IN THE SUPREME COURT OF SIERRA LEONE

SC.5/2000

IN THE MATTER OF AN APPLICATION UNDER SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991

IN THE MATTER OF AN APPLICATION UNDER SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991 AND

IN THE MATTER OF AN APPLICATION UNDER SECTION 170(1) (a) to (e) 170 SUB RULE 2 AND 4 & SECTION 18(1) 23 SUB RULE 1 AND 23 (7) OF THE CONSTITUTION OF SIERRA LEONE A T NO. 6 OF 1991. AND

IN THE MATTER OF AN APPLICATION UNDER THE ANTI-CORRUPTION ACT 1, OF 2000.

BETWEEN:-

MUCTARU OLA TAJU-DEEN                   - PLAINTIFF

AND

THE COMMISSION OF ANTI-                   - 1ST DEFENDANT

CORRUPTION

AND

THE LEARNED ATTORNEY-GENERAL AND MINISTER OF JUSTICE - 3rd DEFENDANT

CORAM:-

HONOURABLE MR. JUSTICE D.E.F.E LUKE                     -  C. J.

HONOURABLE MR. JUSTICE AB. TIMBO                          -  JSC.

HONOURABLE MRS. JUSTICE V.AD. WRIGHT                - JSC.

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

HONOURABLE MR. JUSTICE S.C.E. WARNE                   -   JSC.

C. DOE SMITH ESQ. AND T.M. TERRY ESQ., FOR THE PLANTIFF S.E. BEREWA ESQ., ATTORNEY GENERAL AND L.M. FARMA ESQ., MR. SESAY ESQ., COUNSEL FOR THE RESPONDENTS

DATED THE 3rd DAY OF APRIL 2001 2. V.A.D WRIGHT J.S.C.

This Originating Notice of Motion dated the 14th December 2000 is a culmination of a series of application made before this court for the orders for Certiorari and Prohibition. The application is supported by an affidavits of Muctaru Ola Taju Deen sworn to on the 4th December, 2000 and the exhibit attached and of Claudius Doe Smith sworn to on the 4th December, 2000 and of the plaintiff sworn to on the 21st day of November, 200 in the criminal case between the State vs. Muctaru Ola Taju Deen Holden at the High Court.

I wish to commend counsel on both sides, for the well-reasoned and forceful manner they presented their cases. Arguments were presented on behalf of the plaintiff herein Muctaru Taju Deen and on behalf of the 1st, 2nd, 3rd defendants. At the hearing both sides highlighted several points on the declaratory orders sought.

Although eleven declaratory orders were prayed for namely (a) to (k) as set out in the Originating Notice of Motion herein I will confine my Ruling to Orders E and J. Nearly all the declaratory Orders prayed for by the plaintiff have been dealt with either in the ruling given on the orders for Certiorari or Prohibition Le. Misc. App. 1/2001 dated 23.2.2002 unreported and Misc. App. 6/2000 dated 18.1. 2001 unreported.,

"I will first deal with declaratory order (e) which states:-

"A Declaration to the effect that the provision of Section 7(1) and 8 (1) of the Anti corruption act. No. 1 2000 in so far as they have laid and framed as Constitution Offences against a Judge or acting Judge of the Superior Court of Judicature and in particular the Honourable Mr. Justice Muctary Ola Taju Deen are clearly repugnant to and inconsistent with the express mandatory entrenched provisions of Section 120 (9) and 137 (4) of the Constitution of Sierra Leone Act No. 6 of 1991."

3.

I shall not go into the legal definition of the remedy of declaration as this was adequately dealt with in the legal argument presented on behalf of the plaintiff herein Muctaru Ola Taju-Deen in this matter. The Honourable Mrs. Justice Patricia Macauley in the Criminal trial in the High Court had given a Ruling on this Declaratory Order sought and this has been appealed against to the Court of AppeaL

It is clear that under Section 127 (1) at the Constitution of Sierra Leone Act No. 6 of 1991 which states:-

127 (1)  A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of a provisions of this Constitution may, at any time bring an action in the Supreme Court for a declaration to that effect.

