All People's Congress & 4 Others v The Speaker of Parliament & 5 Others (CIV APP 13 of 2000) [2002] SLCA 19 (10 January 2002)

CIV/APP 13/2000 IN THE COURT OF APPEAL OF SIERRA LEONE, . ug between: Alll Peoples Congress J Abdul F, Serry Kamat } Edward M. Turay } AND TReAU Hoc Caters Patamenton Abii. } tua Teton oe 1 Tenet The Clerk of Parliament } fi tp aeveta Ege ‘The Chief Electoral Commission } a i *y Mr. F, Serry Kamal for the Appellants Aorney Gavel and A. Popper the Respondent ; an y suagement dtneredon!ASMN LO" WANUARY BOOZ . TOLLA THOMPSON J.A. (Presiding)

48 as

Judgement

My Lords « ‘This is an appeal against the ruling of Massallay J. delivered on the 14" August 2000 refusing leave to the appellants to apply for an Order of Certiorari against the expulsion

of the appellants by the Speaker and the Ad Hoc Committee of Parliament on ground of

absenteeism.

‘The grounds of appeal are:

1, That the leamed trial judge misdirected himself in holding that the Sierra Leone Parliament is not an inferior court or tribunal to the High Court therefore the High Court cannot supervise it.

2, That the leamed trial judge misdirected himself in holding that the purport of the applicants application is requesting the High Court to enquire into parliament own internal proceedings.

3. That the leamed trial judge acted on wrong principles in arriving at his decision.

4. That the decision is against the weight of evidence.

Background

On a Private Member's Motion, moved by the Hon. Gaiva Labor and seconded by Hon.

Williams Jusu pursuant to Section 77(e) of the 1991 Constitution of Sierra Leone Act No. 6 of 1991 and intendem with Standing Order 77 of the Sierra Leone Parliament, Parliament approved the setting up an Ad Hoc Committee which for the purpose of this appeal I shall refer to as the Committee to investigate and report on the persistent absentecism from plenary Parliamentary sitting within the second and the current third session of the first Parliament of the Second Republic of Sierra Leone, The Chairman of the Committee was the Hon. Gaiva Labour who moved the motion. At the end of the investigation, the Committee reported and recommended to parliament that seven members namely the Hon. Abdul Serry Kamal, Hon. Victor B. Foh, Hon Jengo Stevens, Hon. Edward Turay (Appellants herein); Hon. Dr. Augustine E. Stevens, Hon Dr. John Karefa Smart and Hon. Abdulai Bundu Kamara should vacate their seats in Parliament with immediate effect. The Speaker subsequently declared their scats in Parliament vacant.

The issue in the court below

It is against this background that the appellant moved the High Court for leave to apply for an order of Certiorati against the Speaker and the Committee of Parliament. At the

hhearing of the application the arguments proceeded on the Attomey General's

Preliminary Objection to the Jurisdiction of the High Court to entertain the application,

relying on Section 94(1) and (2) of the 1991 Constitution Act No. 6 of 1991, which I

¥ shall henceforth refer to as the Constitution, that it was not open to the appellants to apply for leave for an order of Certiorari to quash the order of the Speaker of Parliament based ‘on the report of the Committee on Absentecism. + f

‘The learned judge found favour in the argument Of the Attomey General and refused the application for leave. = ‘The learned judge in arriving at his ruling relied on Section 134 of the Constitution and. said at Page 206 Lines 5-10 of the record: “In my view once Parliament is not an inferior court or tribunal fo the High Court, the High Court cannot supervise Parliament as it does Magistrate Courts, Local Courts, Administrative bodies, Professional bodies exercising judicial or quash judicial powers”. And at Line 23 Page 206 to Lines 7-9 Page 207 of the record he went on to state the Provision of the Section 94(2) of the 1991 Constitution and conchided: “The purport of this application is in essence requiring this High Court to ‘enquire into Parliament's own internal proceedings” tis these salient parts of the learned judge’s ruling that has precipitated this appeal before us. ‘The Argument we Arguing the appeal Mr. Serry Kamal leaned counsel for the appellant submitted that the appellant came to the High Court under section 78 of the Constitution of Sierra Leone for leave to apply for an Order of Certiorari against the Respondents. ‘The resporident's Counsel took an objection under section 94(2) of the Constitution of Sierra Leone for leave to apply for an Order of certiorari against the respondents. Mr. Serry Kamal said section 170(4) of the Constitution preserves the existing law, therefore the learned trial judge ought to have granted the application. Continuing’ his argument he said the learned tral judge did not listen to him because of séction 94 of the Constitution and submitted that this section regulates the intemal procedure of Parliament. Membership of Parliament is regulated by section 77 of the Constitution. Finally he submitted with some degree of force that the composition of Standing Order 77) includes the Speaker and other member of Parliament. The report of the Committee showed that the Hon. Gaiva Labour acted as Chairman, He had no legal authority to do so. In support ofthis submission he cited the case of in the matter of J.T. Dixon 2 SLIR 1962. Page 67 at Page 69 and the case of Newns v, Macfoy 1960-61 1 ‘SLLR Page 232, In reply Mr. Farmer learned counsel for the respondent submitted that the leamed trial ¥ judge applied the correct principles of law. Parliament is not inferior to the High Court and therefore the High Court cannot supervise Parliament. Continuing his argument he . said that Section 134 of the Constitution is not applicable to Parliament e~sequently the High Court has no jurisdiction to entertain the matter.

Finally he submitted that Sections 77(e) and 80 do not apply to the instant case. This is not an Election Petition therefore the appellants cannot come to court. In answer to Mr. Farmer's reply, Mr. Serry Kamal submitted that the Committee was an z adjudicating authority and therefore section 134 of the constitution applies. Finally he urged the Court to set aside the ruling of the leamed trial judge and invoke section 31 of the Court of Appeal Rules and grant the Order for Certiorari quashing the report of the Committee of Parliament. It is evident that the leamed trial judge declined to assume jurisdiction because as he puts it “Parliament is not an inferior court or tribunal, the High court cannot supervise Parliament as it does the Magistrate Court etc”. It is obvious to me therefore, that the grounds of appeal (except Ground 4) and the summary of the argument canvassed by leamed counsel for the appellants and the respondent revolve around the all-important point of jurisdiction. Jurisdiction in my view ‘must be taken to establish the validity of the application before the learned trial judge. Jurisdiction (of the Court) Let me start by saying that every citizen of this country reserves the right to commence an action in our courts if he thinks that his right under the Constitution has been infringed. The issue whether the action will succeed is another matter. ‘The general principle-governing jurisdiction is that the court has no jurisdiction to deal ‘with hypothetical or academic question not grounded on reality or facts. The ambit or ‘compass of the question intended to be dealt with in exercise of the judicial powers in this country is vested in the 1965 Court Act and the 1991 Constitution and does not extend to hypothetical questions, or issues. Lord Summer in Russian Commercial and Industrial Bank v. British Bank (1921) A.C. (438 Page 452 had this to say on this point: “The question must be real and not theoretical. The person raising it must hw real interest 10 raise it and must be able 10 secure a proper opponent 1 someone presently existing who has the true interest 10 oppose the declaration sought” If a Constitution of a country states that the court has no jurisdiction in certain matters it is impossible for the court to assume jurisdiction on such matters. The court is incompetent. See Ohene Moore v, Akessey Taye 2WACA 43 at Page 46, Therefore the z court cannot arrogate to itself power which the constitution, the source of its power has excluded from i

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