Re Danies (Ricardo)
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Singh, J. |
| Judgment Date | 10 November 1988 |
| Neutral Citation | VC 1988 HC 8 |
| Court | High Court (Saint Vincent) |
| Docket Number | No. 456 of 1988 |
| Date | 10 November 1988 |
High Court
Singh, J.
No. 456 of 1988
Mr. Arthur Williams instructed by Mr. Hansraj Matadial for the applicant.
Mr. O.R. Sylvester Q.C., Mr. Mark Williams with him for the Magistrate.
Miss Euchrista St. Hilaire, Crown Counsel for the Commissioner of Police and the Clerk of the Magistrate's Court.
Jurisdiction - Magistrates Court — Limitation on right to hear cases depending on where offences committed in St. Vincent — Whether magistrate had jurisdiction to sentence applicant to prison..
On 17th October, 1988 the applicant Ricardo Danies a citizen of Columbia, pleaded guilty to two charges for the offence of being in possession of dangerous drugs, contrary to s 10 of the Dangerous Drugs Act, No.21 of 1937 as amended by Act No. 30 of 1977: These offences were allegedly committed within the Third Magisterial District of St. Vincent and the Grenadines.
These guilty pleas were taken and the matters heard and determined by a magistrate sitting in the First Magisterial District. The matters were not heard in the Third Magisterial District. The magistrate of the First Managerial District, Moet Malcolm, having heard the matters sentenced the applicant to imprisonment for two years on each charge to run concurrently.
These are two applications by Ricardo Danies for orders of certiorari to remove into the High Court for the purpose of them being quashed the aforesaid two convictions and/or orders made by the aforesaid magistrate. At the commencement of the hearing of these matters, with the consent of all parties the matters were consolidated and ordered to be heard as one.
There is only one ground upon which this relief is sought and that is that the said convictions and/or orders were wrong and/or illegal in law, having been made without jurisdiction.
The applicant particularises this ground by averring that the offences with which the said Ricardo Danies was charged, were allegedly committed within the Third Magisterial District and as such when he was tried in the First Magisterial District the magistrate of the First Magisterial District had no jurisdiction to try him, the point of jurisdiction having been raised before the aforesaid magistrate.
At the commencement of the hearing of this matter learned Q.C. Mr. Othniel Sylvester for the magistrate with the leave of the court, made certain objections in limine.
Mr. Sylvester first submitted that the notice of motion in both matters is defective in that it does not bear the name as respondent, of the other party to the proceedings before the magistrate, i.e. Randolph Toussaint, he being the complainant in the proceedings before the magistrate. Mr. Sylvester submits that it is necessary that the title to the motion should name Randolph Toussaint as a party to these proceedings.
Mr. Williams in reply submitted that the only proper party that should be before the court is the magistrate as it is his order of conviction that is being impeached.
Having perused these proceedings and the law relative to this objection I will overrule this objection. My view is that even though Mr. Sylvester's submission is what may be the true legal, position that is followed in other courts the form adopted and used by the applicant to these proceedings is the form as is prescribed for these proceedings in our Rules of the Supreme Court (Revision), 1970 at p. 257, rules made by the learned Chief Justice and two other judges of the West Indies Associated States Supreme Court on 20th April, 1970. For the applicant to have come otherwise would have put him in deviation of this prescribed form.
In any event, even if Mr. Sylvester's submission is correct, I rule it would not be fatal to these proceedings by reason of O. 15 R 6 (1) of the aforesaid rules which provides that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party.
Apart from this, my view of the law is that on the hearing of this motion any person who desires to be heard in opposition to the motion and who appears to the court to be a proper person to be heard, shall be heard, even in the extremest of cases where he might not even have been served with the notice of the motion. In this case, at the stage when the order granting leave was being made, the court ordered that the Commissioner of Police and the Clerk of court be served with the motion and there is an affidavit of service on record showing compliance with this order. As a matter of fact both the Commissioner of Police and the Clerk of the court are legally represented in these proceedings by counsel other than Mr. Sylvester. To my mind, if in fact there was any merit I this submission, these two persons not being represented by Mr. Sylvester, I would have thought that such a submission would have come from their legal adviser and I query the locus standi of Mr. Sylvester when he purports to make such a submission especially when he is not saying that his client, the magistrate, is not properly before the court.
The second objection taken by Mr. Sylvester is that the affidavit of service of the motion must be filed before the motion is listed for hearing as provided for by O. 44 R (3) (4) of the aforesaid rules. The record shows that such affidavit was filed after the motion was listed. My view is that such an affidavit could not have been filed before the motion was entered for hearing as the hearing date was fixed by the court upon the granting of the application for leave to bring these proceedings, Mr. Matadial, who applied for such leave, having satisfied the court that this was a matter of some urgency thereby causing the court to abridge the time prescribed in O. 44 R 3 (1) of the aforesaid rules. This court can therefore find no merit in this submission. The record shows that all the interested parties were served with these proceedings and they are all legally represented at this hearing. This submission is accordingly overruled.
I also overrule Mr. Sylvester's third objection that the conviction and order of the magistrate were not exhibited as the record shows to the contrary.
If I am wrong on any aspect of my ruling on these first two objections then I hold that the defects complained of are defects only in form and not in substance and I treat them as mere irregularities which would not nullify these proceedings or any step taken thereon (See O. 2 R1 (1) of aforesaid rules). In coming to this conclusion I do not disagree with the ruling of Worrell, J. in the Barbados High Court in the matter of Re Browne [1977] 30 W.I.R 29. In that case the defect complained of was the failure of the applicant to first obtain the leave of the court before launching certiorari proceedings. I agree that such a defect would be fatal to the proceedings.
The fourth submission of learned Queen's Counsel is that prerogative orders being orders of a discretionary nature, where there is suitable alternative remedy available such orders are not to be granted. He submits there was the alternative remedy by way of appeal available to this applicant. This is not disputed.
In support of this submission Mr. Sylvester referred the court to David Foulkes on ‘Administrative Law’, 5th Edition, at p. 288 where the learned author writes as follows: –
“Where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains this court should in my judgment as a rule allow the appellate machinery to take its course. The prerogative orders form the great residual jurisdiction of this court whereby the court supervises the work of the inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere.”
I agree with this learning of the law. I would also refer to the learning on this subject as is set out in De Smith's Judicial Review of Administrative Actions 4th Ed. P. 425 in which the learned author sets out certain acceptable propositions on the principles that ought to regulate the exercise of judicial discretion in a matter of this nature when alternative remedies are available.
My understanding of these principles is that a court ought not to refuse certiorari because of alternative remedies other than appeal unless it is clearly satisfied that those other remedies are more appropriate and, where the alternative remedy is the statutory right of appeal, if the applicant claims to be aggrieved by a decision made without jurisdiction or in excess of jurisdiction or in breach of the rules of natural justice, the fact that he has not taken advantage of such a statutory right is irrelevant. But, it the applicant is aggrieved by a decision exhibiting an error of law not going to jurisdiction recourse to appeal is the appropriate remedy and he may be refused certiorari for this reason. Also, if the application for certiorari is made while an appeal is pending, an award of certiorari may still be justified if the questions to be raised on appeal go to merits of the case and the application for certiorari is based on jurisdictional grounds or breach of natural justice not going to the merits.
The procedure followed in this matter was that the applicant having been aggrieved at the magistrate's decision in trying his case in the wrong jurisdiction and sentencing him to imprisonment for two years on each charge filed notices of appeal against those convictions.
The magistrate then by letter required of the applicant security the due prosecution of the said appeals in the sum of $100,000. cash. The...
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