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TEJAN-JALLOII, C.J. The Sierra Leone Association of Journalists a Company Limited  by  Guarantee  under  the  Companies  Act,  Chapter  249 of the laws Sierra Leone (as amended) by way of an originating notice of motion dated the


  • 25th   day of February, 2008 moved this Court for the under-mentioned reliefs on

        the 3rd  day  of  February  2009  against  the  Attorney-General and  Minister of Justice and the Minister of Information  and Broadcasting  and  Communication  There reliefs c1re sought pursuant to sections 25 and 171 (15) of the Constitution of Sierra

,,    Leone 1991 Act No.6 of 1991 (hercinafter referred to ,is ("the  Constitution”]  namely,



  1. The interpretation of Sections 25 of the Constitution Viz-a-Viz sections 27, 27, 32-37 of the Public Order Act 1965, Act No.46 of 1965 for  the·  determination of the following questions.


  1. Whether the provisions of sections 26, 27, 32-36 of  the Public Order Act criminalizing free speech contravenes the right of freedom of expression guaranteed under the entrenched

provisions of section 25(1) of the Constitution?



  1. Whether the provisions of sections 26, 27, 32-31, of the Public Order Act can be demonstrably justifiable in the light of Sierra Leone's obligations under the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights

and the African Charter on Human and People's Right?


  1. If the answer of (i) and (ii) above are in  the affirmative  whether the provisions of sections 26, 27, 32-36 of the Public  Order Act does not fall out of the  restriction  provision  of  sections 25(2)  of  the Constitution


  1. A   declaration     that   sections    26,   27,   32-36   of   the Public Order Act

criminalizing  free speech  are  unconstitutional and therefore null and void




by virtue of section 171 (15) of the Constitution in so far as they violate provisions of section 25(1) of the Constitution.




l j 1 -




  1. A   declaration that the restriction provision to the right of freedom of

expression    under    section    25(2)  of   the   Constitution     does  not save the

..               provisions of sections 26, 27, 32-36 of the Public Order Act in so far as  the said provisions cannot be demonstrably justifiable in a democratic society.


  1. Any further and other relief that the Honourable  Court  may  deem  fit  and just


  1. The Originating notice of motion is supported by the  affidavit of Richard Olu Gordon, Philip Neville and Julius Spencer all sworn to on the 25th day of February 2008. Taking them serially, first Richard Olu Gordon, who deposed that he is a member of the Sierra Leone Association of Journalists and media practitioner for over twenty years and Editor-in-Chief of Peep Magazine for the past seven years.


He asserted that on the 11th  Februc1ry 2005 he was summoned to the Criminal Investigations Department on the instructions or the Attorney-General and Minister of Justice in connection with an article captioned "KABBA SAYS OKERE STAYS" that had appeared in his satirical news paper Peep Magazine questioning why Marine Minister Ibrahim Okere Adams had not been sacked after he was indicted by the Anti-Corruption Commission.


He alleged that  prior  to  the  article  two  other  Ministers  were  promptly  dismissed after being indicted by the Anti-Corruption Commission, but that Okere Adams is regarded as President Kabba's  "most  reliable Northern  ally".  That he was detained at the Criminal Investigation Department for three days and charged



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with seditious libel, but was released on the 14th  February 2005 without being arraigned before  any  Court  and  that  he  did  not  receive  any  compensation.  That he  can  no  longer  publish  contentious  articles  without  first  having   to   decide whether he was to go to prison or not and that the  state  of  affairs  w,1s  neither reasonable nor  necessary  in  a  democratic  society.  Finally, the existence  of criminal or  seditious  libel  offences  allow  for  the  government  authorities  to arrest and detain journalists at their will, disregarding fundamental human rights.


  1. Second, Philip Neville, inter alia, deposed that he is a member of Sierra Leone Associc1tion of journalists and also a  media  Practitioner.  On the 25th February, 2008 when he swore his c1ffidavit he  was  President  of  the Association. He has been a Media Practitioner for over 20 yec1rs and  Editor-in-Chief  of  the  Standard Times Newspaper.


That   during   the   reign  of  the  National   Ruling  Council he was arrested and summarily    detained. It     the   Pademba   Road    Prisons on three occasions for supposedly breaching sections 27-36 of the Public Order Act 1965, that on the 24th February 1991, he published an article captioned "Joe  Demby's  mercenaries stabbed to kill Mr. Jonah" concerning a plot to assassinate the President of Sierra Leone, Alhaji Ahmed Tejan Kabba and the then Minister of Finance Dr. Jonah, by foreign mercenaries. He was told that his arrest was for a breach of the Criminal Libel  provisions  of  the  Public  order  Act  1965  but  on  the 8th     March, 1999  he  was released without a  charge  under  any  of  the  offence  proscribed  under sections 26- 36 of the Public Order Act, that on the  29th   June, 2007 he was  again  arrested after   publication       captioned "Bomshell Gaddaffi         Exposes   Government"  in    the Standard    Times    Newspaper    concerning    gifts    from    the  Government and the people of Libya to the Government and People of Sierra Leone.





fie  was  remanded   in  custody  for  two  days  and  charged   to  Court on the 4th July

2007 and was granted bail in the  sum of two hundred  million Leones in addition to three sureties in like sum.






He opined that the amount was the toughest bail condition that was ever set for a criminal libel offence and  that the incidents  had  a chilling effect on him and  that he can no longer  publish  contentious  articles  without  having  to  decide  whether he was ready to go to prison or not.


That he has been persecuted by successive Governments merely as a result of disseminating, in his capacity as a Journalist, reliable information that came  to him and he was of the view that  Sierra  Leoneans  have  the  right  to  be informed about sensitive mc1ttcrs he reports on.


Finally, that he believed  that  the  state  of  affairs  is  neither reasonable  nor necessary in a democratic society.


  1. The next deponent in support of the originating notice of motion is Dr. Julius Spencer, who is also a Media Practitioner and a member of the Sierra Leone Association of Journalists. He deposed, inter alia, that he has been a media Practitioner for over 20 years and Managing Director of the Premier Media Consultancy Limited and Proprietor of  the  Premier  Newspaper. He averred that on the 13th October, 1993 he was editor of "New Breed" Newspaper, which published an editorial based on an article found in Swedish newspaper "Expression" captioned "Redeemer or Villain". That the article focused [in the sale of diamonds and misappropriation of some of  the  proceeds  by  the  then Government of Sierra Leone, he was charged to Court with seditious libel on a ten count indictment and was found guilty and fined two thousand United States Dollars. His appeal to the Court of Appeal of Sierra Leone is still pending and


because of the conviction he is blemished with a criminal record and he is warry

       of being in active media practice, as it had a negative impact on his family.



He is oi the opinion that the state of affairs is neither reasonable nor necessary in

      a democratic society.



  1. Before I  comment  on  the  merits  or  demerits  of the  plaintiffs’  case,  it  is pertinent to state that the fundamental right of freedom of expression is not an innovation in the Constitution. It was so provided in section 21 in chapter 111 of

the  1961  Constitution    under     Protection   of   Fundamental Human Rights and

Freedom of Individuals: sec Public Notice No.78  of 1961. In the 1978 constitution of Sierra Leone - Act No.12 of 197B it was provided as section 15 in chapter 11 under the rubric Protection of Fundamental Rights and Freedom of the individual. In those two constitutions application for constitutional rights to redress for the fundamental rights of freedom of expression was to the High Court and only permitted if it was a direct or intentional hindrance to the said Freedom. And  the proviso to sections 24(2) of 1961 and 1B(2) of the 1978 Constitutions respectively empowered the High Court to refuse such application if it was satisfied that adequate means of redress for the contravention are or have been available. Now section 25 of the Constitution of 1991 empowers only the Supreme Court to hear an application for contravention of Freedom of expression  and  the  proviso  to section 28(2) enables the Court to refuse the exercise, if it  is satisfied  that adequate means of redress are or have been available.


