Ajibola E.Manley- Spaine v Attorney-General Minister of Justice (CIV APP 60 of 2020) [2022] SLCA 13 (2 November 2022)

+ — llz- = COL APP NO. 60 2020 1 INTHE COURT OF APPEAL OF SIERRA LEONE IN THE MATTER OF THE PROVI 47-149 OF THE CONSTITUTION OF SIERRA LEONE (ACT NO. 6 OF 1991); AN-THE MATTER OF THE CONSTITUTICNA LINSTRUMENT NO. 64 OF 2018: THE . ‘COMMISSION OF INQUIRY (E: ION, INQUIRY AND INVESTIGATION) ‘NOTICE (1) 2018 INTHE MATTER OF THE FINDINGS OF THE HON. MR. JUSTICE BIOBELLE RGEWILL F INQUI 2020 INTHE MATTER O1 PAPER PUBLISHED B OF SIERRA LEONE DATED SEPTEMBER 2020

BETWEEN:

AJIBOLA EMMANUEL MANLEY-SPAINE - APPELLANT.

162 CIRCULAR ROAD

FREETOWN

AND

ATTORNEY-GENERAL AND MINISTER OF JUSTICE - RESPONDENT GUMA BUILDING

LAMINA SANKOH STREET

FREETOWN :

CORAM;

HON. MRS JUSTICE FATMATA BINTU ALHADI JA PRESIDING

HON. MR. JUSTICE KOMBA KAMANDA JA

HON. MRS JUSTICE TONIA BARNETT JA

ADVOCATES;

J.0.P. MANLEY SPAINE ESQ APPELLANT

‘ASUWU KENDOH ESQ RESPONDENT

KAMANDA - JA.

JUDGMENT DELIVERED THIS 28° DAY OF NOVEMBER 2022

The President of Sierra Leone by Constitutional Instrument No. 64 of 2018 pursuant to Section 147 of the Constitution of Sicera Leone, Act No, 6 of 1991 sel up the Justice Bivbele Georsewill Commission of Inquiry with the said Judge as Chairman snd Sole Commissioner

the terms af reference of the Commission of tnguiry Kyosen ats COL were aid down in Seetion t of the std Constitutional tnstrutett th

—~ WB Me a. Toexamine the assets and other related matters in respect of; i i. Persons who were President, Vice Presidents, Ministers, Ministers of State, Deputy Ministers; and ii. ‘Heads and Chairmen of Boards of Parastatals, Departments and Agencies within nes the period from Noveiaber 2007 to April 2018.

'b. To inquire into and investigate whether assets were acquired lawfully or unlawfully

cc. To inquire into; and i Persons who were President, Vice Presidents, Ministers, Ministers of State, Deputy

Ministers; and fi, Heads and Chairmen of Boards of Parastatals, Departments and Agencies within the period from November 2007 to April 2018. d. To ascertain as to whether the Persons referred to in paragraphs (a)-(c) 1 Maintained a standard of life that which was commensurate to their official emoluments ii, Owned or were in control of pecuniary resources or property disproportionate to their official emoluments or there are evidence of corruption, dishonesty of abuse of office for private benefit by them; iii, Collaborated with any person in respect of such corruption, dishonesty or abuse of office. iv. Acted willfully or complacently in such a manner so as to cause financial loss or damage to the Government, Local Authority or Parastatal, including a Public Corporation v. Acquired directly or indirectly financial or material gains fraudulently, improperly or willfully to the detriment of the Government, Local Authority or Parastatal, including a Public Corporation, statutory Commission, Body or any University in ‘Sierra Leone. vi. To inquire into and investigate any persons or matter as may from time to time be referred to the Commission by His Excellency, the President. ‘The Sole Commissioner Hon. Justice Biobele Georgewill in the course of the investigation found. the Appellant wanton and therefore made adverse findings, recommendations and report against the Appellant herein to wit:

8) At page 171 of the report the Sole Commissioner stated that “The evidence disclose and clearly identified the following persons as being responsible for these acts of corruption, abuse of office, maladministration and lack of accountability..... Ajibola Emmanuel Manley-Spaine

b) The one-off payment of the huge sum of U'SH270,000 about Let.326,547,800.00 as professional fees forthe defence ofthe ease of Samm Sumana v Aorney-ieneral and Vietor

7 Foh before the Supreme Court of Sierra Leone when the Attorney-General, the Chiet Law/Ontiger/Consultant to the Government ail the Civil Division is prisnty charged with the responsibility of prosecuting wr defendiny emu cases invalviny he Govemmictt

