CIV/APP 13/2000

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:

All Peoples Congress                                                                }

Abdul F. Serry Kamal                                                               }

Victor B. Foh                                                                           }    -  APPELLANTS

Dr. Jengo Stevens                                                                    }

Edward M. Turay                                                                    }

AND

The Speaker of Parliament                                                      }

The Ad Hoc Committee of Parliament on Absenteeism           }

The Hon. John Gaiva Labor                                                   }     -  RESPONDENTS

Acting Chairman                                                                    }

The Clerk of Parliament                                                         }

The Chief Electoral Commission                                             }

Mr. F. Serry Kamal for the Appellants

Attorney General and J.A. Farmer for the Respondents

Judgement delivered THURSDAY 10TH JANUARY 2002.............

TOLL A THOMPSON J.A. (Presiding)

The learned judge found favour in the argument of the Attorney General and refused the application for leave.

The learned judge in arriving at his ruling relied on Section 134 of the Constitution and said at Page 206 Lines 5-10 of the record:

"In my view once Parliament is not an inferior court or tribunal to the High Court, the High Court cannot supervise Parliament as it does Magistrate Courts, Local Courts, Administrative bodies, Professional bodies exercising judicial or quash judicial powers".

And at Line 23 Page 206 to Lines 7-9 Page 207 of the record he went on to state the Provision of the Section 94(2) of the 1991 Constitution and concluded:

"The purport of this application is in essence requiring this High Court to enquire into Parliament's own internal proceedings"

It is these salient parts of the learned judge's ruling that has precipitated this appeal before us.

The Argument                                                                                                                 

Arguing the appeal Mr. Serry Kamal learned counsel for the appellant submitted that the appellant came to the High Court under section 78 of the Constitution of Sierra Leone for leave to apply for an Order of Certiorari against the Respondents. The respondent's Counsel took an objection under section 94(2) of the Constitution of Sierra Leone for leave to apply for an Order of certiorari against the respondents.

Mr. Serry Kamal said section 170(4) of the Constitution preserves the existing law, therefore the learned trial judge ought to have granted the application. Continuing his argument he said the learned trial judge did not listen to him because of section 94 of the Constitution and submitted that this section regulates the internal procedure of Parliament. Membership of Parliament is regulated by section 77 of the Constitution.

Finally he submitted with some degree of force that the composition of Standing Order 77(c) includes the Speaker and other member of Parliament. The report of the Committee showed that the Hon. Gaiva Labour acted as Chairman. He had no legal authority to do so. In support of this submission he cited the case of in the matter of J.T. Dixon 2 SLIR 1962. Page 67 at Page 69 and the case of Newns v. Macfoy 1960-61 1 SLLR Page 232.

In reply Mr. Farmer learned counsel for the respondent submitted that the learned trial judge applied the correct principles of law. Parliament is not inferior to the High Court and therefore the High Court cannot supervise Parliament. Continuing his argument he said that Section 134 of the Constitution is not applicable to Parliament consequently the High Court has no jurisdiction to entertain the matter.

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ft follows therefore that no court exists for the purpose of indulging in what from the start would be completely wasteful and useless exercise. All courts in every part of the civilized world are jealous of their jurisdiction as well s their powers and are unwilling to indulge in any exercise which will bring about ridicule or contempt. See Rv. Hutching 1891 6QRD 300 at Page 304.

Exclusion or Ouster of the jurisdiction of the court does not terminate with but also covers the inherent jurisdiction of the court. Therefore if a court has no jurisdiction there cannot be anything inherent in the court, "you cannot put something on nothing and expect it to stay there. It will collapse". Per Lord Denning in Macfoy v United Africa Co. Ltd. (1962) AC 152 at 160.                                                               

Generally since the point on jurisdiction is so important and fundamental it can be raised at any stage of the proceedings either in limine or the pleadings or on a motion supported . by an Affidavit and when it is raised it is the duty of the court to satisfy itself that it has jurisdiction before proceeding with the substantive matter. See Ohene Moore v. Akessey Taye 2 WACA Supra.