It  must be emphasised  that  freedom  of  expression  is  an entrenched  provision and is subject to respect for  the  rights  of  freedom  of  others  and  for  the  public good and this must always be borne in mind.






















































  1. Counsel has come to this Court by an Originating Notice of Motion and thus invoking the original  jurisdiction  of  the  Court.  The  relevant  regulation  is  to be  found in Part XVI of the Supreme Court !?11/es (1982) published as Constitutional Instrument No.1 of 19B2. It behoves  him  to  satisfy  the  Court  of  the  Provisions  of Rule 89 and 90. In this regard I must mention Craies on Statute  Law 5th   p.  249 where the following statement appears.


"As a general rule, Statute which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact that their provisions may be expressed in mere affirmative language ........ this rule may also be expressed thus

- that when o Statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with".


Rule 89 inter alia, stipulates  that  the  motion  must  he  supported by affidavit setting forth as concisely as  possible  the  nature  of  the  reliefs  sought  by  the plaintiffs. Messrs Phillip Neville, Olu Gordon and Dr. Spencer have individually sworn to affidavits in support of the motion  and  only  Mr.  Phillip  Neville  in  paragraph 19 of his affidavit deposed to the reliefs of the plaintiffs. The other two deponents are silent on this aspect. I find that  the  reliefs  set  out  by  Mr.  Phillip Neville are the same as those on the face of the notice of motion. It is pertinent to mention  at  this  stage  that  these  deponents  have  not  claimed or attempted  to  claim that they are or any of them is plaintiff.  The  irresistible  conclusion  is  that Sierra Leone Association of journalists Limited are the  plaintiffs. The stark fact is that the Plaintiffs are the Association and have not complained of actual  or  threatened act against itself.








  1. Rule 90 of the Supreme Court Rules empowers a plaintiff to file his case with or after the filing of the originating notice of motion. The solicitor for the plaintiff in this case has filed such a statement with the motion. Sub-Rule 2 of Rule 90, inter alia, requires of the plaintiff to set forth the facts and particulars of his case, documentary  or otherwise,  verified  by an  affidavit,  upon  which he seeks to rely.

A Mr. Ibrahim Karim Sei, who deposes in his affidavit that he is  the  Secretary­ General and also media Practitioner of the  Sierra Leone Association of Journalists

verified  the  statement.  It is a  55  page document  and  exhibited and marked “H”.

Attached to the said affidavit of Mr. Sei are also exhibits “I”, “J”, “K” and “L”

inclusive,  which  are  business  licences  and  certificates  of  renewal  of   licences  of the company issued by the Registrar of Companies. I have searched amongst the documents, the annotations of Mr. Sci in his affidavit, that is to say section A-E referred to in paragraph 3 and section 2 in paragraph 4 and  I am unable  to  find any.


  1. The reliefs sought by the plaintiffs include an interpretation and two declarations of the Constitution. Even a cursory examination  will indicate  that these reliefs  are  provided  for  in  the  basic  document,  to  wit,  the   Co11stitutio11. They are sections 124(1) and 127(1) respectively.


"Section 121(1) reads "the Supreme Court shall have original  jurisdiction to the exclusion of all other Courts in all  matters – relating  to the enforcement or interpretation of any  provision  of  this  Constitution".


Section 127(1) reads -



"A person who alleges thot on enactment or anything contained in  or done under the authority of that or any other enactment is inconsistent


with/or is in contravention of a provision of  this Constitution,  may  at any time bring an action in the Supreme Court".


I  observe that nowhere in the  face or  heading of the  Originating Notice of Motion  is stated or  reference  is made to sections 121(1) and  127(1) of the Constitution.  It is settled practice in our jurisdiction and several other jurisdictions that when  proceedings are commenced  by  originating  notice  of  motion  it  must  be  intituled in the matter of the Act(s),  Rule(s)  and  Constitutional  provisions under or pursuant to which application is to be made. Surely, one would have expected the present originating notice of motion to  be  intituled  in  the matter of  the appropriate sections of the Constitution. This was not done in this case no amendment was sought  or obtained  by counsel  for  the  plaintiff's. In my  view  it  1s a serious omission.


  1. 130th sections 2S and 127(1) of the Constitution  refer to the word “person” and it will be useful at this stage to decide whether the plaintiffs in this case can be described as such bearing in mind that it is a company limited by guarantee.


The answer is to be found under the definition section of the interpretation Act

1971- Act No.8 of 1971, which states that "a person" -



"Includes any Company or Association of Persons or body of persons corporate or unincorporated as well as an individual".


It  therefore  follows  that  the  plaintiffs  fall  under  the  definition  of  person   in  sections 25(1) one/ 127(1) of the Constitution I find from the memorandum and Article of Association that the last word in the name of the company has the word "Limited". This is a mandatory requirement of a company limited by guarantee.


but it is observed that the originating notice of motion and several supporting documents in this case omitted the word "Limited".


However, I  take cognizance of the fact that our Courts have held that such an omission is not fatal and proceedings without it ought not to be set aside if a reasonable person reviewing and looking at the document(s) on the whole would come to the conclusion that the documents refer to the plaintiff. A case in point is that of Mobil Oil Sierra Leone Limited v. Texaco AE Ltd. 1964-1966 ALR SL 133. I  hold th,1t in the  present  case  there  is  ample  evidence for  me  to  apply  this principle of Law and I so do.


  1. This is not the end of the  matter.  Prima facie, every action by a  company must lie be brought in the name of the company to remedy a wrong done to it for the Court   has      no  Jurisdiction to interfere with the internal management of a company, which is acting within its powers and  will  not,  therefore, allow a  minority to complain of a matter which can be ratified by the company in general meetings. But where the matter complained of cannot be ratified because  the person against whom relief is sought controls the company the shareholders complaining are permitted to bring an action in their names on behalf of all the shareholders other than the majority. This is the rule in Foss v. Harbottle (1843) 2. Ha 461. On the other hand in the case of Mozley v. Alston (1847) 1 Ph 790  two members of an unincorporated railway company filed a bill in their individual character, against  the  corporation  and  twelve  other  members  who were alleged to have usurped  the  office of  directors  and to be exercising  the functions thereof, as a majority of the governing body injuriously  to  the Company’s interest and  praying that the twelve might be restricted from acting as directors, and be ordered to deliver the company's common seal, property and books to  six other persons who were alleged to be the only duly constituted directors. Lord



Cottenham, Lord Chancellor allowed a demurer to the bill. The injury alleged was

. not to the plaintiffs personally but to the company.



These  two  cases  have  been  regularly  followed  and  the   rule  is  firmly established. It is most clearly stated in the Privy Council case of Burland v. Earle 1962 AC 83, when Lord Davey in a passage often quoted said -


"It is  on   elementary     principle   of   the law  relating to joint stock Company   thot    the   Court   will   not   interfere    with   the   internal management of a company acting within  their  powers, and infact has  no jurisdiction to do so. Again it is clear law that in order to redress a wrong done to the company, or to recover money or damage alleged to be owed to the company. The action should be brought by the company itself'.


Earlier Jenkins L.J. in a case, Edwards Hallwell 1950 2 AER 1064 at 1066 said-



"The rule in Foss v. Harbottle as I understand it comes to no  more than this first, the proper plaintiff in an action in respect of a wrong alleged to be done to a Company or Association of persons is prima facie the Company or Association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the Company and all its members by a simple majority of the members no individual member of  the company is allowed  to maintain an action in  respect of

that  matter   for  the  simple   reason   that, if a mere majority  of the

members of the Company or Association is in favour of what has been done, then cadit quastio then to no wrong had been done to the Company  or Association  and  there  is  nothing in  respect of which

anyone  can   sue...  In  my  judgment  it  is implicit in the rule  that the




matter relied on as constituting the cause of action should be a cause of action properly belonging to the general body of the corporators or members of the Company or Association as opposed to a  cause  of action which some individual member can assert in  his own right".


