SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1988 >> [1988] BWCA 9

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Attorney General v Jaba (Criminal Appeal No. 3 of 1988 ) [1988] BWCA 9; [1988] B.L.R. 225 (CA) (4 July 1988)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 3 of 1988
High Court Review Case 762 of 1986
In the matter of:
THE ATTORNEY GENERAL     Appellant
MONTY JABA       Respondent
Mr. S.A. Afful for the Appellant L.Z. Ngcongco for the Respondent
JUDGMENT
Coram: A.N.E. Amissah, JP. T.A. Aguda, JA. L de Van Winsen, JA. B.A. Doyle, JA. G. Bizos, JA.
AMISSAH, JP.
This application comes before us at the instance of the
Attorney General. He has invoked our jurisdiction under section
331 A of the Criminal Procedure and Evidence Act (Cap 08:02).
That section provides that:
331 A (1) where the High Court, at any stage of criminal proceedings, gives or makes any decision, ruling, opinion or statement on or in relation to a question of law and the Attorney-General has any doubt as to the correctness thereof, he may submit that decision, ruling, opinion or statement to the Court of Appeal and cause the correctness thereof to be argued before the Court of Appeal on behalf of the State in order that the Court of Appeal may determine the correctness thereof for the future guidance of all courts.
(2) For removing doubts, it is hereby declared that the application of subsection (1) extends to an opinion or statement which is not essential to the determination of any issue.

2
The reason for this invocation of our jurisdiction lies in the history of a prosecution of the respondent in the Magistrate's Court and its aftermath.
The respondent was charged before the Senior Magistrate at Mahalapye on one count of driving a motor vehicle whilst unfit to drive through drink or drugs contrary to section 46(1) read with section 47(H) of the Road Traffic Act (Cap 08:01). There were several adjournments, apparently, the greater number at the instance of the respondent. This may have had some influence on the course of the case, although the mere fact that one side succeeds in obtaining more adjournments as compared with the other is not in itself a mark of virtue which should confer claims to an equal number of, or any, future adjournments, however unmerited, on the other side. The parties before a court are not playing a numbers game. Adjournments should depend on the reasons for them considered within the context of the convenience of the Court and the likely prejudice they might cause to the other party.
The case for the prosecution depended on the evidence of a technical witness. This witness who had been present on other days when the case had been adjourned, without his evidence being taken, was not present on the crucial day when the Senior Magistrate had warned that all witnesses ought to be present. The prosecution asked for an adjournment overnight to produce the witness. The Senior Magistrate declined to accommodate. Without the evidence of the technical witness the prosecution's

.3
case was incomplete. The defence made a sumbission of no case to answer. The Senior Magistrate upheld it, and acquitted and discharged the respondent.
The Attorney General then asked for a review. That came before O'Brien-Quinn, CJ. It was fully argued. The Chief Justice decided that the Senior Magistrate was, in the circumstances, wrong in refusing to grant the adjournment and he remitted the case to the Senior Magistrate to hear the technical witness and proceed from there. The Senior Magistrate duly did. The missing evidence was supplied to the prosecution's case. The Senior Magistrate then convicted the respondent.
But the Senior Magistrate was unhappy with the course the case had taken and brought it to the attention of Hallchurch, J. who then reviewed the decision. The Attorney-General complains that he was not invited to make representations as he should have. The record before us appear to confirm this. However, on the face of the legislative provisions, it would appear that judges of the High Court have the power to review the decisions, orders etc. of inferior courts and tribunals without necessarily inviting the parties. Whether it is advisable for them to do so always is another matter.
The Judge's power to review is rooted in the Constitution.
Section 95(5) provides that:
"(5) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court or any court-martial and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly

