IN THE SUPREME COURT OF SIERRA LEONE

SCMISC.APP. 1/2000 BETWEEN

MOHAMED JUMA JALLOH                                     -  APPLICANT

AND T. KRISHNAKUMAR                                      -RESPONDENT

CORAM:- HON. JUSTICE D.E.F. LUKE                     -  C.J.

HON. MR. JUSTICE JOKO SMART                            -  J.S.C.

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

HON. JUSTICE E.C. THOMPSON-DAVIES              -  J.S.C

HON. MR. JUSTICE M.E. TOLLA-THOMPSON       -  J.S.C.

Dr. Renner-Thomas,                             for the Appellant

E.E. Shears-Moses Esq.,                      for the Respondent

SEPARATE JUDGMENT dated 24 day of October 2000 JOKO SMART JSC

I have had the advantage of reading in draft the ruling of my learned brother E.C. Thompson-Davies JSC. I too agree that the application be dismissed. However, because I find in the said ruling a difference in approach and of opinion on the question of the applicant's locus standi before the full Court a second time, I have decided to append a few remarks of my own.

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The main question in this application is whether the applicant can come again before the full court after the Court sitting in bane had previously heard and the Court consisting of five Justices on a fresh ground which was never canvassed and contested before the Court sitting with a panel of three Justices.

Dr. Renner-Thomas, Counsel for the applicant, relies on section 126(b) of the 1991 Constitution of Sierra Leone, Act No. 6 of 1991, and Rule 32 of the Rules of the Supreme Court, Public Notice No.1 of 1982 (The Rules) as the basis of the application. Section 126 (b) of the Constitution reads inter alia; "......three Justices of the Supreme Court acting in its civil jurisdiction may exercise any power vested in the Supreme Court not involving the decision of a cause or matter before the Supreme Court save that (b) in civil matters any order, direction or decision made or given by the three Justices in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Supreme Court constituted by five Justices thereof

This provision dealing partly with the composition of the Court in interlocutory matters has had a short but chequered history. The Constitution of Sierra Leone 1971; Act No. 6 of 1971, by section 66, established the Supreme Court in place of Her Majesty's Privy Council as the final Court of Appeal for Sierra Leone. Section 14 of the Constitution (Consequential Provisions) Act, Act No.9 of 1971, went further to provide that until the new Supreme Court was composed, its jurisdiction should be undertaken by the Court of Appeal as established under the 1971 Constitution. Pursuant to the 1971 Constitution, interlocutory matters in the Court of Appeal were heard by one Justice and his decision was subject to a review by three Justices of the Court of Appeal. When the Supreme Court was eventually set up, the Constitution of 1978, Act No. 13 of 1978 gave power to a single Justice of the Supreme Court to sit on interlocutory civil matters and his decision was subject to a review by three Justices. See Section 106 of the 1978 Constitution.

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Finally, the 1991 Constitution increased the composition of the court to three Justices and five Justices respectively in similar circumstances. Having poured this libation to Clio, I now turn to the issues in this application.

Dr. Renner-Thomas contends that the Registrar of the Supreme Court has not complied with Rule 31 of the rules. The salient requirements of this Rule are carefully spelt out in the ruling of my brother Thompson-Davis and I do not consider it necessary to repeat them here.

The application now before us concerns essentially the interpretation of section 126 (b) of the 1991 constitution and this can be done in the light of five scenarios.

1. Whether an application in interlocutory matters can properly be made to five Justices without a first recourse to the court consisting of three Justices.

2. Whether the application can properly be made to the court consisting of five Justices without any reference to a previous application adjudicated upon by three Justices.

3. Where an application has been disposed of by three Justices whether a further application can be made to five outright without stating that the three Justices erred in law or otherwise in making their order.

4. Whether after an application has been dismissed by three Justices a further application can be made to five Justices on a point that was not canvassed before the three Justices.

5. Where an application has been disposed of by five Justices after it has-previously been considered by three Justices, whether the full court can sit again on a further application on a new ground.

