Commissioner of Police v Janneh, 1964-66 ALR S.L. 205

COMMISSIONER OF POLICE v. JANNEH, 1964-66 ALR S.L. 205 C.A. he would not have advertised it as much as the witnesses for the petitioner suggest. Taking the whole circumstances of the case after much scrutiny of the evidence on both sides, I have grave doubts on the issue of adultery. 5 I therefore hold that adultery has not been proved. The petition is dismissed and the woman named is discharged from the suit. Petition dismissed.

COMMISSIONER OF POLICE v. JANNEH and SIX OTHERS CouRT OF APPEAL (Ames, P., Bankole Jones. C.J. and Dove-Edwin, 15 J.A.): March 8th, 1965 (Cr. App. No. 40/64) [ 1] Courts-magistrates' courts-jurisdiction-criminal jurisdiction-may try arrested person for offence not that for which arrested: A person arrested for an offence and brought before a magistrate's court may be tried on a charge of another offence (page 213, lines 26-29).

[2] Courts - magistrates' courts -jurisdiction- criminal jurisdiction summary conviction offences-magistrate assmning jurisdiction under Summary Conviction Offences Act (cap. 37), s.18, need not record cir cumstances: Before assuming jurisdiction to try a person summarily under the Summary Conviction Offences Act (cap. 37), s.18, a magistrate need not record the circumstances having regard to which he assumes jurisdiction (page 210, lines 2-7).

[3] Courts - magistrates' courts - jurisdiction - criminal jurisdiction summary trial with accused's consent-circumstances to ground juris diction need not be ascertained from depositions alone: For the proper exercise of his discretion to proceed from a preliminary in vestigation to a summary trial under the Criminal Procedure Act (cap. 39), s.110, a magistrate is not obliged to ascertain the circum stances of the case solely from what has been said in the depositions (page 211, lines 23-27). [ 4] Courts - magistrates' courts -jurisdiction -criminal jurisdiction summary trial with accused's consent-magistrate may conclude offence triable summarily any time after starting depositions: A magistrate's conclusion that an offence is suitable for summary trial under the Criminal Procedure Act (cap. 39), s.llO, may be drawn at any stage after he has commenced to take down the depositions in a preliminary investigation (page 211, lines 21-26).

THE AFRICAN LAW /REPORTS

[5] Courts - magistrates' courts - jurisdiction - criminal jurisdiction - summary trial with accused's consent-preliminary procedural steps need not be recorded: A magistrate who proceeds from a preliminary investigation to a summary trial under the Criminal Procedur_e Act (cap. 39), s.llO, is not required by law to make a note of the taking of any of the procedural steps referred to in s.ll0(2) (page 212, lines 29-40).

[6] Courts-magistrates' courts-procedure-charges-offence other than that for which accused arrested may be charged and tried: See [1] above.

[7] Courts - magistrates' courts -procedure - summary conviction offences-magistrate assuming jurisdiction under Summary Convic tion Offences Act (cap. 37), s.18, need not record circumstances: See [2] above.

[8] Courts - magistrates' courts - procedure - summary trial with ac cused's consent-circumstances to ground jurisdiction need not be ascertained from depositions alone: See [3] above.

[9] Courts - magistrates' courts -procedure - summary trial with ac cused's consent-magistrate may conclude offence triable summarily any time after starting depositions: See [ 4] above.

[10] Courts- magistrates' courts- procedure- summary trial with ac cused's consent-preliminary procedural steps need not be recorded: See [5] above.

[11] Criminal Procedure- appeals - appeals against conviction - funda mental defect in charge-value of damage omitted from charge under Malicious Damage Act, 1861, s.51: A charge of malicious dam age contrary to the Malicious Damage Act, 1861, s.51, which does not state the value of the damage or that it exceeds £5, is defective and cannot support a conviction (page 213, lines 33-36).

[12] Criminal Procedure-appeals-appeals against conviction-point not taken-conviction upheld despite irregularity where point not taken on appeal or below: An appeal court may properly uphold a convic tion upon a charge which contains no reference to the enactment creating the offence if the appellant does not complain of the irregularity in the court below or in the appeal court (page 213, lines 37-39; page 214, lines 7-8).

[13] Criminal Procedure-charges-form of charges-malicious damage to amount exceeding £5-value of damage to be stated: See [11] above.

[14] Criminal Procedure-charges-form of charges-reference omitted to enactment creating offence-conviction upheld where point not taken on appeal or below: See [12] above.

COMMISSIONER OF POLICE v. JANNEH, 1964-66 ALR S.L. 205 C.A.

[15] Criminal Procedure--charges-preferring charges-charge of offence other than that for which accused arrested may be preferred in magistrate's court: See [I] above.

[16] Criminal Procedure-record-contents-summary trial with accused's consent-preliminary procedural steps need not be recorded: See 5 [5] above.

