SC. NO ./96

IN THE SUPREME COURT Of SIERRA LEONE BETWEEN:

ALL PEOPLE'S CONGRESS - PLAINTIFF

AND NASMOS

MINISTRY OF SOCIAL WELFARE

YOUTH AND SPORTS - DEFENDANTS

CONSTITUTIONAL REFERENCE BY WAY OF CASE STATED

CORAM:

HON. MR. JUSTICE D.E.F. LOSE                - CHIEF JUSTICE

HON. MB. JUSTICE A.B. TIMBO                 - JSC

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

HON. MRS.JUSTICE V.A.D. WRIGHT         - JA

HON. MR. JUSTICE M.E. TOLLA-THOMPSON – JA

A.F. SERRY KAMAL ESQ., FOB PLAINTIFF

J.G. KOBBA ESQ., FOB DEFENDANTS

JUDGMENT DELIVERED ON DAY OF OCTOBER 1999 DESMOND E.F. LUKE. C.J.:

This is a Constitutional reference by way of case stated by Nylander J, a Judge of the High Court pursuant to Sec. 124 (2) of the Constitution of Sierra Leone Act No. 6 of 1991.

Sec. 142 (2) provides as follows:-

"Where any question relating to any matter or question as is referred to in Subsection (i) arises in any proceeding in any court, other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination, and the court in which the question arose shall dispose of the ease in accordance with the decision of the Supreme Court."

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The Plaintiff, one of the recognised political parties represented in our Parliament initiated this action by a writ of summons dated the 9th day of April 1996 against the Defendants herein. The first Defendant is an Organisation sot up by the than Military government known as the National Association for Mobilisation Secretariat. The second Defendant is one of the Ministries in existence at the time. The Plaintiff's claim against the Defendants:

1. Damages for trespass.

2. Recovery of possession of the premises known as 39 Siaka Stevens Street Freetown.

3. Mense profits at the rate of Le4,000,000/00 par annum from the

29th April 1992 until possession is yielded.

4. Damages for conversion of air conditioners - Le10,000,000/00.

5. Damages formalicious damage.

6. Cost of restoring premises - Le16,000,000/00.

7. Interest on the aforesaid amounts and damages at the rate of 32% per annum until payment.

8. A perpetual injunction to restrain the Defendants whether by himself his servants or agents howsoever called from entering or remaining on the property known as 39 Siaka Stevens Street, Freetown or any part thereof.

9. Any further or other relief. 10. Costs.

J.G. Kobba, Esq., State Counsel for the Defendants by a action dated the 30th April 1996 sought to set the said writ "aside for irregularity and/or informality on the ground that the Plaintiff herein failed to comply with the Provision of Petition of Right, Cap. 23 of the Laws of Sierra Leone in that he issued a writ of summons against NASMOS AND THE MINISTRY OF SOCIAL WELFARE YOUTHS AND SPORTS". At the hearing of the Motion, Counsel representing the Defendants submitted that the Honourable Court had no jurisdiction to try this matter because the plaintiffs have failed to comply with Cap. 23 titled "Petitions of Right" of the Laws of Sierra Leone 1960 S.4 of the said Legislation, makes provision how the suit is to commence: and S.5 makes provision for fiat before prosecution. Counsel read out and explained the relevant sections in support of his argument that the present writ was irregularly issued. Counsel urged the court therefore to sat aside the writ as prayed.

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In answer to this application, Counsel Serry-Karmal , Esq.. representing the plaintiffs referred the court to S. 133 (i) of the Constitution of Sierra Leone 1991. This section reads a follows:-

"Where a person has a claim against the Government , that claim may be enforced as of right by proceedings, taken ... against the Government for that purpose, without the grant of a fiat or the use of the process known as Petition of Right."

Counsel rested his argument on this sub-section and asked the court to dismiss the application. Counsel for the defendants then asked for an adjournment to prepare his Reply.

At the resumed hearing defendants' Counsel submitted that S. 133 (1) of the 1991 Constitution provides certain Rights which are not in dispute. But S.133 (2) states that Parliament shall make provision for the exercise of such rights. This sub-section reads as follows:-

Parliament shall, by an Act of Parliament, sake provision for the exorcise of jurisdiction under this section". -

Counsel pointed out that S. 133 (i) is not operative until S. 133 (2) is effected by Parliament. In the interia all claims against the Goverment must comply with Cap. 23 of the Laws of Sierra Leone. Counsel urges the Court to grant his application as prayed.

