S.C NO. 4/96

IN THE SUPREME COURT OF SIERRA LEONE BETWEEN:

ALL PEOPLE'S CONGRESS                                                                         -PLANTIFF

 AND

NASMOS

AND

MINISTRY OF SOCIAL WELFARE YOUTH AND SPORTS                     - DEFENDANTS

CONSTITUTIONAL REFERENCE BY WAY OF CASE STATED CORAM:

HON. MR. JUSTICE D.E.F LUKE                                                                 - CHIEF JUSTICE

HON. MR. JUSTICE A.B. TIMBO                                                                 - J.S.C

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

 HON. MRS JUSTICE V.A.D.WRIGHT - J.A.

 HON. MR: JUSTICE M.E. TOLLA-THOMPSON - J.A

A.F. Serry Kamal Esq.,                        for Plantiff

J.G. Kobba Esq.,                                 for Defendants

JUDGMENT DELIVERED ON 26th DAY OF OCTOBER 1999 JOKO SMART J.S.C;

This is a constitutional reference to the Supreme Court made by Nylander J. sitting as judge in the High Court pursuant to s. 124(2) of the Constitution of Sierra Leone, 1991 , Act no. 6 of 1991 which reads:

"Where any question relating to any matter or question as is referred to in subsection (1) arises in any proceeding in any court, other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the Court in which the question arose shall dispose of the case in

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accordance with the decision of the Supreme Court."

Subsection 124 (l)(a) vests original jurisdiction in the Supreme Court to determine the matter raised in s. 124(2). It provides as follows:

"The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all Courts -

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution.

The main thrust of this reference is the interpretation of s. 133 of the Constitution which states:

(1)  Where a person has a claim against the Government, that claim may be enforced as of right by proceedings taken against the Government for that purpose, without the grant of a fiat or the use of the process known as Petitions of Right

(2) Parliament shall, by an Act of Parliament make provision for the exercise of jurisdiction under this section.

The background to the reference.

An action was begun in the High Court between ALL PEOPLE'S CONGRESS -Plaintiff and NATIONAL ACTION. FOR SOCIAL MOBILIZATION SECRETARIAT (NASMOS) and MINISTRY OF SOCIAL WELFARE, YOUTH AND SPORTS - defendants., by writ of summons dated 9th day of April 1996 In the action, the Plaintiff's claims against the defendants were, inter alia,

1. Recovery of possession of premises known as 39 Siaka Stevens Street, Freetown.

2.  Mesne profits at the rate of Le. 4,000,000 per annum from 29 April 1992 until possession is yielded up.

3. Damages for trespass.

4. A perpetual injunction to restrain the defendants whether by themselves, their servants or agents howsoever called from entering or remaining on the said property.

5. Damages for conversion of air conditioners.

6. Malicious damage

7. Interest.

On the 30th day of April 1996 the defendants filed a Motion in the High Court

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praying for the following orders:-

1. That the said writ of summons be set aside for irregularity and for informality on the grounds that the plaintiff failed to comply with the provisions of the Petitions of Right Act, chapter 23 of the laws of Sierra Leone, 1960, in that the plaintiff issued a writ of summons against NASMOS and the Ministry of Social Welfare Youth and Sports.

2. That the plaintiff pays the costs of the application.

At the hearing of the application, Counsel for the defendants submitted that the Court had no jurisdiction to try the case because the plaintiff had failed to comply with the Petitions of Right Act, cap. 23, articulating that s. 4 of the said Act prescribed the manner of commencement of a suit against Government and that s.5 of the Act made provision for a flat to be obtained before an action could be commenced against the defendants. In answer, Counsel for the plaintiff referred to s. 133(1) of the Constitution submitting that the plaintiff did not require a fiat or process by petition of right and that that process had been abolished from the date that the Constitution came into force. In reply to Plaintiff Counsel's counter submission, Counsel for the defendants stressed that Parliament has not as yet passed an Act for the conferment of jurisdiction as provided for under s. 133(2) of the Constitution, and he urged the Court to rule that s. 133(1) becomes operative only when s.133(2) has been complied with.

