HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 25 of 1997

ALFRED ARANHA & OTRS

-V-

ANTHONY CARMEL

High Court of Solomon Islands
(Palmer J.)

Hearing: 1st October, 1997
Judgment: 17th October, 1997

C. Ashley for the Appellants
A. Nori for the Respondents
R. Talasasa for the Crown

PALMER J.: 	This is an appeal against the ruling of the Magistrates’ Court that the three Appellants be bound over in the sum of $200.00 each to keep the peace and be of good behaviour for a period of 12 months.

This case had been instituted by learned Counsel Mr Nori, on the instructions of the Respondent under sections 30, 34, and 39 of the Criminal Procedure Code ("CPC").

In accordance with section 30, Mr Nori filed an ex parte summons in the Magistrates’ Court dated 17th December 1996, seeking the following restraining orders:

"(1) 	the Respondents, their agents or servants be restrained from approaching or entering the house of the Applicant at West Kolaa Ridge in Honiara and from threatening or swearing at him or at members of his family.

(2) 	the Respondents, their agents or servants be restrained from making any telephone calls to the Applicant or members of his family, either at work or at home.

(3) 	Narayan Satya may only enter the residence for inspection subject to the terms of the High Court Order dated 19th September, 1996 (by giving 4 days notice) but shall not be accompanied by anyone else other than his wife or children." 

In support three affidavits were filed; the affidavit of Anthony Carmel dated 16th December, 1996; affidavit of Lazarus Vakato dated 17th December, 1996; and the affidavit of Lawrence Makili dated 19th December, 1996. 

The ex parte summons was heard by Magistrate Maina on 20th December, 1996 and orders made inter alia, for the issue of a summons requiring the three Appellants to appear on the next adjournment date, 27th January, 1997. 

On the said date, Mr Ashley appeared on behalf of the three Appellants, though the Appellants did not appear in person. Mr Ashley objected to the terms of the interim order but this was dismissed. The matter was then adjourned to 4th March, 1997, to enable service of the summons to show cause, on the Respondents (Appellants).

On that date, the inquiry was commenced and evidence taken from the Respondents’ witnesses. Subsequently, orders were made for the three Appellants to enter into a recognisance to keep the peace and be of good behaviour for a period of twelve months in the sum of $200.00 each.

Section 34 of the Criminal Procedure Code provides:

"When a Magistrate acting under section 30, 31, 32 or 33 deems it necessary to require any person to show cause under such section, he shall make an order in writing setting forth-

(a) 	the substance of the information received;
(b) 	the amount of the recognisance;
(c) 	the term for which it is to be in force; and
(d) 	the number, character and class of sureties, if any, 	required." (Emphasis added)

The above section requires a Magistrate to make an order in writing setting out the matters listed from paragraphs (a) to (d) where the following conditions are fulfilled:

(i)	when he is acting under any of sections 30, 31, 32 or 33;

(ii)	when he deems it necessary to require any person to show cause under any of those sections.

The two initial questions to determine therefore are: (i) whether the learned Magistrate had acted under any of sections 30, 31, 32 or 33; and (ii) whether he deemed it necessary to require any person to show cause under any of those sections.

As to the first question, the facts showed clearly that the application to show cause had been initiated under section 30 of the CPC [ (i) see ex parte summons dated 17th December, 1997- it was titled "In the matter of section 30 of the Criminal Procedure Code"; (ii) also see letter accompanying ex parte summons dated 17th December, 1997- it read "I enclose a summons, ex parte summons . . . to secure an order under section 30 of the Criminal Procedure Code."; and see interim order of the learned Magistrate dated 20th December, 1997- paragraph (1) read as follows: "a summons to show cause be issued against the Respondents under section 30 of the Criminal Procedure Code"]. 

It was clear beyond doubt therefore that when Magistrate Maina issued the interim order on 20th December, 1997, he was acting under section 30 of the CPC.

As to the second question, it is again clear that Magistrate Maina deemed it necessary to require the three Appellants to show cause under section 30 of the CPC (see the terms of paragraph (1) of the interim order dated 20th December, 1996). Magistrate Laurere also deemed it necessary to require that a summons to show cause be issued when he took carriage of the matter on 27th January, 1997. Part of his ruling given on the said date read:

"Summons to show cause be served by the applicant through Mr A. Nori’s Office. This matter is adjourned to the 4th of March 1996 at 09.00 hrs for hearing."

In those very clear circumstances, the learned Magistrates were obliged to make an order in writing in the terms set out in paragraphs (a) to (d) of section 34, and to have them served on the Appellants together with the summons to show cause as required by section 37.

