Acting under rule 19 of the Police Rules, the Commissioner of Police appointed a Deputy Superintendent of Police (Seisay) to act as a coun of inquiry to inquire into the bank statement of a Sub-Inspector of Police (Dixon). As a result of the findings of this court, Dixon was dismissed from the Police Force. He then moved for an order of certiorari to quash the findings of the court on two grounds, the second of which was " that the inquiry was not free from bias and was against the principles of natural justice." Dixon alleged that, during the course of the inquiry, Seisay took. b1m to the office of the Commissioner for the purpose of obtaining the Commissioner's evidence; that, when they arrived at the Commissioner'a office, Seisay left him standing outside while he entered; that he remained outside for 10 minutes while Seisay conferred with the Commissioner; that, when be entered the office, he found Seisay and the Commissioner sitting at the same table conferring together; and that, after the Commissioner had given his evidence, he (Dixon) was asked to leave, which he did, leaving the Commissioner and Seisay once more alone together. Held, granting the application, that the fact that the adjudicating officer conferred with a witness in the absence of the accused amounted to an infringement of the principles of natural justice. Cases referred to: Duncan v. Gammell, Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All E.R. 587; Rex v. Wandsworth II., Ex parte Read [1942] 1 All E.R. 56; Kanda v. Government of the Federation of Malaya [1962] 2 W.L.R. 1153. Cyrus Rogers-Wright and Claudius Doe-Smith for the applicant. John H. Smythe (Ag. Attorney-General) for the respondent. BANKOLE JONES J. In these proceedings, counsel moves on behalf of the applicant, Thomas John Torboh Dixon, recently Sub-Inspector of Police, for an order of certiorari to quash the findings of a court of inquiry held into the bank statement of the applicant resulting in his dismissal from the Sierra Leone Police Force. The grounds on which he relies are two in number, namely: (1) "That the Commissioner of Police purported to exercise the jurisdiction vested in him under Cap. 150, s. 19, of the rules by holding an inqUiry into the bank statement of the applicant which is not one of the offences for which the Commissioner of Police is empowered to hold or appoint an inquiry and, therefore, it was a wrongful exercise of his jurisdictio!l." (2) " That the inquiry was not free from bias and was against the principles of natural justice." 

It was strongly urged by the learned Actmg Attorney-General, Mr. J. H. Smythe, that as the record of the inquiry containing the decision complained of is not before this court, no order can be made quashing it, and he referred me to Order 59, r. 8 (1), of the English rules, which reads as follows: "In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Crown Office . . . or accounts for his failure to do so to the satisfaction of the court or judge hearing the motion or summons." The note to this rule reads : " The order must be in writing and should be exhibited to an affidavit. They should be lodged before the application for leave." Mr. Rogers-Wright contended that as the respondent took an unchallengeable objection to the production of the record, by claiming Crown privilege, relying on the authority of Duncan v. Cammell, Laird & Co. Ltd. [1942] 1 All E.R. 587, it hardly lies in his mouth now to say that the applicant had not produced the record containing the findings of the court of inquiry which resulted in his dismissal. This is an explanation, he says, which accounts for its nonproduction, and one which in the circumstances, speaking for myself, I find satisfactory. Apart from this, I think the law is that if there has been an allegation of the violation of the principles of natural justice, as in this case, the court is entitled to look at the applicant's affidavit in order to examine the facts. In the case of Rex v. Wandsworth JJ., Ex parte Read [1942] 1 All E.R. 56 at p. 57, Viscount Caldecote L.C.J. in his judgment said the following: " ... and the only way in which that denial of justice could come before the court in these proceedings (certiorari) is by way of affidavit, and the court for that reason is entitled-and, indeed, is bound, if justice is to be done-to look at the affidavit, just as it would look at an affidavit if it were an ordinary case of excess of jurisdiction. . . . The court will look at the affidavit to see what the facts are, and, if there has been a denial of natural justice, then I think that the court is in a position to interfere and say that the conviction, in those circumstances, is not to stand." This is, therefore, a convenient and, I think, an appropriate stage for me to consider the applicant's second ground first. In paragraph 7 of his affidavit, the applicant alleged that, in the course of conducting the inquiry, Solomon Seisay, Deputy