It is against this background that Nylander J. saw a need for the interpretation of the two subsections of s133 and stayed proceedings and made this reference in accordance with s. 124(2) of the Constitution posing the following questions for determination:

1.  Is s.133(1) of the Constitution inoperative until s.l33(2) is effected by Parliament ?

2.  If the answer is in the negative, can the High Court Rules apply to put in operation s. 133(1) in the absence of Parliament effecting s. 133(2).?

3. What is the state of a parry's right as at present in relation to s. 133(1) ?

In order to illuminate the process of interpretation of the two subsections of s. 133 I find it; necessary first to outline the law on the type of rights for which a person could sue Government before the passage of the 1991 Constitution.

Proceedings against Government prior to 1991 The home-grown legislation was the Petitions of Right Act, cap. 23 of the laws of Sierra Leone 1960. S. 3 of the Act provided:-

All claims against the Government of the Colony or against

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the Government of any other Colony, being of the same nature as claims which might have been preferred against the Crown in England before the enactment of the Crown Proceedings Act 1947, by petition, manifestation, or plea of right, may,with the consent of the Governor be preferred in the Supreme Court in a suit intstituted by the claimant as plaintiff against the Attorney General as defendant, or such other officer as the Governor may from time to time designate for that purpose".

For clarity of purpose, it should be bom in mind that under the Interpretation Act 1971 and the Law (Adaptation) Act 1972, Sierra Leone, the Attorney General and the High Court replaced the Colony, Governor and Supreme Court mutatis mutandis in the Petitions of Right Act,

What s.3 of the Act achieved was to transplant to Siena Leone English law on the rights inherent in private citizens against the sovereign when they suffered wrongs at his hands. As an aid to the complete understanding of the issue before us I find it relevant to ascertain even in broad outline what the law was on suing the Crown.

Under the common law, there were two main rules governing the liability of the Crown and its servants. One was a substantive rule of law and the other was procedural. I shall deal with the latter in due course but for now I will adumbrate the former .The substantive rule was that the King can do no wrong expressed in the Latin maxim Rex non potest peccare. It was an ancient and fundamental principle of the unwritten English Constitution. Though in a personal sense the King was deemed to be incapable of doing wrong, yet some of his acts could in themselves be contrary to law, and on that account, the law could step in and set them aside. The King was considered as a benevolent lord who when it came to certain rights of his subjects in some respects would not be seen to trapple upon them with impunity.

With the emergence of government .departments when the Crown, through its servants acting on its behalf, descended into the commercial arena, it became essential that the Crown should at least be made liable to its subject for contracts into which it entered with them.(See Thomas v. The Queen (1874) LR 10 QB 31; Rederiaktiebolget Amphitrite v. The King [1921] 3 KB 500 at p. 503 per Rowlatt J.) But it was not for every type of contract that redress was available to the subject for its breach; liability depended on the terms of the contract as the case may be. If, for example, the contract provided for money to be paid out of funds voted by Parliament and no vote was made there was no remedy.( See.Churchard v.The Queen (1865) 1Q.B. 173).

There was also liability for compensation for property of the subject taken by the

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Crown either arbitrarily or under statute. (See Attorney General v. De Keyser's Royal Hotel [1920] A.C. 508; Feather v. The Queen (1865) 6 B & S 257). In this regard, for the Crown to be liable under statute, the statute must impose an obligation on it expressly or by implication. (See Cooper v. Hawkins [1904] 2 K.B. 164; Homsey Urban District Council v. Hennell [1902] 2 K.B.73).

Outside these two grey areas, the subject did not have recourse against the crown for its wrongs. .I will briefly mention some of these areas of disadvantage. One was the defence of executive necessity which was available to the Crown for its future action if it was dictated by the needs of the community. Under this defence the Crown could not by contract hamper its freedom of action in matters which concerned the welfare of the state. Thus in the Amphitrite case [1921] 3 K.B. 500 Rowlatt J. held that an undertaking given by the British Government to neutral ships during World War 1 that if they sent their ships to British ports with a particular cargo they would not be detained, was not binding on the government and that it was free to withdraw the undertaking and refuse clearance on the ground that the Crown was not competent to make a contract which would have the effect of limiting its power of executive action in the future. Rowlatt J., however/made a reservation that the defence would not be applicable to ordinary commercial contracts. (See [1921] 3 K.B. 500 at p.503). Denning J. (as he then was) commenting on the stance of Rowlatt J. placed limitations on the defence holding that it only availed the Crown where there was an implied term in a contract to that effect or that it was the true meaning of the contract that the defence should apply. (See Minister of Pensions v. Robertson [1949] 1 K.B. 227 at p.231).

