All People’s Congress v National Action for Social Mobilization Secretariat (NASMOS) & Another [1999] SLSC 8 (26 October 1999)

ALL PEOPLE’S CONGRESS v NATIONAL ACTION FOR SOCIAL MOBILIZATION SECRETARIAT (NASMOS) & ANOTHER SC SUPREME COURT OF SIERRA LEONE, Miscellaneous Application 4 of 1999, Hon Mr Justice DE Luke CJ, Hon Mr Justice AB Timbo JSC, Hon Mr Justice HM Joko-Smart JSC, Hon Mrs Justice VAD Wright JA, Hon Mr Justice MET Thompson JA, 26 October 1999

[1] Constitutional Law – Claims against Government – Petition of right – Whether petition of right process abolished by 1991 Constitution – Whether s 133(1) inoperative until effected by s 133(2) – Whether procedure set out in Petitions of Right Act 1960 ss 6-8 still operative – Preservation of individual rights – Constitution of Sierra Leone s 133(1), (2)

[2] Civil Procedure – Claims against Government – Liability of Crown at common law explained – Petition of right process abolished – Constitution of Sierra Leone s 133(1), (2) – Petitions of Right Act 1960

[3] Statutory Interpretation – Constitution – Literal and purposive approach – Preservation of remedies against Government – Constitution to be read as a whole – Constitution of Sierra Leone s 133(1), (2)

[4] Words and Phrases – “Government of Sierra Leone”

On 9 April 1996, the plaintiff, a political party recognized in the Parliament of Sierra Leone, made a claim in the High Court against the defendants , the National Action for Social Mobilization Secretariat (NASMOS) and the Ministry of Social Welfare, Youth and Sports, for possession of premises and a number of related claims. The defendants submitted that the claim be set aside for irregularity in that it failed to comply with the Petitions of Right Act (Cap 23) 1960 which prescribed the manner in which an action against the Government could be commenced. The plaintiff argue d that s 133(1) of the 1991 Constitution abolished the requirement for a fiat or process of petition of right . Nylander J referred the question to the Supreme Court pursuant to s 124(2) of the Constitution . The main question was whether s 133(1) of the Constitution was inoperative until s 133(2) was effected by Parliament.

Held, per Joko-Smart JSC, Wright JA, Timbo JSC & Desmond Luke CJ concurring, that the procedural requirement for a fiat or petition of right to commence proceedings against the Government had been abolished by s 133(1) of the Constitution:

1. The Interpretation Act 1971 defines government as “the Government of Sierra Leone (which shall be deemed to be a person) and includes, where appropriate, any authority by which executive power of the State is duly exercised in a particular case”. There was no doubt that the second defendant is part of the Government of Sierra Leone as it exercises some executive power of the State under the Constitution.

2. Two rules of statutory construction must be considered in the interpretation of s 133(1) and (2) of the Constitution. One is the literal rule and one is the purposive rule. If the words of a statute are themselves precise and unambiguous then no more is necessary than to expound these words in their natural and ordinary sense. Where the ordinary words in themselves may be misleading and in order to make assurance doubly sure, it might be necessary to examine the context including the subject matter, the scope, purpose and, if need be, the background of the legislation in order to give effect to the true purpose of the legislation. The Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034; Charles Leader & Anor v George Duffey & Anor (1888) 13 AC 294; Pepper v Hart [1993] 1 All ER 42; Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791 followed; Canada Sugar Refining Company Ltd v The Queen [1898] AC 735 distinguished.

3. The language of s 133(1) of the Constitution is plain and could be read literally. It was clear from s 133(1) that the Sierra Leone Parliament intended to make the Government answerable to persons for all wrongs as if the Government was any other person. This recognized the fact that a Government in a Republic with a written Constitution does not enjoy any more rights than those conferred by the Constitution, thus curtailing the common law prerogatives of the sovereign.

4. Section 133(2) of the Constitution was also clear and could be read literally. The purpose of the legislature was to abolish the petition of right process. There was no inconsistency or ambiguity between s 133(1) and (2) or any words to suggest that both subsections were linked contemporaneously or that one was dependent on the other. Therefore, ss 3, 4 and 5 of the Petitions of Right Act 1960 were inconsistent with s 133(1) of the Constitution and were now void. Magor & St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 applied.

