King v S (Criminal Appeal 9 of 1977) [1979] SLCA 1 (11 July 1979)

[1974-82] | SLBALR King v The State 212 Soe ae EE ERO T e KINGVTHESTATE , | CA COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 9 of 1977, Hon Mr Justice Ken E.O During JA, Hon Mr Justice F A Short JA, Hon Mr Justice S MF Kutubu JA, 11 July

[1] Civil Procedure - Transfer of preliminary investigation — Application should have been made under s 10(c) of Courts Act not s 10(b) — Courts Act 1965s 10 By judge’s summons on 26 May 1977, Senior State Counsel applied under s 10(b) of the Courts Act 1965 for the transfer of a preliminary investigation into charges against the appellant of falsification of accounts and larceny by servant. The appellant argued that the judge was wrong to have entertained the application and to have made the order under s 10(b) of the Courts Act 1965 when the matter was a preliminary investigation and not a summary trial. Held, per Short JA, setting aside the order of the High Court: “The application for transfer should have been made under s 10{c) of the Courts Act 1965. Any other construction would be contrary to the reason and intent of s 10 of the Act. Legislation referred to Courts Act 1965 s 10 Falsification of Accounts Act 1975 s 1 Larceny Act 1916 s 17(1a) Appeal ‘This was an appeal from an order made by Taju Deen J sitting in the High Court in Freetown on 13 July 1977. The facts appear sufficiently in the following judgment. Mrs Ahmed for the appellant. Miss M A C Jones for the respondent. SHORTT JA: This is an appeal from an order made by Taju Deen J sitting in the High Court in Freetown on 13” July 1977 as follows: “Tt is ordered that the charges of falsification of accounts, contrary to section 1 of the Falsification of Accounts Act 1975, and larceny by servant, contrary to section 17(1)(a)

of the Larceny Act 1916, against Charles Edward King be enquired into at the

Magistrate’s Court in Moyamba.”

Leamed counsel for the appellant filed only one ground of appeal, that is:

“The leamed judge was wrong to have entertained the application and made the order

under section 10(b) of the Courts Act 1965 when the matter before the Magistrate’s Court

is a preliminary investigation and not a summary trial.”

By judge’s summons dated 26" May 1977, the then Senior State Counsel, R Bankole ‘Thompson Esq, applied under section 10(b) of the Courts Act No 31 of 1965 for the transfer of the preliminary investigation mentioned in the judge’s order quoted supra. In paragraph 4 of his supporting affidavit dated 26" May 1977, the Senior State Counsel deposed, inter alia, that the subject-matter of his application was a “preliminary investigation.”

‘The relevant sub-sections of section 10 of the Courts Act No 31 of 1965, read:

213 Sierra Leone Bar Association Law Reports [1974-82] | SLBALR (a) The High Court may of its own motion or on the application of the presiding

Magistrate or of any party to the proceedings on cause shown transfer: (b) any

proceedings before a Magistrate’s Court in its criminal jurisdiction to any other

Magistrate's Court for hearing and determination there, and (c) any preliminary

; investigation before a Magistrate’s Court into a criminal offence to any other Magistrate’s

Court for completion of the preliminary investigation there.” :

It is quite obvious that sub-section 10(c) has within its contemplation a contingency such as the instant case. This view is apparently unwittingly supported by counsel for the respondent himself for as stated earlier, in paragraph 4 of his affidavit dated 26" May 1977, he deposed that the subject-matter of his application was a “preliminary investigation.” Then in answer to cross-examination by N D Tejan-Cole Esq, counsel for the respondent, in the court below, Dr Bankole Thompson, counsel for the applicant, stated, inter alia, “my information was that a preliminary investigation was in progress.”

With respect to Dr Bankole Thompson, his arguments in support of his application transcend my comprehension and were misconceived. His simple course of action was to have applied for an amendment by substituting section 10(c) of the Courts Act No 31 of 1965 for section 10(b) of the Act. Any other construction would mock the reason and intendment of section 10 of the Act if indeed it would not militate against the plainest principles of interpretation.

In the result, the order of leamed trial judge dated 13" July 1977 is hereby set aside and I will make the following order:

That the preliminary investigation into Charges of Falsification of Accounts Act 1975,

and larceny contrary to section 17(1)(a) of the Larceny Act 1916 against Charles Edward

King-be continued in the Magistrate's Court in Freetown and not transferred to the

| Magistrate's Court in Moyamba.

This order to take effect forthwith.

Reported by Anthony P Kinnear and Victoria Jamina