Ali v The Director of Public Prosecutions
| Jurisdiction | Guyana |
| Judge | Kennard, J.A.,George, CH.,Churaman, J.A. |
| Judgment Date | 27 February 1991 |
| Neutral Citation | GY 1991 CA 2 |
| Court | Court of Appeal (Guyana) |
| Date | 27 February 1991 |
Court of Appeal
George, C.; Kennard, J.A.; Churaman, J.A
Mr. R. McKay, S.C. for the appellant
Ms. C. Riehl Assistant Director of Public Prosecutions for the respondent
Jurisdiction - Court of Appeal — Civil actions filed in High Court — Information subsequently laid before magistrate against plaintiff in one civil action — Motion filed by plaintiff seeking stay or adjournment pending decision in civil action — Appeal against dismissal of motion — Jurisdiction of Court of Appeal to hear an appeal from order made “in a criminal cause or matter” — Court of Appeal Act, Chap. 3:01, s.6(5)(a).
Does this court have jurisdiction to entertain this appeal? Counsel for the respondent submitted that we do not have jurisdiction to hear this appeal and she referred to the provisions of section 6(5)(a) of the Court of Appeal Act Cap. 3:01 which is one of the provisions which appears in Part 11 of the Act ( Court of Appeal Act) and which is concerned with appeals to this court in relation to civil matters.
That sections 6(5)(a), reads thus:–
“No appeal shall lie (to this court) under this section:- (a) from any order made in any criminal cause or matter.”
It is important that we should determine this issue before proceeding any further to hear arguments concerning the appeal itself. If the submission of counsel for the respondent is upheld by us, then we must dismiss the appeal on the ground that we have no jurisdiction to entertain same. Even though one would have expected that counsel for the respondent would have taken the point as to jurisdiction at the outset of the appeal, and not to wait until the arguments concerning the appeal itself had already begun, I am of the view that she was entitled to take the point at any stage of the proceedings, but certainly before the conclusion of the argument in relation to the appeal itself.
In any given matter, the court has to satisfy itself that it has jurisdiction to entertain same. Pertinent remarks were made to Richards, C.J. in Dhajoo v. Thom (1939) L.R.B.G. p. 262 when he said at p. 265:
“It is the first duty of every court, whether of first instance, or on appeal, … to satisfy itself on its jurisdiction and if the court is of the opinion that it does not possess jurisdiction, in whatever manner any given matter may be brought before it, it is the duty of the court, whether the question of jurisdiction is the subject of a formal appeal or not, of its own motion to pronounce accordingly.” (See also Guyana Sugar Corporation Limited and Seeram Teemal - Civil Appeal No. 43/1982 (unreported) Kammins Ball-rooms Ltd. v. Zenith Investments Ltd. [1970] 2 All E.R. 871 and The Mayor and Aldermen of Norwich v. Norwich Electric Tramways Co. Ltd. [1906] 2 K.B. 119.”
Over the years the courts in England have had to consider what is the interpretation or construction to be given to the expression “in a criminal cause or matter” within the meaning of the Supreme Court of Judicature Acts. Among the earlier cases considered by the English courts are Ex parte Woodhall [1888] 20 Q.B. p. 832, Ex parte Scholfield [1891] 2 Q.B. 428, Ex parte Pullbrook [1891] 1 Q.B. 88 and Re Clifford and O'Sullivan [1921] 2 A.C. 570. More recently, there have been the cases of R. v. Stipendiary Magistrate at Lambeth exp. McComb [1983] 1 All E.R. and R. v. Secretary of State for Home Department ex parte Dannenberg [1984] 2 All E.R. 481, among others. In the region there has been the Jamaican case of McGann v. United States of America (1971) 18 W.I.R. 58.
In Woodhall's case (supra) she was brought before the chief magistrate of Bow Street Police Court charged under the provisions of the Extradition Act 1870 as a fugitive criminal accused of having committed forgery in New York. The magistrate upon the evidence appearing from the deposition taken in New York, committed the accused to prison. An application was thereupon made on her behalf to a Divisional Court for an order nisi for the issue of a writ of habeas corpus to be directed to the keeper of the prison, on the ground that the magistrate at the hearing of the case had declined to adjourn it in order that evidence in favour of the accused obtained from New York, which evidence was expected to arrive in England shortly, might be tendered on her behalf; and that upon the evidence before the magistrate he ought not to have committed her. The Divisional Court refused to grant the order nisi. The applicant then appealed to the Court of Appeal from the decision of that court.
