IN THE SUPREME COURT OF SIERRA LEONE

SC.5/2000

In the matter of an application under section 124 of the Constitution of Sierra Leone 1991, Act. No 6 of 1991 AND

In the matter of an application under section 125 of the Constitution of Sierra Leone, Act No. 6 of 1991

AND

In the matter of an application under section 170(l)(a) to (e) 170 sub-rule 2 & 4 sections 18(1), 23 sub-rule 1 and 2 and 23/(7) of the Constitution of Sierra Leone, Act No. 6 of 1991

AND

In the matter of an application under the Anti-Corruption Act. No.1 of 2000

BETWEEN:

MUCTARU OLA TAJU-DEEN                                              -PLAINTIFF

AND -

THE COMMISSIONER OF THE ANTI-CORRUPTION

COMMISSION                                                                      - 1st DEFENDANT

AND

2.

THE ANTI-CORRUPTION COMMISSION                          - 2nd DEFENDANT

AND

THE LEARNED ATTORNEY-GENERAL AND                    - 3rd DEFENDANT

MINISTER OF JUSTICE

CORAM:

HONOURABLE MR. JUSTICE D.E.F. LUKE                       -  C. J.

HONOURABLE MR. JUSTICE A. B. TIMBO                       -J. S. C.

HONOURABLE MR. JUSTICE V. A. D. WRIGHT               -  J. S. C.

HONOURABLE MR. JUSTICE H. M. JOKO-SMART         -  J. S. C.

HONOURABLE JUSTICE MR. S. C. E. WARNE                 -J. S. C.

C. Doe-Smith Esq. & T. M. Terry Esq. for the Plaintiff

S. E. Berewa Esq., Attorney-General & Minister of Justice

B. S. Kebbie Esq., D. P. P.

L. M. Farmah Esq., Senior State Counsel and

M. Sesay, State Counsel - for the Defendants

RULING DELIVERED 3RD DAY OF APRIL, 2001

TIMBO, JSC: This is an application by Originating Notice of Motion under sections 18, 24,124,125, 127, and 170 of the Constitution of Sierra Leone (Act. No. 6 of 1991). The application is supported by the affidavit of the Plaintiff Muctaru Ola Taju-Deen dated the 4* day of December 2000. The said affidavit contains no less than twenty-five paragraphs to which is also attached several exhibits. A further affidavit in support was sworn to be counsel for the plaintiff Claudius Doe-Smith on the same date.

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The present application is one in a series of three motions filed in the Supreme Court on behalf of the plaintiff. One was for an order of certiorari and the other was for prohibition.

These two have already been disposed of the Court in SC. Misc.App.6/2000 and 1/2001 respectively. What is now left is the application for the several declarations.

In view of our findings or conclusions in respect of the applications for certiorari and prohibition, I will not now be dealing with all the eleven or so declarations sought by the plaintiff.

Instead, I shall confine myself only to declarations (e) (i) and (j).

But before proceeding to consider the merits of the said three declarations, let me first give a brief background to the chain of events, which led to this multiplicity of applications.

The plaintiff is a retired justice of the court of Appeal of Sierra Leone. While on retirement he was invited and he readily accepted to serve as a judge of the superior court of judicature in certain criminal matters which were then pending in the High Court. Prominent among these, was the case of the state v. Dr. Henry Will, Lamin Feika and Bockari Kakay.

It was the outcome of the said trial that precipitated the subsequent arraignment of the plaintiff in the High Court under the newly enacted Anti-Corruption act (No. 1 of 2000) this act forbids among other things, the corrupt acquisition of wealth or the taking or acceptance of advantage by public servants in the performance of their official duties.

It is an unhappy coincidence that the plaintiff happens to be the No.1 person to be prosecuted under the new legislation.

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When the present motion came before us for the first time on the 18th of January 2001, we indicated to counsel on both sides the manner we intended to proceed with the application. We told both of them to file their respective arguments and submit all relevant authorities to the Court before the next adjourned date. Thereafter we invited counsel to address us briefly and we then adjourned for our ruling We adopted this procedure in order to expedite the hearing of the motion.

It is important at this point to look at the essential features of the declaratory relief itself.

Unlike other common law remedies, such as certiorari, prohibition and mandamus, the declaratory judgment as the name implies, merely declares the state of the law on any given subject or the right of parties to a dispute. Ordinarily, it decrees no penalty.

