All People's Congress v NASMOS & Another (SC 4 of 1996) [1999] SLSC 11 (16 October 1999)

ae o24 + BO, We 196 RUBE SUPERG coup or stmgpa tions ‘BETWEEN: AOL PRORLA'S comamss —.puanynery AND musHos ‘MINISTRY OF SOCIAL WELFARE a - DEFENDANTS SONSTETUTIONAL REFERENCE BY WAY OF CASE stare

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HOM. MR. JUSTICE DEAF. LOKE > gee sete HON. MR, JUTICE A.B, 2080 ha HON. MR. JUSTICE H.M. JOKO SMART - ssc ‘HOM. MRS.JUSTICE VAD. WRIGET 8 HOM. MR. JUSTICE MB. TOLLM THOMPSON = JA AsPy SURRY KAMAL B5Q.5 POR | FLAINTIE Js, KOBBA BSQ., FOR TEFENDANTS . SWocwe peLIvenED o_DAY oF covoase 1999

‘Tals is « Constitutional reference by way of case stated by Nylander J,

© dudge of the High Court pureuant to Secs 12h (2) of the Constitution of Sierra Taowe det Moe 6 of 1991+ :

Sec. 142 (2) provides as followsi= Mare any question relating to any aatter or question as ie | referred to in Subsection (i) arises 4m any proceeding ia any court, other than the Suprene Court, that court shall stay the | Proceedings and refer the question of law involved to the | Supreae Court for deteraination, and the court in which the question arose shall dispoe* of the case in accordance with | the decision of the Suprene Courts” |

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os a ccs ‘The Plaintite, one of . the reco, Fecognieed political parties represeited in our Parliament initiated thts action by SM MY AWFE Of sumone dated the 9th day of Apri 1996 againet the Detentants herein, ae ‘The fret Defendant is on Organisation set ” m military gove heh resent Inow as the National Association for on Seore! tariat. The second Defendant is one of the Ministries in exiatence at the Nines Te Flaintittte claia against the Defendantes 1s Damages ‘tor treapass, 3% Becavery of posseasion of the penises inom as 39 Staua Stevens Str: Freetown, 3+ Monae profits at the rate of L44,000,000/00 per ano from the 29th April 1992 until possession is qielded. , ‘he Damages for conversion of air conditioners = 1410,000,007/00. S+ Damages formalicious daaage. 2 6+ Coat of reatoring prenieee ~ 1616,000,000/00, | Je Intereat on the aforesaid anounte and damages at the rate of 32% Per annum until payment.

8. A perpetual injunction to restrain the Defendante whether by haself hie sarvante or agente howsoever called from entering or remaining on the property known as 39 Siaka Stevens Street, Freetown or any part thereof. 9 Any further or other relief. 10, Costs . Korba, Hoge, State Counsel for the Defendants by & sotion dated the 5.0, Kobbay Eoaey grit 1996 sought to nat the eald writ Maside for Arregelarity and/or ua tuat the Plaintiff herein failed to coaply with the weieacape ied yf the lave of Sierra Leone in that he Provision of Petition of Bight, Cape 25 0! re gainat 1SHO5 AAD TW KIMISTRY OF SOCIAL VELARE YOU, seeet ee ng of the Motion, Counsel representing the Defendants Pas tae bearing 6! ‘AND sports’ At aie Court had no jurtediotion to try this matter | mubaitted that the leno fatied to couply with Caps 25 titled "Petitions of ro bare Because the plaintift Laone 1360 8, 4 of the said Iegislation, maken | Right” of the Lava of Serra 1 and B15 arkes provision for fiat before | to commence! reviaton tov thn aut 08 wd the relevant sections in mppert of 4 out and erred Proeveutions Gounesh TH Tan irregularly Saeveds Counsel urged the oot hin arguaent that the present ¥T) L de the writ a praveds | therefore to ast aside PBaveeee

