Dataram v Minister of Home Affairs, Commissioner of Police, Magistrate Octive-hamilton and Director of Prisons
| Jurisdiction | Guyana |
| Judge | Ramson, J.A. |
| Judgment Date | 18 December 2008 |
| Neutral Citation | GY 2008 CA 12 |
| Docket Number | Civil Appeal No. 158 of 2008 |
| Court | Court of Appeal (Guyana) |
| Date | 18 December 2008 |
Court of Appeal
Ramson, J.A.
Civil Appeal No. 158 of 2008
Mr. D. Singh S.C, Attorney General with Mr. N. Harnanan for the appellants/respondents.
Mr. V. Puran with Mr. G. Hanoman for the respondent/applicant.
Extradition - Constitutional law — Validity of legislation — Guyana — Fugitive Offenders Act, 1988 — Extradition Acts, 1870 to 1932 [UK] — United States of America (Extradition) Order in Council 1935, SR & O 1935 No 574 [UK] — Guyana Independence Act, 1966 [UK] — Guyana Independence Order, 1966, SI 1966 No. 574 [UK], section 5(1) — Republic Act, 1979 [G], section 3 — Constitution of the Co — operative Republic Act, 1980 [G], section 7.
This Application by way of Summons for a Stay of Execution of a judgment of the Full Court of the High Court of the Supreme Court is traceable to Extradition Proceedings which commenced before one of the Magistrates exercising jurisdiction in the Georgetown Magisterial District, contemplated by the Fugitive Offenders Act, 1988 and a 1931 Treaty between the UK and the USA, adopted and given due recognition by virtue of the United States of America (Extradition) Order in Council, 1935 and S.5(1) of the Independence Order, 1966 upon our attainment of Independence in 1966. It would appear the Respondent named herein was regarded as someone whom the Agency responsible for detecting and investigating immigration and narcotics violations in the USA had under surveillance as a “person of interest” and were satisfied that he had, inter alia, conspired to import cocaine into that country, contrary to their; laws. As a consequence, a request for his extradition there was duly made through the appropriate channels, and the aforementioned Magisterial Proceedings were instituted against him, with the issue of a Ministerial Order permitting the extradition process. (Section 12 (1) and (3) of the aforementioned Act)
Shortly after his appearance in that Court his Defence Counsel challenged, by Prerogative Writ Proceedings, the propriety of the Minister of Home Affairs' Order permitting the Magistrate to proceed, before Justice Rishi Persaud who duly refused to issue the Nisi Orders sought on the basis that he was constrained by the authority of KING v. AG (1992) 47 W.I.R. 210, a decision of this Court at a time when it was our final Court. Two of its rationes decidendi pertinent to the issues which seemed to have arisen in the proceedings before the Full Court subsequently are set out verbatim from pp. 211–212, thereof:
“(i) the Court would take judicial notice of an Order in Council giving effect to an extradition treaty as an ‘applied law’ under S. 24 of the Evidence Act, read together with S. 5 of the Interpretation and General Clauses Act, CAP 2:01; and,
(ii) That although the Extradition Treaty 1931 with the USA did not contain an express provision prohibiting the transfer of the extradited person to a third country for an offence which had been committed before his extradition (cf the Fugitive Offenders Act, 1988, Section 8. (3)(b)), the US courts would be constrained by precedent to imply such a provision into the treaty and extradition under the 1931 treaty accordingly would not contravene section 8(3)(b).”
Undaunted by this judicial rebuff, Counsel filed another application to the Full Court of the High Court under ORDER 46, r. 16 of the High Court Rules, CAP 3:02 and that Court, in its inspired wisdom, declined to be shackled by the pre-eminent judicial authority of this Country and, by one fell swoop, may appear to have unwittingly dismantled the doctrine of precedent, hallowed not only by time but', the majesty of the common law. For all intents and purposes, the Court by its ruling may have succeeded in creating chaos where more regnant and conventional prudence demanded a regime of certainty. Out of deference for the learning of my judicial brothers and with equal judicial restraint, I shall resist any analysis of their judgment since this is not a matter upon which my ruling and/or decision is required. The appellants have now duly filed a notice of appeal against that decision and the Summons at bar.
