REPUBLIC v. HALF ASSINI DISTRICT COURT MAGISTRATE GRADE II; EX PARTE WHAJAH

JUDGMENT OF EDUSEI J.

This is an application by Morkeh Whajah for an order of certiorari to remove into this court the order made by the respondent for the purpose of quashing it. It involves the correct application of [p.782] section 12 of the Lunatic Asylums Ordinance, Cap. 79 (1951 Rev.). section 12 is couched in the following words:

"12. Any Magistrate upon the information on oath of any informant to the effect that the informant has good cause to suspect and believe, and does suspect and believe some person within the district of such Magistrate to be a lunatic and a proper subject of confinement, may in any place which he deems convenient examine such suspected person, and in the same place or elsewhere may hold an enquiry as to the state of mind of such suspected person. For the purpose of such enquiry, the Magistrate shall have the same power of summoning witnesses and administering oaths as in a summary trial. Any person so suspected of being a lunatic may, by warrant under the hand of the Magistrate, be detained for observation in such place of custody as the Magistrate shall think fit for any period not exceeding one month."

The jurisdiction of the magistrate emanates from an information upon oath of an informant that the informant has good cause to suspect and believe that some person within his jurisdiction is a lunatic and a proper subject of confinement. It then becomes his duty to hold an inquiry to determine the state of mind of such suspected person. The magistrate in accordance with section 13 has to appoint a medical officer to examine the suspected person.

The applicant in his affidavit has made the serious allegation that the magistrate did not hold any such inquiry in terms of section 12 of Cap. 79, and it is strange to observe that the respondent never filed any affidavit refuting this rather serious allegation of breach of judicial duty. The only record available to the court is the order made by the magistrate; there is no record of the proceedings about the inquiry.

It is my view that in the face of such an allegation amounting to an abandonment of judicial function on the part of the magistrate it became encumbent on him to swear to an affidavit, if an inquiry was held, refuting the allegation and exhibiting a copy of the proceedings relating to the inquiry.

Section 14 of Cap. 79 states:

"14. Where upon any such examination and enquiry as aforesaid it appears to the Magistrate that the suspected person is a lunatic and