IN THE SPPREME COURT OF SIERRA LEONE

SC.MISC. APP. 3/99

BETWEEN:—

THE STATE- APPLICANT

AND

THE HOH. MR. JUSTICE M.O. TAJU-DEEN JUDGE                      – RESPONDENT

 EX PARTE DR. HARRY WILL                                                          -  APPLICANT

CORAM:

THE HON .MR .JUSTICE D.E.F. LUKE                                            -  CJ.

BEE HOT .MR .JUSTICE H.M .JOKO-SMART                                -  JSC

THE HOT .MR .JUSTICE S.CE.HARNE                                           -  JSC

DR. BU-BUAKEI-JABBI FOR APPLICANT

DELlVERED THIS 9th DAY OF NOVEMBER, 1999

RULING:-

The application before this Court is contained in a Notice of Motion for certain reliefs; inter alias

(1) Leave to apply for Orders of certiorari, mandamus and prohibition and related or consequentional orders or directions in respect of the ruling given on 11th October, 1999 at 10.00 hours by the Learned Judge in proceedings on the criminal information dated 30th August, 1999.

(2) An Order of Stay of Proceedings founded on Criminal Information dated 30th August, 1999 at present pending in the High Court until determination of the substantive application for which leave is granted herein, if and when so granted".

The Motion is supported by an affidavit sworn to By Bu-Buakai Jabbi on the 18th day of October, 1999."

Before the Motion could be heard Counsel sought an amendment to certain facts of the motion which was granted.

Counsel urged the court to entertain the application inspite of the defect in the title of the cause, which on the face referred to The Hon. Mr. Justice M.O. Taju Seen as Respondent. The title again stated that the State and Dr. Harry Will are both applicants.

On the face of the motion paper counsel avers that the affidavit herein is made pursuant to Order 59. Rule 3(2) of the (English) Supreme Court Rules 1960. Among the other papers filed by counsel was a Statement Pursuant

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to Rule 98 of the Supreme Court Rules 1982 and Rule 3 Order 52 of the High Court Rules (Sierra Leone) and Rule 3(2) of Order 59 of (English) Supreme Court Rules 1960.

The Statement reads, inter alias-

"IN THE SUPREME COURT OF SIERRA LEONE"

In the matter of an application by Dr.Harry Hill under Section 125 of the Constitution of Sierra Leone Act No.6 of 1991 for leave to Apply for Orders of Certiorari Mandamus and Prohibition and for related declaration and other ancilliary or consequential orders and directions.

In the natter of a Ruling given and 11th day of October 1999 by the Honourable Mr.Justice M.O. Taju-Deen (High Court Judge) in the Criminal Information dated 30th August, 1999 filed in the High Court of Sierra Leone Holden at Freetown and entitled "The State vs. Dr.Harry Will, Lamin Feika, Bookarie Kakay Trading as Mariama & Sons ( A Firm)

BETWEEN

THE STATE                                                                           - APPLICANT

AND THE HON .MR .JUSTICE M.O. TAJU-DEEN             - RESPONDENT

(JUDGE)

EX PARTE DR. HARRY WILL - APPLICANT The said statement, averred the Grounds on which the relief is sought:—

1. That the Learned Judge erred in lav in refusing to state and refer to the Supreme Court as requested by counsel for the 1st Accused appropriate questions on the constitutional issues raised in terms of sub-section (i) (0) of Section 124 and section 15(a) and sub-sections (1) and (2) of Section 23 of the Constitution of Sierra Leone 1991 in counsel's application on behalf of the 1st Accused that the indictment be quashed as invalid, illegal and void and the 1st accused accordingly discharged, as aforesaid.

2. That the Learned Judge erred in law in holding that it was not necessary for him to have in advance a draft of the proposed questions being requested to be referred to the Supreme

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3. That, the Learned Judge erred in lav in refusing to stay proceeding on Criminal Information dated 30th August, 1999 for the purpose of making the reference under subsection (3) of Section 28 of the constitution as aforesaid pending the determination of the said reference to the Supreme Court.

4. That the Learned Judge lacked jurisdiction to determine the Constitutional issue aforesaid, as he purported so to do in his Ruling on the application and submissions by counsel for the 1st accused and in his refusal to refer appropriate questions on the said issues to the Supreme Court as aforesaid and in deciding to . go on with proceedings on the aforesaid Criminal Information without first making the required reference."

