In The High Court of Sierra Leone

(Anti-Corruption Division)

Between:

The State

Vs.

Alpha Bah, Judison Lahai & David Conteh

Coram: Reginald Sydney Fynn JA (Presiding)

Counsel: Victor Biandoma for the State

RULING DATED 19th MAY 2020

           Fynn JA

1. I have read the Notice of Motion dated 18th May 2020 and filed by the Prosecution in which the primary request is for  “ ...the Matter intituled The State vs. Alpha Amadu Bah, Judison Lahai and David Conteh be reopened for the State to have the opportunity to bring its own case to a satisfactory conclusion”. I will give a ruling on the application based on the motion papers I have read.
2. These motion papers are supported by an affidavit of even date sworn to by Prosecuting Counsel himself. In that affidavit the deponent has completely ignored the fact that since the start of this case in December 2018 there has been several adjournments and breaks due to the absence and or inability of the prosecution to proceed. The affidavit ignores the several occasions on which the defence had raised the issue of the prosecution’s delay and the hardship and possibly injustice that it was causing the defendants.
3. The affidavit has ignored this significant background and has proceeded, with an acute absence of candor, to suggest that the Court has closed the prosecution’s case due to the absence of Prosecuting Counsel on 17th April 2020 even though Counsel had sent in a letter to say he was indisposed conveniently ignoring the fact also that the Court sat, defence counsel were present and not even a junior from an establishment with no less than eight lawyers was present to present the Commission’s courtesies and regrets for its inability to proceed again.
4. The more significant failing in these papers however is the reason, if that could be called a reason, which is proffered for a re-opening of the prosecution’s case. The Prosecution alleges and correctly so that on the date on which the prosecution’s case was ordered closed, the Court had, on the defence’s indications, given directions for filing no case submissions and answers,  and that these have not been strictly complied with. Only the 1st defendant has filed and out of time his no case submission whilst the other two defendants are have still not filed.
5. I fail to see how this can be supportive of an application such as this one. How does the failure to file arguments indicate the need to reopen a case that has stalled and stalled to its close? Counsel who comes with such a request must demonstrate more than a call for a tit for tat. It would appear Counsel is saying if “I was shut down for absence shut them down for failure to file”. This I will do if that failure gets notorious but even there that will not of itself justify reopening a case that I have ordered closed.
6. To succeed with an application such as this one I will suggest that the Prosecution must show that there is something crucial left undone due to the closure order. Something which is so important that if the case is not reopened the prosecution’s case will be jeopardized. It might be that a witness who was being located or who was previously unwilling has turned up or has had a change in demeanour. Or it may well be that some mislaid document or previously overlooked object’s true significance has been established and in any such case the prosecution now deems it crucial for the Court to benefit from the tendering of such a document or the testimony of such a witness. It is in the face of such an indication that the Court may be urged to re-open the Prosecution’s case after having ordered it closed.
7. It would appear from the flimsy nature of these motion papers that Prosecuting counsel has mis-read the court’s indication that the court will be amendable to re-open the case on an application for same. This does not mean that an application to re-open the case will automatically be granted, as of right even where the application is utterly lacking in merit. The court did not and could not give any such indication. The Prosecution is reminded that the court has an overarching duty to manage the proceedings in a just and fair manner. Also it should not be forgotten that Justice is a double edged sword; whilst doing Justice to the Prosecution the defendants should also receive Justice.
8. In the management of the process and indeed in the dispensing of justice, the words of  Lord Edmund Davies and the role of Judges resonates with clarity that “it would indeed be bad for justice in such cases...if their hands were tied and they were obliged to allow further trial to proceed. In my judgment,...they are vested with the power to do what the justice of the case clearly demands” (Mills v Cooper see Blackstones 2002 pg 1059)
9. I reiterate that a proper and justified application to reopen the Prosecution’s case will be received with a deserving outcome meanwhile I stand by my decision to close the Prosecution’s case generally noting “...the pace of this action thus far and its stalling progress” as well as the absence of the Prosecution after “the Prosecution had asked for an adjournment to advise itself on a line of action to take in the case”.
10. The application is refused. The defence need not file any papers in opposition. The other defendants have up to 30th May 2020 to file their no case submissions. The Prosecution will file a reply no later than 10th June 2020.

This application is dismissed. No order as to costs as the defendants have not filed any papers or made any submissions in this regard. 

Reginald Sydney Fynn JA…………………………………………...