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With respect to scenario one, I see nothing in the section to prevent an interlocutory matter from being decided by five Justices in the first instance. I hold the view that the section was intended to ensure that such matters are dealt with expeditiously in the absence of a full court of five. But this does not mean that if the full complement of five Justices available, the application may not be made to them. Because of the position I have taken in respect of the other scenarios, let me hasten to say that here, an applicant can rely on any ground that will enable him to support his case.

Scenarios two, three and four have a common ground and I can conveniently consider them together. For my part, it will be absurd to conceive that Parliament, aware of the limitations on the composition of the Court inherent in section 121 of the 1991 Constitution, would have created a parallel situation in which applicants can indulge in forum-shopping at will without any apparent legal reason but merely with the expectation that the full Court might be more favourable disposed to them after they have tried with the Court of three to no avail. On this issue, I cannot but agree more with Warne JSC when this matter came up previously before five Justices. At that time, in a unanimous ruling of the court, he said: "In my view, this sub-section presupposes that the three Justices erred in law or otherwise to enable the applicant to invoke the provision of section 126(b) of the Constitution." See SC Misc. App. 2/99 Mohamed Juma Jalloh v. T Krishnakumar, unreported, ruling dated 26 October 1999. Again, in another ruling of the full Court which was also unanimous, I held a similar view when I said "Section 126(b) of the Constitution provides for an application to be made to the full Court consisting of five Justices when an applicant is not satisfied with an order made by the Court comprising three Justices." Also, on the question of a new ground before the Court consisting of five Justices this was what I said in the same case:" The argument now put forward is new as was the case in the Mohamed Juma Jalloh case. Such argument could have been relevant when the application came up before the three Justices." (See SC Misc. App. 5/93 Abu Black & ors. V. Rev. Archibald Gambala John (Executor of the Estate of late Rev. Gustavus Ademu John, unreported, dated 20th January 2000). What

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these rulings are saying, is that a Court of five sitting to review an order of a Court of three is not the proper place to raise a new ground.

Scenario number five is the one most relevant to the present application. The applicant in this matter is coming before the full Court a second time. His Counsel has argued with the greatest candour that he has no quarrel with the full Court's ruling of the 26 October 1999 which dismissed the application. He alleges that it was as a result of that ruling that he got the green light to have the records at the Supreme Court Registry searched. When the search was conducted by Mr. Unisa kamara, the searcher came out as if it were with the Archimedean exclamation "eureka" upon the discovery that there was no evidence on record that the Registrar of the Supreme Court had complied with the provisions of Rule 31(1) of the Rules. This finding is supported by the affidavit of Unisa Kamara swom to on the 29th day of December 1999. It is on the basis of this discovery that the applicant has invoked the jurisdiction of the Court to be heard a second time by a court made up of five Justices. In this second application, the applicant is challenging the Order made on the 22nd September 1999 by the three Justices on the ground that the said Order was not made in strict compliance with the provisions of Rule 31 of the Rules in that there is no evidence on record that the Registrar of the Supreme Court had acted in accordance with the provisions of that rule before the said Order was made. This is a new ground that was never canvassed in the previous proceedings.

In the first application before the five Justices, the applicant did not contend that the three Justices erred in law or otherwise. He proceeded on the basis that the Court was right in striking out the appeal, that he did not comply with Rule 35(2) of the Rules and he craved the indulgence of the Court pursuant to Rule 103 of the Rules to file the Certificate of service of the appeal as required by Rule 35(2), a thing that he had failed to do and which necessitated the striking out of the appeal. At that time the blame was on the doorstep of one M.A. Bangura. Part of the affidavit of Mohamed Juma Jalloh sworn on the 4th of October 1999 and filed in support of that application attested to this. It read:

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"5. That I am further reliable informed by my solicitor and verily believe that one of the solicitors of Renner-Thomas & Co., M.A. Bangura, Esquire, who was handling this matter left the jurisdiction on the 15th day of July 1999 for further studies.

