Observer Publications Ltd v Matthew et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Satrohan Singh J.A.,Redhead J.A.,Matthew, J.A. |
| Judgment Date | 10 May 1999 |
| Neutral Citation | AG 1999 CA 4 |
| Docket Number | Civil Appeal No. 1 of 1998 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 10 May 1999 |
Court of Appeal
Singh, J.A. Redhead, J.A. Matthew, J.A.
Civil Appeal No. 1 of 1998
Mr. Sydney Christian, Q.C., Mr. H. Lovell with him for the appellant
Mr. Anthony Astaphan for the respondent
Search warrant - Validity — Whether warrant to search the appellant's premises after it commenced broadcasting without the requisite licence was valid.
Held: The fact that the magistrate did not spell out on the face of the warrant that he was satisfied that there was reasonable cause to believe that telecommunication apparatus was allegedly concealed on the appellant's premises did not invalidate the warrant — His signature signified consent — Search warrant held to have been validly issued and the search, entry and seizure legally done.
Satrohan Singh J.A. I have had the advantage of reading beforehand, the judgment of my brother Redhead on the appeal with which I agree. I do not think I can usefully add anything thereto. I propose therefore to address only the issues raised in the respondent's notice. The facts and circumstances of the matter having been adequately set out in the Redhead JA's judgment, I do not propose to repeat them here.
On September 1, 1996 the appellant, without the requisite license commenced broadcasting over a telecommunication media in Antigua called Observer Radio. On the second day of the broadcast the police arrived with a search warrant, executed same on the appellant and seized various pieces of broadcasting equipment. In its motion before the High Court, the appellant prayed for a declaration that the purported search warrant on its premises was a violation of the constitutional right in relation to protection from arbitrary search under Section 10 of the Constitution of Antigua and Benjamin J found in favour of the appellant on this issue. He search warrant to be invalid and ordered that it be quashed. granted the aforementioned declaration. The learned judge a liberty to the appellant to apply for “assessment of damages for occasioned by the unlawful entry upon its premises.”
Benjamin J ruled, that because on the face of the warrant it was not reflected that the magistrate himself was satisfied that there was reasonable cause to believe that telecommunication apparatus alleged to be concealed on the appellant's premises, and because the warrant did not ex facie state its statutory authority, that those deficiencies rendered the warrant invalid. The respondents, by way of notice, have appealed from this ruling on the ground that those deficiencies did not render or were not sufficient to render the search warrant defective.
It is accepted that section 10 of the Constitution protects the appellant and his property from arbitrary search or entry. It is not that Observer Radio was on the day of the search operating without a licence in that behalf. It is also not disputed that the search warrant was issued pursuant to the provisions of section 15 [1] of the Telecommunications Act of Antigua Cap. 423, the relevant portions of which read as follows:
“If a Magistrate is satisfied by information that there is reasonable ground for supposing that a telecommunications station has been or is being established without a licence in that behalf or that any telecommunication apparatus has been installed, worked, operated or concealed in any place in Antigua and Barbuda, ……. without a licence in that behalf contrary to the provisions of this Act or any rules made thereunder or of any licence granted under this Act, he may grant a search warrant authorizing the telecommunications officer or any police officer to enter, inspect and search at any time day or night the station, place and to seize any apparatus which appears to him to be used or intended to be used for telecommunications.”
The warrant evidenced in the transcript before us shows it to be in its statutory form. Ex facie it does not reveal that it was issued pursuant to section 15[1] of the Telecommunications Act. Neither does it specifically state that the magistrate was satisfied that there was reasonable cause justifying its issue. It states, inter alia, that on September 2, 1996, evidence on oath was given by Mackenzie Joseph, Inspector of Police, that there was reasonable cause to believe that telecommunications apparatus was alleged to have been concealed on the premises of the Observer Radio Station. It was signed by the magistrate. It is accepted that it was executed without resistance to entry. In fact the evidence was that the appellant consented to the entry and search.
