CR APP 19/2008 (Gabbidon v The State) [2008] SLCA 03 (01 November 2011);








 L JENKIN5-JOHNSTON Esq for the Appellant/Applicant

MS. GLENNA THOMPSON for the Respondent


1.     By Notice of Motion dated 20 0ctober,2008 FRANCIS GABBIDON, the Appellant/Applicant herein (hereafter "the Applicant") applied to this Court for (1) an Order for Interim Stay of Trial Proceedings in the matter of THE STATE vs FRANCIS A GABBIDON just recently commenced, and at present taking place in the High Court before the Hon. MRS JUSTICE SEY, pending the hearing and determination of this Application. (2) the same Order pending the hearing and determination of Criminal Appeal 19/2008. (3) any further or other Orders this Court may deem fit.

2.     The Application is supported by the affidavit of DR BU-BUAKEI JABBI sworn to on 20 0ctober,2008 together with several exhibits." BJt is a Ruling of SEY,J dated 9 October,2QQ8; *BJ3' is a copy of her Ruling of 16 0cotber,2008; "BJ2‘ is a copy of submissions made on behalf of the Applicant by Counsel, before SEY,J; *BJ4' is a copy of the Order of Court dated 16 0ctober,2008; "BJ9' is a copy of a Notice of Appeal dated 17 0ctober,2008 filed on behalf of the Applicant, in this Court's Registry. The Respondent did not file an affidavit in opposition.

3.     Before dealing with the matters deposed to in DR JABBI’s affidavit, I must state at the outset, that we are not here dealing with the appeal against the Ruling of SEY,J exhibited to DR JABBI’s affidavit as "BJl." What we are concerned with is whether this Court has jurisdiction and power to Stay criminal proceedings pending before SEY,J pending the outcome of an appeal against a Ruling given by her during those proceedings. I have this at the outset, because it appears to me that a substantial portion of DR JABBI's affidavit is devoted to the correctness or otherwise of SEY,J's Ruling. We cannot, on the hearing of this particular Application decide whether SEY,J was right in holding that Cap 172 of the Laws of Sierra Leone,1960 did not apply to the Applicant, and that the criminal proceedings brought against him were time-barred; nor can we properly say that her Ruling that that piece of Legislation did not apply to, nor inure for the benefit of the Applicant, amounted to an abuse of process. A wrong decision in Law does not necessarily amount to abuse of process. In any event, these are matters which can only De dealt with at the hearing of the appeal in question, provided that the Court to which the appeal is assigned for hearing, holds that it has jurisdiction to hear such an appeal. It follows that we cannot properly address the issues raised by DR JABBI in paragraphs.

4.      Another issue which requires clarif ication at the outset, is the claim by DR JABBI in paragraphs 8, 11 and 12 of his affidavit that SEY,J ought to have granted a Stay of Proceedings pending the hearing and determination of the Applicant's Appeal, on the grounds of cost- effectiveness and in the interests of justice. We do not of course know why she refused the Applicant a Stay of Proceedings, but it is possible she may have thought that a Stay would lead to an unwarranted disruption of the proceedings then pending before her, and would amount to a denial of justice, as it is frequently said, justice delayed, is justice denied.

5.      To return to DR JABBI's affidavit, the principal reasons, he deposes, for applying to this Court for a Stay, are contained in paragraphs 11 and 12 thereof: cost-effectiveness; interests of justice; putting the Applicant through a 'costly trial1 which might be declared a nullity by a superior Court. He says these are ‘special circumstances warranting a stay.

6.      In the same affidavit, he cites three cases in support of his contentions. These cases, he argues, support his contention that in proceeding with the trial after his application for a dismissal of the charges brought against the Applicant had failed, the trial Judge's actions amounted to an abuse of process. As I have stated above, a wrong decision does not ipso facto, amount to an abuse of process. Further, nowhere in that affidavit has he shown that the 'specified circumstances' which he deposes to in paragraph 10 b) line 3 cover or apply to the situation with which the Court

was dealing: dismissing, on legal principles, an Application for a dismissal of criminal charges on the ground that they were brought out of time.