4
administered by any such court."
But the detailed legislation on the High Court review of subordinate court and tribunal proceedings is spread over a number of Statutes and instruments. The Magistrates' Courts Act (Cap 04:04) and the High Court (Review Procedure) Rules made under the High Court Act (Cap 04:02) spell out in some detail one aspect of the supervisory role of the High Court exercised through the review process. That type of review is often described in short form as the automatic review.
Sections 62 and 63 of The Magistrates' Courts Act provide
that:
"62(1) At the end of every month every magistrate's court shall forward to the High Court, in such form as the Chief Justice may from time to time direct, a complete list of all criminal cases decided by, pending in or brought before such court during that month.
(2)      The Chief Justice may require separate lists in respect of individual magistrates or separate lists in respect of specific grades or groups of magistrates.
(3)      The High Court may, in respect of any case mentioned in any such list, call for the record and take any or all such steps and make such orders in connections therewith as if the case had been submitted to the High Court for review.
63. Where a Chief Magistrate or Senior Magistrate imposes a sentence of or exceeding 2 years' imprisonment with or without the option of a fine, or where a Magistrate Grade I or Grade II imposes a sentence of or exceeding 6 months' imprisonment, with or without the option of a fine, the Clerk of the Court shall transmit to the Registrar of the High Court, not later than one week next after the determination of the case, the record of the proceedings in the case together with such remarks, if any, as the magistrate may desire to append thereto, and with any written statements or arguments which the accused may within

5
three days after the sentence supply to the Clerk of the court, and the Registrar shall, with all convenient speed lay the same before the judge in chambers for his consideration and review."
t review procedure is elaborated in the High Court
Procedure) Rules. Rules2 to 5 state that:

2.       Whenever the record of any proceedings in a
criminal case comes before the High Court in
pursuance of section 62 or section 63 of the
Magistrates' Court Act or of the courts' own
motion or otherwise than on appeal, a judge,
after reviewing such record, may -
(a)     
confirm, amend or set aside any judgment, decision or order of any subordinate court contained therein;
(b)      order a new trial of any case heard or decided in any subordinate court or direct that such new trial shall be heard in the High Court;
(c)      receive further evidence or remit the case
to the court of first instance for further hearing, with such instructions as to further proceedings as the High Court may deem necessary; or
(d)      impose such punishment, whether more or less
severe than or of a different nature from the
punishment imposed by the court of first instance,
as in the opinion of the High Court ought to have
been imposed by that court:
Provided that a more severe      punishment may not be
imposed without the accused      having been given an
opportunity of being heard,      or represented by
counsel, in open court.
3.       Notwithstanding that the High Court is of the opinion that any point raised on the review might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the High Court that a failure of justice has in fact resulted therefrom.
4.       If in any case on review a judge desires to have any question of law or fact in such case argued at the bar, he may direct the same to be argued by the Attorney-General and by such other person as the
3.      

6
judge may appoint.
5. When a judge has reviewed any proceedings coming before him and has doubt with such proceedings, either in chambers or in open court, he shall endorse his certificate stating his opinion upon the record thereof and the said record shall then be returned to the court from which the same was transmitted or received, and the judge may, in addition, embody his opinion in the form of a judgment, if he so desires."
It would appear that Hallchurch, J. exercised his powers of
review under these provisions. The point was made that having
regard to the sentence imposed upon the respondent, the learned
judge could not have exercised his review powers under
section 63 of the Magistratesa' Court Act. Having read the
section and looked at the sentence, I am bound to agree with
that view. But nothing was put before us which indicated that
the review could not have been done in accordance with
section 62 of the Act. The legislation gives the review
judge very wide powers. But at the same time it leaves certain
questions unanswered. He may confirm, amend or set aside any
judgment, decision or order. He may remit the case to the court
of first instance for further hearing, with such instructions as
to further proceeding as the High Court may deem necessary. Can
he set aside an acquittal? Can he act against the ancient rule
which gives protection from double jeopardy? What would be
wrong if the review judge after setting aside an acquittal
remits the case to the trial court for further evidence to be
taken? Hallchurch, J., thought that was wrong, and for that
reason, upon his review, acquitted the respondent after the
trial Senior Magistrate had upon the direction of O'Brien-Quinn

