Issa H. Sesay & 2 Others v President of Special Court & 3 Others (SC 1 of 2003) [2004] SLSC 3 (10 August 2004)

[tl IN THE SUPREME COURT OF SIERRA LEONE ae th COURT OF SIERRA LEONE $C.12003 ISSA HASSAN SESAY (Alias Issa Sesay) ALLIEU KONDEWA. - _ PLAINTIFFS/RESPONDENTS MOININA FOFANAH AND ‘THE PRESIDENT OF THE SPECIAL COURT THE REGISTRAR OF THE SPECIAL COURT - — DEFENDANTS/APPLICANTS ‘THE PROSECUTOR OF THE SPECIAL COURT THE ATTORNEY-GENERAL & MINISTER OF JUSTICE

Coram

HON. DR. JUSTICE A. B. TIMBO - GL HON. MR. JUSTICE M. E. T. THOMPSON > 4S HON. MR. JUSTICE E.C. THOMPSON-DAVIS - 3... HON. MRS. JUSTICE V. A. D. WRIGHT - LSC. HON. JUSTICE SIR JOHN MURIA. - OLA Messrs A. F. Serry Kamal and C. F. Margai for Plaintiffs/Respondents Messrs E. A. Halloway, S. G. Kobba, L. M. Farma for Defendants/Applicants apy tt RULING DELIVERED THE 10 DAY OF byes 2004 By Notice of Motion dated the 20 July 2004 the Defendants/Applicants seek the following orders pursuant to Rule 92 (1) of the Supreme Coust Rules (PN No.1 of 1982):

Lo. “1. An order for enlargement of time within which to file the Defendants/Applicants case.

2. An order that the statements of Defendants/Applicants case already filed herein remain on the records of this Honourable Court notwithstanding that the same were filed out of time.

3. Any other order as the Honourable Court may deem fit and expedient in the circumstances.” The Application is supported by the affidavit of Joseph G. Kobba Senior State Counsel sworn to on the 16" day of July 2004, ‘The facts which gave rise to this Application were as follows: The Plaintiffs/Applicants Issa Hasan Sesay otherwise known as. Issa Sesay, Alieu Kondowa and Moinina Fofana, had filed an Originating Notice of Motion on the 1* of December 2003 asking the Court inter alia, “1. To declare the creation of the special Court as unconstitutional and therefore null and void and is of no legal effect.

2. To order that the arrest and detention of the Plaintiffs herein by the Special Court is unconstitutional and therefore illegal.

3. To order the immediate release of the Plaintiffs from the custody of the Special Court’s detention unit. 4, Any further order or other relief as this Honourable Court may deem fit and just.”

The said Originating Notice of Motion according to Counsel for the Plaintiffs/Respondents was served on the Defendants/Applicants, the President, the Registrar and the Prosecutor of the Special Court a few days earlier and on the Attorney- General and Minister of Justice on the 10th of December 2003 respectively. ‘The Application for extension of time within Rule 92 (1) was made to this Court only on the 28" July 2004, a period of over 7 months, Under Rule 92 (1) of the Supreme Court Rules (PN No. 1 of 1982) “(DA defendant upon whom a Notice of Motion and a statement of the plaintiffs’ case are served shall, if he wishes to contest the case, within ten days of such service, or within such time as the Court upon terms may direct, file a statement of the defendant's case which shall be signed by the defendant or his Counsel.” On the 29" of December 2003, the Ag. Registrar of the Supreme Court filed a Certificate of non-compliance by the Defendants/Applicants under Rule 92 (3) which states, “G) If the defendant does not file his case within the time stipulated the Registrar shall issue a certificate to that effect.” The question therefore is whether this Court can properly grant an extension of time to the Defendants/Applicants within Rule 92 (1) in these circumstances to enable them file their Case, ‘The Attorney-General and Minister of Justice in moving the motion relied on the Supporting affidavit of Joseph G Kobba already referred to. Paragraphs 7 and 8 of the aforesaid affidavit state emphatically and unequivocally, “(7) That I did not file the Statements of the Defendants’ case because the Statements of the Plaintiffs’ Case was not received by me nor in the Law Officers’ Department;

(8) That 1, in the circumstances requested a copy of the Statement of the Plaintiffs’ case from the Principal Assistant to the Registrar of the Supreme Court which he gave me to enable me to prepare and file the Statement of the Defendants’ case.” {tis interesting to note that he did not even say when he received the Statement of the Defendants/Applicants’ Case from the Principal Assistant Registrar in the Supreme Court Registry. Paragraph 17 of Mr. Kobba’s affidavit, in my view, is very attractive and therefore merits serious consideration. It states, “17 That in the premises aforesaid and having regard to the fact that this is a Constitutional issue of public importance the interest of justice will best be served by granting the several orders in the Notice of Motion filed herein.” In argument, Mr. Eke Halloway while re-echoing this same point also observed that it would be against the principles of natural justice (audi alterem partem) if his clients were not heard, Mr. Charles Margai on his part submitted forcefully that the reason for the delay in filing the Statement of Defendants’ case must be cogent. He said the Defendants/Applicants had been in breach of Rule 92 (1) for a period of over seven months and they have not siven any valid excuse for their conduct. Earlier Mr. Margai had applied for leave to have Mr. Kobba cross-examined on Paragraphs 4, 5 and 8 of his Affidavit in support of the motion. We refused leave because we did not consider it necessary in view of the papers already before us especially the certificate of non-compliance (Exhibit CFM1) from the Registrar's office. We know as a matter of fact that such certificate can only be filed

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