Did the learned Magistrates issue any orders pursuant to section 34? The evidence as borne out in the record of proceedings and the court file did not show that any order had even been made, and therefore could not have been served on the Appellants prior to the inquiry. 

Mr Talasasa picked on this point with vigour and argued that because there had been non-compliance with sections 34 and 37 of the CPC that this Court should intervene under section 47, have the orders of the learned Magistrate set aside and remit the case to the Magistrates Court for fresh inquiries to be conducted, after the procedural requirements had been complied with.

Mr Nori on the other hand submits that the requirements of section 34 are not mandatory. He argues that the words "deems it necessary" give a discretion to the Magistrate whether to issue an order under section 34 or not. If he deems it not necessary to issue an order under section 34, then he can still issue an order under section 40, and that is what he had done in this case.

 With respect, I must disagree. I have already pointed out how section 34 requires that an order must be issued where the two conditions stipulated in that section have been fulfilled. There is no discretion involved. The requirement to make an order under section 34 arises from the decision to act under any of sections 30, 31, 32 or 33, and where the Magistrate deems it necessary to require a person to show cause under such section. The term "deems it necessary" refers to the requirement to show cause. If the learned Magistrate deems it necessary to show cause, (provided of-course that the Magistrate is acting under any of sections 30, 31, 32 or 33), then he shall make an order in writing. That term does not refer to the decision whether to make an order or not. The Magistrate does not have a discretion whether to make an order or not. If the Magistrate does not deem it necessary to require any person to show cause under section 30, then that is the end of the matter. He doesn’t have to issue any orders under section 34 and need take no further action on the matter. On the other hand, if he deems it necessary to require a person to show cause then he must make an order.

It was incorrect therefore for Mr Nori to argue that if the learned Magistrate decides not to issue an order under section 34 that he can issue an order under section 40. The learned Magistrate does not have a discretion on whether he can issue an order or not. His power is dictated by the conditions set out in section 34. Further, it should be pointed out that section 40 relates to the orders that the Magistrate can make after an inquiry had been proved whereas section 34 relates to an order made prior to an inquiry. In the facts of this case, it is clear no order prior to an inquiry had been issued by the learned Magistrate. That was inconsistent with the requirements of section 34.

This raises the question posed in the submissions of Mr Talasasa, whether the non-compliance with sections 34 and 37 rendered the subsequent proceedings a nullity such that this court should intervene in any event under section 47 of the CPC. In order to answer this question, regard must be had to the provisions of section 39(1) of the CPC.

"When an order under section 34 has been read or explained under section 35 to a person present in court, or when any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under section 36, the Magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary." 

The above provision envisages the following situations:

(i) that if a person is present in court, the order issued under section 34 should have been read or explained to him prior to an inquiry; (this is required by section 35);

(ii) that where a person is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under section 36, that the order issued under section 34 should also have been served under section 37, prior to an inquiry.

[Section 37 reads: "Every summons or warrant issued under section 36 shall be accompanied by a copy of the order made under section 34, and . . . shall be delivered by the officer serving or executing such summons . . . ." ]

By the time the Magistrate embarks on an inquiry therefore under section 39(1) of the CPC, the terms of the order under section 34 should have been brought to the attention of the person(s) in court. Sections 35, 36, 37 and 39 bear this requirement out very clearly. What happens then where no order had been issued and therefore served on the persons before the court as was the case here?

It is my respectful view that such omission must be viewed as a fundamental procedural defect or irregularity which nullifies any inquiry entered into. The purpose of sections 35 and 37 is to ensure that such a person(s) is made aware of the matters he has been brought before court and given opportunity to defend himself. This is consistent with the rights not to incriminate himself, and the right to defend himself according to law as provided for under section 10 of the Constitution.

In the circumstances of this case therefore, the inquiry must be deemed irregular and without authority, and subsequently the orders entered into should be set aside. It only remains to be pointed out that the orders of the learned Magistrate have been set aside on procedural grounds and not on merit. It is unnecessary therefore to go into the grounds of appeal which raise issues on the merits of the inquiry. The appropriate orders of this Court accordingly should read as follows:

1. Appeal upheld but on procedural grounds.

2. Set aside orders of the Magistrates’ Court.

3. 	Remit application to the Magistrates’ Court for re-issue of a summons to show cause and for issue of orders under section 34 and serve as provided by sections 36 and 37 of the CPC. The matter can be heard by the same or different Magistrate.

4. No order for costs.

THE COURT.