IN THE SUPREME COURT OF SIERRA LEONE

SC.5/2000

IN THE MATTER OF AN APPLICATION UNDER SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991

IN THE MATTER OF AN APPLICATION UNDER SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991 AND

IN THE MATTER OF AN APPLICATION UNDER SECTION 170(1) (a) to (e) 170 SUB RULE 2 AND 4 & SECTION 18(1) 23 SUB RULE 1 AND 25 (7) OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991. AND

IN THE MATTER OF AN APPLICATION UNDER THE ANTI-CORRUPTION ACT 1, OF 2000.

BETWEEN:-

MUCTARU OLA TAJU-DEEN                  - PLAINTIFF

AND

THE COMMISSION OF ANTI-                 - 1st DEFENDANT

CORRUPTION

AND

THE LEARNED ATTORNEY-GENERAL AND MINISTER OF JUSTICE - 3rd DEFENDANT

CORAM:-

HONOURABLE MR. JUSTICE D.E.F.E LUKE            -   CJ.

HONOURABLE MR. JUSTICE AB. TTMBO                -  JSC.

HONOURABLE MRS. JUSTICE V.A.D. WRIGHT       -  JSC.

HONOURABLE MR. JUSTICE H.M. JOKO-SMART  - JSC.

HONOURABLE MR. JUSTICE S.C.E. WARNE           - JSC.

C. DOE SMITH ESQ. AND T.M. TERRY ESQ., FOR THE PLANTIFF

S.E. BEREWA ESQ., ATTORNEY GENERAL AND L.M. FARMA ESQ., MR. SESAY ESQ., COUNSEL FOR THE RESPONDENTS

DATED THE 3 DAY OF APRIL 2001

2.

This Originating Notice of Motion filed on the 4th day of December 2000 is a culmination of a series of application that have come before this Court over the past five months. In the series as in the instant motion, the parties are the same or nearly the same. The end desire of all the applications is to stop the trial of the Hon. Mr. M.O. Taju Deen on Corruption Charges.

The application is made pursuant to Section 124, 125, 127, 170(1) (a) to (e), 170 Sub-Rule 2,4 and 23 Sub Rule 1 & 2 of the Constitution of Sierra Leone Act No. 6 of 1991.

Let me observe that the several sections referred to leave me rather uncertain as to what section is relevant for a declaration to be made by this Court. The application becomes more perplexing when the court is asked to make declaration pursuant to a sub rule of the Constitution. The Constitution is not Subsidiary Legislatioa Be that as it may, the power of this Court to pronounce a declaratory Judgment or Order is contained in section 127 (1) of the said Constitution which provides "person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of a provision of this Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect."

Among the series of application made to this Court, was one for certiorari where leave was granted and later discharged; and another for Prohibition which was refused. The contents of the affidavits and statements in support of the instant motion are similar in most respects as these in the previous applications mentioned above.

There are eleven declarations sought, only the Declaration under paragraph (e) had not been previously considered by this Court. In the case of paragraph (j), I do not think it is one which attracts a declaratory order. This is a clear case of admissibility of evidence. Section 23(2) of Act. No. 6 of 1991 has no relevance to admissibility of evidence in a

3.

criminal trial. The right of the trial judge to order the appearance of a witness to testify has nothing to do with a declaratory order. Section 23(2) states: "Any court or other authority prescribed by law for the determination of the existence or extent of civil rights or obligations shall be independent and impartial; and where proceedings for such determination are instituted by or against any person or authority or the Government before such Court or authority the case shall be given fair hearing within a reasonable time."

Let me hasten to say that I can find no evidence in the affidavit or the statement filed herein that the calling of a witness is s criminal trial has done any violence to section 23(20 aforesaid. In my view, this is clearly an abuse of due process. If anything this particular application under paragraph (j) is not in anyway aiding "a fair hearing within a reasonable time", albeit, that the section has nothing to do with the declaratory order being sought.