In Attorney General of Jamaica v Williams and Another [1997] 3 W.L.R. 389, a case relied on by both sides, Her Majesty's Privy Council expressed opinions on the issue which I gratefully adopt and will now simply encapsulate.
The purpose of the requirement that a warrant be issued by a Justice is to interpose the protection of a judicial decision between the citizen and the power of the state. The function of the justice is to satisfy himself that the prescribed circumstances exist. It is a duty of high constitutional importance. The law relies on the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter private property have been met. It must appear to the justice from information on oath not only that the officer has reasonable cause to suspect one or more of the matters there specified, but also that his cause for suspicion is reasonable. The test is an objective one. He ought not to act simply as a rubber stamp on the officer's application. The issue of the warrant is a judicial act, and must be preceded by a judicial inquiry which satisfies the justice that the requirements for the issue of the warrant have been met even though not statutorily required, it is highly desirable for the warrant to contain an express statement of the statutory authority under which it was issued. Lord Hoffman in the said case felt that without this disclosure on the face of the warrant there may be resistance to entry.
In the instant matter, I hold that section 15[1] of the Telecommunications Act gave the magistrate jurisdiction to issue the warrant. I also hold that whilst it was highly desirable that the search warrant should have contained this statutory source of its issue, that because the search was consented to by the appellant and not resisted that such an omission without more would not be enough to invalidate the warrant [ Attorney General of Jamaica v Williams Supra]. It is also my considered opinion that, implicit in the words used in the warrant, coupled with the signature of the magistrate thereon, is the fulfilment of the statutory requirement of section 15[1] that the magistrate was satisfied that the requirements for the issuance of the warrant were met. In my judgment, the only inference to be drawn from the words “evidence of oath has been given….. that there is reasonable cause to believe that certain property to wit Telecommunications apparatus alleged to have been concealed.…. on the Observer Radio Station,” when coupled with the signature of the magistrate, was that the magistrate himself was satisfied that the offices cause for suspicion was reasonable.
It was submitted by Mr. Lovell that this satisfaction of the magistrate could be spelt out on the face of the warrant I do not disagree. However, where it is not spelt out and the magistrate's satisfaction is implicit as it is in the instant matter, I am of the view that the warrant should not be found to be invalid in the absence of evidence to the contrary, especially in this case where it is accepted that the appellant consented to the search. In my view, such consent would be enough to negate the need for the warrant. It is my opinion, that the absence of these two bits of information from the face of a search warrant without more, would not automatically invalidate the warrant. Their insertion therein is not a statutory requirement. Their appearance ex facie the warrant is required merely to satisfy the aggrieved party of its authenticity thereby assisting in the avoidance of resistance to its execution. Each case therefore should be approached on its own facts. If no injustice resulted from their omissions, the warrant ought not to be struck down.
For these reasons, l would hold that the search warrant was validly issued and that the search, entry and seizure were legally done. I would therefore allow the appeal as addressed in the respondent's notice and set aside that part of the judgment of the trial judge and the orders and declarations made thereon. The respondents will have their costs incurred as a result of their notice to be taxed if not agreed and paid by the appellant.
SATROHAN SINGH
Justice of Appeal
I have had the opportunity of reading the judgment of Singh J A the respondent's notice with which I fully agree. I cannot usefully anything. This is an appeal against the dismissal of the appellant's motion which sought declaratory reliefs and orders on the ground that the constitutional right to freedom of speech was infringed by the refusal of the first named respondent to grant it a broadcasting licence to operate a commercial F.M. Radio Station.
The background facts are that on 23rd March, 1995 the appellant was granted a business licence under the provisions of the Business Licence Act 1994 [No.17 of 1994], the certificate issued by the Minister of Finance described the appellant's business as that of a “Radio Television Station”.
The following day, on 24th March 1994, after receipt of its licence, the appellant made application for permission...
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