Justice Alan Halloway v Cowan & Ors (SC 4 of 2011) [2011] SLSC 10 (8 June 2011)

T - o S.C. 4/2011' ■ J * IN TH E SU PREM E COURT O F SIERRA LEO N E IN TH E M A TT E R O F TH E CO N STITU TIO N O F SIERRA LEONE A CT NO.<>OF 1991 SECTIO N S 127(1-4); 124: 137(5A^1: 135f3-51: 136(2-61: 146(1} AND (T ti HZlQQ AND f2): 147fl-4): 14811-3^: 149H-4) AND 146 AND IN TH E M A TT E R OP THE OM BUDSMAN A C T NO.2 OF 1997. SECTIO N S 4(A&B) AND 7-15 OF T H E SAID ACT IN TH E M A TT E R O F T H E SIERRA LEO N E G A ZETTE VOL CX LI THURSDAY 17m JU N E, 2010 NO.44 GO VERNM ENT N O T IC E NO. 173 PAGES 840/1 AND IN TH E M A TT E R O F TH E EX ERCISE O F T H E PO W ERS C O N FERRED ON T H E PR ESID EN T BY SECTIO N 137 OF THE C O N STITU TIO N O F SIERRA LEO N E I991fA CT N O ,6 OF 191 9) TO SET UP AND DID SET UP A TRIBUNAL CO N STITU TIO N OF:- (1) JU ST IC E EDM OND E. COW AN - CHAIRM AN (2) WARDS W O R TH FILO JO N ES - M EM BER (3) ROLAND E. CAESAR - M EM BER (4) JO S E P H GOM OI-VANDI-KOBBA - M EM BER 2A. TO IN Q U IR E IN TO TH E QU ESTIO N OF TH E REM O V A L OF JU ST IC E ALU SINE SESAY ND JU SD TIC E ALLAN B. HA LLOW AY, BO TH OF W H O M A RE JU D G ES SOF TH E SPER IO R COURT OF JU D IC A TU R E AND TO R E P ORT T O T H E PR ESID EN T THE FACTS T H E R E O N AND TH E FINDINGS TH ER EO F, AND £EQ REC O M M EN D TO T H E PR ESID EN T W H ET H E R JU STIC E ALUSINE SESAY AND JU ST IC E ALLAN B. HALLOW A Y O U G H T TO BE REM O V ED FR O M O FFIC E 1 I f m T H E TRIBU N A L SHALL CO M M EN CE ITS PR O CEED IN G S ON T H E 29iJI DAY O F JUNE, 2010 AND SH ALL SIT IN FR EE TO W N O R SUCH O TH E R PLA CE IN SIERRA LEO NE AS T H E TRIBUNA L M AY D ETERM IN E (4) TH E TRIBUNA L SH ALL REG U LA TE TH E PRO CED U RE FO R T H E PR O C EED IN G S (5) TH E TRIBU N A L SH ALL SUBM IT ITS R E PO R T W ITH IN SIX W EEK S O F TH E CO M M EN CEM EN T O F TH E PRO CEED IN G S. M ADE A T FR E E T O W N TH E 10th DAY O F JU N E, 2010 BETW EEN : JU ST IC E ALLAN B. IiA L L O W A Y - PL A IN TIFF AND ‘ 1. JU ST IC E EDM OND E. COW AN CHAIRM AN % W O RD SW O RTH FIL O JO N ES - M EM B ER 3. ROLAN D E. CEASAR - M EM B ER 4. JO S E P H G O M O IV A N D I-K O B B A - M EM B ER 5. A TTO R N EY -G EN ER A L & M IN IST ER O F JU STIC E CO RA M HON. M RS. JU ST IC E BASH-TAQI - JSC HON. M R, JU ST IC E P. O. H A M ILTO N - JSC HON. M RS JU ST IC E V.A.D. W R IG H T - JS C HON. M R. JU ST IC E M .E.T. TH O M PSO N - JS C HO N. M RS. JU ST IC E A SHOW ERS - JA C ^.M .M A RG A I ESQ., S.B. TEJA N -SIE ESQ. AND R.B. KO W A ESQ. FO R T H E PL A IN T IF F JO S E P H G. KOBBA FO R DEFENDANTS RU LIN G D ELIV ER ED ON TH E 5 4 . D A Y O F J i J U l 2011 2 ^ 2 - V.A.D. W right JSC . I Had the opportunity o f reading the lead ruling of my brother. This is an application dated 8th day of April, 2011 following reliefs pursuant to Section 127 (1-4) and 124(1) o f the Constitution of Sierra Leone, 1991 (act No. 6 o f 1991) namely: 1. A declaration that the appointment by the President o f (1) Mr, Justice Edmond E. Cowan - Chairman, (2) Wordsworth Filo Jones, (3) Roland E. Ceasar as the Tribunal set up (a) to inquire into the question o f the removal o f Justice Alusine Sesay and Justice Allan B. Halloway both o f whom are Judges o f the Superior Court of Judicature and to repcrt tq the President the facts thereon and the findings thereof (b) recommend to the President whether Justice Alusine Sesay und Justice Allan B. Halloway ought to be removed from office contravene Section l?7(5a) o f the Constitution of Sierra Leone, Act No.6 o f 1991 in that all three Commissioners do not meet by way o f qualification the requirements envisaged by the said sub-section reading Section 135 o f Act No.6 o f 1991 in tandens with Sections 137 (2)(a) and (b) and 136(4) of the same . Act. . 2 A declaration that the appointment o f Joseph Gomoi Vandi-Kobba to the said Tribunal as published in Sierra Leone Gazette Vol. CXLI Thursday 17‘ h June, 2010 No. 44 Gov. Notice No. 173contravenes Section 137 o f Act No.6 o f 1991 as the Tribunal should consist o f a Chairman and two other Members. 