SC MISC. APP. 6/2000

IN THE SUPREME COURT OF SIERRA LEONE

AND

IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE 1991

In the matter of an application under section 125 of the Constitution of Sierra Leone, Act No.6 1991 and under the common law for leave to apply for an Order of Certiorari and for directions and consequential Orders and in the matter of the English Supreme Court Rules

And

In the Matter of the Anti-Corruption Act 2000

AND IN THE MATTER

BETWEEN

EXPARTE MUCTARU OLA TAJU-DEEN                                        - RESPONDENT

And

THE COMMISSIONER of the Anti-Corruption Commission               - 1ST APPLICANT

THE ANTI-CORRUPTION COMMISSION                                     - 2nd APPLICANT

And

THE STATE Represented by the ATTORNEY- GENERAL

& MINISTER OF JUSTICE                                                   - 3RD APPLICANT

CORAM                  Hon. Mr. Justice D.E.F. Luke                  CJ

Hon. Mr. Justice A.B. Timbo                   JSC

Hon. Mrs. Justice V.D.A Wright              JSC

Hon. Mr. Justice H.M. Joko Smart          JSC

Hon. Mr. Justice S.C. E. Warne             JSC

Mr. S.E. Berewa, Attorneys-General & Minister of Justice and Mr. Kebbie, DPP, for the Applicants

Mr. C. Doe-Smith and Mr. T.M. Terry for the Respondent

Judgment delivered on........18th...........day of...January..............2001 JOKO SMART. JSC The Background

It is Government's policy to root out corruption in the public service. Pursuant to this policy the Anti-Corruption Act, 2000 Act No.1 of 2000 was passed. The Act does not discriminate between public officers by reason of positions they hold or status in the society. Even judges can fail foul with it. The legislation provides for a Commission whose functions include the investigation of instances of alleged or suspected corruption referred to it by any person or authority or which has come to its attention whether by complaint or otherwise and the taking of such steps as may be necessary for the eradication or suppression of corrupt practices. Where after an investigation, the Commissioner is of the opinion that the findings of the Commission warrant consideration by the Attorney-General and Minister of Justice as to whether criminal action may be taken thereon, he sends the report of the investigation to the Attorney-General. An adverse finding of guilt of corrupt acquisition of wealth is to be referred to the Attorney-General and Minister of Justice. If after examining the report the Attorney-General and Minister of Justice decides that there are sufficient grounds to prosecute the public officer, he pursues the case in the courts.

Sometime in July 2000, an acting judge of the High Court was suspected of having offended against the Act. That judge is the Hon. Mr. Justice Muctaru Ola Taju-Deen. The Commissioner of the Anti-Corruption Commission sent a report of an investigation on the judge to the Attorney-General and Minister of Justice. The judge was eventually charged on a 12 count indictment and he appeared before the High Court. On 24 August 2000 while the trial was in one Court, Justice Taju-Deen applied to another judge of the High Court for leave to proceed on certiorari for the report of the Commission on him to be quashed. The leave was granted. On the 26 August 2000, he made a second application to the same judge for quashing the report. That application was dismissed. Later, he made a fresh exparte application to the Supreme Court for leave to proceed on certiorari to quash the report. Leave was granted. Under the 1991 Constitution, he can apply for certiorari to the High Court (section 134) or to the Supreme Court (section 125).

The ex-parte application On an ex-parte application made to the Supreme Court on the 6 day of December 2000 the Respondent herein then applicant sought the following orders:-

(1) An Order granting leave to the Applicant herein Muctaru Ola Taju-Deen for an Order of Certiorari to issue both under the Common Law and section 125 of the 1991 Constitution of Sierra Leone to bring up to the Supreme Court for the purpose of its being quashed the purported Report and/or the purported undated Extracts of the alleged Findings of the Anti-Corruption Commission signed by the Commissioner of the Anti-Corruption that evidence exists of alleged non-existing offences against the Plaintiff herein under a Non-existing Act to wit the purported Anti-Corruption Commission Act 2000 upon grounds of failure to observe one of the fundamental principles of Natural Justice, Committal of Error of Law on the face of the Records and several other errors of law, want of

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jurisdiction and/or excess of jurisdiction, as set forth and contained in the copy Statement herewith exhibited to the affidavit in support of the Application.