The principles enunciated by the above three cases are not only instructive, but they shed considerable light as regards the approach to be followed in the  instant case.


I have earlier in this judgment held that the plaintiffs  fall  within  the  definition  of the word "person" as contained in both sections 2S and 127(1) of the Constitution. Furthermore, the members of a Company are separate and distinct from the  Company - Salomon v. Salomon 1897 AC 22 and both the membership of the deponents as well as members listed in the statement of the plaintiffs does make them the Company and their assertion or allegations  or complaints  concern  them and them alone. The action has been brought by the Company and not  them. The truth of this assertion is borne out in the affidavit of Philip Neville and others.


  1. Let me now advert to the case of the plaintiffs, which consists of  two issues.  The first is the question of interpretation of section 25 of the Constitution, viz-u­viz sections 26, 27, 32 and 37 of the Public Order Act 196S. Section 25 is an entrenched provision and pertains  to  the Protection  of  Expression and  the  Press. It falls under Chapter 111 of the Constitution under  the rubric -  "The Recognition and Protection  of Fundamental  Human  Rights and  Freedom  of  the individual".  It is a right to both natural and juristic person.


The existence  of  the  right  is one  thing. The  freedom  to exercise  that  right  is an

entirely different thing. Thus freedom does not mean the right to do whatever we please  in  the exercise  of  our   right. That  will  be  licence.  Rather, true freedom is




the right to do what we ought to do with our right, oughtness thus implies Law, order, purpose, goal and finality. We are free to exercise out  rights but only within the law and not outside it. We  are free to do whatever we like with our rights provided we do not infringe the equal freedom of others.  Secondly,  whenever the constitutionality of an Act, as in this case, is being impugned, the Court has to balance the  presumption  of  constitutionality  with  the  preemption that the Constitution was  to  be interpreted  as a whole and  any derogation from  the freedom  and  rights enshrined  therein  are  to  lie  narrowly construed. The test in determining whether an enactment infringes a fundamental freedom was to examine its effects and not its objects. Thus in its construction of provision of the Constitution, the Court should not pull the language of the Constitution too pieces and make nonsense of it, nor  to  construe any of  the  provision  of  the constitution as to defeat the obvious end the constitution was designed to seek.


  1. The words "Enforcement and Interpretation” have been defined in some Jurisdictions and these words appear in subsection  1 of section 124 of our Constitution. The subsection gives original jurisdiction to the Sup1·e111e Court to  the exclusion of all other Courts namely -


(a)In all matters relating to Enforcement or Interpretation of any provision of the Constitution.


The interpretation sought by the plaintiffs is section 25  of the Constitution viz-a-viz sections 26, 27, 32- 36 of  the  Public  Order Act 1965 in the following circumstances -


(i)Whether the provisions of sections 26, 27, 32-36 of the Public Order Act

criminalizing  freedom of speech contravened  the right  of freedom of






speech guaranteed under the entrenched provision of section 25( 1) of

the Constitution?



  1. Whether the provisions of sections 26, 27, 32-36 of the Public Order Act can be demonstrably justifiable in the light of Sierra  Leone’s obligation, under the Universal Declaration of human Rights the international covenant on Civil and Political Rights and the African Charter on the Human and Peoples Rights?


  1. If the answer to (i) and (ii) are in the affirmative whether the provision of sections 26, 27, 32-36 of the Public Order Act does not also fall out  of tile restriction provisions 25(2) of the Constitution?


Section 25 of the Constitution is a fundamental right of the  protection  of  the  Freedom of Expression and the Press  and  foils  within  chapter  111  of  the  Constitution, to wit, "the Recognition and Protection of Fundamental Human Rights and Freedom of the Individual. For the purpose of interpretation of the provisions of the  constitution  such  a  question  arises  only  where  there  is a doubt as to the meaning to be attached to any provisions of the constitution".


Interpretation of provisions of Constitution is different from application of the Constitution,   the   two   terms   arc   not  interchangeable  and  I apprehend some confusion in this case. It seems to me that the question that is intended to seek  is the effect of the application of section  25 of  the Constitution viz-a-viz sections 26, 27, 32-36 of the Public Order Act 1965.


  1. This brings me to the issue of the duties of Judges, when the question of doubt

arises in a statute or constitution. Judges are expected to observe and apply the provision  of the Constitution  where  that application  has been raised  in a matter,

.     I


and it is their duty to do so. They will be failing in that duty it if they refrain from doing so. This is where the application of the law involves questions  of interpretation as to the meaning of the law and the purpose of its application the Court will determine the question. But if the question  referred  to the  Court as in  this case does not involve any interpretation, but its application merely  it will not. On the other hand, if there is a doubt, as to the meaning to be attached to the words of the sections both in the Constitution and the Act  it  is the duty of the Court to give effect to their literal meaning.


In Major and St Mellow v. Newport Corporation (1952) AC (H/L) 159 Simonds LJ

said -



"The duty of the Court is to interprete the words that the legislation has used, these words may be ambiguous, but even if  they  are  the power and duty of the Court to travel with them on a voyage of discovery are very restricted".


Similarly in Mobil Oil (Nigeria) Ltd. V. Federal Board of Inland Revenue 1977 SC 1 the Supreme Court of Nigeria restated the principles for construing a statute (which, of course every provision of the Constitution).


When it said -



"The General rule for construction of statutes has been stated by this Court in a number of cases the rule is. Where the words of a statute are clear the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external


aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice".


I adopt the proposition of law in  both  cases. Furthermore,  I  find no ambiguity  in the words used both in  section  25  of  the Constitution  or sections  26,  27, 32-36 of the Public Order Act. The words are clear and unambiguous.


Furthermore, the first question of the motion seems to indicate an application as opposed to an interpretation of section  25 of  the Constitution  to sections  26, 27  and 32-36 of the Public Order Act. If this is the case then such an application must be based on a cause of action, that is to say  a factual situation as explained in the case of Letang v Cooper 1964 2 AER 929 at 935 1965 1QB 232 at 242/243. It must not be speculative or hypothetical as the present case. On the other hand, if the application relates to enforcement of the fundamental rights which section

25 is  then  Plaintiffs  have  not  discharged  the  mandatory  rcqui1c111c11t  11f  subsection 1 of section 28 of  the  Constitution.  And  therefore the application on both grounds fails.


  1. The other two questions of the motion deal with declaratory Judgments. They are as follows.


"B.  A Declaration thot  sections  26,  27, 32-36  of  the Public   Order Act criminalizing free speech are unconstitutional and therefore null and void by virtue of section 171(15) of the Constitution Act. No.6 of 1991

in   so   far   as   they violate  the  provisions  of  section 25( 1) of the



"C. A Declaration that the restriction  provisions to the right freedom of expression under section 25(2) of the Constitution does not save the

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provisions of sections 26, 27, 32-36 of the Public Order Act in so far as  the said provision cannot he demonstrably justifiable in a democratic society".


Where a plaintiff claims no relief legal or equitable, but seeks an adjudication upon his rights he may simply claim a declaration.


The power of the High Court to make a declaration of right or title is an inherent one deriving from the Court of Chancery  and  it  is  now  in  order 43 of our High Court Rules 2007. It provides a useful means whereby a party may ascertain his legal position before embarking on  a  course  of  action.  However,  it  is  ,1xio111,1tic that the Courts will not adjudicate  upon  hypothetical  questions  so  that no declaration will be granted, where the defendant has neither committed nor threatened any wrongful act. Declaration is mentioned in section 127(1) of the Constitution but not mentioned in the Supreme Court Rules. However Rule 98 of the said Rules shall apply i.e. provisions not expressly provided in these rules, the practice and procedures of the High Court shall apply.


