Abdulla v Reece
Jurisdiction | Guyana |
Judge | Bollers, C.J. |
Judgment Date | 21 September 1974 |
Neutral Citation | GY 1974 HC 23 |
Date | 21 September 1974 |
Court | High Court (Guyana) |
Docket Number | 2460 of 1973 |
High Court
Bollers, C.J., Vieira, J.; George, J.
2460 of 1973
Mr. Doonauth Singh for appellant
Mr. N. Kissoon with Mr. L. Ganpatsingh, State Counsel, for respondent.
Practice and procedure - Magistrate's Court — Delivery of Judgment
The appellant was summoned for eleven breaches of the Trade (Control of Prices) Order, 1963, as amended, contrary to sec. 5(4) of the Trade Ord. 1950, as amended by the Trade (Amendment) Act, 1971. At the trial ten of the summonses were dismissed but he was found guilty on the eleventh for a breach of Article 4(1) of the 1963 Order, as amended, which concerned the exposure for sale of a price-controlled article, to wit, a box of matches, without the retail selling price being marked thereon and was fined $500.00 (five hundred dollars) or 6 (six) months imprisonment. He appealed against this conviction on two grounds, viz:-
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(1) The decision was unreasonable and could not be supported having regard to the evidence; and
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(2) The decision was erroneous in point of law in that it was delivered in excess of six weeks of the conclusion of the hearing.
When the matter came up before us, counsel for the appellant argued ground (2). He pointed out that the learned magistrate had fully heard all the evidence on 3 rd December, 1971, and had reserved decision to the 10 th December, 1971, but for some unknown reason the decision was not given on that day. In fact it was not until the 2 nd November, 1972, almost eleven months afterwards, that he handed down his decision. Counsel referred us to sec. 34 of the Summary Jurisdiction (Procedure) Ord. Cap. 15 (Kingdon Ed. of the Laws of Guyana) (now sec. 35 of Cap. 10:02) and submits that the language of the section is mandatory in terms. He also referred to sec. 23 of the Summary Jurisdiction (Petty Debt) Ord. Cap. 16 (Kingdon Ed.) (now Cap. 7:01) and submits that the two statutes are “in pari materia.” He also drew attention to the Jamaican case of Jones v Ricketts (1964) 7 W.I.R. 62, which considered the scope and purpose of sec. 192 of the Judicature (Resident Magistrates) Law, Cap. 179 of Jamaica which is similarly worded to sec. 34(2) of Cap. 15.
In reply, counsel for the respondent contended that sec. 34 of Cap. 15 deals with the question of a magistrate's jurisdiction and he argued that this is a case of no jurisdiction and not one of excess of jurisdiction. He referred us to sec. 35(3) of the present Cap. 10:02 and to sec. 67(2) of the Summary Jurisdiction (Magistrates) Act, Cap. 3:05 (formerly Cap. 12 of the 1953 Edition) and contends that the latter impliedly repealed sec. 34 (1) of Cap. 15 (now sec. 35(1) of Cap. 10:02) and he cited the Privy Council case of Montreal Railway v Normandin [1917] A.C. 170 at pp. 174 – 175, in support thereof. But it is argued on behalf of the appellant that the enactment of sec. 67(2) of Cap. 3:05 merely reinforces the argument that se. 34 (1) of Cap. 15 is mandatory and not directory.
Sec. 34 of Cap. 15 provided as follows –
(1) “The court shall at the: conclusion of the hearing or within six weeks thereafter at a subsequent sitting give its decision in the cause, either by dismissing the complaint or by making such order against the defendant as the justice of the case requires.
(2) Where before the: court gives decision, the magistrate ceases to exercise jurisdiction in the judicial district or to hold office it shall be lawful for him, within six weeks of the conclusion of the hearing, to lodge with the clerk of court his written decision. The court shall read the decision a the earliest opportunity after notice to the parties and the decision when read, shall be deemed to be the decision of the court.”
By contrast sec. 23 of Cap. 16 reads as follows:
“On the conclusion of the hearing, the court shall, either at the same time or at a subsequent sitting of the court, give its judgment in the case; and shall, if so required by the plaintiff or defendant, give the reasons therefor in writing to the plaintiff or defendant, as the case may be.”
It is at once noticeable that sec. 23 of Cap. 16 differs in two main respects from sec. 34 of Cap. 15, viz- (1) no time limit is laid down within which a decision is to be given and (2) no provision is made for the lodging and/or delivery of a written decision in the event of a magistrate ceasing to exercise jurisdiction or to hold office. We consider this distinction significant for the purposes of this decision. As we see it, the magistrate, being a creature of statute, can only exercise such powers as are vested in him by statute. In our opinion, but for sub-section 2 of sec. 34, a magistrate who ceased to hold office or to exercise jurisdiction within the district could not deliver any decisions which had been reserved. The sub-section makes it lawful for him to do so provided that the conditions contained therein have been fulfilled. In this regard the Jamaican case of Jones v Ricketts (1964) 7 W.I.R. 62 is instructive. This was an action and counterclaim for negligent driving filed in the parish of St. James. The case was fully heard on the 31 st May, 1963, at Montego Bay, by an acting additional resident magistrate, who reserved his decision. On that very day however, he ceased to act as an additional resident magistrate for that parish. On the 1 st June, 19 he was appointed to act as an additional resident magistrate for the parish of Kingston. On the 27 th September, 1963, some four month later, the said official returned to the parish of St. James and proceeded to read a written judgment to which prior objection was taken by solicitor for the appellant on the ground that the procedure was in violation of sec. 192 of the Judicature (Resident Magistrates) Law, Cap. 179. This section provides as follows –
“Whenever a magistrate shall reserve judgment and shall cease, either temporarily or permanently, to be the magistrate of the court in which judgment is reserved, before he has delivered his judgment, it shall be lawful for him, at any time within two months after so reserving judgment, lodge with the clerk of court his written judgment on the matter reserved, and such written judgment shall be read in court by the magistrate of the court at the first opportunity after it has been so lodged; and such judgment shall take effect in all respects in the same way that it would have taken effect if the magistrate who reserved judgment had continued to be the magistrate of the court, and had delivered the judgment himself on the day that it was so read as aforesaid.”
Duffus P, with whose judgment Lewis and Henriques JJ.A., concurred, said at p. 64 –
“It is my view that the arguments put forward to this court by learned counsel for the appellant have considerable merit. The obvious intention of the legislature when it enacted s. 192 of the Resident Magistrates' Law was that reserved judgments should be delivered within a limited time — fixed at two months, and I accept the argument put forward that where the resident magistrate has ceased to be resident magistrate for a particular parish that his jurisdiction in that parish...
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