Further, there was no remedy at common law for wrongful dismissal by the Crown of its servants. (See Dunn v. The Queen [1896]1 QB 117 per Lord Herschell at p. 120; Acton J. in Leamari v. The King [1920] 3 K.B.663). No mesne profit was payable by the Crown for the recovery of possession of property unless there was a contract for such payment or statute provided as such. (See Attorney General v. De Keyser's Royal Hotel [1920] A.C. 508); there could also be no order for the restitution of property although the court could make a declaration that the subject/plaintiff was entitled to the property as against the Crown.Furthermore, equitable remedies like injunction and decree of specific performance were not available against the Crown nor could there be discovery of documents against it if to do so would be injurious to the interest of the public. (See Ellis v. Home Office [1953] 2 Q.B. 135). There was no period of limitation for actions by the Crown except that for the recovery of land the period was 60 years reduced to 30 years by the Limitation Act 1939 instead of the ordinary period of 12 years. Finally, the most frequent wrongs that were suffered by the subject were tortious for which there was no remedy. (See Attorney General v. De Keyser's Royal Hotel [1920] A.C. 508 per Lord Dunedin at p.522 and per Lord Atkinson at p. 532; Cockburn CJ in Feather v. The Queen (1865) 6 B & S 257, ER 1191 at p. 1205.)

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Now to the procedural rule. So far as this was concerned, the party aggrieved by the -Crown did not go straight to court as the King could not be sued in his own courts but had to use the process of petition of right. The procedure was regulated by the Petition of Right Act 1860 enacted only to simplify the processed not to create new rights which the subject did not enjoy before .This was the preliminary step in the commencement of an action after which the normal process of litigation in a court of civil jurisdiction followed.

After this historical background it is appropriate at this stage to determine what is "government" as it is. claimed by the defendants herein that they are arms of the Government of Sierra Leone.

Government of Sierra Leone.

The Interpretation Act No.8 of 1971 defines government as "the Government of Sierra Leone ( which shall be deemed to be a person ) and includes, where appropriate, any authority by which executive power of the State is duly exrecised in a particular case". There is no doubt that the second defendant is part of the Government of Sierra Leone as it exercises some executive power of the State under the Constitution . (See s. 53(1) and s.53(5) of the Constitution). I have taken the pains to go into this definition in order to draw attention to the identities of the defendants. While I am satisfied that the 2nd defendant answers to that description I am not sure about the 2nd defendant. This and the question whether the proper parties are before the Court as defendants are matters for the trial Court.

The main issues in this reference

Before this Court, counsel for the defendants made two contentions. One is that ss. 3,4 and 5 of the Petition of Right Act, have been violated by the plaintiff. The other is that s. 133(1) and s. 133(2) should be read conjointly to such an extent as to reach the conclusion that s. 133(1) becomes operative only when Parliament has complied with s. 133(2). He submitted that there will be an ambiguity if the sections are to be read independently and he cited authorities in support. I shall presently deal with the second contention.

One of the cases Counsel relied upon is Canada Sugar Refining Company Ltd v. The Queen [1898] A.C. 735. This was an appeal from the Canadian Court of Appeal to the Privy Council. In this case the Attorney General of Canada instituted an action against the Canadian Sugar Refining Cmpany to recover customs duty on sugar impoted by the company into Canada by a steamship called the Cynthiana. The principal question before the courts was the date of importation of the sugar into the country. The ship had set out from Antwerp in Holland bound for Montreal. Its