For the purpose of the Constitution section  127(1)  of  the  Court  provides  as follows-·


"A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with or is in contravention of o provision of this constitution, may at any time bring an action in the Supreme Court for a declaration to that effect”.








I have earlier in this judgment mentioned that there is no reference or mention of

this provision in the originating notice of motion and it is a settled practice in




constitutional  matters   that  technical   objections  are  frowned  upon. I will amend the      heading of the motion to include the provision. In the case of Guaranty Trust Co. of New York v. Hannay 1915 2KB 537, it was held that the Court has power to make a declaration whether there is a cause of action or not, at the instance of a party interested in the subject matter. In Eastham v. Newcastle United Football Club Ltd. 1964 CH 413 Wilberforce J said that the cases establish that even though there is no cause of action and even though  no consequential relief can  be given. the Court has ample power  to grant a declaratory  judgment. In the close of Letang v Cooper 1965 l QB 232, it was said that the expression "cause of action" means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It will be noted that in section 127(1) a factual situation in existence is required i.e. the plaintiff must bring an action. In   this regard it is a well known  proposition  that  the  burden  lies  on  the  person  who seeks a declaration of right to place the facts before a Court, which are necessary for the determination of such rights and would fail if no evidence was called (see Phipson on evidence 10th ed. at p45 etc).


  1. The Courts over the years in granting declaratory judgment in respect of constitutional questions had involved principles to guide them. The first is that a declaration will not be awarded to a plaintiff or an  applicant  who  is  unable  to show he is engaged with another party in a Court to which his legal interests are directly affected.












Secondly, the Court will not grant a declaratory judgment. unless all the parties interested are before it. Thirdly, the Court will decline to make a declaration affecting the  interest  of  persons  who  are  not  before  it.  Fourthly,  an  application for a declaration must satisfy a stricter test of locus standi than is applied to a Prerogative Order. Fifthly, only a person with locus standi is entitled to assail the constitutionality  of  a  legislation  meaning  that  the  applicant  must   prove that he



has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he hc1s suffered  in so some infinite way common with people generally.


Here in Siena Leone in the case of Steele and Others v. Attorney-General, Tejan Sei and Koroma 1967- 68ALR SL page 1 Cole Ag. Chief justice held, on an applications  for a declaration on enforcement of a fundamental right, a person invoking  the enforcement provision laid down  in  section  24  of  the 1961 Constitution must allege facts which show as a result of the acts complained of, an injury to himself, which  is  not one of a general  nature common  to all  members  of the public and  it  is insufficient to allege facts which merely show  that  he  will  suffer  in  common with other people. Section 24 of 1961 Constitution is similar to section 28(1) of the1991 constitution.


  1. Though the two applications are not worded as direct applications for enforcement of section 25 of the Constitution they are nevertheless declaration touching and concerns section 25, which is a fundamental right. They relate to constitutional right to redress, which axiomatically involves section 28 of the Constitution  described  in  the  marginal  note  as  enforcement of protective provisions. The two applicc1tions also concern locus standi and  all the authorities establish  that  in  a  constitutional  application  for   declaratory   order   in a   case relating to fundamental rights the Courts will do so only to a person, who is in immediate danger of coming  into  conflict  with  a  law,  or  whose normal business or other activities had been directly interfered with  by or under  the  law  has sufficient interest to sustain a claim that the law is unconstitutional.


I have searched the several documents and I  am unable  to find where plaintiffs have averred its legal rights have been infringed or  likely to be infringed nor the

exclusive suffering it has sustained or likely to sustain.






Let me end by stating two cases  which  have  been decided  in  other jurisdictions and which in my opinion are applicable  to  the  case  in  hand  -  the  first  is the  Nigerian case of Otugar Gamiobra ond Others v. Esezi II, the Onodjie of Okpe and Others (1961) ANLR  584 at 588, where  Brett, Federal Judge of the Supreme Court said -


".... There is a further test to be applied in a case as this one. It is always necessary where the plaintiff claims a declaration that a law is invalid, that the Court should he satisfied that the plaintiff legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point of length with ALAWOYIN V. Attorney-General Northern Region (1961) ANLR 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large the Court has a duty to form its own judgment  as to the  plaintiff’s locus standi and should not assume it merely because the defendant admit it or does not dispute it. The plaintiff’s locus standi in this present case has not been discharged, and if he has not his claim must he dismissed on that ground and it will he unnecessary to decide the question involved in the declaration he claims…”


Similarly the House of Lords in England dealing with the same issue in London

Passengers Transport Board v. Moscrop (1942) 1AER 972 at page 103 said -


"I cannot call to mind any action for declaration in which (as in this case) the plaintiff claim no right for himself but sought to deprive  others of a right which did not interfere with his liberty or his private right. Still less can I think there is any precedent for such an action in


the   absence   of   the   persons,   who   are   interested in opposing the declaration”.






In this case the media practitioners appear to be claiming  rights for the company, the plaintiffs. This cuts across the principles of law dealing declaratory judgments. The two declarations fail and I dismiss them accordingly.











t              -

··························· ·0/2·.........................,..........

HON. MRS. JUSTICE  s. M II-TAQI                -           /.S.C.





HON. MRS. JUSTICE V.A.D. WRIGHT                         /.S.C









HON. MR. JUSTICE M.E.T. THOMPSON                     /.S.C.






I AGREE                    ............................ ················"''"''''"'''''''"''''''"'"''••···

HON. MR. JUST CE G. SEMEGA-JANNEH       -           /.S,C.












































































<     Having had the advantage of  reading the Judgment just delivered  by my Lady the Chief  Justice I found myself fully in agreement with her analysis of the  issues she had to deal with and the conclusion arrived at. I shall articulate my own opinion on this matter in



this way.


On  the  26th  February  2008  the  Plaintiff,  The  Sierra  Leone  Association  of







Company Limited  by  guarantee  and  incorporated  under  the  Company's Act chapter 249, of the laws of Sierra Leone 1960. By notice of an originating  motion moved  this Court for the following reliefs pursuant to section 25 and 171(15) of the· Constitution of

Sierra Leone 1991 Act 0.Jo.6 of 1991 (which  for the  purpose of  this ruling, I  shall refer to


as the Constitution) namely:



  1. The interpretation of section 25 of the Constitution viz-a-viz  section 26, 27, 32-36 of the Public Order  Order Act 1965 No.46 of 1965 (Which for the purpose of this judgment i shall henceforth refer to as the Act) for the following questions.


(I) Whether the provisions of section 26, 27, 32-36 of the Act criminalizing  free speech contravene the right to Freedom of expression guaranteed under the entrenched provision of section 25(1) of the Constitution No.



(II) whether the provisions of sections 26, 27, 32-36 of the Act can be demonstrably justifiable,

                                        in the light of Sierra Leone's obligation, under the Universal Declaration

  • of Human  Rights, the International Convention on Civil and Political Rights and the African Charter of Human and copies Right


(III) If the answer to (I) and (II) above are in the affirmative whether the provision of  section 26, 27, 32-36 of the Act also  fall out  of the restrictive provision of section 25(2) of the Constitution


  1. Declaration sections 26, 27, 32-36 of the Act criminalizing free speech are inconsistent with the section 25(1) of the Constitution.


C A declaration that the restrictive provision to the right to freedom of expression under  Section 25(2) of the Constitution does not serve the provision of sections 26, 27,, 32-36 of the Act in so far as the s11id provision cannot demonstratively justifiable in a democratic society.


