Lindo v Lopez

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Staine, J.
• Judgment Date: 05 June 1972
• Neutral Citation: BZ 1972 CA 1
• Date: 05 June 1972

Court of Appeal

Staine, J. (Ag.)

Lindo

and

Lopez

Appellant in Person

Mr. S.N. Nweke, Crown Counsel for the Respondent

Practice and Procedure - Courts — Magistrate's Courts — Evidence

Legal Profession - Solicitor

Facts: Appeal against conviction — Finding of facts — Appeal on ground (inter alia) that magistrate took extraneous matter into consideration in convicting the appellant on a charge of obstructing a police officer in the execution of his duty — Necessary for court to decide what was the effect of the magistrate so acting, if he did take extraneous matters into consideration

Facts: Appearance before Court of Appeal on his own behalf — Whether appellant was to be allowed to appear as solicitor for himself and address the court robed

Held: No evidence that magistrate so acted — Appeal dismissed.

Held: By virtue of s. 22 Supreme Court of Judicature Ordinance, Cap. 5, a member of the bar of British Honduras practices as a solicitor and a solicitor is an agent, and it followed that a person could not act as an agent for himself.

1 This is an appeal against a decision of the Court of Summary Jurisdiction for the Belize Judicial District whereby the defendant/appellant was convicted of the offence of obstructing a Police Constable in the execution of his duty, contrary to section 38 of the Police Ordinance, Chapter 59 of the laws of this country. He was ordered to pay a fine of $45.00 in default he was to serve two months imprisonment.

2 The Appeal was originally brought on two grounds, namely-

• (1) the decision could not be supported having regard to the evidence;

• (2) the decision was erroneous in point of law inasmuch as the Magistrate failed to appreciate the points of law in the charge.

3 The first ground is one permitted by paragraph (h) and the second is one permitted by paragraph (i) of section 130 of the Supreme Court of Judicature Ordinance, Chapter 5 of the Laws of British Honduras.

4 At the commencement of the hearing of the Appeal on the 5th of May, 1972, the appellant applied to the court to be allowed to amend his grounds of appeal citing section 133 of the Supreme Court of Judicature Ordinance, Chapter 5 of the Laws. The Court took the view that section 133 did not give power to allow amendment to the grounds of appeal already filed. It only gave power to the Court to allow the appellant to argue grounds of appeal other than those set forth in his notice of grounds of appeal. The appellant then changed his application and asked to be allowed to argue further grounds of appeal. These were –

• (1) That the Magistrate took extraneous matter into consideration.

5 This ground of appeal is permitted by paragraph (d) of Section 130 of Chapter 5 of the Laws. The Court drew appellant's attention to the provisions of Rule 6 Order LXXIII of the Rules of the Supreme Court, Subsidiary Legislation, which requires particulars of the matter on which he relies to be stated. The appellant then stated the extraneous matter to which he would refer to be — the Learned Magistrate took consideration of the earlier visits in arriving at his decision.

6 The appellant applied further to argue as part of the second ground of appeal that- the Magistrate misunderstood the rationes decidendi of the cases to which he referred in his reasons for decisions.

7 Having considered the matter, the Court granted permission to argue these further matters, but adjourned the hearing of the appellant to a date to be fixed, since Counsel for the respondent had had no notice of these new matters.

8 Subsequently Friday the 19th May was set as the date for the hearing.

9 When the hearing of the appeal was resumed Mr. Lindo appeared, robed as Counsel, and took his place at Counsel's table. Mr. S. N. Nweke, Counsel for the respondent made a submission to the Court and asked whether the appellant was allowed to appear as solicitor for himself and the address the Court robed. Mr. Nweke cited the Practice Note in (1961) L W.L.R page 257. This was a case where a junior member of the Bar had appeared robed before the Divisional Court to make an application on his own behalf in a criminal matter, Lord Parker, C.J. said that it was not the practice for the Court to hear a member of the Bar as Counsel on his own behalf in such a matter. The application should be made as by an applicant in person and unrobed.

