Dr Harry Will v Attorney General & Minister of Justice (SC MISC APP 7 of 1999) [2000] SLSC 22 (23 March 2000)

80. MERC. APE. NO. 7/99 2% DUD suPRoKe covRT oF sizasa LioM IN THE warren Sten Senet SEM APELICATION wioua suction 125 oF mis constitution or < RULES 4982 roa LEAVE 0 APrEy po 21) 2) OF TEE sUPRDME covet nO coerionuat, . DESEARASION At Toy APEME YOR ORDERS Gr 5 MOMS, PRGEBTTICN 10 mM warren IN Haw Couey 9p,jRLIM oxven on 19m ccrosse 1999 BY Tax PacstDING JeOae In Procaxorica Cy 2ie"= SNOUARLE Ma, JsTice avo, sB-DuEN WCE In is SAtD fog, CHIMTML ThRaUGTON Dato Sons ALDWET 1999 PEO is Wage orna SOT NOLOEN aH Phuttown Ako PULED ERE SECS tae rime, + BOCKARTE KAEAY (SHADING Ao HARLANA SOK BETVEER= DR. HARRY WILL wari AND . : ATTORNGY-G2NGRAL & MINISTER OF JUSTICE = fesPORDLKT conan : HON. KR JUSTICE D.E.F LIKS == Gade HON. MR, JUSTICE MoO. ADOPT = 45.60 ‘HON. MR. JUSTICE A.B. TIMBO TSC. . HON. HG. JUSTICE HoMs JOKO-SWART = 445.0. HON. MR. JUSTICE $.C.E. WARNE = J4S.C0 ‘DR. BU=BUAKEI JABBI = FOR THE APPLICANT . ‘Ade SOLOMON BEREWAH, D.P.Ps Bs KEBBIE AND Py SCHVARE ~ FOR TZ RESFONENE yd: otra pexrvinip ow sue 25 pay oF wancu 2000 Jleation by way of action for leave to apply for DUK, CoJet~ ‘Thies is an appl ny way Ply orders of certiorari, mandamus, prohibition and related declarations and direction ~ gn renpect of the ruling given on 11th Cctober 1999 by the Learned Presiding Judgi in proceedings on the aforomald Ciainal Inforetion dated 30th hugut 1953 isinal Inforeation aforesaid and at present stay of Proceedings founded on the Cristaat re teraination by the Suprene Court of pending 1n the High Court aforeaidy wstit ote ny the Supe qubatantive application for which leave i being sought herein, if and hes o ta further order in respect thereof by this hosourabl fe granted, or un! uch Leave courts . 3 P2o00e

: 2 ZU 1 4 direotion, if nece tn the $4; S**Ary, an to the appropriate format for citation of partion mn the ttle oF he " F a Reading of an application for leave to apply for orders of certiorari, eto., 9 = ‘ther than the format an to chtation of particn to thie application as set ou t out in the above title or heading hereof, in circumstances « waere the Leave being ao west Le in respect of a decision, Judgrent or order mds oF given by 0 Judge 'Y 8 Tadee presiding in a matter pending in the High Court of Sterre Leone, in view of the provias ae oe Ae Cag and subsection 120 (9) respectiv + of the Constitu fa titution of sierra na ti find thet the format as directed herei ! » a wy Ghd dor rable Court, if different from the citation of parties hereto in th above title or heading, be used in the substantive application for orders of Sertforari, ete. for wich leave shall have been granted to the Applicant herein Af and ahen so granted. Notice vas given that at the hearing of the motion, Applicant vill seek, by Coun Dr, Bu-Buakei-Jabbi, to use and rely on the statement accompanying the applicath: and the Affidavit of Dr. BuBuakei-Jabb{ avorn on the 25th day of Noveaber 1999 and filed herewith. However, when this satter first ceae before the Court on the 20th January 2000 Dr. Jabbi for the Applicant could not proceed and requented ‘an adjournaent aince he wlahed to ask leave to aaend both the Notice of Motion paper as vell am the ~ statement accoapanying the Notion payers An adjournaent to the 9th February 200¢ was consequently granted. On the adjourned date, the leave to anend both the Motion paper and the Statenent accoupanying it vas requested, Taking cognizance of the papers filed the leave t, reiated proceedings, the Court ordered Service of anend sought herein and other reiated proceedings ° wrein on the Respondent the Attorney General and the Motion and other papers berein . 1° urned date - Tuesday 15th Februery 2000, Minister of Justice against the dot tacgequest for leave to anend both the Notice of Mot con the said date the Applicant 'acxea , ¢ accompanying it was granted. paper and the Statenea te request’. for an adjournaent to file the necessary ste Applicant's Counsel's Fequee' vos granted and the satter further adjourned to Thuraday saended pepers” ~ . * agen February 2000+