7.      In addition to his affidavit, DR JABBI argued the Application before us on 29 0ctober(2008. Again, in support of his arguments, he cited authorities, copiously. The most relevant, in our consideration, is JAMES ALLIE A OTHERS v THE STATE Misc App No 3/81 a Constitutional Reference to the Supreme Court, Judgment delivered on 24 February,1982 by LUKE.CJ. DR JABBI has been unable to cite to us any authority for the proposition that an Interlocutory appeal is available to either side in a criminal case pending in a Court of first instance, and/or that a Court of first instance, or this Court, has jurisdiction and power to stay proceedings in that Court pending the hearing and determination of such an Interlocutory appeal by, and in this Court. We are of course aware that the Supreme Court does have power to stay criminal proceedings pending in any Court n the circumstances stated in Sections 124 and 125 of the Constitution. That Court exercised that power in the case of THE STATE v JULIUS SPENCER 4 OTHERS (1994) Sup. Ct Misc App No. 6/93A <& B, a case in which I was one of the Counsel for the Applicants.

8.      In the premises, it is our view that, notwithstanding the welter of submissions made, and authorities cited by DR JABBI before us, there are only two matters which merit consideration: is an Interlocutory appeal in criminal proceedings recognised by; and in our Laws? Can this Court grant a Stay of criminal Proceedings pending in the High Court, on the ground that an Interlocutory appeal has been filed against a Ruling made by the Trial Judge in those proceedings? Our answer is a resounding “NO" to both questions. I shall hereafter state our reasons for this response, but before doing so, I wish to make it clear that the only reason why we have considered answering the first question is because without doing so, we need not deal with the second question. We assume for present purposes that there is an appeal, and that it was proper to file it. If at the outset, we say there is no right of appeal, then we need not go into the follow up question, whether we can grant a stay of proceedings in the lower Court, as we would have no other reason to stay those proceedings.

9.      I also wish to make clear, that this Court cannot pronounce on the rightness or otherwise of 5EY, J*s Decision on the applicability of Cap

172 to the proceedings still pending before her. That is matter which this Court will have to deal with, when the Applicant's appeal comes up for hearing. I have made this clarif ication because, it is our considered opinion that save for the two authorities referred to above, and cited or supplied by DR JABBI, the other authorities he has cited or provided after argument, go to the issue of abuse of process and the duty of the trial Court to stay proceedings where this has occurred. We do not think therefore, that it would serve any useful purpose to dilate on them in this our Decision. There relevance to the two issues which as, I have stated above, concern this Court, are infinitesimal, if any As I have pointed out above also, a wrong decision made during the course of a criminal trial, does not necessarily deprive the trial Court of jurisdiction. Whether a decision was wrongly made during the course of a criminal trial is matter for the Court of Appeal after the conclusion of that trial. Also, a decision is not necessarily wrong because Counsel for an accused person says it is wrong. He may himself be very wrong.

10.  I shall now proceed to give for reasons for our negative response to these questions, I shall start off with Section 129 of the Constitution of Sierra Leone, 1991. It provides that

  1. "The Court of Appeal shall have jurisdiction throughout Sierra Leone to hear and determine, subject to the provisions of this Section and of this Constitution, appeals from any Judgment, decree or order of the High Court of Justice or any Justice thereof and such other appellate jurisdiction as may be conferred upon it by this Constitution or any other law.
  2. Save as otherwise provided in this Constitution or any other law an appeal shall lie as of right from a Judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.

11. DR JABBI's argument, if I understand him correctly, is that the word "save!' in subsection (2) does not restrict the rights of an Appellant to appeal to this Court as of right. He argues that the true meaning of “save!' in that clause is that the right of appeal is not restricted to only those cases provided for in "any other law' but extends to litigants and parties in all causes and matters determined by the High Court in the exercise of its original jurisdiction. In other words, he reads "notwithstandingHis argument in my estimation is that subsection (2) is really providing that 'notwithstanding any other provision in this Constitution or any other law an appeal shall He as of right..! we do not agree with DR JABBI in this respect. In our Judgment, the use of the word "savd1 amounts to a saving provision. The intention here, is to save the existing law.