5. The Constitution did not repeal the Petitions of Right Act in its entirety; it repealed the substantive law provision in s 3 and only the fiat and its concomitant process in ss 4 &

5. This was what was accomplished by s 133(1). The procedure under ss 6, 7 & 8 remains untouched and it is the procedure to follow in the presence of parliamentary inactivity. Sections 6, 7 and 8 of the Petitions of Right Act 1960, which deal with aspects of the procedure to be followed in an action against the Government, had not been expressly or impliedly repealed by s 133(1) of the Constitution. In the absence of an Act of Parliament pursuant to s 133(2), the existing law as to procedure must be followed. Parliament has not as yet passed legislation to provide for a new jurisdiction governing actions by persons against the Government but that does not mean that private citizens are to be deprived of remedy against the Government with the abolition of the fiat and the petition of right procedure. Attorney General of Canada v Hallett & Carey Ltd [1952] AC 427 applied. Per Wright JA:

6. The purpose of s 133(2) stating that Parliament should make such provision was merely to give assurance of a systemized approach as to the practice and procedural steps for taking action against the Government. Per Timbo JSC:

7. As a general rule of construction, a Constitution, like a statute, must be read as a whole. In other words, the entire Constitution should be examined for the purpose of determining the intention of each section or part. This is what is often referred to as the principle o f harmonious construction. Its aim is to reconcile different provisions of the Constitution.

Cases referred to Adegbenro v Akintola [1963] AC 614 AK Gopalan v The State of Madras (1950) SCR 88 Attorney General v De Keyser’s Royal Hotel [1920] AC 508 Attorney General of Canada v Attorney General of Ontario and others [1931] UKPC 93 Attorney General of Canada v Hallett & Carey Ltd [1952] AC 427 Attorney General (Cth) v Colonial Sugar Refining Company Ltd [1914] AC 237 Attorney General for New South Wales v Brewery Employees’ Union of NSW (1908) 6 CLR 469 Bank of Toronto v Lambe (1887) 12 App Cas 575 British Coal Corporation v The King [1935] AC 500

Canada Sugar Refining Company Ltd v The Queen [1898] AC 735 Charles Leader & Anor v George Duffey & Anor (1888) 13 AC 294 Churchward v R [1865] 1 QB 173 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 Cooper v Hawkins [1904] 2 KB 164 Curtis v Stovin (1889) 22 QBD 512 Dunn v The Queen [1896] 1 QB 117 Edwards v Attorney General for Canada [1930] AC 124 Ellis v Home Office [1953] 2 QB 135 Feather v The Queen (1865) 6 B&S 257 Homsey Urban District Council v Hennell [1902] 2 KB 73 Leader v Duffey (1888) 13 App Cas 294 Leaman v The King [1920] 3 KB 663 M’Culloch v State of Maryland 17 US (4 Wheaton) 316 (1819) Magor & St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 Minister of Pensions v Robertson [1949] 1 KB 227 Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791 Pepper v Hart [1993] 1 All ER 42 Qureshi v State of Bihar (1959) SCR 629 Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 State of Bombay v Bombay Education Society (1955) SCR 568 State of Madras v Champakam (1951) SCR 525 State of Punjab v Ajaib Singh (1953) SCR 254 The Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034 Thomas v The Queen (1874) LR 10 QB 31 Warburton v Loveland (1828) 1 H & B 623

Legislation referred to British North America Act 1867 [UK] Constitution of Sierra Leone (1991) ss 21, 28, 53(1), (5), 108(3), 122, 124(1), (2), 133(1),

County Courts Act 1888 s 65 [UK] Court Acts (Cap 7)1960 (repealed) Courts Act 1965 Crown Proceedings Act 1947 s 1[UK] Customs Act 1896 s 150 [Canada] Interpretation Act 1971 Law (Adaptation) Act 1972 Limitation Act 1939 [UK] National Emergency Transitional Powers Act 1945 s 2(1) [Canada] Petitions of Right Act (Cap 23) 1960 ss 3, 4, 5, 6, 7, 8 Petitions of Right Act 1860 [UK]

Other sources referred to: Craies on Statutes, 7th Edition, 1985 at pp 203, 366 The Two Gentlemen of Verona (Act 2 scene 5)

Appeal This was a constitutional reference to the Supreme Court made by Nylander J sitting as judge in the High Court pursuant to s 124(2) of the Constitution of Sierra Leone Act No 6 of 1991 seeking the Supreme Court’s interpretation of s 133 of the Constit ution. The background to the reference appears sufficiently in the following judgment of Joko-Smart JSC.