(2)   An interim Stay of the Criminal proceedings Holden at High Court No.1 before the Hon. Mrs Justice Patricia Macauley in the case between THE STATE vs. HONOURABLE JUSTICE MUCTARU OLA TAJU-DEEN pending the hearing and determination of the application for the Order of Certiorari if the leave is granted by the Honourable Supreme Court under the first Order prayed for above.

(3) Such further OR other Orders as this Honourable Court may deem fit to make.

(4) That the costs of and occasioned by this Application be costs in the cause.

The Motion was supported by the Affidavit of Muctaru Ola Taju-Deen sworn to the 2 December 2000 to which were attached several exhibits.

On the 19 December 2000 this Court sitting with three justices granted the orders prayed for except the one in para 2 of the motion paper. The Court also made the consequential orders that the Respondents be served the relevant papers within four days of this order and that the application for the Order of Certiorari be heard on the 2 January 2001.

The application now before this Court

Before 2 January 2001, the Commissioner of the Anti-Corruption Commission, The Anti-Corruption Commission and The State represented by the Learned Attorney-General and Minister of Justice, the 1st, 2nd and 3rd Applicants respectively, filed a Notice of Motion dated 20 December 2000 which is the subject-matter of the Application now before us seeking an order that the Order made by this Court on the 19 December 2000 granting the respondent herein leave to apply for an order of Certiorari to issue be discharged on the following grounds:-

(1) That in making the application ex-parte resulting in the granting of the said order the respondent herein failed to make full and frank disclosure of material facts and/or did not fulfil the requirements of observing the utmost good faith in the making of the said ex-parte application in that (a) he failed to disclose to this Honourable Court the fact that he had earlier made identical application to the High Court against the same parties and the application was dismissed by the High Court (b) in the said application the High Court had determined the issue as to whether an Order for certiorari will lie against the Anti-Corruption Commission.

(2) That the Applicant's proper course, after the earlier application referred to in (1) above had been dismissed by the High Court was, in law, not to file an identical application in this Honourable Court but to appeal against the Order of the High Court dismissing the said earlier application.

(3) That the Respondent is precluded by the doctrine of estoppel per rem judicatam from making an application the subject-matter of the application herein.

(4) Such further or other Orders as this Honourable Court may deem fit to make.

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The Motion is supported by two affidavits sworn to by Lahai Momoh Farmah, Senior State Counsel. The first, sworn to on 20 December 2000, exhibits the Judge's Summons of the 26 August 2000 which the applicants alleged had been dismissed by the High Court (exhibit "A") together with nine other exhibits among which are (a) a Statement dated 26 August 2000 filed by the Applicant in support of the judge's Summon's (exhibit "D"), (b) the Respondent's ex-parte Motion of the 6 December 2000 before this Court (exhibit "F") and (c) the order nisi of this Court made on the 20 December 2000 (exhibit "J"). These specific exhibits are the ones most relevant to the matter now before us. The second affidavit, a supplemental affidavit, sworn to on 30 December 2000, exhibits a certified copy of the whole proceedings in the judge's Summons, (exhibit "K") and the ruling of the judge (exhibit "L").

The respondent filed an Affidavit in Opposition dated 20 December 2000 in which he exhibited a certified extract of the proceedings in the judge's summons (exhibit "MOTD"). By this exhibit, the respondent for the first time made a clean breast to this Court of the judge's Summons.

