Abraham Lavaly & 9 Others v S (SC 1 of 2017) [2020] SLSC 13 (3 August 2020)

F 493 SC Case 1/2017 Dee shy

, IN THE SUPREME COURT OF STERRA LEONE IN THE MATTER OF SECTIONS 18(1), 20(1), 23(1), 124 AND 127 OF THE - CONSTITUTION OF SIERRA LEONE, 991 AND OF SECTION 74 OF THE COURTS ACT, 1965 AND THE CRIMINAL PROCEDURE ACT, 1965 AND IN THE MATTER OF AN APPLICATION FOR THE UNCONDITIONAL RELEASE OF 10 ACCUSED PERSONS AWAITING JUDGMENT IN THE CASE OF: THE STATE vs

1. ABRAHAM -EAVALY—————

2. INAH JAMES.

3. ADETUNIT. DESMOND COLE

4. BAKIE MINA

5. EVERTON FAULKNER

6. ABU BAKARR KAMARA

7. ISMAIL DAINKEH

8. ISATA OSAIO KAMARA

9. SHARKA KPANABUM

10. ABDUL MUTALID KAMARA AND IN THE MATTER OF:

1. ABRAHAMLAVALY - PLAINTIFFS

2. INAH JAMES

3. ADETUNJI. DESMOND COLE

4. BAKIE MINAH >

5. EVERTON FAULKNER ‘

6. ABU BAKARR KAMARA

7. TSMATL DAINKEH

8. ISATA OSAIO KAMARA

9. SHARKA KPANABUM, iy

10. ABDUL MUTALID KAMARA ‘AND. THE STATE - RESPONDENT

Coram

HON MR JUSTICE N C BROWNE-MARKE, JUSTICE OF THE SUPREME COURT HON MR JUSTICE E E ROBERTS, JUSTICE OF THE SUPREME COURT THE HON MS JUSTICE V M SOLOMON, JUSTICE OF THE SUPREME COURT THE HON MS JUSTICE G THOMPSON, JUSTICE OF THE SUPREME COURT THE HON MR JUSTICE A S SESAY, JUSTICE OF THE SUPREME COURT COUNSEL: ‘MS TUMA JABBUE for the Plaintiffs MR. CALVIN MANTSEBO for the etc JUDGMENT DELIVERED THE bay OF AUGUST, 2020 BROWNE-MARKE, JSC

The Action

1. The Plaintiffs have applied by way of Originating Notice of Motion filed on 15" March, 2017 for the determination of several questions, and for various reliefs and Orders which are stated on the face of the Motion poper. The questions posed or raised go to the root of a citizen's right to be tried for a criminal offence, to conclusion, speedily and fairly.

2. They are as follows:

(1) Whether the Constitution of Sierra Leone, 1991 (hereafter, “The Constitution’) or any law in existence in Sierra Leone, permits any Judge, who is not a Sierra Leonean, and who is a foreigner on contract to the Government of Sierra Leone, in this case, The Hon Mr Justice ‘MA Paul, who was the trial Judge in the above mentioned criminal ” case, to deliver judgment at the expiration of his contract?

(2) Whether the failure of the said Honourable Judge to deliver judgment in the said criminal case before the expiration of his contract in July, 2014, and the non-renewal of his contract does not mean, in effect, Oo

too that judgment will never be delivered in the said case? And, if this is ‘ indeed the case, dees not the failure to do so amount to a denial or violation of the rights of the accused persons herein, enshrined in sections 18(1), 20(1) and 23(1) of the Constitution, and, also their inherent rights under the Criminal Procedure Act, 1965 - hereafter, 7 CPA,1965 - and at Common Law, that judgment ought to be delivered on the Indictment in respect of which they were charged? And if such failure amounts to deprivation or violation of the above-mentioned rights of the accused persons herein, should not this Court, being the highest Court in the land, grant redress to the accused persons?