(2)  The Supreme Court shall, for the purpose of a declaration under subsection (10 make such orders and give such directions as it may consider appropriate for giving effect to, or enabling effect to be given to, the declaration so made.

Since the applicant is alleging that Section 7 (10 and 8 (1) of the Anti corruption act No. 1 of 2000 is inconsistent with Section 120 (9) and 137 (4) of the constitution he is entitled to bring the action for a declaration to that effect. In this declaration sought we are faced with the interpretation and construction of simple words in the Constitution and I agree with Learned counsel for the plaintiff that in construing or interpreting a Constitution, the Court is not permitted to substitute its own right meaning or to give a construction to the Constitutional Provisions order than the ordinary and proper meaning of the language which the Legislature sees fit to sue. See Olalere Obdara and other vs. President Naadan West District Customary Court 1964 1ANLR 336.

4.

Section 120(9) of the Constitution states that a Judge of the Superior Court of Judicature shall not be liable to any action or suit for any matter or thing done by him in performance of his judicial functions.

I will now look into the construction and interpretation of the words action and suit. I agree with the interpretation of the meaning of the action in Stroud's Judicial dictionary of words and Phrases 4th Edition Page 45 in the 2nd Paragraph herein is states:-.

Action 1. This is a generic term and means a litigation in a Civil Court for The recovery of individual right or redress of individual wrong, inclusive in its proper legal sense, of suits by the Crown (Bradlaught vs. Clarke 8 App. Case 354).

2. For the purpose of the judicature Act "action means' a Civil Proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court.

This Interpretation is further re-inforced by the interpretation of Action in the High Court rules 1960.

"Action" means a Civil Proceeding commenced by a writ or in such other manner as may be prescribed by rules of court, but does not include Criminal Proceeding by the Crown."

In words and phrases Legally defined Volume 1: A - C Page 33 states:-

"An "Action" according to the legal meaning of the term, is a proceeding by which one party seeks in a court of justice to enforce some right against or to restrain the commission of some wrong by another party. More concisely it may be said to be "the legal demands of a right" or the mode of pursuing a right of

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judgment." It implies the existence of parties of an alleged right, of an alleged infringement thereof (either actual or threatened) and of a court having power to enforce such right. In its wider meaning the term includes both Civil and criminal Proceedings.... It is however generally used in a more restricted or popular sense as denoting Civil action commenced by writ or plaint.

On Page 34 it states; "It may be true to say that in some cases "actions will include indictments or will include criminal information. In some cases it may, but the question is whether in this Act or Parliament it does, and when the Legislature is found using the words "by action' that work contained according to its ordinary meaning does not seem to me to include an indictment or criminal information."

In Halsbury's Laws (3rd Edition) Page 2.

Action is defined as a proceeding by which one party seeks in a court of justice to enforce some right against or to restrain the commission of some wrong by another party. In its ordinary meaning the term includes both Civil and Criminal Proceedings. It is generally used in a more restricted or popular sense as denoting a civil action commenced by a writ or plaint See. Bradlaught vs.Clarke. There are several statutory definitions thus for the purpose of the Supreme Court of Judicature (Consolidation) Act 1925 and rules of the Supreme Court it means a civil Proceeding commenced by writ, or in such other manner as may be prescribed by rules of court and does not include a criminal proceeding by the crown.

For the same purpose the word "suit" is to include "action" the old technical distinction between actions at law and suits in equity being thus rendered absolute and both "action and "suit" are to be included in the same under term "cause.

6.

In words and Phrases Legally defined Volume 5 2nd edition S-Z at Page 146 states. It was argued that suit in the English version of the Hague rules meant an action in the Courts and was distinct from an arbitration and that, if a step had been take in an arbitration in due time but no writ had been issued in the courts. The plaintiff's Claim could have defeated, if the requirement of The Hague rules had been invoked as no "suit" having been established the defendants would have been discharged from liability." The word "suit" in Section 64 (3) of the constitution of Sierra Leone Section 64 (3) states:

"All offenses prosecuted in the name of the republic of Sierra Leone shall be at the suit of the Attorney-General and minister of Justice or some other person authorized by him in accordance with any law governing the same.'

