Admire Johnson v Hannah M. Yillah (CIV APP 26 of 2008) [2008] SLCA 65 (11 July 2008)

he ae CLV. APP 26/2008 IN THE COURT OF APPEAL OF SIERRA LEONE . BETWEEN: ADMIRE JOHNSON APPELLANT AND HANNAH MEMUNATU YILLAH RESPONDENT

Coram

HON MRS JUSTICE S. BASH-TAQI, JSC (Presiding) HON MS JUSTICE S. KOROMA, JA HON MR JUSTICE E. E. ROBERTS, JA BARRISTERS Ms. S. G. Sisay, for the Appellant “ RULING DELIVERED ON {DAY OF JULY 2008 ; BASH-TAQI, JSC: - This is an appeal against the JudgmenvDecision of the Hon. Mrs. Justice C. L Taylor dated 9" April 2008 refusing the Appellant's application to appoint her as Legal Guardian of Hannah Memunatu Yillah, an Infant By an Originating Notice of Motion dated 28" February 2008, the Appellant, Admire Johnson had applied to Taylor, J for the following Orders: 1 That the Court grants an Order appointing her legal guardian of the infant/juvenile Hannah Memunatu Yillah.

2. That the Court grants permission to the Appellant to take the infanUjuvenile out of the Jurisdiction of Sierra Leone. The application was supported by the Affidavit of the Appellant Admire Johnson sworn on 28" February 2008 attached to which were six (6) exhibits, namely: Exhibit “AJ1”- the birth certificate of the Infanvjuvenile; Exhibit “AJ2” ~death certificate of the infant/juvenile’ mother; Exhibit “AJ3" — Letter dated 6" July 2006 to the Chief Social Development Officer notifying them of the Appellant’s intention to apply for an adoption Order in respect of the Infant; Exhibit “AJ4” ~ Letter from the Chief Social Development Officer granting consent to the proposed adoption; Exhibit “AJS” - Letter to consent from the Infant’s nearest relation living;

* Exhibit “AJ6"- Letter from the Appellant's employer stating her employment and

financial status.

On 9" April 2008 the application came up before Taylor J. who dismissed it on the sume

date for want of jurisdiction. This is what the Learned Judge had to say in her Judgment: “I have considered the application by way of Originating Notice of Motion dated 28" February 2008 by Learned Counsel $. G. Sisay for legal guardianship by the Applicant Admire Johnson of Hannah Memunatu Yillah whose date of birth is 10" October 1990. I have read the Affidavit in support and the exhibits attached thereto. This Court does not have jurisdiction to grant the orders as prayed as she is above the age of 17 years. In the light of the above the application is refused.” (emphasis added)

IL is against this Judgment that the Appellant has appealed to this Court on one ground,

namely:

1, The Honourable Mrs. Justice C, L. Taylor Judge, misdirected herself’ when she held that the Court did not have the jurisdiction to grant the Order for ‘guardianship to the Appellant as the juvenile is above the age of 17 years having regard to the fact that an Order for guardianship is not limited to any particular age bracket”

‘The facts leading to the application before the Leamed Judge can be gleaned from the affidavit of the Appellant sworn in support of the application. It would appear that the Juvenile, subject matter of these proceedings, is the eldest daughter of the Appellant's sister, one Tunde Coker, who is now dead. During her life time, Tunde Coker was very sickly and she was unemployed, so that she was unable to take care of the children and herself. The Appellant had assumed sole responsibility for her and her two daughters, namely, the Juvenile, subject matter of this application, and her younger sister Sarah Elysee Yillah. On 17" November 2007, Tunde Coker passed away (see Exh. “AJ2”). The Appellant instructed Solicitors to process an application for the adoption of Tunde Coker’s two children by the Appellant. The Solicitors, pursuant to section 3(4) of the Adoption Act 1969 notified the Chief Social Development Officer by letter dated 6" July 2007, of the Appellant's intention to adopt the Juvenile and her sister Sarah Elysee Yillah. On 15" March 2007 and 20" April 2007 the Ministry of Social Welfare, Gender and Children’s Affairs conducted a home visit and interviewed the Appellant and members of her family for the purpose of ascertaining the suitability and economic circumstances of the Appellant. The Chief Social Development Officer prepared a report of her assessment of the Appellant, and she granted permission pursuant to Section 3(4) of the Adoption Act No. 9 of 1969, for Adoption proceedings to be commenced in favour the two juveniles of the Appellant on behalf of Appellant. (See Exhibit “AJ4)