Superintendent of Police, who had been appointed by the Commissioner of Police to constitute the court of inquiry, took him to the office of the Commissioner for the purpose of obtaining the Commissioner's evidence. It would appear that the evidence of all other witnesses in Freetown was taken at the Criminal Investigation Department. This was not done in the case of the Commissioner. However, when they got to the Commissioner's office, Seisay left him, the applicant, standing outside whilst he entered. He remained outside for ten minutes, during which time it was alleged Seisay conferred with the Commissioner. Not only was there not filed any affidavit controverting this allegation, but the learned Acting Attorney-General, by the conduct of his cross-examination of the applicant, admitted the allegation. Also, under crossexamination, the applicant deposed that when he was called into the Commissioner's office, he found Seisay and the Commissioner sitting at the same table conferring, with Seisay writing. He continued writing until the Commissioner was called upon to give his evidence. The Commissioner signed his written evidence, but after this the applicant was asked to leave, which he did, leaving behind him the Commissioner and Seisay. The applicant's complaint is that the procedure adopted by his tribunal was an infringement of the principles of natural justice in that, in the first place, there was an admitted conference between the adjudicating officer and a witness in his absence before the witness gave evidence, admittedly in his presence, and this witness was none other than the Commissioner of Police, who instituted the inquiry and to whom a report was to be made. In the second place, in the course of his evidence, the applicant heard the witness ask the adjudicatmg officer if he had taken the evidence of another witness, to which he said "yes " ; and, in the third place, after the Commissioner had signed his written evidence, the applicant was asked to leave, leaving behind him his judge and the witness. There is a long string of authorities, even without mentioning them, which condemns such a procedure. I do not for myself conceive, nor would I believe, that the Commissioner brought any pressure to bear upon the adjudicating officer in order to bias the proceedings against the applicant, when they were twice together in the absence of the applicant. However, there are fundamental principles which govern judicial or quasi-judicial inquiries, and one of these, I opine, is that an adjudicating officer must not be closeted with a witness in the absence of an accused person, either immediately before the witness gives his evidence or immediately after he has given it. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case or against whom an unfavourable decision is given will believe he has been fairly treated if, in the course of his trial, a witness has had access to his judge in his absence and a witness at that who, as in this case, was the superior officer of the lowly judge. It seems to me, therefore, that the procedure, unwittingly no doubt, adopted by Seisay in obtaining the evidence of the Commissioner of Police, both before and after such evidence was given, did not make it plain and manifest that justice was done; see Kanda v. The Government of the Federation of Malaya [1962] 1 W.L.R. 1153 at pp. 1161-1162. On this ground alone, therefore, it is my considered view that the applicant must succeed. As to ground (1), considerable argument was addressed to me as to whether the Commissioner of Police wrongfully exercised his jurisdiction by proceeding under the Police Act (Cap. 150) and the rules made thereunder. I find it unnecessary to examine such argument, but the argument was to the effect, on the one hand, that the Commissioner rightly and properly exercised his jurisdiction under the Act, and on the other hand, that the Commissioner's exercise of his jurisdiction was either in conflict with or repugnant to the Constitution which came into operation on Independence Day, namely, April 27, 1961, in that the latest expression of the will of Parliament ought always to prevail. It may be that the Commissioner of Police was right in pursuing the procedure laid down by the Police Act because these provisions, I was told, do not conflict with the Constitution. I am not saying that be was right, and I confess that the state of the argument on both sides leaves me in great doubt about it. But whether an order of certiorari can issue from this court, even if the Commissioner was in breach of the Constitution, is a matter on which I would not like to hazard an opinion.

It is enough to say that, having come to the clear conclusion which I have reached, namely, that there was an infringement of the principles of natural justice, it is unnecessary to go further into the matter. Accordingly I would grant the application with costs to be taxed against the respondent.