MISC. APP. 280/04               2004

IN THE HIGH COURT OF SIERRA LEONE

BETWEEN:

THE ATTORNEY GENERAL                        - PLAINTIFF/APPLICANT

AND CONTINENTAL COMMODITIES      - DEFENDANT/RESPONDENT

BEFORE THE HONOURABLE MR. JUSTICE S.A. ADEMOSU.JUDGE. DATED FRIDAY THE 27th DAY OF FEBRUARY, 2004

CASE CALLED:

L.M. Farma, E.E. Roberts and I.F. Mansaray for the Plaintiff/Applicant A.F. Serry-Kamal for the Defendant/Respondent absent

RULING

By an Originating Notice of Motion dated 1lth October, 2003 brought on behalf of Plaintiff/Applicant prays for the following orders:

"(1). To set aside the transaction leading to the sale and purchase of Government property situate lying and being at 28, Wallace Johnson Street, Freetown and/or canceling the Grant/Deed of Conveyance made between the Government of Sierra Leone and the Defendant/Respondent herein dated 16th day of September, 1993 and registered as No. 855/93 in Volume 472 at page 30 in the Book of Conveyances kept in the office of the Registrar-General in Freetown pursuant to the Findings, Report and Government whit Paper of the Mrs. Laura Marcus-Jones Commission of Inquiry on the Leasing and Sale of State lands in the Western Area of 1999.

a) For an order for immediate Possession to the Plaintiff/Applicant and/or

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an Order to immediate re-enter the said Government property situate lying and being at No. 28 Wallace Johnson Street, Freetown.

b)  Any further Order(s) that the Honourable Court may deem just.

c)  That the cost of this application be borne by the Defendant/Respondent.

In support of this application, is an affidavit sworn by Ibrahim Foday Mansaray on the 11th October, 2003 and filed herein to which is attached the following exhibits:

IFM 1 - Government Gazette on the appointment of the Commission of Inquiry IFM 2 - Report of the Commission of Inquiry IFM 3 - Government White Paper on the Report

The Applicant relied on the entire contents of the affidavit, particularly paragraphs 3.4.5 and 6 inclusive thereof. Paragraph 3 is to the effect that the Commission carried out its mandate and at the conclusion presented the Report and Recommendations to the Government in 2000. Paragraph 4, is in effect saying . that Government considered the Report and Recommendations and consequently issued The Government While Paper in respect of same. Pages 1-7 of IFM 3 referred. Paragraph 5 is in effect that the Commission identified a number of instances of irregularities in the allocation and grant of State lands in general terms, in particular, the Continental Commodities acquisition of the State land at No. 28, Wallace Johnson Street, Freetown, the acquisition of the building and land at 28, The Loop Wilberforce commonly know as plot 14 by the Bundu family and also the acquisition of the former Chief Justice's residence at Hill Station. In paragraph 6, it is averred thus:

"(6). That in the case of the State land at No. 28, Wallace Johnson Street, a commercial lease was on 17th December, 1986 granted to Universal Property and Management services of 1 Short Street,

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Freetownfor period of twenty-one (21) years with option to renew for a further twenty-one (21) years. Whilst this lease subsisting, the same Ministry granted yet another commercial lease to Continental Commodities and Services Limited on the 15th day of October, 1998 for a term of twenty-one (21) years; later the freehold of the same land was wrongly sold to Continental Commodities and Service Ltd., disregarding the policy of the Ministry that commercial leases cannot be sold freehold and that the lease to Universal Property Development & Management Ltd. was still subsisting without having been terminated."

Lastly in paragraph nine (9), it is stated that the Government lost its freehold interest in the various pieces of land all with buildings as a result of dishonesty and abuse of office and power by both the civil and political authorities and that for this reason, "Government in its White paper i.e. exhibit IFM 3 1-7 ordered the recovery of the freehold estates in all of those properties mentioned". It is observed that the Deeds of Conveyance the Court is expected to set aside or cancel are not exhibited. I say no more on that.

In moving that Court, Mr. Farmah submitted that the Commission's Report (IFM 2) and the White Paper are deemed to be the judgment of the High Court and therefore the application is not intended to open any further trial by the Court but to act as an authority to enforce that Order or Judgment.

