IN THE SUPREME COURT OF SIERRA LEONE

SC. MISC. APP. NO. 4/92

CORAM :- HON. MR. JUSTICE S.M.F. KUTUBU - C.J.

(PRESIDING)

HON. MRS JUSTICE A.V.A. AWUNOR-

RENNER - J. S. C.

HON. MR. JUSTICE M. O. ADOPHY - J. A.

BETWEEN :- ISATU KAMARA                                - APPLICANT

VS THE ATTORNEY GENERAL                              - RESPONDENT

SOLICITORS :- A.F. SERRY-KAMAL, ESQ., with him F. M. DABO, ESQ., of Counsel for the Applicant. MISS G. ATTIBA-DAVIES of Counsel for the Respondent.

RULING delivered this 11th day of August, 1992 by KUTUBU, C.J. - PRESIDING.

RULING - These certiorari proceedings are brought on behalf of the Applicant, Isatu Kamara, by Learned Counsel, Abdul Franklin Serry Kamal for an Order of certiorari to quash the order of the Nylander Commission of Inquiry given on the 8th day of July, 1992, resulting in the conviction and imprisonment of Applicant, a witness before the said Commission for a period of 21 days.

The grounds of the application according to the statement dated 9th July, 1992 inter alia are as follows :-

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1. That the Commission exceeded its jurisdiction in convicting and sentencing applicant. 2. That the Commission acted in excess of jurisdiction in convicting and sentencing applicant. 3. That the Commission acted ultra vires in convicting applicant summarily. Applicant relies on the Affidavits of Isatu Kamara and Fode Maclean Dabo both sworn to on the 24th day of July, 1992 and filed together with the exhibits. Exhibit "A" herein is the Certified True Copy of the record of proceedings of the Nylander Commission of Inquiry, dated 8th July, 1992, touching and bearing on Isatu Kamara.

It is necessary, we think, to give in brief form, the origin and source of the Nylander Commission of Inquiry; and the facts relating to these proceedings before us. Suffice it to say that the Lynton Nylander Commission of Inquiry is a creature of statute, established by the National Provisional Ruling Council (N.P.R.C.), in exercise of the powers conferred upon it by Sections 2 and 6 of the Commissions of Inquiry Act, CAP.54 Laws of Sierra Leone, 1960 as adapted by the Proclamation entitled "THE ADMINISTRATION OP SIERRA LEONE (NATIONAL PROVISIONAL RULING COUNCIL) PROCLAMATION, 1992 P.N. NO.20 of 1992, with the following terms of reference :-

1. To inquire into and investigate the financial administration from the 1st day of June, 1986 to the 22nd day of September, 1991 of

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Government Ministers or Departments, Local Authorities, Parastatals including Public Corporations and the Bank of Sierra Leone, or Commissions or Councils established under the Constitution, and ascertain -

(a) whether or not any malpractices or irregularities were committed by any person with respect to those activities;

(b) the nature and extent of the malpractices and irregularities;

(c) the sums of money, and the identities of persons involved in such malpractices and irregularities,

2. To inquire into and investigate any persons or matters as from time to time be referred to the Commission by the National Provisional Ruling Council,

Isatu Kamara, applicant herein, and a witness before the Nylander Commission of Inquiry was on Wednesday, 8th day of July, 1992 found guilty of perjury and sentenced to 21 days imprisonment at the Central Prisons, Pademba Road, Freetown, under Section 3(a) of the National Provisional Ruling Council Decree No.4, 1992 - Commissions of Inquiry (Additional Powers) Decree, 1992.

Section 23(a) of N.P.R.C. Decree No. 4 of 1992 states:-Any person who makes any false statement to any Commission issued under the Commissions of Inquiry Act, knowing those statements

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to be false or which he has no reason to believe to be true, shall be guilty of contempt, punishable by imprisonment or fine.

