Chang Young & Ors v Inspector-General of Police & Ors (MISC SC 1 of 2019) [2020] SLSC 7 (30 June 2020)

| IN THE SUPREME COURT OF SIERRA LEONE | | MISC. SC. 1/ 2019 | | BETWEEN: CHANG YOUNG & 10 OTHERS- — APPLICANT'S/ RESPONDENTS | | AND | THE INSPECTOR-GENERAL OF POLICE | GEORGE STREET | FREETOWN

THE ATTORNEY-GENERAI& | MINISTER OF JUSTICE LAW OFFICERS’ DEPARTMENT LAMINA SANKOH STREET, | FREETOWN- RESPONDENTS/ APPLICANTS. |

Coram

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1. HON. MS JUSTICE VIVIAN M. SOLOMON. JSC - PRESIDING | | 2, HON. MR. JUSTICE ALAN B. HALLOWAY. JSC | |

3. HON. MR, JUSTICE MANGEH F. DEEN=T&RAWALLY. JSC | 4, HON. MR. JUSTICE ALUSINE S. SESAY. - JSC |

5. HON. MR. JUSTICE SENGU M. KOROMA. - JSC | COUNSEL: |

1. C.F MARGAL ESQ.- FOR THE APPLICANTS/ RESPONDENTS | 2.

0. KANU ESQ.- FOR THE RESPONDENTS/ APPLICANTS |

MISC/APP.SC. 1/2019 RULING DELIVERED ELECTRONICALLY BY THE HON. MR. JUSTICE SENGU M. KOROMA JSC ON THE 4:}4DAY OF JUNE, 2020.

Ll. By a Notice of Motion dated the 3" day of April, 2019, the Respondents/Applicants herein (acreinaficr referred to as the “Applicants”) moved this Court for the following Orders:-

a. That this Honourable Court grants an Order distnissing the Notice of Motion dated the 19" day of February, 2019 (hereinafter referred to as the “Notice of Motion”) filed on behalf of the Applicants/Respondents for irregularity on the ground that the Applicants/Respondent failed to invoke the original jurisdiction of this court in secking a declaration that Section 18(1) (a) and (b), section 18 (2); and the provision to Section 21 (3) of Act No. Ff of 2000 violate and are inconsistent with Section 133 (1) of the constitution of Sierra Leone 1991 (Act No.6 of

b. Vhat this Honourable Court makes an Order dismissing the Notice of Motion on the ground that the Order ought to be made pursuant to Order 23 Rule 10 of the High Court Rules, C1, No.8 of 2007 to cure any accidental slip or omission made in the Ruling of 4" February, 2019.

c¢. That this Honourable Court do make an order staying all further or other proceedings in this action pending the hearing and determination of this Application herein.

d. An order for costs agaist the pplicants/Respondents

Y. At the hearing of the Application, the Applicant uses and relies on the allidavit of Precious Fewry sworn to on the 3" day of April, 2019,

Background

3. By a Notice of Motion dated 19° February, 2019, the Applicant (Respondent herein) moved this court seeking the following orders:

1). That the Supreme Court constituted by five

(5) Justices reverses in favour of the Applicants as may be appropriate the Ruling of the Supreme Court constituted by three

(8) Justices (namely, Justice D.B. Edwards CJ; Justice G. Thompson JSC and Justice N. Jones JSC) delivered on 4" February, 2019 refusing the Applicant’s Application contained in the Judges’ Summons dated 15" October, 2018, predicating their refusal on the provisions of Section 241) of the State Proceedings Act No.1 of 2000. 2). Alternatively, were the Court to hold that reference to Section 2E(L) of Act No.t bof 2000, in the Ruling delivered on t’ February, 2019 was a clerical: mistake arising from an accidental slip or omission, which could be cured by invoking Order 23 Rule 10 of the High Court Rules, CI No.8 of 2007, premising such view on the proviso to Section 21(4) of Act No. 14 of 2000, being the appropriate section to have been cited in the Ruling of t" February, 2019, then, the Applicants seck a declaration pursuant to Section 127(1) of Act No.6 of 1991 that Section [8(1) (a and b); Section [8(2); and the proviso to Section 21(8) of Act No. Lk of 2000, violate and are inconsistent with Section 21(3) of Act No.6 of 1991, as they attempt to curtail rights given by the said subsections to the individuals having claims against the Government, in the enforcement of such rights or claims as of right, and by reason of the premises, the Court to declare the said Sections and Subsections as void and having no legal effect in law and therefore, should vary the Ruling of 4" February, 2019 in favour of the Applicants. 3) That this Honourable Court departs from. the views expressed in paragraph 32 of the judgment of this court dated 20" March, 2018, as it is inconsistent with Paragraph 31 of the said Judgment, hence necessitating a variation of the same, by ordering appropriately. taking on board the provision of Section 20(1) (3) and (L) of Act No. 1b of 2000, pursuant to Section 122 (2) of Act. No. of 1991 and Section 126(b) of Act No.6 of 1991.

