Kennedy v Latchman

• Jurisdiction: Trinidad & Tobago
• Judge: Ventour, J.
• Judgment Date: 09 October 2003
• Neutral Citation: TT 2003 HC 113
• Docket Number: H.C.A. No. 653 of 2000
• Court: High Court (Trinidad and Tobago)
• Date: 09 October 2003

High Court

Ventour, J.

H.C.A. No. 653 of 2000

Kennedy

and

Latchman

Appearances:

Mr. J. Mabota for the applicant.

Ms. K. Fournillier for the respondent.

Administrative Law - Judicial review — The justice of the peace allowed proceedings to be instituted by the complainant involving more than one offence contrary to s.39(4) of the Summary Court's Act — Justice of the Peace's error not fatal enough to nullify the complaint — No right of action for damages accrued for breach of the Act or in tort — Motion dismissed.

Ventour, J.

THE RELIEFS SOUGHT BY THE APPLICANT:

1 By Notice of Motion filed on 100 May, 2000 the applicant seeks by way of judicial review the following relief as set out in the statement filed on 21st March, 2000:

• (a) A declaration that the action of Y. Lachman, Justice of the Peace, attached to the Chaguanas Magistrate's Court in accepting a complaint from Police Constable Joel Sheppard No.6960 against the applicant for an offence of unlawfully assaulting and beating one Horace Stewart on 21st December, 1989 at Lange Park, contrary to section 4 of the Summary Offences Act, Chap. 11:02 was ultra vires the Summary Court's Act, Chap. 4:20;

• (b) A declaration that the said action of Y. Lachman, Justice of the Peace was unlawful;

• (c) A declaration that the said complaint is null and void;

• (d) A declaration that the decision of Her Worship Ms. Deborah Quintyne attached to the Chaguanas Magistrate's Court made sometime on or about the 18th January, 2000 to proceed with the hearing of the said complaint is not within her jurisdiction as a magistrate and is unlawful;

• (e) An Order of Prohibition directed to Her Worship Ms. Deborah Quintyne aforesaid, to prevent her from proceeding with the hearing of the said complaint;

• (f) Compensation or damages for pecuniary losses encountered by the applicant by reason of the unlawful action of the Justice of the Peace Y. Lachman in accepting the said complaint;

• (g) Costs;

• (h) Any other relief.

THE AFFIDAVIT EVIDENCE:

2 In support of his application the applicant filed his principal affidavit of 21st March, 2000 and a supplemental affidavit on 14th April, 2000. The second named respondent filed an affidavit on 30th January, 2001 to which the applicant responded by affidavit filed on 11th July, 2001. No affidavits were filed by the first named Defendant or on behalf of the third named respondent.

3 A review of evidence before the Court reveals that there are no material factual differences between the parties which would require a resolution by the Court. The issues that arise for determination are essentially legal issues but it would still be necessary to set out briefly the material facts which have given rise to those issues.

4 On or around 6th June, 1990 a complaint without oath and numbered 1979 of 1990 was filed in the Chaguanas Magistrates Court against the applicant by Police Constable Joel Sheppard. The complaint alleges that the applicant did, on 20th December, 1989 at Lange Park Chaguanas, in the county of Caroni, unlawfully assault and beat Horace Stewart, contrary to section 4 of the Summary Offences Act, Chap. 11:02.

5 The complaint was heard and determined at the Magistrate's Court and the applicant was found guilty of the offence as charged. He was reprimanded and discharged and ordered to pay compensation to the virtual complainant in the sum of $150.00 and in default serve one month simple imprisonment. The time allowed for payment was three days. The applicant appealed the decision of the magistrate and sometime around February 1997 the Court of Appeal allowed the appeal, quashed the decision of the magistrate and ordered that there be a re-trial of the complaint before another magistrate.