(3) Whether the Constitution permits any person or authority to deprive

d infinitum, a person charged in an Indictment in a criminal trial of his or her freedom of movement within the boundaries of Sierra Leone, or, to go out of Sierra Leone, which is guaranteed by section 18(1) of the said Constitution?

(4) Whether the Constitution provides for an accused person to be subjected fo inhuman or degrading treatment by taking away their dignity and respect as set out in section 20(1) of the said Constitution?

(©) Whether the Constitution provides for a person who is charged with @ criminal offence *to have" - these words were, in my view left out ~ his/her hearing conducted indefinitely in accordance with section 23(1) of the said Constitution?

3. The Plaintiffs claim that if the answers to the questions posed in sub- Paragraphs (1), (3), (4) and (5) supra, are NO; and if the answer to the question posed in sub-paragraph (2) is YES, then the Plaintiffs will seek the following further reliefs:

@) That the Plaintiffs be set free/released unconditionally and be discharged accordingly.

(2) That the Plaintiffs passports seized or taken away from them, be returned immediately, and that the following bank accounts be unfrozen, immediately:

i) Eco Bank - 5101162950117 - Abraham Lavaly (i) Guaranty Trust Bank - 201/3110184/1/59/0 - Abraham Lavaly of (iii) Rokel Commercial Bank - 01-6002208 - Abraham Lavaly (iv) Union Trust Bank Leone account - 217-25538-01 - Abraham Bockarie Lavaly r aay

tol ) Union Trust Bank dollar account - 215-25538-01 - Abraham Bockarie Lavaly ’ (vi) Zenith Bank - 6020112399 - Bakie Minah (vii) Eco Bank - 5101160501151 - Bakie Minah

4. The Plaintiffs claim that their action is brought in this Court in two = capacities, viz;

(1) Ascitizens of Sierra Leone

(2) Asaccused persons who by a criminal action(sic) brought against them by the State by an Indictment dated 2 July, 2013, in respect of which, trial was completed but judgment was not delivered as the trial ‘Judge who was a foreign Judge on contract left Sierra Leone with the entire Court records since July, 2014; with the said trial Judge denying the accused persons bail throughout the entire trial and leaving the accused persons to indefinitely languish in prison, whilst he left the shores of Sierra Leone without delivering judgment, and with the entire Court records and exhibits, which action, or inaction contravenes, or, is inconsistent with the democratic principles enshrined in the Constitution. PLAINTIFFS’ JOINT AFFIDAVIT

5. The Originating Notice of Motion is supported by the affidavit of the 1* Plaintiff, Abraham Lavaly, deposed and sworn to on 15" March, 2017. In it, ‘Mr Lavaly deposes that he has been authorized by the other Plaintiffs to depose to the facts contained therein, He starts by deposing that the 1", 2m, 3%, 4%, 5% and 6" Plaintiffs were employees of the National Revenue Authority ~ NRA; and that the 7", 8t and 9" Plaintiffs were employees of Ecobank (SL) Ltd. The 10* Plaintiff was an employee of the Sierra Leone National Shipping Co. All of them were arrested in June, 2013 and were first arraigned before KAMANDA, J, then His Worship Mr Komba Kamanda, Principal Magistrate. On 2 July, 2013, they were all indicted by the Anti- Corruption Commission, ACC, for various offences. The Indictment is exhibited as "ABZ". They were arraigned in the High Court presided over by PAUL, J on 9" July, 2013. The trial was by Judge alone. Bail was applied for, but was refused by PAUL,J on 12% July, 2013. His ruling is exhibited as a” “AB2". In that Ruling, His Lordship made it clear he was not prepared to . entertain any further applications for bail. The trial was then adjourned for @ month to enable his Lordship to proceed on vacation. The trial finally commenced on 20** August, 2013 before PAUL, J, and ended on 1** July, 2014.

The pages read for this report end here. The judgment continues in the PDF.