12. We begin with his beloved BENNION'S STATUTORY INTERPRETATICN 3rd Edition, which, surprisingly, he has not cited to us. In Section 243 under the rubric ’ The Saving'on page 558 BENNION states that "A Saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation” Under comment' on the same page, he states that "a saving resembles a proviso, except that it has no particular form, relates to an existing legal rule or right, whereas a proviso is usually concerned with limiting the new provision made by the section to which it is attached!' Again, further down the same page, he states thatB 'saving clauses'are often included by way of reassurance, for avoidance of doubt or from abundance of caution" On page 559, he states that *a saving is taken not to be intended to confer any right which did not exist already'

13 We move on to LEGISLATIVE DRAFTING 4th Edition by 6 C THORNTON. He does not approve of the use of the word ’save’ in legislative drafting; at page 105 he states that" 'Save' when used to mean 'except' or 'but s archaic and for that reason should be avoided” The use of the word may be archaic, but it is what we have been called upon to interpret; and unless that provision is repealed, it remains the law of the land. Our view is that 'save'm the context of subsection (2) cannot mean anything other than 'except'or 1but or 'unless.'Once this view is accepted, the meaning of subsection (2) becomes clear.

14. As to savings clauses generally, THORNTON has this to say at page 387:

" a savings provision is used to preserve what already exists: it cannot create new rights or ob!igations.....a savings provision is frequently included in legislation to establish beyond doubt that the provisions of that legislation are to be construed as additional to and not in derogation of existing law... the possibility of repeal by implication is thus excluded. “

15. It is our Judgment therefore that by the use of the word 'save'in subsection (2), the applicability of any other law is saved. Further, that 'any other /a^'means 'any other existing law'so as to exclude laws which have been repealed, or which had not come into force, or which have not been saved, at the date the offences charged in the Indictment were alleged to have been committed by the Applicant. As to what is any other law in Sierra Leone, we have to go to Section 170 of the Constitution. It provides that “(1) The Laws of Sierra Leone shall comprise - (a) this Constitution; (b) laws made or under the authority of Parliament as established by this Constitution;...... (d) the existing law; and (e) the common law." Subsection (4) provides that "the existing law shall, save as otherwise provided in subsection (1), comprise the written and unwritten laws of Sierra Leone as they existed immediately before the coming into force of this Constitution..." subsection (5) states that "subject to the provisions of this section, the operation of the existing laws after the coming into force of this Constitution shall not be affected by such commencement; and accordingly the existing law shall be construed with such modif ications (etc).... as may be necessary to bring it into conformity with the provisions of this Constitution..."

16. One such existing law is Section 57 of the Courts' Act, 1965 as amended. It is to be found in Part IV of the Act under the rubric: "Appeals in Criminal Cases Tried in the High Court at First Instance and certain other matters, * The sub-rubric is: RIGHT OF APPEAL AND bETERMINA TION OF APPEALS. Section 57(1) as amended in 1966 provides that ”A person convicted by or ih the High Court may appeal to the Court of Appeal - (a) against his conviction on any ground of appeal which involves a question of law alone; and (b) with the leave of the Court of appeal or upon the certificate of the Judge who tries him that it is a

fit case for appeal against his conviction on any ground of appeal............ and

(c) with the leave of the Court of Appeal against the sentence passed on his conviction; unless the sentence is one fixed by law.", and (d) against a finding of insanity.... "The amendment in 1966 gave the State the right to appeal against the acquittal or discharge of the accused or defendant before the High Court, on a question of law only. The only other right of appeal from the High Court to this Court in a criminal matter is that to be found in Section 63 of the Courts' Act, It provides that "an appeal shall lie to the Court of Appeal by either party from any decision of the High Court made in the exercise of its prerogative or supervisory jurisdiction in a criminal matter." That is, there is also a right of appeal, where the High Court has decided a matter in the exercise of its supervisory or prerogative jurisdiction over inferior tribunals, and not only when it is exercising its original criminal jurisdiction. The Decision in question in this case was not made in the exercise of the High Court's prerogative or supervisory jurisdiction. It was made in the exercise of its original jurisdiction.