3.. A declaration that Justice Edmond E. Cowan, named as a Chairman o f the Tribunal in Gov. Notice No. 173 at P.840 in the Sierra }*+1 . , Leone Gazette Vol. CXLI, Thursday 17 June, 2010 No.44 is not I the same person who is Presiding over the Tribunal as evidence in a Ruling delivered by the Tribunal dated 29lh March, 2011 the Chairman being Justice E. K. Cowan and not Justice Edmond E. Cowan. t. Alternatively, a declaration that the appointment o f Justice Edmond E. Cowan as Chairman o f the said Tribunal who is the substantive Ombudsman An officc provided for in Section 146 o f the Constitution )f Sierra Leone Act No,6 o f 1991 and actualized by the coming into force o f Act No.2 o f 1997 tantamount to as conflict o f interest in that, the Plaintiff under Investigation is a public officer who if aggrieved by the process leading upTo the setting up o f the said Tribunal should be amenable to the Ombudsman’s office and or services and thereof breach the Rules o f natural Justice by depriving him o f such facilities that is access to the Ombudsman. 5. A declaration that the President* having set up the said Tribunal under Section 137 o f Act No.6 of 1991 and caused same to be gazetted as Aforesaid with as time line for submission of its report to the President Within six weeks o f the commencement date being 29th day of June, 2010; Not having extended the period on the expiry o f the commencement date, and publishing same in the gazette, deprived the ongoing Tribunal o f Legitimacy/efficacy as such omission contravenes Section 137 o f Act No.6 O f 1991 from which authority • is derived, : > Such other or further Orders to made by this Hon. Court as the Justice o f the o f the case may demand. ' The brief facts in this case are that a tribunal was set up by the President under Section 137 (5) (a) & (b) o f the Constitution o f Sierra Leone 1991 (Act No. 6 o f 1991) hereinafter referred to as the Constitution appointing 13 4 three persons to enquire into the removal o f Justice Allan Halloway and Justice Alusine Sesay Judges o f the High Court, The President ordered the tribunal to commence sittings on the 29th June 2010 and to submit its report six weeks o f the .commencement o f the proceedings as contained in • the Gazette as Public Notice N ol74. Justice Edmond Cowan was appointed Chairman o f the Tribunal with Wordsworth Filo Jones Esq., Roland E. Caesar Esq, and Joseph Gomoi Vandi Kobba. Charles Margai Esq. Counsel for the plaintiff raised series o f objections seeking several declarations, from the Supreme Court to hold that the • ■ " 1 . . ' declarations sought contravene certain provisions o f the Constitution. The application is supported by the affidavit o f the plaintiff sworn to on the 5th April 2011 and filed herein. At the hearing leave was granted to the respondent to r Ile their case out o f time. I shall now deal with the first declaration sought, which is that the Chairman Justice Edmond Cowan, Wordsworth Filo-Jones and Rowland Caesar appointed by the President to serve in the Tribunal be removed from office since it contravenes sections 137(5a) o f the constitution since they do not have the required qualifications for the post to sit in the tribunal and that they have all passed retirement age. Learned counsel for the plaintiff Charles Margai Esq. in his case submitted that the qualification o f members to sit on the tribunal are found in Section 137(1) o f the Constitution. He submitted that Section 135 deals with the appointment o f Judges their retirement ages and Section 136(2)(3)(4)&(6) summarises the circumstances on which a Judge or Justice has reached retirement age can be appointed to act as a Judge o f the High Court or Justice o f the Court o f Appeal or a Justice of the Supreme Court. He reiterated that all the three members o f the tribunal have passed the compulsory retiring age o f sixty five years, and that they have not held office as a Justice o f the Supreme Court. He said ■ * 4 5 n s that was imperative that section 135(3) should be read together with Section'137(2b) o f the constitution to give effect to the correct meaning o f the word “qualified'' as used in the said sub-section. Learned Counsel for the respondent J. G. Kobba