This Court has given two considered rulings toughing and concerning the Declaratory Orders sought in paragraphs (a) (b) (c) (d) (f) (g) (h) (i) (g) vide unreported Rulings of 18th. January 2001 and unreported Ruling of 23rd February 2001.

It only remains for me to consider whether a declaratory order should be mad with regard to paragraph (e).

Paragraph (e) states:- A Declaration to the effect that the provisions of section 7(1) and 8(I) of the Anti Corruption Act No. I of 2000 in so far as they have been laid and framed as Constituting Offences against a judge or Acting Judge of the Superior Court of Judicature and in particular the Honourable Mr. Justice Muctaru Ola Taju Deen are clearly repugnant to and inconsistent with the express mandatory entrenched provisions of Section 120(a) and 137 (4) of the Constitution of Sierra Leone Act No.6 of 1991.

In spite of the fact that the paragraph is infelicitously worded, I shall consider it for what it is worth.

4.

S.120 (9) states: A Judge of the Superior Court of Judicature shall not be liable to any action or suit for any matter or thing done by him in the performance of his judicial functions."

I opine that this is a Salutary provision of the Constitution. Mr. Terry has also referred to Section 137 (4) of the Constitution which states:

"Subject to the provision of this section, a judge of the Superior Court of Judicature may be removed from office only for inability to perform the functions of his office, whether arising from infirmity of body or mind or for stated misconduct, and shall not be removed save in accordance with the provision of this section."

The plaintiff is not being removed from office for any of the reasons stated section 137(4).

The plaintiff has been charged with a criminal offence under the Anti-Corruption Act No. I of 2000. While the charge is pending he cannot be moved from office. It is a trite principle to law that an accused is innocent until proved guilty vide section 23(4) of the Constitution: It provides "Every person who is charged with criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty."

I hold that S.137 (4) is not germane to the issue before the Court. I will now refer to Sections 7(1) and 8 (1) of the Anti corruption Act No. I, 2000 which Mr. Terry argued "are clearly repugnant to and inconsistent with the express mandatory provisions of Sections 120(a) and 237 (4) of the Constitution of Sierra Leone Act No. 6 of 1991." Section 7 (1) provides "A public officer is guilty of the offence of corrupt acquisition of wealth if it is found after investigation by the Commission that he is in control or possession of any resources or property or in receipt of the benefit of any advantage which he may reasonably be suspected of having acquired or received corruptly or in

5.

circumstances which amount to an offence under this Act" 8(1) provided (a) Any public officer who solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his performing or having performed or abstained from performing any act in his capacity as a public officer:

(b).......................................................................... is guilty of an offence.

I have for convenience stated the statutory provisions which I consider necessary in this application and having regard to the arguments that have addressed to us, it may now be convenient to state in chronological order how the questions between the Plaintiff and the Defendants arose.

Briefly the Plaintiff was the trial judge in the case of the state V. Dr. Harry Will and two others. At the end of the Trial, Dr. Harry Will and the 2nd accused were found guilty of the offence charged but the third accused one Bockari Kakay was found not guilty of the offences and he was acquitted and discharged. The Attorney-General Mr. Solomon Berewa led the prosecution in the case. In the course of time the Attorney-General laid on Indictment against the Plaintiff contrary to section 7 (1) and section 8(1) of the Anti-Corruption Act No. I of 2000. The Plaintiff pleaded not guilty to all the charges. Mr. Terry, during the pendency of the trial moved the High Court pursuant to section 134 of the Constitution to have indictment quashed by an order of certiorari section 134 provides: :The High Court of Justices shall have supervisory jurisdiction over all inferior and traditional courts in sierra Leone and any adjudicating authority and in the exercise of its supervisory jurisdiction shall have power to issue such directions, writs and orders, including writs of habeas Corpus, and order of certiorari, mandamus and prohibition as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers."

