Attorney General and Another v Dr. Will (SC.MISC.APP. 6/99) [2000] SLSC 6 (20 January 2000);



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

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

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


HON. MR. JUSTICE ND. ALHADI                               -   J.S.C.


DR. HARRY WILL                                         - APPLICANT



MINISTER OF JUSTICE                                -  RESPONDENT





RULING WARNE J.S.C.                   20th January 2000

DR. JABBI COUNSEL for the applicant attempted to seek leave to amend the Notice of Motion filed on the 29th day of October, 1999 by adding a fifth relief and filing a Supplemental Affidavit in support thereof. The Learned attorney general Counsel for the Respondent objected to the Motion being


heard. He submitted that to file a supplemental Affidavit and to use it in support of the Motion cannot be a relief. He further submitted that this is an admission that the papers before the court were not completed before being filed - this he argued, cannot be done and he refers to Rules 88 and 89 of the Rules of the Supreme Court P. No.1 of 1982 (hereinafter referred to as the Rules.)

Dr. Jabbi then sought leave to withdraw the Original application and leave to file a supplemental affidavit exhibiting the Drawn Up Order of the High Court dated 18th October 1999.

Before Counsel could proceed with application, the Learned Attorney-General raised a Preliminary Objection to the Motion being entertained the court. He submitted that from some of the relief sought; the Motion is for the Original Jurisdiction of the Court to be invoked. He argued that in order to do that, the relevant provision Rule 89(1) of the Rules is applicable. This rule specifies the use of forum 8, which counsel has failed to apply. Reliefs for declarations should be by Originating.

Notice of Motion, he submitted. The Attorney General further submitted that there are three areas where the original jurisdiction of the court can be invoked that is to say:-

(1) Referenced Under section 28(1) of the constitution of Sierra Leone Act No.6 of 1991 (hereafter referred to as the Constitution) and also section 127 of the Constitution. He went on to submit that the Rules applicable in these instance are rules 89 and 99 of the rules, Rule 98 of the Rules is inapplicable for reliefs for the Declaration he added. The Attorney general has urged the Court that a number of the reliefs sought are not properly before the court since the relevant rules of procedure have not been complied with. The attorney General finally urged the court to dismiss the motion because the court lacks jurisdiction.

In answer to the objection, Dr. Jabbi in his usual forthright manner submitted that the


objection is totally misconceived. He urged that the application is concerned with the supervisory jurisdiction of the court. Counsel categorically submitted I quote: "The declarations are in the same vein. I submitted that declaratory orders as to any relief or remedy under the Constitution whether or not the include relief under sections 28, and 127 are perfectly appropriate Under 125 of the Constitution." Counsel cited the case of Sc.MISC.APP.No.61/93 - Justice F.C. Gbow Vs. Julius Spencer and Others in support of his submissions. Let me say here and now that, that case does not bind the court - vide section 122(2) of the constitution. Counsel further argued that the reference jurisdiction is distinct from original and supervisory Jurisdiction. This submission of counsel leaves me at a loss to relate it to the foregoing submission that the declaration reliefs sought are perfectly sought in due course in order to determine if they can all be entertained in the same motion. Counsel finally submitted that rules 5 and 98 of the Rules are both residual and orders of declaration are ancillary orders and urged court to ignore the objection.

The Attorney general replied that declaratory orders are not ancillary reliefs but substantive reliefs and these cannot be made ancillary to prerogative order.

In order to juxtapose these forceful submissions of both counsels, it is imperative that I reiterate the reliefs. I quote: "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 and prohibition and for related declarations, orders or directions. In the matter or two rulings given on 18th October 1999 by the Hon. Mr. Justice M.O. Taju-Deen (High Court Judge) in proceedings on the criminal Information dated 30th August 1999 filed in the high court of Sierra Leone holden at Freetown and instituted - "The State Vs. Dr. Harry Will, Lamin feika, Bockarie Kakay (Trading as Manama and Sons (A FIRM): As amended. BETWEEN:-

Dr. Harry will                                         - Applicant


Attorney General and Minister of Justice - Respondent