The Arguments

Mr. Berewa, Attorney-General, Counsel for the applicants, underlined two issues as forming the nerve centre of the case for the applicants. One is that the respondent failed to disclose material facts to this Court when he made his exparte application for an order nisi, the material fact being the proceedings of the judge's Summons which culminated in a decision. The other is that the decision by the judge in that summons raises the issue of judicata per rem in respect of the Respondent's exparte application.

Non-Disclosure

To buttress his posture on the effect of non-disclosure, Mr. Berewa referred us to two cases: The Haqen M908 - 101 All. ER 21 and The Andria [1984] 1AII .ER 1126. In The Hagen the facts of which I find unnecessary for repetition in this judgment, Farwell LJ said at page 26:-

"In as much as the application was made exparte, the fullest disclosure was necessary, as in all exparte applications, and a failure to make a full disclosure would justify the court in discharging the full order, even though the party might afterwards be in a position to make another application."

In the case of The Andria, concerned with an arrest of a ship on a warrant based on an affidavit filed by the plaintiffs which failed to disclose the existence of arbitration proceedings or that arbitration was actively pursued, and the defendant's protection and indemnity club furnished an undertaking to the plaintiffs that the club would pay any sum awarded to the plaintiffs in return for the ship's release from arrest, Robert Goff LJ had this to say at page 1135:-

"Though we do not for one moment suggest any bad faith on the part of the deponent, the fact is that the affidavit sworn to lead the warrant of arrest failed to disclose facts which were material to the issue of the warrant; and, as a result of the non-disclosure, the warrant was issued and thereafter the ship was arrested. It follows, in our judgment, that the invocation by the

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appellants of the court's jurisdiction to arrest the ship amounted in the circumstances of the case to an abuse of process of the court and that the club's letter of undertaking must be discharged".

Exhibits "K" and "L" of the supplemental affidavit in Opposition which provides the first inkling of what transpired before the judge, though belatedly, tells the whole story. Exhibit "K" gives in detail arguments by both sides on the objection to the jurisdiction of the court to hear the Summons on the ground that the Anti-Corruption Commission was neither a court nor an adjudicating authority and therefore the court was not competent to quash the report of its findings in exercise of its supervisory powers over inferior courts and adjudicating authorities pursuant to section 134 of the 1991 Constitution. Exhibit "L" is the ruling of the judge that the Commission was neither a court nor an adjudicating authority. On the basis of these exhibits and the authorities cited, Mr. Berewa asks for the exparte order nisi given by us to be discharged.

In reply to this particular issue, Mr. Terry, Counsel for the respondent, made five submissions which I can glean from his several submissions. Three of them appear to be general on the whole issue in controversy and the others are specific to the question of non-disclosure. One submission is that once an order nisi has been granted the Court cannot listen to a complaint against the order before the substantive hearing for the order of certiorari but that it may do so at the hearing when it is sought to make the order absolute. The second is that if at all the Court can look into the complaint before the substantive hearing, the party affected by the order nisi must show that the court was wrong in making the order. The third is that a court has a discretion to set aside its exparte order but in doing so the court should hold a balance between the ordinary citizens inter se and the citizens on the one hand and the state on the other. For this submission he relies on a passage from the judgment of Kutubu CJ in the case of The State vs. Adel Osman and Others [1988] LRC (Const) 212 at 221. The fourth is that there is no obligation on the exparte applicant to make a full and frank disclosure of material facts but that all he needs to do is to show that he has a locus standi and to establish a prima facie case. For this submission he relies on the decision of the court in Harry Will vs. Attorney-General & Minister of Justice. Mis. App. No. &/99. (unreported, ruling delivered on 23 March 2000). The fifth submission is that the principle of full and frank disclosure is elementary but that it does not apply to certiorari proceedings. With due respect for the high quality of the research ability of counsel, I find nothing in the cases cited by him that supports the propositions which he posits. In particular, in the Harry Will case, Luke CJ merely stated the conditions on which an order can be made on an exparte application. Non-disclosure of material facts was not in issue and therefore the Court did not address itself to it. I will come back to the first three submissions later.