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first call in Canada was at the port of North Sydney in Cape Breton on 29 April 1895 where it stopped allegedly to coal before proceeding to Montreal. At port North Sydney the shipmaster made two reports for entry and exit of the ship on the same day that the ship entered and left and he received a customs certificate of clearance. Eventually, when the ship reached its final destination the collector of customs charged duty as from the date of entry into Montreal which was 3 May 1895 and cancelled the clearance certificate issued at the intermediate port. The contention of the Sugar Conpany was that duty ought to have been levied up to the date of entry into the country at port North Sydney and that between that entry and the final destination the goods should have been cleared duty free. The whole issue revolved on the interpretation of s.150 of the Canadian Customs Act 1896 as to the ascertainment of the precise date of importation.The section provided:

"Whenever, on the levying of any duty, or for any other purpose, it becomes necessary to determine the precise time of the importation or exportation of any goods, or of the arrival or departure of any vessel, such importation, if made by sea, coastwise or by inland navigation in any decked vessel , shall be deemed to have been completed from the time that the vessel in which such goods were imported came within the limits of the port at which they ought to be reported, and if made by land or by inland navigation in any undecked vessel, then, from the time such goods were brought within the limits of Canada"

The respondent Company further submitted that having regard to the context and other sections of the Act, the words " the port at which they ought to be reported" in section 150 meant the port at which the effective report was to be made for the purpose of importation. Dismissing the contention of the respondent, the Privy Council held that upon interpretation of s.150, the port of importation was Montreal and not port North Sydney. It was then that Lord Davey made the following remark on statutory interpretation on which Counsel for the defendants herein has placed much premium.

"Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as , so far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter" (Canadian Sugar Refining Company Ltd v. The Queen [1898] AC 735 at p.741)

Much as I regard this as a very persuasive statement of law I do not see how it can be of assistance to the defendants herein in support of their contentions put before this Court. The Privy Council in the Canadian case was concerned with the

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precise interpretation of the words "the port at which they ought to be reported"and from the spirit and intendment of the Customs Act and all the regulations on customs duty they reached the conclusion that the port of importation must be the port of the final discharge of the cargo. The factual situation is not the same as the case before this Court.

The defendants' second support is Curtis v. Stovin [1889] 22 QBD 512.1n this case the English Court of Appeal was faced with the task of interpreting s.65 of the County Courts Act 1888 which made the following provision:

"Where in any action of contract brought in the High Court the claim indorsed on the writ does not exceed L100 it shall be lawful for either party to the action at any time to apply to a judge of the High Court to order such action to be tried in any court in which the action might have been commenced, or in any court convenient thereto, and on the hearing of the application the judge shall order such action to be tried accordingly."

In construing this section, Lord Esher held the view that the legislature had misdescribed the court to which the transfer was to be made and that the legislature did it in such a way as to show that there was a misdesription of the court. Nevertheless, he thought that the alternative clause which followed "or in any court convenient thereto" was helpful in the construction inasmuch as it referred to a locality which must be the couty court in the district in which the the parties were resident. (See Curtis v. Stovin [1889]22 QBD 512 at p. 517). Bowen L.J.in the same case applied the ut res magis valeat quam pereat rule, and stressed that" if we were to hold! that under s. 65 the judge has no power to order that an action shall be tried in a county court unless it is an action which as regards the amount claimed , might have been commenced in a county court , we should be making nonesense of the section." We must avoid such a construction, if the language will admit of our doing so" he emphasised. (See Curtis v.Stovin [1889] 22 QBD 512 at p.517). As will be seen in due couse, these dicta,, to say the least, are of no assistance to the defendants in the interpretation of the subject- matter before us.

Charles Leader & Anor. v. George Duffey (1888) 13 App. cases 294 is another authority on which counsel for the defendants based his argument. In that case the Privy Council was asked to interpret a clause in a settlement which gave property "unto or for the benefit of all and every or anyone or more child or children, or any grand child or grand children, or other issue then in being of the said intended marriage". The bone of contention was whether the word "then" applied to persons in being at the time of the death of the tenant for life or to persons in being at any time that the settlement took effect. Lord Herschell gave the precise meaning of the word "then in being"to be equivalent to "in esse" that is to say born or about to be

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born, and he concluded that the words were, according to the natural construction of the language used, connected only with the words which immediately preceded them and not with the earlier limb of the sentence. ( Charles Leader& Anor v. George Duffey (1888) 13 App. case 294 at p. 305). On the construction of instruments generally, Lord Halsbury LC emphatically at page 301 of the report observed that "whatever the instrument, it must receive a construction according to the

plain meaning of the words and sentences therein contained but the whole instrument must be looked at to ascertain what is the meaning of the instrument taken as a whole in order to give effect to the intention of the framer of it". This is what I intend to do when I come to the interpretation part in this judgment but I do not think that it will also be helpful to the defendants.

