Vol. 47, No. 2
Case Note
267
spite of the undisputed illegal conduct of the Legal Department.
Moutchia, J., delivering the judgment of the Court of Appeal, said that
``the prosecution was not given the chance to make their complaint. The
trial court, instead of acting as an arbiter, descended into the arena and
stopped both the prosecution and the defence from saying anything in the
name of preventing abuse of court process. It was a complete departure from
any known legal procedure.'' It is submitted that this view of the Court of
Appeal has no support either in principle or in authority.
Stay of proceedings to prevent abuse of process
The jurisdiction of the court to stay proceedings in order to prevent abuse of
process is well founded as a matter of principle. The existence of the power
and duty to stay proceedings to prevent abuse of process is a fundamental
principle of the rule of law. This is because it is an important means by which
the court can ensure that executive agents of the state do not oppress citizens
by misusing the coercive functions of the court. It is no surprise, therefore, to
see that this jurisdiction to stay proceedings in order to prevent abuse of
process is well established in Commonwealth jurisdictions. In R v. Horseferry
Road Magistrates' Court, Ex p Bennett,8 for example, the House of Lords held
that the court has jurisdiction to stay proceedings and order the release of the
accused when the court becomes aware that there has been a serious abuse of
power by the executive. By exercising this jurisdiction the court can refuse to
allow the police or the prosecuting authorities to take advantage of their abuse
of power (such as illegal detention or kidnapping). This is done by the court
regarding that abuse of power as an abuse of the court's process. In Ex p
Bennett the accused had been kidnapped abroad with the collusion of the UK
police and brought to stand trial in England. The involvement of the UK
police in the breach of international law meant that they were involved in
illegal conduct. It was held by the House of Lords that the court had
jurisdiction to stay the proceedings as an abuse of the process of the court.
Lord Grif®ths said that this jurisdiction is necessary to enable the court to
refuse to countenance misconduct by the executive which threatens (a) basic
human rights and (b) the rule of law. More recently in R v. Looseley (where
executive agents of the state were involved in entrapment) Lord Nicholls of
Birkenhead opened his judgment with these words: “Every court has an
inherent power and duty to prevent abuse of its process. This is a fundamental
principle of the rule of law.''9
It is not easy to understand how the Court of Appeal in Cameroon could
come to the view that by granting a stay of proceedings, in the exercise of the
inherent power and duty of the court to prevent abuse of its process, the trial
magistrate did something which was ``a complete departure from any known
procedure''. It would appear that the Court of Appeal was under the impres-
sion that the magistrate should ®rst have conducted the trial in the normal
way by allowing the prosecution to make their complaint, to call their
witnesses, and so on. Only at the end of the trial should the magistrate have
8 [1994] 1 AC 42.
9 [2001] UKHL 53; [2001] 1 WLR 2060, para 1.