M. Dialdas & Sons v Comptroller of Customs, 1920-36 ALR S.L. 48

THE AFRICAN LAW REPORTS M. DIALDAS AND SONS v. COMPTROLLER OF CUSTOMS Supreme Court (Purcell, C.J.): May 22nd, 1922 [ 1] Courts - magistrates' courts - appeals - procedure - fine imposed by 5 magistrate must be paid into court by appellant - condition cannot be waived: The provisions of that part of s. 8 of the Appeals from Magis­ trates Ordinance, 1877 whereby any fine imposed by the magistrate must be paid into court by a would-be appellant as a condition precedent to the appeal being heard and decided, are mandatory and 10 15 20 25 30 35 40 cannot therefore be waived (page 49, lines 18-35). [ 2] Criminal Procedure - appeals - procedure - fine imposed by magis­ trate must be paid into court by appellant - condition cannot be waived: See [1] above. The respondent brought proceedings against the applicant in the police magistrate's court. The applicant was convicted of an offence and fined £50. An appeal was lodged but the applicant did not pay the fine into court in compliance with s. 8 of the Appeals from Magistrates Ordinance, 1877 because, he alleged, the magistrate agreed to accept security in lieu of payment. The necessary bond was not, however, executed. The appeal hearing was abandoned when the Chief Justice learned that the fine had not been paid into court. The applicant then brought the present proceedings contending that since the payment had been waived the appeal should not have been abandoned and that in the interests of justice the earlier proceedings should be set aside and a new trial ordered. The application was dismissed. Legislation construed: Appeals from Magistrates Ordinance, 1877 (No. 4 of 1877), s. 8: The relevant terms of this section are set out at page 49, lines 21-28. PURCELL, C.J.: This is an application by M. Dialdas & Sons for an order that the judgment in this case and all subsequent proceedings thereon be set aside and a new trial had between the parties on the grounds that- 1. The learned Chief Justice in his reserved judgment delivered on March 6th, 1922 held the appeal hearing to be abandoned on the ground that he had received a certificate from the police magistrate that the penalty of £50 imposed at the hearing had not been paid and therefore dismissed the appeal, notwithstanding 48 a M. DIALDAS & SONS v. COMPTROLLER OF CUSTOMS, 1920-36 ALR. S.L. 48 s.c. the fact that the papers had been regularly transmitted by the police magistrate to the Supreme Court in its summary jurisdiction and no objection of abandonment of the appeal was raised by the respondent at any time during the hearing of the appeal; 2. The appellants were completely taken by surprise, for the 5 reason that on their application through counsel in open court the magistrate agreed to accept security in lieu of payment of the fine. The appellants' agent, with Mr. Thomas Macaulay of Water Street, was sent to the magistrate's office to sign the necessary bond, the practice being that all bonds and the evidence taken at the trial 10 before the police magistrate are prepared and made up in the magistrate's office and not by litigants; 3. Substantial injustice is done to the appellants by the omission of the magistrate to have the proper bond prepared though the appellants were willing to execute the necessary security and did 15 send persons to the magistrate's office within the time prescribed by law for that purpose. A careful perusal of the various sections in the Appeals from Magistrates Ordinance, 1877 will indicate exactly what a would-be appellant has got to do in order to appeal. Section 8 reads: 20 "If the Magistrate's decision be for the payment of any fine or money, the amount thereof must be paid into Court within the eight days allowed for appealing, together with such further amount or sum of money as the Magistrate shall by reference to the Schedule hereto and section 16 consider 25 ample and sufficient to cover the costs of appeal; or security in double the said amount must be given within such time, to abide the judgment of the Court of Appeal." It has been argued that the payment of this fine within the time stated has been waived. With that contention I cannot agree for 30 two reasons, viz.: (i) A party cannot waive anything with regard to a matter of which he is wholly ignorant; (ii) the matter in question, in any case, is incapable of waiver as the payment of the fine within eight days is imperative and a condition precedent to any appeal being heard and decided. 35 In this case a necessary condition was unfulfilled and the person primarily and in my judgment solely responsible is the appellant and for this reason I dismiss this application. Application dismissed. 49 40