The next case for review is Attorney General for Canada v.Hallett & Carey Ltd [1952] AC 427 in which the respondents before the Privy Council challenged the validity of the order-in council of the Governor of Manitoba which resulted in the compulsory aquisition of his barley during the second World War. The National Emergency Transitional Powers Act 1945 provided by its s. 2(1) that:

"The Governor in Council may do and authorize such acts and things and make from time to time such orders and regulations, as he may, by reason of the continued existence of the national emergency arising out of the war against Germany and Japan, deem necessary or advisable for the purpose of (a)monitoring, controlling and regulating supplies and services, prices, transportation use, and occupation of property rentals, employments, salaries and wages to ensure economic stability and and in orderly transaction to conditions of peace"

In exercise of the powers conferred by s. 2(1) of the 1945 Act, the Order-in Council in question was made providing that "all oats and barley in commercial positions in Canada with certain specified exceptions are herby vested in the Canadian Wheat Board". Delivering the judgment of the Privy Council Lord Radcliffe held that for the expropriation order to be invalid in law it must be attacked by showing that the Act truly interpreted did not give the Governor the power to carry out what he had purported to achieve. His Lordship first questioned the interpretation given to the Order-in Council by the trial court in Manitoba and by the Court of Appeal to the effect that the Act allowed the continuance of existing powers only and that there was no portion in it giving giving power to extend the controls , as propositions which imposed a construction that flew in the face of the words of the Act. ( see Attorney General for Canada v.Hallett & Carey Ltd [1952] AC 427 at p.446). In this case Lord Radcliffe raised an issue which is very relevant to the matter before this Court and to which I will return when dealing with s. 133(2) of our Constitution

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specifically. It is this: "Where the import of some enactment is inconclusive or ambiguous, the court may properly lean in favour of an interpretation that leaves private rights undisturbed". (Attorney General for Canada v. Hallett & Carey Ltd [1952] AC 427 at p. 450).

The last case that Counsel for the defendants urged us to accept as authority for his propositions is Magor Rural District Council v. Newport Corporation [1950] 2 All ER 1226. I do not find much in this case to merit a detailed treatment. But I am inclined to agree with the dissenting judgment of Denning LJ (as he then was) when he said:

"We do not sit here to pull the language of Parliament to pieces and make nonesense of it. This is an easy thing to do, and it is a thing to which lawyers are too often prone.We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than opening it up to destructive analysis".([1950] 2 All ER 1226 at p. 1236).

I am deeply influenced by this statement of Denning LJ and I see no reason why I should not follow it in this Court.

The interpretation of s.133(l) and s. 133(2).

Next the crux of the reference. Two rules of statutory construction must, in my judment, be considered in this case. One is the Literal Rule and the other the Purposive Rule . If the words in a statute are themselves precise and unambiguous then no more can be necessary than to expound these words in their natural and ordinary senses.( See Sussex Peerage case (1844) 11 C1 & F 85; 8 ER 1034). But it sometimes happens that the ordinary words in themselves may be misleading and in order to make assurance doubly sure, it might be necessary to examine the context including the subject matter, the scope, purpose and, if need be, the background of the legislation in order to give effect to the true purpose of the legislation. (See Pepper v. Hart [1993] 1 AU ER 42 at p.50 per Lord Griffith ).This, I apprehend, is the current trend in statutory interpretation and it is encapsulated in the judgment of Laws LJ in the English Court of Appeal case of Oliver Ashworth (Holdings) Ltd v. Ballard (Kent)Ltd [1999] 2 All ER 791 with which I cannot agree more. This was what he said:

"It is nowadays misleading - and perhaps it always was -to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between purposive and literal construction is in truth one of degree only. On

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received doctrine we spend our professional lives construing legislation purposively, in as much as we are enjoined at every turn to ascertain the intention of Parliament. The real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Frequently there will be no opposition between the two, and then no difficulty arises. Where there is a potential clash , the conventional approach has been to give at least very great and often decisive weight to the literal meaning of the enacting words. I will not here go into the details, or merits of the shift of emphasis, save broadly to recognise its virtue and its vice. Its virtue is thatthe legislator's true purpose may be more accurately ascertained. Its vice is that the certainty and accessability of the law may be reduced or compromised. The common law, which regulates the interpretation of legislation has to balance these considerations"^ 1999] 2 All ER 791 at p.805).