[17] Criminal Procedure-record-contents-trial of summary conviction offences-magistrate assuming jurisdiction under Summary Conviction Offences Act (cap. 37), s.l8, need not record circumstances: See [2] above.

[18] Criminal Procedure-summary trial-summary conviction offences magistrate assuming jurisdiction under Summary Conviction Offences Act (cap. 37), s.18, need not record circumstances: See [2] above.

[19] Criminal Procedure-summary trial-trial with accused's consent-

circumstances to ground jurisdiction need not be ascertained from 15 depositions alone: See [3] above.

[20] Criminal Procedure-summary trial-trial with accused's consent magistrate may conclude offence triable summarily any time after starting depositions: See [ 4] above.

[21] Criminal Procedure-summary trial-trial with accused's consent- 20 preliminary procedural steps need not be recorded: See [5] above.

[22] Criminal Procedure-trial of charges-magistrate's court may try charge of offence other than that for which accused arrested: See [I] above.

[23] Evidence -presumptions -presumptions of law- omnia praesu- 25 muntur rite esse acta-summary trial with accused's consent-pre sumption applies in regard to preliminary steps: The presumption omnia praesumuntur rite esse acta applies in regard to the procedural steps referred to in the Criminal Procedure Act (cap. 39), s.110(2) when a magistrate proceeds from a preliminary investigation to a summary trial and therefore some evidence must be adduced by the 30 party seeking to displace the presumption even though the magistrate may have omitted to record the taking of a particular step (page 213, lines 9-19). The respondents were charged before the Police Magistrate, Port Loko, on three counts, the first alleging riotous assembly and assault, the second malicious damage and the third assault occa sioning actual bodily harm. They were arrested for an offence different from those with which they were charged. The second count did not state the value of the damage or that it was under £5. The third count did not contain a reference to the enactment creating the offence.

The magistrate began a preliminary investigation. He took down the deposition of a doctor who had examined the man named in the first count, the man named in the third count and two of the respondents. Without hearing any other evidence or ascertaining the value of the damage complained of, the magistrate decided to try the case summarily. He recorded his decision, the reading of the charge to the respondents, their consents to summary trial, their pleas and the fact that their counsel did not wish to cross-examine the doctor. He did not record that he had explained the difference between summary trial and a preliminary investigation. He pro ceeded with the trial and convicted all the respondents on each count and sentenced them to imprisonment. They appealed to the Supreme Court, which held that the sum mary trial was a nullity and allowed the appeal. On a further appeal by the prosecutor the Attorney-General contended that the expression "the circumstances of the case" in s.llO(l) of the Criminal Procedure Act (cap. 39) did not refer solely to the depositions taken. He further contended that the presumption of regularity applied to the magistrate•s proceedings and it lay on the respondents to prove any irregularity. The respondents contended that the magistrate had not given the explanation which he had not noted down, so that the trial was a nullity. It was conceded that the malicious damage count was defective. No point was taken in any court as to the omission from the third count of a reference to the enactment creating the offence charged. Case referred to :

(1) Att.-Gen. v. Limba (1963), S.L.L.R. 146, distinguished. Statutes construed : Summary Conviction Offences Act (Laws of Sierra Leone, 1960, cap. 37), s.18: "The Magistrate shall have jurisdiction, if, having regard to the cir cumstances of the case, he shall consider it expedient so to do, to try summarily any person charged with unlawful and malicious wounding, or inllicting bodily harm, not amounting to felony, which may, in his opinion, be adequately punished by a sentence of imprisonment . . . for a period not exceeding six months, or by a fine, not exceeding twenty pounds." Criminal Procedure Act (Laws of Sierra Leone, 1960, cap. 39), s.llO:

(1) The relevant terms of this sub-section are set out at page 210, lines

COMMISSIONER OF POLICE v. JANNEH, 1964-66 ALR S.L. 205 C.A. "(2) The Court before asking, in pursuance of this section, the accused whether he consents to the case being heard and finally determined summarily, shall explain to him the difference between the case being dealt with summarily and in the usual course. In the event of the accused then giving his consent to the case being dealt with summarily, the Court shall call upon him to plead to the charge, and forthwith inform him of his right to recall all or any of the witnesses for the prosecution, who shall have been heard, and to subject them to any further cross-examination as if such witnesses had not previously been cross-examined. Upon taking these steps the Court shall proceed to hear and finally determine the matter .... " Malicious Damage Act, 1861 (24 & 25 Viet., c.97), s.51: "Whosoever shall unlawfully and maliciously commit any damage, injury or spoil to or upon any real or personal property whatsover, ... for which no punishment is herein-before provided, the damage, injury or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, . . . to be imprisoned for any term not exceeding two years. . . ." B. Macaulay, Q.C., Att.-Gen. and D. M. A. Macaulay, Sol.-Gen., for the appellant; E. L. Luke for the respondents. AMES, P., delivering the judgment of the court: This is a prosecutor's appeal. The respondents came before the Police Magistrate's Court at Port Loko on a charge containing three counts, namely: (a) riotous assembly and assault, (b) malicious