Esq. in his case fried disagreed with those submissions and submitted that all the wo scenarios envisaged by Section 135(4) are that one must be qualified to practise as counsel if you have been called and enrolled or otherwise admitted as such and have not subsequently been disbarred or removed from the Roll o f Counsel or Legal Practioners. He went on to say that from the foregoing it would appear hat one would remain eligible to practice as Counsel until one is disbarred or removed from the Roll o f Counsel or Legal Practioners and submitted that any person entitled to practise for twenty years without sitting as. a Supreme Court Justice will be qualified to be a member o f the tribunal. Let me say that Chapter VII o f the Constitution deals with the Judiciary and part V deals with the appointment o f judges and the relevant provisions are to be found in Sections 135(1) 135(2) 135(3) and 135(4) and 136(5) o f the constitution Section 135 (1 ) states “The President shall, acting on the advice of the Judicial and Legal Service Commission and subject to the approval o f Parliament, appoint the Chief Justice by warrant under his hand from among persons qualified to hold office as Justice o f the Supreme Court, (2) The other Judges o f the Superior Court o f judicature shall be appointed by the President by warrant under his hand acting on the advice o f the Judicial and Legal Service Commission and subject to the approval o f Parliament. (3) A person shall not be qualified for appointment as a Judge of the Superior Court o f Judicature, unless, he is entitled to practise as Counsel 6 in a Court having unlimited jurisdiction in civil and criminal matters in Sierra Leone or any other Country having a system o f law analogous to lhat o f Sierra Leone and approved by the Judicial and Legal Service Commission, and has been entitled as such Counsel in the case of appointment to:- (a) the Supreme Court, for not less than twenty years; (b) the Court o f Appeal, for not less than fifteen years; (c) the High Court o f Justice, for less than ten years. (4) For the purposes o f subsection ‘ (3), a person shall be regarded as entitled to practise as Cou nsel if he has been called, enrolled or otherwise admitted as such and has not subsequently teen disbarred or removed from the Roll o f Counsel or Legal practitioners, 136(5) Any person appointed under the provisions o f sub-section (4) of this section to act as Justice o f the Supreme Court or o f the Court of Appeal shall continue to act for the period o f his appointment or if no such period is specified until his appointment « s revoked by the President acting n accordance with the advice o f the Judicial and Legal Service Commission. The above sections in my mind are clear and unambiguous. In A. G. Ogun State (2002) 2 W.R.N. Bella JSC said "The fundamental principle is the interpretation that would serve the interest o f the Constitution and would carry out its object and purpose should be preferred. To achieve this goal, its relevant provisions must be read together and not disjointly, where the words o f any section are clear and unambiguous, they must be given their original meaning unless this would lead to absurdity or be in conflict with the provisions o f the constitution and effect must be given to those provisions without any recourse to any other control1 ’ 7 .. w The three commissioners have been called tc the bar for more than 20 years thereby making them eligible, for appointment as Justice o f the Supreme Court as enumerated in Sections 13 5(3)(c) of the Constitution. Section 135(4) o f the Constitution has two parts firstly that one must be entitled to practice as counsel if one is enrolled and secondly jf one is admitted and not subsequently been disbarred or is removed from the Roil o f Counsel or Legal Practioners. . .. It could be seen from the above that to satisfy the conditions laid • ■ ' ■ / . ‘ . down in Section 135 (3) one is entitled to practice for twenty years without sitting as Supreme Court Justice to serve as a member o f the Tribunal. Section 137 o f the Constitution gives the tenure o f office o f the Judges and