D. Any further order or relief as this Honourable Court may deem fit and just.






This  originating Notice  of  Motion  relates  to  freedom  of  expression  as  enshrined  111 Section 25(1) of the Constitution, The complaint is that freedom of expression has been criminalized by some sections of the Act.

It is generally accepted that in a democratic society, freedom of expression is a fundamental right  enjoyed  by  members  of  that  society;  therefore  members of   the Plaintiffs Association who exercise such freedom of expression by the dissemination of  information  are  at   liberty  to  publish  any  matter  of   public  interest without  fear or favour

and with objectivity. If perchance, the publication is malicious, manifestly  false  or impinges on the right, and reputation of others, such publication will be said, had gone beyond the pale of fair comments and or privilege,  and  such  conduct  amounts  to a license.   Sellers LJ   (deceased)  in Broadway  Approval  Ltd. and  Another v.  Odham press

Ltd. 1962 ABR 523 at 535 inter alia put it this way.

"An honest expression of opinion on a matter of public interest is not actionable

even though it may be untrue and devoid of  justification. It may be said in the


appropriate circumstances; that a man's conduct is discreditable and it may be said a fair comment to make although a Jury is not prepared to find that the substance of comment was true."

Also in Tolley SS Fry and Sons Ltd. 1KB 193ll 467 at 479 which was quoted with approval in Harding vs. Sierra Leone Daily Mail 1964-66 ALR SL 563. Greer  L.J (deceased) in determining which words are actionable as defamatory had this to say:

"Words are not defamatory unless they amount to an attack on a man’s

reputation or character. They must tend to disparage him in the eyes of the average sensible citizen. Words are not actionable as defamatory. However they may  damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation to the eyes of the right thinking man generally."


Here in Sierra Leone it is the bias and sometimes malicious reporting  of  events  that some members of the Plaintiff's Association  have been  the offenders.  They want only and recklessly publish things attacking the  reputation  of  other  members  in  the society. This they gleefully refer to in their journalistic parlance  as "attack  and  collect, defend and collect or coasting". Whatever these expressions mean I do not know.

In spite of all these, journalists still continue to enjoy their fundamental right to freedom of expression that is why there me about forty news papers in circulation and numerous radio stations. Now by invoking the relevant provision of  the Constitution, they are asking this court to give them an unlimited  freedom  of  expression,  by declaring that the Act is inconsistent with the Constitution and also criminalizes freedom of expression.


Before dealing  with  the  substantive  issue,  l  have  identified  two  issues arising from the Plaintiff's originating Notice of Motion, which I shall deal with as preliminary points. They  are  CAPACITY/STANDING  of  the  Plaintiff  and  the   DECLARATION sought by him.






The Plaintiff at page 2 of the originating Notice of Motion states:



"The Plaintiff herein brings this action in the capacity as the Sierra Leone Association of Journalists a Company Limited by guarantee  and incorporated under the Companies Act Cap 249 of the Laws of Sierra Leone 1960: the members of the Plaintiffs association are media  practitioners in  the Republic of Sierra

Leone. The Memorandum  of  Association  of  the  plaintiff Company provides inter  alia in clause 31a and  e as _follows -  3a & e)  as follows:-3a-  To endeavour  the freedom of the press and safeguard the freedom of journalist in the pursuit of their profession and to assist the growth of the press as a powerful social (sic)  for the betterment of the nation through the dissemination of accurate and objective

information  (emphasis  mine) fair comment  and a constant quest for improved

standard and techniques of Journalist. "

From the above  it  appears  to  me  that  the Plaintiff  is  the  so  called  umbrella  body  for journalists. My description of the Plaintiff's Association as so called, stems from  the  fact that not all journalists are members  of  the  Association.  They  are  not  compelled to become members - membership is optional. To my mind it is a loose association.

It is settled law, that a Plaintiff challenging a Statute as in this case, on constitutional ground must be legally qualified to do so, See Guarantee Trust of  New York v Hannay and  Company, 1915 2 KB 5 It means that the Plaintiff must have an interest in the subject  matter  of the  action. Such interest is variedly described as personal, real or sufficient. These interests which should  not be artificial or  remote are generally referred to as Standing or Capacity - the right of appearc1nce in a court to litigate a matter. It focuses on  the  Plaintiff  seeking  to get his action or matter  before the court not the action or matter which he wants decided.

It is trite law that if a Plaintiff has no standing/capacity to litigate on the matter the court   has   no   jurisdiction   to   try the  matter,                                      Consequently standing/capacity and


jurisdiction are intertwined. Therefore if the Plaintiff has no  standing or capacity the court has no jurisdiction to entertain the action.

In Barron Dictionary of Legal Terms, Real Interest is defined as -


"A person will be entitled to the benefit of the legal action of It  is successful. One who is actually and substantially interested in the subject matter as opposed  to on who has only a normal, formal, or technical interest in it.

This principle of real/personal interest in the subject matter has been applied in a long line of cases. I shall endeavour to refer to few cases on this point.

In Russian Commercial and Industrial Bank v. British Bank 1921 AC 438 Court adopting the above definition of real interest said.

"The question to be decided must be real and not theoretical and the person

raising it must have real interest to rise it."

In Abraham Adesayan vs the President of Nigeria and others 1981 2 NWLR 358, the


Supreme Court of Nigeria held "That the Appellant cannot challenge the appointment of the President as he has no right peculiar or personal to him which had been violated.”

However in Sam vs the Attorney General  of  Ghana  GLR  300 which was quoted in Hinga Norman vs Sama Banya and  Others  SC. No. 2/2005 Attuguda JSC took the view that so long as the plaintiff was a citizen Standing/Capacity (need not to be considered in a wider dimension).               

In some jurisdiction  however sufficient  interest  in  the subject matter has been regarded as enough interest to bestow standing on a plaintiff as long as such interest is not of a speculative nature. See Randolph Sheppard Venders v Weinburger 795 (DC Cir 986) Also: in Crouch v the Commonwealth 1948 77 CLR 339 the High Court of Australia held the “the claim by the plaintiff that has business was affected as he had to obtain permit under an invalid law constituted sufficient interest to institute the action”

In this case and for the sake, of argument. let me assume without conceding that the Plaintiff has sut1icient interest to bring this action based on the affidavits of the three deponents

indicating that they have interest in the subject matter. Indeed in the affidavits, it or Spencer. his

interest can he adequately  described  as real/personal  which would have been in tune with Sec. 28 of the Constitution.  As a victim of the Act he is in the same category as the appellants in some


?--    LC I

of the authorities cited by Mr. Yada Williams. In my opinion he could have heen an idea and competent plaintiff to institute this action.

I have taken pains to draw this analogy as I am at a loss to understand or fathom why the action was instituted by the Plaintiff whose interest in my judgment is purely nominal and calls into question the Plaintiffs standing to institute the action. 8c that as it may I do not inte11d 10 rest this judgment here, that is not to say I would not be justified for doing so



A common law. the power of the court to make a declaratory ruling/judgment discretionary, and such discretion must be exercised judiciously and with caution. See Halsbury Laws of England 3rd edition volume 22 para. 1611.

The    Constitution    gives    the   Supreme   Court,    when exercising it original jurisdiction the power to make a  discretionary  ruling/judgment, where the relief or claim is the inconsistency between the law or statutory provision and the constitution.

It is the specific provision of the Constitution. Section 127 (!) states:-

"A person who alleges that the enactment or anything contained in or done under the authority of that or say other enactment is inconsistency with or in contravention of a provision of the constitution may at any time bring an action in the Supreme Court for a declaratlon to the effect”

This is the only provision in the Constitution, which empowers the Supreme Court to

make a declaratory judgment.