| elie ae > Soo counsed for the Applicant on the 1708 February urged the Court to erase O° dear . ga eprly for the prerogative order of cartorart, suntamne and prominstion S88 related directions in reopect of the ruling given on the 11t8 O=t000F sg by to learned Presiding Judge in proceedings on the aforesaid Criaisal Tafereatioe aes” ‘goth August 1999; to grant a Stay of Proceedings in the Court below founded en” tnd directions, Couael sought to rely on Secs 123 of te 1997 Conststetios Rules 5 (1) & (2) and Rule 98 of the Rules of the Suprese Court 1962 Orde 52 Fe 7 of the High Court Rules and English Rules 1960 Ord. 5 and cepecially 5+ b to We * tn weeking to perounde the Court to grant the reliefs sought, Counsel relied ‘ Affidavit evorn on the 25th Hovesber 1999 by Dre BurBuakie Jabbt especially pares to 9 thereof and the accompanying statement as amended. Counsel went 06 52 cite White Book 1960 Ord. 59 r+ Sat pe 1725+ stating that at this the leave stage of application for the prerogative andere he duty to make « piauritl® case hed been | dlachargnds Conuequentyy be pred the Court to qrait the Leave and the Stay of Proceedings+ sme Attornty-Coneral on bebalt of the Respondent eubastted tat S= Applicant!® application for leave for the prerogative ordara te i9eut WO misconceiveds He urtner avbastted hat the High Court presided over UF Sustice MoO. Taju-Deen bas furtediction under Sece 132 (1) of te 197% constitution, and that juriediction bi not been exceeded to justify a2 application ouch a being currently madet that prerogative orders in Stee 125 of the Constitution ebould not be used to frustrate the vork of the Courte below papectalny the High Court! And that the mere couchiz cof the matter a « Constitutional aatter dor not automatically entitle an accused, person to have the aatter referred £2 ‘the Suprese Court, The Attorney-General further eubaitted that it 58 not Overy Antringeaent of the law or the Constitution = eat mnounte fo « violation of fundanensel rights of Sections 16-27 of the Conetitution to justify « reference to the Supreae Court under Sec. 28 (3+ ‘me Attorney-General argued that nye the Judge erred at all it ie en apposlable matter" thus laying 9 foundation for granting leave for the prerogative order of certiorari which applic? only for an error of law apparent on the face of the reco: quoting - . smo Republic ¥a the High Court of Kumasi 1986 L.R.Ce (Conats) 610 at pe 618+ : Mavens

. Sel ‘oe Attorney-deneral then folloved Applicant's Counsel into the labyrinth of whether or not « fair hearing bad been obtained in High Court Nor 3 presided over by Hons Kr. Justice M.0, Taju-Deeny whether or aot "the Tet proviso to sub-secti (1) of Secs 156 of the Criminal Procedure Act Nor 32 of 1965 as amended by Act i of 1970 ~ (a) vas enacted in exceos or ultra vires of the povers thereto . conferred on Pariianent by law at the times ° (o), waa and 40 incompatibie with the provisions in Sec. 15 (a) and oud-oection (1) of Section 23 of the Constitution of . Sierra Leone Act Nos 6 of 19914 (2) violates the principle of contradiction viewavis the substantive part of subsection (1) of Section 136 of : the said Crininal Procedure Act 1965 an amendeds fand vas and 4 accordingly invalid, mill and void in terns of aubssction (4) of the Interpretation Act Now 7 of 1965 and of subsection 15 of Section 171 of the Constitution of SL. 1991, respectively, as the case say be." ‘Me Learned Attorsay flnally subaitted that the précent matter was not a proper : cane to come before this Court as the Applicant has not even made out @ prima fac + case for granting the leave. That the High Court acted properly and within its Jurisdiction in refusing to quash’ the indictment on the grounds given by the Applicant. And the High Court properly refused the reliefs sought. Counsel for the Applicant in reply subsitted that aost if not all of the Counsel for the Respondent's arguaente were preaature in that they raised iaoues and deal vith matters belonging to the second stege of the application for prerogative oré fue, the stage after leave has been granted, whereas the wotion presently being argued related to the leave or threshold stage. In ay opinion thie Court te not required to enter the labyrinth constructed by Applicant's Counsel. For this the leave atege of the application for the prerogs writs of certiorari, aandamis and prohibition a prina facte arguable case for les to be granted will suffice. * fs.

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