SC.MISC .APP. 6/99

C O R A M:-

HOH. MR. JUSTICE D.B.F. LUKE                                        -C.J.

HON. NR . JUSTICE A.B. TIMBO                                        - JS.C.

HON .MR . JUSTICE S.C.E. WARNE                                   - J.S.C.

HON. MR . JUSTICE E.C.THOMPSON-DAVIS                  - J.S.C.

HON.MR.JUSTICE N.D. ALHADI                                        - J.A.

BETEEN:

DR. HARRY WILL                                                                                         -  APPLICANT

AND

ATTORNEY-GENERAL AND MINISTER OP JUSTICE                              -  RESPONDENT

DR. BU-BUAKEI JABBI FOR THE APPLICANT

S.E, BEBEWA ESQ., ATTORNEY-GENERAL WITH HIM )            for the Respondent

P.B. KEBBLE DIRECTOR OF PUBLIC PROSECUTIONS )                       

RULING

WARNE J.S.C..         20th January, 2000

DR. JAEBI COUNSEL for the Applicant attempted to seek leave to amend the Notice of Motion filed on the 29th day of October,1999 by adding a fifth relief and filing a Supplemental Affidavit in support thereof.

The learned Attorney General Counsel for the Respondent objected to the Motion being heard. He submitted that to file a Supplemental Affidavit and to use it in support of the Motion cannot be a relief. He further sub-Edtted that this is an admission that the papers before the court were not completed before being filed - this he argued, cannot be done and he refers to Rules 88 and 89 of the Rules of the Supreme Court P. No.1 of 1982 (hereinafter referred to as the Rules.)

Dr. Jabbi then sought leave to withdraw the Original Application and leave to file a Supplemental Affidavit exhibiting the Draw Up Order of the High Court dated 18th October, 1999.                                                                                     

Before Counsel could proceed with the application} the Learned Attorney-General raised a Preliminary Objection to the Motion being entertained by the court. He submitted that from some of the reliefs sought} the Motion  is for the Original Jurisdiction of the Court to be invoked. He argued that in order to do that, the relevant provision is Rule 89(1) of the  Rules is applicable. This rule specified the use of From 8, which Counsel has failed to apply. Reliefs for Declarations should be by Originating

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Notice of Nation, he submitted. The Attorney-General farther submitted that there are three areas where the original jurisdiction of the court can be invoked that is to say:-(1) Reference Under Section 28(1) of the Constitution of Sierra Leone Act No.6 of 1991 (hereinafter referred to as the Constitution) Section 124. of the Constitution and also Section 127 of the Constitution. He went on to submit that the Rules applicable in those instance are Rules 89 and 99 of the Rules, Rule 98 of the Rules is inapplicable for reliefs for the Declarations he added. The Attorney-General has urged the Court that a number of the reliefs sought are not properly before the court since the relevant rules of procedure have not been complied with. The Attorney-General finally urged the court to dismiss the motion because the court lacks Jurisdiction.

In answer to the objection, Dr.Jabbi in his usual forthright manner, submitted that the objection is totally misconceived. Ho argued that the application is concerned with the supervisory jurisdiction of the court. Counsel categorically submitted I quote: The declarations are in the same vein. I submitted that declaratory orders as to any relief or remedy under the Constitution whether or not they include relief under sections 28, and 127 are perfectly appropriate Tinder 125 of the Constitution". Counsel cited the case of SC.MISC.APP.No.6/93 Justice F.C. Gbow Vs. Julius Spencer and Others in support of his submissions. Let me say here and now that, that case does not bind the court. vide Section 122(2) of the Constitution. Counsel further argued that the Reference jurisdiction is distinot from original and supervisory Jurisdiction. This submission of counsel leaves me at loss to relate it to the foregoing submission that the declaration reliefs sought are perfeotly appropriate wider the instant motion. Be that as it may, I will consider all the reliefs sought in due course in order to determine if they can all be entertained in the same motion. Counsel finally submitted that Rules 5 and 98 of the Rules are both residual and orders of Declaration are anoilliary orders and urged court to ignore the objection.

The Attorney General replied that declaratory orders are not anoilliary reliefs but substantive reliefs and these cannot be made ancillary to a prerogative order.

In order to jutapose these forceful submissions of both counsel, it is imperative that 1 reiterate the reliefs. I quote: "In the matter of an

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application by Dr. Harry Will Under Section 125 of the Constitution of Sierra Leone Act No.6 of 1991 for leave to apply for Orders of Certiorari and prohibition and for related declarations, orders or 'directions. In the matter or two ruling given on 18th October 1999 by the Hon.Mr. Justice M.O. Taju-Deen (High Court Judge) in proceedings on the Criminal Information dated 30th August 1999 filed in the High Court of Sierra Leone holden at Freetown and intituled - "The State Vs. Dr. Harry Will, Lamin Feika. Bockarie Kakay (Trading as Mariama and Sons ( A FIRM): As amended.