The Court of Appeal held that as the order of the Divisional Court was made “in a criminal cause or matter” section 47 of the Judicature Act 1873 applied and, therefore no appeal lay to the Court of Appeal. Lord Esher, M.R. said at p. 836:
“I think that the clause of s.47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises. Applying that proposition here, was the decision of the Queen's Bench Division refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham, the chief magistrate of Bow Street Police Court? I am clearly of the opinion that it was and I think it is impossible to say that what took place before him was not a proceeding the subject matter of which was criminal. If the proceeding before magistrate was a proceeding the subject matter of which was a criminal then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of he proceeding before the magistrate, was a proceeding - the subject matter of which was criminal. It follows, therefore, that this court has no jurisdiction to hear the appeal.”
The other Lord Justices, i.e. Lindley and Bowen shared similar view to that of the Master of Rolls in that both held that the court had no jurisdiction to entertain the appeal as it is related to “a criminal cause or matter.” Woodhall's case was followed by ex parte Scholfield (supra) and ex parte Pullbrook (supra).
In 1921, the House of Lords had to consider the term “in a criminal cause or matter” in the case of Re Clifford and O'Sullivan (supra), where Viscourt Cave said at p. 580:
“… in order that a matter may be a criminal cause or matter, it must I think fulfill two conditions which are connoted by and implied in the word ‘criminal’. It must involve the consideration of some charge of crime, that is to say, of an offence against the public law and that charge must have been preferred or be about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. If those conditions were fulfilled, the matter may be criminal, even though it is held that no crime has been committed or that the tribunal has no jurisdiction to deal with it, but there must but there must be at least a charge of a crime (in the wide sense of the word) and a claim to criminal jurisdiction.”
In that case Viscourt Cave held that the Court of Appeal in Ireland had jurisdiction to entertain the particular appeal as the tribunal, which had dealt with the matter at the inception was not a court martial, that is to say, a tribunal regularly constituted under the military law, so that the order of Powell, J., who had refused to issue a writ of prohibition against the so called “military court” was not made in a criminal cause or matter.
That case is to be constrasted with R. v. Army Council ex parte Sandford [1940] 2 All E.R. 373 where there was a regularly constituted court martial which had convicted the appellant on five charges of felony, following which the Army Council, having reviewed the proceedings at the appellant's request, quashed the convictions on four of the charges, but did not remit, mitigate or commute the sentence on the remaining charge. A motion for a writ of mandamus that the Army Council be commanded to mitigate, remit or commute the sentence which had been passed on the appellant was dismissed in the King's Bench Division. On appeal to the Court of Appeal Goddard, L.J., as he then was, said:
“The Army Council was acting as a court and consequently this is “a criminal cause or matter”, and this court has no jurisdiction to entertain an appeal.”
It is to be noted that Lord Goddard adopted by definition given to the term “in a criminal cause or matter” by Viscourt Cave in Clifford and O'Sullivan (supra).
I next turn to the House of Lord's case of Amand v. Secretary of State for Home Affairs and another [1942] 2 All E.R. p. 381. I consider this case to be a very important one as it was followed in later years by several other cases, including R. v. Secretary of State for Home Department ex parte Dannenbery (supra) and R. v. Director of Public Prosecutions ex parte Raymond (1980) 70 C.A.R. p. 233, both of which I will refer to later.
In Amand's case, a Netherlands subject, who had resided in England for a number of years was called up for service in the Netherlands Army in England. At the expiration of a leave period he failed to return to duty and was arrested as a deserter under the Army Act - s.154, as applied by the Applied Forces Act, 1940, and an order in council made thereunder. He applied for a writ of habeas corpus on the ground that his conscription into the Netherlands Army and, therefore, his arrest as a deserter from it were unlawful. On his appeal against the refusal of this application, the preliminary point was taken that the appeal being in “a criminal cause or matter” the court had no jurisdiction to entertain it by...
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