He said series of irregularities were discovered particularly the property in question 'No. 28 Wallace Johnson Street, Freetown' which was wrongly acquired by the Defendant/Respondent. In support of this submission he drew the court's attention to exhibit IFM 3 at page 5 lines 21-40 unto page 6 which contain a chronology of events leading to the wrong acquisition of the property in question and the conclusion that misrepresentation formed the

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basis of the sale of the property to the Defendant/Respondent. Mr. Farmah urged the court to grant the fist Order prayed for, which is that transaction leading to the sale and purchase of the property in question to the Defendant/Respondent be set aside.

As regards the second Order prayed for Mr. Farmah submitted that since the Report and the White Paper on it came out in the year 2000 and since the Defendant/Respondent and/or its agents are still in possession or occupation of the property, the court should grant the Plaintiff/Applicant immediate possession or Order re-entry of the said property. In support of this proposition he relied on Section 30(1) and (2) of the State Lands Act No. 16 of 1960 and Section 17 of the Commission of Inquiry Act Cap. 54 of the Laws of Sierra Leone. According to Mr. Farmah, these provisions give the court authority to act in the instant case and grant immediately possession or re-entry.

The application is opposed by the Defendant/Respondent. There is an affidavit in opposition sworn by Abdul Franklin Serry-Kamal on the 19th December, 2003 and filed herein together with the relevant exhibits. The purport of the affidavit is to show that the Defendant/Respondent lawfully acquired the property in accordance with the State Lands Act No. 19 of 1960 as amended by that State Lands Amendment Act 1961 and the State Lands Amendments Act 1993. Mr. Serry-Kamal submitted that the provisions of the Act were scrupulously followed and therefore the property cannot be confiscated in this way. He argued that where Government wants to acquire property they can do so under Section 21 of the Constitution. In his opinion, the Government has stated no reason whatsoever why they are asking the conveyance to be set aside. He contended that the State Lands Act Cap. 19 does not put a time frame within which a property can move from lease to freehold. That Cap. 19 does not give the Government having sold land to come back and repossess it.

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In his opinion the affidavit filed in support of the application does not disclose sufficient evidence to grant the reliefs sought by the Plaintiff/Applicant. He urged the court to dismiss the application. Before filing the Affidavit in Opposition, Mr. Serry-Kamal started with the argument that at the inception of the action, he filed a Notice of Motion dated the 21st day October, 2003 supported by the Affidavit of Alhaji Mohamed Allie sworn on the same date. He said he would still raise the point which is in effect that there was no proper service of the Originating Notice of Motion on the Defendant/Respondent. He stated that this application seems to be grounded on Section 149(4) of the Constitution. He submitted that Section 124 of the Constitution is very explicit in its terms and therefore the question of interpretation of Section 149(4) has arisen and the provisions of Section 124(2) which are mandatory ought to be observed.

He argued that the Plaintiff/Applicant assumed that there is a judgment in existence and in their favour but the question IS: 'who was the judge who delivered the judgment?' He pointed out that there is no Writ of Summons or any judgment exhibited but that all that has been exhibited is the Report of the Commission of Inquiry. According to him nowhere in the Commission's Report is any adverse finding against the Defendant/Respondent. He also said nowhere did the Report show that the Defendants were invited to the Commission of Inquiry. It is his view that it is on the basis of the evidence before the Commission of Inquiry plaintiff's are asking the court to forfeit or cancel to the State. He referred to the evidence adduced at the Commission which I consider to be an invitation to comment on them. I will decline the invitation as I don't think it is within my province to reopen the issues before the Commission of Inquiry. He submitted that there is no adverse

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recommendation against the property in the Report (IFM 2) and that the only adverse thing said in the White Paper (IFM 3) is that it was done briskly.

He further submitted that nowhere is it stated that the property was not bought, and that no reason has been given why the sale should be set aside. He said the Government like any individual is obliged to state the grounds relied on. He contended that Section 149(4) of the Constitution does not give the Applicant/Plaintiff right to make this application and than since this Constitution came into effect no special procedure has been laid down we have to rely on Commission of Inquiry Act Cap. 54 as amended by Act No. 2 of 1964 and Act No. 1 of 1982. he places great reliance on Section 7(2) of the Act in support of his proposition that unless there is proof of Financial Loss to the Government before an Order for forfeiture can be made.