Although in strict law the non-compliance of a declaratory order simpliciter at common law evokes no direct legal consequences, actions taken in defiance of such order may be declared void if challenged. In a action of declaration, the plaintiff must show that he has an immediate personal interest in the proceedings. In other words, he must establish that he has a locus standi to maintain the suit. The declaratory relief is based upon the existence of a genuine dispute between the parties and must relate to existing facts and not to something that is too remote or hypothetical. Another great advantage of the declaratory judgment is that it may be made in advance of an apprehended infringement of one's private rights.

Furthermore, while the technical limitations that surround the prerogative writs of mandamus certiorari and prohibition often create stumbling blocks for intending litigants wishing to seek redress from the excesses of the administration, this is not the case with the declaratory remedy, which is generally simple and flexible.

The remedy however, remains basically discretionary and as Sir Carleton Allen once observed in the 69 Lay Quarterly Review (1953) page 451 - 3,

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"It seems improbable that..........Judges Will allow it to be used by frivolous and Unmeritorious litigants."

Apart from the common law remedy of declaration, section 127(1) of the constitution specifically stipulates that,

{1) A person who alleges that an enactment or anything contained in or done under authority of that or any other enactment is in contradiction of a provision of this constitution, may at any time bring an action in the Supreme Court for a to that effect.

(2) The Supreme Court shall for the purposes of a Declaration under subsection (1) make such order and give such direction as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made.

(3) Any person to whom an order or direction is Addressed under subsection (1) by the Supreme Court shall obey and carry out the terms of the order or direction.

(4) Failure to obey or carry out the terms of an order or directed made or given under subsection (1) shall constitute a crime under this subsection."

With these preliminary remarks, I shall now revert to the three declaratory orders I have indicated I shall be examining.

6.

I shall begin with declaration (e). Under this, counsel for the plaintiff Mr. Terry contended that in so far as the provisions of sections 7(1) and 8(1) of the Anti Corruption act (Act No.1 of 2000) have been framed, they are clearly repugnant to and a violation of the express provisions of sections 120(9) and 137(4) of the constitution (Act No 6 of 1991.

Sections 9(1) and 8(1) of the Anti-Corruption Act 2000 are the sub-sections which create the twin offences of the corrupt acquisition of wealth and the soliciting or accepting of an advantage by public officer's in the execution of their official functions.

The plaintiff relied on section 127(1) of the Constitution for this declaration.

My initial reaction here is to say the plaintiff cannot seek this declaration in the face of Criminal Appeal No.9/2000 filed by the Plaintiff and still pending in the Court Appeal against the decision of the Hon. Mrs. Justice Patricia Macauley date the 14th day of December on the interpretation the same section 120(9) of the Constitution.

But since section 127(1) states unequivocalry that an aggrieved party (here the plaintiff) can make the application for declaration at any time to the Supreme Court, I feel bound to entertain such application.

Having said that much, I now wish to examine the provisions of sections 120(9) and 137(4) of the Constitution in a greater detail.

Section 120(9) provides:

"(a) A judge of the Superior Court 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."

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 Section 137(4) on the other hank, state as follows:

"(4) Subject to the provisions of this section, a Judge of the Supreme Court of Judicature may be removed from office only for inability to Perform the function of his office, whether arising from infirmity of mind or for stated misconduct, and shall not be so moved saved in accordance with the provisions of this section."

Mr. Terry implored the Court to give a liberal and purposive construction to the words "action" and "suit" in section 120(9) so as to include immunity from criminal proceedings. What counsel is saying, as I understand him, is that section 120(9) confers blanket immunity to a judge in respect of anything done or said by him in the exercise of his judicial functions whether Civil or Criminal. This also seems to be the view of B.O. Nwabueze, the Learned author of "Constitutional Law of the Nigerian Republic" (1964) when he said at page 293 that,

"A judge is also immune from civil and criminal liability for anything said or done in his judicial capacity."

The Learned Attorney-General and Minister of Justice on his part argued strenuously, that section 120(9) only prohibits the institution of civil proceedings against a judge of the superior court of judicature for things done or said by him in the performance of the duties of his office.

In "Words and Phrases Legally Defined," VoL 12nd edition A - C, it is stated at page 33 that,

"Action shall include every judicial proceeding instituted in any court, civil, criminal or ecclesiastical, (See British Law Ascertain Act, 1859. S.5)

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Likewise, in :A Dictionary of Law" 4th edition Oxford University Press, the word "suit" is described as a term commonly used for any court proceedings.