In arguing the issue as to whether this court can hear and determine the motion, counsel submits that Section 120 (9) of the Constitution, Act No.6 of 1991 applies only in cases "where an action is brought claiming liability of a Judge done in that process." Such liability where established would normally go with sanctions and costs" vide Order 52 Rules of the High Court. He vent on to submit that, even assuming that, notwithstanding the two previous submissions it would still be irregular for the judge to be mentioned as a party in the heading of an application for the exercise of the Supervisory Jurisdiction there is an authority for the court to use its discretion to allow the proceedings to to on, on the true basis especially where the provisions of the Constitution are concerned or time is of the essence and otherwise to allow leave to dp an amendment. The actions which can be pursued under Section 125 of the Act No.6 of 1991 are not mentioned. In reply to the court, counsel has cited certain authoroties in support of his submission that the motion can be heard on its merit despite the inclusion of the name of the judge in the title of the application. The cases cited are:-

(1) Nordally v. Attorney General (1987) L.R.C. 599 SC of Mainitius.

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(2)  A.S.C. V. (Nasmos) unreported Supreme Court of Sierra Leone delivered 26th October, 1999

(3) Alie v. Teaching Service Commission (1983) L.R.C. 229-230

(4) Janudco v. Attorney-General of Suyana (1971) 3 WLR 13. Counsel finally submits that the matter should proceed notwithstanding the defect in the Title by including the name of the Judge.

I think it Trill be appropriate to state the status of the High Court. This was preserved by Section 178(5) of the Constitution Act No.6 of 1991. It states "The High Court of Justice established under the provision of sub section (4) of Section 120 of this Constitution shall be successor to the High Court in being immediately before the coining into force of this Constitution."

The High Court is therefore a creature of Statute. The creation of the court is spelt out in section 120(4) of the constitution, that is to say»-"The Judicature shall consist of the Supreme Court of Sierra Leone, the Court of Appeal and the High Court of Justice which shall be the Superior Court of record of Sierra Leone and which shall constitute one Superior Court of Judicature, and such other inferior and traditional courts as Parliament may by law establish (emphasis mine)

I will now consider the jurisdiction of the High Court as provided in Section 132(1) and (5) of the Constitution. 132(1) The High Court of Justice shall have jurisdiction in Civil and Criminal Matters and such other original appellate and other jurisdiction as may be conferred upon it by the Constitution or any other law.

(5)   Any Judge of the High Court of Justice may, in accordance with the Rules of Court made in that behalf, exercise in Court or in Chambers all or any part of the jurisdiction vested in the High Court of Justice by this Constitution or any other law"

What has the Judge Mr. Justice M.O. Taju-Deen done that he had no jurisdiction to do? What was before the Learned Judge was a Criminal matter. The law says he has jurisdiction in Civil and Criminal Matters vide Section 132(1) of the Constitution. In Exhibit "C" to the Affidavit

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of Dr. Jabbi herein before mentioned — Mr. Justice M.O. Taju-Deen made a consent Order in writing under section 136(1) of the Criminal Procedure Act No.32 of 1965 as amended for Dr. Harry Will and others to stand trial on Criminal charges. This Order was made on 31st August 1999 not as counsel deposed as having been made on 30 August, 1999. Did the Judge have power to make that order. I opine that he had the powerr vide section 132(5) of the Constitution.

The accused were arrainged before the learned Judge, whereupon counsel moved the court to stay proceedings on the ground that certain sections of the Constitution ought to be tested in the Supreme Court vis-a-vis their legality and whether some of the fundamental rights of Dr. Will had not been breached. The Learned Trial Judge made a ruling refusing the application for reference to the Supreme Court for the determination.

in my view the High Court or the Judge does not have to grant the  application for reference as a matter of course. The Judge has a right to look at the provisions of the Constitution on which the application is based. In the application as contained in Ex. "D" of the said affidavit, Counsel states:-

"My Lord, I implore and request this Honourable Court in terms of Sub section (3) of Section 28 of the Constitution of 1991, to stay the present proceedings and refer to the Supreme Court for prior determination the questions of law involved in the above grounds of the constitutional-invalidity of the said enactments and Judge's Order."

The various enactments referred to in the applications are section 136(1) of Criminal Procedure Act 1965 as amended by Act No.1 of 1970 as having been enacted in excess or ultra-vires of the powers conferred on Parliament by law as per section.124(i)(b) - that section 136 of C.P.A. 1965 is inconsistent and incompotible with the provisions of section 15(1) and section 23(1) of the Constitution, and sub section (4) of Interpretation Act. No. 7 of 1965 section 171 (15) of the Constitution."