It will suffice to state at this Juncture that the offence of perjury in the Commissions of Inquiry Act CAP 54 Laws of Sierra Leone, 1960 is created by Section 11 of that Act - and it states :-

Section 11 - "Any witness who shall wilfully give false evidence in any such inquiry concerning the subject matter of such inquiry shall be guilty of perjury and be liable to be prosecuted and punished accordingly".

On 10th July, 1992 an application for leave to apply for an order of certiorari was made to this Court by Isatu Kamara against the orders of Hon. Mr. Justice Lynton B. O. Nylander dated 8th July, 1992 between :-

ISATU KAMARA - APPLICANT

AND

ATTORNEY GENERAL - RESPONDENT In the said application, Counsel sought to invoke the supervisory jurisdiction of this Court under Section 125 of the Constitution of Sierra Leone, 1991 Act No.6 of 1991 and also Section 148 of the said Constitution which deals with the powers, rights and privileges of Commissions of Inquiry.

Section 125 of the Constitution of Sierra Leone states :

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"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 directives orders or writs including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers".

Section 2(1) of the PROCLAMATION - THE ADMINISTRATION OF SIERRA LEONE (NATIONAL PROVISIONAL RULING COUNCIL) PROCLAMATION, 1992, Public Notice No.20 of 1992 provides for the suspension of certain provisions of the Constitution of Sierra Leone Act No.6 of 1991. It states :-

"All provisions of the Constitution of Sierra Leone, 1991 which came into operation on the 1st day of October, 1991 which are inconsistent or in conflict with this Proclamation or any Decree made thereunder shall be deemed to have been suspended with effect from the 29th day of April, 1992",

As far as we are aware, Section 125 of the Constitution of Sierra Leone 1991, Act No.6 of 1991, which invests this Court with supervisory jurisdiction over all other Courts in Sierra Leone and over any adjudicating authority has not been suspended and is still operative.

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Counsel for applicant complained of passages here and there in exhibit "A" the record of proceedings of the Nylander Commission of Inquiry touching and bearing on applicant Isatu Kamara. We have carefully looked at these passages.

For the purposes of this ruling, and to avoid prolivity, we have thought it expedient to reproduce verbatim, only the exchanges which took place between the Chairman and the applicant, after the Commission had decided to find the latter guilty of perjury. It runs thus :

Mr. Chairman : The Commission has decided that you are quilty of perjury. Mrs Kamara : Can I say something my Lord?

Chairman : Will you wait, I have finished with that. I have just specified two points in which we are not at one with. You said you started in 1991 and we are satisfied that you started before then. You said that you were given a letter from Mr, Sheriff, though he says that he could not recall, but categorically said that the Managing Director directed him then. This is what we say, we have found you guilty of perjury contrary to Sections 3A of the decree, 1992. As such, I will not levy the ultimate or maximum punishment which this section calls for, but from here, forthwith, you will be taken to

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the State Prison at Pademba Road, where you will be kept until July, 29th and you will be brought here again for the continuation of the examination. Have you got anything left? Let the Officers come and take custody of her.

Mrs Kamara : My Lord can I say something or can I explain myself?

Mr. Chairman: When we come back.

We have taken this step for purposes of clarity and to put things in their proper perspectives.

The issue before this Court is whether his Lordship Lynton B. O. Nylander had Jurisdiction to find applicant guilty of perjury under Section 3(a) of the National Provisional Ruling Council Decree No.4, 1992 - Commissions of Inquiry (Additional Powers) Decree, 1992 as he did. I am constrained once more to refer to the provisions of Section 3(a) of N.P.R.C. Decree No.4 of 1992 which states:

"Any person who makes any false statements to any Commission issued under the Commissions of Inquiry Act knowing those statements to be false or which he has no reason to believe to be true, shall be guilty of contempt."

From the foregoing, I can only say, with respect, that the Hon. Chairman acted in error in finding applicant guilty of perjury instead of contempt as provided by Section 3(a) of N.P.R.C. Decree No.4 of 1992, thereby acting in excess of

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Jurisdiction.