It is however further observed on the same page of "Words and Phrases Legally Denned "4" edition that "action" is generally used in a more restricted or popular sense to denote a civil action commenced by writ or plaint (vide 1 Halsbury's Laws of England, 3rd edition).

By order 1 of our High Court rules, 1960, "action"

Means a civil proceeding commenced by writ or

In such other manner as may be prescribed by

Rules or court, but does not include criminal proceedings"

There is certainly no unanimity of opinion as to the precise purport of these two words.

Whatever definition is ascribed to the words "action" and "suit" the basic question we have to answer is whether by judicial interpretation or call it interpolation if you with, this Court can legitimately extend the meaning of either word to encompass criminal proceedings. This appears to me to be the bottom line.

We were reminded not so long ago by the Privy Council in British Coal Corporation v. The King (1935) P.C. 158 that,

"In interpreting a constituent or organic stature, that the construction most beneficial to the widest amplitude of its powers must be adopted."

Similarly, in construing the Government of India Act the same year, the Indian Supreme Court admonished that,

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"A broad and liberal spirit should inspire those whose duty it is to interpret it."

But the court was nevertheless quick to point out that,

"..........this does not imply that they are free to stretch or

pervert the language of the enactment in the interests of any legal or constitutional theory or even for the purpose of supplying omissions or correcting supposed errors."

Yet, in another Indian case, Kershara Menon v. State of Bombay, (1951) SC.R.228,232, the Supreme Court again opined:

'In argument founded on what is claimed to be the spirit of the constitution is always attractive for it has powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the constitution from the language of the constitution. What one may believe or think to be the spirit of the constitution cannot prevail if the language of the constitution does not support that vies."

When one juxtaposes sections 48(4) and 99(1) of the Constitution with section 120(9) it becomes extremely difficult if not impossible to resist the conclusion that the immunity granted to a judge of the superior court of judicature is confined purely to civil litigation. Section 48(4) and 99(1) are unambiguous as to the extent or limit of the immunity granted to the president on one side and the members of the legislature on the other. They cover immunity from both civil and criminal proceedings.

10.

The fact becomes even clearer when the respective provisions of these two sub-sections are fully examined. I shall therefore set them out verbatim than otherwise might have been necessary.

Section 48 says:

"While any person holds performs the functions of the office of president, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his official or private capacity."

Section 99(1) on its part provides,

"Subject to the provision of this section, but without prejudice to the generality of section 99, no civil or criminal proceedings shall be instituted against a member of parliament in any court or place by reason of anything said by him in parliament."

The difference in phraseology between these subsections and section 120(9) cannot be accidental. The change of language does suggest a change of intention on the side of parliament.

The common law stance on the immunity of a judge for things said or done by him in the course of his official functions was re-echoed by Lord Denning not so long ago in Sirros v. Moore and others (1974) ALL.E.R. 776 at page 781 when the Learned Master of the Rolls had to say:

"Ever since 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a Jurisdiction which belongs to '

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him. The words which he speaks are protected by absolute privilege. The words which he used and the sentence which he imposes cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance or was actuated by envy hate or malice and all uncharitable ness, is not liable to an action...of course, if the judge has accepted bribes or has perverted the course of justice., he can be punished in the criminal courts) emphasis mine).

Lord Denning's dictum in Sirros v. Moore may be contracted with the some-what extreme case of Gahan v. Lafitte (2842) 3 Moo.P.C.C.382 cited by T.O. Elias in his Book "British Colonial Law" (1962) at page 71.

Certain persons had exercised the office of judges under Commissions which were issued irregularly by the then Governor of St. Lucia. In an action brought against them for trespass and false imprisonment, it was held that the said judges were liable for the acts done by them while so acting.

The decision in the case could well have turned on the fact that the jurisdiction under which the judges had acted was only a pretended one.

Surely, if the legislature had intend to give immunity to judges for their criminal acts it would have been easy for it to say so as indeed it had done in the case of the president and our legislators. "Liberalism" is one thing. But to import into the Constitution words which were, from all indications, never intended to be there is another matter altogether. As hard as it might appear, I regret, I am not allowed to do so.

In fact, even if the plaintiff were immune from criminal prosecution because of section 120(9), the question would still remain whether what he is alleged to have done was done

12.

in the course of execution of his duties as a judge of the superior court of judicature in order to attract immunity under section 120(9).