The Appellant who is ordinarily resident in the United States of America was unable come back to Sierra Leone to pursue the Adoption process, and when eventually she was

2 able to come to Sierra Leone, the Juvenile Hannah Memunatu Yillah had attained the age of 17 yeurs, beyond the age permissible for the Adoption of juveniles under the Adoption Act 1989. The Appellant proceeded with the process of adopting the Juvenile’s younger sister Sarah Elysee, then 12 years, and had applied for permission to remove the said * child out of the jurisdiction. With respect to the juvenile, Hannah, the Appellant’ s Solicitors hiiving advised themselves that she was above the age limited by the Adoption Act 1989, presented the present the application to the High Court, for the Appellant to be appointed the juvenile’s legal guardian. It is this application (for legal guardianship) that came belore ‘Taylor, J in the High Court, and which she dismissed for lack of jurisdiction, as I have already stated, Counsel Ms Sisay submitted that unlike the Adoption Act No. 9 of 1989, Guardianship proceedings have no age limit; that the juvenile is an Infant as defined by Section 4 of the Interpretation Act 1971, opposed to being a child, as defined by the Adoption Act 1989; that the High Court has jurisdiction to determine and dispose of all applications of guardianship, maintenance or advancement of infants; that this jurisdiction is vested in the High Court by Order 42 Rule 5 of the former High Court Rules 1960; and by section 18(2) of the Court's Act No 31 of 1965, the High Court has unlimited original and Supervisory jurisdiction in all cases and matters both civil and criminal; that this jurisdiction is also guaranteed by section 132 (1) of the Constitution of Sierra Leone Act No. 6 of 1991; and finally that the application was properly before the High Court as the Court of competent and unlimited jurisdiction in these matters. The legal definition of an “Infant”, under Sec 4 of the Interpretation Act 1971 is a person who has not attained the age of 21 years. By that definition, we agree with Counsel that the juvenile in this matter has not attained 21 years as evidenced in the birth certificate, Exh. “AJI". Counsel reminded us that under the Child Rights’ Act 2007, a Child is defined as a person who is not above 18 years. Therefore even if the basis of the Judge's Ruling on the age limit of 17 was under the Child Right’s Act of 2007, the juvenile in this case is still within the age bracket within that Act, since at the time of the application, she was not yet 18 years. Counsel further drew out attention to the fact that the juvenile’ mother had already given her consent to her adoption by the Appellant;, that if the adopted order had been granted, it would have had the effect of extinguishing her parental rights. In the present application the legal and parental rights are not extinguished by the granting of the application. Ms. Sisay submitted finally that the Learned Trial Judge did not consider the interest and welfare of the juvenile, and urged the Court to grant the application in the interest of the welfare of the Juvenile in this case Ms. Sisay relied on the following authorities in support of the appeal: Family Law by E. L. Johnson at page 290; Bromley's Family Law 4" Edition; Section 2 of the Child Rights Act No. 43 of 2007; Re Nevin (1891) 2 Ch. Page299; Johnstone v Beattie (1843) 10 Ch & F (HL) page 576 I will now deal with what I regard as the present law on the subject in the absence of any provisions in our Rules regarding Guardianship proceedings.