6

The High Court ruled that the Anti-Corruption Commission was not an adjudicating authority. The Plaintiff proceeded to the Supreme Court for leave to issue an order of certiorari. Leave was granted but later discharged for foiling to disclose that such application had been made in the High Court. The Plaintiff again moved the Supreme Court for an Order of Prohibition on several grounds, inter alia, that the trial judge should be prevented form continuing with the trial because of bias or the likelihood of bias. The motion was refused. The instant motion, as I have said earlier is a culmination of the multiplicity of motions before this Court.

In my view, declaration may be granted in all cases where there is a dispute between a plaintiff and a defendant, and a claim for a declaration in a convenient method of dealing with such dispute, I think the view for a declaratory judgement is that which is stated by Lord Sterndale N.B. In Hason V. Radcliffe Urban District Council (1922) 2 Ch. 90 at 507.

These are the words of Lord Sterndale M.R.

"Further, the defendants are a statutory body, which has purported to interfere with a contract made between two parties, and I adhere to my judgment in Guaranty Trust Co. of New York V Hamming and Company in which although I had the misfortune to disagree with Lord Wrenbury I said that a number of declarations had been made in my opinion, rightly made, as to the rights of parties under contracts, without waiting for some events to happen, as for instance, for a ship to arrive at its destination, in order to determine result of the contracts, and what the exact causes of the action might be.

In my opinion under R.S.C. Order 23 Rule 5, the power of the Court to make a declaration, where it is a question of denning the rights of two parties, is almost unlimited by its own discretion. The direction should of course be exercised judicially. But it seems to me that the discretion is very wide................................................

7.

This is a quotation by Greer LJ. in the case of Cooper V. Wilson in (1937) 2 K.B. at 720 at 754."

It seems to me that declaratory judgment can be granted to parties who have disputes and I subscribe to the opinion of the Learned Law Lord, Lord Sterndale MR. In my opinion there is no dispute between two parties to warrant a declaration of any kind under section 127 of the Constitution We derive our power specifically in this instant case from section 127 of the Constitution.

It is necessary to consider the function of the Commission. Under Part II of the Anti Corruption Act. No. I of 2000, Section 5 (1) spells out the object for which the Commission is established and it is to investigate instances of alleged or suspected corruption referred to it by any person of authority Or which had come to its attention, whether by complaint or otherwise and to take such steps as may be necessary for the eradication or suppression of corrupt practices.

Having spelt out what the functions of the commission are, I will now consider the Sections which Mr. Terry compliant about. If section 7 (1) and 8 (1) are clearly repugnant to and inconsistent with the provisions of section 120 (9) and 137 (40 of the Constitution, a fortiori, the entire Act that is to say the Anti-Corruption Act No. 1 of 2000 is repugnant to and inconsistent with the said Section 120 (9) and 137 (40 of the Constitutions.

I do think this view is right because of the functions of the Commission expressed in section 5 (1) of the Anti-Corruption Act No. 1 of 2000. The powers of the Commission are wide. In my view, the Act is enacted to protect the integrity of the State. This is an unequivocal Act to insure that no person is above the law.

In my view, I do think section 7(10 and 8 (1) of the Anti corruption act No. (1) of 2000 are inconsistent with or in contravention of Section 120 (9) is specifically enacted to provide protection, indeed immunity for judges who are performing their judicial

8

functions with honesty, dignity and impartiality. Moreover, it is enacted to prevent ill disposed persons or even unsuccessful litigants from bringing suits against judges who have acted within their jurisdiction. This protection and immunity are grounded in antiquity. In my view. Mr. Terry has misconceived the object of Parliament in enacting Section 120 (9) of the Constitution and thereby has been misled into relating the provisions therein to the provisions in Section 137 (4) of the Constitution. This is rather unfortunate. Sections 7 and 8 of the Anti corruption Act No. 1 of 2000 were not enacted to entrap judges in their judicial capacity but they are to ensure that public officer are brought to justice where they have betrayed their trust.

I will refuse the motion in its entirety and dismiss the application. HONOURABLE JUSTICE S.C.E. WARNE