Disclosure of material facts is, to my mind, incorporated into the principle of natural justice encapsulated in the doctrine of "audi alteram partem" which is cardinal in the rule of law. No man can be condemned behind his back in respect of either his person or his property. Exparte applications are merely intended to enable a litigant to have an expeditious access to the court without notifying the other party in a matter between them when that litigant's legal right is in danger and if he is to give the other party a proper notice of his intention to go to court, delay will defeat the ends of justice. Exparte applications must, to use a feline phrase, let the cat out of the bag. Disclosure of material facts when such an application is made in the absence of the other party, enables the court to bridge the lacuna created by the absence of the other party and to hold the scale evenly between them. This is the reason why an applicant must make a clean breast of material issues to

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the court to which the application is made. It is a duty which the applicant owes to the court which I hold the respondent herein did not discharge when he made his exparte application. The proceedings before Massallly.J, in the High Court were very material to be disclosed to this Court when the Exparte Application was made. It might not have made any difference to the outcome of the Court's decision if that material fact was revealed. On that occasion, the Court might have exercised its discretion to ask the Applicant herein to take part in the exparte proceedings before it as it did in the Harry Will case.

Having said all this, I will go back to The Haqen case in which Lord Alverstone CJ articulated the point which I am making before discharging the exparte order.

"If I had felt that Hargrave Deane J., had taken all' the facts into consideration and had come to a conclusion upon them, I should hesitate to interfere with his decision, but looking at the judgment I can find nothing to show that he did. I come to the conclusion that he has not exercised his discretion, and I think it is a jurisdiction that ought to be very carefully exercised" (at page 26).

In the light of this statement of Lord Alverstone CJ,, which I fully endorse, can we say that we really exercised our discretion when the full facts were not known to us? With reluctance, I apprehend that we did not.

In the cases which I have relied upon for the effect of non-disclosure, it was an Appeal Court that had to vacate an order of a lower court. In the light of this and section 122 of our Constitution, a searching question which I now pose is whether we have the power to vacate our own order. Section 126(b) of the Constitution specifically gives us that power in civil matters that have been decided by three Justices but there is no specific provision for criminal cases. Mr. Berewa urged that we can. Mr. Terry, on the other hand, did not deny that we cannot. What he submitted is that we may do so but only if the issue is raised at the substantive hearing of his application and when it is shown that we erred in law in making the order. This leads me into the field of autonomy. On binding precedent, section 122 of the Constitution enable us, as the highest court in the land, in the interest of justice, to depart from previous decisions which we take. A restrictive interpretation of a "previous decision" is a decision that has been taken in some other cause. I would not regard an order made in an interlocutory proceedings by a court to be a previous decision. Nevertheless, to my mind, this court or any other court has an inherent right to discharge any such order if justice requires it. This is where I agree with the third submission of Mr. Terry, the principle of which, I have stated, he perhaps inadvertently attributed to Adel Osman's case.

The estoppel question

Mr. Berewa for the applicants articulates that when the judge dismissed the application before him the proper course for the applicant to have pursued was to appeal as provided for under section 63 of the Courts Act, 1965, Act No. 31 of 1965. That section provides for appeals from the High Court to the Court of Appeal from any decision of the Supreme Court in exercise of its prerogative or supervisory jurisdiction in criminal matters.