BETWEEN:-

"Dr Barry Will                                      - Applicant

And

Attozney-General and Minister of

Justice                                                  - Respondent

STATMENT ACCOMPANYING EX PARTE MOTION FOR LEAVE TO APPLY FOR ORDERS OF CERTERARI, PRIHIBITION ETC PORSUANT TO ORDER 59. RULE 3(2) OF THE (ENGLISH) SUPREME COURT RULES 1960

NAME AND DESCRIPTION OF APPLICANT                                                                             

Dr. Harry Will, of No. 8. Spur Road, Wilberforce,Preetoim, and 1st Accused

in the aforesaid Criminal Information dated 30th August, 1999.

RELIEF SOUGHT

1. The Applicant desires leave to apply for the following orders:

(a) CERTIORARI to remove into this Honourable Supreme Court for the purpose of being quashed TWO Rulings given by the Hon. Mr. Justice M.O. Tajur-Deen (High Court Judge) on 18th October,1999 in proceedings on the aforesaid Criminal Information of 301a August 1999 as amended.

(b) Additionally, PROHIBITION restraining the High,Court from further hearing and determining proceedings founded on the aforesaid Criminal Information, in so far as the Applicant herein and 1st Accused therein is thereby affected. until determination by the Supreme Court of the substantive application for which leave shall have been granted herein, or until the Supreme Court shall other-vise order.

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2. Additionally A DECLARATION to the effect that the 1st Priviso to subsection (1) of Section 136 of the Criminal Procedure Act, No.32 of 1965, as amended by Act No.1 of 1970.

(a) is inconsistent and irreconcilable with the mandatory and overriding provisions in Section 108 and the substantive part of Subsection (1) of Section 136 respectively of the Criminal Procedure Act 1965,amended as aforesaid} and/or

(b) was and is inconsistent and irreconcilable with the mandatory and overriding provisions in, and was accordingly impliedly repealed by, Section 1 of the Courts (Amandment) Act, No.2 of 1981, and/or

(0) was enacted in excess or Ultra vires of the powers thereto conferred on Parliament "by law at the tine of its enactment. And accordingly was and is invalid, null and void, thereby depriving and denying the High Court of all Jurisdiction to try the Applicant heroin as 1st Accused or at all on the aforesaid Criminal Information dated 30th August 1999, as amended, in so far as the indictment depending on the said Criminal Information was preferred pursuant to the said 1st Proviso to Subsection (1) of Section 136 of the Criminal Procedure Act 1965 amended as aforesaid.

3. (1) Additionally, A DECLARATION to the effect that the provisions in Subsection (3)of Section 146 of the Criminal Procedure Act, No.32 of 1965, take precedence and priority over, and thereby override, the provisions in Subsection (2) of Section 144 of the said Criminal Procedure Act as amended by Section 3 of Act No.11 of 1981.

(2) Additionally A. DECLARATION to -the effect that the Learned Presiding Judge in the Trial of the Applicant herein, inter alis, on the Criminal Information or Indictment dated 30th August, 1999, as amended,erred in law in holding in proceedings thereon on 18th October, 1999:-

(a) that an application had been duly made to the Court for trial by Judge alone in terms of Subsection (2) of Section 144 of the Criminal Procedure Act 1965, amended as aforesaid, by the Learned Attorney-General and Minister of Justice having merely filed such application without

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subsequently moving the Court to that effect in viva voce proceedings before the Court:

(b) that where, in pursuant of subsection (3) of section 146 of the aforesaid Criminal Procedure Act 1965, one of three accused persons charged jointly duly elects to be tried by judge alone and another or both of the other accused persons elects or elect to be tried with judge and jury, the judge nevertheless has jurisdiction and/or discretion to rule and/or order that the said three accused persons shall be jointly tried by judge alone.

(3) Additionally, A DECLARATION to the effect that, in the circumstances adumbrated in sub-paragraphs 3(1) and 3(2) hereof and in lifht of the 1st Accused's (i.e. Applicant's) election to be tried by judge and

jury in pursuant of subsection (3) of Section 146 of the Criminal Procedure Act 1965 aforesaid, the decisions by the Learned Presiding Judge that the 1st Accused shall be tried by Judge alone together with the other accused persons or at all and in assuming jurisdiction to so try the said 1st Accused (i.e. Applicant herein) among others or at all, were inconsistent with and in contravention of the provisions in subsection (1) of Section 23 of the Constitution of Sierra Leone, Act No.6 of 1999, and that the said decisions are accordingly infringe— ments or likely infringements of the 1st Accused's (i.e. Applicant's) fundamental human right to a "fair hearing" under the said subsection 23 (1) of the Constitution and so are accordingly invalid, void and of no effect in terms of subsection (15) of Section 171 of the said 1991 Constitution.