Having stated the different definitions given on action I opine that the work action in general includes both civil and criminal action but to my mind the test is whether Parliament intended by the words action to include criminal proceedings in Section 120 (9) of the constitution.

Section 120 (9) of the constitution states:

"All Judge of the Superior Court of Judicature shall not be liable to any action or suit for any matter or thing done by him in the performance of his judicial functions."

Before any person can claim exception from criminal liability there must be clear and unambiguous words to that effect in a statute or constitution exempting such a person from the criminal offences from which he is seeking exemption. Such references ought to be clearly spelt so as not to admit any doubt in the application of such exemption. Such references ought to be clearly spelt so as not to admit any doubt in the application of such exemption was done in Section 48 (40 of the Constitution in the case of the President and in Section 99 (10 of the constitution in the case of members of parliament.

7.

Therefore in my view Parliament never intended to include criminal Proceedings to the words action in relation to Section 120(9) of the constitution.

Section 120 (9) of the Constitution states:-

"All judge of the Superior Court of Judicature shall not be liable to any action or suit for any matter or thing done by him in the performance of his judicial functions."

Before any person can claim exception from criminal liability there must be clear and unambiguous words to that effect in a statute or constitution exempting such a person from the criminal offences from which he is seeking exemption. Such reference ought to be clearly spelt so as not to admit any doubt in the application of such exemption was done in section 48 (4) of a Constitution in the case of the President and in section 99 (1) of the constitution in the case of Members of Parliament. Therefore in my view Parliament never intended to include Criminal Proceedings to the words action in relation to section 12 (9) of the constitution.

In analyzing section 120 (9) of the Constitution it must be clear what judicial functions the performance of which exempts liability whether civil or criminal. These functions are confined to a judge's role during the trial. The role of the trial judge is set out in Volume 37 of Halsbury's Page 387 at Paragraph 510 in which the judge's functions as stated to be within the body of trial and not outside a trial. Therefore the action taking a gift or reward to influence a judge's behaviour or anything done in the conduct of his office is a bribe under the Common Law. See Halsbury's Laws of England Volume 11 at Page 541 Paragraph 921.

On the question of construing statues and other documents it is that you must not imply in them what is inconsistent with the words expressly used. "Per Lord Greene MR in Re a Debtor (1948) 2 AL LLR 533 at Page 536."

8.

Section 120 (9) of the Constitution of Sierra Leone clearly prohibits the institution of any civil action against a judge of the Superior Court of Judicature in respect of anything done by him in the performance of his judicial functions. I opine that the term "Criminal Proceedings which is the type of proceedings instituted by the 12 Count Indictment is used in Section23 (1) (5) (7) and (8) and 9 contrary to the terms Civil or Obligation used in Section 23 (2) and (30 of the name Constitution connoting thereby a suit or an action.

It is clear that Section 120 (9) confers on a judge of the superior court of Judicature immunity from liability in respect of whatever he does in performance of his judicial functions but can one honestly say that if a judge takes bribe in the performance of his duty he is immuned from prosecution?

Lord Denning in Sirros vs. Moore and Others (19740 3 ALR 776 Page 781 said: "Of course if the judge has accepted bribes or been in the lease corrupt or has perverted the cause of justice he can be punished in criminal courts. In my opinion the term "criminal Proceedings" in the expression suit or action will be repugnant to the cannons of construction."

Section 137 (40 of the Constitution stipulates that:

"subject to the provisions of this Section, a Judge of the Superior Court of Judicature my be removed from office. Only for inability to perform the functions of his office. Whether arising from infirmity of body or mind or for stated misconduct and shall not be removed save in accordance with the provisions of this section."

I therefore agree with learned Counsel for the defendants that Section 137 (40 of the Constitution is irrelevant since removal of the plaintiff is not in issue now, and may come late if the plaintiff is convicted.

9.

In my opinion the preferment of offices under Section 7 (10 and section 8 (10 of the Anti-Corruption Act No. 1 of 2000 is not repugnant to and is not inconsistent with provisions of section 137 (40 of the Constitution.