7
CJ. taken further evidence and had proceeded to convict on the
totality of evidence then available. Whatever be the answers to
these questions, there is no doubt that Hallchurch, J. had power
to review the order of the Senior Magistrate. The only question
is at to the terms upon which the review could be done.
But the provisions in the Magistrate's Court Act and the
High Court (Review Procedure) Rules under which Hallchurch, J
presumably acted are not the only statutory provisions in our
law on review. Order 43 of the Rules of the High Court also
governs reviews. Unlike the automatic review earlier referred
to, this Order obviously deals with the situation where the
review is requested by a party and is not undertaken by the High
Court Judge performing the usual supervisory function under the
Magistrates' Courts Act. The Order provides in paragraph 1 as
follows:
1. Save where any law otherwise provides, all proceedings to bring under review the decisions or proceedings of any subordinate court and of any tribunal, board or officer performing judicial, quasi-judicial, or administrative functions, shall be by way of notice of motion directed and delivered by the parties seeking to review such decision or proceedings to the judicial officer, or chairman of the court, tribunal or board, or to the officer, as the case may be, and to all other parties affected -
(a)      calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside; and
(b)      calling upon the judicial officer, chairman or officer, as the case may be, to despatch within 14 days of the receipt of the notice of motion, to the Registrar, the record of such proceedings sought to be corrected or set aside, together with such reasons as he is by law required
(a)     

8
or he desires to give or make, and to notify the applicant that he has done so."
Thereafter, the Order provides for the supply of copies of relevant documents to all interested parties and gives opportunity to them, if they so wish, to answer the allegation made by the applicant. The review then proceeds as any normal application in which affected parties are given an opportunity of being heard.
Part of the confusion in this case is caused by the fact that both the automatic revising function of the High Court judge, which obviously does not necessarily depend on the invocation of the judges' powers by the parties, and the procedure whereby a party asks the judge to exercise his revising powers, are described by the statutes or rules made thereunder as "review." The proceedings following upon the request from the Attorney General to the High Court after the Senior Magistrate had originally acquitted the respondent was based on Order 43 type of review. The necessary documents were served on the respondent, and both parties were heard by O'Brien-Quinn CJ.
The fact that he had proceeded before one judge by a procedure which required both sides to be heard only to have his efforts frustrated by another judge using another procedure which afforded him no hearing must have fuelled the grievance of the Attorney-General. For the view taken by Hallchurch, J. without a hearing was that O'Brien-Quinn CJ., who did hear argument, was wrong, in that the learned Chief Justice had overlooked his own deision in the review case of The State vs

9
David Kwenaetsile (Review Case no. 46 of 1985) when the Chief
Justice had said that the High Court had no power to substitute
a conviction on a review where there had been an acquittal by
the trial Magistrate. Hallchurch, J. then proceeded to extend
the prohibition in this principle by posing to himself the
question "whether a person who has been acquitted of a criminal
offence in our Courts of law should be placed in jeopardy yet
again even though his acquittal might have been obtained as a
result of technical slip, error of judgment by the tribunal or
whatever?" After considering the English case of Connelly vs
P.P.P. (1964) A.C. 1254 which is a decision of the House of
Lords, Hallchurch, J. answered the question in the negative. He
concluded his judgment by saying:
"In my opinion, the said direction by the learned Chief Justice in effect violates the fundamental principle that a man is not to be prosecuted twice for the same offence. Although strictly speaking the Defendant was not prosecuted twice in this case, he was placed in jeopardy twice and for that reason I consider that the present conviction should be quashed and his sentence set aside and I so order."
The Attorney General's application brought in consequence
of this order originally posed a number of questions. But in
the course of argument it was limited to two, namely;
1.       Whether a High Court     judge who has a concurrent jurisdiction  with another judge can sit in review of the      decision or order of the other judge?
2.       If so, when questions of law in the matter are concerned must legal representatives of the affected parties be invited to assist the reviewing judge?
1.      