Justices o f the Superior Court o f Judicature Section 137(1) o f the constitution states "Subject to the provisions o f this section a Judge o f the Superior Court o f Judicature shall hold office during good behaviour. Section 137(2) states that a person holding office as a Judge o f the Supreme Court o f Judicature- 'a) May retire as Judge at any time after attaining the age of sixty years: (b) Shall vacate that office on attaining the age of sixty - five years. of course these are all part o f the conditions o f service o f Judges but Section 136(4) shows that a Justice o f the Appeal or Supreme Court can be appointed to act as a Justice o f Appeal or Supreme Court after the retiring age o f sixty-five years for any prescribed period. 8 From the above, it is abundantly clear that that one can be appointed to act as a Judge o f the High Court or Justice o f the Appeal Court or Justice o f the Supreme Court after attaining 65 years under Section 136(2) and 136(4) o f the constitution. ' Formerly the approach to legislative interpretation was the literal rule but that has now moved towards the purposive fee Lord Diplock in Carter VS Brad beer (1975) ALL ER 158 holds that "If one looks back to actual decisions o f this house over the last thirty years one cannot fail to be struck by the evidence o f a trend away from the purely literal towards the purposive construction o f statutory provisions • In Agyei Twum Vs A-G & Akwetey (2005-2006) SCGLR Dr Date - Bah JSC said "The concept o f the purpose o f a constitutional provision reveals there are iwo kinds o f purpose; Subjective and objective. The subjective purpose is what the framers o f the constitution actually intended. The objective purpose, on the other hand, is what the provision should be seeking to achieve, given the general purposes o f the constitution and the core values o f legal system and o f the constitution. In other words, it is the purpose that a reasonable person would have had .f he or she were faced with formulating the provision in question. Section 137(5) (a) can be divided into two parts those whc have held office as a Supreme Court Justice and those who are qualified to hoid office as a Supreme Court Justice. To me the fact tha: the Commissioners are over 65 years is irrelevant since they are still entitled to practice as Barristers and Solicitors and their names have not been removed from the Roll o f Legal Practioners. It was not necessary for the Commissioners to serve as a Justice o f the Supreme Court. • 1 2 1 - 1 Therefore since the Commissioners have fulfilled the qualification in Section 137(4) the}' were validly appointed as members o f Tribunal. In relation to the second declaration the plaintiff submitted in his case that in accordance with Section 137 (5a) the President appointed a Tribunal comprising as follows 1. Justice Edmond E. Cowan Chairman 2. Wordsworth F lo Jones 3 Roland E. Caesar 4. Joseph Gomoi-Vandi Kobba Contrary to sub-section (5a) o f Section 137 o f Act No.6 o f 1991. In the defendant’s case it was disclosed that Joseph Gomoi-Vandi Kobba advised Himself at,the time o f his appointment that he was not qualified under Section 137(5a) and 135(3) since he had not qualified for twenty years and as such cannot be a member o f the Tribunal. Since this is a nullity Joseph Gomoi-Vandi Kobba did not participate as a member of the Tribunal although he now represents the interest o f government. It is clear that Section 135 (5) o f the Constitution was not contravened and the declaration sought therefore fails. In relation to the third declaration that the Chairman named in Sierra Leone Gazette Vol. CXL I, Thursday 17th June 2010 No.44 at pp 84011 is not the same person as Justice E. K. Cowan presently chairing the Tribunal as evinced from Ex ABH 2 dated 29th March 2011 (see Exh ABH1 & ABH2) This is merely a typographical error wherein the initial "C" was substituted for "k" in the name o f Justice Edmond K. Cowan. Therefore this declaration fails. 