The learned Attorney-General argues that instead of appealing, the respondent herein came to us on certiorari on the same matter that the High Court has taken a decision upon

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and we gave the respondent leave to proceed with the certiorari. He contends that, in the circumstances, the respondent is estopped from raising the same issue, if I may put his case so very simply. He referred us to several authorities on estoppel. I will mention here the ones I regard as relevant to the matter before us. In Foli and Others v. Aqya-Atta and others [1976] 1 G.L.R. 194. the Court of Appeal of Ghana held that estoppel per rem judicatam applies where an action is dismissed if the dismissal involves a determination of any particular issue or question of fact or law. Amissah JA, in his judgment at page 200 of the report made the following pronouncement on estoppel adopting the view of Spence-Bower and Turner, on Res Judicata, second edition, 1969, page 28:-

"When an action, or motion, or application, is dismissed by a judicial tribunal after a trial or hearing, it is often a question whether anything can be said to have been decided, so as to conclude the parties, beyond the actual fact of the dismissal. The answer to this inquiry depends upon whether, on reference to the record and such other materials as may; properly be resorted to, the dismissal itself is seen to have necessarily involved a determination of any particular issue or question of fact or law in which case there is an adjudication on the question or issues; if otherwise, the dismissal decides nothing except that the party has been refuse the relief which he sought."

In another case, Thodav V. Thodav [1964] 1 All ER 341. Diplock, LJ in the English Court of Appeal, gives two instances of estoppel that will prevent a litigant from bringing an action when a previous one has been decided by a court. One is "cause of action estoppel" and the other is "issue estoppel". He defines "cause of action estoppel" as that

"Which prevents a party to an action from asserting or denying as against the other party, the existence of a particular cause of action the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties... If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the same judgment... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does. This is simply an application of the rule of public policy." (at page 352)

He continues on issue estoppel.

"The second species which I will call 'issue estoppel' is, an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action if in litigation on one such cause of action any of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation

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determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. (at page 352)

The statement which Diplock makes refers specifically to estoppel in civil litigation. Mr. Terry argues the question of estoppel from two vantage points. One is that estoppel is not applicable to certiorari proceedings and he relies on the judgment of May LJ in Rv. Secretary of State for the Environment Ex part Hackney London Borough Council and another [1983] 3 All ER 358. where he said:

"In such (judicial review) proceedings there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the first application will have decided. Moreover, we do not think that there is in proceedings brought under RSC ord. 53 a true lis between the crown in whose name the proceedings are brought and the respondent or between the exparte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision; the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute"

In his reply to this point, Mr. Berewa referred us to the decision of the Court of Appeal when this case went on appeal but he did not elaborate. After careful perusal of the case on appeal, I found that the judgment of the Divisional Court was upheld. Dunn LJ said:-

The Divisional Court was right to hold that the doctrine of issue estoppel cannot be relied upon in applications for judicial review although the court has an inherent jurisdiction as a matter of discretion in the interest of finality not to allow a particular issue which has already been litigated to be opened. This depends on the special nature of judicial review under RSC Ord 53, which makes it different both from ordinary civil litigation inter partes and from criminal proceedings". [1984]1 ALL ER 956 at 964)

I am grateful to both counsel for referring me to these two reports. For my part, I agree with the premise but not with the conclusion which Mr. Terry reached. The statements which the two lord justices made should not be taken out of context. The Hackney case should be considered with circumspection. There is another case which is linked with it in a chain of events: it immediately precedes the Hackney case in the same volume of the All England Law Reports. It is R.v. Secretary of State for the Environment, ex parte Brent London Borough Council and another [1983] 3 All ER 321. In that case six applicants including Hackney and Camden Borough Councils applied for and obtained orders for certiorari. An issue that was decided by the court was that on a specific date "the applicants were entitled to receive (from the Secretary of State) the rate Support Grant order 1979 as thus increased; thus the decision (made on 26 January 1981) to reduce the applicants' rate support grants adversely affected not merely an expectation but a right to a substantial sums of money". See judgment of Ackner, LJ at pp. 354, 355.

But the judgment did not end there. It left it open to the Secretary of State, "after considering the applicants' representations, now fully documented to make any decisions he considers right," (See page 357.)