Section 7(2) of the Commissions of Inquiry (Amendment) Act. No. ] of 1982 provides as follows:

"(2). Upon the receipt of such report, if it appears to the President that any person has acquired assets for himself or in the name, of any other person in an unlawful manner or is responsible for any irregularity or malpractice resulting in any financial loss to the Government of Sierra Leone or to any local authority or corporation, or any other body whatsoever, the President may, on the advice of the Cabinet, make an Order:

(A)     requiring such person to make good the finance loss to the Government of Sierra Leone, or any local authority or corporation or any other body as the case may be; or

(B)    Forfeit to the Government of Sierra Leone or any 0 local authority or corporation or any other body as the case may be all or any part thereof of the assets of such person, whether or not such asset are in his name.

Still continuing, Mr. Serry-Kamal submitted that unless the conditions laid down by the Act are satisfied the Government cannot by itself confiscate or forfeit. He said that Section 7(30 of the Act must be complied with. The sub-section says:

"(3) Any Judge of the High court shall application by the Attorney-General and Minister of Justice make such Order or Orders as may be necessary for he purpose of giving full effect the Order of forfeiture of assets made by the President under sub-section (2) hereof and shall in particular but without prejudice to the generally of the foregoing etc. etc."

He urged the Court to dismiss this application. After several adjournments taken in the absence of Mr. Farmah for a reply to the Submission made by Mr. Serry-Kamal, Mr. Farmah appealed and said: I have already moved the Court. We are relying on our earlier submission from A-Z and that is all. I have considered all the arguments for and against this application. As regards the contention that this application calls for interpretation of the Constitution and therefore and therefore I should stay preceding in this matter and refer the question of law involved to the Supreme Court for determination under Section 124(2) of the Constitution Act No. 6 of 1991 . With due respect to Mr. Serry-Kamal do not share the view that there is a a need to interpret the Constitution because the provisions of Section 148 (4) are quite clear and unequivocal. It says:

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"149 (4) where a Commission of Inquiry makes an adverse finding against any person which may result in a penalty, forfeiture, of loss of status the Report of the Commission of Inquiry shall, for the purpose of this Constitution, be deemed to be a judgement of the High Court of Justice and accordingly an appeal shall lie as of right from the Commission to the Court of appeal.

I have looked for the definition of the word: 'deemed': in the Concise Law Dictionary 4th by Osbom. It says: Deemed means "to be treated as". This means for the purpose of the Act the Deemed thing should be treated as it were the things it is deemed to be. In other words, the Commission of Inquiry Report is to be treated a Judgement of the High Court. If it is a judgement, then the question of how the judgement was arrived at or what transpired at the trial cannot in my opinion, be open to question at this level. All the questions posed by Mr. Serry-Kamal cannot be raised here. I believe they are issues that could have been raised at a higher level. I am not competent to comment or review the Report of the Commission of Inquiry.

I now turn to the question of whether there has been any an adverse finding or recommendation I have carefully perused the Report of the Commission of Inquiry (IFM 2) and also relevant portions of the Government. While Paper (IFM 3) to which my attention has been drawn. I agree that it is not categorically stated that the property should be forfeited, but the Government White Paper clearly evinces that the Government is expressly and/or by necessary implication, against the sale of the property in question to the Defendant/Respondent, and it is not this Court to question the

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procedure adopted. In the circumstances, I have no alternative but to grant all the orders prayed for in the application i.e.

1. The sale and purchase of Government property situate, lying and being at 28 Wallace Johnson Street, Freetown in the Deed of Conveyance made between the Government of Sierra Leone and the Defendant/Respondent dated 1.6th September 1993 and registered as No. 855/93 in volume 472 at page 30 in the Books of Conveyances kept in the office of the Registrar-General is hereby set aside.

2. The Plaintiff/Applicant is granted the Order to recover possession of the said property from the Defendant/Respondent

3. No order as to costs.

SIGNED BY: THE HON JUSTICE S.A ADEMOSU - J

27/2/2004

CERTIFIED TRUE COPY

REGISTRAR COURT OF APPEAL

Ref: JSM/EML

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