Ezzat Basma v S (CR APP 1 of 2012) [2014] SLSC 13 (21 January 2014)

. INTHE SUPREME COURT OF SIERRA LEONE CRLAPP. 12012 BETWEEN:- EZZAT BASMA APPELLANT AND THE STATE RESPONDENT

Coram

HON. MR JUSTICE VALESIUS V. THOMAS, JSC HON. MRS JUSTICE V.A.D. WRIGHT, JSC HON. MRS JUSTICE A. SHOWERS, JA ‘COUNSEL:- N. D. TEJAN-COLE ESQ. for the Appellant D. J. SOYEI ESQ. forthe Respondent. oe JUDGMENT DELIVERED ON THE 2S” DAYOF A@wswromy 2014 ‘Thomas, S.C. ‘This is a criminal appeal from the Court of Appeal (Criminal Division) to this Court following the grant of leave to appeal made by the Court of Appeal dated 7* June 2012. The application for leave to appeal against the decision of the Court of Appeal delivered on the 3" May 2012 was made by Notice ‘of Motion dated 14 May 2012 disclosing the several grounds of appeal on which the application was granted, These grounds of appeal are as follows:

1. The Court of Appeal in its ruling of 3% May 2012 used “Appellant and Respondent” as the title though it agreed with Counsel that the correct title is “State,v ‘Wellington ex parte Ezzat Basma™ thus creating doubt as to the correct title. LS

2. The Court of Appeal erred in law when it held that the Notice of Appeal at Pages 53 and $4 had been abandoned and acted on it as such in its Ruling without compliance with the mandatory provision of Rule 46(1) Court of Appeal rules 1985 ~ PN.29 of 1985 and Criminal form 9 of ‘Appendix C to the Court of Appeal Rules ~ Public Notice No. 29 of 1985..~

3. The Court of Appeal erred in law when it held that “...December 2011” is a date that the notice ‘of Appeal at page 55 and 56 was prepared and to compare it with the date ie. 22“ November 2011

the signature of the Appellant was notarized. It is submitted that a date isthe day ofthe month or year as specified by a number. In the absence of a number itis submitted itis not a dat. 4, An Appeal to an Appellate Court is a rehearing An application against a conviction by Magistrate to the High Court is to that Court not in its original Jurisdiction but appellate Jurisdiction. Thus an application by Certiorari in a criminal matter may arise from lack or excess of urisition, enor of law, pisdiestion andor non direction. Thus Ceriora under Section 19 of the Courts Act 1965 — Act 6 of 1991 as amended is an appeal. And it is an alternative under Section 42 of the Courts Act 1965 as amended.

5. Forthe Honourable Supreme Court to declare for future guidance; (a) the use of Certiorari in criminal cause to quash a conviction in a Magistrate’s Court is an alternative to an appeal under section 42 of the Courts Act 1965 as amended. (b) the date of appeal from the High Court on Certiorari to the court of Appeal of Sierra Leone is the date of the pronouncement of the decision of the High Court and not the date of the conviction in the Magistrate's Court. () that since the hearing in the Court of Appeal is a rehearing whether the grounds of appeal ‘on Certiorari must be grounds of the refusal and not the grounds of wrong conviction i. the lack or excess of Jurisdiction, errors of law, misdirection andlor direction in the Magistrate's Court. ‘Background ‘The Appellant was convicted before His Worship the late J.0. Wellington (the learned trial Magistrate) sitting in Magistrate Court No.2 on the 31" October 2011. The Appellant was convicted of the offences of Trespass contrary to section 15 (1) (b) of the Public Order Act 1965 and Assault ‘occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 and sentenced to “one month in prison without altemative on both counts to run concurrently.” He was discharged on Count 3 which had charged him with Larceny contrary to section 2 of the Larceny Act, 1916. ‘The Appellant was not present in Court when he was convicted and sentenced by the leaned trial Magistrate. Since the said conviction and sentence, the Appellant has not served one day in prison as he has made himself unavailable. Solicitor for the Appellant filed a Notice of Motion with supporting affidavit dated the 1" November 2011 in the High Court for inter alia Writ of Certiorari to quash the conviction and sentence ordered by the said leamed trial Magistrate for certain irregularities. The application came up before the Honourable Mr. Justice N. C. Browne-Marke JA who delivered his judgment on the 17" November