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Two of the applicants in the Brent case, i.e.. Hackney and Camden, made a further application for certiorari in the Hackney case. Their complaint was, among other things, that the Secretary of State had deferred payment on their entitlements and reduced their grants and contending that their entitlement had been fixed by the judgment and that the Secretary of State was estopped by the judgment. The Secretary of State submitted that on the previous application, which the court accepted, all that was decided was that he had failed to hear last minute representations and that the court did not hold that he could not lawfully make a decision to reduce the grant. As can clearly be seen, the issues raised in the two cases were different. May LJ pointed out the difference when he said:-

"In the present case, however, we think that there are two answers to the powerful submissions on this point, (i.e. issue estoppel) made by counsel for the applicants. First, although on their face the passage from the first judgment do appear to contain a finding in favour of the present applicants on the particular issue, in our opinion, a careful reading of the context in which the passages occur, makes it quite clear that the court on the first occasion was not purporting to make the finding for which counsel for the applicants contends. In the first place, the circumstances in which and the times at which the Secretary of state was liable under the Statute to make payments of rate support were not in issue on the earlier application." (at p. 365)

Going back to the prior opinions of May and Dunn LJJ, I think they should be viewed from the peculiar nature of judicial review in which the court does not determine the validity of the order of the tribunal as between the parties but merely decides as to whether there has been excess or lack of jurisdiction. This does not mean that if a legal point arises and the court takes a decision on it, an issues estoppel cannot be eventually asserted to sustain it.

I do not find it necessary to draw a line between judicial review in England and certiorari proceedings here which the learned Attorney-General tried to make. The conclusion which I have reached will be the same if I do so.

I think that what is in issues in the case before us is actually not one directly concerned with certiorari. To my mind we should not confuse certiorari proceedings with what actually transpired before Massally, J. He did not go into the question as to whether or not the Anti-Corruption Commission acted contrary to or in excess of its statutory authority. Instead, an issue was raised in what was going to be certiorari proceedings. The identity of the Commission, the body against which the judge was to make a certiorari order was in issue and the judge decided that he could not proceed with the certiorari proceedings because the Commission was neither a court nor an adjudicating authority. If he had proceeded with certiorari, after his decision that he lacked jurisdiction, his decision thereafter would have amounted to a nullity. See Macaulav V. Commissioner of Police (1968 - 69) ALR SL 9, paqe14.

It is in this vein, to my mind, that the doctrine of estoppel should be considered.

The other plank of Mr. Terry's posture on estoppel is that the dismissal of the application before Massally J. amounts to a mere refusal based on an issue during the proceedings and that no decision was taken on the merits of the application for certiorari issue i.e., the cause of action; therefore, the respondent cannot be precluded by estoppel when he comes to the Supreme Court. If I get him right, Mr. Terry is saying that there was no final

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decision on the cause of action to attract estoppel. With respect to the learned Counsel, this argument is fraught with two misconceptions. First, it suggests that estoppel per rem judicatam does not apply to a final decision on an issue in an interlocutory matter. This is "issue estoppel". Both "cause of action estoppel" and "issue estoppel" need not coincide before estoppel per rem judicatam can be raised. They are independent of each other. In reaching this conclusion, I lean heavily on the Foli and Thoday's cases herein-before mentioned and to the decision in the English Queens Bench Division case of R.v. Governor of Brixton. ex parte Osman (No.1) [1992] 1 All ER 108. This was an application for habeas corpus but the principle stated therein, in my view, applies to certiorari as well. The facts are very revealing. The applicant, Osman who was in remand at Brixton prison awaiting extradition to Hong Kong to face criminal charges made three unsuccessful applications for a writ of habeas corpus. In the third application he sought the disclosure of some official documents and he was granted. In a fourth application he sought the disclosure of nine other official documents but the court refused it on the ground of irrelevance. Osman made a fifth application in which he again sought the disclosure of the nine documents referred to in the fourth application. Thereupon, the Secretary of State moved the court for the parts of Osman's affirmations which either referred to or quoted from the nine documents to be struck out, one of the grounds being that the court's decision in the fourth application refusing further disclosure on the basis of irrelevance resulted in an issue estoppel which prevented Osman from later asserting that the documents were relevant. In the judgment of the court this was what Mann LJ said.