The issue

What appears to me to be the issue in this appeal is whether the learned trial judge erred in law in refusing to entertain the application for leave to apply for an Order of Certiorari relying on sections 94 and 134 of the Constitution. And in dealing with the issue I shall refer to the Provisions of the Constitution and the Standing Orders of parliament as far as they are relevant to this appeal.

The Constitution

The Constitution of Sierra Leone Act No. 6 of 1991, which came into force on The 1st of October 1991, is now the grundnorm of this country. Section 171(15) of the Constitution states:

"This Constitution shall be the Supreme Law of Sierra Leone and any other law found to be inconsistent with any provision of the Constitution shall be to the extent of the inconsistency be void and of no effect".

Section 170 gives us the run down of the Laws of Sierra Leone which include the Constitution, Laws made by or under the authority of Parliament Orders, Rules Regulation and other Statutory instrument made by any person or authority pursuant to the powers conferred by this constitution or any other law emphasis mine, the existing law and the Common Law.

Section 77(e) of the Constitution states:

"A Member of Parliament shall vacate his seat in Parliament if he is absent from sitting of Parliament for such period and in such circumstances may be prescribed in the rule of procedure of parliament".

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The word "purported' is defined in the Oxford Advanced Learners Dictionary as "claimed" reported or assumed to be the case "as for example the document pus-ported to be an official statement". Therefore it is my view that the use of the expression "act done or purported to have been done" is all embracing. It includes those acts claimed or assumed to have been done under the rules and procedure of Parliament.

For the words "shall be inquired into by the courts" to have any meaning and escape from any obscurity it must be clear that the decision taken, act, or act purported to have been clone by Parliament, its Committee, Speaker were done under the rules of procedure of parliament. Therefore it seems to me that any matter which begins and terminates within the four walls of Parliament cannot be enquired into by the Court. See Stockdale v Hansard [1837] 3 state trials (NS) 876: Bradlaugh v Gosset 120BD 274.

Mr. Serry Kamal's complaint is that the Committee was not properly constituted as stipulated by Standing Order 77(2) (c). The Speaker of Parliament was not a Member. The report showed that Hon. Gaiva Labour acted as chairman and so whatever decision taken by the Committee is of no moment.

From its habitat, it cannot be disputed that Standing Order 77 is a product of legislative drafting, and Order 77(2) (c) which deals with membership of the Committee clearly stipulates that the Committee shall consist of the Speaker etc. There is no evidence that it has been amended by Parliament to exclude the Speaker from membership. See Vide So 77(2)(c) It is therefore absolutely vital that the membership of the Committee must strictly comply with the Standing Order 77(2)(c). It is a matter of strictissima juris.........that the Speaker of Parliament must be a member. If peradventure I am said to be wrong in the view that I have expressed. I am fortified in the view by the definition of "shall" in a Dictionary of Modern Legal usage by Bryam Gemer:

"The word "shall" ordinarily denotes language of command. In legislation this over worked auxiliary verb invariably denotes an imperative rather than futurity when it appears in drafting "

Again Section 2(5) of the English Road Traffic Act 1962 provides:                             

"That a Constable requesting any person to provide a specimen of urine for analysis shall offer to supply to him part specimen ".

The English Court of Appeal in interpreting "shall" in the above section in the case of Rv. Price (1964) 2 RD P. 176 held that the offer must be more or less simultaneous with the request.

It is therefore clear to me that Parliament must have misconstrued the Provision of the Standing Order 77(2)(c) and was in error when it nominated the members of the Committee to the exclusion of the Speaker. In other words without the Speaker the Committee was not properly constituted. It follows that the report cannot be a report of the Committee as prescribed by Standing Order 77(2)(c) consequently the action by the

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instructive on this point. It is from the Cook Island. Article 9 of the United Kingdom Act Bill of Right Act 1688 is part of the law of Cook Island.

"It provides that the proceedings of Parliament shall not be questioned in any Court and more significantly the constitution itself has a similar provision. In an unreported decision 2nd February 2001. The Court held that the Hon. Ngereleina Puna Speaker of Parliament had been removed improperly from Parliament because the Deputy Speaker who was in the chair voted for the motion when the Constitution denied a deliberate vote to the Presiding Officer in this case the Deputy Speaker though the House had earlier passed a motion allowing the Presiding Officer to vote".