). The Court to grant such other/further relief(s) asthe justice of the case demands. 5). Costs im the cause AFFIDAVIT IN SUPPORT: 4. [shall refer to those aspects of this affidavit clearly setting out the Applicants case:

a. PARAGRAPH 3: ‘That this Honourable Supreme Court has not been granted the requisite jurisdiction for it to grant the Applicants the reliel(s) or Orders sought on the face of their Interlocutory Notice of Motion intituled: MISC.APP. 1/2019 in that the Supreme Court’s proper jurisdiction ts contained in Sections 122, 12 and 171 of the Constitution of Sierra Leone, 1991. That the said Notice of Motion does not invoke the Supreme Court Original jurisdiction.

b. PARAGRAPH k “Vhat the Supreme Court’s Original Jurisdiction can only be invoked by instituting an Originating Notice of Motion pursuant to Sections £22, 12 kand Section 171 (15) of the Constitution of Sierra Leone, 1994.

c PARAGRAPIL 5: Fhat this Notice of Motion is a_ fresh Application with a different tile MISG.APP. 1/2019) and not MISC.APP. 1/2018 on which the error occurred if it were meant for this Honourable Court to grant the reliefs set out in paragraph | of the Notice of Motion.

d. PARAGRAPIT 7: “Phat the Applicant/Respondents ignored the procedure to simply correst the error as contained in the Judgment but rather invited the Court to declare that Section 18(1) (a and b); Section [8(Q) and the proviso to Section 21 (3) of Act No.14 of 2000 violate and are inconsistent with Section 133(1) of the Constitution (ol Sierra Leone, Act No.6 of L991) as they attempt to curtail the rights given by the said Subsection to individuals haying claims against government in the enforcement of such claims as of rights.

Be 3

ce. PARAGRAPH 8, 9: merely repeated what had been averred in the forgomg paragraphs.

I PARAGRAPHS 10; | That for the above reasons, Tam craving the indulgence of this Honourable Court to decline jurisdiction and dismiss the action.

7. T note that in Paragraph 9, the Deponent uses the phrase “abuse of proc ‘ess’ in his affidavit in support and ‘dismiss’ on the face of hy motion paper. AFFIDAVIT IN OPPOSITION:

8 ‘Phis Affidavit herem was sworn to by Charles Francis Margai on the 19" day of February, 2019.

1 shall only consider those averments in the affidavit that are in answer to the allegations contained in the affidavit in support

9. In this affidavit, the Deponent gave a background to the present action. .As it is relevant in understanding the procedural history of this case, [shall summarise the key developments whilst reproducing. verbatim, the relevant parts.

10. PARAGRAPH 2: ‘That as Solicitors for the Applicants we had conduct of the Applicants (then Appellants) Appeal dated 28" October, 2010 in the Supreme Court as SC.CRIMAPP. 1/2010) between CHANG YOUNG CHIT & 10 ORS- APPELLANT AND THE INSPECTOR - GENERAL OF POLICE - RESPONDENT wherein there Supreme Court delivered Judgment on the 20" March, 2018 as per the Orders contained in the Judgment. Copy of the judgment is exhibited as CFM2 and CPM8.

a. PARAGRAPH 3: That following the Judgment, as Solicitor for the Appellants then, now Applicants, believing that the sum ordered to. be retumed to the Appellants was paid into the Judicial sub-treasury im satisfaction of the fine imposed, wrote a letter to the Master & Registrar of the High Court requesting compliance with the Court’s judgment on the 20" March, 2018. A copy of the letter is exhibited as CFM A

b. The Master & Registrar, had carlicr written to the Financial Secretary, Minister of Development and Economic development on 12" April, 2018

requesting a refund of payment made to the National Revenue Authority/consolidated revenue fund - CFMS. ©) ‘That by a Judges “Summony dated 22" June, 2018; the Court was asked to intervene in ensuring compliance with its Order contained in the Judgment of 20" March, 2018.