17.  That it was not the intention of Parliament to confer a right of appeal in interlocutory matters, is confirmed by the right given to a party in a civil case to appeal against an Interlocutory judgment or order of the High Court to this Court in Section 56(lXb) of the Courts' Act Parliament in its wisdom must have thought that to allow such appeals would lead to inordinate delays in the criminal justice system, and to the not improbable consequence that criminal trials would never end because of repeated Interlocutory appeals being made by either side in any particular case. Delay in delivering a final decision in any particular case, may be a phenomenon the civil Courts are prepared to put up with. But it is certainly not an admirable phenomenon in the criminal justice system. One has only to look back on the twists and turns of the long-running saga of DR KAREFA-SMART v JOE CONTEH which ran between 1996 to 2003 to appreciate the debilitating effects of Interlocutory appeals on the civil justice system. An issue which concerned one Parliament was not resolved until after another Parliament was elected six years later. There is also the issue of Bail; how would continuous and repeated Interlocutory appeals affect an accused person who has been remanded? When would his guilt be finally determined, if at all? These considerations may have weighed heavily with our Legislators.

18.  The only other way an accused person could come to this Court in a criminal matter, is where the Trial Judge reserves for consideration by this Court, on a case stated by him, any question of law which may arise on the trial before such Judge, The power to do so is discretionary. That is not the case here. The Presiding Judge has not stated a case for us to consider.

19.  Before leaving the issue of whether there is right to appeal against an Interlocutory decision in criminal trials, I shall return to the Supreme Court's decision in the JAMES ALLIE Constitutional Reference cited above, There, Section 108(2) of the 1978 Constitution of Sierra Leone which is, as conceded by DR JABBI, ipssima verba Section 129(2) of the 1991 Constitution, fell to be considered by the Supreme Court. In comparing Section 103(l)(b) of the 1978 Constitution which dealt with appeals to the Supreme Court, and Section 108(2) which dealt with appeals to the Court of Appeal, LIVESEY LUKE,CJ said at page 15 of his Judgment, inter alia, "But whereas the right of appeal conferred by Section 103(l)(b) is very wide in its scope, that conferred by Section 108(2) is more limited in its scope.” At page 16, he says:"Parliament in its wisdom has conferred a more restricted right of appeal in respect of appeals to the Court of Appeal than in respect of appeals to the Supreme Court Ours is not to question why. Our duty is to interpret the Constitution and to apply it to any relevant situation that comes before us." At page 18, LIVESEY LUKE, CJ confirms our assessment of the effect of Section 129(2) of the 1991 Constitution: *the question is whether the above-quoted provisions (i.e. Section 57 of the Courts'

Act,1965) conflict with the provisions of Section 108(2) of the (1978) Constitution. That sub-section of the Constitution has been set out above. Admittedly, it states, inter alia, that 1'an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice." But that apparently unrestricted right of appeal is subject to a very important qualification which is embodied in the opening words of the sub-section, to wit, "save as otherwise provided in this Constitution or any

other !aw“......... "any other law" in that context means any laws of Sierra

Leone other than the Constitution of Sierra Leone,1978. "After spelling out what comprises the laws of Sierra Leone, LIVESEY LUKE, CJ goes on at page 19 to say * the Courts' Act,1965, having come into force on 6th Otcober,1965 was a written law of Sierra Leone existing immediately before the coming into force of the Constitution on l4h June,1978. Therefore Section 57 is an existing law, and is subsequently expressly saved by Section 125(l)(d) (now Section 170 of the 1991 Constitution).

And since Section 57 otherwise provides as regards rights of appeal from the High Court to the Court of Appeal, Section 108(2) (now 129(2)) of the Constitution must be read subject to section 57 of the Courts' Act,1965. In other words, the right of appeal as of right apparently conferred by section 108(2) of the Constitution is subject to the rights conferred by Section 57 of the Courts' Act,1965!' He ends the misunderstanding as to whether the 1978 Constitution is saying one thing or giving away with one hand whilst Section 57 of the Courts' Act 1965 is saying another thing, or giving away with another hand, by saying at page 21: " therefore Section 108(2) (now 129(2)) of the Constitution must be read subject to Section 57 of the Courts' Act,1965 which is an existing law." That great Jurist has settled the issue beyond a doubt, and we do not think we need to go into an excursus into foreign lands, jurisdictions and legislation to assist us. LIVESEY LUKE CJ, has explained the apparent conundrum clearly and succinctly in unambiguous language. We thank MS THOMPSON for providing us with the case of HERBERT COLLINS (1969) Cr App Reps 19 a Judgment of the UK Court of Appeal which reiterates the point that there are no Interlocutory appeals in criminal matters, but LIVESEY LUKE, CJ settles the point beyond dispute.