Mr AF Serry-Kamal for the plaintiff. Mr JG Kobba for the defendants. JOKO-SMART JSC: This is a constitutional reference to the Supreme Court made by Nylander J sitting as judge in the High Court pursuant to s 124(2) of the Constitution of Sierra Leone (1991) Act No 6 of 1991 which reads: “Where any question relating to any matter or question as is referred to in subsection (1) arises in any proceeding in any court, other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the Court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” Section 124(l) (a) vests original jurisdiction in the Supreme Court to determine the matter raised in s 124(2). It provides as follows: “The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all Courts: (a) in all matters relating to the enforcement or interpretation of any provision of th is Constitution.” The main thrust of this reference is the interpretation of s 133 of the Constitution which states:

(1) Where a person has a claim against the Government, that claim may 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 known as Petition of Right.

(2) Parliament shall, by an Act of Parliament, make provision for the exercise of jurisdiction under this section. The background to the reference An action was begun in the High Court between the plaintiff, the All People’s Congress, and the defendants, the National Action for Social Mobilization Secretariat (NASMOS) and the Ministry of Social Welfare, Youth and Sports by writ of summons dated 9 April 1996. In the action, the plaintiff's claims against the defendants were, inter alia:

1. Recovery of possession of premises known as 39 Siaka Stevens Street, Freetown.

2. Mesne profits at the rate of Le4,000,000 per annum from 29 April 1992 until possession is yielded up.

3. Damages for trespass.

4. A perpetual injunction to restrain the defendants whether by themselves, their servants or agents howsoever called from entering or remaining on the said property.

5. Damages for conversion of air conditioners.

6. Malicious damage

7. Interest. On 30 April 1996 the defendants filed a motion in the High Court praying for the following

Orders

1. That the said writ of summons be set aside for irregularity and for informality on the grounds that the plaintiff failed to comply with the provisions of the Petitions of Right Act (Cap 23) 1960 of the laws of Sierra Leone, in that the plaintiff issued a writ of summons against NASMOS and the Ministry of Social Welfare Youth and Sports.

2. That the plaintiff pays the costs of the application. At the hearing of the application, counsel for the defendants submitted that the court had no jurisdiction to try the case because the plaintiff had failed to comply with the Petitions of Right Act (Cap 23), articulating that s 4 of the said Act prescribed the manner of commencement of a suit against the Government and that s 5 of the Act made provision for a fiat to be obtained before an action could be commenced against the defendants. In answer, Counsel for the plaintiff referred to s 133(1) of the Constitution submitting that the plaintiff did not require a fiat or process by petition of right and that that process had been abolished from the date that the Constitution came into force. In reply to the plaintiff counsel’s counter submission, counsel for the defendants stressed that Parliament has not as yet passed an Act for the conferment of jurisdiction as provided for under s 133(2) of the Constitution, and he urged the court to rule that s 133(1) becomes operative only when s 133(2) has been complied with. It is against this background that Nylander J saw a need for the interpretation of the two subsections of s 133 and stayed proceedings and made this reference in accordance with s 124(2) of the Constitution posing the following questions for determination:

1. Is s 133(1) of the Constitution inoperative until s l33(2) is effected by Parliament?

2. If the answer is in the negative, can the High Court Rules apply to put in operation s 133(1) in the absence of Parliament effecting s 133(2)?