Thus ambiguity may arise when a word has an ordinary meaning but it also has a latent meaning known only to the person who utters it within a particular context in which he uses it .In this case the context determines the real meaning. Shakespeare affords us with a light-hearted example in the following conversation between two of his characters in The Two Gentlemen of Verona (Act 2 s.5).

Launce: I'll but lean, and my staff understands me.

Speed: It stands under thee indeed.

Launce: Why, stand-under and under-stand is all one.

Still on ambiguity , Laws LJ gave classic examples of how it can create difficulties:

"This concept of ambiguity is not, to my mind, free of difficulty, an expression is strictly ambiguous when, entirely shorn of their context, the words in question are equally capable as a matter of language of meaning at least two different things. In Marlowe's Edward 11 there is the message 'Edward to kill fear not to do the deed is good'. With a comma after 'fear', it tells the recipient not to kill the King; if the comma is after 'not', it commends his murder. With no comma at all, it is in the true sense ambiguous. But this kind of strict ambiguity cannot be the whole reach of what their Lordships meant in HRH Prince Ernest Augustus of Hanover's case, since they considered that it is always necessary to look at the context of the Act in every case;

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and it is by no means in every case that such a strict or internal ambiguity arises. There is however a different sense of ambiguity. It arises where although the words as a matter of language are clear enough, there may be a question as to the scope or subject matter of their intended reference. In the sixth century BC Croesus king of Lydia sent to the oracle at Delphi to divine his likely fortunes if he crossed the river Halys, the boundary of his own kingdom, and attacked the Persian Empire. Herodotus in book 1 of the Histories tells us that the oracle sent back the answer, 'If you cross the Halys you will destroy a great realm1. Thinking this is a good portent Croesus crossed it. But the realm he destroyed was his own; he was utterly defeated by Cyrus King of Persia, and his capital, Sardis, was taken" ( [1999] 2 All ER 791 at p.807).

I have gone into great length in quoting these passages from the judgment of Laws LJ which I fully endorse and adopt in order to help determine whether there is any ambiguity in s.133(1) and s.133(2) of the Constitution taking them singularly or conjointly. Counsel for the defendants conceded that s. 133(1) conferred upon citizens unlimited rights to sue Government outright if these rights are infringed; his contention was that the enjoyment of these rights is postponed until Parliament passes a jurisdictional Act as contemplated by s, 133(2). To resolve this, I will go back first to the English Crown Proceedings Act 1947. S. 1 of this Act restated that only those rights which the subject possesed at common law for which he could sue the Crown by a petition of right were now suable as of right without the process of a petition of riglit. It reads:

"Where any person has a claim against the Crown after the commencement of this Act, and if this Act had not been passed, the claim might have been enforced, subject to the grant of His Majesty's fiat, by petition of right, or might have been enforced by a proceeding provided by any statutory provision repealed by this Act, then, subject to the provisions of this Act, the claim may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against the Crown for the purpose in accordance with the provisions of this Act. "(Emphasis mine).                              .

It is clear from the words I have underlined that the section did not confer any additional rights on a person other than those that he possessed under the common law. The section merely abolished the petition of right process. In order to confer more right on the subject, for example, the right to sue in tort, provisions were made in other sections of the Act. It is certain from the omission from s. 133(1) of the Constitution of the underlined words in section 1 of the Crown Proceedings Act,

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that the Sierra Leone Parliament intended to make the Government answerable to the subject for all wrongs as if the Government was any other person. This may be in recognition of the fact that a Government in a republic with a written Constitution does not enjoy any more rights than those conferred by the Constitution thus curtailing the common law prerogatives of the sovereign. No wonder Mr. Kobba, Counsel for the defendants, did not go into the question as to what rights were recognised by s. 133(1) but accepted the section as a fait accompli merely arguing that the section comes into operation only when a jurisdictional Act has been passed by Parliament.

