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State v Molaodi and Others (Criminal Appeal No. 10 of 1988 ) [1988] BWCA 15 (4 July 1988)

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L.2.J
of imprisonment and ruled that a juvenile court could not impose imprisonment unless in cases where the sentence was fixed by law. Arising from that ruling the Attorney General has, under the provisions of section 331A of the Criminal Procedure and Evidence Act, submitted the ruling to the Court of Appeal in the following terms:-
"Is it unlawful for a juvenile court to impose a sentence of imprisonment?

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satisfied of his guilt the court may, after taking into consideration the general conduct, home environment, school records and medical history(if any) of such child or juvenile, dispose of the case by -
(a)      dismissing the charge;
(b)      discharing the offender on his entering into a recognizance;
(c)      placing the offender on probation for a period of not less than 6 months or more than 3 years;
(d)      sending the offender to a school of industries for a period not exceeing 3 years or until he attains
the age of 21 years; or
(e)      ordering the parent or guardian of the offender
to pay a fine, damages or costs.
A reference under Section 331A is for the purpose of the
determination of the correctness of the High Court for guidance
in future. In this case the matter has been argued before the
Court from two aspects one put forward by counsel acting as
amicus curiae and the other by the Attorney General.
The agreement has turned on the meaning of the word "may" in section. 28 of the Act. On the one hand it has been argued that the section sets out exhaustively the different powers vested in the magistrate as a juvenile court and gives him a choice in exercising them. On the other hand Counsel for the Attorney General has argued that the word "may" is in its literal sense permissive and that the effect of section 28 is to add in respect of a child or juvenile the powers mentioned in the section to any other powers vested in the magistrate as such outside the parameter of the Children's Act 1981. He urged upon the court the evil which would follow the other construction.
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Where a juvenile was convicted of a very serious crime or a crime committed in very serious circumstances, it would not be in the interests of justice that he should be treated under the comparatively lenient provisions of section 28.
It is the former view which found favour with the Chief Justice as is shown in the following passage from his judgment.
"It is important to emphasize that a juvenile Court may only exercise the powers conferred by Section 28 in cases tried by it. It is not empowered to exercise those powers under the provisions of Part VII of the Criminal Procedure and Evidence Act. And it is not empowered to exercise those powers in relation to offences which a Magistrate or Customary Court does not have jurisdiction to try e.g. murder, treason. However in relation to offences which a Juvenile Court has jurisdiction to try, its sentencing
powers are limited by section 28 of the Children's Act 1981 and other laws. The Court is empowered to deal with a juvenile found guilty only in accordance with section 28 or any other law making specific provision therefor. It is quite clear that section 28 does not empower a Juvenile Court to pass sentence of imprisonment on a juvenile. In my opinion therefore a Juvenile Court may not sentence a juvenile found guilty by it to imprisonment unless in cases where the sentence is fixed by law.
In a later passage the Chief Justice stressed the point
as follows -
"But at the same time, however strongly a court
may feel about the gravity and circumstances of
the offence for which an accused person is convicted,
the sentence which the court has power to impose
are laid down by law. A court cannot pass a sentence
in excess of the limits imposed by law. In the
case of a Juvenile Court its powers to deal with a
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' "> juvenile found guilty <$ • any offence before it are specifically laid down in section 28 of the Children's Act and other laws. The sentencing powers of a Juvenile Court are thereby limited. However serious the offence, a Juvenile Court has to decide on the most appropriate manner of dealing with the juvenile within the limits of those powers".
In approaching the question this Court must follow the
general principle laid down in Section 10 of the Interpretation
Act and give the statute such fair, large and liberal
construction and interpretation as will best ensure the
objects of the statute according to its true intent, meaning
and spirit.
The Act is a wide reaching statute dealing with the care, custody, welfare and judicial discipline of infants, children and juveniles. In setting up juvenile courts the legislation has tried to get rid of any awesome or, to a young person, intimidating appearance of the judicial system. It has imposed informality, excluded the public and publicity and has required the juvenile court to take congnizance of certain specific matters when dealing with a child or juvenile. It has sheltered the child or juvenile to the extent that section 28 makes no mention of conviction but only refers to the magistrate being satisfied of guilt. Similarly in section 31 of the Act dealing, with appeals again there is no use of the word "conviction".
The powers given by section 28 are remedial and clearly
not punitive in intent. They are intended for the protection
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would have to be tried by a magistrate who would perforce be sitting as a juvenile court. To invoke the High Court in this context would seem absurd. The corporal punishment referred to in paragraph (b) of section 21 is clearly outside the provisions of section 28.
Section 29(1) of the Act is as follows:
29(1) Before making an order for probation under section 28 the court shall explain to the offender in ordinary language the effect of the order and that if he fails to comply therewith or commits another offence while on probation he will be liable to be sentenced for the original offence as well as any other penalty which the court may consider fit to impose.
The section seem to me to mean that where a child or
juvenile fails to comply with the order or where he commits
another offence while on probation he becomes liable to be
sentenced for the original offence under the penal provisions
laid down for that offence. This provision seems somewhat
curious particularly as it does not apply where the child or
juvenile commits an offence while on recognizance or having
been sent to an industrial school. I can, however find
no alternative construction without breaking the canons
of construction which must be obeyed by a court.
I am somewhat at a loss to understand what is meant
by the words "as well as any other penalty the court may
consider fit to impose". The second offence is still
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subject to section 28 as the magistrate will still be sitting as juvenile court. I do not consider it necessary to attempt in this reference to elucidate clearly these words. I find the whole provision most surprising in this legislation and suspect that it has crept in through a too slavish copying by the draftsman of probation provisions in other legislation.
Both of the provisions however lend some support to the submission that section 28 is not complete in itself. However, it seems to me that to p_Ut the wide consttuc'r.ior. on 28 that it does not exclude the powers of the magistrate conferred outside the Act would run flagrantly counter to the true intention of the Act. I consider that these two provisions must be treated as exceptional.
I am satisfied that section 28 is a complete statement of the powers of a juvenile court and that it excludes any powers of imprisonment conferred under legislation outside the Children's Act 1981 save in the circumstances set out in section 29 of the Children's Act 1981. It follows that the exclusion extends to offences even where the punishment is mandatory.
Save for the exception mentioned above I would answer the question posed in the affirmative.
Before leaving this case I think it proper to suggest that further consideration be given to some of the provisions of the Act and in particular to consider whether it is

_A.

I agree
T. A. Aguda, J.A.