10
With regard to the first question posed, I accept that the judgments or views of one High Court judge, do not bind another. Opposite views could, therefore, be expressed by two High Court judges without complaint. But that depends on the circumstances, and the effect the one view has on the other. The actions taken by the two judges in this case could technically be explained on the basis that these are two judges of concurrent jurisdiction holding different views on different matters brought before them. O'Brien-Quinn C.J. had reviewed a decision of the Senior Magistrate, he had taken a certain view of it and accordingly made a particular order. Hallchurch, J. had reviewed another decision of the Senior Magistrate. He had jurisdiction to carry out that review. He had come to a conclusion different from that held by O'Brien-Quinn CJ. As judges of co-ordinate jurisdiction, each was entitled to hold his own view which may differ from the other. If that is so, any complaint levelled at the action of Hallchurch,J is unfounded.
The matter would be simple if this were indeed so. I am of the view that to hold that this was what indeed happened ignores the substance for the form. Although judges of co-ordinate jurisdiction may properly hold different views, the question is whether one may review the judgment or order of another. As I have earlier indicated, the High Court by the Constitution and by various legislative provisions may exercise supervisory powers over inferior courts, and that one form through which such supervisory powers are exercised is the review.

11
I have found no constitutional or other legislative authority which gives power to one High Court judge to review the decisions or orders of another High Court judge. And it seems to me that whatever the formal position, the effect, in substance and reality, of what Hallchurch, J. did, amounted to review of the judgment of O'Brien-Quinn C.J. I do not say that Hallchurch,J could in no circumstances have reviewed the order of the Senior Magistrate. As already indicated, section 62 of the Magistrates' Court Act obviously gave him power to do so. What I do say is that he could not have used his review powers to reverse or set aside an order of a judge of co-ordinate jurisdiction in the same case. If that is what he did in this case, and in my view it is, then his action is without jurisdiction. If that is not what he purported to do, then he was faced with a situation at his review where the order of O'Brien-Quinn, C.J. had conferred jurisdiction on the Senior Magistrate, and if he had to review the decision taken thereafter by the Senior Magistrate, the only possible course was to do so on the basis that the jurisdiction so conferred on the Senior Magistrate was rightly conferred. If wrong, I believe there are ways other than a review by a brother judge of co-ordinate jurisdiction of testing the correctness of the learned Chief Justice's order.
The two objections to the thesis that Hallchurch, J. merely reviewed the decision of the Senior Magistrate are, firstly that in order to arrive at his decision, Hallchurch, J. had to set aside the order of O'Brien-Quinn C.J., and secondly the only

12
reason which he gave for his decision was that O'Brien-Quinn CJ. was wrong to have revived the jurisdiction of the Senior Magistrate for the purpose of hearing further evidence which might reverse the respondent's acquittal. If this was not a direct review of the decision of O'Brien-Quinn CJ., it must indirectly have given the same result. I believe that such indirect interference with the judgment or order of a judge of co-ordinate jurisdiction is equally unacceptable. Otherwise, the force of the rule against such interference would be whittled away if that which cannot be done directly were permitted if done indirectly. O'Brien-Quinn, CJ. may have been wrong in sending the case back to the Senior Magistrate. Of that, I express no opinion, because it is not necessary for me to do so in order to decide either of the questions put to us by the Attorney-General in this case. But even if he was wrong, as no High Court judge could reverse or nullify his order, the order of Hallchurch, J. in my opinion was bad in law. The first question posed by the Attorney General must, therefore, be answered in the negative.
With that answer given, I believe, the need to answer the second question addressed to us by the Attorney-General disappears.
A.N.E. AMISSAH
Judge President

13

I agree
T.A. AGUDA Judge of Appeal


I agree
L. DE VAN WINSEN Judge of Appeal


I agree
B.A. DOYLE Judge of Appeal


I agree
G. BIZOS
Judge of Appeal

GIVEN at Lobatse this 4th day ot July,1988.

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1988/9.html