Chang Young Chi & 10 ORS v Inspector General of Police (SC CR APP 1 of 2010) [2018] SLSC 8 (25 March 2018)

elcal SC CR. APP. 1/2010 IN THE SUPREME COURT OF SIERRA LEONE CHANG YOUNG CHI & 10 ORS APPELLANTS AND THE INSPECTOR GENERAL OF POLICE RESPONDENT

Coram

‘The Hon Mr Justice A.H Charm, CHIEF JUSTICE The Hon Ms Justice G. Thompson, JSC The Hon Mrs N. Matturi-Jones, JSC ‘The Hon Mr Justice R.S. Fynn, JA ‘The Hon Mr Justice D. B. Edwards JA: C.F, Margai Esq. for the Appellants O11. Kanu Esq. Principal State Counsel, for the Respondent Judgment Delivered the day of March, 2018 G. THOMPSON, JSC 1, This is an appeal against the ruling of the Court of Appeal (E-E. Roberts JA, (as he then was) S.A. Ademosu JA, A. Showers JA as she then was)) on the following grounds: i. The Learned Judges of the Court of Appeal erred in law in coming to the conclusion that the application contained in the Notice of Motion dated 24% day of September 2010 had previously being (sic) made orally and refused. ii, The Learned Judges of the Court of Appeal were palpably wrong in law in holding “that the judgment of the Magistrate’s Court dated 4% September 2009 was not on appeal before this Court and since it is not still on appeal, we cannot entertain the present application, the result is that the application is 7 accordingly refused.”

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2. The Appellants, all foreign nationals, were convicted in the Magistrates Court, Magistrate Steven Conteh presiding, of the following offences, which are reproduced here as originally = drafted: Count 1 - Unlawful (sic) entering Fishery Waters of Sierra Leone contrary to Section 2 (1) of the Fishery (Management & Development) Act 2008. Count Il - Unlawfully using a foreign fishing vessel for the purpose (sic) of Fishing of the Fishery (Management and Development) Act 2008 Count Ill ~ Illegally engaging in Fishing within the Fishery Waters of Sierra Leone contrary to section 21 (1)(b) of Fishery (Management and Development) Act 2008

3. All the accused persons (now Appellants) pleaded guilty to all the charges on the 4‘ September 2009 and were fined US$50,000 each or equivalent in Leones in respect of the first two charges and US$5,000 each or equivalent in Leones in respect of the third charge.

4. I should at this stage state that these badly drafted charges are based on a non-existent legislation. There is simply no Fishery (Management and Development) Act 2008 in this jurisdiction, The relevant legislation dealing with the illegal fishing by foreign vessels in Sierra Leone is the Fishery (Management and Development) Act 1998 as amended by the Fishery (Management and Development) (Amendment) Act 2007. This Court has been provided with no explanation as to how such a serious and fundamental error occurred or why no steps were taken to correct it. This error was self-evidently fatal to the sustainability of the charges as drafted.

5. A further order was made for the travelling documents of the accused persons and their fishing vessel to be released.

6. On the 9® Septemicr 2009 on an application by the Learned a Director of Public Prosecutions (DPP), “to correct certain irregularities", the Learned Magistrate varied the sentences imposed and in <«!‘ition, ordered the confiscation of the fishing ~ vessel. By this tive the fines impos» on the 4 had teen paid

in full. Even if they had not been paid, the proceedings on the 9% were most unusual and irregular. Quite frankly the application should not have been entertained by the court. can find no legal basis for it.

7. By a letter dated 9% October 2009, C.F. Margai and Associates, solicitors acting for the Appellants wrote to the then Chief Justice, seeking a summary review of proceedings before the Magistrates Court pursuant to the Summary Review Act Chapter 17 of the Laws of Sierra Leone 1960 (Cap 17). The reasons given were as follows:

i. That there is no Fishery (Management and Development) Act 2008 which created the offences specified in the charge sheet.

ii, That section 53 (1) of the Criminal Procedure Act 1965 was breached in that the consent of the Attorney General had not been obtained before the commencement of the proceedings given, that the Appellants (the accused persons then) are foreign nationals.

8. By a letter dated 11% October 2009, the Master and Registrar replied to the solicitors informing them that the Learned Chief Justice was of the view that the complaints stated in the letter of the 9% October 2009 were not ones for review under Cap 17.

9. By an Originating Notice of Motion dated 17% November 2009, the Appellants applied to the High Court ‘for an order of Certiorari and Mandamus and any other consequential orders and directions to issue against His Worship Steven Conteh, presiding Magistrates Court Number 1, Freetown in the trial of the case of Inspector General of Police vs Chang Young and 10 others and the

judgement and sentences following thereunder respectively dated

the 4% and 9% September 2009 to be removed from the said

Magistrate Court into the High Court and thereunder to be

quashed on the grounds that the trial was a nullity as the said

charges are unknown to the Laws of Sierra Leone contrary to

section 23 (7) of the Constitution of Sierra Leone Act No 6 of 1991

as well as non-compliance with section 53 of the Criminal

“3 Procedure Act No32 of 1965.

That the verdict and sentences be set aside.

Ly other consequential order and/or rections which my appear ¥ cppropriate in the circumstances to 'y- ade by the court

10. On the 8 January 2010, N.C. Browne-Marke JA as he

was then, sitting as a High Court Judge delivered his 2 judgement refusing the Appellants’ application and ordered as follows: i That the Application dated 17% November 2009 is refused. ii Leave to appeal against the decision of His Worship Steven Conteh’s judgements dated 4 and 9% September 2009 is granted. ili. Applicants to file Notice of Appeal within 7 days of this order otherwise leave granted above will expire.

11. The Learned Judge stated that Judicial Review is a remedy of last resort. Further that the arguments by the Applicants (now Appellants) had considerable force which ought to have been presented to an Appellate Tribunal. (See page 94-95 of the Records)

12. The Appellants chose not to pursuc the appeal against the convictions for which leave had been granted by the Learned Judge, but instead, filed a Notice of Appeal to the Court of Appeal dated 10% March 2010 on the following grounds:

That the Learned Judge erred in law in refusing the Order for

Certiorari on the basis that the applicants should have exhausted their statutory rights of appeal before seeking an order for certiorari.

13. On the 9% April the Appellants filed amended grounds of Appeal as follows:

i That the Learned Trial Judge erred in law in not granting the Order of Certiorari on the basis that “it is my considered opinion that the Appellants appropriate remedy is an appeal”.

ii. That wherever it appears in the Notice and Grounds of

Appeal filed on the 10 day of March 2010, the words that 2 the “Appellonts should exhaust other remedies available to

them such as an appeal before seeking an Order of

Certiorari* should be replaced by the words “it is my

consides? opinion that the \vellants? approprict remedy ¥ is an appce

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