10 S ' S In relation to the fourth declaration sought that the Chairman must recluse himself, as the Chairman o f the Tribunal C.F.Maargai Esq., ijj hi? case said that if the Plaintiff is aggrieved he may exercise his rights and petition the office o f the Ombudsman which office has as its head the Chairman o f this Tribunal. In the plaintiffs case it Was said that there is a conflict o f interest in discharging his duty as Chairman of the Tribunal while remaining the Ombudsman. By the Ombudsman acting as Chairman or even an ordinary member o f the said Tribunal if had shut the door to any recourse to him by the plaintiff in the event of a complaint arising from maladministration resulting m injustice emanating from his superiors amounting to a denial o f natural justice. The defendant in his case disagreed with this in his case. . The Chairman was appointed by the President by Section 137(5) which states that the President acting in consultation with the Judicial and Legal Service Commission shall appoint a Tribunal which shall consist o f a Chairman and two other members, all o f whom shall be persons qualified to hold or have held office as a Justice o f the Supreme Court. This Tribunal was set up by the President as spelt out in Section 137(5)(b) The Tribunal appointed under paragraph (a) shall enquire into the matter and report on the facts thereof and the findings thereon to the President and recommend to the President whether the Judge ought to be removed from office under sub-section (7) The functions o f the Ombudsman was set up as laid in part III o f the Ombudsman Act No.2 o f 1997 whose functions include ' to investigate any administrative act’ o f prescribed authority in respect o f which a complaint has been made to him by any person who claims to have suffered injustice as a result o f any maladministration in connection with 11 S I such act or information as received by him from any person or source, otherwise than by complaint, referred to him. " He also had to take appropriate action to remedy, correct or reverse the net complained of through such means as are fair, proper and effective. As Chairman of the Tribunal he performs a judicial' function and as an Ombudsman he investigates all cases o f maladministration brought to him. Section 8(1) (a) o f the Ombudsman Act precludes the Ombudsman from investigating any matter "pending before or already decided by a court of competent jurisdiction". The Constitution makes provisions for persons aggrieved to have redress to Supreme Court under its supervisory or original jurisdiction. Section 127 o f the Constitution states "that a person who alleges that an enactm ent o r anything contained in or done under the authority o f that Act or f-Jiy other enactment is inconsistent with, or is contravention of a provision o f this constitution may at any time bring an action in the Supreme Court for a declaration to that effect". It is . pertinent to note that the Tribunal’s recommendation to remove the Judges from office has to confirmed by a two third majority in Parliament and .by Section 94 (1) o f the Constitution Parliament may regulate its own procedure, make an amend standing orders o f Parliament. Section 94(2) o f the Constitution states clearly that the. application or interpretation o f rules, decision or order done by parliament or by the Speaker under the rules o f procedure shall not be enquired into by the Court. • This brings to my mind the provision o f Section 53(3) o f the Constitution in relation to complaint from aggrieved persons which states that “W hereby this Constitution or under any other law the President is 12 required to act in accordance with the advice of any person or authority the question whether he has in any case received or acted in accordance with such advice shall not be enquired into by any court”. From the foregoing I see nc reason why the Chairman o f the Tribunal being an Ombudsman should recluse himself from the Commission. Therefore this declaration fails In relation to the fifth declaration sought in the plaintiffs case learned Counsel for the plaintiff he said that the publication in the Gazette stated . the date o f commencement and conclusion that is 29 h June 2010 to six weeks thereafter, but the Tribunal commenced it proceedings on the 10th