Oddo Fungareza Meets v. R., Crim. App. 504-D-69, 10/9/69, Georges C. J.

Oddo Fungareza Meets v. R., Crim. App. 504-D-69, 10/9/69, Georges C. J.

Appellant was convicted of wrongful confinement c/s 253, Penal Code. The complainant, one Ahmed Mohamed, had been arrested and placed in the Primary Court lock-up for 3 days on the appellant’s instructions, which were based on his suspicions that Ahmed was trading without a license. The appellant was District Executive Officer and claimed to have acted according to s. 43 of the Magistrates Courts Act, Cap. 537, in his capacity as an ex-officio Justice of the Peace in the absence of the District Magistrate, who was away at the time. No charge was ever brought against Ahmed who was released on appellant’s further instructions.

Held: (1) “The Magistrates’ Court Act ……. Section 47 provides: - “A Justice of the Peace may arrest or may order any person to arrest any person who in his view commits a cognizable offence.” The power is exercisable whether or not there is a magistrate in the District …. The expression “cognizable offence” is defined in the Criminal Procedure Code Cap. 20 as “an offence for which a police officer may, in accordance with the first schedule hereto or under any law for the time being in force, arrest without a warrant.” The offence of trading without a licence is not specifically listed in the first schedule. It falls, however, under the general classification in Division X Part B which deals with “Offences under Laws other than the Penal Code.” this provides that where the offence is punishable with imprisonment for less than a year or with a fine only a policeman may not arrest the offender without a warrant. The penalty provided for trading without a licence c/s 3 of the Trades Licensing Ordinance Cap. 208 is “a fine not exceeding five hundred shillings” and “a further fine of twenty shillings for each day or part of a day subsequent to conviction during which the contravention continues.” The offence which Ahmed may have committed was not a cognizable offence and the appellant would not have had the power to arrest him without a warrant – even if it could be established that he had committed the offence.” (2) “The appellant appears to be justifying the arrest not under section 47 but under section 50(b). The authorizes a Justice of the Peace to – “remand in custody any person arrested with or without a warrant for a reasonable time not exceeding 7 days.” It may well be that this section cannot in any event cover the facts of this case since the cause of the unlawful confinement was the appellant’s order to the messenger to arrest without a warrant a person who had not committed any offence for which arrest without a warrant was permissible. Even if it could apply it is not available to the

appellant in the circumstances of this case. There is a proviso to section 30 (b) which reads as follows: - “A justice shall not remand any person in custody unless case file is, or shall have been, opened for the matter and a charge is, or shall have been drawn up and signed by a magistrate, justice or police officer ….. The power to remand cannot be exercised unless the conditions laid down in this proviso are fulfilled. In this case no case file was opened, nor was any charge signed either by the appellant, or a magistrate or a police officer. The fact that the court documents were under lock and key and unavailable, cannot be regarded as an excuse for non-compliance with this proviso ….. Any blank sheet of paper could be used to set out the particulars of the offence as required under the proviso and this could be signed by the appropriate officer……. The appellant’s failure to obey the rules laid down in the Ordinance as a pre-condition to his exercise of this power to remand, makes his use of that power unlawful.” (3) “I have also considered whether or not the appellant can claim immunity by reason of section 16 of the Penal Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions. …….” In some circumstances a justice of the peace does act as a judicial officer. In others his functions are executive rather than judicial. In this case involving the arrest of an alleged offender without a warrant, his functions are executive rather than judicial and accordingly the immunity provided by section 18 does not avail. Accordingly the appeal against conviction is dismissed.”