(4)  Additionally and order of PROHIBITION restraining the High Court from further hearing proceedings founded on the aforesaid Criminal Information or Indictment dated 30th August 1999, as amended, on the basis of a trial by judge alone".

The reliefs sought can be put under three headings:

(1) Prerogative Orders wider Section 125 of tie Constitution

(2)Breach of the fundamental human right and freedoms of the individual i.e. the applicant.

(3) Parliament acting in excess of jurisdiction.

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I am satisfied that the prerogative orders could be sought pursuant to the provisions in Section 125 of the Constitution. Counsel for the applicant is no doubt prosecuting this application pursuant to Section 125 of the Constitution which provides the following:

"125 The Supreme Court shall have supervisory jurisdiction over all other Courts in Sierra Leone and over any adjudicating authority: and in exercise of its supervisory jurisdiction shall have power to issue such directions ardors or raits including writs of habeas corpus, orders of certisoeri, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers". There is no contention between both sides that the court has such supervisory powers as contained in Section 125 supra} and the court can consider an exparte motion for leave to issue orders of certiorate and prohibition simpliciter. Where additional reliefs are sought for the interpretation of provisions of the Constitution the provision in Section

124 of the Constitution applies .It provides that the Supreme Court shall, save as otherwise provided in Section 122 of this Constitution, have original-jurisdiction to the exclusive of all other courts:-

(a)  in all matters relating to the enforcomant or interpretation of any provision of this Constitution) and

(b) where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law under this Constitution.

(2) Where any question relating to any matter or question as is referred to in subsection (1) arises in any proceedings in any Court, other than the Supreme Court, that Court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination) and the Court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court"• The provisions in section 124 are quite and unequivocal.

"Section 124 was scrollable to be utilised by counsel for the applicant but he advised himself to entangle an application for leave to issue prerogative orders with one for interpretation of provisions in the Constitution i.e. Section 23(1) and Section 171 (15) and whether Parliament acted in excess of the powers conferred. upon it. I opine, that the Constitution clearly empowers the court to detormine

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if Parliament acted in excess of the powers conferred upon it by the Constitution Made Section 124 supra. Counsel for the applicant has not produced any cogent authority to support his submissions that the instant notice of motion is tenable. The rules of court governing some of the reliefs sought and how the application can be made are also clear and unequivocal-vide Rule 89(1) which states: "Save as otherwise provided,, in these Rules an action brought to involve the original jurisdiction of the court shall be commanced by Originating Notice of Motion in Form 8 set out in the First Schedule to these Rules which shall be signed by the plaintiff or his counsel". Form 8 provides in the body the following:-

"TAKE NOTICE that the Supreme Court of Sierra. Leone will be moved at the expiration of 21 days from the service upon you of this notice or so soon thereafter as Counsel can be heard for the following reliefs pursuant to section 104 of the Constitution of Sierra Leone, 1978 namely ……………………..Section 104 of that Constitution is now replaced by Section 124 of the Constitution of 1991.

In my view what counsel for the applicant has done is not only irregular but he has attampted to achieve three types of fundamental reliefs by a pushers unknown to the law - The Constitution and rules must be complied with.

Parliament, in its wisdom, enacted sections 124 and 125 to meet the situations therein spelt out. The side notes to these two sections are clear indications of what Parliament enacted. The side note to section 124 is "Interpretation of the Constitution" and that to section 125 is "Supervisory Jurisdiction". The notice of motion before the court as it stands is one where the leave of the court is mandatory - vide section 125) on the other hand an application made pursuant to section 124 is as of right.

Counsel for the applicant has invoked the provision of Rule 98 of the rules. I agree with him, it is residual. Rule 98 provides "Where

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no provisions is expressly made in these Rules relating to the Original and Supervisory Jurisdiction of the Supreme Court the practice and procedure for the time being of the High Court shall apply mutantis mutandis".

In my view, this rule could not be invoked because the court lacks jurisdiction to hear and determine the Notice of Motion because it is not properly before the court.

The court cannot and will not make a severance between the reliefs for leave to issue any order relating to and concerning the orders of certiorate and Prohibition and those relating to and concerning the declaratory reliefs sought. What is the consequence of the culdesao which counsel for the applicant has created? In my view the Notice of Motion ought to be dismissed and is accordingly dismissed with costs.

(Sgd) Sydney Warne J.S.C.