January 2011, o f which the Tribunal is still sitting, He submitted that Section 170(7} o f the constitution must be read together with the constitutional and statutory Instilm ents Act No6 of 1999 which was dealt with in the Hinga Norman case. He further said that the President having invoked the provisions o f Section 137(5a) o f the Constitution it was mandatory fc.r Sections 170(7) to be strictly complied with. The defendant’s case stated that an executive command can attract the Rules o f Statutory Interpretation when they are Legislative or statutory as the name applies, He relied on Section 53 o f the Constitution supra; and that the orders contained in Government Notice No 174 could not be mandatory, but directory and that the Gazette has no Legislative effect not seeking an enlargement of time in the circumstance does not entail any legal consequences which will render the present exercise Null and Void. * According to the Interpretation Act 1971 No. 8 o f 1971 a Gazette means "th e gazette published by order o f the Government o f Sierra Leone and 13 ,i:: . S3 required to act in accordance with the advice o f any person or authority the question whether he has in any case received or acted in accordance with such advice shall not be enquired into by any court”. From the foregoing I see no reason why the Chairman o f the Tribunal being an Ombudsman should recluse himself from the Commission. Therefore this declaration fails In relation to the fifth declaration sought in the plaintiffs case learned Counsel for the plaintiff he said that the publication in the Gazette stated the date o f commencement and conclusion that is 29*1 June 2010 to six ' weeks thereafter, but the Tribunal commenced it proceedings on the 10!l' January 2011, o f which the Tribunal is still sitting, He submitted that Section 170(7) o f the constitution must be read together with the constitutional and statutory Instruments Act No6 o f 1999 which was dealt with 'n the Hinga Norman case. He further said that the President having invoked the provisions o f Section 137(5a) o f the Constitution it was mandatory for Sections 170(7) to be strictly complied with. The defendant’s case stated that an executive command can attract the Rules o f Statutory Interpretation when they are Legislative or statutory as the name applies. He relied on Section 53 o f the Constitution supra; and that the orders contained in Government Notice No 174 could not be mandatory, but directory and that the Gazette has no Legislative effect not seeking an enlargement o f time in the circumstance does not entail any legal consequences which will render the present exercise Null and Void. . According to the Interpretation Act 1971 No. 8 o f 1971 a Gazette means "th e gazette published by order o f the Government o f Sierra Leone and 13 includes any supplement thereto, Gazette Extra ordinary so published and, in respect o f any publication before the 27th April 1961 o f the Sierra Leone G azette." By Section 170 (7) o f the Constitution any orders, rules or regulations made by any person or person or authority pursuant to a power conferred in that behalf, by this Constitution or any other law:- (a) Shall be laid before Parliament (b) Shall be published in tHe Gazette on or before the day they are Laid before Parliament. (c) Shall come into force at the expiration o f a period of twenty- one days o f being so laid, unless Parliament before the expiration o f the said period o f twenty-one days annuls any such orders, rules or regulations by the votes o f not less two-thirds o f the members o f Parliament. From the above it could be clearly seen that a Gazette is not a constitutional Instrument or Statutory Instrument, therefore the orders contained in Government Notice No. 174 could not be mandatory and that the Gazette has no legislative effect. I accordingly find no legal substance to enable me to grant this order especially in view of Section 170 (7) and section 53(3) o f the Constitution. From the foregoing all the declarations sought are refused and the motion is accordingly dismissed. Nb order as to costs. 24 HON. MRS JUSTICE V.A.D WRIGHT JSC