1. PARAGRAPH TL: That the Supreme Court heard the Summons dated 22" June, 2018 and on the 24" July, 2018 delivered its Ruling as it appears on the Registrar’s Certificate refusing the Orders sought, predicating its decision on the premise that, the Attorney-General and Minister of Justice is the appropriate Respondent to be before the Court and not the financial Secretary and that the Certificate of the Supreme Court's Judgment delivered on 20" March, 2018 should have been served on the Attorney-General and Minister of Justice(AGM]) as required by the State Proceedings Act, 2000.

12. PARAGRAPIT 12: Vhat in compliance with decision of the Supreme Court dated the 23" July, 2018, we addressed a letter to the Attorney-General and Minister of Justice dated 25° July, 2018 - CPM EE

13. Inthe said exhibit CFM Lt, Solicitors for the Appellants requested the AGMI to censure that the judgment is honoured. 1 PARAGRAPH 3: ‘That subsequent to exhibit CFM Hf, we filed (he Judges’ Summons dated 15° October, 2018 which was heard by three Justices (Justice D.B. Edwards CJ], Justice G. Thompson JSC and Justice N. Jones JSC) and on the ¥ February, 2019, the Court delivered its Ruling refusing the application. The Ruling is exhibited as CFM 15.

15. PARAGRAPH He That it will be observed from the Ruling exhibit CFM 15 page 2 paragraph 6 that the Court predicated its refusal on section 24) of the State Proceedings Act, 2000 as follows: a) Section 24(L) state as Follows: Except as in provided in this Section, no exccuuiot or attachntent or process... any such money or costs. 15: PARAGRAPH 13: ‘That with duc difference to the Supreme Court as then constituted, Section 2K) of the State Proceedings Act, 2000 deals with Discovery and Interrogatories and nothing more.

16. SUBMISSIONS OF COUNSEL. a. Counsel for the Applicant In his oral submission, Osman Kanu Fsq., Counsel for the Applicant relics on the affidavit of Precious Fewry sworn to on the 8" day of April, 2019, (Ihave already stated the relevant averments in the said affidavit herein, Mr. Kanu contends that the Application filed by Counsel for the Respondents borders, on the original jurisdiction of the Court. In his opinion, Section 122 of Act No.6 of 1991 makes it imperative on the Respondent to have invoked the Original Jurisdiction, failing which: this court is deprived of jurisdiction to hear the matter. In support of this submission, Counsel relies on the ease of SAM HINGA NORMAN -V- DR. SAMA BANYA & ORS S.C. 2/2005 (unreported). b) Mr. Kanu concludes on this point by reiterating that since the Application dated 19" April, 2019 does not mect the requirements of an Origmatng Notice of Motion, this Court: should dismiss the said Application.

17. On the second Order prayed lor in the Notice of Motion dated £9" day of February, 2019, Mr. Kanu opines that the clerical error referred to therem can be cured by a Notice of Motion filed pursuant to Order 23(10) of the High Court Rules, 2007. (The error referred to herein is that the Learned Justice of the Supreme Court in lier Judgment referred to Section 24(1) of the State proceedings Act, 2000 instead of Section 214) thereof. Mr. Kanu further argues that the Respondents failed to use the correct case number for the present Applicaton which is supposed to be a continuation of the existing matter intituled MISC. APP.1/2018.Vhey instead filed a fresh Application intituled MISC.APP 12019, Bo b

18. Mr. Kanu finally submits that the “Application” is predicated on Section 126 of the Constitution which is clearly inapplicable this case. 1) Counsel for the Respondent:

19. In his response, C.F. Margai Esq., Counsel for the Respondent herein prefaces his submissions by stating that the Application is misconceived. He refers to Paragraph 3 of the Mttidavit of Precious Fewry sworn to on the 3" day of April, 2009 in which she avers as follows: “That this Honourable Supreme Court has not been granted the requisite right’ for it to grant the Applicant the relief or Orders sought on the face of the interlocutory Notce of Motion intiuded MISC.APP. SC.1/2019 in that the Supreme Court's jurisdiction is contained in Section 122, 124 and L171 of the Constitution ol Sierra Leone L99L. That the said Notice of Motion does not invoke the Supreme Courts Original jurisdiction’. T must comment that the averment herein is confusing.

