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Colonial Cases

Esnouf v. Ackroyd, 1899

[contempt of court]

Esnouf v. Ackroyd

Supreme Court of Mauritius
Delapaye C.J., Moncrieff and Smith JJ, 1899
Source: Decisions of the Supreme Court of Mauritius, 1899

https://archive.org/stream/decisionssuprem01courgoog#page/n1/mode/2up

 

IN THE SUPREME COURT

CASE STATED - ORD. 23 OF 1888, ART. 113 - STAT. 20 & 21 VICT. CAP. 43 - INFORMATION HEARD AND DETERMINED - CONTEMPT OF COURT - ORD. 21 OD 1888, ART. 17 - POWER OF MAGISTRATE - JURISDICTION OF THE SUPREME COURT.

   A barrister condemned to imprisonment for contempt of Court moved the court, on a case stated by the magistrate, to set aside the decision.

   Held that:-

1o. Ord. 23 of 1888, Art. 113, under which a magistrate or Bench may be called upon to state a case in which an Information has been heard and determined. (Difference between the Article sand sect: 2 of Stat: 20 and 21 Vict. Capt. 43 - 1857.)

2o. A Magistrate who condemns a person for contempt of Court under Ord. 21 of 1888, art. 17, does not hear and determine an Information and should not therefore state a case for the opinion of the Supreme Court under the said Article 113.

3o. Contempt of Court being an offence of a criminal nature, the fact that a Magistrate has stated a case where he had no power to do so, cannot clothe the Supreme Court with a jurisdiction which it does not possess.

   The Court refused to entertain the case.

ESNOUF, - Appellant and ACKROYD, - Respondent.

Before

His Honor L. V. DELAPAYE, - Chief Judge.

His Honor F. C. Moncrieff, - Puisne Judge

and

His Honor Oliver Smith, - Puisne Judge.

The Hon. W. Newton, Q.C., - Counsel for appellant.

Mr. Henry Breton, - Attorney for the same.

23RD March 1899

THE JUDGMENT OF THE COURT WAS  DELIVERED BY MONCRIEFF J.

Record No. 694.

   On the 23rd of February, 1899, Mr. Ackroyd, the District Magistrate for the 2nd Division of Port Louis, gave judgment in a matter in which Mr. Esnouf, barrister-at-law, appeared for one of the parties.  Mr. Esnouf having made use of certain unbecoming expressions, the Magistrate called upon him to withdraw then.  This Mr. Esnouf refused to do, although, according to the case before us, he was afforded a dull opportunity of doing so.  The Magistrate, thereupon, sentenced him to undergo one day's imprisonment for contempt of Court, under Article 17 of Ordinance 21 of 1888.  Eventually, however, on the application of the Honourable William Newton, Q.C., who appeared for Mr. Esnouf, the Magistrate agreed to state for the opinion of the Supreme Court the case which forms part of the record.

   *h a notice, dated the 23rd of February, 1899, and served upon the magistrate, Mr. Esnouf stated that he impugned the Magistrate's order on the ground that "there was no proof that he had committed a contempt of Court, and, at any rate, he could not lawfully be punished  for a contempt of Court, which is a criminal offence, unless the specific offence charged against him were distinctly stated, and an opportunity of answering it given to him - which was not done in the present action."

   The matter was argued in this Court on the 20th of March, when Mr. Newton, who appeared for Mr. Esnouf, withdrew the first ground mentioned in the above notice, admitting that, the offence being of a criminal nature, the point could not be reviewed by the Supreme Court.  He,. However, argued that the second point, and argued moreover, as a third ground of objection to the Magistrate's order, that the Magistrate had not complied with the provisions of Article 17 of ordinance 21 of 1888.

   The Magistrate was not represented by counsel, and it became necessary for the Court to consider whether the case stated by the magistrate could properly be entertained by it.

   Article 113 of ordinance 23 of 1888 provides that:-

"After the hearing and determination by a Magistrate or Bench of an Information either party to the proceedings may, if dissatisfied with the judgment as being erroneous in point of law, apply in writing, within three days after the same, to the Magistrate of bench to state or sign a case." 

The remainder of the Article is not material.

   Thus provision is founded upon Section 2 of 20 and 21 Vict. C. 43 (1857), which begins with the following words:-

After the hearing and determination by a Justice of Justices of the Peace of any information or complaint, which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceedings before the said Justice or Justices may, if dissatisfied with the  said determination as being erroneous in  point of law, apply, &c., &c.

   In borrowing this section our Legislature has omitted the word "complaint" and the restriction of the provision to cases which might be summarily dealt with.  Our article is confined to information's which have been heard and determined by a Magistrate or Bench.  The question then arises:  did the Magistrate, in dealing with the matter, hear and determine an information?  We think not.  He proceeded under Auricle 17 of 21 of 1888; and what he heard and determined (if he did hear and determine) was certainly not an information.  That being so, he should not have stated a case for out opinion.  The incident does not fall within the terms of Article 1123 of 23 of 1888, which confers upon the magistrates power to state a case for the opinion of the Supreme Court - not can we avail ourselves of the fact that the Magistrate has stated a case, which is now actually before us.  The offence for which Mr. Esnouf was committed by the Magistrate is of a criminal nature, and a mistake made by the Magistrate as to his power to state a case cannot clothe the Supreme Court with a jurisdiction which it does not possess.  We think that we have no power to entertain the case which has been stated for out opinion.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School