In this case the Plaintiff neither  relics  on  the  common  law,  nor  the above provision of the Constitution and  half  heartedly and generally relies on rules 89-98 of the Supreme Court Rules. The  reason  for saying  so will  be apparent  by the end of the next paragraph.

As I said the Plaintiff generally relics on rules 89 – 98 He should have confined himself to rule 98 which reads:

"Where no provision is expressly made in this rules relating to the original or supervisory jurisdiction of the Supreme Court, the practice and procedure for the time being of the High Court shall apply mutatis mutandis."


LL)        '----

It is the practice of  this  court  that  a  Plaintiff  instih1ting  an  action  pursuant to a rule other than the Supreme Court Rule should clearly state the said rule in the title of the action. It was not done in this case. The above rule is a procedural rule which does not stand on its own. It should be accompanied by the relevant High Court rule, and the proper in this case is O 43 r. 1 which states:

                                                              "No action or proceeding shall be open to objection on the ground

that a mere declaratory judgment or order is sought thereby and the court may give declaration of right whether any consequential relief is or could be claimed or not "

This is an omission or lapse on the part of the Plaintiff which ought not to be encouraged bearing in mind that the Supreme Court is the highest court in this jurisdiction. l say no more.


I shall, in brief state  the  arguments  and  submissions of the plaintiff  and Defendant. Mr.  Yada  Williams  Counsel  for  the  Plaintiff  in  his  argument  submitted the P!.1intiff is challenging Sections 26, 27, and 32 - 37 of the Act 1965. These sections impinge or violate Section  25 (i)  of  the  Constitution  of Sierra  Leone. There argument is  not that the right to Freedom  of  expression  is  unlimited;  but  that  these'  sections contravene   Section   25(i)   of  the   Constitution. He   referred    to  several   authorities in

support of his argument and that the reasons given in these cases were that they were in conflict with the Constitution of the said  countries  which  guarantees freedom of expression in a democratic state and whatever provision in the Constitution must be democratic and objective.

He submitted further that we do not have to adhere to our local standard, but to


universal standard. To uphold the limitation, the burden rest on those who create the limitation to justify it.

Finally he submitted that Sec. 25 (ii) creates a limitation upon the freedom of


expression    the   extent    to   which    the   freedom   of    expression    can be  limited. The



,                                                                                                                                                                          9


government cannot go around limiting the freedom of expression even if the first

"'"          huddle is crossed, The limitation created should be justified in a democratic state.

Mr. Farmer: Counsel for the 1st  defendant submitted that his colleague has conceded

that freedom of expression cannot be unlimited.

He submitted that the Plaintiff did not invoke the court's jurisdiction as provided under Section 124 of the Constitution; which empowers the court  in all matters to interpret the Constitution. He cites the case of Pepper v Hart 1993 1A.E.R.P. 50

He  submitted  that  there  are  multi  dimensional  rule of  interpretation  of statute. includes the ordinc1ry meaning of the word; plus the context of the legislation, the subject matter the scope and purpose.

He submitted that when reading sec. 25 (i) of the constitution, it should be read

in the context and subject matter in  which  sec. 25 (i) of  the  constitution  -  the recognition and protection  of  fundamental  human  rights.  It  is  essential  to  recognize the scope  under sec. 25 (1) and the limitation provided under sec 25(11) of the Constitution.

He submitted further where there is a legal restriction on the exercise of the freedom of expression under section 25 (i). That legal restriction is that of the Public

Order Act 1965. He submitted that Public Order Act when read in its entirety provides the  mechanism  by  which  the  exercise  of  the   fundamental  human  and freedom of the individual right can be done in an orderly  manner.  Section  21  (i)  therefore is not inconsistent with 26-27-32-36 of the Act

Finally he submitted the burden to prove  where  there are restrictions, or limitation does not lie on the defendant.


The supremacy of the Constitution is found at Sec. 171(15) of the Constitution which states:-


"This Constitution shall be the supreme law of Sierra Leone and any other law found inconsistent with any provision of the


  • 10









Constitution shall be to the extent of that inconsistency void and of no effect.”

The  above is a substantive  provision.   It  is clear and concise.            It merely declares the Constitution the supreme law of the state and being  the supreme  law any  law or  act which is at variance or inconsistent with any of  its provision  will be declared  void ,md of no effect.        It also confers original, appellate and supervisory jurisdiction on  the Supreme Court.

The thrust of the Plaintiff's submissions and the statement of  his  case it  that Sec 26, 27, 28, 32, 33, 36 of the  Act  are inconsistent  with  freedom  of  expression as enshrined in Sec. 25 (i) of the Constitution.

Section 25 (i) states:-



Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression and for the purpose of this section the said . freedom includes the freedom to hold opinions and

to receive and impart ideas and information  without interference, freedom from interference with his correspondence, freedom to own, establish and operate any medium for the dissemination of information,   ideas and opinion and academic freedom                                                                                                                                          in institutions of learning"

Provided that no  person other than the Government or any person or body authorized by the resident shall own establish or operate a television or  wireless broadcasting station for any purpose whatsoever.”

Section 25 (ii) states:-

"Nothing contained in or done under the authority of any law

shall lie held to be inconsistent with or in  contravention of this section to the extent that the law in question makes  provision:-

  1. which is reasonably required -
    1. in the interest of defence, public safety,  public order, public morality or public



health; or

  1. for the purpose of protecting the reputations,

rights and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the telephony, telegraphy,, telecommunications, posts, wireless broadcasting, television, public exhibitions or Public entertainment; of

(b) which imposes restrictions on public officers or members of a

defence force,

and except in so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society."

In the interpretation of this provision I shall be guided by the words of Tejan Sie

C.J.(deceased) in John Akar v Attorney General 1968- 69 ALR SL 274 when he said:

"In the interpretation of Statute the court has to tread wearily and with circumspection."



It  is  settled  law  that  if  the   words  of  a  statute  are  nt  lain  clear  and unambiguous they must be taken to be the intention of the framers and no need to look elsewhere to discover their meaning. See Halsbury 4t h Edition volume 44 page 857, para. 522. This

principle of law went as far back as the 19t h century as was observed in the Sussex Pearage Case 1844 11 Cl & F 85 in which Timdel C. J. deceased said:

"If the words of a statute are in themselves precise

and unambiguous then no more can be necessary to expound those words in the natural and ordinary sense. The law themselves in such a case best declare the intention of

the law giver."

In Major Rural District Council v Newport Corporation 1952, l89 at page 191 of role

the court in interpretation of Statute was put this way by Lord Simons -




"I rest here to find the intention of Parliament and of Alinis1c1,

'                                                                                                                                               '


-J.                              and carry it out and we do this better by filling in the gaps and making sense than by opening it to destructive analysis.”



Coming  home  the  case  of  Chanrai    &  Co.   Ltd.  V.  Palmer l 970-71 ALR (SL) 391

comes to mind in which Livesey Luke, CJ (deceased) had this to say:

"In my judgment if the words used in the Statute are plain and unambiguous the court is  bound to construe them in their ordinary sense having regard to the context, ..

A fortiori. not only that the words used or expressed in the statute must earn the intended meaning. but the court must not imply anything in them which is inconsistent with the words used or expressed : see Egbe v Alhaji I 990 I N. W L. R. P. 546.

This point leads me to the principle adopted in another rudiment of interpretation called  the Purposive  Principle or Approach,          Where words expressed are uncertain and or  misleading and ambiguous,           to give a true meaning to the words it is necessary to examine the background, scope. subject matter and purpose of the statute. I dare say

this is the current innovation in interpreting statutes. Sec Pepper v Hart 1993 1 A.E.R 42.