20. Mr. Margai subinits that the object of the Application is lor the full Court of 5 members to review the decision of 3 as authorised by law. ‘To require that such an application should be made by an Originating Notice of Motion is preposterous. An Originating Notice of Motion isan Application coming before the Court for the first time. To this extent, the SAM HINGA NORMAN case does not apply. QL. Mr. Marga further submits that their application is in respect of Sections: 126 (6) 127 and 17115) of Act No.6 of L9D1.

21. On the contention of Counsel for the .\pplicant that the clerical error could have been cured by Order 28 Rule (0 of the High Court Rules, 2007, Mr. Margai counters that the thrust of his application is not to seek a correction but rather for the five Judges to determine il it was a clerical mistake and if so, whether it is inconsistent with Section 1338(1) of the Constitution.

21. On the delect in the title of the acuon, Mr. Margai argues that it would not vitiate the Application. fia support of this, le refers to the case of AJ. Thomas -y- J. VAL DOHERTY & ORS. CIV.APP.28'72 (unreported) delivered on the 6" June, 197-4 = ‘Tejan JA at page 00.-clfect of irregularity traceable to the Count.

Bn t

Y2. Mr. Margai concludes by submitting that the arguments of Counsel for the Applicant should be overruled and that justice be done.

93. In his reply, Mr. Kamu reiterates that the Application of 19” February, 2019 is invoking the original jurisdiction of the Supreme Court and by Rule 89 of the Supreme Court Rules, 1992 the correct procedure has not been followed. ISSUES FOR DETERMINATION:

24. Tomy mind, there are vo main issues for determination in this matter to wit i) Whether the Respondent herein ought to have invoked the Original Jurisdiction of this Court in secking a declaration that Section I8(1) (a) and (b) SeeGion 18) (a) and (b): Section 18 (2); and the proviso to section 2113) of Act No.Lb of 20000 viokate and are inconsistent with the coustitution of Sicrra Leone. No.6 of L991, ii) Whether this Cot can disniiss the Notice of Motion dated 19" day of February, 2019 on the ground that the Order ought to be made pursuant to Order 23 Rule 10 of the High Court Rules, C.J. No.8 of 2007 ii) If the answer to cach of the loregoing issue ts tn the allirmative to strike out the matter. AT HORITIES CITED BY COUNSEL:

25. In addition to the provisions of the Constitution rched on by Counsel for the Applicant; he cites the case of SAMUEL PINGA NORMAN -V- DR. SAMA BANYA & ORS SC.2/2005 (unreported). In this case, the Supreme Court struck out the claims of the Applicant on the greund that they could not be granted in its Original Jurisdiction.

26. The Counsel for the Respondent on the other hand argued that the SAMUEL IINGA NORMAN case is inapplicable as while it deals with the Original jurisdiction of the Court, the present case is secking a reversal of the decision of three justices of the Supreme Court by a fall panel of five Justices. y

97. In determining the issues wherein, [shall additionally refer to the case of DR. SORIE. KENNEDY & ORS AND THE MINISTER OF LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT & ORS. ‘This matter was determined by the Supreme Court alicr the SAM TINGA NORMAN CASE but the both relate to the Original Jurtsdiction of the Court

28. I shall first consider the proper purport of the word “Jurisdiction”, Jurisdiction has been defined as the authority the court has i adjudicating a case brought it. In the HINGA NORMAN CASE, Rennet-Phomas C) gave a clarification regarding the use of the word “Jurisdiction” and the phrase “want of jurisdiction”. In his words, “the distinction is aptly dealt with in the followmg dicta of RICKFORD LJ in the case of GUARANTY TRUST COMPANY of NEW YORK -V- HLANNAY & COMPANY (£915) 2 KB 386 at page 368, “the word “jurisdiction” and the expression “lack of jurisdiction” are used in two different scnses which T often think leads to confusion. Vhe first and in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that ie has no power to deal with and decide the dispute as to the subjectmaticr before it, no matter in what form or by whom raised”. ¥9. “This distinction is important in determining whether the Notice of Motion dated 19” February, 2019 could be dealt with by the Supreme Court in any its Jurisdictions, either Originating, Appellant or Supervisory. For if it falls under either its appellate or supervisory jurisdiction, then it cannot be said that the Court lacks jurisdiction. If on the other hand, the content of the said Application falls under the Court’s Original jurisdiction, this court voll clearly lack jurisdiction.