3. What is the state of a party’s right as at present in relation to s 133(1)? In order to illuminate the process of interpretation of the two subsections of s 133 I find it necessary first to outline the law on the type of rights for which a person could sue the Government before the passage of the 1991 Constitution. Proceedings against Government prior to 1991 The home-grown legislation was the Petitions of Right Act (Cap 23) 1960 of the Laws of Sierra Leone. Section 3 of the Act provided: “All claims against the Government of the Colony or against the Government of any other Colony, being of the same nature as claims which might have been preferred against the Crown in England before the enactment of the Crown Proceedi ngs Act 1947, by petition, manifestation, or plea of right, may, with the consent of the Governor be preferred in the Supreme Court in a suit instituted by the claimant as plaintiff against the Attorney General as defendant, or such other officer as the Governor may from time to time designate for that purpose". For clarity of purpose, it should be born in mind that under the Interpretation Act 1971 and the Law (Adaptation) Act 1972, Sierra Leone, the Attorney General and the High Court replaced the Colony, Governor and Supreme Court mutatis mutandis in the Petitions of Right Act. What s 3 of the Act achieved was to transplant to Siena Leone English law on the rights inherent in private citizens against the sovereign when they suffered wrongs at his hands. As an aid to the complete understanding of the issue before us I find it relevant to ascertain, even in broad outline, what the law was on suing the Crown. Under the common law, there were two main rules governing the liability of the Crown and its servants. One was a substantive rule of law and the other was procedural. I shall deal with the latter in due course but for now I will adumbrate the former. The substantive rule was that the King can do no wrong expressed in the Latin maxim rex non potest peccare. It was an ancient and fundamental principle of the unwritten English Constitution. Though in a personal sense the King was deemed to be incapable of doing wrong, yet some of his acts could in themselves be contrary to law, and on that account, the law could step in and set them aside. The King was considered as a benevolent lord who when it came to certain rights of his subjects in some respects would not be seen to trample upon them with impunity. With the emergence of government departments when the Crown, through its servants acting on its behalf, descended into the commercial arena, it became essential that the Crown should at least be made liable to its subjects for contracts into which it entered with them. (See Thomas v The Queen (1874) LR 10 QB 31; Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 at p 503 per Rowlatt J). But it was not for every type of contract that redress was available to the subject for its breach; liability depended on the terms of the contract as the case may be. If, for example, the contract provided for money to be paid out of funds voted by Parliament and no vote was made there was no remedy (see Churchward v R [1865] 1 QB 173). There was also liability for compensation for property of the subject taken by the Crown either arbitrarily or under statute (see Attorney General v De Keyser’s Royal Hotel [1920] AC 508; Feather v The Queen (1865) 6 B&S 257). In this regard, for the Crown to be liable under statute, the statute must impose an obligation on it expressly or by implication (see Cooper v Hawkins [1904] 2 KB 164; Homsey Urban District Council v Hennell [1902] 2 KB 73). Outside these two grey areas, the Crown’s subjects did not have recourse against the Crown for its wrongs. I will briefly mention some of these areas of disadvantage. One was the defence of executive necessity which was available to the Crown for its future action if it was dictated by the needs of the community. Under this defence the Crown could not by contract hamper its freedom of action in matters which concerned the welfare of the state. Thus in the Amphitrite case, supra, Rowlatt J held that an undertaking given by the British Government to neutral ships during World War I that if they sent their ships to British ports with a particular cargo they would not be detained, was not binding on the government and that it was free to withdraw the undertaking and refuse clearance on the ground that the Crown was not competent to make a contract which would have the effect of limiting its power of executive action in the future. Rowlatt J, however , made a reservation that the defence would not be applicable to ordinary commercial contracts (see at p 503). Denning J (as he then was), commenting on the stance of Rowlatt J, placed limitations on the defence holding that it only availed the Crown where there was an implied term in a contract to that effect or that it was the true meaning of the contract that the defence should apply (see Minister of Pensions v Robertson [1949] 1 KB 227 at p 231). Further, there was no remedy at common law for wrongful dismissal by the Crown of its servants (see Dunn v The Queen [1896] 1 QB 117 per Lord Herschell at p 120; and Acton J in Leaman v The King [1920] 3 KB 663). No mesne profit was payable by the Crown for the recovery of possession of property unless there was a contract for such payment or statute provided as such (see Attorney General v De Keyser’s Royal Hotel [1920] AC 508). There could also be no order for the restitution of property although the court could make a declaration that the subject/plaintiff was entitled to the property as against the Crown. Furthermore, equitable remedies like injunction and decree of specific performance were not available against the Crown nor could there be discovery of documents against it if to do so would be injurious to the interest of the public (see Ellis v Home Office [1953] 2 QB 135). There was no period of limitation for actions by the Crown except that for the recovery of land the period was 60 years reduced to 30 years by the Limitation Act 1939 instead of the ordinary period of 12 years. Finally, the most frequent wrongs that were suffered by the subject were tortious for which there was no remedy (see Attorney General v De Keyser's Royal Hotel [1920] AC 508 per Lord Dunedin at p 522 and per