* to this “pplication, Counsel Se; | paadatitte reterres tne ee 'rry-Kanal, Kage, representing the | | Comet £0 Be 135 (41) of the conatt an ‘ natitution of Sierra Leone / mts enction rade un fettouas, { Sears o | ‘Pereon bas & claia against the Govermment, that | ‘lain may be enforced } . as of right by ‘Proceedings taken ‘he Goverment. for. that ‘Purpose, without the erent of a ‘we | flat ‘the wee of the process Raown as Petition \ of Right j Counsel reat . ° Feated hie argument ox thie aubvesgtion and aaked the court to dlmmie } the application. | Gomel for the defendants then aaked for an adjournment to prepere hie Besly

At the remmed hearing defendants’ Counsel subaitted that 8 1335 (i) of the 1991 Constitution provides certain Rights vAich are aot in Aleputen But Bu 155 (2 station that ParLiaaent,ahall make provision for the exarciae of auch righte, ‘thie sub-section reste a follovel=

"Parlinaent stall, by an Act of Parlianent, make provision for the exaroiae of furiadiotion under thts eectioa", -

Counsel pointed out that Be 133 (1) 40 aot operative tutil B, 153 (2) te stfeoted by FasLinnent Ta the iateria all caine againet the Goverment aust couply with Caps. 23 of the Lave of Sierra Leones Counsel urges the Court to great || his application as prayeds Waerenpon the learned ‘trial Judge ruled as follovat~

‘Tap Legal interpretation 1a ay, view apine around the present ettect of e135 (A) of the 1991 Constitution and wat fect 6.125 (2) has om it preasatiys Au thin to ay aind touches on, tbe tnteryretation of 8, 135 40 a viles Presentiy,

Z hereby dnvoke Be, 124 (2) of the 1991 Constitution wich reade ax followet~ snemare any question relating to any aatter or question as ta referred to in Subsection (1) (Interpretation of the ee | the Supraue courty that Court stall atay proseedings and refer the question of lay tavolvad to C2 Zaprene Genre lsh, the question areee for detéraiaations and the Court 3% . dance vith the dectaton of shall dispose of the cn? foes | courte aia sroving question for the Buprane Courts i I therefore pose the £0) ye |

* Zéet ||

1 Te 5+ 135 (4) of the 1994 constitution in operative until 8. 133 (2) te | effected by ParLianentt

2% 1 the anevar ie Sm the avgative, oan the High Court Ralee apply to put inte | operation & 133 (1) in the absence of Parlioneat effecting 8. 133 (2)? |

J Wat 0 the state of a party'a right, an at present in relation to Be 153 (2 fomtri ater teny NEE {0 stared uatha the supreme Court's dectaton ¢

(Sgde) Nylander J.

Before evcking to anever the questions posed by the learned trial Judge, it | fsonns to me that it vould be helpful to consider the position of laine by privat Persons againat the Goverment prior to the tet October 1991 when the Present Constitution of Sierra Leone Act to. 6 of 1991 cane inte beings ‘BRISTING Lay PRIOR TO 97 corosme 1991 |

‘The existing law prier te tet October 1991 is te be found in Cap, 23 of the | ‘Tawa of Sierra Leone 1960 Sections 3, 4, and 5 of which read as follows!= |

Se So es |

oF agatast the Goverment of any other Colony, being of | he same nature an elaine vaich might have been preferred | ‘against the Crown is Eogland before the enactment of the | Grown Proceedings Act, 1947, by petition, manifestation, or plea of right, aay, vith the comseat of the Governor, bbe preferred in the Saprene Court in a sult: instituted by the claimant as plaintiff, against the Attorney General, as defendant, of auch other officer as the Governor may fron tinplate for that person Section 4 makes provision bow the suit is to commence: he ‘The claimant under this Orgisaace"shell not iszue a writ” ‘of summons, but the suit sballbe comenced by the filing of a statenent of claia in the Supreme Court, and the aetivering of « copy thereof at the office of the Attorasy General, or other officer desiguted as afereentd, and no | foe shall be payable on filing or delivering ouch statenent, | dnd Section 5 ankes provision for the fiat before prosecutions [5ereee

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