2011 refusing all the reliefs sought by the applicant, the Appellant herein. It is pertinent to note that the Writ of Certiorari was abolished by Section 19 of the Courts Act 1965 and replaced by an Order of Certiorari, Section 134 of the Constitution of Sierra Leone 1991 (the Constitution) provides that the High Court of Justice has supervisory jurisdiction over all inferior courts to issue orders of certiorari, ‘mandamus and prohibition as it may consider appropriate. The High Court does not have jurisdiction to issue a Writ of Certiorati as requested by the applicant in his application dated 1* November 2011 ‘The appropriate proceeding for the grant of an Order of Certiorari today is governed by Order 52 of the High Court Rules 2007, Constitutional Instrument No.8 of 2007 (the High Court Rules 2007) which states inter alia in sub-rule 1 of rule | that an application for an order of mandamus, probiition or certiorari shall be made by way of an application for judicial review in accordance with this Order. The rest of the provisions of this Order are relevant in determining the proper procedure for an applicant to pursue in order to obtain an Order of Certiorari. This procedure was not followed in the application for a Writ of Certiorari that was before the Hon. Mr. Justice N. C. Browne-Marke, JA. ‘Two Notices of Appeal were subsequently filed in the Court of Appeal following the conviction and sentence in the Magistrate Court and the application for inter alia a Writ of Certiorari in the High Court. They are respectively numbered CR.APP. 23/2011 dated 21" November 2011 (filed on the 22% November 2011) and CRAP. 24/2011 which was apparently signed by the Appellant on an unstated day in December 2011 but notarized on the 28" November 2011. It is relevant to observe that the Notice of Appeal CR.APP.24/2011 was filed in the Court of Appeal on the 6” December 2011 ‘Additional grounds of appeal in the latter Notice of Appeal were dated and filed on the 3" February

‘The Notice of Appeal CR.APP. 23/2011 (found on pages 81 and 82 of the records) addressed to the Registrar of the Court of Appeal states in its opening paragraph as follows: ““l, EZZAT BASMA being dissatisfied with the judgment/Ruling of the Honourable MR JUSTICE N.C. BROWNE-MARKE J.A. dated the 17" day of November, 2011 and being desirous of appealing against the said judgement DO HEREBY give you Notice of Appeal against my conviction/sentence on the grounds hereinafter set forth.” It is relevant to note that this Notice of Appeal was signed by A.E. MANLY-SPAIN as Solicitor for the Appellant. ‘The second Notice of Appeal CR.APP. 24/2011 (found on pages 83 and 84 of the records) also addressed to the Registrar of the Court of Appeal states in its opening paragraph as follows: “L EZZAT BASMA being dissatisfied with my conviction of the offences of trespass contrary to section 15(b) of the Public Order Act 1965 as amended and Assault Occasioning Actual Bodily Harm contrary to Section 47 of the Offences Against the Persons Act 1861 and being now

‘Sandaiwalia Cky Republic of Guinea on medical grounds) do hereby give Notice of Appeal

against my conviction of the sald Offences (Particulars of which hereinafter appear) to the

‘court on question of law (emphasis added) that is to say,” Following the said opening paragraph are 8 numbered paragraphs followed by a date of December 2011 and signed by the Appellant. This is followed by what purports to be a Notary’s Certificate and the date of 28" November 2011. After stating that the Appellant's residential address is No.17 Goderich Street, Freetown, Particulars of Trial and Conviction are given followed by the signature of AE Manly-Spain as Solicitor for the Appellant. :

Submissions

N. D. Tejan-Cole Esq., Counsel for the Appellant submitted that the simple question for determination by the Court is whether an accused under section 101 of the Criminal Procedure Act 1965 as amended ‘can be sentenced after an adjournment in his absence. He stated that as in this case which was tried by the learned trial Magistrate, such an accused cannot be so sentenced. Counsel then pointed out umber of issues on which the decision of the Court is required such as the correct ttle for the proceedings before the Court of Appeal. Relying on the case of Rv Cole ex parte Suma & Ors (1964

(66) ALR SL 484 and the English case of R.v Westminister Assessment Committee ex parte Grosvenor House (Park Lane) Ltd,(1940] 3 AIlE.R 241, he submitted that the correct title inthe case before the Court of Appeal is “The State v Wellington ex parte Ezzat Basma." He further argued that the reliance made in the ruling of the Court of Appeal on a criminal appeal that had been abandoned (vamely CR.APP-23/2011) as part of the reasons for striking out the appeal, was wrong. Counsel submited that a correct interpretation of section 101 of the Criminal Procedure Act 1965 as amended is necessary in order to determine the legality or otherwise of the learned trial Magistrate's decision to ‘convict and sentence the Appellant in his absence. Counsel finally submitted that the appeal should be upheld and the conviction and sentence quashed. In his reply Counsel for the Respondent, G. J. Soyei Esq, made the following submissions:

1. That the correct ttle of the appeal in the Court of Appeal is “Ezzat Basma v The State” and not otherwise, as the learned trial Magistrate, late Magistrate J.

0. Wellington was not a party in the proceedings. 2. ‘That CR.APP, 24/2011 was not an appeal from a decision of the High Court and consequently this Court should not entertain this appeal as the correct route for such an appeal from a magistrate court has not been followed. Counsel further submitted that since CR.APP. 23/2011 was abandoned in the Court of Appeal, the subsequent Notice of Appeal filed namely CR.APP. 24/2011 collapses as it was cout of the time within which it should be filed. Counsel also made submissions dealing with the incomplete date on the face of CR.APP. 24/2011. :

a

The pages read for this report end here. The judgment continues in the PDF.