Basma & Macauley v Attorney-General & Minister of Justice (CIV APP 7 of 2020) [2021] SLCA 28 (31 May 2021)

A

Commission of Inquiry . Appeal No.7/2020 2020 . IN THE COURT OF APPFAL FOR SIERRA LEONE, 1991(ACT NO.6 OF 1991) . PART IX (COMMISSION OF INQUIRY), SECTIONS 147-149 (INCLUSIVE). IN THE MATTER OF CONSTITUTIONAL INSTRUMENT NO.64 OF 2018 NO.64 OF 2018 THE COMMISSION OF INQUIRY (EXAMINATION, INQUIRY AND INVESTIGATION) NOTICE (1) 2018 JUSTICE BIOBELE GEONQEWILL COMMISSION OF INQUIRY BETWEEN: BASMA & MACAULEY (AGRM) —- —_APPELLANT/APPLICANT 26 MAIN MOTOR ROAD, BROOK FIELDS, FREETOWN AND ATTORNEY-GENERAL AND - _ RESPONDENT/RESPONDENT MINISTER OF JUSTICE GUMA BUILDING ALMINA SANKOH STREET FREETOWN

Coram

HON. JUSTICE M.P. MAMI J.A. - Presiding HON. JUSTICE S.0. TAYLOR J.A. HON. A.K. MUSA J. COUNSEL Y. WILLIAMS ESQ. -FOR THE APPELLANT/APPLICANT S. KHATUMAL A.SURUR -FOR THE RESPONDENT/RESPONDENT P. WILLIAMS ESQ.

The Court of Appeal is seised of an application dated the 31* day of May, 2021 . taken out and filed by Yada Williams & Associates, solicitors for the : Appellant/Applicant praying for the following reliefs: - 1, That this Honourable Court do make an order allowing the i. Appellant/Applicant to adduce new evidence in the above appeal, to wit, the following letters: -

(i) Letter dated the 25 of March, 2015 from Franklyn Bai Kargbo, Attorney-General and Minister of Justice to the Appellant/Applicant

(ii) Letter dated the 24 of April 2015 from the Appellant/Applicant to Franklyn Bai Kargbo Attorney-General and Minister of Justice; and

(iii) Letter dated the 8% of April 2015 from the Appellant/Applicant to Franklyn Bai Kargbo, Attorney-General & Minister of Justice.

Copies of which are marked “BMJ 4”, “BMJ4B", and "BMJ4C" respectively as exhibits to the affidavit of Berthan Macauley Jnr. Sworn to on the 25" of May, 2021 in support of this application by way of affidavit evidence, pursuant to the court of Appeal Rules, statutory instrument No.29 of 1985, Rule 27.

2. That this Honourable Court to make an order granting the Appellant/Applicant leave to alleged that the Respondent/Respondent has admitted that it has received exculpatory evidence in relation to the Appellant/Applicant and or Berthan Macauley Jnr.; a partner in the said firm with regards the report and the Government white paper (as defined in the attached affidavit in support) for which evidence is to be adduced in support thereof, to wit the following letter:

(1) _ Letter dated the 8 of December 2020 from Anthony Y. Brewah, Attorney-General and Minister of Justice to, interalia the Inspector- General of police, a copy of which is marked “BMJS” as an exhibit of the affidavit of Berthan Macauley Jnr. Sworn to on the 25" of May,

2021 in support of this application by way of affidavit evidence

pursuant to the Court of Appeal Rules, Statutory Instrument No.29 of

1985; Rule 27

x

3. Any other order that this Honourable Court may deem fit and just

4. That the costs of this application be that of the Appellant/Applicant . ‘This application is supported by the affidavit of Berthan Macauley Jnr. Sworn 7 . toon the 25% day of May, 2021 and filed herein * Exhibit “BMJ1” - Notice of appeal Exhibit “BMJ 2 & 3” - Report of The Commission of Inquiry EXHIBIT “BMJ3" White Paper on the report of the Hon. Sir Justice Biobele Georgewill Exhibit “BMJ4” ~ letter dated 25% March, 2015 addressed to Messrs, Basma Barrister & Solicitors from Franklyn Bai-Kargbo Attorney-General and Minister of Justice from Basma & Macauley Exhibit “BMJ4C”- Letter dated 8" April, 2015 to Franklyn Bai-Kargbo Attorney-General and Minister of Justice from Basma & Macauley Exhibit “BMJ5” - Letter dated 8 December, 2020 from the office of the Attorney-General and Minister of Justice Exhibit “BMJ6” - Extract of volume 1 of the report Exhibit “BMJ7” - White Paper Yada Williams Esq. counsel for the Applicant submit as follows: That they rely on the entire contents of the affidavit with its supplement and submit that the appellant were neither public servants nor were they persons holding any of the positions referred to in the T.O.R of constitutional Instrument No.64 of 2018. That they were never given an opportunity to be heard, and were never privy to the sittings of the commission for which adverse ruling was made against them. ‘That the evidence that they are seeking to adduce is “fresh” in every sense of the word, and that the application is made pursuant to Rule 27 of the COA Rules of 1885

He refers to the “exculpatory” evidence in the last referred letter from the > Attorney General & Minister of Justice, which is exhibited as “BMJ5”, with its

. tacit admission on the report and the White Paper, in so far as it pertains to the appellant.

7 He submit that there were disparaging findings made about the Appellant on this report albeit from findings for which the appellant were ignorant about, which he further submit is a breach of the fundamental principles of natural justice, which is a cornerstone of fair hearing for tribunals and court of Law. He further submit that they are also seeking to remedy a grave injustice which the Appellant has since suffered, and in the process set the records straight, With reference to the appellant's relationship with that of the appellant having a legitimate contract, he refers to Section 3 of the Law Officers Act No.6 of 1965, which he surmises provide for amongst other things, the right of the

government of Sierra Leone to contract the Services of External Counsel. He refers this court to the case of Ladd V. Marshall 1954 1 WLR 1489 as the lead authority which has laid the test over the years for consideration by courts in the admission of fresh evidence considered as key in the determination of the issue. He submit that it involves 3 interrelated issues which the court, ought to take into consideration in the determination of this matter, which are: - * Itmust be shown that the evidence could not have been obtained with reasonable diligence for use at the trial The evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive * The evidence must be such that if given it would probably have an impartial influence on the result of the case although it need not be decisive the evidence must be such as presumably to be believed of in other words it must be apparently credible. In this regard, he refers the court to the Annual Practice 1999 page 1065. under the Rubric. “Where there not been a trial of hear ‘ing on the merits”

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