Even if the Hon. Chairman had jurisdiction to find the applicant guilty of perjury, certain procedure must be followed before conviction and sentence.

It is provided by Section 11 of the Commission of Inquiry Act CAP.54 Laws of Sierra Leone, 1960 as follows :-

Any witness who shall wilfully give false evidence, in any such inquiry concerning the subject—matter of such inquiry shall be guilty of perjury, and shall be liable to be prosecuted and punished accordingly". The prosecution will then be a matter for the Attorney- the General and the Director of Public Prosecutions to ©refer a charge against the accused who will be tried by the High Court accordingly.

The rationale in my view in resorting to the expedient of an offence of contempt in Section 3(a) of Decree No.4 of 1992 is to make for the speedy despatch of the Commissions work, and to obviate the delay that would result in prosecutions under perjury, the contempt procedure being simpler and less irksome.

IN JOHNSON V. REGINAM ALR (S.L.) Series. 1970 - 71 Court of Appeal (Cr. App. No.18/70) an appeal against conviction for contempt, Sir Samuel Bankole Jones - President of the Court of Appeal delivering the judgment of the Court inter alia said at P.124 lines 23 - 33.

"All the authorities are agreed that when a judge has made up his mind to invoke the summary process for committing

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for contempt, the for following procedure should be followed. Firstly, the Judge should make the person concerned aware of the pith of the charge against him. Secondly, the person should be given an opportunity to show cause why he should not be so committed. He may then say anything by way of excuse, explanation or possibly correction of any misapprehension as to what has in fact been said or done. It is of the utmost importance that this opportunity should be given, and unless that is done the committal would be unlawful."

This brings me to the principles of natural justice, the violation of which was a ground of complaint. The applicant complained that the procedure adopted by the Chairman of the Commission in refusing to listen to her before sentencing her to imprisonment was an infringement of the principles of natural justice.

Indeed, there are fundamental principles which govern judicial and quasi - judicial inquiries, and one of these is the "audi alteram partem" rule, that is, a party to judicial proceedings should not be condemned unheard. No one who has a case or against whom an unfavourable decision is given will believe he has been fairly treated if in the course of his trial in any quasi - judicial proceedings leading to his conviction and sentenced is refused hearing.

We have carefully read the records of the proceedings in this matter, and taking all the circumstances into consideration, it seems to us that the procedure, unwittingly no doubt, adopted

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by Chairman Nylander in refusing to hear applicant before sentence, thereby not making it plain and manifest that justice was done, was bad. A judicial or quasi-judicial decision reached by a tribunal in violation of the rules of natural justice may be quashed on certiorari Miss Attiba-Davies, Counsel for Respondent argued with force that applicant was only committed to prison and as such, she was not convicted. This was countered by applicant that committal to prison and sentence to prison are both convictions and referred to the reported case of. In re : MANNI, 1964 - 66 ALR (S.L.) Series. Court of Appeal for Sierra Leone P.557 - Cr. App. No.23/66; where the Court of Appeal invited arguments from Counsel before application was made for leave to appeal in that matter, the case of a contemmor who had been convicted by the then Supreme Court (High Court).

The question was whether there existed in law. a right of appeal to the Court of Appeal. Both sides agreed that there was. It was held by that Court that an order of the High Court of committal for a criminal, contempt amounts to a conviction and the Court of Appeal therefore has jurisdiction to entertain an appeal against the order. We are satisfied that this view was a correct one, In view of the above reasons, we hold that this is a proper case in which the application for an order of certiorari ought to be granted and we so grant.

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The proceedings therefore are hereby quashed. And we direct that the applicant be forthwith discharged from custody in respect of her conviction and commitment thereunder.

S. M. F. KUTUBU - CHIEF JUSTICE

I agree . .. .. .. A.V. AWUNOR-RENNER - J.S.C.

I agree ...........M.O. ADOPHY -J.A.