In some cases however and this is one. there are no marked difference between the literal and purposive approaches to interpretation. As to the difference Laws L.J (deceased) in Olive Ashworth (holdings) Ltd. Vs Ballard  Ltd.  1999 2 AER 795 had this to sav:

"It is nowadays misleading and perhaps it always was  to seek  to  draw  a rigid distinction between literal and purposive approaches  to  the interpretation to Acts of Parliament. The difference between literal and  purposive construction is in  truth  one  of  degree  only..  On  received doctrine we spend  our  professional  lives  construing  legislation  purposively in as much as we are enjoying at every turn to ascertain the intention of'

Parliament.    The  real  distinction   lies  in   the  balance   to   be   struck in a

y                                                            particular case between the literal  meaning  of  words  on  the  one hand and the context and  purpose  of  the  measure  in  which  they appear on  the other. Frequently there will be  no  opposition  between  the  two and  then no difficulty  arises,   Where  there is a  potential  clash  the conventional



approach has been to give at least very great and often decisive weight  to the literal meaning enacting words."



The meaning of "shall"


In my opinion the vital  word  in  Sec. 25 (i) and  25  (ii)  is the word  "shall". I  shall  now turn my attention to the  use of it. This auxiliary verb should he understood in two senses; as simply futurity (i.e. will) and obligation (must) or whether in a


statute it is compulsory or merely gives jurisdiction, and direct01y diction2cry of Modern Usages 'shall' is defined thus:

"The word "shall" ordinarily denotes language or

In the



command. In legislation it invariably denotes an impe1·ati\ e rather than futurity when it appears in drafting...

There is no doubt that Sections 25 (i) and (ii) are elements of legislative drafting, consequently the word 'shall' in "no person SHALL he hindered in the enjoyment of its freedom etc" in Sec. 25 (i) and in "nothing contained  or  done under the authority of any law SHALL be held to be inconsistent etc... in Sec. 25

(ii) is to have any meaning at all and escape from any obscurity within the context of legislative drafting it must be looked at from the imperative/mandatory sense.

Therefore, on a close scrutiny and as far as it  is  relevant  to  this  action,  and using  the  ordinary  sense  approach  it  seems  to  me  that  the  intention  or  the  framers of the Constitution  is  that  no  one should  be prevented  from  enjoying  and exercising the                                                   right   of    freedom   of   expression.                                   Those rights and freedom of expression however    must    not    infringe    on   the    right    and    reputation of   others.                                          Also the Constitution will give effect to any law which seeks to protect  the  said  right  and reputation  and  that  law  will  not  be  inconsistent  with   the   provision   ·  of  Section 25(i).

The Jurist Roger Brownswood in one of his jurisprudential expose' tried to equate the law with morality and this is what he said:




I '



-                       .

"Legal Rules ought to  be  consistent  with  some  moral requirement since the two  depend on  social  facts as well as moral values and in the enactment of any law some element of morality should be involved




I cannot agree with him more, and so it is with our laws including the Act

which is the focus of this ruling. However I am more concerned with the legal

rather than the moral aspect of certain provisions of the Act and how it fits into the Constitution and its frame work.

The Act is a punitive legislation and predates the Constitution by some twenty-six years. I fully realize and recognize the difficulties it has caused to some members of the society. Whilst at the same time it is a source  of solace  and happiness to those who resort to it to repair their tarnished and battered reputation.

This court primarily has been called upon to determine whether certain provisions of the Act are inconsistent with Section 25( i) of the Constitution. Secondly whether it can be justified in the light of the provision in Sec. 25 ( i) which gives a positive complexion to freedom of expression in a democratic society.

Mr. Yada Williams in his submission referred to and relied on several decisions   from   other   countries   in   which   the   appellate   court    held that   the' legislations under which the appellants were charged tried and convicted were

inconsistent with certain provisions of their respective Constitution dealing with freedom of expression. According to him this Act has no place in a democratic society.

I note that the decision in most of the cases cited by Mr. Williams are from the appellate courts. The Appellants having been convicted by the court of first instance appealed against the conviction. The decisions did not emanate  from actions for the determination by the Supreme Courts or the Constitutional courts


that a particular provision or statute is inconsistent with the Constitution of the respective states.

The relevant and offending provisions of the Act relate to defamatory and seditious libel. I shall here under reproduce them in extenso:


"Any person who maliciously published any

Defamatory matter knowing the same to be false

shall be guilty of an offence called libel and liable on conviction to imprisonment for  a term not exceeding three (3) years to a fine not exceeding one thousand leones or both.”

Sec 27 states:

"Any  person  who  maliciously  publishes   any defamatory matter shall be guilty of  offence called libel and liable on conviction to a fine not exceeding seven hundred leones or to imprisonment

for a period not exceeding two  years or to both such fine·

and  imprisonment. " Sec. 32 (i):

"Any person 1vho publishes any false statement

rumour or report 1vhich is likely to cause fear or alarm to  the public or to  disturb  the  public  peace  shall  he  guilty of an offence and liable on  conviction  to a  fine not  exceeding three hundred leones or to imprisonment for

a period of 12 months or to both such fine and


Sec.32 (2):

"Any person \\'ho publishes any false statement rumour or report which is calculated to bring into disrepute any



.                                . .

person who hold an office under the Constitution in the  discharge of his duty shall be guilty of an offence and  liable on conviction to a fine not exceeding five hundred

leones or to imprisonment not exceeding two years or


Sec. 33(i) states:

Any person who:-

  1. does or attempt  to do or makes any preparation to   do or conspire with any person to do any act with a seditious intention;
  2. utters any seditious words or
  3. print or publishes, sells, offers for sale, distributes or reproduces seditious publication or

(cl)       impart any seditious publication unless he has no

reason to believe that it is seditious.

shall be guilty of an offence to imprisonment for a term not exceeding three years or to a fine not exceeding one thousand leones or to both such imprisonment and fine for a subsequent offence shall be imprisoned for a term not exceeding  seven  years  and  every such seditious publication shall be forfeited lo the Government.

Section 33(ii) states:

"Any person who without lawful excuse has in  his possession any seditious publication shall be guilty of an  offence and on conviction be for a  first offence to imprisonment for  a term not exceeding twelve months or  to a fine not exceeding one hundred leones or to both  such imprisonment and fine  and for subsequent offence  shall be imprisoned for a term not exceeding three years




and   every such publication shall be forfeited to the



It 1s a rule of interpretation that a general statute does not by implication affect a special statute, see Seaward vs Vera Cruz 1884  10 AC 59, except the general statute expressly say so or may be in terms inconsistent with the continued existence of the special statute, see Barclay vs Edger 1898 AC  749.  In  this case there is no suggestion that the Act has been expressly repealed or amended.

ls it then repealed by implication? To help me answer this question I shall resort to Maxwell on interpretation 11th edition page 169:

"Having alreadv given its attention  to the particular  subject and provided for it, the legislative is reasonably  presumed not to alter that special provision by  subsequent general enactment unless the intention be manifested in explicit language or there is something  which  shows  that  the  legislative had been turned to the       special act and that the general one making it unlikely  that an exception was intended  to  regard the special Act. In the absence of these conditions, the general  statute is read as silently excluding from its operation the cases which have been provided for by the special Act.”

This principle of law was applied in the Court of Appeal case of Attorney General

v Kabia S.L.L.R. 1963 at page 143 in which the court said

"where there are general 1rords in a latter act capable of  reasonable and sensible application without extending them to  subject specially dealt with by earlier legislation, the earlier legislation is not indirectly repeal,  altered  or  derogated from nearly by force  of such  general  words without an indication of a particular intention to do so. "


I  shall  adopt  the  said   principle  and  say  that  it  clearly  shows  that  the Act has not

..    been   repealed   by  Sec.25  (i)  nor  any  other  provision  of the  Constitution. I so   hold.