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put upon Judges by such applications, which to say the least are often times misconceived and are time consuming. In my view this motion is one such misconceived application. In my opinion,. this motion is an exercise in academic puisuit and an abuse of due process of the court. The Learned Judge in the exercise of his legitimate duty under the law has been brought before this Court as a respondent thus placing him in jeopardy of being mulcted in costs which the Constitution precludes - Vide section 120 (9) of the Constitution which states:

"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 the performance of his judicial functions". The Hon. Mr. Justice M.O. Taju-Deen is one such judge, who from all the papers filed in the matter herein was performing such functions. He has not only been brought before this court but has been made a respondent facing two applicants. The State and Dr. Harry Will.

If the judge was minded to apply for leave to join issue in this matter, he could not because section 120(9) of the Constitution protects him - therefrom.

I think I aught to address the issue of the Supervisory powers of the Court as contained in section 125 of the constitution. It provides: "The Supreme Court shall have supervisory jurisdiction over all other courts in Sierra Leone and over any adjudicating authority; and in exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs of habees corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing of securing the enforcement of its supervisory powers."

The supervisory powers of the Court is not spelt out in the Constitution but I opine, that the supervisory jurisdiction is the one contained in Rule 88 of the Rules of the Supreme Court PIT. No.1 of 1982. which states: "(1) where any judgment or ruling has been reserved by any subordinate to the Supreme Court for three months or more, the Court may, on its 01m motion or upon the application of a party to the action or appeal, as the case may be, order the lower Court concerned to deliver judgment or ruling or before a date specified in the Order." Sub-sections (2),(3) and (4) provide what should happen thereafter.

I have already opined that this application by notice of motion is not only misconceived but an abuse of due person of the Court. Every

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Counsel referred to the case of The State - Applicant and The Honourable Mr. Justic F.C. Gbow Judge Respondent Ex Parte Julius Spencer Donald John Alfred Payitie Conteh Mohamed Bangura Alusine Kargbo Basiru Applicants.

Sc. Misc.App.No. 6/93 A & B unreported.                                                   

I concede that the Court entertained the application in the above cause and made the orders sought.

Be that as it may, the law does not preclude the court from revisiting the issue if subsequently brought before it, vide sectian 122(2) of the Constitution Act N.6 of 1991. It provides as follows: "The Supreme Court may, while treating its own previous decision as binding, depart from a previous decision when it appears right so to do, and all other courts shall be bound to follow the decision of the Supreme Court on questions of law." In the instant case, the court will perforce have to deport from the decision given in the case of The State and The Hon.Mr. Justice F.C. Gbow Ex. Parte Julius Spencer and others.

I have already said the Judge ought not, as a natter of course refer every matter to the Supreme Court it did not seen to him right so to do.

In my view, the High Court of Justice is not a rubber stamp to grant every such application made for reference to the Supreme Court; the provisions of section 28(2) and section 124(1) of the Constitution states clearly that the Supreme Court shall have original jurisdiction to the exclusion of all other courts - so be it, but how is the original jurisdiction of the Supreme Court invoked? Surely it is not by reference from a lower court, simpliciter, I opine, It is by a notice of motion supported by an affidavit. In my opinion, this is precisely why section 127(1) of the Constitution was enacted. The provision is "A person who alleges that an enactment or anything done tinder the authority of that or any other enactment is incinsistent with, or is in contravention of a provision of this constitution may at anytime being an action in the Supreme Court for declaration to that effect." Weed we say more, yes; it is necessary to remind Counsel appearing in our Courts of the strain

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court has an inherent duty "to protect its process. This is trite law -and I an of the view that this court has a duty to protect its process when it is being abused, and to refer an application based on a misconception of the law. I hold the view that the court must invoice its inherent jurisdiction in such a case to prevent an abuse. The indictment before Mr. Justice Taju Deen is one having its foundation a consent order in writing under the hands of a judge of the High Court of Justice where is the constitutional issue in that matter which is outside the jurisdiction of the Judge? What is the constitutional issue to be resolved by the Supreme Court. I see none.

I agree.........A H.M. JOKO SMART. J.S.C.

I agree....D.E.F. LUKE CHIEF JUSTICE