 25 ment of Lord Coleridge, C.J. in Reg. v. London (County) Justices 25 Q.B.D. 357 to shew that in ordinary cases a prosecutor is not a person aggrieved, and in my opinion it is extremely doubtful whether in a case of a purely criminal character - as distinct from one of a quasi-criminal nature, 30 as, for example in a prosecution for a breach of by-laws - a case can be stated under this procedure where the defendant has been acquitted. In view of our judgment upon the first point, I am not giving any final decision as to the power of justices to state a 35 case under such circumstances, but, as I have said, I have the greatest possible doubt as to whether there is any such juris diction. I may point out that we are not depriving the prosecutor of any remedy, for he may, if he thinks fit, prefer an indictment against the respondent." [These words do not 40 appear in the report of the case at 95 L.T. 127.]

There are of course a number of cases which deal with appeals from acquittals besides R. v. London (County) JJ. (7). Davys v. Douglas (1); Ferens v O'Brien (2); Stokes v. Mitcheson (9) and R. v. Newport (Salop) JJ. (8) are all cases on this point, and the conclusion to be drawn from them is, to my mind this, that while according recognition to the "broad and well-recognised principles of construction" contended for by Lord Coleridge in R. v. London (County) JJ., namely that a man acquitted is not to be again proceeded against with respect to the same matter and that an appeal is never given except by statute, that an appeal against an acquittal will be given quite readily if the language of the statute seems to allow it. The distinction drawn by Channell, J. in Foss v. Best ( 3) between magistrates sitting as a court and when they are sitting for the purpose of taking depositions, is recognised by Lord Alverstone, C.J. in R. v. Alien ( 4) but the principles to be applied must be the same in each case, for this I take to be the intention of the present Lord Chief Justice of England when, in R. v. Newport (Salop) JJ., he says ([1929] 2 K.B. at 426; 141 L.T. at 565): "Our attention has been directed to the cases of Foss v. Best ... and Stokes v. Mitcheson ... and to the case of Reg. v. Keepers of the Peace and Justices of the County of London ... which was not under the Summary Jurisdiction Acts but I find nowhere a clear expression of the view that an unsuccessful prosecutor may not still under the Act of 1857 apply for a case because he is dissatisfied with the determi nation of the justices as being erroneous in law." If we apply this to the local Ordinance I think there can be no doubt that such a right is given. When we look at s. 10 of the Appeals from Magistrates Ordinance (cap. 8) there may be no difficulty in holding that a refusal to commit is not a judgment in favour of the defendant, but can it be said that it is not a "dismissal . . . of the charge . . . against the accused"? A person brought before a magistrate for an indictable offence is brought on a charge, indeed this is the expression used in the English Act which governs committals, the Criminal Law Amendment Act, 1867 in which s. 3 contains the words- "in all cases where any Person shall appear ... before any Justice ... charged with any indictable Offence . . .. '' and surely a refusal by the magistrate to commit is a dismissal of the charge? The whole of this section is devoted to the remedies available to a plaintiff or complainant and

r BANKOLE-BRIGHT v. BOSTON, 1920-36 ALR S.L. 289 s.c. it is extremely comprehensive in character, and it seems to me abundantly clear that it was intended to give him a remedy when he thinks himself aggrieved by a failure to commit. I should deal I think, before going further, with this expression - "a person aggrieved." It occurs in s. 2 of the Appeals from Magistrates Ordinance, is referred to in Foss v. Best ( 3) and is examined at greater length in R. v. London (County) JJ. (7) where Lord Coleridge says (25 Q.B.D. at 361; 63 L.T. at 244): "Is a person who cannot succeed in getting a conviction against another a person 'aggrieved'? He may be annoyed at finding that what he thought was a breach of law is not a breach of law; but is he 'aggrieved' because some one is held not to have done wrong? It is difficult to see that the section meant anything of that kind. The section does not give an appeal to anybody but a person who is by the direct act of the magistrate 'aggrieved' - that is, who has had something done or determined against him by the magistrate." Channell, J. in the portion of his judgment in Foss v. Best which I have quoted, expresses the same doubt, but draws a distinction between the position of a prosecutor in a purely criminal case and in one of a quasi-criminal character, and I think that the very personal element which is always present in libel must be held to take it out of the class of criminal cases which the learned judges had in mind, and a disgruntled plaintiff in such a case, though technically prosecuting in the interest of the public, is probably entitled to have his dissatisfaction translated as aggrievement. It will be seen that Channell, J. in giving his opinion is careful to indicate that the views which he expressed would not, if given effect, deprive a plaintiff of a remedy, for he could always go to the grand jury. In pointing this out he recognised the reluctance which must always be felt in interpreting the law in such a way as to tend to diminish the rights of any man. But in Sierra Leone there is no grand jury, and all offences are prosecuted before the Supreme Court by an information in the name of the Attorney General, and there might be a certain amount of difficulty in inducing the Crown to inform the court in the kind of case which is the subject of this appeal. This, to my mind, is in itself a good reason why, in this instance, an appeal should be permitted to be brought. I will now turn to the appeal itself. It has been contended for the appellant that the publication complained of was libellous, and