Is the Act inconsistent with Sec. 25 (i)  of  the Constitution? The laws of  Sierra Leone comprise among others the 'existing law', sec Sec I 70. These are laws/statutes which existed before the promulgation of the Constitution. A similar provision was made in the repealed 1978 Constitution to accommodate the existing law.  (See Sec.161  of   the  I 978    Constitution).    It follows therefore that  the Act has

been  part  and   parcel  of  the  existing  law  which  derives   it validity   and efficacy

from the Constitution.

The Transitional provisions which  give  effect  to  the  existing law is  Sec.  177. I shall  hereunder reproduce it.

Sec. 177 (i) states :

"The existing law shall notwithstanding the repeal of the Constitution  of  Sierra  Leone  Act  I 978, have effect after the entry into force  of  this  Constitution  as  if they had been made in pursuance of this  Constitution  and  shall be read and construed with such modification, adaptations, qualifications  and   exceptions as may be necessary to bring them into conformity with this Constitution.”

Sub Sec.( ii) states. -

Where any matter that falls to be prescribed or otherwise provided for under this Constitution or by any other

authority or person is prescribed or provided for by or  under an existing law (including any amendment to any such law made under this section), or   is otherwise

prescribed or provided few immediately before the commencement of this Constitution by or under the existing Constitution, that prescription  or provision shall as from the   commencement   of   this Constitution have





effect with such modifications, adaptations, qualifications

..                      and     exceptions    as   may  be   necessary to bring into

  • conformity with is Constitution as if it has been made

under  this Constitution by Parliament  or as the case may

'                                               .

require. by the other authority of person.”

This existing law herein referred to is found in Sec. 176 and is defined as follows:

"Any Act. rule or regulation order or other instrument made in pursuance or continuing in operation under, the existing Constitution and  having effect as  part of the laws of Sierra Leone or of any  part  thereof immediately before the commencement of this Constitution or any Act of the Parliament   of   the   United   Kingdom   or Order of Her Majesty    in    Council     so    having     effect and may be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution as if it had been made under this Constitution.··

The Act without doubt is part and parcel of the existing law which have been saved and preserved  by the transitional  provisions, and should  be looked upon “as if it had been made under this Constitution."


As regards Sierra Leone's obligation to  international  protocols  my answer is that it is common knowledge that the United Nations  and  other  international organizations are in the fore front in the campaign for human rights violation. Individual states including Sierra  Leone  have  signed  up  to  the  respective  protocols and when necessary incorporated them in their national laws. However the United Nations,  International  and  other  Regional  organizations  are  mindful   that   freedom of expression must not be used to the detriment of the rights and reputation of others, As was illustrated in the genocide trial in Rawanda, in which Ferdinand





Nahimana and 3 others (all three accused were journalists), on  the 3rd  December were convicted. The court after examining the role of journalist in the genocide of

  • 1994 and in delivering the judgment said:

That the  power o.f the media to create and destroy human values come  with  great  responsibility.  Those who  control  such media are  accountable for its consequences.”

[n my opinion the above judgment underscores the point that however much we treasure Freedom of Expression such freedom must come with  responsibilities. Indeed article I 9 (3) of the International Convention and Civil and Political Rights states:

"The exercise of this· right provided for in paragraph 2 of the article carries with its special duties and responsibilities and may therefore be subject to certain restriction for the respect of the right and reputation of others, and for the protection  of National security, public order or public health or morals."

Paragraph 2 in the above quoted article: refers to the rights to freedom of expression in article 19(2). It seems to me that even at international and regional  levels there is need for some restriction of Freedom  of  Expression as is evident by the judgment in the Rwanda Genocide trial. When

publishing,   and   disseminating   news   international   and local journalists should always be aware of the rights and reputation of others.



A Constitution of a den1ocratic state is the fundamental principle of law by


which  the  state  is administered  and  does  not  normally  contain details of


the  law  by which  the State is governed.  The framers of the  Constitution in

  • their wisdom included the "existing law" of  which  the  Act  is part under the rubric of the Transitional Provision.



In  as   n1uch  as  freedom  of  expression  as  enshrined   1n  Sec.  25  (i) un­

comfortably  sits  with  the  relevant  provision  of  the   Act,  no  one should

                        pursue  a  course  of  conduct  under  the  umbrella  of  freedom  of  expression which the law regards as criminal or tortuous: and therefore is necessary to mark the limit which  an  individual  cannot exceed  or  trespass.   This limit is

provided by Sec. 25 (ii) and the Act. Indeed one person's freedom of expression stops where another person's right begins.

Again in our society it is common knowledge that some journalists publish matters which touch and concern another person with reckless abandon and claim the exercise of freedom of expression, sometime the exercise of that freedom  paled into insignificance compared with the damage done to the reputation of that person.

In this vein, it is my fervent pica to the Plaintiff to get its members to

adhere to that portion of the  association's  memorandum  which state thus: “ assist the growth of the press

as a powerful social (sic) for  the  betterment of the nation through the dissemination of

accurate and objective information (emphasis mine)

fair comment and constant quest for improved standard and techniques of journalist."

I am of the firm belief that if the 1nembers of the Plaintiffs Association go by   the   association's  memorandum  there will  be no need

           nay more to assert that the Act criminalizes freedom of expression.


Finally except to compulsive denialist no one can argue that in a

democratic society freedom of expression should be unlimited. The form














the  limitation  takes  vary  from State  to State.              Here as I said earlier our freedom of expression is limited by Section 25 (ii) of  the  Constitution and the Act.

Section 25 (ii) as far as  it is  relevant  to this ruling  refers to the  protection  of the rights and reputation of others, but does  not  say  how  the violation of those   rights   and   reputation   should  be  pursued. In Attorney General Vs Hallett and Carey Ltd. 1952 AC 429 Lord Radcliff inter alia said:

                               "Where  the  import  of  some instrument is inclusive the court may

properly lean  in favour of an interpretation  that leaves private rights undisturbed."

I am   persuaded  by this dicta  and  I  shall adopt it.     The Section also makes provision for any Act done "under the authority of any law", this in my humble opinion is referable and inclusive of the existing law, and the Act is one  of such law.   It seems to me therefore that  an individual can  pursue the violation of his rights and reputation by invoking the existing law; in

     this case the Act as far as it is relevant to the action contemplated.

 However,    it is  worthwhile  at  this  juncture   to  digress  a   little  and recall and repeat   with    some   modification     what   I  said  several     years  ago  in    the Diamond     Mining    Company      Limited     vs   The    Sierra    Leone    properties Limited Misc.  App. 1/79 unreported.          The application was a  disguised

attempt    to   review  .:i  decision    of   the   Supreme   Court      in   the Nigerian Shipping   Line   vs   Abdul   Ahmed   SC.  App. 3/88  unreported. Though

unrelated  to this action,  the  comment  holds well.          It  is  possible.  that the

provisions are working hazard  and inconvenience  among  journalists. They


have my sympathy; but it is not for this court to amend or to repeal Act



containing these provisions under the guise of inconsistency. That is for another forum, to which the Plaintiff is entitle to address his anxiety or displeasure.

In the result I am reluctant to hold that the Act is inconsistent with Secs. 25 (i) and 171 (15) of the Constitution.

I shill! now proceed to answer the questions posed in this action. But first let me react to the Plaintiff's submission that  the relevant  provisions  of the Act "criminalize free speech". It cannot be denied that people's right to freedom of expression is in essential law in every democratic  society  and must  be  preserved  and  protected. However  my  own  view  of  the provisions cannot be characterized in that  type  of  language. I will  be content to say that the provisions are one of the ways to limit or curtail freedom of expression, when that freedom is abused.

In the result my answers to the questions are as follows:­ To the first question the answer is in the negative.

To the second question the answer is in the affirmative.


To the third question the answer is in the negative. The Act enhances the restrictive provision of Sec. 25 (ii).

The declarations prayed for are refused.