In bringing this action without using the petition of right process, Mr Kobba argued that the plaintiff violated ss. 3,4 & 5 of the Petitions of Right Act. These are the sections that incorporated the petition of right process into the Sierra Leone legal system and dealt with the preliminary process of obtaining the fiat and filing of a statement of claim. It is a fact that the plaintiff has not gone through this process, its contention being that that process has been abolished by s.133(1) of the Constitution. Mr. Serry Kamal, Counsel for the plaintiff, submitted that s. 133(1) came into full force on 1st day of October 1991 when the whole Constitution came into force. Unless I find a reservation in the Constitution that this particular subsection should be postponed to another date for its life, I see no reason why I should disagree with Mr. Kamal on this point . The language of s. 133(1) is plain and I have read it literally. S. 133(2) too is clear which again I have read literally. The purpose of the legislature was to abolish the petition of right process. Having found this and taking both, sections together, I am unable to see any inconsistency or ambiguity between them in order to sit here and help Counsel for the defendants pull the language of the Constitution into pieces and make nonsense of it, if I may borrow that expression once more from Denning LJ ( as he then was ) ( See Magor Rural District Council v. Newport Corporation [1950] 2 All ER 1226 at p. 1236). It seems to me that Mr. Kobba's argument that the coming into force of s. 133(1) is postponed until Parliament, has performed the duty imposed upon it by s. 133(2) might have had some weight if there were words in s. 133(1) to suggest that both subsections were linked contemporaneously and that the one was dependent on the other, for example, words like "subject to the provisions of subsection (2) prefacing s. l33(1). But I do not find such words in order to persuade me to lean on the side of the defendants.

Mr. Kamal further submitted that ss. 3, 4 & 5 of the Petition of Right Act are inconsistent with s. 133(1) of the Constitution which I hold is now in force, basing his argument on s. 171(15) of the Constitution which provides:

"The Constitution shall be the supreme law of Sierra Leone and any other law found to be inconsistent with any provisions of this

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Constitution shall, to the extent of the inconsistency, be void and of no effect."( my emphasis).

On the basis of my finding that s. l33(1) is now in force, I hold that ss. 3, 4, &5 of the Petitions of Right Act are inconsistent with it and are therefore now void. The next issue is to determine the fate of the subsequent provisions of the Petitions of Right Act. Have these provisions also been repealed by s s. 133(1) of the Constitution? I apprehend that ss. 6, 7, & 8, the remaining sections of cap. 23 have not been expressly repealed by s. 133(1). If that is so, have they been repealed by implication? On implied repeals of statutes, Craies on Statutes, 7th Edition, Fifth Impression,1985 at p.366 had this to say:

"Where two Act are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier. The court leans against implying repeals unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is a necessary inconsistency in the two Acts standing together. Before coming to the conclusion that there is a repeal by implication the court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the latter, imply the repeal of an express prior enactment -i.e the repeal must, if not express, flow from necessary implication."

I accept this statement as the correct principle of law and I adopt it. In my judgment, the Constitution has not expressly repealed the Petitions of Right Act, Sections. 3, 4, & 5 have been repealed by implication because they were found to be inconsistent with s.133(1). Can the same thing be said of ss.6, 7,& 8? They read"

6. All documents , which, in a suit of the same nature between private parties, would be required to be served upon the defendants, shall be deivered at the office of the Attorney General, or other officer designated as aforesaid.

7. Whenever in any suit, a decree shall be made against the Government, no execution shall issue thereon, but a copy of such decree under the seal of the Court shall-be transmitted by the Court to the Governor, who, if the decree shall be for the payment of money, shall by warrant under his hand direct the amount awarded by such decree to be paid, and, in the case of any other decree under the seal of the Court shall be transmitted by the same to be carried into effect; or, in case

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he shall thinkfit, he may direct that any competent appeal shall be entered and prosecuted against any decree.