Whereupon the learned trial Judge ruled as follows:--

The legal interpretation in my view spins around the present effect of S. 133 (i) of the 1991 Constitution and what effect S. 133 (2) has on it presently. As this to my mind touches on the interpretation of S. 133 as a whole. Presently, I hereby invoke S.124 (2) of the 1991 Constitution which reads as follows:-Wiere any question relating to any matter or question as is referred to in Subsection (i) (Interpretation of the Constitution) arises in any proceedings in any court, other than the Supreme Court, that Court shall stay proceedings and refer the question of law involved to the Supreme Court for determination; and the Court in which, the question arose shall dispose of the cease in accordance with the decision of the Supreme Court." I therefore pose the following question for the Supreme Court:-

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1.Is S. 155 (i) of the 1991 Constitution in operative until 3. 155 <2) is effected by Parliament?

2. If the answer is in the negative, can the High Court Rules apply to put into operation S. 153 (i) in the absence of Parliament effecting S. 155 (2)?

5. What is the state of a party's right, as at present in relation to S. 155 (2)?

Shis matter before this Court is stayed until the Supreme Court's decision is received. Proceedings stayed.

(Sgd.) Nylanders J.

Before seeking to answer the questions posed by the learned trial Judge, it seems to me that it would be, helpful to consider the position of claimas by private parsons against the Goverment prior to the 1st October 1991 when the present Constitution of Sierra Leone Act No. 6 of 1991 came into being. EXISTING LAW PRIOR TO 1ST OCTOBER 1991

The existing law prior to 1st October 1991 is to be found in Cap. 23 of the Laws of Sierra Leone 1960 Sections 3, 4, and 5 of which road as follows:-5. All claims against the general Government of the Colony, or against the Government of any ether Colony. being of the same nature as claim which night have been preferred against the Crown in England before the enactment of the Crown Proceedings Act, 1947, by petition, manifestation, or plan of right, nay, with the consent of the Governor, be preferred in the Supreme Court in a suit instituted by the claimant as plaintiff, against the Attorney General as defendant, or such other officer as the Governor any from time to time designate for that purpose. Section 4 makes provision how the suit is to commence:-

4. The claimant under his Ordinance shall not issue a writ of summons, but the suit shall be commenced by the filing of a statement of claim in the Supreme Court, and the delivering of a copy thereof at the office of the Attorney General, or other officer designated as aforesaid, and no fee shall be payable on filing or delivering such statement. And Section 5 makes provision for the fiat before prosecutions-

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5.The Registrar shall forthwith transmit the statement of claim to the Attorney-General, and the same shall be laid before the Governor. In ease the Governor shall grant his consent as aforesaid, the statement of claim shall be returned to the Supreme Court, with the fiat of the Governor endorsed thereon, and the claim shall be prosecuted in the Supreme Court. It is to be noted:-

FIRSTLY - that only claim being of the same nature as claims which might have been preferred against the Crown in England before the enactment of the Crown Proceedings Act 1947, by petition manifestation or plea of right could with the consent of the appropriate officer be preferred.

SECONDLY - that such claims were severely restricted and applied mainly to some contracts which the Crown by itself, its servants or agents had entered into as well as to some compensation for property of the subject taken by the Crown either arbitrarily or under Statute (See A.G. v. De Keyers Hotel [1929]A.C. 508 Feather v. the Queen 1865 6 B & S 257.)

THIRDLY- that in tort the party aggrieved had no remedy against the Crown - A.G. v. De Keysers Royal Hotel [1920] A.C. 508. And FOURTHLY - that the grant of a fiat or the use of the process known as Petition of Sight was required.

HOW DID SEC. 133 OF THE CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991 SEC. 133 (i) & (ii) AFFECT THIS POSITION? Section 133 reads:-

133 (1) Where a person has a claim against the Government, that claim may be enforced as of right by proceedings taken against the Government for that purpose, without the grant of a fiat or the use of the process known as Petition of Right. (2) Parliament shall, by an Act of Parliament, make provision for the exercise of jurisdiction under this section.

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Whereas the possible'daim£against the Government prior to 1st October 1991 were severely restricted as outlined above and were further encumbered with the procedure of use of the process known as Petition of Bight and the grant of a fiat to my mind the plain and unambiguous words of Sec. 133. Subsection (1):-

undoubtedly remove all such restrictions and encumbrances as existed prior to October 1 1991.

However, Sec. 133 consists not only of subsection (i) but also of subsection (ii) which reads:-

(2) Parliament shall, by an Act of Parliament, make provision for the exercise of jurisdiction under this section.

Parliament has not to date passed any such legislation- which raises the question what happens to the unrestricted rights granted by Sec. 133 subsection (i) in the absence of legislation envisaged by subsection 133 (2).