10 In this country a member of the Bar practices as a Solicitor by virtue of section 22 of the Supreme Court of Judicature Ordinance, Chapter 5 of the Laws. A solicitor is an agent and it follows that a person cannot act as agent for himself. Therefore the Court ruled that the appellant was not entitled to appear before the Court robed.

11 The Court then adjourned and the appellant then appeared in Court unrobed; and the Court proceeded to hear the Appeal.

12 The appellant elected to argue first the third ground of appeal, that is, that the Magistrate took extraneous matter into consideration. He referred to the Magistrate's reasons for decision and said that the Magistrate had used the words “The facts of the present case showed and proved saliently that the defendant by going to Government House grounds 5 times to obtain facts for his newspaper and the fifth time entering the grounds and when told and pleaded with to go, refused and insisted in signing the Governor's Visitor's Book at 4:50 a.m. on 7.8.70 obstructed P.C. Lopez in the execution of his duty”. The appellant submitted that the charge according to P.C. Lopez of obstruction on the 7th of August, 1970, was because of the fifth and final visit, the Magistrate, as appellant understood it, had come to his conclusions, because of the five visits. Even if the Magistrate had said four visits instead of five, argued the appellant, the arguments would still be the same. The Magistrate had not said that by going four times or three times, the defendant showed an intention to commit an offence, and it was not open to the Court to arrive at that conclusion, having regard to what the Magistrate said. Having regard to what the Magistrate said, it showed that was part of the reason for his decision. If it were not so, argued the appellant the words could simply be struck out, and there would be no charge.

13 The appellant then referred to the evidence of Assistant Superintendent Fred Gill at page 22 of the record of the proceedings before the Summary Court. He argued that this evidence showed that there was no obstruction on the occasion of the first, because there had been no entry into the Government House grounds. Assistant Superintendent of Police Fred Gill had spoken to the defendant, and the defendant had driven off immediately afterwards. According to the evidence of A.I.P. Grant and others the defendant had left on the four previous occasions when requested to do so. The appellant submitted that if the Magistrate used the four previous visits in arriving at his decision he would then have used matters which were extraneous to the charge.

14 The appellant then dealt with the first ground of appeal, namely that the decision could not be supported having regard to the evidence. The appellant argued that if needed the Magistrate had taken extraneous matters into consideration in arriving at his decision, then equally such matters could not support his decision. He submitted that according to P.C. Lopez, Lopez's evidence was that he was obstructed in the execution of his duty by the defendant. The appellant argued that Lopez had originally charged him with loitering. This charge was subsequently withdrawn and substituted with the one of obstruction. The appellant argued that the substitution of the charge was an after thought. He further submitted that if P.C. Lopez honestly believed that he had been obstructed in the execution of his duty, he would have charged the appellant with obstruction from the very beginning.

15 Continuing the appellant argued that P.C. Lopez was on sentry duty as sentry No. 1A and P.C. Noralez was sentry No. 1. The duty of the sentry No. 1 was to remain at or near the gate and the duty of sentry No. 1A was to patrol. P.C. Noralez, submitted the appellant the appellant, was to remain at the gate, and P.C. Lopez, was to walk around. According to the evidence of P.C. Lopez, he was to patrol the whole of the grounds at Government House. When the appellant was talking to P.C. Noralez, P.C. Lopez was walking towards Government House and was somewhere near the house. P.C. Lopez turned back because he heard a noise coming from the direction where P.C. Noralez and the appellant were conversing. Not only was P.C. Noralez standing near the gate submitted the appellant, but P.C. Noralez was armed with a gun.

16 The appellant submitted that since it was the duty of P.C. Lopez to patrol the grounds, it could not be said that he was obstructed in the performance of this duty because he chose to intervene in what was essentially P.C. Noralez's duty. The appellant further argued that the evidence was that there were two other police officers equal in rank to P.C. Lopez, and one senior officer, namely, Assistant Inspector of Police Grant. There was no evidence that either Assistant Inspector of Police Grant of P.C. Noralez had requested that assistance of P.C. Lopez. There was...