Mr. Terry's reliance on section 137(40 I think is premature. What is in issue at this stage is whether the plaintiff can be tried for the allege offences enumerated in the 12 — count indictment preferred against him. It is only when and if the plaintiff s convicted of such offences will, in my opinion, the matter of his removal for stated mis-conduct under section 137(4) arise and the full mechanism prescribe in subsections 5,6, & 7 of section 137 for his removal from office come into operatioa No misconduct has so far been established against the plaintiff.

I shall turn next to declaration (i)

The pith and substance of this complaint is that the plaintiff was never afforded an opportunity to defend himself before the Anti-Corruption Commission, thus contravening the audi alteram parteam rule.

This allegation was refuted by the Learned Attorney-General and Minister of Justice who state that the plaintiff had been accorded all the rights and privileges of a person being investigated under the Act is entitled to. He stressed that it was indeed the refusal of the plaintiff to co-operate with the commission that prompted the Commissioner Mr. Valentine I. Collier to write to the Non. Chief Justice to solicit his assistance and that it was only then that the plaintiff volunteered his cautioned statement annexed to his affidavit of 4th December 2000. By so doing Mr. Berewa argued, the plaintiff had availed himself of the opportunity to be heard albeit only reluctantly.

I find the dicta of Lord Loreburn L.C. in Board v. Rice (1911) ALL.E.R. at page 189 very instructive. This was what he said,

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"Comparatively, recent statutes have extended, if they have not originated, the practice of imposing upon departments or offices of state the duty of deciding or determining questions of

various kinds....... In such cases,.......they must act in good

faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such question as though it were a trial.......They

a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view' (emphasis mine).

This is even less so in the instant case where the powers of the Anti-corruption Commission under the Act are restricted in the main to the investigation of corrupt practices by public servants and the submitting of reports.

Natural justice does not in my considered view always postulate a right adduce evidence or confront or cross-examine witnesses. What is of paramount importance is that a party must be afforded a fair chance to make representation against a proposed course of action. See Nakkuda Ali v. Jayaratne (1951) A.C. 66 and Ceylon University v. Fernando (1960)1 ALL E.R 631.

In the United States, whether oral hearing is required under "due process' in the absence of statutory provision would depend on the circumstances of the case and the particular interests affected. As was pointed out in F.C.C. v. W.J.R. (1949 337 U.S. 265 at page 276, the right to an oral hearing before administrative tribunals "is not a matter for broadside generalization and indiscriminate application." See also Golberg v. Kelly 397 U.S. 90 S. Ct. 1011, (1970) Richardson V. Wright 405 V.S. 208 (1972 Matthews v. Eldridge 96 S. Ct. 893 (1976).

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I will now come to declaration (i). The plaintiff's counsel submitted here that the granting by the learned trial judge of an order for the plaintiffs doctor to come to court and testily regarding the health of his client was a contravention of the provisions of section 23 (20 of the Constitution since the medical report of the plaintiff was already before her. See Exhibit M.O.T. D.6.

The crux of the matter as I perceive it, is whether it is open to the learned trial judge to go behind the plaintiff's medical certificate and cause to be examined Dr. Claudius Cole on the state of his patient's health. Did this amount to a breach of the principle of confidentiality that normally exists between Doctor and Patient?

For my part, I see no wrong doing by the learned trial judge here because as the person in charge of the trial she was free to satisfy herself that the plaintiff was really unfit to attend court on the stated day due to ill health and that he was not simply using delaying tactics to drag or frustrate the proceedings. There is nothing novel or unusual about this practice. In any event, section 23(2) itself requires that any such trial shall be concluded "within a reasonable time."

On the related question of whether the Doctor should have been examined in chambers, and not in the open whilst this may be the preferred thing to do depending on the type and nature of the ailment it will be unfair to cast blame on the learned trial judge for failing to do so since she saw and read the medical report.

It may not be inappropriate whilst on this issue to refer to the head note in C.V.C. (1946) 1 ALL.E.R. 562. It reads,

"It is in the public interest that justice should be done and for this purpose it may be necessary at time to override the

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confidential relationship easting between doctor and patient."

So too, in 'Garner v. Gamer (1920) 36 T.L.R. 196, where it was earlier held that a doctor might be compelled to give evidence that his patient was suffering from venereal disease, even though the relevant statutory regulations confer absolute secrecy on the doctor.

In the light of my respective findings above, I regret I cannot grant the declarations sought under (e)(i) & (j) by counsel for the plaintiff.

Finally I wish to thank counsel on both sides for their industry and tremendous assistance to the court throughout the hearing of these motions.

(Sgd.) A. B, Timbo, J.S.C.