CULLINAN, J.S.: I have had the advantage of reading the judgment just delivered by the learned President of the court and wish to say that I agree with all that he has said therein. There is clear statutory provision for reference by a subordinate court to the High Court under art. 29 (3) of the Constitution, where the issue of the alleged contravention of arts. 13 to 27 arises in a subordinate court - see for example the case of Patel v Attorney-General (1) at p. 103. I cannot, however, in any research find any statutory provision enabling the High Court to make a reference to the Supreme Court. When the Rhodesian Court of Appeal Act and the Ordinance by the same title were introduced in Southern and Northern Rhodesia, respectively in 1938, both enactments, whose provisions for the main p158 part were identical, contained a provision enabling the Court of Appeal to request the High Court to state a question of law, that is, where an appeal before the Court of Appeal involved a question of law alone. That provision conferred powers on the Court of Appeal, not on the High Court, that is, where the Court of Appeal was already seized of a criminal appeal from the High Court. The provision was repeated under s. 21 of the Federal Supreme Court Act No. 11 of 1955, and again under s. 21 of the Court of Appeal for Northern Rhodesia Ordinance No. 52 of 1964. Section 20 of our Supreme Court Act of today was first introduced in our statute books in its present form under s. 22 of the latter Ordinance. Section 21 of that Ordinance therefore directly conferred powers upon the Court of Appeal whereas s. 22 merely referred to the exercise of powers conferred upon the High Court. Section 21 was eventually repealed and s. 22 appears, as I have said, in its present form as s. 20 of the Supreme Court Act. The Rhodesian Court of Appeal Act No. 33 of 1938 also contained a provision under s.28 thereof which provided that: . . . when in any criminal trial in the High Court any question of law has been reserved by the High Court, either of its own motion or at the request of the prosecutor, the provisions of the Administration of Justice (Appeals) Act (Cap. 10) shall apply . . . . The equivalent of those provisions was not to be found in the Ordinance enacted here. It may well be that those provisions formed the basis for s. 20 of our Supreme Court Act of today. It is important to stress, however, that the provisions of s. 28 above quoted did not confer any powers upon the High Court; they merely provided that s. 10 of the Administration of Justice (Appeals) Act, Cap. 10, would apply where the High Court (in the exercise of powers conferred on it) decided to reserve a question of law. The latter section in fact reads as follows: 10. (1) If any question of law arises on the trial in the High Court of any person for any offence, that court may, of its own motion or at the request either of the prosecutor or of the accused, reserve that question for the consideration of the Court of Appeal. The Court of Appeal there referred to, incidentally, was in fact the Appellate Division of the Supreme Court of the Union of South Africa, so that the High Court could only refer a question of law to that court. For our purposes it is important to note, however, that s.70 directly conferred power upon the High Court to refer a question of law to the particular Court of Appeal. In my research I can find no such enabling section under the Constitution, or the High Court Act, or the Criminal Procedure Code conferring any such powers upon the High Court. Section 9 of the High Court Act provides that the High Court shall additionally possess and exercise all the jurisdiction, power and authorities vested in the High Court of Justice in England. I can find no power in that court to refer a question of law to the Court of Appeal in England for its decision. I agree therefore that this court has no jurisdiction to entertain this matter. No jurisdiction, appeal falls away. |
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