Also Section 120 (9) do no conflict with the provisions of Section 7 and 8 of the Anti-Corruption Act.

For the reasons given this Declaratory Order sought is thereby not granted. Declaration to the effect that the apparent refusal and OR reluctance of the Trial Judge the Honourable Miss Patricia Macauley to grant an adjournment based on Dr. Claudius Cole's medical report which was properly before her on the 2nd day of November, 2000 regarding the state of health of the plaintiff herein the accused in the criminal trial holden at the High Court No. 1 Freetown contravenes and does violence to the Provisions of section 23 (2) of the constitution of sierra Leone Act. No. 6 of 1991 in circumstances which led to the granting of an Order for the said Doctor Claudius Cole to come and prove that the accused person is not in a state to appear before the High Court.

Counsel for the plaintiff posed the question whether the Honourable Miss Patricia Macauley could go behind that report of Dr. Claudius Cole to with Exhibit "MOTD 6." The answer I submit is in the affirmative.

I will invite you to Halsbury's Laws of England 4th Edition volume 30 on Medicine paragraph 19 which states:

"the relationship between a Medical Practitioner and his patient does not excuse the practitioner whatever medical etiquette may require from the obligation, if directed to do so to given evidence in a court of law or to disclose records, or other documents in the course of legal proceedings. He is in the same position as any other person who is not specially privileged in this respect by the law. He may be summoned to give evidence in

10.

civil and criminal causes and may be liable to be punished by contempt of court it he neglects to attend.

In Civil cases, a judge has no discretion on grounds of confidentiality alone to direct a doctor that he need not disclose information which come to him through his professional relationship with a patient. Where however such disclosure would be in breach of some ethical or social value involving the public interest the court has a discretion to uphold a refusal to disclose public evidence if it considers that on the valance the public interest is better served by excluding such evidence."

(1) The relevant law is authoritatively stated in Dv National Society for Prevention of cruelty to Children (1978) AC 171. A doctor may therefore be required to disclose on oath information which come to his through his professional relationship with a patient, and he may be committed for contempt of court if he refuses to answer."

See Garner v Gamer (1920) 16 TLH 1966 where a medical practitioner who is the cause of treating a patient under natural scheme for dealing with venereal disease, could be compelled to give evidence to that effect even though statutory regulations applied in the scheme enjoined absolute secrecy on the medical evidence. There are several authorities on this issue which I will not go into details but is clear that every case must be governed by the particular circumstances, and the ruling of the judge will be the test.

The Hon. Miss Justice Patricia Macauley was right to refuse to grant an adjournment based on Dr. Cole's medical Report which was before her regarding the health of the plaintiff herein the accused in the criminal trial before her if she was not satisfied and she had all right to order the said Dr. Claudius Cole to appear before her to prove that the plaintiff (the accused) was not in a state to appear before her.

11.

There is no legal professional privilege between doctor and patient as between solicitor and client. See Taylor's Principles and Practice Medical Jurisprudence Volume! 12th edition Page 22 states:

"Doctors may feel they have a privilege not to answer certain questions put to them in a court of law, on the ground that the matters have come to their knowledge out of professional confidences with their patient. The law concedes no special privilege on this nature to members of the medical profession. Whilst admitting desire of a doctor to preserve some kind of privacy about matters communicated to him in confidence by a patient all questions must be answered provided they are relevant to the case. The only exception is where an answer might incriminate the doctor."

See Nuttalv. Nuttal (108 SOL J.605).

It is common practice in our courts for medical experts to be called to give evidence to clarify certain points on notes, medical or Scientific reports etc., and I see nothing wrong in the Hon. Mrs. Justice Patricia Macauley calling the doctor to give evidence on the report.

For the foregoing reasons the Hon. Miss Patricia Macauley was not wrong in law in not granting an adjournment sought based on the report properly before her but rather ordered the doctor to appear before her to prove that the plaintiff was not in a state to appear before the High court and clearly this is not wrong neither in law or contravened the provisions of Section 23 (20 of the 1999 Constitution. The Declaration Order sough is hereby refused.

Hon. Mrs. Justice V.A. D. Wright - J.S.C.