All People's Congress v Nasmos & Anor (SC MISC APP 4 of 1996) [1999] SLSC 3 (26 October 1999)

of Be | Zl | oy DTH SUPREME COURT OF STRERA LEONE : a - ee SCeMISC «AEP 04/96 5 ‘BETWEEN . : ALL PHOPLE'S CONGRESS - PLAINTIFF AyD mss MINISTRY OF SOCTAL WELFARE : ‘TOUTE AND SPORTS - DerEDT : CCORAMs ok : Hone Mrs Justice D-B- Luke - Gakef Justice HondUreJustice A.B. Timbo - 380 : : Hondir-Justice HM. Joko-Suart - se Hons Mees Justice VeAeD. Wright - uA H HonsMr-Justice H-B-T- Thompson — TA i ‘A-Pe Sorry Kamal Beqey for the Plaintiff i ‘TGs Kobbe Bags, for Defendants. if * H TOVGGRT DELIVERED THB 26 DAY OF OCTOBER 1999 i i WIGHT, Jf This ie a constitutional reference by way of cased stated to 1 the Supreme Court made by ‘Nylander J. sitting in the High Court in which i he referred the following questions: _ _

(1) Is secs 133(1) of the 1991 Constitution in operative until | 8000133(2) is effected ty Parliament? !

(2) If the answer is in the negative oan the High Court Rules apply to - : put into operation se0+133(1) in the absence of Parliament effecting

(3) “What 4s the state of the parties right as at present in relation to 60061337 ' x some of ! T have bad the advantage of reading/the juignents delivered ty my | Leamed brothers eo I shall not go into the backgromd of the case or 4 the arguments raised by counsel on both sides. . | The Interpretation Act Wo.8 of 1971 defines government as "the | Government of Sierra: Leche (which shall be deemed to be a person) and includes bere appropriate any authority by which erecutive power of the | : state ia duly exercis . * ed in a particular case". I am of the opinion that " 4 aeee/2e 7

ae 2be v 2. oe aa myo Doth defendants answer to that description see se0.53(1) and se0+53(5) of the omstitutiony although this is not before the courts ‘The gravamen of this matter is the interpretation of section 133(1) and sectian 133(2) of the oostitutian of Sierra Lemme Act Now6 of 1991+ I hold the view that seotian$34 ani 5 of the Petition of Right Aot are void and inconsistent with seo-133(1) of the constitution which ie now inforce considering se0-171 (15) of the constitution which provides “« "The Constitution shall be the Supreme Law of Sierra Leue and any other law found to be inconsistent with any provisions of this constitution shall, to the extent of the inconsistency be void and of no effect. H I also hold that sectian$6,7 and 8 of the Petition of Right Act an “has not been repealed by implication ty section 133(1) and so 1s not i inconsistent with the constitution, and 1s still applicable. ‘ Section 177(1) of the Constitution s tatest ‘The existing lew shall notwithstanding the repeal of the constitution of Sierra Leone Act 1978, . : have effect after the entering of this omstitution as if they have’ been made in pursuance of this constitution and shall be read and construed with such modification§, edaptions, qualifications and exceptions as may . . de necessary to bring then in conformity vith thie constitution. Section 17%(2) whore any mtter that fails to be prescribed or otherwise provided for under this constitution by parliament or ty any : other authority or is prescribed or provided for by or under an existing lew ( inoluding any amendment to any such law made under this section) or otherwise presoribed or provided for immediately before the commencement « of thie Constitution by or waler the existing Constitution, that : presoripéion or provision shall as from the commencement of this constitution have effect with such modifications, alterations, qualification ; and exceptions as may be necessary to bring it into conformity with thie | constitution as if it had been made wmder this constitution by Parliament | or as the case may be, by the other authority or perso" | : The constitution ty its section 176 defines "existing law" ass ‘ * : “any Act, Rule, Regulation, order or other : , such instrument made in pursuance or continuing in . operation under, the existing constitution and having : SN o0e/Bey

¢ Ts t effect as part of the laws of Sierra Leone or any } part thereof immediately before the commencement . of this constitution". : As I said earlier the procedure under sections 6, 7 and 8 of the petition of Right have not been repealed and so prescribe the procedure under the existing law which is applicable in thie cases ; I have perused several authorities including cuiver Ashworth “ : (Holdings) Ltde ves Ballard (Kent) Ltde 1999 2 A«3eR« 79, Attomey ‘ General for Canada vse Haloet & Carey Ltde 1952 ACe427, Canada Sugar Refining Coe VR 1898 ACs 735 in deciding whether section 133(1) and i ‘section 133(2) of the constitution should be ready singularly or | conjmotively and to decide vhether section 133(1) is incoperative Hl until section 133(2) is effected ty Parliament. ! In the Sussex Peerage claim (1844)II CL & F85, 143 The juiges said: "EE any doubt arises from the terms employed by the ‘ Legislature, it has always bean held a safe means of ; collecting the intention to call in aid and the ground and cause of making the statute absolute, and to have recourse to the preambles which according to Chief Justice . Dyer in Stoweb vss Lord Zouch 1562 Floui 353 is a key to open the minds of the makers of the Act and the msachiefs which they intended to redresse" Quoted and approved by Lord Halsbury LC. in Income fax Commissioner vse Pen 1891 A-C+5316 See Craies on Statute Law 7th Sdition page 203. ~ In Magor and St. Mellons Rural District Council vs. Wew Port Gorporation 1950 2 A-ZeRe 1226 Lond Denning LaJ-saids "T confess, that I find it difficult to deal with _ these questions of interpretation in the abstract. i “I like to see their practical application." | In my view it vas obvious that the intention of the constitution i * . was that the claims could be brought against the government as : 4 considered necessary in accordance with sece133(1) of the constitution i ‘ which reads: ‘ : !

4 A -4- + ~ 1s Tae “Where a person has a claim against the government, that claim : nay be enforced as of right by proceedings taken against the government : for that purpose, without the grant of a fiat or the use of the process : imown as petition of Rights i The fact that the constitution further goes to say in seo.133(2) I. "Parliament shall ty an Act of Parliament make provision for the “ if exercise of Jurisdiction mder this section" does not preciuie sctians H in olaim against the government being taken nor is there any express : intention that the taking of eush action is dependent on parlianent J making sush ‘provisions It is ny view that the section stating that i parliament, should make such provision is merely to give assurance of a | aystenatised approach as to the practice and procedural steps for | ‘ taking such actions i In answer to the question which Nylander J. posed for directions \ to this conrti = . 4e To question 1' the answer is in the nogatives 2- ‘The answer to question 2 is in the affirmative. ' 3+ The party has all rights available to him ea when he is | suing another private person» i . VoheDe WRIGHT, JA « i

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