6. That I am further reliably informed by my Solicitor and verily believe that the said solicitor M.A. Bangura, Esquire, did not inform the other solicitors in the firm of Renner-Thomas & Co that a certificate of service had not been filed.

9. That I am reliably informed by my solicitor and verily believe that failure to file a certificate of such service was not deliberate but was due to the inadvertence on the part of the said M.A. Bangura.'

This, to my mind, could have been a valid excuse for non-compliance with the Rules but the court in the first application was not moved by it, the reason being that the proper place where the excuse, a new ground, could have been raised was in the Court of three Justices. It was then that the Court formulated the rule that for an application against the order of three Justices to succeed, the applicant must show that they erred in law or otherwise. The full Court then dismissed the application. It was not struck out. Finding himself in a dilemma and in a bid to salvage the situation, the applicant in this second application now challenges the Order of the three Justices made on 22 September 1999 by raising a new ground which was never canvassed before the three Justices or even before the full Court. But can he do this successfully now in this second application before the full court? In my view, not having raised the new ground before the Court of three in the first instance as the appeal was struck off and not dismissed, what the applicant should have done was to go back to the Court of three with his new ground before ever resorting to the Court of five.

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In my judgment the applicant has an up-hill task. By raising non-compliance with Rule 31 of the rules at this stage, he is relying on a new ground, which has never been canvassed before the Court sitting with three Justices in the first instance. The alleged ground was in existence right from the beginning of these applications and it could have been discovered with the exercise of the utmost care and diligence. This is as far as I can go on the fate of the new ground.

I agree with Counsel for the Respondent that the basic issue in this application is whether after the five Justices have dismissed the first application, the applicant can come before them again. I hold the view that he cannot. As this is the main issue on which I part company with my learned brother E.C. Thompson-Davies, JSC, I find it necessary to elaborate further. The constitutional provision in section 126(b) and the rulings of Warne JSC and mine to which I have already referred do not allow repeated appearances before the full Court in such a circumstance as the one now before us. These reasons apart, I hold that there must be an end to litigation. In the first application before this Court consisting of five Justices for the appeal to be reinstated there was a full argument by counsel on both sides on the merits of the application before it was dismissed, it was not struck out which if it had been the case there might have been a possibility for its renewal for reasons other than the discovery of a new ground. Sacrificing repetition on the altar of emphasis, I maintain that in dismissing that application, the Court categorically came to the conclusion that for an applicant to succeed before the full Court from a ruling of the Court of three it must be shown that that Court erred in law or otherwise. Unless the full Court is now prepared to exercise its constitutional right inherent in section 122(2) of the Constitution and say unequivocally that it is departing from its previous stance taken in the first application, I do not see my way through to accommodate the application with or without a new ground which has nothing to do with a mistake of law or fact by the Court sitting with three Justices.

The fact that the decision was interlocutory does not, in my view, entitle the applicant to come before the full Court again on the same issue, i.e. whether or not the appeal should

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be reinstated. In taking this stance I derive additional strength from the decision of the West African Court of Appeal case of Emanuel Onalaja v.nE.A. Oshinubi 12 WACA 503, 504 in which Varity CJ. delivering the judgment of the Court said: "The Courts have not infrequently intervened to prevent the perversion to base uses of bare right to reopen matters already litigated where no estoppel per rem judicatam has been strictly observed. Thus where estoppel per rem judicatem has not been sufficiently pleaded or made out but the circumstances are such as to render re-agitation of the question formerly adjudicated upon a scandal and an abuse, the Court will not hesitate to dismiss the action." Having reached this conclusion, it is my considered view that the Court cannot entertain this application and adjudicate on the merit or demerit of Rule 31 of the Rules. This is not to say that this Court being the highest Court of Appeal in this land cannot adjudicate on every matter that is brought before it, but in my opinion the matter must arise from an action or application in which the litigant has a locus standi and which the Court entertains. For my part, this application is not one of such situations.

H.M. JOKO-SMART, JSC.