DEL

a Medieval law, Pollock and Maitland noted “never laid down any... rule that there {was} or ought to be a guardian for every infant.” Had it done so it might have led to the formulation of a comprehensive definition of guardianship, which, in turn, might have ® checked the proliferation of diffeieut kinds of guardianships. In the long run the latter effect has not proved unduly harmful, for many types of guardianship have long been obsolete or of minimal significance particularly those limited to the estate of the minor, since they have virtually been absorbed into the laws of trusts. However, the lack of <1 unifying definition has had other serious consequences which have become increasingly apparent with the growth of “administrative family law”. The necessary encroachment of the law upon the privacy of the family has not only undermined parental authority, it has put at risk the liberty of the child; there is a failure to adequately protect the interests of the child. It was to achieve this objective of providing adequate protection for the child that it was suggested to create a new kind of Office known as the Children's Guardian, who not only could represent the interests of the children in care, but equally could serve other needs of the children for which the law does not provide, for instance, to act with the mother’s consent, as guardian of her illegitimate child where the father is unknown or shirks his parental responsibilities. One of the traditional categories of guardianship was that of guardianship by nature which expressed the relationship between the parent and his legitimate child. It is on this basis that the Common Law right of the father to custody : and other rights which emanated therefrom are explained. The power to appoint a guardian was originally given to the father by the Tenures Abolition Act 1660, but the mother had to wait until the Guardianship of Infants Act 1886 was passed to give her greater rights in respect of guardianship of children; and even then her power was restricted until extended by the Guardianship of Infants Act 1925 (the Acts are not applicable in our Jurisdiction). Such an appointment traditionally appertains to the Chancery Division, although the county courts may appoint a guardian to act jointly with a surviving parent in cases where the deceased parent did not appoint a guardian or where the infant has no parent, no guardian, and no other person having parental rights with respect to him. Today, the term ‘Guardian’ in its most common meaning describes a person who has been appointed either by a parent under a deed or will or by a court of competent jurisdiction to stand in loco parentis to the child, and it is the High Court that now has the inherent jurisdiction formerly possessed by the Court of Chancery to appoint guardians Thus, a guardian may be appointed conditionally or until the child reaches a specified age which is less than the attainment of his majority or until some other event happens. In our jurisdiction, our High Court is equally vested with the similar powers, “to hear and determine all applications for guardianship, custody, and maintenance of infunts....", ete So that where the parents of an infant are dead, the Court may appoint a guardian to the infant on the ground that he is in need of protection, In deciding who to appoint as guardian, the Court will consider mainly the interests of the infant, and other things being equal," the Court, according to its ordinary practice, gives a preference to the nearest blood relations, and does not appoint strangers when fit persons are to be found among the relation” (see Chitty J in Re Nevin (1891) 2 Ch. 299, 303

ra) b pe % Having thus held that the High Court is the competent Court to determine the issue of legal guardianship, it now remains for us to determine whether an infant above 17, but under!§, can be the subject matter of guardianship proceedings. The Learned Trial Judge was of the view that she kicked jurisdiction (0 entertain the Appellant’s application ‘ because the Juvenile, the subject matter of the application, is above 17 years, although under 18 years at the date of the application. Unfortunately, she did not state by what authority she came (0 that conclusion. We can only assume that the Learned Trial Judge confused the proceedings before her with those under the Adoption Act 1989, which require the child, for whose benefit an adoption order is sought, to be under the age of 17 years at the date of the order We hold firmly that there is no such requirement in our Rules in respect of an application for legal guardianship of a juvenile who has not attained the age of majority. Authorities abound that in our jurisdiction the age of majority is 21 years; this age is recognized by our Constitution, it being the age of eligibility for any citizen seeking election to the Sierra Leone House of Representatives (Parliament); it is also the age recognized in the Interpretation Act 1971 as the age of majority. In Johnstone v Beattie (1843-60) ALL E. R.S76 at 582, Lord Brougham held, in that case, that a guardianship order extends over the whole period of the infant's minority; that the guardians are appointed until the infant is twenty-one years of age. It stands to reason therefore that an infant below the age of 21 years can still be the subject of a guardianship order, and we see no reason to depart from the authorities on this point. We think in this case, the interest and welfare of the juvenile is a paramount