MISC. APP. 3/99

IN THE SUPREME COURT OF SIERRA LEONE

IN THE MATTER OF AN APPLICATION BY DR HARRY WILL UNDER SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE ACT NO 6 OF 1991 FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND FOR RELATED DECLARATIONS AND OTHER ANCILLARY OR CONSEQUENTIAL ORDERS AND DIRECTIONS.

IN THE MATTER OF A RULING GIVEN THE 11™ DAY OF OCTOBER 1999 BY THE HONOURABLE MR JUSTICE M.O.TAJU-DEEN (HIGH COURT JUDGE) IN THE CRIMINAL INFORMATION DATED 30th AUGUST 1999 FILED IN THE HIGH COURT OF SIERRA LEONE HOLDEN AT FREETOWN AND ENTITLED 'THE STATE VS. DR HARRY WILL, LAMINA FEIKA, BOCKAREE KAKAY ( TRADING AS MARIAMA & SONS ( A FIRM))'

BETWEEN:

THE STATE                                                                             - APPLICANT

AND

THE HON. MR. JUSTICE M.O.TAJU-DEEN (JUDGE)        – RESPONDENT

 EX PARTE DR HARRY WILL                                              - APPLICANT

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

HON. MR JUSTICE H.M.JOKO SMART                              - JSC

HON. MR JUSTICE S.C .WARNE                                        - JSC

DR BU-BUAKEI JABB I for the Applicants.

RULING DELIVERED THE 9th DAY OF NOVEMBER 1999

JOKO SMART. JSC: This is a Motion for LEAVE to apply for orders of certiorari mandamus and prohibition and related or consequential orders or directions in respect of the ruling given on 11th October 1999 by the Honourable Mr. Justice M.O.Taju-Deen (High Court Judge) in proceedings on a criminal information dated 30th August 1.999 and for an order of slay of proceedings founded on the Criminal Information dated 30th August 1999 pending in the High Court until determination by the Supreme Court of the substantive applicalion for which leave is granted, if and when so granted, and for such other or further orders and directions as this honourable Court may deem fit.

When the Motion came up for hearing for the first time on the 21st October 1999 the Court drew the attention of Counsel for the Applicants that the Honourable Mr. Justice M.O.Taju-Deen (Judge) has been joined in the matter as Respondent and invited Dr. Jabbi to address the Court on the legality of doing so having regard to s. 120(9) of the Constitution which provides:

' A Judge of the Superior Court of Judicature shall not be liable to an action or suit for any matter or thing done by him in the performance of his judicial actions'.

Dr. Jabbi vigorously argued that a judge can properly be made a party in an action at any rate in certiorari, mandamus and prohibition proceedings and he rested his argument on the following premises.

Firstly, that in the matter:

'MISC. APP. NO. 6/93 A&B

IN THE SUPREME COURT OF SIERRA LEONE

BETWEEN:

THE STATE                                                                 - APPLICANT

AND

HON.MR. JUSTICE F.C.GBOW, JUDGE                  - RESONDENT

EX PARTE JULIUS SPENCER & ORS                     - APPLICANTS .

a similar format was used in an application before this Court sitting in banc and no objection was raised and the Court went on to rule on the remedies sought.

Secondly, that s. 120(9) of the Constitution is applicable only in an action or suit in which a judge is sued personally for wrongs committed by him while performing judicial functions.

Thirdly, that even if the joining of a judge in the matter before the Court is wrongful it is an irregularity and a mere technicality which can be cured by the Court in the exercise of its discretion and allow the case to proceed in a constitutional matter of great importance and where time is of the essence.

In support of his contentions Dr. Jabbi cited passages from Noordally v. Attorney-General [1987] LRC (Const.) 599, 606; Ali v. Teaching Sen-ice Commission [1993] 3LRC 225, 229-230; Jaundou v. Attorney-General [1971] 3 WLR 13 and All Peoples's Congress v. Nasmos & Ministry of Social Welfare .Youth and Sports S.C No. 4/96 decided by this Court on 26 October 1999. After a careful analysis of these cases, I dare say, none of the propositions relied upon is relevant to the main issue herein, i.e whether a judge in our jurisdiction can properly be made a party to an action of any sort based on allegations made against him while performing his judicial function.

With respect to Dr. Jabbi's first contention, this Court has the power to depart from a previous decision of its own when it appears right to do so. See s. 122(2) of the Constitution. In my view, in the Spencer's case the attention of the Court was presumably not adverted to the fact that the judge was made a party to the action and the matter proceeded under the mistaken premise that it was right to do so. The case cannot therefore be regarded as a precedent which this Court now sitting can follow. To do so will be in clear contravention of the Constitution.

So far as the second contention is concerned. I disagree with Counsel that the phrase shall not be liable' in s. 120(9) of the Constitution is limited to actions in which the judge is sued personally for wrongs committed by him in the performance of his judicial function. If a judge is made a party to any action he is open to liability of any sort and that liability imports a duty resting on him for which he is answerable in law. I opine that if a judge is joined in any proceeding he is exposed to all the incidents and consequences of litigation. Thus he can be compelled to attend to answer allegations made against him and c??n also be amenable to the payment of costs. In this respect, I do not regard the joining of a judge as party to an action to be a mere technicality. Why should he made a party in certiorari proceedings ? Is it not sufficient for clarity and identification if the judge's order or ruling which is challenged is cited in the title of the action - a thing which 1 observe has been done in this case before us and in Spencer's case.

In answer to the third submission, it is my considered view that making a judge a party to an action as such cannot be an irregularity'. It is a nullity over which the Court cannot exercise its discretion. The fact that the application deals with a Constitutional issue makes the situation even worse in that the Court is being urged to exercise its discretion in a matter in which a provision of the Constitution has been infringed. Our Constitution preserves the integrity of judges and any move to undermine it cannot be treated lightly. This integrity is cloquently articulated in s. 120(9) of the Constitution and in the judicial oath in the second schedule of the Constitution whereby a judge swears, inter alia, to do right to all manner of people after the laws and usages of the land without fear or favour, affection or ill will. This is the reason why judges are invested with immunity from actions. Dr. Jabbi informed the Court that there are other jurisdictions in which judges are made parties to similar actions before us. He was requested to provide authorities to substantiate this statement and all that he produced were the authorities which I have herein-before mentioned which I hold do not support that allegation. If for any reason judges in other jurisdictions can be made parties to proceedings touching and affecting their judicial functions, our own Constitution forbids it.

I will therefore dismiss the Motion.