In construing Section 133 I intend to be guided by the following considerations:                                                                 

1. Sec. 133 is to be construed as a whole. We cannot construe Sec. 133 as if subsection (2) were not there. Otherwise we would not be interpreting the Constitution - we would be rewriting it. And even Parliament the law makers cannot rewrite See. 133 without the peoples consent since Sec. 133 is an entrenched clause- vide Sec. 108 (3) of the Constitution. ' I intend to be further guided by THE MODERN VIEW - as regards construction of instruments so eloquently stated by Lord Halsbury L.C. in 1888 in the case of Leader v. Duffey 1888 13 App.Cas 294 at 301:

"All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view - which is I think in accordance with reason and common sense - that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained, But I agree that you must look at the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention

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apart from the language of the language of the instrument itself, and having made that fallacious assumption to bend the language in favour of the assumption so made."

This "reason and common sense" approach to documentary interpretation is still to be found in the words of Laws L.J. in the case of Oliver Aahworth (Holdings) Ltd. v. Ballard (Kent) Ltd [1999] 2 All E.R. 791 when discussing the distinction between literal and purposive approaches to the interpretation of Statutes. This is what he says:-

"It is nowadays misleading - and perhaps it always was to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between the purposive and literal construction is in truth one of degree only ........... the real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and. purpose of the measure in which they appear on the other". In this matter, by S. 133 (i) Parliament enacted that -

"Where a person has a claim against the Government, that claim may be enforced as of right......."

My quotation stops at this point in the text because in S. 133 (i) the substantive enactment is that a claim against the Government may be enforced as of right.

The words "as of right" are followed by these words - "by proceedings taken against the Government for that purpose, [without the grant of a fiat or use of the process known as "Petition of Right"]

The words in square brackets indicate the previous Crown Proceedings restrictions or fetters on claims against the Crown are abolished. This is necessarily so if enforcement of a claim against the Government is as of right.

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Then this new right unfettered by any restrictive discretion is to be enforced "by proceedings taken against the Government for that purpose".

Thus unless the Constitution itself indicated expressly or by necessary implication that the new unrestricted right is to bo effective only as from some future date or after some farther condition has been satisfied then that new right comes into being on the 1st October 1991, the date the Constitution came into operation.

Does Sec. 133 (2) expressly or by necessary implication delay the cosing into effective operation of the new unrestricted right? What Sec. 133 (2) says is -"Parliament shall by an Act of Parliament sake provision for the exercise of the jurisdiction under this section".

Such provision sight for example have been to the effect that claims to enforce the new unfettered right were to be considered by a specially constituted court

For example, it might have been thought appropriate to set up a Court like the U.S. Federal Court of Claims with exclusive Jurisdiction to try some or all of such claims and to Bake special provision about appeals from that court} or the jurisdictional statute sight have said that all such claims should be tried in the Supreme Court but by 3 Judges of that Court sitting together. But Parliament could not take away nor in any other way derogate from the new unrestricted rights created by Sec. 133 (i) - an entrenched clause of the Constitution. Parliament may say what Courts are to have jurisdiction to hear and determine claims to enforce the now unrestricted rights, and it is, of course, open to Parliament to prescribe by Statute procedural rules which are to apply; but an ordinary alternative is for rules of court, and not an Act of Parliament, to spell out the procedure in the Court for bringing the proceedings. That ordinary alternative is not excluded by anything in S. 133 or elsewhere.

I am therefore unable to find in 133 (2) any express or implied condition postponing the availability of the new unrestricted rights until Parliament has enacted a further Statute prescribing which Court or Courts are to exercise jurisdiction to hear and determine claims for enforcement of the new unrestricted rights.

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Parliament has failed to enact a definitive Statute specifying which Courts are to exercise jurisdiction over claims to exercise the new unrestricted rights and has not imposed any delaying or suspensory condition postponing the enforcement of the claims.

In ay judgment therefore, the Courts must hear and determine any claim to the new unfettered rights granted by the Constitution under Sec. 133 (i). Parliament has not yet enacted any restriction upon the courts or constituted any Court which may exercise the Jurisdiction and unless and until it does, the claims must be heard and determined in the ordinary Courts of the land in the ordinary manner. Such proceedings are in the language of S. 133 (i) "proceedings taken against the Government" for the enforcement as of right of the claims referred to in S. 133(i). For the Courts to refuse to entertain such proceedings would be to deny the new unrestricted rights conferred by the Constitution in S. 133 (i)»

For the aforestated reasons, it is ay opinion that:-

The answer to the 1st of the questions posed by the learned trial Judge is -

The answer to the 2nd question is - Yes. The answer to the 3rd question is -provided by Sec. 133 (i) of the Constitution.

That right "may be enforced as of right by proceedings taken against the Government for that purpose".