6 It was not until the 18th day of January, 2000 that the applicant appeared before the second named respondent at the Chaguanas Magistrate's Court for the re-trial as ordered by the Appeal Court. In his affidavit filed on 21st March, 2000 the applicant said that he made the following preliminary submissions when the matter was called before the presiding magistrate (the second named respondent herein) on 18th January, 2000:

• (i) that the learned magistrate had no jurisdiction to hear the complaint in its present form for the following reasons;

  • (a) the complaint was laid under section 4 of the Summary Offences Act, Chap.11:02 which gave no authority to the police to lay such a charge; he argued that according to that section the charge must be laid by the aggrieved party.

    In support of this submission the applicant said that he referred the learned magistrate to the authorities of DPP v. Little [1992] 1 All E.R. 299 and Nicholas v. Booth (1888) 52 PP 662 DC.

  • (b) the complaint as laid was bad for duplicity. The applicant’ again relied on the case of DPP v. Little (supra) in support of his submission.

7 The applicant further testified that the learned Magistrate disagreed with his submissions and indicated to him that he was wasting the Court's time, because in any event, she had the power to amend the complaint but he disagreed contending that the complaint could not be amended after a period of nine years.

8 The affidavit evidence of the second named respondent does not depart in any material way from the evidence of the applicant except to say that the learned Magistrate denied that the applicant quoted any legal authorities to support his submissions. In fact, her evidence is that the applicant did indicate that he is being represented by counsel (who was not present in Court at the time) and she expressed the view that such legal submissions would be more effectively articulated by the applicant's attorney at law. The Magistrate indicated to the applicant that she was not prepared to dismiss the complaint based on his legal submissions but that she would be willing to hear arguments from his counsel. There is some disagreement as to whether the applicant had said to the Court that he was represented by counsel but nothing really turns on the issue having regard to the legal issues identified by counsel for the respondent for determination by the Court.

THE ISSUES FOR DETERMINATION:

9 The following issues have been identified for determination by the Court by counsel for the respondent:

• (i) whether the Justice of the Peace (Y. Lachman) acted ultra vires the provisions of the Summary Court's Act, Chap. 4:20 (the Act);

• (ii) if his action was ultra vires the Act is the complaint null and void;

• (iii) is it within the learned Magistrate's jurisdiction to hear and determine the complaint in its present form;

• (iv) is the applicant entitled to compensation or damages for pecuniary loss suffered as a result of the actions of the Justice of the Peace.

ISSUES 1 AND 2:

10 Having regard to the facts of this case I consider it convenient to determine issues 1 and 2 together. Did the Justice of the Peace act ultra vires the provisions of the Act and so is the complaint rendered null and void for that purpose. Section 33(1) of the Act states: “Every proceeding in the Court for the obtaining of an Order against any person in respect of a summary offence… shall be instituted by a complaint made before a Magistrate or Justice.”

11 That sub section of the Act is, in my respectful view, very clear. It talks about the method of instituting proceedings in the Magistrate's Court in respect of a summary offence and it says that such proceedings can only be instituted by a complaint made before a Magistrate or a Justice of the Peace.

12 However section 39 (4) of the Act states that any such complaint is limited to one offence only. The sub section states: “Every such complaint shall be for one offence only, but such complaint shall not be avoided by describing the offence or any material fact relating thereto in alternative words according to the language of the written law constituting such an offence.”

13 It has been admitted by counsel for the respondents that the complaint made before the Justice of the Peace charging the applicant with unlawfully assaulting and beating one Horace Stewart on 21st day of December, 1989 at Lange Park, Chaguanas violates section 39(4) of the Act. The complaint as formulated highlights two distinct offences that is, assault and battery. It was Chief Justice Lord Lane who, at page 203 in the case of Mansfield Justices exp. Thurley [1985] 1 All E.R. 193, explains the offences of assault and battery in the following manner: “Assault is an act by which the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful violence. There is no need for it to proceed to physical contact. If it does it is an assault and a battery. Assault is a crime independent of battery and it is important to remember that fact.”

14 Lord Lane's...