"The issue estoppel in this case is said to arise from the decision of this court on 20 January 1990. That was a decision on an interlocutory application. That it was a decision on an interlocutory application does not, in my judgment, disable it from an ability to give rise to an issue estoppel. I can see no reason in principle why a final decision upon an interlocutory application should not be in this regard treated as any other decision." (p. 118)

My second reason for disagreement with Mr. Terry is that it is not necessary for a court to make a final pronouncement on the merits of a case before estoppel can be invoked. If I get Mr. Terry rightly again he is referring to "cause of action estoppel" which I have held to be independent of "issue estoppel". The jurisdictional issue that the respondents articulated before the judge pivoted on the identity of the Commission. The judge made a decision on it. This, to my mind, would give rise to issue estoppel on that issue. In taking this stance, I also derive support from the judgment of Simon Tuckey, Q.C. a deputy judge of the Queens Bench Division in Palmer & Anor v. Dunford Ford fa Firm) and Anor. [1992] 2 All ER 122. at page 128 in which he states what I regard as a correct statement of the law as follows:-

The plaintiff contends that this was not a final decision of the court because the court did not itself pronounce on the merits of the claim. I disagree. I think that a final decision for this purpose is one which would give rise to a plea of res judicata. Such a decision is one which leaves nothing to be judicially determined or ascertained thereafter in order to render it effective."

Mr. Berewa, in his argument, emphasizes that the cause of action was in fact decided. I apprehend, with the greatest respect, that this was not done as the judge did not go into the merits of whether the Anti-Corruption Commission acted within or outside its mandate conferred by the Act. Mr. Berewa referred us to Hines v. Birkbeck College (N0.2) [1991]

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4AII ER 450 but Mr. Terry did not mention it to buttress his argument on estoppel not arising when a cause of action has not been decided on its merits. In this case, the plaintiff, a professor of Economics at a college in London University, issued a writ claiming that his College had wrongfully dismissed him. The judge struck out the claim on the ground that the subject matter of the claim was exclusively within the jurisdiction of the Visitor to the College. There was no hearing on any issue. Later, the Education Reform Act 1988 came into force giving the court jurisdiction over disputes concerning the appointment or termination of the appointment of a member of the University staff. The plaintiff thereupon issued a second writ in identical terms to the first alleging wrongful dismissal. The college and the University applied without success to strike out the second action on the ground, inter alia, of res judicata. This was a case of "cause of action estoppel" but it must be noted that the court refused to go into the merit in the first instance by virtue of the fact that no jurisdiction was vested in it over such matters. It is distinguishable from the Taju-Deen case before us in that the court in the instant case ruled that it had jurisdiction to supervise inferior courts or adjudicating bodies but that the Anti-Corruption Commission was neither a court nor an adjudicating body.

In my judgment, a case of "issue estoppel" could arise if it is sought to re-open the question of the identify of the Anti-Corruption Commission as a court or adjudicating authority but not a "cause of action estoppel". I am fortified on this stance by the judgment of Diplock LJ in Fidelitas Shipping v. V/O Exportchleb n9651 2 All ER4. 10 where he says:

"Where the issue separately decided is not decisive of the suit, the judgment on that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance arguments or adduce further evidence directed to show that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment."

Conclusion

This is as far as I can go on the arguments presented to us by counsel on both sides. I cannot, however, at this stage, rule whether or not estoppel applies because the application before us at present is to discharge the order nisi. I uphold Mr. Terry's submissions that the appropriate stage for a determination on estoppel is at the substantive application for certiorari and I may add, at any other proceedings which the Respondent may institute. It suffices only to hold and I so hold that the application succeeds on the ground of non-disclosure of material facts.

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