Re Diamond Kazoka ((1963 - 1964) Z and NRLR 1) [1963] ZMHCNR 3 (23 March 1963)

Re DIAMOND KAZOKA (1963 - 1964) Z and NRLR 1 1963 - 1964 Z and NRLR p1 [Before the Honourable Mr. Jus�ce BLAGDEN on the 23rd March, 1963.] Flynote Non - appearance to a judgment summons - contempt of court - punishment for contempt - sec�ons 43 and 44 of the Subordinate Courts Ordinance, Cap. 4 - Order 38, rule 15 of the Subordinate Courts (Civil Jurisdic�on) Rules - sec�on 99 of the Penal Code, Cap. 6. Headnote Kazoka was summoned to appear before the Court of the Senior Resident Magistrate, Livingstone, to answer a judgment summons on the 21st December, 1962. He was properly served but failed to appear. He was then arrested, and, on appearing before the court, had no adequate reason to offer for his failure to atend on the previous occasion. The senior resident magistrate found Kazoka guilty of contempt of court and fined him £2 10s. 0d. or in default 3 days imprisonment. The ques�on canvassed on review was what powers of punishment the senior resident magistrate had in a case of contempt of this nature and whether the punishment he had imposed could be jus�fied. Held: (a) That sec�on 99 (2) of the Penal Code had no applica�on to the instant case. (b) That a magistrate's court, as a court of record, has an inherent jurisdic�on to punish for contempts commited in its face. (c) That the senior resident magistrate acted properly and within his jurisdic�on in imposing the punishment. No order made on review. Cases cited: (1) R v Almon 97 ER 94. (2) R v Lefroy (1872) LR 8 QB 134. Judgment Blagden J: This mater came before me in pursuance of the provisions of the Subordinate Courts Ordinance, Cap. 4, sec�on 41, which is in these terms: "Whenever any punishment as for a contempt of court shall be imposed by a magistrate, he shall make and keep a minute recording the facts of the offence and the extent of the punishment; and he shall, forthwith, send a copy of such minute to the High Court, which may, thereupon, without hearing any argument, vary or set aside the order of the magistrate." The facts of the case were simple: Diamond Kazoka was summoned to appear before the Senior Resident Magistrate's Court, Livingstone, to answer a judgment summons on the 21st December, 1962. He was properly served but failed to appear. He was arrested on the 27th December and brought before the court on the 28th. He had no adequate reason to offer for his failure to atend on the 21st. 1963 - 1964 Z and NRLR p2 BLAGDEN J By Order 38, rule 15, of the Subordinate Courts (Civil Jurisdic�on) Rules, it is provided that - "A person served with a judgment summons . . . shall be deemed a person duly summoned to give evidence within the meaning of sec�on forty - four of the Ordinance." The ordinance referred to is, of course, the Subordinate Courts Ordinance, Cap. 4, sec�on 44 of which deals with the failure of a person summoned to appear in the court as a witness under sec�on 43 and provides that if a person so summoned - "having reasonable no�ce of the �me and place at which he is required to atend, a�er tender of his reasonable travelling expenses to and from the subordinate court, fails to atend accordingly, and does not excuse his failure to the sa�sfac�on of the court, he shall, independently of any other liability, be guilty of a contempt of court, and may be proceeded against by warrant to compel his atendance." In the present case Diamond Kazoka was proceeded against by warrant to compel his atendance, in that, as I have already related, he was arrested on the 27th December and brought before the court on the following day. In the proceedings which took place on that day to inves�gate the cause of Kazoka's previous non- atendance the magistrate made the following findings: "I am not sa�sfied that accused has shown any good cause why he should not be found guilty. He just hasn't bothered about the judgment summons. I do find him guilty of contempt of court contrary to sec�on 99 l (b), Cap. 6, as read with sec�on 44 and Order 38, rule 15, Cap. 4, and convict him accordingly. This is the third case today of such contempt." The magistrate proceeded then and there to fine Kazoka £2 10s. 0d. or in default three days simple imprisonment. Sec�on 99 of the Penal Code deals with contempt of court. Subsec�on (1) sets out various types of contempt and paragraph (b) describes one of these as - "having been called upon to give evidence in a judicial proceeding, fails to atend . . ." The subsec�on ends by providing that a person guilty of any of the contempts specified - "is guilty of a misdemeanour, and is liable to imprisonment for six months or to a fine not exceeding £25." Subsec�on (2) of sec�on 99 provides that when certain offences of contempt, of which the present one contained in paragraph (b) is one are commited in view of the court - ". . . the court may cause the offender to be detained in custody, and at any �me before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding £20 or in default of payment to imprisonment without hard labour for one month." 1963 - 1964 Z and NRLR p3 BLAGDEN J A study of the contempts which may be punished in this summary fashion shows that with one excep�on they are all posi�ve interferences with the normal course of a judicial proceeding, and such as, by their very nature, are best dealt with on the spot. Thus they comprise such conduct as disrespec�ul behaviour towards the court or within the court precincts (paragraph (a)); refusal to be sworn or to give evidence or to answer a ques�on or produce a document or to leave the courtroom on being so ordered (paragraph (b)); and causing an obstruc�on or disturbance in the course of a judicial proceeding (paragraph (c)). The one excep�on is the offence which occurred in the present case, namely, failing to atend when called upon to give evidence in a judicial proceeding. Although this contempt was commited " in view of the court" in the sense that Kazoka's absence was plain to the view of the court, the court obviously could not comply with the provisions of subsec�on (2) requiring it to deal with the offence and impose its penalty " at any �me before the rising of the court on the same day ". Sec�on 99 (2) of the Penal Code was accordingly of no applica�on to this case, and the magistrate did not refer to it. The ques�on therefore arises as to what jurisdic�on he had to punish summarily for this par�cular contempt in this way. I have been able to find no statutory authority. Sec�on 138 of the Criminal Procedure Code which at first sight appears applicable, is not, because its opera�on is clearly confined to cases falling within Part IV of the Criminal Procedure Code - namely Criminal Inves�ga�ons. I think the answer is to be found in the inherent jurisdic�on of a court of record to punish for contempts commited in its face. A magistrate's court is a court of record - see Subordinate Courts Ordinance, Cap. 4, sec�on 11. In 1765 in an undelivered opinion in the case of The King v Almon 97 ER 94, Mr. Jus�ce Wilmot went so far as to record at page 99 that it was " a necessary incident to every court of jus�ce whether of record or not ". In The Queen v Lefroy (1872) L. R 8 Q. B. 134, Cockburn, CJ., said at page 137: "It is perfectly true that it is laid down by authority, and reason shows the correctness of the rule, that all courts of record have power to fine and imprison for any contempt commited in the face of the court; for the power is necessary for the due administra�on of jus�ce to prevent the court being interrupted." I am sa�sfied that the magistrate rightly exercised his inherent jurisdic�on to punish for the contempt commited in the face of the court in this case, and I accordingly make no order under sec�on 41 of the Subordinate Courts Ordinance, Cap. 4.