Chellapen v R

• Jurisdiction: Mauricio
• Date: 18 April 1969
• Court: Supreme Court (Mauritius)

Mauritius, Supreme Court

Chellapen and Another

and

The Queen

States as international persons State succession In matters of administration Establishment of courts Effect after independence of pre-independence delegation, of powers The law of Mauritius

Summary: The facts.Criminal proceedings were instituted against the appellants, Chellapen and Meetoo. The Second Intermediate Criminal Court dismissed the case. The Director of Public Prosecutions appealed to the Supreme Court, which reversed the Magistrate's decision and remitted the case to the Court for determination in the light of its judgment. In October 1968 the Second Intermediate Criminal Court heard the case against the appellants and on 11 November found them guilty and sentenced them to imprisonment.

The Court which heard the case against the appellants in October 1968 was set up in September 1968 by the Chief Justice, acting under powers delegated to him by the Governor in February 1968, the Governor in doing so having himself acted under powers conferred upon him by the Interpretation and General Clauses Ordinance 1957. On 12 March 1968 Mauritius became independent and the new Constitution of Mauritius contained different provisions regarding the delegation of powers by the Governor-General.

The appellants appealed to the Supreme Court against their conviction by the Second Intermediate Criminal Court. The first ground of appeal was that upon the entry into force of the new Constitution on independence, the prior delegation of powers by the Governor in February 1968 ceased to be valid, so that the Second Intermediate Criminal Court set up under the powers delegated thereby was not constituted according to law. (The other grounds of appeal related solely to matters of evidence.)

Held: The appeal must be dismissed. The pre-independence delegation of powers by the Governor continued in operation after the entry into force of the new Constitution of the independent State of Mauritius.

Latour-Adrien, J., so far as concerns the ground of appeal referred to, said:

The first ground of appeal is to the effect that the Court which convicted the appellants was not constituted according to law and therefore had no jurisdiction to try the case against the appellants.

The Second Intermediate Criminal Court, the validity of which is challenged, was set up in September 1968 by the Chief Justice by an order published under General Notice No. 964 of 1968, the relevant part of which reads as follows: In virtue...