8. So far as the same may be applicable, and except in so far as may be inconsistent with this Ordinance, all the powers, authorities and provisions contained in the Courts Ordinance, or in any enactment extending or amending the same, and the practice and course of procedure of the Supreme Court, shall extend and apply to all suits and proceedings by or against the Government, and in all such suits costs may be awarded in the same manner as in suits between priv ate parties.

Are these sections inconsistent with s. 133(1) and/or s.133(2) ? I do not think so. I hold that they have not been repealed either expressly or by implication. In the absence of an Act of Parliament pursuant to s. 133(2), in my judgment, the existing law must be resorted to. As can be seen from the Petitions of Right Act, s.6 merely nominates the person on whom documents should be served; s.7 establishes the process of levy of execution and s.8 provides the procedure to follow after the subject had obtained the flat when he should avail himself of the normal procedure in civil litigation.The Courts Act cap 7 of the Laws of Sierra Leone 1960 referred to in s.8 has now been replaced by the Courts Act 1965, Act no.31of 1965 which makes provision for trial in the courts of judicature. The framers of the Constitution must have had at the back of their minds that there cannot be a vacuum in the law when they made transitional provisions in the Constitution . The Constitution states:

S 177(1). The existing law shall, notwithstanding the repeal of the Constutution of Sierra Leone Act 1978, have effect after the entry into' force of this Constitution as if they had been made in pursuance of this Constitution and shall be read and construed with such modification, adaptation, qualification and exceptions as may be necessary to bring them in conformity with this Constitution.

S. 177(2)." Where any matter that falls to be prescribed or otherwise provided for under this Constitution or by any other authority or person is prescribed or provided for by or under an existing law (including any amendment to any such law made under this section) or is otherwise prescribed or provided for immediately before the commencement of this Constitution by or under the existing commencement of tin's Constitution have effect with such codification, alteration, qualification and exceptions

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as may be necessary to bring it into conformity With this Constitution or, as the case may be, by the other authority or person."

The Consitution by its s. 176 defines "existing law" as

"any Act, rule, regulation, order or other, such instrument made in pursuance of, or continuing in operation under, the existing Constitution and having effect as part of the laws of Sierra Leone or of any part thereof immediately before the commencement of this Constitution."

Conclusion

In a democratic society the Constitution of a state is the grundnorm of its legal system and all other laws derive their validity and efficacy from it. The Constitution is usually a small instrument which does not embrace the details of all the laws governing the state. At most it deals with specific matters like the operation of the three anus of "government" in the wider context - the legislature, the executive and the judiciary, and finance, leaving details of laws in other respects to specific Acts of Parliament and subsidiary legislation. A new Constitution in many instances only engenders changes in the existing Constitution to accommodate the political dictates of the day but leaves the bulk of the existing law untouched: It does not intend to create a vacuum in the law and so the making.of transitional provisions maintaining the status quo ante in areas not specifically altered. The framers of the 1991 Constitution must have been aware of this principle when they enacted Chapter XIV of the Constitution which contains ss. 176 arid 177. Indeed, Parliament has not as yet passed legislation to provide for a new jurisdiction governing actions by persons against government but that does not mean that private citizens are to be deprived of remedy against government with the abolition of the fiat and the petition of right procedure.. I have earlier in this judgment referred to the dictum of Lord Radcliff in Attorney General for Canada v. Hallett & C arey Ltd [1952] AC 427 at p. 450 that " where the import of some instrument is inconclusive the court may properly lean in favour of an interpretation that leaves private right undisturbed". I adopt and apply it to this case. In my judgment, the Constitution did not repeal the Petitions of Right Act in its entirety ; it repealed the substantive law provision in s.3 and only the fiat and its concommitant process in ss. 4 & 5. This was what was accomplished by s. 133(1). The procedure under ss. 6,7,& 8 remain untouched and it is the procedure to follow in the presence of parliamentary inactivity. These sections prescribe the procedure under the existing law and in my judgment they are applicable to this case which is the fons et origo of this reference.

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I will now answer the questions which Nylander J. posed for directions from this Court.

1. To question 1 the answer in in the negative.

2.  The answer to question 2 is in the affirmative.

3. The party has all the rights available to him as if he were suing another private person I order that these answers be sent to the trial Court for the appropriate step to be taken.