— WG * ‘was not only exorbitant but was a subterfuge to launder money belonging to the ; Government”. ©) At page 175 “the following persons shall jointly and severally refund and pay into the Consolidated Revenue Fund of the Government of Sierra Leone two thirds of the sum of 7 USD270,000 ai:out Le 1,326,547,800.00 laundered under the guise of professional fees for : - the defence of the case of Sam Sumana v Attorney-General and Victor Foh before the ‘Supreme Court of Sierra Leone when the Attomey General is the Chief Law Officer/Consultant to the Government they should be referred to the criminal jurisdiction and or the corruption commission for investigation and likely prosecution namely... Ajibola Emmanuel Manley-Spaine”. It is against the background of the aforesaid findings and recommendations that the Appellant being dissatisfied filed a Notice of Appeal herein based on five grounds which I shall deal with in chronological manner as canvassed by Counsel GROUND | ‘The Appellant’s appeal touches and concems jurisdiction, that the sole Commissioner went beyond his jurisdiction as conferred on the COI by Constitutional Instrument No. 64 supra which laid bare the terms of reference of the Commission. Counsel for the Appellant J.0.P. Manley Spaine Esq. submitted that the terms of reference of the Commission limited the scope of individuals that should be investigated as provided for by Constitutional Instrument No. 64 2018 No, 4 aed, These category of persons she argued include “The President, Vice President, Ministers, Ministers of State, Deputy Ministers and Heads and Chairmen of Boards of Parastatals, Departments and Agencies from November 2007 to April 2018”. She stated that the Appellant a private legal practitioner does not fall in that category and that any findings against him by the COL amounted to the sole commissioner acting in excess of the Jurisdiction conferred on him. She relied on the case of DANIEL K. CAULKER v KOMBA KANGAMA CIV.APP 2/74 to submit that where the Court lacks jurisdiction whatever Judgment it gives amounts to a nullity. Counsel also relied on the case of PEOPLE'S MOVEMENT FOR DEMOCRATIC CHANGE PMDC AND ANOTHER V. SIERRA LEONE PEOPLE'S PARTY (SLPP) AND ANOTHER UNREPORTED, Judgment of the Supreme Court of Sierra Leone delivered on the 22! June 2007 by A. Renner ‘Thomas C.J, when he stated that “the absence of Jurisdiction is not a matter of a mere technicality or procedure. Itis a fundamental issue touching on the power of the Court to act, where a Court hhas no jurisdiction to entertain a matter, any proceedings or decision given thereon is a nullity no ‘matter how well conducted the proceedings were judicial power is inextricably tied up with Jurisdiction and justiciability. A court can only exercise power to entertain a matter where it has jurisdiction”. Conversely, Counsel fir the Respondent A Suwu Esq, submitted that the Sole Commissioner acted within the confines of his mandate as provided for in section 4 paragraph d and © of * Constitutional Instrument No, 64 Supra, She also relied on the ease of SOGEFEL SAL AND THE STATE CIV.APP.NO, 71/2020.

Its crucial to note that jurisdiction is an integral or fundamental aspect of all legal proceedings i that ought to be considered first when raised, more than any other issue. Where there is excess or ‘want of Jurisdiction the entire proceedings however perfect it was conducted amounts to a nullity. In AG FEDERATION v A.G. ABIA STATE AND 35 ORS (2001) 7 Sc (PTI) 100 per Karibi Whyte (JSC) as he then was defined Jurisdiction to mean ‘the authority the court has to decide ‘mattet$ before it or to take cognizance of matters presented in a formal way for its decision”. T have perused the terms of reference of the COI particularly Section 4 of the aforesaid Constitutional Instrument No. 64 which state the functions of the sole Commissioner “To inquire into and investigate any persons or matter as many from time to time be referred to the Commission by the President”, This provision in my view is all embracing and therefore not only limited to those mentioned in Section 4 a-d. It bestowed on the sole Commissioner Jurisdiction to investigate the Appellant. This position was also well articulated by this very court in the case of SOGEFEL SAL v THE STATE CIV.APP. NO.71/2020 which I shall not depart from in this matter. This ground of appeal lacks merit and is therefore dismissed. GROUND 2 ‘The 2" ground of appeal deals with the principle of natural justice. Counsel for the Respondent submitted that opportunity was not given to the Appellant to be heard as enshrined in the National Constitution Section 23 (4) of Act No. 6 of 1991 and in some Intemational Instruments. Counsel also relied on the case of ISATU KAMARA v ATTORNEY GENERAL SC MISC APP 4/92 where the leamed Hon. Justice S.M.F. KUTUBU CJ in his dictum opined: “Fundamental principles which govern judicial and quasi-judicial inquiries; the audi alteram partem rule, that is, a party to judicial proceedings should not be condemned unheard....”. Counsel further relied on the case of SECRETARY OF STATE OF THE HOME DEPARTMENT V AP. 201) 2 AC where per Phillips LJ. held ; “The best way of producing a fair trial is to ensure that party to it has the fullest information of the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary; he should have access to those documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine witnesses...” On the other hand, A Suwu Kendoh esq. submitted that opportunity was given to the Appellant to be heard in that the proceedings were not held in camera but broadcast on the Television, Radio and several media outlets and therefore as an esteemed legal practitioner, he ought to have gone to the Commission to defend himself but he refused. As regard this 2™ ground, | take judicial notice of the fact that the said COL proceedings were broadcast and as such where a person has been mentioned as a result of the investigation, it behooves that individual particularly where that person is a lawyer to approach the Commission by way of an application to be heard. Where such application is made and refused then tht + Applicant ean now raise” the fandamental prineiple of dual erum Partem’. Uke juaicial notice also that such a practice as mentioned is a common place in our judicial proceedings which is ‘applicabte to the COL, Also, now that the Appellant fis approached this court, enough oppertunity

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