The Court went on to state that "while it agreed; that it was prohibited from questioning the proceedings of Parliament it is now well established that this does not apply when Parliament acts unlawfully and contrary to the Constitution. In support of this decision, reference was made to the Zimbabwe Supreme Court decision in the case of Smith vs. Mutasa 1990 1 LRC 87 and Rabasi vs. Committee of Privileges (Cook Island) 1994 CA Page 156. In both cases the courts found that the Committees exceeded the powers vested in them by Parliament and the Constitution and both court affirmed the words of Berwick CJ in the Australian case of Cormack vs. Cope 1974 131 CLR where he said"

"Whilst it is true the court will not interfere in what I would call the intra-mural deliberative activities of Parliament, it has both a right and a duty to interfere if the constitutionally required process of law making is not properly carried out".

Coming home in case F. PP Newns & Another vs. H.J. Macfoy and Others SLLR 1960-61 Page 232:- .

The first appellant who was the acting Governor of the time recognised the 2nd appellant as Mende Tribal Headman for Bonthe pursuant to Section 2(2) Tribal Administration (Colony) Ordinance which provides.

"The Government may in his discretion recognise any person as the Headman of any Member of a tribe resident in or temporarily staying in Freetown who had previously had a recognised Tribal Headman. The Ordinance was extended to Bonthe by the Tribal Administration (colony) (Bonthe Sherbro) Order in Council (PN 13 of 1959) the Respondent commenced a suit challenging the validity of the Acting Governor's action (AFFP News) on the ground that the second appellant was not a Mende. They argued that any person in Section 2(2) meant any person belonging to the tribe for which the Acting Governor is recognising a headman. The trial judge accepted the argument and held that a member of a different tribe could not lawfully be rocognised as a tribal headman. The appellants appealed to the Court of Appeal. The Court is dismissing the appeal held that the Supreme (now High) Court had jurisdiction to decide whether or not the Acting Governors action was within the power conferred on him (2). That the word any person in Section 2(2) of the tribe for which a headman is being recognised".

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In the case of Seaford Court States Limited vs. Asher 1912 ICH 158 Denning LJ said:

"We do not sit here to pull the language of parliament and of Ministers to pieces and make nonsense of it. That is any easy thing to do and is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out and we do this better by filling in the gaps and making sense of the enactment then by opening it up to destructive analysis ".

To my mind the Constitution did not give the Speaker absolute power to declare vacant the seat of a Member of Parliament. Section 77(2)(d) contains these words "if the Committee's reports that the Member has been absent for a period specified................................. without good cause Speaker shall declare his seat vacant" These words import a condition attached to the valid exercise of the power given to the Speaker to declare a seat vacant. It also imposes an obligation on the Committee to investigate or inquire into the matters and circumstances of the Members absence, followed by a report and recommendation, before the Speaker can exercise his power to declare the seat of a Member vacant.

In this case under my pen. Can the Speaker legally declare the seat of the appellants vacant based on the Committee's report? I opine not, for the simple fact the Committee was not properly constituted and the report cannot be a report Committee as envisaged by Standing Order 77(2)(c).

In view of the numerous authorities cited. It seems to me that the Committee was incompetent to undertake such an exercise. What the Committee did was not within the powers conferred by Standing Order 77. I therefore hold that the application for leave pursuant to Section 134 of the Constitution was proper. The learned trial judge ought to have entertained the application. In the result the appeal is upheld. The ruling of the learned trial judge is set aside.

In his submission, Mr. Serry Kamal learned counsel for the appellant urged the Court to invoke Rule 31 of the Court of Appeal Rules, which states.

Rules 31 states:

"The Court may from time to time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to enquire into and certify its finding on any question which the Court thinks fit to determine before final judgment in the appeal and may make any interim order or grant any information which the Court below is authorised to make or grant and may direct any necessary enquries or accounts to be made or taken and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance and may rehear the whole case or may remit it to the Court below to be reheard, or to be otherwise dealt with as the Court may direct".

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