damage contrary to s.51 of the Malicious Damage Act, 1861, and 25 (c) assault occasioning actual bodily harm. The learned magistrate started to hold a preliminary investigation into the charge, under Part III of the Criminal Procedure Act (cap. 39). He had not gone at all far when he changed the proceedings into a summary trial, which can be done under the provisions of 30 s.llO of the Act. At the end of the trial, he found all respondents guilty on each count, and sentenced each to 12 months' imprisonment on each count concurrently. They appealed to the Supreme Court. There the learned judge held that the summary trial before the magistrate was a nullity, 35 allowed the appeal and discharged the respondents. Against that decision the appellant has made this appeal. This appeal, consequently, is concerned with the interpretation and the provisions of s.llO of the Criminal Procedure Act. During the argument, much was said about the recent decision of this 40 court in the appeal of Att.-Gen. v. Baimba Limba (1). That was

fHE AFRICAN LAW REPORTS concerned with s.18 of the Summary Conviction Offences Act (cap. 37). In his argument in the court below, Mr. Livesley Luke, for the respondents, submitted that in Baimba Limba' s appeal this court held that before a magistrate could assume jurisdiction under 5 s.18, he must know and record "the circumstances," and he repeated the argument before us. Well, he certainly must know them, but this court did not hold that he must record them, although he could if he liked. That appeal was dismissed because "there was absolutely nothing in the record (and there should be something) to show" 10 that the magistrate's court, which was constituted by two justices of the peace, applied their minds to the conditions to which they have to apply them before they can try summarily the offences mentioned in the section. It begins in this way-"18. The Magistrate shall have jurisdiction if" and so on, and that means not otherwise. 15 In the instant appeal there is something in the record; and the very nature of a change from a preliminary investigation to a summary trial would usually result in there being something. That is, unless the magistrate is such a stickler for the letter of the Criminal Pro cedure Act, rather than for the common sense of it, as-say-to 20 explain the difference between the two, take a plea, obtain accused's consent, hear witnesses and so on, all because the Act requires him to do so, and yet to record none of it, because nowhere does the Act require him to record these particular matters. Section 110 consists of two sub-sections. The first, omitting 25 words not relevant to the questions which arise in this appeal, is as follows: "(1) If, during the course of a hearing in any case in which depositions are being taken down with a view to the com mittal for trial of the accused, the Court shall conclude that, 30 having regard to the circumstances of the case, the offence is one which, if proved, can be suitably punished by a sentence of imprisonment for a term not exceeding two years with hard labour or a fine not exceeding two hundred pounds . . . the Court may ... with the consent of the accused obtained 35 before he is called upon for his defence but not otherwise, proceed to hear and finally determine the case in a summary .. manner .... The learned magistrate had taken down the deposition of one witness only, a doctor, when he deCided to turn the preliminary 40 investigation into a summary trial. The learned judge held that he should also have taken down the deposition of some witness

COMMISSIONER OF POLICE v. JANNEH, 1964-66 ALR S.L. 205 C.A. of the riot and also of some witness of the malicious damage. This is the subject matter of the first ground of appeal, which is : "The learned appellate judge erred in impliedly holding that the phrase 'circumstances of the case' referred to in s.llO(l) of the Criminal Procedure Act (cap. 39) referred solely and .5 exclusively to evidence taken in accordance with s.99 of the said Act, and therefore proceeded to hold, wrongly, that the evidence taken before the summary trial started was insufficient. In doing so, the learned appellate judge substituted his own conclusion for that of the magistrate, within whose discretion 10 it was to conclude whether or not the offence was one which, if proved, can suitably be punished by a sentence of imprisonment for a term not exceeding two years with hard labour or a fine not exceeding two hundred pounds or both fine and imprisonment." 15 This has really two parts to it, which are its two sentences re spectively. The complaint in the first is justified. The learned judge's judgment makes it clear that in his opinion "circumstances of the case" did refer solely and exclusively to the contents of the depositions. 20 There must be at least one deposition started (it need not have finished) before a magistrate can make use of the section, and of course there could be more than one, indeed any number. He can conclude at any sufficient point whether the offence is suitable for his powers of punishment having regard to the circumstances of the 25 case. But the section does not say from what material he is to draw the conclusion, or limit him to what is said in the depositions. The learned magistrate saw before him seven accused persons; he had before him and read the charge; the doctor had examined the man named in the first count, the man named in the third 30 count and two of the accused who complained of pain and bruises. He may well have concluded (although another might not have, at that point) in a proper exercise of his discretion that it was no serious riot requiring punishment beyond his powers. It is true that he did not then know the value of the damage to the Land 35 Rover (which turned out to be £17); but he may have thought it an incident in the riot which did not make any difference. As to the second part of this ground : We do not read the learned judge's judgment as substituting his own conclusionbut as meaning that there was not before the learned magistrate 40 the material necessary to enable him to exercise his discretion. But,