Haja A.O.E Kabba v S (CR APP 10 of 2014) [2014] SLCA 10 (30 April 2014)

Cr. App. 10/2010 . BETWEEN: HAJA AFSATU OLAYINKA EBISHOLA KABA - APPELLANT/APPLICANT ‘AND THE STATE = RESPONDENT HON. MR. JUSTICE P.O. HAMILTON, 3.S.C. HON. MR. JUSTICE E.E. ROBERTS, J.A. HON. MRS JUSTICE A. SHOWERS, J.A. ° COUNSEL: J.B. JENKINS-JOHNSTON, ESQ. FOR THE: APPELLANT/APPLICANT RS. FYNN, ESQ. FOR THE RESPONDENT ah RULING DELIVERED HIS. SO. DAY OF APRIL, 2014 ROBERTS,J.A. ‘The AppellanvApplicant here was charged on a several count indictment preferred by the Anti Corruption Commission . She was tried and on the 12" October 2010 was ‘convicted on 5 counts. The leamed trial judge pronounced a sentence of Le30 million or 3 years imprisonment on each of the § counts. The judge further pronounced that “in addition to the fines the accused is to refund the sum of Le300 million being the amount subjected ofthe offences within the same period as the fines.” According to the AppellanvApplicant she duly paid the aid sum. The AppellantApplicant then appealed to this Court against the said conviction and sentence and on the 29" November 2013 her appeal was upheld her conviction quashed and the court ordered tha ll ines imposed that was paid were to be returned to her. On the 3" December 2013 solicitors for the Appellanv/Applicant wrote to the Anti Corruption Commission demanding, the refund of the sum of Le300 million paid to them but they replied thatthe order for refund related only to fines paid, The AppellanUApplicant then filed the motion herein dated 18” December 2013 praying for the following order: a

Bee

“That consequent upon the quashing of the Appellant's conviction by the Court of ‘Appeal in its Judgment on the 29" November 2013. That the sum of Le.300,000,000.00 Learned Trial Judge on 12" October 2010 BE REFUNDED TO THE APPELLANT. In support of her application the Appellanv/Applicant relied on the affidavit of Haja ‘Afsatu Olayinka Ebishola Kabba swom to on 10® December 2013 together with the attached exhibits. The State Respondent filed an affidavit in opposition sworn to by one Felix Lansana Tejan Kabba on the 16 December 2013. Counsel for State then filed a Notice of Preliminary objection. Atthe mention of the motion for hearing, counsel forthe State referred to his Notice of Preliminary objection and raised an objection on the ground of irregularity as the motion is filed in a matter that has been completed and determined by this Court by judgment delivered on the 29" November 2013. Counsel submitted that once a matter has been determined by this Court then this Court should not be resorted to by any party who may feel that the Court's determination did not go far enough or who may be aggrieved by the

Decision

Counsel submitted that the matter is now in the Supreme Court as the Respondents have appealed to that Court. Counsel submitted that ifthe Applicants were allowed to come to this Court after it had delivered judgment then there would be no end to litigation. Counsel for the Appellant/Applicant in answer submitted that by filing an affidavit in opposition the Respondent had waived their right to raise the preliminary objection. ‘Counsel submitted that this court has inherent power to correct its own judgment where that is found to be necessary. It seems to me the main issue in the preliminary objection is whether this Court has power to make the alteration or correction to its judgment already delivered. - I shall only make a few comments on the argiment of whether the Court of Appeal has inherent jurisdiction in its Criminal Division. I may have to give credence to the distinction (as perceived by some jurists) between inherent jurisdiction and inherent power of the Court, I have therefore decided to deal with this application and in effect

3S decide whether this Court has inherent power (it not jurisdiction) to hear and grant the Appellant's present application luis my view that every Superior Court does and must have some power and jurisdiction which is inherent in the very nature of the Court especially as a Court of record in order to maintain its authority and effectiveness, to prevent any obstruction ofits process and to do justice. This power is derived not from any particular statute or legislation but from inherent powers vested in a Court to enable it control the proceedings before it In CONNELLY V DPP 1964 AC p. 1301 Lord Morris had this to say “There can be no doubt that a Court which is endowed with a particular Jurisdiction had power which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are in inherent in the jurisdiction. A Court must enjoy such powers in order to enforce its rule of Practice and to supress any abuse of its process and to defeat any attempt thwarting of its process.” In Halsabury’s Laws of England 4" edition Volume 37 paragraph 14 page 23 the authors defined inherent jurisdiction as follows: “The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, asa court of law. The overriding feature ofthe inherent jurisdiction of the court is that it is a part of procedural law, both civil and criminal, and not a part of substantive law, it is exercisable by summary process, without a plenary trial...... . In sum, it may be said that the inherent jurisdiction of the Court is a virile and viable doctrine, and has been defined as the reserve or fund of powers, ‘a residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, o do justice between the parties and to secure a fair trial between them.” The inherent power of a Cour is by its nature therefore limited and is generally recognised to be available in the following circumstances,

3b ° To ensure convenience and faimess in legal proceedings » To Prevent steps being taken that would render judicial proceedings inefficacious, ©) To prevent abuse of process 4) To act in aid of Superior Cours and in aid or control of inferior Courts and tribunal Itis my view therefore that this Court ie (the Court of Appeal) even in its criminal jurisdiction possesses some inherent or implied powers though limited in scope and application as confirmed by the authorities already cited. Counsel for the Appellant submitted that this Court has power to hear and grant the application as it is to correct its own judgment, The Appellant seems to be asking this Court to make an order which it did not originally make but (according to Counsel) having regard to its order upholding the appeal and quashing the conviction it appeared to bbe an omission on the part of the Court. This can be gleaned from paragraph 4 of the ‘Appellant's affidavit where she deposed as follows: “That no mention was made of the sum of Le 300 million, which I believed was an omission, since the quashing of the Conviction meant that all punishment meted and under the conviction ought to be reversed.” The questions I have therefore asked and which I shall attempt to answer are: 12) Was there indeed an omission on the part of the Court? And b) Can the Court correct that omission as prayed for? Counsel for the Appellant in support of his contention relied on the case of THYNNE V THYNNE [1955] 3 All ER

129. With respect to Counsel I do not find this ease to be panicularly useful inthis application. That case wasa civil action (Divorce) and what was recognised was the Court of Appeal’s inherent power to amend an order after it had been drawn up and entered, so as to make the portion ‘under it clear and free from "ambiguity “This case cannot be authority for what obtains in a criminal appeal. What may be relevant perhaps is whether this Court has similar powers when acting in is criminal jurisdiction ina criminal appeal. tis my view however that this court asa court of

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