20 Nz might just add that Section 122(2) of the Constitution of Sierra Leone,1991 provides that "...and all other Courts shall be bound to follow the Supreme Court on questions of law."

21. Since the right of appeal conferred by Section 129(2) of the Constitution must be read subject to the provisions of Section 57 of the Courts*

Act,1965 the Constitution was not obliged to provide the appropriate Forms for use in filing appeals. It has delegated that function to the Rules Committee established by Section 145 of the 1991 Constitution; and that Committee has performed its function in providing us with the Court of Appeal Rules,1985. Rule 8 does not avail DR JABBI as he claimed. That Rule states that the Forms set out in appendices A and C to these Rules or forms as near thereto as the circumstances permit,, shall be used in all cases to which such forms are applicable ." Appendix A clearly provides Civil Forms. Appendix C provides Criminal Forms. There are no Forms for Interlocutory appeals, because there is no provision in our laws for Interlocutory appeals in Criminal cases. There is such provision for Interlocutory appeals in Civil cases: Civil Form 2 in Appendix A to the Rules is the appropriate Form. The mongrel Form utilised by DR JABBI and exhibited to his affidavit as “BJ5" is not one therefore authorised by the Rules, nor by the Constitution: it is neither a Civil Form, nor a Criminal Form. The case of APC v NASMO A ANOR. Sup Ct Constitutional Ref. 4/96 does not, in our view, assist him. There, the Supreme Court held that a litigant could not be deprived of the opportunity to enforce its rights given to it by Section 133(1) of 1991 Constitution, because Parliament had neglected and/or failed to promulgate Rules in accordance with Section 133(2) thereof. Once the right had been given, the litigant

was entitled to use such procedures as were available to enforce its rights. Here, the JAMES ALLIE case has expressly provided that the rights conferred by Section 129(2) are subject to the provisions of Section 57 of the Courts' Act,1965; and the Rules Committee has' provided for the manner in which the Appellant can exercise his rights in the Court of Appeal Rules,1985

22 f there is no right of appeal n this case, how can we then stay the proceedings in the High Court? DR JABBI cited to us Rule 64 and then Rule 28 of our Rules. As we rightly pointed out to DR JABBI during the course of argument both Rules apply only to Civil Proceedings. Though Rule 64 appears in Part V under the Rubric MISCELLANEOUS, it is clear from its wording that it is restricted to civil proceedings. It is only applicable in the circumstances provided for by Rule 28: that is, where the unsuccessful litigant in civil litigation in the High Court has appealed to this Court, and wishes to stay execution of the Judgment of that Court. Rule 28 applies only to civil appeals. It does not apply to criminal appeals, and it is disingenuous for Counsel to suggest that it does. If Rule 28 does not apply to criminal appeals, Rule 64 has nothing to do with criminal appeals.

23.We were also urged by DR JABBI to exercise the discretionary powers given to this Court by Rules 31 and 32 of our 1985 Rules. We pointed out to him that it was clear those Rules applied only to Civil Appeals. We reiterate our stance here. The Court of Appeal is a creature of Statute, and like its predecessor, the West African Court of Appeal, and its indirect progenitor, the English Court of Criminal Appeal created in 1907 (now the Court of Appeal, Criminal Division), is bound by Statute. It is unlike the High Court, whose progenitor is the old English Court of King's Bench, which later became the High Court of Justice, and which is said to have inherent jurisdiction, such inherent jurisdiction being the result of the various accretions over the centuries. An explanation of the origins of the High Court lies within the realm of the History of the English Legal System, and we do not consider it a profitable exercise or a necessary digression, in this instance.

24The powers of this Court, on the hearing of an appeal, are to be found in Sections 58,59 and 65 of the Courts' Act,1965. None of these powers are available for use by, or for the benefit of the Applicant in this case, because they are only available to a person convicted by and in the High

Court; or by a person aggrieved by the acquittal or discharge of an accused person or defendant, by and in the High Court.

25 The Court cannot stay the proceedings pending in the High Court on any ground. The Application dated 20th October,2008 filed on behalf of the Applicant FRANCIS GABBIDON is therefore DISMISSED.