With commendable vigilance and bullishness, counsel for the respondent raised, in limine, their objection to the jurisdiction of the Court of Appeal, a creature of statute, in a matter of this kind, relying on S. 6(5)(a) of the Court of Appeal Act, CAP 3: 01 which states:
“No appeal shall lie under this section –
(a) from any order made in a criminal cause or matter;”
In support of their submission they relied on ZAMAN ALI v. DIRECTOR OF PUBLIC PROSECUTIONS (1991) 45 W.I.R. 196, a decision of this Court, constituted as it then was by, inter alias, two of the very Judges who gave the ruling in KING v. AG(Supra). In essence, learned counsel's submission fell to be considered squarely within the expression “in a criminal cause or matter”. In response to this fundamental issue, the learned Attorney-General submitted, firstly, the respondent invoked the civil jurisdiction of the Full Court and the High Court had only two jurisdictions, Civil and Criminal. Secondly, the respondent ought to have awaited the outcome of the committal proceedings before the magistrate and utilise, if necessary, the provisions of Section 17 of the Fugitive Offenders Act, 1988 which states so far as it is relevant:
“A person committed to custody under section 15(4) may make an application to the High Court for habeas corpus within fifteen days from the day on which the order of committal is made and, on such application, the High Court may, Without prejudice to any other jurisdiction of that court, exercise any of the powers conferred upon it By this act: (emphasising mine)
Thirdly, the final order made by the Full Court, that is, “…. this Court sees it fit to order that the rules Nisi of Certiorari, Prohibition and Habeas Corpus ad subjiciendum which were made on the 6th November, 2008 be made absolute. The Writs will issue.” gave rise to a right to an appeal to the Court of Appeal.
Fourthly, the issue of whether the proceedings out of which the application before the Full Court of the High Court is in a criminal cause or matter only arises when the Appeal Court is approached by way of appeal.
Finally and fifthly, if this Court is of the view that the original jurisdiction and not the appellate jurisdiction of the Full Court was invoked by the Respondent then this can be taken into account for the purposes of the relief now sought. For the sake of completeness and comprehension, ORD 46, r.16 (supra) is set out in full:
“Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Full Court ex parte within four days from the refusal or within such enlarged time as a Judge or the Full Court may allow.”
The marginal note, to this rule, i.e. “Appeal from refusal of ex parte application” makes it clear, if there be any lingering doubt, that the process was by way of appeal: (see section 57(3) of Interpretation and General Clauses Act, CAP 2:01 — “Every …… marginal note to any written law…. shall be construed and have effect as part of the written law”)
In the light of the clear meaning of ORD 46, r. 16, given its ordinary and natural interpretation, the foregoing fifth submission cannot be seriously regarded as tenable and is therefore rejected as unmeritorious. With respect to the second submission of the learned Attorney-General it would appear that section 17 of the Fugitive Offenders Act, 1988 as particularised earlier, rather than precluding the Respondent from seeking the Writs he sought and at the time he so did, preserved his common law right to do precisely what he did. Lord Esher, M.R. in Re — Woodall, ex parte (1888) 20 Q.B.D. 832 at p. 836 is instructive in this regard:
“I think that the clause (in a criminal cause or matter) applies to a decision by way of judicial determination of any question raised in or with regard to proceedings…. at whatever stage of the proceedings the question arises.”
Apart from the statutory and specific remedy that the section provides, it recognised and acknowledged that the High Court had jurisdiction, otherwise than by way of specific statutory remedy, to grant relief to an applicant — if not, the clause “without prejudice to any other jurisdiction of that Court” would be meaningless. It is trite law that the ancient Writ of Habeas Corpus, originally a common law remedy, was given statutory recognition under the Habeas Corpus Act, 1679, and A.V. Dicey pointed out “… if, in short, any man, woman or child is deprived of liberty, the Court will always issue a writ of habeas corpus to any one who has the aggrieved person in his custody to have such person brought before the court, and if he is suffering restraint without lawful cause, set him free”: (See pp. 822–823 of Constitutional and Administrative Law 3rd ED by Hilaire Barnett, and the case of WOLFE TONE (1798) 27 St Tr. 1614.) The plenitude of the powers exercisable under the Court's Jurisdiction, and its limits, are exemplified in STOCKDALE v. HANSARD (1839) 9 Ad & E. 1 and the SHERIFF OF MIDDLESEX CASE (1840) 11 Ad & E 273.
I therefore rule that the aforementioned section provides for an additional remedy, and is not exclusionary in nature; nor does it create an exclusive regime for matters arising out of the Act.
I now turn to the first, third, and', fourth submissions which, when viewed holistically, constitute three chords of an ornamental banjo, each providing separate and distinct sounds' in the expectation of eventual symphonic success, if plucked with a plectrum and blended in harmony, one to the others. Without a doubt the civil jurisdiction of the Full Court was...
To continue reading
Request your trial